Dismissed and Memorandum Opinion filed =
November=20
29, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00849-CV
____________
RESOURCE=20
HEALTH SERVICES, INC., =
Appellant
V.
ACUCARE=20
HEALTH STRATEGIES, INC., =
Appellee
On Appeal from =
the=20
269th Judicial District Court
Harris County, =
Texas
Trial Court Cause =
No. 06-55876
M E M O R=20
A N D U M O P I N I O N
In this=20
restricted appeal, a judgment debtor attempts to appeal the trial=20
court=3Ds judgment=20
in a proceeding=20
under the Uniform Enforcement of Foreign Judgments Act. =
Because=20
there is no judgment in the trial court from which appeal may be =
taken,=20
this court lacks appellate jurisdiction. Accordingly, we =
dismiss=20
this appeal.
Appellee=20
Acucare Health Strategies, Inc. (AAcucare@) obtained a judgment =
against=20
appellant=20
Resource Health Services, Inc. (AResource@)=20
in a =
Virginia=20
district court. Acucare then filed an affidavit in the trial =
court=20
below seeking to enforce the Virginia judgment in Texas under the =
Uniform=20
Enforcement of Foreign Judgments Act. Tex. Civ. Prac. & Rem. =
Code=20
Ann. '35.001, et =
seq. (Vernon=20
1997). If a judgment creditor follows all the procedures of =
the=20
Uniform Act, the foreign judgment becomes a Texas judgment in the =
court in=20
which it is filed. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. '35.003; Mindis =
Metals, Inc.=20
v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 483 =
(Tex.=20
App.CHouston [14th Dist.] =
2004, pet.=20
denied) (stating that, if a judgment creditor follows the =
procedures of=20
the Uniform Act for filing a foreign judgment, A[t]he judgment =
[becomes]=20
enforceable as a Texas judgment on the date it was =
filed@). Under the =
Uniform Act,=20
the judgment creditor must file an authenticated copy of the =
foreign=20
judgment as well as =
an=20
affidavit. See Tex.=20
Civ. Prac. & Rem. Code Ann. '' =
35.003,=20
35.004. The=20
appellate record shows that Acucare filed an affidavit =
but that it=20
did not file any judgment in the trial court. Although the =
affidavit=20
states that the Virginia judgment is attached, there is no =
judgment=20
attached to the affidavit in our record, and the district clerk =
has=20
confirmed that there is no judgment in the trial court=3Ds file. =20
=
Although the affidavit purports to describe the judgment, the =
affidavit is=20
not a judgment, and this court cannot treat the affidavit as if it =
were a=20
judgment. See Hamilton v. Empire Gas & Fuel Co., =
110=20
S.W.2d 561, 566 (Tex. 1937) (holding that judgments must be in the =
trial=20
court=3Ds record to be =
effective and=20
that affidavits cannot be accepted as a substitute for a such a=20
judgment). Furthermore, Acucare has not satisfied the =
Uniform=20
Act=3Ds requirement that an =
authenticated copy of the judgment be filed. Therefore, =
there is no=20
Texas judgment under the Uniform Act. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. '35.003; Mindis =
Metals,=20
Inc., 132 S.W.3d at 483.
Because there is no =
judgment in=20
the trial court from which Resource can appeal, this court must =
dismiss=20
for lack of appellate jurisdiction. =20
See Ulmer v. Ulmer, 130 S.W.3d 294, 296 (Tex.=20
App.CHouston [14th Dist.] =
2004, no=20
pet.) (en banc) (stating that courts of appeals have appellate=20
jurisdiction only over final judgments and those interlocutory =
orders and=20
judgments that the legislature has expressly made appealable by =
statute);=20
Chandler v. Reder, 635 S.W.2d 895, 897 (Tex. =
App.CAmarillo 1982, no =
writ)=20
(holding that appeal must be dismissed because the trial court did =
not=20
render a judgment sufficient to support an appeal).
In its opening brief, =
Resource=20
did not note that Acucare failed to file the Virginia judgment in =
the=20
trial court; however, Resource did raise this issue in its reply=20
brief. Acucare has filed a motion to strike this reply brief =
on the=20
ground that it raises entirely new issues as to which error was =
not=20
assigned in the opening brief. Because Acucare=3Ds failure to file a =
judgment in=20
the trial court below deprives this court of appellate =
jurisdiction,=20
Resource may raise this argument at any time during this appeal, =
including=20
in its reply brief. See=20
Tullos v. Eaton Corp., 695 S.W.2d 568, 568B69 (Tex.=20
1985) (stating that lack of appellate jurisdiction is fundamental =
and can=20
be raised at any time during the appeal). Accordingly, we =
deny=20
Acucare=3Ds motion=20
to strike. In addition, finding that it lacks merit, we deny =
Acucare=3Ds motion=20
for appellate sanctions under Texas Rule of Appellate Procedure =
45. =20
This case=20
is dismissed for lack of appellate jurisdiction.
/s/ =20
Kem Thompson Frost
Justice
Dismissed=20
and Memorandum Opinion filed November 29, 2007.
Panel consists of =
Justices=20
Anderson, Fowler, and Frost.
Both Resource and Acucare have =
attached to=20
their appellate briefs documents that are not contained in our =
appellate=20
record. With limited exceptions not relevant here, an =
appellate=20
court may not consider matters outside the appellate record. =
See=20
Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, =
Inc., =20
178 S.W.3d 198, 210B11 (Tex. App.C Houston [14th Dist.] 2005, no =
pet.). =20
Therefore, we cannot consider these documents. See =
id.=20
|