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Reversed and Rendered and Opinion filed = February=20 26, 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-06-00302-CV

_______________

 

BANCORPSOUTH BANK F/K/A BANK OF = MISSISSIPPI,=20 Appellant

 

V.

 

ALBERT PREVOT, Appellee

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On Appeal from the 215th = District=20 Court

Harris County,=20 Texas

Trial Court Cause No.=20 2001-24191

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O P I N I O=20 N

Appellant, = BancorpSouth Bank=20 f/k/a Bank of Mississipi (ABancorp@), filed a motion to = enforce a=20 2004 Mississippi judgment against appellee, Albert Prevot, that = was filed=20 in Texas in 2005 pursuant to the Uniform Enforcement of Foreign = Judgments=20 Act (AUEFJA@).[1]  The=20 trial court signed a final order stating it did not grant or deny = the=20 motion because it has no jurisdiction.  For the reasons = outlined=20 below, we reverse and render judgment that (1) the trial court has = jurisdiction to enforce the Mississippi judgment, and (2) the = Mississippi=20 judgment is enforceable in Texas.

I. =20 Background

Bancorp sued Prevot = in federal=20 district court in Mississippi to recover the amount due on a = promissory=20 note guaranteed by Prevot.  In 1983, Bancorp obtained a = default=20 judgment in excess of $1.1 million against Prevot.  Under = Mississippi=20 law, a judgment has a lifespan of seven years, and any action = founded on a=20 judgment must be brought within seven years after rendition of the = judgment.  See Miss. Code Ann. '' 15‑1‑43, = 15‑1‑47 (West=20 2007).  Therefore, in 1990, 1997, and 2004, Bancorp filed = suits in=20 Mississippi state court to extend each preceding judgment = lien. =20 Bancorp obtained a default judgment in each action.[2]  The=20 latest judgment was in excess of $4.6 million due to accrued=20 interest.

Pursuant to the = UEFJA, Bancorp=20 sought to domesticate its Mississippi judgments in Texas, where = Prevot has=20 lived since the early 1980s.  Bancorp filed the 1990 = Mississippi=20 judgment in Texas in 1992.  This judgment became dormant in = Texas in=20 2002[3] = and was=20 not revived through any of the methods allowed by statute.[4] =20 Bancorp filed the 1997 Mississippi judgment in Texas in = 2001. =20 Bancorp filed the 2004 Mississippi judgment in Texas in 2005.[5]

Prevot did not timely = file any=20 post-judgment motion challenging the filed foreign = judgments. =20 Further, he did not appeal from the judgments.  Instead, = after=20 Bancorp conducted some post-judgment discovery, Prevot advised = Bancorp=20 that he considered the judgments to be unenforceable in = Texas. =20 Therefore, in December 2005, Bancorp filed in the Texas trial = court a=20 AMotion to Enforce = Mississippi=20 Judgment.@  Bancorp sought = to=20 enforce the 2004 Mississippi judgment, filed in Texas in 2005, or=20 alternatively, the 1997 Mississippi judgment, filed in Texas in = 2001.[6] =20 After a hearing, the trial court signed a final order stating,=20 AThe Court neither = grants nor=20 denies the motion.  The Court has no = jurisdiction.@  This appeal=20 followed.

II.=20 The UEFJA

Under the United = States=20 Constitution, each state must give full faith and credit to the = public=20 acts, records, and judicial proceedings of every other state.=20  See U.S. Const. art.  IV, '1.  To comply = with the=20 full-faith-and-credit principle, Texas has implemented its version = of the=20 UEFJA.  See generally Tex. Civ. Prac. & = Rem. Code=20 Ann. '' 35.001B.008 (Vernon 1997 and = Supp.=20 2007).  Section 35.003 of the Texas UEFJA governs the filing = and=20 status of foreign judgments as follows:

(a) A copy of a foreign judgment = authenticated in=20 accordance with an act of congress or a statute of this state may = be filed=20 in the office of the clerk of any court of competent jurisdiction = of this=20 state.

(b) The clerk shall treat the foreign = judgment in=20 the same manner as a judgment of the court in which the foreign = judgment=20 is filed.

(c) A filed foreign judgment has the = same effect=20 and is subject to the same procedures, defenses, and proceedings = for=20 reopening, vacating, staying, enforcing, or satisfying a judgment = as a=20 judgment of the court in which it is filed.

Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 35.003.[7]

Under the UEFJA, = filing a=20 foreign judgment in a Texas court instantly creates an = enforceable, final=20 Texas judgment.  See Tex. Civ. Prac. & Rem. Code = Ann.=20 ' 35.003(b), (c); = Walnut=20 Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex. = 1996);=20 Urso v. Lyon Fin. Servs., Inc., 93 S.W.3d 276, 277, 279 = (Tex.=20 App.CHouston [14th Dist.] = 2002, no=20 pet.); Bahr v. Kohr, 928 S.W.2d 98, 100 (Tex. = App.CSan Antonio 1996, = writ=20 denied).  The burden then shifts to the debtor to prove the = foreign=20 judgment should not be given full faith and credit. =  Mindis=20 Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d = 477,=20 484 (Tex. App.CHouston [14th Dist.] = 2004, pet.=20 denied); Reading & Bates Constr. Co. v. Baker Energy Res.=20 Corp., 976 S.W.2d 702, 712 (Tex. App.CHouston [1st Dist.] = 1998, pet.=20 denied);  Markham v. Diversified Land & Exploration = Co.,=20 973 S.W.2d 437, 439 (Tex. App.CAustin 1998, pet.=20 denied).  The debtor is empowered with all procedural devices = for=20 reopening, vacating, or staying the judgment that any = post-judgment debtor=20 is allowed.  Tex. Civ. Prac. & Rem. Code Ann. = ' 35.003(c); Mindis = Metals, 132 S.W.3d at 485; see Urso, 93 S.W.3d at 279;=20 Markham, 973 S.W.2d at 440; Bahr, 928 S.W.2d at=20 100.

III. =20 The Issues

In its motion to = enforce,=20 Bancorp asserted the 2004 Mississippi judgment was properly filed = in Texas=20 in 2005; thus, it is enforceable pursuant to the UEFJA and the=20 full-faith-and-credit principle.[8]

 In response to = the motion=20 and on appeal, Prevot essentially presents four substantive = reasons this=20 filed foreign judgment is allegedly unenforceable in=20 Texas:

!           = ;       =20 because Bancorp = filed the 1990=20 Mississippi judgment in Texas in 1992, enforcement of the = subsequent=20 judgment at issue would violate the Aone judgment@ rule; see Tex. R. Civ. P. 301=20 (AOnly one final judgment shall be = rendered in any=20 cause except where it is otherwise specially provided by = law.@);

!           = ;       =20 because this = previously-filed=20 judgment is dormant, enforcement of the subsequent judgment at = issue would=20 circumvent Texas statutes regarding dormancy and = revival;

!           = ;       =20 enforcement of the = judgment at=20 issue is barred by the applicable Texas ten-year statute of = limitations=20 because the original 1983 Mississippi judgment, not the renewed=20 Mississippi judgment at issue, is operative for purposes of = applying=20 limitations; see Tex. Civ. Prac. & Rem. Code Ann. = ' 16.066(b) (Vernon 1997) (AAn action against a person who has = resided in this=20 state for 10 years prior to the action may not be brought on a = foreign=20 judgment rendered more than 10 years before the commencement of = the action=20 in this state.@); and

!           = ;       =20 a = renewed=20 foreign judgment is purportedly entitled to registration in a = forum state=20 under the UEFJA only if it constituted a Anew@ judgment, as opposed = to=20 extension of the original judgment; and the renewed Mississippi = judgment=20 at issue was not a Anew@ judgment.[9]

In response to the = motion to=20 enforce, Prevot also asserted the trial court lacked jurisdiction = to=20 enforce the filed foreign judgment because its plenary power had = expired=20 when Bancorp filed the motion.

On appeal, Bancorp = presents two=20 issues.  In its first issue, Bancorp contends Prevot waived = his=20 arguments because he did not file any post-judgment motion = challenging the=20 filed foreign judgment, an appeal from the judgment, or a bill of=20 review.  Rather, Prevot first challenged enforcement of the = judgment=20 in his response to Bancorp=3Ds motion to =20 enforceCafter the trial=20 court=3Ds plenary power had=20 expired.  Therefore, Bancorp argues the trial court has = jurisdiction=20 to enforce the judgment and it is enforceable in=20 Texas.

In its second issue, = Bancorp=20 substantively challenges Prevot=3Ds arguments.  In = essence,=20 Bancorp contends the 2004 Mississippi renewal judgment at issue=20 constituted a new judgment; thus (1) this judgment is entitled to=20 enforcement in Texas although the earlier Mississippi judgment had = previously been filed in Texas and become dormant; (2) enforcement = is not=20 barred by the ten-year statute of limitations because the 2004 = Mississippi=20 renewal judgment is operative for purposes of applying = limitations; and=20 (3) any renewal foreign judgment is entitled to recognition in = Texas;=20 nonetheless, its 2004 Mississippi renewal judgment is enforceable = as a new=20 judgment.

IV. =20 Discussion

Initially, we note = that the=20 trial court=3Ds order is not = exactly=20 clear.  The trial court stated, AThe Court neither = grants nor=20 denies the motion.  The Court has no = jurisdiction.@  The trial = court seemed=20 to express that it lacks jurisdiction to make any ruling on the=20 motion.  Nonetheless, the trial court effectively refused to = enforce=20 the Mississippi judgment at issue on the ground it lacks=20 jurisdiction.

The trial court did = not state=20 its reason for finding it lacks jurisdiction.  In response to = Bancorp=3Ds motion, Prevot = suggested the=20 trial court lacks jurisdiction to enforce the judgment because its = plenary=20 power has expired.  On appeal, Prevot suggests the trial = court lacks=20 jurisdiction to enforce the judgment based on one or both of the=20 substantive arguments presented in his response to the motion or = the=20 additional arguments he raises on appeal. 

We conclude that (1) = the trial=20 court has jurisdiction to enforce the judgment although its = plenary power=20 expired, (2) none of Prevot=3Ds arguments support = the trial=20 court=3Ds ruling that it = lacks=20 jurisdiction to enforce the judgment, and (3) the judgment is = enforceable=20 in Texas.

 

 

A.       =20 The Trial Court Has Jurisdiction To Enforce The Judgment Although = Its=20 Plenary Power Has Expired.

Bancorp filed the = Mississippi=20 judgment in Texas on February 17, 2005, instantly creating an = enforceable,=20 final Texas judgment.  See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' 35.003(b), (c); = Wu, 920=20 S.W.2d at 286; Urso, 93 S.W.3d at 277, 279; Bahr, = 928 S.W.2d=20 at 100.  Like any Texas judgment, the trial court=3Ds plenary power = expired thirty=20 days later because no party filed a post-judgment motion attacking = the=20 judgment.  See Tex. R. Civ. P. 329b; Urso, 93 = S.W.3d at=20 279; Bahr, 928 S.W.2d at 100; Malone v. Emmert Indus. = Corp.,=20 858 S.W.2d 547, 548 (Tex. App.CHouston [14th Dist.] = 1993, writ=20 denied).

Thus, when Bancorp = filed the=20 motion to enforce on December 1, 2005, the trial court=3Ds plenary power had = expired=20 with respect to the filed foreign judgment.  Once its plenary = power=20 has expired, a trial court may engage only in certain specified = activities=20 with respect to its judgment.  Custom Corps., Inc. v. Sec. = Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.CHouston [14th Dist.] = 2006,=20 orig. proceeding).  Significantly, a trial court retains = statutory=20 and inherent authority to enforce its judgment.  See Arndt = v.=20 Farris, 633 S.W.2d 497, 499 (Tex. 1982); Custom Corps., = 207=20 S.W.3d at 839; Comm=3Dn for Lawyer=20 Discipline=20 v. Denisco, 132 S.W.3d 211, 214B15 (Tex. = App.CHouston [14th Dist.] = 2004, no=20 pet.); see also Tex. R. Civ. P. 308 (providing that a = Acourt shall cause its = judgments=20 and decrees to be carried into execution@).  Therefore, = the trial=20 court erred if it determined it lacks jurisdiction to enforce the = judgment=20 because its plenary power has expired.

B.       =20 None Of Prevot=3Ds Arguments Support = The Trial=20 Court=3Ds Ruling That It = Lacks=20 Jurisdiction To Enforce The Judgment.

As we have explained, = in=20 response to Bancorp=3Ds motion to enforce, = Prevot=20 asserted two reasons the Mississippi judgment is allegedly = unenforceable=20 in Texas; and on appeal, he presents additional contentions.  = However, after the Mississippi judgment was filed in Texas, Prevot = did not=20 timely raise these challenges in a post-judgment motion or file an = appeal=20 from the judgment.  Rather, Prevot first challenged = enforcement of=20 the judgment in response to the motion to enforceCafter the trial=20 court=3Ds plenary power=20 expired.

A judgment debtor = must=20 challenge enforcement of a filed foreign judgment within the = timetables=20 applicable to attacking any Texas judgment.  See Wu, = 920=20 S.W.2d at 286; Urso, 93 S.W.3d at 279; Reading & = Bates,=20 976 S.W.2d at 714B15; Bahr, 928 = S.W.2d at=20 100; Malone, 858 S.W.2d at 548.  Like any Texas = judgment,=20 after the trial court=3Ds plenary power has = expired, it=20 may not vacate a Texas judgment created by the filing of a foreign = judgment except with a timely-filed bill of review.  See = Tex.=20 R. Civ. P. 329b(f); Urso, 93 S.W.3d at 279B80; Markham, = 973 S.W.2d=20 at 440; Malone, 858 S.W.2d at 548.  Prevot has not = filed a=20 bill of review.

Nevertheless, Prevot = suggests=20 he was allowed to raise his arguments after the trial = court=3Ds plenary power = expired because=20 they constitute attacks on the trial court=3Ds  = jurisdiction.  In=20 response to the motion to enforce, Prevot did not specifically = frame his=20 substantive arguments as challenges to the trial court=3Ds jurisdiction.  = However,=20 Prevot now suggests the trial court failed to acquire subject = matter=20 jurisdiction when the judgment was filed and/or the judgment is = void based=20 on one or all of Prevot=3Ds arguments.  = Therefore,=20 Prevot suggests the trial court found that it lacks jurisdiction = to=20 enforce the judgment based on one or all of Pevot=3Ds=20 arguments.

As Prevot = acknowledges, he is=20 mounting a collateral attack on the judgment because he seeks to = avoid its=20 effect in a proceeding to enforce the judgmentCnot a proceeding to = vacate the=20 judgment.  See Skadden v. Alfonso, 217 S.W.3d 611,=20 621B22, 621 n.7 (Tex.=20 App.CHouston [14th Dist.] = 2006, pet.=20 filed) (recognizing wife=3Ds motion to dismiss = in response=20 to husband=3Ds motion to enforce = divorce=20 decree four years after rendition was collateral attack because it = was not=20 a motion for rehearing or regular appeal in underlying action, a=20 restricted appeal, or bill of review; rather, wife sought to avoid = effect=20 and binding force of the decree in a proceeding instituted to = enforce, not=20 amend, correct, reform, vacate, or enjoin, execution of decree); = see=20 also Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) = (recognizing=20 that, in action to enforce decree rendered eighteen years earlier, = other=20 party=3Ds attempt to avoid = its effect=20 by arguing it was void constituted collateral attack).

Prevot cites no Texas = case in=20 which a judgment debtor initiated a successful collateral attack = on a=20 filed foreign judgment by asserting the Texas court lacked=20 jurisdiction over the judgment.[10] =20 Nevertheless, we will assume, without deciding, that the rules = applicable=20 to a collateral attack on any Texas judgment apply to a collateral = attack=20 on a Texas judgment created by the filing of a foreign = judgment. =20 See Tex. Civ. Prac. & Rem. Code Ann. ' 35.003(b), = (c).

However, we have = found=20 conflicting views on the extent to which a party may collaterally = attack a=20 Texas judgment: one view holding a party may collaterally attack a = judgment only for lack of subject matter jurisdiction; and another = view=20 indicating a party may collaterally attack a judgment on any of = the=20 limited grounds that render a judgment void.  Under either = standard,=20 we conclude that (1) Prevot=3Ds arguments, even if=20 meritorious, did not deprive the trial court of subject matter=20 jurisdiction over the Texas judgment created by the filing of the=20 Mississippi judgment; and (2) Prevot may not collaterally attack = the Texas=20 judgment by characterizing it as Avoid.@

 

 

1.        =20 Prevot=3Ds arguments, even if=20 meritorious, did not deprive the trial court of subject matter=20 jurisdiction over the Texas judgment.

In one line of cases, = the Texas=20 Supreme Court has held that a bill of review is the only method by = which a=20 trial court may set aside its judgment after its plenary power has = expired=20 unless the court lacked Ajurisdictional=20 power@ to render the = judgment. =20 Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985) (citing = Deen=20 v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974);  McEwen v.=20 Harrison, 345 S.W.2d 706, 710 (Tex. 1961) (orig. = proceeding)). =20 In this context, Ajurisdictional=20 power@ means A>jurisdiction over the = subject=20 matter, the power to hear and determine cases of the general class = to=20 which the particular one belongs.=3D@  = Middleton, 689=20 S.W.2d at 213 (quoting Deen, 508 S.W.2d at 72).  The = court=20 recognized that a judgment may be void for reasons other than lack = of=20 subject matter jurisdiction, but a judgment may not be set aside = at any=20 time on the ground it is void.  See Middleton, 689 = S.W.2d at=20 213 (citing Deen, 508 S.W.2d at 72; McEwen, 345 = S.W.2d at=20 710).

 In some cases, = our court=20 has followed this view when recognizing a party may collaterally = attack a=20 judgment only on the ground that the trial court lacked = Ajurisdictional=20 power@ as defined in=20 Middleton.  See Barrera v. State, 130 S.W.3d = 253,=20 258B59 (Tex. = App.CHouston [14th Dist.] = 2004, no=20 pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, = 294B95, 294 n.3 (Tex.=20 App.CHouston [14th Dist.] = 2002, no=20 pet.).  More specifically, we have essentially followed this = view=20 with respect to a collateral attack on a foreign judgment filed = under the=20 UEFJA.  See Urso, 93 S.W.3d at 277B80, 279 n.5 (holding = that, in=20 response to creditor=3Ds application for = turnover and=20 appointment of receiver after trial court=3Ds plenary power = expired, debtor=20 could not challenge domesticated foreign judgment as void for lack = of=20 notice of Texas filing because debtor was required to file bill of = review;=20 and distinguishing debtor=3Ds claim from = situation in which=20 trial court had no Asubject matter=20 jurisdiction@ or Ajurisdictional=20 power.@).

Except for = Prevot=3Ds = statute-of-limitations claim,=20 we have found no authority addressing whether his arguments = concern the=20 trial court=3Ds Ajurisdictional=20 power@ over the filed = foreign=20 judgment.  A statute-of-limitations claim, whether asserted = in a suit=20 originating in Texas or in opposition to enforcement of a filed = foreign=20 judgment, is not a challenge to the trial court=3Ds subject matter = jurisdiction;=20 rather, limitations is a procedural matter that is waived if not = raised in=20 the trial court.  See Franco v. Allstate Ins. Co., 505 = S.W.2d=20 789, 793 (Tex. 1974) (pertaining to general limitations statute); = Moore=20 v. Rotello, 719 S.W.2d 372, 380 (Tex. App.CHouston [14th Dist.] = 1986, writ=20 ref=3Dd n.r.e.) (same); = Reading=20 & Bates, 976 S.W.2d at 713, 714B15 (describing = limitations=20 period imposed by Civil Practice and Remedies Code section = 16.066(b) as a=20 well-established exception to full faith and credit while also = recognizing=20 debtor must challenge enforcement within ordinary post-judgment=20 timetables).

We conclude that none = of=20 Prevot=3Ds arguments, even if=20 meritorious, deprived the trial court of Ajurisdictional=20 power@ over the filed = foreign=20 judgmentCAthe power to hear and = determine=20 cases of the general class to which the particular one=20 belongs.@  See = Middleton,=20 689 S.W.2d at 213.  Prevot does not challenge the authority = of the=20 trial court to generally enforce foreign judgments.  = See=20 Nguyen, 93 S.W.3d at 294 n.3 (citing McEwen, 345 = S.W.2d at=20 709B710, when recognizing = as=20 examples of situations in which a trial court has no Ajurisdictional=20 power@ to render a = judgment: a county=20 court rendering a divorce decree or a judgment for title to = land).[11] =20 Rather, Prevot presents reasons the trial court, despite its = authority to=20 enforce foreign judgments, allegedly should not give full faith = and credit=20 to this particular foreign judgment.

Therefore, = Prevot=3Ds position is no = different than=20 any other situation in which a debtor contends a foreign judgment = is not=20 entitled to enforcement in Texas.  Courts certainly recognize = some=20 exceptions to according full faith and credit to a foreign = judgment. =20 See Mindis Metals, 132 S.W.3d 477, 484B85; Reading & = Bates,=20 976 S.W.2d at 713.[12]  At=20 the same time, as we have discussed, the Legislature and Texas = courts=20 require a debtor to challenge enforcement of a filed foreign = judgment=20 under the timetables applicable to attacking any judgment.  = See=20 Tex. Civ. Prac. & Rem. Code Ann. ' 35.003(c); = Wu, 920=20 S.W.2d at 286; Urso, 93 S.W.3d at 279; Reading & = Bates,=20 976 S.W.2d at 714B15; Bahr, 928 = S.W.2d at=20 100; Malone, 858 S.W.2d at 548.  Consequently, the = Legislature=20 and courts clearly do not intend that a debtor may raise these = exceptions=20 to full faith and credit at any time simply by asserting that a=20 meritorious claim would deprive the Texas trial court of subject = matter=20 jurisdiction over a filed foreign judgment.  Likewise,=20 Prevot=3Ds proffered reasons = the trial=20 court should not accord full faith and credit to the Mississippi = judgment=20 at issue do not constitute attacks on the trial court=3Ds subject matter = jurisdiction=20 that may be raised at any time.  Accordingly, = Prevot=3Ds argument that the = trial court=20 lacked subject matter jurisdiction over the judgment does not = support the=20 trial court=3Ds ruling that it = lacks=20 jurisdiction to enforce the judgment.

 

2.        =20 Prevot may not collaterally attack the Texas judgment by = characterizing it=20 as Avoid.@

Prevot also suggests = the trial=20 court lacks jurisdiction to enforce the judgment because it is=20 Avoid.@  In some cases, = the Texas=20 Supreme Court has expressed a broader view than the = Middleton court=20 by indicating a judgment is subject to collateral attack on any of = the=20 grounds that render a judgment void: the rendering court = Ahad no jurisdiction = of the=20 parties, no jurisdiction of the subject matter, no jurisdiction to = enter=20 the judgment, or no capacity to act as a court.@  See, e.g.,=20 Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); = Mapco,=20 Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. = proceeding);=20 Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987); = see=20 also Reiss, 118 S.W.3d at 443.  The court has further=20 indicated that any other errors, such as a court=3Ds action contrary to = a statute,=20 constitutional provision, or rule of civil or appellate procedure, = render=20 the judgment merely voidable, so that it must be attacked within=20 prescribed time limits.  See Reiss, 118 S.W.3d at = 443;=20 Mapco, 795 S.W.2d at 703; Cook, 733 S.W.2d at=20 140.

Even if we follow = this broader=20 view, Prevot may not collaterally attack the Texas judgment by=20 characterizing it as Avoid.@  Initially, we = note that=20 Prevot primarily relies on his Aone = judgment@ argument when = asserting the=20 judgment is void.  Prevot cites Mullins v. Thomas, in = which=20 the court held that entry of a second final judgment in the same = case does=20 not vacate the first, and if nothing shows the first has been = vacated, the=20 second is a Anullity.@  136 Tex. 215, = 150 S.W.2d=20 83, 84 (1941).  Therefore, Prevot asserts the judgment at = issue is=20 void ab initio because Bancorp previously filed in Texas its = earlier=20 Mississippi judgment.  However, the Mullins rule has = been=20 eroded by implementation of Texas Rule of Civil Procedure 329b(h), = which=20 provides in pertinent part, AIf a judgment is = modified,=20 corrected or reformed in any respect, the time for appeal shall = run from=20 the time the modified, corrected, or reformed judgment is signed . = . .=20 .@  Tex. R. Civ. = P.=20 329b(h).  In light of rule 329b(h), we have declined to = follow=20 Mullins; instead, we have treated a change in a judgment = while the=20 trial court retained plenary power as a modified, corrected, or = reformed=20 judgment which presumptively vacated the trial court=3Ds former = judgment.  See=20 Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, = 37B40 (Tex. = App.CHouston [14th Dist.] = 2000, pet.=20 denied); Ott v. Touchstone, 2005 WL 2420376, at = *2B3 (Tex. = App.CHouston [14th Dist.] = Aug. 25,=20 2005, no pet.) (mem. op.); see also Deep Water Slender Wells, = Ltd. v.=20 Shell Int=3Dl Exploration & = Production,=20 Inc., 234=20 S.W.2d 679, 695B96 (Tex. = App.CHouston [14th Dist.] = 2007, pet.=20 filed).

Regardless of the = prevailing=20 standard, these approaches for determining which judgment is = operative=20 when multiple judgments are entered in the same case are wholly=20 inapplicable in the present situation.  Rule 301 prohibits = more than=20 one final judgment in Aany = cause.@  Tex. R. Civ. = P.=20 301.  Courts have typically considered this principle when = addressing=20 multiple conflicting judgments entered by the trial court in the = same=20 Texas proceeding while it retains plenary power.  See, = e.g., Quanaim, 17 S.W.3d at 34; Hammett v. = Lee, 730=20 S.W.2d 350, 350B51 (Tex. = App.CDallas 1987, writ=20 dism=3Dd w.o.j.).  We = are=20 addressing an entirely different situation, in which a creditor = filed in=20 Texas for enforcement purposes a judgment rendered in a=20 sister-state court; and years later, the creditor filed in Texas a = renewed=20 judgment rendered in the sister-state court.  In fact, these = Texas=20 filings bore separate cause numbers; thus, the resulting Texas = judgments=20 were not rendered in the same case.  Whether the judgment at = issue is=20 voidable in light of the earlier filing is another question.  = However, the judgment at issue is not automatically void by virtue = of the=20 earlier filing.[13]

We conclude that none = of=20 Prevot=3Ds contentions, even = if=20 meritorious, fit within the defined categories of a void = judgment. =20 See Browning, 165 S.W.3d at 346; Mapco, Inc., 795 = S.W.2d at=20 703; Cook, 733 S.W.2d at 140; see also Reiss, = 118=20 S.W.3d at 443.  Instead, we construe Prevot=3Ds contentions as = arguments that=20 the filed foreign judgment is voidable because according it full = faith and=20 credit violates or circumvents a rule or statute: the Texas rule = of=20 procedure providing only Aone = judgment@ may be rendered in a = case;=20 Texas statutes governing dormancy and revival; the Texas statute = of=20 limitations for enforcement of foreign judgments; and the alleged=20 principle that an extension foreign judgment may not be registered = in the=20 forum state under the UEFJA.  See Reiss, 118 S.W.3d at = 443;=20 Mapco, 795 S.W.2d at 703; Cook, 733 S.W.2d at = 140

Consequently, again,=20 Prevot=3Ds contentions are no = different=20 than any challenge to enforcement of a filed foreign judgment, = which must=20 be raised within prescribed timetables.  See Tex. Civ. = Prac.=20 & Rem. Code Ann. ' 35.003(c); = Wu, 920=20 S.W.2d at 286; Urso, 93 S.W.3d at 279; Reading & = Bates,=20 976 S.W.2d at 714B15; Bahr, 928 = S.W.2d at=20 100; Malone, 858 S.W.2d at 548.  Accordingly,=20 Prevot=3Ds argument that the = judgment is=20 void does not support the trial court=3Ds ruling that it = lacks=20 jurisdiction to enforce the judgment.

In sum, the trial = court erred=20 by determining it lacks jurisdiction to enforce the = judgment.

C.       =20 The Judgment Is Enforceable.

Prevot contends his = arguments=20 opposing enforcement of the judgment are meritorious; thus, we = should=20 uphold the trial court=3Ds order even if it = erred by=20 ruling it lacks jurisdiction to enforce the judgment.  We=20 disagree.  As we have explained, Prevot waived his = contentions by=20 failing to timely raise them.  Further, he may not = collaterally=20 attack the judgment on these grounds.  Consequently, our = ruling in=20 favor of jurisdiction militates the conclusion that the judgment = is=20 enforceable.  Quite simply, the trial court has no = alternative but to=20 enforce the judgment as requested by Bancorp in its motion.[14] =20 Therefore, we sustain Bancorp=3Ds first issue.[15]

Accordingly, we = reverse the=20 trial court=3Ds final order and = render=20 judgment that (1) the trial court has jurisdiction to enforce the=20 ADefault = Judgment@ signed by the = Circuit Court of=20 Harrison County, Mississippi, Second Judicial District, on = November 23,=20 2004, and filed in Texas on February 17, 2005; and (2) the = Mississippi=20 judgment is enforceable in Texas.

 

 

/s/       =20 Charles W. Seymore

Justice

Judgment rendered and Opinion filed = February 26,=20 2008.

Panel consists of = Justices=20 Yates, Seymore, and Edelman.*


[1]  Appellant=3Ds name has changed several times during = this=20 dispute.  We will refer to appellant as ABancorp@ throughout this = opinion.

[2]  The 1990 and 1997 judgments are = not in our=20 record, but the parties agree they were entered.

[3]  A writ of execution was issued in = 1992, but=20 no further writ of execution has been issued since that = time. =20 See Tex. Civ. Prac. & Rem. Code Ann. ' 34.001(b) (Vernon 1997) (AIf a writ of execution is issued within = 10 years=20 after rendition of a judgment but a second writ is not issued = within 10=20 years after issuance of the first writ, the judgment becomes = dormant. . .=20 . @).

[4]  See Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 31.006 (Vernon 1997) (AA dormant judgment may be revived by = scire facias=20 or by an action of debt brought not later than the second = anniversary of=20 the date that the judgment becomes dormant.@).

[5]  The 1992 filing was in the = underlying trial=20 court.  The 2001 and 2005 filings were in other Harris County = district courts.  Subsequently, the 2001 and 2005 filings = were=20 transferred to the underlying trial court  and=20 consolidated.

[6] Bancorp did not seek enforcement of the = 1990=20 Mississippi judgment, filed in Texas in 1992, which had become=20 dormant.  Bancorp also filed the 1997 Mississippi judgment in = a=20 Brazoria County district court in 1998.  However, that filing = was not=20 at issue in the motion to enforce.

[7]  AForeign judgment@ includes Aa judgmentYof a court of the United = States.@  Tex. Civ. Prac. & Rem. Code = Ann.=20 ' 35.001.

[8]  Because we conclude the trial = court had=20 jurisdiction to enforce the 2004 Mississippi judgment, filed in = Texas in=20 2005, and it is enforceable, we will address this judgment = only.  We=20 will not address Bancorp=3Ds alternative request for enforcement of = the 1997=20 Mississippi judgment, filed in Texas in 2001.

[9]  In response to the motion to = enforce,=20 Prevot urged his Aone judgment@ and statute-of-limitations = contentions.  On=20 appeal, he expands his argument regarding circumvention of = dormancy=20 statutes and contends the renewed Mississippi judgment is not = entitled to=20 registration as a Anew@ judgment.

[10]  We distinguish Prevot=3Ds position from a situation in which a = debtor=20 claims that the sister-state court which rendered the = judgment=20 lacked jurisdiction.  Such a claim is a well-established = exception to=20 the full-faith-and-credit principle and constitutes a collateral = attack on=20 the sister-state judgment, although the debtor must timely = raise=20 this claim when the judgment is filed in Texas.  See=20 Reading & Bates, 976 S.W.2d at 713, 714B15 (outlining well-established = exceptions to full=20 faith and credit while also recognizing that debtor must timely = raise=20 objections to enforcement after foreign judgment is filed in = Texas). In=20 this case, Prevot does not claim the Mississippi court = lacked=20 jurisdiction to render the judgment.  Rather, he suggests the = Texas trial court lacked jurisdiction over the Mississippi = judgment=20 when filed in Texas.

[11]  Further, there is no indication = the trial=20 court was not a Acourt of competent = jurisdiction.@  See Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 35.003(b) (providing that foreign = judgment=20 Amay be filed in the office of the clerk = of any=20 court of competent jurisdiction of this state.@); Tex. Gov=3Dt Code Ann. ' 24.007 (Vernon 2004) (stating district = court=20 has  jurisdiction provided by Article V, Section 8, of the = Texas=20 Constitution); Tex. Const.=20 art. V, ' 8 (providing district court has = Aexclusive, appellate, and original = jurisdiction of=20 all actions, proceedings, and remedies, except in cases where = exclusive,=20 appellate, or original jurisdiction may be conferred by this = Constitution=20 or other law on some other court, tribunal, or administrative=20 body.@).

[12]  The following are = well-established=20 exceptions to full faith and credit: (1) the judgment is = interlocutory;=20 (2) the judgment is subject to modification under the law of the = rendering=20 state; (3) the rendering court lacks jurisdiction; (4) the = judgment was=20 procured by fraud; or (5) limitations has expired under Texas = Civil=20 Practice and Remedies Code section 16.066.  See Mindis = Metals,=20 132 S.W.3d 477, 484B85; Reading & Bates, 976 = S.W.2d at=20 713.  The Reading & Bates court also stated that a = sister=20 state judgment need not be recognized or enforced in Texas = A>if such recognition or enforcement is = not required=20 by the national policy of full faith and credit because it would = involve=20 an improper interference with important interests of = [Texas].=3D@  976 S.W.2d at 713 (quoting = Restatement=20 (Second) of  Conflict of Laws ' 103 (1988)).

[13]  In this regard, our analysis of = the trial=20 court=3Ds ruling that it lacks jurisdiction = overlaps with=20 the merits of Prevot=3Ds Aone judgment@ argument.

[14]  Finally, we note Prevot argues at = length=20 that he is at risk of Bancorp=3Ds collecting multiple times if the = judgment at=20 issue is enforceable; he asserts Bancorp will have multiple = judgments in=20 effect, considering the number of Mississippi renewals and Texas=20 filings.  However, there is no indication Bancorp is = attempting to=20 collect multiple times.  Instead, as Prevot emphasizes, the = 1992=20 Texas filing has become dormant.  Further, Bancorp requested=20 enforcement of the 2001 Texas filing only as an alternative to = enforcement=20 of the 2005 Texas filing.  It appears Bancorp is attempting = to=20 collect even once on its judgment.  Regardless, another issue = might=20 be presented if Bancorp eventually attempts multiple = collections.  We=20 are considering only whether the trial court has jurisdiction to=20 enforce the judgment at issue and whether it is enforceable = in=20 Texas.  Prevot=3Ds concern is offered to support his = contentions=20 that the judgment is not enforceable in Texas, which were=20 waived.

[15]  Based on our disposition of=20 Bancorp=3Ds first issue, we need not consider its = second=20 issue, substantively challenging Prevot=3Ds arguments opposing = enforcement.

*  Senior Justice Richard H. Edelman = sitting=20 by = assignment.

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