Texas Judiciary Online - HTML Opinion

^{^[1]} Nothing in the record reflects = that Cantu=20 appealed from the second judgment.

^{^[2]} See Don Docksteader Motors, = Ltd. v.=20 Patal Enterprises, Ltd., 794 S.W.2d 760, 761 (Tex.=20 1990).

^{^[3]} The Uniform Act states in = pertinent=20 part:

'=20 = 35.001. =20 Definition

In this = chapter,=20 Aforeign judgment@ means a judgment . . . of any . . . = court that is=20 entitled to full faith and credit in this state.

. . . .

'=20 = 35.003. = Filing=20 and Status of Foreign Judgments

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

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

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

'=20 = 35.004. =20 Affidavit; Notice of Filing

(a) At the time a foreign judgment is = filed, the=20 judgment creditor or the judgment creditor=3Ds attorney shall file with the clerk of = the court=20 an affidavit showing the name and last known post office address = of the=20 judgment debtor and the judgment creditor.

(b) The clerk shall promptly mail notice = of the=20 filing of the foreign judgment to the judgment debtor at the = address given=20 and shall note the mailing in the docket.

(c) The notice must include the name and = post=20 office address of the judgment creditor and if the judgment = creditor has=20 an attorney in this state, the attorney=3Ds name and address.

' 35.005.=20 Alternate = Notice of=20 FilingCJudgment Creditor

(a) The judgment creditor may mail a = notice of the=20 filing of the judgment to the judgment debtor and may file proof = of=20 mailing with the clerk.

(b) A clerk=3Ds lack of mailing the notice of filing = does not=20 affect the enforcement proceedings if proof of mailing by the = judgment=20 creditor has been filed.

Tex. Civ. = Prac. &=20 Rem. Code Ann. '' 35.001, 35.003B35.005. (Vernon 1997).

^{^[4]} See=20 U.S. Const. art.=20 IV, ' 1.

^{^[5]} Specifically, (1) as judgment = creditor,=20 Grossman filed properly authenticated copies of the Florida=20 judgments in the clerk=3Ds office of a Texas court of competent=20 jurisdictionCthe Harris County District = Clerk=3Ds office; (2) when Grossman filed the = Florida=20 judgments, his attorney filed with the clerk of the court an = affidavit=20 showing the name and last known post office address of the = judgment debtor=20 (Cantu) and the judgment creditor (Grossman); and (3) the judgment = creditor (Grossman) mailed a notice of filing of the judgments to = the=20 judgment debtor (Cantu) and filed a proof of mailing with the=20 clerk.

^{^[6]} In their appellate briefs, the = parties=20 argue the meaning of the term Alawsuit@ as used in the general venue statute = and whether=20 an enforcement proceeding is a Alawsuit.@

^{^[7]} See Lawrence Systems, Inc. By = and=20 Through Douglas-Guardian Warehouse Corp. v. Superior Feeders, = Inc.,=20 880 S.W.2d 203, 206 (Tex. App.CAmarillo 1994, writ denied) = (exploring the=20 intended purposes of the Uniform Act). Lawrence = Systems=20 examines a number of cases pertaining to the intended purpose of = the=20 Uniform Act. Lawrence Systems,=20 Inc., 880=20 S.W.2d at 206B07; see = Eschenhagen v.=20 Zika, 144 Ariz. 213, 696 P.2d 1362, 1367 (Ct. App. 1985) = (explaining=20 that one of the purposes of the Uniform Act is to provide speedy = and=20 economical enforcement of foreign judgments); Alexander Const. Co. v. = Weaver, 3 Kan.=20 App.2d 298, 594 P.2d 248, 250 (1979) (stating that the Uniform Act = was=20 instituted to provide a more effective and efficient time-saving = procedure=20 for enforcing foreign judgments). See also 50 C.J.S.=20 Judgments ' 984 (2007) (providing that the Uniform = Act is=20 designed to simplify enforcement procedures by eliminating the = necessity=20 of multiple lawsuits).

^{^[8]} Compare Black=3Ds Law=20 Dictionary 887 (6th ed. = 1990)=20 (defining Alawsuit@ as A[a] vernacular term for a suit, action, = or cause=20 instituted or depending [sic] between two private persons in the = courts of=20 law@), with Black=3Ds Law=20 Dictionary 887, 895 (7th = ed. 1999)=20 (defining Alawsuit@ as synonymous with Asuit@ and defining Asuit A as Aany proceeding by a party or parties = against=20 another in a court of law@).

^{^[9]} Compare Webster=3Ds New = Int=3Dl=20 Dictionary 1280 (3d ed. = 1961)=20 (defining Alawsuit@ as Aa suit in law: a case before a court: = any of=20 various technical legal proceedings@) with VIII The Oxford English=20 Dictionary 720 (2d ed. 1989) (defining Alawsuit@ as Aa suit in law; a prosecution of a claim = in a court=20 of law@), and Random House Dictionary of = the English=20 Language 1091 (2d ed. unabr. 1987) (defining Alawsuit@ as Aa case in a court of law involving a = claim,=20 complaint, etc. by one party against another; suit at = law@).

^{^[10]} Though the current edition of=20 Black=3Ds Law Dictionary defines Alawsuit@ as Aany proceeding by a party or parties = against=20 another in a court of law,@ earlier editionsCthe ones that were current when the = legislature=20 enacted the venue statuteCcontain a narrower primary definition of = the word=20 that embodies as a necessary component a claim or cause of = action. See=20 also, VIII The = Oxford English=20 Dictionary 720 (2d ed. 1989) (defining Alawsuit@ as Aa suit in law; a prosecution of a claim = in a court=20 of law@); Random=20 House Dictionary of the English Language 1091 (2d ed. = unabr. 1987)=20 (defining Alawsuit@ as Aa case in a court of law involving a = claim,=20 complaint, etc. by one party against another; suit at = law@).

^{^[11]} See Schwartz v. F.M.A. = Properties=20 Corp., 714 S.W.2d 97, 100 (Tex. App.CHouston [14th Dist.] 1986, writ = ref=3Dd n.r.e.) (noting that the Uniform Act = is an=20 enforcement statute and a foreign judgment is not entitled to full = faith=20 and credit unless it is final).

^{^[12]} Schwartz, 714 S.W.2d at = 100=20 (providing that the Uniform Act is an enforcement statute); = Moncrief v.=20 Harvey, No. 05-90-01116-CV, 1991 WL 258684, at *2 (Tex.=20 App.CDallas Nov. 26, 1991, writ denied) (not = designated=20 for publication). =

^{^[13]} Moncrief, 1991 WL 258684, = at=20 *2.

^{^[14]} The majority states that the = Moncrief=20 court based its holding on waiver. See ante at p. = 11. While the Moncrief court does mention waiver, it = based=20 its holding mainly on the fact that the Uniform Act allows the = judgment=20 debtor post-judgment procedures to challenge the judgment; whereas = venue=20 is a pre-trial matter regarding the location of a lawsuit that = does not=20 apply to post-judgment procedures to challenge a judgment. =20 Moncrief, 1991 WL 258684, at *2. In Moncrief, = the=20 judgment debtor appeared in the lawsuit in Wyoming and did not = challenge=20 venue, thus waiving any venue complaints. Id. = When the=20 Moncrief court stated that the judgment debtor waived = venue, it was=20 indicating that venue is a pre-trial matter that was resolved in = Wyoming=20 and that venue has no place in the post-judgment enforcement=20 proceedings. Id.

^{^[15]} Richards v. = Comm=3Dn for Lawyer Discipline, 81 S.W.3d 506, 508 (Tex. = App.CHouston [1st Dist.] 2002, no pet.) = (stating that=20 proceedings directly attacking a Texas judgment must be brought in = the=20 court that rendered the judgment); Dear v. Russo, 973 = S.W.2d 445,=20 448 (Tex. App.CDallas 1998, no pet.); (AChallenges to foreign judgments filed = under the=20 Uniform Act are generally in the nature of postjudgment = proceedings=20 because the filing of the foreign judgment instantly creates a = judgment=20 enforceable in Texas.@). The majority states that its = interpretation=20 does not render this language meaningless because, under its=20 interpretation, the judgment creditor=3Ds filing of a foreign judgment in any = county in=20 Texas would count for purposes of determining whether the foreign = judgment=20 has become dormant. See ante at p. 11. This = argument=20 lacks merit because counting the filing in this way alone does not = give=20 effect to the statutory language stating that the creditor may = enforce the=20 judgment in the same manner as a judgment of the court in which = the=20 foreign judgment was filed. See Tex. Civ. Prac. & Rem. = Code Ann.=20 ' 35.003(b), (c). A judgment = rendered by the=20 trial court below cannot be transferred to Hidalgo County for = enforcement=20 based on allegedly improper venue; rather, such a judgment must be = enforced by the judge of the trial court below. See = Richards,=20 81 S.W.3d at 508.

^{^[16]} All statutory references in this = opinion=20 are to the Texas Civil Practice and Remedies Code unless otherwise = specified.

^{^[17]} Perhaps due to the unusual nature = of=20 proceedings under the Uniform Act, parties sometimes = unnecessarily=20 have filed petitions and answers and served citation in = proceedings under=20 the Uniform Act. See Walnut Equip. Leasing Co. v. Wu, 920 = S.W.2d=20 285, 285B86 (Tex. 1996) (noting that parties = filed=20 petitions and answers and served citation and the judgment = creditor=20 subsequently amended its petition to assert only a common-law = enforcement=20 action; nonetheless the Texas Supreme Court gave effect to foreign = judgment under the Uniform Act because judgment debtors did not = timely=20 challenge the judgment after the judgment creditor satisfied the=20 requirements of the Uniform Act). The Uniform Act does not = require,=20 for the enforcement of a judgment of a sister state, attaching = pleadings=20 to the judgment or introducing evidence. Harbison-Fischer Mfg. = Co.,=20 Inc. v. Mohawk Data Sciences Corp., 823 S.W.2d 679, 685 (Tex.=20 App.CFort Worth 1991), judgment set aside = by=20 agr. 840 S.W.2d 383 (Tex. 1992).

^{^[18]} Grossman filed two properly = authenticated=20 Florida judgments, an affidavit showing the name and last known = post=20 office address of the judgment debtor and the judgment creditor, = and proof=20 of mailing of the notices of filing of the foreign judgments, just = as the=20 legislature specified in the Uniform Act.

^{^[19]} A proceeding under the Uniform = Act is a=20 unique procedural animal because the filing (in compliance with = the=20 statute) that commences the proceeding also instantaneously = creates an=20 enforceable Texas judgment. In Walnut Equipment Leasing Co. v. = Wu,=20 the judgment creditor invoked the Uniform Act to enforce a = Pennsylvania=20 judgment against judgment debtors in Texas. 920 S.W.2d 285 = (Tex.=20 1996) (per curiam). Though not required to do so by the = Uniform Act,=20 the judgment creditor filed a petition and served the judgment = creditor=20 with process. See id. Although the judgment = creditor=20 did more than was required by the Uniform Act, it satisfied all = the=20 Uniform Act requirements so that the filing of the judgment and = affidavit=20 contained in the petition constituted a Texas judgment. = See=20 id. The only filing the judgment debtors made within = thirty days=20 was a general denial. See id. The Texas Supreme = Court=20 held that because the judgment debtors did not file a motion = that=20 would extend the trial court=3Ds plenary power, all subsequent actions = in the=20 trial court were a nullity and the appeal was untimely. = See=20 id. at 285B86. In so ruling, our high court = alluded to=20 a characterization of a Uniform Act proceeding made by the court = of=20 appeals below (which happened to be this court), = stating:

As the court of appeals noted, = id. at 277,=20 when a judgment creditor proceeds under the [Uniform Act], the = filing of=20 the foreign judgment comprises both a plaintiff=3Ds original petition and a final=20 judgment.

Id. at=20 286. Similarly, in the portion of this court=3Ds opinion in Wu with which the = high court=20 agreed, this court noted that the filing of a judgment under the = Uniform=20 Act begins the proceeding but also instantly creates a final=20 judgment:

A filed foreign judgment has the same = effect, and=20 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(c). When a judgment = creditor chooses=20 to proceed under the Uniform Act, the filing of the foreign = judgment=20 partakes of the nature of a plaintiff=3Ds original petition and a final = judgment: =20 the filing initiates the enforcement proceeding, but it = also=20 instantly creates a Texas judgment which is = enforceable.

Wu v. Walnut Equipment Leasing = Co., 909 S.W.2d 273, 277 (Tex. = App.CHouston [14th Dist.] 1995) (emphasis = added),=20 rev=3Dd 920=20 S.W.2d 285 (Tex. 1996). In the course of describing this = unique=20 aspect of a Uniform Act proceeding, both appellate courts in = Wu=20 made a figurative reference to a Apetition@ to convey the concept that the filing = of the=20 foreign judgment in accordance with the Uniform Act commences the=20 enforcement proceeding. From context, it is apparent that = these=20 courts and those that have cited this language were not saying = that the=20 filing of the judgment under the Uniform Act literally is a = petition;=20 indeed, they could not have intended a literal meaning because in = the same=20 breath they stated that the filing of the foreign judgment also = creates an=20 enforceable Texas judgment, which is contrary to the nature of a=20 petition. See Walnut Equipment Leasing Co., = 920 S.W.2d=20 at 285B86; Wu, 909 S.W.2d at 277. = In making=20 these statements these courts cited and relied on the unambiguous = language=20 of the Uniform Act, which does not require the filing of a = petition.=20 See Walnut Equipment Leasing Co., 920 S.W.2d at=20 285B86; Wu, 909 S.W.2d at = 277. There=20 was no issue in Wu as to whether a Uniform Act proceeding = is a=20 Alawsuit@ under the general venue statute. = See=20 Wu, 909 S.W.2d at 277. In Mindis Metals, the = judgment=20 creditor did not file a petition; rather, it filed an = authenticated=20 judgment in accordance with the procedures of the Uniform = Act. =20 See Mindis Metals, Inc., 132 S.W.3d at 483. Expressing = the same=20 concept as the courts in Wu but using different words, this = court=20 stated that when the judgment creditor begins the proceeding by = filing an=20 authenticated copy of a foreign judgment under the Uniform Act, = the=20 judgment becomes enforceable as a Texas judgment on the date it = was=20 filed. See id. Though the judgment creditor in=20 Wu and judgment creditors in other Uniform Act cases have=20 gratuitously and unnecessarily filed petitions, under the = unambiguous=20 language of the Uniform Act, judgment debtors need not do so, and = Grossman=20 did not do so in this case. See Tex. Civ. Prac. & Rem. = Code=20 Ann. '' 35.001, 35.003B35.005; Walnut Equipment Leasing = Co., 920=20 S.W.2d at 285B86; Mindis Metals, Inc., 132 = S.W.3d at 483;=20 H. Heller & Co., Inc. v. La.-Pac. Corp., 209 S.W.3d = 844, 849=20 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) = (stating=20 that judgment creditor first initiated common law suit to enforce = a=20 foreign judgment but then asserted a Uniform Act proceeding by = means of an=20 amended petition satisfying the Uniform Act, which the judgment = debtor=20 timely contested).

^{^[20]} See Tex. Civ. Prac. & Rem. = Code=20 Ann. '' 35.005, 34.004.

^{^[21]} Although Cantu is subject to = personal=20 jurisdiction in Texas, the application of Chapter 15 to all = proceedings=20 under the Uniform Act could hamper the collection of judgments in = various=20 circumstances. Creditors generally would need to file the = foreign=20 judgment in a judgment debtor=3Ds county of residence in Texas and then=20 potentially to record the Texas judgment or take other collection = actions=20 in other counties in which nonexempt assets are located. =20 Furthermore, if, in a foreign judgment, a plaintiff not residing = in Texas=20 is awarded recovery against a defendant not residing in Texas, = based on an=20 occurrence that is not connected to Texas, and if the judgment = creditor=20 wished to use the Uniform Act to enforce the judgment against = property in=20 Texas (for example, to garnish a debt owed to the judgment debtor = by a=20 Texas creditor), if Chapter 15 were to apply, then there would be = no=20 Avenue@ available to file the foreign = judgment. Due=20 to the applicability of personal-jurisdiction requirements and the = availability of a forum-non-conveniens dismissal in favor of = litigating=20 claims in other states, this problem should not arise in a lawsuit = in=20 which a nonresident plaintiff sues a nonresident defendant = asserting=20 claims based on an occurrence with no connection to=20 Texas.

^{^[22]} See Lenchyshyn v. Pelko Elec., = Inc.,=20 723 N.Y.S.2d 285, 289B90 (N.Y. App. Div. 2001). =

^{^[23]} See Shaffer = v.=20 Heitner, 433=20 U.S. 186, 210 & n.36, 97 S. Ct. 2569, 2583 & n.36, 53 L. = Ed. 2d=20 683 (1977) (stating that once a court with jurisdiction over the = subject=20 matter and the parties determines that one person is a debtor to = another,=20 there should be no due process problem in the judgment=20 creditor=3Ds realizing upon = the property=20 of the judgment debtor in another state in which the debtor has = property=20 but is not subject to in = personam=20 jurisdiction); Lenchyshyn, 723 N.Y.S.2d at 289B90 (stating that court in which judgment = creditor=20 files judgment under New York version of Uniform Act need not be = able to=20 exercise in personam jurisdiction over the judgment debtors and = collecting=20 cases from many other states).

^{^[24]} See supra note 7 = (providing=20 authority that explores the purpose of the Uniform Act). =

^{^[25]} See ante at p.6. =

^{^[26]} See In re Parr, 199 S.W.3d = 457, 461=20 (Tex. App.CHouston [1st Dist.] 2006, no pet.) = (holding that=20 statute is a venue statute even though it contains the word = Ajurisdiction@ and does not contain the word = Avenue@); Harrington v. State, 363 = S.W.2d 321,=20 322B23 (Tex. Civ. App.CAustin 1962, writ ref=3Dd n.r.e.) (same); Traders & Gen. = Ins. Co.=20 v. Curby, 103 S.W.2d 398, 399 (Tex. Civ. App.CWaco 1937, no writ) (same); Lloyds = Cas. Co. of=20 New York v. Lem, 62 S.W.2d 497, 498B99 (Tex. Civ. App.CGalveston 1933, writ dism=3Dd) (same).

^{^[27]} See Tex. Const. art. V, = ' 8; Tex.=20 Gov=3Dt Code = Ann. ' 24.007 (Vernon 2004); Dubai = Petroleum Co. v.=20 Kazi, 12 S.W.3d 71, 74B75 (Tex. 2000).

^{^[28]} See SMS Demag Aktiengesellschaft v. = Material=20 Scis. Corp., 434 F. Supp. 2d 581, 581B83 (C.D. Ill. 2006) (construing = agreement that=20 Avenue shall be proper in a court of = competent=20 jurisdiction sitting in the State of Illinois@ as allowing suit in any court of = competent=20 jurisdiction in Illinois and enforcing this agreement to allow = suit in the=20 United States District Court for the Central District of Illinois, = even=20 though venue in this district would be improper under the federal = venue=20 statues); Gambill v. Town of Ponder, 494 S.W.2d 808, 811 = (Tex.=20 1973) (discussing with approval case in which court of appeals = held that=20 revised civil statute allowing suit Ain any Court of competent jurisdiction = in Travis=20 County@ was permissive venue statute that = applied in=20 place of general venue statute and that allowed suit to be filed = in any=20 court in Travis county having jurisdiction); Morris v. = Scaling, 347=20 S.W.2d 377, 379 (Tex. Civ. App.CFort Worth 1961, writ dism=3Dd) (holding that section of Texas = Business=20 Corporation Act allowing petition to be filed in Aany court of competent jurisdiction in = the county=20 in which the principal office of the corporation is = located@ was a venue statute). Regardless = of any=20 differences that there may be between the law governing the = enforcement of=20 forum selection clauses and the law regarding venue selection = clauses, the=20 court in SMS Demag Aktiengesellschaft interpreted language = similar=20 to that in section 35.003 as allowing venue of an action in any = court of=20 competent jurisdiction in the state. See SMS Demag=20 Aktiengesellschaft, 434 F. Supp. 2d at 581B83.

^{^[29]} The majority relies on Munn v. = Mohler, 251 S.W.2d 801 (Tex. Civ. App.CWaco 1952, no writ). See = ante at p.=20 12. That case is not on point. In Munn, it was=20 uncontested that the plaintiff had filed a lawsuit based on a = claim=20 provided in a federal statute for the recovery of overtime=20 compensation. See Munn v. Mohler, 251 S.W.2d 801,=20 802B3 (Tex. Civ. App.CWaco 1952, no writ). Munn = did not=20 involve the domestication and enforcement in Texas of a final = judgment=20 from another state. See id. Moreover, the = federal=20 statute did not state that such suits could be filed in any court = of=20 competent jurisdiction in Texas; whereas, the Uniform Act refers = to any=20 court of competent jurisdiction in Texas. Even if = Munn were=20 on point, it is not binding on this court, and its reasoning is = not=20 persuasive in the context of this case.

^{^[30]} This interpretation is also at = odds with=20 this court=3Ds prior precedent. In Mindis = Metals,=20 this court stated that when a judgment creditor files an = authenticated=20 copy of a foreign judgment under the Uniform Act, a prima facie = case for=20 its enforcement is presented, and the burden then shifts to the = judgment=20 debtor to prove that the foreign judgment should not be given full = faith=20 and credit. See Mindis Metals, Inc., 132 = S.W.3d at=20 484. This court stated that the presumption of validity can = be=20 overcome only by clear and convincing evidence to the=20 contrary. Id. Therefore, under Mindis = Metals,=20 because Grossman filed authenticated copies of the = foreign=20 judgments under the Uniform Act, the burden then shifted to Cantu = to prove=20 by clear and convincing evidence that the Florida judgments should = not be=20 given full faith and credit. Id. This = court in=20 Mindis Metals imposed no burden on the judgment = creditor to=20 establish proper venue. In addition, a foreign judgment = filed in=20 Texas under the Uniform Act is subject to the same procedures, = defenses,=20 and proceedings for reopening, vacating, staying, enforcing, or = satisfying=20 a judgment as a judgment of the court in which it is filed. = In=20 Texas, the procedural devices by which a party may directly attack = a Texas=20 judgment must be deployed in the court that rendered the Texas = judgment,=20 which, under the Uniform Act, is the court in which the judgment = creditor=20 files the judgment in compliance with the Uniform Act. = See=20 Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 35.003; Mindis Metals, Inc., 132 = S.W.3d at=20 483 (stating that, if a judgment creditor follows the procedures = of the=20 Uniform Act for filing a foreign judgment, A[t]he judgment [becomes] enforceable as = a Texas=20 judgment on the date it was filed@); Richards, 81 S.W.3d at 508 = (stating that=20 proceedings directly attacking a Texas judgment must be brought in = the=20 court that rendered the judgment).

^{^[31]} Moncrief, 1991 WL 258684, = at *2.=20