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Reversed and Remanded and Majority and = Dissenting=20 Opinions filed January 29, 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-06-00078-CV

_______________

 

MARK A. CANTU, Appellant

 

V.

 

HOWARD S. GROSSMAN, P.A., = Appellee

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On Appeal from the 215th District=20 Court

Harris County, Texas

Trial Court Cause No. = 05-64630

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M A J O R=20 I T Y  O P I N I O N

In this case, we are = asked to=20 consider for the first time whether the filing of a foreign = judgment is=20 subject to our state=3Ds venue = statutes. =20 Appellee Howard S. Grossman, P.A. obtained a Florida judgment = against=20 appellant Mark A. Cantu and filed the judgment in  Harris=20 County.  Cantu moved to transfer venue to Hidalgo County, = where he=20 resides and maintains his business and property.  After = considering=20 the purpose of the Uniform Enforcement of Foreign Judgments Act = and the=20 interpretation of similar statutes by other states, we conclude = that the=20 general venue statute applies.  We therefore reverse and = remand with=20 instructions to transfer the cause to a court of competent = jurisdiction=20 in  Hidalgo County, and we do not reach Cantu=3Ds remaining = issue.

 

 

I. =20 Procedural Background

Grossman sued Cantu = in Florida=20 for tortious interference with contract. After the Florida trial = court=20 struck Cantu=3Ds defensive pleadings = as a=20 discovery sanction, Grossman obtained a final summary judgment in = the=20 amount of $833,000 plus prejudgment interest of $516,665, for a = total of=20 $1,349,665.  Cantu appealed.  On an extensive record and = after=20 full briefing by both parties, a Florida court of appeals affirmed = the=20 final summary judgment.  Grossman also obtained a final = judgment for=20 attorneys=3D fees and costs in = the amount=20 of $25,530.[1] =

Pursuant to the = Uniform=20 Enforcement of Foreign Judgments Act (AUEFJA@), Grossman filed the = two=20 Florida judgments in the 215th District Court for Harris County, = Texas.[2]  In=20 response, Cantu filed a AMotion to Transfer = Venue, and,=20 Subject Thereto, Motion for New Trial, Alternatively, Motion for = Denial of=20 Recognition of Foreign Judgment.@  The trial = court denied=20 Cantu=3Ds Motion to Transfer = Venue and=20 his Motion for New Trial and Alternative Motion for Denial of = Recognition=20 of Foreign State Judgment.[3] =20 Cantu appealed.  In two issues, he challenges the trial=20 court=3Ds denial of both = motions. =20 Due to our disposition of the venue question, we do not reach=20 Cantu=3Ds remaining = issue.

II.  Standard of=20 Review

In his first issue, = Cantu=20 argues the trial court erred in denying his motion to transfer = venue to=20 Hidalgo County.  When reviewing the denial of a motion to = transfer=20 venue, we consider the entire record.  Tex. Civ. Prac. & = Rem.=20 Code Ann. ' 15.064(b) (Vernon = 2002). =20 Relying on Texas=3Ds general venue = provision,=20 Cantu contends venue is proper only in Hidalgo County, the county = of his=20 residence.  See Tex. Civ. Prac. & Rem. Code Ann.=20 ' 15.002(a)(2) = (Vernon=20 2002) (providing all lawsuits shall be brought, inter alia, = in=20 county of defendant=3Ds residence).  = Grossman=20 responds that under the UEFJA, venue is proper in any county, = including=20 Harris County.  See Tex. Civ. Prac. & Rem. Code = Ann.=20 ' 35.003(a) (Vernon = 1997)=20 (providing copy of foreign judgment Amay be filed in the = office of=20 the clerk of any court of competent jurisdiction of this = state@).

III.  Analysis

 A.      =20 Venue Challenge

Venue concerns the = geographic=20 location within the forum where the case may be tried. See, = e.g.,=20 Boyle v. State, 820 S.W.2d 122, 139B40 (Tex. Crim. = App.1989) (en=20 banc); see also Gordon v. Jones, 196 S.W.3d 376, 383 = (Tex.=20 App.CHouston [1st Dist.] = 2006, no=20 pet.) (AVenue may and = generally does=20 refer to a particular county, but may also refer to a particular=20 court.@); Liu v. Cici = Enters.,=20 LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. = App.CHouston [14th Dist.] = 2007, no=20 pet.) (mem. op.) (same).  AGenerally, chapter 15 = of the=20 Texas Civil Practice and Remedies Code governs venue of=20 actions.@  In re Tex. = Dept. of=20 Transp., 218 S.W.3d 74, 76 (Tex. 2007).  The plaintiff = has the=20 first choice to fix venue in a proper county by bringing the = action in the=20 county of his choice.  In re Masonite Corp., 997 = S.W.2d 194,=20 197 (Tex. 1999).  If a defendant objects to the = plaintiff=3Ds choice through a = timely=20 motion to transfer venue, the plaintiff must prove that venue is = proper in=20 the county of suit.  Id.; Wilson v. Tex. Parks = &=20 Wildlife Dept., 886 S.W.2d 259, 260B61 (Tex. 1994).  = If the=20 plaintiff fails to establish proper venue, the trial court must = transfer=20 venue to the county specified in the defendant=3Ds motion to transfer, = provided=20 that the defendant has requested transfer to another county of = proper=20 venue.  Masonite, 997 S.W.2d at 197.  On this = point, the=20 defendant has the burden to provide prima facie proof. =20 Id.

In response to=20 Cantu=3Ds challenge, Grossman = asserted=20 that venue was proper under the following terms of the=20 UEFJA:

(a)       = A copy of=20 a foreign judgment authenticated in accordance with an act of = congress or=20 a statute of this state may be filed in the office of the clerk of = any=20 court of competent jurisdiction of this state.[[4]]

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

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

Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 35.003 (Vernon = 1997). =20 Grossman offered no additional evidence supporting the venue = choice of=20 Harris County but instead asserts that, under section 35.003, a=20 foreign-judgment creditor may maintain venue in any Texas = court of=20 competent jurisdiction.  Cantu, on the other hand, argues = that this=20 court should follow the reasoning of the courts of our sister = states,=20 conclude that the UEFJA is silent regarding venue, and apply our = general=20 venue statutes. 

Although our = dissenting=20 colleague contends that we should determine whether the general = venue=20 statute applies to the filing of a foreign judgment by focusing on = the=20 word Alawsuit@ in the venue = statute, we=20 follow the approach of every other state that has addressed this = question,=20 and begin our analysis with the Uniform Act.

B.       =20 Construction of the UEFJA

The construction of a = statute=20 is a question of law, which we review de novo.  F.F.P. = Operating=20 Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. = 2007).  And=20 because the UEFJA is a uniform act, we must begin our analysis = with the=20 Act=3Ds purpose.  Tex. = Gov=3Dt Code Ann. = ' 311.028 (Vernon = 2005)=20 (AA uniform act = included in a=20 code shall be construed to effect its general purpose to make = uniform the=20 law of those states that enact it); see also id. = ' 312.005 = (AIn interpreting a = statute, a=20 court shall diligently attempt to ascertain legislative intent and = shall=20 consider at all times the old law, the evil, and the = remedy.@); Panhandle & = S. F. Ry.=20 Co. v. Friend, 91 S.W.2d 922, 925 (Tex. Civ. App.CAustin 1936, no writ) = (interpreting a statute with language similar to section 311.028, = and=20 stating, AThis rule has = peculiar=20 application to procedural statutes . . . to secure to the litigant = as=20 simple, prompt, and expeditious determination of his case as is = consistent=20 with fair and impartial justice, reducing as far as practical to a = minimum=20 the delay and expense incident to reversal and new = trial.@).

 Our ultimate = goal in=20 construing a statute is to give effect to the = Legislature=3Ds intent as expressed = in the=20 language of the statute.  F.F.P. Operating Partners, = L.P., 237=20 S.W.3d at 683; Horizon/CMS Healthcare Corp. v. Auld, 34 = S.W.3d 887,=20 892 (Tex. 2002).  In doing so, we must always consider the = statute as=20 a whole rather than its isolated provisions.  Helena Chem. = Co. v.=20 Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing Morrison v. = Chan, 699 S.W.2d 205, 208 (Tex. 1985)).  AWe should not give = one=20 provision a meaning out of harmony or inconsistent with other = provisions,=20 although it might be susceptible to such a construction standing=20 alone.@  Id. = (citing=20 Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex. 1978)).  = Instead,=20 we presume that the both the statute and the legislative act are = intended=20 to be effective in their entirety.  Allegheny Mut. Cas. v. = State, 710 S.W.2d 139, 141 (Tex. App.CHouston [14th Dist.] = 1986, pet.=20 ref=3Dd).  Thus, in = construing a=20 statuteCregardless of whether = it is=20 ambiguous on its faceCwe may consider, = among other=20 matters, the object sought to be attained; the circumstances under = which=20 the statute was enacted; common law or former statutory = provisions,=20 including laws on the same or similar subjects; and the = consequences of a=20 particular construction.  See Tex. Gov=3Dt Code Ann. ' 311.023 (Vernon=20 2005).  

C.       =20 Purpose of the UEFJA

By examining the = rulings of=20 other states that have enacted various versions of the UEFJA, we = can=20 determine that the Act is

(a)       = intended=20 Ato give the holder of foreign judgment = the same=20 rights and remedies as holders of domestic judgments, and to make = foreign=20 judgments just as easy to enforce.@  Redondo Constr. Corp. v. U. = S., 157=20 F.3d 1060, 1065 (6th Cir. 1998).  Thus, the UEFJA is not = intended to=20 give a holders of foreign judgments greater rights than holders of = domestic judgments.

 

(b)      =20 Adesigned merely as a facilitating device = and was=20 not intended to alter any substantive rights of the parties in an = action=20 for enforcement of a foreign judgment.@  Me. v. SeKap, S.A. Greek = Co-op.=20 Cigarette Mfg. Co., S.A., 920 A.2d 667, 672 (N.J. Super. Ct. = App. Div.=20 2007).  It is reasonable, then, to interpret the Act in a = manner that=20 does not alter the substantive rights afforded by Texas venue = statutes to=20 Texas defendants.

 

(c)       = enacted=20 Ato facilitate the interstate enforcement = of=20 judgments in any jurisdiction where the judgment debtor is=20 found.@ Hamwi v. Zollar, 702 N.E.2d 593, = 597 (Ill.=20 App. Ct. 1998).  Thus, the UEFJA may be interpreted in a = manner=20 consistent with the general venue statute, under which venue may = be=20 maintained in the county of the defendant=3Ds residence.

 

(d)       = created=20 Ato provide a simpler, more expedient = procedure to=20 enforce foreign judgments; it is not [intended] to endow foreign = creditors=20 with substantive rights not otherwise available in the forum=20 state.@  Abba Equip., Inc. v. = Thomason, 517=20 S.E.2d 235, 238 (S.C. Ct. App. 1999).  Consequently, it = cannot be=20 interpreted as a Asuper venue@ statute.

 

(e)      =20 intended primarily Ato allow a party with = a=20 favorable judgment an opportunity to obtain prompt = relief.@  Nationwide = Ins.=20 Enter. v. Ibanez, 368 Ark. 432 (2007).  And as with = domestic=20 judgments, this can be accomplished in accordance with Texas venue = statutes.

After reviewing the = purposes of=20 the UEFJA, we are unpersuaded by Grossman=3Ds argument.  The = purposes=20 of the UEFJA as a uniform act do not require us to read the word=20 Avenue@ into the statute; to = the=20 contrary, the exclusion of venue considerations is actually more=20 consistent with the Act=3Ds purposes.  We = therefore=20 agree with Cantu=3Ds position that  = section=20 35.003 is silent regarding venue.  See Garland v. Dallas = Morning=20 News, 22 S.W.3d 351, 358 (Tex. 2000) (stating courts must take = statutes as they find them and should not give strained readings = to=20 statutes). 

This conclusion, = which we reach=20 in accordance with the Texas Code Construction Act,  is = consistent=20 with the results reached by courts in other states with similar = UEFJA=20 filing provisions or interpreting other uniform acts.  See = also=20 Chiriboga v. State Farm Mut. Auto Ins. Co., 96 S.W.3d 673, 678 = (Tex.=20 App.CAustin 2003, no pet.) = (holding=20 that, if A[n]one of the = mandatory or=20 specific permissive venue provisions apply[,]@ then the general = venue rule=20 applies).

1.        =20 Texas Code Construction Act

When interpreting a = statute, we=20 A>consider the entire = act, its=20 nature and object, and the consequences that would follow from = each=20 construction.=3D@  Atascosa = County v.=20 Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex. = 1999)=20 (quoting Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 = (Tex.=20 1991)).  In construing the State=3Ds venue provisions = with the=20 UEFJA, we must presume the Legislature intended both chapters of = the Code=20 to be effective and further intended a just and reasonable = result. =20 See Tex. Gov=3Dt Code Ann. = ' 311.021 (2) (3) = (Vernon=20 2005).  The result we reach today achieves these = ends.

Texas law provides = more than=20 one method to present an order or judgment from another state to a = Texas=20 court for enforcement under the full faith and credit provision of = the=20 United States Constitution.  Bryant v. Shields, Britton = &=20 Fraser, 390 S.W.2d 836, 841 (Tex. App.CDallas 1996, writ = denied)=20 (citing Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, = 286 (Tex.=20 1996)).  A judgment creditor may file the foreign judgment = with the=20 clerk of the court as provided in section 35.003.  Tex. Civ. = Prac.=20 & Rem. Code Ann.=20 ' 35.003 (Vernon = 2005). =20 Alternatively, the creditor may bring an action to enforce the=20 judgment.  Id. ' 35.008.   These=20 are two routes to the same end, i.e., that of Texas recognition of = the=20 foreign judgment.  And as we have previously observed, the = latter=20 method Ahas the same = character as any=20 other civil proceeding . . . .@  Brown v. = Lanier=20 Worldwide, Inc., 124 S.W.3d 883, 902 (Tex. App.CHouston [14th Dist.] = 2004, no=20 pet.).  Consequently, a defendant may challenge venue in the=20 enforcement action just as in any other civil proceeding.  = See=20 Tex. R. Civ. P.=20 86. 

It would therefore be = inconsistent to hold that, by electing the procedure set forth in = section=20 35.003, a judgment creditor could deprive the debtor of the = opportunity he=20 would otherwise possess to challenge the creditor=3Ds choice of = venue.  See=20 id.; cf. Fleming v. Ahumada, 193 S.W.3d 704, 712 (Tex.=20 App.CCorpus Christi 2006, = no pet.)=20 (AWe will not endorse = an=20 interpretation of section 15.012 that creates a loophole for = parties to=20 circumvent the venue statutes in order to litigate their claims = any place=20 they choose.@).  In addition, = such an=20 approach cannot be harmonized with the purposes of the UEFJA we = have=20 previously enumerated, for it would alter the rights of the = parties,=20 enlarging the rights of foreign-judgment creditors beyond the = rights of=20 the holders of Texas judgments.  And finally, such a result = would be=20 inconsistent with section 311.028 of the Code Construction Act, = which=20 requires us to construe a uniform act Ato effect its general = purpose=20 to make uniform the law of those states that enact it.@  Tex. = Gov=3Dt Code Ann. ' 311.028 (Vernon = 2005). =20 We therefore construe section 35.003 of the UEFJA in a manner that = is=20 consistent with section 35.008 of the same Act, with the venue = provisions=20 of the same Code, and with the laws of our sister = states.

2.        =20 Other States Considering Venue for UEFJA = Filings

a.        =20 Oklahoma

In Garrett v. = Okla.=20 Panhandle State Univ., the Oklahoma Court of Civil Appeals = held the=20 general venue statutes applied to Oklahoma=3Ds UEFJA unless, as = was found in=20 the case before the court, a particular venue statute = applied.  156=20 P.3d 48, 51 (Okla. Civ. App. 2006), cert. denied, = BU.S.B, 127 S. Ct. 2980 = (2007). =20 In Garrett, the judgment debtor replied to the filing of a = Texas=20 judgment by filing a motion to transfer venue.  = Garrett, 156=20 P.3d at 49.  The judgment creditor Aresponded that he was = not=20 filing a petition and that venue was not relevant.@  Id. at = 50. =20 As in the present case, the creditor argued that A[t]he Uniform = Enforcement of=20 Foreign Judgment Act stated he could file his judgment in any = county, and=20 he had followed the procedures set forth.@  The trial = court rejected=20 that argument, granted the motion, and the Oklahoma appellate = court=20 affirmed.  In reaching its conclusions, the Oklahoma court = began its=20 analysis with the Uniform Act. 

Oklahoma=3Ds UEFJA is = substantively=20 similar to Texas=3Ds, permitting filing = of a=20 foreign judgment A>in the office of the = court=20 clerk of any county of this state.=3D@  See id. = at 50 n.1=20 (quoting Okla. Stat. tit. 12, ' 721 (2001)).  = The venue=20 provision in question required an A>action against a = public officer=20 for an act done by him in virtue, or under color of his office, or = for=20 neglect of his official duties=3D@ to A>be brought in the = county where=20 the cause, or some part thereof arose.=3D@  See id. = at 50 n.2=20 (quoting Okla. Stat. tit. 12,  ' 133 (2001)).  = Citing=20 Oklahoma=3Ds analog to section = 35.003(c),=20 the court observed, ARegistering a foreign = judgment=20 in some cases may bring a judgment debtor into court for = litigation=20 purposes . . . . Consequently, venue becomes an important legal = right that=20 is not embedded in the Act itself.@  Id. at = 50 (citing=20 Okla. Stat. tit. 12,  ' 721 (2001)).  = The =20 court also referred to the Apossible expense and=20 inconvenience [to the judgment debtor] of challenging an action = hundreds=20 of miles from home.@  Id. = (citing Ex=20 parte Wells, 567 So.2d 388 (Ala. Civ. App. 1990)).  This = concern=20 is necessarily of even greater significance in Texas, which is = nearly four=20 times the size of Oklahoma.  We see no reason to conclude = that Texas=20 legislators did not share this concern.

b.        =20 Georgia

Cherwood, Inc. v. = Marlin=20 Leasing Corp.=20 involved a UEFJA provision virtually identical to section = 35.003(a) and a=20 general venue provision of the Georgia Constitution that = establishes venue=20 for Acivil = cases.@  601 S.E.2d = 356, 357 (Ga.=20 Ct. App. 2004) (quoting Ga. Const. art. VI, ' 2, & VI. (1983)).  = As here,=20 the Georgia Court of Appeals began with its Uniform Enforcement of = Foreign=20 Judgments statute and rejected an argument similar to = Grossman=3Ds=20 argument:

We have characterized the Uniform Act as = a=20 Asummary procedure@ for endowing a filed foreign judgment = with the=20 same effect as a judgment of the court in which it is filed.  = [The=20 judgment creditor]  argues that the Uniform Act therefore = provides=20 for a procedure for filing and not the commencement of a civil = action=20 subject to the general venue provision. We reject this argument = because a=20 filing under the Uniform Act may become subject to certain civil=20 proceedings.  For instance, the filing of the foreign = judgment may be=20 attacked by questioning the personal jurisdiction of the foreign=20 court.  Such a challenge would necessarily be adjudicated in = the=20 court where the filing under the Uniform Act was made, showing the = court=20 is more than simply a depository for recording the foreign=20 judgment.

 

Id. (citations=20 omitted).

The court then held = that a=20 filing under the UEFJA must comply with the general venue = requirements of=20 the Georgia Constitution.  Id.  To rule = otherwise, the=20 court concluded,  would allow forum shopping by plaintiffs = and would=20 present defendants wishing to challenge a foreign judgment with=20 geographical inconveniences not faced by other defendants. =20 Id. at 357B58.[5] =20 Because of its greater size, the same difficulties are presented = in Texas=20 to an even greater degree.

c.        =20 Alabama

In Ex parte = Wells, the=20 Alabama Court of Civil Appeals held its general venue provision = applied to=20 filing foreign judgments under the UEFJA.  567 So.2d 388, 390 = (Ala.=20 Civ. App. 1990).   The court began its analysis with its = UEFJA,=20 which provides:

[An authenticated = copy of any=20 foreign judgment] may be filed in the office of the clerk of = any=20 circuit court of this state. . . . A judgment so filed has the = same=20 effect and is subject to the same procedures, defenses and = proceedings for=20 reopening, vacating, or staying as a judgment of a circuit court = of this=20 state and may be enforced or satisfied in like=20 manner. . . . . 

Id. at 389B90 (emphasis = added).  And=20 the court concluded, AIn our review, we = find that=20 there is no restrictive language in our uniform act to suggest = that the=20 legislature intended that the general venue statute should not=20 apply.@  Id. at=20 389.

The Wells = court further=20 stated that permitting venue in a county having no connection to = the=20 judgment debtor would grant such judgments Asuper = status@ and  = Acould cause a = resident=20 defendant, who may not have been afforded procedural due process = in the=20 foreign state, the possible inconvenience and expense of defending = an=20 action hundreds of miles from his/her county of = residence.@  Id. at=20 389B90.  Here, too, = the=20 potential inconvenience to Texas judgment debtors is magnified by = our=20 State=3Ds much greater = size.

3.        =20 Other Uniform Act Interpretations

a.        =20 Florida: Uniform Foreign-Money Judgments Act

In Society of=20 Lloyd=3Ds v. = Sumerel, the federal = district court=20 for the Middle District of Florida related that the = foreign-judgment=20 creditor originally filed in Ohio, and therefore cited = Ohio=3Ds version of the = Uniform=20 Foreign Money-Judgments Recognition Act.  No. = 2:06-cv-329-TfM-29-DNF,=20 2007 WL 2114381, at *4 (M.D. Fla. July 20, 2007).  Because = the=20 defendant had relocated to Florida, venue in Ohio was no longer = proper,=20 and the case was transferred to Florida.  Id.  = The=20 Sumerel court held that the statute of limitations was = tolled when=20 the judgment creditor filed the foreign judgment,  = Ano matter how = >wrong the=20 plaintiff may have been in filing his case as to venue, whether = the court=20 in which it was filed had personal jurisdiction over the = defendants or=20 not.=3D@  It would = similarly seem=20 that a judgment creditor under the UEFJA could toll limitations = governing=20 enforcement by filing the judgment in any court of competent = jurisdiction,=20 regardless of whether venue is proper in that county or = court;  thus,=20 the ability to file the judgment in Aany@ Texas court of = competent=20 jurisdiction is not rendered meaningless simply because the = general venue=20 statutes also apply.

b.        =20 Kansas: Uniform Child-Custody Jurisdiction and Enforcement=20 Act

In re = Rumsey was an attorney = discipline=20 proceeding.  71 P.3d 1150, 1159 (Kan. 2003).  There, the = Kansas=20 Supreme Court stated that the Uniform Child-Custody Jurisdiction = and=20 Enforcement Act Aaddresses = jurisdiction for=20 Kansas courts.  It does not address the determination of = venue=20 between the state=3Ds district = courts.@ =  Id.  In the=20 case before it, an attorney told a client that her divorce = proceedings=20 would have to be filed in the county where the client=3Ds children previously = resided=20 rather than the county closer to the client=3Ds work and = home. =20 Id.  The court upheld the Disciplinary=20 Administrator=3Ds conclusion that the = attorney=20 violated Kansas Rule of Professional Conduct  1.1 by failing = to=20 provide competent representation to a client.  Id. =

4.        =20 Contrary Authority

To controvert the = precedential=20 holdings of other states, Grossman directs this court=3Ds attention to = Moncrief v.=20 Harvey. No. 05-90-01116-CV, 1991 WL 258684, at *2 (Tex.=20 App.CDallas Nov. 26, 1991, = writ=20 denied) (not designated for publication).  In = Moncrief, the=20 Fifth Court of Appeals observed that venue is a pretrial matter = referring=20 to the geographical location of a suit and signifying the county = in which=20 a plaintiff has the legal right to institute and maintain an = action. =20 Id.  The court noted that a challenge to venue can be = waived,=20 and stated that the judgment debtors had waived any venue = complaints by=20 appearing in the foreign state=3Ds courts. =20 Id.  In sum, the court rejected the judgment=20 debtors=3D use of Texas law to = challenge=20 venue in Dallas because the debtors did not originally use Wyoming = law to=20 challenge venue in Wyoming.

But there is no = reason to=20 suppose that the judgment debtors could have predicted the need to = challenge Dallas venue in the Wyoming court at the time the = petition was=20 originally filed.  And under the reasoning employed in=20 Moncrief, it is difficult to imagine how the debtors could = have=20 preserved error.[6] =20 Moreover, this reasoning has not been followed by any other court, = nor do=20 we find it persuasive.  Waiver of a challenge to venue in = another=20 forum simply has no bearing on whether the citizens of Texas = should be=20 denied the protections of the venue laws enacted by their own=20 legislature.  We therefore decline to follow the holding of=20 Moncrief. 

We find the reasoning = in=20 Munn v. Mohler more persuasive.  251 S.W.2d 801 (Tex. = Civ.=20 App.CWaco 1952, no writ) = (suit under=20 the Fair Labor Standards Act, 29 U.S.C.A. ' 201, et = seq.).  As=20 in this case, the appellee in Munn argued that the = AAct upon which his = suit was=20 based authorize[d] him to maintain his action in any court of = competent=20 jurisdiction and thereby supersede[d] the provisions of the state = statutes=20 relating to venue . . . .@ Id. at = 802(emphasis=20 added).  The Tenth Court of Appeals reasoned that, although = the Act=20 permitted an action Ain any court of = >competent=20 jurisdiction[,]=3D@ this meant that the = claimant=20 Awas thus authorized = to select=20 the forum where he would institute and prosecute such action, = either in=20 the Federal or State courts, [but] he was not thereby relieved of = the duty=20 to select a court which could properly acquire jurisdiction over = the=20 person . . . sued, as well as jurisdiction over the subject matter = of his=20 suit.@  Id. at = 803.[7] =20 Moreover, the court rejected the argument that Athe intended purpose = of the=20 Federal Act was to supersede the provisions of any statute = relating to=20 venue of civil actions or that the legal effect thereof was to = deprive an=20 inhabitant of Texas of his right to be sued in the county of his=20 domicile . . . .@  = Id.  To the=20 contrary, the court emphasized that:

The Texas courts have = held=20 repeatedly and consistently that the legal right of a defendant to = be sued=20 in the county of his residence is a valuable right of which he may = not be=20 deprived unless the case filed against him comes clearly within = one of the=20 exceptions found in the venue statute. 

Id.

Here, the UEFJA does = not=20 clearly indicate the legislature=3Ds intent to exempt = the filing=20 of a foreign judgment from the general venue laws of Texas.  = Like=20 other states faced with interpretation of the UEFJA, we therefore = apply=20 the general venue laws of the state in which the foreign judgment = is=20 filed.[8]  =20

D.       =20 Application of the General Venue Statute

Because Grossman = failed to=20 overcome Cantu=3Ds venue challenge by = showing=20 that venue is proper in Harris County, the burden shifted to Cantu = to show=20 that venue is proper in Hidalgo County.  Under the general = venue=20 statute, Aall lawsuits shall be = brought .=20 . . in the county of defendant=3Ds residence at the = time the=20 cause of action accrued if defendant is a natural = person.@  Tex. Civ. = Prac. &=20 Rem. Code Ann. = ' 15.002(a)(2).[9]  In=20 his uncontested affidavit in support of his motion to transfer = venue,=20 Cantu stated, AI have continuously = resided in=20 Hidalgo County, Texas all of my life but for the dates I attended = law=20 school many years ago. . . . All of my assets and business = interests have=20 been in and are currently located in Hidalgo County, = Texas.@  Although lack = of=20 surprise does not form part of our analysis, we note that Grossman = was=20 aware that Cantu resided in Hidalgo County at the time of the = Florida=20 lawsuit.  At that time, Grossman sought service of  = Cantu in=20 McAllen in Hidalgo County, Texas, and in his amended petition, = Grossman=20 stated that Cantu Awas and is an = attorney=20 maintaining an office in or near McAllen, Texas.@  Thus, any = delay in=20 enforcement that was caused by Grossman=3Ds choice to file the = judgment=20 in Harris County does not appear to be attributable to = Cantu. =20

We conclude that = under section=20 15.002(a)(2) of the Civil Practice and Remedies Code, venue is = proper in=20 Hidalgo, not Harris, County.  We therefore hold that the = trial court=20 erred in denying Cantu=3Ds motion to transfer = venue to=20 Hidalgo County.  Accordingly, we sustain Cantu=3Ds first issue, and we = do not=20 reach his second issue.

IV. =20 Conclusion

Having held venue is proper in Hidalgo = County, the=20 judgment of the trial court is reversed, and we remand with = instructions=20 to transfer the cause to a court of competent jurisdiction in = Hidalgo=20 County.

 

 

 

 

/s/       =20 Charles Seymore

Justice

 

 

Judgment rendered and = Majority=20 and Dissenting Opinions filed January 29, 2008

 

Panel consists of = Justices=20 Frost, Seymore, and Guzman. (Frost, J., = dissenting).


[1]  The record does not indicate that = Cantu=20 appealed the judgment awarding attorneys=3D fees and costs.

[2]  See Tex. Civ. Prac. & = Rem. Code=20 Ann. '' 35.002, 35.003 (Vernon = 1997).

[3]  The trial court=3Ds written order denying the motion to = transfer=20 venue is not part of the record on appeal.  Grossman, = however,=20 concedes the trial court entered such an order.

[4]  A court of competent jurisdiction = is one=20 having authority over the defendant, authority over the subject = matter,=20 and power to enter the particular judgment rendered.  = State v.=20 Hall, 794 S.W.2d 916, 919 (Tex. App.CHouston [1st Dist.] 1990),=20 aff=3Dd, 829=20 S.W.2d 184 (Tex. Crim. App. 1992).

[5]  Grossman argues Cherwood = is not=20 persuasive because the Georgia general venue provision is=20 constitutionally, rather than statutorily, based.  What is=20 significant about Cherwood, however, is that the Georgia=20 court=3Ds reasoning rests on the availability of = a means=20 for defendants to attack the judgments.  Cherwood, = Inc., 601=20 S.E.2d at 357.  In Schwartz v. F.M.I. Props. Corp., = this court=20 similarly recognized the federal constitutional requirement of = providing a=20 means for a judgment debtor to challenge the judgment and observed = the=20 UEFJA could not be read as a pure registration statute.  714 = S.W.2d=20 97, 100 (Tex. App.CHouston [14th Dist.] 1986, writ = ref=3Dd n.r.e.).

[6]  For example, if the judgment = debtor was the=20 plaintiff in the original action but lost a counterclaim, the = reasoning in=20 Moncrief would dictate the conclusion that, having chosen = the=20 original forum, the debtor would be unable to preserve a challenge = to any=20 Texas venue.

[7]  Fair Labor Standards Act of 1938, = 29=20 U.S.C.A. ' 216(b), 52 Stat. 1069; 75 Stat. 74 = (AAn action to = recover the=20 liability prescribed in either of the preceding sentences may be=20 maintained against any employer (including a public agency) in any = Federal=20 or State court of competent jurisdiction by any one or more = employees for=20 and in behalf of himself or themselves and other employees = similarly=20 situated.@), amended by Fair Labor Standards = Amendments of 1974, Pub. L. No. 93-259, sec. 6(d)(1), 88 = Stat. 55=20 (which substituted Amaintained against any employer = (including a=20 public agency) in any Federal or State court of competent=20 jurisdiction@ for Amaintained in any court of competent = jurisdiction.=20 . . .@).

[8]  Our dissenting colleague = complains that=20 this court Ashould not adopt a statutory = interpretation of the=20 general venue statute that frustrates both the = legislature=3Ds desire for uniformity among states and = the=20 dominant purpose of the Uniform Act.@  On the contrary, our disposition = is=20 consistent with every State that has ruled on this very = question. =20

[9]  The rule is subject to certain = exceptions=20 and provisions not relevant here.=20

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