Tanner v. McCarthy

• Decision Date: 30 October 2008
• Docket Number: No. 01-07-00079-CV.,No. 01-08-00829-CV.,01-07-00079-CV.,01-08-00829-CV.
• Citation: Tanner v. McCarthy, 274 S.W.3d 311 (Tex. App. 2008)
• Parties: Stephen E. TANNER, Appellant, v. Michael G. McCARTHY, Appellee.
• Court: Texas Court of Appeals

274 S.W.3d 311

Stephen E. TANNER, Appellant, v. Michael G. McCARTHY, Appellee.

No. 01-07-00079-CV.

No. 01-08-00829-CV.

Court of Appeals of Texas, Houston (1st Dist.).

October 30, 2008.

William B. Apt II, Austin, Angelo Parrish, Houston, TX, for Appellant.

Dana T. Blackmore, Law Office of Dana T. Blackmore, Houston, TX, for Appellee.

Panel consists of Justices TAFT, BLAND, and HUDSON.^*

OPINION

TIM TAFT, Justice.

Appellant, Stephen E. Tanner, appeals from a domesticated judgment enforced against him under the Texas Uniform Enforcement of Foreign Judgments Act ("UEFJA")¹ and the entry of a turnover order that included the appointment of a receiver and a master in chancery.² We determine (1) whether the trial court abused its discretion in denying Tanner's motion to dismiss the UEFJA action and in issuing the turnover order and (2) whether we have jurisdiction to consider Tanner's challenge to the trial court's appointment of a master in chancery. We affirm the domesticated judgment, but reverse the trial court's turnover order, except the portion appointing a receiver, which we do not address for lack of an appellate challenge, and the portion appointing a master in chancery, which we have no jurisdiction to consider.

Background

On June 5, 2006, appellee, Michael G. McCarthy, secured a judgment for $625,000 against Tanner in the latter's bankruptcy case in the United States District Court for the Western District of Texas. On October 25, 2006, McCarthy filed a notice of filing of foreign judgment in the 127th District Court of Harris County, requesting domestication of the judgment, as well as a separate application for post-judgment turnover and the appointment of a receiver and master in chancery. On November 13, 2006, Tanner filed an answer generally denying the allegations and asserting that the trial court was without jurisdiction. That same day, Tanner also filed a motion "to dismiss for want of jurisdiction or, alternatively, to either stay enforcement or transfer venue, and for sanctions." On January 19, 2007, after a hearing on Tanner's motion to dismiss, the trial court denied the motion to dismiss and, in a separate order, granted McCarthy's application for post-judgment turnover and appointment of receiver and master in chancery. On January 26, 2007, Tanner filed notice of appeal from both the domesticated judgment and from the order "for turnover and appointment of a master in chancery."³

The Domestication of the Judgment

Tanner raises two issues challenging the domestication of the judgment, arguing that the trial court erred in denying his motion to dismiss because (1) the UEFJA does not apply to judgments rendered by federal courts situated in Texas and (2) McCarthy failed to comply with UEFJA requirements and, therefore, the trial court had no jurisdiction to enforce the judgment under the UEFJA. We review the trial court's ruling on the motion to dismiss under an abuse-of-discretion standard. See Enviropower L.L.C. v. Bear, Stearns & Co., Inc., No. 01-04-0111-CV, 2008 WL 456491, at *2 (Tex.App.-Houston [1st Dist.], Feb. 21, 2008, pet. filed) (applying abuse-of-discretion standard to ruling on motion to vacate foreign judgment); Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 485-86 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (same). We first address Tanner's second issue.

A. Requirements of the UEFJA

The UEFJA provides a means by which an authenticated copy of a foreign judgment may be filed in a court of competent jurisdiction in Texas and become enforceable as a Texas judgment. TEX. CIV. PRAC. & REM.CODE ANN. § 35.003(c) (Vernon 2008); Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex.1996).

The UEFJA requires that

(1) a judgment creditor file an authenticated copy of the foreign judgment with the clerk of a court of competent jurisdiction of this state;⁴

(2) at the same time as the filing of the judgment, the creditor or his attorney file with the clerk of the court an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor;⁵

(3) the clerk of the court promptly mail notice of the filing to the judgment debtor at the address given and note the mailing on the docket;⁶ and

(4) the judgment creditor pay the applicable filing fees.⁷

Tanner contends that McCarthy failed to file the affidavit required by section 35.004(a), resulting in an action that was "procedurally defective" and "fail[ed] to vest the trial court with jurisdiction" to consider it. Tanner asserts that, "[d]ue to this defect, the trial court was without jurisdiction to entertain [McCarthy's] proceeding." McCarthy acknowledges that he did not file the affidavit required by section 35.004(a), but responds that he complied with the alternate notice procedure permitted by section 35.005 and was therefore not required to comply with section 35.004(a).

The requirement that an affidavit containing specific information be filed at the same time as the authenticated foreign judgment is distinct from the requirement that notice be given. Although section 35.005(a) of the UEFJA provides an alternative means for providing notice of the filing of the judgment to the debtor, nothing in that section relieves the creditor of his responsibility under section 35.004(a) to file the affidavit required to be filed at the same time as the authenticated foreign judgment. The notice of filing mailed to the debtor, by whichever authorized means, occurs necessarily after the filing of the judgment. The affidavit, by contrast, is required to be filed concurrently with the judgment. Proper compliance with the notice requirements of the UEFJA cannot correct a deficiency in compliance with the filing requirements of the act.

Although the filing of the affidavit at the time that the authenticated foreign judgment is filed is a specific requirement of the UEFJA, it does not follow that the failure to comply with this statutory provision presents a jurisdictional, rather than a procedural, bar to the domestication of a foreign judgment under that act. Even when compliance with a statutory requirement is a mandatory condition for pursuing an action under a particular statutory scheme, this does not mean that compliance with the requirement is jurisdictional. Igal v. Brightstar Info. Techn. Group, Inc., 250 S.W.3d 78, 83-84 (Tex. 2008); Albertson's Inc., v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). Rather, one "must look to legislative intent to determine whether a requirement is jurisdictional." Igal, 250 S.W.3d at 84. "Whether a filing requirement is jurisdictional is a question of statutory interpretation," and thus a court should review the words of the statute, as well as the entire statutory scheme, in order to ascertain whether the Legislature intended the requirement to address the boundaries of jurisdiction. Id. Among factors to be considered in determining the Legislature's intent are the provision's purpose, Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 360 (Tex.2004), and the consequences of noncompliance provided by the statutory scheme, Sinclair, 984 S.W.2d at 961-62.

The specific language of section 35.004(a),⁸ and its placement in the UEFJA (in the same statutory section as the standard notice requirement, section 35.004(b),⁹ which references it), as well as consideration of its role in the UEFJA scheme, suggest that this particular filing requirement exists in order to aid the trial court in its notice to the judgment debtor of the filing of the foreign judgment. Nothing in the language of section 35.004(a), nor in any other portion of the UEFJA, suggests that the filing, or nonfiling, of the required affidavit affects the jurisdiction of the trial court to consider an action under the UEFJA. Likewise, nothing in the language of either section 35.004(a) itself, or in any other portion of the UEFJA, provides any statutory or practical consequences for the failure of a judgment creditor to file the required affidavit, save for the practical effect that the court clerk would not have the information necessary to send the notice required in section 35.004(b) to the judgment debtor, which would ordinarily prevent the enforcement of the foreign judgment as a Texas judgment. See TEX. CIV. PRAC. & REM.CODE ANN. § 35.004(a) & (b) (Vernon 2008); Carter v. Jimerson, 974 S.W.2d 415, 417 (Tex.App.-Dallas 1998, no pet.) (concluding that filing of foreign judgment under UEFJA is effective only if statutory requirements of authentication, filing, and notice are met). However, even that consequence may be avoided if notice is provided under section 35.005(a), which would allow the judgment to be enforced, notwithstanding the clerk's failure to send out a section 35.004(b) notice. TEX. CIV. PRAC. & REM.CODE ANN. § 35.005(a) & (b) (Vernon 2008).¹⁰

In sum, nothing in the statutory language or scheme, nor anything in the apparent purpose of the provision or the consequences of non-compliance with it, demonstrates that the Legislature intended that a judgment creditor's failure to file the affidavit required under section 35.004(a) would deprive the trial court of jurisdiction to consider an action under the UEFJA.

We therefore hold that the trial court did not abuse its discretion by not granting Tanner's motion to dismiss for lack of jurisdiction, and we overrule his second issue.

B. The Applicability of the UEFJA to Judgments Rendered in Texas by Federal Courts

The UEFJA defines "foreign judgment" as "a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state." TEX. CIV. PRAC. & REM.CODE ANN. § 35.001 (Vernon 2008). In his first issue, Tanner argues that because Texas Property Code section 52.007¹¹ permits the recording and indexing of the abstract of a judgment rendered in this state by a federal court, creating a lien on the real...