Ware v. Everest Group, L.L.C.

• Decision Date: 19 October 2007
• Docket Number: No. 05-05-01575-CV.,05-05-01575-CV.
• Parties: Samuel Dabney WARE, Appellant, v. The EVEREST GROUP, L.L.C., Appellee.
• Court: Texas Court of Appeals

238 S.W.3d 855

Samuel Dabney WARE, Appellant, v. The EVEREST GROUP, L.L.C., Appellee.

No. 05-05-01575-CV.

Court of Appeals of Texas, Dallas.

October 19, 2007.

Charles Sartain, Looper, Reed & McGraw, P.C., Dallas, for Appellant.

David C. Snell, Bayne, Snell & Krause, San Antonio, for Appellee.

Before Justices WHITTINGTON, FRANCIS, and LANG.

OPINION

Opinion by Justice LANG.

The Everest Group, L.L.C. ("Everest") filed an action against Samuel Dabney Ware ("Ware") to domesticate and enforce a foreign judgment it owned against Ware. The trial court granted summary judgment in favor of Everest. Ware timely perfected this appeal. In two issues, Ware argues the trial court erred: (1) by granting Everest's motion for summary judgment, and (2) by applying a post-judgment interest rate of 18% to the domesticated foreign judgment. For the reasons set forth below, we reverse the trial court's summary judgment and remand this case to the trial court for further proceedings consistent with this opinion.

In this appeal, we determine that the applicable limitations periods bar Everest's claims. However, to reach that conclusion, we must address a complicated factual and procedural scenario involving common law domestication of a foreign judgment in Texas, domestication of a foreign judgment in Texas pursuant to the Uniform Enforcement of Foreign Judgments Act (chapter 35 of the Texas Civil Practice and Remedies Code), ("UEFJA"), and the legal concepts of dormancy, revival, and statute of limitations as to Texas judgments.

The following conclusions support our ultimate decision that Everest's claims are barred by limitations and that we must reverse the trial court's summary judgment and remand this case for further proceedings consistent with this opinion. First, the record reflects that when Everest filed its suit on July 23, 2004, it sought to domesticate and enforce a 1990 New Mexico "Sister-State Judgment" against Ware. Everest did not proceed pursuant to the UEFJA or refer to an earlier, dormant 1992 Dallas County UEFJA judgment rendered against Ware, which was a domestication under the UEFJA of the same 1990 New Mexico judgment. Everest contends the 1990 New Mexico judgment and the 1992 Dallas County UEFJA judgment are one and the same. We disagree. On this record and as to these issues, we conclude the two judgments are distinct.

Second, the 1992 Dallas County UEFJA judgment became dormant on November 16, 2002. Thus, pursuant to section 31.006 of the Texas Civil Practice and Remedies Code, which provides for revival of a dormant judgment under Texas law, the 1992 Dallas County UEFJA judgment could be revived within two years of that date. See TEX. CIV. PRAC. & REM.CODE ANN. § 31.006 (Vernon 1997) (dormant judgment may be revived by action of debt brought not later than second anniversary of date judgment becomes dormant).

Third, Everest's July 23, 2004 original petition, rather than asserting an action of debt sufficient to revive the 1992 Dallas County UEFJA judgment, asserted an action to domesticate and enforce only the 1990 New Mexico judgment. That action, commenced more than ten years after the 1990 New Mexico judgment was rendered, was barred by the statute of limitations governing actions on foreign judgments.

Fourth, Everest asserts the limitations period applicable to revival of a dormant judgment under Texas law was tolled for "at least nineteen days" due to Ware's absence from the state of Texas. We conclude provisions in the law for "tolling" because of Ware's absence from the state are inapplicable here. Therefore, Everest's December 6, 2004 first amended original petition, which sought revival of the 1992 Dallas County UEFJA judgment, was not timely filed by November 16, 2004, the end of the period in which a dormant judgment may be revived.

Finally, because Everest's July 23, 2004 original petition was barred by limitations at the time it was filed, Everest's December 6, 2004 first amended original petition did not relate back to its original petition for limitations purposes. Accordingly, Everest's claims respecting revival of the 1992 Dallas County UEFJA judgment are barred because Everest did not proceed to revive the judgment within two years after it became dormant.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. 1990 New Mexico Judgment and 1992 Dallas County UEFJA Judgment

On August 15, 1990, a default judgment in the amount of $73,673.82 was rendered against Ware in cause number CV-88-02494 in a state district court of New Mexico. On November 16, 1992, the owner of the New Mexico judgment at the time, Reed Bart Rutledge ("Rutledge"), filed the judgment in Dallas County pursuant to the UEFJA. Rutledge's action was assigned cause number 92-13755-A in the 14th Judicial District Court of Dallas County. Ware responded by filing a "Motion to Contest Recognition of Foreign Judgment or Motion for New Trial" on December 16, 1992, in which he raised a number of defenses to the New Mexico judgment. Ware's motion was overruled by operation of law.

B. Everest's Claim to 1990 New Mexico Judgment and 2004 Suit

On November 30, 2000, Rutledge and Everest executed an "Assignment of Judgment with Warranty and Request to Change Plaintiff Name." The heading on the document signed by Rutledge and Everest read, "STATE OF NEW MEXICO, COUNTY OF BERNALILLO, SECOND JUDICIAL DISTRICT, No: CV-88-02494."¹ There was no reference to the 1992 Dallas County UEFJA judgment in the November 30, 2000 assignment.

On July 23, 2004, Everest filed this suit in Dallas County. Among the exhibits attached to Everest's original petition was a copy of the August 15, 1990 default judgment granted by the New Mexico state district court in cause number CV-88-02494, which Everest referred to as the "Sister-State Judgment." In Everest's petition, it requested, in part, that the trial court "grant full faith and credit to the Sister-State Judgment and grant judgment for all amounts, including pre-judgment and post-judgment interest due under it." Also, Everest requested the court appoint a receiver pursuant to section 31.002(b)(3) of the Texas Civil Practice and Remedies Code "to take possession of Defendant's non-exempt property and dispose of it to satisfy the Sister-State Judgment." Everest made no reference in its pleading to Rutledge's 1992 Dallas County UEFJA judgment and did not seek revival of the 1992 Dallas County UEFJA judgment. Ware responded with a general denial on September 29, 2004.

On December 6, 2004, Everest filed a first amended original petition that restated Everest's original claims and added a section titled "Action for Debt," which read as follows:

On or about November 16, 1992, Plaintiff's predecessor in interest properly registered the Sister-State Judgment described above with the Clerk of Dallas County. Pursuant to Tex. Civ. Prac & Rem.Code § 35.003, this judgment became a valid, enforceable judgment rendered by a Texas court against Defendant. The judgment is styled Reed Bart Rutledge et al [.] v. Dabney Development Corp. et al [.] and bears Cause No. 92-13755-A. Pursuant to Tex. Civ. Prac. & Rem.Code § 31.006, Plaintiff requests that the court enter Judgment in Favor of Plaintiff on the 1992 judgment.

Various motions for summary judgment, amendments, and responses were filed by the parties over a seven-month period from February 2005 through August 2005.² In the course of that process, Everest sought summary judgment "that the judgment rendered in the 1992 case has been revived and is of full force and effect" against Ware.

On October 25, 2005, the trial court granted summary judgment in favor of Everest. The judgment stated, "[T]he court is of the opinion that Plaintiff's Motion should be granted, that the judgment rendered in Cause No. 92-13755; Reed Bart Rutledge d/b/a Royalty Homes vs. Dabney Development Corp. et al [.], in the 14th Judicial District Court, Dallas County, Texas, has been revived, and that The Everest Group, LLC, should recover from Defendant Samuel Dabney Ware the amounts awarded in the judgment rendered in Cause No. 92-13755." This appeal followed.

II. REVIVAL OF THE 1992 DALLAS COUNTY UEFJA JUDGMENT

In his first issue, Ware argues the trial court erred in entering final judgment granting Everest's second amended motion for summary judgment. Because the trial court granted summary judgment in favor of Everest on the specific ground that "the judgment rendered in Cause No. 92-13755; Reed Bart Rutledge d/b/a Royalty Homes v. Dabney Development Corp. et al [.], in the 14th Judicial District Court, Dallas County, Texas, has been revived," we must expressly consider whether the dormant 1992 Dallas County UEFJA judgment was timely revived pursuant to section 31.006 of the Texas Civil Practice and Remedies Code. However, to do so, we must decide the following preliminary issues: (1) whether the 1990 New Mexico judgment and the 1992 Dallas County UEFJA judgment are separate judgments or are one, and the same; (2) the date when the 1992 Dallas County UEFJA judgment became dormant; (3) whether Everest's July 23, 2004 original petition asserted an "action of debt" sufficient to revive the 1992 Dallas County UEFJA judgment, or whether it was barred by limitations; (4) whether the "action of debt" asserted in Everest's December 6, 2004 first amended original petition was timely filed due to tolling of the limitations period or whether it was not filed within the two-year period within which a dormant judgment may be revived; and (5) whether Everest's December 6, 2004 first amended original petition related back to Everest's July 23, 2004 original petition for limitations purposes.

A. Standard of Review

A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). When reviewing a summary judgment, we take as true all evidence...