Opinion
No. 10-22-00036-CV
06-14-2023
Adam S. HOWELL, Appellant v. DYCK-O’NEAL, INC., Assignee of Bank of America, N.A. Successor by Merger to Bac Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, Appellees
John C. Landon, for Appellee. Jerry J. Jarzombek, Fort Worth, for Appellant.
From the 40th District Court, Ellis County, Texas, Trial Court No. 104288
John C. Landon, for Appellee.
Jerry J. Jarzombek, Fort Worth, for Appellant.
Before Chief Justice Gray Justice Johnson, and Justice Smith
OPINION
MATT JOHNSON, Justice
In four issues, appellant, Adam S. Howell, contends the trial court abused its discretion in denying a motion to vacate in a proceeding to domesticate a foreign judgment. Because Howell did not timely challenge the enforcement of the foreign judgment, we conclude that the trial court lacked jurisdiction to consider the motion to vacate, and as such, we dismiss the appeal for lack of jurisdiction. Background
On January 10, 2013, a Kentucky circuit court awarded Bank of America, N.A. successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP ("Bank of America") a personal judgment against Howell based on a balance due under a note and mortgage for a fixed sum of damages and the sum assessed in the judicial foreclosure of real property. Bank of America then assigned the judgment to GMAT Legal Title Trust 2013-1, who then assigned the judgment to appellee, Dyck-O’Neal, Inc. ("DONI"). Because Howell resided in Texas, DONI petitioned to domesticate the Kentucky judgment in Texas state court on September 17, 2020. Six days later, DONI mailed a "Notice of Filing of Foreign Judgment" to Howell at his last known address.
On February 11, 2021, 147 days after DONI filed the Kentucky judgment in Texas, Howell filed a motion to vacate the September 17, 2020 domesticated judgment, arguing that the Kentucky judgment was not properly authenticated, the Kentucky judgment is not final, and that he was never served with the Kentucky lawsuit, among other things. DONI responded that Howell’s motion to vacate was untimely, that Howell was served properly under Kentucky law, and that the Kentucky judgment was final under Kentucky law.
After a hearing, the trial court denied Howell’s motion to vacate. At the request of Howell, the trial court entered findings of fact and conclusions of law. This appeal followed.
Analysis
[1] "A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, enforcing, or satisfying a judgment as a judgment of the court in which it is filed." Tex. Civ. Prac. & Rem. Code Ann. § 35.003(c). Thus, a valid foreign judgment filed in Texas instantly creates an enforceable and appealable Texas judgment. Dear v. Russo, 973 S.W.2d 445, 448 (Tex. App.—Dallas 1998, no pet.) (citing Moncrief v. Harvey, 805 S.W.2d 20, 23 (Tex. App.—Dallas 1991, no writ)); see Walnut Equip, Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996) (per curiam); Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex. 1975) (noting that a foreign judgment that, appears valid and final makes a prima facie case for the party seeking to enforce it, and the burden is on the resisting party to prove the judgment is not valid or final).
[2] Because courts treat a domesticated foreign judgment as a Texas final judgment, a trial court has plenary power to vacate a judgment within thirty days after the judgment is signed. See Tex. R. Civ. P. 329b(c); see also BancorpSouth Bank v. Prevot, 256 S.W.3d 719, 725 (Tex. App.— Houston [14th Dist.] 2008, no pet.) (noting that the filing of a Mississippi judgment in Texas instantly created an enforceable, final Texas judgment and that the trial court’s plenary power expired thirty days after filing because no party timely filed a post-judgment motion attacking the judgment); Malone v. Emmert Indus: Corp., 858 S.W.2d 547, 548 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Moncrief, 805 S.W.2d at 23-24. However, once the trial court’s plenary power expires, the trial court may not vacate a domesticated foreign judgment except with a timely-filed bill of review. See BancorpSouth Bank, 256 S.W.3d at 725 (citing Tex. R: Civ P. 329b(f); Urso v. Lyon Fin. Servs., Inc., 93 S.W.3d 276, 279-80 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Markham v. Diversified Land & Exploration Co., 973 S.W.2d 437, 440 (Tex. App.—Austin 1998, pet. denied); Malone, 858 S.W.2d at 548). [3] Here, DONI filed the Kentucky final judgment in Texas state court on September 17, 2020, instantly creating an enforceable, final Texas judgment. Howell did not file his motion to vacate until 147 days later on February 26, 2021. Because Howell did not file his motion to vacate within thirty days of September 17, 2020, and because he did not file a timely bill of review, the trial court erred in addressing Howell’s motion to vacate because its plenary power expired.
[4, 5] When a trial court acts on a foreign judgment outside of its plenary power, the action is a nullity. See Bahr v. Kohr, 928 S.W.2d 98, 100 (Tex. App.—San Antonio 1996, writ denied) (citing Walnut Equip. Leasing Co., Inc., 920 S.W.2d at 286). The reviewing court has no jurisdiction to address the subsequent appeal from the untimely trial court action on the foreign judgment. Id. (stating that an appellate court’s jurisdiction extends no further than the jurisdiction of the trial court (citing Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958); Anderson v. Anderson, 786 S.W.2d 79, 81 (Tex. App.— San Antonio 1990, no writ))). Accordingly, in this instance, the reviewing court must set aside the improper judgment and dismiss the appeal. Id. (citing Anderson, 786 S.W.2d at 81; Sanchez v. Sanchez, 609 S.W.2d 307, 308 (Tex. App.—El Paso 1980, no writ)).
Because the trial court erred in addressing Howell’s motion to vacate outside of its plenary power, we set aside the October 27, 2021 order denying Howell’s motion to vacate and the corresponding findings of fact and conclusions of law and dismiss this appeal for lack of jurisdiction. See id.; Tex. R. App. P. 43.2(e) (providing that a court of appeals may "vacate the trial court’s judgment and dismiss the case"); Anderson, 786 S.W.2d at 81; Sanchez, 609 S.W.2d at 308; see also De Lage Landen Fin. Servs. v. M.D.H. Oilfield Servs. LLC, No. 02-22-00139-CV, 2023 WL 2703640, at *3 2023 Tex. App. LEXIS 2108, at *9 (Tax. App.— Fort Worth Mar. 30, 2023, no pet.) (mem. op.) (holding that the trial court was without plenary jurisdiction to grant an untimely amended motion to vacate a foreign judgment, vacating the trial court’s order granting the amended motion to vacate, and dismissing the appeal for want of jurisdiction).
(Chief Justice Gray dissenting)
DISSENTING OPINION
TOM GRAY, Chief Justice
The judgment for this appeal is where I started my review and detected the first problem. The judgment is simply not one of the judgments that we have the authority to issue, Tex. R. App. P. 43.2, and is contrary to well established case law. If we have no jurisdiction, which is purportedly why the Court is dismissing the appeal, we can render no judgment other than to dismiss the appeal. See Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex. Civ. App.—Amarillo 1931), affirmed, Wilbarger County v. Hall, 55 S.W.2d 797 (Tex. 1932). Since at least 1999, Ben Taylor has led the charge to cause Courts of Appeals across the State to render judgments that comply with the rules and relevant precedent, specifically including as it relates to the form of the judgment. I had been on the Court less than a year when he caught me, as the author of an opinion, in such an error and filed an Amicus brief to further my education so that I could correct the judgment on rehearing, See Young Materials Corp. v. Smith, 4 S.W.3d 84 (Tex. App.—Waco 1990, no pet.).
To some extent, Ben Taylor was picking up the banner flown by Justice Calvert. See Robert W. Calvert, Appellate Court Judgments or Strange Things Happen on the Way to Judgment, 6 Tex. Tech L. Rev. 915 (1975).
To support my argument that the judgment in this appeal was a problem, I looked at a number of cases and distilled them down to the following list.
In reverse chronological order of their issuance:
In re Estate of Wilhelm, 10-19-00051-CV, Johnson, panel Gray, Johnson, and Smith;
Garcia v. Meece, 10-19-00052-CV, Neill, panel Gray, Davis, and Neill;
Addington v. Bank of Am., AT.A, 10-03-00342-CV, PC, panel Gray, Vance, and Reyna.
Markowitz v. St Joseph Reg’l Health Ctr., 01-03-00398-CV, PC, panel Radack, Taft, and Bland.
Two other cases, which I will briefly mention, are Miller v. J.B. Vega, Corp., 04-07-00887-CV, PC, panel Angelini, Marion, Simmons and De Lage Landen Fin. Servs. v. M.D.H. Oilfield Servs. LLC, 02-22-00239-CV, Wallach, panel Sudderth, Wallach, and Gabriel.
The first two referenced above are the only ones in this group which actually discuss the limits on the form of the judgment—specifically, that we cannot vacate or dismiss the trial court’s judgment/order and then dismiss the appeal. Wilhelm, which incidentally is from the same members of the Court as the current appeal, states, "We have no authority to dismiss the suit in the trial court and, at the same time, dismiss the appeal. We have the authority, however, to vacate the trial court’s judgment and then dismiss the case by agreement of the parties." In re Estate of Wilhelm, No. 10-19-00051-CV, 2022 WL 2840246, at *1, 2022 Tex. App. LEXIS 5032, at *2 (Tex. App.—Waco July 20, 2022, no pet.) (mem. op.). And Garcia states, "We have no authority to dismiss the suit in the trial court and dismiss the appeal. We have the authority, however, to vacate the trial court’s judgment and dismiss the case by agreement of the parties." Garcia v. Meece, No. 10-19-00052-CV, 2020 WL 1809466, at *1, 2020 Tex. App. LEXIS 2935, at 1 (Tex. App.—Waco Apr. 8, 2020, no pet.) (mem. op.). While both of these cases were settlement dismissals, that part of the statement cites and relies on another Texas Rule of Appellate Procedure, specifically Rule 42.1(a)(2)(A).
Interestingly the Markowitz opinion noted that the parties motion/request was to vacate the trial court’s judgment and dismiss the appeal. Although they did not further discuss it, that Court did not do as the parties requested. Rather, the Court vacated the trial court’s judgment and dismissed the case, citing Young Materials Corp. v. Smith, 4 S.W.3d 84 (Tex. App.— Waco 1999, no pet.), and dismissed the request to dismiss the appeal as moot. See Markowitz v. St Joseph Reg’l Health Ctr., No. 01-03-00398-CV, 2004 WL 1585577, at *1, 2004 Tex. App. LEXIS 6344, at *2 (Tex. App.—Houston [1st Dist.] July 15, 2004, no pet.) (mem. op.).
The point of this is that there is a distinction between dismissing the appeal and dismissing the case. I believe that the cases cited in the opinion, Bahr v. Kohr, 928 S.W.2d 98 (Tex. App.—San Antonio 1996, writ denied), as well as Miller, see Miller v. J.B. Vega Corp., No. 04-07-00887-CV, 2008 WL 4809128, 2008 Tex. App. LEXIS 8287 (Tex. App—San Antonio Nov. 5, 2008, no pet.) (mem. op.) and De Lage, see De Lage Landen Fin. Servs, v. M.D.H. Oilfield Servs. LLC, No. 02-22-00139-CV, 2023 WL 2703640, 2023 Tex. App. LEXIS 2108 (Tex. App.—Fort Worth Mar. 30, 2023, no pet. h.) (mem. op.), are examples in which the Court of Appeals rendered the wrong type of judgment; but no one complained about it, notwithstanding the Court had no authority to render the judgment it did. In support of this view of these errant judgments, I note that the San Antonio Court in Miller actually cited Young Materials Corp. from this Court for the form of its judgment, notwithstanding that Young Materials Corp. actually holds that the San Antonio Court's judgment was not a proper form for the judgment.
I note that there was no discussion or analysis of the propriety of the form of the judgment in these three cases; and it does not appear that any justice on the panel raised the issue. In such a circumstance, I do not believe these cases provide any proper precedent for the practice which appears to be contrary to the Rule which this Court cites as authority for the form of its judgment.
But the problems in this appeal are more fundamental than merely tinkering with the form of the judgment. The error in the judgment is merely what caused me to keep digging into the merits of the case and the manner of its disposition. After a couple of times through the briefs and the proposed opinion it dawned on me: dismissal probably is the correct judgment but not for the reasons stated in the opinion. Rather, we have no jurisdiction because there is not a final judgment from which this appeal has been brought. The docketing statement filed by the appellant expressly notes that the appeal is not of a final judgment. And the docketing statement and the notice of appeal clearly make reference to the trial court's "order" denying the motion to vacate signed on October 27, 2021 as the order being appealed.
The order Howell is attempting to appeal is not a final judgment from which an appeal can be taken; thus, it appears the appeal needs to be dismissed. However, to properly get there, we should send the required notice in which we question our jurisdiction. See Tex R. App. P. 42.3.
And if we dismiss for want of our jurisdiction, we cannot also vacate the trial court's order/findings. Moreover, I do not think that we need to or should vacate the trial court's order and findings because I think the trial court had jurisdiction to render the order and make the findings. The parties are engaged in post-judgment collection efforts. The motion to vacate, which the trial court denied, was filed on the date to which post-judgment discovery had been extended and was due. While I have not done much post-judgment-collection work, in practice or while on the Court, this looks like what I would expect a trial court to have to deal with in such proceedings and would be part of its jurisdiction to enforce "its" judgment, which, in this situation, is the domesticated judgment from Kentucky. The trial court thus would have had the jurisdiction to deny, but probably not grant, the motion which was the result of Howell resisting collection efforts on the domesticated Kentucky judgment. I think the findings are unnecessary, but not beyond the trial court's jurisdiction to make.
Both parties tried to do a primer on collection law. We currently have more cases pending at this Court which address collection efforts than I recall during the last 20 years here. It might not be a bad time to have oral argument in one, or several, of these appeals.
We should send a notice which questions our jurisdiction. If we dismiss the appeal for want of jurisdiction, we cannot also vacate the trial court's order and findings. Because that is what the Court attempts to do, I respectfully dissent.