Moncrief v. Harvey

Full title: W.A. MONCRIEF, JR., RICHARD W. MONCRIEF AND CHARLES B. MONCRIEF…

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 26, 1991

No. 05-90-01116-CV (Tex. App. Nov. 26, 1991)

Opinion

No. 05-90-01116-CV

Opinion filed November 26, 1991. DO NOT PUBLISH. Tex.R.App.P. 90.

On Appeal from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 90-5840-C. Affirmed.

Before Justices WHITHAM, LAGARDE and BURNETT.

OPINION

Opinion By Justice BURNETT.

W.A. Moncrief, Jr., Richard W. Moncrief, and Charles B. Moncrief (the Moncriefs) appeal from the trial court's denial to vacate or stay execution of two Wyoming judgments filed by M.J. Harvey under the Texas Uniform Enforcement of Foreign Judgments Act (UEFJA). In seven points of error, the Moncriefs assert that the trial court erred in (1) overruling their motion to transfer the case to Tarrant County, (2) overruling their motions because the Wyoming court lacked jurisdiction over the estate, (3) overruling their motion to stay enforcement because Wyoming law bars the claim, or in the alternative, does not allow execution, and (4) overruling their motions because the UEFJA is unconstitutional. In a single cross-point, Harvey asserts that this court lacks appellate jurisdiction. We overrule the Moncriefs' points of error and Harvey's cross-point. We affirm the trial court's judgment.

FACTS

Harvey brought suit against W.A. Moncrief in Wyoming seeking damages under an oil and gas lease. Moncrief appeared in the Wyoming litigation before his death. After his death, a Tarrant County probate court appointed the Moncriefs as Independent Executors of the estate. Harvey timely filed a claim based on the Wyoming litigation against the Moncrief Estate with the Tarrant County probate court. The Moncriefs substituted themselves by agreement in the Wyoming litigation. No one ever opened an estate administration in Wyoming. The Wyoming trial court entered two judgments in favor of Harvey, one on the merits of the case and one for attorneys' fees. The Moncriefs appealed these judgments to the Wyoming Supreme Court. Harvey then filed the judgments under the UEFJA with the 68th and 160th Dallas County District Courts. Harvey filed amended notices of filing of foreign judgments after the 68th District Court refused to accept the original filing. The Moncriefs filed amended motions to transfer, vacate, or stay enforcement of the judgments. The 68th and 160th vacated Harvey's original notices of filing, then consolidated the judgments under one cause number in the 68th District Court. During the pendency of this appeal, the Wyoming Supreme Court affirmed in part and reversed in part the trial court's judgment. The court reversed only for recalculation of interest.

APPELLATE JURISDICTION

In one cross-point, Harvey asserts that we should dismiss this appeal for want of jurisdiction because the Moncriefs did not file a timely appeal bond. In a prior opinion, we concluded that the Moncriefs timely perfected their appeal. Moncrief v. Harvey, 805 S.W.2d 20, 25 (Tex.App.-Dallas 1991, no writ). We decline to reconsider our previous decision. We overrule Harvey's cross-point.

MOTION TO TRANSFER

In their first point of error, the Moncriefs assert that the trial court erred in not granting their motion to transfer because the evidence showed that all of the appellants reside in Tarrant County and are administering the Estate of W.A. Moncrief, Sr., in Tarrant County. The Moncriefs argue that the UEFJA does not contain a specific venue provision so the general venue provision applies. The UEFJA gives the Moncriefs all those defenses and proceedings for reopening, vacating, or staying a judgment that they can bring post-judgment. Moncrief v. Harvey, 805 S.W.2d at 23 (Tex.App.-Dallas 1991); Tex. Civ. Prac. Rem. Code Ann. § 35.003(c) (Vernon 1986). Venue is a pre-trial matter. Venue refers to the geographical location of a suit and signifies the county in which a plaintiff has the legal right to institute and maintain his suit. National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943). A defendant waives venue if he takes some action inconsistent with his position on venue. See Buzzini Drilling Co. v. Fuselier, 562 S.W.2d 878, 879 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ). Once the Moncriefs appeared in the Wyoming courts, they waived any venue complaints. The UEFJA gives Harvey the right to file copies of the judgments in the office of the clerk of any court of competent jurisdiction of this state. Tex. Civ. Prac. Rem. Code Ann. § 35.003(a) (Vernon 1986) (Filing and Status of Foreign Judgments). Harvey properly sought Texas recognition of his Wyoming judgments in Dallas County. We overrule the Moncriefs' first point of error.

MOTION TO VACATE

In their second and third points of error, the Moncriefs assert that the trial court erred in not granting their motion to vacate because the Wyoming trial court never gained jurisdiction over the Estate of W.A. Moncrief. They argued that the Wyoming judgments are not entitled to full faith and credit, then requested the trial court to vacate the Wyoming judgments. Section 35.003(c) of the UEFJA provides that " [a] filed foreign judgment has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, staying, 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) (Vernon 1986) (emphasis added). In vacating a judgment, the trial court sets that judgment aside in its entirety and prevents it from ever becoming final. The UEFJA only gives the Texas trial court the power to vacate the filed foreign judgments, and prevent Harvey from having an enforceable judgment in Texas. See Moncrief, 805 S.W.2d at 22-23; Merritt v. Harless, 685 S.W.2d 708, 710 (Tex.App.-Dallas 1984, no writ) (trial court's order stated ". . . the approval for the filing of foreign judgment is vacated . . ."). A Texas court cannot vacate the judgment of a court of another state. See Gannon v. Payne, 706 S.W.2d 304, 306-07 (Tex. 1986); Moncrief, 805 S.W.2d at 22 n. 2. The Moncriefs' motion to vacate the Wyoming judgments requests relief from the trial court that it has no power to give. The trial court properly denied the Moncriefs' motion to vacate. We overrule the Moncriefs' second and third points of error.

MOTION TO STAY ENFORCEMENT

In their fourth, fifth, and sixth points of error, the Moncriefs assert that the trial court erred in denying their motion to stay enforcement of the judgments. In their prayer for relief, they requested that the trial court stay execution of the judgments pending the outcome of a declaratory judgment action in Wyoming. The Moncriefs argue that the Wyoming judgments are not entitled to full faith and credit because (1) the Wyoming court never obtained jurisdiction over the Estate of W.A. Moncrief, (2) the judgment is unenforceable under Wyoming law, and (3) execution cannot issue on the judgments in Wyoming.

Jurisdiction

The purpose of the UEFJA is to give effect to the full faith and credit clause of the Constitution. U.S. Const. Art. IV, § 1; Tex. Civ. Prac. Rem. Code Ann. § 35.001 (Vernon 1986) (Definition). To be entitled to full faith and credit, the Wyoming judgments must be final, valid, and subsisting judgments in Wyoming and they must be conclusive of the merits of the case. Stine v. Koga, 790 S.W.2d 412, 414 (Tex.App.-Beaumont 1990, writ dism'd). When Harvey produced authenticated copies of Wyoming judgments, he established a prima facie case that the judgments were entitled to full faith and credit. See Minuteman Press Int'l, Inc. v. Sparks, 782 S.W.2d 339, 340 (Tex.App.-Fort Worth 1989, no writ). The Moncriefs bear the burden of attacking the judgment and establishing any reason why it should not be given full faith and credit. Minuteman Press, 339 S.W.2d at 341. The Wyoming courts have the duty to consider whether subject matter jurisdiction exists even where the parties have not raised the jurisdictional question. See Mountain West Farm Bureau Mut. Ins. Co., Inc. v. Hallmark Ins. Co., 561 P.2d 706, 708-09 (Wyo. 1977). Since the Wyoming Supreme Court did not deny review for lack of jurisdiction, we must presume that it properly exercised subject matter jurisdiction. We can examine the facts to determine whether the court of the sister state did have personal jurisdiction to render the judgment for which full faith and credit is sought. See Hill Country Spring Water of Texas, Inc. v. Krug, 773 S.W.2d 637, 639 (Tex.App.-San Antonio 1989, writ denied). The Moncriefs can challenge Wyoming's exercise of personal jurisdiction in two ways: (1) by demonstrating that service of process was inadequate under Wyoming service of process rules, and (2) by asserting that Wyoming's exercise of personal jurisdiction did not meet the requirements of due process of law. Hill Country, 773 S.W.2d at 639; see O'Brien v. Lanpar Co., 399 S.W.2d 340, 341 (Tex. 1966). The Moncriefs cannot complain about Wyoming service of process rules because they voluntarily appeared in the Wyoming courts. They can only attack Wyoming's exercise of personal jurisdiction on due process grounds. The Moncriefs assert that the Wyoming court did not obtain personal jurisdiction over the estate because no one opened an ancillary administration in Wyoming. The Moncriefs rely on the Texas common law rule that a foreign representative cannot sue or be sued in the courts of Texas, even if the representative consents, unless a Texas probate court has issued letters testamentary to that representative. See Minga v. Perales, 603 S.W.2d 240, 242 (Tex.Civ.App.-Corpus Christi 1980, no writ); Eikel v. Bristow Corp., 529 S.W.2d 795, 801 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ). However, Wyoming law, and not Texas law, determines the validity of the judgment as long as it satisfies the due process clause. O'Brien, 399 S.W.2d at 341. Harvey presented Wyoming law to the trial judge. Because a party has presented Wyoming law to the court, we are bound to follow it. See Hamm v. Berrey, 419 S.W.2d 401, 403 (Tex.Civ.App.-San Antonio 1967, writ ref'd n.r.e.). The Wyoming long-arm statute extends personal jurisdiction of the Wyoming courts to the constitutionally permissible limits. First Wyoming Bank v. Trans Mountain Sales Leasing, Inc., 602 P.2d 1219, 1220 (Wyo. 1979); Wyo. Stat. § 5-1-107 (1977). In addition, Wyoming Rule of Civil Procedure 25(a)(1) provides that "[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party. . . ." W.R.C.P. 25(a)(1); Wyo. Stat. §§ 4-1-101, -102 (1977). A proper party is the deceased's personal representative, i.e., his administrator or executor. See Tschirgi v. Meyer, 536 P.2d 558, 563 (Wyo. 1975). While the Wyoming statutes provide the broadest possible exercise of personal jurisdiction and substitution of personal representatives as parties, the Wyoming court has not yet faced this situation where foreign executors substitute themselves after the defendant's death during the pendency of an action. The California Court of Appeals addressed a similar situation in Mitsui Manufacturers Bank v. Tucker, 152 Cal. App. 3d 428, 199 Cal. Rptr. 517, 518 (Cal.App. 4th Dist. 1984). Tucker, the Arizona administrator for Oral Tucker's estate, entered a motion to quash service of summons on the ground that the trial court lacked jurisdiction. She argued that there was no suable entity within the jurisdiction of the California court in connection with the potential liability of the estate. This concept is based on the common law rule that a foreign personal representative lacks capacity to bring and is immune from suit outside the state of the appointment. Mitsui, 199 Cal. Rptr. at 518-19; see Minga, 603 S.W.2d at 242. The California Superior Court granted the motion. On appeal, the California court followed the modern rule in the Restatement of the Conflict of Laws which provides that:

An action may be maintained against a foreign executor or administrator upon a claim against the decedent when the local law of the forum authorizes suit in the state against the executor or administrator and

(a) suit could have been maintained within the state against the decedent during his lifetime because of the existence of a basis of jurisdiction other than mere physical presence (see §§ 29-39), or

(b) the executor or administrator has done an act in the state in his official capacity.

Restatement (Second) of Conflict of Laws § 358 (1971) (Suit Against Foreign Executor or Administrator); Mitsui, 199 Cal. Rptr. at 519. If jurisdiction has been obtained over the decedent in his lifetime, a state may validly provide that upon his death the action will survive and that a foreign executor or administrator may be substituted in his stead as a party to the action. Restatement (Second) of Conflict of Laws § 358 comment f (1971) (action originally commenced against decedent). California law, like Wyoming, provides that a California court may exercise jurisdiction on any basis not inconsistent with the California or United States Constitution. See Cal. Civ. Proc. Code § 410.10 (Deering 1991). In Mitsui, the court reasoned that the broad California long-arm statute satisfied the requirement that the local law of the forum authorized suit against the foreign executor in the state. See Mitsui, 199 Cal. Rptr. at 519-20. It held that the trial court did have jurisdiction over the foreign executors because the decedent had ample minimum contacts with California such that suit could have been maintained in his lifetime, so a basis for jurisdiction existed other than mere physical presence of the decedent. Mitsui, 199 Cal. Rptr. at 519. Similarly, the Wyoming court had already obtained personal jurisdiction over W.A. Moncrief by his appearance in the action prior to his death. See Restatement (Second) of Conflict of Laws § 385 comment f (1971). In the same situation in Washington state, the Washington Supreme Court relied on Civil Procedure Rule 25(a)(1) to hold that the trial court properly exercised jurisdiction over a Minnesota administrator. National Bank of Wash. v. Equity Investors, 81 Wash. 2d 886, 506 P.2d 20, 41-42 (1973). Washington's Rule 25(a)(1) is the same as Wyoming's Rule 25 (a)(1) concerning the substitution of parties. Tschirgi, 536 P.2d at 563; National Bank of Wash., 506 P.2d at 41. In National Bank of Washington, a construction lender sought to substitute a Minnesota administrator as party defendant where the trial court had acquired personal jurisdiction over the decedent during his lifetime. The Washington Supreme Court held that the trial court acquired jurisdiction over decedent's estate. National Bank of Wash., 506 P.2d at 42. The Washington Supreme Court reasoned that no basic rights to procedural due process were lost to any party because the record did not show want of notice, or time or opportunity to appear, prepare and defend. National Bank of Wash., 506 P.2d at 42. The Restatement of Conflict of Laws addresses the same due process concerns, namely that the state law provides adequate notice and an opportunity to be heard to the substitued party. Restatement (Second) of Conflict of Laws § 358 comment d (1971). Harvey timely filed notice of his claim against the estate in Tarrant County. Once he gave notice, the Moncriefs substituted themselves by agreement and actively pursued a defense in the Wyoming courts. Wyoming law provides for extensive long-arm jurisdiction, and substitution of W.A. Moncrief's personal representatives as proper parties. Under Wyoming law, the Wyoming trial court properly exercised personal jurisdiction over the Estate of W.A. Moncrief through the substitution of the independent executors. Nothing in the Wyoming law violates due process. We overrule the Moncriefs fifth point of error.

Execution and Enforceability

In their sixth and seventh points of error, the Moncriefs assert that the trial court erred in overruling their motion to stay enforcement of judgment. They argue that, under Wyoming probate law, the judgment is barred because the Wyoming claim statutes were not followed, and execution cannot issue upon the judgment. Their prayer requested that the district court stay execution of the judgments. The UEFJA provides that "the clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed." Tex. Civ. Prac. Rem. Code Ann. § 35.003(b) (Vernon 1986) (Filing and Status of Foreign Judgments). The UEFJA provides an alternative method for the Texas courts to recognize the Wyoming judgments instead of Harvey bringing an action in Texas to enforce the judgments. Tex. Civ. Prac. Rem. Code Ann. § 35.008 (Vernon 1986) (Optional Procedure). The Wyoming judgments must be treated like district court judgments under Texas law. The filed foreign judgment on the merits of the case, which the Wyoming trial court rendered before deciding attorneys' fees, does not contain any execution language. The filed judgment and order which references the previous decision on the merits and includes the award on attorney's fees has the language "for all of which execution may issue" crossed out. The Texas Supreme Court found similar execution language in a district court judgment inoperative because the classification of claims is a function of the probate court and not the district court. See Blair v. State, 640 S.W.2d 867, 869 (Tex. 1982) (State sued administrator in district court for failure of estate to pay unemployment contributions). The rest of the judgment was valid because the district court properly exercised jurisdiction over the merits of the dispute. Blair, 640 S.W.2d at 869. Likewise, through the filed foreign judgment in the district court, we recognize the Wyoming judgments as dispositive of the merits of the dispute between Harvey and the Estate of W.A. Moncrief. The Tarrant County probate court has authority over the classification and payment of any claims against the estate created by that judgment. Harvey has properly filed a claim against the estate in Tarrant County. The same result would be achieved if this had been a Wyoming estate. Wyoming law requires notice to the estate of the pending suit, and then classifies the judgment as a claim against the estate subject to the authority of the probate court under the probate code. See Wyo. Stat. §§ 2-7-703, -709, -719(b) (1977). The trial court properly denied the Moncriefs' motion to stay enforcement of the judgment. We overrule their fifth and sixth points of error.

CONSTITUTIONALITY

In their seventh point of error, the Moncriefs assert that the trial court erred in denying their motions to vacate or stay enforcement of the foreign judgments because the UEFJA is unconstitutional. They argue that it provides no procedures which guarantee due process to them in challenging Harvey's actions. Due process requires that the debtor be given an opportunity to rebut the presumption that a foreign judgment is entitled to full faith and credit. Hill Country, 773 S.W.2d at 641. See Schwartz v. FMI Properties, Corp., 714 S.W.2d 97, 100 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) (court expressed concern that the UEFJA did not provide a specific procedure for the debtor to assert defenses to the enforceability of the foreign judgment). The Moncriefs argue that any attempt to present a defense is compressed into a restricted period between the receipt of notice of the filing and the time at which judgment can no longer be appealed under Texas law. In their brief, they argued that "[w]ith a crowded court docket, as in the present case, this may result in the judgment debtor having no real opportunity to present his defenses." We cannot pass upon the constitutionality of a statute if a party's complaint does not show a specific injury by its operation. Hill Country, 773 S.W.2d at 641. That it may be unconstitutional regarding others is not enough. See Corey v. City of Dallas, 492 F.2d 496, 497 (5th Cir. 1974). The Moncriefs filed motions to transfer venue, vacate and stay enforcement. The trial judge held a hearing on those motions. When we addressed our jurisdiction of this appeal, we treated the motion to stay enforcement like a motion for new trial. Moncrief, 805 S.W.2d at 23. This gave the Moncriefs the same extended appellate time table that the rule gives any Texas litigant. Moncrief, 805 S.W.2d at 24; Tex. R. Civ. P. 329b. The UEFJA also gave the Moncriefs a method to stay execution, if they wished, by showing that an appeal was pending in the foreign state. Tex. Rev. Civ. Stat. Ann. §§ 35.003(c), 35.006 (Vernon 1986) (Stay). The Moncriefs had an opportunity to present their defenses to the enforceability of Wyoming judgments in the district court and the opportunity to appeal. The Moncriefs did not show any specific harm by the UEFJA's operation. We overrule their seventh point of error. We affirm the trial court's judgment.