NO. 07-07-0418-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 23, 2008
______________________________
LEEANN LOVE,
Appellant
v.
ROBERT MORELAND,
Appellee
_________________________________
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-537,570; HON. SAM MEDINA, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1
And through the maze the children ran to see at where it stopped.
But confused and dazed they became before they finally dropped.2
Standing at the point of dropping, the judges of this court have before them a maze
encompassing the requirements of the Uniform Enforcement of Foreign Judgment Act.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon Supp. 2008).
2
Lizzy.
Though rather clear and simple, the words of that Act went unheeded, which resulted in
the purported issuance of a non-judgment by a Lubbock County court which, in turn,
formed the basis for an order rendered by a Harris County judge appointing a receiver to
levy upon the assets of a Harris County resident. Now the parties argue about jurisdiction,
bills of review, and missing trials. In effort to clear the daze and escape the maze, we
affirm in part and reverse and remand in part.
Background3
Richard Moreland practiced law in Colorado at one time with a partner named Ben
Thompson. However, Moreland moved to Texas in September of 1990 and began working
for the Texas Land Office.
Prior to Moreland’s departure from the firm, Leeann Love became one of the firm’s
clients. Moreland’s partner, Thompson, represented her. Moreover, during the course of
that representation, he allegedly committed acts of malpractice. These acts resulted in a
suit against Moreland and Thompson as well as the issuance of a monetary judgment
against Moreland in May of 1994.4
Over twelve years after obtaining the Colorado judgment, that is, on December 27,
2006, Love attempted to domesticate the decree in Texas by filing a transcript or
description of it in Lubbock County, though Moreland resided in Harris County. Neither the
actual Colorado judgment nor an authenticated copy of it was ever filed, however.
3
The m atters discussed under the topic “Background” are garnered from the affidavit of Richard
Moreland, allegations within the pleadings and m otions, as well as the argum ent of counsel uttered at two
hearings. And, we all know that an attorney’s argum ents do not constitute evidence, Tex. D ept. of Public
Safety v. Mendoza, 952 S.W .2d 560, 564 (Tex. App.–San Antonio 1997, no writ), especially when the nature
of the hearings cannot be readily categorized.
4
Apparently, Thom pson settled.
2
Some time passed. Then Love caused to be initiated a turnover proceeding in
Harris County, based upon the allegedly domesticated judgment. This, in turn, resulted in
the appointment of a receiver who attempted to gather Moreland’s assets. At that point,
Moreland filed a document in Lubbock County entitled “Motion to Vacate Judgment and
Dismiss with Prejudice.” Of the various grounds mentioned as support for relief, several
included allegations involving lack of notice and limitations. Moreover, when the trial court
convened a hearing to entertain the motion, Moreland characterized his motion as a “bill
of review.”
Upon hearing the argument of counsel, the trial court granted the request to vacate
the purportedly domesticated judgment. So too did it dismiss “with prejudice” Love’s
domestication efforts. In doing so, it found, among other things, that Moreland’s motion
to vacate was tantamount to a bill of review and that limitations expired thereby giving him
a “perfect defense” to the foreign judgment. From that decision, Love appealed.
Issue 1 - Plenary Power
We begin by addressing Love’s allegations that the trial court lacked jurisdiction to
vacate the foreign judgment. She believes that the document became a final Texas decree
on January 27, 2007, that is, thirty days after the purported Colorado judgment was filed
in Lubbock County. We overrule the issue.
To gain the same recognition and effect of a judgment issued by a Texas court
under §35.001 et seq. of the Texas Civil Practice and Remedies Code (i.e. the Uniform
Enforcement of Foreign Judgment Act), an authenticated foreign judgment must be filed
with the clerk of the Texas court. TEX . CIV. PRAC . & REM . CODE ANN . §35.003(a) (Vernon
2008). This requirement is not satisfied by filing a mere abstract of judgment. Wolfram v.
3
Wolfram, 165 S.W.3d 755, 759 n.5 (Tex. App.–San Antonio 2005, no pet.). Moreover, no
one disputes that Love failed to include an authenticated copy of the actual Colorado
judgment in her “Notice of Filing of Foreign Judgment Pursuant to Section 35.003.”
Instead, a “transcript” of the judgment was tendered.5
So, because Love did not file a copy of the Colorado judgment itself, the terms of
§35.001 et seq. of the Civil Practice and Remedies Code never enured to her benefit. In
other words, tendering the “transcript” was not tantamount to the entry of a final judgment
thereby limiting to thirty days the time period within which Moreland had to attack it. See
TEX . CIV. PRAC . & REM . CODE ANN . §35.003(c) (Vernon 2008) (stating 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 . R. CIV. P. 329b (a) & (g) (stating that a
motion for new trial or to modify a final judgment must be filed within thirty days of the date
the judgment is signed). And, since a trial court’s plenary jurisdiction over a proceeding
does not start winding down until a final judgment is entered, In re Salas, 228 S.W.3d 774,
777 (Tex. App.–El Paso 2007, no pet.) (stating that a trial court has plenary jurisdiction
over its orders until thirty days after entry of a final judgment if no motion for new trial is
5
The “transcript,” like an abstract of judgm ent, m erely contained a description of som e item s that m ost
likely would be included in a judgm ent, such as the nam e of the parties and am ount owed. Yet, it om itted
m any elem ental item s of a judgm ent such as the nam e or signature of the judge who executed the decree
and verbiage m anifesting the adjudication of the rights involved. Thus, we cannot consider the “transcript”
to be the judgm ent as contem plated by §35.003(a) of the Texas Civil Practice and Rem edies Code.
4
filed), the trial court below never lost its authority to act. Simply put, it retained its
jurisdiction to adjudicate the validity of Love’s purported notice of filing a foreign judgment.6
Issue Three – Trial
In her third issue, Love contends that the trial court erred in adjudicating the merits
of her attempt to domesticate the judgment without an evidentiary trial. We sustain the
point.
In adjudicating the matter, the trial court dismissed it “with prejudice.” Appending
the latter two words to the dismissal resulted in an adjudication on the merits. Ritchey v.
Vasquez, 986 S.W.3d 611, 612 (Tex. 1999) (stating that a dismissal with prejudice is an
adjudication of the merits). Moreover, that the trial court so intended to adjudicate the
merits is manifest by its factual findings that the “[f]oreign judgment was rendered more
than ten . . . years prior to the commencement of the action in the State of Texas” and that
Moreland “had a perfect defense to the foreign judgment that he was prevented from
asserting due to no fault of” his own.
Yet, at the hearing upon Moreland’s request to vacate, no evidence was offered, not
even the affidavit appended to the motion to vacate. Legal counsel simply provided the
trial court with argument, which argument cannot be considered evidence. Tex. Dept. of
Public Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App.–San Antonio 1997, no writ)
(holding that argument of counsel is not evidence). That like arguments were contained
in the pleadings or motions is of no help either since allegations in pleadings generally are
not evidence. Blackwell v. Chapman, 492 S.W.2d 657, 658 (Tex. Civ. App.–El Paso 1973,
6
In resolving the first issue as we do, we need not determ ine the second for it does not m atter whether
the m otion to vacate constituted a bill of review.
5
no writ). And, to the extent that there may have been an affidavit attached to the motion,
no one indicated that the motion should be considered one for summary judgment or that
summary judgment procedures were utilized in disposing of the matter.
Nor does the statement of facts memorializing the hearing reveal that the trial court
informed the litigants that it intended the proceeding to be a final evidentiary hearing or
trial. We further deduce from the record that the litigants and trial court were concerned
not so much with whether the trial court could finally adjudicate the merits of the claim via
the hearing but rather with whether the motion to vacate was in actuality a bill of review.
This is of import because granting a bill of review does not necessarily result in final
adjudication of the underlying rights involved. See e.g., Keifer v. Touris, 197 S.W.3d 300,
302 (Tex. 2006). Also of concern is Moreland’s failure to address, in his appellee’s brief,
the issue before us or explain how the trial court could lawfully adjudicate the merits of
Love’s action through means other than a trial or even a summary judgment proceeding.
On the other hand, Moreland expressly requested, via his motion to vacate, that
Love’s efforts be dismissed with prejudice. So too did he describe for the trial court why
he thought such a dismissal was warranted, and the trial court did ponder the effect that
limitations would have on the outcome. Moreover, Love neither questioned the form of the
motion nor expressly attacked on appeal the aforementioned factual findings rendered by
the trial court and touching upon the defense of limitations. Similarly missing from her
appellant’s brief is any explanation as to how reversal and remand would result in a
different outcome or how she was harmed by the procedure utilized.
Nonetheless, it seems contrary to our accepted notions of justice and jurisprudence
to permit the final adjudication of a claim outside the formalities of a trial or summary
6
proceeding authorized by the rules of procedure. This is especially so here given the
confusion about the nature and extent of and issues involved in the hearing held on the
motion to vacate. That no one actually tendered evidence or stipulated to the relevant
facts at the hearing is also troublesome since factual findings were rendered. Moreover,
if limitations is a “perfect defense,” as stated by the trial court, then it would seem that the
matter could be quickly disposed of through summary judgment. And, because of these
particular circumstances, we conclude that the better course of action would be to honor
justice and our system of law and remand the proceeding so that all have opportunity to
knowingly pursue a final disposition in accordance with law and procedure. This way, the
confusion and daze can be brushed away before we finally drop.
Accordingly, we reverse that portion of the “Order Vacating Judgment” that
dismisses the cause, affirm the remainder, and remand for further proceedings.
Brian Quinn
Chief Justice
7