Opinion issued November 8, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00072-CV
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ONE 2000 INTERNATIONAL TRUCK TRACTOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2009-52272
MEMORANDUM OPINION
In this forfeiture case, the State seized a 2000 International Truck Tractor
owned by James Cornish, and it timely instituted a suit for forfeiture. It did not
however, procure service on Cornish until five months after the applicable
limitations period expired. Cornish moved to dismiss the action, contending that
the State failed to diligently procure service on him. The trial court denied the
motion to dismiss, and Cornish attempts to appeal the trial court’s ruling. Because
the parties later entered into an agreed final judgment and Cornish does not
contend that the State procured the judgment by fraud or deceit, we hold that
Cornish has waived the right to complain of the trial court’s interlocutory ruling.
Accordingly, we affirm the judgment of the trial court.
Background
In July 2009, Cornish admitted to owning the seized truck and using it to
steal a trailer and eighteen pallets of roofing shingles. As a result, the authorities
seized the truck as contraband under Chapter 59 of the Texas Code of Criminal
Procedure. The State filed its petition and its notice of seizure and intended
forfeiture in August 2009, shortly before the thirty-day limitations period expired.
The State requested service on Cornish twice, at different correctional facilities,
but each time he was transferred before being served. The State received the
unexecuted return from the second attempt at service in November, but misfiled
the return. It made no further efforts to serve Cornish.
In January 2010, Cornish’s attorney contacted the State to find out what
happened to the truck. He was informed of this forfeiture action and accepted
service on Cornish’s behalf. Cornish filed an answer and moved to dismiss,
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contending that the State did not diligently procure service on him, as he was not
served until more than five months after the limitations period expired. The trial
court denied the motion. The parties subsequently entered into an agreed final
judgment, forfeiting Cornish’s truck.
Discussion
A judgment entered upon the agreement of the parties cures all non-
jurisdictional defects. Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—
Houston [1st Dist.] 2003, no pet.); Dunman v. Hartwell, 9 Tex. 495, 496 (1853). A
party may not challenge such a judgment or defects in the proceedings in the case
absent an allegation of fraud, collusion, or misrepresentation. Authorlee v.
Tuboscope Vetco Int'l, Inc., 274 S.W.3d 111, 119 (Tex. App.—Houston [1st Dist.]
2008, pet. denied); Dunman, 9 Tex. at 496. The statute of limitations is an
affirmative defense that a defendant must plead; it is generally not jurisdictional.
TEX. R. CIV. P. 94; see Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76–77 (Tex.
2000) (explaining that statutory prerequisites to suit go to the right of a plaintiff to
relief rather than jurisdiction).
Cornish contends that the trial court erred in denying his motion to dismiss
for the State’s failure to diligently procure service on him after the limitations
period expired. He does not allege that the State engaged in fraud or
misrepresentation to obtain his agreement to the judgment, nor does he raise a
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jurisdictional challenge. See Kazi, 12 S.W.3d at 76. Having consented to the
Agreed Final Judgment forfeiting his truck, Cornish waived his right to complain
of the trial court’s prior ruling on his motion to dismiss. See Mailhot, 124 S.W.3d
at 778.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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