Dale A. Scoggins and Alvin E. Nelson Jr. v. Native Community Capital

NUMBER 13-21-00270-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DALE A. SCOGGINS AND
ALVIN E. NELSON JR., Appellants,

v.

NATIVE COMMUNITY CAPITAL, Appellee.

On appeal from the 370th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Chief Justice Contreras

Appellee Native Community Capital (Native) is a bank based in Tempe, Arizona,

and appellants Dale A. Scoggins and Alvin E. Nelson Jr. reside in Abilene, Texas. Native

obtained a judgment against appellants in a Maricopa County, Arizona court and filed the

judgment in Hidalgo County, Texas pursuant to the Texas Uniform Enforcement of
Foreign Judgments Act (UEFJA). See TEX. CIV. PRAC. & REM. CODE ANN. § 35.003.

Appellants filed a motion for new trial arguing that venue was improper in Hidalgo County

and the judgment was not properly authenticated, so the judgment should not be given

full faith and credit. See U.S. CONST. art. IV, § 1. The motion was overruled by operation

of law and appellants now raise the same issues on appeal. For the following reasons,

we affirm.

I. UEFJA 1

“The United States Constitution requires that each state give full faith and credit to

the public acts, records, and judicial proceedings of every other state.” Gesswein v.

Gesswein, 566 S.W.3d 34, 38 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied)

(citing U.S. CONST. art. IV, § 1). “Under this principle, Texas is required to enforce a valid

judgment from another state.” Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132

S.W.3d 477, 484 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (op. on reh’g).

Texas law provides two methods by which to enforce a foreign judgment in the state.

First, a judgment creditor may file the judgment under the UEFJA, “which establishes a

procedure for enforcing a foreign judgment by merely filing an authenticated copy of the

judgment with the clerk of any court in Texas with competent jurisdiction.” Brown’s Inc. v.

Modern Welding Co., 54 S.W.3d 450, 453 (Tex. App.—Corpus Christi–Edinburg 2001, no

pet.); see TEX. CIV. PRAC. & REM. CODE ANN. § 35.003(a) (“A copy of a foreign judgment

authenticated in accordance with an act of congress or a statute of this state may be filed

in the office of the clerk of any court of competent jurisdiction of this state.”).

1 Native did not file a brief to assist us in the resolution of this appeal.
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 Alternatively, a judgment creditor may file a common law enforcement action,

which maintains the same character as any other civil proceeding—meaning “the

judgment creditor, as plaintiff, initiates the action[;] the judgment debtor, as defendant,

can assert his defenses[;] and an appealable judgment results.” Brown v. Lanier

Worldwide, Inc., 124 S.W.3d 883, 902 (Tex. App.—Houston [14th Dist.] 2004, no pet.);

see TEX. CIV. PRAC. & REM. CODE ANN. § 35.008 (“A judgment creditor retains the right to

bring an action to enforce a judgment instead of proceeding under this chapter.”). 2

When, as here, a judgment creditor proceeds under the UEFJA, the filing of a

foreign judgment with the clerk of the court “partakes of the nature of both a plaintiff’s

original petition and a final judgment: the filing initiates the enforcement proceeding, but

it also instantly creates a Texas judgment that is enforceable.” Moncrief v. Harvey, 805

S.W.2d 20, 22 (Tex. App.—Dallas 1991, no writ); see Walnut Equip. Leasing Co. v. Wu,

920 S.W.2d 285, 286 (Tex. 1996) (per curiam). The foreign judgment is treated “in the

same manner as” and “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(b), (c); see Tammy Tran Att’ys at Law, LLP v. Spark Funding, LLC, 634 S.W.3d

311, 314–15 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (“The judgment debtor

may use any procedural device for reopening, vacating, or staying the judgment that any

2 See also James P. George, Enforcing Judgments Across State and National Boundaries:
Inbound Foreign Judgments and Outbound Texas Judgments, 50 S. TEX. L. REV. 399, 421–22 (2009)
(noting that: (1) in a common law enforcement action, the judgment creditor files suit and will usually then
immediately move for summary judgment raising the foreign judgment for issue or claim preclusion
purposes; and (2) a common law action is usually brought when a judgment creditor requires additional
parties to the suit).
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post-judgment debtor is allowed.”).

“When a judgment creditor files an authenticated copy of a foreign judgment

pursuant to the UEFJA, a prima facie case for its enforcement is presented. The burden

then shifts to the judgment debtor to prove that the foreign judgment should not be given

full faith and credit.” Gesswein, 566 S.W.3d at 38 (citations omitted). “The presumption of

the foreign judgment’s validity can be overcome only by clear and convincing evidence.”

Id. To meet that burden, the judgment debtor must prove one of the exceptions to the full

faith and credit requirement. Id.

There are five well-established reasons to deny a foreign judgment full faith
and credit: (1) the foreign judgment is interlocutory; (2) the foreign judgment
is subject to modification under the rendering state’s law; (3) the rendering
state lacked jurisdiction; (4) the foreign judgment was secured by extrinsic
fraud; and (5) the period for enforcing the foreign judgment in Texas has
expired under civil practice and remedies code [§] 16.066.

Id. at 38 n.2; see Mindis Metals, 132 S.W.3d at 484; Brown, 124 S.W.3d at 903. In

undertaking a collateral attack on a foreign judgment, however, “no defense may be set

up that goes to the merits of the original controversy.” Russo v. Dear, 105 S.W.3d 43, 46

(Tex. App.—Dallas 2003, pet. denied).

II. APPELLANTS’ VENUE CHALLENGE

By their first issue, appellants argue that Native improperly filed the Arizona

judgment in Hidalgo County because neither the claims nor the parties “have any

connection to Hidalgo County.” They continue, “Since venue is lacking, the purported

foreign judgment should be rejected.” Appellants base their argument entirely on the

Houston Fourteenth Court of Appeals’ opinion in Cantu v. Howard S. Grossman, P.A.,

251 S.W.3d 731 (Tex. App.—Houston [14th Dist.] 2008, pet. denied), which held that a

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judgment creditor’s filing under the UEFJA is subject to the Texas venue statute. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.002(a); 35.003(a). We conclude that the facts in

Cantu are distinguishable and thus overrule appellants’ first issue.

A. Standard of Review

A motion contesting enforcement of a foreign judgment operates as a motion for

new trial. Ward v. Hawkins, 418 S.W.3d 815, 824 (Tex. App.—Dallas 2013, no pet.). “A

trial court has broad discretion in ruling on a motion for new trial, and we may not disturb

its ruling absent an abuse of discretion.” Id.; see Gesswein, 566 S.W.3d at 38.

B. Cantu v. Howard S. Grossman, P.A.

In Cantu, appellee Grossman obtained two judgments against appellant Cantu in

a Florida court and filed them in Harris County, Texas under the UEFJA. Cantu, 251

S.W.3d at 734. In response, Cantu filed a “Motion to Transfer Venue, and, Subject

Thereto, Motion for New Trial,” and “Alternatively, [a] Motion for Denial of Recognition of

Foreign Judgment.” Id. The trial court denied the motions, and Cantu appealed, arguing

as to the former motion that venue was only proper in Hidalgo County, where he resided,

and seeking a transfer of the cause to Hidalgo County. Id.; see TEX. CIV. PRAC. & REM.

CODE ANN. § 15.002(a). In so arguing, Cantu contended that the UEFJA is silent on

venue, and so the court should apply general venue principles. Cantu, 251 S.W.3d at

734. By contrast, Grossman claimed that under the UEFJA, the Florida judgments may

be—and were—properly filed in “the office of the clerk of any court of competent

jurisdiction” in Texas. Id. (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 35.003(a)).

Grossman asserted that venue was thus proper in any such court. Id.

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 In an issue of first impression, the divided Houston court, “[a]fter considering the

purpose of the [UEFJA] and the interpretation of similar statutes by other states,”

concluded that the UEFJA is silent on venue and the general venue statute applies to

UEFJA proceedings. 3 Id. Accordingly, the court reversed the trial court’s judgment with

instructions to transfer the cause to Hidalgo County. Id. Finding it dispositive, the court in

Cantu only addressed the trial court’s denial of Cantu’s motion to transfer venue—it

explicitly did not reach Cantu’s remaining issue of whether the Florida judgments should

be denied full faith and credit. Id.

C. Analysis

We do not decide here whether the Texas venue statute applies to UEFJA filings

because, even if it did, appellants’ venue argument fails. In Cantu, Cantu filed a motion

seeking to transfer venue from Harris County to Hidalgo County. See id. The Houston

court ultimately concluded that the motion should have been granted, and the cause

transferred. See id. By contrast, appellants here have never requested a transfer of

venue. Instead, pointing only to Cantu, they asked the trial court and now ask this Court

to reject Native’s Arizona judgment and deny it full faith and credit based on the venue in

which Native filed the judgment. But the court in Cantu never decided whether a foreign

judgment can be denied full faith and credit based on improper venue, see id., and

3 Cantu was decided over a dissent and contrary authority in a preceding unpublished opinion from

our sister court in Dallas. See Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) (Frost, J., dissenting) (concluding that a UEFJA proceeding is not a “lawsuit”
subject to Texas’ venue statute); Moncrief v. Harvey, No. 05-90-01116-CV, 1991 WL 258684, at *2 (Tex.
App.—Dallas Nov. 26, 1991, writ denied) (not designated for publication) (concluding that the judgment
debtor could not challenge a UEFJA filing for improper venue because the UEFJA gave the judgment debtor
“all those defenses and proceedings for reopening, vacating, or staying a judgment that they can bring post-
judgment,” but venue is a pre-trial matter).
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appellants have not cited any authority establishing that it can, see TEX. R. APP. P. 38.1(i).

In any case, as noted, this Court has recognized that “[t]here are five well-established

reasons to deny a foreign judgment full faith and credit.” Gesswein, 566 S.W.3d at 38 n.2;

see also Mindis Metals, 132 S.W.3d at 484; Brown, 124 S.W.3d at 903. Failure to adhere

to the Texas venue statute when filing under the UEFJA is not one of those recognized

reasons. See Gesswein, 566 S.W.3d at 38 n.2; Mindis Metals, 132 S.W.3d at 484; Brown,

124 S.W.3d at 903; see also Cantu, 251 S.W.3d at 754 n.30 (Frost, J., dissenting) (“This

court in Mindis Metals imposed no burden on the judgment creditor to establish proper

venue.”). Thus, regardless of whether we adopt the holding in Cantu, we cannot grant

appellants their requested relief.

Appellee filed the Arizona judgment under the UEFJA, and it is thus presumed

valid. See Gesswein, 566 S.W.3d at 38. The burden then shifted to appellants to prove

by clear and convincing evidence that the judgment should not be given full faith and

credit. See id. Appellants have not met their burden, and the trial court therefore did not

abuse its discretion in denying their motion for new trial.

We overrule appellants’ first issue.

III. FOREIGN JUDGMENT AUTHENTICATION

By their second issue, appellants contend that the Arizona judgment should not be

given full faith and credit because it was not properly authenticated. Specifically, they

allege the judgment was not signed by the Arizona trial judge.

A foreign judgment must be “authenticated in accordance with an act of congress

or a statute of this state.” TEX. CIV. PRAC. & REM. CODE ANN. § 35.003(a). “Under the

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authority of the full faith and credit clause of the United States Constitution, Congress

enacted a statute which dictates the manner of proving the records of judicial proceedings

of other states. . . .” Karstetter v. Voss, 184 S.W.3d 396, 401 (Tex. App.—Dallas 2006,

no pet.) (citing 28 U.S.C. § 1738). Section 1738 provides in part:

The records and judicial proceedings of any court of any such
State . . . shall be proved or admitted in other courts within the United States
and its Territories . . . by the attestation of the clerk and seal of the court
annexed, if a seal exists, together with a certificate of a judge of the court
that the said attestation is in proper form.

28 U.S.C. § 1738.

Appellants do not dispute that the Arizona judgment is properly authenticated

under § 1738—indeed, the judgment certification is signed by the clerk of the relevant

Maricopa County superior court confirming that the judgment is the original in the case;

the court’s seal is affixed to the judgment; the presiding judge signed the certification

confirming that the clerk of the court is the duly elected clerk whose official acts are

entitled to full faith and credit; and the clerk of the court attested that the presiding judge

is who he claims to be. See id. Nevertheless, appellants argue that the foreign judgment

was not properly authenticated because it was never signed by the Arizona trial judge.

But the relevant judgment here is signed. Stamped on the top left of the Arizona

judgment is the following language: “Granted with Modifications” and “***See eSignature

page***.” A cursory glance at the judgment’s signature page shows the electronic

signature of Judge Randall Warner dated April 1, 2021. Rule 58(b) of the Arizona rules of

civil procedure requires that “all judgments must be in writing and signed by a judge.”

ARIZ. R. CIV. P. 58(b). An electronically typed signature using the “/s/ Name” format

complies with that rule. See Haywood Sec., Inc. v. Ehrlich, 149 P.3d 738, 739 (Ariz. 2007).
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The relevant Arizona judgment provides Judge Warner’s signature in precisely that

format. We thus find no issue with the judgment and conclude that it was properly

authenticated. See id.; TEX. CIV. PRAC. & REM. CODE ANN. § 35.003(a).

We overrule appellants’ second issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS
Chief Justice

Delivered and filed on the
20th day of April, 2023.

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