UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50961
Summary Calendar
FEDERAL DEPOSIT INSURANCE CORPORATION
as Receiver for Ranchlander National Bank,
Plaintiff-Appellee,
VERSUS
ORRIN SHAID, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
June 4, 1998
Before REYNALDO G. GARZA, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
This case comes from a decision of the United States
District Court for the Western District of Texas, the Honorable
James R. Nowlin, presiding. In this case, the district court
granted summary judgment in favor of the Plaintiff-Appellee, the
Federal Deposit Insurance Corporation (“the FDIC”), and revived a
judgment against the Defendant-Appellant, Orrin Shaid, Jr.
(“Shaid”). Shaid timely appealed, and the matter now lies before
this panel.
Background
On October 9, 1985, the FDIC, as Receiver of the Ranchlander
National Bank, recovered a Final Judgment against Shaid in the
amount of $5,790,419.83, to bear interest from that date at the
rate of 7.87 percent per annum until paid (“the Judgment”).1 No
writ of execution was ever issued against Shaid on the Judgment.
The Judgment became dormant for lack of execution ten years
later. See TEX.CIV.PRAC. & REM.CODE ANN. §34.001(a)(Vernon 1997).
No amount of the Judgment has ever been paid.
On April 15, 1997, the FDIC filed this action to revive the
Judgment. The FDIC cannot execute on the Judgment, unless the
Judgment is revived pursuant to TEX.CIV.PRAC. & REM.CODE ANN.
§31.006 (Vernon 1997), which states:
A dormant judgment may be revived by scire facias or by
an action of debt brought not later than the second
anniversary of the date that the judgment becomes
dormant.
This statute was amended in 1995, and this amendment will be
discussed later.
At the district court level, Shaid claimed that the FDIC’s
action was barred by the applicable statute of limitations.
1
Judge James R. Nowlin, the judge who presided over the
instant case at the district court level, signed the original 1985
Judgment.
2
Shaid also claimed that §31.006 was unconstitutional because the
statute provides for the revival of actions barred by the
applicable statute of limitations, which would allegedly affect
the vested rights of a party to rely on a statute of limitations.
On October 8, 1997, the district court granted summary
judgment in favor of the FDIC, stating that Shaid’s
constitutional argument was irrelevant because §31.006 became
effective on September 1, 1995, before the Judgment became
dormant. Based on this analysis, the district court held that no
vested rights were affected, and that there was no genuine issue
of material fact. The district court granted summary judgment in
favor of the FDIC and revived the action. Shaid now appeals, and
he argues the same claims before this circuit.
Standard of Review
We review a district court’s interpretation of a state
statute under the de novo standard of review, and we interpret
the state statute the way we believe the state Supreme Court
would, based on prior precedent, legislation, and relevant
commentary. See Transcontinental Gas Pipe Line Corp. v.
Transportation Ins. Co., 953 F.2d 985, 987-88 (5th Cir. 1992).
Similarly, we review a district court’s grant of summary judgment
under the de novo standard of review. BellSouth
Telecommunications, Inc. v. Johnson Bros. Group, 106 F.3d 119,
3
122 (5th Cir. 1997).
Analysis
Shaid argues that he had a vested right to claim the statute
of limitations as a defense to the FDIC’s attempt to revive the
Judgment. It is undisputed that the action became dormant on
October 10, 1995.2 However, Shaid argues that the terms of the
amended statute state that the prior version of §31.006 was to be
applicable until December 1, 1996, despite the fact that the
statute itself states that its effective date was September 1,
1995. Shaid argues that, based on this timeline, his rights
vested before the statute was truly applicable. Shaid cites
various cases stating that once a claim is barred, the right to
rely on a statute of limitations is vested, and a statute is
unconstitutionally retroactive if it takes away or impairs vested
rights acquired under existing law. See Mann v. Jack Roach
Bissonnet, Inc., 623 S.W.2d 716, 718 (Tex.Civ.App.--Houston [1st
Dist.] 1981, no writ); McCain v. Yost, 284 S.W.2d 898, 900 (Tex.
1955); TEX.CONST. Art. I, §16.
The FDIC replies that a plain language reading of the
2
The district court stated that the action became dormant on
October 10, 1995, presumably because October 10 is one day after
the end of the ten-year limitation period. The parties, in their
briefs, listed October 9 as the date the action became dormant.
These differences are immaterial to the outcome of this case, but
we deemed them to be worth mentioning. For the purposes of the
instant case, we will use the date used by the district court.
4
statute shows that its applicable effective date was September 1,
1995, and therefore, it was in effect before the date a defense
based on the statute of limitations would vest for Shaid. The
FDIC states that well-established principles of statutory
construction require a court to enforce a plain and unambiguous
Texas statute according to its terms. Anderson v. Penix, 161
S.W.2d 455, 459 (Tex. 1942). According to such a reading, the
FDIC argues, Shaid’s contentions are contrary to the wording of
the statute, and presumably, the intent of the Texas Legislature.
The FDIC argues that Shaid’s interpretation of the statute is
rather strained, and that a straightforward interpretation of the
statute shows that the Texas Legislature intended the statute to
take effect on September 1, 1995. The FDIC also argues that the
wording of the statute shows that the Texas Legislature intended
to allow a party to bring an action on or after December 1, 1996,
and to allow a party to revive a judgment that had become dormant
sometime in the previous two-year period. Based on this
analysis, the FDIC argues that the amended statute applies
directly to the instant case because the amendment to the statute
took effect before the action on the Judgment was dormant, and
because this case was filed within the appropriate two-year time-
period.
We agree with the FDIC’s reasoning on this point. Shaid
offers a rather convoluted interpretation of the statute, and
5
this interpretation is particularly troublesome, because the
statutes in question were amended to correct certain
inconsistencies in the law on this matter. See Cox v. Nelson,
223 S.W.2d 84, 86 (Tex.Civ.App.--Texarkana 1949, writ ref’d).
While it is true that the Texas Legislature could have enacted a
general repealer statute in this case, the fact that it did not
do so does not provide comfort for Shaid. The district court was
correct in holding that the FDIC filed its case to revive the
Judgment within the appropriate time limits, and the operation of
the statute prevents Shaid from claiming that he had a vested
right to claim the statute of limitations as a defense.
Given that we have stated that Shaid had no vested right to
claim the statute of limitations as a defense, we need not
address whether or not §31.006 is unconstitutional. Shaid had no
vested right to rely upon, so the issue of retroactivity is
irrelevant.
Conclusion
Based on the foregoing, we find no reversible error in the
decision of the district court, which granted summary judgment in
favor of the FDIC, and revived the action. Therefore, we AFFIRM
the decision of the district court.
AFFIRMED.
6