Frederick L. Nicholas v. Environmental Systems (International) Limited, Brian G. Cook, Reif Winery Inc. (c.O.B. as Reif Estate Winery), Klaus Reif and Re/Defining Water Inc. ( 2016 )

Affirmed and Majority and Concurring Opinions filed July 26, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00403-CV
FREDERICK L. NICHOLAS, Appellant
V.
ENVIRONMENTAL SYSTEMS (INTERNATIONAL) LIMITED, BRIAN G.
COOK, REIF WINERY INC. (C.O.B. AS REIF ESTATE WINERY), KLAUS
REIF AND RE/DEFINING WATER INC., Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 11-CV-1938
CONCURRING OPINION
This case presents an issue of apparent first impression in Texas under the
Uniform Foreign Country Money-Judgment Recognition Act, contained in Chapter
36 of the Texas Civil Practice and Remedies Code. The trial court denied the
judgment debtor’s motion for nonrecognition of a Canadian judgment and granted
the judgment creditors’ request for enforcement of the judgment over the judgment
debtor’s objection that the judgment creditors failed to comply with Texas Civil
Practice and Remedies Code section 36.042(a)’s requirement that the judgment
creditors’ affidavit contain their last-known post-office addresses. The majority
concludes that, even if the judgment creditors failed to comply with this statutory
requirement, the trial court did not err in enforcing the judgment because the
judgment debtor was not harmed by any such failure to comply. The better course
would be to conclude that under Texas Civil Practice and Remedies Code section
36.004, compliance with this statutory requirement was not necessary for the trial
court to enforce the foreign-country judgment in Texas.
Procedures to be Followed by Judgment Creditors under Texas Civil Practice
and Remedies Code Chapter 36
In the Uniform Foreign Country Money-Judgment Recognition Act (the
“Act”), the Texas Legislature established a clear procedure for judgment creditors
seeking recognition and enforcement in Texas of certain foreign-country
judgments.1 Under section 36.041, the judgment creditor must file an
authenticated copy of the foreign-country judgment in the office of the clerk of a
court in the county of residence of the party against whom recognition is sought or
in any other court of competent jurisdiction as allowed under the Texas venue
laws.2 When filing the authenticated foreign-country judgment, the judgment
1
See Tex. Civ. Prac. & Rem. Code Ann. § 36.001, et seq. (West 2015). This statute applies to a
judgment of a “foreign country,” as defined in the statute, granting or denying a sum of money
that is final and conclusive and enforceable where rendered, even though an appeal is pending or
the judgment is subject to appeal; however, the statute does not apply to (1) a judgment for taxes,
a fine, or other penalty; (2) a judgment for support in a matrimonial or family matter, or (3) a
judgment rendered before June 17, 1981. Id. § 36.001, 36.002 (West 2015). All references in
this opinion to a “foreign-country judgment” are limited to the judgments to which Chapter 36 of
the Texas Civil Practice and Remedies Code applies.
2
Id. § 36.0041 (West 2015). This authentication must be in accordance with an act of congress,
a statute of this state, or a treaty or other international convention to which the United States is a
party. Id.
2
creditor also must file with the clerk of the court an affidavit showing the name and
last-known post-office address of the judgment debtor and the judgment creditor.3
The Act requires that the court clerk or the judgment creditor give notice of the
filing of the foreign-country judgment to the judgment debtor at the address
contained in the affidavit.4 If the judgment debtor files a motion for
nonrecognition of the foreign-country judgment, the judgment creditor may contest
that motion and also may seek enforcement of the judgment, both of which
occurred in today’s case.5
The Judgment Creditors’ Failure to Comply with a Requirement of Section
36.042(a)
When they filed the authenticated foreign-country judgment, appellees/
judgment creditors Reif Winery, Inc. (C.O.B. as “Reif Estate Winery”) and Klaus
Reif (hereinafter collectively the “Reif Parties”) filed with the court clerk an
affidavit showing the name and last-known post-office address of
appellant/judgment debtor Frederick L. Nicholas, but that affidavit did not contain
the judgment creditors’ last-known post-office address. Instead, the affidavit gave
the address of the judgment creditors’ lawyer in Canada. Thus, the Reif Parties did
not comply with section 36.042(a)’s requirement that the affidavit contain their
last-known post-office addresses.
Requirements under Section 36.004 for a Foreign-Country Judgment to be
Conclusive and Enforceable
At issue in today’s case is the interpretation of section 36.004, which
addresses when a foreign-country judgment is conclusive between the parties to the
3
Id. § 36.0042(a) (West 2015).
4
Id. §§ 36.042(b)(c), 36.0043 (West 2015).
5
Id. § 36.0044 (West 2015).
3
extent the judgment grants or denies a money recovery and when the foreign-
country judgment may be enforced as a judgment entitled to full faith and credit.6
This statute states in its entirety:
Except as provided by Section 36.005, a foreign country judgment
that is filed with notice given as provided by this chapter, that meets
the requirements of Section 36.002, and that is not refused recognition
under Section 36.0044 is conclusive between the parties to the extent
that it grants or denies recovery of a sum of money. The judgment is
enforceable in the same manner as a judgment of a sister state that is
entitled to full faith and credit.7
This court reviews de novo the trial court’s interpretation of applicable statutes.8
In construing a statute, the objective is to determine and give effect to the
Legislature’s intent.9 If possible, we must ascertain that intent from the language
the Legislature used in the statute and not look to extraneous matters for an intent
the statute does not state.10 If the meaning of the statutory language is
unambiguous, this court is to adopt the interpretation supported by the plain
meaning of the provision’s words.11 We must not engage in forced or strained
construction; instead, we must yield to the plain sense of the words the Legislature
chose.12
The Legislature did not state in the Act that courts should liberally construe
6
Id. § 36.004 (West 2015).
7
Id.
8
See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989).
9
See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).
10
Id.
11
St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).
12
See id.
4
the Act.13 Nor did the Legislature state that courts should strictly construe the
Act.14 Research has not revealed any precedent addressing the standard. In this
context, the court should follow the general rule and interpret the statute based on
the plain meaning of its language rather than on either a strict or liberal
construction of the text.15
Under section 36.004’s unambiguous language, for the foreign-country
judgment to be conclusive between the parties to the extent the judgment grants or
denies a money recovery and to be entitled to full faith and credit in its
enforcement, the judgment must be “filed with notice given as provided by
[chapter 36].”16 Given the text and structure of the Act, this unambiguous
language requires that the judgment creditor file the judgment as provided in
section 36.0041 and have notice given in accordance with the relevant subsections
of either section 36.0042 or section 36.0043, but does not require that the judgment
creditor comply with section 36.042(a)’s requirement that the affidavit contain the
creditors’ last-known post-office addresses.17 A fair construction of the statutory
text reveals at least five requirements for a foreign-country judgment to be
conclusive between the parties to the extent the judgment grants or denies a money
recovery and to be entitled to full faith and credit in its enforcement:
(1) The judgment must be a “foreign country judgment” as defined in section
13
See Tex. Civ. Prac. & Rem. Code Ann. § 36.001, et seq.
14
See id.
15
See Nat’l Liab. & Fire Ins. Co., 15 S.W.3d at 527; Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 355–58, 364–66 (2012) (discussing how general
approach to statutory construction is to adhere to the fair meaning of the statute’s text rather than
to strictly construe or to liberally construe the text).
16
Tex. Civ. Prac. & Rem. Code Ann. § 36.004.
17
Id. §§ 36.0041, 36.042, 36.0043.
5
36.001.18
(2) The judgment must have been filed in compliance with section 36.0041.19
(3) Notice must have been given to the judgment debtor in compliance with
the relevant subsections of either section 36.0042 or section 36.0043.20
(4) The judgment must meet the requirements of section 36.002.21
(5) Recognition of the judgment must not have been refused under section
36.0044.22
In addition, the Texas Legislature began the recitation of these requirements
in section 36.004 by stating “[e]xcept as provided by Section 36.005,” possibly
allowing a trial court to not give conclusive effect to a foreign-country judgment
based on one of the ten nonrecognition grounds in section 36.005 if no timely
motion for nonrecognition was filed under section 36.044.23 Whatever the
construction of this phrase, section 36.005 does not address section 36.042(a)’s
requirement that the affidavit contain the judgment creditor’s last-known post-
office address; therefore, this phrase does not provide Nicholas a basis for avoiding
recognition or enforcement of the Canadian judgment against him based on this
requirement of section 36.042(a).24 Because a motion for nonrecognition can be
18
Id. § 36.001.
19
Id. § 36.0041.
20
Id. §§ 36.042, 36.0043.
21
Id. § 36.002.
22
Id. § 36.0044.
23
See id. §§ 36.004, 36.0044, 36.005. No Texas case appears to have addressed the construction
of the phrase “[e]xcept as provided by Section 36.005.” Id. § 36.004. In section 36.005, the
Legislature lists three situations in which a foreign-country judgment “is not conclusive” and
seven situations in which a foreign-country judgment “need not be recognized.” Id. § 36.004.
The Act does not state that a trial court can rely on these nonrecognition grounds only in the
context of ruling on a timely motion for nonrecognition. See Tex. Civ. Prac. & Rem. Code Ann.
§ 36.001, et seq.
24
Id. §§ 36.004, 36.005.
6
based only on one or more of the ten grounds in section 36.005, the fifth
requirement above does not provide Nicholas a basis for avoiding recognition or
enforcement of the judgment based on this requirement of section 36.042(a). 25
Likewise, the first through fourth requirements listed above do not implicate
section 36.042(a)’s requirement as to the judgment creditor’s last-known post-
office address. 26
In sum, the Act allows a foreign-country judgment to be conclusive between
the parties to the extent the judgment grants or denies a money recovery and to be
entitled to full faith and credit in its enforcement, even if the judgment creditor
failed to comply with section 36.042(a)’s requirement that the judgment creditor’s
affidavit contain its last-known post-office address.27 The consequence of the non-
compliance is not a matter of harm. Recognition and enforcement of the foreign-
country judgment does not turn on the creditors-address requirement, even though
section 36.042(a) requires that the affidavit contain the judgment creditor’s last-
known post-office address.28
Though Nicholas preserved error in the trial court on his argument that the
judgment should not be recognized or enforced based on the Reif Parties’ failure to
comply with section 36.042(a)’s requirement that the affidavit contain their last-
known post-office addresses, under the plain meaning of the statute, compliance
with this requirement is not necessary for the Canadian judgment to be conclusive
between the parties to the extent the judgment grants or denies a money recovery
25
Id. §§ 36.004, 36.0044(a), 36.005.
26
Id. § 36.004.
27
Id.
28
Id.
7
and to be entitled to full faith and credit in its enforcement.29 For this reason,
Nicholas’s third issue lacks merit.
The majority relies upon a statement from a 2011 opinion of this court that
“[w]hen recognition is not contested or a contest is overruled, a foreign-country
judgment is conclusive between the parties to the extent that it grants recovery or
denial of a sum of money.”30 This statement is an obiter dictum from a case whose
holding was only that the trial court erred in denying a motion for nonrecognition
based on section 36.005(b)(5).31 In addition, this obiter dictum, if followed, would
conflict with section 36.004’s unambiguous language imposing the five
requirements discussed above.32
The majority relies on cases applying Chapter 35, Texas’s version of the
Uniform Enforcement of Foreign Judgments Act, which applies to the filing and
enforcement in Texas courts of judgments of a court of the United States or any
other court entitled to full faith and credit.33 Though some parts of Chapter 35 are
similar to the analogous provision of Chapter 36, section 35.003, the section
analogous to section 36.004, contains materially different language.34 Therefore,
29
Id.
30
See ante at 10 (citing Diamond Offshore (Bermuda), Ltd. v. Haaksman, 355 S.W.3d 842, 845
(Tex. App.—Houston [14th Dist.] 2011, pet. denied)).
31
Diamond Offshore (Bermuda), Ltd., 355 S.W.3d at 845–48.
32
See id. § 36.004.
33
See ante at 12–13.
34
Section 35.003, entitled “Filing and Status of Foreign Judgments,” states:
(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.
(b) The clerk shall treat the foreign judgment in the same manner as a judgment of
the court in which the foreign judgment is filed.
8
these Chapter 35 cases are not on point. 35
Rather than overrule Nicholas’s third issue based on a lack of harm, the
better course would be to overrule this issue based on statutory analysis. Though I
concur in the court’s judgment, I respectfully decline to join the court’s opinion.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise. (Wise, J.,
majority).
(c) 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 (West 2015).
35
See id.
9