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 2008-01

Mark A. Cantu v. Howard S. Grossman, P.A. ( 2008 )


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  • Reversed and Remanded and Majority and Dissenting Opinions filed January 29, 2008

    Reversed and Remanded and Majority and Dissenting Opinions filed January 29, 2008.

     

     

    In The

     

    Fourteenth Court of Appeals

    _______________

     

    NO. 14-06-00078-CV

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    MARK A. CANTU, Appellant

     

    V.

     

    HOWARD S. GROSSMAN, P.A., Appellee

    On Appeal from the 215th District Court

    Harris County, Texas

    Trial Court Cause No. 05-64630

     

    M A J O R I T Y  O P I N I O N

    In this case, we are asked to consider for the first time whether the filing of a foreign judgment is subject to our state=s venue statutes.  Appellee Howard S. Grossman, P.A. obtained a Florida judgment against appellant Mark A. Cantu and filed the judgment in  Harris County.  Cantu moved to transfer venue to Hidalgo County, where he resides and maintains his business and property.  After considering the purpose of the Uniform Enforcement of Foreign Judgments Act and the interpretation of similar statutes by other states, we conclude that the general venue statute applies.  We therefore reverse and remand with instructions to transfer the cause to a court of competent jurisdiction in  Hidalgo County, and we do not reach Cantu=s remaining issue.

     

     

    I. Procedural Background

    Grossman sued Cantu in Florida for tortious interference with contract. After the Florida trial court struck Cantu=s defensive pleadings as a discovery sanction, Grossman obtained a final summary judgment in the amount of $833,000 plus prejudgment interest of $516,665, for a total of $1,349,665.  Cantu appealed.  On an extensive record and after full briefing by both parties, a Florida court of appeals affirmed the final summary judgment.  Grossman also obtained a final judgment for attorneys= fees and costs in the amount of $25,530.[1]

    Pursuant to the Uniform Enforcement of Foreign Judgments Act (AUEFJA@), Grossman filed the two Florida judgments in the 215th District Court for Harris County, Texas.[2] In response, Cantu filed a AMotion to Transfer Venue, and, Subject Thereto, Motion for New Trial, Alternatively, Motion for Denial of Recognition of Foreign Judgment.@  The trial court denied Cantu=s Motion to Transfer Venue and his Motion for New Trial and Alternative Motion for Denial of Recognition of Foreign State Judgment.[3]  Cantu appealed.  In two issues, he challenges the trial court=s denial of both motions.  Due to our disposition of the venue question, we do not reach Cantu=s remaining issue.

    II. Standard of Review

    In his first issue, Cantu argues the trial court erred in denying his motion to transfer venue to Hidalgo County.  When reviewing the denial of a motion to transfer venue, we consider the entire record.  Tex. Civ. Prac. & Rem. Code Ann. ' 15.064(b) (Vernon 2002).  Relying on Texas=s general venue provision, Cantu contends venue is proper only in Hidalgo County, the county of his residence.  See Tex. Civ. Prac. & Rem. Code Ann. ' 15.002(a)(2) (Vernon 2002) (providing all lawsuits shall be brought, inter alia, in county of defendant=s residence).  Grossman responds that under the UEFJA, venue is proper in any county, including Harris County.  See Tex. Civ. Prac. & Rem. Code Ann. ' 35.003(a) (Vernon 1997) (providing copy of foreign judgment Amay be filed in the office of the clerk of any court of competent jurisdiction of this state@).

    III.  Analysis

     A.       Venue Challenge

    Venue concerns the geographic location within the forum where the case may be tried. See, e.g., Boyle v. State, 820 S.W.2d 122, 139B40 (Tex. Crim. App.1989) (en banc); see also Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (AVenue may and generally does refer to a particular county, but may also refer to a particular court.@); Liu v. Cici Enters., LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (mem. op.) (same).  AGenerally, chapter 15 of the Texas Civil Practice and Remedies Code governs venue of actions.@  In re Tex. Dept. of Transp., 218 S.W.3d 74, 76 (Tex. 2007).  The plaintiff has the first choice to fix venue in a proper county by bringing the action in the county of his choice.  In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999).  If a defendant objects to the plaintiff=s choice through a timely motion to transfer venue, the plaintiff must prove that venue is proper in the county of suit.  Id.; Wilson v. Tex. Parks & Wildlife Dept., 886 S.W.2d 259, 260B61 (Tex. 1994).  If the plaintiff fails to establish proper venue, the trial court must transfer venue to the county specified in the defendant=s motion to transfer, provided that the defendant has requested transfer to another county of proper venue.  Masonite, 997 S.W.2d at 197.  On this point, the defendant has the burden to provide prima facie proof.  Id.

    In response to Cantu=s challenge, Grossman asserted that venue was proper under the following terms of the UEFJA:

    (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.[[4]]

    (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.

    (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 (Vernon 1997).  Grossman offered no additional evidence supporting the venue choice of Harris County but instead asserts that, under section 35.003, a foreign-judgment creditor may maintain venue in any Texas court of competent jurisdiction.  Cantu, on the other hand, argues that this court should follow the reasoning of the courts of our sister states, conclude that the UEFJA is silent regarding venue, and apply our general venue statutes. 

    Although our dissenting colleague contends that we should determine whether the general venue statute applies to the filing of a foreign judgment by focusing on the word Alawsuit@ in the venue statute, we follow the approach of every other state that has addressed this question, and begin our analysis with the Uniform Act.

    B.        Construction of the UEFJA

    The construction of a statute is a question of law, which we review de novo.  F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007).  And because the UEFJA is a uniform act, we must begin our analysis with the Act=s purpose.  Tex. Gov=t Code Ann. ' 311.028 (Vernon 2005) (AA uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those states that enact it); see also id. ' 312.005 (AIn interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.@); Panhandle & S. F. Ry. Co. v. Friend, 91 S.W.2d 922, 925 (Tex. Civ. App.CAustin 1936, no writ) (interpreting a statute with language similar to section 311.028, and stating, AThis rule has peculiar application to procedural statutes . . . to secure to the litigant as simple, prompt, and expeditious determination of his case as is consistent with fair and impartial justice, reducing as far as practical to a minimum the delay and expense incident to reversal and new trial.@).

     Our ultimate goal in construing a statute is to give effect to the Legislature=s intent as expressed in the language of the statute.  F.F.P. Operating Partners, L.P., 237 S.W.3d at 683; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 892 (Tex. 2002).  In doing so, we must always consider the statute as a whole rather than its isolated provisions. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)).  AWe should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone.@  Id. (citing Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex. 1978)).  Instead, we presume that the both the statute and the legislative act are intended to be effective in their entirety.  Allegheny Mut. Cas. v. State, 710 S.W.2d 139, 141 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d).  Thus, in construing a statuteCregardless of whether it is ambiguous on its faceCwe may consider, among other matters, the object sought to be attained; the circumstances under which the statute was enacted; common law or former statutory provisions, including laws on the same or similar subjects; and the consequences of a particular construction.  See Tex. Gov=t Code Ann. ' 311.023 (Vernon 2005).  

    C.        Purpose of the UEFJA

    By examining the rulings of other states that have enacted various versions of the UEFJA, we can determine that the Act is

    (a)       intended Ato give the holder of foreign judgment the same rights and remedies as holders of domestic judgments, and to make foreign judgments just as easy to enforce.@  Redondo Constr. Corp. v. U. S., 157 F.3d 1060, 1065 (6th Cir. 1998).  Thus, the UEFJA is not intended to give a holders of foreign judgments greater rights than holders of domestic judgments.

     

    (b)       Adesigned merely as a facilitating device and was not intended to alter any substantive rights of the parties in an action for enforcement of a foreign judgment.@  Me. v. SeKap, S.A. Greek Co-op. Cigarette Mfg. Co., S.A., 920 A.2d 667, 672 (N.J. Super. Ct. App. Div. 2007).  It is reasonable, then, to interpret the Act in a manner that does not alter the substantive rights afforded by Texas venue statutes to Texas defendants.

     

    (c)       enacted Ato facilitate the interstate enforcement of judgments in any jurisdiction where the judgment debtor is found.@ Hamwi v. Zollar, 702 N.E.2d 593, 597 (Ill. App. Ct. 1998).  Thus, the UEFJA may be interpreted in a manner consistent with the general venue statute, under which venue may be maintained in the county of the defendant=s residence.

     

    (d)       created Ato provide a simpler, more expedient procedure to enforce foreign judgments; it is not [intended] to endow foreign creditors with substantive rights not otherwise available in the forum state.@  Abba Equip., Inc. v. Thomason, 517 S.E.2d 235, 238 (S.C. Ct. App. 1999). Consequently, it cannot be interpreted as a Asuper venue@ statute.

     

    (e)       intended primarily Ato allow a party with a favorable judgment an opportunity to obtain prompt relief.@  Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432 (2007).  And as with domestic judgments, this can be accomplished in accordance with Texas venue statutes.

    After reviewing the purposes of the UEFJA, we are unpersuaded by Grossman=s argument.  The purposes of the UEFJA as a uniform act do not require us to read the word Avenue@ into the statute; to the contrary, the exclusion of venue considerations is actually more consistent with the Act=s purposes.  We therefore agree with Cantu=s position that  section 35.003 is silent regarding venue.  See Garland v. Dallas Morning News, 22 S.W.3d 351, 358 (Tex. 2000) (stating courts must take statutes as they find them and should not give strained readings to statutes). 


    This conclusion, which we reach in accordance with the Texas Code Construction Act,  is consistent with the results reached by courts in other states with similar UEFJA filing provisions or interpreting other uniform acts.  See also Chiriboga v. State Farm Mut. Auto Ins. Co., 96 S.W.3d 673, 678 (Tex. App.CAustin 2003, no pet.) (holding that, if A[n]one of the mandatory or specific permissive venue provisions apply[,]@ then the general venue rule applies).

    1.         Texas Code Construction Act

    When interpreting a statute, we A>consider the entire act, its nature and object, and the consequences that would follow from each construction.=@  Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex. 1999) (quoting Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991)).  In construing the State=s venue provisions with the UEFJA, we must presume the Legislature intended both chapters of the Code to be effective and further intended a just and reasonable result.  See Tex. Gov=t Code Ann. ' 311.021 (2) (3) (Vernon 2005).  The result we reach today achieves these ends.

    Texas law provides more than one method to present an order or judgment from another state to a Texas court for enforcement under the full faith and credit provision of the United States Constitution.  Bryant v. Shields, Britton & Fraser, 390 S.W.2d 836, 841 (Tex. App.CDallas 1996, writ denied) (citing Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996)).  A judgment creditor may file the foreign judgment with the clerk of the court as provided in section 35.003.  Tex. Civ. Prac. & Rem. Code Ann. ' 35.003 (Vernon 2005). Alternatively, the creditor may bring an action to enforce the judgment.  Id. ' 35.008.   These are two routes to the same end, i.e., that of Texas recognition of the foreign judgment.  And as we have previously observed, the latter method Ahas the same character as any other civil proceeding . . . .@  Brown v. Lanier Worldwide, Inc., 124 S.W.3d 883, 902 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  Consequently, a defendant may challenge venue in the enforcement action just as in any other civil proceeding.  See Tex. R. Civ. P. 86. 


    It would therefore be inconsistent to hold that, by electing the procedure set forth in section 35.003, a judgment creditor could deprive the debtor of the opportunity he would otherwise possess to challenge the creditor=s choice of venue.  See id.; cf. Fleming v. Ahumada, 193 S.W.3d 704, 712 (Tex. App.CCorpus Christi 2006, no pet.) (AWe will not endorse an interpretation of section 15.012 that creates a loophole for parties to circumvent the venue statutes in order to litigate their claims any place they choose.@).  In addition, such an approach cannot be harmonized with the purposes of the UEFJA we have previously enumerated, for it would alter the rights of the parties, enlarging the rights of foreign-judgment creditors beyond the rights of the holders of Texas judgments.  And finally, such a result would be inconsistent with section 311.028 of the Code Construction Act, which requires us to construe a uniform act Ato effect its general purpose to make uniform the law of those states that enact it.@  Tex. Gov=t Code Ann. ' 311.028 (Vernon 2005).  We therefore construe section 35.003 of the UEFJA in a manner that is consistent with section 35.008 of the same Act, with the venue provisions of the same Code, and with the laws of our sister states.

    2.         Other States Considering Venue for UEFJA Filings

    a.         Oklahoma

    In Garrett v. Okla. Panhandle State Univ., the Oklahoma Court of Civil Appeals held the general venue statutes applied to Oklahoma=s UEFJA unless, as was found in the case before the court, a particular venue statute applied.  156 P.3d 48, 51 (Okla. Civ. App. 2006), cert. denied, BU.S.B, 127 S. Ct. 2980 (2007).  In Garrett, the judgment debtor replied to the filing of a Texas judgment by filing a motion to transfer venue.  Garrett, 156 P.3d at 49.  The judgment creditor Aresponded that he was not filing a petition and that venue was not relevant.@  Id. at 50.  As in the present case, the creditor argued that A[t]he Uniform Enforcement of Foreign Judgment Act stated he could file his judgment in any county, and he had followed the procedures set forth.@  The trial court rejected that argument, granted the motion, and the Oklahoma appellate court affirmed.  In reaching its conclusions, the Oklahoma court began its analysis with the Uniform Act. 

    Oklahoma=s UEFJA is substantively similar to Texas=s, permitting filing of a foreign judgment A>in the office of the court clerk of any county of this state.=@  See id. at 50 n.1 (quoting Okla. Stat. tit. 12, ' 721 (2001)).  The venue provision in question required an A>action against a public officer for an act done by him in virtue, or under color of his office, or for neglect of his official duties=@ to A>be brought in the county where the cause, or some part thereof arose.=@  See id. at 50 n.2 (quoting Okla. Stat. tit. 12,  ' 133 (2001)).  Citing Oklahoma=s analog to section 35.003(c), the court observed, ARegistering a foreign judgment in some cases may bring a judgment debtor into court for litigation purposes . . . . Consequently, venue becomes an important legal right that is not embedded in the Act itself.@  Id. at 50 (citing Okla. Stat. tit. 12,  ' 721 (2001)).  The  court also referred to the Apossible expense and inconvenience [to the judgment debtor] of challenging an action hundreds of miles from home.@  Id. (citing Ex parte Wells, 567 So. 2d 388 (Ala. Civ. App. 1990)).  This concern is necessarily of even greater significance in Texas, which is nearly four times the size of Oklahoma.  We see no reason to conclude that Texas legislators did not share this concern.

    b.         Georgia

    Cherwood, Inc. v. Marlin Leasing Corp. involved a UEFJA provision virtually identical to section 35.003(a) and a general venue provision of the Georgia Constitution that establishes venue for Acivil cases.@  601 S.E.2d 356, 357 (Ga. Ct. App. 2004) (quoting Ga. Const. art. VI, ' 2, & VI. (1983)).  As here, the Georgia Court of Appeals began with its Uniform Enforcement of Foreign Judgments statute and rejected an argument similar to Grossman=s argument:

    We have characterized the Uniform Act as a Asummary procedure@ for endowing a filed foreign judgment with the same effect as a judgment of the court in which it is filed.  [The judgment creditor]  argues that the Uniform Act therefore provides for a procedure for filing and not the commencement of a civil action subject to the general venue provision. We reject this argument because a filing under the Uniform Act may become subject to certain civil proceedings.  For instance, the filing of the foreign judgment may be attacked by questioning the personal jurisdiction of the foreign court.  Such a challenge would necessarily be adjudicated in the court where the filing under the Uniform Act was made, showing the court is more than simply a depository for recording the foreign judgment.

     

    Id. (citations omitted).

    The court then held that a filing under the UEFJA must comply with the general venue requirements of the Georgia Constitution.  Id.  To rule otherwise, the court concluded,  would allow forum shopping by plaintiffs and would present defendants wishing to challenge a foreign judgment with geographical inconveniences not faced by other defendants.  Id. at 357B58.[5]  Because of its greater size, the same difficulties are presented in Texas to an even greater degree.

    c.         Alabama

    In Ex parte Wells, the Alabama Court of Civil Appeals held its general venue provision applied to filing foreign judgments under the UEFJA.  567 So. 2d 388, 390 (Ala. Civ. App. 1990). The court began its analysis with its UEFJA, which provides:

    [An authenticated copy of any foreign judgment] may be filed in the office of the clerk of any circuit court of this state. . . . A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner. . . . . 


    Id. at 389B90 (emphasis added).  And the court concluded, AIn our review, we find that there is no restrictive language in our uniform act to suggest that the legislature intended that the general venue statute should not apply.@  Id. at 389.

    The Wells court further stated that permitting venue in a county having no connection to the judgment debtor would grant such judgments Asuper status@ and  Acould cause a resident defendant, who may not have been afforded procedural due process in the foreign state, the possible inconvenience and expense of defending an action hundreds of miles from his/her county of residence.@  Id. at 389B90.  Here, too, the potential inconvenience to Texas judgment debtors is magnified by our State=s much greater size.

    3.         Other Uniform Act Interpretations

    a.         Florida: Uniform Foreign-Money Judgments Act

    In Society of Lloyd=s v. Sumerel, the federal district court for the Middle District of Florida related that the foreign-judgment creditor originally filed in Ohio, and therefore cited Ohio=s version of the Uniform Foreign Money-Judgments Recognition Act.  No. 2:06-cv-329-TfM-29-DNF, 2007 WL 2114381, at *4 (M.D. Fla. July 20, 2007).  Because the defendant had relocated to Florida, venue in Ohio was no longer proper, and the case was transferred to Florida.  Id.  The Sumerel court held that the statute of limitations was tolled when the judgment creditor filed the foreign judgment,  Ano matter how >wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.=@  It would similarly seem that a judgment creditor under the UEFJA could toll limitations governing enforcement by filing the judgment in any court of competent jurisdiction, regardless of whether venue is proper in that county or court;  thus, the ability to file the judgment in Aany@ Texas court of competent jurisdiction is not rendered meaningless simply because the general venue statutes also apply.

    b.         Kansas: Uniform Child-Custody Jurisdiction and Enforcement Act

    In re Rumsey was an attorney discipline proceeding.  71 P.3d 1150, 1159 (Kan. 2003).  There, the Kansas Supreme Court stated that the Uniform Child-Custody Jurisdiction and Enforcement Act Aaddresses jurisdiction for Kansas courts.  It does not address the determination of venue between the state=s district courts.@  Id.  In the case before it, an attorney told a client that her divorce proceedings would have to be filed in the county where the client=s children previously resided rather than the county closer to the client=s work and home.  Id.  The court upheld the Disciplinary Administrator=s conclusion that the attorney violated Kansas Rule of Professional Conduct  1.1 by failing to provide competent representation to a client.  Id.

    4.         Contrary Authority

    To controvert the precedential holdings of other states, Grossman directs this court=s attention to Moncrief v. Harvey. No. 05-90-01116-CV, 1991 WL 258684, at *2 (Tex. App.CDallas Nov. 26, 1991, writ denied) (not designated for publication).  In Moncrief, the Fifth Court of Appeals observed that venue is a pretrial matter referring to the geographical location of a suit and signifying the county in which a plaintiff has the legal right to institute and maintain an action.  Id.  The court noted that a challenge to venue can be waived, and stated that the judgment debtors had waived any venue complaints by appearing in the foreign state=s courts.  Id.  In sum, the court rejected the judgment debtors= use of Texas law to challenge venue in Dallas because the debtors did not originally use Wyoming law to challenge venue in Wyoming.

    But there is no reason to suppose that the judgment debtors could have predicted the need to challenge Dallas venue in the Wyoming court at the time the petition was originally filed.  And under the reasoning employed in Moncrief, it is difficult to imagine how the debtors could have preserved error.[6]  Moreover, this reasoning has not been followed by any other court, nor do we find it persuasive.  Waiver of a challenge to venue in another forum simply has no bearing on whether the citizens of Texas should be denied the protections of the venue laws enacted by their own legislature.  We therefore decline to follow the holding of Moncrief. 

    We find the reasoning in Munn v. Mohler more persuasive.  251 S.W.2d 801 (Tex. Civ. App.CWaco 1952, no writ) (suit under the Fair Labor Standards Act, 29 U.S.C.A. ' 201, et seq.).  As in this case, the appellee in Munn argued that the AAct upon which his suit was based authorize[d] him to maintain his action in any court of competent jurisdiction and thereby supersede[d] the provisions of the state statutes relating to venue . . . .@ Id. at 802(emphasis added). The Tenth Court of Appeals reasoned that, although the Act permitted an action Ain any court of >competent jurisdiction[,]=@ this meant that the claimant Awas thus authorized to select the forum where he would institute and prosecute such action, either in the Federal or State courts, [but] he was not thereby relieved of the duty to select a court which could properly acquire jurisdiction over the person . . . sued, as well as jurisdiction over the subject matter of his suit.@  Id. at 803.[7] Moreover, the court rejected the argument that Athe intended purpose of the Federal Act was to supersede the provisions of any statute relating to venue of civil actions or that the legal effect thereof was to deprive an inhabitant of Texas of his right to be sued in the county of his domicile . . . .@  Id.  To the contrary, the court emphasized that:

    The Texas courts have held repeatedly and consistently that the legal right of a defendant to be sued in the county of his residence is a valuable right of which he may not be deprived unless the case filed against him comes clearly within one of the exceptions found in the venue statute. 

    Id.

    Here, the UEFJA does not clearly indicate the legislature=s intent to exempt the filing of a foreign judgment from the general venue laws of Texas.  Like other states faced with interpretation of the UEFJA, we therefore apply the general venue laws of the state in which the foreign judgment is filed.[8]  

    D.        Application of the General Venue Statute

    Because Grossman failed to overcome Cantu=s venue challenge by showing that venue is proper in Harris County, the burden shifted to Cantu to show that venue is proper in Hidalgo County.  Under the general venue statute, Aall lawsuits shall be brought . . . in the county of defendant=s residence at the time the cause of action accrued if defendant is a natural person.@  Tex. Civ. Prac. & Rem. Code Ann. ' 15.002(a)(2).[9]  In his uncontested affidavit in support of his motion to transfer venue, Cantu stated, AI have continuously resided in Hidalgo County, Texas all of my life but for the dates I attended law school many years ago. . . . All of my assets and business interests have been in and are currently located in Hidalgo County, Texas.@  Although lack of surprise does not form part of our analysis, we note that Grossman was aware that Cantu resided in Hidalgo County at the time of the Florida lawsuit.  At that time, Grossman sought service of  Cantu in McAllen in Hidalgo County, Texas, and in his amended petition, Grossman stated that Cantu Awas and is an attorney maintaining an office in or near McAllen, Texas.@  Thus, any delay in enforcement that was caused by Grossman=s choice to file the judgment in Harris County does not appear to be attributable to Cantu. 


    We conclude that under section 15.002(a)(2) of the Civil Practice and Remedies Code, venue is proper in Hidalgo, not Harris, County.  We therefore hold that the trial court erred in denying Cantu=s motion to transfer venue to Hidalgo County.  Accordingly, we sustain Cantu=s first issue, and we do not reach his second issue.

    IV.  Conclusion

    Having held venue is proper in Hidalgo County, the judgment of the trial court is reversed, and we remand with instructions to transfer the cause to a court of competent jurisdiction in Hidalgo County.

     

     

     

     

    /s/        Charles Seymore

    Justice

     

     

    Judgment rendered and Majority and Dissenting Opinions filed January 29, 2008

     

    Panel consists of Justices Frost, Seymore, and Guzman. (Frost, J., dissenting).


    [1]  The record does not indicate that Cantu appealed the judgment awarding attorneys= fees and costs.

    [2]  See Tex. Civ. Prac. & Rem. Code Ann. '' 35.002, 35.003 (Vernon 1997).

    [3]  The trial court=s written order denying the motion to transfer venue is not part of the record on appeal.  Grossman, however, concedes the trial court entered such an order.

    [4]  A court of competent jurisdiction is one having authority over the defendant, authority over the subject matter, and power to enter the particular judgment rendered.  State v. Hall, 794 S.W.2d 916, 919 (Tex. App.CHouston [1st Dist.] 1990), aff=d, 829 S.W.2d 184 (Tex. Crim. App. 1992).

    [5]  Grossman argues Cherwood is not persuasive because the Georgia general venue provision is constitutionally, rather than statutorily, based.  What is significant about Cherwood, however, is that the Georgia court=s reasoning rests on the availability of a means for defendants to attack the judgments.  Cherwood, Inc., 601 S.E.2d at 357. In Schwartz v. F.M.I. Props. Corp., this court similarly recognized the federal constitutional requirement of providing a means for a judgment debtor to challenge the judgment and observed the UEFJA could not be read as a pure registration statute.  714 S.W.2d 97, 100 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.).

    [6]  For example, if the judgment debtor was the plaintiff in the original action but lost a counterclaim, the reasoning in Moncrief would dictate the conclusion that, having chosen the original forum, the debtor would be unable to preserve a challenge to any Texas venue.

    [7]  Fair Labor Standards Act of 1938, 29 U.S.C.A. ' 216(b), 52 Stat. 1069; 75 Stat. 74 (AAn action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.@), amended by Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, sec. 6(d)(1), 88 Stat. 55 (which substituted Amaintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction@ for Amaintained in any court of competent jurisdiction. . . .@).

    [8]  Our dissenting colleague complains that this court Ashould not adopt a statutory interpretation of the general venue statute that frustrates both the legislature=s desire for uniformity among states and the dominant purpose of the Uniform Act.@  On the contrary, our disposition is consistent with every State that has ruled on this very question. 

    [9]  The rule is subject to certain exceptions and provisions not relevant here.