New Hampshire Insurance Company v. Magellan Reinsurance Co. Ltd. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00334-CV
New Hampshire Insurance Company § From the 17th District Court
§ of Tarrant County (17-250215-10)
v.
§ January 10, 2013
Magellan Reinsurance Co. Ltd. § Opinion by Justice Dauphinot
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s final order on New Hampshire Insurance
Company‘s motion for nonrecognition of foreign judgment. It is ordered that the
order of the trial court is affirmed.
It is further ordered that Appellant New Hampshire Insurance Company shall
pay all of the costs of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Ann Dauphinot
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00334-CV
NEW HAMPSHIRE INSURANCE APPELLANT
COMPANY
V.
MAGELLAN REINSURANCE CO. APPELLEE
LTD.
----------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
New Hampshire Insurance Company (NHIC) appeals from the trial court‘s
order denying its motion for nonrecognition of foreign country judgments against it,
which was filed for recognition by Appellee Magellan Reinsurance Co. Ltd. NHIC
challenges the order in three issues, each asserting Magellan‘s noncompliance with
the requirements for recognition of foreign country judgments under the Uniform
1
See Tex. R. App. P. 47.4.
2
Foreign Country Money-Judgment Recognition Act (the Act).2 This appeal requires
us to consider four questions: (1) whether an assessment of costs constitutes a
money judgment; (2) if so, whether that assessment constitutes a final judgment on
the merits for purposes of the Act; (3) if so, whether an award of costs in a ―loser-
pays‖ system is a penalty; and (4) whether the assessments in this case were
properly authenticated. Because we hold that Magellan met the statutory criteria for
recognition of foreign country judgments, we affirm the trial court‘s order.
Background
The Foreign Country Judgments
The instruments filed for recognition resulted from a suit filed in the Turks and
Caicos Islands (TCI), a British overseas territory in the United Kingdom.3 TCI has its
own constitution and court system.4 Its judicial system includes both a Supreme
Court, the court of general original jurisdiction, and a Court of Appeal, a court of
2
Tex. Civ. Prac. & Rem. Code Ann. §§ 36.001–.008 (West 2008).
3
See British Nationality Act, 1981, c. 61, §50(1), sch. 6, available at
http://www.legislation.gov.uk/ukpga/1981/61/contents; British Overseas Territories
Act, 2002, c. 8, § 1, available at
http://www.legislation.gov.uk/ukpga/2002/8/contents.
4
Foreign & Commonwealth Office, The Overseas Territories: Security,
Success and Sustainability, 2012, Cm. 8374, at 14 (U.K.), available at
http://www.official-documents.gov.uk/document/cm83/8374/8374.asp; Her Majesty‘s
Governor‘s Office, The UK in the Turks and Caicos Islands,
http://turksandcaicosislands.fco.gov.uk/en/about-us/uk-in-turks-and-
caicos/overseas-territories.
3
general appellate jurisdiction.5 The final court of appeal for both civil and criminal
cases from TCI is the Judicial Committee of the Privy Council (the Privy Council).6
NHIC filed a winding-up petition against Magellan in TCI. In 2006, the TCI
Supreme Court ruled in favor of NHIC, but on appeal, the Court of Appeal
determined that NHIC was not a creditor of Magellan and therefore did not have
standing to assert its winding-up petition. NHIC appealed to the Privy Council. In a
5
The Turks and Caicos Is. Const., Order 2011, SI 1681, sch. 2, § 21, available
at http://www.legislation.gov.uk/uksi/2011/1681/contents/made; see also Stephen
Kruger, Supreme Courts As Courts of General Original Jurisdiction, 39 Int‘l J. Legal
Info. 51, 54, 59 (2011).
6
Jud. Comm. Practice Direction (PD) 1.1, available at
http://www.jcpc.gov.uk/procedures/practice-directions.html. Historical information
about the Privy Council is given in Jarvis v. Sewall, 40 Barb. 449, 455–56 (N.Y. Gen.
Term. 1863) (describing the Privy Council and stating,
[T]he court of [p]rivy [c]ouncil . . . is composed of the high officers of
state . . . who together compose what is called the ―judicial committee
of the [p]rivy [c]ouncil.‖ It is a court of appeals from judgments
rendered in the colonial courts. . . . It has power to award costs, and
determine who shall pay them, and to direct the manner in which its
judgments in all respects shall be enforced. . . . The only officer having
any functions analogous to that of the clerk of an ordinary court, is an
officer called the registrar, who has the powers and exercises the
duties of both an examiner and master in chancery, and such others as
his majesty, under his sign manual, may appoint.);
See also John deP. Wright, The Judicial Committee of the Privy Council, 10 Green
Bag 2d 363, 364–65 (2007) (describing the history of Canadian appeals to the Privy
Council and describing that body in this way:
The Judicial Committee of the Privy Council was (and is) not a court.
Proceedings did not go to it as ―appeals‖ in the formal sense but as
petitions for justice ―to the foot of the Throne‖. . . . The decisions of the
Committee were not ―judgments,‖ they were ―advice‖ to the Monarch,
and were handed down in the form of an Order In Council.).
4
judgment dated July 15, 2009, the Privy Council held that NHIC did not have
standing to present a winding-up petition against Magellan and recommended that
NHIC‘s appeal be dismissed with costs. On October 15, 2009, the Queen issued an
order approving the judgment, with costs ―to be assessed if not agreed.‖7
Approximately eight months later, on June 18, 2010, the registrar of the Privy
Council issued a taxation certificate. The certificate (which gave an incorrect date
for the Privy Council‘s judgment) stated,
I HEREBY CERTIFY that in pursuance of the Order of . . . the Privy
Council dated the 4th December 2009 the costs of the respondent in
the above appeal has been assessed on the standard basis and the
sum of £48,813.17 (Forty-eight thousand eight hundred and thirteen
pounds and seventeen pence[)] has been allowed.
In a June 21, 2010 letter to Magellan‘s counsel, the costs clerk of the Privy Council8
acknowledged receipt of the ―completed bill of costs‖ from the registrar and attached
the taxation certificate.
The next month, on July 30, 2010, the registrar in the TCI Supreme Court
issued a certificate of taxation stating that
IN PURSUANCE of the Judgement herein of the Court of Appeal
delivered on 8 September, 2006 and the Judgement herein of the Privy
Council delivered on 15 July, 2009 . . .
7
Jarvis, 40 Barb. at 456 (―When an appeal comes before [the Privy Council], it
is referred to the judicial committee, who hear[s] the case and make a report or
recommendation upon which the sovereign makes his decision, and that becomes
the judgment of the court of [p]rivy [c]ouncil.‖).
8
Jud. Comm. PD 8.1 (―The Costs Clerk is an officer in the Registry of the
Judicial Committee who acts under the direction and supervision of the Registrar.‖),
available at http://www.jcpc.gov.uk/procedures/practice-directions.html.
5
I CERTIFY that I have taxed the costs of [Magellan] at the sum of
$141,283.82 as being due and payable by [NHIC] to [Magellan].
These costs assessments from the Privy Council and the TCI court do not expressly
indicate what kind of case the assessments arose out of, what the court‘s holding
was on substantive issues, or who was the successful party.
Filing of Notice of Foreign Judgments
Five months later, in December 2010, Magellan filed a ―Notice of Filing of
Foreign Judgment‖ in a trial court in Tarrant County, Texas. The notice stated that
NHIC was ―hereby notified that on December 29, 2010, [Magellan] filed with [the trial
court] . . . authenticated copies of two judgments . . . for domestication under
Chapters 35 and 36 of the Texas Civil Practice & Remedies Code.‖9
The notice described the two judgments as (1) a judgment rendered on July
30, 2010, by the TCI Supreme Court in the suit between NHIC and Magellan,
awarding Magellan recovery of $141,283.82, and (2) a judgment rendered on June
18, 2010, by the Privy Council, awarding Magellan £48,813.17. These dates
correspond with the dates that the respective cost certificates were issued rather
than the dates of the judgments determining that NHIC did not have standing.
Attached to the notice were copies of the costs assessments, which Magellan
asserted were the judgments it wished to have recognized.
9
Tex. Civ. Prac. & Rem. Code Ann. §§ 35.001–35.008 (West 2008 & Supp.
2012), 36.001–.008.
6
NHIC’s Response
On January 31, 2011, NHIC responded to Magellan‘s notice by filing a motion
for nonrecognition. NHIC first argued that chapter 35 only applies to judgments from
United States states and territories. Regarding recognition under chapter 36, NHIC
argued that Magellan had filed only ―two ‗certificates of taxation,‘ rather than a
judgment on the merits,‖ and that these certificates were not entitled to recognition
as foreign country judgments under the Act. It also asserted that Magellan had not
obtained a judgment in its favor on the merits of a cause of action. NHIC further
argued that the Act ―specifically excludes from its definition of ‗Foreign Country
Judgment‘ a mere judgment for a tax, fine, and/or penalty, which is precisely what
Magellan seeks to domesticate here.‖
Magellan’s Reply
Magellan responded that it had provided the court with two authenticated
foreign country judgments against NHIC and that the judgments were not for taxes.
It did not address whether the judgments were for a penalty. Magellan also asked
the court for an extension of time to provide the court with ―additional documentation
from the respective judicial bodies . . . that will simply affirm that the final judgments
submitted to [the trial court] are not for taxes.‖ The trial court‘s order on the motion
allowed Magellan an additional twenty days to submit ―additional argument,
authorities, and supporting material.‖
Magellan‘s supplemental response attached two affidavits: one from Simon
John Kemp, Magellan‘s attorney in the appeal to the Privy Council, and one from
7
Carlos W. Simons, Magellan‘s attorney in the suit in TCI. Both of these affidavits
had exhibits attached, including letters from the registrars at the TCI Supreme Court
and the Privy Council and copies of procedural rules from those courts.
The Trial Court’s Orders
On July 22, 2011, the trial court entered an order denying NHIC‘s motion for
nonrecognition. On August 9, 2011, the trial court signed a final order denying
NHIC‘s motion for nonrecognition, and this appeal followed.
Uniform Foreign Country Money-Judgment Recognition Act
The Act provides a mechanism by which a judgment creditor under a money
judgment from a foreign country may have that judgment recognized in Texas.
When a foreign country judgment meets the criteria set out in the Act and is granted
recognition under the chapter, the judgment ―is enforceable in the same manner as
a judgment of a sister state that is entitled to full faith and credit.‖10 The Act defines
the term ―foreign country judgment‖ as ―a judgment of a foreign country granting or
denying a sum of money other than a judgment for: (A) taxes, a fine, or other
penalty; or (B) support in a matrimonial or family matter.‖11 A party seeking
recognition of a foreign judgment must file with the court clerk ―[a] copy of a foreign
country judgment authenticated in accordance with an act of congress, a statute of
10
Id. § 36.004.
11
Id. § 36.001.
8
this state, or a treaty or other international convention to which the United States is a
party.‖12
Magellan’s Jurisdictional Challenge
Before we consider NHIC‘s first issue, we address Magellan‘s assertion that
this court lacks subject matter jurisdiction over the appeal because NHIC did not
timely file its notice of appeal. NHIC filed its notice of appeal on August 18, 2011.
Magellan contends that when a foreign country judgment is filed, it acts as both a
petition and a final judgment, and so the time period for filling an appeal began when
Magellan first filed its notice of judgment. It contends that a motion for
nonrecognition acts as a motion for new trial, and so NHIC had until March 31, 2011
at the latest to file its appeal, making NHIC‘s appeal untimely.
Magellan‘s argument derives from the language in section 36.004 stating that
a foreign country money judgment ―is enforceable in the same manner as a
judgment of a sister state that is entitled to full faith and credit.‖ Magellan also relies
on case law holding that when a judgment creditor under a sister state judgment
files the judgment under chapter 35, the judgment ―comprises both a plaintiff‘s
original petition and a final judgment‖ and, when the judgment complies with chapter
35, it becomes enforceable as a Texas judgment on the date it is filed.13 Magellan
12
Id. § 36.0041.
13
Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996).
9
argues that because of the language of section 36.004, this case law applies to
filings for recognition under the Act.
Under the Full Faith and Credit Clause of the United States Constitution,
judicial proceedings from one state must be given full faith and credit in every other
state.14 This clause applies only to sister-state judgments. There is no analogous
constitutional provision requiring United States courts to give full faith and credit to
judgments of foreign countries. But does section 36.004 nevertheless require us to
hold that NHIC missed its notice of appeal deadline? We do not believe it does.
The sentence upon which Magellan relies should not be read out of context.
The rest of that section provides that
[e]xcept 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.15
This section expressly sets out when a judgment becomes conclusive between the
parties:
 when it is a foreign country judgment, defined by statute as one ―granting or
denying a sum of money‖ that is not ―for . . . taxes, a fine, or other penalty; or
. . . support in a matrimonial or family matter‖;16
14
U.S. Const. art. IV, § 1.
15
Tex. Civ. Prac. & Rem. Code Ann. § 36.004.
16
Id. § 36.001(2).
10
 when it meets the requirements of section 36.002, meaning it is a judgment
on the merits of a cause of action and is final and conclusive in the country in
which it was rendered;17 and
 when it is not refused recognition.18
On its face, a judgment must meet all of these prerequisites before it becomes
conclusive and therefore ―enforceable in the same manner as a judgment of a sister
state that is entitled to full faith and credit.‖19 On its face, the Act does not authorize
the enforcement of foreign country judgments unless these statutory requirements
have been met. Thus, because NHIC filed a motion challenging the recognition, the
judgment did not become conclusive between the parties and enforceable until the
trial court granted recognition.20
17
Id. § 36.002.
18
Id. § 36.004.
19
See Presley v. N.V. Masureel Veredeling, 370 S.W.3d 425, 431 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (stating that a foreign country judgment is
enforceable in the same manners as a sister-state judgment under the Act when it is
filed in accord with the Act, notice of the filing is given as provided by the Act, and
the judgment is not otherwise ―refused recognition‖); The Courage Co., L.L.C. v. The
Chemshare Corp., 93 S.W.3d 323, 330 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (stating that a foreign country judgment becomes conclusive when (1)
recognition is not contested or (2) a contest is overruled).
20
See Hernandez v. Seventh Day Adventist Corp., 54 S.W.3d 335, 336–37
(Tex. App.—San Antonio 2001, no pet.); see also Jack H. Brown & Co. v. Nw. Sign
Co., 665 S.W.2d 219, 221–22 (Tex. App.—Dallas 1984, no writ) (holding that
although the statute for enforcement of sister state judgments provides that such
judgments have the same effect as a judgment of the court in which it is filed, it has
that effect only when the statute‘s requirements have been met, and ―[a] judgment
debtor cannot be expected to respond and take such measures as may be available
to him to avoid enforcement of a foreign judgment unless the statutory requirements
have been met‖).
11
In a sur-reply letter brief, Magellan points to Don Docksteader Motors to
support its position.21 It notes that in that case, the Supreme Court said that
because the Act was silent about specific procedures applicable to foreign country
judgment proceedings, the enforcement procedures in chapter 35 should apply, and
therefore the appellate deadline of chapter 35 should apply. Don Docksteader
Motors does not control in this case. As stated in that opinion, at the time of the
litigation in that case, chapter 36 did not provide a procedure for a party to assert
nonrecognition of a foreign country judgment.22 The Supreme Court held that
because the chapter had no such procedure, it would look to chapter 35 for
applicable procedures for enforcement of a foreign country judgment.
Now, of course, chapter 36 does have a procedure for asserting
nonrecognition.23 And for purposes of our case, chapter 36 on its face provides that
a foreign country judgment becomes enforceable like a sister-state judgment when
the judgment meets the requirements of the statute and the trial court has not
refused its recognition.24 So in this case, the foreign country judgments became
conclusive and enforceable when the trial court overruled the motion for
21
Don Docksteader Motors, Ltd. v. Patal Enters., Ltd., 794 S.W.2d 760 (Tex.
1990).
22
Id. at 760.
23
See Tex. Civ. Prac. & Rem. Code § 36.0041–.044.
24
Id. § 36.004.
12
nonrecognition.25 The notice of appeal was filed two days after the trial court‘s order
overruling the motion. The appeal was therefore timely.
We will therefore consider NHIC‘s issues. All of NHIC‘s issues ask this court
to review the trial court‘s construction of statutory provisions and its determination of
the applicability of those provisions. We therefore review the trial court‘s
determination under a de novo standard of review.26
Whether The Costs Assessments Are Judgments On The Merits
NHIC makes two primary arguments under its first issue: (1) the trial court
erred by recognizing the costs assessments because they are not judgments on the
merits of a cause of action asserted by Magellan against NHIC, and (2) the trial
court erred by granting recognition of the costs assessments filed by Magellan
because the assessments were not the actual judgments, were issued by registrars,
and did not dispose of any issues or claims. We address these arguments in that
order.
1. The Act allows for recognition of a judgment in favor of a defendant on a
plaintiff’s cause of action.
Regarding NHIC‘s first argument, we disagree that under the Act, a defendant
may only enforce a judgment under the Act on the defendant‘s own cause of action.
25
See The Courage Co., L.L.C., 93 S.W.3d at 330 (stating that a foreign
country judgment becomes conclusive when (1) recognition is not contested or (2) a
contest is overruled).
26
See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010),
cert. denied, 131 S. Ct. 2903 (U.S. 2011).
13
The Act includes within its application a judgment ―in favor of the defendant on the
merits of the cause of action.‖27 NHIC argues that Magellan cannot meet this
requirement because Magellan did not have a cause of action pending against
NHIC. A defendant on a cause of action is, by definition, defending against the
other party’s cause of action, not its own. A defendant obtains a favorable judgment
if it obtains a judgment in its favor on the plaintiff‘s cause of action, and the language
NHIC relies on simply reflects that fact. Nothing in the Act gives even a hint that it
applies to a judgment for a defendant only when the judgment grants the defendant
affirmative relief on a cross-claim. The ―in favor of the defendant on the merits of
the cause of action‖ language is therefore clearly not referring to the defendant‘s
own cause of action.
NHIC does not argue that a judgment dismissing a plaintiff‘s claims on
standing grounds is not a dismissal on the merits of the plaintiff‘s claim; it argues
only that Magellan did not obtain a judgment on its own cause of action. 28 We
therefore do not consider the question.29 We overrule this part of NHIC‘s first issue.
27
Tex. Civ. Prac. & Rem. Code Ann. § 36.002(a)(2).
28
See Restatement (Second) of Conflict of Laws § 110 cmt. a (1971) (stating
that a judgment is not ―on the merits‖ if it does not involve the substance of the
plaintiff‘s cause of action, and thus a judgment for a defendant is not on the merits if
it is based on, for example, lack of jurisdiction or the plaintiff‘s capacity to sue).
29
Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (stating that
an appellate court cannot reverse a trial court‘s judgment on unassigned error).
14
2. The instruments filed by Magellan are foreign country judgments for the purposes
of the Act.
NHIC‘s second argument under its first issue is that the costs assessments
filed by Magellan are not judgments. NHIC is correct that the instruments filed for
recognition by Magellan were assessments of costs determined by a registrar from
the TCI Supreme Court and by a ―costs judge‖ in the Privy Council rather than by
the panel of justices who determined the substantive issues in NHIC‘s appeal.30
That does not, however, mean that these costs assessments may not be enforced
as judgments.31
The rules relating to costs in the relevant courts are instructive as to how we
should view these costs assessments. The Privy Council‘s procedure rules include
a section on the assessment of costs.32 Costs are assessed by the registrar or by a
30
See, e.g., Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied) (referring to a judgment as ―the final
action taken by a court of competent jurisdiction in disposing of matters properly
before it‖); see also Reaugh v. McCollum Exploration Co., 140 Tex. 322, 325, 167
S.W.2d 727, 728 (1943) (holding that a determination of which party should pay
costs is part of the judgment but that ―[t]he taxing of costs is not an adjudication by
the court as to the correctness of the items taxed‖ and is ―but the ministerial act of
the clerk‖).
31
See, e.g., Doss v. Chambers, 188 S.W. 296, 296 (Tex. Civ. App.—Austin
1916, no writ) (―The general rule in civil cases is that, when an appellant obtains a
judgment in the appellate court deciding the case on its merits in his favor, he also
obtains a judgment against his adversary for all the costs.‖).
32
See, e.g., Jud. Comm. (App. Jurisdiction) R. (JCR), Order 2009, SI 224,
sch., rr 43–52, available at
http://www.legislation.gov.uk/uksi/2009/224/contents/made.
15
costs judge.33 The rules provide that the amount of costs will be inserted into the
court‘s final order.34 If, however, that order is drawn up before the costs assessment
has been completed, then the amount of costs assessed will be certified by the
registrar.35 Magellan submitted evidence in the trial court showing that TCI has a
similar procedural rule.36 And we note that the U.K. Supreme Court, the final court
of appeal for civil cases in the U.K., also provides in its rules that costs may be
assessed after judgment, and this assessment may be done by costs officers. 37
Thus, under the rules of procedure for the respective courts (and other courts in the
33
See, e.g., id. at r 46; Sup. Ct. PD 13 1.1 (providing that costs assessments
in that court are conducted by costs officers, one of which is the senior costs judge
and one of which may be the court‘s registrar), available at
http://www.supremecourt.gov.uk/procedures/practice-directions.html; Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 n.18, 95 S. Ct. 1612,
1616 (1975) (observing that ―[i]t is now customary in England, after litigation of
substantive claims had terminated, to conduct separate hearings before special
‗taxing Masters‘ in order to determine the appropriateness and the size of an award
of counsel fees‖).
34
JCR r 50.
35
Id.
36
With respect to other parts of the U.K., Northern Ireland and Scotland
appear to have similar rules. See R. of the Ct. of Judicature (N. Ir.), 1980, SR
1980/346 (as amended), Ord. 62, r 8(6), available at http://www.courtsni.gov.uk/en-
GB/Publications/court-rules/Pages/default.aspx; Act of Sederunt (R. of the Ct. of
Sess.) 1994, SI 1443, sch. 2, r 42.1, available at
http://www.legislation.gov.uk/uksi/1994/1443/contents/made.
37
See Sup. Ct. R. 2009, SI 1603 (L. 17), r 47–49, available at
http://www.legislation.gov.uk/uksi/2009/1603/contents/made.
16
U.K.), these assessments appear to be made by court order and considered as part
of the judgment.
Neither Magellan nor NHIC provides us with any helpful authority on whether
these costs assessments themselves constitute separate judgments and, if so,
whether they are considered to be determinations on the merits of a cause of action.
Neither do they provide us with authority as to whether, if the costs assessments are
not independent judgments, Magellan had to file both the Privy Council opinion and
the costs assessments in order to enforce its award of costs against NHIC in Texas.
Magellan argues that the Privy Council opinion explains why that court‘s judgment is
in favor of Magellan on the merits of a cause of action, but it does not address
NHIC‘s point—that the costs assessments Magellan sought to enforce as judgments
are not themselves judgments on the merits of a cause of action.
We first note that in the U.K., for purposes of recognizing judgments of other
European Union member states in the U.K., the term ―judgment‖ includes a
―determination of costs or expenses by an officer of the court.‖38 This rule gives
some indication that in the U.K., costs assessments are enforceable as judgments.39
38
See 2001 O.J. (L 12) 16.1.2001, ch. 3, art. 32, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R0044:en:NOT; see
also CPR 74.2(c)(v) (providing rules for the enforcement of foreign judgment in
England and Wales and defining ―judgment‖ to include ―the determination of costs
by an officer of the court‖), available at http://www.justice.gov.uk/courts/procedure-
rules/civil/rules/part74#IDAJR1HC.
39
See Tex. Civ. Prac. & Rem. Code Ann. § 36.002 (―This chapter applies to a
foreign country judgment . . . that is . . . final and conclusive and enforceable where
rendered.‖).
17
Furthermore, our research indicates that across the United States, courts have
routinely granted recognition to these kinds of later-determined costs assessments
as judgments under the Act.40 We follow these courts and hold that these costs
assessments, which were made by order of the Privy Council‘s judgment in
40
See In re Hashim, 213 F.3d 1169, 1170–71, 1172 (9th Cir. 2000) (stating
that an English court had held the Hashims liable for costs in litigation in that court,
that the taxation proceeding to determine the costs and fees was not held until years
later, and that the costs award was entitled to comity); Thomas & Agnes Carvel
Found. v. Carvel, 736 F. Supp. 2d 730, 746 (S.D.N.Y. 2010) (enforcing as
judgments a U.K. court‘s costs assessments, determined after a hearing conducted
by a cost judge); Dresdner Bank AG v. Haque, 161 F. Supp. 2d 259, 261 (S.D.N.Y.
2001) (holding that a German trial court‘s judgment and three awards of cost were
entitled to recognition); Otter Valley Foods, Inc. v. Aliki Foods, LLC, No.
CV094009931, 2010 WL 2573760, at *4 (Conn. Super. Ct. May 21, 2010) (holding
that a Canadian court‘s award of costs was enforceable under Connecticut‘s
Uniform Foreign Money-Judgments Recognition Act); Java Oil Ltd. v. Sullivan, 86
Cal. Rptr. 3d 177, 180, 182 (Cal. Ct. App. 2008) (considering whether to uphold a
trial court‘s recognition of a judgment from Gibraltar that ―indicated the costs were to
be assessed by the Registrar,‖ referring to the registrar‘s two costs assessments as
judgments, and concluding that they were enforceable under the Uniform Foreign
Money-Judgments Recognition Act); Blacklink Transp. Consultants PTY Ltd. v. Von
Summer, 18 Misc. 3d 1113(A), 856 N.Y.S.2d 496, at *1, *6 (N.Y. Sup. Ct. Jan. 9,
2008) (observing that an Australian court assessed costs and attorney‘s fees in an
ancillary proceeding conducted after trial and holding that this assessment was a
judgment entitled to recognition and enforcement); Genujo Lok Beteiligungs GmbH
v. Zorn, 943 A.2d 573, 578 n.6 (Me. 2008) (stating that court orders fixing costs
awarded under judgments each qualified as ―foreign judgments‖ even though they
were not titled ―judgments‖); Hazzledine v. Hazzledine, No. 95-CA-35, 1996 WL
156883, at *3 (Ohio Ct. App. Apr. 5, 1996) (determining that an award of costs in a
family law case in English court was not a judgment for support but was a judgment
for costs and that because it was a judgment granting a sum of money, it was
entitled to enforcement); Desjardins Ducharme v. Hunnewell, 585 N.E.2d 321, 323
(Mass. 1992) (reciting that the Canadian court awarded costs to Desjardins, that the
court of appeals likewise awarded costs, that the clerk of the court of appeal fixed
the costs for the appeal, and that the trial court fixed the costs for the proceedings
from that court, and holding that the costs assessments were enforceable
judgments).
18
connection with disposing of NHIC‘s claims, are enforceable as judgments under the
Act.
This holding acknowledges the process by which costs are awarded in the
U.K. This opinion should not be construed as holding that in every case, a costs
assessment from a foreign country court will be enforceable as a judgment. We
hold only that in this case, under these facts, the costs assessments fall within the
definition of foreign country judgment for purposes of the Act. We overrule NHIC‘s
first issue.
Whether Magellan Properly Authenticated the Costs Assessments
NHIC asks in its second issue whether the affidavits attached to the
supplemental filing and used to authenticate the cost certificates properly
authenticated the certificates. NHIC calls Magellan‘s supplemental filing untimely,
but it does not make any argument about the untimeliness of the filing. It does make
some argument about timeliness in its reply brief,41 although unsupported by any
case law.42 There NHIC contends simply that the supplemental evidence was
untimely and that NHIC did not agree to an extension to gather the type of evidence
filed by Magellan. But even in its reply brief, NHIC does not assert that the trial
court could not consider the supplemental filing and that it was error for the court to
41
See City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986)
(providing that an issue raised for the first time in a reply brief filed on appeal should
not be considered by the court of appeals).
42
See Tex. R. App. P. 38.1(i).
19
do so. We therefore do not consider whether the trial court erred by considering the
supplemental filing. We consider only whether the documents filed by Magellan
were properly authenticated.
To be recognized under the Act, a foreign country judgment must be
authenticated in accordance with (1) an act of Congress; (2) a Texas statute; or (3)
a treaty (or other international convention) to which the United States is a party. 43
NHIC asserts that because Magellan did not identify either an act of Congress or a
treaty or international convention that authenticates the costs assessments, then the
documents could only have been authenticated under Texas law. NHIC then argues
that Magellan did not meet the requirements for authentication under Texas law.
1. Magellan did not have to authenticate the costs assessments using Rule 902.
NHIC first points out that Magellan did not authenticate the judgments in
accordance with evidence rule 902.44 Rule 902 relates to self-authentication of
documents and provides the circumstances under which extrinsic evidence of the
authenticity of a document is not required. A party wishing to admit a foreign
country judgment may follow the procedures set out in that rule. But a party may
also choose to establish the authenticity of a document under rule 901.45 Thus, the
fact that Magellan did not take advantage of the procedure in rule 902 is not
43
Tex. Civ. Prac. & Rem. Code Ann. § 36.0041.
44
Tex. R. Evid. 902.
45
Tex. R. Evid. 901.
20
determinative of whether the judgments were properly authenticated because
Magellan could have properly authenticated the judgments in accordance with rule
901.
Rule 901 provides that if evidence must be authenticated prior to its
admission, this requirement ―is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.‖46 The rule then provides a
nonexclusive list of means by which evidence may be authenticated.47 This list
includes testimony of a witness with knowledge ―that a matter is what it is claimed to
be‖; with respect to public records, evidence that a publicly-filed record is from the
public office where items of this nature are kept; and any other method of
authentication provided by statute.48 We consider whether Magellan produced
evidence sufficient to support a finding that the judgments are what Magellan
claimed them to be—costs assessments from the Privy Council and the TCI
Supreme Court.
2. The affidavits did not need to contain jurats.
NHIC argues that the evidence filed with the supplemental filing could not
authenticate the costs assessments because the instruments from Kemp and
Simons did not meet the requirements for affidavits. We disagree.
46
Tex. R. Evid. 901(a).
47
Tex. R. Evid. 901(b).
48
Id.
21
Under the part of the government code relating to the construction of laws, the
legislature has defined the term ―affidavit‖ to mean ―a statement in writing of a fact or
facts signed by the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his seal of office.‖ 49
NHIC cites a 2001 Waco Court of Appeals case for the proposition that an affidavit
that does not contain a jurat50 is not an affidavit.51 NHIC argues that the instruments
from Kemp and Simons do not contain jurats and, therefore, they are not affidavits.
The Supreme Court of Texas, however, has recently held that for satisfying
the government code‘s definition of ―affidavit,‖ while the record must show that a
purported affidavit was sworn to by the affiant, a jurat is not required. 52 Rather,
―[w]hen a purported affidavit lacks a jurat, other evidence must show that it was
sworn to before an authorized officer.‖53 If the record ―lacks any indication that a
purported affidavit was sworn to by the affiant, however, the written statement is not
an affidavit under the [g]overnment [c]ode.‖54 Mansions in the Forest was a
49
Tex. Gov‘t Code Ann. § 312.011 (West 2005).
50
See Mansions in the Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314,
316 (Tex. 2012) (―A jurat is a certification by an authorized officer, stating that the
writing was sworn to before the officer.‖)
51
See Guinn v. Bosque Cnty., 58 S.W.3d 194, 198 (Tex. App.—Waco 2001,
pet. denied).
52
Mansions in the Forest, 365 S.W.3d at 315.
53
Id. at 317.
54
Id. at 315.
22
summary judgment case, but we see no reason why its holding should not apply to
affidavits in all civil cases.55 Accordingly, the affidavits submitted by Magellan meet
the definition of an affidavit if evidence in the record shows that they were sworn to
before an authorized officer.
Kemp‘s affidavit stated at the top that it was sworn to on March 23, 2011. In
the first paragraph, Kemp stated that he ―do make oath and say as follows.‖ The
end of the document contains Kemp‘s signature as well as a signature of a witness.
The document has a notation stating that it was ―Sworn at 25 Fenchurch Avenue
this 23rd day of March 2011‖ before the witness and contains this statement by the
witness, who is named and identified as a solicitor: ―I certify that I am lawfully
authorised by the laws of the United Kingdom to administer Oaths in the United
Kingdom.‖ This evidence is sufficient to show that Kemp‘s affidavit was sworn to
before an authorized officer.
Simons‘s affidavit also indicates that it was sworn to before an authorized
officer. The end of the document contains Simons‘s signature followed by text
stating that the affidavit was ―SWORN at Providenciales, Turks and Caicos Islands
This 24th day of March, 2011‖ before a named person identified as a ―Commissioner
for Oaths.‖ The affidavit sufficiently indicates that it was sworn to before an
authorized officer.
55
See id. at 318 (disapproving opinions of courts of appeals to the extent that
they have held that (1) a written statement is not an affidavit solely because it lacks
a jurat or (2) the absence of a jurat is a defect of substance that may be raised for
the first time on appeal).
23
We further note that NHIC did not challenge in the trial court the sufficiency of
evidence indicating that the affidavits had been properly sworn to.56 It argued only
that the affidavits did not contain jurats, not that Magellan failed to provide evidence
to otherwise show that the affidavits were sworn to before an authorized officer.
Thus, any complaint about the lack of supporting evidence was not preserved.57
3. The affidavits and exhibits authenticated the costs assessments.
We now consider whether the costs assessments, the affidavits, and the
attached exhibits properly authenticated the costs assessments under rule 901.
With its original filing, Magellan included a copy of the certificate of taxation from the
registrar at the TCI Supreme Court. The document is signed by the registrar and
bears a stamp that reads, ―FILED IN THE SUPREME COURT TURKS & CAICOS
ISLANDS,‖ with the date and time. Magellan also filed a copy of a letter from the
register of the Privy Council, signed by her, stating, ―I HEREBY CERTIFY that . . .
the costs of the respondent in the above appeal has been assessed,‖ and providing
the amount of the costs. Magellan also included a note from the costs clerk at the
Privy Council, stating that she had attached the taxation certificate to her letter.
With its supplemental filing, Magellan included Kemp‘s affidavit in which he
stated that after the Privy Council‘s judgment dismissing the appeal and awarding
56
See id. at 317 (―When a purported affidavit lacks a jurat and a litigant fails to
provide extrinsic evidence to show that it was sworn to before an authorized officer,
the opposing party must object to this error, thereby giving the litigant a chance to
correct the error.‖).
57
See id.
24
costs to Magellan was approved, a costs judge held a hearing to assess costs, and
a costs award was made. Kemp attached as an exhibit to his affidavit a letter from
the registrar of the Privy Council. Kemp stated in his affidavit that he obtained the
letter from the registrar. In the letter, the registrar stated that the certificate of
taxation dated June 18, 2010 ―is a final award of the costs to be paid to Magellan
Reinsurance Company Limited by New Hampshire Insurance Company.‖ The
registrar explained that under the Privy Council‘s procedural rules, if the Privy
Council‘s order does not include the amount of costs, then ―the [r]egistrar certifies
the amount of costs payable by a party.‖ She stated that costs were assessed at a
hearing, that the certificate of costs was final, and that NHIC failed to challenge the
decision on costs although it had fourteen days to do so after the costs assessment
was made.
Kemp also attached as an exhibit procedural rules for practice before the
Privy Council. These rules provide that the Privy Council ―may make such orders as
it considers just in respect of the costs of any appeal‖; that when the Privy Council
has made an order for costs, ―the claim for costs must be submitted to the
[r]egistrar‖; and that ―[t]he [r]egistrar will assess costs . . . and may do so with a
costs judge as an assessor.‖ The rules further provide that ―[t]he amount of any
assessed costs will be inserted in the order . . . but, if that order is drawn up before
the assessment has been completed, the amount assessed will be certified by the
[r]egistrar.‖ Thus, the statements in the registrar‘s letter are supported by these
rules, giving credence to her statements that the registrar certifies the costs when
25
the Privy Council‘s order does not include the costs and adding credibility to
Magellan‘s assertions that the Privy Council costs assessment submitted by
Magellan is in fact what it appears to be.
Magellan also submitted the affidavit of Carlos Simons, Magellan‘s council in
TCI. Simons stated that the amount specified in the certificate of taxation from the
registrar at the TCI Supreme Court were the litigation costs assessed by the
registrar. Simons attached as an exhibit to his affidavit a letter signed by the
registrar at the TCI Supreme Court explaining that the certificate of costs was a final
award of costs to be paid to Magellan by NHIC. Simons also attached a copy of
procedure rules for practice at the TCI Supreme Court. These rules provide that
when the court has ordered a party to recover its costs, the registrar has the power
to assess costs and shall issue a certificate for the costs allowed.
NHIC asserts that the affidavits do not attempt to authenticate the costs
assessments and, citing evidence rule 602,58 that Magellan‘s attorneys have no
personal, first-hand knowledge of the costs assessments and therefore could not
authenticate them. But Magellan‘s attorneys did not offer their affidavits to prove
that the information in the costs assessments were correct. The attorney‘s affidavits
only sought to show that the costs assessments attached to Magellan‘s filing were
what they purported to be—the costs assessments issued by the TCI and Privy
Council registrars—and that the costs assessments were not for ―taxes.‖
58
See Tex. R. Evid. 602.
26
NHIC argues that Kemp‘s affidavit does not show personal knowledge
because he stated that ―[t]he facts and matters deposed herein are true to the best
of my knowledge, information[,] and belief unless stated otherwise.‖ But from the
context of Kemp‘s affidavit, it is clear that when he stated that he obtained from the
Privy Council registrar the letter attached to his affidavit as exhibit 5, he spoke from
personal knowledge of from whom he received the letter. Putting Kemp‘s affidavit
together with the letter that he swore he received from the registrar, along with the
costs assessment itself, which contains a signature of the registrar that appears to
match the signature of the registrar on her letter, the evidence before the trial court
was sufficient to indicate that the Privy Council costs assessment is what Magellan
claimed it to be.59
Regarding Simons‘s affidavit, he stated that ―[t]he facts to which I depose in
this Affidavit are within my own knowledge and are true and correct,‖ and he
supplied facts in his affidavit giving the basis of his knowledge. Simons stated that
he represented Magellan in the litigation in the TCI Supreme Court from which the
costs order and costs assessment arose. Regarding the costs assessment, he
stated, ―Both parties [in litigation] are entitled to be represented at the [costs]
assessment hearing[,] and I can confirm that NHIC‘s TCI counsel . . . was present
and represented NHIC at the assessment hearing from which the TCI Certificate of
59
See Tex. R. Evid. 901(a).
27
Taxation arises.‖ He then referenced a letter that he had attached to his affidavit
from the TCI Supreme Court‘s registrar.
The letter attached to Simons‘s affidavit is a letter bearing the letterhead of the
TCI Supreme Court. The letter, from the TCI court‘s registrar, stated that the
certificate of costs is a final award of costs to be paid by NHIC to Magellan. The
registrar also stated that according to TCI civil procedure rules, NHIC had fourteen
days to challenge the award of costs and did not do so. The evidence from Simons,
together with the costs assessment itself, is sufficient to indicate that the TCI costs
assessment is what Magellan claimed it to be.60
4. The language of the TCI costs assessments does not raise questions about its
authenticity.
Finally under this issue, NHIC argues that from the face of the costs
assessments, it appears that the total costs assessed by TCI combined the costs at
both the TCI appeals and the Privy Council. It contends that ―[b]ecause Magellan
failed to properly authenticate the documents it submitted, the exact process the TCI
courts underwent to assess the costs is unknown, and there is a high likelihood that
domestication of Magellan‘s submission would result in a double recovery.‖
NHIC appears to base its argument on a statement in the TCI costs
assessment that it was made ―IN PURSUANCE of the Judgment herein of the Court
of Appeal delivered on 8 September, 2006 and the Judgment herein of the Privy
Council delivered on 15 July, 2009 and the provisions of Order 62 of the Civil Rules
60
See id.
28
2000.‖ We disagree with NHIC that this language raises a question as to
authenticity of the costs assessments. The language appears only to reflect the
Queen‘s order that ―those charged with administering the Government of the [TCI]
and all others whom it may concern are to ensure that‖ the Privy Council report,
including its award of costs, ―is punctually observed and obeyed.‖ Nothing in the
language of the TCI costs assessment appears to suggest that the costs
assessment included the costs of the Privy Council.
And importantly, whether the amount of the TCI costs assessment was
incorrect is a different question from whether the document filed by Magellan was in
fact the TCI court costs assessment. If NHIC believed that the TCI costs
assessment was incorrect, NHIC had a process to challenge the assessment in the
court that issued it, but it apparently declined to do so. We overrule NHIC‘s second
issue.
Whether the Costs Assessments were Judgments for Penalties
NHIC‘s third and final issue asks whether the costs assessments were merely
judgments for penalties and therefore unenforceable under Texas law. The
definition of ―foreign country judgment‖ in the Act expressly excludes a judgment for
a penalty.61 Accordingly, if the costs awarded to Magellan were assessed as a
penalty, then the assessments were not the type of judgments that can be enforced
under the Act.
61
Tex. Civ. Prac. & Rem. Code Ann. § 36.001(2).
29
As NHIC points out, the U.K. applies the ―loser pays‖ English rule under which
the prevailing party in a suit may recover its attorney‘s fees.62 NHIC contends that
―it is apparent that the sole purpose of the appellate court costs assessments is to
punish NHIC for adverse appellate decisions.‖63 This conclusory statement is not
supported by any citation to authority. The Supreme Court of Texas has said that
―statutory provisions for the recovery of attorney‘s fees are in derogation of the
common law, are penal in nature[,] and must be strictly construed.‖64 That is the
rule in this state, where the common law evolved under the American rule and
therefore an award of attorney‘s fees is in derogation of the common law. But NHIC
has provided us with no authority on which we may base a conclusion that the
English Rule—which is a part of and not in derogation of the common law of the
U.K.—is meant to be penal in nature, and we have found none.65 To the contrary,
62
See 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 382
& n.8 (Tex. 2011) (contrasting the ―American Rule for the award of attorney‘s fees,
under which attorney‘s fees are recoverable in a suit only if permitted by statute or
by contract,‖ with the ―English Rule, in which a court may award attorney‘s fees to
the prevailing party in a suit‖); Java Oil Ltd., 86 Cal. Rptr. 3d at 185 (―The English
rule is that generally the loser must pay the winner‘s attorneys fees.‖).
63
See Smith v. Basham, 227 S.W.2d 853, 857 (Tex. Civ. App.—Dallas 1950)
(defining ―penalty‖ as ―a sum of money of which the law exacts payment by way of
punishment for doing some act that is prohibited, or omitting to do some act that is
required to be done‖), aff’d, 149 Tex. 279, 233 S.W.2d 297 (1950).
64
New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex.
1967).
65
See Tex. R. App. P. 38.1(i).
30
all of our research indicates the contrary and that the U.K.‘s use of the English rule
simply reflects a different public policy decision.66
Furthermore, other courts construing similar statutes have stated that whether
a judgment is penal in nature for purposes of determining whether to recognize a
foreign judgment ―depends upon the question [of] whether its purpose is to punish
an offense against the public justice of the state, or to afford a private remedy to a
person injured by the wrongful act.‖67 NHIC has provided us with nothing from
which we could conclude that costs are assessed under U.K. law for any purpose
66
See, e.g., Carvel, 736 F. Supp. 2d at 749, 750 (stating that ―[c]ommon-law
jurisdictions have different procedural rules, some of which reflect different public
policy choices‖ and that ―[t]he so-called ‗English rule‘ under which a loser pays the
winner‘s attorneys‘ fees, and the usual ‗American rule‘, under which each side bears
its own attorneys‘ fees, reflect such choices‖ and holding that English costs
judgments were not unenforceable) (citation omitted); Erbe Elektromedizin GMBH v.
Canady, 545 F. Supp. 2d 491, 496–97 (W.D. Pa. 2008) (holding that the awarding of
attorney‘s fees in the U.K. was not meant to punish an offense against the public
justice and instead was remedial in nature, aimed at compensating the defendant for
the damages incurred in being compelled to defend against the suit); Fla. Patient’s
Comp. Fund v. Rowe, 472 So. 2d 1145, 1147–48 (Fla. 1985) (noting that the English
rule is not in derogation of English common law), holding modified on other grounds
by Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).
67
See Chase Manhattan Bank, N.A. v. Hoffman, 665 F. Supp. 73, 75 (D.
Mass. 1987) (quoting Huntington v. Attrill, 146 U.S. 657, 673–74, 13 S. Ct. 224, 230
(1892), in deciding whether a foreign money judgment was enforceable under
Massachusetts‘s version of the Uniform Foreign Money-Judgments Recognition
Act); see also Olympus Corp. v. Canady, 962 A.2d 671, 677, 678 (Pa. Super. Ct.
2008) (holding that an award of counsel fees under the English ―loser pays‖ rule was
remedial rather than penal in nature and was therefore enforceable under
Pennsylvania‘s Uniform Foreign Money-Judgments Recognition Act and stating that
―By initiating his complaint in England, under English law and rules of court,
Appellant implicitly acquiesced to an award of counsel fees to the prevailing party‖);
Desjardins Ducharme, 585 N.E.2d at 324 (applying Hoffman to conclude that a
Quebec judgment was not a penalty).
31
other than as part of the remedy afforded to the successful party in litigation, and we
have found no authority supporting NHIC‘s view of U.K. law. Accordingly, we
overrule NHIC‘s third issue.
Conclusion
Having overruled NHIC‘s three issues, we affirm the trial court‘s order.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: January 10, 2013
32