Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ward v. Hawkins

Court of Appeals of Texas, Fifth District, Dallas

December 16, 2013

Lloyd WARD, Lloyd Ward, P.C., Lloyd Ward & Associates, and Lloyd Ward Group, P.C., Appellants
v.
Kelly HAWKINS, Appellee.

Rehearing Overruled Jan. 17, 2014.

Page 816

[Copyrighted Material Omitted]

Page 817

[Copyrighted Material Omitted]

Page 818

[Copyrighted Material Omitted]

Page 819

Christopher M. Weil, Weil & Petrocchi, P.C., Anthony A. Petrocchi, Teresa M. Robbins, Dallas, for Appellants.

Charles William Branham III, Branham Law Group, LLP, Dallas, for Appellee.

Before FILLMORE, MYERS, and LEWIS Justices.

OPINION

FILLMORE Justice.

Appellants Lloyd Ward, Lloyd Ward, P.C, Lloyd Ward & Associates, and Lloyd Ward Group, P.C. appeal the denial of their motion to vacate a Kansas default judgment in favor of appellee Kelly Hawkins. In three issues, appellants contend the trial court (1) abused its discretion by not granting their motion to vacate the default judgment because the Kansas court lacked personal jurisdiction over appellants, (2) erred if it did not consider appellants' evidence that Kansas did not have jurisdiction over each appellant, and (3) erred if it did not apply Texas law to jurisdictional facts with regard to enforceability of the Kansas default judgment. We affirm the trial court's denial of appellants' motion to vacate the Kansas default judgment.

Procedural Background

Appellee obtained a default judgment against appellants in a district court of Marion County, Kansas. Appellee filed the lawsuit underlying this appeal in a district court of Dallas County, Texas, to enforce the Kansas judgment. Appellants filed a motion to vacate or stay enforcement of the Kansas judgment based on their contention that Kansas lacked personal jurisdiction over them. Appellants' motion was overruled by operation of law. Appellants appealed the denial of their motion to vacate the Kansas judgment.

Application of Law to Jurisdictional Facts

In their third issue, appellants state the trial court erred if it did not apply Texas law to the jurisdictional facts " during its consideration" of enforceability of the Kansas default judgment. Appellants argue the trial court erred if it did not apply Texas law in considering admitted evidence concerning conduct by which personal jurisdiction might be acquired over a nonresident party.

In support of their argument of error by the trial court if it did not apply Texas law to the determination of enforceability of the Kansas default judgment, appellants cite the " Client Services Agreement— Savings and Debt Negotiation" (Client Services Agreement) between appellee and the Lloyd Ward Group, P.C. Appellants argue it was the intention of the Lloyd Ward Group, P.C. and appellee " in their written contract" that Texas law would apply. The paragraph of the Client Services Agreement entitled " Arbitration of Dispute" provides in pertinent part:

Client understands that this agreement is performable in Collin County, Texas and hereby consents to venue and jurisdiction in Collin County, Texas under Texas state law for any dispute arising hereunder. The parties will submit all disputes arising under or related to this Agreement to binding arbitration according to the then prevailing rules and procedures of the American Arbitration Association. Texas law will govern the rights and obligations of the parties with respect to the matters in controversy.

According to appellants, appellee did not plead or prove Kansas law, provide authority as to why Kansas law is applicable to the Texas court's jurisdictional inquiry, or

Page 820

give notice to appellants of appellee's intention to rely on Kansas law. Texas rule of evidence 202 provides:

A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other state, territory, or jurisdiction of the United States. A party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. Judicial notice of such matters may be taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.

TEX.R. EVID. 202.

The record does not contain a motion by appellee, written or verbal, requesting that the trial court apply or take judicial notice of Kansas law. We find nothing in this record to demonstrate appellee followed the procedures required by Texas law with regard to application of Kansas law. When a party does not provide a court with proof of laws of another state by judicial notice or otherwise, then the laws are presumed to be the same as that of Texas. See Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 720 (Tex.App.-Dallas 2004, no pet.) (" [I]n the absence of a request to take judicial notice or proper proof that the law of another state is applicable, Texas courts presume a sister state's laws are the same as Texas law." ); Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 487 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (when party does not provide a court with proof of laws of another state by judicial notice or otherwise, the laws are presumed to be the same as that of Texas); see also Colvin v. Colvin, 291 S.W.3d 508, 514 (Tex.App.-Tyler 2009, no pet.) Therefore, under these circumstances, a trial court would appropriately apply Texas law to the determination of the propriety of the Kansas's court exercising jurisdiction over appellants.[1]

The Kansas default judgment provides that " [b]y defaulting, each of the factual allegations and conclusions contained in [appellee's] Petition and the Motion for Default Judgment are deemed admitted by [appellants]." According to appellants, there is no Texas law comparable to Kansas law " described by Appellee, which would permit a plaintiff's pleadings, on a defendant's default, to be deemed admitted." [2] However, Texas

Page 821

case law specifically provides that once a default judgment is taken on an unliquidated claim, all allegations of fact set forth in the petition are deemed admitted, except the amount of damages. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984); Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex.App.-Dallas 2005, no pet.) (" When a default judgment is taken against non-answering defendants on an unliquidated claim, all allegations of fact contained in the petition are deemed admitted, except for the amount of damages." ); see also Tex.R. Civ. P. 243.[3]

Appellants contend if the trial court did not apply Texas law to the determination of personal jurisdiction, it erred. However, nothing in the record demonstrates the trial court did not apply Texas law to this determination. We resolve appellants' third issue against them.

Denial of Motion to Vacate Kansas Default Judgment

In their first issue, appellants assert the Kansas default judgment was not entitled to full faith and credit because the Kansas court never acquired personal jurisdiction over appellants, and, therefore, the trial court erred by not granting appellants' motion set aside the Kansas default judgment.

Full Faith and Credit

Under the United States Constitution, each state must give a final judgment of a sister state the same force and effect the judgment would be entitled to in the state in which it was rendered. U.S. CONST. art. IV, § 1. A properly proven foreign judgment must be recognized and given effect in a Texas court coextensive with that to which it is entitled in the rendering state. Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.1992).

Enforcement of foreign judgments in Texas is governed by the Uniform Enforcement of Foreign Judgments Act (UEFJA). TEX. CIV. PRAC. & REM.CODE ANN. §§ 35.001-.008 (West 2008 & Supp.2013). When a judgment creditor files an authenticated copy of a foreign judgment pursuant to the UEFJA, a prima facie case for its enforcement is presented. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975) (quoting Garman v. Reynolds, 284 S.W.2d 262, 264 (Tex.Civ.App.-Fort Worth 1955, writ ref'd)); see also Russo v. Dear, 105 S.W.3d 43, 46 (Tex.App.-Dallas 2003, pet. denied) (party seeking to enforce a foreign judgment has initial burden to present a judgment that appears on its face to be a final, valid, and subsisting judgment). Under this principle, Texas is required to enforce a valid judgment from another state. See Bard, 839 S.W.2d at 794. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.