Brown's Inc. v. Modern Welding Co.

54 S.W.3d 450, 2001 Tex. App. LEXIS 5287, 2001 WL 878246
CourtCourt of Appeals of Texas
DecidedAugust 2, 2001
Docket13-00-096-CV
StatusPublished
Cited by15 cases

This text of 54 S.W.3d 450 (Brown's Inc. v. Modern Welding Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown's Inc. v. Modern Welding Co., 54 S.W.3d 450, 2001 Tex. App. LEXIS 5287, 2001 WL 878246 (Tex. Ct. App. 2001).

Opinion

OPINION

HINOJOSA, Justice.

Appellant, Brown’s, Inc., appeals from the trial court’s order denying a petition to enforce a judgment that appellant obtained in the state of Washington against appel-lees, Modern Welding Co. and Bud North-ington, and vacating the foreign judgment. In two issues, appellant contends the trial court erred by vacating the judgment and by denying appellant’s petition to enforce the judgment. We affirm.

A. Background

Appellant is located in Redmond, Washington. Appellant sells welding machines. Modern Welding is an industrial equipment supply business located in Egypt, Texas. Northington is a resident of Wharton County, Texas, and is the owner of Modern Welding.

It is undisputed that appellant and ap-pellees entered into a written distributorship agreement on January 8, 1997. Modern Welding is the distributor under the agreement, and “faithful performance” by the distributor is guaranteed by Northing-ton. The agreement contains the following arbitration provision:

DISPUTE RESOLUTION

Any disputes arising from the operation of this agreement or concerning the relationship of the parties will be submitted to binding arbitration, one arbitrator to be appointed by Presiding Judge, King County Superior Court, King County Courthouse, Seattle, WA upon 5 days written notice. Washington law shall apply and arbitrator may award attorney’s fees, costs and arbitrator fees.

A similar arbitration clause was also included in the “Application for Credit & Open Account Agreement” completed by appellees. That clause provides:

Any unresolved controversies which may arise from my use of credit granted shall be submitted to binding arbitration. One arbitrator shall be appointed by Chief Civil Judge, King County Superior Court, Seattle WA upon five days written notice. Washington law shall apply, and Washington jurisdiction is agreed. Arbitrator may award attorney fees, costs and arbitration fees and costs.

Appellant shipped welding equipment to appellees and charged it to the credit line appellees had established with appellant. Appellees were unable to resell any of the equipment. By letter dated April 9, 1997, appellees requested termination of the Agreement. They returned the unsold equipment to appellant. A dispute arose concerning a “restocking fee” charged to appellees’ account.

Appellant invoked its contractual right to arbitration. Appellees concede they received notice of the arbitration hearing. The arbitration hearing was held on March 11, 1998; appellees did not appear. The arbitrator issued an award in favor of appellant. Appellees concede that on March 20, 1998, they received a copy of the arbitration award from the arbitrator, and later received a letter informing them that the award was scheduled to be confirmed. It is undisputed that appellees did not receive personal service of notice of the confirmation proceeding. The award was confirmed by the King County Superior Court on April 17, 1998, resulting in a judgment against appellees in the amount *453 of $10,263.48, pre-judgment interest 2 of $667.13, attorney’s fees of $700.00, and costs of $110.00.

On September 14, 1999, appellant filed a Petition for Domestication and Enforcement of a Foreign Judgment in the 23rd District Court of Wharton County, Texas. Appellees filed a Motion to Vacate Judgment, asserting that the Washington court had not acquired personal jurisdiction over them because (1) they were not personally served with process, and (2) they were not amenable to service of process from Washington because they did not have sufficient minimum contacts with that state. 3 The trial court granted appellees’ motion, and denied appellant’s petition with out specifying a reason. This appeal ensued.

B. Applicable Law

It is well-established that a state must give the final judgment of a sister state the same force and effect to which the judgment would be entitled in the state in which it was rendered. U.S. Const, art. IV, § 1; see also Markham v. Diversified Land & Exploration Co., 973 S.W.2d 437, 439 (Tex.App.—Austin 1998, pet. denied). Texas recognizes two methods of enforcing a foreign judgment: (1) filing under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), which establishes a procedure for enforcing a foreign judgment by merely filing an authenticated copy of the judgment with the clerk of any court in Texas with competent jurisdiction, Tex. Civ. Prac. & Rem. Code Ann. § 35.003 (Vernon 1997); Tri-Steel Structures, Inc. v. Hackman, 883 S.W.2d 391, 393 (Tex.App.—Fort Worth 1994, writ denied); Medical Adm’rs, Inc. v. Koger Props., Inc., 668 S.W.2d 719, 721 (Tex.App.—Houston [1st Dist.] 1983, no writ); and (2) filing a common-law action to enforce the foreign judgment, Lawrence Sys., Inc. v. Superior Feeders, Inc., 880 S.W.2d 203, 206 (Tex.App.—Amarillo 1994, writ denied). Appellant chose to proceed under the UEFJA, which provides:

(a) A copy of a foreign judgment authenticated in accordance with an act of congress or a statute of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state.
(b) The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed.
(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. Piiac. & Rem. Code Ann. § 35.003 (Vernon 1997). Filing a foreign judgment under the UEFJA has the effect of initiating an enforcement proceeding and rendering a final Texas judgment simultaneously. Ba hr v. Rohr, 928 S.W.2d 98,100 (Tex.App.—San Antonio 1996, writ denied); Lawrence Sys., 880 S.W.2d at 208. The filing of a foreign judgment under the UEFJA comprises both the plaintiffs original petition and the final judgment. Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996).

When a judgment creditor introduces a properly authenticated copy of a foreign judgment that appears to be final, valid and subsisting, the burden of establishing why it should not be given full faith *454 and credit shifts to the judgment debtor. Mitchim v. Mitchim,

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54 S.W.3d 450, 2001 Tex. App. LEXIS 5287, 2001 WL 878246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browns-inc-v-modern-welding-co-texapp-2001.