Joe A. Meadors v. Michael Makowski and Donna Makowski

• Court: Court of Appeals of Texas
• Decided: December 15, 2022
• Docket: 13-22-00143-CV
• Status: Published

Opinion

NUMBER 13-22-00143-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOE A. MEADORS, Appellant,

v.

MICHAEL MAKOWSKI AND DONNA MAKOWSKI, Appellees.

On appeal from the 414th District Court of McLennan County, Texas.

OPINION Before Justices Benavides, Hinojosa, and Tijerina Opinion by Justice Benavides

In this debt collection dispute, the parties ask us to determine the meaning of the

term “rendition.” See TEX. CIV. PRAC. & REM. CODE ANN. § 34.001(a) (“If a writ of execution

is not issued within 10 years after the rendition of a judgment . . . , the judgment is

dormant and execution may not be issued on the judgment unless it is revived.”). In December of 2005, the trial court signed a default judgment against appellant,

Joe A. Meadors, and in favor of appellees, Michael Makowski and Donna Makowski.1 In

May of 2006, a final judgment was signed, disposing of the Makowskis’ remaining claims

against other parties. In March of 2016, the Makowskis requested issuance of a writ of

execution to collect on their judgment against Meadors. This, Meadors contends, was too

little, too late, and in 2021, he sought declaratory relief, claiming that the underlying

judgment was dormant, and thus, uncollectable. The Makowskis counterclaimed seeking,

essentially, inverse relief, and both parties filed motions for summary judgment. The trial

court granted the Makowskis’ motion for summary judgment and denied Meadors’s. On

appeal, Meadors asserts that the trial court erred by misinterpreting § 34.001(a) of the

civil practice and remedies code when it ruled on the motions for summary judgment. We

affirm.

I. BACKGROUND2

We begin by discussing the facts outlined above in more depth. On December 16,

2005, the trial court signed a default “FINAL JUDGMENT” against Meadors, awarding the

Makowskis both actual and exemplary damages in the total amount of $156,899.99, along

with post-judgment interest. However, at the time this judgment was signed, the

Makowskis still had claims pending against three co-defendants: the Retlaw Group, Pierre

1 In his brief, counsel for the Makowskis informed this Court that Donna Makowski passed away

on March 12, 2022. As suggested by counsel, we shall resolve this appeal as though she was still living. See TEX. R. APP. P. 7.1(a)(1). 2This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). 2 A. Dionnu, and the Family Fun Center of Waco, Inc.

On December 27, 2005, the Makowskis non-suited their claims against the Retlaw

Group and Dionnu. On May 31, 2006, the trial court signed a default “FINAL JUDGMENT”

against the Family Fun Center of Waco, Inc. Both the December 16, 2005 and the May

31, 2006 orders contained Mother Hubbard clauses and “order[ed] execution to issue.”

On March 24, 2016, the Makowskis requested issuance of a writ of execution on

Meadors. On May 2, 2016, a McClennan County constable returned the writ to the court

nulla bona.3

In 2021, Meadors sought a declaratory judgment prohibiting the Makowskis from

enforcing the 2005 judgment because it was dormant. The Makowskis counterclaimed,

seeking a declaratory judgment that they had timely renewed their judgment against

Meadors and that the judgment was presently enforceable. On December 12, 2021, the

Makowskis moved for summary judgment on their declaratory judgment claim. On

January 3, 2022, Meadors also filed a motion for summary judgment on his declaratory

judgment claim, alleging that judgment was originally rendered against him on December

16, 2005, and that it therefore became dormant in December of 2015. See TEX. CIV. PRAC.

& REM. CODE ANN. § 34.001(a). He also alleged that the Makowskis took no action to

revive it during the two years immediately following its dormancy. See id. § 31.006.

Attached to Meadors’s motion was the writ of execution from 2016 which listed the

judgment date as “December 16, 2005.”

3 “Meaning ‘no goods’ in Latin, nulla bona is a form of return by a sheriff or constable upon an

execution when the judgment debtor has no seizable property within the jurisdiction.” Gillet v. ZUPT, LLC, 523 S.W.3d 749, 754 n.2 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Nulla Bona, BLACK’S LAW DICTIONARY (10th ed. 2014)). 3 The court granted the Makowskis’ motion for summary judgment and denied

Meadors’s motion. This appeal followed.

II. STANDARD OF REVIEW & APPLICABLE LAW

We review de novo a trial court’s decision to grant summary judgment. Lujan v.

Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “Summary judgment is appropriate only

when there are no disputed issues of material fact and the moving party is entitled to

judgment as a matter of law.” Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252

(Tex. 2002). When, as here, the parties file competing motions for summary judgment,

and the trial court granted one while denying the other, “we review the summary judgment

evidence presented by both sides and render the judgment that the trial court should have

rendered.” See Trial v. Dragon, 593 S.W.3d 313, 316–17 (Tex. 2019).

Judgments obtained are generally enforceable by execution “or other appropriate

process.” TEX. R. CIV. P. 621. However, “[i]f a writ of execution is not issued within 10

years after the rendition of a judgment of a court of record or a justice court, the judgment

is dormant and execution may not be issued on the judgment unless it is revived.” TEX.

CIV. PRAC. & REM. CODE ANN. § 34.001(a). “A dormant judgment may be revived by scire

facias or by an action of debt brought not later than the second anniversary of the date

that the judgment becomes dormant.” Id. § 31.006.

III. ANALYSIS

Here, the parties do not dispute the facts. Instead, they dispute what constitutes

“rendition” for purposes of § 34.001. See id. § 34.001(a). Meadors argues that the partial

judgment against him in December 2005 was a “rendition,” and thus, the writ of execution

4 obtained by the Makowskis in March of 2016 was untimely. The Makowskis counter that

“rendition” did not occur until the judgment became final in May of 2006, and

consequently, the 2016 writ was timely.

We review issues of statutory interpretation de novo. Metro. Transit Auth. of Harris

Cnty. v. Carr, 616 S.W.3d 659, 660 (Tex. App.—Houston [14th Dist.] 2021, no pet.). When

a statute contains an undefined term, we typically give the term its ordinary meaning. Sw.

Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016). “However, we will not give an

undefined term a meaning that is out of harmony or inconsistent with other terms in the

statute.” State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013). “[I]f a

different, more limited, or precise definition is apparent from the term’s use in the context

of the statute, we apply that meaning.” In re Hall, 286 S.W.3d 925, 929 (Tex. 2009) (orig.

proceeding). “Therefore, when an undefined term has multiple common meanings, the

definition most consistent within the context of the statute’s scheme applies.” $1,760.00

in U.S. Currency, 406 S.W.3d at 180–81.

The term “rendition” is not defined in § 34.001. See TEX. CIV. PRAC. & REM. CODE

ANN. § 34.001. To determine a term’s common and ordinary meaning, “we look to a wide

variety of sources, including dictionary definitions, treatises and commentaries, . . . prior

constructions of the word in other contexts, the use and definitions of the word in other

statutes and ordinances, and the use of the words in our rules of evidence and

procedure.” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014).

Black’s Law Dictionary defines the term “rendition” as “[t]he action of making,

delivering, or giving out, such as a legal decision; esp., the filing of a court order with the

5 clerk of court.” Rendition, BLACK’S LAW DICTIONARY (11th ed. 2019). The Supreme Court

of Texas has previously explained that the “rendition of judgment is a present act, either

by spoken word or signed memorandum, which decides the issues upon which the ruling

is made.” S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam). A trial

court’s pronouncement does not “constitute a rendition of judgment if essential issues

remain pending when the pronouncement is made.” McShane v. McShane, 556 S.W.3d

436, 442 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); see In re L.A.-K, 596 S.W.3d

387, 394 (Tex. App.—El Paso 2020, no pet.).

The supreme court has also construed the word “rendition” as used in another

provision of the civil practice and remedies code to mean the signing of a final judgment.

See Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545, 548 (Tex. 1991) (per curiam). Section

65.014(a) provides that “an injunction to stay execution of a valid judgment may not be

granted more than one year after the date on which the judgment was rendered,” unless

the debtor is able to establish fraud or false promises or some other “equitable matter or

defense arises after the rendition of the judgment.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 65.014(a). However, execution generally may not issue until “the expiration of thirty

days from the time a final judgment is signed.” TEX. R. CIV. P. 627. In analyzing these two

provisions together, the supreme court concluded as follows:

Obviously, a writ of execution will not issue until after a final and appealable judgment is signed. Consequently, since a writ of execution will not issue until after a final and appealable judgment is signed, the statute of limitations under 65.014 for granting an injunction to stay execution of a valid judgment does not begin to accrue until a final and appealable judgment is signed. Since there was no final and appealable judgment in this cause, Guarantors’ right to injunctive relief to stay execution of the judgment was not barred by the statute of limitations under section 65.014.

6 Hood, 815 S.W.2d at 548. We hold that the supreme court’s reasoning in Hood extends

to this case. Because a writ of execution cannot be issued until a final judgment is signed,

TEX. R. CIV. P. 627, and because an interlocutory judgment can be modified or vacated

at any time, see Fruehauf Corp. v. Carillo, 848 S.W.2d 83, 84 (Tex. 1993), we conclude

that the term rendition as used in § 34.001 refers to the rendition of a final judgment.

This begs the question, though, of which judgment was final and appealable.

Meadors asserts that “a very strong argument could be made that the December 15, 2005

judgment actually is a final judgment” because it orders execution to issue and it contains

a Mother Hubbard clause (emphasis omitted). Neither of these arguments is persuasive.

First, Mother Hubbard clauses were disavowed in Lehmann, and the supreme court

instructed that the language, “all relief not granted is denied,” “does not indicate that a

judgment rendered without a conventional trial is final for purposes of appeal.” Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 203–04 (Tex. 2001). And second, “[w]e cannot

conclude that language permitting execution ‘unequivocally express[es]’ finality in the

absence of a judgment that actually disposes of all parties and all claims.” In re Burlington

Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (quoting

Lehmann, 39 S.W.3d at 200). The December 26, 2005 judgment did not contain language

expressing finality to all claims and parties, and the record indicates that it did not actually

dispose of all claims and parties. The December judgment merely disposed of the

Makowskis’ claims against Meadors while the Makowskis’ claims against other parties

remained pending. Thus, it was an interlocutory judgment. See Farm Bureau Cnty. Mut.

Ins. V. Rogers, 455 S.W.3d 161, 163 (Tex. 2015).

7 A trial court’s interlocutory orders merge into its final judgment. Bonsmara Nat.

Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020).

Here, when the trial court signed the order that finally disposed of all claims and all parties,

it necessarily replaced its December 2005 order disposing of the Makowskis’ claims

against Meadors with the May 2006 order. See Roccaforte v. Jefferson County, 341

S.W.3d 919, 924 (Tex. 2011). Thus, the “rendition of judgment” in this case was the final,

appealable order that resolved all the issues in the case, not the interlocutory order

disposing only of the Makowskis’ claims against Meadors. See TEX. CIV. PRAC. & REM.

CODE ANN. § 34.001(a); Hood, 815 S.W.2d at 548. And therefore, the deadline to serve a

writ of execution in this case can be traced back to May 2006, not December 2005. See

TEX. CIV. PRAC. & REM. CODE ANN. § 34.001(a).

Meadors cites to Ware v. Everest Group, L.L.C. in support of his claim that

rendition occurs regardless of a judgment’s finality. See 238 S.W.3d 855 (Tex. App.—

Dallas 2007, pet. denied). In Ware, the Dallas Court of Appeals examined whether a

foreign judgment was rendered on the date it was filed in a Texas court, or when the clerk

was able to issue execution on the judgment. Id. at 863–64. But to the extent that Ware

is apposite here, it does not support Meadors’s position. Indeed, the Dallas Court of

Appeals ultimately reached the conclusion that “the filing [of a foreign judgment] has the

effect of initiating an enforcement proceeding and instantly rendering a final Texas

judgment simultaneously.” Id. at 864 (citing Dear v. Russo, 973 S.W.2d 445, 446 (Tex.

App.—Dallas 1998, no pet.)) (emphasis added). The Dallas Court of Appeals held that

this is when the § 34.001 clock started, not when the clerk later obtained the authority to

8 issue a writ of execution. Id. at 864.

Embedded within this issue, Meadors also raises what he refers to as “practical

considerations” and what the Makowskis refer to as a “parade of horribles.” Regardless

of the nomenclature, in essential terms, Meadors argues that this Court’s decision will

negatively impact the real estate market because title examiners and the like will not be

able to exclusively rely on the date provided on an abstract of a judgment to determine

whether a lien still exists. See TEX. PROP. CODE ANN. § 52.003 (requiring an abstract of a

judgment to show, among other things, “the date on which the judgment was rendered”);

id. § 52.006 (explaining that, generally, “a judgment lien continues for 10 years following

the date of recording and indexing the abstract, except that if the judgment becomes

dormant during that period the lien ceases to exist”).

The Fifth Circuit has previously held that a final judgment in Texas became

dormant ten years after the judgment was final on appeal. Andrews v. Roadway Exp. Inc.,

473 F.3d 565, 569, 569 n.4 (5th Cir. 2006). An abstract of a judgment need not list when

a judgment became final on appeal. See TEX. PROP. CODE ANN. § 52.003(a). Based on

the Andrews decision and the impact it may have on judgments obtained in federal district

courts in Texas, we certainly hope that title examiners are already looking beyond the

abstract of a judgment to determine the validity of a lien. Even if they are not, requiring a

title examiner to double-check court documents to determine a lien’s validity does not rise

to the level of an absurd result that we must avoid in conducting our statutory

interpretation. See In re E.C., 444 S.W.3d 760, 765 (Tex. App.—Fort Worth 2014, no pet.)

(“[A]n inefficient result is not analogous to an absurd result, which is what we seek to

9 avoid when construing a statute.”). Because the Makowskis complied with § 34.001(a)

within ten years of the rendition of judgment, we conclude the trial court did not err in

granting the Makowskis’ motion for summary judgment and denying Meadors’s motion

for summary judgment.

We overrule this issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES Justice

Delivered and filed on the 15th day of December, 2022.