John Edward Vogt, II and Edward Vogt v. Allen Eugene Walker

• Court: Court of Appeals of Mississippi
• Decided: June 25, 2024
• Docket: 2022-CA-01303-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-01303-COA

JOHN EDWARD VOGT, II AND EDWARD APPELLANTS VOGT

v.

ALLEN EUGENE WALKER APPELLEE

DATE OF JUDGMENT: 12/02/2022 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: JOHN ANDREW HAMMOND ATTORNEY FOR APPELLEE: NATHAN S. FARMER NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 06/25/2024 MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. In 2009, Allen Eugene Walker, a Mississippi resident, was sued in Texas by John

Edward Vogt II and Edward Vogt. In 2012, the Texas court granted two no-answer default

judgments against Walker, who contended he was not served properly. In 2019, Walker filed

a complaint in Mississippi requesting declaratory relief from the “void” judgments and

equitable relief to prevent the Vogts from collecting said judgments. The Vogts contested

the complaint and attempted to collect the 2009 default judgments from the Mississippi court

in a separate action. Walker filed a motion for summary judgment alleging the Texas court

lacked personal jurisdiction when entering the default judgments against Walker, and the

statutory time-bar to enforce the judgment in Mississippi had expired. The Vogts filed a motion to dismiss or for summary judgment. The court entered summary judgments in

Walker’s favor and consolidated the civil actions. The Vogts now appeal. Applying de novo

review, we affirm.

FACTUAL BACKGROUND

¶2. Allen Eugene Walker has been a Mississippi resident since December 2006. On

approximately March 12, 2009, John Edward Vogt II and Edward Vogt (the Vogts) each

filed civil actions against Allen Eugene Walker in Texas.1 Process was then “allegedly

served upon [Walker] utilizing the Office of the Pearl River County Sheriff’s Department”

by way of leaving the paperwork “taped on” Walker’s door, but “no follow up process was

mailed” to the residence “on the same day or the day after as required[.]”2 Walker contends

that he did not receive process by either method. On February 9, 2012, the Texas court

entered two no-answer default judgments against Walker.3 On November 19, 2013, Riecke

Baumann was appointed “receiver” over Walker’s “non-exempt assets” by order of the Texas

1 Specifically, the actions were brought forth in the Justice of the Peace Court, Precinct 2, of Missouri City, Fort Bend County, Texas. The Vogts also filed suit against one Steve Martin, but he was served properly and is not a party to this appeal. 2 The alternative method of service was authorized by the judge on October 14, 2009. The judge’s order stated that alternative process could be served by leaving a citation on Walker’s usual place of abode or employment but also required that a copy of the same citation be mailed to Walker on the day of service or the next day. 3 On September 19, 2021, the Texas court entered a “judgment of renewal” of the default judgment “unde[]r Mississippi law, including statute Miss. Code Ann. § 15-1-45.”

2 court4 because “the Court believes that non-exempt assets exist, since virtually everyone has

a bank account or other non-exempt asset, which [the Vogts] believe [Walker] will try to

hide.”

¶3. This case arrived in Mississippi in April 2019 when Walker filed a complaint in the

Pearl River County Chancery Court against Baumann and the Vogts seeking declaratory

relief from the “void” judgments made in Texas and equitable relief to “restrain and enjoin”

the Vogts and Baumann “from collecting and/or attempting in any way to collect” the default

judgments. On July 3, 2019, the Vogts and Baumann filed an answer to Walker’s complaint.

On September 11, 2019, Walker filed a motion for summary judgment alleging the Texas

court lacked personal jurisdiction due to a failure to properly serve him and that the action

was barred by the Mississippi statute of limitations.

¶4. On May 6, 2020, Baumann and the Vogts filed a motion to dismiss “and/or for

summary judgment” or, in the alternative, a “transfer to Pearl River Circuit Court.” On

February 18, 2021, the Vogts and Baumann filed, for the first time, a “notice of filing of

foreign judgment” with the Pearl River County Circuit Court.5 Walker filed a “combined

4 In situations dealing with judgment creditors, “[t]he court may . . . appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.” Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (2019). 5 “A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state or any rule promulgated and adopted by the Mississippi Supreme Court may be filed in the office of the clerk of the circuit court of any county in this state.” Miss. Code Ann.§ 11-7-303 (Rev. 2019).

3 response, affirmative defense(s) and objection(s) until enrollment of foreign judgment(s)”

on March 4, 2021. On November 22, 2021, Walker filed a rebuttal to the motion for

summary judgment or transfer of the case to the circuit court. On December 16, 2021, the

chancery court denied Walker’s motion for summary judgment and Baumann and the Vogts’

motion to dismiss or for summary judgment.

¶5. The chancellor found it “appropriate,” however, to have the action transferred to Pearl

River County Circuit Court. The action was transferred accordingly. On September 27,

2022, Walker filed a motion with the circuit court “re-urging” his motion for summary

judgment previously filed in the chancery court. On November 15, 2022, the circuit court

entered summary judgments in Walker’s favor in both actions, finding that “the Texas Justice

Court lacked personal jurisdiction to render the default judgments against Walker” due to

insufficient service of process.6 The court also denied the Vogts’ registration of a foreign

judgment because it needed to be “timely and properly enrolled in Mississippi,” and there had

been no “attempt to enroll the foreign judgments in the State of Mississippi until February

10, 2021[.]” On December 16, 2022, the Vogts filed a notice of appeal. Baumann did not

appeal and is not a party here.

STANDARD OF REVIEW

¶6. “When reviewing a trial court’s grant or denial of a motion to dismiss or a motion for

summary judgment, this Court applies a de novo standard of review[.]” Gibson v. Williams,

6 The final judgments were entered on December 2, 2022.

4 Williams & Montgomery P.A., 186 So. 3d 836, 844 (¶14) (Miss. 2016) (citing Burleson v.

Lathem, 968 So. 2d 930, 932 (¶7) (Miss. 2007)). “[S]ummary judgment should be granted

only when no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law.” Id. (citing M.R.C.P. 56(c)). We view the evidence “in the

light most favorable to the party against whom the motion has been made.” Duckworth v.

Warren, 10 So. 3d 433, 436-37 (¶9) (Miss. 2009) (quoting One South Inc. v. Hollowell, 963

So. 2d 1156, 1160 (¶6) (Miss. 2007)). It is “the moving party [who] has the burden of

demonstrating that no genuine issue of material fact exists and the non-moving party [who]

must be given the benefit of the doubt concerning the existence of a material fact.” Gibson,

186 So. 3d at 844 (¶14) (citing One South, 963 So. 2d at 1160 (¶6)).

¶7. The crux of this case lies within the statute of limitations issue. “The running of the

statute of limitations is an issue appropriate for resolution via summary judgment if there

exists no genuine issue of material fact concerning whether the statute has run.” Hawkins

v. Jones, 284 So. 3d 827, 830 (¶8) (Miss. Ct. App. 2019) (quoting Pollan v. Wartak, 240 So.

3d 1185, 1190 (¶12) (Miss. 2017)). “Issues concerning the statute of limitations are

questions of law, which are reviewed de novo.” Id. (quoting Bryant v. Dent, 270 So. 3d 976,

978 (¶8) (Miss. Ct. App. 2018)).

DISCUSSION

¶8. On appeal, the Vogts argue that (1) the Texas court had jurisdiction over Walker,

which required Mississippi to give full faith and credit to the judgment, and (2) their actions

5 were timely because they had three-to-seven years to enforce the judgment in Mississippi.

This Court is “bound by the full faith and credit clause of the United States Constitution, art.

IV, § 1, to accord full faith and credit to the judicial proceedings of courts of record of every

other state.” Lee v. Swain Bldg. Materials Co. of New Orleans Inc., 529 So. 2d 188, 190

(Miss. 1988).7 The Vogts and Walker both make arguments detailing whether the Texas

court had jurisdiction over Walker at all due to an issue with service of process. This Court,

however, declines to address the personal jurisdiction arguments because the statute-of-

limitations issue is dispositive of the case as a whole.

¶9. “A cause of action accrues only when it comes into existence as an enforceable action;

that is, when the right to sue becomes vested.” State v. Murphy, 202 So. 3d 1243, 1255 (¶29)

(Miss. 2016) (quoting Est. of Kidd v. Kidd, 435 So. 2d 632, 635 (Miss. 1983)). The Vogts’

cause of action, enrolling and collecting a default judgment from Walker, came into existence

when the default judgments were rendered in Texas on February 9, 2012. “The litigants in

any suit have to comply with the appropriate statute of limitations in order to maintain an

action.” Magallanes v. Magallanes, 802 So. 2d 174, 176 (¶9) (Miss. Ct. App. 2001) (citing

Miss. Dep’t of Pub. Safety v. Stringer, 748 So. 2d 662, 665 (¶13) (Miss. 1999)).

7 The full faith and credit clause has only two exceptions: “(1) the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered . . . or (2) the rendering court did not have jurisdiction over the parties in the subject matter.” Schwartz v. Hynum, 933 So. 2d 1039, 1042 (¶9) (Miss. Ct. App. 2006) (citing Reeves Royalty Co. Ltd. v. ANB Pump Truck Serv., 513 So. 2d 595, 598 (Miss. 1987); Sollitt v. Robertson, 544 So. 2d 1378, 1381 (Miss. 1989)).

6 ¶10. In cases involving foreign judgments, Mississippi law incorporates a statute of

limitations as follows:

All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after. However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after.

Miss. Code Ann. § 15-1-45 (Rev. 2019) (emphasis added). Walker has been a Mississippi

resident since 2006, before the Texas actions were brought in 2009. Further, the default

judgments were entered in Texas in 2012. At that time, Walker was a resident of Mississippi.

Finally, the Vogts did not attempt to seek to enroll and collect those judgment from Walker

in Mississippi until they filed the petition in the Pearl River County Circuit Court in 2021.

At that time, Walker was still a resident of Mississippi. Accordingly, the statute of

limitations applicable to this cause pursuant to Mississippi Code section 15-1-45 was three

years.

¶11. To bring this case before a Mississippi court, the Vogts were required to file a notice

of foreign judgment in accordance with Mississippi Code sections 11-7-303 and 11-7-305

(Rev. 2019). See Davis v. Davis, 558 So. 2d 814, 818 (Miss. 1990). “A copy of any foreign

judgment authenticated in accordance with the act of Congress or the statutes of this state or

any rule promulgated and adopted by the Mississippi Supreme Court may be filed in the

office of the clerk of the circuit court of any county in this state.” Miss. Code Ann. § 11-7-

7 303. Section 11-7-305 provides detailed instructions on how to properly notice such a

judgment.

¶12. In Davis, the Mississippi Supreme Court applied these statutes when Barbara Davis

procured four judgments, each related to child support, against Howard Davis in Texas on

December 29, 1982. Davis, 558 So. 2d at 815-16. She filed four individual notices of a

foreign judgment in Mississippi on December 27, 1985. Id. at 817-18. Howard filed suit ten

months later contesting Barbara’s enrollment of the judgments. Id. at 816. Summary

judgment was granted in Barbara’s favor in each separate judgment and Howard appealed.

Id.

¶13. The court determined whether the foreign judgments from Texas were entitled to

Mississippi’s full faith and credit and noted two exceptions: false representation and lack of

personal jurisdiction over the party against whom the judgment was rendered. Id. at 817.

The court explicitly noted, “In order to challenge a foreign judgment on [personal

jurisdiction] ground[s] . . . it is necessary that the challenge be timely and properly filed in

Mississippi.” Id. (emphasis added). Howard was not a Mississippi resident at the time of

the judgments rendered in Texas. Id. Accordingly, in compliance with section 15-1-45,

Barbara had seven years to file the notices of foreign judgments in Mississippi. Id.

¶14. Barbara noticed the foreign judgments in Mississippi well within the seven-year

statutory limit, so the court continued to determine whether the notice was proper under

section 11-7-305. Id. The proper means of filing a foreign judgment in that court’s terms

8 is, briefly, “(1) judgment creditor (Barbara) must file an affidavit and copy of the foreign

judgment with the circuit clerk; (2) the circuit clerk promptly mails notice to the judgment

debtor (Howard); [and] (3) no action may be taken for twenty (20) days after the foreign

judgment is filed.” Id. Because Barbara properly followed those steps and timely filed the

notices, the court found that the Texas judgments were “entitled to full faith and credit in

Mississippi.” Id. at 819.

¶15. Here, the Vogts were required to follow the same procedure. In Davis, Barbara

properly and timely filed the foreign judgments in Mississippi, but here the Vogts failed to

do so. In fact, the Vogts were not even close to the statutory deadline, instead filing nine

years after the Texas default judgments were entered. With both the foreign judgment

process and the statute of limitations in mind, the Vogts should have filed the Texas

judgment with the Mississippi circuit court on or before February 9, 2015. The notice of a

foreign judgment was not brought before a Mississippi court until February 18, 2021. It is

unnecessary to discuss whether the Vogts followed the proper procedure set out in section

11-7-305 because the time requirement was not satisfied. So, unlike Barbara, the Vogts are

not entitled to full faith and credit in Mississippi.

¶16. The Vogts also contend that the default judgments were technically “renewed” by

order of the Texas court in 2019. In support of their position, the Vogts cite Mabie, a case

in which the renewal of a foreign judgment in said foreign state “restarted the statute of

limitations[.]” Mabie v. Shannon, 120 So. 3d 415, 416 (¶¶1-2) (Miss. Ct. App. 2012). In

9 1994, Mabie obtained a judgment against Shannon in Florida and attempted to enroll the

judgment in Mississippi in 2005. Id. at (¶3). Shannon asserted that “the original Florida

judgment was barred by the Mississippi statute of limitations[,]” so Mabie “caused an order

to be entered, striking the judgment” from the Mississippi court’s judgment rolls. Id.

Following the strike, Mabie properly “filed an action in Florida to renew the original Florida

judgment” and enrolled the renewed judgment in Mississippi. Id. at 416-17 (¶¶3-4). On

appeal, this Court recognized the distinct circumstance of enrolling a renewed judgment and

“look[ed] to the state that rendered the renewed judgment [to] follow its law on whether a

renewed judgment is a new and separate action . . . entitled to full faith and credit.” Id. at

418 (¶11). Accordingly, the Court determined that under Florida law Mabie’s renewed

judgment “constitute[d] an action on the judgment” and, thus, restarted the statute of

limitations. Id.

¶17. This Court also addressed the renewal of foreign judgments in the more recent case

of White v. Taylor, 281 So. 3d 1188 (Miss. Ct. App. 2019). White and Taylor’s marriage was

officially dissolved, and White was ordered to pay Taylor a monetary sum in Florida in 2002.

Id. at 1189 (¶1). Taylor filed “a supplemental petition for modification and other relief” with

the Florida court in 2014, and that court found that White had not complied with the 2002

judgment and was in contempt, in addition to addressing “various matters[.]” Id. In 2017,

Taylor filed a notice of the 2014 foreign judgment in Mississippi; White filed a motion to set

the judgment aside because it was barred by the statute of limitations. Id. at (¶¶3-4). In

10 support of her position, White argued that “the fact the judgment had the exact same cause

number as the 2002 judgment and only calculated interest proves that it is a continuation and

not a renewal or separate judgment.” Id. at 1190 (¶12). This Court, citing law from the

foreign state, agreed and found that the judgment at issue was not new or separate and, thus,

did not reset the statute of limitations. Id. The supreme court later affirmed the reasoning

in both Mabie and White.8

¶18. Although the Vogts cite Mabie, we find that their situation is more akin to White.

Indeed, Texas law states that “a renewed foreign judgment is purportedly entitled to

registration in a forum state under the [Uniform Enforcement of Foreign Judgments Act]

only if it constituted a new judgment, as opposed to extension of the original judgment[.]”

BancorpSouth Bank v. Prevot, 256 S.W.3d 719, 723 (Tex. App. 2008) (emphasis added).

The record before us provides no indication that the Texas court’s judgment “renewal” is a

new or separate judgment. It appears that the Vogts merely renewed the judgment in the

original Justice of the Peace cause of action. Because the renewal was not a new or separate

judgment, it does not reset the statute of limitations. This argument is without merit.

¶19. Finally, even if this Court were to determine whether the Texas court had personal

8 The supreme court stated in Will Realty that this Court “correctly applied” the foreign judgment statute in both Mabie and White. Will Realty LLC v. Isaacs, 296 So. 3d 80, 82 (¶9) (Miss. 2020). Specifically, “[t]o the extent that a judgment is separate from a prior judgment under the laws of a foreign jurisdiction such that a new, separate ruling is issued, our statute of limitations would be calculated from the date of entry of that renewed judgment.” Id. (emphasis added).

11 jurisdiction over Walker, the outcome would be the same. “[T]he fact that a barred claim is

a just one or has the sanction of a moral obligation does not exempt it from the limitation

period.” Magallanes, 802 So. 2d at 176 (¶9) (citing Stringer, 748 So. 2d at 665 (¶13)).

Statutes of limitation “apply with full force to all claims.” Id. (emphasis added). The Vogts

simply failed to adhere to the Mississippi statute of limitations governing the enrollment of

foreign judgments. Accordingly, this Court affirms the judgments of the Pearl River County

Circuit Court.

¶20. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.