1.

Nonsuit after Evidentiary Phase.

Under said Rule 162, a nonsuit must be brought “at any time before the plaintiff has introduced all of his evidence other than rebuttal evidence”

 Unlike all other actionable causes, a foreign judgment is moved automatically and immediately from the filing stage to a Texas judgment by the mere act of filing under §34.003 of the Texas Code of Civil Procedure, and is immediately enforceable, not requiring any review, hearing, trial, or ruling by a Texas court to proceed with a writ of attachment.  [See Citation Excerpts 1 and 2 below]

Accordingly, because Plaintiff’s foreign judgment was duly filed in Texas on 24 August 1999, it became at the instance of recording by the Clerk of this Court a complete and final domesticated foreign judgment. Plaintiff’s cause is judicially complete – well beyond the filing of evidence stage.  Therefore, Plaintiff’s right to voluntarily and unilaterally nonsuit under said Rule 162 is no longer available to him.   

2.

Nonsuit effect on “counterclaim”

Texas has no statutory civil process or rule of court for simultaneous adjudication of the rights and obligations of the judgment creditor (Plaintiff) and judgment obligor (Defendant) concerning the Foreign Judgment.  Plaintiff’s cause on the Foreign Judgment is domesticated on mere filing under said §34.003(b), and Plaintiff may immediately execute a writ of attachment, requiring no permission, hearing or order of the Court.  [See Citation Excerpt 1 below]

Defendant’s answer is necessarily in the nature of a counterclaim which seeks to undo the domestication of the Foreign Judgment.  Defendant’s affirmative defense of the ten-year limit is not of itself a counterclaim.  Rather it is the fact that Defendant can not join the cause until after Plaintiff’s Foreign Judgment is already domesticated that causes the defense to be in the nature of a counterclaim.  Even though the Defendants does not employ the word “counterclaim” in his answer, the Court is obligated under Rule 71 of said Texas Rules to treat it as such.  [See Citation Excerpt 2 below]

In summary, the cause of the judgment creditor (Plaintiff) is complete on filing, but Defendant’s pending claim – to undo the domestication, is what remains incomplete before the Court.  A counterclaim by nature seeks affirmative relief, which precludes Plaintiff’s voluntary and unilateral nonsuit, which under said Rule 162, “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief.”  Accordingly, a nonsuit by Plaintiff’s under said Rule 162 may not affect Defendant’s Motion for Summary Judgment, which is in the nature of a counterclaim.    

3.

Nonsuit After Pending Claim for Affirmitive Relief.

Under said Rule 162 , a nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief.”  Defendant has pending before this Court under his Motion for Summary Judgment the following relief, all, some, or part of which is affirmative relief: 

(a) dismissal with prejudice,

(b) a bar against the foreign judgment ever being brought to Texas again, so that no subsequent holder or assignee may revive the Foreign Judgment in Texas at a different venue, or under a different name;

(c) removal of the now domesticated foreign judgment from the Clerk’s records;

(d)  rescission/reversal of any Texas abstract of the Foreign Judgment;

(e)  rescission/reversal of any writ of attachment against Defendant for satisfaction of the now domesticated Foreign Judgment.

Plaintiff’s right to voluntarily and unilaterally nonsuit under said Rule 162 can not affect Defendant’s Motion for Summary Judgment, which asks for Affirmative Relief  

(1)

Rule that by unilaterally and voluntarily declaring a Nonsuit, Plaintiff has voluntarily terminated any right to execute or prosecute a writ of attachment against Defendant in satisfaction of the Foreign Judgment;

(2)

Quash, on the grounds stated above, that Plaintiff’s voluntary, unilaterally declared nonsuit is void, and without effect on Defendant’s Motion for Summary Judgment;

(3) 

Deny, on the grounds stated above, a court order for NonSuit Without Prejudice;

(4) 

Tax Defendant’s cost to Plaintiff under said Rule 162, “Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court”

(5)

Defendant does not object, however, to a Dismissal With Prejudice of the Plaintiff’s cause, providing other relief prayed in Defendant’s Motion for Summary Judgment is provided.

1. 

“the filing of a foreign judgment partakes of the nature of both a plaintiff's original petition and a final judgment: the filing initiates the enforcement proceeding, but it also instantly creates a Texas judgment that is enforceable.” Moncrief v. Harvey, 805 S.W.2d 20, 22 (Tex. App.-Dallas 1991, no writ); see also Walnut Equip. Leasing v. Wu, 920 S.W.2d 285, 286 (Tex. 1996) (filing of foreign judgment under UEFJA comprises both a plaintiff's original petition and a final judgment) (citing Lawrence Sys., Inc. v. Superior Feeders, Inc., 880 S.W.2d 203, 208 (Tex. App.-Amarillo 1994, writ denied) (filing of foreign judgment under UEFJA has effect of initiating enforcement proceeding and rendering final Texas judgment simultaneously)); Dear v. Russo, 973 S.W.2d 445, 448 (Tex. App.-Dallas 1998, no pet.)

2.

(challenges to foreign judgments filed under UEFJA are post-judgment proceedings because filing of foreign judgment instantly creates judgment enforceable in Texas); cf. Goodier v. Duncan, 651 S.W.2d 25, 27 (Tex. App.-Dallas 1983, writ ref'd n.r.e.) (cause of action on judgment “stands separate and apart with an identity all its own from the cause of action out of which it arose”) (citing Milwaukee County v. M.E. White Co., 296 U.S. 268, 275 (1935))

Source of Citation Excerpts:

File: 051575F - From documents transmitted: 10/19/2007
REVERSE and REMAND; Opinion Filed October 19, 2007.
In The Court of Appeals Fifth District of Texas at Dallas, No. 05-05-01575-CV,
SAMUEL DABNEY WARE, Appellant V. THE EVEREST GROUP, L.L.C., Appellee
On Appeal from the 101st District Court, Dallas County, Texas,
Trial Court Cause No. 04-07111-E.
OPINION
Before Justices Whittington, Francis, and Lang, Opinion By Justice Lang