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North Dallas Bank & Trust Co. v. Mabry

Court of Appeals of Mississippi

November 20, 2018

NORTH DALLAS BANK & TRUST CO. APPELLANT
v.
JOHN M. MABRY APPELLEE

          DATE OF JUDGMENT: 05/16/2017

          ALCORN COUNTY CIRCUIT COURT HON. PAUL S. FUNDERBURK TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: AMANDA CLEARMAN WADDELL

          ATTORNEY FOR APPELLEE: JOHN O. WINDSOR

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. In December 2004, North Dallas Bank & Trust Company (North Dallas) obtained a default judgment in Texas against John Mabry. In December 2014, North Dallas enrolled the judgment in Mississippi. In February 2016, Mabry filed a motion to set aside the enrollment of the judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(4). The Alcorn County Circuit Court granted Mabry's motion, holding that the judgment was unenforceable because it was enrolled more than seven years after the Texas judgment was entered. See Miss. Code Ann. § 15-1-45 (Rev. 2012). Accordingly, the court ordered the circuit clerk to mark the judgment as cancelled on the county judgment roll.

         ¶2. On appeal, North Dallas argues that the circuit court erred because Mabry waived his statute of limitations defense and did not file his Rule 60(b)(4) motion "within a reasonable time." However, we conclude that the circuit court correctly applied the precedent of this Court holding that attempts to enroll or enforce a foreign judgment after the expiration of the statutory limitations period are void ab initio. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶3. On December 14, 2004, North Dallas obtained a default judgment against Mabry in state court in Texas for a total of $470, 521.43 plus post-judgment interest. Almost ten years later, on December 11, 2014, North Dallas filed a notice of enrollment of the judgment in the Alcorn County Circuit Court. North Dallas's certificate of service shows that it mailed a copy of the notice to both an address in Savannah, Tennessee, and a restaurant in Corinth, the Chop House Shiloh Ridge (Chop House). North Dallas alleged, on information and belief, that the Savannah address was Mabry's last known address and that Mabry could also be found at the Chop House, where he was once employed. The docket appears to show that the circuit clerk sent notice of the enrollment to both addresses by certified mail, but the notice sent to the Savannah address was returned to the clerk marked not deliverable/unable to forward.

         ¶4. In January 2015, North Dallas sought to enforce the enrolled judgment through a writ of garnishment directed to the Chop House. A sheriff's return shows that the writ and a summons were served on the Chop House, but the Chop House failed to respond. North Dallas subsequently filed a motion for a conditional judgment against the Chop House as garnishee. In July 2015, the circuit court granted North Dallas's motion and ordered the Chop House to appear at a show-cause hearing. However, hearing notices mailed to the Chop House were returned as undeliverable. The Chop House apparently ceased operations at some point.

         ¶5. In January 2016, counsel for Mabry filed an entry of appearance. In February 2016, Mabry filed a motion to set aside the judgment pursuant to Rule 60(b)(4) of the Mississippi Rules of Civil Procedure. Mabry argued that the enrollment of the judgment was "void" because it was filed in Mississippi more than seven years after the judgment was entered in Texas. See Miss. Code Ann. § 15-1-45. In response, North Dallas denied that the judgment was void. North Dallas argued that Mabry had waived his statute of limitations defense and that his Rule 60(b)(4) motion was untimely.

         ¶6. Following a hearing, the circuit court granted Mabry's Rule 60(b)(4) motion. The court found that the judgment was unenforceable because it was enrolled more than seven years ...


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