NORTH DALLAS BANK & TRUST CO. APPELLANT
JOHN M. MABRY APPELLEE
OF JUDGMENT: 05/16/2017
COUNTY CIRCUIT COURT HON. PAUL S. FUNDERBURK TRIAL JUDGE.
ATTORNEY FOR APPELLANT: AMANDA CLEARMAN WADDELL
ATTORNEY FOR APPELLEE: JOHN O. WINDSOR
LEE, C.J., FAIR AND WILSON, JJ.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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