Opinion
02-22-00054-CV
10-19-2023
Americare Medical Partners, PLLC, Appellant v. Cardinal Health 108, LLC, Appellee
On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-330082-21
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
MEMORANDUM OPINION
WADE BIRDWELL JUSTICE.
Appellant Americare Medical Partners, PLLC (Americare) appeals from the trial court's order denying its motion to set aside the default judgment in favor of Appellee Cardinal Health 108, LLC (Cardinal). In one issue with two subissues, Americare argues (1) that the trial court erred by denying its "Motion to Set Aside Default Judgment and/or for New Trial" when the record established that Americare was not properly served with process, and (2) that Cardinal failed to satisfy the evidentiary requirements of the Uniform Enforcement of Foreign Judgments Act (UEFJA). We affirm.
I. Background
Cardinal filed suit against Americare in Franklin County, Ohio, alleging claims of breach of contract, goods sold and delivered, possession of collateral, open account, and quantum meruit. The Court of Common Pleas in Franklin County, Ohio, rendered a default judgment against Americare for $4,600,170. Cardinal filed a "Notice of Filing Foreign Judgment" in Tarrant County in accordance with the UEFJA. See Tex. Civ. Prac. &Rem. Code Ann. §§ 35.001-.008.
Americare filed a combined motion to set aside the default judgment and motion for new trial in Tarrant County. In the motion, Americare argued that the judgment from the court in Ohio is void because there was no service of process, thus, the judgment was signed without personal jurisdiction over Americare. Cardinal filed a response stating that service was proper according to the Ohio Rules of Civil Procedure. The trial court denied the motion to set aside the default judgment.
II. Applicable Law
Under the United States Constitution, a state must give the final judgment of a sister state the same force and effect that it would give to its own judgments. See U.S. Const. art. IV, § 1; Clamon v. DeLong, 477 S.W.3d 823, 825 (Tex. App.-Fort Worth 2015, no pet.). When a judgment creditor files an authenticated copy of a foreign judgment, the judgment creditor satisfies its burden of presenting a prima facie case for enforcement under the UEFJA, and the burden of establishing why the judgment should not be given full faith and credit shifts to the judgment debtor. Clamon, 477 S.W.3d at 825-26. The fact that a foreign judgment was taken by default does not defeat this presumption of validity. Id. at 826.
When a judgment creditor proceeds under the UEFJA, the filing of the foreign judgment comprises both the plaintiffs original petition and the final judgment. Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996). Accordingly, the filing initiates the enforcement proceeding and instantly creates a Texas judgment that is enforceable. Id.
III. Service of Process
Americare first argues that the trial court erred by denying its motion to set aside the default judgment and motion for new trial because the record conclusively establishes that it was not properly served with process.
A. Governing Law
Americare first contends that, because Cardinal did not file a motion requesting the trial court to take judicial notice of the laws of Ohio, the trial court was obligated to resolve the motion to set aside the default judgment in accordance with Texas law. The Texas Rules of Evidence provide that the court (1) may take judicial notice of other states' law on its own and (2) must take judicial notice of such law upon the request of a party if accompanied with appropriate documentation thereof. Tex. R. Evid. 202(b). Americare states that when a party fails to request judicial notice of the law of another state as permitted by Rule 202, Texas courts will presume the law of the other state is identical to Texas law, citing as authority Burlington Northern &Sante Fe Railway Co. v. Gunderson, Inc., 235 S.W.3d 287, 290 (Tex. App.-Fort Worth 2007, pet. withdrawn).
In Burlington, the suit was filed in Texas, and the Texas court rendered summary judgment in favor of Gunderson. Id. at 289-90. Burlington argued that summary judgment was premature because it had been unable to conduct sufficient discovery to determine the laws of which state or states governed its claims. Id. at 290. Burlington argued that Texas law did not apply to the claims, but it never moved the trial court to take judicial notice of any other state's law. Id. This court held that because Burlington never filed a Rule 202 motion requesting the trial court to take judicial notice of other states' law, there was a presumption that the law of the other states was identical to Texas, and the trial court did not err by applying Texas law to the claims. Id. at 291. In the present case, however, suit was filed in Ohio, and an Ohio court rendered a default judgment in favor of Cardinal under the applicable Ohio law. Cardinal filed notice of the judgment pursuant to the UEFJA in Tarrant County. "When reviewing a Texas trial court's ruling regarding the enforcement of a foreign judgment, we determine the foreign judgment's validity under the laws of the state that rendered it." DeLage Landen Fin. Servs. v. M.D.H. Oilfield Servs. LLC, No. 02-22-00139-CV, 2023 WL 2703640, at *2 (Tex. App.-Fort Worth Mar. 30, 2023, pet. filed) (mem. op.). Therefore, Rule 202 of the Texas Rules of Evidence and Burlington are not applicable.
B. Analysis
In its motion to set aside the default judgment, Americare argued that the Ohio judgment was void because it was rendered, signed, and entered without personal jurisdiction over Americare. In its response, Cardinal stated that "[s]ervice was accomplished on August 17, 2020, via Certified Mail on then-statutory agent, Tracy Swayden at 2790 Lake Vista Dr., Lewisville, TX 75067." Cardinal provided a copy of the certified mail proof of service. In its response, Cardinal further stated that service was proper under the Ohio Rules of Civil Procedure.
As previously stated, we determine the foreign judgment's validity under the laws of the state that rendered it. Id. Under Ohio law, service is presumed proper if a plaintiff follows the Ohio Rules of Civil Procedure that govern service of process. See Rogers v. United Presidential Life Ins. Co., 521 N.E.2d 845, 848 (Ohio Ct. App. 1987). Rule 4.1(A)(1)(a) provides that service may be perfected upon a defendant by delivery via certified or express mail through the United States Postal Service. Ohio Civ. R. 4.1(A)(1)(a). Service upon a limited liability company may be made by serving an agent authorized by appointment or law to accept service of process. Ohio Civ. R. 4.2(G). Service is valid if "any person" at the address signs for the certified mail, whether or not the recipient is the defendant's agent. Ohio Civ. R. 4.1(A)(1)(a); MitMl v. Mitchell, 413 N.E.2d 1182, 1183-84 (Ohio 1980). And these rules apply equally to effectuate "out-of-state" service of process. Ohio Civ. R. 4.3(B)(1).
Due process requires service to be "reasonably calculated," under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Akron-Canton Reg'l Airport Auth. v. Swinehart, 406 N.E.2d 811, 814 (Ohio 1980). As long as service is "reasonably calculated" to reach interested parties, then the service is constitutionally sound. Id. A defendant may rebut the presumption of proper service by producing evidence that he or she did not receive service. Progressive Direct Ins. Co. v. Williams, 186 N.E.3d 337, 340 (Ohio Ct. App. 2022).
Americare states in its brief that the sworn evidence of the service of process conclusively established that:
• There is no signature on the USPS return receipt.
• The registered agent of Americare did not sign the return receipt.
• There is no connection between any signer of the USPS return receipt and Americare.
• The attempted service upon Americare was even delivered to the registered office of Americare.
• Cardinal falsely swore under oath that service was accomplished by certified mail upon the registered agent "Tracie Swayden at 2790 Lake Vista Dr., Lewisville, TX 75067," when the USPS purported to show delivery to "15301 Spectrum #330" in "ADDISON, TX 75001."
• The identification number contained on the Clerk's Receipt (214890119 522806729575) is different than the identification number on the USPS Return Receipt (9214 89011952 2806 7295 75).
• The addressee and address set forth on the Clerk's Receipt was "Americare Medical Par," "Attn Tracie Swayden," "Registered Agent," "2790 Lake Vista Drive," "Ewisville, TX," "75067."
The record before us shows that USPS item number 9214 89011952 2806 7295 75 was delivered on August 17, 2020. At that time, the registered agent for Americare was Tracie Swayden, 2790 Lake Vista Drive, Suite 300, Lewisville, TX, 75067. The certified mail receipt scanned into the Ohio clerk's record appears to have omitted the number "9" at the beginning of the USPS item number, the letters "tners, LLC" from Americare's name, and the letter "L" from Lewisville, but in all other respects the addressee, address, and USPS item number are identical to the addressee, address, and USPS item number upon whom Cardinal requested service of process. More particularly, Cardinal clearly requested service upon Tracie Swayden as the registered agent of Americare at the same Lewisville address.
On August 25, 2020, Americare changed its registered agent to Michael Swayden, 221 West Exchange Avenue, Suite 206A, Fort Worth, TX 76164.
To the extent necessary, we take judicial notice that there is no municipality named "Ewisville" in the "75067" zip code, whereas there is a municipality named "Lewisville" therein.
The signature appears to be initials, but it is not clear. In Progressive, the court noted that in response to the COVID-19 pandemic, the USPS modified mail procedures for services that normally required carriers to be in close proximity to customers. Id. at 341. The USPS instructed carriers to maintain a safe distance, ask the recipient for a first initial and last name, enter that information on the return receipt, and then place the mail in an appropriate place. Id. Because service occurred during the COVID-19 pandemic, the mail carrier may have requested initials. There is nothing to indicate that it was not signed by a person at the registered agent's address. Ohio law allows any person at the address to sign the certified mail whether or not the recipient is the defendant's agent. Ohio Civ. R. 4.1(A)(1)(a).
Americare suggests that delivery occurred in Addison, Texas, rather than at the address of the registered agent. The Addison, Texas address appears to be excess verbiage provided by the recipient. The certified mail receipt indicates that service was sent to the address of the registered agent in Lewisville, Texas.
Texas courts presume that a foreign judgment is valid absent clear and convincing evidence that the judgment is invalid under the laws of the state that rendered it. DeLage, 2023 WL 2703640, at *2. If a notice is sent by certified mail, return receipt requested, and thereafter a signed receipt is returned to the sender, a prima facie case of delivery to the addressee is established. Tripodi v. Liquor Control Comm'n, 255 N.E.2d 294, 296 (Ohio Ct. App. 1970). Because the record shows that Cardinal directed service to an address where it would be reasonably calculated to reach Americare or its registered agent, Americare has not rebutted the presumption of proper service under Ohio law. Moreover, Americare did not rebut the presumption of proper service by producing evidence that it did not receive service. See Progressive, 186 N.E.3d at 340. Americare does not argue on appeal that it did not receive service or that service was improper under Ohio law. Americare has presented no evidence that the judgment is invalid under Ohio law. We overrule Americare's first subissue.
IV. Failure to Comply with UEFJA
In the second subissue, Americare argues that Cardinal failed to satisfy the evidentiary requirements of the UEFJA. Cardinal contends that we should not consider this argument on appeal because Americare did not raise this issue in the trial court. We agree.
Americare does not argue in the motion to set aside the default judgment that Cardinal failed to comply with the requirements of the UEFJA. Even assuming Americare preserved this argument, it is without merit.
Moreover, 28 U.S.C. § 1738 states:
The records and judicial proceedings of any court of any such State, Territory[,] or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that said attestation is in proper form.
Cardinal filed a "Notice of Filing Foreign Judgment" in accordance with the UEFJA. Cardinal attached a "Certificate to Copies" that was certified by the clerk of the Common Pleas Court of Franklin County, Ohio, as a true copy and affixed the seal of the said court. The "Certificate to Copies" also contained a certification by one of the judges of the Court of Common Pleas of Franklin County, Ohio, that the clerk of the Court of Common Pleas of Franklin County, Ohio, is "authorized by the laws of said State to certify as aforesaid and that the attestation and certificate are in due form of law." Cardinal also attached a copy of the default judgment signed by the trial judge. Cardinal complied with the provisions of 28 U.S.C. § 1738. We overrule the second subissue.
V. Conclusion
We affirm the trial court's order denying Americare's motion to set aside the default judgment and motion for new trial.