*1 We by deposition or affidavit. for trial inap- summary judgment is
conclude that and cred- propriate deciding for the motives signing alleged person ibility of groundless petition. We hold the Hartford’s erred Farm’s State under rule 18. We counterclaim relief cross-point of error. Farm’s sustain State CONCLUSION trial court’s We affirm the $17,500 awarding from State Hartford Farm; from Hartford Wilkins $3333 fees; Kanen $2500 attorney’s fees. We reverse Hartford as denying State the trial court’s recovery as a Farm on its counterclaim remand this cause matter of law. We State Farm’s claims proceedings further against Hartford. under relief rule KNIGHTON, Appellant, Thomas Charles MA INTERNATIONAL BUSINESS CORPORATION, CHINES Plan, and Ruth Retirement Knighton, Appel Ruth Allison f/k/a lees.
No. 01-91-01285-CV. Appeals Court (1st Dist.). Houston April 1993. Rehearing Denied June *2 III, Buzbee, Lester R. Buzbee Associ- & P.C.,
ates, Houston, appellant. Stokes, Bayless, Bayless Bobbie G. & Houston, appellee Roskelly, Ruth f/k/a Knighton. Ruth Allison Wyckoff Boyce, Maria Marc A. Antonet- ti, Botts, L.L.P., Houston, Baker & appellees International Business Machines Corp. and the IBM Retirement Plan. OLIVER-PARROTT, C.J., Before WILSON, O’CONNOR and JJ.
OPINION
OLIVER-PARROTT, Chief Justice. Knighton (Knighton), Thomas Charles appellant, wife, sued his former Rosk- Ruth elly (Roskelly), International Business Ma- Corporation (IBM), chines and the IBM Re- (the Plan), appellees, tirement declaratory judgment enjoin forcement a Florida court The issue is been when action has requested to judgment of enforce the valid a sister courts interfere should Texas with such enforcement because the order. contains an income deduction We conclude should not. The Texas courts granted trial court Plan, favor of fees, Plan attorney’s awarded IBM and the fees, denied claim for denied Plan, error, According if points to IBM and the six prevailed they in his argues the court erred in suit multiple liability exposed would be summary judgment favor of litigation, light of the Florida to IBM and/or by awarding attorney’s *3 parties subsequently All court orders. point, Plan. In her cross and the sole filed motions for as- not Roskelly trial erred in asserts'the court serting they each were entitled to attorney’s granting request her for fees. aas matter of law. We affirm. 2, 1991, On the trial
Background December judgment granting court entered final its January 13,1983, On the Circuit Court of summary judgment of favor the 17th and for Broward Judicial Circuit IBM, and the denying Knighton’s Plan and Florida, County, final entered a for judgment. The trial dissolving marriage Knighton the of and specifically IBM discharged court and the Roskelly. Knighton pay was ordered to “any liability except from and all for Plan Roskelly permanent per week to “for $175 payment any proper- and benefits been em- alimony.” who has due,” ly and awarded years, ployed with IBM for almost 30 was paid by Knighton, the Plan to be IBM and by IBM to in 1984 and transferred losing party. as the court also has remained a resident of Texas since that denied undisputed Knighton It is that did time. Knighton appeals now fees. not the the payments make as ordered single judgment. crosspoint, a court’s 1990,Roskelly Florida court. In November the challenges trial court’s denial contempt filed a motion for the Florida claim fees. seeking to enforce the Standard of review trial court entered income deduction IBM, Knighton’s requiring proper as em- Summary judgment is for a ployer, proof to deduct “from all monies due and summary judgment if its defendant payable establishes, law, the [Knighton] sum of there as a matter of that [$175.00] per every and fact genuine a like sum week there- issue of material week exists after, [Knighton’s] represents concerning one or of the essential which sum more regular support obligation,” plaintiff’s cause of action. plus addi- elements the 957, Bertrand, per v. 723 S.W.2d 958 pay- Gray tional sum of week for $100.00 (Tex.1987); “Supplemen- Goldberg v. United States owed ments arrears and 751, (Tex. 752 Corp., 775 S.W.2d Judgment” ordering imple- tal the Shoe Final 1989, de App. writ Qualified Domestic Rela- [1st Dist.] mentation - Houston nied). (QDRO) requiring the tions Order Plan pay Roskelly per $813 month parties move for sum When both following ton’s benefits his retirement. party carry must mary judgment, each Knighton did the orders entered not and, response burden as the movant own Florida court. the motion, party’s other nonmov- Dist., 1991, January 22, Indep. Knighton
On filed this ant. James v. Hitchcock Sch. against Roskelly 742 703 lawsuit Texas and S.W.2d — Houston denied). When both seeking declaratory judgment writ [1st Dist.] court, may illegal gar- are before the the court Florida orders constituted an motions evi summary judgment all nishment the laws and the consider violation Knighton grant either deciding later amend- dence whether Texas Constitution. v. County Appraisal as a Dist. petition ed his to add Plan defen- motion. Dallas Research, 766 responded by Plan fil- Aerobics dant. IBM and the Institute (Tex.App general denial and a S.W.2d . —Dallas rely one can asserted that writ action. missing “rival, adverse, conflicting party’s supply proof claims to evidence DeBord v. Mul party’s the other motion. benefits existed.” ler, (Tex.1969); prima makes a facie case S.W.2d Sea Seaman, (Tex. it, man v. is on the burden App. party resisting ref’d to estab- — Houston indulge But the court must all rea subsisting. lish that it is final and all Mitchim, sonable inferences and doubts in resolve Mitchim v. losing favor party. University (Tex.1975). Knighton dispute does not Texas Big Carpet Campo, Train El finality of the Florida court’s (Tex.1987). fact, Knighton concedes Florida court’s judgment is to full entitled credit. reviewing of a summary judgment, will this Court take all *4 by tered the Florida court be en- cannot the evidence favorable to the nonmovant as by forced in garnishment the of MMP, Jones, true. Ltd. v. S.W.2d 710 wages, against public policy which is the of (Tex.1986); 60 Goldberg, S.W.2d at 775 State except payment this of child parties
752. When both file motions for support. summary judgment and at least one is overruled, granted and the other we deter A state cannot full faith and questions mine on all presented, in to another judgment solely credit state’s cluding propriety the of the order overrul ground it the that public policy offends the losing party’s motion. Jones v. it sought state where is to en Strauss, (Tex.1988); 900 forced. GNLV 736 Teledyne Bravenec, Isotopes, Inc. v. (Tex.App. S.W.2d — Waco S.W.2d [1st — Houston Moreover, full faith and cred writ ref 'd Dist.] foreign alimony it is extended to decrees where, by the laws the sister Full Faith and Credit arrearages and have become vested abso In points error, six Knighton asserts Gard, lute. Gard v. ( 619-20 S.W.2d granting erred in 1951); Parker, Parker v. Tex. IBM, in favor of Roskelly, (Tex. Civ.App. — Houston Plan, denying his motion for sum- 1980, writ). [1st Dist.] mary judgment, in awarding fees to IBM the Knighton Plan. does Texaco, LeFevre, not challenge the validity of the Florida (Tex.Civ.App. — Houston $108,995.97 court's awarding to writ), 1980, no Court held this represents arrearages which that a Texas resident’s could be in alimony he admittedly pay. to failed to garnished pursuant court’s Knighton further concedes that the Florida LeFevre, subject order. Texaco to was court’s is entitled full faith requiring a New York court order it both however, and credit in Texas. deduct income from the of an asserts the can only be enforced employee enjoining and a Texas court order by procedures. means collection A such deductions. Id. at 174-75. federal Specifically, complains of the use court, pursuant district of the income deduction Texaco, upheld filed by action New QDRO entered the Florida court to en- York order on the basis of full faith and force the in Texas. enjoined credit and the Texas court from to Roskelly’s enforcing Attached injunction. Id. at 175. We summary copies are certified reversed the Texas court’s refusal dis supplemental judg enjoining Florida final court’s solve its order Texaco from com order, awarding arrearages Roskelly, plying stating: with New York order, QDRO the income deduction state court was bound to follow the “[o]ur entered the Florida court. When a for if decision the federal district court even eign judgment appears valid, final, garnish to be a the effect would be to allow the judgment, and subsisting wages, its introduction ment of which our state court could do_” Moreover, Knighton’s failure to ob In the instant not Id. at 176. nothing presented case, ject do to the evidence the Texas courts need complain fees and to of IBM and the Plan’s the valid Florida entitlement to Knighton’s employer, subject is status and stake jurisdiction Florida court and Roskel- an innocent holder the trial court not ly’s nothing is Texas courts only request preserves review. Tex. R.App.P. 52(a). a case interfere. This wherein gar- seeking a court order party is first, second, third, fourth, wages for the enforcement of nishing fifth, points and sixth error over- foreign judgment. That situation ruled. matter because clearly different Roskelly’s cross-point an act courts would then be asked do cross-point, Roskelly sole her our which violates constitution. Tex. court erred in Const, XVI, Thus, denying the trial sec. art. attorney’s fees incurred in defense of court did not err Plan, by Knighton. filed Roskelly, IBM, the instant lawsuit and the judgment for she Roskelly asserts that was entitled to denying Knighton’s nor err in did *5 pursuant fees attorney’s summary judgment. Tex.Civ.Prac. & (Vernon 1986). 37.009 § Ann. Rem.Code challenges trial Knighton also IBM attorney’s fees to court’s award of Declaratory Uniform and the Plan. Act, Judgments “the provides that appeal that IBM and the first time costs and and nec may award reasonable holders,” and not “innocent stake essary attorney’s equitable fees as are attorney’s therefore are not entitled just.” Ann. Tex.Civ.Prac. & Rem.Code fees.1 added). (Vernon 1986) (emphasis 37.009 § claimant, prop- has considering IBM like After When declaratory erly judgment stat- judgment con invoked the modify Plan’s motion to ute, party may plead for and obtain cerning attorney’s fees, the trial court en either v. attorney’s fees. First Nat’l Bank See tered an amended 360, Co., fees 727 S.W.2d attorney’s John E. Mitchell and the Plan’s n.r.e.). 1987, ref’d (Tex.App.—Amarillo writ contained in their motion not limited attorney’s fees is IBM and the Plan’s award of judgment. Attached to affirmatively summary judgment, plaintiff is a sworn or the motion for Ca testimony their relief. containing by declaratory affidavit Hartford Rent-a-Car, necessary sualty Budget Ins. v. counsel reasonable 1990, they (Tex.App.—Dallas they to which assert attorney’s fees fully complies writ are entitled. The affidavit award however, action, a declaratory judgment Rules of Civil in with rule 166a of discretionary. The af 166a. Procedure. See Tex.R.Civ.P. & Rem.Code Tex.Civ.Prac. such, 1986). (Vernon As representing a Ann. attorney 37.009 fidavit § concerning grant testimony that expert court’s decision claimant constitutes attorney’s fees support attorney’s fees or denial of an will an award of award absent a proceeding. Tesoro will not be reversed of discretion. showing abuse Refining, v. clear of an Petroleum Coastal County, 692 S.W.2d (Tex.App.-Houston Oake v. Collin [1st the record (Tex.1985). denied). of 455 is clear the absence It writ Dist.] recognized that evidence, controverting the affidavit legitimate rights to grant had support will the trial court’s counsel and, therefore, each bear its pursue should summary judgment. ing of a Id. MCZ, 1964); (Tex. Inc. an 380 S.W.2d stakeholder An innocent Triolo, (Tex.App.—Houston fees. 708 S.W.2d action is entitled to award Inc., n.r.e.). Co., Ray ref'd Gravel United States v. Thomas Interests, seq. own fees. United PRAC. & Rem.Code Ann. 35.001 et See § Inc., (Vernon Brewington, 1986). The court held that long regard- standing public policy Texas [14th Dist.] - Houston review, Upon writ ref’d further ing enforcing per- gambling debts does not record by shows no abuse discretion the mit faith Texas to full and credit to trial court. the Nevada
We cross-point. overrule But the corporation Nevada Jackson We affirm the judgment by did not seek to enforce Nevada, obtaining garnishment order in WILSON, J., dissents. unhelpful and that fact leaves Jackson Instead, the resolution case. WILSON, of this Justice, dissenting. corporation sought Nevada to collect on its presents whether, This case the issue of using procedures for enforce- despite prohibition, the Texas constitutional Here, Roskelly ment under Texas law. a Texas may citizen’s current attempting legally garnished in favor procedure legally means of a Florida pursuant creditor to an “income Unlike unavailable Texas. the Nevada (garnishment) deduction” obtained corporation she availing is not ancillary a sister state ato admit- any rights herself of enforcement under tedly entitled to full and credit. Be- majority law. How would decide I majority’s analysis cause believe the indi- employed if Jackson been Jackson had answer, cates an I respectfully affirmative entity doing also business busi- dissent. Nevada, ness in had GNLV obtained a It is majority’s unclear from opinion *6 garnishment Nevada order on Jackson’s whether Florida and ancillary wages to ancillary Texas its are receiving orders faith and in full credit person’s right debt? Is a constitutional in Texas, and being accordingly, are enforced garnishment to Texas be free from of cur- or whether the doing Texas courts are (other rent support) than child de- “nothing to enforce valid Florida person’s pendent on whether the em- ment,” and no full credit issue is jurisdiction ployer subject is of a presented. state? sister majority cites GNLV v. Jack majority in support also cites of its son, — Waco Texaco, holding LeFevre, the case of denied), proposition for the (Tex.Civ.App a state cannot full faith and credit to . —Hous 1980, writ). LeFevre, no another judgment solely state’s on the any full our Court did not reach faith and ground public that it policy offends issue, a credit but found Texas trial court sought the state where it to is be enforced. obligated decree, to a federal court follow I believe Jackson proposi stands not one state’s from a sister court. The tion a based a cause of federal court resolved inherent contra Texas, recognized action not legally but competing jurisdic dictions state between upon state, sued a sister is entitled to brought tions before the inter- full faith and credit in Texas. I do not read us, pleader case before action. we authorizing the use Jackson of a collec procedure resolving have order tion federal court that is available in a sister The majority but fundamental conflict. makes state is unconstitutional in Texas. following opinion: statement sought a Texas citizen enjoin a This is wherein corporation Nevada not a case a is from enforc- a gam- garnishing Nevada final for a a Texas court order bling corporation debt. The Nevada had of a enforcement filed in foreign Texas under the Uniform Enforce- That situation is Foreign ments of Judgments clearly Act. Tex.Civ. a different because matter an act courts then be asked do would HODGE, Sr., Appellants,
which violates our constitution. H. John Op. at 210. distinction that This me seems to be a SMITH, Jr., Wayne Appellee. Charlie brought had
leads circles. If No. 01-92-00925-CV. Texas, a to enforce her suit garnishment not issue a Texas court would Appeals of Court of ifBut efforts. help order collection Dist.). (1st Houston sis- garnishment in a obtained April 1993. powerless ter a Texas court is to a rights afford the of our constitution Opinion Motion Publish Granted correct, majority Texas citizen? If the May by Texas court violation an act taken a remedied, the Texas Constitution will protect of a Texas court but the refusal foreign Texas citizen from the act of
sovereign remedy. is without
I do the collection enforce- not believe only by gained in case ment remedies this em- happenstance having a Texas jurisdiction to Florida ployer subject entitled to full faith and credit consti- the face of a direct and clear Texas prohibition. analy- majority’s tutional bypass around the sis erects Uniform Act, Judgments per- Enforcement of thus mitting judgment creditor to
force a sister state only against appearing Texas citizen *7 foreign jurisdiction. Any in a remedies citizen under Texas available to lost, citizen law what the Texas done, of the choice of has but because for enforcement taken the adver- forum reversed, I sary. would order the case granted in fa- render appellant. vor