Frederick L. Nicholas v. Environmental Systems (International) Limited, Brian G. Cook, Reif Winery Inc. (c.O.B. as Reif Estate Winery), Klaus Reif and Re/Defining Water Inc. , 499 S.W.3d 888 ( 2016 )

Affirmed and Majority and Concurring Opinions filed July 26, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00403-CV
FREDERICK L. NICHOLAS, Appellant
V.
ENVIRONMENTAL SYSTEMS (INTERNATIONAL) LIMITED, BRIAN G.
COOK, REIF WINERY INC. (C.O.B. AS REIF ESTATE WINERY), KLAUS
REIF AND RE/DEFINING WATER INC., Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 11-CV-1938
MAJORITY OPINION
This case involves a pro se judgment debtor’s appeal of the trial court’s
recognition of a Canadian money judgment obtained by the judgment creditors.
On appeal, the debtor contends that trial court erred by denying his motion to show
authority filed against the creditors’ attorney, filing incomplete and inadequate
findings of fact, and recognizing the judgment. We affirm.
FACTUAL BACKGROUND
In December 2011, attorney James T. Fletcher filed an affidavit requesting
recognition and enforcement of an attached Canadian money judgment under the
Uniform Foreign Country Money-Judgment Recognition Act (the “Act”) in the
56th District Court of Galveston County. See Tex. Civ. Prac. & Rem. Code
§§ 36.001–.008. The judgment, dated December 1, 2010, awards attorney’s fees
and costs to Environmental Systems (International) Limited, Brian G. Cook,
Re/Defining Water Inc., Klaus Reif, and Reif Winery Inc. (C.O.B. as “Reif Estate
Winery”) in a lawsuit brought by Frederick L. Nicholas in the Federal Court of
Toronto, Ontario.1
In August 2014, Fletcher filed a notice of partial non-suit on behalf of ESIL,
Cook, and RDWI.2 Shortly after that, Nicholas filed a motion to show authority
under Rule 12 of the Texas Rules of Civil Procedure, challenging Fletcher’s
authority to act on behalf of ESIL, Cook, and RDWI. Nicholas did not challenge
Fletcher’s authority to act on behalf of Klaus Reif or Reif Winery.
Fletcher filed a response, arguing that it was not necessary to prove his
authority to act on behalf of ESIL, Cook, and RDWI because they had nonsuited
their action and were no longer parties. Fletcher also attached an affidavit of Klaus
Reif, on behalf of himself and as President and Chief Executive Officer of Reif
Winery, in which he averred that Fletcher was authorized to act as an attorney for
him and Reif Winery in the matter. After a hearing, the trial court denied
Nicholas’s motion to show authority.
1
In an affidavit filed in support of his motion for nonrecognition of the Canadian
judgment, Nicholas averred that he filed a copyright infringement action against the named
defendants in 2005 and the case was tried in 2010.
2
We adopt Nicholas’s abbreviations for Environmental Systems (International) Limited
(“ESIL”) and Re/Defining Water Inc. (“RDWI”).
2
In September 2014, Nicholas moved for nonrecognition of the judgment. In
the motion, Nicholas argued, among other things, that the Canadian judgment was
not properly authenticated and was procured through fraud. A bench trial was held
on January 23, 2015. Nicholas asserted additional grounds for nonrecognition at
trial.
On February 4, 2015, the trial court signed a judgment in favor of Klaus Reif
and Reif Winery recognizing the Canadian judgment. The trial court’s judgment
authorized Klaus Reif and Reif Winery to enforce the Canadian judgment in Texas
insofar as it granted a judgment to Klaus Reif and Reif Winery against Nicholas
“in the amount of $143,091.59 together with disbursements of $7,028 for a total of
$150,119.59 (Canadian)” to each, plus their court costs.3
Nicholas timely requested findings and fact and conclusions of law, and
gave notice that the requested findings and conclusions were past due. On May 25,
2015, the trial court filed findings of fact and conclusions of law. Among other
things, the trial court found that ESIL, Cook, and RDWI had nonsuited their
actions; Klaus Reif and Reif Winery remained as plaintiffs in the lawsuit for
purposes of registration, recognition, and enforcement of a foreign judgment;
Klaus Reif and Reif Winery did not obtain their judgment against Nicholas by
fraud; the judgment in their favor was valid and final; the judgment satisfied all
3
In the Canadian judgment, the court explained that in its discretion it chose to make an
“elevated costs award” against Nicholas, finding, among other things, that “[a]lthough the Court
found a technical breach of copyright . . . against Mr. Brian Cook and [RDWI], the Plaintiff’s
claim was opportunistic and highly exaggerated, and was conducted in a way that lengthened,
complicated and delayed the proceedings unduly, and that unjustifiably ensured that the costs
incurred by the Defendants would be entirely out of proportion to any amount that the Plaintiff
could possibly have received by way of damages or an accounting for profits.” The court also
found that “[t]here was never any real basis for a claim against Reif Winery Inc. and Mr. Klaus
Reif” and that “[t]hese parties were joined and maintained as Defendants in what appears to the
Court to have been a cynical attempt by the Plaintiff to put further pressure on the other
Defendants to accede to his exorbitant claim.”
3
filing and notice requirements of the Act and was entitled to recognition,
registration, and enforcement in Texas; and Nicholas failed to present any credible
evidence of his asserted defenses under the Act. The trial court also rendered
conclusions of law in support of the relief it awarded to the Reif parties.
Nicholas requested amended findings of fact and conclusions of law, which
the trial court refused. This appeal followed.
ANALYSIS OF NICHOLAS’S ISSUES
On appeal, Nicholas raises six issues, some with multiple sub-issues: (1) the
trial court erred by denying Nicholas’s motion to show authority against attorney
Fletcher; (2) the trial court’s findings of fact and conclusions of law were
incomplete and inadequate such that they caused him harm; (3) the trial court erred
in recognizing the Canadian judgment because Fletcher’s affidavit does not
comply with the Act’s statutory requirement that the affidavit list the “last known
post office” addresses of the judgment creditors; (4) the judgment lacks finality,
conclusiveness, and enforceability, because it is not signed by the Canadian judge
who presided over the proceeding; (5) the judgment was not properly
authenticated; and (6) the judgment was procured by fraud. We will first address
Nicholas’s second issue concerning the trial court’s findings of fact and
conclusions of law. We will then address the motion to show authority and
Nicholas’s challenges to the trial court’s judgment.
I. The Trial Court’s Findings of Fact and Conclusions of Law
In his second issue, Nicholas argues that the trial court’s findings and
conclusions were inadequate and incomplete because “there are no explicit
findings of fact and the findings appear to be attempts at conclusions of law,
without reference to any underlying ultimate facts” and “there are no substantive
4
conclusions of law.” As a result, Nicholas maintains, he has been harmed because
he must guess at the trial court’s reasons for granting the judgment, which requires
him to file a lengthier and more complicated appellate brief in an attempt to cover
all potential bases for the judgment. Nicholas requests that this Court abate the
appeal, order the trial court to make “appropriate” findings and conclusions, and
grant Nicholas leave to amend his appellate brief in response to the amended
findings and conclusions.
When properly requested, the trial court has a mandatory duty to
file findings of fact and conclusions of law. Cherne Indus., Inc. v. Magallanes, 763
S.W.2d 768, 770 (Tex. 1989). The primary purpose for findings of fact is to assist
the losing party in narrowing his issues on appeal by ascertaining the true basis for
the trial court’s decision. See Rush v. Barrios, 56 S.W.3d 88, 96 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied) (noting that “it is advantageous to the
appellant to narrow the issues on appeal by requesting findings of fact and
conclusions of law”); Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241,
255 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (same).
A party may request additional or amended findings of fact and conclusions
of law if the party believes that the court’s findings and conclusions are deficient in
some way. See Tex. R. Civ. P. 298. If a party requests additional findings and
conclusions, the request “should sharpen, not obfuscate, the issues for appeal.”
Vickery, 5 S.W.3d at 255. The trial court “has no duty [to] make additional or
amended findings that are unnecessary or contrary to its judgment; a trial court is
only required to make additional findings and conclusions that are appropriate.”
Vickery, 5 S.W.3d at 254.
A trial court’s refusal to make findings of fact does not require reversal if the
record before the appellate court affirmatively shows that the complaining party
5
suffered no harm. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per
curiam); Magallanes, 763 S.W.2d at 772. Error is harmful if it prevents an
appellant from properly presenting a case to the appellate court. Tex. R. App. P.
44.1(a)(2); Tenery, 932 S.W.2d at 30. Generally, the controlling issue is whether
the circumstances of the case would require the appellant to guess at the reasons
for the trial court’s decision. Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50,
54–55 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
A review of Nicholas’s request for amended findings of fact and conclusions
of law reveals that it is 27 pages long, lists 35 “material issues which were disputed
during the trial” (not counting sub-issues), and requests 44 additional findings of
fact and 35 additional conclusions of law. Many of the so-called disputed issues
and requested findings and conclusions are repetitive, include unnecessary
evidentiary matters irrelevant to the ultimate issues, or are otherwise not needed to
uphold the judgment. The trial court is not required to set out in detail every reason
or theory by which it arrived at its final conclusions. H.K. Global Trading, Ltd. v.
Combs, 429 S.W.3d 132, 141 (Tex. App.—Austin 2014, pet. denied). Nor is the
trial court required to accept amended findings and conclusions that merely resolve
evidentiary issues or are otherwise unnecessary. Limbaugh v. Limbaugh, 71
S.W.3d 1, 6 (Tex. App.—Waco 2002, no pet.) (explaining that the trial court must
make findings and conclusions on ultimate or controlling issues, but need not do so
on evidentiary issues); Vickery, 5 S.W.3d at 254 (stating that the trial court is not
required to accept unnecessary findings).
To the extent Nicholas contends that the trial court was required to accept all
of his amended findings and conclusions, we reject that contention because it
would run counter to the intended purpose of the rules by greatly increasing, rather
than narrowing, the issues on appeal. See Rush, 56 S.W.3d at 96; Vickery, 5
6
S.W.3d at 255. Further, although Nicholas asserts that the trial court’s failure to
make additional findings and conclusions prevented him from adequately
presenting his argument on appeal, the record shows that he was able to properly
present his appellate arguments for this Court’s analysis. We therefore overrule
Nicholas’s second issue.
II. The Motion to Show Authority
In his first issue, Nicholas contends that the trial court improperly denied his
motion to require attorney Fletcher to show authority to act on behalf of ESIL,
Cook, and RWDI. According to Nicholas, in the absence of an affidavit or
testimony by a representative of these parties, the trial court’s denial of his motion
should be reversed and remanded for the trial court to require Fletcher to provide
sufficient evidence of his authority to act on their behalf.
We review a trial court’s ruling on a Rule 12 motion to show authority for an
abuse of discretion. Bosch v. Harris Cty., No. 14-13-01125-CV, 2015 WL 971317,
at *3 (Tex. App.—Houston [14th Dist.] Feb. 26, 2015, no pet.) (mem. op.). Rule
12, titled “Attorney to Show Authority,” provides, in pertinent part:
A party in a suit or proceeding pending in a court of this state may, by
sworn written motion stating that he believes the suit or proceeding is
being prosecuted or defended without authority, cause the attorney to
be cited to appear before the court and show his authority to act. . . .
At the hearing on the motion, the burden of proof shall be upon the
challenged attorney to show sufficient authority to prosecute or
defend the suit on behalf of the other party. Upon his failure to show
such authority, the court shall refuse to permit the attorney to appear
in the cause, and shall strike the pleadings if no person who is
authorized to prosecute or defend appears.
Tex. R. Civ. P. 12. The purpose of a Rule 12 motion is to protect parties from
groundless suits and to permit dismissal of suits instituted without authority. See
Angelina Cty. v. McFarland, 374 S.W.2d 417, 422–23 (Tex. 1964); Urbish v.
7
James, 688 S.W.2d 230, 233 (Tex. App.—Houston [14th Dist.] 1985, no writ).
At the hearing on Nicholas’s motion, Nicholas stated that he believed that
Fletcher lacked authority to act on behalf of ESIL, Cook, and RDWI. Nicholas
further argued that the burden was on Fletcher to demonstrate his authority. The
trial court asked Nicholas why he believed Fletcher lacked authority, and Nicholas
responded that he was not required to produce evidence as to his belief. After
reviewing the notice of nonsuit filed on behalf of ESIL, Cook, and RDWI, the trial
court stated that it appeared to be a “valid nonsuit.” The trial court also questioned
Fletcher concerning his authority to act, and asked him if he had been retained.
Fletcher responded that he had been retained by a Canadian attorney for the parties
to domesticate the judgment, and he confirmed that he had received payment for
his services. The trial court then denied Nicholas’s motion.
Assuming without deciding that the trial court erred in denying Nicholas’s
motion to show authority, Nicholas has not demonstrated that he was harmed. See
Tex. R. App. P. 44.1 (no judgment may be reversed on appeal unless the error
probably caused the rendition of an improper judgment or probably prevented the
appellant from properly presenting the case to the court of appeals). The claims
asserted by ESIL, Cook, and RDWI were nonsuited before the motion was heard,
mooting the issue and effectively providing Nicholas the relief to which he would
have been entitled had he been successful. See McFarland, 374 S.W.2d at 422–23;
Urbish, 688 S.W.2d at 233. We therefore overrule Nicholas’s first issue.
III. The Affidavit Supporting the Request for Recognition of the
Foreign Judgment
Nicholas next contends that Fletcher’s affidavit did not comply with the
Act’s requirement that the affidavit include the “last known post office address” of
the judgment creditors, because Fletcher instead used the address of law offices of
8
the creditors’ Canadian attorney.
The Act governs the recognition of foreign country money judgments.
Diamond Offshore (Bermuda), Ltd. v. Haaksman, 355 S.W.3d 842, 845 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied). When recognition is not contested
or a contest is overruled, a foreign-country judgment is conclusive between the
parties to the extent that it grants recovery or denial of a sum of money. Id. The
party seeking to avoid recognition has the burden of proving a ground for
nonrecognition. Id. We review a trial court’s ruling on recognition of a foreign-
country judgment de novo. Id.
The procedure for recognizing a foreign judgment includes filing an
authenticated copy of a foreign judgment with a court clerk and providing notice to
the judgment debtor. See Tex. Civ. Prac. & Rem. Code §§ 36.0041, 36.0042;
Beluga Chartering B.V. v. Timber S.A., 294 S.W.3d 300, 303 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). To facilitate the provision of notice to the
judgment debtor, the Act requires the following:
(a) At the time a foreign country judgment is filed, the party seeking
recognition of the judgment or the party's attorney shall file with the
clerk of the court an affidavit showing the name and last known post
office address of the judgment debtor and the judgment creditor.
(b) The clerk shall promptly mail notice of the filing of the foreign
country judgment to the party against whom recognition is sought at
the address given and shall note the mailing in the docket.
(c) The notice must include the name and post office address of the
party seeking recognition and that party’s attorney, if any, in this state.
Tex. Civ. Prac. & Rem. Code § 36.0042.
Nicholas challenges the Reif parties’ compliance with section 36.0042(a)’s
requirement that the affidavit accompanying the foreign-country judgment shall
provide the “name and last known post office address of the . . . judgment
9
creditor.” Tex. Civ. Prac. & Rem. Code § 36.0042(a). In this case, the address for
each judgment creditor was given as “C/O Nicholas F. Ferguson, 80 King St., Suite
900, PO Box 760, St. Catharines, Ontario, L2R 6Y8.” Nicholas contends that the
address of the Canadian attorney’s law offices is not in strict compliance with the
filing requirements necessary to invoke the statute. See Tex. R. Civ. P. §§ 36.004;
36.0042; see also Wu v. Walnut Equip. Leasing Co., 909 S.W.2d 273, 278 n.1
(Tex. App.—Houston [14th Dist.] 1995) (stating that the statutory requirement of
an affidavit showing the name and last known post office address of the judgment
debtor and judgment creditor is “an essential element” of the Uniform Enforcement
of Foreign Judgments Act without which a judgment of a sister state ceases to have
the same effect as a judgment of the court in which it was filed), rev’d on other
grounds, 920 S.W.2d 285 (Tex. 1996) (per curiam).
In response, the Reif parties assert that the reason the statute requires an
address is so that the judgment debtor might be able to contact the judgment
creditor, and when involved in legal matters, many individuals use their attorney’s
address for purposes of notice and contact. The Reif parties also argue that the
statute does not require a more specific type of address for the judgment creditor,
such as the business, residence, or actual physical address. Nicholas replies that to
accept the Reif parties’ position would be to permit a judgment debtor to use “any
address it chooses” as its last known post office address.
Neither party cites any authorities addressing the specific issue raised, and
we have located no case directly on point. However, we find instructive a case
involving the similar filing and notice requirements of section 35.004 of the
Uniform Enforcement of Foreign Judgments Act (“UEFJA”). See Tri-Steel
Structures, Inc. v. Hackman, 883 S.W.2d 391 (Tex. App.—Fort Worth 1994, writ
10
denied).4 In that case, the Hackmans had filed in the trial court a foreign judgment
they obtained against Tri-Steel along with an affidavit containing Tri-Steel’s last
known post office address, and both the Hackmans and the court clerk sent notices
to Tri-Steel at that address. Id. at 394. However, the address provided was incorrect
and Tri-Steel denied that it received the notices. Id. at 394–95. On appeal, Tri-Steel
complained that the filing and notice provisions of section 35.004 were not
sufficient to meet the minimum standards of due process and, further, that the
notice it received was inadequate. See id. at 393–94. Relevant here, the court
concluded that Tri-Steel was not prejudiced by the “technical violation” of the
statute because Tri-Steel had learned of the filing in time to assert defenses to the
judgment; consequently, the court held that the trial court did not err in
domesticating the foreign judgment. Id. at 395. The court also declined to reach
Tri-Steel’s due process challenge to the statute, noting that “because Tri-Steel still
had a manner of recourse even after the defective notice, it has failed to show it
suffered any harm as a result of the notice provisions of the [UEFJA].” Id. at 396.
Cf. Tanner v. McCarthy, 274 S.W.3d 311, 316–17 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (holding that judgment creditor’s failure to file affidavit
concurrently with foreign judgment as statute required did not deprive trial court of
jurisdiction, but could present procedural bar to enforcement because court clerk
would not have the information necessary to provide the judgment debtor with
notice of the filing).
In this case, Nicholas argues that the address of the Reif parties’ Canadian
attorney, Ferguson, is insufficient to satisfy section 36.0042(a)’s requirement that
4
Like section 36.0042(a) of the Act, section 35.004(a) of the UEFJA provides: “At the
time a foreign judgment is filed, the judgment creditor or the judgment creditor’s attorney shall
file with the clerk of the court an affidavit showing the name and last known post office address
of the judgment debtor and the judgment creditor.” See Tex. Civ. Prac. & Rem. Code
§ 35.004(a).
11
the judgment creditor’s “last known post office address” be provided in the
affidavit filed concurrently with the foreign-country judgment. However, Nicholas
does not contend that Ferguson does not represent the Reif parties in this matter or
that he was prejudiced in any way as a result of the address provided. Therefore,
assuming for purposes of this appeal that the Reif parties’ addresses did not satisfy
the technical statutory requirement of section 36.0042(a), we nevertheless hold that
because Nicholas has not shown that he was harmed by the alleged technical
violation of the statute, the trial court did not err in recognizing the judgment. We
therefore overrule Nicholas’s third issue.
IV. The Finality, Conclusiveness, and Enforceability of the Judgment
In his fourth issue, Nicholas argues that the Act does not apply because the
Canadian judgment is not “final and conclusive where rendered.” See Tex. Civ.
Prac. & Rem. Code § 36.002(a); Reading & Bates Constr. Co. v. Baker Energy
Res. Corp., 976 S.W.2d 702, 706 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied).5 According to Nicholas, the Canadian judgment is not enforceable for
three reasons: (1) it is not facially final; (2) it never became effective pursuant to
Canadian federal court rules; and (3) it is not a final judgment under Texas law.
The crux of Nicholas’s arguments is that the judgment is not final because it does
not contain the trial judge’s original signature. Nicholas argues that under both
Canadian and Texas law the lack of a signature shows that the Reif parties never
5
In relevant part, the Act provides:
(a) This chapter applies to a foreign country judgment:
(1) that is final and conclusive and enforceable where rendered, even
though an appeal is pending or the judgment is subject to appeal; or
(2) that is in favor of the defendant on the merits of the cause of action and
is final and conclusive where rendered, even though an appeal is pending
or the judgment is subject to appeal.
Tex. Civ. Prac. & Rem. Code § 36.002(a).
12
satisfied their initial burden to show that the judgment was final and enforceable.
In a finality challenge, the judgment debtor bears the burden of producing
evidence demonstrating that the judgment is not final if the judgment is facially
final. Hernandez v. Seventh Day Adventist Corp., 54 S.W.3d 335, 337 (Tex.
App.—San Antonio 2001, no pet. (citing Dear v. Russo, 973 S.W.2d 445, 446
(Tex. App.—Dallas 1998, no pet.)). If the judgment is not facially final, however,
the judgment creditor bears the burden of producing evidence demonstrating the
judgment is final. Id. In determining finality for purposes of the Act, we consider
whether the judgment is final according to the laws of the foreign country. Id.
The Reif parties’ sole response to this issue is that it was not preserved for
review. The Reif parties are correct that Nicholas did not complain in his motion
for nonrecognition that the judgment lacked finality because it was not signed.
However, Nicholas raised the issues of finality, conclusiveness, and enforceability
in his opening statement at trial. He also cross-examined Nicholas Ferguson, the
Canadian lawyer who obtained the certified copy of the judgment from the
Canadian federal court, concerning the lack of an original signature. Ferguson
explained that the judgment was a certified copy and not the original judgment,
and he acknowledged that it did not bear the presiding judge’s signature. Ferguson
also acknowledged that he had never seen the original judgment bearing the
judge’s signature. Nicholas also questioned Ferguson concerning a Canadian court
rule providing that an order is generally effective when signed.6 The trial court
ultimately found that the judgment was “valid and final,” thereby rejecting
6
Nicholas asked Ferguson to read from “Federal Court Rule 392(2),” which provides:
“Unless it provides otherwise, an order is effective from the time that it is endorsed in writing
and signed by the presiding judge or prothonotary or, in the case of an order given orally from
the bench in circumstances that render it impracticable to endorse a written copy of the order, at
the time it is made.”
13
Nicholas’s finality challenge. On this record, we conclude that Nicholas preserved
his complaint for appellate review.
The first page of the judgment identifies the docket number of the case, the
date of the judgment, and “The Honourable Mr. Justice Russell” as the presiding
justice of the court. It also bears a federal court seal. The five-page judgment
reflects that, after adjudicating liability on July 12, 2010, the court ordered the
parties to make written submissions on the issue of costs, which the defendants
submitted and the court received and reviewed. After a detailed discussion of the
“factors at play in this dispute,” the court considered the applicable federal court
rules and exercised its discretion in rendering a judgment awarding costs to Klaus
Reif, Reif Winery, ESIL, Cook, and RDWI.7
On the last page of the judgment, Justice Russell’s name appears typed and
in quotation marks above the signature line, as reproduced here:
7
Nicholas’s affidavit filed in support of his motion for nonrecognition confirmed that the
judgment for costs was rendered after liability had been determined. Nicholas did not aver that
the judgment at issue lacked finality for any reason. United States courts routinely grant
recognition to such later-determined costs assessments as final judgments under the UFMJRA.
See New Hampshire Ins. Co. v. Magellan Reinsurance Co. Ltd., No. 02-11-00334-CV, 2013 WL
105654, at *6 (Tex. App.—Fort Worth Jan. 10, 2013, pet. denied) (mem. op.).
14
Thus, although the certified copy of the judgment does not contain an
original or graphically reproduced signature, it contains a signification that a
signed original exists. Similar forms of signification are commonly used in court
filings and other documents.8 Further, Ferguson testified that the certified copy was
obtained from the Registrar of the Court in Toronto and he had obtained it in the
same way he has obtained certified copies from the federal court for more than
twenty-five years. Ferguson also testified that the judgment was an effective and
final judgment of Justice Russell.
On this record, we hold that the trial court did not err by concluding that
Reif and Reif Winery demonstrated that the Canadian judgment was facially final.
See Hernandez, 54 S.W.3d at 337. We overrule Nicholas’s fourth issue.
V. Authentication of the Judgment
In his fifth issue, Nicholas contends that the Canadian judgment was not
properly authenticated. “To be recognized under the Act, a foreign country
judgment must be authenticated in accordance with (1) an act of Congress; (2) a
Texas statute; or (3) a treaty (or other international convention) to which the
United States is a party.” New Hampshire Ins., 2013 WL 105654, at *7 (citing Tex.
Civ. Prac. & Rem. Code § 36.0041); see Hernandez, 54 S.W.3d at 338 (stating that
authentication, like finality, is required to invoke the Act). It is undisputed that the
Canadian judgment is not authenticated by an act of Congress or a treaty;
therefore, the judgment must be authenticated in accordance with Texas law. On
appeal, Nicholas argues that the judgment is not properly authenticated under Rule
901 of the Texas Rules of Evidence and does not satisfy the requirements for self-
authentication under Rules 902(3) and 902(4).
8
Indeed, Nicholas’s affidavit filed in support of his motion for nonrecognition attaches
other orders showing the same type of significations.
15
Under Rule 901, the requirement of authenticity is “satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” In Re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (citing Tex. R. Evid.
901(a)) (internal quotations omitted). Evidence may be authenticated in various
ways, including by direct testimony from a witness with knowledge that a matter is
what it is claimed to be. See Tex. R. Evid. 901(b)(1); New Hampshire Ins. Co.,
2013 WL 105654, at *7. Authenticity may also be proved by circumstantial
evidence. Sinegaure v. Bally Total Fitness Corp., No. 01-05-01070-CV, 2008 WL
5263235, at *6 (Tex. App.—Houston [1st Dist.] Dec. 18, 2008, no pet.) (mem.
op.). Evidentiary rulings are committed to the sound discretion of the trial court.
Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007).
The trial court, as the fact finder, is the sole judge of a witness’s credibility and the
weight of his testimony, and may also resolve inconsistencies in the witness’s
testimony. See Vickery, 5 S.W.3d at 255 n.5.
Nicholas contends that the judgment was not properly authenticated by
Ferguson’s testimony because Ferguson lacked firsthand knowledge that the
judgment was an authentic copy of an original judgment. See Starzl v. Starzl, 686
S.W.2d 203, 206 n.2 (Tex. App.—Dallas 1984, no writ) (noting that
“authentication of a judgment of a sister state may also be accomplished by a
witness who has compared the copy offered in the evidence with the original
record entry thereof”), superseded by statute on other grounds, Farley v. Farley,
731 S.W.2d 733 (Tex. App.—Dallas 1987, no writ). Nicholas argues that
Ferguson’s testimony demonstrates that he obtained the judgment from “a
nameless agent”; he did not claim to have received the judgment directly from the
court registry officer or see the registry officer certify it; he had no fact-based
evidence as to where the registry officer obtained the judgment; and he did not
16
testify that he discussed it with the registry officer. Nicholas also points out that
Ferguson acknowledged on cross-examination that he has never seen the original
order signed by the presiding Canadian judge. According to Nicholas, this
testimony contradicts Fergusons’s earlier direct testimony that he “had an
opportunity to look at the original and it conforms with the original in all respects,”
and also impeaches his affidavit of June 16, 2011, in which he stated that he had
compared the copy to the original document.
As the above representation reflects, the last page of the Canadian judgment
contains a certification that “the above document is a true copy of the original filed
of record in the Registry of the Federal Court of Canada” on December 1, 2010.
The certification is dated June 13, 2011, and is signed by Jeff Weir, Registry
Officer. The judgment also contains a stamp of the Department of Foreign Affairs
and International Trade authenticating Weir’s signature. Ferguson testified that he
obtained the certified copy of the judgment from the court registry in the same way
he has obtained certified copies from the federal court for twenty-five years.
Ferguson further testified that to obtain the certified copy of the judgment, he
employed an agent to go to the court to with a letter requesting the certified copy
from the registrar, and he paid a fee to obtain the document. Ferguson explained
that after he received the certified copy from the federal court in Toronto, he sent it
to the Department of Foreign Affairs for authentication of the registrar’s signature.
Ferguson acknowledged that he has never seen the original signed order, but he
testified that he knew it was a copy of the original based on his prior experience.
During the trial, the trial court observed that the judgment was certified as a true
and correct copy of the judgment, and it had stamps from the registrar and the
Department of Foreign Affairs and International Trade in Canada. Consequently,
the trial court determined that the judgment “has all the appearance of being an
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accurate, certified copy of a judgment from this particular Judge and Court.”
Based on Ferguson’s testimony explaining the process he undertook to
obtain the certified copy of Justice Russell’s judgment from the court registrar and
to authenticate the registrar’s signature, the registrar’s certification that the
document was a true copy of the original filed on December 1, 2010, and the
additional certification of the Department of Foreign Affairs and International
Trade, we cannot say that the trial court abused its discretion in determining that
the evidence was sufficient to demonstrate that the judgment is what it purports to
be. See Tex. R. Evid. 901(a); Sinegaure, 2008 WL 4263235, at *7 (affirming trial
court’s ruling that contract was authenticated by sponsoring witness who vouched
for its authenticity and no party testified that signature on contract was not
appellant’s). The trial court was also entitled to consider Ferguson’s credibility,
resolve any inconsistencies in his testimony, and determine the weight of the
evidence. Because the trial court could have determined that the judgment was
authenticated under Rule 901, we need not address whether the judgment met the
requirements for self-authentication under Rules 902(3) and 902(4). See New
Hampshire Ins. Co., 2013 WL 105654, at *7 (stating that party seeking recognition
and enforcement of foreign-country money judgment was not required to
authenticate the judgment under Rule 902, but could choose to authenticate the
judgment in accordance with Rule 901). We overrule Nicholas’s fifth issue.
VI. Judgment Procured Through Fraud
In his sixth issue, Nicholas contends that the trial court erred by concluding
that the Canadian Judgment was not obtained by fraud. According to Nicholas,
ESIL, Cook, RDWI, Klaus Reif, and Reif Winery misrepresented to the Canadian
court that they each individually suffered recoverable and reimbursable costs in
their submissions for costs, and they were awarded costs based on those
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misrepresentations. Nicholas claims that in fact, Klaus Reif was the only party who
actually suffered recoverable and reimbursable costs, a fact Nicholas did not learn
until the present Texas litigation.
The Act provides several statutory grounds on which a foreign-country
judgment need not be recognized, including if “the judgment was obtained by
fraud.” Tex. Civ. Prac. & Rem. Code § 36.005(b)(2). The party seeking to avoid
recognition has the burden of proving a ground for nonrecognition. Courage Co.,
L.L.C. v. Chemshare Corp., 93 S.W3d 323, 331 (Tex. App.—Houston [14th Dist.]
2002, no pet.). Unless the judgment debtor satisfies his burden of proof by
establishing the specific grounds for nonrecognition, the court is required to
recognize the foreign-country judgment. Id. A judgment debtor is precluded from
collaterally attacking a foreign judgment when an issue was litigated before a
foreign court or the party was given the opportunity to litigate the issue before that
court. Id. Grounds for nonrecognition may be waived if a party had the right to
assert that ground as an objection or defense in the foreign country court but failed
to do so. Id.
Nicholas contends that he discovered the fraud from documents that were
not included in the defendant’s cost submissions to the Canadian court and were
unknown to him before the present litigation, including a retainer agreement
between the defendants and their attorneys, Torys LLP; legal bills addressed to
Cook reflecting the total legal costs to the defendants; and a “ledger” of Reif
Winery. He also contends that Klaus Reif testified at trial that Reif Winery was the
only defendant in the Canadian action that suffered a recoverable and reimbursable
actual economic loss. Therefore, Nicholas maintains, the fraud prevented him from
making a full and fair defense in the Canadian action, because he did not know that
only one of the five defendants actually incurred litigation costs. In support of his
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contention that the record reflects extrinsic fraud, Nicholas cites Harrison v.
Triplex Gold Mines, Ltd, 33 F.2d 667, 671 (1st Cir. 1929).
We conclude, however, that the trial court could have rejected Nicholas’s
fraud allegation based on Nicholas’s arguments at trial, the evidence presented, and
Klaus Reif’s testimony. At trial, Nicholas argued that the submissions for costs in
the Canadian court reflected that all of the defendants incurred legal costs, but in
the present litigation, the Reif parties were only able to produce legal bills
addressed to Cook from Torys LLP; therefore, the evidence showed that only Cook
actually incurred any legal fees, contrary to what was represented to the Canadian
court. On cross-examination, however, Klaus Reif did not testify that only one
party actually incurred litigation costs in the Canadian action. To the contrary, he
testified that although Reif Winery paid the legal bills from Torys LLP that were
sent to Cook, the defendants as a group incurred the legal fees. Nothing in the
evidence admitted at trial was inconsistent with Klaus Reif’s testimony. And
although Nicholas argued that he was precluded from obtaining relevant discovery
in the Canadian court, he presented no evidence to support that allegation.
Therefore, the trial court would not have erred in rejecting Nicholas’s claim that
the Canadian judgment was not entitled to recognition based on fraud.
Even accepting Nicholas’s characterization of the alleged fraud, his own
argument does not support reversal of the trial court’s judgment. The Canadian
judgment reflects that, after liability was determined, the trial court ordered both
parties to provide cost submissions for its review and consideration. Only the
defendants presented submissions in response. The issue of costs was clearly
before the trial court and Nicholas had an opportunity to contest the defendants’
submissions, but apparently chose not to do so. Further, the record contains no
evidence that Nicholas was prevented from obtaining discovery of the complained-
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of documents relating to the defendants’ legal bills in connection with the costs
determination. On this record, we hold that Nicholas has failed to carry his burden
to demonstrate that he was denied an opportunity to fully and fairly litigate the
issue of the costs awarded to the defendants. See Courage Co., 93 S.W3d at 331;
see also Norkan Lodge Co. Ltd. v. Gillum, 587 F. Supp. 1457, 1460–61 (N.D. Tex.
1984) (citing Harrison in holding that appellant presented no evidence that
Canadian judgment was obtained by fraud in part based on appellant’s own failure
to appear for trial and contest appellees’ version of the facts). We overrule
Nicholas’s sixth issue.
CONCLUSION
Having overruled Nicholas’s issues, we affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise (Frost, C.J.,
concurring).
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