IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00910-COA NORTH DALLAS BANK & TRUST CO. APPELLANT

v. JOHN M. MABRY APPELLEE DATE OF JUDGMENT: 05/16/2017 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM W HICH APPEALED: ALCORN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: AMANDA CLEARMAN W ADDELL ATTORNEY FOR APPELLEE: JOHN O. W INDSOR NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 11/20/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. In Decem

ber 2004, North Dallas Bank & T rust Com pany (North Dallas) obtained a def ault judgm ent in Texas against John Mabry

. In D ecem ber 2 0 1 4 , North Dallas enrolled the judgm ent in Mississippi. I n F e b r u a r y 2016, Mabry f

iled a m otion to set aside the enrollm ent of

the judgm e nt pursuant to Mississippi Rule of Civil Procedure 60(b)(4). The Alcorn County Circuit Court granted Mab r y ’ s m otion, holding that the j udgm ent was unenf orceable because it was enrolled m ore than seven y e ars af ter the Texas judgm ent was entered. See Miss. Code Ann. § 15-1-45 (Rev. 2012). Accordingly , the court ordered the circuit clerk to m ark the judgm e nt as cancelled on the county judgm ent roll. ¶2. On appeal, North Dallas a rgues that the circuit court erred because Mabry w aived hisstatute of lim itations d e f ense a nd did not f

ile his Rule 60(b)(4) m otion “within a r easonable tim e.” Howe v e r , w e c o n c lude t hat the circuit court correctly applied the precedent of this Court holding that attem

p ts to enroll or enf

orce a f oreign j udgm ent af

ter the expiration of the statutory lim itations period are void ab initio. Theref ore, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. On Decem

ber 14, 2004, N orth Dallas o btained a def ault judgm ent against Mabry in

state court in Texas f

or a t otal o f $ 470,521.43 plus post-judgm ent interest. Alm ost ten y ears later, on D ecem

ber 11, 2014, North Dallas f iled a notice of enrollm ent o f the judgm ent in the Alcorn County Circui t C o u r t

. North Dallas’s certif icate of service shows that it m ailed a copy o f t h e notice to both an address in Savannah, Tennessee, and a restaurant in Corinth, the Chop House Shiloh Ridge (Chop House). North Dallas alleged, on inf orm ation and belief , that the Savannah a ddress was Mabry ’ s last known address and that Mabry c ould also be f ound at t he Chop H ouse, where he was once em ploy e d. The docket appears to s how that the circuit clerk sent notice o f t h e e nrollm ent to both addresses b y certif ied m ail, but the notice sent to the Savannah a ddress was returned t o the clerk m arked not deliverable/unable to f o rward. ¶4. In January 2015, North Dallas s ought to enf o rce the enrolled judgm ent t hrough a writ of garnishm ent d i recte d t o t he Chop House. A sherif f ’s return shows that the w rit and a

sum m ons were serv e d o n the Chop House, but the Chop House f ailed to respond. North Dallas subsequently f

iled a m otion f

or a conditional judgm ent against the Ch o p House as

2garnishee. In July 2 0 15, the circuit court granted North D a l las’s m otion and o rdered the

Chop House to appear at a sho w - c a u s e h e a r i ng. However, hearing notices m ailed to the Chop House were returned as undeliverable. The Chop House apparently ceased operations

at som e point. ¶5. In January 2016, counsel f or Mabry f

iled an entry of appearance. In February 2016, Mabry f iled a m otion to set aside t he judgm ent pursuant t o Rule 60(b)(4) of the Mississippi
R u l e s o f Civil P rocedure. Mabry argued t hat the enrollm ent of the judgm ent was “void” because i t was f

iled in Mississippi m ore than seven y ears a f t er the judgm ent was entered in
Texas. See Miss. Code Ann. § 15-1-45. In response, North Dallas denied t hat t he j udgm ent

was void. North D allas argued that Mabry had waived his s tatute of lim itations d ef ense and that his Rule 60(b)(4) m otion was untim ely

. ¶6. Following a hearing, the circuit court granted Mabry ’s Rule 60(b)(4) mo t i o n . The

court f ound that the judg ment was unenf orceable because it w as enrolled m ore than seven
y ears af ter it was entered in Texas. North Dallas appealed. 1
ANALYSIS ¶7. North D allas argues that the circuit court erred by grant i n g Mabry ’s Rule 60(b)(4)

m otion. N orth Dallas contends that the judgm ent was not void, that Mabry waived his statute of lim itations def

ense, and that Mabry ’s Rule 60(b)(4) m otion was untim ely

. Our standard

1 North Dallas f

i led its f irst notice of appeal o ne day t oo l ate. However, North Dallas then f iled a tim ely m o tion to extend the tim e f or f iling a notice of appeal, see Miss. R. App. P. 4(g), which the circuit court granted. North Dallas then f iled a tim ely

notice of appeal. 3of review is de novo because the circuit court’s ruling and the i ssues raised by North Dallas

on appeal concern “the application of law to a set of undisputed f acts.” Nat’l E

nters. Inc. v. Valsamakis , 879 So. 2d 523, 523-24 (¶4) (Miss. Ct. App. 2004). ¶8. Mabry f

ailed to f ile a brief on appeal. W e c ould “take [ Mabry ’s] f ailure to f ile a brief

as a c onf ession of error and reverse.” Jay Foster PLLC v. McNair , 1 75 So. 3 d 565, 571 (¶15) (Miss. C t. App. 2015) (quoting A r chie v. City o f Canton , 92 So. 3d 1279, 1282 (¶10) (Miss. Ct. App. 2012)). H owever, “if the record can be c o nveniently exam ined a nd such

exam ination reveals a sound and unm istakable basis o r ground upon which the judgm ent m ay be saf ely af f irm e d, we m ay

disregard [ M abry ’ s f

ailure to f ile a brief ] and af f irm .” Id. ¶9. T h e c o u r t s of this S tate are required to give “Full F aith and Credit” t o judgm ent s entered by the courts of other states. U.S. C onst. art. IV, § 1; see Davis v
. Davis , 558 So. 2d 814, 8 17 ( Miss. 1990). “Enrol l ment and enf orcem ent of f

oreign judgm ents in Mississippi is governed by statute

. . . .” Davis , 558 So. 2 d at 817. The Unif orm Enf orcem ent of Foreign Judgm ents A ct, M iss. Code Ann. § 11-7-301 to -309 (Rev. 2004), establishes the procedure f or enrolling a f

oreign judgm ent, and the applicable statute of l im itations is f ound in Mississippi Code Annotated section 15-1-45. Davis , 558 So. 2d at 816-18. The statute of lim itations f

or e nrolling or enf

orcing a f oreign judgm ent in Mississippi i s seven y ears af ter entry of the f

oreign judgm e nt o r three y ears if the judgm ent debtor was a Mississippi resident when t he f

oreign action was com m enced. Miss. Code Ann. § 15-1-45; Davis , 558 So. 2d at 817. To be enf

orced in M ississippi the f o reign j udgm ent m

ust be “tim ely a n d properly

4enrolled in Mississippi.” Davis , 558 So. 2d at 818.

¶10. This Court has addressed the sam e basic issues r aised in this appeal t wice previously

. In M agallanes v. M

agallanes , 802 So. 2d 174 (Miss. Ct. App. 2001), the plaintif f s obtained

a j u d g me n t a g ainst the def endants in Virginia in 1987 but m ade no ef f ort to c ollect on the judgm ent unti l F ebruary 2000, when they enrolled t he judgm ent in Mississippi. Id. at 175 (¶¶2-3). In Novem

ber 2000, the def

endants f iled a m otion under Rule 60(b)(4) to set aside the enrollm ent of the judgm ent. Id. at 175-77 ( ¶¶1-3, 11). The def endants argued that the enrolled judgm e n t w a s v oid because it was not f i led in M ississippi within the seven-y ear
statute of l im itations. Id. at ( ¶¶3-4, 11) (citing Miss. Code Ann. § 15-1-45). I n response, the plaintif f s a rgued t h a t t h e def

e ndants “waived” the issue by f ailing to respond to the notice of enrollm ent of t he j udgm ent within the t wenty -day period set by statute. I d. at 175 (¶5) (citing Miss. Code Ann. § 11-7-305(3)). This Court rejected the plaintif f s’ waiver a rgum ent, stating succinctly : “The [ plaintif f s] in this case did not enroll their [ f oreign] judgm ent within

seven y ears as required by the statute; therefore, the judgment cannot be e nforced

. . . .” Id.

a t 176 (¶10) (em

phasis a dded). 2 The plaintif f s also argued that t he def e n dants c o u l d n o t

2 On this issue, this C ourt distinguished the Suprem e Court’s decision i n Davis , supra . In Davis , the Suprem e Court held that the judgm ent debtor waived various def enses to the enrollm ent of the judgm ent when he f ailed to f ile a n answer o r otherwise respond within the twenty

- day period set by statute. Davis , 558 S o . 2 d at 819. However, i n M agallanes , this Court observed: “ T h e [ C ]ourt in Davis f irst a ddressed the statute o f lim i tations i ssue. . . . It was not until the [ C]ourt had satisf ied itself that the j u d g me n t h a d been properly f iled with i n t h e s t a t u t e of lim itations that it l ooked to s ee i f the debtor had responded to stay enf orcem ent in a tim ely m anner.” Magallanes , 802 So. 2d at 176 (¶7). In o ther words, the Davis Court determ ined whether t he action to enroll the judgm ent was barred by the statute 5attack the enrolled judgm ent in a m otion under Rule 60(b)(4) b ecause “e i g ht m o nths af ter receiving notice that the jud g m e n t w a s enrolled [ was] too late to assert that t he j udgm ent [ was] void.” Id. at 176 (¶11). However, this Court re j e c t e d t h a t argum e nt as well. W e

a c k n o w ledged the general rule that a m otion under Rule 60(b) m ust be f iled with i n a “reasonable tim e,” b ut we held that the judgm ent w a s sim ply “unenf

orceable because it was not tim ely

f iled pursuant to [ section] 15-1-45.” Id. at 176-77 (¶11). ¶11. This Court subsequently reached the sam e conclusions i n Valsamakis

. I n that case, National Enterprises (National) obtained a judgm ent in 1 994 in T ennessee against Valsam akis. Valsamakis , 879 So. 2d at 523 (¶1). Valsam akis was a Mississippi r esident, so

s e c t ion 15-1-45’s three-y ear statute of lim itations applied to any action t o enf orce th e judgm ent. Id. at (¶3). National enrolled the judgm e nt i n Mississippi in 1995 but d id not obtain a writ of garnish me n t against Valsam akis’s e m ploy er until 1999. Id. at (¶¶1-2). In 2003, Valsam akis f

iled a m otion to vacate the g arnishm ent, which the c i rcuit court granted. Id. at (¶3). The circuit court held “that National had requested a writ of garnishm ent m ore than three y ears af

ter its judgm ent was rendered, the writ of g arnishm ent was void ab initio , and all withheld f

unds should be returned to Valsam akis.” Id. ¶12. On appeal, this Court a f f irm ed. W e held that the gar n i s h me n t a ction “was void ab
initio ” b ecause the underly i ng judgm ent “lapse[ d]” and “was extinguished by the expiration

of lim itations, even t

hough the judgment debtor failed to respond to the notice of enrollment or take any action for over nine months. See Davis , 558 So. 2d at 818-19. 6of t he lim itations statute.” Id. at 524 (¶7). National also argued that Valsam akis waived his

right t o r aise a s tatute of lim itations def ense because he waited f

our y ears to f

ile his m otion

to vacate. Id. at (¶8). However, we held that Val s a ma k is’s argum ent was not a m ere “def ense.” Id. W e held “that t h e j u d g m e n t was void ab initio because the statute of lim itations had run prior to National’s writ of garn ishm ent being issued.” Id. W e f urther stated that the judgm e nt was wholly “unenf o rceable because i t was not tim ely f iled pursuant to [ s ection] 15-1-45.” Id. ¶13. The holdings of Magallanes and Valsamakis are on-point a n d controlling in this case. T h o s e c a s es establish that ef f orts to enroll or enf

orce a f oreign judgm e nt outside t h e lim itations periods s et b y section 15-1-45 are v oid—indeed, according to Valsamakis , “void ab initio.” 3 Those two cases f urther hold that if a judgm ent is void f or that reason, then the
passage of tim e d o es not bar a m otion to set it aside as void. Valsamakis , 879 So. 2d at 524 (¶8); Magallanes , 802 So. 2d at 176-77 (¶11). ¶14. This is con s i s tent w ith Mississippi law in general regarding a m otion t o set aside a judgm ent as “void.” Rule 6 0 ( b ) ( 4 ) p r ovides that a court m ay s et aside a f inal judgm ent if “the judgm ent is void.” M.R.C.P. 60(b)(4). The rule provides that such a “m otion shall be

m ade within a reasonable tim e.” M.R.C.P. 60(b). 4 However, our Suprem e C ourt has held

3 Void ab initio m eans “ null f rom the beginning.” Hood e x rel. State Tobacco Litig. , 958 So. 2d 790, 815 (¶87) (Miss. 2007) (quoting Black’s Law Dictionary 1411 ( 5 t h ed. 1979)).

4 “The f irst three subsections of Rule 6 0(b) r equire that a m otion t o s et a s i d e a judgm ent be f

iled not later than six m onths af ter the j udgm ent is entered, but subsection (4) 7“that, essentially , there can be n o tim e li mi t a t i o n f o r r elief f rom a void judgm ent as ‘no

am ount o f tim e o r delay m ay cure a void judgm ent.’” O’Neal v. O’Neal , 1 7 So. 3d 572, 575 (¶14) (Miss. 2009) (quoting Kirk v. Pope , 973 So. 2d 9 81, 988 (¶19) (Miss. 2007); Overbey

v. Murray , 569 S o. 2d 3 0 3, 3 06 (Miss. 1990)); accord, e.g. , Ravenstein v. Ravenstein , 167 So. 3d 210, 216-17 (¶12) (Miss. 2014) (“[ T]here i s no ef f ective tim e lim it f

o r seeking relief f rom a void judgm ent under Rule 60(b)(4) . . . .”). ¶15. In this case, North Dallas enrolled t he f oreign judgm ent nearly t en y ears af ter it w a s entered in Texas—alm o st three y ears outside the lim itations period set by section 15-1-45. As in Magallanes and Valsamakis , the judgm ent was unenf orceable, and its enrollm ent in Mississippi was void because it was not tim e ly f iled under section 15-1-45. Mabry f iled his Rule 60(b)(4) m otion f

ourteen m onths af

ter the judgm ent against him was enrolled. In the circuit court, Mabry did n o t d ispute that he received n otice of the e nrollm ent. However, Mabry correctly argued that the enrollm ent of the judgm ent in Mississippi was “void.” As in Magallanes a nd Valsamakis , Mabry was n ot barred f rom seeking relief f

rom the void judgm ent. “[ T]here can be no tim e lim itation f or relief f rom a void judgm ent as ‘no am ount of t im e or delay m ay cure a void judgm ent.’” O’Neal , 1 7 So. 3d at 5 75 (¶14) ( quoting Kirk , 973 So. 2d at 988 (¶19); Overbey , 569 So. 2d at 306). ¶16. I n s u mma r y , t he c ircuit court correctly h e l d t h a t t h e T e x a s j u d g me n t w a s

has no such tim e lim it.” S & M Truck i n g LLC v. Rogers Oil C o. of Columbia , 195 So. 3d 217, 221 (¶17) (Miss. Ct. App. 2016). 8unenf

orceable and its e nrollm ent in Mississippi was v oid. Theref ore, t h e c o u r t properly ordered the circuit clerk to cancel the enrolled judgm ent. ¶17. AFFIRMED

. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAI R, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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