UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50961

Summary Calendar

FEDERAL DEPOSIT INSURANCE CORPORATION

as Receiver for Ranchlander National Bank,

Plaintiff-Appellee,

VERSUS

ORRIN SHAID, JR.,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

June 4, 1998

Before REYNALDO G. GARZA, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:

This case comes from a decision of the United States

District Court for the Western District of Texas, the Honorable

James R. Nowlin, presiding. In this case, the district court

granted summary judgment in favor of the Plaintiff-Appellee, the

Federal Deposit Insurance Corporation (“the FDIC”), and revived a

judgment against the Defendant-Appellant, Orrin Shaid, Jr.

(“Shaid”). Shaid timely appealed, and the matter now lies before
 

1Judge James R. Nowlin, the judge who presided over the

instant case at the district court level, signed the original 1985

Judgment.

2

this panel.

Background

On October 9, 1985, the FDIC, as Receiver of the Ranchlander

National Bank, recovered a Final Judgment against Shaid in the

amount of $5,790,419.83, to bear interest from that date at the

rate of 7.87 percent per annum until paid (“the Judgment”).1 No

writ of execution was ever issued against Shaid on the Judgment.

The Judgment became dormant for lack of execution ten years

later. See TEX.CIV.PRAC. & REM.CODE ANN. §34.001(a)(Vernon 1997). 

No amount of the Judgment has ever been paid.

On April 15, 1997, the FDIC filed this action to revive the

Judgment. The FDIC cannot execute on the Judgment, unless the

Judgment is revived pursuant to TEX.CIV.PRAC. & REM.CODE ANN.

§31.006 (Vernon 1997), which states:

A dormant judgment may be revived by scire facias or by

an action of debt brought not later than the second

anniversary of the date that the judgment becomes

dormant.

This statute was amended in 1995, and this amendment will be

discussed later.

At the district court level, Shaid claimed that the FDIC’s

action was barred by the applicable statute of limitations. 
3

Shaid also claimed that §31.006 was unconstitutional because the

statute provides for the revival of actions barred by the

applicable statute of limitations, which would allegedly affect

the vested rights of a party to rely on a statute of limitations.

On October 8, 1997, the district court granted summary

judgment in favor of the FDIC, stating that Shaid’s

constitutional argument was irrelevant because §31.006 became

effective on September 1, 1995, before the Judgment became

dormant. Based on this analysis, the district court held that no

vested rights were affected, and that there was no genuine issue

of material fact. The district court granted summary judgment in

favor of the FDIC and revived the action. Shaid now appeals, and

he argues the same claims before this circuit.

Standard of Review

We review a district court’s interpretation of a state

statute under the de novo standard of review, and we interpret

the state statute the way we believe the state Supreme Court

would, based on prior precedent, legislation, and relevant

commentary. See Transcontinental Gas Pipe Line Corp. v.

Transportation Ins. Co., 953 F.2d 985, 987-88 (5th Cir. 1992). 

Similarly, we review a district court’s grant of summary judgment

under the de novo standard of review. BellSouth

Telecommunications, Inc. v. Johnson Bros. Group, 106 F.3d 119,
 

2The district court stated that the action became dormant on

October 10, 1995, presumably because October 10 is one day after

the end of the ten-year limitation period. The parties, in their

briefs, listed October 9 as the date the action became dormant.

These differences are immaterial to the outcome of this case, but

we deemed them to be worth mentioning. For the purposes of the

instant case, we will use the date used by the district court.

4

122 (5th Cir. 1997). 

Analysis

Shaid argues that he had a vested right to claim the statute

of limitations as a defense to the FDIC’s attempt to revive the

Judgment. It is undisputed that the action became dormant on

October 10, 1995.2 However, Shaid argues that the terms of the

amended statute state that the prior version of §31.006 was to be

applicable until December 1, 1996, despite the fact that the

statute itself states that its effective date was September 1,

1995. Shaid argues that, based on this timeline, his rights

vested before the statute was truly applicable. Shaid cites

various cases stating that once a claim is barred, the right to

rely on a statute of limitations is vested, and a statute is

unconstitutionally retroactive if it takes away or impairs vested

rights acquired under existing law. See Mann v. Jack Roach

Bissonnet, Inc., 623 S.W.2d 716, 718 (Tex.Civ.App.--Houston [1st

Dist.] 1981, no writ); McCain v. Yost, 284 S.W.2d 898, 900 (Tex.

1955); TEX.CONST. Art. I, §16.

The FDIC replies that a plain language reading of the
5

statute shows that its applicable effective date was September 1,

1995, and therefore, it was in effect before the date a defense

based on the statute of limitations would vest for Shaid. The

FDIC states that well-established principles of statutory

construction require a court to enforce a plain and unambiguous

Texas statute according to its terms. Anderson v. Penix, 161

S.W.2d 455, 459 (Tex. 1942). According to such a reading, the

FDIC argues, Shaid’s contentions are contrary to the wording of

the statute, and presumably, the intent of the Texas Legislature. 

The FDIC argues that Shaid’s interpretation of the statute is

rather strained, and that a straightforward interpretation of the

statute shows that the Texas Legislature intended the statute to

take effect on September 1, 1995. The FDIC also argues that the

wording of the statute shows that the Texas Legislature intended

to allow a party to bring an action on or after December 1, 1996,

and to allow a party to revive a judgment that had become dormant

sometime in the previous two-year period. Based on this

analysis, the FDIC argues that the amended statute applies

directly to the instant case because the amendment to the statute

took effect before the action on the Judgment was dormant, and

because this case was filed within the appropriate two-year timeperiod.

We agree with the FDIC’s reasoning on this point. Shaid

offers a rather convoluted interpretation of the statute, and
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this interpretation is particularly troublesome, because the

statutes in question were amended to correct certain

inconsistencies in the law on this matter. See Cox v. Nelson,

223 S.W.2d 84, 86 (Tex.Civ.App.--Texarkana 1949, writ ref’d). 

While it is true that the Texas Legislature could have enacted a

general repealer statute in this case, the fact that it did not

do so does not provide comfort for Shaid. The district court was

correct in holding that the FDIC filed its case to revive the

Judgment within the appropriate time limits, and the operation of

the statute prevents Shaid from claiming that he had a vested

right to claim the statute of limitations as a defense.

Given that we have stated that Shaid had no vested right to

claim the statute of limitations as a defense, we need not

address whether or not §31.006 is unconstitutional. Shaid had no

vested right to rely upon, so the issue of retroactivity is

irrelevant.

Conclusion

Based on the foregoing, we find no reversible error in the

decision of the district court, which granted summary judgment in

favor of the FDIC, and revived the action. Therefore, we AFFIRM

the decision of the district court.

AFFIRMED.