Bosnich v. Federal Recovery of Washington

1999 | Cited 0 times | Court of Appeals of Texas | November 24, 1999


Victor Wayne Bosnich takes this restricted appeal from a no-answer default judgment rendered against him in a suit to collect a debt. We affirm.

The pleadings allege that, in 1988 1 and 1989, Bosnich executed three notes for $10,362.21, $5,857.75, and $13,972.80 ($465.76 x 30 months), respectively, with a Texas bank. Bosnich defaulted on each note on unspecified dates. Again on unspecified dates, the Texas lender failed, and the Federal Deposit Insurance Corporation (F.D.I.C.) acquired its assets, including the three notes. The F.D.I.C. later assigned its interest in the notes to appellee, Federal Recovery, which sued Bosnich on them. Bosnich was served, but did not answer. On February 10, 1999, the trial Judge signed default judgment for Federal Recovery for $26,117.78, plus $2,000 in attorney's fees (with up to $12,000 in contingent attorney's fees for appeal) and post-judgment interest. On June 11, 1999, Bosnich filed this restricted appeal.

A restricted appeal, formerly known as an appeal by writ of error, affords the same scope of review as an ordinary appeal, with certain restrictions. Tex. R. App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (writ of error). The restrictions are that the proponent (1) must have brought the restricted appeal within six months after the judgment's signing; (2) must be a party to the suit; (3) must neither have participated in the hearing that resulted in the complained-of judgment nor timely filed a post-judgment motion, request for fact findings or legal Conclusions, or notice of appeal; and (4) must show that the complained-of error is apparent from the record's face. Tex. R. App. P. 30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). This appeal concerns only the last element.

In his sole issue, 2 Bosnich claims the default judgment was void, i.e., the trial court had no subject-matter jurisdiction because the record shows that limitations had run before Federal Recovery sued, resulting in no "live" controversy between the parties and no standing for Federal Recovery. We disagree.

Limitations is an affirmative defense. Tex. R. Civ. P. 94; Woods v. William Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). It is waivable, and its running does not deprive the court of subject-matter jurisdiction or make a judgment void. Compare, e.g., Franco v. Allstate Ins. Co., 505 S.W.2d 789, 793 (Tex. 1974) (statute of limitations may be waived if not affirmatively pled) with Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (subject-matter jurisdiction cannot be waived); Chimblo v. Commissioner of Internal Revenue, 177 F.3d 119, 125 (2nd Cir. 1999), petition for cert. filed (U.S. Nov. 12, 1999) (No. 99-815) (generally, statute of limitations is affirmative defense that is not jurisdictional). Therefore, even if Federal Recovery sued late, that would not deprive the trial court of subject-matter jurisdiction.

Bosnich complains that Federal Recovery did not plead any tolling statute or other fact to defeat his limitations defense. Federal Recovery did not have to; Bosnich had to allege and prove a limitations defense. See Woods, 769 S.W.2d at 517. He failed to do so.

We overrule Bosnich's sole issue and affirm the judgment. Federal Recovery's request for sanctions is denied.

Murry B. Cohen, Justice

Do not publish. Tex. R. App. P. 47.

1. The 1988 loan was extended by agreement in 1989.

2. Appellant has withdrawn another issue, which complained that no return of service was filed before default judgment, because the clerk's record was supplemented with this item.

3. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

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