Texas Lawyer Tommy Swate’s $800k Default Foreign Judgment Vacated for Lack of Proper Service

M E M O R A N D U M    O P I N I O N

After a Pennsylvania court held attorney Tommy Swate jointly and severally liable with a co-defendant for over $800,000, the plaintiffs in the Pennsylvania action filed with the Harris County District Clerk a set of six documents that the plaintiffs collectively identify as a final judgment from the Pennsylvania court.

The trial court allowed Swate’s motion to vacate the judgment to be overruled by operation of law, and Swate appealed.

We agree with Swate that he was not properly served in the Pennsylvania suit, and thus, the Pennsylvania court lacked personal jurisdiction to render judgment against him.

We accordingly reverse the trial court’s judgment and render judgment that the Pennsylvania court’s judgment against Swate is not entitled to full faith and credit in Texas.

I.   Background

The Educational Commission for Foreign Medical Graduates and its president and chief executive officer Dr. William Pinsky sued Dr. Orien L. Tulp and Tulp’s attorneys Tommy Swate1 and William Reil in Pennsylvania.

The Pennsylvania trial court granted summary judgment against Dr. Tulp and default judgment against Swate.

Reil settled, and after a nonjury trial and application of settlement credits, the trial court signed an order holding Dr. Tulp and Swate jointly and severally liable to the plaintiffs (collectively, the Judgment Creditors) in the total amount of $837,791.34.

One seeking to enforce the judgment of another state court against a Texas resident’s assets in this state must first “domesticate” the judgment.

Pursuant to the Uniform Enforcement of Foreign Judgments Act (the UEFJA), the Judgment Creditors filed in a Texas district court six documents, which they refer to collectively as the “Pennsylvania Judgment.”

Swate moved to “vacate” the foreign judgment.

Of course, a Texas court does not have jurisdiction to literally vacate a Pennsylvania court’s judgment; in the context of the UEFJA, to vacate a foreign judgment means merely to refuse to extend full faith and credit to the judgment, thus rendering it unenforceable in Texas.

As grounds for the motion, Swate argued that

(1) the Pennsylvania trial court lacked

1 The plaintiffs sued both “Tommy Swate, Esquire” and “Tommy Swate, Attorney at Law.” The latter appears to be the assumed name of the sole proprietorship or business entity under which Swate practices law, and we include both in our references to “Swate.”

personal jurisdiction over him because he was not properly served at the outset of the case,

and

(2) the judgment against him was procured by extrinsic fraud inasmuch as the Judgment Creditors’ affidavit of service allegedly stated that Swate was properly served.

In support of the motion, Swate produced evidence that “the green cards”— the return receipts for the certified mail—were not signed by him or by his authorized agent.

The Judgment Creditors responded that Pennsylvania law allows an out-of- state defendant to be served in the manner provided by the law of the jurisdiction in which service is made.

They asserted that Swate was properly served by regular first-class mail and email, as permitted by Texas Rule of Civil Procedure 21a.

They did not respond to Swate’s argument that the certified-mail receipts were not signed by Swate or Swate’s authorized agent.

In reply, Swate pointed out that Texas Rule of Civil Procedure 21a expressly states that it applies to all documents required to be served “other than the citation to be served upon the filing of a cause of action.”

Swate’s motion to vacate was overruled by operation of law.2

On appeal, both sides reurge the same personal-jurisdiction arguments made in the trial court.

Swate additionally argues for the first time that the documents represented to be the Pennsylvania Judgment do not constitute a final judgment.

II.   Governing Law

Under the UEFJA, a party seeking to enforce a foreign judgment has the initial burden “to present a judgment that appears on its face to be a final, valid, and subsisting judgment.”

See Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 484 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (sub. op. on

2 After Swate’s motion was overruled by operation of law, but before the Harris County district court’s plenary power expired, the district court additionally signed an order denying Swate’s untimely amended motion to vacate the foreign judgment.

denial of reh’g).

A copy of the foreign judgment authenticated in accordance with a federal or Texas statute may be filed with the clerk of any court of competent jurisdiction in the state.

TEX. CIV. PRAC. & REM. CODE § 35.003(a).

The clerk must treat the foreign judgment in the same manner as a judgment of the clerk’s court.Id.

§ 35.003(b).

Once filed, the foreign judgment “has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed.”

Id. § 35.003(c).

The filing of a properly authenticated foreign final judgment presents a prima facie case for its enforcement, and the burden then shifts to the judgment debtor to prove by clear and convincing evidence that the foreign judgment should not be given full faith and credit in Texas.

See H. Heller & Co. v. La.-Pac. Corp., 209 S.W.3d 844, 849 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

A foreign judgment is not entitled to full faith and credit if

(a) the judgment is interlocutory,

(b) the judgment is subject to modification,

(c) the rendering court lacked personal or subject-matter jurisdiction,

(d) the judgment was procured by extrinsic fraud,

or

(e) the period for enforcing the judgment has expired.

See id.

Whether the judgment is valid is determined by the laws of the state that rendered the judgment.

Id.

Because a motion to vacate is in some ways analogous to a motion for new trial, we apply the same standard of review to both, that is, abuse of discretion.

See Mindis Metals, 132 S.W.3d at 486.

Whether an exception to full faith and credit applies is generally a question of fact, but the trial court has no discretion in applying the law to the established facts.

See id.

We accordingly review the record to determine whether the trial court correctly applied the law to the established facts.

See id.

III.  Improper Service

“Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed.”

Ferraro v. Patterson-Erie Corp., 313 A.3d 987, 999 (Pa. 2024) (quoting Cintas Corp. v. Lee’s Cleaning Servs., Inc., 549 Pa. 84, 91, 700 A.2d 915, 917 (1997)).

“[W]ithout valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her[.]”

Cintas Corp., 549 Pa. at 91, 700 A.2d at 917–18.

Thus, “failure to perfect service is fatal to a lawsuit.”

Ferraro, 313 A.3d at 999.

Under Pennsylvania Rule of Civil Procedure 404, there are five methods to serve original process on a defendant in another state.

Only two methods are at issue here.

First, Pennsylvania Rule of Civil Procedure 404(3) authorizes service in another state “in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction.”

This is the provision on which the Judgment Creditors primarily rely.

Alternatively, original process can be served “by mail in the manner provided by Rule 403.”

PA.R. CIV. P. 404(2).

Under Rule 403, process can be served “by any form of mail requiring a receipt signed by the defendant or his authorized agent.”

PA. R. CIV. P. 403.

A.             No Proper Service Under the Texas Rules of Civil Procedure

The Judgment Creditors primarily rely on Pennsylvania Rule of Civil Procedure 404(3), which authorizes service in another state “in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction.”

According to the Judgment Creditors, Swate was properly served by regular, first-class mail and email in accordance with Texas Rule of Civil Procedure 21a(a)(2).

Rule 21a addresses the service of documents “other than the citation to be served upon the filing of a cause of action.”

TEX. R. CIV. P. 21a(a).

The citation is an official document that notifies the defendant of the suit and is issued under the seal of the court.

See TEX. R. CIV. P. 99.

The analogous document in Pennsylvania is a “writ of summons.”

Compare id.

(citation shall be directed to the defendant; shall be styled, “The State of Texas” and bear the seal of the court; and shall notify the defendant of the suit) with PA. R. CIV. P. 1351 (a writ of summons shall be directed to the defendant; shall be styled, “Commonwealth of Pennsylvania” and bear the seal of the court; and shall notify the defendant of the suit).

Because service of original process, including a writ of summons, is at issue here, Rule 21a is inapplicable.

Service of original process is instead governed by Texas Rule of Civil Procedure 106, and the Judgment Creditors have never taken the position, in the trial court or on appeal, that Swate was served in accordance with Rule 106.3

B.             No Proper Service Under the Pennsylvania Rules of Civil Procedure

Because the Pennsylvania Rules authorize service of process “by any form of mail requiring a receipt signed by the defendant or his authorized agent,” the Judgment Creditors mailed process to Swate by certified mail, return receipt requested—a procedure that normally requires a signature from someone at the

3 Under the version of Rule 106 that was in effect when the Judgment Creditors attempted to serve Swate, a defendant could be served by certified mail “by any person authorized by Rule 103.”

Under the version of Rule 103 in effect at that time, “no person who is a party to or interested in the outcome of a suit may serve any process in that suit.”

Process properly could be mailed by a Texas sheriff, constable, or private process server, or by the clerk of the Pennsylvania court, but service of process would not be valid if mailed by the Judgment Creditors or their attorneys.

The Judgment Creditors admitted in documents filed in the Pennsylvania court that they mailed the documents, either personally or through counsel, and that their counsel emailed the writ of summons to Swate. Swate could not properly be served with original process by any of these methods.

addressee’s address.4

But according to the uncontroverted evidence, the mail was not delivered to Swate and the signature on the return receipt is not that of Swate or Swate’s authorized agent.

The return receipt contains four sections to be completed upon delivery.

Section A contains a signature line and two checkboxes, one labeled “Agent” and the other, “Addressee.”

In the return receipts of the mail to Swate, Section A contains an illegible mark, and the box for “Agent” is checked.

Section B says, “Received by (Printed Name).

This section is blank.

Section C is for the date of delivery, and the date 12/15/20 has been handwritten there.

Section D contains an instruction to write the delivery address if it is different from the address given by the sender.

In this section, someone has handwritten, “COVID-19” or “C-19.”5

Swate produced evidence that on March 20, 2020, the United States Postal Service (USPS) responded to the COVID-19 pandemic by implementing a “temporary modification to mail handling procedures for mail that requires customer signatures.”

Letter carriers were instructed as follows:

·       Avoid ringing the doorbell when possible. Knock on the customer’s door. . . . .

·       While maintaining a safe, appropriate distance, employees will request the customer’s first initial and last name.

·       For increased safety, employees will ask the customer to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.

·       If there is no response, employees will follow the normal Notice Left process.

4 Restricted mail, unlike certified mail, requires the signature of the addressee or the addressee’s authorized agent.

5 There are two return receipts because the Judgment Creditors mailed process separately to “Tommy Swate, Esquire” and “Tommy Swate Attorney At Law,” both at the same address.

On one is written,“COVID-19,” and on the other, “C-19” is written.

This procedure did not require the mail carrier to obtain the signature of the addressee, the addressee’s agent, or of anyone at the delivery address.

Thus, at the time of the certified mailing, service of process by certified mail did not satisfy Pennsylvania Rule of Civil Procedure 403 because it did not “requir[e] a receipt signed by the defendant or his authorized agent.”

Swate additionally relied on his declaration, under penalty of perjury, that on December 15, 2020, no USPS mail carrier knocked on his door to deliver any certified mail, and Swate did not sign for or receive any certified mail.

He further stated that he did not sign for the certified mail in question; he did not authorize a USPS representative to sign on his behalf; and he has no agent authorized to receive and sign for certified mail on his behalf.

When a defendant has argued that service of process did not comply with Pennsylvania Rule of Civil Procedure 403 because the person to whom process was delivered was not the defendant’s authorized agent, Pennsylvania courts have considered whether the person who signed the receipt for certified mail had express or apparent authority to do so.

For example, in Commonwealth of Pennsylvania. v. One 1991 Cadillac Seville, 853 A.2d 1093 (Pa. Commw. Ct. 2004), police seized Linda Fisher’s vehicle at a Pennsylvania residence she co-owned with her brother.

See id. at 1094, 1096.

The State filed and prevailed in a forfeiture proceeding to which Fisher did not respond.

See id. at 1094.

Fisher later moved to vacate the forfeiture on the ground that she was living in Virginia when the action was filed and did not receive proper notice of the forfeiture proceeding.

See id.

The trial court found sufficient evidence to infer that Fisher’s brother had apparent authority to accept, on Fisher’s behalf, the certified mail informing her of the proceeding.

See id. at 1094–95.

Evidence supporting the inference included the facts that the person who signed for the mail is related to Fisher and is a co-owner with Fisher of the residence where the mail was delivered.

See id. at 1096.

Tax bills are delivered to Fisher and her brother at that address, and her brother pays the joint tax bills on Fisher’s behalf.

See id.

On the other hand, express authorization is sometimes required.

For example, one cannot validly serve a defendant with initial process under Pennsylvania law by serving the lawyer who represented the defendant in a different matter.

U.K. LaSalle, Inc. v. Lawless, 421 Pa. Super. 496, 501, 618 A.2d 447, 449 (1992).

A lawyer can accept or waive service of process upon a client only if expressly authorized to do so.

See id., 421 Pa. Super. at 501, 618 A.2d at 450.

In this case, the person who made the illegible mark on the return receipts for Swate’s mail cannot be identified, because the space for printing the signatory’s name was left blank, and in any event, Swate’s declaration that no agent is authorized to accept certified mail on his behalf is uncontroverted.

Because there is no basis on which to conclude that the unidentified signatory had Swate’s express or apparent authority to sign on his behalf, we hold that Swate was not served by mail in accordance with Pennsylvania Rule of Civil Procedure 403.

C.             The Judgment Creditors’ Counter-Arguments

To avoid this result, the Judgment Creditors assert that in a case with similar facts, the Pennsylvania Superior Court found that service by certified mail was sufficient, even though the mail’s return receipt included the notation “Covid-19.”

See Pa. Nat’l Mut. Cas. Ins. Co. v. Phillips, 2022 PA Super 90, 276 A.3d 268, 272 (2022).

But service of process in this case was not rendered defective by what was included in the return receipt; it is defective because of what was omitted, namely, the signature of the addressee or the addressee’s authorized agent.

Given the different procedural posture of Phillips, the court in that case was not permitted to consider such an issue at all.

This is so because in Pennsylvania, one can challenge a default judgment by filing a petition to “open” the default judgment or a petition to “strike” the default judgment.

“A petition to open a default judgment is an appeal to the discretion of the court which will only be granted if there is a manifest abuse of discretion or error of law.”

Stauffer v. Hevener, 2005 PA Super 287, ¶ 5, 881 A.2d 868, 870 (2005).

“On the other hand, a petition to strike a default judgment will only be granted where there is a fatal defect or irregularity that is apparent from the face of the record.”

Id.

Phillips was an appeal only from the denial of a petition to strike a default judgment.

Phillips, 2022 PA Super 90, 276 A.3d at 273.

The argument that the person who signed for certified mail was not the addressee’s authorized agent relies on evidence about who is or is not the addressee’s authorized agent, which is not a defect or irregularity that would be apparent from the face of the record.

The Phillips court accordingly explained that the “trial court was unable to consider the argument in the context of a motion to strike the default judgment.”

Id., 276 A.3d at 275 n.8.

But no such barrier prevented the Harris County district court in this case from considering the evidence that the person who signed for the certified mail was neither Swate nor his authorized agent.

The Judgment Creditors further assert that Swate filed a lawsuit in Harris County against the Judgment Creditors’ counsel, and that the suit was “for defamation he alleged he suffered as result of service of the Writ of Summons upon him”6 in the Pennsylvania suit, but this statement, too, is incorrect, as is their assertion that Swate “admittedly received” service of process from the Pennsylvania suit.

In the trial court, the Judgment Creditors produced a copy of Swate’s original petition in the defamation suit, and it contains no reference to a writ of summons or to service of process in the Pennsylvania suit, or to any document having been sent

6 Italics and bold in original.

to or received by Swate.

To the contrary, Swate complained in the defamation suit only of documents that “were not court documents nor claims filed jn any court” but which contained defamatory statements about him and were sent to one of his clients and to another lawyer.

In sum, there is evidence only of inadequate service of process.

We accordingly sustain Swate’s first issue, which renders it unnecessary to address his second issue.

IV.  Conclusion

We reverse the trial court’s judgment and render judgment that because Swate was not validly served in accordance with Pennsylvania law, the Pennsylvania judgment against defendants “Tommy Swate, Esquire” and “Tommy Swate Attorney at Law” in Educational Commission for Foreign Medical Graduates, et al. v. Dr. Orien L. Tulp, et al., Case ID 2010-01976 in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, is not entitled to full faith and credit as applied to these defendants and accordingly is not enforceable in Texas against them.

/s/ Tracy Christopher Chief Justice

Panel consists of Chief Justice Christopher and Justices Hart and Bridges.