                                 NO. 12-11-00374-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

THE ESTATE OF                               §            APPEAL FROM THE

MALCOLM RODRIGUES,                          §            COUNTY COURT AT LAW

DECEASED                                    §            NACOGDOCHES COUNTY, TEXAS

                                 NO. 12-11-00375-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

DEBRA IRELAND, INDEPENDENT    §                          APPEAL FROM THE
EXECUTRIX OF THE ESTATE OF
MAXINE PREWITT, DECEASED
V.                            §                         COUNTY COURT AT LAW
TIMOTHY RODRIGUES, INDEPENDENT
EXECUTOR OF THE ESTATE OF
MALCOLM RODRIGUES,
DECEASED                     §                          NACOGDOCHES COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Debra Ireland, independent executrix of the estate of Maxine Prewitt, deceased, appeals
from a summary judgment in favor of Timothy Rodrigues, independent executor of the estate of
Malcolm Rodrigues, deceased, in Ireland’s suit to enforce a Louisiana judgment. In four issues,
Ireland contends the trial court misconstrued the Louisiana judgment, erroneously determining
that the judgment had been satisfied. We reverse and render.


                                        BACKGROUND
       Maxine Prewitt and her brother, Max Hart, Jr., co-owned timber land in Louisiana. Hart
contracted with Malcolm Rodrigues to remove timber from the property without the consent of
Prewitt, or of her guardian, Ireland. Upon discovering that the timber had been removed, Ireland
sued Hart and Rodrigues in Sabine Parish, Louisiana, pursuant to a Louisiana statute declaring it
unlawful to cut another person’s trees without the person’s consent. After a jury trial, Ireland
recovered a judgment against Hart and Rodrigues for the fair market value of Prewitt’s timber
interest, plus punitive damages and attorney’s fees. Ireland filed the Louisiana judgment in
Harris County, pursuant to the Uniform Enforcement of Foreign Judgments Act, rendering it
subject to enforcement in Texas.
       Hart satisfied the portion of the judgment rendered against him. Ireland filed suit to
establish a claim against Timothy Rodrigues and a creditor’s claim against the estate of Malcolm
Rodrigues in Nacogdoches County to recover the portion of the Louisiana judgment she
contends is owed by Rodrigues. Rodrigues moved for partial summary judgment arguing that
Hart’s payment satisfied the judgment in full and any further payment by him would constitute
an unlawful windfall for Ireland.       Ireland also filed a motion for summary judgment
acknowledging that the $26,000.00 actual damage portion of the judgment against Rodrigues has
been satisfied but claiming entitlement to an additional $128,393.13 in penalties and attorney’s
fees as a matter of law. The trial court agreed with Rodrigues and rendered a take-nothing
judgment against Ireland. The trial court severed Rodrigues’s request for attorney’s fees, making
the summary judgment final.


                                     SUMMARY JUDGMENT
       Ireland contends the trial court erred in granting Rodrigues’s motion for summary
judgment and denying her motion for summary judgment. She argues that the full faith and
credit clause requires Texas courts to give the same effect to the Louisiana judgment as
Louisiana courts would. She further contends that, pursuant to Louisiana law, the awards for
punitive damages and attorney’s fees were not assessed jointly and severally and, therefore, were
not satisfied by Hart’s payment.




Standard of Review
       We review the trial court’s decision to grant summary judgment de novo. Tex. Mun.
Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). The movant for
traditional summary judgment has the burden of showing that there is no genuine issue of
material fact concerning one or more essential elements of the plaintiff’s claims and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985).       Once the movant has established a right to summary
judgment, the nonmovant has the burden to respond to the motion and present to the trial court
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any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
       Review of a summary judgment requires that the evidence presented by both the motion
and the response be viewed in the light most favorable to the party against whom the judgment
was rendered, crediting evidence favorable to that party if reasonable jurors could and
disregarding all contrary evidence and inferences unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as
here, both parties move for summary judgment on the same issues and the trial court grants one
motion and denies the other, the reviewing court considers the evidence presented by both sides,
determines all questions presented, and if the reviewing court determines that the trial court
erred, renders the judgment the trial court should have rendered. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Full Faith and Credit
       In her second issue, Ireland asserts that the Louisiana judgment must be construed under
principles of Louisiana law. Rodrigues acknowledges that Louisiana law applies.
       The United States Constitution requires each state to give full faith and credit to the
public acts, records, and judicial proceedings of every other state. U.S. CONST. art. IV, § 1. A
copy of a foreign judgment authenticated in accordance with an act of congress or a statute of
this state may be filed in the office of the clerk of any court of competent jurisdiction of this
state. TEX. CIV. PRAC. & REM. CODE ANN. § 35.003(a) (West 2008). A properly proven foreign
judgment must be recognized and given effect coextensive with that to which it is entitled in the
rendering state. Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex. 1992).
The validity of the judgment is determined by the laws of the state where it was rendered. Id. at
795.
       Ireland filed an abstract of the Louisiana judgment in Harris County. No complaint has
been made regarding the authentication of the judgment. Louisiana law applies to resolve this
case, and we sustain Ireland’s second issue.
Solidary Liability
       Both parties agree that Louisiana law applies. They disagree on whether the trial court
correctly applied the Louisiana law at issue. Ireland sued Hart and Rodrigues, “in solido,”
pursuant to a Louisiana statute making it unlawful to cut, destroy, or remove trees on the land of
another without the consent of the owner. See LA. REV. STAT. ANN. § 3:4278.1 (2012). Further,
one who willfully violates the statute is liable to the owner for damages in the amount of three
times the fair market value of the trees that were cut, plus reasonable attorney’s fees. Id. In
Louisiana’s civil law system, the concept of “in solido” liability is synonymous with the
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common law phrase “joint and several” liability. Touchard v. Williams, 617 So.2d 885, 889
(La. 1993). The primary effect of solidary liability is that any defendant may be compelled to
pay the entire judgment. Id. at 890. Payment by one solidary obligor relieves all other solidary
obligors. Id. n.7. An obligation in solido is not presumed, but arises from a clear expression of
the parties’ intent or from the law.                LA. CIV. CODE ANN. art. 1796 (2012).                   It is the
coextensiveness of the obligations for the same debt that creates the solidarity of the obligation.
Cutsinger v. Redfern, 12 So.3d 945, 951 (La. 2009)
        The thrust of Rodrigues’s argument is that his obligation is in solido because Ireland
included the phrase in the style of the documents she drafted, including the trial court’s
judgment. While Ireland sued Hart and Rodrigues in solido, and the term is in the style of the
case, the judgment never specifically states that the court ordered Hart and Rodrigues solidarily
liable. Including the term in the style of the case is not alone sufficient to constitute a holding by
the trial court that the defendants are solidary obligors. See Brandner v. Staf-Rath, L.L.C., 64
So.3d 812, 825-26 (La. Ct. App. 5 Cir. 2011), writ denied, 68 So.3d 523 (La. 2011).
        We next consider the body of the judgment. The first decretal paragraph of the trial
court’s judgment orders Hart to pay Ireland


                 $302,553.39 [representing the fair market value of the timber interest of Maxine
                 Hart Prewitt, multiplied by three (3), plus $11,000.00 attorney’s fees, less a
                 credit of $15,294.13 . . . and further, less a credit of $1,340.81 . . .] together with
                 legal interest.


The second decretal paragraph orders Rodrigues to pay Ireland “$89,000.00 (representing the fair
market value of the timber cut by MALCOLM RODRIGUES, multiplied by three (3), plus
$11,000.00 attorney’s fees) together with legal interest thereon.” The third decretal paragraph
orders that Rodrigues is awarded judgment against Hart for $11,000.00, together with legal
interest thereon. The final decretal paragraph orders Hart to pay “the costs in this matter.”
Accordingly, the judgment does not specifically hold Hart and Rodrigues liable in solido.
Instead, the judgment specifies amounts each defendant is responsible for paying.
        Actual Damages
        Hart paid $490,196.80 toward satisfaction of the judgment. Ireland concedes that the
judgment against Hart includes the value of the timber cut by Rodrigues, and she agrees to credit
Rodrigues for $26,000.00.1 She contends that the remaining awards of $52,000.00 for punitive
damages and $11,000.00 for attorney’s fees were not satisfied by Hart’s payment.

        1
           In Hart’s appeal, the Louisiana appellate court set out the jury findings. Prewitt v. Rodrigues, 893 So.2d
927, 931 (La. Ct. App. 3 Cir. 2005, no writ), overruled in part by Sullivan v. Wallace, 51 So.3d 702 (La. 2010).
Further, the trial court granted Rodrigues’s motion for judgment notwithstanding the verdict, holding that the
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        Punitive Damages
        Louisiana courts have determined that the timber piracy statute, as article 3:4278.1 is
referred to, is punitive in nature and must be strictly construed. Sullivan v. Wallace, 51 So.3d
702, 707 (La. 2010). Compensatory damages recompense a plaintiff for injury caused by a
defendant’s act. Ross v. Conoco, Inc., 828 So. 2d 546, 552 (La. 2002). Punitive damages are
not caused by a defendant’s act and are not designed to make an injured party whole. Id. at 552-
53. Rather, they are meant to punish the tortfeasor and deter specific conduct to protect the
public interest. Id. at 553. Punitive damages are assessed against an individual defendant based
on his individual culpability. Id. at 552. Thus, punitive damages cannot be assessed against co-
defendants in solido. Id. Accordingly, under Louisiana law, the payment by Hart could not have
satisfied the portion of the judgment ordering Rodrigues to pay punitive damages. We sustain
Ireland’s third issue.


        Attorney’s Fees
        Ireland agrees that Louisiana law allows attorney’s fees to be awarded in solido but
asserts that the trial court did not do so in this case. The Louisiana judgment does not expressly
state that attorney’s fees are assessed in solido. The Third Circuit’s opinion explains that the
jury found that Hart owed $11,000.00 in attorney’s fees and Rodrigues owed $11,000.00 in
attorney’s fees. Further, the jury was asked if Rodrigues is entitled to be reimbursed from Hart
for any amount Rodrigues owes Prewitt because of Rodrigues’s detrimental reliance. The jury
answered yes, $11,000.00. Prewitt, 893 So.2d at 930-31. Based on these answers, the trial court
ordered Hart to pay Ireland $11,000.00 in attorney’s fees, ordered Rodrigues to pay Ireland
$11,000.00 in attorney’s fees, and ordered Hart to pay Rodrigues $11,000.00 without specifying
why. Neither party brought additional evidence relevant to the question of whether attorney’s
fees were assessed in solido. There is no evidence that the judgment ordered attorney’s fees to
be paid in solido, and it cannot be presumed. See LA. CIV. CODE ANN. art. 1796. We sustain
Ireland’s fourth issue.


                                                   CONCLUSION
        After applying Louisiana law, we have determined that, as a matter of law, the Louisiana
trial court did not order Hart and Rodrigues to pay punitive damages or attorney’s fees in solido.
Therefore, Hart’s payment to Ireland did not satisfy the judgment in full, and Rodrigues owes
Ireland $52,000.00 for punitive damages and $11,000.00 for attorney’s fees, together with legal

amount stated as the fair market value of the timber removed by Hart encompasses the amount found as the fair
market value of the timber removed by Rodrigues. Id.
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interest thereon. Accordingly, the trial court erred in granting Rodrigues’s motion for partial
summary judgment and in denying Ireland’s motion for summary judgment. Nixon, 690 S.W.2d
at 548. We sustain Ireland’s first issue.
         We reverse the trial court’s judgment and render judgment in favor of Ireland.



                                                                BRIAN HOYLE
                                                                  Justice

Opinion delivered April 30, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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