                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-11-00334-CV


New Hampshire Insurance Company             §   From the 17th District Court

                                            §   of Tarrant County (17-250215-10)
v.
                                            §   January 10, 2013

Magellan Reinsurance Co. Ltd.               §   Opinion by Justice Dauphinot



                                        JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s final order on New Hampshire Insurance

Company‘s motion for nonrecognition of foreign judgment. It is ordered that the

order of the trial court is affirmed.

      It is further ordered that Appellant New Hampshire Insurance Company shall

pay all of the costs of this appeal, for which let execution issue.

                                         SECOND DISTRICT COURT OF APPEALS


                                         By_________________________________
                                           Justice Lee Ann Dauphinot
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00334-CV


NEW HAMPSHIRE INSURANCE                                               APPELLANT
COMPANY

                                         V.

MAGELLAN REINSURANCE CO.                                                APPELLEE
LTD.


                                      ----------

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      New Hampshire Insurance Company (NHIC) appeals from the trial court‘s

order denying its motion for nonrecognition of foreign country judgments against it,

which was filed for recognition by Appellee Magellan Reinsurance Co. Ltd. NHIC

challenges the order in three issues, each asserting Magellan‘s noncompliance with

the requirements for recognition of foreign country judgments under the Uniform

      1
       See Tex. R. App. P. 47.4.


                                          2
Foreign Country Money-Judgment Recognition Act (the Act).2 This appeal requires

us to consider four questions: (1) whether an assessment of costs constitutes a

money judgment; (2) if so, whether that assessment constitutes a final judgment on

the merits for purposes of the Act; (3) if so, whether an award of costs in a ―loser-

pays‖ system is a penalty; and (4) whether the assessments in this case were

properly authenticated. Because we hold that Magellan met the statutory criteria for

recognition of foreign country judgments, we affirm the trial court‘s order.

                                    Background

The Foreign Country Judgments

      The instruments filed for recognition resulted from a suit filed in the Turks and

Caicos Islands (TCI), a British overseas territory in the United Kingdom.3 TCI has its

own constitution and court system.4 Its judicial system includes both a Supreme

Court, the court of general original jurisdiction, and a Court of Appeal, a court of




      2
       Tex. Civ. Prac. & Rem. Code Ann. §§ 36.001–.008 (West 2008).
      3
        See British Nationality Act, 1981, c. 61, §50(1), sch. 6, available at
http://www.legislation.gov.uk/ukpga/1981/61/contents; British Overseas Territories
Act,        2002,         c.      8,        §        1,        available        at
http://www.legislation.gov.uk/ukpga/2002/8/contents.
      4
         Foreign & Commonwealth Office, The Overseas Territories: Security,
Success and Sustainability, 2012, Cm. 8374, at 14 (U.K.), available at
http://www.official-documents.gov.uk/document/cm83/8374/8374.asp; Her Majesty‘s
Governor‘s Office, The UK in the Turks and Caicos Islands,
http://turksandcaicosislands.fco.gov.uk/en/about-us/uk-in-turks-and-
caicos/overseas-territories.


                                          3
general appellate jurisdiction.5 The final court of appeal for both civil and criminal

cases from TCI is the Judicial Committee of the Privy Council (the Privy Council).6

      NHIC filed a winding-up petition against Magellan in TCI. In 2006, the TCI

Supreme Court ruled in favor of NHIC, but on appeal, the Court of Appeal

determined that NHIC was not a creditor of Magellan and therefore did not have

standing to assert its winding-up petition. NHIC appealed to the Privy Council. In a


      5
        The Turks and Caicos Is. Const., Order 2011, SI 1681, sch. 2, § 21, available
at http://www.legislation.gov.uk/uksi/2011/1681/contents/made; see also Stephen
Kruger, Supreme Courts As Courts of General Original Jurisdiction, 39 Int‘l J. Legal
Info. 51, 54, 59 (2011).
      6
        Jud.    Comm.       Practice     Direction     (PD)     1.1,   available   at
http://www.jcpc.gov.uk/procedures/practice-directions.html. Historical information
about the Privy Council is given in Jarvis v. Sewall, 40 Barb. 449, 455–56 (N.Y. Gen.
Term. 1863) (describing the Privy Council and stating,

      [T]he court of [p]rivy [c]ouncil . . . is composed of the high officers of
      state . . . who together compose what is called the ―judicial committee
      of the [p]rivy [c]ouncil.‖ It is a court of appeals from judgments
      rendered in the colonial courts. . . . It has power to award costs, and
      determine who shall pay them, and to direct the manner in which its
      judgments in all respects shall be enforced. . . . The only officer having
      any functions analogous to that of the clerk of an ordinary court, is an
      officer called the registrar, who has the powers and exercises the
      duties of both an examiner and master in chancery, and such others as
      his majesty, under his sign manual, may appoint.);

See also John deP. Wright, The Judicial Committee of the Privy Council, 10 Green
Bag 2d 363, 364–65 (2007) (describing the history of Canadian appeals to the Privy
Council and describing that body in this way:

      The Judicial Committee of the Privy Council was (and is) not a court.
      Proceedings did not go to it as ―appeals‖ in the formal sense but as
      petitions for justice ―to the foot of the Throne‖. . . . The decisions of the
      Committee were not ―judgments,‖ they were ―advice‖ to the Monarch,
      and were handed down in the form of an Order In Council.).

                                           4
judgment dated July 15, 2009, the Privy Council held that NHIC did not have

standing to present a winding-up petition against Magellan and recommended that

NHIC‘s appeal be dismissed with costs. On October 15, 2009, the Queen issued an

order approving the judgment, with costs ―to be assessed if not agreed.‖7

      Approximately eight months later, on June 18, 2010, the registrar of the Privy

Council issued a taxation certificate. The certificate (which gave an incorrect date

for the Privy Council‘s judgment) stated,

      I HEREBY CERTIFY that in pursuance of the Order of . . . the Privy
      Council dated the 4th December 2009 the costs of the respondent in
      the above appeal has been assessed on the standard basis and the
      sum of £48,813.17 (Forty-eight thousand eight hundred and thirteen
      pounds and seventeen pence[)] has been allowed.

In a June 21, 2010 letter to Magellan‘s counsel, the costs clerk of the Privy Council8

acknowledged receipt of the ―completed bill of costs‖ from the registrar and attached

the taxation certificate.

      The next month, on July 30, 2010, the registrar in the TCI Supreme Court

issued a certificate of taxation stating that

      IN PURSUANCE of the Judgement herein of the Court of Appeal
      delivered on 8 September, 2006 and the Judgement herein of the Privy
      Council delivered on 15 July, 2009 . . .

      7
        Jarvis, 40 Barb. at 456 (―When an appeal comes before [the Privy Council], it
is referred to the judicial committee, who hear[s] the case and make a report or
recommendation upon which the sovereign makes his decision, and that becomes
the judgment of the court of [p]rivy [c]ouncil.‖).
      8
       Jud. Comm. PD 8.1 (―The Costs Clerk is an officer in the Registry of the
Judicial Committee who acts under the direction and supervision of the Registrar.‖),
available at http://www.jcpc.gov.uk/procedures/practice-directions.html.


                                            5
      I CERTIFY that I have taxed the costs of [Magellan] at the sum of
      $141,283.82 as being due and payable by [NHIC] to [Magellan].

These costs assessments from the Privy Council and the TCI court do not expressly

indicate what kind of case the assessments arose out of, what the court‘s holding

was on substantive issues, or who was the successful party.

Filing of Notice of Foreign Judgments

      Five months later, in December 2010, Magellan filed a ―Notice of Filing of

Foreign Judgment‖ in a trial court in Tarrant County, Texas. The notice stated that

NHIC was ―hereby notified that on December 29, 2010, [Magellan] filed with [the trial

court] . . . authenticated copies of two judgments . . . for domestication under

Chapters 35 and 36 of the Texas Civil Practice & Remedies Code.‖9

      The notice described the two judgments as (1) a judgment rendered on July

30, 2010, by the TCI Supreme Court in the suit between NHIC and Magellan,

awarding Magellan recovery of $141,283.82, and (2) a judgment rendered on June

18, 2010, by the Privy Council, awarding Magellan £48,813.17. These dates

correspond with the dates that the respective cost certificates were issued rather

than the dates of the judgments determining that NHIC did not have standing.

Attached to the notice were copies of the costs assessments, which Magellan

asserted were the judgments it wished to have recognized.




      9
       Tex. Civ. Prac. & Rem. Code Ann. §§ 35.001–35.008 (West 2008 & Supp.
2012), 36.001–.008.


                                         6
NHIC’s Response

      On January 31, 2011, NHIC responded to Magellan‘s notice by filing a motion

for nonrecognition. NHIC first argued that chapter 35 only applies to judgments from

United States states and territories. Regarding recognition under chapter 36, NHIC

argued that Magellan had filed only ―two ‗certificates of taxation,‘ rather than a

judgment on the merits,‖ and that these certificates were not entitled to recognition

as foreign country judgments under the Act. It also asserted that Magellan had not

obtained a judgment in its favor on the merits of a cause of action. NHIC further

argued that the Act ―specifically excludes from its definition of ‗Foreign Country

Judgment‘ a mere judgment for a tax, fine, and/or penalty, which is precisely what

Magellan seeks to domesticate here.‖

Magellan’s Reply

      Magellan responded that it had provided the court with two authenticated

foreign country judgments against NHIC and that the judgments were not for taxes.

It did not address whether the judgments were for a penalty. Magellan also asked

the court for an extension of time to provide the court with ―additional documentation

from the respective judicial bodies . . . that will simply affirm that the final judgments

submitted to [the trial court] are not for taxes.‖ The trial court‘s order on the motion

allowed Magellan an additional twenty days to submit ―additional argument,

authorities, and supporting material.‖

      Magellan‘s supplemental response attached two affidavits: one from Simon

John Kemp, Magellan‘s attorney in the appeal to the Privy Council, and one from


                                            7
Carlos W. Simons, Magellan‘s attorney in the suit in TCI. Both of these affidavits

had exhibits attached, including letters from the registrars at the TCI Supreme Court

and the Privy Council and copies of procedural rules from those courts.

The Trial Court’s Orders

      On July 22, 2011, the trial court entered an order denying NHIC‘s motion for

nonrecognition. On August 9, 2011, the trial court signed a final order denying

NHIC‘s motion for nonrecognition, and this appeal followed.

           Uniform Foreign Country Money-Judgment Recognition Act

      The Act provides a mechanism by which a judgment creditor under a money

judgment from a foreign country may have that judgment recognized in Texas.

When a foreign country judgment meets the criteria set out in the Act and is granted

recognition under the chapter, the judgment ―is enforceable in the same manner as

a judgment of a sister state that is entitled to full faith and credit.‖10 The Act defines

the term ―foreign country judgment‖ as ―a judgment of a foreign country granting or

denying a sum of money other than a judgment for: (A) taxes, a fine, or other

penalty; or (B) support in a matrimonial or family matter.‖11 A party seeking

recognition of a foreign judgment must file with the court clerk ―[a] copy of a foreign

country judgment authenticated in accordance with an act of congress, a statute of




      10
        Id. § 36.004.
      11
        Id. § 36.001.


                                            8
this state, or a treaty or other international convention to which the United States is a

party.‖12

                        Magellan’s Jurisdictional Challenge

       Before we consider NHIC‘s first issue, we address Magellan‘s assertion that

this court lacks subject matter jurisdiction over the appeal because NHIC did not

timely file its notice of appeal. NHIC filed its notice of appeal on August 18, 2011.

Magellan contends that when a foreign country judgment is filed, it acts as both a

petition and a final judgment, and so the time period for filling an appeal began when

Magellan first filed its notice of judgment.          It contends that a motion for

nonrecognition acts as a motion for new trial, and so NHIC had until March 31, 2011

at the latest to file its appeal, making NHIC‘s appeal untimely.

       Magellan‘s argument derives from the language in section 36.004 stating that

a foreign country money judgment ―is enforceable in the same manner as a

judgment of a sister state that is entitled to full faith and credit.‖ Magellan also relies

on case law holding that when a judgment creditor under a sister state judgment

files the judgment under chapter 35, the judgment ―comprises both a plaintiff‘s

original petition and a final judgment‖ and, when the judgment complies with chapter

35, it becomes enforceable as a Texas judgment on the date it is filed.13 Magellan




       12
        Id. § 36.0041.
       13
        Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996).


                                            9
argues that because of the language of section 36.004, this case law applies to

filings for recognition under the Act.

      Under the Full Faith and Credit Clause of the United States Constitution,

judicial proceedings from one state must be given full faith and credit in every other

state.14 This clause applies only to sister-state judgments. There is no analogous

constitutional provision requiring United States courts to give full faith and credit to

judgments of foreign countries. But does section 36.004 nevertheless require us to

hold that NHIC missed its notice of appeal deadline? We do not believe it does.

      The sentence upon which Magellan relies should not be read out of context.

The rest of that section provides that

      [e]xcept as provided by Section 36.005, a foreign country judgment that
      is filed with notice given as provided by this chapter, that meets the
      requirements of Section 36.002, and that is not refused recognition
      under Section 36.0044 is conclusive between the parties to the extent
      that it grants or denies recovery of a sum of money. The judgment is
      enforceable in the same manner as a judgment of a sister state that is
      entitled to full faith and credit.15

This section expressly sets out when a judgment becomes conclusive between the

parties:

    when it is a foreign country judgment, defined by statute as one ―granting or
     denying a sum of money‖ that is not ―for . . . taxes, a fine, or other penalty; or
     . . . support in a matrimonial or family matter‖;16


      14
           U.S. Const. art. IV, § 1.
      15
           Tex. Civ. Prac. & Rem. Code Ann. § 36.004.
      16
           Id. § 36.001(2).


                                          10
    when it meets the requirements of section 36.002, meaning it is a judgment
     on the merits of a cause of action and is final and conclusive in the country in
     which it was rendered;17 and

    when it is not refused recognition.18

       On its face, a judgment must meet all of these prerequisites before it becomes

conclusive and therefore ―enforceable in the same manner as a judgment of a sister

state that is entitled to full faith and credit.‖19 On its face, the Act does not authorize

the enforcement of foreign country judgments unless these statutory requirements

have been met. Thus, because NHIC filed a motion challenging the recognition, the

judgment did not become conclusive between the parties and enforceable until the

trial court granted recognition.20

       17
        Id. § 36.002.
       18
        Id. § 36.004.
       19
          See Presley v. N.V. Masureel Veredeling, 370 S.W.3d 425, 431 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (stating that a foreign country judgment is
enforceable in the same manners as a sister-state judgment under the Act when it is
filed in accord with the Act, notice of the filing is given as provided by the Act, and
the judgment is not otherwise ―refused recognition‖); The Courage Co., L.L.C. v. The
Chemshare Corp., 93 S.W.3d 323, 330 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (stating that a foreign country judgment becomes conclusive when (1)
recognition is not contested or (2) a contest is overruled).
       20
         See Hernandez v. Seventh Day Adventist Corp., 54 S.W.3d 335, 336–37
(Tex. App.—San Antonio 2001, no pet.); see also Jack H. Brown & Co. v. Nw. Sign
Co., 665 S.W.2d 219, 221–22 (Tex. App.—Dallas 1984, no writ) (holding that
although the statute for enforcement of sister state judgments provides that such
judgments have the same effect as a judgment of the court in which it is filed, it has
that effect only when the statute‘s requirements have been met, and ―[a] judgment
debtor cannot be expected to respond and take such measures as may be available
to him to avoid enforcement of a foreign judgment unless the statutory requirements
have been met‖).


                                            11
      In a sur-reply letter brief, Magellan points to Don Docksteader Motors to

support its position.21 It notes that in that case, the Supreme Court said that

because the Act was silent about specific procedures applicable to foreign country

judgment proceedings, the enforcement procedures in chapter 35 should apply, and

therefore the appellate deadline of chapter 35 should apply. Don Docksteader

Motors does not control in this case. As stated in that opinion, at the time of the

litigation in that case, chapter 36 did not provide a procedure for a party to assert

nonrecognition of a foreign country judgment.22 The Supreme Court held that

because the chapter had no such procedure, it would look to chapter 35 for

applicable procedures for enforcement of a foreign country judgment.

      Now, of course, chapter 36 does have a procedure for asserting

nonrecognition.23 And for purposes of our case, chapter 36 on its face provides that

a foreign country judgment becomes enforceable like a sister-state judgment when

the judgment meets the requirements of the statute and the trial court has not

refused its recognition.24 So in this case, the foreign country judgments became

conclusive and enforceable when the trial court overruled the motion for




      21
         Don Docksteader Motors, Ltd. v. Patal Enters., Ltd., 794 S.W.2d 760 (Tex.
1990).
      22
         Id. at 760.
      23
         See Tex. Civ. Prac. & Rem. Code § 36.0041–.044.
      24
         Id. § 36.004.


                                         12
nonrecognition.25 The notice of appeal was filed two days after the trial court‘s order

overruling the motion. The appeal was therefore timely.

         We will therefore consider NHIC‘s issues. All of NHIC‘s issues ask this court

to review the trial court‘s construction of statutory provisions and its determination of

the applicability of those provisions.       We therefore review the trial court‘s

determination under a de novo standard of review.26

         Whether The Costs Assessments Are Judgments On The Merits

         NHIC makes two primary arguments under its first issue: (1) the trial court

erred by recognizing the costs assessments because they are not judgments on the

merits of a cause of action asserted by Magellan against NHIC, and (2) the trial

court erred by granting recognition of the costs assessments filed by Magellan

because the assessments were not the actual judgments, were issued by registrars,

and did not dispose of any issues or claims. We address these arguments in that

order.

1. The Act allows for recognition of a judgment in favor of a defendant on a
plaintiff’s cause of action.

         Regarding NHIC‘s first argument, we disagree that under the Act, a defendant

may only enforce a judgment under the Act on the defendant‘s own cause of action.


         25
        See The Courage Co., L.L.C., 93 S.W.3d at 330 (stating that a foreign
country judgment becomes conclusive when (1) recognition is not contested or (2) a
contest is overruled).
         26
        See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010),
cert. denied, 131 S. Ct. 2903 (U.S. 2011).


                                           13
The Act includes within its application a judgment ―in favor of the defendant on the

merits of the cause of action.‖27 NHIC argues that Magellan cannot meet this

requirement because Magellan did not have a cause of action pending against

NHIC. A defendant on a cause of action is, by definition, defending against the

other party’s cause of action, not its own. A defendant obtains a favorable judgment

if it obtains a judgment in its favor on the plaintiff‘s cause of action, and the language

NHIC relies on simply reflects that fact. Nothing in the Act gives even a hint that it

applies to a judgment for a defendant only when the judgment grants the defendant

affirmative relief on a cross-claim. The ―in favor of the defendant on the merits of

the cause of action‖ language is therefore clearly not referring to the defendant‘s

own cause of action.

      NHIC does not argue that a judgment dismissing a plaintiff‘s claims on

standing grounds is not a dismissal on the merits of the plaintiff‘s claim; it argues

only that Magellan did not obtain a judgment on its own cause of action. 28 We

therefore do not consider the question.29 We overrule this part of NHIC‘s first issue.




      27
        Tex. Civ. Prac. & Rem. Code Ann. § 36.002(a)(2).
      28
          See Restatement (Second) of Conflict of Laws § 110 cmt. a (1971) (stating
that a judgment is not ―on the merits‖ if it does not involve the substance of the
plaintiff‘s cause of action, and thus a judgment for a defendant is not on the merits if
it is based on, for example, lack of jurisdiction or the plaintiff‘s capacity to sue).
      29
       Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (stating that
an appellate court cannot reverse a trial court‘s judgment on unassigned error).


                                           14
2. The instruments filed by Magellan are foreign country judgments for the purposes
of the Act.

      NHIC‘s second argument under its first issue is that the costs assessments

filed by Magellan are not judgments. NHIC is correct that the instruments filed for

recognition by Magellan were assessments of costs determined by a registrar from

the TCI Supreme Court and by a ―costs judge‖ in the Privy Council rather than by

the panel of justices who determined the substantive issues in NHIC‘s appeal.30

That does not, however, mean that these costs assessments may not be enforced

as judgments.31

      The rules relating to costs in the relevant courts are instructive as to how we

should view these costs assessments. The Privy Council‘s procedure rules include

a section on the assessment of costs.32 Costs are assessed by the registrar or by a



      30
         See, e.g., Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied) (referring to a judgment as ―the final
action taken by a court of competent jurisdiction in disposing of matters properly
before it‖); see also Reaugh v. McCollum Exploration Co., 140 Tex. 322, 325, 167
S.W.2d 727, 728 (1943) (holding that a determination of which party should pay
costs is part of the judgment but that ―[t]he taxing of costs is not an adjudication by
the court as to the correctness of the items taxed‖ and is ―but the ministerial act of
the clerk‖).
      31
        See, e.g., Doss v. Chambers, 188 S.W. 296, 296 (Tex. Civ. App.—Austin
1916, no writ) (―The general rule in civil cases is that, when an appellant obtains a
judgment in the appellate court deciding the case on its merits in his favor, he also
obtains a judgment against his adversary for all the costs.‖).
      32
        See, e.g., Jud. Comm. (App. Jurisdiction) R. (JCR), Order 2009, SI 224,
sch.,               rr              43–52,             available             at
http://www.legislation.gov.uk/uksi/2009/224/contents/made.


                                          15
costs judge.33 The rules provide that the amount of costs will be inserted into the

court‘s final order.34 If, however, that order is drawn up before the costs assessment

has been completed, then the amount of costs assessed will be certified by the

registrar.35 Magellan submitted evidence in the trial court showing that TCI has a

similar procedural rule.36 And we note that the U.K. Supreme Court, the final court

of appeal for civil cases in the U.K., also provides in its rules that costs may be

assessed after judgment, and this assessment may be done by costs officers. 37

Thus, under the rules of procedure for the respective courts (and other courts in the




      33
         See, e.g., id. at r 46; Sup. Ct. PD 13 1.1 (providing that costs assessments
in that court are conducted by costs officers, one of which is the senior costs judge
and one of which may be the court‘s registrar), available at
http://www.supremecourt.gov.uk/procedures/practice-directions.html;           Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 n.18, 95 S. Ct. 1612,
1616 (1975) (observing that ―[i]t is now customary in England, after litigation of
substantive claims had terminated, to conduct separate hearings before special
‗taxing Masters‘ in order to determine the appropriateness and the size of an award
of counsel fees‖).
      34
        JCR r 50.
      35
        Id.
      36
        With respect to other parts of the U.K., Northern Ireland and Scotland
appear to have similar rules. See R. of the Ct. of Judicature (N. Ir.), 1980, SR
1980/346 (as amended), Ord. 62, r 8(6), available at http://www.courtsni.gov.uk/en-
GB/Publications/court-rules/Pages/default.aspx; Act of Sederunt (R. of the Ct. of
Sess.)    1994,       SI    1443,     sch.    2,     r      42.1,  available     at
http://www.legislation.gov.uk/uksi/1994/1443/contents/made.
      37
        See Sup. Ct. R. 2009, SI 1603 (L. 17), r 47–49, available at
http://www.legislation.gov.uk/uksi/2009/1603/contents/made.


                                         16
U.K.), these assessments appear to be made by court order and considered as part

of the judgment.

      Neither Magellan nor NHIC provides us with any helpful authority on whether

these costs assessments themselves constitute separate judgments and, if so,

whether they are considered to be determinations on the merits of a cause of action.

Neither do they provide us with authority as to whether, if the costs assessments are

not independent judgments, Magellan had to file both the Privy Council opinion and

the costs assessments in order to enforce its award of costs against NHIC in Texas.

Magellan argues that the Privy Council opinion explains why that court‘s judgment is

in favor of Magellan on the merits of a cause of action, but it does not address

NHIC‘s point—that the costs assessments Magellan sought to enforce as judgments

are not themselves judgments on the merits of a cause of action.

      We first note that in the U.K., for purposes of recognizing judgments of other

European Union member states in the U.K., the term ―judgment‖ includes a

―determination of costs or expenses by an officer of the court.‖38 This rule gives

some indication that in the U.K., costs assessments are enforceable as judgments.39

      38
         See 2001 O.J. (L 12) 16.1.2001, ch. 3, art. 32, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R0044:en:NOT; see
also CPR 74.2(c)(v) (providing rules for the enforcement of foreign judgment in
England and Wales and defining ―judgment‖ to include ―the determination of costs
by an officer of the court‖), available at http://www.justice.gov.uk/courts/procedure-
rules/civil/rules/part74#IDAJR1HC.
      39
        See Tex. Civ. Prac. & Rem. Code Ann. § 36.002 (―This chapter applies to a
foreign country judgment . . . that is . . . final and conclusive and enforceable where
rendered.‖).


                                          17
Furthermore, our research indicates that across the United States, courts have

routinely granted recognition to these kinds of later-determined costs assessments

as judgments under the Act.40 We follow these courts and hold that these costs

assessments, which were made by order of the Privy Council‘s judgment in


      40
         See In re Hashim, 213 F.3d 1169, 1170–71, 1172 (9th Cir. 2000) (stating
that an English court had held the Hashims liable for costs in litigation in that court,
that the taxation proceeding to determine the costs and fees was not held until years
later, and that the costs award was entitled to comity); Thomas & Agnes Carvel
Found. v. Carvel, 736 F. Supp. 2d 730, 746 (S.D.N.Y. 2010) (enforcing as
judgments a U.K. court‘s costs assessments, determined after a hearing conducted
by a cost judge); Dresdner Bank AG v. Haque, 161 F. Supp. 2d 259, 261 (S.D.N.Y.
2001) (holding that a German trial court‘s judgment and three awards of cost were
entitled to recognition); Otter Valley Foods, Inc. v. Aliki Foods, LLC, No.
CV094009931, 2010 WL 2573760, at *4 (Conn. Super. Ct. May 21, 2010) (holding
that a Canadian court‘s award of costs was enforceable under Connecticut‘s
Uniform Foreign Money-Judgments Recognition Act); Java Oil Ltd. v. Sullivan, 86
Cal. Rptr. 3d 177, 180, 182 (Cal. Ct. App. 2008) (considering whether to uphold a
trial court‘s recognition of a judgment from Gibraltar that ―indicated the costs were to
be assessed by the Registrar,‖ referring to the registrar‘s two costs assessments as
judgments, and concluding that they were enforceable under the Uniform Foreign
Money-Judgments Recognition Act); Blacklink Transp. Consultants PTY Ltd. v. Von
Summer, 18 Misc. 3d 1113(A), 856 N.Y.S.2d 496, at *1, *6 (N.Y. Sup. Ct. Jan. 9,
2008) (observing that an Australian court assessed costs and attorney‘s fees in an
ancillary proceeding conducted after trial and holding that this assessment was a
judgment entitled to recognition and enforcement); Genujo Lok Beteiligungs GmbH
v. Zorn, 943 A.2d 573, 578 n.6 (Me. 2008) (stating that court orders fixing costs
awarded under judgments each qualified as ―foreign judgments‖ even though they
were not titled ―judgments‖); Hazzledine v. Hazzledine, No. 95-CA-35, 1996 WL
156883, at *3 (Ohio Ct. App. Apr. 5, 1996) (determining that an award of costs in a
family law case in English court was not a judgment for support but was a judgment
for costs and that because it was a judgment granting a sum of money, it was
entitled to enforcement); Desjardins Ducharme v. Hunnewell, 585 N.E.2d 321, 323
(Mass. 1992) (reciting that the Canadian court awarded costs to Desjardins, that the
court of appeals likewise awarded costs, that the clerk of the court of appeal fixed
the costs for the appeal, and that the trial court fixed the costs for the proceedings
from that court, and holding that the costs assessments were enforceable
judgments).


                                          18
connection with disposing of NHIC‘s claims, are enforceable as judgments under the

Act.

       This holding acknowledges the process by which costs are awarded in the

U.K. This opinion should not be construed as holding that in every case, a costs

assessment from a foreign country court will be enforceable as a judgment. We

hold only that in this case, under these facts, the costs assessments fall within the

definition of foreign country judgment for purposes of the Act. We overrule NHIC‘s

first issue.

       Whether Magellan Properly Authenticated the Costs Assessments

       NHIC asks in its second issue whether the affidavits attached to the

supplemental filing and used to authenticate the cost certificates properly

authenticated the certificates. NHIC calls Magellan‘s supplemental filing untimely,

but it does not make any argument about the untimeliness of the filing. It does make

some argument about timeliness in its reply brief,41 although unsupported by any

case law.42 There NHIC contends simply that the supplemental evidence was

untimely and that NHIC did not agree to an extension to gather the type of evidence

filed by Magellan. But even in its reply brief, NHIC does not assert that the trial

court could not consider the supplemental filing and that it was error for the court to


       41
        See City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986)
(providing that an issue raised for the first time in a reply brief filed on appeal should
not be considered by the court of appeals).
       42
         See Tex. R. App. P. 38.1(i).


                                           19
do so. We therefore do not consider whether the trial court erred by considering the

supplemental filing. We consider only whether the documents filed by Magellan

were properly authenticated.

      To be recognized under the Act, a foreign country judgment must be

authenticated in accordance with (1) an act of Congress; (2) a Texas statute; or (3)

a treaty (or other international convention) to which the United States is a party. 43

NHIC asserts that because Magellan did not identify either an act of Congress or a

treaty or international convention that authenticates the costs assessments, then the

documents could only have been authenticated under Texas law. NHIC then argues

that Magellan did not meet the requirements for authentication under Texas law.

1. Magellan did not have to authenticate the costs assessments using Rule 902.

      NHIC first points out that Magellan did not authenticate the judgments in

accordance with evidence rule 902.44 Rule 902 relates to self-authentication of

documents and provides the circumstances under which extrinsic evidence of the

authenticity of a document is not required. A party wishing to admit a foreign

country judgment may follow the procedures set out in that rule. But a party may

also choose to establish the authenticity of a document under rule 901.45 Thus, the

fact that Magellan did not take advantage of the procedure in rule 902 is not


      43
        Tex. Civ. Prac. & Rem. Code Ann. § 36.0041.
      44
        Tex. R. Evid. 902.
      45
        Tex. R. Evid. 901.


                                         20
determinative of whether the judgments were properly authenticated because

Magellan could have properly authenticated the judgments in accordance with rule

901.

       Rule 901 provides that if evidence must be authenticated prior to its

admission, this requirement ―is satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims.‖46 The rule then provides a

nonexclusive list of means by which evidence may be authenticated.47 This list

includes testimony of a witness with knowledge ―that a matter is what it is claimed to

be‖; with respect to public records, evidence that a publicly-filed record is from the

public office where items of this nature are kept; and any other method of

authentication provided by statute.48 We consider whether Magellan produced

evidence sufficient to support a finding that the judgments are what Magellan

claimed them to be—costs assessments from the Privy Council and the TCI

Supreme Court.

2. The affidavits did not need to contain jurats.

       NHIC argues that the evidence filed with the supplemental filing could not

authenticate the costs assessments because the instruments from Kemp and

Simons did not meet the requirements for affidavits. We disagree.


       46
        Tex. R. Evid. 901(a).
       47
        Tex. R. Evid. 901(b).
       48
        Id.


                                         21
      Under the part of the government code relating to the construction of laws, the

legislature has defined the term ―affidavit‖ to mean ―a statement in writing of a fact or

facts signed by the party making it, sworn to before an officer authorized to

administer oaths, and officially certified to by the officer under his seal of office.‖ 49

NHIC cites a 2001 Waco Court of Appeals case for the proposition that an affidavit

that does not contain a jurat50 is not an affidavit.51 NHIC argues that the instruments

from Kemp and Simons do not contain jurats and, therefore, they are not affidavits.

      The Supreme Court of Texas, however, has recently held that for satisfying

the government code‘s definition of ―affidavit,‖ while the record must show that a

purported affidavit was sworn to by the affiant, a jurat is not required. 52 Rather,

―[w]hen a purported affidavit lacks a jurat, other evidence must show that it was

sworn to before an authorized officer.‖53 If the record ―lacks any indication that a

purported affidavit was sworn to by the affiant, however, the written statement is not

an affidavit under the [g]overnment [c]ode.‖54 Mansions in the Forest was a

      49
        Tex. Gov‘t Code Ann. § 312.011 (West 2005).
      50
        See Mansions in the Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314,
316 (Tex. 2012) (―A jurat is a certification by an authorized officer, stating that the
writing was sworn to before the officer.‖)
      51
        See Guinn v. Bosque Cnty., 58 S.W.3d 194, 198 (Tex. App.—Waco 2001,
pet. denied).
      52
        Mansions in the Forest, 365 S.W.3d at 315.
      53
        Id. at 317.
      54
        Id. at 315.


                                           22
summary judgment case, but we see no reason why its holding should not apply to

affidavits in all civil cases.55 Accordingly, the affidavits submitted by Magellan meet

the definition of an affidavit if evidence in the record shows that they were sworn to

before an authorized officer.

      Kemp‘s affidavit stated at the top that it was sworn to on March 23, 2011. In

the first paragraph, Kemp stated that he ―do make oath and say as follows.‖ The

end of the document contains Kemp‘s signature as well as a signature of a witness.

The document has a notation stating that it was ―Sworn at 25 Fenchurch Avenue

this 23rd day of March 2011‖ before the witness and contains this statement by the

witness, who is named and identified as a solicitor: ―I certify that I am lawfully

authorised by the laws of the United Kingdom to administer Oaths in the United

Kingdom.‖ This evidence is sufficient to show that Kemp‘s affidavit was sworn to

before an authorized officer.

      Simons‘s affidavit also indicates that it was sworn to before an authorized

officer. The end of the document contains Simons‘s signature followed by text

stating that the affidavit was ―SWORN at Providenciales, Turks and Caicos Islands

This 24th day of March, 2011‖ before a named person identified as a ―Commissioner

for Oaths.‖ The affidavit sufficiently indicates that it was sworn to before an

authorized officer.

      55
          See id. at 318 (disapproving opinions of courts of appeals to the extent that
they have held that (1) a written statement is not an affidavit solely because it lacks
a jurat or (2) the absence of a jurat is a defect of substance that may be raised for
the first time on appeal).


                                          23
      We further note that NHIC did not challenge in the trial court the sufficiency of

evidence indicating that the affidavits had been properly sworn to.56 It argued only

that the affidavits did not contain jurats, not that Magellan failed to provide evidence

to otherwise show that the affidavits were sworn to before an authorized officer.

Thus, any complaint about the lack of supporting evidence was not preserved.57

3. The affidavits and exhibits authenticated the costs assessments.

      We now consider whether the costs assessments, the affidavits, and the

attached exhibits properly authenticated the costs assessments under rule 901.

With its original filing, Magellan included a copy of the certificate of taxation from the

registrar at the TCI Supreme Court. The document is signed by the registrar and

bears a stamp that reads, ―FILED IN THE SUPREME COURT TURKS & CAICOS

ISLANDS,‖ with the date and time. Magellan also filed a copy of a letter from the

register of the Privy Council, signed by her, stating, ―I HEREBY CERTIFY that . . .

the costs of the respondent in the above appeal has been assessed,‖ and providing

the amount of the costs. Magellan also included a note from the costs clerk at the

Privy Council, stating that she had attached the taxation certificate to her letter.

      With its supplemental filing, Magellan included Kemp‘s affidavit in which he

stated that after the Privy Council‘s judgment dismissing the appeal and awarding

      56
         See id. at 317 (―When a purported affidavit lacks a jurat and a litigant fails to
provide extrinsic evidence to show that it was sworn to before an authorized officer,
the opposing party must object to this error, thereby giving the litigant a chance to
correct the error.‖).
      57
        See id.


                                           24
costs to Magellan was approved, a costs judge held a hearing to assess costs, and

a costs award was made. Kemp attached as an exhibit to his affidavit a letter from

the registrar of the Privy Council. Kemp stated in his affidavit that he obtained the

letter from the registrar. In the letter, the registrar stated that the certificate of

taxation dated June 18, 2010 ―is a final award of the costs to be paid to Magellan

Reinsurance Company Limited by New Hampshire Insurance Company.‖ The

registrar explained that under the Privy Council‘s procedural rules, if the Privy

Council‘s order does not include the amount of costs, then ―the [r]egistrar certifies

the amount of costs payable by a party.‖ She stated that costs were assessed at a

hearing, that the certificate of costs was final, and that NHIC failed to challenge the

decision on costs although it had fourteen days to do so after the costs assessment

was made.

      Kemp also attached as an exhibit procedural rules for practice before the

Privy Council. These rules provide that the Privy Council ―may make such orders as

it considers just in respect of the costs of any appeal‖; that when the Privy Council

has made an order for costs, ―the claim for costs must be submitted to the

[r]egistrar‖; and that ―[t]he [r]egistrar will assess costs . . . and may do so with a

costs judge as an assessor.‖ The rules further provide that ―[t]he amount of any

assessed costs will be inserted in the order . . . but, if that order is drawn up before

the assessment has been completed, the amount assessed will be certified by the

[r]egistrar.‖ Thus, the statements in the registrar‘s letter are supported by these

rules, giving credence to her statements that the registrar certifies the costs when


                                          25
the Privy Council‘s order does not include the costs and adding credibility to

Magellan‘s assertions that the Privy Council costs assessment submitted by

Magellan is in fact what it appears to be.

      Magellan also submitted the affidavit of Carlos Simons, Magellan‘s council in

TCI. Simons stated that the amount specified in the certificate of taxation from the

registrar at the TCI Supreme Court were the litigation costs assessed by the

registrar. Simons attached as an exhibit to his affidavit a letter signed by the

registrar at the TCI Supreme Court explaining that the certificate of costs was a final

award of costs to be paid to Magellan by NHIC. Simons also attached a copy of

procedure rules for practice at the TCI Supreme Court. These rules provide that

when the court has ordered a party to recover its costs, the registrar has the power

to assess costs and shall issue a certificate for the costs allowed.

      NHIC asserts that the affidavits do not attempt to authenticate the costs

assessments and, citing evidence rule 602,58 that Magellan‘s attorneys have no

personal, first-hand knowledge of the costs assessments and therefore could not

authenticate them. But Magellan‘s attorneys did not offer their affidavits to prove

that the information in the costs assessments were correct. The attorney‘s affidavits

only sought to show that the costs assessments attached to Magellan‘s filing were

what they purported to be—the costs assessments issued by the TCI and Privy

Council registrars—and that the costs assessments were not for ―taxes.‖


      58
        See Tex. R. Evid. 602.


                                          26
      NHIC argues that Kemp‘s affidavit does not show personal knowledge

because he stated that ―[t]he facts and matters deposed herein are true to the best

of my knowledge, information[,] and belief unless stated otherwise.‖ But from the

context of Kemp‘s affidavit, it is clear that when he stated that he obtained from the

Privy Council registrar the letter attached to his affidavit as exhibit 5, he spoke from

personal knowledge of from whom he received the letter. Putting Kemp‘s affidavit

together with the letter that he swore he received from the registrar, along with the

costs assessment itself, which contains a signature of the registrar that appears to

match the signature of the registrar on her letter, the evidence before the trial court

was sufficient to indicate that the Privy Council costs assessment is what Magellan

claimed it to be.59

      Regarding Simons‘s affidavit, he stated that ―[t]he facts to which I depose in

this Affidavit are within my own knowledge and are true and correct,‖ and he

supplied facts in his affidavit giving the basis of his knowledge. Simons stated that

he represented Magellan in the litigation in the TCI Supreme Court from which the

costs order and costs assessment arose. Regarding the costs assessment, he

stated, ―Both parties [in litigation] are entitled to be represented at the [costs]

assessment hearing[,] and I can confirm that NHIC‘s TCI counsel . . . was present

and represented NHIC at the assessment hearing from which the TCI Certificate of




      59
        See Tex. R. Evid. 901(a).


                                          27
Taxation arises.‖ He then referenced a letter that he had attached to his affidavit

from the TCI Supreme Court‘s registrar.

      The letter attached to Simons‘s affidavit is a letter bearing the letterhead of the

TCI Supreme Court. The letter, from the TCI court‘s registrar, stated that the

certificate of costs is a final award of costs to be paid by NHIC to Magellan. The

registrar also stated that according to TCI civil procedure rules, NHIC had fourteen

days to challenge the award of costs and did not do so. The evidence from Simons,

together with the costs assessment itself, is sufficient to indicate that the TCI costs

assessment is what Magellan claimed it to be.60

4. The language of the TCI costs assessments does not raise questions about its
authenticity.

      Finally under this issue, NHIC argues that from the face of the costs

assessments, it appears that the total costs assessed by TCI combined the costs at

both the TCI appeals and the Privy Council. It contends that ―[b]ecause Magellan

failed to properly authenticate the documents it submitted, the exact process the TCI

courts underwent to assess the costs is unknown, and there is a high likelihood that

domestication of Magellan‘s submission would result in a double recovery.‖

      NHIC appears to base its argument on a statement in the TCI costs

assessment that it was made ―IN PURSUANCE of the Judgment herein of the Court

of Appeal delivered on 8 September, 2006 and the Judgment herein of the Privy

Council delivered on 15 July, 2009 and the provisions of Order 62 of the Civil Rules

      60
        See id.


                                          28
2000.‖        We disagree with NHIC that this language raises a question as to

authenticity of the costs assessments. The language appears only to reflect the

Queen‘s order that ―those charged with administering the Government of the [TCI]

and all others whom it may concern are to ensure that‖ the Privy Council report,

including its award of costs, ―is punctually observed and obeyed.‖ Nothing in the

language of the TCI costs assessment appears to suggest that the costs

assessment included the costs of the Privy Council.

         And importantly, whether the amount of the TCI costs assessment was

incorrect is a different question from whether the document filed by Magellan was in

fact the TCI court costs assessment.           If NHIC believed that the TCI costs

assessment was incorrect, NHIC had a process to challenge the assessment in the

court that issued it, but it apparently declined to do so. We overrule NHIC‘s second

issue.

         Whether the Costs Assessments were Judgments for Penalties

         NHIC‘s third and final issue asks whether the costs assessments were merely

judgments for penalties and therefore unenforceable under Texas law.            The

definition of ―foreign country judgment‖ in the Act expressly excludes a judgment for

a penalty.61 Accordingly, if the costs awarded to Magellan were assessed as a

penalty, then the assessments were not the type of judgments that can be enforced

under the Act.


         61
          Tex. Civ. Prac. & Rem. Code Ann. § 36.001(2).


                                          29
      As NHIC points out, the U.K. applies the ―loser pays‖ English rule under which

the prevailing party in a suit may recover its attorney‘s fees.62 NHIC contends that

―it is apparent that the sole purpose of the appellate court costs assessments is to

punish NHIC for adverse appellate decisions.‖63 This conclusory statement is not

supported by any citation to authority. The Supreme Court of Texas has said that

―statutory provisions for the recovery of attorney‘s fees are in derogation of the

common law, are penal in nature[,] and must be strictly construed.‖64 That is the

rule in this state, where the common law evolved under the American rule and

therefore an award of attorney‘s fees is in derogation of the common law. But NHIC

has provided us with no authority on which we may base a conclusion that the

English Rule—which is a part of and not in derogation of the common law of the

U.K.—is meant to be penal in nature, and we have found none.65 To the contrary,




      62
         See 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 382
& n.8 (Tex. 2011) (contrasting the ―American Rule for the award of attorney‘s fees,
under which attorney‘s fees are recoverable in a suit only if permitted by statute or
by contract,‖ with the ―English Rule, in which a court may award attorney‘s fees to
the prevailing party in a suit‖); Java Oil Ltd., 86 Cal. Rptr. 3d at 185 (―The English
rule is that generally the loser must pay the winner‘s attorneys fees.‖).
      63
        See Smith v. Basham, 227 S.W.2d 853, 857 (Tex. Civ. App.—Dallas 1950)
(defining ―penalty‖ as ―a sum of money of which the law exacts payment by way of
punishment for doing some act that is prohibited, or omitting to do some act that is
required to be done‖), aff’d, 149 Tex. 279, 233 S.W.2d 297 (1950).
      64
         New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex.
1967).
      65
         See Tex. R. App. P. 38.1(i).


                                         30
all of our research indicates the contrary and that the U.K.‘s use of the English rule

simply reflects a different public policy decision.66

      Furthermore, other courts construing similar statutes have stated that whether

a judgment is penal in nature for purposes of determining whether to recognize a

foreign judgment ―depends upon the question [of] whether its purpose is to punish

an offense against the public justice of the state, or to afford a private remedy to a

person injured by the wrongful act.‖67 NHIC has provided us with nothing from

which we could conclude that costs are assessed under U.K. law for any purpose

      66
         See, e.g., Carvel, 736 F. Supp. 2d at 749, 750 (stating that ―[c]ommon-law
jurisdictions have different procedural rules, some of which reflect different public
policy choices‖ and that ―[t]he so-called ‗English rule‘ under which a loser pays the
winner‘s attorneys‘ fees, and the usual ‗American rule‘, under which each side bears
its own attorneys‘ fees, reflect such choices‖ and holding that English costs
judgments were not unenforceable) (citation omitted); Erbe Elektromedizin GMBH v.
Canady, 545 F. Supp. 2d 491, 496–97 (W.D. Pa. 2008) (holding that the awarding of
attorney‘s fees in the U.K. was not meant to punish an offense against the public
justice and instead was remedial in nature, aimed at compensating the defendant for
the damages incurred in being compelled to defend against the suit); Fla. Patient’s
Comp. Fund v. Rowe, 472 So. 2d 1145, 1147–48 (Fla. 1985) (noting that the English
rule is not in derogation of English common law), holding modified on other grounds
by Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).
      67
         See Chase Manhattan Bank, N.A. v. Hoffman, 665 F. Supp. 73, 75 (D.
Mass. 1987) (quoting Huntington v. Attrill, 146 U.S. 657, 673–74, 13 S. Ct. 224, 230
(1892), in deciding whether a foreign money judgment was enforceable under
Massachusetts‘s version of the Uniform Foreign Money-Judgments Recognition
Act); see also Olympus Corp. v. Canady, 962 A.2d 671, 677, 678 (Pa. Super. Ct.
2008) (holding that an award of counsel fees under the English ―loser pays‖ rule was
remedial rather than penal in nature and was therefore enforceable under
Pennsylvania‘s Uniform Foreign Money-Judgments Recognition Act and stating that
―By initiating his complaint in England, under English law and rules of court,
Appellant implicitly acquiesced to an award of counsel fees to the prevailing party‖);
Desjardins Ducharme, 585 N.E.2d at 324 (applying Hoffman to conclude that a
Quebec judgment was not a penalty).


                                          31
other than as part of the remedy afforded to the successful party in litigation, and we

have found no authority supporting NHIC‘s view of U.K. law. Accordingly, we

overrule NHIC‘s third issue.

                                    Conclusion

      Having overruled NHIC‘s three issues, we affirm the trial court‘s order.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: January 10, 2013




                                          32
