Opinion

Tommy Tipton v. State of Oklahoma Ex Rel. Lottery Commission

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Aug 30, 2022
Status
Published
Cited by
0 cases
Authority
More cited than 1.3%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00212-CV

Tommy Tipton, Appellant

v.

State of Oklahoma ex rel. Lottery Commission, Appellee

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY

NO. 2019V-247, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING

MEMORANDUM OPINION

The trial court rendered summary judgment for the State of Oklahoma, ex rel.

Lottery Commission (Oklahoma), ordering domestication of an Iowa order that requires Tommy

Tipton to make restitution as part of a criminal judgment. Tommy Tipton contends that the trial

court erred because a plea agreement is a contract, not a judgment, and because he did not breach

the plea agreement. We will affirm.

BACKGROUND

Tommy and his brother Eddie Tipton pleaded guilty to offenses relating to rigging

lottery games in multiple states including Iowa and Oklahoma. 1 Oklahoma attached to its

petition in Fayette County, Texas, the Iowa judgments against the brothers and a multi-state plea

1 To distinguish the brothers, we will call them by their given names. In appellate cause

number 03-21-00133-CV, Eddie has appealed an order similar to the one Tommy challenges in

this appeal.

agreement detailing the charges they faced in various states and the agreed resolution of those

charges. In the case eventually giving rise to this appeal, an Iowa state court accepted Tommy’s

plea of guilty. For conspiracy to commit theft in the fourth degree, the court sentenced him to

incarceration for seventy-five days to be served in the Goliad County, Texas jail. The court

ordered him to make restitution of $804,095 with interest, payment to be made to the clerk of the

criminal court in Polk County, Iowa. The Texas incarceration, the total amount of restitution,

and the place to make restitution payments are all consistent with the terms of the multi-state

plea agreement. The Iowa court expressly stated that it considered the plea agreement among the

most significant factors in determining the sentence assessed.

The multi-state plea agreement specified that of the $804,095 restitution award,

Tommy owed $235,105 to Oklahoma. Tommy expressly consented in the multi-state agreement

“to the execution of the judgment in this matter against any property in his name or held for him

in the name of his associates or family members.”

Oklahoma filed suit against the Tiptons in Fayette County, Texas, seeking to

execute on the Iowa judgment against real property owned by the Tiptons and their family

members. Oklahoma alleged that Tommy had paid $1,209.87 of the judgment of $804,095 plus

interest and that Eddie had paid $1,648.98 of the judgment against him of $2,222,863.60 plus

interest. Oklahoma moved for summary judgment against the brothers individually. Oklahoma

alleged as undisputed facts that Tommy entered and executed a plea agreement and that the Iowa

court entered judgment against him according to the plea agreement, including the restitution

outlined in the plea agreement. In its motion, Oklahoma discussed that a plea agreement is like a

contract and also asserted that Tommy had a judgment against him that was subject

to domestication.

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Tommy argued that a plea agreement is not a judgment but a contract, relying on

a case cited by Oklahoma, Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982). He

asserts that the trial court erred by domesticating the non-judgment plea agreement. He argued

further that Oklahoma had presented no evidence that he had breached his payment agreement

made in the plea agreement.

The trial court found that there were no disputed material facts on the validity of

the Iowa judgment against Tommy and that it should be domesticated in Texas. That court

rendered judgment that the Iowa court’s order of restitution was domesticated; that the amount

owed was $801,215.32; that the order of restitution is subject to execution against any property

held in his name or held for him in the name of his associates or family members; and that

payments from execution on the judgment must be remitted to Polk County Clerk of Court,

Des Moines, Iowa.

APPLICABLE LAW

We may reverse a trial-court judgment only if the trial court makes an error of law

and the error probably caused the rendition of an improper judgment or if the error probably

prevented the appellant from properly presenting the case to us. Tex. R. App. P. 44.1(a). We

can reverse only for issues assigned as error in the briefs absent fundamental error. See id.

R. 38.1(f) (errors must be presented in brief); see also Pat Baker Co. v. Wilson, 971 S.W.2d 447,

450 (Tex. 1998). Fundamental error exists when the record shows the court lacked jurisdiction

or that the public interest is directly and adversely affected as that interest is declared in the

statutes or the Constitution of Texas. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479,

511-12 (Tex. 2018).

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We review the granting of a motion for summary judgment de novo. 2 Buck

v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). When the trial court does not specify the grounds

for its ruling, summary judgment must be affirmed if any of the grounds on which the judgment

was sought are meritorious. State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No

Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).

Texas litigants can seek domestication of other state court’s judgments by using

the Uniform Enforcement of Foreign Judgments Act (UEFJA) or by bringing a common-law

action to enforce a judgment. Tex. Civ. Prac. & Rem. Code § 35.008. Oklahoma asserted in its

motion for summary judgment that it sought to domesticate the judgments under the common

law. When a plaintiff chooses a common-law action as the method of enforcement, the

proceeding has the same character as any other civil proceeding; the judgment creditor initiates

the action, the judgment debtor as defendant can assert his defenses, and an appealable judgment

results. Brown v. Lanier Worldwide, Inc., 124 S.W.3d 883, 902 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). Once the party seeking enforcement of a foreign judgment has presented

an authenticated judgment that appears to be a final and valid judgment, the burden then shifts to

the party resisting the judgment to establish an exception to Full Faith and Credit Clause of the

United States Constitution. Id.; see U.S. Const. art. IV, § 1. Recognized exceptions to Full Faith

and Credit Clause requirements include that : (1) the judgment is interlocutory; (2) the judgment

is subject to modification under the law of the rendering state; (3) the rendering state lacked

2 The standards for reviewing a summary judgment are well established and undisputed

on appeal. Tex. R. Civ. P. 166a; see, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005); see also Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort

Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i).

Accordingly, we need not repeat them here.

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jurisdiction; (4) the judgment was procured by extrinsic fraud; and (5) limitations had expired.

Brown, 124 S.W.3d at 902; see U.S. Const. art. IV, § 1.

ANALYSIS

Tommy reiterates his trial-court arguments on appeal. He contends that summary

judgment was erroneous because (1) a plea agreement is a contract, not a judgment, and (2) he

did not breach the plea agreement. He asserts that he is making de minimis restitution payments

under a payment plan reportedly reached with the Polk County, Iowa Court Clerk. after this

lawsuit was filed and that no further enforcement of the restitution order can be made while he

complies with that agreement.

Although Oklahoma discussed the contractual nature of plea agreements in its

motion, that does not control the decision of whether the Texas trial court erred in this case. The

Texas court expressly ordered domestication of the Iowa restitution order that is contained with

the Iowa judgment. The judgment contains a restitution provision, and the Texas trial court

ordered that the restitution order is enforceable in Texas. The Iowa judgment listed the plea

agreement as one of the factors considered in assessing sentence, and the Texas trial court

domesticated the judgment—not the plea agreement on its own. But, even if we assume that the

plea agreement is a contract, that fact does not show error in the Texas trial court’s domestication

of the Iowa court’s restitution order. We overrule issue one.

Further, the record does not demonstrate that compliance or noncompliance with

the plea agreement is a factor in determining whether the Texas trial court erred in domesticating

the judgment. The judgment and its restitution clause—which is in the domesticated court

document—do not state that partial payment of the restitution amount bars domestication of the

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judgment or execution on it in other states. Likewise, the plea agreement does not state that

partial payment of the restitution amount bars domestication of the judgment or execution on it

in other states; to the contrary, the plea agreement states, “Defendant consents to the execution of

the judgment in this matter against any property in his name or held for him in the name of his

associates or family members.” The plea agreement contains a clause that says it is the parties’

entire agreement. The parties mention a payment plan in the briefs, but do not cite to it in the

record as required; while we are not obligated to search for it, we do not find it in the record. See

Tex. R. App. P. 38.1(i). Even with our power to consider uncontradicted assertions of fact as

true, see id. R. 38.1(g), there is no showing in the record that compliance with any payment plan

bars domestication of the judgment in other states. Consistent with the parties’ assertions that

Tommy made some payments—including some after the petition in this case was filed—the

amount of the judgment domesticated ($801,215.32) is less than the original judgment amount

($804,095). Even assuming Tommy has complied with the payment plan, he has not

demonstrated on the record before us that the trial court erred by granting summary judgment

ordering domestication of the restitution order in the Iowa judgment. We overrule issue two.

CONCLUSION

Because Tommy Tipton has not raised issues that demonstrate error on the record

before us, we affirm the judgment.

__________________________________________

Darlene Byrne, Chief Justice

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Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: August 30, 2022

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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