Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00469-CV

Valerie Thomas Bahar, M.D., P.A., and Valerie Thomas Bahar, Individually, Appellants

v.

Lyon Financial Services, Inc., A Minnesota Corporation d/b/a US Bancorp Manifest

Funding Services, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. C-1-CV-06-003390, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Valerie Thomas Bahar, M.D., P.A., and Valerie Thomas Bahar, individually,

(collectively "Bahar") appeal from the trial court's order denying a special appearance and a motion

to stay enforcement of and vacate a judgment for monetary damages awarded to Lyon Financial

Services, Inc., a Minnesota Corporation d/b/a US Bancorp Manifest Funding Services ("Lyon

Financial"). We will dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Lyon Financial obtained a default judgment against Bahar in a Minnesota district

court. On May 22, 2006, Lyon Financial domesticated the Minnesota judgment by filing it in County

Court at Law No. 1 of Travis County pursuant to the Uniform Enforcement of Foreign Judgments

Act (UEFJA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 35.001 -.008 (West 2008). On

April 16, 2007, almost a year after the foreign judgment was filed, Bahar filed a motion to stay

enforcement of and vacate the judgment. Bahar alleged that the judgment should be vacated because

she was never served with process in the underlying suit as required by Minnesota law. Bahar also

filed a special appearance on the ground that she is not a resident of Travis County and the trial

court's exercise of jurisdiction over her would "offend traditional notions of fair play and substantial

justice." Bahar alleged that she resides in Houston, Texas and has never had an address in

Travis County.

Lyon Financial filed a response to the motion to vacate contending that the trial

court's plenary power to vacate the judgment had expired. Lyon Financial asserted that the

Minnesota judgment became a final judgment of the Texas court thirty days after it was domesticated

in accordance with the UEFJA. At the hearing on the motion to vacate, the trial court concluded that

it lacked jurisdiction to consider the motion to vacate because its plenary power had expired and

because Bahar's contention that the judgment was void for lack of service of process could only be

brought by bill of review. At the same hearing, the trial court also denied Bahar's special

appearance, observing that she is a Texas resident. The trial court signed an order denying both

motions on June 1, 2007. Bahar filed a notice of appeal that gave notice of "a desire to appeal to the

Court of Appeals for the Third Supreme Judicial District Court of Texas from the orders denying the

Defendant's Special Appearance and Defendant's Motion to Stay Enforcement of Foreign Judgment

and Motion to Vacate Domestication of Filed Foreign Judgment in this cause rendered on the 1st day

of June 2007."

Shortly thereafter, Lyon Financial filed an application for a turnover order pursuant

to section 31.002 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann.

§31.002 (West 2008) (under certain enumerated circumstances, judgment creditor is entitled to aid

from court of appropriate jurisdiction to reach property to obtain satisfaction on judgment). Bahar

objected to the trial court's action with respect to the turnover order on the basis that, because she

had filed a notice of appeal, the trial court had no jurisdiction to issue the turnover order. Bahar

contended that the application for turnover should have been filed with the appellate court. The trial

court rejected Bahar's arguments and on June 26, 2007, signed a turnover order and appointed a

receiver. Bahar did not file a notice of appeal of the June 26th turnover order.

By three issues, Bahar complains of the trial court's denial of her motion to vacate

and her special appearance, and she asserts that the trial court had no jurisdiction to enter a turnover

order once she filed a notice of appeal.

STANDARD OF REVIEW

Whether a court has subject matter jurisdiction is a question of law we review de

novo. Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). Whether a

trial court has personal jurisdiction over a defendant is a question of law. American Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 805 (Tex. 2002). If, as here, the special appearance is

based upon undisputed or established facts, we review the court's order de novo. Conner

v. ContiCarriers & Terminals, Inc. , 944 S.W.2d 405, 411 (Tex. App.--Houston [14th Dist.] 1997,

no writ).

DISCUSSION

When a foreign judgment is filed in Texas under the UEFJA, the debtor's position

is analogous to that of a person against whom a no-answer default judgment has been rendered:

"there may not have been any opportunity for such a debtor to have defended against the judgment

in a trial, but he is not cut off from any postjudgment procedures for attacking the judgment."

Moncrief v. Harvey , 805 S.W.2d 20, 23 (Tex. App.--Dallas 1991, no writ); see also Myrick

v. Nelson's Legal Investigating & Consulting , No. 04-08-00174-CV, 2009 Tex. App. LEXIS 3262 ,

at *4-6 (Tex. App.--San Antonio May 13, 2009, no pet.) (mem. op.). A filed foreign judgment has

the same effect and is subject to the same procedures, defenses, and proceedings for reopening,

vacating, enforcing, or satisfying a judgment as a judgment of the court in which it is filed. See

Tex. Civ. Prac. & Rem. Code Ann. § 35.003 (c). The plain language of the statute mandates that a

foreign judgment is treated as a judgment of the Texas court in which it is filed. The appellate

timetables begin to run from the date the foreign judgment is filed. Urso v. Lyon Fin. Servs., Inc. ,

93 S.W.3d 276, 279 (Tex. App.--Houston [14th Dist.] 2002, no pet.). In the present case, the time

period for filing a motion for new trial or other challenge to the domesticated judgment began on

May 22, 2006, the date the Minnesota judgment was filed in Travis County pursuant to

section 35.003 of the civil practice and remedies code. Bahar did not file a motion for new trial or

otherwise challenge the judgment until almost a year later, in April 2007. By that time, the court's

plenary power had long since expired, on June 22, 2006. Bahar does not dispute that the trial court's

plenary power had expired when she filed her motion to vacate the judgment.

Motion to Vacate Judgment

In her first issue, Bahar contends that the trial court erred in concluding that it did not

have jurisdiction to consider the motion to vacate filed after it had lost plenary power over the

judgment. Bahar asserts that, because she was never served with process in the underlying suit, the

judgment is void and therefore subject to a collateral attack, which she asserts could be filed at any

time. We disagree. To begin with, what Bahar filed was a direct attack, not a collateral attack. See

Browning v. Prostok , 165 S.W.3d 336, 345-46 (Tex. 2005) ("A collateral attack is an attempt to avoid

the binding force of a judgment in a proceeding not instituted for the purpose of correcting,

modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment

currently stands as a bar against."). Here, Bahar is attempting to vacate the judgment in a proceeding

instituted for that purpose. This is a direct attack on the judgment. Rule 329b provides that "on

expiration of the time within which the trial court has plenary power, a judgment cannot be set aside

by the trial court except by bill of review for sufficient cause." Tex. R. Civ. P. 329b(f). The Texas

Supreme Court has construed this rule to mean that after a trial court's plenary power has expired,

a bill of review is the exclusive remedy by which a court may, in a direct attack, set aside a final

judgment rendered by a trial court that had "jurisdictional power" to render the judgment. Middleton

v. Murff , 689 S.W.2d 212, 213 (Tex. 1985); Deen v. Kirk , 508 S.W.2d 70, 72 (Tex. 1974); McEwen

v. Harrison , 345 S.W.2d 706, 710 (Tex. 1961). In this context, "jurisdictional power" means

jurisdiction "over the subject matter, the power to hear and determine cases of the general class to

which the particular one belongs." Deen , 508 S.W.2d at 72 . In this case, Bahar complains that the

judgment is void because she was not served with process. The supreme court has specifically held

that "those cases in which a default judgment is asserted to be void for want of service, or of valid

service, of process" fall squarely within the category of judgments rendered by a trial court with

"jurisdictional power" and, after the court's plenary power has expired, may be challenged only by

a bill of review. McEwen , 345 S.W.2d at 710 . Therefore, Bahar's exclusive avenue for having the

judgment vacated or set aside in this direct attack was to file a bill of review.

The trial court had no jurisdiction to address Bahar's motion challenging the judgment

other than by bill of review. Rather than dismiss the motion for lack of subject matter jurisdiction,

however, the trial court denied the motion. Because the trial court lacked jurisdiction to rule on the

merits of the motion, the order denying the motion, itself, is void. See Houston Pipeline Co. v. Bank

of America , 213 S.W.3d 418, 429 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing State ex rel.

Latty v. Owens , 907 S.W.2d 484, 485 (Tex. 1985)) (void judgment results when trial court had no

jurisdiction over parties or subject matter). Because the trial court's order is void, we vacate the

order and dismiss Bahar's first appellate issue for lack of jurisdiction. Tex. R. App. P. 43.2(e);

see also Juarez v. Texas Ass'n of Sporting Officials El Paso Chapter , 172 S.W.3d 274, 278

(Tex. App.--El Paso 2005, no pet.) (if trial court lacked jurisdiction, appellate court has jurisdiction

only to set judgment aside and dismiss cause).

Special Appearance

By her third issue, Bahar complains of the trial court's denial of her special

appearance. The court did not have jurisdiction to entertain a special appearance after its

plenary power expired. See, e.g. , Koch Graphics, Inc. v. Avantech, Inc. , 803 S.W.2d 432, 433

(Tex. App.--Dallas 1991, no writ) (trial court could consider special appearance filed after default

judgment and within time period it retained plenary power); Myers v. Emery , 697 S.W.2d 26, 29 (Tex.

App.--Dallas 1985, no writ) (court may address special appearance within period it has plenary

power). Bahar contends that her special appearance is combined with a motion to transfer venue,

which she claims could be brought at any time. Complaints about improper venue must be raised

in a motion to transfer venue pursuant to rule 86 of the Texas Rules of Civil Procedure.

Tex. R. Civ. P. 86(1); see also Gordon v. Jones , 196 S.W.3d 376, 384 (Tex. App.--Houston [1st

Dist.] 2006, no pet.) (venue is not jurisdictional and party waives any objection to improper venue

if objection not made by timely filed written motion). While rule 86 provides that a motion to transfer

venue "may be combined with other objections and defenses and included in the movant's first

responsive pleading," the rule also provides that "the motion shall state that the action should be

transferred to another specified county of proper venue." Tex. R. Civ. P. 86(3) (emphasis added).

Bahar's motion requested only dismissal of the case, not transfer to a county of proper venue, and

does not, therefore, meet the procedural requirements of a motion to transfer venue. As stated above,

because the trial court lacked jurisdiction to address a special appearance after its plenary power

expired, the order denying the special appearance is void. Consequently, we vacate the trial court's

order and dismiss the appellate issue pertaining to the special appearance. Tex. R. App. P. 43.2(e). (1)

Turnover Order

In her second issue, Bahar complains that the trial court erred in signing a turnover

order because (1) a void judgment cannot support a turnover order, and (2) the trial court had no

jurisdiction to issue the turnover order because Bahar had filed a notice of appeal. Bahar has not filed

a notice of appeal from the order about which she complains, and consequently has failed to perfect

an appeal from that order. See Tex. R. App. P. 25.1(a), (c). This Court does not have jurisdiction of

an appeal unless a timely notice of appeal has been filed. See Wagner & Brown, Ltd. v. Horwood ,

58 S.W.3d 732, 737 (Tex. 2001). We dismiss Bahar's appellate issue regarding the turnover order

for lack of jurisdiction. (2)

CONCLUSION

The trial court lacked jurisdiction to address Bahar's motion to vacate the judgment

and special appearance. The order denying those motions is therefore void. We vacate the trial

court's order and dismiss Bahar's issues pertaining to the motion to vacate the judgment and the

special appearance. Bahar failed to perfect an appeal from the turnover order. This Court lacks

jurisdiction over the portion of Bahar's appeal complaining of the turnover order, and it is dismissed.

Accordingly, we dismiss Bahar's appeal for lack of jurisdiction in its entirety.

_____________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Dismissed for Want of Jurisdiction

Filed: July 28, 2009

1. We note that Bahar's special-appearance argument lacks merit. Bahar stated in her

declaration that she is a resident of Texas. A special appearance is a mechanism for nonresident

defendants who are not amenable to process issued by Texas courts to appear for the purpose of

challenging the court's jurisdiction. See Tex. R. Civ. P. 120a. To successfully make this challenge,

one must first be a nonresident of Texas because it is presumed that Texas courts automatically have

jurisdiction over Texas residents. See Kawasaki Steel Corp. v. Middleton , 699 S.W.2d 199, 203

(Tex. 1985) (per curiam) (rule 120a permits only nonresident defendant to challenge jurisdiction of

court over one's person or property).

2. In any event, Bahar's appeal from this order, on the grounds raised, would fail. Bahar's

filing of a notice of appeal did not deprive the trial court of jurisdiction to issue a turnover order.

The pendency of an appeal does not suspend the right of a judgment creditor to seek aid in the trial

court to enforce a judgment pursuant to section 31.002 of the civil practice and remedies code unless

the judgment is superseded. Anderson v. Lykes , 761 S.W.2d 831, 834 (Tex. App.--Dallas 1988, no

writ) (despite pendency of appeal, trial court is not only court of appropriate jurisdiction, but,

because of nature of relief requested, is court of most appropriate jurisdiction in which to seek

turnover order). This conclusion is consistent with Texas Supreme Court cases holding that, when

a final judgment is not superseded, "not only does a trial court 'have jurisdiction to hear the motion

to enforce its final judgment, despite the fact that the judgment ha[s] been appealed,' but 'a trial

court has an affirmative duty to enforce its judgment.'" In re Sheshtawy , 154 S.W.3d 114, 118

(Tex. 2004) (quoting In re Crow-Billingsley Air Park, Ltd. , 98 S.W.3d 178, 179 (Tex. 2003)).