## In the Court of Appeals Second Appellate Distric t of Texa s at Fort Worth

___________________________ No. 02

- 21

- 00434

- CV

___________________________

On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153

- 328471

- 21
Before Bassel, Wallach, and Walker, JJ. Memorandum Opinion by Justice Bassel 

### M ICHAEL 

### A VILA 

### , Appellant

V



### . K INDSVATER 

### T RAILERS 

### , LLC , Appellee2 MEMORANDUM OPINION
I. Int r oduct ion Appellant Michael Avila appeals th e t rial court ’ s Order Granting Mot ion to
Declare Fore ign Judgment Void . In a sing le iss ue, Avila ar gues tha t the trial court erred in granting the motion bec a u se Appellee Kindsvater Trailers, LLC failed to
presen t clear a n d convin cing evidence that the S tate of Cal i fo rnia lacked personal jurisdiction over Kinds vater. Because the trial cour t improperly granted the mot ion without conducting a n evidentiary heari n g, we rev erse and remand

. II. Background In September 2017, Avi la , a Cal ifornia resident, and Kindsvater , a Texas li mited liability company, entered into an o ral agreement where by Kinds vater would construct

a cus tom boat trailer for Avila in e x change for p ay ment of $10,500

. Avila p aid the purchase price in full and turned over his existing trailer and boat to Kindsvater to use

as specification and requirement guides when building the new boat trailer

. After
Kindsvater fin ished construction and d e livered the com pleted tr ailer, Avila complained o f a number o f construction issues and areas in which the trailer failed to meet promised specifications an d requirements

. Kindsva ter agreed to correct cert a in

o f the iss ues raise d by A vila

. However, even after th e completion o f the additional
work , the traile r did not meet with Avila ’ s satisfa ct i on. Accordingly, Avila rescinded
the contract , but Kin d s vater refused to ref und an y of the purchase price.3 Una ble to re solve their dispute , Kindsvater and Avila eac h file d s epa rate
l a

wsuit s . Fir st , on March 19, 2019, K indsvate r filed a petition seeking de clarato ry

re lief in the 6 7th Dis t rict Court of T arrant Co unty , Tex as . Sh ortly thereafter, on March 25, 2019, Avila filed an original complaint in the Sup erior Court of t he S tate of
California , County of Contra Costa for , inter ali a , br each of contract

. While the Te xas lawsuit was file d first, the California lawsuit proceeded much more quickly. Avila personally served Kindsvater in the California lawsuit by and through it s registered agent on April 8, 2019. Meanwhil e, Kindsvate r di d not even

a ttempt to serve Avila in the Texas lawsuit until May 11, 20 19, and did not successf ully se rve him until Augu st 15, 2019 , via substituted ser vic e , though Avila
maintain s tha t he was n ot actual ly awa re of the Texas lawsuit until much later

. 1
B e ca use Kindsvater failed to timely file a n answer in the California lawsuit, a default judgment was entered in favor of Avil a on Septe mber 13, 2019. N otice of

ent ry o f judgmen t was served on Kinds vater on Septe mber 23, 2019.
De spite the entry of a default judgment in favor of Avila in the Cali fornia lawsuit, the Texas lawsuit continued. On J anua ry 6, 2020, the 6 7th Dist rict C ourt of

1 It should be not ed that Kindsvater ’s counsel emailed Avila ’s attorney a copy of the petiti on in the Texas lawsuit on Ma rch 21, 20 1 9, and asked him if he w ould accept
s ervice on be h alf of Avila. However, Avila ’s atto rney responded that he was not auth o rized to accept service on Avila ’s behalf. [ Id .] Then, beginning on May 11, 2019 , Kin dsvater attempted to se r v e Avila at 4875 Discovery Point, Discovery Bay , California, w hich Avila ’ s attorney had des cri bed in email communications as “Mr. Avila ’s home. ” Kindsvater attem pted to serve Avila at this addr ess six times wi tho ut success . This ap pears to be due to the transposition of two digi ts in Avila ’s address

— Avila actually resides a t 4785 Discovery Point, Discovery Bay, Calif ornia.4 T arrant County entered a defa ult judgment against Avila in the T e xas l awsuit. Avil a filed a motion for new trial , which the 6 7th District Cou rt granted on the grounds that

serv ice on Av ila had been deficient. At t he time of this appeal, th e Te xas lawsuit
remain ed pending

. O n Septe mber 3, 2021, Avila filed an Affidavit of For eign Judgme nt in Tarrant County, Texas , to domestica te the ju dgme nt entered in the Californ ia lawsu it. The matter was assigned to the 15 3rd Dist rict Court of Tarrant County, Texas. Kindsvater
then filed a Mot ion to D eclare Foreign Jud gme nt Void o n the g rounds that the
C al ifornia court lacked personal jurisdiction over Kin dsvater. Kindsvater ne ver served a no ti ce of hearing on the mot ion, nor was any hearing set by the court. O n October 12, 2021, th e 15 3rd District Court e ntered an orde r gra nting Ki ndsvater ’ s motion and declaring the judgment in the California lawsuit void. Avila then filed a
motion for reconsideration on the grounds th at K indsvater had failed to meet its
burd en to vacate the C alifornia judgment

. On December 17, 2021 , t he 15 3rd D istrict
Court held a hearing on Avila ’ s motion for reconsiderat ion and denied the motion b y order ente red the same day. This appeal followed.
III. Dis cussion
A. Th e Law Conce rning the Domesticat ion o f Foreign Judgments The United States Constitution require s each state to give ful l faith and credit

to the public ac ts, recor ds, and judicial proceedings of every other state. U.S. Const

. art. IV, § 1 ; Dalton v. Dalton , 551 S.W.3d 126 , 135 (T ex. 2018)

. A judgment credito r5 seeking to enforce a nother state ’ s judg ment in Texas may do so in one of two ways: (1 ) brin ging a common law action to enfo rce the judgme nt or (2) following the procedures se t fort h in the Uniform Enforcement of Foreign Judgments Act ( UEFJA). Co uns . Fin. Servs., L .L.C. v. David McQuade Leibowi tz, P.C. , 311 S.W. 3 d 45, 50 (T ex. App.

— San Ant onio 2010, p et . denie d); see generally Tex. Civ. Prac. & Rem. C ode Ann. §§ 35.001

– 35.008. The filing of an authenticated copy of a foreig n judgment
pur suan t to the UEFJA satisfies a j udgment creditor ’ s bur den to present a prima facie
case for the enforcem ent of the j udgment. Cash Reg

. Sales & Serv s . of Hous

. , Inc. v. Copelco Cap

. , Inc. , 62 S.W.3d 278 , 280 (Tex. App.

— Houston [1st Dist.] 2001, no pet.) ; Minuteman Pres s Int ’ l, Inc. v. Sparks , 782 S.W.2d 339, 340 ( Tex. App.

— Fort Worth 1989, no writ) . T hi s is tru e even if the judgment is entered by default. Clamon v. DeL ong , 477 S.W.3d 823, 826 (Tex. App.

— Fort Worth 2015, no pet. )

. The burden then shifts to the judgment debtor to demonstrate why the judgment shoul d not be given full
fa ith and credit. Mi nuteman , 782 S. W. 2 d at 340

– 41

. To satisfy this burden , the judgment debtor must present clear and co nvincing evi dence th at the judgment is
invalid. Cash Reg

. Sales , 62 S.W.3d at 280

– 81 ; Fuhrer v. Rinyu , 647 S.W.2d 315, 317 (Tex. App.

— Corpus Chr isti

– Edinburg 1982, no wri t) (op. on reh ’ g)

. B. Stand ard of Review
A motion c ontesting the enforcement of a foreign judgment operates as a
motion for new trial. Jonsson v. Rand Racing, L.L.C ., 270 S.W.3d 320, 3 24 (Tex. App.

— Dal las 2008, no pet.)

. We revie w a tria l court ’ s orde r on a motion contesting a foreign6 judgment ’ s enforcem ent for an abuse of discretion

. I d

. In such a case , we apply the
abuse

- of

- discretion standard r e c o gn i z i n g that the law require s the trial court to gi ve full faith and credit to t he foreign judgment un less the judgment debtor establishe s an exception by c lear and convincing evidence. Jahan Tigh v. De Lage Landen Fin. Servs ., 545 S.W.3d 714, 723 (Tex. App.

— Fort Worth 2018, no pet.). Determining whether a judgment debtor establishe d an exception general ly i nvolves a factua l i nquiry, not resolution of a que stion of law. Id

. A trial court abuses its discretion when it acts without reference to any guiding rules or principles or its actions are arbitrary or unreasonable under the cir cumstances. Jonsson , 270 S.W.3d at 324.
C. The Pr esent Case In the pr esent ca se , it was an abuse of discretion to grant Kind s vater ’ s Motion

to Declar e Judgment Void w ithou t first conducting a hearing

. B ecause Avila file d an
auth enticated copy of the Califo rnia judgment in the t rial cour t, Kindsvater bore the
burden o f demonstrat in g by clear and convinc ing evidence that the judgment should
not be given full faith and credit

. See Jahan Tigh , 545 S.W.3d at 723 ; Cash Reg

. Sales , 62
S.W.3d at 280

– 81

. B y not ho lding a hearing and, in e sse nc e, granting th e motion by
default , 2 Kindsvater wa s not held to its bur den of proof. B e cause the determination

2 At the hearing on Avila ’s motion for recon sid erat ion, the trial court gave the follow ing account of why it entered the ord e r gra n ting Ki ndsvater ’s mot ion to vacate the Cali forn ia j udgment : S o when I look a t it in the file as it po ps up, I see that the re ’ s no response, I just grant it because there ’ s no he aring set and no re spons e.7 as to whether Kindsvater can demonstrate that the California jud gment is not entitled

t o full faith and credit in T exas invol ves a factual i nquiry, not a leg al question , a hearing was ap prop riat e. See Jahan Tigh , 545 S.W.3d at 723 (noting that d etermining whether a judgmen t debtor established an exception generally involves a factual inquir y, not resolution of a q uest ion of law ).
Moreover , th e granting of th e motion with out a hearing and without setting any
deadline for Avila to file a respons e denied Avila due process. See Mathews v. Eldridge , 424 U.S. 319, 333 , 96 S. Ct. 893, 902 (1976) ( re cognizing that due process requires

“ the opportunit y t o be heard ‘ at a meaningful time and in a meaningfu l manner ’ ” (quoti ng Armstrong v. Manzo , 380 U.S. 545, 552 , 85 S. Ct. 1187, 1191 (1965) ) ) ; see also Univ. of Tex. Med. Sch. at Hous

. v. Than , 901 S.W. 2d 926, 930 (Tex. 1995) ( same)

. As
noted ab ove, Ki ndsvater ’ s motion was granted , in essence, by d efault; however , such a disposition was imp roper and unfair to Avila bec ause no deadline had been set b y which he w as to file a respo nse. In deed , at the hear ing on Av ila ’ s motion to reconsider , the trial cou r t acknowledg ed that the procedural defi cienc ies had cost
Avi la the oppor tu nity to file a response and co nced ed that Kindsvater ’ s original
motion should have been set for h earing

. 3 Because the procedure fo llowed by the

Th e trial court ’ s comments su ggest th at it granted the mot ion by defaul t, not on the merits

.
3 At the he arin g , the trial court re c o gnized that an “ error occurred ” and that , as a re sult, “ [Avila ’ s counsel] neve r got a chan ce to file a response. ” Additionally , the court stated that it believed its ruling was correct bu t “ that procedurally that

. . .8 trial court did not provide Avila a m eaningful op portunity to be heard, he was not afforded due process. See Mathews , 424 U.S. at 333 , 96 S. Ct. at 902

. Kindsv ater a ssert s that the subsequent hearing on Avila ’ s motio n to rec onsi der cured any deprivat ion of due process

. Howeve r, the hearing on the motion to reconside r was constrained to a twenty

- minut e ti me window and focu sed primarily on procedural issues

— inclu ding wh y the original motion ha d not b een set for hearing

—

not th e merits of th e mo tion. The hearing did not afford the parties a n opportunity to make substantive arguments or to present evidence. A ccordingly , it di d not provide Avila the op portunity to be hear d “ at a meanin g f ul time ” or “ in a me aning ful

manner. ” Id. at 333 , 96 S. Ct. at 902

. In sum, by gr an t ing the motion without holding a hearing or advising Avila of
the deadline to file a response , the t rial cour t failed to hold Ki ndsvater to its burden of
pro of and denied Avila a meaningful opportunity to be h eard . Accordin gly, th e trial

court abus ed its discretion

.

should ha ve been a hearin g . ” Late r , the trial court restated its belief t hat its ruling was correct but a ck nowledged that it was also “ defective in that this was a contested issue and should have had a hearing of some sort

. ”9 IV. Conclus ion
For the reasons set forth above , we revers e the trial court ’ s Order Granting
Mot ion to Declare Forei gn Judgment Void and remand t his matter to the t rial court

so that a n evidentia ry hearing may be held o n Ki ndsvater ’ s motion

. /s/ Dabney Bassel
D abney Bas sel Justice
Delivered: August 31, 2022