### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00340- CV

Ronald R. Wagn er, A ppellan t

v. Robert o D’Lorm and E dw ard P . Dancause, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0010 2, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

O P I N I ON Appellant Ronald R. Wagne r sued appell ee s Roberto D’L orm and Edwar d P. Danc ause in T ravis County district c ourt seeking a dec lara tion that a defa

ult judg ment previously 1 obtained by

D’L orm and his attorney , Danc ause, a g ainst Wagne r in a Z apata County district court

was void. D’L orm filed a plea to t he jurisdiction asser ting that the trial court did not have subject-matter jurisdiction to decla re void the judgme nt of another district court. Wagne r moved for summary judgme nt on his decla ratory -judg ment claim. The trial court g rante d D’L orm’s plea to the jurisdiction and denied summary judgme nt for Wagne r, finding summary judgme nt “improper ” for j u risdictional rea sons. I n a single issue on appea l, Wagne r asser ts that the trial court erred i n g ranting D’L orm’s plea to the jurisdictio n and in deny ing his motion for summary judgme nt beca use the Z apata County defa ult judgme nt is void and, there fore , may be collater ally attacke d in

Danc ause did not file a

brief in this appe al. 1another court of equal jurisdiction. We will reve rse the trial court’s order and rema nd the cause for further proce eding s.

F ACTUAL AND P ROCEDURAL BACK GR OUND I n 2003, D’L orm filed suit ag ainst Ronald R. Wagne r & Co, L

. P

. , a T exas limit ed partne rship (“the partne rship”), in Z apata County seeking damag es for injuries he alleg edly rec eived in an acc ident with a vehicle that was owned and opera ted by the partne rship. The rec ord indicates that D’L orm made sever al unsucce ssful attempts to se rve the partne rship by serving Wagne r, who

was a limit ed partner in the partnership and it s ag ent for service

. The recor d does n o t re fl ec t t h at Wagne r was ever serve d, either personally or as ag ent fo r t h e partnership. The recor d also shows that Wagne r was never added a s an i ndividual defe ndant i n the Zapa ta C ounty lawsuit, nor di d he appea r in any capa city befor e the Z apata County district court. Even though Wagne r was not a party to the suit and evidently had not been serve d, the Z apata County court rende red a defa ult judgme nt ag ainst him persona lly

. The rec ord shows that the sty le on the defa ult judgme nt was differ ent from previous documents filed i n the case. Wherea s previous pleadings were sty l ed “R o b er to D’L orm

v. Ronald R. Wagne r & Co, L .P.,” the judgme nt was sty led “Roberto D’L orm v. Ronald R. Wagne r.” The judg ment rec ited that “De fenda nt, although duly cited to a ppear and answe r here in, ha s failed to file an a

nswer w ithin the tim e allowe d by law” a nd awa rded D ’L orm damag es ag ainst Wagne r. I n J anuar y 2007, about three y ear s and five months afte r the defa ult judgme nt was rende red, Wagne r filed suit ag ainst D’L orm and his attorney , Danc ause, in Travis County district court seeking a decla

ration that the Z apata County defa ult judgme nt was void. Wagne r also soug ht damag es for slander of title and injury to his cre dit reputa tion, but he ultimately nonsuited those
2claims. D’L orm answe red and filed a plea to the jurisdiction asser ting that “one district court cannot overturn the judgme nts and decr ees of another ,” and that the trial court there fore lacke d jurisdiction to consider Wagne r’s request for decla ratory relief

. Be fore the trial cour

t ruled on D’L orm’s pl ea to the jurisdiction, Wagne r filed a motion for summary judgme nt on his claim for decla ratory relief

, arg uing that the Z apata County defa ult judgme nt was void. After hear ing arg uments, the trial court g rante d D’L orm’s pl ea to the j urisdiction and den i ed W ag ner’ s motion for summ ary judgme nt on the g round that it was “improper ,” citing issues rela ting to the court’s jurisdiction. Wagne r perf ecte d this appeal.

STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law, which we revie w de novo. Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S

. W

. 3d 217, 224 (Tex. 2004)

. When revie wing a g rant or denial of a plea to the jurisdiction, we consider the plaintiff’s p l eadings, construed in favor of the plaintiff, and any evidenc e rele vant to jurisdiction without considering the merits of the claim bey ond the extent nece ssary to deter mine jurisdiction. Id. at 226-27; County of Cameron v. Brown , 80 S.W .3d 549, 555 (Tex. 2002). I n the prese nt case , D’L orm’s pl ea t o t h e jurisdiction asser

ted that Wagne r failed to plead a cause of action within the su b j ec t -m at t er jurisdiction of the Tra vis County district court. No jurisdictional evide nce w as submitted. I n a challeng e solely to the pleading s, we decide if the plaintiff has alleg ed sufficie nt jurisdictional fac ts to show the trial court’s subject-matter jurisdiction, using a liberal construction in favor of the plaintiff. Miranda , 133 S.W .3d at 2 2 6

. I f t he plaintiff’s pleading s “af firmatively neg ate the exis tence of

jurisdiction,” then a plea to the jurisdiction may be g rante d without aff ording
3the plaintiff an opportunity to amend his pleading s. Id. at 226-27. I f, howeve r, the pleading s do not

“demonstra te incura

ble defe cts in jurisdiction,” but mere ly fail to alleg e sufficien t fa cts to aff irmatively show the trial court’s jurisdiction, then the plaintiff should be g iven an opportunity to amend. Id.

DISCUSSIO N

I n his sole point of err o r, Wagne r asser ts that the trial court err ed when it g rante d D’L orm’s plea to the jurisdiction and denied his motion for summary judgme nt. Wagne r contends that he mounted a valid collater al attack on the Z apata County judgme nt by alleg ing fac ts showing that the j udg ment is void beca use t he Za

pata Count y court lacked jurisdi ction over him as h e wa s neither serve d nor was a party to the suit. Wagne r asser ts t h at “b ecause the [Zapata County ] judgme nt is void

. . . it can be collater ally attacke d in any co u rt of equal jurisdiction.” D’L orm counter s that Wagne r has failed to proper ly employ the options available to him to challeng e the Z apata Co u n t y j u d gment. Citi ng McEwe n v. Harrison , 345 S.W .2d 706 (Tex. 1961), D’L orm contends that Wagne r sh o u ld have filed a bill of revie w in the Z apata County district court that rende red the defa

ult judgmen t
. Beca

use Wagne r failed to file a bill of revie w in Z apata County during the time allowed, D’L orm asser ts that he has “wa ived any rig hts to attack the [default] j udg ment.”

The Travis Coun ty District Cou rt’s Su bject-Matter Jurisdiction

I n this appea l from the g rant of D’L orm’s pl ea to the j urisdiction on the pleading s, our t ask i s to decide whether Wagne r has pleade d sufficie nt j u ri sdictional fac ts to invoke t he trial

4court’s subject-matter jurisdiction, using a libera l co n s truction of his pleading s. Miranda ,

133 S.W .3d at 226. I n his petition, Wagne r alleg ed that the Z apata County defa ult judgme nt is void beca use he w as neither

named a s a par

ty nor ser ved with proc ess:

D’L orm was involved in an acc i d en t
. . . with a vehicle owned and opera ted by RONAL D R. WAGNER & CO. L .P., a Texas L imited Partnership.

. . . [Defenda nts] filed [D’L orm’s petition] in the 49th J udicial District of Z apata Co u n t y , T exas, in Cause No. 5,368 sty led ROBERTO D’L ORM, PL AI NTI FF V. RONAL D R. WAGNER & CO., L P, a Texas L i m i t ed Partnership. Plaintiff RONAL D R. WAGNER was not named a Def endant, nor was he ever serve d with proce ss. . . . On Aug ust 29th, 2003, [t he defe ndants] took a Default Judgment ag ainst [W ag ner persona lly ]

. . . notwithstanding the fac t that [W ag ner] was neither a named Def endant or ever serve d with proce ss. . . . The trial court had no jurisdiction over [W ag ner]

. . . . I nasmuch as [W ag ner] was not a Def endant in Cause No. 5,368, nor was he serve d with proce ss, the 49th J udicial District Court of Z apata County , Texas had no jurisdiction ove r [W ag ner] and the Default Judgme nt ag ainst him should be decla red void a nd of no fur

ther for ce a

nd eff ect.

A judgme nt is void, and thus may be collater ally attacke d, if the rende ring court had “no jurisdiction over a party or his proper ty , no jurisdiction of the subject matter, no jurisdiction to enter the particula

r judgme nt, or no capa city to act as a court.” Au s t i n In dep . S ch. Dist. v. Sierra Club , 495 S.W .2d 878, 881 (Tex. 1973); see also Browning v. Prostok , 165 S.W .3d 336, 346 (Tex. 2005) (same) ; Mapco, Inc. v. Forrest , 795 S.W .2d 700, 703 (Tex. 1990) (orig

. proce eding ) (same)

. For a court to have persona l jurisdiction over the defe ndant, the defe ndant must be amena ble to the jurisdiction o f t h e court and the plaintiff must have invoked that jurisdiction by valid service of proce ss on the defe ndant. Kawasaki Stee l Corp. v. Middleton , 699 S.W .2d 199, 200 (Tex. 1985)

. This Court has also held that a judgme nt may be collater ally attacke d b ec au s e o f “fundamental

err or.” Texas Dep’ t of T r a n s p . v. T

. Brown Constructors, Inc ., 947 S.W .2d 655, 659 (Tex.

5App.—Austin 1997, pet. denied)

. Fundamental err or occur s wher e “the rec ord show s t h e co u rt

lacke d jurisdiction or that the public interest is direc tly or adver sely aff ecte d as that interest is decla red in the statutes or the Constit ution of Texas.” Pirtle v. Gregory , 629 S.W .2d 919, 920 (Tex. 1982). A court’s rendition of judgme nt a g ainst a party not named in the suit is fundame ntal err or. Mapco, I nc. v. Carter , 817 S.W .2d 686, 687 (Tex. 1991). Her e, Wagne r pleade d that he was neither named as a party nor serve d with proce ss. I f true, that would mean that the Z apata County district court committe d fundame ntal err or by rende ring judgme nt ag ains t W agn er b ec ause he was not a party , see id. , and that the court lacke d persona l jurisdiction over W ag ner when i t rende red default judgment aga inst him beca use he was not serve d, Kawasaki Steel Corp. , 6 9 9 S

. W

. 2d at 200. For either rea son, the defa ult judgme nt rende red ag ainst him would be void and subj ec t to collater al attack. See Austin Indep. Sch. Dist. , 495 S.W .2d at 881.

We ne ed not de cide at this juncture whether the Z apata County defa ult judgment is actua lly void. Having decide d that Wagne r’s pleade d fac ts, if true, would rende r the Z apata County defa ult judgme nt void, we need only deter mine whether the Travis Coun t y district court had jurisdiction to entertain his suit.

T h e supreme court addre ssed this issue by implication in Browning v. Placke , a mandamus action in which the rela tor soug ht relief from an order rende red by a L ee County district court that declare d void a judg ment rende red thre e y ear s ear lier by a Da llas County district court. 698 S.W

. 2 d 3 6 2 , 3 63 (Tex. 1985). The plaintiffs in the L ee County suit arg ued that the Dallas County judgme nt was void beca use it was rende red without the joinder of an “indispensable” party
.

6Id. I n reje cting that arg ument, the supreme court held that failure to join an indispensable party does

not rende r a judgme nt void. Id. The court reiter ated that unless a judgment i s void for one of the four rea sons listed in Austin Indepen d en t S chool District

—i.e., no jurisdiction over a party or his proper ty , no jurisdiction of the subject matter, no jurisdiction to enter the particula r judgme nt, or no capa city to act as a court

— it is not subject to collater al attack in another court of equal jurisdiction. Id. The court held that the decla ration issued by t he L ee County court, there fore , was err or. Id. (“[T]he L ee County district court decla red void a judgme nt which has not been shown to have been rende red by a court without jurisdiction to do so. . . . [T] hat action conflicts with Austin Indepe ndent School District

. . . .”). Thus, the Dallas County judgme nt ma y have been voidable , but it was not void , and so could not be suc cessf ully collater ally

attacke d. Id. We draw two conclusions from Browning. The first is that if a challeng ed judgme nt is void, a differ ent, co-e qual court can proper ly rende r judgme nt decla ring it void. This conclusion follows l o gically from the holding of the case and, more specifica lly , from the opening para g raph of the c ourt’s opinion:

This orig inal mandamus proce eding prese nts the question whether a district court m ay decla

re void the judgme nt of another district court. We hold that a b s en t a showing that the prior court lacke d jurisdiction , no such decla ration is permissible.

Id. at 362 (empha sis added)

. The second conclusion—the one that answe rs the question prese nted here —follows as a matter of course : if the trial court may proper ly rende r such a judgme n t , it

nece ssarily

must have jurisdiction to render it.

7Other case s addres s i n g the issue direc tly or in dicta also hold or imply that courts

have jurisdiction to decla re void the judgme nt of another court. See, e.g. , Segrest v. Segrest , 649 S.W .2d 610, 613 (Tex. 1983) (“[T]he Seg rests’ 1974 divorce decr ee should be viewed as being

erroneous or voidable , as opposed to being void.

. . . Mr. Seg rest’s suit for decla ratory judgme nt is there fore not a remedy available to him to set aside the final decree of di vorce rende red in 1974.” (empha sis in orig inal)); Dallas County Tax Collector v. Andolina , 303 S.W .3d 9 2 6 , 9 3 0 (Tex. App.—Dallas 2010, no pet.) (“The Andolinas do not contend the bankruptc y court’s order

co n fi rm ing Horizon’s plan of reor g anization was void. There fore , any collater al attack o n t h e bankruptc y court’s confirma tion order must fa i l

. ”) ; Cohen v. Cohen , 632 S.W .2d 172, 173 (Tex. App.—Waco 1982, no writ) (party in d ec l ar at o ry -judg ment action brought to construe provisions of otherwise final divorce decr ee did not alleg e the decr ee was void, there fore decla ratory judgme nt not permitted).

McEwen v. Harrison Is Not Appli cable

D’L orm arg ues that Wagne r has “wa ived any rig hts to attack the [default] judgme nt” in the prese nt case beca use h e fa i l ed t o employ one of the reme dies enumer ated in McEwe n v. Harrison , 345 S.W .2d 706 (Tex. 1961). McEwe n and its prog eny hold that, on direct a ttack,

when t h e t i m e for filing a motion for new trial has expired and relief may not be obtained by appea l, a proce eding in the nature of a bill of review i s t he exclusive method of vaca

ting a defa

ult judgme nt rende red in a case in which the court had jurisdictional power to re nder it.

8Id. at 709 (construing Texas Rule of Civil Procedur e 329b to limit reme dies used to direc tly attack

judgme nt). The phrase “jurisdictional power ” means “‘jurisdiction o v er the subject matter, the power to hear and deter

mine case s of the g ener al class to which the particula r one belong s.’” Middleton v. Murph , 689 S.W .2d 212, 213 (Tex. 1985) (quoting Dee n v. K irk , 508 S.W .2d 70, 72 (Tex. 1974)). D’L orm asser ts that, beca

use the Z apata County court had subject-matter jurisdiction in that case and the time for filing an appea l from that judgme nt has expired, Wagne r’s only reme dy “to attac k” the judg ment was a proce eding in the nature of a bill of re view. We disag ree . McEwe n applies only to a direc t attack on a judgme nt, not to a collater al attack. See 345 S.W .2d at 710 (holding that rul e 3 2 9 b ’s l i m its apply to “all reme dies in the nature of direc t attacks” ). A dire ct attac k on a judg ment is defined a s

a proce eding instit uted for the purpose of corr ecting the ear lier judgme nt. I t may be broug ht in the court rende ring the judgme nt or in another court that is authorized to revie w t h e j udg ment on appea l or by writ of err or [i .e., restric ted appea l]

. The purpose of a direc t attack is to chang e the former judgme nt and secure the entry of a cor rec t judgment in lieu of the ear lier incorr ect one
.
Austin Indep. Sch. Dist. , 495 S.W .2d at 881. He re , W agner does not seek to “cor rec t” t he Za

pata County judgme nt, nor does he seek to “ chang e” it and secur e entr y of a “ corr ect judg ment” in lieu
t h ere of. Nor does he seek to have the judgme nt vacated or set aside. Moreove r, W ag ner bro u gh t his attack in a differ ent court from the one that rende red the judgme nt under attack. A direc t attack must be broug ht in the court that rende red the judgme nt under attack beca use only that court or a highe r court on appea l may amend or vacate it. See id. at 881. For these rea sons, Wag ner’ s attack

9here is proper ly classified as collater al, not direc t. See also Browning , 698 S.W .2d at 363 (appe al 2 from decla

ration rende red by one court decla ring judgme nt of another court void is collater al attack) ; Empire Gas & Fuel Co. v. Al b right , 87 S.W .2d 1092, 1096 (Tex. 1935) (attac k on judgme nt of

one court in another court is collater al attack) ; Baqdounes v. Baqdounes , No. 01-07-01102- CV, 2009 WL 214508, at *2 (Tex. App.—Houston [ 1 s t Di s t
. ] J an. 29, 2009, pet. denied) (“[The p l ai n t i ff ’s] attack on the prior

. . . judgme nt does not attempt to secur e the rendition of a single,

corr ect judgme nt in place of an ear lier one. [The Plaintiff there fore ] bring s a collater al attack on . . . the decree .”). Be cause Wagne r di d not mount a direct att ack on the Zapa ta C ounty judgme nt, the limit ations imposed by McEwe n and rule 329b do not apply here

. “Judgm ent-Interpretation Cases” Are Not Applicable

The prese nt case is also distinguishable from the line of case s holding that a court has

no jurisdiction to rende r decla ratory judgme nt to “interpr et” a prior judgme nt. I n the prese nt c ase, Wagne r does not seek to “ interpre t” the Z apata County judgme nt, i.e ., he does not a sk the court to construe the judgme nt’s substantive provisions. See, e .g. , Martin v. Dosohs I Ltd. , 2 S.W .3d 350,

Deter mining the ty

pe of attack mounted by Wagne r here is important both for the analy sis 2 in this appea l and beca

use it deter

mines the presumptions that the trial court will g ive to the Z apata County judgme nt on remand. This Court has held that, in a collater al attack, the challeng er must show err or on the fac e of the judgme nt itself, Narvaez v. Maldonado , 127 S.W .3d 313, 317-18 (Tex. App.—Austin 2004, no pet.), and the supreme court has stated that “[i] n a collater al attack , t h e judgme nt under attack is presumed valid,” Stewart v. USA Custom Paint & Body Shop, Inc ., 870 S.W .2d 18, 20 (Tex. 1994). Nonethele ss, the supreme court has also held that “[t] he presumption supporting judgme nts does not apply when the rec ord aff

irmatively reve als a jurisdictional defe ct.” Alfonso v. Skadden , 251 S.W .3d 52, 55 (Tex. 2008) (“‘ I n order for a collater al attack to be succe ssful the re cord must af firmatively reve al the jurisdictional def ect.” ’ (quoting W

hite v. W hite , 179 S.W .2d 503, 506 (Tex. 1944))). 10354 (Tex. App.—San Ant o n i o 1 9 9 9 , no pet.) (no jurisdiction to use decla ration to construe substantive provisions of land-pa rtition judgme nt); Sutherland v. Sutherland , 560 S.W .2d 531, 533 (Tex. Civ. App.—Texarkana 1978, writ ref ’d n.r.e.) (no jurisdiction to construe rela tive rig hts a nd duties of parties wi t h re s p ec t t o provisions of final order of divorce )

. Wagne r does not seek to relitig ate the merits of the controve rsy decide d by the judgme nt under attack, nor does he attempt to avoid the proce dural limit ations for attacking judgme nts. Fur ther, as we hold here , Wagne r’s reque st for decla ratory reli ef is not an “improper ” collater al attack. See Rapid Settlements, Ltd. v. SSC Sett l ements, LLC , 251 S.W .3d 129, 140 (Tex. App.—Ty ler 2008, no pet.) (dec lara tory -judg ment action is improper if it collater ally attacks judgme nt not alleg ed to be void). For these rea sons, the prese nt c ase is funda

mentally differ ent from “judg ment-interpr etation” case s. See Texas Dep’ t. of Ins., Div. of W

orkers’ Comp. v. Insurance Co. , 306 S.W .3d 897, 902-03 (Tex. App.—Austin 2010,

no pet.) (ana ly

zing rea sons why courts lack subject-matter jurisdiction to interpre t final judgme nts). I n light of the fore g oing, we hold that Wagne r’s pleading s wer e sufficie nt to g ive the trial court subject-matter jurisdiction to adjudicate his cl aim s for decla ratory relief

. The court there fore err ed when it g rante d D’L orm’s plea to t h e j u ri s d i ct ion. We sustain that portion of Wagne r’s issue on a

ppeal. Denial of Wagner’s Motion for S um m ary Judgm ent

I n the second portion of his issue on appea l, Wagne r asser ts that the trial court err ed i n deny ing his motion for summary judgme nt on his claims for decla ratory relief

. Th e t ri al co u rt d en i ed Wagne r’s motion in light of its decision that it lacke d jurisdiction to adjudicate h i s decla ratory -judg ment claim. The denial of a moti o n for summary judgme nt is g ener ally not
11revie wable on appea l. See Texas Mun. Power Agenc y v. Public Util. Comm’n , 253 S.W .3d 184, 192 (Tex. 2007). I n any event, beca use the cause must be rema nded in light of our holding that the trial court did not lack subject-matter jurisdiction, we need not addre ss the de n i al of W ag ner’ s motion for summary

judgme nt.

CONCLUSION We hold that the trial court had subject-matter jurisdiction to hear an d co n s i d er Wagne r’s de clar atory -judg ment suit. We there fore reve rse the district c ourt’s dismissal order a nd

rema nd the ca use to that court f

or fur ther proc eeding s.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Reverse d and Remande d Filed: June 2, 2010

12