IN THE

TENTH COURT OF APPEALS

No. 10-13-00255-CV

RAYMOND THIBODEAU,

Appellant

v.

DODEKA, LLC,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. C201100407

O P I N I O N

Raymond Thibodeau appeals the trial court’s order granting summary judgment 

in favor of Dodeka, L.L.C. Because the trial court did not err in granting summary 

judgment, we affirm.

BACKGROUND

Dodeka was assigned Thibodeau’s credit card debt and ultimately sued 

Thibodeau in 2009 in the justice court to collect approximately $9,600 of that debt. 
Thibodeau v. Dodeka, LLC Page 2

Thibodeau did not file an answer to the suit, and the justice court granted a default 

judgment in 2010 in favor of Dodeka in the amount of $9,604.32. Thibodeau did not 

appeal. However, in 2011, Thibodeau sued Dodeka in district court seeking, among 

other things, a declaratory judgment that the 2010 justice court judgment was void 

because the amount of the debt owned by Dodeka exceeded the jurisdictional limits of 

the justice court. 

Dodeka filed a motion for summary judgment and then an amended motion for 

summary judgment contending Thibodeau’s suit was an impermissible collateral attack 

on the justice court judgment; Thibodeau lacked standing to bring his suit because he 

suffered no damages; and Thibodeau’s petition failed to state a claim on which relief 

could be granted. The trial court granted summary judgment in favor of Dodeka, 

without stating the grounds upon which it relied, and dismissed Thibodeau’s claims 

with prejudice. 

SUMMARY JUDGMENT

On appeal, Thibodeau argues the trial court erred in granting summary 

judgment on any ground alleged by Dodeka.

Under the traditional summary judgment standard, the movant has the burden 

to show that no genuine issues of material fact exist and that it is entitled to judgment as 

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 

546, 548 (Tex. 1985); Lotito v. Knife River Corporation-South, 391 S.W.3d 226, 227 (Tex. 
Thibodeau v. Dodeka, LLC Page 3

App.—Waco 2012, no pet.). If the order granting the summary judgment does not 

specify the grounds upon which judgment was rendered, we must affirm the summary 

judgment if any of the grounds in the summary judgment motion is meritorious. FM 

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Lotito, 391 S.W.3d at 

227. Once the movant establishes its right to summary judgment as a matter of law, the 

burden shifts to the non-movant to present evidence raising a genuine issue of material 

fact which precludes the summary judgment. See City of Houston v. Clear Creek Basin 

Auth., 589 S.W.2d 671, 678 (Tex. 1979); Talford v. Columbia Med. Ctr. at Lancaster 

Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex. App.—Dallas 2006, no pet.).

Collateral Attack

Dodeka argued in its amended motion for summary judgment that Thibodeau’s 

suit in district court was an impermissible collateral attack on the justice court judgment 

and should be dismissed. Thibodeau’s suit is clearly a collateral attack of the justice 

court default judgment. Thibodeau contends, however, that the collateral attack is 

permissible because the justice court judgment is void. Specifically, he contends the 

amount in controversy pled by Dodeka exceeded the justice court’s jurisdiction.

A collateral attack does not attempt to secure the rendition of a single, correct 

judgment in place of a former one, but, instead, seeks to avoid the effect of a judgment 

through a proceeding brought for some other purpose. See Browning v. Prostok, 165 

S.W.3d 336, 346 (Tex. 2005); Employers Casualty Co. v. Block, 744 S.W.2d 940, 943 (Tex. 
Thibodeau v. Dodeka, LLC Page 4

1988); Austin Independent School Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973); 

Gainous v. Gainous, 219 S.W.3d 97, 105 (Tex. App.—Houston [1st Dist.] 2006, pet. 

denied). Thus, to prevail in a collateral attack, a party to the original judgment must 

show that the complained-of judgment is void, not simply voidable. Gainous, 219 

S.W.3d at 105. A judgment is void when "the court rendering judgment had no 

jurisdiction of the parties or property, no jurisdiction of the subject matter, no 

jurisdiction to enter the particular judgment, or no capacity to act." Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (quoting Browning, 165 S.W.3d at 346); Austin 

Independent School Dist. v. Sierra Club, 495 S.W.2d 878, 881-882 (Tex. 1973). All other 

errors render the judgment merely voidable, and such errors must be corrected on 

direct attack. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). If the challenged 

judgment is only voidable, as opposed to void, the collateral attack fails. See Hagen v. 

Hagen, 282 S.W.3d 899, 902 (Tex. 2009); Gainous, 219 S.W.3d at 105. 

When attacked collaterally, a judgment is presumed valid. PNS Stores, Inc. v. 

Rivera, 379 S.W.3d 267, 273 (Tex. 2012); Stewart v. USA Custom Paint & Body Shop, Inc., 

870 S.W.2d 18, 20 (Tex. 1994). But that presumption disappears when the record 

establishes a jurisdictional defect. PNS Stores, Inc., 379 S.W.3d at 273; Alfonso v. Skadden, 

251 S.W.3d 52, 55 (Tex. 2008) (holding that "[t]he presumption supporting judgments 

does not apply when the record affirmatively reveals a jurisdictional defect"); White v. 

White, 179 S.W.2d 503, 506 (Tex. 1944). Accordingly, although we presume Dodeka's 
Thibodeau v. Dodeka, LLC Page 5

default judgment is valid, we may look beyond the face of the judgment to determine 

whether the record affirmatively demonstrates that the trial court lacked jurisdiction. 

The record affirmatively demonstrates a jurisdictional defect sufficient to void a 

judgment when it either: (1) establishes that the trial court lacked subject matter 

jurisdiction over the suit; or (2) exposes such personal jurisdictional deficiencies as to 

violate due process. PNS Stores, Inc., 379 S.W.3d at 273. 

Justice Court Judgment

The justice court has original jurisdiction of civil matters in which exclusive 

jurisdiction is not in the district or county court and in which the amount in controversy 

is not more than $10,000 exclusive of interest. TEX. GOV'T CODE ANN. § 27.031(a)(1) 

(West Supp. 2013). The amount in controversy is “determined by the amount the 

plaintiff seeks to recover,” as set out by the plaintiff’s demand for damages in his 

petition. United Servs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 402 (Tex. 2007); Hoffman v. 

Cleburne Bldg. & Loan Ass'n, 22 S.W. 154, 155 (Tex. 1893). 

The only “record” from the justice court proceeding presented to the trial court 

was the default judgment and Dodeka’s original petition. The default judgment 

appears valid on its face because the amount awarded to Dodeka, $9,604.32, was within 

the jurisdictional limits of the justice court. Thibodeau contends, however, that 

Dodeka’s original petition in the justice court establishes the justice court had no subject 
Thibodeau v. Dodeka, LLC Page 6

matter jurisdiction because the amount in controversy exceeded the court’s 

jurisdictional limits. 

Dodeka’s petition included a claim for breach of contract, the amount of 

damages for which was within the jurisdictional limits of the justice court. In the prayer 

of the petition, Dodeka prayed for damages in an amount within the jurisdiction of the 

justice court. But, Thibodeau argues, because Dodeka’s petition included a second 

claim which alleged damages exceeding the justice court’s jurisdiction, the justice court 

had no jurisdiction to enter the judgment. We disagree with Thibodeau.

While it is true that Dodeka included a second claim, alleging quantum meruit, 

in its petition which alleged the reasonable value of the services provided to Thibodeau 

amounted to $14,907.32, this second claim does not establish that the trial court lacked 

subject matter jurisdiction over the suit. First, the quantum meruit claim was alleged to 

be in the alternative of the breach of contract claim. Each claim alleged must be 

considered separately in determining the amount in controversy, especially when the 

total amount of damages alleged is within the court’s jurisdiction. See Houston Ice & 

Brewing Co. v. Edgewood Distilling Co., 63 S.W. 1075, 1076 (Tex. Civ. App.—Galveston 

1901, no writ) (“While the complaint filed in the justice's court does not state the counts 

in the alternative, yet the entry on the docket and the citation show that suit was only 

for $141.50, and was within the jurisdiction of the justice's court.”). Second, the claim 

which is over the jurisdictional limit does not invalidate the entire suit. In 1900, at a 
Thibodeau v. Dodeka, LLC Page 7

time when the justice court’s jurisdiction was $200, in an opinion on a motion for 

rehearing, the Dallas Court of Civil Appeals held in a similar situation involving 

alternate claims made in a counterclaim:

We are of the opinion now, as when this case was affirmed, that the 

county court had no jurisdiction of the case made by the alternative plea 

which contained the item of $115 [which caused the alternative claim to 

total $200.10], but we think that it did have jurisdiction of the case made 

by the other pleadings of Rylie. The court below should have refused to 

consider the case as made by the plea which embraced the item of $115, 

but the remainder of Rylie's pleadings set up a cause of action within the 

jurisdiction of the court, and the issues raised thereby should have been 

heard and determined.

Rylie v. Elam, 58 S.W. 51, 52 (Tex. Civ. App.—Dallas 1900, no writ) (bracketed phrase 

added), overruled on other grounds, Rylie v. Elam, 79 S.W. 326 (Tex. Civ. App.—Dallas 

1904, no writ). The Dallas court concluded that the county court had erred by striking 

the entire counterclaim and held that the county court should have decided the claim 

within its jurisdiction and dismiss only the claim over which it did not have 

jurisdiction, that being the one which included the $115 item.1 The same reasoning 

applies in this case.

The trial court in this case could properly proceed on the claim within its 

jurisdiction and ignore or dismiss the alternative claim which exceeded its jurisdictional 

limit. Thus, the record does not affirmatively show a lack of jurisdiction, and 

 

1

 An appeal from a justice court decision is de novo to the county court which is limited to the same 

jurisdictional amount in controversy as what the justice court had. See TEX. R. CIV. P. 506.3; Standard Inv. 

Co. v. Dowdy, 122 S.W.2d 1107, 1109 (Tex. Civ. App.—Dallas 1938, writ dism ‘d w.o.j.)
Thibodeau v. Dodeka, LLC Page 8

Thibodeau’s collateral attack fails.2 The trial court did not err in granting summary 

judgment on that ground.

Affidavit

Thibodeau also argues in his sole issue that the trial court erred in failing to grant 

Thibodeau’s objections to an affidavit by Courtney Dodd attached to Dodeka’s 

amended motion for summary judgment. Thibodeau’s objections, the primary 

complaint being that Dodd’s affidavit was not made with personal knowledge, were 

objections as to the form of the affidavit. See Wolfe v. Devon Energy Prod. Co., 382 S.W.3d 

434, 452 (Tex. App.—Waco 2012, pet. denied). Because Thibodeau failed to secure a 

ruling on the record on those objections at or before the time the trial court rendered its 

order granting summary judgment, he has not preserved his complaint as to those 

objections for review. McFarland v. Citibank, N.A., 293 S.W.3d 759, 762 (Tex. App.—

Waco 2009, no pet.); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. 

App.—Waco 2003, no pet.); Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App.—Waco 2002, 

no pet.). 

Thibodeau also contends that portions of the Dodd affidavit are conclusory. 

Complaints about the substance of a summary judgment affidavit, such as the affidavit 

being conclusory, can be raised for the first time on appeal. Choctaw Props., L.L.C., 127 

 

2

 Thibodeau also submitted extrinsic evidence, such as deposition testimony in this suit, to show the 

justice court lacked jurisdiction. But, because extrinsic evidence may not be used to establish a lack of 

jurisdiction, we do not consider it. Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex. App.—Dallas 1992, writ 

denied). 
Thibodeau v. Dodeka, LLC Page 9

S.W.3d at 241-242. Thibodeau contends the statement by Dodd that “[a] copy of the 

default judgment that the Justice Court entered against Thibodeau on February 4, 2010, 

is attached as Exhibit D” is conclusory because, although a copy of the judgment was 

attached to the affidavit, it was not a separately certified or sworn copy. 

Rule 166a(f) provides that sworn to or certified copies of all papers referred to in 

an affidavit shall be attached to the affidavit. TEX. R. CIV. P. 166a(f). Assuming that 

Thibodeau’s objection is actually an objection as to the substance of the affidavit rather 

than an objection as to its form, a decision we expressly do not make, we find that the 

copy of the attached judgment was “sworn to.” Dodd stated in her affidavit that the 

information in the affidavit was “true and correct.” Further, the affidavit was sworn to 

before a notary, and a copy of the default judgment was attached to the affidavit. 

Copies of documents which are attached to a properly prepared affidavit are sworn 

copies within the meaning of the summary judgment rule. Republic Nat'l Leasing Corp. 

v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986). Any objections Thibodeau had to the form 

of the affidavit were not preserved; thus, the copy of the default judgment, being 

attached to the affidavit, was properly sworn.

Because we have decided that the trial court did not err in granting summary 

judgment on the ground that Thibodeau’s suit was an improper collateral attack on the 

justice court’s default judgment, we need not decide the remainder of Thibodeau’s 

objections to the substance of the Dodd affidavit.
Thibodeau v. Dodeka, LLC Page 10

CONCLUSION

Thibodeau’s sole issue is overruled, and the trial court’s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed March 27, 2014

[CV06]