Donald Stewart and Kathy Stewart, D/B/A Royal Horse Farms, Jennifer Stewart, and Steven Stewart v. Sharon Lee

• Court: Texas Court of Appeals, 10th District (Waco)
• Decided: March 5, 2026
• Docket: 10-23-00380-CV
• Status: Published

Opinion

Court of Appeals Tenth Appellate District of Texas

10-23-00380-CV

Donald Stewart and Kathy Stewart, d/b/a Royal Horse Farms, Jennifer Stewart, and Steven Stewart, Appellants

v.

Sharon Lee, Appellee

On appeal from the 13th District Court of Navarro County, Texas Judge James E. Lagomarsino, presiding Trial Court Cause No. D23-31126-CV

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Donald Stewart and Kathy Stewart d/b/a Royal Horse Farms, Jennifer

Stewart, and Steven Stewart (collectively the Stewarts) appeal from the trial

court’s order granting Sharon Lee’s Application for Issuance of Turnover

Order. The Stewarts raise six issues on appeal in which they challenge the

validity of the trial court’s turnover order. We affirm. Factual and Procedural Background

The Stewarts sued Lee, Aaron Whitelock, Donna Whitelock, Raechel

Rohach, Megan Georges, and Kristin Iden alleging defamation, intentional

infliction of emotional distress, conspiracy, aiding and abetting, and

ratification. Lee moved to dismiss the claims under the Texas Citizens

Participation Act (TCPA), and the trial court granted the motion and dismissed

all claims as to Lee. The Stewarts then filed a supplemental petition adding

claims against Lee for malicious prosecution and business disparagement. Lee

again filed a motion to dismiss under the TCPA, and the trial court dismissed

the Stewarts’ additional claims against Lee. On April 29, 2022, Lee filed a

motion for fees and sanctions, which the trial court granted and awarded Lee

$50,115.48 in attorney’s fees.

On December 20, 2022, Lee filed a motion to sever her case into a

separate cause of action to create a final appealable judgment. On February

2, 2023, the trial court heard Lee’s motion and signed an order granting the

motion. The trial court’s order severed all of the Stewarts’ claims against Lee

into a separate cause of action. The trial court’s order instructed that upon

severance into the new cause number, the trial court’s orders dismissing the

Stewarts’ claims against Lee and awarding Lee attorney’s fees would be final

and appealable. On February 27, 2023, after the trial court signed the

Stewart v. Lee Page 2 severance order, the Stewarts filed a response to Lee’s motion to sever,

included in the motion to sever was an objection to lack of notice of the

February 2 hearing.

On May 26, 2023, Lee filed an Application for Issuance of a Turnover

Order and Appointment of a Receiver. Lee filed an amended application on

June 14, 2023. The trial court held a hearing on Lee’s application on July 6,

2023. At that hearing, the Stewarts opposed the issuance of a turnover order

arguing that Lee’s judgment for attorney’s fees was not a final judgment. The

trial court determined that Lee was entitled to a turnover order against the

Stewarts and signed an order to that effect on November 16, 2023. The

Stewarts appeal from the trial court’s turnover order.

Issues

In six issues, the Stewarts argue that (1) a turnover order is purely a

creature of statute, (2) a turnover order may only be entered in aid of collection

of a final judgment, (3) the trial court’s orders dismissing their claims against

Lee are interlocutory, (4) the order granting Lee’s motion to sever is void,

(5) the turnover order is void, and (6) a turnover order is appealable even if

the order is not a final judgment. All of the Stewarts’ issues are predicated on

the argument that there is no final judgment because the severance order is

void. They maintain that because the judgment was not final, the turnover

Stewart v. Lee Page 3 order is also void. Therefore, we must determine whether the order severing

the claims against Lee is void.

Authority

A judgment is void when it is apparent that 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. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012). A litigant

may attack a void judgment directly or collaterally, but a voidable judgment

may only be attacked directly. Id. at 271. “A direct attack—such as an appeal,

a motion for new trial, or a bill of review—attempts to correct, amend, modify

or vacate a judgment and must be brought within a definite time period after

the judgment’s rendition.” Id. at 272. A void judgment can be collaterally

attacked at any time. Id.

Discussion

The Stewarts contend that because the severance order is void, the

orders dismissing Lee’s claims and awarding her attorney’s fees are not final

judgments. They specifically argue that the severance order is void because

they did not receive notice of the hearing on Lee’s motion to sever.

Lee filed the motion to sever on December 20, 2022, it included a

certificate of conference and service, and the record indicates that the motion

Stewart v. Lee Page 4 was served on the parties by the efiling system. The Stewarts stated in their

affidavits that on January 6, 2023, they received a document via the trial

court’s electronic service notification system that was titled Notice of Hearing,

but the notice was blank as to the date and time of the hearing. The Stewarts

did not attend the February 2, 2023, hearing on Lee’s motion to sever. On

February 27, 2023, they filed a response to Lee’s motion to sever that included

an objection based upon lack of notice of the February 2 hearing.

There is no dispute that the trial court had jurisdiction over the parties

and the subject matter. See PNS Stores, 379 S.W.3d at 272. However, the

Stewarts argue that the severance order is void because they did not receive

notice of the hearing on the motion. Even assuming that the Stewarts did not

receive notice of the hearing on Lee’s motion to sever, the lack of notice does

not render the severance order void.

The record does not show that the Stewarts directly attacked the trial

court’s order severing their claims against Lee into a separate cause of action.

The severance order instructed that the orders in the new cause number

dismissing the Stewarts’ claims and awarding Lee attorney’s fees “creates a

final appealable judgment regarding the claims against Lee.” The Stewarts

did not file an appeal, a motion for new trial, or a bill of review in relation to

the trial court’s order severing their claims against Lee. See id. They are

Stewart v. Lee Page 5 attempting to collaterally attack the failure to give notice of the hearing on

Lee’s motion to sever. See Hartwell v. Fundworks, LLC, No. 02-23-00100-CV,

2024 WL 46053, at n.7 (Tex. App.—Fort Worth Jan. 4, 2024, pet. denied) (mem.

op.) (citing Alderson v. Alderson, 352 S.W.3d 875, 879 (Tex. App.—Dallas 2011,

pet. denied).

To prevail on a collateral attack, the Stewarts must show that the

judgment is void on its face. See Alderson, 352 S.W.3d at 879. The Stewarts

make no argument that the trial court’s order granting the motion to sever, on

its face, shows the trial court lacked jurisdiction or capacity. See id.

Accordingly, the Stewarts’ collateral attack fails. See id. We conclude that the

trial court’s order granting Lee’s motion to sever is not void. Therefore, we

further conclude that the trial court’s orders dismissing the Stewarts’ claims

against Lee and awarding Lee attorney’s fees became a final appealable

judgment upon severance into a separate cause number.

Without a final judgment, a turnover order is void. See In re Alsenz, 152

S.W.3d 617, 620 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding).

However, they make no argument that the turnover order is void on its face.

See Alderson, 352 S.W.3d at 879. The Stewarts’ argument that the trial court’s

turnover order is void is premised solely upon their complaint that the

severance order is void. Having concluded that the severance order is not void

Stewart v. Lee Page 6 and that the orders dismissing the claims against Lee and awarding her

attorney’s fees are final and not void, we further conclude that the turnover

order is not void. We overrule all of the Stewarts’ issues on appeal.

Conclusion

Having overruled the Stewarts’ six issues on appeal, we affirm the trial

court’s judgment.

MATT JOHNSON Chief Justice

OPINION DELIVERED and FILED: March 5, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06

Stewart v. Lee Page 7