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Date: 12-13-2017

Case Style: Vitro Packaging de Mexico, S.A. de C.V. v. John Kasimir Dubiel, Jr.

Case Number: 05-17-00258-CV

Judge: Brown

Court: Texas Court of Appeals for the Fifth District on appeal from the 191st District Court, Dallas County

Plaintiff's Attorney: John Langdoc and Denyse Ronan Clancy

Defendant's Attorney: Robert A. Bragalone and Bradley Fellman

Description: In this interlocutory appeal, Mexican corporation Vitro Packaging de Mexico, S.A. de C.V.
(Vitro Mexico), appeals the trial court’s order denying its second special appearance. In two
issues, Vitro Mexico contends the trial court did not have personal jurisdiction over it because the
plaintiff did not serve it in accordance with The Hague Convention, a multinational treaty. For
reasons that follow, we affirm the trial court’s order.
In April 2013, John Kasimir Dubiel Jr. sued numerous defendants, alleging he was injured
in a grocery store when soft drink bottles exploded and glass shards hit his eye. In August 2014,
Dubiel amended his petition to add Vitro Mexico and Vitro Packaging, LLC as defendants. The
amended petition alleged both Vitro Mexico and Vitro Packaging could be served through their
registered agent in Plano, Texas, Kevin Jackson.
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On October 6, 2014, Vitro Mexico filed a special appearance in which it asserted it was
not subject to the trial court’s jurisdiction because Dubiel did not serve it according to the Hague
Convention, which Vitro Mexico contends preempted Texas laws and rules and provided the
exclusive means for service of process. Both the United States and Mexico are parties to the treaty,
which applies “in all cases, in civil or commercial matters, where there is occasion to transmit a
judicial or extrajudicial document for service abroad.” Convention on Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention), Nov. 15, 1965,
20 U.S.T. 361, art. 1; In re J.P.L., 359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet.
denied). The Hague Convention requires each country to establish a central authority to receive
requests for service of documents from other countries. Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 698 (1988); 20 U.S.T. 361, art. 2; see Saavedra v. Schmidt, 96 S.W.3d 533,
543 n.14 (Tex. App.—Austin 2002, no pet.) (Hague Convention uses term “Contracting State” to
refer to countries). The central authority then serves the documents itself or arranges for service
by an appropriate agency either by a method proscribed by its internal law or by a method
requested by the applicant. Volkswagenwerk, 486 U.S. at 699; 20 U.S.T. 361, art. 5. When the
forum state’s law does not define the applicable method of serving process as requiring the
transmittal of documents abroad, however, the Hague Convention does not apply.
Volkswagenwerk, 486 U.S. at 700, 706–07.
In its special appearance, Vitro Mexico alleged Dubiel was required to comply with the
Hague Convention, but instead served the citation at Jackson’s Texas address. Vitro Mexico
maintained Jackson was not its registered agent, and that it had no offices, employees, or registered
agent in Texas and that its principal place of business was in Nuevo Laredo, Mexico. Vitro Mexico
asked that Dubiel be ordered to serve it pursuant to the Hague Convention. Vitro Mexico
supported its special appearance with Jackson’s affidavit. According to the affidavit, Jackson is a
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vice president of and registered agent for Vitro Packaging, which distributes certain products
manufactured by Vitro Mexico, but is not a registered agent for Vitro Mexico.
Dubiel responded that the Texas long-arm statute permitted him to serve Vitro Mexico by
serving Vitro Packaging. He relied on section 17.043 of the civil practice and remedies code,
which provides that in an action arising from a nonresident’s business in Texas, process may be
served on the person in charge of any business in which the nonresident in engaged in this state.
TEX. CIV. PRAC. & REM. CODE ANN. § 17.043 (West 2015).
In January 2015, the trial court held a hearing on the special appearance. In response to
Dubiel’s argument about section 17.043, Vitro Mexico cited section 17.045, which provides that
if the person in charge of a nonresident’s business is served under section 17.043, a copy of the
process and notice of service must be immediately mailed to the nonresident or its principal place
of business. See id. § 17.045 (West 2015). Vitro Mexico argued that because section 17.045
required notice of service to be mailed to it in Mexico, the Hague Convention applied. Vitro
Mexico also argued that Jackson was not the person in charge of its business in Texas. The trial
judge indicated she thought that service was flawed because Dubiel did not prove Vitro Packaging
was in charge of Vitro Mexico’s business in Texas. Later that day, Dubiel amended his petition
to allege that Vitro Mexico could be served through Vitro Packaging’s registered agent because
the action arose from Vitro Mexico’s business in Texas and Vitro Packaging is the entity in charge
of Vitro Mexico’s business in this state. On February 12, 2015, the trial court signed an order
quashing Dubiel’s attempt to serve process on Vitro Mexico by serving Jackson.
In March 2015, Vitro Mexico filed a second special appearance. Vitro Mexico alleged that
on February 5, 2015, Dubiel served his second amended petition at Jackson’s Plano address. The
citation was issued to Vitro Mexico through Vitro Packaging through its registered agent Jackson.
Vitro Mexico again asserted it was not subject to the trial court’s jurisdiction because the citation
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and second amended petition were not served pursuant to the Hague Convention. At a hearing in
February 2016, the trial court indicated it would grant Vitro Mexico’s second special appearance
but first wanted letter briefs from the parties. In February 2017, the trial court denied Vitro
Mexico’s second special appearance. Vitro Mexico appeals the order denying its second special
appearance. See id. § 51.014(a)(7) (West Supp. 2017).
Vitro Mexico raises two related issues in this appeal. First, it contends the Hague
Convention was the exclusive means of serving it with process. It next contends the trial court
should have granted its second special appearance because Dubiel’s service on Jackson violated
the Hague Convention. We need not decide whether Dubiel was required to serve Vitro Mexico
pursuant to the Hague Convention and thus do not reach Vitro Mexico’s first issue. Vitro Mexico
generally appeared when it filed a special appearance that raised a curable defect in service rather
than a complaint about Vitro Mexico’s amenability to service.
We review de novo a trial court’s order denying a special appearance. Foley v. Trinity
Indus. Leasing Co., 314 S.W.3d 593, 600 (Tex. App.—Dallas 2010, no pet.). A special appearance
may be made by any party for the purpose of objecting to the jurisdiction of the court over the
person or property of the defendant on the ground that such party or property is “not amenable to
process issued by the courts of this State.” TEX. R. CIV. P. 120a. The key word in rule 120a is
“amenable.” Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985).
The words “not amenable to process issued by the courts of this state” can only be
interpreted to mean that the special appearance is available solely to establish that
the Texas court cannot, under the federal and state constitutions and the appropriate
state statutes, validly obtain jurisdiction over the person or the property of the
defendant with regard to the cause of action pled.
Id. (quoting E. Wayne Thode, In Personam Jurisdiction: Article 2031(b), the Texas Longarm
Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 TEX. L. REV.
279, 312–13 (1964)). A curable defect in service of process does not affect a nonresident
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defendant’s amenability to service of process. Id. Defective service of process must be challenged
by a motion to quash, not a special appearance. Id. at 203. A special appearance that merely
challenges the method of service fails as a special appearance and constitutes a general appearance.
GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785, 786 (Tex.
1999) (citing Kawasaki, 699 S.W.2d at 202). A complaint that a defendant was not served in
accordance with the Hague Convention is a complaint regarding a curable defect in service of
process. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 246 (Tex. App.—Houston [1st Dist.] 2004,
pet. denied). Such a complaint does not defeat a nonresident’s amenability to the court’s process
and thus should not be raised via a special appearance. Id.
Vitro Mexico does not argue that it lacked minimum contacts with Texas. It acknowledges
Kawasaki holds that complaints regarding defects in service may not be raised in a special
appearance. But because Kawasaki does not involve the Hague Convention, Vitro Mexico asserts
an exception should be made for complaints regarding noncompliance with the Hague Convention.
Vitro Mexico maintains that filing a special appearance was the only option it had to raise its
Hague Convention argument. It points out that it could not have filed a motion to quash because
that would have been a general appearance. See TEX. R. CIV. P. 122.
Although Kawasaki is not a Hague Convention case, we are bound by its holding that
alleged defects in the method of service should not be raised via a special appearance. It is not our
role as an intermediate court of appeals to create an exception to this rule. We note that Vitro
Mexico had the option to take no action and force a default judgment. Articles 15 and 16 of the
Hague Convention limit the circumstances in which a default judgment may be entered against a
defendant who had to be served abroad and did not appear, and provide some means for relief from
such a judgment. Volkswagenwerk, 486 U.S. at 699; see 20 U.S.T. 361, arts. 15, 16. Under the
rule in Kawasaki, when Vitro Mexico filed its first special appearance to complain about the
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method of service, rather than about its amenability to service, it generally appeared and waived
any defects in service. See Uche v. Igwe, No. 05-11-00570-CV, 2012 WL 2785355, at *2 n.1 (Tex.
App.—Dallas July 10, 2012, no pet.) (mem. op.); Williams v. Nexplore Corp., No. 05-09-00621-
CV, 2010 WL 4945364, at *3 (Tex. App.—Dallas Dec. 7, 2010, pet. denied) (mem. op.).
Accordingly, the trial court did not err in denying Vitro Mexico’s second special appearance. We
overrule Vitro Mexico’s second issue.

Outcome: We affirm the trial court’s order.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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