Court of Appeals of Texas, Fifth District, Dallas
VITRO PACKAGING DE MEXICO, S.A. DE C.V., Appellant
JOHN KASIMIR DUBIEL JR., Appellee
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-04664-J
Justices Lang-Miers, Brown, and Boatright.
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.
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
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.
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 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.
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).
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.
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 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).
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.
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 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.,