Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tummel v. Roadrunner Transportation Systems, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 29, 2018

LYDIA TUMMEL AND HAROLD K. TUMMEL, INDIVIDUALLY AND AS TRUSTEE OF THE KURT K. TUMMEL TRUST, Appellants,
v.
ROADRUNNER TRANSPORTATION SYSTEMS, INC., Appellee.

          On appeal from the 332nd District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         This is a bill-of-review case filed by appellee Roadrunner Transportation Systems, Inc. (Roadrunner) against appellants Lydia Tummel and Harold K. Tummel, Individually and as Trustee of the Kurt K. Tummel Trust (the Tummels). Both parties moved for summary judgment. The trial court denied the Tummels' second motion for summary judgment and granted Roadrunner's motion for summary judgment. By six issues, which we have reorganized, the Tummels assert that the trial court: (1-3) erred in granting Roadrunner's motion for summary judgment and denying the Tummels' motion on Roadrunner's bill-of-review claim; (4) erred in granting Roadrunner's motion for summary judgment on the Tummels' default-judgment counterclaims; (5) erred in denying the Tummels' request for sanctions; and (6) abused its discretion in denying the Tummels' motion for new trial, as supplemented. We affirm.

         I. Background

         Our review of the record reveals that on January 4, 2013, the Tummels sued Steven Patrick Jones, John Patrick Acord, Ecoenergy Group Inc., and Intermodal Wealth Inc. (the Jones Defendants), in a case styled Lydia Tummel, et al. v. Steven Patrick Jones, et al., Cause No. C-0034-13-F, in the 332nd District Court of Hidalgo County, Texas (the Jones Suit). Claiming securities fraud and seeking actual losses, the Tummels obtained a four-million-dollar default judgment against the Jones Defendants.

         In September 2014, in Cause No. C-7230-14-F, styled Lydia Tummel, et al. v. Roadrunner Transportation Systems, Inc., in the 332nd Judicial District Court of Hidalgo County, Texas, the Tummels applied for a writ of garnishment against Roadrunner based on the default judgment entered in the Jones Suit and on allegations that Roadrunner was indebted to or had effects belonging to the Jones Defendants (the First Garnishment Suit). The Tummels allegedly sent both the application and the writ to the Texas Secretary of State to be served on Roadrunner at 4900 S. Pennsylvania Ave., Cudahy, Wisconsin 53110. The Tummels claimed that Roadrunner was served with process. Roadrunner claimed it was not served. Roadrunner did not make an appearance. On October 27, 2014, the trial court entered a default judgment against Roadrunner for the Jones Defendants' $ 4 million default judgment.[1]

         Roadrunner alleged that it discovered the default judgment in the First Garnishment Suit almost a year later, in October 2015, when the Tummels filed and later obtained a second writ of garnishment in Cause No. C-5079-15-F, Lydia Tummel, et al. v. U.S. Bank National Association (U.S. Bank) in the 332nd District Court of Hidalgo County, Texas (the Second Garnishment Suit). The writ in the Second Garnishment Suit issued against Roadrunner's accounts at the U.S. Bank for the $4 million default judgment against Roadrunner.[2]

         On December 4, 2015, Roadrunner filed its original petition for bill of review in Cause No. C-5964-15-F, Roadrunner Transportation Systems, Inc. v. Lydia Tummel et al., in the 332nd Judicial District Court in Hidalgo County, Texas, the underlying suit in this appeal. Roadrunner's bill of review challenged the default judgment entered against it in the First Garnishment Suit, claiming that Roadrunner was not served with process and, if served, service was defective. In addition, the petition asserted that Roadrunner satisfied the elements for a bill of review. The Tummels filed a general denial and argued that Roadrunner's bill-of-review claim was precluded because Roadrunner failed to exercise due diligence in order to timely file a motion for new trial and an appeal in the First Garnishment Suit.

         On February 23, 2016, the Tummels filed their first amended original counterclaims, requesting declarations that (1) Roadrunner was doing business in Texas, and (2) Roadrunner was properly served with process. The Tummels also sought sanctions against Roadrunner, alleging that Roadrunner was served with process in the First Garnishment Suit and that Roadrunner was subject to the personal jurisdiction of Texas courts.

         Also on February 23, 2016, the Tummels filed their second motion for summary judgment. In that motion, the Tummels argued that they had established through Roadrunner's deemed admissions that there was no evidence that Roadrunner had not received notice of the First Garnishment Suit and that Roadrunner had admitted that its failure to file an answer was intentional, due to Roadrunner's negligence, and due to its lack of diligence. The Tummels supported their motion with Harold's affidavit to which were attached forty-three exhibits.[3] Roadrunner filed a response with exhibits.[4] It is undisputed that Roadrunner also filed a motion challenging the purported deemed admissions upon which the Tummels based their second motion for summary judgment. By its motion, Roadrunner claimed that it had not received the discovery requests because it had been served on an inactive fax line to only one of Roadrunner's counsel. Before ruling on the Tummels' motion for summary judgment, the trial court granted Roadrunner's motion, withdrawing any deemed admissions.[5]

         On March 9, 2016, Roadrunner filed its summary judgment motion, claiming that it had not been served or improperly served and, even if served, it had satisfied all bill-of-review requirements. Its motion also sought summary judgment on the Tummels' counterclaims for declaratory judgment and for sanctions. [6] The Tummels filed a response and a brief in support.[7] Roadrunner replied to the Tummels' response.

         On April 22, 2016, the trial court denied the Tummels' second motion for summary judgment and granted Roadrunner's motion for summary judgment. By doing so, the trial court vacated the underlying default judgment in the First Garnishment Suit.

         On April 29, 2016, the Tummels filed a motion for new trial and two supplemental motions. By their motions, the Tummels asserted, among other things, that there was newly discovered evidence; specifically, Time Warner Cable Inc.'s business records of incoming calls at Tummel & Casso, the law firm that represented the Tummels in the First Garnishment Suit.[8] The Tummels claimed that this newly discovered evidence was proof of proper service on Roadrunner because the records showed that on October 24, 2014, one month after the Tummels had filed their application of writ in the First Garnishment Suit, they received a call from Roadrunner's home office. Roadrunner responded, alleging in part that the Tummels were not diligent in obtaining the newly discovered evidence and, even if diligent, the evidence did not prove proper service on Roadrunner. After a hearing on the motions, the trial court signed orders denying the Tummels' motions for new trial. This appeal followed.

         II. The Tummels' Challenge to Roadrunner's Summary Judgment Evidence

         We begin by addressing the first, second, and third issues, to the extent the Tummels challenge Milane's declaration that Roadrunner filed in support of its motion for summary judgment.

         A. Standard of Review for Evidentiary Rulings

         We review evidentiary rulings for abuse of discretion, even in the context of cross-motions for summary judgment. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam). We must uphold the trial court's evidentiary ruling if the record shows any legitimate basis supporting that ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

          B. Discussion

         Milane's declaration follows with the challenged portions highlighted-portions that are relevant to service and notice:

         I, Robert M. Milane, hereby declare under penalty of perjury pursuant to Texas Civil Practice and Remedies Code § 132.001(a) that the following statements in this declaration are true:

1. My name is Robert M. Milane. . . . All of the facts stated herein are true and correct. The facts contained in this declaration are either based on my personal knowledge or are based on facts that I have gathered from sources in my employment with Roadrunner Transportation Systems, Inc. such that I am competent to declare the facts below as true and correct.
2. I am Executive Vice President of Risk Management for Roadrunner Transportation Systems, Inc. (''Roadrunner").
5. Roadrunner does not possess any property or any debts belonging to Steven Patrick Jones, John Patrick Acord, Ecoenergy Group Inc, or Intermodal Wealth Inc. ("Jones Defendants"). Roadrunner did not possess any property or any debts belonging to any of the Jones Defendants on September 22, 2014. Roadrunner did not have knowledge on September 22, 2014, and does not have knowledge now of any parties that may possess any property or any debts belonging to the Jones Defendants.
6. Roadrunner did not receive any documents filed in the case styled Lydia Tummel, et al. v. Roadrunner Transportation Systems, Inc., Cause No. C-7230-14-F, in the 332nd Judicial District Court of Hidalgo County, Texas (''Garnishment") on September 22, 2014, or on any other date. Roadrunner did not receive service of any application for writ of garnishment, order granting application for writ of garnishment, writ of garnishment, motion for default judgment, default judgment, or final judgment filed in the Garnishment. Roadrunner first learned of the Garnishment by email sent on October 19, 2015, from a U.S. Bank National Association employee. . . .[9]

(Emphasis added.)

         Referring to the bolded statement in paragraph 1, the Tummels assert that, while Milane admits that some of the facts in his declaration may not be within his personal knowledge, he does not expressly identify facts that are not within his personal knowledge. Relying on Humphreys v. Caldwell, the Tummels claim that this language renders the declaration "legally invalid" and "of no probative value." See888 S.W.2d 469, 470-71 (Tex. 1994) (per curiam). In addition, the Tummels contend that the bolded portion of paragraph 6 was not shown to be within Milane's personal knowledge, specifically within his personal knowledge of what documents Roadrunner may have received in the First Garnishment Suit and, therefore, is not competent summary judgment evidence. See Tex. R. Civ. P. 166a(f) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). The Tummels also complain that this statement in Paragraph 6 is not competent summary judgment evidence because it is conclusory. SeeMcFarland v. Citibank (S. Dakota), N.A., 293 S.W.3d 759, 762 (Tex. App.-Waco 2009, no pet.) (providing that "an objection regarding the conclusory nature of an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.