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In re Medina

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

December 18, 2019


          On Petition for Writ of Mandamus.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina



         Relator Alma Rodriguez Medina filed a petition for writ of mandamus seeking to compel the trial court[2] to vacate two orders signed on September 17, 2019 granting a special appearance in favor of real party in interest Levi Medina Sanchez (Levi). Because we conclude that Levi waived his special appearance, we conditionally grant the petition for writ of mandamus.

         I. Background

         This original proceeding arises from divorce proceedings pending in Cameron County, Texas. In her "Second Amended Original Petition for Divorce With Temporary Restraining Order," relator alleged that: she was a domiciliary of Texas; she and Levi were married on or about February 2, 2006; and they ceased living together as spouses on or about October 1, 2017. Through this petition, relator sought a divorce from Levi, including the division of community property, and relator additionally included causes of action against Levi and his children, Levi Medina Sanchez Jr. (Levi Jr.), Judy Torres, Josafat Medina, Jennifer Medina, and Joshua Medina, for assault, intentional infliction of emotional distress, and breach of fiduciary duty. She sought actual and exemplary damages, a temporary restraining order, and injunctive relief. The petition alleged, in part, that Levi improperly transferred 1001 Marrs Street in Brownsville, Texas, to his son when the property was "100% community property, purchased during the marriage." This pleading recited that Levi "resides at 1720 Westminster Rd., Brownsville, Cameron County, Texas 78521" and stated that process should be served on Levi at that address "or wherever he may be found."

         Relator was unable to obtain service of process on Levi at the Westminster address and filed an amended motion to obtain substitute service. She alleged that civil process server Rogerio Lopez attempted to serve Levi at the Westminster address on three different occasions. According to Lopez's affidavit, which was filed in support of relator's motion for substituted service, Lopez contacted Levi Jr. at that address "and was advised that his father was not available and would return the following afternoon." Lopez made two further visits to the Westminster residence to no avail. The trial court granted relator's motion and allowed substitute service on Levi by leaving the citation at the Westminster address attached to the front entry of the residence.

         On December 6, 2017, Levi's son Levi Jr. filed a "special appearance" in which he "object[ed] to the jurisdiction of the Court over the person of Alma Rodriguez Medina on the ground that such person is not amenable to process issued by the courts of this State as shown in the verification." See Tex. Fam. Code Ann. § 6.301 (stating that a suit for divorce may not be maintained in this state unless, at the time of suit, either the petitioner or the respondent has been a domiciliary of this state for the proceeding six-month period and a resident of the county in which the suit is filed for the preceding ninety-day period). The record does not indicate that any further proceedings were held regarding this motion, and Levi's son was subsequently nonsuited from the case.

         On April 5, 2018, Levi filed "Respondent's Third Special Appearance Under TRCP 120a With Notice of Newly Retained Counsel (All Subject to 120a)." This pleading apprised the parties that Levi had retained new counsel, who was entering his appearance "subject to all the 120a Special Appearances . . . previously filed in this case." This pleading states that "[a]t all times herein, Respondent has previously filed 120a Special Appearances in this cause." The pleading does not otherwise address Levi's special appearance or personal jurisdiction over his person or property. Although this pleading is entitled as the "Third" Special Appearance, the record before the Court does not contain any previous special appearance filed by Levi. The docket sheet, included in the mandamus record, indicates that no such document was ever filed. In this proceeding, Levi explains that this pleading constituted "a second appearance filed by the litigants in the case, but it was mislabeled 'Third Special Appearance.'"

         On April 5, 2018, Levi also filed "Respondent's Verified Plea in Abatement, Verified Plea to the [Jurisdiction]/Motion to Quash 106 Order Pending 'Hague-Compliant' Service of Process (All Subject to 120 Special Appearances)." This pleading again reiterated that "[a]t all times herein, Respondent has previously filed 120a Special Appearances in this cause." Levi alleged that he was not served in accordance with the dictates of the Hague Convention, which he alleges "apply in all civil and commercial matters where there are foreign Respondents that do not transact, nor maintain, a presence in Texas." Levi asserted that he did not transact business in Texas, maintain a business in Texas, or reside in Texas, therefore, relator was required to serve him in accordance with the Hague Convention. This pleading asserted that the trial court lacked personal jurisdiction over Levi, as a resident and citizen of Mexico, because he was not properly served under the Hague Convention, and argued that accordingly, the "temporary orders and/or temporary injunction" previously issued in the case were void.[3] Levi asserted that "[b]ecause [he] was not in Texas but rather was in Mexico at all relevant times, it was error for the trial court to deny the Special Appearances filed by [previous counsel] and to enter Temporary Orders, particularly since [relator] has failed to satisfy the Hague Convention and thus [Levi] was not amenable to service from Texas." In his prayer for relief, Levi "respectfully asks that this cause be abated, that the alleged citation and service of process thereon be quashed as being defective, and that service be perfected in accordance with [the] Hague Convention." This pleading was supported by Levi's "Declaration" that the allegations in this pleading were true and correct. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001. Levi's "Declaration" further stated:

My date of birth is [February] 25, 1949, and I live in . . . Matamoros, Tamaulipas, Mexico.
I was born in Matamoros, Mexico. I further declare under penalty of perjury that the foregoing is true and correct.
I am a citizen of the Mexican Republic. I live in Mexico. I am not a U.S. Citizen, nor a U.S. Resident.
I was deported from the United States of America on [February] 21, 2006, for not having any legal status in the country.
I understand the Petitioner wants to get divorced and has made all kinds of incredible allegations concerning our marriage and the origins of some separate property.
I have yet to see the divorce papers and have yet to be served in conformance with the Hague Convention.
I have yet to receive the petition translated into Spanish, as well as the citation.
I have not been explained whether the purported time to respond to the petition, once served, distinguishes between calendar days or business days.
I have yet to see whether the translated documents were forwarded to the Texas Secretary of State, as required by the Hague Convention.
I have yet to see where the Texas Secretary of State forwarded the translated [petition] and citation to Mexico's Central Authority, or MCA, which is my country's administering agency for the Hague Convention.
I have yet to see the Hague Service Convention ...

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