Lydia Tummel and Harold Tummel, Individually and as Trustee of the Kurt K. Tummel Trust v. Roadrunner Transportation Systems, Inc. ( 2018 )

NUMBER 13-16-00335-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Justice Rodriguez
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
2
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
1 On appeal, it is undisputed that Roadrunner did not receive service of either the Tummels’ motion
for default judgment or the trial court’s final judgment against Roadrunner in the First Garnishment Suit.
2 According to Roadrunner, U.S. Bank National Association removed this Second Garnishment
Suit to federal court, claiming diversity and asserting that the amount in controversy was greater than the
jurisdictional minimum. See Lydia Tummel, et al. v. U.S. Bank N.A., Case No. 7:15-CV-466 (S.D. Tex.
McAllen Div.); see also 28 U.S.C.A. §§ 1332(a), (c)(1) (setting out jurisdiction in federal district courts on
diversity and the amount in controversary), 1441(a) (providing for removal of civil actions) (West, Westlaw
through P.L. 115-122). It is undisputed that Roadrunner intervened in that case as a judgment debtor.
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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
The exhibits attached to the Tummels’ second motion for summary judgment included discovery
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propounded on Roadrunner with fax confirmation pages, correspondence to Roadrunner’s counsel, service
documents in the First Garnishment Suit with the declaration of John DeGrace, and certain pages of
Roadrunner’s December 31, 2014 SEC 10-K Report taken from its website.
4 Roadrunner attached the following to its response to the Tummels’ motion: DeGrace’s
declaration; Robert M. Milane’s declaration; the transcript from the federal case’s initial pretrial and
scheduling order; and the post-judgment application for writ of garnishment in the First Garnishment Suit.
4
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
5 The Tummels do not challenge the withdrawal of Roadrunner’s admissions.
6 In support of its motion, Roadrunner filed the declarations of DeGrace and Milane, the transcript
of the hearing on the initial pretrial and scheduling order in federal court, the final judgment in the Jones
Suit, the Tummels’ post-judgment application for writ of garnishment, the writ of garnishment, and the final
judgment in the First Garnishment Suit.
7 To their response, the Tummels attached Harold’s March 22, 2016 affidavit and exhibits related
to service and information from Roadrunner’s website.
5
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).
8
The Tummels attached the Time Warner business records to their motion and authenticated the
records through Harold’s affidavit and a Time Warner business records affidavit.
6
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
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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.” See 888 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. See
McFarland v. Citibank (S. Dakota), N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco 2009,
9 The Tummels acknowledge that the following statement in paragraph 4 of Milane’s declaration
relates to jurisdiction and not to the issue of service of process in the First Garnishment Suit: “Roadrunner
does not employ or recruit for employment any Texas resident.” The Tummels complain that this
statement is not competent summary judgment evidence because it is not shown to be within Milane’s
personal knowledge. They also assert the same argument about paragraph 7, which provides:
“Roadrunner does not employ and has not employed any person named ‘JD Grace’ to receive mail sent to
Roadrunner’s Cudahy, Wisconsin office.” Assuming that the Tummels preserved their objections, because
the complained-of statements are not relevant to the dispositive issues in this appeal, we do not address
them. See TEX. R. APP. P. 47.1.
8
no pet.) (providing that “an objection regarding the conclusory nature of an affidavit is an
objection to the substance of the affidavit that can be raised for the first time on appeal”
and that “[a]ffidavits containing conclusory statements that fail to provide the underlying
facts to support the conclusion are not proper summary judgment evidence”). We
disagree.
Paragraph 1 of Milane’s challenged declaration identified his relationship with
Roadrunner as Vice President of Risk Management. In that same paragraph, Milane
declared that the facts in his declaration were based on either his personal knowledge or
on facts gathered by virtue of his employment with Roadrunner and that they were true
and correct. In other words, Milane set out that he was competent to declare that the
facts contained in his declaration were true and correct. See TEX. R. CIV. P. 166a(f). In
paragraph 6, Milane declared that Roadrunner received no pleadings, motions, or
judgments.
Milane’s position as Vice President of Risk Management at Roadrunner serves, at
least in part, as the basis of Milane’s personal knowledge regarding the contents of his
declaration. See Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 428 (Tex.
App.—Corpus Christi 2016, no pet.) (“An affiant’s position or job responsibilities may
demonstrate the basis of [his] personal knowledge.”); City of Dallas v. Cont’l Airlines, Inc.,
735 S.W.2d 496, 501 (Tex. App.—Dallas 1986, writ ref’d) (holding that the statements of
a company’s vice-president were sufficient to show how he obtained personal knowledge
of the facts within his affidavit); see also EOG Res., Inc. v. Wall, 160 S.W.3d 130, 135
(Tex. App.—Tyler 2005, no pet.) (finding that the affiant’s employment with the plaintiff
9
corporation made his sworn statements “sufficiently based on personal knowledge”).
Milane’s position at Roadrunner shows how he obtained personal knowledge of the facts
in his declaration, specifically the fact that Roadrunner received no pleadings, motions,
or judgments in this case. See Jackson T. Fulgham Co., Inc. v. Stewart Title Guar. Co.,
649 S.W.2d 128, 130 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) (“[A]n affidavit must in
some way affirmatively show how affiant became personally familiar with the facts.”); City
of Dallas, 735 S.W.2d at 501. Setting out his position as Vice President of Risk
Management established his relationship with the facts of the case in a manner sufficient
to demonstrate personal knowledge of the facts at issue, including whether Roadrunner
received service of process or notice of the default judgment in this case. A corporate
officer may testify regarding a company’s activities without showing exactly how he
acquired that knowledge. See M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 407
(Tex. App.—Corpus Christi 1999, no pet.). And as Roadrunner’s Vice President of Risk
Management, Milane was uniquely situated to have personal knowledge on matters
relating to Roadrunner’s possible liabilities, including potential or pending litigation.
Facts regarding service of documents in any lawsuit would ordinarily be within the
personal knowledge of the risk management vice president. See id.
The Tummels’ authority for their lack-of-personal-knowledge objection is
distinguishable. In Humphreys, a discovery mandamus proceeding, the Texas Supreme
Court rejected several affidavits as legally insufficient because they did “not positively and
unqualifiedly represent the facts as disclosed in the affidavit to be true and within the
affiant’s personal knowledge.” 888 S.W.2d at 470. The affidavits “fail[ed] to
10
unequivocally show that they [were] based on personal knowledge” because they set out
only that the statements were based on the affiant’s “own personal knowledge and/or
knowledge which he ha[d] been able to acquire upon inquiry.” Id. In the present case,
Milane positively and unqualifiedly represented that the facts in his declaration were
based on his personal knowledge or on facts gathered through his employment with
Roadrunner. We have concluded these statements support personal knowledge in this
case. In addition, the Humphreys Court concluded that “the affidavits provide[d] no
representation whatsoever that the facts disclosed therein [were] true.” Id. Here,
Milane stated that the statements in his declaration were true. So, the Tummels’ reliance
on Humphreys is misplaced.
The Tummels also argue that Roadrunner’s authority does not support its
proposition that Milane’s declaration was competent proof of the statements contained in
the declaration. We are not persuaded by this argument. For example, while the
affidavits challenged in EOG Resources and City of Dallas may have included more
specifics regarding each affiant’s employment history and technical knowledge, the cases
provide support for the broader proposition that employment status can be sufficient to
show how an affiant obtained personal knowledge of the facts within his affidavit. See
EOG Res., 160 S.W.3d at 135; City of Dallas, 735 S.W.2d at 501.
Reviewing the trial court’s evidentiary rulings for an abuse of discretion, we
conclude that the trial court did not abuse its discretion in overruling the Tummels’
objections to these specific portions of Milane’s declaration and considering it as
summary judgment evidence. See United Blood Servs., 938 S.W.2d at 30; see also TEX.
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Rawle CIV. P. 166a(f). The trial court had a legitimate basis for overruling the Tummels’ lack-
of-personal-knowledge objections. See Owens–Corning, 972 S.W.2d at 43. Milane
declared that the facts in his declaration were based on his personal knowledge or on
facts gathered as Vice President of Risk Management at Roadrunner and that those facts
were true. Additionally, by describing facts regarding Roadrunner’s non-receipt of
specific legal documents, there was a legitimate basis to conclude that the complained-
of portion of paragraph 6 of Milane’s declaration was not conclusory. See id.
We overrule the Tummels’ first, second, and third issues to the extent they
challenge these complained-of portions of Milane’s declaration. We will consider
Milane’s declaration as proper summary judgment evidence.
III. ROADRUNNER’S BILL-OF-REVIEW CLAIM
By their first issue, the Tummels claim that Roadrunner’s motion for summary
judgment failed and that the court erred in granting it because Roadrunner did not meet
its burden of proving the bill-of-review elements as a matter of law. Katy Venture, Ltd. v.
Cremona Bistro Corp., 469 S.W.3d 160, 164 (Tex. 2015) (per curiam); Mabon v. Afri–
Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam); see also TEX. R. CIV.
P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). In
their second issue, the Tummels assert the trial court erred in granting Roadrunner’s
motion because even if Roadrunner provided evidence supporting the elements of its
claim, the Tummels’ response raised material issues of fact. And by their third issue, the
Tummels contend the trial court erred in denying his second motion for summary
12
judgment because their evidence disproved at least one bill-of-review-element as a
matter of law and Roadrunner failed to create a fact issue in response.
Reviewing the first three issues together, the Tummels challenge all grounds that
Roadrunner raised in support of its motion for summary judgment, including: (1)
Roadrunner was not served with process, (2) service of process, if any, on Roadrunner
was defective, and (3) even if served with process, Roadrunner proved the three
traditional elements of a bill-of-review claim. Because the trial court did not state the
ground upon which it granted summary judgment and because we determine below that
Roadrunner’s third summary-judgment ground is sufficient and, thus, dispositive of the
remainder of the first three issues, we address it first. See Branton v. Wood, 100 S.W.3d
645, 647 (Tex. App.—Corpus Christi 2003, no pet.); see also TEX. R. APP. P. 47.1.
A. Standards of Review and Applicable Law
1. Summary Judgment
When a trial court resolves a case by granting summary judgment on the bill of
review, the summary judgment standard of review applies. See, e.g., Boaz v. Boaz, 221
S.W.3d 126, 131 (Tex. App.—Houston [1st Dist. 2006, no pet.) (reviewing a no-evidence
summary judgment from a bill-of-review proceeding); see also Barowski v. Gabriel, Nos.
04-08-00800-CV, 04-08-00801-CV, 2010 WL 3030874, at *2 (Tex. App.—San Antonio
Aug.4, 2010, no pet.) (mem. op.) (same); Chemject Int’l, Inc. v. Sw. Bell Tel. Co., Nos.
13-04-567-CV, 13-06-032-CV, 2007 WL 177651, at *5 (Tex. App.—Corpus Christi Jan.
25, 2007, pet. denied) (mem. op.) (same). We review a summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
13
Traditional summary judgment is only appropriate if the record establishes there is
no genuine issue of material fact and the movant is entitled to judgment as a matter of
law. See Little, 148 S.W.3d at 381; see also TEX. R. CIV. P. 166a(c). When both parties
move for summary judgment and the trial court grants one motion and denies the other,
the reviewing court should review the summary judgment evidence presented by both
sides, determine all questions presented, and render the judgment that the trial court
should have rendered. Valence Operating Co., 164 S.W.3d at 661; Tex. Workers’ Comp.
Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004). Finally, when
the trial court grants a motion for summary judgment without stating the grounds upon
which it relied, we must affirm the summary judgment if any ground advanced in the
motion is sufficient. Branton, 100 S.W.3d at 647 (citing Carr v. Brasher, 776 S.W.2d 567,
569 (Tex. 1989)); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.—Corpus Christi 1998,
no pet.) (same).
2. Bill of Review
A bill of review is an equitable proceeding brought by a party seeking to set aside
a prior judgment, in this case a no-answer default judgment, that is no longer subject to
challenge by a motion for new trial or appeal. Katy Venture, 469 S.W.3d at 164; Caldwell
v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). Ordinarily, a bill of review
requires proof of three elements: (1) a meritorious defense to the underlying cause of
action; (2) which the plaintiff was prevented from making by the fraud, accident, or
wrongful act of the opposing party or official mistake; (3) unmixed with any fault or
negligence by the movant. Katy Venture, 469 S.W.3d at 164; see Mabon, 369 S.W.3d
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at 812; Caldwell, 154 S.W.3d at 96; see also Montalvo v. Vela, No. 13-14-00166-CV,
2016 WL 192063, at *2 (Tex. App.—Corpus Christi Jan. 14, 2016, no pet.) (mem. op.).
B. Discussion
1. Roadrunner Established a Meritorious Defense that the Tummels Did
Not Challenge
Paragraph 5 of Milane’s declaration, attached in support of Roadrunner’s motion,
set out the following:
Roadrunner does not possess any property or any debts belonging
to . . . [the] 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.
The Tummels did not object to this portion of Milane’s declaration in the trial court and do
not complain on appeal that Roadrunner failed to establish that it had a meritorious
defense to the underlying cause of action. See Buckeye Ret. Co., LLC, Ltd. v. Bank of
Am., N.A., 239 S.W.3d 394, 399 (Tex. App.—Dallas 2007, no pet.) (“The primary issue in
a garnishment suit is whether the garnishee is indebted to, or has in its possession effects
belonging to the debtor.”) (citing HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190
S.W.3d 108, 112 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Katy Venture,
469 S.W.3d at 164; Mabon, 369 S.W.3d at 812; Caldwell, 154 S.W.3d at 96. And our de
novo review of the summary judgment evidence presented by both sides reveals no
contradicting evidence. See Valence Operating Co., 164 S.W.3d at 661; Patient
Advocates of Tex., 136 S.W.3d at 648.
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We conclude then that the record establishes that there is no genuine issue of
material fact as to the first element of its bill-of-review claim. See Little, 148 S.W.3d at
381; see also TEX. R. CIV. P. 166a(c). Roadrunner met its burden on this element. See
Katy Venture, 469 S.W.3d at 164; Mabon, 369 S.W.3d at 812; Caldwell, 154 S.W.3d at
96.
2. Roadrunner Established that It Was Prevented from Presenting a
Meritorious Defense Because of the Clerk’s Official Mistake
The Tummels challenge the second bill-of-review element, complaining that
Roadrunner did not establish that it was prevented from presenting its meritorious
defense in the underlying case by fraud, accident, or wrongful act of the Tummels. See
Katy Venture, 469 S.W.3d at 164; Mabon, 369 S.W.3d at 812; Caldwell, 154 S.W.3d at
96. But a bill-of-review plaintiff is “relieved of [the] necessity [of proving fraud, accident,
or wrongful act of the opposing party] where . . . [it] demonstrates that the judgment
resulted from [its] reliance on a court officer who improperly executed his official duties.”
Garza, 166 S.W.3d at 818 (citing Transworld Fin. Servs., Corp. v. Briscoe, 722 S.W.2d
407, 407 (Tex. 1987)); Mowbray v. Avery, 76 S.W.3d 663, 683–84 (Tex. App.—Corpus
Christi 2002, pet. denied). “An official mistake occurs when a court official commits error
in the discharge of his official duties, and that error prevents the complainant from
presenting his defense in the former action or from challenging the judgment by post-
judgment actions or appeal.” Perdue v. Patten Corp., 142 S.W.3d 596, 604–05 (Tex.
App.—Austin 2004, no pet.) (citing Mowbray, 76 S.W.3d at 683). This element may be
satisfied by evidence that a defendant did not receive notice of a default judgment
rendered against it due to a clerk’s error. See e.g. Petro-Chem. Transp., Inc. v. Carroll,
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514 S.W.2d 240, 244–45 (Tex. 1974) (holding that a defendant was deprived of the
opportunity to file a motion for new trial due to the failure of a clerk to send the required
notice of the signing of the judgment); Flores v. Flores, 116 S.W.3d 870, 875 (Tex. App.—
Corpus Christi 2003, no pet.) (“In granting summary judgment, the trial court found that
Jorge [Flores] established official mistake as a matter of law, ‘which was the failure of the
district clerk to send notice of the judgment to Jorge or his counsel.’”).
The Tummels acknowledge that proving an official mistake is an alternative to
proving the second element of a bill of review, see Mabon, 369 S.W.3d at 812, but they
contend on appeal that Roadrunner “failed to present any competent summary judgment
evidence of such official misconduct by the Hidalgo County District Clerk.” We disagree.
Roadrunner, through paragraph 6 of Milane’s declaration, established that it did
not receive the motion for default judgment or the final judgment rendered against it in the
Roadrunner Garnishment Suit, and we have concluded that Milane’s declaration was
properly before the trial court. The Tummels do not otherwise dispute that Roadrunner
did not receive the motion or final judgment. Our review of the summary judgment record
reveals no conflicting evidence. See Valence Operating Co., 164 S.W.3d at 661; Patient
Advocates of Tex., 136 S.W.3d at 648. Instead, the final judgment in the Roadrunner
Garnishment Suit shows that only the Tummels were sent a copy of the judgment.
Having established an official mistake, Roadrunner was relieved of proving that its failure
to present a meritorious claim or defense was caused by any wrongful conduct on the
part of the Tummels. See Garza, 166 S.W.3d at 818–19; Perdue, 142 S.W.3d at 604–
05; see also Petro-Chem. Transp., 514 S.W.2d at 244.
17
Relying on Smith v. Brown & Root and Chapa v. Wirth, the Tummels also argue
that Roadrunner’s official-mistake argument fails because Roadrunner is charged by law
with knowledge of all the proceedings in the underlying case. See Smith, 430 S.W.2d
549, 551 (Tex. Civ. App.—Houston 1968, no writ) (reviewing diligence and setting out
that the bill-of-review petitioner and personal-injury plaintiff in the underlying suit, “is
charged with notice of all steps taken in a case including the judgment [for want of
prosecution], although she does not appear and has no actual notice thereof”); Chapa,
343 S.W.2d 936, 938 (Tex. Civ. App.—Eastland 1961, no writ) (determining that the bill-
of-review petitioner and plaintiff in the underlying suit was not diligent and that “[t]he clerk
had no legal duty to keep Chapa informed as to the status of his case or to notify him that
it was placed on the dismissal docket”). The Tummels’ authority is distinguishable
because, in this case, Roadrunner was a defendant in the underlying garnishment
litigation, not the plaintiff. And the district clerk failed to send out the required notice of
the default judgment to Roadrunner in that litigation. See TEX. R. CIV. P. 306a(3); Flores,
116 S.W.3d at 875.
Texas Rule of Civil Procedure 306a(3) provides, in relevant part, that “[w]hen the
final judgment or other appealable order is signed, the clerk of the court shall immediately
give notice to the parties or their attorneys of record by first-class mail advising that the
judgment or order was signed.” TEX. R. CIV. P. 306a(3). The Texas Supreme Court has
explained,
The obvious purpose of this rule is to insure that, insofar as
practicable, parties adversely affected by a final judgment or other
appealable order have an opportunity to attack the same by motion for new
trial or appeal. That purpose will be defeated in some instance by incorrect
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addresses, errors of the postal service, and failure of the addressee for any
reason to receive a notice delivered to the proper address. It will be
unnecessarily thwarted if there can be no relief when the clerk, either
intentionally or through oversight, fails to send the notice promptly as
required by the rule.
Petro-Chem. Transp., 514 S.W.2d at 244 (citing former TEX. R. CIV. P. 306d, now TEX. R.
CIV. P. 306a); see also Brown v. Vann, No. 05-06-01424-CV, 2008 WL 484125, at *2
(Tex. App.—Dallas Feb. 25, 2008, no pet.) (mem. op.) (“When all other requirements are
met, a bill of review may be predicated upon the trial court clerk’s failure to send notice of
entry of judgment.”). The Tummels’ argument is without merit.
3. The Judgment in the Garnishment Suit Was Entered Without Any Fault
or Lack of Diligence on the Part of Roadrunner
The Tummels also complain that Roadrunner did not meet its burden of proof with
respect to the third element of its bill-of-review claim—that the judgment was rendered
unmixed with any fault or negligence by Roadrunner. See Katy Venture, 469 S.W.3d at
164; Mabon, 369 S.W.3d at 812; Caldwell, 154 S.W.3d at 96. The Tummels argue that
Roadrunner did not prove that it was not served with process and, thus, did not prove that
the judgment was entered without any fault on its part. We agree that Roadrunner
asserted that it was without fault because it was not served with process. But
Roadrunner also asserted in its motion for summary judgment that the judgment was
entered without fault on its part because it did not receive and was not aware of any
documents filed in the First Garnishment Suit, including the Tummels’ motion for default
judgment and the final judgment rendered against it. 10 See Hanks v. Rosser, 378
10
Regarding the third bill-of-review element, Roadrunner asserted the following in its motion for
summary judgment:
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S.W.2d 31, 34 (instructing that a bill-of-review plaintiff has the following “two rights or
remedies” in a default-judgment proceeding: (1) to file an answer to prevent a default
judgment; and (2) to file a motion for new trial within the prescribed time period). Milane’s
declaration established that Roadrunner did not receive the Tummels’ motion for default
judgment or the trial court’s final judgment, among other documents. By showing that it
did not receive these documents, Roadrunner established, through no fault of its own,
that it was prevented from taking any sort of remedial action, including the filing of a
motion for new trial or a direct appeal, such that it could present its meritorious defense.
See Petro-Chem. Transp., 514 S.W.2d at 244–45; see also Katy Venture, 469 S.W.3d at
164; Mabon, 369 S.W.3d at 812; Caldwell, 154 S.W.3d at 96. Our review of the summary
judgment record reveals no conflicting evidence regarding Roadrunner’s receipt of the
motion and final judgment. See Valence Operating Co., 164 S.W.3d at 661; Patient
Advocates of Tex., 136 S.W.3d at 648. And, as noted above, the only party copied on
the First Garnishment Suit’s final judgment was the Tummels. Because the record
establishes that there is no genuine issue of material fact as to the third element of its bill-
of-review claim, we conclude that Roadrunner met its burden on this element. See Little,
148 S.W.3d at 381; see also TEX. R. CIV. P. 166a(c).
Roadrunner was never aware of the motion for default judgment or the final
judgment rendered against it in the [First] Garnishment [Suit]. Consequently, Roadrunner
was prevented from taking any sort of remedial action, including the filing of a Motion for
New Trial. A person who has not been served [with these documents] cannot be at fault
or negligent. See generally Caldwell [v. Barnes], 154 S.W.3d [93,] 97 [(Tex. 2004) (per
curiam)].
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D. Summary
In sum, we conclude that the trial court properly granted Roadrunner’s traditional
motion for summary judgment because Roadrunner established the bill-of-review
elements as a matter of law and the Tummels did not raise material fact issues in their
response. We also conclude that the trial court did not err in denying the Tummels’
second motion for summary judgment because they did not meet their burden to disprove
at least one element of Roadrunner’s claim. We overrule the remaining portions of the
Tummels’ first, second, and third issues.
IV. THE TUMMELS’ COUNTERCLAIMS FOR DECLARATORY JUDGMENT
In their fourth issue, the Tummels contend that the trial court erred in granting
Roadrunner’s motion for summary judgment challenge to their counterclaims for
declaratory relief. They assert that, instead of complaining by way of a motion for
summary judgment, Roadrunner should have specially excepted to their counterclaims.
Roadrunner responds that the Tummels’ counterclaims for declaratory judgment were
simply a denial of Roadrunner’s bill of review and presented neither a new controversy
nor a need to specially except. We agree with Roadrunner that these counterclaims did
not allege causes of action independent of Roadrunner’s claims. See Howell v. Mauzy,
899 S.W.2d 690, 706 (Tex. App.—Austin 1994, writ denied) (“A counterclaim that
presents no new controversy, but exists solely to pave the way to an award of attorney’s
fees is improper.”) (citing Hitchcock Props., Inc. v. Levering, 776 S.W.2d 236, 239 (Tex.
App.—Houston [1st Dist.] 1989, writ denied); John Chezik Buick Co. v. Friendly Chevrolet
Co., 749 S.W.2d 591, 595 (Tex. App.—Dallas 1988, writ denied)).
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The Tummels’ counterclaims sought the following declarations regarding
jurisdiction: (1) that Roadrunner was doing business in Texas at the time of the First
Garnishment Suit; and (2) that Roadrunner was properly served with process in the First
Garnishment Suit. The counterclaims were expressly confined to jurisdiction and service
and were nothing more than a mere denial of Roadrunner’s claims based on lack of
jurisdiction and service. They presented no new controversy for the trial court to
consider because they had no greater ramifications than Roadrunner’s original suit. See
Howell, 899 S.W.2d at 706. Roadrunner need not have filed special exceptions, as the
Tummels urge. See Tex. Dept. of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex. 1974).
We overrule the Tummels’ fourth issue.
V. THE TUMMELS’ CLAIM FOR SANCTIONS
By a fifth issue, the Tummels challenge the trial court’s denial of their request for
sanctions against Roadrunner. They allege that contrary to Roadrunner’s position: (1)
Roadrunner was served with process in the Roadrunner Garnishment; and (2)
Roadrunner was subject to the personal jurisdiction of Texas courts at the time of the First
Garnishment Suit.
The Texas Rules of Civil Procedure and the Texas Civil Practices and Remedies
Code specify that sanctions for groundless pleadings may be levied upon motion of a
party or upon the court’s own initiative. TEX. R. CIV. P. 13 (regarding sanctions for filing
groundless pleadings and motions in bad faith or for purpose of harassment); TEX. CIV.
PRAC. & REM. CODE ANN. § 10.002(a), (b) (West, Westlaw through 2017 1st C.S.) (setting
out that upon a party’s motion for sanctions or upon the court’s own initiative, the court
22
may award reasonable expenses and attorney’s fees to the prevailing party and when no
due diligence is shown, the court may award all costs for inconvenience, harassment,
and out-of-pocket expenses to the prevailing party). The Tummels appear to be seeking
sanctions against Roadrunner for filing groundless pleadings.11 Roadrunner urges that
the Tummels’ request for sanctions was groundless.12
As to the Tummels’ challenge that Roadrunner’s lack-of-service pleading was
groundless, the Tummels reiterate arguments regarding Milane’s declaration and service
of process. We have already discussed and resolved those matters against the
Tummels. These same arguments provide no support for the Tummels’ request for
sanctions.
The Tummels also challenge Roadrunner’s lack-of-jurisdiction pleading as
groundless. But their argument related to this challenge only consists of (1) one
11 Ordinarily, an issue raised for the first time in a reply brief is waived and need not be considered
by an appellate court. McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied); see TEX. R. APP. P. 38.3; State Office of Risk Mgmt. v. Pena, ___ S.W.3d ___,
___, 2018 WL 655541, at *5 (Tex. App.—Corpus Christi 2018, no pet. h.) (“SORM’s challenge to the
exceptions to the dual-purpose exclusion are waived before us because they were first made in its reply
brief.”). However, because Roadrunner fully briefed the issue of the denial of the Tummels’ counterclaim
for sanctions in its appellate brief and the Tummels responded in their reply brief, that issue is properly
before us. See McAlester Fuel Co., 257 S.W.3d at 737.
12 Roadrunner also argues that the Tummels should have filed a motion for sanctions, not a
counterclaim. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE ANN. § 10.002(a), (b) (West, Westlaw
through 2017 1st C.S.). The Tummels assert that their sanctions counterclaim was appropriate. See
Tanner v. Black, 464 S.W.3d 23, 25–26 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (addressing a
counterclaim for sanctions that alleged the lawsuit was “groundless and brought in bad faith or for the sole
purpose of harassment” and requesting an award of attorney’s fees based on her counterclaim for
sanctions); Leon Springs Gas Co. v. Restaurant Equip. Leasing Co., 961 S.W.2d 574, 578–79 (Tex. App.—
San Antonio 1997, no pet.) (amending an answer to add a counterclaim for sanctions, pursuant to Texas
Civil Practice and Remedies Code section 10.001 and rule 13 of the rules of civil procedure, against the
plaintiff for filing a frivolous claim). Because this distinction is not dispositive, see TEX. R. APP. P. 47.1, we
will assume that the Tummels’ counterclaim for sanctions was properly before the trial court.
23
sentence in their reply brief that challenges Roadrunner’s position that evidence of its job
postings on its website is no evidence that it was doing business in Texas in 2014, and
(2) their complaint that “Milane’s 12-3-2015 declaration does not state that Roadrunner
did not recruit Texas residents for employment in 2014, it states that Roadrunner ‘does
not employ or recruit’ Texas residents for employment.” Without more, we conclude that
the Tummels inadequately briefed this argument. See TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”).
We overrule the Tummels’ fifth issue.
VI. MOTION FOR NEW TRIAL
By their sixth issue, the Tummels contend that the trial court abused its discretion
when it denied their motion for new trial, as supplemented. By the Tummels’ motions
they asserted that they had obtained evidence that was relevant to the issue of whether
Roadrunner was served with process in the First Garnishment Suit. 13 Because we
overruled the first three issues on the basis that, even had Roadrunner been served with
process, it nonetheless established the elements of its bill of review and the court did not
13 The evidence attached to the Tummels’ motion for new trial included Harold’s affidavit to which
was attached the affidavit of Sean Harris, records custodian for Time Warner Cable, Inc., with associated
business records of Time Warner, and a page from Roadrunner’s December 31, 2014 Form 10-K Report
to the U.S. Securities and Exchange Commission. Evidence attached to the Tummels’ first supplemental
motion included Harold’s affidavit authenticating Roadrunner’s responses to interrogatories propounded by
the Tummels after the trial court granted summary judgment in favor of Roadrunner and which the Tummels
claim are relevant to the issue of whether Roadrunner was served with process in the First Garnishment
Suit. Finally, evidence attached to the Tummels’ second supplemental motion for new trial consisted of
Harold’s declaration, again addressing service of process.
24
err in granting summary judgment in its favor, we need not address this sixth issue as it
is not dispositive of the appeal. See TEX. R. APP. P. 47.1.
VII. CONCLUSION
We affirm the trial court’s judgment.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
29th day of March, 2018.
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