Southeast Texas Record

Saturday, February 22, 2020

Appellate court rules trial court abused discretion in case regarding service on Canadian woman

By Angela Underwood | Jan 15, 2018

General court 07

HOUSTON – The 14th Court of Appeals reversed and remanded a ruling from the 212th District Court of Galveston County in an appeal involving whether a Canadian woman was properly served.

"Because the defective service amounted to no service, the trial court abused its discretion in failing to grant her motion for new trial," the appellate court stated in its Jan. 9 ruling.

The case is an appeal from a no-answer default judgment that was remanded to the appellate court from the U.S. Supreme Court.

The court ruled that the Hague Service Convention, the service abroad of judicial and extrajudicial documents in civil or commercial matter, was not met in appellant/defendant Tara Menon’s appeal against appellee/plaintiff Water Splash Inc., specifically based on Article 10 and otherwise applicable-law, according to Justices Tracy Christopher, John Donovan and Ken Wise.

As a former North Texas regional sales manager for Water Splash, Quebec resident Menon was accused of conspiring to steal Water Splash’s designs and propriety information for her South Pool and Spa's use, another company she was employed by at the time, the ruling states. Along with suing her, South Pool Spa and its owner, Menon was additionally sued for breach of fiduciary duty and had to be served individually, the ruling states.

Based on Canada’s approval of The Hague Service Convention, Menon was served by first class mail, certified mail with return receipt requested, Federal Express and email to four of her known internet addresses. After the trial court ruled against Menon and awarded Water Splash actual damages of $60,000, she moved for a new trial based on the service of the legal documents.

Menon argued the service was flawed for two reasons, including deliverance by mail does not comport Article 10 since Quebec necessitates requests for service to be sent to its Central Authority and it cannot be proved she ever actually evaded service, and email delivery does not count as suitable service.

Menon’s first agreement was a matter of semantics, arguing, “that because Article 10(a) used the word ‘send’ rather than ‘serve,’ it did not apply to service of process, and thus, service of process under The Hague Service Convention does not include service by mail,” according to the appeal, authored by Christopher, who added the 14th District Court of Appeals divided panel agreed with Menon in Menon v. Water Splash Inc. 2015.

The Texas Supreme Court rejected the review while the U.S. Supreme Court granted the order and reversed it, specifically ruling the first mandate of The Hague Convention was met since as a Quebec resident, Canada is “the receiving state,” which does not reject service by direct mail under Article 10

“Our instruction on remand is to decide, to the extent that issue is preserved, whether Texas law authorized the way in which Menon was served,” Christopher wrote in the appeal.

“To satisfy the second requirement for valid service under Article 10, Menon had to be served in a manner authorized by ‘otherwise-applicable’ law,” Christopher wrote. “Because the case was filed in a Texas state district court, the ‘otherwise-applicable’ law is the law governing service of process in that court.”

Though the 14th District Court of Appeals found the first requirement of The Hague Convention was met, it did not feel Menon had been authentically served when the trial court rendered a default judgment against her.

“Although Canada does not object to the international service of process on its residents by direct mail, Menon was served by an unauthorized person, and thus, Menon was not validly served under the Texas Rules of Civil Procedure or Article 10 of The Hague Service Convention,” Christopher wrote.

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