Rodrigo Scipiano v. Alice Smith- Moffett

Opinion issued October 14, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00880-CV ——————————— Rodrigo Scipiano, Appellant V. Alice Smith-Moffett, Appellee On Appeal from the County Civil Court at Law Number Two Harris County, Texas Trial Court Case No. 942790 MEMORANDUM OPINION Appellant, Rodrigo Scipiãno Magalhães Ragazzi (“Ragazzi”), brings this accelerated interlocutory appeal from the trial court’s order denying Ragazzi’s special appearance. We affirm. Background Ragazzi is a resident citizen and domiciliary of Brazil. While on business in Houston, Ragazzi was driving a rental vehicle when he collided with a Metropolitan Transit Authority bus. Appellee, Alice Smith-Moffett (“Moffett”), was a passenger on the bus who suffered injuries as a result of the collision. Moffett filed suit alleging the trial court had jurisdiction over Ragazzi pursuant to the Texas long-arm statute in section 17.062(a) of the Texas Civil Practice and Remedies Code.[1] Ragazzi was served with process through Deirdre Delisi (“Delisi”), Chair of the Texas Transportation Commission as agent for Ragazzi, a foreign resident. After receiving service of process by direct mail from Delisi to his home in Sao Paulo, Brazil, Ragazzi filed a special appearance. Brazil and the United States are signatories to the Inter-American Convention on Letters Rogatory (“IAC”), which provides a mechanism for serving letters rogatory (letters of request) on a party residing in a signatory country. See Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. Treaty Doc. No. 27, 98th Cong., 2d Sess. (1984). Article 10 of the IAC provides that letters rogatory “should be executed in accordance with the laws and procedural rules of the state of destination.” Id. Brazilian law requires that letters rogatory be served upon the Brazilian Minister of Transportation, who then serves the process upon the Brazilian citizen. Ragazzi therefore asserts that Brazilian law requires that service of process by a foreign party upon a party domiciled in Brazil be done through letters rogatory. After a hearing,[2] the trial court disagreed and denied Ragazzi’s special appearance. Defective Service of Process In his only issue, Ragazzi contends that the trial court should have granted his special appearance on the basis that Moffett failed to serve him with process in compliance with the IAC. A special appearance is a specific procedural mechanism to litigate one issue: that is, a special appearance is “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; see also Tex. Commerce Bank v. Interpol 1980 Ltd. P’ship, 703 S.W.2d 765, 775 (Tex. App.—Corpus Christi 1985, no writ). The rule applies only when a defendant contends he is not amenable to process. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201–02 (Tex. 1985); Oliver v. Boutwell, 601 S.W.2d 393, 395 (Tex. Civ. App.—Dallas 1980, no writ). The words “not amenable to process issued by the courts of this state” mean that a 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. Kawasaki, 699 S.W.2d at 202. The Texas Supreme Court held in Kawasaki that defective service of process must be challenged by a motion to quash rather than by a special appearance. Id. This is because a curable defect in service of process does not defeat a nonresident’s amenability to the court’s process and serves only to provide the non-resident defendant with more time to answer. See id.; see also Tex. R. Civ. P. 122. Applying the principles enunciated in Kawasaki to the present case, we conclude that it was not appropriate for Ragazzi to assert his complaint regarding defective service of process in his special appearance. Rather, a motion to quash is the appropriate procedural device to raise such objection. See Wheat v. Toone, 700 S.W.2d 915, 915 (Tex. 1985); Tex. Dep’t of Pub. Safety v. Kreipe, 29 S.W.3d 334, 336 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The remedy for defective service in Texas state court is additional time to answer the suit, not dismissal. See Kawasaki, 699 S.W.2d at 202–03; Alcala v. Williams, 908 S.W.2d 54, 56 (Tex. App.—San Antonio 1995, no writ); see also Tex. R. Civ. P. 122. Accordingly, we hold that the trial court did not err in denying Ragazzi’s special appearance on the basis that Moffett did not serve him with process in accordance with the IAC. See Wright v. Sage Eng’g, 137 S.W.3d 238, 246 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that complaint regarding curable defect in service of process does not defeat nonresident’s amenability to court’s process; thus, it should not be brought via special appearance). We overrule Ragazzi’s sole issue. Conclusion We hold that the trial court properly denied Ragazzi’s special appearance, and affirm the order of the trial court denying Ragazzi’s special appearance. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Massengale. [1] See Tex. Civ. Prac. & Rem. Code. Ann. § 17.062(a) (Vernon 2008); Kerlin v. Sauceda, 263 S.W.3d 920, 926 (Tex. 2008) (section 17.062 permits substituted service on nonresident involved in automobile accident in Texas by serving chairman of Texas Transportation Commission). [2] The appellate record contains no reporter’s record of the special appearance hearing, but the parties filed an “Agreed Statement of the Case” containing factual and procedural background.