Celeste Grynberg and Jack J. Grynberg D/B/A Grynberg Petroleum v. M-I L.L.C.
2012 Tex. App. LEXIS 10747
| Tex. App. | 2012Background
- Grynberg Petroleum operated in Colorado 2006–2008; M-I provided services and drilling fluids and extended credit.
- M-I served process on Celeste and Jack at 5299 DTC Boulevard, Greenwood Village, Colorado, describing it as home address or home office.
- Texas default judgment entered July 17, 2009 against Celeste and Jack for $677,432.24.
- Grynbergs filed a timely motion for new trial on August 7, 2009; it was overruled by operation of law on September 30, 2009, without a hearing.
- Grynbergs filed a Colorado collateral attack and later a Texas bill of review (October 5, 2010) challenging service and personal jurisdiction.
- Texas court denied bill of review and granted M-I counter-motion for summary judgment; issue then on appeal concerns service, personal jurisdiction, and waiver with respect to a bill of review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service at home or home office under 17.045(a) is valid | Grynbergs contend service must be at home only. | M-I asserts service at home or home office both valid under disjunctive clause. | Statute allows service at either home or home office; first issue overruled. |
| Whether Celeste was properly served at her home office 5299 DTC Boulevard | Celeste affidavit shows 5299 DTC Boulevard is not her home office. | M-I's evidence shows 5299 DTC Boulevard is Celeste's home office; service valid as to Celeste. | Material fact issue exists; Celeste's home-office status contested; service issue remains unresolved. |
| Whether Jack's motion for new trial constitutes a general appearance waiving special appearance | Jack's motion was not a general appearance and preserves special appearance. | Jack's motion constitutes a general appearance waiving any special-appearance challenge. | Jack's motion was a general appearance; minimum-contacts challenge waived. |
| Whether attorneys’ fees were properly awarded in the bill of review | Fees should be awarded under the underlying cause of action. | Fees were improperly awarded or not properly segregated. | Fees awarded; valid under §38.001; no abuse of discretion. |
Key Cases Cited
- Jarvis v. Feild, 327 S.W.3d 918 (Tex. App.—Corpus Christi 2010) (no-answer default judgments require proper service for jurisdiction)
- Furst v. Smith, 176 S.W.3d 864 (Tex. App.—Houston [1st Dist.] 2005) (strict compliance with service rules governs jurisdiction)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (service must be properly completed to confer jurisdiction)
- Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004) (special appearance vs. other pleading; due-order-of-pleading governs)
- Liberty Enterprises, Inc. v. Moore Transportation Co., 690 S.W.2d 570 (Tex. 1985) (a defendant may waive special appearance by certain actions indicating general submission)
- First Oil PLC v. ATP Oil & Gas Corp, 264 S.W.3d 767 (Tex. App.—Houston [1st Dist.] 2008) (special-appearance rulings require hearing and ruling prior to other actions)
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) (general appearance can occur even when special appearance is pending if not timely preserved)
- Puri v. Mansukhani, 973 S.W.2d 701 (Tex. App.—Houston [14th Dist.] 1998) (motion for new trial subject to special appearance can preserve jurisdictional challenge)
- Lang v. Capital Resources Invs. I & II, LLC, 102 S.W.3d 861 (Tex. 2003) (statutory and procedural limits on waiving special appearances)
- Horowitz v. Berger, 377 S.W.3d 115 (Tex. App.—Houston [14th Dist.] 2012) (recognizes discovery and ancillary proceedings do not waive special appearance)