Reversed and Remanded and Majority and Dissenting Opinions filed June 30, 

2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00012-CV

TARA MENON, Appellant 

V.

WATER SPLASH, INC., Appellee 

On Appeal from the 212th District Court 

Galveston County, Texas 

Trial Court Cause No. 13-CV-0205 

O P I N I O N 

Appellant, Tara Menon (“Menon”), appeals the trial court’s default 

judgment granted after she failed to answer the suit filed by appellee, Water 

Splash, Inc. (“Water Splash”). In four issues, Menon contends that the trial court 

erred in refusing to set aside the default judgment because state law cannot allow 

service of process in foreign nations where the service does not comport with the 

requirements of the Hague Service Convention. We reverse and remand. 
2

I. BACKGROUND

Menon is a citizen of Canada, residing in Quebec. Water Splash is a 

Delaware corporation with its principal office located in Champlain, New York. 

Water Splash sued Menon in Galveston, Texas. In its original petition, Water 

Splash alleged that Menon was its regional sales representative and that Menon 

also began to act as a sales manager for South Pool, a competitor of Water Splash. 

Sometime in 2012, Water Splash discovered that South Pool had used some of 

Water Splash’s designs and drawings when submitting a bid to the City of 

Galveston for the construction of splash pads at two parks. A year later, Water 

Splash sued South Pool and Menon for unfair competition, conversion, tortious 

interference with business relations, and conspiracy. 

To effectuate service, Water Splash filed a motion for alternative service of 

process pursuant to Texas Rule of Civil Procedure 108a. See Tex. R. Civ. P. 108a. 

The motion requested that the trial court order service on Menon in Quebec, 

Canada, by “first class mail, certified mail, and Federal Express to Menon’s 

address” and “by email to each of Menon’s known email addresses.” The trial 

court granted the motion. 

After Menon did not file an answer or otherwise appear, Water Splash 

moved for default judgment alleging it had diligently sought service on Menon 

utilizing the methods allowed for substituted service. The motion stated that 

service was accomplished by sending a letter to Menon’s Quebec address by 

certified mail, return receipt requested and first class mail, and Water Splash 

introduced evidence of those attempts at service. Water Splash also alleged that 

Menon’s emails proved she knew of the existence of the suit. The trial court 

granted the motion for default judgment against Menon and awarded actual and 

exemplary damages and attorneys’ fees. 
3

Menon filed a motion for new trial seeking to set aside the default judgment 

because service was not accomplished pursuant to the terms of article 10(a) of the 

Hague Service Convention. Water Splash responded, arguing Rule 108a was an 

acceptable form of alternative service. The trial court denied Menon’s motion for 

new trial. 

II. ANALYSIS

In four interrelated issues involving the interpretation of particular words in 

the Hague Service Convention, appellant attacks the trial court’s grant of default 

judgment and denial of her motion for new trial. 

A. Standard of Review 

We review a trial court’s denial of a motion for new trial for abuse of 

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009). 

A trial court abuses its discretion if it reaches a decision without reference to any 

guiding rules or principles, or acts in an arbitrary or unreasonable manner. Cire v. 

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Stevens v. Anatolian Shepherd 

Dog Club of Am., Inc., 231 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2007, 

pet. denied). 

Absent waiver, a trial court lacks personal jurisdiction over a defendant to 

whom citation has not been “issued and served in a manner provided for by law.” 

See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). In a direct appeal from a 

no-answer default judgment, there is no presumption of valid issuance, service, and 

return of citation. See id. (quoting Uvalde Country Club v. Martin Linen Supply 

Co., 690 S.W.2d 884. 836 (Tex. 1985)) (per curiam). Thus, a default judgment 

cannot withstand a direct attack unless the record affirmatively shows strict 

compliance with the rules for service of citation. Primate Constr., Inc. v. Silver, 
4

884 S.W.2d 151, 152 (Tex. 1994) (per curiam). Whether a trial court has personal 

jurisdiction over a defendant is a question of law, which we review de novo. 

Haaksman v. Diamond Offshore (Bermuda), Ltd., 260 S.W.3d 476, 479 (Tex. 

App.—Houston [14th Dist.] 2008, pet. denied). 

B. Hague Convention 

Articles 2 through 7 of the Hague Convention require a signatory nation to 

establish a “Central Authority” which acts as an agent to handle various matters 

regarding requests for service, service of documents and proof of service. Article 

10(a) of the Hague Convention, at issue here, states: 

Provided the State of designation does not object, the present 

Convention does not interfere with 

(a) the freedom to send judicial documents, by postal channels, 

directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent 

person of the State of origin to effect service of judicial documents 

directly through the judicial officer, officials or other competent 

persons of the State of designation, 

(c) the freedom of any person interested in a judicial proceeding to 

effect service of judicial document directly through the judicial 

officers, officials, or other competent persons of the State of 

destination.

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents 

in Civil or Commercial Matters, art. 10, No. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 

163, available at http:www.hcch.net/index_en.php?act=conventions.text&cid=17 

(last visited June 22, 2015) (“Hague Convention”). The question before us turns 

on the meaning attributed to “send” and “service.”

Where it applies, compliance with the provisions of the Hague Convention is 

“mandatory.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698–

99 (1988). Its purpose is to provide a more efficient and effective manner of 
5

service of process abroad and to ensure that defendants sued in foreign 

jurisdictions receive timely notice of suit. Id., at 699; see also Nuovo Pignone, 

SpA v. STORMAN ASIA M/V, 310 F.3d 374, 383 (5th Cir. 2002). In Nuovo, 

plaintiff attempted service by mailing service of process to the defendant’s office 

in Italy. See Nuovo, 310 F.3d at 383. Arguing that service by mail violated Fed. 

R. Civ. P. 4(f)(1) because it did not comply with the Hague Convention, the 

defendant urged that the drafters used the term “send” in connection with the 

delivery of judicial documents, but used “serve,” “service,” and “to effect service” 

in other sections, including article 10. Id. The Nuovo court discussed how other 

courts have construed “send” and determined that, because “service” was used 

throughout the Hague Convention while “send” was confined solely to article 

10(a), this demonstrated that the drafters did not “intend to give the same meaning 

to ‘send’ that they intended to give to ‘service.’” Id. at 384. In short, the drafters 

intended to attach meaning to the specific word used. See id.

The Hague Convention applies “in all cases, in civil or commercial matters, 

where there is occasion to transmit a judicial or extrajudicial document for service 

abroad.” 20 U.S.T. 361, art. 1. The Hague Convention “preempts any inconsistent 

methods of service prescribed by Texas law in all cases where the Convention 

applies.” Wuxi Taihu Tractor Co, Ltd. v. York Group, Inc., No. 01-13-00016-CV, 

2014 WL 6792019, at *5 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) 

(mem. op.) (citing Paradigm Entm’t, Inc. v. Video Sys. Co., No. Civ. A. 3:99-CV2004P, 2000 WL 251731, at *4 (N.D. Tex. Mar. 3, 2000) (concluding service was 

effective where secretary of state forwarded a copy of service of process to 

defendant pursuant to Texas law, and Japan did not object to this manner of 

service). 
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C. Application of article 10(a) 

Menon argues the default judgment should not have been rendered because 

she was not served with process. See Tex. R. Civ. P. 124 (“In no case shall 

judgment be rendered against any defendant unless upon service . . . .”). Menon 

further asserts that Water Splash did not effectuate service under Rule 108a, 

providing for service in a foreign country “pursuant to the terms of any treaty or 

convention,” because she was not served pursuant to the Hague Convention service 

of process provisions. She argues “the drafters use the words ‘serve,’ ‘service,’ 

and ‘to effect service’ in other sections, including subparts (b) and (c) of article 

10,” but they only used the word “send” in subsection (a), which applies only to 

sending judicial documents. See Nuovo, 310 F.3d at 383. 

Water Splash argues that article 10(a) allows service of process by mail, and 

relies on the “majority view” which holds that article 10(a) allows service of 

process by mail, so long as the state of destination does not object.1 Courts 

following this view include the Second, Fourth, Seventh and Ninth Circuits.2

We conclude that the better-reasoned approach is to follow the so-called 

“minority view” which adheres to and applies the meaning of the specific words 

used in article 10(a) and prohibits service of process by mail. 

 

1 Canada has not objected to the use of the mail for service of process. See Canada–

Central Authority & Practical Information, HAGUE CONF. OF PRIVATE INT’L. L., 

http://www.hcch.net/index_en.php?act=authorities.details&aid=248 (last updated Aug. 19, 2014) 

(listing the text of Canada’s declarations, including those to “[t]ransmission through postal 

channels,” and stating that “Canada does not object to service by postal channels” as permitted in 

article 10(a)); see also Dierig v. Lees Leisure Indus., Ltd., CIV.A. 11-125-DLB, 2012 WL 

669968, at *19 (E.D. Ky. Feb. 28, 2012) (mem. op.).

2

Ackermann v. Levine, 788 F.2d 830, 838–39 (2nd Cir. 1986); Koehler v. Dodwell, 152 

F.2d 304, 307–08 (4th Cir. 1998); Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 

(7th Cir. 2002); and Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004).
7

‘Absent a clearly expressed legislative intention to the contrary,’ a 

statute’s language ‘must ordinarily be regarded as conclusive.’ 

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 

108, 100 S.Ct 2051, 64 L.Ed.2d 766 (1980). And because the drafters 

purposely elected to use forms of the word ‘service’ through the 

Hague Convention, while confining use of the word ‘send’ to article 

10(a), we will not presume that the drafters intended to give the same 

meaning to ‘send’ that they intended to give to ‘service.’ 

Nuovo, 310 F.3d at 384 (relying on canons of statutory interpretation and adopting 

the reasoning of the courts which concluded that article 10(a) of the Hague does 

not permit service of process by mail); see also Bankson v. Toyota Motor Corp., 

880 F.2d 172, 174 (8th Cir. 1989) (stating that language used should be regarded as 

conclusive and concluding that article 10(a) prohibits service of process by 

registered mail); see also Wuxi Taihu Tractor, 2014 WL 6792019, at *6 (citing 

Nuovo, 310 F.23d at 384). Wuxi involved service on a defendant located in China 

attempted under Rule 108a. Id. The Wuxi court held that article 5 of the Hague 

Convention does not permit service by direct mail to a defendant in China who 

should have been served through the Central Authority pursuant to the specific 

language of the Hague Convention. Id.

Because the purpose of the Hague Convention is to “ensure that plaintiffs 

deliver notice to foreign addressees in sufficient time to defend the allegation,” we 

are not persuaded that the drafters did not intend what they wrote, particularly 

where the Hague Convention describes other methods of service. See Nuovo, 310 

F.3d at 385. Specifically, articles 2 through 7 provide for service of process 

through a central authority and, under articles 8 and 9, through diplomatic 

channels. “It is unlikely that the drafters would have put in place these methods of 

service . . . while simultaneously permitting the uncertainties of service by mail.” 

Id. 
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Further, other federal district courts in Texas which considered whether 

service of process by mail, under article 10(a) as involved here, or under article 5 

which allows service through a central authority, have ruled consistently that 

service must be effectuated by the specific methods authorized by the terms 

included in the Hague Convention. See Duarte v. Michelin N. Am., Inc., No. 2:13-

CV-00050, 2013 WL 2289942, at *4–6 (S.D. Tex. 2013) (considering question of 

service by mail on the secretary of state and determining, following Nuovo, that

service by mail not authorized under the Hague Convention) (citing Berezowsky v. 

Ojeda, No. 4:12-CV-03496, 2013 WL 150714, at *7 (S.D. Tex. 2013) (holding 

service was not effectuated under articles 2-5 which allows service of process 

under the Hague Convention through Mexico’s Central Authority, demonstrating 

court’s adherence to the specific meaning of the words used in the Hague 

Convention); L.K. v. Mazda Motor Corp., No. 3:09-cv-469-M, 2009 WL 1033334, 

at *2 (N.D. Tex. 2009) (holding service under article 5 was not effective because 

Japanese requirement that service be transmitted to the Central Authority was not 

met); Albo v. Suzuki Motor Corp., No. 3:08-0139-KC, 2008 WL 2783508, at *2 

(W.D. Tex. 2008) (holding service not effective because, under article 5, the Hague 

Convention required full translation of documents into Japanese and without 

complying with specific Hague Convention requirements, service was 

insufficient). 

Further, in addition to Wuxi, two other state courts have considered whether 

the specific words used in the Hague Convention have specific meanings regarding 

service of process or sending of judicial documents. See In re J.P.L., 359 S.W.3d 

695, 706 (Tex. App.—San Antonio, 2011, pet. denied) (holding that service of 

process in a child custody matter must be accomplished through the provisions of 

the Hague Convention and service on the Central Authority in Mexico); Velasco v. 
9

Ayala, 312 S.W. 3d 783, 794 (Tex. App.—Houston [1st Dist. 2009, no pet.) 

(relying on article 10(a) and Nuovo and concluding that service of process must be 

accomplished pursuant to the requirements of the Hague Convention). 

In sum, we conclude the specific provisions set forth in the Hague 

Convention govern service, whether through article 5 and its reliance on a central 

authority, or on the language expressed in article 10(a). 

For these reasons, we sustain appellant’s four issues, reverse the trial court’s 

default judgment and permanent injunction against Tara Menon, and remand for 

further proceedings consistent with this opinion. 

 

 /s/ John Donovan 

 Justice 

Panel consists of Justices Christopher, Donovan, and Wise (Christopher, J., 

dissenting).