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 
2

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 
3

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.
4

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 

 

3 The exhibits attached to the Tummels’ second motion for summary judgment included discovery 

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.
5

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-ofreview 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.
6

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 crossmotions 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.
7

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 
8

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.
9

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 
10

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 
11

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.
12

R. CIV. P. 166a(f). The trial court had a legitimate basis for overruling the Tummels’ lackof-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 complainedof 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 
13

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).
14

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 
15

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. 
16

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 postjudgment 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, 
17

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.
18

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 billof-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 
19

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:
20

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 billof-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)].
21

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)).
22

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 
23

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.
24

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.
25

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.