Opinion issued December 2, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00016-CV
                            ———————————
           WUXI TAIHU TRACTOR COMPANY, LTD., Appellant

                                        V.

                     THE YORK GROUP, INC., Appellee



                    On Appeal from the 165th District Court
                             Harris County, Texas
                       Trial Court Case No. 2008-74193


                          MEMORANDUM OPINION

      Appellant, Wuxi Taihu Tractor Company, Ltd. (“Taihu”), challenges the

trial court’s rendition of summary judgment in favor of appellee, The York Group,

Inc. (“York”), in Taihu’s bill-of-review proceeding to set aside a default judgment.
In four issues, Taihu contends that the trial court erred in denying it summary

judgment and granting York summary judgment.

      We affirm.

                                   Background

      In its original petition, York, a Delaware Corporation engaged in the

business of manufacturing and selling burial caskets, sued Taihu, a company

organized under the laws of the People’s Republic of China and having its

principal place of business in Wuxi, Jiangsu Province, China. York alleged that

Taihu had copied and distributed York’s casket designs in Texas, and it asserted

claims for unfair competition and tortious interference with contract. York served

Taihu through the Texas Secretary of State, who mailed service of process directly

to Taihu’s principal place of business in China. Taihu, proceeding pro se, filed an

answer, first denying each of York’s claims in detail and then challenging the trial

court’s jurisdiction. Taihu asserted that it did not conduct business in Texas and

had not been properly served with process pursuant to the requirements of the

Hague Convention. 1

      York, having not been served with Taihu’s answer and unaware that it had

filed an answer, moved for an “interlocutory default judgment.” Taihu filed a

“Demurrer to [York’s] Motion for Interlocutory Default Judgment,” asserting that

1
      See Hague Convention on the Service Abroad of Judicial and Extrajudicial
      Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361.

                                         2
it had “responded to [York’s] complaint by posting an answer via registered . . .

mail on June 9, 2006 to [the Harris County Clerk], as requested in the citation,” the

answer was delivered on June 12, 2006, and York’s “allegation that [Taihu] had

failed to respond [was] false.”

      In the months thereafter, York served Taihu with deposition notices and

discovery requests. Taihu objected on the ground that it had not been properly

served, and it refused to produce any documents or appear for deposition. York

then moved to compel Taihu to respond, and it complained that Taihu, as a

corporation, could not be represented by a non-lawyer and had, for over six

months, failed to retain counsel. York sought an order to admonish Taihu to retain

counsel within ten days or be found in default.

      In response, Taihu filed a “Demurrer to . . . York’s Motion to Compel

Written Discovery and Appearance for . . . Deposition and Motion for Sanctions.”

Taihu argued that York’s motion should be denied because York had neither

“attempted to conference with [Taihu] in connection [with] discovery issues” nor

served its discovery requests pursuant to the requirements of the Hague

Convention. Taihu complained that having to appear at a deposition in the United

States would be “complicated, burdensome, and inconvenient.” And it reiterated

its assertion that the trial court lacked personal jurisdiction over it. Finally, Taihu




                                          3
asserted that it “may not be compelled to retain an attorney for York’s frivolous

claim.”

      On May 21, 2007, the trial court ordered Taihu to retain counsel within ten

days, produce all requested discovery within fifteen days, and appear for

deposition within twenty days. It admonished Taihu that if it did not retain counsel

as ordered, it would be found in default.

      In June 2007, Dai Qingkang, an attorney licensed in China, contacted the

trial court by email, asking a series of detailed questions about the docket control

order and mediation. The trial court responded to the questions and suggested that

Qingkang should “contact local counsel in Houston.” Qingkang then filed, on

behalf of Taihu, an objection to mediation and a motion to dismiss the lawsuit. He

asserted that it was “unfair and against common sense to force [Taihu] to render

costs in employing an attorney for this present case which is obviously groundless

and lack[s] sufficient minimum evidence to support [York’s] allegations and

claims.”

      On July 26, 2007, the trial court, after notice, called the case to trial, and

Taihu did not appear. The trial court, concluding that Taihu had “wholly failed to

comply” with its prior order to retain counsel, rendered a default judgment against

Taihu. It noted that, by its prior order, it had put Taihu on notice that it was subject

to sanctions for failure to comply, lesser sanctions were not sufficient to secure



                                            4
Taihu’s compliance, Taihu continued to abuse the discovery process, York had

been prejudiced by Taihu’s noncompliance with the rules, and Taihu’s “wrongful

conduct justifie[d] the presumption that [Taihu’s] defenses [we]re without merit.”

The trial court also ruled that Taihu had “wholly failed to comply with the

requirements of [Texas Rule of Civil Procedure 120a] as to its purported special

appearance.    Therefore, it denied Taihu’s Motion to Dismiss and “any other

purported special appearance” by Taihu. It held that the material allegations in

York’s original petition were deemed admitted, declared that Taihu had “unfairly

competed against York,” and enjoined Taihu from

      • copying or imitating the design of any York casket;
      • causing any casket to be manufactured abroad and imported into
        the United States without a permanent label which states that the
        product was “Made in China”. . . ;
      • causing any casket to be imported, marketed, advertised, displayed,
        or sold under or in connection with the name “York,” . . . and/or
        with any of the following Brand Names set forth in Exhibit A,
        which is attached and incorporated in this Final Judgment for all
        purposes;
      • passing off, inducing or enabling others to sell or pass off, as
        authentic products produced by York otherwise authorized by
        York, any product not manufactured by York . . . ;
      • copying . . . any advertisements . . . or . . . photographs; and/or
      • conspiring with, causing, aiding, assisting, . . . any other person or
        business entity in engaging in or performing any of the acts
        proscribed [above].

York then non-suited its claims for unliquidated monetary damages. After Taihu

received notice of the final judgment, it did not appeal.

                                          5
      In 2008, York sued to enforce the judgment, alleging that Taihu was

continuing to copy and sell York’s designs. Taihu retained Texas legal counsel,

answered with a general denial, and admitted, subject to any defenses it had raised

regarding the jurisdiction of the trial court, that it had been properly served and had

made an appearance in the case. Taihu then removed the enforcement action to

federal court, asserting diversity jurisdiction.

      Subsequently, Taihu initiated the instant bill-of-review action in state court,

seeking to set aside the underlying default judgment. 2 In its petition, Taihu alleged

that “the face of the record [did] not prove that [it] was properly served with

process under the Hague Convention” and it “had no counsel of record, which

[was] mandated by Texas law for a corporation to make an appearance.”

      In 2012, Taihu filed a summary-judgment motion, arguing that it was

entitled to judgment as a matter of law because it was undisputed that it had not

been properly served. It further argued that because a corporation can only appear




2
      York removed the bill-of-review action to federal court. The United States
      District Court denied Taihu’s motion to remand the bill-of-review action to state
      court and granted summary judgment in favor of York on Taihu’s bill of review.
      Wuxi Taihu Tractor Co. v. The York Group, Inc., 766 F.Supp.2d 803 (S.D. Tex.
      2011) (concluding Taihu answered and appeared in underlying suit). The United
      States Court of Appeals for the Fifth Circuit, holding that a federal district court
      does not have jurisdiction over a bill-of-review action seeking relief from a state
      court judgment, vacated the district court’s judgment and remanded the bill-of-
      review action to state court. Wuxi Taihu Tractor Co. v. The York Group, Inc., 460
      F.App’x 357 (5th Cir. 2012).

                                            6
in court through a licensed attorney, none of the documents that Taihu had sent to

the trial court in the underlying action constituted an appearance.

      York responded, arguing that by expressly representing to the trial court in

the underlying proceeding that it had filed an answer, Taihu had defeated York’s

motion for interlocutory default. Therefore, “not only did the facts not support

[Taihu’s] argument,” but Taihu was judicially estopped from now asserting that it

had not answered.

      York also filed a cross-motion for summary judgment, seeking dismissal of

Taihu’s bill-of-review action. It asserted that Taihu had been served with process

through the Texas Secretary of State; did not file a proper special appearance or

motion to quash service 3; waived any defect in service because it “admitted it filed

an Answer” and participated in its defense; had notice of the underlying judgment

and failed to move for a new trial or appeal; and failed to plead and prove the

elements required to prevail on a bill of review.

      After the trial court conducted a hearing on the motion for new trial, Taihu

amended its petition for bill of review, again alleging that it had not been properly

served and had not answered.           It also asserted, alternatively, that it had a

meritorious defense, namely, that “York ha[d] not alleged a protected intellectual

property interest” that it was prevented from raising by the failure of service.


3
      See TEX. R. CIV. P. 120a, 122.

                                            7
Taihu further asserted that there is no record of an evidentiary hearing or the trial

court attempted lesser sanctions before it rendered its default judgment.

      The trial court granted York summary judgment and denied Taihu’s cross-

motion for summary judgment on Taihu’s petition for bill of review. Taihu’s

motion for new trial was overruled by operation of law.

                               Standard of Review

      We review a trial court’s grant or denial of summary judgment on a bill of

review de novo. Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (reviewing summary judgment on bill of review). To prevail

on a summary-judgment motion, a movant has the burden of establishing that it is

entitled to judgment as a matter of law and there is no genuine issue of material

fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

Thus, to be entitled to summary judgment, a bill-of-review plaintiff must

conclusively prove all the elements of its bill-of-review action as a matter of law.

See Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 60 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied). A defendant moving for summary judgment must either

(1) disprove at least one essential element of the plaintiff’s cause of action or (2)

plead and conclusively establish each essential element of its affirmative defense,

thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341;

Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st



                                          8
Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact

issue precluding summary judgment, we take the evidence favorable to the non-

movant as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.

1985). And we indulge every reasonable inference in favor of the non-movant and

resolve any doubts in its favor. Id. at 549.

      When, as here, a trial court grants summary judgment without specifying the

ground for doing so, we uphold the trial court’s ruling if any asserted ground is

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied). And where both parties have moved for

summary judgment and the trial court has granted one motion and denied the other,

we review the summary-judgment evidence presented by both sides, determine all

questions presented, and render the judgment that the trial court should have

rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d

643, 648 (Tex. 2004).

                                   Bill of Review

      A bill of review is a separate, independent suit brought by a party to a

former action who is seeking to set aside a final judgment that is no longer subject

to a motion for new trial or appealable. See Caldwell v. Barnes, 975 S.W.2d 535,

537 (Tex. 1998); Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied). It is an equitable remedy available only



                                          9
when a party has “demonstrated due diligence and can show, through no fault of its

own, that no other legal remedy [is] available.” Hernandez, 16 S.W.3d at 57

(citing Caldwell, 975 S.W.2d at 537–38). Ordinarily, a bill-of-review plaintiff

must plead and prove “(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 on [its] own part.” Mabon v. Afri-Carib Enters., Inc., 369 S.W.3d

809, 812 (Tex. 2012). However, “when a bill-of-review plaintiff claims a due

process violation for no service or notice, it is relieved of proving the first two

elements set out above.” Id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S.

80, 84, 87, 108 S. Ct. 896, 896, 899 (1988); Caldwell, 154 S.W.3d at 96–97). And

the third element, lack of negligence, is conclusively established. Id.

Service and Appearance

      In its first and second issues, Taihu argues that it conclusively established

the elements of its bill-of-review action because “[i]t is undisputed that . . . York

failed to properly serve [it] with service of process [in the underlying lawsuit] in

accordance with the requirements of the Hague Convention” and “Taihu never

‘appeared’ in the underlying suit through a Texas attorney.” Taihu further argues

that because it was not properly served and did not appear through counsel in the

underlying lawsuit, the trial court “had no power to compel” it to hire counsel.



                                         10
      Taihu asserts that, under the “abbreviated” bill-of-review elements, “York’s

failure to properly serve [it in the underlying lawsuit], by itself, establishes Taihu’s

right to a bill of review, as a matter of law.”           Texas procedural law and

constitutional due process require that a defendant “be served, waive service, or

voluntarily appear.” In re J.P.L., 359 S.W.3d 695, 707 (Tex. App.—San Antonio

2011, pet. denied) (concluding trial court lacked authority to enter order because

record did not show defendant served in accordance with Hague Convention,

waived service, or voluntarily appeared); see TEX. R. CIV. P. 124 (“In no case shall

judgment be rendered against any defendant unless upon service, or acceptance or

waiver of process, or upon an appearance by the defendant.”).

      Service of process on a defendant in China is governed by the Hague Service

Convention, which applies “in all cases, in civil or commercial matters, where

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

abroad.” Hague Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, art. 1;

see Hague Conference on Private International Law, Status Table, 14: Convention

of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters (Sept. 22, 2009), available at

http://www.hcch.net/index_en.php?act=conventions.status&cid=17            (last visited

Nov. 25, 2014). Where it applies, compliance with the Hague Service Convention



                                          11
is “mandatory.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,

698–99, 108 S. Ct. 2104, 2107–08 (1988). The purpose of the Hague Service

Convention is “to provide a simpler way to serve process abroad, to assure that

defendants sued in foreign jurisdictions would receive actual and timely notice of

suit, and to facilitate proof of service abroad.” Id. at 486 U.S. at 698, 108 S. Ct. at

2107. “By virtue of the Supremacy Clause,” 4 the Hague Service Convention, as an

international treaty, “pre-empts inconsistent methods of service prescribed by state

law in all cases to which it applies.” Id. at 486 U.S. at 699, 108 S. Ct. at 2108

(stating “the Hague Service Convention is a multilateral treaty” and citing U.S.

CONST., art. VI); Paradigm Entm’t, Inc. v. Video Sys. Co., No. Civ. A. 3:99–CV–

2004P, 2000 WL 251731, at *4 (N.D. Tex. Mar. 3, 2000) (“The Convention

preempts any inconsistent methods of service prescribed by Texas law in all cases

where the Convention applies.”).

      In Texas, service of process may be effected upon a party in a foreign

country if service of the citation and petition is made:



4
      The “Supremacy Clause” provides, in pertinent part,
             [t]his Constitution, and the laws of the United States which shall be
             made in Pursuance thereof; and all treaties made, or which shall be
             made, under the Authority of the United States, shall be the supreme
             law of the Land; and the judges of every state shall be bound
             thereby, any Thing in the Constitution or Laws of any State to the
             Contrary notwithstanding.
      U.S. CONST. art. VI, cl. 2 (emphasis added).

                                          12
      in the manner provided by Rule 106; or . . . pursuant to the terms of
      any applicable treaty or convention; . . . or . . . by any other means
      directed by the court that is not prohibited by the law of the country
      where service is to be made.

TEX. R. CIV. P. 108a(1). “The method for service of process in a foreign country

must be reasonably calculated, under all the circumstances, to give actual notice of

the proceeding to the defendant in time to answer and defend.” Id. Citation and a

copy of the petition must be served by an authorized person and delivered to the

defendant in person or sent by registered or certified mail. TEX. R. CIV. P. 106.

      The Hague Service Convention, however, does not permit service of process

by direct mail to a defendant in China. See 20 U.S.T. 361, art. 5; Nuovo Pignone,

SpA v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002). Requests for service

on a defendant within the borders of China must be sent directly to China’s

designated Central Authority. See 20 U.S.T. 361, arts. 2, 3; Schlunk, 486 U.S. at

698–99, 108 S. Ct. at 2107–08. The Central Authority then forwards the request to

the competent judicial authority to effectuate service. 20 U.S.T. 361, art. 5 (“The

Central Authority of the State addressed shall itself serve the document or arrange

to have it served by an appropriate agency.”). China has designated as its Central

Authority the Ministry of Justice, International Legal Cooperation Center, and

China requires that documents to be served within its borders be in Chinese or

accompanied by a corresponding translation. See Hague Convention on Private

International Law, China Central Authority, Ministry of Justice, Dep’t of Judicial

                                         13
Assistance and Cooperation, Division of Judicial Assistance, available at

http://www.hcch.net/index_en.php?act=authorities.details&aid=243 (last visited

Nov. 25, 2014).

      It is undisputed that York did not serve Taihu through the Chinese Central

Authority. Rather, York requested service of process through the Texas Secretary

of State, who mailed it directly to Taihu’s corporate offices. And the citation and

petition were written in English and had no accompanying Chinese translation. “It

is the responsibility of the one requesting service, not the process server, to see that

service is properly accomplished.” Primate Const. Inc. v. Silver, 884 S.W.2d 151,

153 (Tex. 1994). Thus, York failed to effectuate valid service of process on Taihu

in the underlying lawsuit.

      The Hague Service Convention does not allow the entry of judgment against

a defendant unless valid service of process has been effectuated or the defendant

has appeared, as follows:

            Where a writ of summons or an equivalent document had to be
      transmitted abroad for the purpose of service, under the provisions of
      the present Convention, and the defendant has not appeared,
      judgment shall not be given until it is established that–
             (a) the document was served by a method prescribed by the
      internal law of the State addressed for the service of documents in
      domestic actions upon persons who are within its territory, or
             (b) the document was actually delivered to the defendant or to
      his residence by another method provided for by this Convention,




                                          14
             and that in either of these cases the service or the delivery was
      effected in sufficient time to enable the defendant to defend.

20 U.S.T. 361, art. 15 (emphasis added); see also TEX. R. CIV. P. 124 (“In no case

shall judgment be rendered against any defendant unless upon service, or

acceptance or waiver of process, or upon an appearance by the defendant, as

prescribed by law or these rules.”).

      “When a party enters a general appearance, the trial court can exercise

personal jurisdiction over that party without violating the party’s due process

rights.” Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985).

Filing an answer “constitute[s] an appearance of the defendant so as to dispense

with the necessity for the issuance or service of citation upon him.” TEX. R. CIV. P.

121; see Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999) (noting filing answer

constitutes general appearance); In re $475,001.16, 96 S.W.3d 625, 628–29 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (holding filing answer waives any

challenge to defective service); Hous. Crushed Concrete, Inc. v. Concrete

Recycling Corp., 879 S.W.2d 258, 260 (Tex. App.—Houston [14th Dist.] 1994, no

writ) (“An appearance, however unintentional, constitutes a waiver of service.”).

      “[A] defendant who timely files a pro se answer by a signed letter that

identifies the parties, the case, and the defendant’s current address, has sufficiently

appeared by answer.” Smith v. Lippman, 826 S.W.2d 137, 138 (Tex. 1992). Here,

Taihu’s chairman of the board of directors, Xue Tizhong, filed a signed “Answer to

                                          15
a Complaint,” identifying the parties, the case, and Taihu’s address, and placing in

issue the specific claims raised by York. See id. Although Taihu asserted that

there was “no proper service of process . . . under the Hague Convention,” Taihu

did not file a special appearance or a motion to quash service of process in

accordance with the Texas Rules of Civil Procedure. 5

      Taihu filed “demurrers” to York’s “Motion to Compel Written Discovery

and Appearance for . . . Deposition and Motion for Sanctions” and “Motion for

Interlocutory Default Judgment.”         And, in response to York’s motion for

interlocutory default, Taihu asserted that it had “post[ed] an answer via registered

EMS mail on June 9 2006 to [the Harris County Clerk], as requested in the


5
      A party may preserve its defense to personal jurisdiction through a special
      appearance. See TEX. R. CIV. P. 120a. A special appearance to contest personal
      jurisdiction on the ground that a party is not amenable to process issued by a
      Texas court must be made by a sworn motion filed prior to any other plea,
      pleading, or motion that seeks affirmative relief. Dawson-Austin v. Austin, 968
      S.W.2d 319, 323 (Tex. 1998). Further, although other motions and pleas may be
      included in the same instrument as a special appearance without waiving
      objections to personal jurisdiction, the special appearance must be the first plea
      made. TEX. R. CIV. P. 120a; Onda Enters., Inc. v. Pierce, 750 S.W.2d 812, 813
      (Tex. App.—Tyler 1988, orig. proceeding). A defective special appearance
      constitutes a general appearance. TEX. R. APP. P. 120a; Allright, Inc. v. Roper, 478
      S.W.2d 245, 247 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ dism’d w.o.j.)
      (“[A] party appearing before a Texas Court in any capacity or condition except
      that prescribed by Rule 120a . . . invokes that court’s jurisdiction.”). Defective
      service of process must be challenged by a motion to quash. See TEX. R. CIV. P.
      122; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985). A
      curable defect in service of process does not defeat a nonresident’s amenability to
      service of process and serves only to provide the non-resident defendant with more
      time to answer. See id. at 202; see also TEX. R. CIV. P. 122; Wright v. Sage Eng’g,
      Inc., 137 S.W.3d 238, 245 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

                                           16
citation”; the Answer was delivered on June 12, 2006; and York’s allegation that

Taihu had failed to respond was “false.” Further, after it answered, Taihu caused

Dai Quinkang, an attorney licensed in China, to contact the trial court on Taihu’s

behalf regarding the trial court’s docket control order and mediation. Taihu then

filed an objection to mediation and a motion to dismiss the suit.

      Taihu asserts that although it filed an answer and affirmatively defended

against the underlying lawsuit, it did not do so through an attorney licensed in

Texas. It argues thus that none of its actions constituted an appearance in the

lawsuit. “Generally a corporation may be represented only by a licensed attorney.”

Kunstoplast of Am., Inc. v. Formosa Plastics Corp., USA., 937 S.W.2d 455, 456

(Tex. 1996); Simmons, Jannace & Staff, LLP. v. Buzbee Law Firm, 324 S.W.3d

833, 833 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Corona v. Pilgrim’s

Pride Corp., 245 S.W.3d 75, 79 (Tex. App.—Texarkana 2008, pet. denied) (“[A]

nonattorney may not appear pro se on behalf of a corporation.”); Dell Dev. Corp. v.

Best Indus. Uniform Supply, 743 S.W.2d 302, 303 (Tex. App.—Houston [14th

Dist.] 1987, writ denied).

      Some state courts espouse the view that any action taken by a non-attorney

on behalf of a corporation is incurable, constitutes a “nullity,” and renders the

proceedings void ab initio. See Wetzel v. Schlenvogt, 705 N.W.2d 836, 840–41

(N.D. 2005) (holding “all documents” signed by non-attorney on behalf of



                                         17
corporation “void from the beginning”); CLD Const., Inc. v. City of San Ramon,

120 Cal.App.4th 1141, 1149–50 (1st Dist. 2004).

      The majority of jurisdictions, however, hold that an action taken by a non-

attorney on behalf of a corporation presents a curable defect and the corporation is

to be granted a reasonable time to obtain counsel and make any necessary

amendments. Save Our Creeks v. City of Brooklyn Park, 699 N.W.2d 307, 310

(Minn. 2005) (“The majority of jurisdictions that have considered the matter have

followed the curable defect approach.”); Downtown Disposal Servs., Inc. v. City of

Chicago, 979 N.E.2d 50, 54–56 (Ill. 2012) (concluding “a per se nullity rule is

unreasonable” and rejecting rule that “any act of legal representation undertaken by

a non-attorney on behalf of a corporation renders the proceedings void ab initio”).

These courts “liberally construe the rules of civil procedure and emphasize

substance over form to advance the policy favoring resolution of cases on the

merits.” See City of Chicago, 979 N.E.2d at 55.

      In Kunstoplast, the Texas Supreme Court, which has adopted the majority’s

“curable defect” approach, emphasized its “policy to construe rules reasonably but

liberally, when possible, so that the right to appeal is not lost by creating a

requirement not absolutely necessary from the literal words of the rule.” 937

S.W.2d at 456. Texas law favors liberal amendment of pleadings and affording

litigants the opportunity to cure defects in pleadings whenever possible. KSNG



                                        18
Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex. App.—Dallas 2003, no

pet.).

         A non-attorney’s action taken on behalf of a corporation may be given effect

if the act constitutes a “specific ministerial task.” Kunstoplast, 937 S.W.2d at 456;

see also Serrano v. Pellicano Park, L.L.C., No. 08-12-00101-CV, 2014 WL

1266807, at *3–4 (Tex. App.—El Paso Mar. 28, 2014, pet. dism’d w.o.j.) (“A non-

attorney is permitted to file documents on behalf of [a] corporation[] for limited

purposes, but is still prohibited from representing the corporation in court

proceedings.”). For instance, a non-attorney may perfect an appeal on behalf of a

corporation. Kunstoplast, 937 S.W.2d at 456.

         Similarly, a non-attorney’s answer on behalf of a corporation, although

defective, prevents the trial court from granting a default judgment against the

corporation. See Rabb Int’l, Inc. v. SHL Thai Food Serv., LLC, 346 S.W.3d 208,

209–10 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Guadalupe Econ. Servs.

Corp. v. Dehoyos, 183 S.W.3d 712, 715 (Tex. App.—Austin 2005, no pet.); see

also Kelly v. Hinson, 387 S.W.3d 906, 912 (Tex. App.—Fort Worth 2012, pet.

denied); Home Savings of Am. FSB v. Harris Cnty. Water Control and

Improvement Dist., 928 S.W.2d 217, 219 (Tex. App.—Houston [14th Dist.] 1996,

no writ) (“Texas appellate courts have been reluctant to uphold default judgments

where some response is found in the record, even if the response is in the form of a



                                          19
letter.”); R.T.A. Int’l v. Cano, 915 S.W.2d 149, 150–51 (Tex. App.—Corpus

Christi 1996, writ denied) (corporate representative’s response letter to petition

sufficient to defeat default judgment); Santex Roofing & Sheet Metal, Inc. v.

Venture Steel, Inc., 737 S.W.2d 55, 56–57 (Tex. App.—San Antonio 1987, no

writ) (concluding letter to trial court signed by corporate officer constituted

answer).

      After answering, however, a non-attorney cannot continue to represent the

corporation. See L’Arte De La Mode, Inc. v. Nieman Marcus Grp., 395 S.W.3d

291, 295 (Tex. App.—Dallas 2013, no pet.) (explaining non-attorney corporate

representative could not object to evidence, cross-examine witnesses, or present

argument). In Custom-Crete, Inc. v. K–Bar Services, Inc., the court concluded that

a letter filed by a corporation’s vice president, although defective, constituted an

answer. 82 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.). When the

vice-president later appeared at trial and announced ready to proceed, however, the

trial court refused to allow him to participate and rendered a post-answer default.

Id. at 659. The appellate court reversed, holding that the corporation was entitled

to a new trial because the vice-president’s belief that he could represent the

corporation negated a finding of intentional conduct or conscious indifference. Id.

at 660; see also City of Chicago, 979 N.E.2d at 57 (noting courts may consider

circumstances, such as “whether the non-attorney’s conduct [was] done without



                                        20
knowledge that the action was improper, whether the corporation acted diligently

in correcting the mistake by obtaining counsel, whether the non-attorney’s

participation is minimal, and whether the participation results in prejudice to the

other party”).

      In the underlying case, non-attorney chairman Tizhong’s answer on behalf

of Taihu constituted an answer, with a deficiency subject to cure. See Rabb Int’l,

Inc., 346 S.W.3d at 210; see also Pagel & Sons, Inc. v. Gems One Corp., No. 03-

09-00138-CV, 2009 WL 3326111, *2–3 (Tex. App.—Austin Oct. 15, 2009, no

pet.) (mem. op.). And “[t]he rule is well settled that ‘a defendant who has entered

an appearance . . . is before the court for all purposes.’” Hous. Crushed Concrete,

Inc., 879 S.W.2d at 260 (quoting Warner v. Irving Lumber Co., 584 S.W.2d 893,

894 (Tex. Civ. App.—Dallas 1979, no writ)) (emphasis added); see Ibrahim v.

Young, 253 S.W.3d 790, 801–02 (Tex. App.—Eastland 2008, pet. denied)

(concluding if document constitutes answer for any purpose, it constitutes answer

for all purposes); West v. City Nat’l Bank of Birmingham, 597 S.W.2d 461, 464

(Tex. Civ. App.—Beaumont 1980, no writ) (noting defendant who enters

appearance by filing answer before court for all purposes and, by filing answer,

submits to jurisdiction of court, even if not amenable to process at time of service).

But see Hock v. Salaices, 982 S.W.2d 591, 594–95 (Tex. App.—San Antonio




                                         21
1998, no pet.) (limiting liberal construction of “answer” to default judgment

settings).

       The trial court gave Taihu an opportunity to cure the defect by retaining

counsel. And Taihu expressly refused, asserting that it was “unfair” to require it to

“retain an attorney for York’s frivolous claim.” After the trial court concluded that

Taihu had “wholly failed to comply” with its order to retain counsel, it rendered a

default judgment against Taihu. See, e.g., Nat’l Fitness Co. v. ProCore Labs, LLC,

No. 3:11-CV-1352-L, 2013 WL 4546860, at *1 (N.D. Tex. Aug. 28, 2013) (noting

trial court properly rendered default judgment against defendant after failure to

comply with trial court’s order to retain counsel to represent limited liability

company). “A corporation that chooses to be represented in court by a non-

attorney ‘does so at its peril.’” Ard v. Carrington, No. 01-13-00067-CV, 2014 WL

1267004, at *3 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no pet.) (mem.

op.); see Rabb Int’l, Inc., 346 S.W.3d at 211; Dell Dev. Corp., 743 S.W.2d at 303

(noting “where a corporation chooses to represent itself through a non-attorney

officer, it does so at its own risk”).

       Taihu asserts that “a party [who] becomes aware of the proceedings without

proper service of process has ‘no duty to act, diligently or otherwise.’” In support

of its assertion, Taihu relies on Ross v. National Center for the Employment of the

Disabled, 197 S.W.3d 795, 797–98 (Tex. 2006). In Ross, however, the court



                                         22
explained that although those not properly served have no duty to act, “diligence is

required from properly served parties or those who have appeared.” Id. at 798

(emphasis added).

      We conclude that Taihu filed an answer and therefore made an appearance

in the underlying suit. 6 Thus, Taihu did have notice of the underlying lawsuit and

was not relieved of conclusively establishing each of the bill-of-review elements.

See Mabon, 369 S.W.3d at 812 (holding when bill-of-review plaintiff establishes

“due process violation for no service or notice, it is relieved of proving the first

two elements” and third element is conclusively established); Felt v. Comerica

Bank, 401 S.W.3d 802, 807 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(concluding filing answer negated defendant’s due process argument of no notice

of lawsuit). Accordingly, we hold that the trial court did not err in denying Taihu

summary judgment in its bill-of-review action. Moreover, because Taihu did not




6
      When it first received notice of the underlying lawsuit, Taihu had several options:
      (1) it could have done nothing, if it was confident that service was defective, and
      presented its issue on appeal after default judgment was entered; (2) it could have
      objected to the manner of service by a motion to quash, thus invoking the court’s
      jurisdiction; (3) it could have entered a special appearance under rule 120a, thus
      avoiding a general appearance if it was not amenable to service of process; or (4)
      it could have simply answered the petition and defended on the merits. Taihu
      chose to answer, and it cannot now, after voluntarily appearing, avoid the
      consequences of its choice. See Pierce, 750 S.W.2d at 814 (considering defendant
      foreign corporation allegedly not served in accordance with Hague Service
      Convention).


                                          23
timely assert any of the bill-of-review elements, we hold that the trial court did not

err in granting York summary judgment in Taihu’s bill-of-review action.

      We overrule Taihu’s first and second issues.

Amended Bill-of-Review Petition

      In its third and fourth issues, Taihu argues alternatively that the trial court

erred in granting York summary judgment because it did not consider its

“alternative grounds,” raised in its amended bill-of-review petition, that (1) if

Taihu appeared in the underlying lawsuit, the default judgment entered against it

constituted a “post-answer” default judgment or a discovery sanction without the

consideration of lesser sanctions and (2) it could establish the “traditional” bill-of-

review elements.

      Because we have concluded that Taihu did not conclusively establish that it

had no notice of the lawsuit, it was incumbent upon Taihu to plead and prove “(1)

a meritorious defense to the underlying cause of action, (2) which [it 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 of [its] own

part.” See Mabon, 369 S.W.3d at 812. After the summary-judgment hearing,

Taihu amended its petition to “alternatively assert” these bill-of-review elements.

It also asserted that the default judgment in the underlying lawsuit constituted a

discovery sanction without the consideration of lesser sanctions.



                                          24
      Parties may amend their pleadings, provided

      that any pleadings, responses or pleas offered for filing within seven
      days of the date of trial or thereafter, or after such time as may be
      ordered by the judge under Rule 166, shall be filed only after leave of
      the judge is obtained, which leave shall be granted by the judge unless
      there is a showing that such filing will operate as a surprise to the
      opposite party.

TEX. R. CIV. P. 63. A summary-judgment hearing is a trial for purposes of rule 63.

Mensa-Wilmot v. Smith Intern., Inc., 312 S.W.3d 771, 778 (Tex. App.—Houston

[1st Dist.] 2009, no pet.). “Once the hearing date for a motion for summary

judgment has passed, the movant must secure a written order granting leave in

order to file an amended pleading.” Austin v. Countrywide Homes Loans, 261

S.W.3d 68, 75 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). “Unless the

record shows that the trial court granted leave to [amend], the appellate court will

assume leave was denied.” Id. at 76. We do not consider an amended pleading

filed after a summary-judgment hearing without the trial court’s permission. See

Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 745 (Tex. App.—Houston [14th

Dist.] 1995, no writ). And the summary-judgment movant need not amend or

supplement its motion to address such an amended pleading. Id. A trial court

considers the pleadings and summary-judgment evidence “on file at the time of the

hearing, or filed thereafter and before judgment with permission of the court.”

TEX. R. CIV. P. 166a(c).




                                        25
      Here, after the trial court held the summary-judgment hearing, Taihu filed its

amended petition for bill of review, asserting the so-called “traditional” bill-of-

review elements and that the trial court, before entering its default judgment in the

underlying lawsuit, failed to hold an evidentiary hearing and consider lesser

sanctions. However, nothing in the record indicates that the trial court granted

Taihu leave or Taihu sought leave to amend its petition. Accordingly, we may not

consider the “alternative grounds” that Taihu presented in its amended petition.

See Taylor, 905 S.W.2d at 745.

      We overrule Taihu’s third and fourth issues.




                                         26
                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.




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