Thursday, December 15, 2011

Personal jurisdiction challenge can be waived even with special appearance on file

In a protective order case against a resident of another state, Houston's First Court of Appeals today makes clear that it is not enough to just file a special appearance under the relevant rule to contest personal jurisdiction. The plea must also be heard and ruled upon. If the nonresident defendant shows up for court and participates with the special appearance merely on file, he has made a general appearance and waived the personal jurisdiction issue. Unlike subject-matter jurisdiction, in-personam jurisdiction can be waived.
A [nonresident / foreign / out-of-state Defendant] may challenge personal jurisdiction by filing a special appearance. TEX. R. CIV. P. 120a; see Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985). But a special appearance is waived by participation in the trial. See TEX. R. CIV. P. 120a(1) (“Every appearance, prior to judgment, not in compliance with this rule is a general appearance.”); Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 875 (Tex. App.—Texarkana 2008, no pet.); see also Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (“[A] party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.”).
“A specially appearing defendant may not go to trial on the merits of the case without first obtaining a ruling on his special appearance.” Milacron, 262 S.W.3d at 875. “For this reason, Rule 120a requires that the specially appearing defendant timely request a hearing, specifically bring that request to the trial court’s attention, and secure a ruling on the preliminary question of personal jurisdiction.” Id. at 875–76 (citing TEX. R. CIV. P. 120a).

[Respondent] filed a special appearance, but the record does not reflect any ruling on the special appearance.  [Respondent] contends that the lack of a record showing the trial court’s denial of his special appearance is not fatal to his complaint on appeal, relying on Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782–84 (Tex. 2005). That case is inapposite. There was no issue in Michiana about whether the trial court actually had denied the special appearance, see Michiana, 168 S.W.3d at 781, and the error-preservation issue addressed by the Texas Supreme Court related to the failure to obtain a record of the non-evidentiary special-appearance hearing, see id. at 781–84. Thus, because the record does not reflect that [Respondent] obtained a ruling on his special appearance before he appeared and testified at trial, his jurisdictional objection is waived. See TEX. R. CIV. P. 120a; Milacron, 262 S.W.3d at 876. We therefore hold that he has waived his first issue on appeal.

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