law-special-appearance-TRCP-120 | personal in personam jurisdiction over out-of-state defendant |
in personam jurisdiction | special appearance caselaw |
RULE 120a. SPECIAL APPEARANCE
1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be
made by any party either in person or by attorney for the purpose of objecting to the
jurisdiction of the court over the person or property of the defendant on the ground that such
party or property is not amenable to process issued by the courts of this State. A special
appearance may be made as to an entire proceeding or as to any severable claim involved
therein. Such special appearance shall be made by sworn motion filed prior to motion to
transfer venue or any other plea, pleading or motion; provided however, that a motion to
transfer venue and any other plea, pleading, or motion may be contained in the same
instrument or filed subsequent thereto without waiver of such special appearance; and may
be amended to cure defects. The issuance of process for witnesses, the taking of depositions,
the serving of requests for admissions, and the use of discovery processes, shall not
constitute a waiver of such special appearance. Every appearance, prior to judgment, not in
compliance with this rule is a general appearance.
2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined
before a motion to transfer venue or any other plea or pleading may be heard. No
determination of any issue of fact in connection with the objection to jurisdiction is a
determination of the merits of the case or any aspect thereof.
3. The court shall determine the special appearance on the basis of the pleadings, any
stipulations made by and between the parties, such affidavits and attachments as may be filed
by the parties, the results of discovery processes, and any oral testimony. The affidavits, if
any, shall be served at least seven days before the hearing, shall be made on personal
knowledge, shall set forth specific facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify.
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons
stated present by affidavit facts essential to justify his opposition, the court may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.
Should it appear to the satisfaction of the court at any time that any of such affidavits are
presented in violation of Rule 13, the court shall impose sanctions in accordance with that
4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the
objection to jurisdiction is overruled, the objecting party may thereafter appear generally for
any purpose. Any such special appearance or such general appearance shall not be deemed
a waiver of the objection to jurisdiction when the objecting party or subject matter is not
amenable to process issued by the courts of this State.
(CHALLENGING PERSONAL JURISDICTION OVER DEFENDANT)
Special appearances are governed by Rule 120a of the Texas Rules of Civil Procedure,
which provides that "a special appearance may be made by any party . . . for the
purpose of objecting to the jurisdiction of the court over the person or property of the
defendant on the ground that such party or property is not amenable to process by the
courts of this State." Tex. R. Civ. P. 120a. The existence of personal jurisdiction is a question of law
reviewed de novo by this Court. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
However, this question must sometimes be preceded by resolving underlying factual disputes. Id. When, as
here, the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in
favor of its ruling. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
Gonzalez v. AAG-Law Vegas, LLC (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Op. on Rehearing by Davie L.
Wilson) (accelerated, interlocutory appeal challenging denial of special appearance, minimum contacts analysis)
(court of appeals renders judgment sustaining the special appearance) (no personal jurisdiction)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Judge Davie L. Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-08-00377-CV David M. Gonzales v. AAG-Las Vegas, L.L.C., Ascent Automotive Group, L.P., KW#1
Acquisition Company, L.L.C.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
Rule 120a of the Texas Rules of Civil Procedure provides that a "special appearance shall be made by sworn
motion . . . and may be amended to cure defects." Tex. R. Civ. P. 120a(1). A special appearance that is
unsworn or unverified is defective; however "an amendment that adds a verification cures the special
appearance." Dawson-Austin v. Austin, 896 S.W.2d 319, 322 (Tex. 1998). The amended special appearance
may be filed anytime before a general appearance is made. Id. Rule 120a also provides that affidavits
concerning the special appearance "shall be served at least seven days before the hearing." Tex. R. Civ. P.
Here, Cobb filed an amended special appearance to correct the defect of his timely filed special appearance.
The firm does not contend that the amended special appearance is defective. Cobb's amended special
appearance cured the defective verification of his original special appearance. See Dawson-Austin, 896 S.W.2d
at 322. The firm filed a motion for new trial for reconsideration of the special appearance ruling in favor of Cobb.
One ground asserted in the motion was the timeliness of the filing of the amended special appearance. At the
time the trial court granted a new trial in favor of the firm, the amended special appearance and affidavit had
been on file with the district court for about six weeks, a period far beyond the seven days required by rule. See
Tex. R. Civ. P. 120a(3). We hold the amended special appearance and affidavit were properly before the trial
We sustain Cobb's first issue. Having sustained Cobb's first and second issues, we need not address his third
issue concerning the validity of the forum selection clause under Louisiana law.
Cobbs v. Stern, Miller & Higdon (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
(denial of special appearance reversed in interlocutory appeal, attorney-client disputes and litigation,
void or voidable contract, solicitation of clients contingency fee agreement as against public policy, affidavit
testimony by interested witness, interlocutory appeal-special appearance)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00112-CV John L. Cobbs v. Stern, Miller & Higdon
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Michael Engelhart
Avshalomov v. Property Improvements, Inc. (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam)
(trial court did not err in denying appellant’s special appearance)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00305-CV Shally Avshalomov, Individually and as the Personal Representative of the Estate of Josua
Avshalomov v. Property Improvements, Inc. and Avishai Ron
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart
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