special appearance hearing in Texas

2015Before the special appearance hearing, Marchand objected to the hearing going forward because of BMCB's and BMCS's All Citations alleged failure to cooperate in discovery and requested that the trial court continue the hearing so that he could complete 83 S.W.3d 789 , 45 Tex. Sup. Ct. J. 930 © 2015 Thomson Reuters.

2015BMC Software, 83 S.W.3d at 800–01 (holding that the trial court did not abuse discretion in denying the continuance before the special appearance hearing when the movant had ample time to conduct, and did conduct, discovery). 28 C.

2025See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 , 791–92, 798 (Tex. 2005) (stating special appearance involves consideration of jurisdiction only, not merits or liability). 34 who approached whom first—Velawcity or MMA—about entering into the Contracts, and the case involves tort claims by Louisiana residents against Velawcity.

2021See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 , 783–84 (Tex. 2005) (declining to presume the special appearance hearing was evidentiary when the parties conceded that it was not). –5– would support the exercise of general jurisdiction over” Saidara and there was no specific jurisdiction.5 This interlocutory appeal followed.

2021Dental Ass’n, 124 S.W.3d 856 , 860 n.1 (Tex. App.—Austin 2003, no pet.); see also Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc., 31 S.W.3d 742, 747 (Tex. App.—Corpus Christi 2000, no pet.) (“The meaning of the term ‘pleadings’ must be limited at least so as to exclude matters not filed prior to the special appearance hearing.”).

2017Aero, Inc., 31 S.W.3d 742, 747 (Tex. App.-Corpus Christi 2000, no pet.) (“The meaning of the term ‘pleadings’ [in Rule 120a(3)] must be limited at least so as to exclude matters not filed prior to the special appearance hearing.”).

2024Co. v. Grupo Mex., No. 13-12-00347-CV, 2013 WL 1683641 , at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 18, 2013, no pet.) (mem. op.) (discussing trial court’s consideration of “a motion for continuance of the special appearance hearing in light of the fact that Grupo was allegedly refusing to provide discovery related to the jurisdiction issue”); In re Guardianship of Cardenas, No. 13-09-00560-CV, 2010 WL 2543650 , at *7 (Tex. App.—Corpus Christi–Edinburg June 24, 2010, no pet.) (mem. op.) (considering whether trial court “abused its discretion in denying [the appellant’s] motion for continuan

2016In Barron, the appellate court held that the trial court abused its discretion in denying the plaintiff’s motion for continuance of a special appearance hearing to permit him to conduct further discovery on the issue of personal jurisdiction where the special appearance hearing was held two months after the filing of the special appearance, and the plaintiff sought information which, if it existed and was discovered, could support his allegations of specific personal jurisdiction over the defendants. 190 S.W.3d at 847-51 .

2010See Dawson-Austin v. Austin, 968 S.W.2d 319, 321, 323 (Tex.1998) (stating that party who had filed pro se instrument including special appearance, motion to quash service of citation, plea to jurisdiction of court, plea in abatement, and, subject to these, original answer, and who sought continuance to take necessary discovery on special appearance and on motion to quash was “entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash, pr

2010See Dawson-Austin v. Austin , 968 S.W.2d 319, 321, 323 (Tex. 1998) (stating that party who had filed pro se instrument including special appearance, motion to quash service of citation, plea to jurisdiction of court, plea in abatement, and, subject to these, original answer, and who sought continuance to take necessary discovery on special appearance and on motion to quash was “entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash,

2004In the case cited by the appellants, Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982), the court held that evidence in the special appearance hearing that the defendants were non-residents was sufficient to meet their burden, in light of the plaintiffs' failure to allege any act in Texas by the individuals in question.

2004In the case cited by the appellants, Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982), the court held that evidence in the special appearance hearing that the defendants were non-residents was sufficient to meet their burden, in light of the plaintiffs’ failure to allege any act in Texas by the individuals in question.

2003Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 664 (Tex. 1987); Kawasaki Steel Corp., 699 S.W.2d at 203 .

2003Zac Smith & Co. v. Otis Elevator Co. , 734 S.W.2d 662, 664 (Tex. 1987); Kawasaki Steel Corp. , 699 S.W.2d at 203 .

2024Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004) (discussing the due-order-of-pleading rule); McCoy v. Platinum Power Moves, Inc., No. 01- 17-00653-CV, 2018 WL 3581021 , at *3 (Tex. App.—Houston [1st Dist.] July 26, 5 filing their special appearance and the special-appearance hearing left the Cimianos with no opportunity to conduct jurisdictional discovery.

2021For that reason, we will not assume that the trial court did not base its denial of the special appearance on waiver simply because no party raised the issue. 8 In its opinion, the Texas Supreme Court noted that “the court of appeals affirmed the trial court’s order, but on grounds not raised or argued by the parties.” Exito Elecs., 142 S.W.3d at 304 .

2024See Windsor v. Round, 591 S.W.3d 654 , 669–70 (Tex. App.—Waco 2019, pet. denied) (citing In re Stern, 321 S.W.3d 828, 840 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (op. on reh’g)) (stating that Rule 120a(3) “does not authorize postponement of a special appearance hearing to allow a party to obtain discovery before the trial court’s ruling on the special appearance that is unnecessary or irrelevant to the establishment of jurisdictional facts” and concluding that a continuance was unnecessary because nonresident defendant filed an affidavit addressing jurisdictional discovery plain

2015This Court has recognized that “Rule 120a(3) does not authorize postponement of a special appearance hearing to allow a party to obtain discovery prior to the court’s ruling on the special appearance that is unnecessary or irrelevant to the establishment of jurisdictional facts.” In re Stern, 321 S.W.3d 828 , 839–40 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (holding that that a non-resident defendant’s emails to his alleged co-conspirators are not relevant to the establishment of Texas courts’ jurisdiction over the defendant and cannot be essential to justifying the opposition to

2015BMC Software Belgium, N.V., 83 S.W.3d at 793 (Tex. 2002) (noting that at the special appearance hearing, the nonresident challenging the court’s assertion of personal jurisdiction must negate all jurisdictional bases); Tempest, 150 S.W.3d at 867 ; Kawasaki Steel Corp., 699 S.W.2d at 203 . 37 VIII.

2012Id. (citing Texas Commerce Bank Nat’l Ass’n v. Interpol 1980 Ltd.

2018Co. v. Bell, 549 S.W.3d 550 , 2 The following recitation of facts is based on the evidence admitted at the special- appearance hearing, including testimony by Qatato, an affidavit by Eric Dressing, the Vice President of Green Chevrolet, and the sales contract for the Camaro. 2 558 (Tex. 2018) (citing Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013)).

2015This Court has recognized that “Rule 120a(3) does not authorize postponement of a special appearance hearing to allow a party to obtain discovery prior to the court’s ruling on the special appearance that is unnecessary or irrelevant to the establishment of jurisdictional facts.” In re Stern, 321 S.W.3d 828 , 839–40 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (holding that that a non-resident defendant’s emails to his alleged co-conspirators are not relevant to the establishment of Texas courts’ jurisdiction over the defendant and cannot be essential to justifying the opposition to

2023Id.; see IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App.—Eastland 2009, no pet.) (holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); Washington DC Party Shuttle, LLC v. IGuide Tours LLC, 406 S.W.3d 723, 739 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc., No. 01–08–00962–CV

2014See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex.App.-Eastland 2009, no pet.) (holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); see also Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 739 (Tex.App.-Houston [14th Dist.] 2013, pet. filed) (holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc., No. 01-08-00962-CV, 2

2011Gonzalez v. AAG Las Vegas, L.L.C., 317 S.W.3d 278, 282 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (discussing scope of review); Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 727 (Tex. App.—Corpus Christi 2006, no pet.) (discussing standard of review for special appearance decided on documentary evidence); Hotel Partners, 847 S.W.2d at 632 (rejecting de novo review of evidence when special appearance decided on documentary evidence alone).

2005Id. ; Mort Keshin & Co. v. Houston Chronicle Publ’g Co. , 992 S.W.2d 642, 645 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Hotel Partners v. KPMG Peat Marwick , 847 S.W.2d 630, 632 (Tex. App.—Dallas 1993, writ denied).

2023Id.; see IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App.—Eastland 2009, no pet.) (holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); Washington DC Party Shuttle, LLC v. IGuide Tours LLC, 406 S.W.3d 723, 739 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc., No. 01–08–00962–CV

2021See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App.—Eastland 2009, no pet.) (concluding that the trial court abused its discretion in abating a special appearance hearing in favor of merits-based discovery).

2021See Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720 , 726–27 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied).

2011See Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 726-27 (Tex.App.-Corpus Christi 2006, pet. denied) (expressing similar concerns). *8 The parties filed supplemental briefs addressing our standard-of-review concerns, and based on the supplemental briefing, we conclude that although the special appearance hearing was nonevidentiary and despite our concerns, we must nonetheless defer to all implied findings of fact that support the trial court’s grant of Appel-lees’ special appearances so long as legally and factually sufficient evidence — i.e., factual statements set forth in the af

2008P. 251 (providing that a motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law); Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986) (explaining that the decision to grant or deny a motion for continuance is within the trial court's sound discretion); see also BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 801 (Tex. 2002) ("Based on the record, we cannot conclude that the trial court abused its discretion in overruling Marchand's objection to the special appearance hearing and denying his motion

2008P. 251 (providing that a motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (explaining that the decision to grant or deny a motion for continuance is within the trial court's sound discretion); see also BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002) ("Based on the record, we cannot conclude that the trial court abused its discretion in overruling Marchand's objection to the special appearance hearing and denying his motion f

2014Horowitz v. Berger, 377 S.W.3d 115, 123 (Tex.App.-Houston [14th Dist.] 2012, no pet.); Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Case v. Grammar, 31 S.W.3d 304, 311 (Tex.App.-San Antonio 2000, no pet.), disapproved on other grounds by BMC Software, 83 S.W.3d at 789 .

2008See id.

2020See Kelly, 301 S.W.3d at 659-60 (“Regarding the fraud claim, [plaintiff] did allege several fraudulent acts . . . , but it did not allege that any fraudulent acts occurred in Texas.”); Baldwin v. Household Int’l, Inc., 36 S.W.3d 273 , 277–78 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding allegations were insufficient to support specific jurisdiction when petition alleged fraudulent representations but did not allege where or when the misrepresentations occurred); cf. Touradji, 316 S.W.3d at 27–28 (holding allegations that expressly connected wrongful acts with Texas were sufficient).6

2015Interior Constr., Inc., 301 S.W.3d 653 , 658–59 (Tex. 2010).

2017Id. at 588 .

2015See id.

2015RR 7:3-5, 10: 7-9; 25: 2-12.41 Appellant, however, does 37 Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009). 38 Id. at 336 . 39 Id.at 336-37. 40 Id.at 339 (quoting Burger King, 471 U.S. at 476 ) (emphasis added). 41 See Appellant’s Brief at 4, 8, and 9. 14 not cite a single legal authority in support of this wholly conclusory argument.

2015See Burger King, 471 U.S. at 477 , 105 S. Ct. at 2184–85 (establishing that it is the defendant’s burden to present a compelling argument defeating jurisdiction on fair-play and substantial-justice grounds); Spir Star, 310 S.W.3d at 878–79 (same); Guardian Royal, 815 S.W.2d at 231 (noting that only in rare cases will jurisdiction not comport with fair play and substantial justice once minimum contacts exist); D.H.

2015“If the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has committed any act in Texas, the defendant can satisfy [his] burden of negating all bases of personal jurisdiction by presenting evidence that [he] is a nonresident at the special appearance hearing.” Perna v. Hogan, 162 S.W.3d 648 , 652–53 (Tex. App.—Houston [14th Dist.] 2005, no pet.); accord Kelly v. Gen.

2015P. 63, thereby allowing jurisdiction to be decided based on evidence rather than allegations, as it should be. 5 See also Perna v. Hogan, 162 S.W.3d 648, 653 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (“If the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has committed any act in Texas, the defendant can satisfy its burden of negating all bases of personal jurisdiction by presenting evidence that it is a nonresident at the special appearance hearing.”); Frank A. Smith Sales, Inc. v. Atl.

2015See Burger King, 471 U.S. at 477 , 105 S. Ct. at 2184–85 (establishing that it is the defendant’s burden to present a compelling argument defeating jurisdiction on fair-play and substantial-justice grounds); Spir Star, 310 S.W.3d at 878–79 (same); Guardian Royal, 815 S.W.2d at 231 (noting that only in rare cases will jurisdiction not comport with fair play and substantial justice once minimum contacts exist); D.H.

2015See Amend v. Watson, 333 S.W.3d 625 , 628 n.2 (Tex. App.—Dallas 2009, no pet.). 14 815 S.W.2d 223, 226 (Tex. 1991).

2023Id.; see IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex. App.—Eastland 2009, no pet.) (holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); Washington DC Party Shuttle, LLC v. IGuide Tours LLC, 406 S.W.3d 723, 739 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc., No. 01–08–00962–CV

2014See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903 (Tex.App.-Eastland 2009, no pet.) (holding trial court abused its discretion by granting motion to compel and abating special appearance hearing to allow plaintiff to conduct additional discovery because plaintiff did not follow procedures for continuance under Rule 120a(3)); see also Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 739 (Tex.App.-Houston [14th Dist.] 2013, pet. filed) (holding plaintiff did not follow procedures under Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc., No. 01-08-00962-CV, 2

2022Seeberger now relies almost exclusively on evidence in the record supplied by BNSF. 8 137 S. Ct. 1773, 1780 (2017) (alteration in original) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

2021However, because the exercise of personal jurisdiction over a nonresident implicates due process concerns, the Texas long-arm statute reaches only “as far as the federal constitutional requirements of due process will permit.” PHC-Minden, 235 S.W.3d at 166 (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)); see Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915, 918 (2011) (“A state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is 9 therefore subject to review for compatibility with the Fourteenth Amendment’s Due Proce

2019And, in any event, the record before us does not meet the “high bar” required for general jurisdiction, Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016), as EnerQuest is not incorporated in Texas, does not have a principal place of business in Texas, and does not maintain any offices in any state other than Oklahoma.

2019And, in any event, the record before us does not meet the “high bar” required for general jurisdiction, Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016), as EnerQuest is not incorporated in Texas, does not have a principal place of business in Texas, and does not maintain any offices in any state other than Oklahoma.

2021However, because the exercise of personal jurisdiction over a nonresident implicates due process concerns, the Texas long-arm statute reaches only “as far as the federal constitutional requirements of due process will permit.” PHC-Minden, 235 S.W.3d at 166 (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)); see Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915, 918 (2011) (“A state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is 9 therefore subject to review for compatibility with the Fourteenth Amendment’s Due Proce

1990The Defendant, Sam Proler, did not have sufficient contacts with the State of Texas, such that the maintenance of a suit would not offend traditional notions of fair play and substantial justice, International Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945), and therefore it would be a violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States for this Court to assert in personam jurisdiction over the Defendant, a nonresident of the State of Texas, in the suit made the basis of this cause of action. 4.

2019See Leonard v. Salinas Concrete, LP, 470 S.W.3d 178, 190 (Tex. App.—Dallas 2015, no pet.) (“[E]ven in instances where a contract was signed in another state, an out-of-state company with no physical ties to Texas still has minimum contacts with Texas when it is clear the company purposefully directed its activities toward Texas.” (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 340 (Tex. 2009))).

2015RR 7:3-5, 10: 7-9; 25: 2-12.41 Appellant, however, does 37 Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009). 38 Id. at 336 . 39 Id.at 336-37. 40 Id.at 339 (quoting Burger King, 471 U.S. at 476 ) (emphasis added). 41 See Appellant’s Brief at 4, 8, and 9. 14 not cite a single legal authority in support of this wholly conclusory argument.