Opinion
NO. 12-16-00303-CV
06-07-2017
VERTEX INDUSTRIAL, INC., APPELLANT v. ALLSTATE FIRE & CASUALTY INSURANCE COMPANY AS SUBROGEE OF DOUG AND JEANE EVANS, APPELLEE
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Allstate Fire & Casualty Insurance Company, as subrogee of Doug and Jeane Evans, sued Vertex Industrial, Inc. for design and manufacturing defects. In four issues, Vertex appeals the trial court's order denying its special appearance and motion to dismiss. We affirm.
BACKGROUND
On March 24, 2016, Allstate sued Vertex after a water filtration system it manufactures leaked and caused water damage to the Evans' home. Allstate served Vertex, a foreign corporation, by its registered agent in California through the Texas Secretary of State. Thereafter, Allstate moved for a default judgment, and on May 16, the court entered a final default judgment against Vertex.
On May 31, Vertex filed an agreed motion for new trial asking the court to vacate the final default judgment. The court granted the motion and entered an order vacating the judgment on June 6. On June 29, Vertex filed a special appearance and motion to dismiss for want of personal jurisdiction. Allstate responded that Vertex had waived any jurisdictional argument pursuant to the due order of pleadings rule and, alternatively, that Vertex was subject to personal jurisdiction under the Texas long arm statute. The court denied Vertex's special appearance and motion to dismiss, without signing findings of fact and conclusions of law. This appeal followed.
MOTION TO DISMISS
In issue one, Vertex argues the agreed motion for new trial did not constitute a general appearance and, therefore, it has not waived its personal jurisdiction complaint. In support of this argument, Vertex contends that the agreed motion for new trial was a rule 11 agreement that does not meet the requirements of a general appearance. In issue two, Vertex maintains that, because the motion for new trial was not filed prior to judgment, it cannot be a general appearance. Standard of Review and Applicable Law
Texas law permits interlocutory appeal of an order denying a defendant's special appearance. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2016). Whether a court has personal jurisdiction over a defendant is a question of law to be reviewed de novo. BMC Software Belgium v. Marchand , 83 S.W. 3d 789, 794 (Tex. 2002). In resolving this question of law, a trial court must frequently resolve questions of fact. Id. When the trial court, as in this case, does not make findings of fact, reviewing courts should presume that the trial court resolved all factual disputes in favor of its judgment. Am. Type Culture Collection , Inc. v. Coleman ,83 S.W.3d 801, 806 (Tex. 2002).
The Texas Rules of Civil Procedure set out the requirements for making a special appearance to challenge personal jurisdiction. TEX. R. CIV. P. 120a. In pertinent part, the rule reads as follows:
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...Every appearance, prior to judgment, not in compliance with this is a general appearance.Unlike subject matter jurisdiction, which concerns a court's jurisdiction to hear a case and cannot be waived, personal jurisdiction concerns a court's jurisdiction over a particular party and can be waived. Trenz v. Peter Paul Petroleum Co., 388 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A party waives personal jurisdiction by making a general appearance in the case or by failing to timely object to the court's jurisdiction. Id.; TEX. R. CIV. P. 120a.
A party makes a general appearance when he (1) invokes the judgment of the court on any questions other than the court's jurisdiction, (2) recognizes by his acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito Electronics Co., Ltd. v. Trejo , 142 S.W.3d 302, 304 (Tex. 2004). Analysis
On appeal, Allstate argues that Vertex made a general appearance in this lawsuit, waiving its challenge to personal jurisdiction, by filing the agreed motion for new trial. Allstate cites to several cases that hold a motion for new trial is a general appearance and waives a challenge to personal jurisdiction. See Liberty Enter ., Inc. v. Moore Transp. Co., Inc., 690 S.W.2d 570, 571 (Tex. 1985) (defendant made a general appearance, thereby waiving a special appearance, when it filed a motion for new trial and special appearance stating that it was ready to try the case and agreeing to order reinstating the cause of action from a default judgment); see also Celeste Grynberg & Jack J . Grynberg d/b/a Grynberg Petroleum v. M-I , L.L.C. 398 S.W.3d 864, 879-880 (Tex. App.—Corpus Christi 2012, pet. denied) (defendant waived personal jurisdiction complaint by filing motion for new trial asking the court to set aside the default judgment and grant a new trial, without challenging personal jurisdiction); Landry v. Daigrepont , 35 S.W.3d 265, 267-268 (Tex. App.—Corpus Christi 2000, no pet.) (although defendant made his motion for new trial subject to his special appearance and acknowledged that the special appearance needed to precede any ruling on the motion for new trial, he waived special appearance by failing to obtain a ruling prior to arguing his motion for new trial).
Vertex, however, argues this case is distinguishable from the above precedent because (1) the motion for new trial was a Rule 11 agreement and not a general appearance, and (2) the motion for new trial was not made prior to judgment. In support of its first argument, Vertex cites to Trejo , in which the Texas Supreme Court held that a Rule 11 agreement filed with the court extending the answer deadline did not constitute a general appearance. Trejo , 142 S.W.3d at 306. The court noted that the Rule 11 agreement at issue was a typical letter agreement between the parties that did not address the trial court, did not seek any affirmative action by the trial court, and did not acknowledge that the action was properly pending. Id.
In this case, Vertex's agreed motion for new trial is not equivalent to the Rule 11 agreement at issue in Trejo. Vertex's agreed motion was filed with the district clerk and signed by counsel for Vertex. The motion states, in pertinent part, the following:
Defendant Vertex Industrial, Inc. files this agreed motion for new trial ...the parties agree that justice requires this case be decided on its merits and agree that the Final Default Judgment of May 16, 2016 should be vacated. In support of this motion the parties stipulate that: (1) the Defendant's failure to answer was not intentional or the result of conscious indifference, but was due to mistake or accident; (2) that the Defendant has a meritorious defense; and (3) granting a new trial will not operate to cause delay or other injury to the Plaintiff....therefore the parties respectfully move this court to vacate the Final Default Judgment.Accordingly, unlike the motion in Trejo , Vertex's agreed motion addresses the trial court, seeks affirmative action by the court, and acknowledges the action is properly pending in Texas.
Also noteworthy, in both Liberty and Landry , the defendants filed a special appearance simultaneously with their motions for new trial, whereas Vertex's special appearance was filed approximately three weeks after the motion for new trial was granted. See Liberty Enter ., Inc., 690 S.W.2d at 571; Landry , 35 S.W.3d at 267-268.
Vertex also urges that the agreed nature of the motion distinguishes this case from Liberty Enterprises , wherein the defendant filed a motion for new trial and special appearance on the same day, but stated in its motion for new trial that it was ready to try the case and then further agreed to the order reinstating the action. See Liberty Enter ., Inc., 690 S.W.2d at 571. We are not persuaded by this argument. The agreed nature of the motion seeking a new trial does not negate that Vertex filed a motion seeking affirmative relief from the court on a matter other than the trial court's jurisdiction. See Trejo , 142 S.W.3d at 304.
Vertex further contends that the agreed motion for new trial cannot be construed as a general appearance because it was filed after judgment rather than "prior to judgment" as stated in Texas Rule of Civil Procedure 120a. See TEX. R. CIV. P. 120a(1) ("[e]very appearance, prior to judgment, not in compliance with this rule is a general appearance"). We disagree. As discussed above, the Texas Supreme Court has previously held that a motion for new trial, which the rules of civil procedure expressly state is to be filed after a complained of judgment is signed, is a general appearance that waives personal jurisdiction. Liberty Enter., Inc., 690 S.W.2d at 571-572; see TEX. R. CIV. P. 329b.
Accordingly, for the foregoing reasons, we conclude that Vertex's agreed motion for new trial invoked the judgment of the trial court on a question other than the court's jurisdiction, acknowledged that suit was properly pending in Texas, and sought affirmative action from the trial court. See Trejo , 142 S.W.3d at 304; see also Liberty Enter ., Inc., 690 S.W.2d at 571-572. Thus, Vertex made a general appearance in this case, thereby waiving any complaint to the trial court's personal jurisdiction over Vertex. For this reason, the trial court did not err by denying Vertex's motion to dismiss. We overrule Vertex's first and second issues, and need not address issues three and four. See TEX. R. APP. P. 47.1.
In its third and fourth issues, Vertex contends that it is not subject to personal jurisdiction under the Texas long arm statute.
CONCLUSION
Having overruled Vertex's issues one and two, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice Opinion delivered June 7, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 16-0664-A)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, VERTEX INDUSTRIAL, INC., for which execution may issue, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.