Klingenschmitt v. Weinstein
342 S.W.3d 131
Tex. App.2011Background
- Weinstein filed suit in Sept. 2009 against Klingenschmitt, Ammerman, and CFGC. Klingenschmitt is a non-resident of Texas and filed a Rule 120a special appearance along with an answer subject to it.
- Dec. 4, 2009 order sustained Klingenschmitt’s special exceptions and required amended pleadings by Dec. 23, 2009.
- Dec. 30, 2009 Klingenschmitt moved to dismiss with prejudice several claims and sought dismissal and injunctive relief based on alleged pleading deficiencies.
- Apr. 19–22, 2010 the trial court denied Klingenschmitt’s motion to dismiss and the special exceptions; the court heard arguments on reconsideration.
- July–Sept. 2010 Klingenschmitt briefed the special appearance; trial court found extensive Texas contacts and concluded the motion to dismiss sought merits relief, thus waiving the special appearance; Klingenschmitt appealed the denial.
- The court ultimately affirmed, holding Klingenschmitt waived his special appearance by having his merits-based motions heard before the special appearance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Klingenschmitt waived his special appearance by prior merits-related motions | Weinsteins argue Klingenschmitt’s motions to dismiss before the special appearance violated Rule 120a(2) and the due-order-of-hearing. | Klingenschmitt contends the motions were procedural and did not amount to a general appearance. | Waived; due-order-of-hearing violated; denial affirmed. |
Key Cases Cited
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex.1998) (general appearance if actions imply consent to jurisdiction)
- Morris v. Morris, 894 S.W.2d 859 (Tex.App.-Fort Worth 1995) (waiver via appearance-based jurisdiction admission)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (personal jurisdiction waivable; due process considerations)
- Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex.2004) (due-order-of-pleading and due-order-of-hearing rules for Rule 120a)
- First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767 (Tex.App.-Houston [1st Dist.] 2008) (special appearance must be heard before other pleadings)
- Carone v. Retamco Operating, Inc., 138 S.W.3d 1 (Tex.App.-San Antonio 2004) (general appearance occurs when seeking affirmative relief before jurisdiction challenge)
- Trejo, 142 S.W.3d 302 (Tex.2004) (supporting due-order-of-hearing reasoning in Rule 120a)
- Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex.1985) (rule 120a/appearance principles)
- Love v. Moreland, 280 S.W.3d 334 (Tex.App.-Amarillo 2008) (dismissal with prejudice is an adjudication on the merits)