The Houston [14th] Court of Appeals has affirmed a trial court denying defendant’s special appearance on the basis that defendant waived its special appearance when it asked for and received a hearing on its forum non conveniens motion prior to hearing the special appearance.
Zurich American Insurance Company v. Masterworks Development Co, LLC, et al (No. 14-21-00649-CV) arose from Zurich’s denial of claims on policies issued to plaintiffs, which are Houston-based businesses. Plaintiffs filed suit against Zurich asserting claims for declaratory judgment and breach of contract. Zurich filed a special appearance challenging the trial court’s jurisdiction and, two months later, filed a motion to dismiss based on the doctrine of forum non conveniens.The trial court granted Zurich’s requests for hearing on the motion to dismiss and special appearance and scheduled the hearings on the same day, with the motion to dismiss first. Zurich argued the motion to dismiss, which the trial court denied. In the hearing immediately following, Zurich unsuccessfully argued the special appearance. Zurich filed an interlocutory appeal.
The court of appeals affirmed on the ground that Zurich waived its special appearance by first requesting affirmative relief (dismissal for forum non conveniens) from the trial court. Zurich thus “made a general appearance and consented to the personal jurisdiction of the trial court. Zurich argued that the forum motion and special appearance “were intertwined such that hearing the forum non conveniens motion first did not waive its special appearance.” The problem with that argument, according to the court, was that the forum motion “assumes that the trial court has jurisdiction but it would be more convenient to litigate the case elsewhere” (citations omitted). Zurich argued further that plaintiffs “waived the issue of waiver of Zurich’s special appearance because [they] failed to argue at the trial court that Zurich waived its special appearance.” But, as the court noted, plaintiffs were not required to make that argument because Zurich had already consented to the court’s jurisdiction.
We have seen a handful of cases in the past few months in which the order of hearings knocked out a special appearance. Clearly, the intermediate appellate courts are policing this boundary very tightly.