Texas Rule of Civil Procedure 120a prescribes the procedure for a special appearance whereby a party may challenge the court’s personal jurisdiction. Failure to strictly comply with the rule converts a special into a general appearance, waiving the jurisdictional challenge. The rule mandates the specific order in which motions must be heard (the so-called “due-order-of-hearing” requirement) to maintain the special appearance. Thus a special appearance motion “shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” If a party seeks “affirmative action from the trial court inconsistent with its assertion that the court lacks jurisdiction before the special appearance is both heard and determined,” it waives its special appearance.
The application of Rule 120a was at issue in International Alliance Group and Triten Corporation v. Koch Industries, Inc., Koch Engineered Solutions, LLC, and David Dotson (No. 01-20-00832-CV). The case arose from a business split between Koch and TritenIAG, a design and project management company based in Houston. Koch had hired Triten on several significant construction projects and made an offer to buy the company. Triten declined the offer. Koch subsequently formed its own subsidiary, Koch Project Solutions, to perform services similar to Triten’s. Triten alleges that Dotson, with the help of TritenIAG’s former president, recruited Triten employees to work for KPS and compete directly with Triten. The case commenced when Triten’s former president sued Triten in Houston for contract and tort damages. Triten counterclaimed and filed third party claims against Koch, KPS, and Dotson for tortious interference, civil conspiracy, and unjust enrichment. The defendants filed special appearances contesting the trial court’s jurisdiction, as well as special exceptions asking the trial court to dismiss or strike Triten’s claims. The trial court set the motions for hearing on the same day, at which Koch argued the substance of the motions, beginning with the special appearances. But before obtaining a ruling on the special appearances, Koch made substantive arguments regarding the special exceptions. Later that day, the trial court granted Koch’s special appearances. Triten and IAG filed an interlocutory appeal.
The court of appeals reversed on the basis that the Koch defendants did not comply with Rule 120a’s due-order-of-hearing requirement and thus waived their special appearances. Koch argued that because its special appearances and special exceptions were “intertwined” to the extent that they had to be argued together and that, in any event, the special exceptions did not request “affirmative relief” from the trial court in violation of Rule 120a. The court of appeals disagreed, holding that the special exceptions requested a substantive ruling from the trial court that Triten had failed to state viable claims and such failure could not be remedied by repleading. Noting that several courts of appeals had reached the same conclusion in similar cases, the court stated that “the relevant inquiry for determining whether a defendant entered a general appearance is not whether the defendant requested a ruling on the merits. Instead, the question is whether the defendant invokes the judgment of the court on any question other than the court’s jurisdiction or seeks affirmative relief inconsistent with an assertion that the trial court lacks jurisdiction” (citations omitted; emphasis added). Here Koch requested that the trial court “strike or dismiss” causes of action “for reasons other than the purported lack of personal jurisdiction—and not simply asking the trial court to sustain their special exceptions and require Triten and IAG to plead additional jurisdictional facts . . .”
The court remanded to the trial court for further proceedings, i.e., rulings on Koch’s special exceptions. Based on the court’s recitation of the facts, it appears to us that Koch has a better than even shot at prevailing and getting the case dismissed. There does not appear to have been any contractual relationship between Triten and Koch that would have kept Koch from launching its own project management firm and hiring whomever it pleased to work there. The real dispute seems to be between TritenIAG and its former president. In any event, the court of appeals’ opinion is instructive about the operation of Rule 120a’s due-order-of-hearing requirement and contains a useful analysis of relevant authority.
