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Vertex Industrial, Inc. v. Allstate Fire & Casualty Insurance Co.

Court of Appeals of Texas, Twelfth District, Tyler

June 7, 2017

VERTEX INDUSTRIAL, INC., APPELLANT
v.
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY AS SUBROGEE OF DOUG AND JEANE E VANS, APPELLEE

         Appeal from the 7th District Court of Smith County, Texas (Tr. Ct. No. 16-0664-A)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice.

         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 ...


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