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In re Quinones

Court of Appeals of Texas, Eighth District, El Paso

July 31, 2017

IN RE: RAFAEL QUINONES AND YVONNE QUINONES, Relators.

         AN ORIGINAL PROCEEDING IN MANDAMUS

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD McCLURE, Chief Justice.

         Relators, Rafael Quinones and Yvonne Quinones, filed a mandamus petition against the Honorable Annabell Perez, Judge of the 41st District Court of El Paso County, Texas, asking that the Court order Respondent to set aside an order granting Patrick Waechter's motion to quash service. On February 28, 2017, we issued an opinion and judgment denying relief, but we subsequently granted Relators' motion for rehearing and withdrew the prior opinion and judgment. In re Rafael Quinones and Yvonne Quinones, Relators, No. 08-17-00005-CV, 2017 WL 769880 (Tex.App.--El Paso February 28, 2017, orig. proceeding). We conditionally grant mandamus relief.

         FACTUAL BACKGROUND

         Relators filed suit against Patrick Waechter, an Allstate insurance adjuster, in his individual capacity. Relators served Waechter by certified mail at a California address shown on Waechter's license.[1] Waechter filed a motion to quash defective service asserting that he did not reside or work at the California address, and he requested that Relators be required to re-serve him. The motion to quash is supported by Waechter's affidavit. Waechter did not file a special appearance and he did not assert in his motion to quash that he is not amenable to process. Relators filed a response stating that Waechter had not filed a special appearance under Tex.R.Civ.P. 120a and his motion to quash defective service constituted a general appearance in the case. Respondent granted Waechter's motion and ordered Relators to re-serve Waechter. Relators filed a mandamus petition asserting, as they did in the trial court, that Waechter had made a general appearance by filing the motion to quash service, and that the only remedy available to him was an extension of time under Tex.R.Civ.P. 122. The Court gave Waechter an opportunity to file a response but none has been filed.

         GENERAL APPEARANCE

         The issue in this original proceeding is whether Waechter made a general appearance by filing the motion to quash defective service and his supporting affidavit.

         Standard of Review

         To be entitled to mandamus relief, a relator generally must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 135-36.

         Clear Abuse of Discretion

         Relators concede that service was defective but argue that Waechter made a general appearance by filing a motion to quash defective service. Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corporation v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985); see Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430, 434 (Tex.App.--Austin 1984, no pet.). Prior to the adoption of Texas Rule of Civil Procedure 120a, any appearance by a non-resident defendant was a general appearance which subjected the defendant to the jurisdiction of the court. Kawasaki, 699 S.W.2d at 201 (discussing York v. State, 73 Tex. 651, 11 S.W. 869 (1889) which established the "York rule"). Under the York rule, a non-resident defendant had two options: either appear and consent to jurisdiction or allow a default judgment to be taken and attack the Texas judgment as being void if the plaintiff brought suit in the defendant's state to enforce the judgment. Id. Under Rule 120a, a non-resident defendant is allowed to make a special appearance for the purpose of objecting to the jurisdiction of the court over the defendant on the ground that the defendant is not amenable to process issued by the courts of the state. Tex.R.Civ.P. 120a(1); Kawasaki, 699 S.W.2d at 201. The York rule is otherwise unchanged. Kawasaki, 699 S.W.2d at 201.

         Waechter did not file a special appearance pursuant to Rule 120a or otherwise assert that he "is not amenable to process issued by the courts of this State." Tex.R.Civ.P. 120a. Consequently, the issue presented in this original proceeding relates solely to the notice element of personal jurisdiction. A challenge to a defect in the manner of service or process cannot be raised in a special appearance because a curable defect in service of process does not affect a non- resident defendant's amenability to process issued by a Texas court. See Kawasaki, 699 S.W.2d at 201-02. ...


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