Court of Appeals of Texas, Eighth District, El Paso
IN RE: RAFAEL QUINONES AND YVONNE QUINONES, Relators.
ORIGINAL PROCEEDING IN MANDAMUS
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD McCLURE, Chief Justice.
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
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. 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
issue in this original proceeding is whether Waechter made a
general appearance by filing the motion to quash defective
service and his supporting affidavit.
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.
Abuse of Discretion
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.
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