If a person or entity is sued in Texas, that person or organization has a right to challenge the state court’s jurisdiction, particularly if that person is a non-resident, the person or entity has no connection to Texas, and/or any property involved is not located in Texas. This type of challenge is called a “special appearance."
Statutes for Special Appearance
Liability is not the focus of a special appearance. Instead, the focus is on whether Texas courts have jurisdiction over a defendant and/or property. A special appearance seeks dismissal of the case by asserting that the defendant is not subject to Texas jurisdiction. Tex. R. Civ. P. 120a; Glattly v. CMS Viron Corp., 177 S.W.3d 438, 446 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The only other options for a defendant who is a non-resident is agreeing to Texas jurisdiction or allowing a default judgment which the defendant later claims is void. Global Paragon Dallas, LLC v. SBM Realty, LLC, 448 S.W.3d 607 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Special Appearance vs. General Appearance
For a motion to dismiss based on lack of personal jurisdiction to succeed, the defendant must carefully follow the statutes outlined in Rule 120a. Failure to do so may result in a general appearance, which waives or forfeits a special appearance.
Any court appearance which does not follow Rule 120a exactly may establish that court’s jurisdiction in the case. If for example a defendant appeals to Texas courts about the claim itself or seeks some action from the court, the defendant is actually acknowledging the court’s jurisdiction. This general appeal is not consistent with a defendant’s special appeal, in which she or he is claiming that the court lacks jurisdiction. Exito Electronics Co., Ltd. v. Trejo, 142 S.W.3d 302, 306 (Tex. 2004); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998), cert. denied.
By following Rule 120a exactly, a litigant may successfully claim a special appearance without accidentally submitting to the court’s jurisdiction with a general appearance. Veering from the rule in any way, however, substantially increases the likelihood that the litigant is making a general appearance, thus negating the right to a special appearance. Once the defendant files a motion to dismiss for personal jurisdiction, the merits of the lawsuit are put on hold until jurisdiction is settled.
While Texas law provides options for non-residents to respond to lawsuits, failure to meticulously follow state mandates could result in a defendant’s inadvertently waiving the right to a special appearance. An attorney who is knowledgeable and experienced in litigation will offer the best legal options for moving forward successfully with a special appearance.
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