In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-08-00019-CV
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MILACRON INC., Appellant
V.
PERFORMANCE RAIL TIE, L.P., Appellee
On Appeal from the 62nd Judicial District Court
Lamar County, Texas
Trial Court No. 75389
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
O P I N I O N
Delaware corporation Milacron Inc. appeals the denial of its special appearance filed during trial. We affirm the trial court's ruling that Milacron Inc. waived its special appearance for a variety of reasons, including its neglect of the Texas Rules of Civil Procedure.
I. Procedural Background: The Games Begin
Performance Rail Tie, L.P., brought suit against Milacron Inc., which Performance alleged had manufactured an extruder component contained within a machine built to produce composite railroad ties. The extruder component malfunctioned, causing an explosion which severely damaged the railroad tie machine. After filing suit, Performance had Milacron Inc. served with citation. In response, Performance received an answer from Milacron Marketing Company (not then yet sued by Performance), which purported to unilaterally substitute itself as the proper party to the suit in lieu of Milacron Inc. Performance subsequently amended its petition several times to include both Milacron Marketing Company and Milacron Inc. Despite the amended pleadings (which contained an amended style and included the names of both entities as party defendants), no special exception was filed by Milacron Inc. (1) Instead, all pleadings and discovery documents were executed either by "Milacron Marketing Company" or as "Milacron Marketing Company incorrectly sued as Milacron, Inc."
Although the defendants had sought to delay it, the case proceeded to trial with opening statements commencing on January 14, 2008. Until that day, nothing in the record suggested that Milacron Inc. had attempted to alert the trial court or Performance to the issue of personal jurisdiction. Unfortunately, this Court was not presented with any reporter's record detailing the crucial facts surrounding the filing of the special appearance. However, oral arguments at appeal suggested that after opening statements in the trial began, the same attorneys who appeared for Milacron Marketing Company presented the trial court with a motion filed on behalf of Milacron Inc. wherein it sought to make a special appearance. Attached to this motion was a document (unsigned at that point) which would, if signed, be an affidavit in support of a special appearance for Milacron Inc. that set out basic facts which, if proven, would tend to support the lack of jurisdiction over Milacron Inc. This document was subsequently executed by the affiant and refiled. There is no record to indicate that Milacron Inc. requested a hearing on its special appearance or objected to any failure to rule on it. The parties proceeded to a trial on the merits, after which the trial court entered an order denying Milacron Inc.'s special appearance, finding that Milacron Inc. had waived it.
II. Standard of Review
Whether the trial court had personal jurisdiction over Milacron Inc. is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 411 (Tex. App.--Houston [14th Dist.] 1997, no writ). However, the resolution of that question is preceded by the analysis of underlying factual disputes. Marchand, 83 S.W.3d at 794; Conner, 944 S.W.2d at 411. The standard of review to determine the appropriateness of the trial court's resolution of those facts is an ordinary sufficiency of the evidence review. Conner, 944 S.W.2d at 411. Thus, when we review this trial court's order denying Milacron Inc.'s special appearance, we review the findings of fact for legal and factual sufficiency, but we review de novo the conclusions of law drawn from those facts. See id.; CNOOC Se. Asia Ltd. v. Paladin Res. (SUNDA) Ltd., 222 S.W.3d 889, 894 (Tex. App.--Dallas 2007, pet. denied); Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 6 (Tex. App.--San Antonio 2004, pet. denied). Disputed fact issues relating to personal jurisdiction will be found in support of the trial court's judgment. Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex. App.--Dallas 1994, writ denied) (citing Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987)).
III. Milacron Inc. Waived Its Special Appearance
To promote judicial economy, Rule 120a(1) of the Texas Rules of Civil Procedure mandates that a special appearance be filed "prior to motion to transfer venue or any other plea, pleading or motion." Tex. R. Civ. P. 120a(1). This is sometimes referred to as the "due-order-of-pleading" requirement. Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004). The rule encourages personal jurisdiction issues to be disposed of early in litigation and states "[e]very appearance, prior to judgment, not in compliance with this rule is a general appearance."
Texas law clarifies that a special appearance is waived through participation in the trial. Bullock v. Briggs, 623 S.W.2d 508, 511 (Tex. App.--Austin 1981, writ ref'd n.r.e.). A specially appearing defendant may not go to trial on the merits of the case without first obtaining a ruling on his special appearance. Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex. App.--Corpus Christi 1994, no writ); Seeley v. Seeley, 690 S.W.2d 626, 628 (Tex. App.--Austin 1985, no writ). For this reason, Rule120a requires that the specially appearing defendant timely request a hearing, specifically bring that request to the trial court's attention, and secure a ruling on the preliminary question of personal jurisdiction. Tex. R. Civ. P. 120a; Hart v. State, No. 03-02-00542-CV, 2003 Tex. App. LEXIS 1747, at *6 (Tex. App.--Austin Feb. 27, 2003, no pet.) (mem. op.).
It is the responsibility of a defendant which attempts to rely upon a special appearance to request a hearing and secure a ruling on the preliminary question of personal jurisdiction. Bruneio, 890 S.W.2d at 154. Not only must a specially appearing defendant request a hearing on the determination of the special appearance, it must specifically call that request to the trial court's attention. Id. A defendant waives his special appearance by not timely pressing for a hearing. Id.; Steve Tyrell Prods., Inc. v. Ray, 674 S.W.2d 430, 436-37 (Tex. App.--Austin 1984, no writ). It is inappropriate, especially when considering judicial economy, to litigate the special appearance in connection with the trial of the matter. Bruneio, 890 S.W.2d at 154.
Rule 120a(4) provides that if an order is entered denying the special appearance, the objecting party "may thereafter appear generally for any purpose" without waiver of the special appearance. Tex. R. Civ. P. 120a(4). However, if the objecting party allows a trial to proceed without obtaining a ruling on its Rule 120a motion, the special appearance is waived and the party has consented to the court's jurisdiction. Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.--Fort Worth 1995, no writ).
Milacron Inc. was named as a party in Performance's lawsuit and was represented by counsel who appeared in the courtroom to defend that lawsuit on January 14. Although disputed, Performance's briefing states that "Milacron Defendants" answered ready for trial. Since there is no record indicating otherwise, this disputed fact issue will be resolved in favor of the trial court's ruling. (2) Craig, 993 S.W.2d at 120. Milacron Inc. waited until after opening statements to file its special appearance and failed to request a hearing and secure a ruling on the special appearance before proceeding to trial on the merits. Since Milacron Inc. was present through its attorneys and allowed the case to be tried on the merits before the trial court ruled on its special appearance, it effectively entered a general appearance. Seeley, 690 S.W.2d at 627-28.
We need not address the issue of whether Milacron Inc. waived its special appearance through pleadings and discovery filed by its attorneys which were conducted under the name "Milacron Marketing Company incorrectly sued as Milacron, Inc." We do point out, however, that contrary to the rules prescribed by the Texas Rules of Civil Procedure, Milacron Inc. did not complain about service to the trial court and did not file a special exception or verified plea subject to a special appearance. Instead, it attempted to unilaterally substitute a party, used the same attorneys to defend the lawsuit and participated in discovery through that substituted party, saw that its attorneys signed off on pleadings that included Milacron Inc. in the style of the case, failed to answer amended petitions containing both Milacron Marketing Company and Milacron Inc., prepared a special appearance and affidavit immediately prior to or at trial, and decided to spring the special appearance upon the court and the parties at the last minute. Although this could be attributed to error on the part of the defendants, it smacks more of procedural gamesmanship, conduct we cannot condone.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: August 13, 2008
Date Decided: August 27, 2008
1. For the first time on appeal, Milacron Inc. argues that Performance brought suit against "Milacron, Inc., an entity that does not exist" (pointing out that the true name of the corporation does not contain a comma). Since no special exception was filed to point out to the trial court the existence of the superfluous comma, we reject Milacron Inc.'s argument that suit was improperly brought against it.
2. The burden was on Milacron Inc. to present a sufficiently complete record that clearly demonstrated the error of which it complained. Since Milacron Inc. did not request a reporter's record and the Court only has a partial record before it (the portion filed by Performance), every reasonable presumption will be indulged in favor of the trial court's ruling. See Tex. R. App. P. 38(h); Arredondo v. Rodriguez, 198 S.W.3d 236, 239 (Tex. App.--San Antonio 2006, no pet.); Cooper v. Bowser, 610 S.W.2d 825, 828 (Tex. Civ. App.--Tyler 1980, no writ); Meyer v. Worden, 530 S.W.2d 904, 906 (Tex. Civ. App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.); Coleman v. Pac. Employers Ins. Co., 484 S.W.2d 449, 454 (Tex. Civ. App.--Tyler 1972, writ ref'd n.r.e.) (op. on reh'g); Wright v. Mack Motor Truck Corp., 336 S.W.2d 831, 833 (Tex. Civ. App.--Houston 1960, no writ).
; Having found error, we must then determine whether the error caused reversible harm. See Tex. R. App. P. 44.2(a). In this case, nothing in the record before us suggests the trial court's error harmed Morales or otherwise contributed to his conviction or punishment. Morales pled "true" to violating the terms of his community supervision agreement with the trial court. Morales also admitted that, shortly after his initial guilty plea, he fled to Mexico and was not recaptured until over two years later when police located him in McAllen, Texas. In the period during which he had absconded from Gregg County, Morales did not report his current location or status to his community supervision officer. In short, Morales satisfied none of the requirements of his community supervision. And nothing in the record before us suggests Morales was displeased with Settle's performance as substitute counsel or had any valid reason to be displeased with that performance. Accordingly, we conclude, beyond a reasonable doubt, that the trial court's error did not contribute to Morales' conviction or punishment. We overrule Morales' first issue.
The Trial Court Considered Continuing Community Supervision
In his second point of error, Morales contends the trial court erred by failing to consider continuing community supervision in lieu of imprisonment. In Hull v. State, 29 S.W.3d 602, 604–07 (Tex. App.—Houston [1st Dist.] 2000), vacated and remanded, 67 S.W.3d 215 (Tex. Crim. App. 2002), the First Court of Appeals held the trial court violated Hull's due process rights by revoking his community supervision for violating the terms of a "zero tolerance" brand of community supervision. On petition for discretionary review, the Texas Court of Criminal Appeals held Hull had failed to preserve the alleged error by not objecting to the "zero tolerance" conditions at the time he was placed on community supervision. Id.
The record in the case now before us does not suggest Morales had been placed on a "zero tolerance" brand of community supervision akin to that in Hull. To the contrary, before receiving evidence on the State's motion to revoke community supervision, the trial court explained it had several options available to it if it found Morales had violated the community supervision agreement:
The Court: Upon your plea of true, I must find the accusations true. And when I do that, I've got some options. First is do nothing; that is, leave you on probation as you presently are.
The next option is to extend the length of probation for up to an additional one year or fine you up to a thousand dollars. And the final option is to revoke your probation and send you to a state jail facility for a period of not less than 180 actual calendar days, day for day nor more than two actual calendar years, day for day.
Do you understand those are the options that I have?
Morales: Yes.
The trial court then heard evidence that, immediately after being placed on community supervision, Morales fled to Mexico and was not heard from again until two years later when he was arrested near McAllen, Texas, while working in construction. After all the evidence and before pronouncing sentence, the trial court stated,
The Court: I choose not to reward him for his absolute failure to comply with any term and condition of probation. I would rather house him in a state facility for two years than to have him going back and forth between Mexico and the United States and coming across the river any time he feels like he wants to. I agree with you, he was a poor candidate for probation.
Be that as it may, I do what I have to do, I revoke your probation and I assess your punishment two calendar years day for day confinement in a state jail facility, giving you credit for any time spent in jail in connection with this case.
After closely reviewing the record in this case, we believe the trial court did consider the available options, but based on the evidence presented—especially Morales' admission that he chose to abscond to Mexico before even meeting with his community supervision officer to review the conditions of supervision—exercised its discretion to revoke Morales' supervision. From the record presented, we cannot say the trial court abused that discretion.
We overrule Morales' points of error and affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 5, 2004
Date Decided: December 17, 2004
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