Dawson-Austin v. Austin
| Decision Date | 03 July 1998 |
| Docket Number | No. 96-0442,P,DAWSON-AUSTI,96-0442 |
| Citation | 968 S.W.2d 319 |
| Parties | 41 Tex. Sup. Ct. J. 400 Cynthia Leeetitioner, v. William Franklin AUSTIN, Respondent. |
| Court | Texas Supreme Court |
David L. Evans, Jeffrey H. Kobs, Thomas M. Michel, Fort Worth, for petitioner.
Richard R. Orsinger, San Antonio, M.J. (Ike) Vanden Eykel, Dallas, John J. Sampson, Russell J. Weintraub, Austin, Harry L. Tindall, Houston, for respondent.
The issues we address in this divorce action are whether the district court had in personam jurisdiction over the wife, and if not, whether the court nevertheless had jurisdiction to divide the marital estate. The court of appeals upheld personal jurisdiction. 920 S.W.2d 776. We disagree.
Since 1970, William Franklin Austin has been the president, chief executive officer, sole director, and sole stockholder of Starkey Laboratories, Inc., a Minnesota corporation in the business of manufacturing and distributing hearing aids. In 1977, Austin met Cynthia Lee Dawson at a seminar in Oregon, where she was living, and persuaded her to come to work for Starkey at its headquarters in Minnesota. Austin was 35 years old and divorced, and Dawson was 30 years old and separated from her husband. Dawson soon moved into Austin's Minnesota home and continued working for Starkey. On a business trip to China in 1980, Austin and Dawson recited marriage vows in a Beijing restaurant. Two years later they filed a marriage certificate in Minnesota. At some point Dawson assumed the surname, Dawson-Austin.
Dawson-Austin worked for Starkey until shortly after she and Austin separated in 1992. Over the years the business had grown. In 1980 Starkey was worth about $1.5 million with some $12 million in net revenues. By 1992 the company had become the second largest manufacturer of hearing aids in the world with sales totaling more than $200 million and a net worth of at least $40 million.
Throughout the marriage the couple's principal residence was in Minnesota, although they also owned homes elsewhere, including one they acquired in California in 1984. They never resided in Texas, and neither of them ever came to the state except on business, and then only a few times. When they separated in February 1992, Dawson-Austin was living in their California home, and she remained there. Austin moved to Texas on March 10. On April 10 Dawson-Austin filed for divorce in California but did not serve Austin until October 16. Austin filed for divorce in Texas on September 10, the first day he could do so under Texas law, TEX. FAM.CODE § 6.301 (formerly TEX. FAM.CODE § 3.21), and served Dawson-Austin four days later.
Dawson-Austin filed a special appearance and an amended special appearance, both of which the district court overruled. Dawson-Austin requested the court in dividing the couple's property to apply Minnesota law, under which she contends she would be entitled to a part of the increase in value of petitioner's Starkey stock attributable to the efforts of either spouse. The court refused and instead applied Texas law, holding that the stock was Austin's separate property subject only to any right of reimbursement of the community estate. The district court also struck Dawson-Austin's two expert witnesses retained to testify on the value of the community and its right of reimbursement, on the grounds that they were not timely identified in discovery. In a bench trial, Austin stipulated to Dawson-Austin's valuation of the community estate at $3,750,000. The court awarded Dawson-Austin 55.59% of the community--a little over $2 million.
Dawson-Austin appealed. The court of appeals in its initial opinion reversed the decree, holding that Minnesota law should have been applied in dividing the marital estate. On rehearing, however, a divided court of appeals affirmed the decree in all respects. 920 S.W.2d 776.
We first consider whether, as a matter of procedure, Dawson-Austin made a general appearance in the case.
Dawson-Austin filed pro se a single instrument including a special appearance, a motion to quash service of citation, a plea to the jurisdiction of the court, a plea in abatement, and subject to all of the above, an original answer. Only the answer was expressly made subject to the special appearance; the motion and pleas were not. The instrument contained a verification of the facts and allegations stated in each component of the instrument except the special appearance. Dawson-Austin contends that the failure to include the special appearance in the verification was a typographical error. The district court overruled Dawson-Austin's special appearance because it was not sworn as required by Rule 120a(1), TEX.R. CIV. P., and because a motion to quash service of citation, plea to the jurisdiction, and plea in abatement, all included in the same instrument with the special appearance, were not expressly made subject to the special appearance.
The day after the court's overruling of the special appearance, Dawson-Austin filed a motion for reconsideration and an amended special appearance. The court denied the amended special appearance "on the merits", in the court's words, and did not rule on the motion to reconsider.
The court of appeals held that Dawson-Austin's special appearance was properly overruled because it was unsworn. The court did not consider whether the other pleadings in the same instrument should have been expressly subjected to the special appearance. 920 S.W.2d at 782. The court also held that Dawson-Austin waived her amended special appearance because, before it was filed, Dawson-Austin argued her motion to quash and did not object to the district court's consideration of it. 920 S.W.2d at 782-783.
Austin argues that there are yet other reasons, in addition to those given by the lower courts, for concluding that Dawson-Austin made a general appearance in the proceeding. We address each of these arguments in turn.
As the lower courts both held, an unsworn special appearance does not comply with Rule 120a(1), TEX.R. CIV. P., and thus is ineffectual to challenge in personam jurisdiction. The lower courts also held, however, that the lack of verification can be cured by amendment. Austin argues that an unsworn special appearance cannot be cured and is itself a general appearance. Austin's argument is contrary to the express provision of Rule 120a(1) that a special appearance "may be amended to cure defects". By "cure", the rule means to restore the special appearance. The rule does not limit the kinds of defects that can be cured. The absence of a verification is such a defect, and an amendment that adds a verification cures the special appearance. Every court that has considered the issue agrees. See Villalpando v. De La Garza, 793 S.W.2d 274, 275-276 (Tex.App.--Corpus Christi 1990, no writ); Carbonit Houston, Inc. v. Exchange Bank, 628 S.W.2d 826, 828 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); Stegall & Stegall v. Cohn, 592 S.W.2d 427, 429 (Tex.App.--Fort Worth 1979, no writ); Dennett v. First Continental Inv. Corp., 559 S.W.2d 384, 385-386 (Tex.App.--Dallas 1977, no writ).
Austin argues, alternatively, that even if an unsworn special appearance can be cured by amendment, the amendment must be filed before the special appearance is ruled on. This argument, too, finds no footing in Rule 120a(1). The rule simply does not require that an amendment be filed before a ruling on the special appearance, as long as the amendment is filed before there is a general appearance. See Dennett, 559 S.W.2d at 386 () (emphasis in original).
Austin's arguments are not only contradicted by both the language and silence of Rule 120a, they misperceive what constitutes a general appearance. One court has explained:
A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance.
Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex.App.--El Paso 1994, writ denied). Another court has stated the same proposition in the negative:
"[A]lthough an act of defendant may have some relation to the cause, it does not constitute a general appearance, if it in no way recognizes that the cause is properly pending or that the court has jurisdiction, and no affirmative action is sought from the court."
Investors Diversified Servs., Inc. v. Bruner, 366 S.W.2d 810, 815 (Tex.Civ.App.--Houston 1963, writ ref'd n.r.e.) (quoting 6 C.J.S. Appearances § 13 (19__)); see also Letersky v. Letersky, 820 S.W.2d 12, 13 (Tex.App.--Eastland 1991, no writ); United Nat'l Bank v. Travel Music, Inc., 737 S.W.2d 30, 32-33 (Tex.App.--San Antonio 1987, writ ref'd n.r.e.). These courts have accurately restated the principle underlying a general appearance. An unverified special appearance neither acknowledges the court's jurisdiction nor seeks affirmative action. While it cannot be used to disprove jurisdiction, it certainly does not concede it.
Thus, Dawson-Austin did not enter a general appearance by filing an unsworn special appearance or by amending it only after it was overruled.
Austin argues that Dawson-Austin made a general appearance by filing a motion to quash service, a plea to the jurisdiction, and a plea in abatement, all in the same instrument with the special appearance and all following the special appearance in the instrument, but none expressly made subject to the special appearance. The district court agreed with this argument; the court of appeals did not address it. The...
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