Moore By and Through Moore v. Elektro-Mobil Technik GmbH
| Decision Date | 07 April 1994 |
| Docket Number | No. 08-93-00283-CV,ELEKTRO-MOBIL,08-93-00283-CV |
| Parties | Marissa Lee MOORE, by and through Conrad and Martha MOORE, as next friends, Appellants, v.TECHNIK GMBH, Appellee. |
| Court | Texas Court of Appeals |
R. Wayne Pritchard, Brandys Carson & Pritchard, P.C., El Paso, for appellants.
William H. Hart, Passman & Jones, Carla S. Neal, McCauley, Macdonald, Love & Devin, Dallas, for appellee.
Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.
This appeal stems from the defendant's special appearance to present a motion to dismiss for lack of personal jurisdiction under TEX.R.CIV.P. 120a. After the trial court granted the special appearance and dismissed Elektro-Mobil Technik GmbH, 1 a German manufacturer, from the suit, that portion of the action was severed and appealed.
In March 1986, Marissa Lee Moore, a minor, broke her ankle on a kangaroo ride at Chucky Cheese Pizza Time Theater in El Paso, Texas. Her parents as next friends sued the pizza franchisor, franchisee, domestic ride distributor, and Elektro-Mobil, allegedly the ride's manufacturer. In September 1988, Elektro-Mobil's insurer sent a letter to El Paso County Court at Law Number 5, where the suit was filed, saying that service was improper as it did not comply with the Hague Convention. The letter said:
In the name of our insured we make a motion to dismiss plaintiff's complaint against Elektro Mobil Technik GmbH on the grounds of insufficiency of Service of process.
Please advise us if we have to retain the services of a local attorney to bring on this motion.
The trial court responded by informing the insurer that Elektro-Mobil would have to hire a local attorney to file a motion asking to dismiss plaintiff's petition.
Plaintiffs sent interrogatories to defendant Elektro-Mobil, and Elektro-Mobil responded to them before it filed its special appearance. The interrogatory answers (which were all objections) were specifically conditioned upon its anticipated special appearance:
Nothing herein shall be construed as an appearance in this action by Elektro-Mobil or as a waiver of Elektro-Mobil's right, pursuant to Rule 120a of the Texas Rules of Civil Procedure, to appear specially to object to the jurisdiction of this Court over its person or property.
On 24 February 1989, Elektro-Mobil filed its special appearance to present motion to the jurisdiction, claiming that the court had no jurisdiction over it or its property. The trial court ruled in Elektro-Mobil's favor, dismissing the action against it for lack of personal jurisdiction. The trial court made these findings of fact and conclusions of law in connection with the special appearance:
(1) Elektro-Mobil was organized and exists under the laws of the Federal Republic of Germany.
(2) Elektro-Mobil is not a resident of Texas, and neither is required to maintain nor maintains a registered agent for service in Texas.
(3) Elektro-Mobil does not now engage and has not engaged in business in Texas.
(4) Elektro-Mobil has not committed any tort, in whole or in part, within Texas.
(5) Elektro-Mobil does not maintain, and has never maintained a place of business in Texas.
(6) Elektro-Mobil has no employees, servants, or agents in Texas and never has had.
(7) Elektro-Mobil has never purposefully availed itself of the privilege of doing business in Texas.
(8) Elektro-Mobil has never appeared generally in this cause.
(9) Elektro-Mobil's Special Appearance was filed prior to any plea of privilege, or any other plea, pleading, or motion.
(10) The assumption of jurisdiction by the Court over Elektro-Mobil would offend traditional notions of fair play and substantial justice.
(11) The assumption of jurisdiction by the Court over Elektro-Mobil would deprive Elektro-Mobil of due process.
(12) Neither Elektro-Mobil nor its property is amenable to this Court's process.
(13) This cause must be dismissed as against Elektro-Mobil for lack of jurisdiction.
(14) On or about August 5, 1988, Defendant Elektro-Mobil Technik GMBH was served with citation pursuant to the Texas Long-Arm Statute.
(15) On or about October 12, 1988, Defendant Elektro-Mobil Technik GmbH by and through its duly authorized agent, filed with the District Clerk of El Paso County a letter [the contents of which are described above].
(16) On or about February 14, 1988, Defendant Elektro-Mobil Technik GMBH filed its objections to plaintiff's discovery requests.
(17) On or about February 24, 1989, Defendant Elektro-Mobil Technik GmbH filed its Special Appearance Motion.
Plaintiffs present two issues on appeal: (1) did either Elektro-Mobil's insurer's letter or its objections to interrogatories constitute a general appearance which inadvertently waived its challenge to personal jurisdiction; and (2) if not, did the trial court correctly decide that Elektro-Mobil had insufficient ties to allow exercise of Texas long-arm jurisdiction.
In their first point of error, plaintiffs Moore argue that Elektro-Mobil waived its special appearance by moving to quash service of process through the letter from its insurer before it filed its Rule 120a special appearance. Similarly, as part of its Point of Error Five, plaintiffs argue that the insurer's letter constituted a general appearance, making the trial court's conclusion of law number eight erroneous. As these points both concern the letter from Elektro-Mobil's insurer, we will consider them together.
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. Where correspondence from a party, its agent, or attorney does neither of these things, however, it is not a general appearance and does not waive a special appearance under Rule 120a. Letersky v. Letersky, 820 S.W.2d 12, 13 (Tex.App.--Eastland 1991, no writ); United National Bank v. Travel Music of San Antonio, Inc., 737 S.W.2d 30, 32 (Tex.App.--San Antonio 1987, writ ref'd n.r.e.); Investors Diversified Services, Inc. v. Bruner, 366 S.W.2d 810, 814-15 (Tex.Civ.App.--Houston 1963, writ ref'd n.r.e.). As the Court in Investors Diversified noted:
[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, 366 S.W.2d at 815, quoting 6 C.J.S. at 43 Appearances § 13.
Examining the correspondence here, we find it contains nothing acknowledging the court's jurisdiction or requesting affirmative action from the court. The letter notes that service was not obtained in compliance with the Hague Convention, and inquires whether Elektro-Mobil needs a local attorney to challenge service. Plaintiffs maintain this amounted to a motion to quash, and was therefore, however unintentional, a general appearance.
Although the insurer's letter does state it is making a motion to the court, in reality it merely seeks advice as to whether local counsel must be obtained before a motion to quash service could be considered. We do not believe this constitutes seeking affirmative action from the court or an acknowledgement of the court's jurisdiction. Our conclusion is reinforced by caselaw holding that, as a corporation, Elektro-Mobil must be represented in Texas courts by a licensed attorney. Dell Development Corp. v. Best Industrial Uniform Supply Company, Inc., 743 S.W.2d 302, 303 (Tex.App.--Houston [14th Dist.] 1987, writ denied); Globe Leasing, Inc. v. Engine Supply and Machine Service, 437 S.W.2d 43, 45-6 (Tex.Civ.App.--Houston [1st Dist.] 1969, no writ). Finally, the record contains nothing from which we can conclude that Elektro-Mobil had authorized its insurer's
employees to appear on its behalf, without counsel. See TEX.R.CIV.P. 120. For these reasons, then, we find the letter from Elektro-Mobil's insurer did not constitute an inadvertent general appearance. Point of Error One is overruled.
In Points of Error Five and Six, plaintiffs argue that Elektro-Mobil's objections to discovery requests, made before it filed its Rule 120a special appearance, constituted a general appearance and waived its challenge to the court's personal jurisdiction. We disagree.
The special appearance rule specifically provides:
The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. TEX.R.CIV.P. 120a(1). [Emphasis added].
Caselaw interpreting "the use of discovery processes" is sparse. See Letersky, 820 S.W.2d at 14 (); Portland Savings & Loan Assoc. v. Bernstein, 693 S.W.2d 478, 480 (Tex.App.--Corpus Christi 1984, no writ) (request for sanctions hearing on general discovery "before any other matter is heard" not limited to jurisdictional questions waived jurisdictional complaint). We believe, however, that the discovery process includes timely objection to discovery requests. We do not believe the rule's intent is to force a defendant to choose between waiving valid discovery objections or waiving its jurisdictional challenge. To the contrary, the rule specifically contemplates ongoing discovery by both the party challenging jurisdiction and the party invoking it. We find Elektro-Mobil's objections to interrogatories, filed before its Rule 120a special appearance, were "the use of discovery processes" and did not waive defendant's jurisdictional challenge. Points of Error Five and Six are overruled.
Having determined that Elektro-Mobil did not waive its special...
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