Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

This blog entry comes courtesy of Cowles & Thompson's Melinda Newman:

The Eastland Court of Appeals recently held that a trial court abused its discretion by refusing to hear a special appearance motion filed by a California corporation until after the defendant’s corporate representative appeared for deposition in Texas. In IRN Realty Corporation v. Hernandez, Vicenta Hernandez filed suit against IRN, alleging various causes of action stemming from the purchase of real estate in Nolan County. Prior to hearing its special appearance, Hernandez noticed the deposition of IRN’s corporate representative. IRN filed a motion to quash, urging the court to first rule on its special appearance and contending that it would be unjust for a Texas court without jurisdiction to require its corporate representative to appear for a deposition. The trial court granted the motion to compel, awarded monetary sanctions, and ordered IRN to present its representative for deposition before it would rule on the special hearing. After IRN ignored the court’s order and failed to present its representative for deposition, the trial court struck IRN’s pleadings.

The court observed Rule 120a’s mandate that a hearing on a special appearance be heard and determined before any other plea or pleading. It also noted, however, that the rule also specifically provides for the means of obtaining a continuance of the special appearance hearing so a deposition may be conducted: affidavits of the party opposing the special appearance. Here, Hernandez did not file any such affidavit stating that she could not present facts essential to justify her opposition to the special appearance or that she needed to depose IRN’s corporate representative regarding jurisdiction -- she simply noticed IRN’s corporate deposition. Thus, while the court made clear it did not condone the actions of IRN in refusing to obey a court order, it held that the trial court abused its discretion in abating the hearing on the special appearance and striking IRN’s pleadings. The court’s opinion may be found here.  One issue that was not addressed was location: i.e., had Hernandez properly submitted an affidavit and obtained a court order allowing the deposition, could she have forced the IRN representative to come to Texas for his deposition or would she have had to depose him in California?

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The Houston First District Court of Appeals has held that a trial court abused its discretion by denying the plaintiffs discovery of jurisdictional facts pertaining to the defendants' personal appearance.  In Lamar v. Poncon, John and Nanci Lamar sued Eric Poncon, Morgan's Rock Hacienda, and Ecolodge for negligence in causing injuries arising out of a car accident that occurred when the Lamars travelled to Nicaragua.  Morgan's Rock and Poncon filed special appearances to challenge the exercise of jurisdiction.

On three separate occasions, the Lamars moved for jurisdictional discovery, each time providing additional information as to what information they were seeking and why the jurisdictional discovery sought was needed.  Each time the trial court denied the request.   The trial court eventually sustained the special appearances, after which the Lamars appealed and complained of the rulings on their motions for discovery.

The court of appeals observes that Civil Procedure Rule 120a(3) governs jurisdictional discovery and under the rule, a party opposing a special appearance may have discovery into jurisdictional facts if it presents an affidavit that it cannot provide facts essential to justify its opposition to the special appearance.  The court held that a denial under this rule is governed by an abuse of discretion standard.  The court then recites all of the efforts the Lamars made to obtain the necessary information and concludes that the trial court abused its discretion by denying the jurisdictional discovery.  From a practitioner's standpoint, the court does not explain how the trial court's denial was a failure to follow guiding rules and principles or otherwise arbitrary.   Nor does the court indicate at what point (after the first motion, second motion or third motion, or all three), the denial of discovery constituted an abuse of discretion.

The court reverses an order granting the special appearance and remands the case to the trial court for further proceedings.  The court's opinion may be found here.

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