EVOLUTION OF THE SPECIAL APPEARANCE IN TEXAS By Fred A. Simpson1 and Deborah J. Selden2

Texas appellate courts published more than 200 opinions in the past ten years concerning

special appearances challenging in personam jurisdiction. All those cases put together do not tell

all that can be said about special appearances. We intend here to review the nature and evolution

of the special appearance in Texas, analyze recent trends, and speculate on the laws future

metamorphoses in this area.

A trial courts order sustaining a special appearance and subsequent dismissal of a target

defendant is immediately appealable because it disposes of parties and issues.3 On the other

hand, an overruled defendant in the trial court may not appeal the denied special appearance.4

These differences result from the fact that the order granting and dismissing is a final order but

the denial order is merely interlocutory, pending trial on the merits. Generally, the courts of

appeals review only final orders, not interlocutory orders such as denials of special appearances

which are not at this time among the six statutorily appealable interlocutory orders.5 As a result

of this situation, parties often learn that their special appearance should have been sustained only

after appeal of a final judgment from a costly trial in Texas courts.6 This may be an improper

taking without due process, as we shall explore.

1 Mr. Simpson is Of Counsel in the Houston Litigation Section of Jackson & Walker, L.L.P. 2 Ms. Selden is Senior Staff Attorney at the Fourteenth Court of Appeals, Houston. 3 See, e.g., Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630 (Tex. App. -- Dallas 1993, writ denied); Nikolai v. Strate, 922 S.W.2d 229 (Tex. App. -- Fort Worth 1996, n.w.h.). 4 See National Industrial Sand Assn v. Gibson, 855 S.W.2d 790, 791 (Tex. App. - Dallas 1993, orig. proceeding). 5 See TEX. CIV. PRAC. & REM. CODE ANN. 51.014. 6 See Laykin v. McFall, 830 S.W.2d 266, 268 (Tex. App. -- Amarillo 1992, orig. proceeding).

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Although nonresident defendants are traditionally allowed to challenge trial court rulings

on amenability to service of process, and thereby jurisdiction, only after final judgment,7

defendants have recently discovered another avenue for appellate review: a mandamus action

filed immediately after a special appearance is overruled.

History of the Special Appearance.

Until enactment of the Revised Statutes of 1879, citizens of the fledgling state of Texas

could enter a special appearance by filing a plea to the jurisdiction. In York v. State,8 (1889), the

Texas Supreme Court eliminated that avenue of relief by holding that the filing of any defensive

pleading, even one complaining of invalid or nonexistent service, constituted a general

appearance.9 After the U.S. Supreme Court upheld York,10 a nonresident defendant had only

two choices: (1) do nothing, allowing a default judgment to be entered, wait for the plaintiff to

attempt enforcement of that judgment in the defendants home state, and then attack the Texas

judgment as void,11 or, (2) appear and consent to Texas jurisdiction. If non-residents asked a

Texas court for any type of relief whatsoever, they were considered to have made a general

appearance.12

Until 1957, creative lawyers would ask friends to approach the court to suggest a want

of jurisdiction. The supreme court eliminated the amicus subterfuge when it found this third

party challenge was itself a general appearance by the nonresident.13

7 See N.H. Helicopters, Inc. v. Brown, 841 S.W.2d 424, 425 (Tex. App. - Dallas 1992, orig. proceeding) (order overruling a special appearance is interlocutory - not subject to immediate appeal). 8 73 Tex. 651, 11 S.W. 869 (1889), affd, York v. Texas, 137 U.S. 15, 11 S. Ct. 9, 34 L. Ed. 604) (1890). 9 York v. State, 73 Tex. 651, 657, 11 S.W.2d 869, 871 (1889). 10 137 U.S. 15, 21, 11 S. Ct. 9, 34 L. Ed. 604 (1890). 11 Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985). 12 Burger v. Burger, 298 S.W.2d 119 (Tex. 1957). 13 Burger v. Burger, 298 S.W.2d 119 (Tex. 1957).

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According to E. Wayne Thodes 1964 law review article on in personam jurisdiction, the

unfairness of York led to the 1962 adoption of Rule 120a of the Texas Rules of Civil Procedure.14

The principles of law and notions of fair play established in the U.S. Supreme Court case

familiar to most law students, Pennoyer v. Neff,15 (1878), were given added importance by the

expansion of interstate commerce after World War II and the relative ease with which defendants

may now defend in another forum, as recognized by the U.S. Supreme Court in McGee v.

International Life Ins. Co.16

Rule 120a, created in 1962, is not, however, really a departure from the holding in York v.

State. The last sentence of Rule 120a(1) states that [e]very appearance, prior to judgment, not

in compliance with this rule is a general appearance.17 The basic premise of the law remains:

the defendant must carefully plead that he is not amenable to service before he seeks any other

remedy from the court.18 Thode describes a plea in abatement under rule 120a as a laboring

oar in the hands of the defendant who has both the burden of proof and the burden of

persuasion.19

Rule 120a was amended in 1976 to enable the defendant to cure defects,20 which,

according to the notes and comments related to the rule, refers to defects in the motion itself and

any related affidavits. The rule was amended again in 1983 to encompass motion[s] to transfer

venue instead of plea[s] of privilege.21 The word challenge was also added to what was at

14 E. Wayne Thode, In Personam Jurisdiction; Article 2031B, The Texas Long Arm Jurisdiction Statute; And The Appearance To Challenge Jurisdiction In Texas and Elsewhere, 42 Tex. L. Rev. 279, 332 (1964). 15 95 U.S. 714, 24 L. Ed. 565 (1878) (Fourteenth Amendment violated where judgment follows service of process to a nonresident individual outside the forum, or by publication). 16 355 U.S. 220, 222-223 (1957). 17 See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985). 18 See TEX. R. CIV. P. 120a(2). 19 Thode, at 319. 20 See Kawasaki Steel, 699 S.W.2d at 203. 21 Tex. R. Civ. P. 120a(1).

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that time paragraph (2). In 1990, paragraph (3) was added to Rule 120a to provide hearing

procedures and evidentiary methodology.22

How Does Personal Jurisdiction Attach?

There are two ways Texas courts may exercise personal jurisdiction over a nonresident:

(1) by means of the Texas long-arm statute; or (2) if jurisdiction is consistent with federal and

state due process guarantees.23

Nonresidents are subject to the personal jurisdiction of the Texas long-arm statute if: (1)

they are doing business in Texas; (2) their business conducted in Texas is continuous and

systematic (general jurisdiction); or (3) where the litigation arises out of or is related to their

business (specific jurisdiction).24 For guidance in interpreting the term of art doing business,

one may look to the Texas Civil Practice and Remedies Code:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents directly or through an intermediary located in this state, for employment inside or outside this state.

TEX. CIV. PRAC. & REM. CODE 17.042 (Vernon 1986). The statute expressly shows that for jurisdictional purposes, a nonresident does business

in Texas by committing a tort in whole or in part in this state.25 This provision seems

22 Tex.R. Civ. P. 120a(3). 23 Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). 24 See OBrien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966). 25 TEX. CIV. PRAC. & REM CODE ANN. 17.42(2). However, the nonresident need not be physically present in Texas in order for due process to be satisfied. If the defendants activities outside the state have reasonably foreseeable consequences in the forum, jurisdiction may be found. See Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434, 438 n.5 (Tex. 1982).

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nonsensicle at first blush. But, there is no nonsense if the Texas statutory provision for torts is

construed to mean constitutionally permissible minimal contacts.26 And the provision is

consistent with constitutional due process whereby the plaintiff must show: (1) the nonresident

defendant purposefully established minimum contacts with Texas,27 and (2) the maintenance

of the suit does not offend `traditional notions of fair play and substantial justice.28

For a complete analysis of what is required in Texas to satisfy all prevailing due process

requirements, there is a contemporary Fort Worth decision which the reader should examine

carefully. Nikolai v. Strate, 922 S.W.2d 229 (Tex. App. - Ft. Worth 1996, writ denied). In order

to know that last word on the subject by the Texas Supreme Court, see CMMC v. Salinas, 929

S.W.2d 435, 437 (Tex. 1996), which lists the U.S. Supreme Court cases relied on by the Texas

Supreme Court and also lists the Texas decisions which the Texas Supreme Court considers to be

good law at this time. The decision in Canadian Helicopters, Ltd. v. Wittig,29 should also be

considered by the student of special appearances, not for the results of that case, but for the

principles which lead to later supreme court decisions. In other words, dicta in Canadian

Helicopters provides the rationale for later supreme court decisions.

Standard of Review.

In a special appearance, the nonresident defendant must negate all bases of personal

jurisdiction.30 On appeal, the appellate court reviews all evidence on the jurisdictional

question.31 The correct standard of review of the evidence is factual sufficiency, not a de novo

26 Thode, at 323. 27 International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945); Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 105, 107 S. Ct. 1026, 1028, 94 L. Ed. 2d 92, 100 (1987). 28 International Shoe, 326 U.S. at 316, 66 S. Ct. at 158, 90 L. Ed. at 102; Schlobohm, 784 S.W.2d at 357. 29 875 S.W. 2d 304 (Tex. 1994). 30 Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985). 31 Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App. -- Dallas 1993, writ denied).

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review.32 The appellate court reviews the trial courts conclusions of law to determine their

correctness.33 The party challenging the trial courts decision must establish that the facts and

law permitted the trial court but one decision.34 In the supreme court, the focus is on the trial

courts order regardless of the court of appeals decision.35

As in any other mandamus proceeding, the appellate court reviews the trial courts

decision for an abuse of discretion,36 reviewing the entire record.37

An appellate court may not reverse for an abuse of discretion merely because it disagrees

with the trial courts decision if the trial court had discretionary authority.38 The reviewing court

gives deference to the trial courts resolution of a factual issue and cannot set that decision aside

unless the record is clear that the trial court could have reached only one decision.39

An appellate court cannot deal with factual matters in a mandamus proceeding.40 An

abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and

some evidence reasonably supports the trial courts decision.41 An abuse of discretion does not

exist if some evidence in the record shows the trial court followed guiding rules and principles.42

32 Id. 33 Id. 34 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). 35 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). 36 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). 37 See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). 38 See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 39 See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). 40 Hooks v. Fourth Court of Appeals, 808 S.W.2d 56,60 (Tex. 1991); Dikeman v. Snell, 490 S.W.2d 183, 187 (Tex. 1973). 41 Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1986). 42 Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).

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If the trial court makes no findings of fact in connection with its rulings on the special

appearance, the courts judgment implies all necessary fact findings in support of the judgment.43

What Not To Resolve In a Special Appearance.

The question of whether a special appearance is the proper time to bring up questions of

improper service has arisen over the years. Improper service is clearly not the subject of a

special appearance. However, Texas case law suggests that practitioners may use the special

appearance as a forum to argue defective service, or other issues having nothing to do strictly

with the defendants amenability to service. Many contemporaneous special appearances

erroneously try to do that. The origin of the misunderstanding is as follows:

In 1965 the Texas Supreme Court decided McKanna v. Edgar.44 The case concerned a

writ of error from a default judgment, not a special appearance. Defective service to a California

resident was a material part of the decision. For many years thereafter, intermediate courts

viewed McKanna to mean that if a defendant challenged jurisdiction and the propriety of the

mechanics of service, even if curable, the defendants dismissal was appropriate even without

reaching any questions of the defendants minimum contacts with the forum states, an error

which persisted.45

The dissent in TM Productions v. Blue Mountain explains the error in great detail by

pointing to the words of Rule 120a which place the burden on the defendant to establish

defendants lack of amenability to service rather than focus on defective service by plaintiff.46

43 Temperature Systems, Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 672 (Tex. App. -- Dallas 1993, dismd by agr). 44 388 S.W.2d 927 (Tex. 1965). 45 See TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427, 431(Tex. App. -- Dallas 1981), writ refd n.r.e. per curiam, 639 S.W.2d 450(Tex. 1982). 46 TM Productions, Inc. v. Blue Mountain Broadcasting Co.,z 623 S.W.2d 427, 434-435 ((Tex. App. -- Dallas 1981), writ refd n.r.e. per curiam, 639 S.W.2d 450(Tex. 1982).

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In 1985 the Texas Supreme Court had a chance to explain the widespread misapplication

of McKanna in another case,47 commenting that only one intermediate court got it right over the

20 years since McKanna had been on the books.48 Kawasaki Steel Corp. v. Middleton49 clarified

what a 1982 supreme court case meant when it said, the non-resident defendant has the burden

of proof to negate all bases of personal jurisdiction.50 Kawasaki also shows that the defendant

must challenge defects in the petition, defective service of process, (and/or in the citation) in a

motion to quash, not in a special appearance.

In 1993 the Dallas Court of Appeals found in Temperature Systems, Inc. v. Bill Pepper,

Inc.51 that if the plaintiffs petition does not plead a prima facie case as to defendants minimum

contacts in the state, but plaintiff introduces evidence, to which defendant fails to object,

showing sufficient facts of minimum contacts, defendant may have allowed the matter to be tried

by consent.52 However, a vigorous dissent argued that Kawasaki only held that (1) a non

resident defendant makes a general appearance when complaining of defective jurisdictional

pleadings, defective service of process or citation without making those complaints subject to the

special appearance; and (2) the defendant need only negate the jurisdictional allegation in the

petition served on him, not those raised by the evidence at the hearing.53

47 Kawaskai Steel Corp. v. Middleton, 699 S.W.2d 199, 202(Tex. 1985). 48 The Kawasaki case refers to Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430, 434-35 (Tex. App. - Austin 1984, no writ). 49 699 S.W.2d 199(Tex. 1985). 50 Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434, 438 (Tex. 1982). 51 854 S.W.2d 669 (Tex. App. - Dallas 1993, writ dismd by agree.). 52 Temperature Systems, Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673-74(Tex. App. -- Dallas 1993, writ dismd by agree.). 53 Id. at 677.

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Careful practitioners will believe that the Temperature Systems majority is correct and

expressly negate both general and special jurisdiction even though only one of them appears in

the pleadings.

The Anatomy of a Special Appearance Hearing.

A special appearance hearing can be a very special trap for the unwary, and the metaphor

uncharted waters may also apply.54

The supreme court made it quite clear that a special appearance is not the time or place to

challenge defective jurisdictional allegations in a petition, nor defects in service or citation,55 as

discussed above. A special appearance may raise only issues of personal jurisdiction, not

questions of subject matter jurisdiction.56 The hearing on a special appearance is for the receipt

of evidence and proof, not just argument.57 The trial court, as the finder of fact, may accept or

reject any witnesss testimony in whole or in part.58 The trial court thus makes a mixed

decision of law and fact in deciding every special appearance, which is unique in the interplay

among defendant, forum state and litigation.59

Unlike federal practice,60 the defendant in Texas court has the burden of negating all

bases of jurisdiction, both specific and general.61 However, if the plaintiff asserts only one or

neither of the two bases of jurisdiction, general or special, the defendant may defeat the

54 See Louis S. Muldrow and Kendall M. Gray, Treading the Mine Field: Suing and Defending Non-Residents in Texas State Courts, 46 Baylor L. Rev. 581, 605 (1994). 55 See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)(motion to quash, allowing defendant more time to answer under Rule 122). 56 See Laykin v. McFall, 830 S.W.2d 266, 267 n.1 (Tex. App. -- Amarillo 1992, orig. proceeding). 57 CSR Limited v. Link, 39 Tex.Sup.Ct.J. 767, 773 (June 15, 1996) (Baker, dissenting). 58 Welborn Mortgage Corp. v. Kneels, 851 S.W. 2d 328, 332 (Tex. App. -- Dallas 1993, writ denied). 59 National Industrial Sand Assn v. Gibson, 855 S.W.2d 790, 791 (Tex. App. - El Paso 1993, orig. proceeding). 60 See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490 (5th Cir. 1974). 61 National Industrial Sand, 897 S.W.2d at 772.

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omitted bases by merely proving the lack of Texas residency.62 However, if the plaintiff

introduces evidence supporting general and/or specific jurisdiction, and defendant fails to object

to the lack of pleadings, matters concerning defendants amenability to service may be tried by

consent.63

Although Rule 120a requires strict compliance, the trial court has discretion to enter

other orders as are just.64 For example, it appears that if one party files affidavits exactly

seven days prior to the hearing on the special appearance, in precise compliance with Rule 120a,

the court may reset the hearing or otherwise allow a shorter period of time for the opposition to

file responding affidavits which would otherwise be precluded by the seven day requirement of

the rule.65

The essential steps in a special appearance are these:

62 See Temperature Systems, Inc. v. Bill Pepper, Inc., 854 S.W. 2d 669 (Tex. App. -- Dallas 1993, writ dismd by agr). 63 Temperature Systems, Inc., 854 S.W.2d at 673-674. 64 See Potkovick v. Regional Ventures, Inc., 904 S.W. 2d 846, 850 (Tex. App. -- Eastland 1995, no writ). 65 See Id.

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i. Plaintiff makes a prima facie case66 that personal jurisdiction is proper by pleading in his/her/its petition that nonresident is amenable to service because of minimum contacts with Texas, including any continuing and systematic contacts.

ii. Plaintiff serves non-resident defendant. iii. Defendant files a request for a special appearance in the form of a

motion for the court to determine amenability to jurisdiction, before defendant files any other pleadings which could constitute an answer or other form of request for judicial relief.

iv. Defendant may perform discovery under Rule 120a without fear of waiving the special appearance. Defendant may put at issue defective service so long as that challenge is framed as a motion to quash filed subject to the special appearance.67

v. Defendant requests an evidentiary hearing on the special appearance or personal jurisdiction is waived.68 At the hearing, defendant offers facts to show that (1) plaintiff does not present a prima facie case, (2) the alleged amenability facts are not true, and/or (3) there are no pleadings in support of the evidence offered as to contacts with Texas; and (4) an assumption of jurisdiction will offend traditional notions of fair play and substantial justice.

vi. Trial court determines whether amenability exists, based on pleadings, stipulations, affidavits and attachments, results of discovery, and oral testimony offered at the hearing or prior thereto, and served at least seven days before the hearing, if affidavits are used.69 Nothing in the rules requires advance notice by either party that live or deposition testimony may be offered.

Unless defendant is dismissed for want of personal jurisdiction, the question of appeal is

an obvious one. Is it necessary for defendant to go through the entire trial and then appeal if

judgment is entered for plaintiff, or may defendant seek immediate mandamus relief after the

hearing?

When Is Mandamus Relief Possible?

In Laykin v. McFall,70 the Amarillo Court of Appeals found in 1992 that mandamus was

a proper vehicle to challenge the trial courts assuming jurisdiction over a resident of

66 A prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party. Duncan v. Butterowe, Inc., 474 S.W.2d 619, 621 (Tex. Civ. App. -- Houston [14th Dist.] 1971, no writ) (citing Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (Tex. Comm. App. 1940, opinion adopted); 24 Tex. Jur. 2d, Evidence, Sec. 726 (1961)). See also 35 Tex. Jur. 3d, Evidence, Sec. 99 et seq. 67 See Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430, 435(Tex. App. -- Austin 1984, no writ). 68 Bruneio v. Bruneio, 890 S.W.2d 150 (Tex. App. -- Corpus Christi 1994, no writ). 69 Tex. R. Civ. P. 120a(3). 70 830 S.W. 2d 266 (Tex. App. -- Amarillo 1992, orig. proceeding).

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California. The court examined the supreme court holding in Walker v. Packer,71 and considered

instances in which the supreme court said there may not be an adequate remedy on appeal. One

such instance is in a discovery situation where the burden on the party being called on to produce

is far out of proportion to the benefit to be obtained by the requesting party. The failure to

sustain a special appearance was found to be analogous to that type of discovery situation: both

parties must go through an exercise in futility if the expense and delay of a trial will be

dismissed on appeal.72 The Amarillo Court of Appeals used the supreme court case of United

Mexican States v. Ashley,73 involving sovereign immunity, and the San Antonio case of

Hutchings v. Biery74 as viable precedent for granting mandamus.

The Laykin court also relied on the supreme courts due process checklist for

determining jurisdiction over a nonresident:

1. The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in Texas.

2. The cause of action must arise from, or be connected with, such act or transaction. Even if the cause of action does not arise from a specific contact, jurisdiction may be exercised if the defendants contacts with Texas are continuing and systematic.

3. The assumption of jurisdiction by the court must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in Texas, the relative convenience of the parties, the benefits and protection of the laws of Texas and afforded the respective parties, and the basic equities of the situation.

Schlobohm v. Schapiro, 784 S.W. 2d 355, 356-58 (Tex. 1990). National Industrial Sand v. Gibson75 was an original mandamus action in the Supreme

Court of Texas which followed an unsuccessful mandamus action in the El Paso Court of

71 827 S.W. 2d 833 (Tex. 1992, orig. proceeding). 72 Laykin, 830 S.W. 2d at 268. 73 556 S.W. 2d 784 (Tex. 1977). 74 723 S.W. 2d 347, 350 (Tex. App. -- San Antonio 1987, no writ). 75 897 S.W.2d 769 (Tex. 1995).

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Appeals.76 The intermediate court ruled that there was an adequate remedy by appeal from any

final judgment that could result. The supreme court disagreed, based on an exception to rules

announced in 1994 (but not then applied) when the court decided Canadian Helicopters Ltd. v.

Wittig.77 The exception described in Canadian Helicopters involves an abuse of discretion by

the trial court where harm to the defendant becomes irreparable.78

National Industrial Sand involved lawsuits by workers who contracted silicosis in their

occupation as sandblasters. They sued manufacturers and sellers of sand on negligence and

product liability theories, and joined the sand industrys Maryland lobbying organization,

National Industrial Sand Association, the association. Plaintiffs brought the association into

the underlying lawsuits on a conspiracy theory.

The association sought mandamus relief in the El Paso Court of Appeals by urging there

was no adequate remedy by appeal because forcing it to defend itself throughout protracted

litigation would be a violation of its due process rights. The court of appeals found the

association had an adequate remedy at law, explaining that a special appearance is usually an

incidental pretrial matter not subject to mandamus relief, and following the principle that The

cost of litigation alone does not render appeal an inadequate remedy requiring mandamus

relief.79 The El Paso court of appeals sided with the Dallas court of appeals80 and refused to

join the Amarillo Court of Appeals in its 1992 unique exception to the general rules in Laykin v.

McFall.81

76 855 S.W.2d 790 (Tex. App. - El Paso 1993, orig. proceeding). 77 875 S.W. 2d 304, 307 (Tex. 1994). 78 876 S.W. 2d at 308. 79 Citing to Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954 (Tex. 1990, orig. proceeding). 80 Citing to N.H. Helicopters, Inc. v. Brown, 841 S.W.2d 424, 426 (Tex. App. -- Dallas 1992, orig. proceeding). 81 See Laykin v. McFall, 830 S.W.2d 266 (Tex. App. -- Amarillo 1992, orig. proceeding).

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National Industrial Sand in the supreme court, reversing the court of appeals holding,

was a 5-4 decision. The fact that plaintiffs bare allegations lacking any evidence of tortious

acts in Texas created the total and inarguable absence of jurisdiction which justified

mandamus relief.82 The court apparently found its actions consistent with its comments in

Canadian Helicopters that a trial courts denial of a special appearance might be so clearly

erroneous that harm would be irreparable and mandamus would be appropriate.83 The dissenting

minority argues that a party must show more than ordinary expense and delay. The dissent

further grumbles that the supreme court may as well begin issuing extraordinary writs to correct

denials of summary judgment.84

The dissent refers to two situations in which appeal may not provide an adequate remedy:

parent-child relationships, and comity in foreign affairs, consistent with earlier supreme court

dicta.85 Furthermore, the dissent points out that the association argued only that its being put to

trial will violate its rights to due process, an argument that was rejected in Canadian

Helicopters, Ltd. v. Wittig.86

The more recent case of CSR Limited v. Link,87 an 8-1 decision, demonstrates the trend of

the supreme court regarding mandamus relief.

CSR, an Australian company, sold asbestos to Johns-Manville in 1957, F.O.B. Australia.

Plaintiffs in a Harris County lawsuit named CSR as a defendant in one of the many asbestos

cases filed there. CSR filed a special appearance which was denied by the trial court. The court

82 897 S.W.2d at 776. 83 Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 308-09 (Tex. 1994). 84 National Industrial Sand at 777. 85 See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 310 (Tex. 1994) (Hecht, dissenting); see 876 S.W.2d at 306. 86 876 S.W.2d 304 (Tex. 1994). 87 39 Tex. Sup. Ct. J. 767 (Jun. 15, 1996).

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of appeals then denied mandamus. The supreme court considered the personal jurisdiction issue

raised in a second mandamus proceeding brought by CSR.

The supreme court reviewed the standards by which a person or corporation may have

minimum contacts with Texas, and cautioned that random, fortuitous, or attenuated

contacts should not subject a person to jurisdiction by a foreign court.88

The strongest argument against defendant CSR was that CSR knew that one of the Johns-

Manville plants was in Texas. The plaintiff contended that CSR could have foreseen that its raw

asbestos fibers would be used in Texas. Although foreseeability is a factor to be considered in a

minimum contact analysis, the defendant must take an action purposefully directed toward the

forum state to become subject to the jurisdiction of its courts.89 The trial court was found to

have abused its discretion. But the more important part of the supreme court decision concerns

an adequate remedy by ordinary appeal, where increased cost and delay of trial and appeal are

present, such as in CSR.

The extraordinary situation in CSR was the large number of lawsuits to which CSR

Limited could potentially be exposed, coupled with consideration for the most efficient use of

the states judicial resources.

The courts solution in CSR was deemed to be in accordance with the approach of other

jurisdictions where personal jurisdiction is clearly and completely lacking.90

The concurring opinion by Justice Gonzales urges the supreme court to clarify its

position and specify the irreparable types of harm which may justify mandamus as opposed to

ordinary appeal, particularly in the case of a foreign defendant with no ties at all to Texas, where

perhaps no showing of irreparable harm should be required.

88 Citing to Asahi Metal Ind. Co. Ltd. v. Superior Court, 480 U.S. 102, 114, 107 S.Ct. 1026, 1033, 94 L.Ed. 2d 92 (1987). 89 CSR at 770. 90 ________________________________________

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The dissent by Justice Baker is of particular import because it foretells of increase in

mandamus practice. He would have mandamus apply only in cases of sovereign immunity,

comity and the parent-child relationship. Justice Baker, while at the Dallas Court of Appeals,

authored Hotel Partners v. KPMG Peat Marwick,91 a well thought out opinion which affirmed

the dismissal of a foreign partnership in a special appearance proceeding.

In CSR, Justice Baker criticizes the amorphus standard of a clear and super clear abuse

of discretion,92 the methodology for showing irreparable harm, and the courts analysis of CSR

under such standards.93 In particular he notes the lack of proof in the record that the defendant

would suffer irreparable harm by remaining in the litigation pending an opportunity to pursue

ordinary appeal. In other words, CSR Limited failed in its burden to prove irreparable harm at

the special appearance hearing in the trial court. The result is that the CSR decision gives trial

courts and courts of appeal no clear guidelines. If interlocutory appeal should be allowed under

Rule 102a, Justice Baker urges the State Bar Rules Committee to make that change in

conjunction with the supreme courts rule-making authority, or for the legislature to provide a

method for interlocutory appeal of the denial of a special appearance, such as is found in the

Civil Practices and Remedies Code. He said:

Without statute or rule to provide interlocutory appeal, I do not believe mandamus is appropriate after the denial of a special appearance except in cases involving sovereign immunity, comity and child custody issues. These limited exceptions invoke important, and many times, immediate public policy concerns, which is not the case here, nor was it the case in National Sand.

* * *As the Court has been reminded, hard cases make bad law. CSRs position in this case offers hard enough facts. Nevertheless, I believe that the Courts decision today sets bad precedent that adds uncertainty to pretrial rulings and, as a result, encourages litigants to unnecessarily file original proceedings.

91 847 S.W.2d 630 (Tex. App. -- Dallas 1993, writ denied). 92 Reflecting on the Hecht dissent in Canadian Helicopters.93 39 Tex. Sup. Ct. J. at 777.

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* * *Because todays decision can only lead the Court down a road of no return, I respectfully dissent.94 In a more recent case, the supreme court reviewed the question of whether Texas had

personal jurisdiction over the French corporation that manufactured a defective wine press

delivered into Texas.95 The trial court said no. The Austin Court of Appeals reversed. A

unanimous supreme court affirmed the trial courts holding. The supreme court rejected the idea

that placement of a product into the stream of commerce, without more, is an act which is

purposefully directed toward the forum state, Texas. There was insufficient additional conduct

to cross the necessary jurisdictional threshold. The supreme court quoted from the Burger

King96 when deciding there were no minimum contacts:

Minimum contacts are particularly important when the defendant is from a different country because of the unique and onerous burden placed on a party called upon to defend a suit in a foreign legal.97

Thus, besides sovereignty and comity, notions of fair play require extra consideration to be

applied if the defendant is to be haled into an unfamiliar arena.

Conclusion.

Mandamus appears to be ensured in cases of sovereign immunity and comity. Child

custody and support and the parent-child relationship have enough potential for irreparable harm

and case law precedent that mandamus should be allowed. But what after that? We have seen

that a foreign corporation should not be subjected to Texas courts without a careful review of the

trial courts examination of the jurisdictional facts. What other circumstances warrant

mandamus? What if medical experts testify that a person is in poor health and the stress of a trial

may impose serious and permanent damage, or even death? What if financial experts testify at a 94 39 Tex. Sup. Ct. J. at 777. 95 CMMC v. Salinas, 929 S.W.2d 435 (Tex. 1996). 96 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L.Ed. 2d 528(1985) 97 CMMC v. Salinas, 929 S.W.2d at 440.

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special appearance that a person or corporation will face certain insolvency and dissolution from

the expense of a trial? Are those reasons enough for mandamus? Based on National Sand, the

answer is yes.

However, a better answer is that to refuse to hear an appeal from an adverse ruling on a

special appearance may be a violation of due process and a taking in that the party resisting

jurisdiction may be compelled to expend funds needlessly to buy the right to an appeal in which

the party may become exonerated, but without the right under the prevailing Texas law to

recover the costs of defending the improvident lawsuit which had no jurisdictional basis in the

first place. Thus, and addition to the laundry list of appealable interlocutory orders would be

appropriate.98

Rule 120a could be amended to permit an interlocutory appeal after a dismissal by special

appearance is denied, similar to those now available under the Civil Practice and Remedies Code

for a variety of specific cases.99

The 75th Texas Legislative Session opens in 1997. There are a number of tort reform

bills before it. One of these bills contains a proposition to add the granting or denial of a special

appearance to the list of appealable interlocutory orders shown in the Civil Practice and

Remedies Code.100

However, under the Legislature acts, if it does, the most likely path an interim appeal of a

special appearance will take is mandamus whenever defendants are moved by the circumstances

of their individual cases to assert that irreparable harm may result, including irreparable harm to

their rights of due process, as in National Sand.

98 TEX. CIV. PRAC. & REM. CODE ANN. 51.014. 99 TEX. CIV. PRAC. & REM. CODE ANN. 51.014. 100 TEX. CIV. PRAC. & REM. CODE ANN. 51.014.