Opinion issued June 9, 2016




                                    In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-15-00232-CV
                          ———————————
       NATIONWIDE DISTRIBUTION SERVICES, INC., Appellant
                                      V.
        ROBERT JONES AND POLY TRUCKING, INC., Appellees


                  On Appeal from the 133rd District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-64642


                                 OPINION

      This is an interlocutory appeal from the trial court’s denial of a special

appearance filed by appellant National Distribution Services, Inc. See TEX. CIV.

PRAC. & REM. CODE § 51.014(a)(7). On appeal, NDS argues that it did not have the
kinds of contact with Texas that would confer specific or general jurisdiction on the

court. It also denies having waived its special appearance.

      Because NDS violated the due-order-of-hearing requirement of Rule 120a by

scheduling a hearing and obtaining affirmative relief inconsistent with a challenge

to the court’s jurisdiction, we conclude that it waived its special appearance, and we

affirm the trial court’s order.

                                    Background

      National Distribution Services, Inc. is a Tennessee corporation that operated

a warehouse in Roswell, Georgia, under a contract with Kimberly-Clark, a Delaware

corporation. In its capacity as warehouseman, NDS stored Kimberly-Clark’s

products and loaded them onto trucks in Georgia. In February 2012, NDS loaded a

truck owned by Poly Trucking, a Texas corporation with its principal place of

business in Grand Prairie, Texas, located in Dallas and Tarrant Counties. Robert

Jones, a Michigan resident and an employee of Poly Trucking, drove the truck from

Georgia to Harris County, Texas, where, upon unloading, the cargo fell out of the

trailer and struck his head and ankle. Jones was seriously injured and required

several surgeries.

      Jones sued NDS in Texas for negligence, alleging that it improperly loaded

the cargo in Georgia. He also sued Kimberly-Clark. Poly Trucking intervened,

claiming that it was entitled to subrogation from the other defendants as a non-



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subscriber to Texas Worker’s Compensation Insurance which had paid benefits to

Jones. The merits of the claim against the other defendants and Poly Trucking’s

subrogation claims are not relevant to the disposition of the procedural issues in this

appeal.

      In March 2014, NDS filed a special appearance, a motion to dismiss for lack

of personal jurisdiction, and an original answer. In August 2014, it served

interrogatories and requests for production to Jones and to Poly Trucking. In

particular, NDS sought production of driver’s logs and vehicle inspections for the

two weeks immediately preceding the incident. In late October 2014, NDS filed

motions to compel Jones to provide more complete answers to interrogatories and to

compel Poly Trucking to produce the driver’s logs and vehicle-inspection reports for

the truck. In addition, NDS and its codefendants filed a joint motion for continuance

of the expert-designation deadline.

      The trial court held a hearing in November 2014 on NDS’s motions to compel

and the motion for continuance. At that time, the case was set for trial in February

2015. With respect to the motion to compel, NDS argued that it needed the driver’s

logs, vehicle-inspection reports, and additional information from the plaintiff to

defend itself at trial. NDS also argued that because the case involved “a loading

incident,” “what was going on for that period of time while [Jones] was in transit,”

including “where he stopped” and “how long he stopped,” was “entirely relevant”



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to its defense. The trial court granted the motion to compel production of the driver’s

logs and vehicle-inspection reports.

      As to the motion for continuance of the expert-designation deadline, NDS

argued that it would be difficult to meet the deadline without having taken the

plaintiff’s deposition, which, at that time, was set for mid-December 2014. Although

NDS had designated liability and damages experts “out of an abundance of caution,”

it argued that it might need to supplement or amend its designations based on Jones’s

deposition testimony. The trial court asked the parties to confer about scheduling,

and after the hearing a new docket control order extended the deadline for

designating experts by about two months and reset the case for trial in May 2015.

      On February 6, 2015, NDS filed a notice that its special appearance would be

heard on February 23, 2015. Jones responded that NDS had waived its special

appearance by filing motions to compel discovery on issues relating to the merits of

his claim and by asserting that it planned to proceed to trial. Jones also argued that

NDS had minimum contacts with Texas sufficient to support both specific and

general jurisdiction. The trial court denied the motion to dismiss, and NDS filed this

interlocutory appeal.




                                          4
                                        Analysis

      On appeal, NDS contends that the trial court lacked general or specific

jurisdiction over it, and that it did not waive its right to contest jurisdiction. Because

it is dispositive, we address the waiver issue.

      Jones and Poly Trucking argue that NDS waived its special appearance

because filing, setting for submission, and obtaining a ruling on a motion to compel

discovery on the merits of the case prior to obtaining a ruling on its special

appearance violated the due-order-of-hearing requirement of Rule 120a(2).

      NDS argues that it did not waive its special appearance because Rule 120a

specifically provides that 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). It further argues that a motion is not a “plea or pleading,” and therefore

its motions to compel production did not violate the due-order-of-hearing rule. TEX.

R. CIV. P. 120a(2).

      “To render a binding judgment, a court must have both subject matter

jurisdiction over the controversy and personal jurisdiction over the parties.” Spir Star

AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010) (citing CSR Ltd. v. Link, 925 S.W.2d

591, 594 (Tex. 1996)). A party may challenge a trial court’s jurisdiction over it by

filing a special appearance—a sworn motion asserting that the court lacks



                                            5
jurisdiction—which may be filed without the movant submitting to the court’s

jurisdiction. See TEX. R. CIV. P. 120a(1). A defendant that does not strictly comply

with the procedural requirements of Rule 120a, including the due-order-of-pleading

and due-order-of-hearing requirements, waives its jurisdictional challenge and

enters a general appearance. See id. A defendant also waives a special appearance

and “enters a general appearance when it (1) invokes the judgment of the court on

any question other than the court’s jurisdiction, (2) recognizes by its acts that an

action is properly pending, or (3) seeks affirmative action from the court.” Exito

Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson-Austin v.

Austin, 968 S.W.2d 319, 322 (Tex. 1998)).

      Rule 120a specifies a due order of hearing, which requires a specially

appearing party to ensure that his special appearance is heard and determined before

he obtains a ruling on a motion to transfer venue or any other plea or pleading. The

rule provides:

      Any motion to challenge the jurisdiction provided for herein shall be
      heard and determined before a motion to transfer venue or any other
      plea or pleading may be heard. No determination of any issue of fact in
      connection with the objection to jurisdiction is a determination of the
      merits of the case or any aspect thereof.




                                         6
TEX. R. CIV. P. 120a(2).1 A specially appearing party will not waive the jurisdictional

challenge by seeking affirmative relief consistent with the special appearance. See

Dawson-Austin, 968 S.W.2d at 323. But if it obtains a hearing on a matter seeking

affirmative relief inconsistent with a special appearance before obtaining a ruling on

the special appearance, it has entered a general appearance and waived any challenge

to personal jurisdiction. See Trenz v. Peter Paul Petroleum Co., 388 S.W.3d 796,

803 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

      In Trenz v. Peter Paul Petroleum Co., 388 S.W.3d 796 (Tex. App.—Houston

[1st Dist.] 2012, no pet.), the defendant filed a special appearance, and the trial court

held a hearing without immediately issuing a ruling. Id. at 801. The defendant

subsequently obtained a ruling on a motion for summary judgment, and the case was

continued many times over several years. Id. at 801–02. Over six years after the

hearing on the special appearance, and three days before a final trial setting, the court

overruled the defendant’s special appearance. Id. at 802.


1
      Rule 120a also specifies a due order of pleading, which requires that a
      specially appearing party file the special appearance before filing a motion to
      transfer venue or any other plea, pleading, or motion. TEX. R. CIV. P. 120a(1).
      That rule further provides that “[t]he 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.”
      Id. In this case, NDS filed motions to compel discovery from the plaintiff and
      a codefendant. There is no dispute about the timing of the filing of the motions
      relative to the special appearance. All parties agree that the special appearance
      was filed before the discovery motions, and therefore no due-order-of-
      pleading issue is presented by this appeal.

                                           7
      On appeal, the plaintiff argued that the defendant had violated the due-order-

of-hearing requirement by obtaining a hearing on his motion for summary judgment

before obtaining a ruling on his special appearance. See id. at 802–03. The defendant

conceded that he had sought affirmative relief inconsistent with his assertion that the

trial court lacked jurisdiction, and he did not argue that the hearings were

“inextricably intertwined with, or otherwise related to, his special appearance.” Id.

at 803. Rather, the defendant asserted that there was no waiver because the court

impliedly ruled on his special appearance at the time of the hearing. Id. This court

rejected that argument, holding that the defendant had waived his special appearance

by continuing to prosecute the litigation while failing to obtain a ruling on his special

appearance until six years after the hearing. Id.

      In this case, NDS filed motions to compel discovery that sought production

of driver’s logs and vehicle-inspection reports for the two weeks immediately

preceding Jones’s injury. Poly Trucking had objected to these discovery requests,

refusing to provide the requested records. NDS also sought to compel interrogatory

answers from Jones. It argued that the information it sought was necessary to defend

itself on the merits of the case at trial. NDS also filed a motion for continuance of

the expert-designation deadlines.

      At the hearing on these discovery motions in November 2014, counsel for

NDS emphasized that the case was set for trial in February 2015 to show how much



                                           8
preparation—and how little time—remained. Cognizant that the trial court did not

want the trial postponed until the following summer, counsel for NDS said: “that’s

another reason why we’re here because we figured that by bringing this up to the

Court now in November . . . . we’d have a better chance of getting another trial

setting that’s closer to the February one . . . .” Counsel did not mention the pending

special appearance or any jurisdictional challenge.

      NDS, the specially appearing party, was the party that set the motions to

compel, the motion for continuance, and its special appearance for hearings. As such,

it was NDS that elected to have its motion to compel heard before its special

appearance. See Trenz, 388 S.W.3d at 803 (specially appearing party has the burden

obtain a ruling on its special appearance in compliance with Rule 120a). On appeal,

NDS concedes that the evidence it sought in its motions to compel was relevant only

to the merits of the case, not the jurisdictional dispute.

      Under the governing authorities of the Supreme Court of Texas, NDS has

failed to show that its discovery litigation actions were consistent with its

jurisdictional challenge under the specific facts of this case. In Dawson-Austin v.

Austin, 968 S.W.2d 319 (Tex. 1998), the Supreme Court considered whether, under

the particular facts of a divorce case, the specially appearing defendant’s actions

were consistent with the jurisdictional challenge. Dawson-Austin, 968 S.W.2d at

322. The wife had filed for divorce in California, while the husband had filed for



                                            9
divorce in Texas. Id. at 321. In Texas the wife filed a special appearance, a motion

to quash service of citation, a plea to the jurisdiction, a plea in abatement, and an

original answer. Id. The husband set her motion and pleas for hearing, arguing that

he needed a ruling on these matters in order to protect his interests in the California

lawsuit. Id. at 323. After the wife moved for a continuance of the hearing, which the

trial court denied, the husband argued that the wife had violated the due-order-of

hearing requirement by obtaining a ruling on her motion for continuance. Id.

      The Supreme Court explained that under the specific facts of that case, the

wife’s motion for continuance was not a general appearance. Id. at 324. Because the

wife “was entitled to request more time to prepare for the special appearance hearing

that [the husband] set,” her motion for continuance of the hearing was not unrelated

to the jurisdictional question. Id.

      In Exito Electronics Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004), the Supreme

Court held that a defendant did not waive its special appearance by obtaining an

order compelling production of jurisdictional discovery before obtaining a ruling on

its special appearance. Trejo, 142 S.W.3d at 306. In doing so, the Court applied the

Dawson-Austin framework and held that participating in the resolution of a

discovery dispute that pertains to the very issue at the center of the special

appearance “does not amount to a recognition that the action is properly pending or

a request for affirmative relief inconsistent with the jurisdictional challenge.” Id. at



                                          10
306–07. However, the Court also noted that it was “undisputed that the discovery”

in that case “concerned Exito’s special appearance.” Id. at 306 n.24. The Court

“express[ed] no opinion on the effect of parties’ participation in discovery that is

unrelated to the special appearance before its resolution.” Id.

      By contrast, in this case there is no dispute that both the motion to compel

discovery and the motion for continuance of expert designation deadlines solely

concerned litigating the merits of the case and not the jurisdictional issue. NDS

argues on appeal that these motions were merely a contingency in the event that the

court denied the special appearance. But NDS elected to set the motion to compel

discovery as well as the motion for continuance of expert designation deadlines for

hearings prior to setting a hearing for its previously filed special appearance. And it

has not explained why it required a ruling on its motion to compel merits-based

discovery before it obtained a ruling on the special appearance or how the election

to obtain a ruling on merits-based discovery before obtaining a jurisdictional ruling

is consistent with its special appearance.

      Instead, NDS contends that because its motion implicated discovery, the text

of Rule 120a provided a safe harbor protecting it from waiver of its special

appearance. Among other things, Rule 120a(1) states that 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


                                             11
appearance.” TEX. R. CIV. P. 120a(1). The rule does not define “discovery

processes.”

      In Silbaugh v. Ramirez, 126 S.W.3d 88 (Tex. App.—Houston [1st Dist.] 2002,

no pet.), a defendant sought protection from merits-based discovery by filing a

motion to quash a codefendant’s deposition and a motion for protection from the

plaintiff’s discovery requests. Silbaugh, 126 S.W.3d at 93. The defendant set her

motion for protection for submission, although the court never heard it or ruled on

it. Id. The plaintiff argued that the defendant waived her special appearance by

setting her motion for hearing. Id. This court held that the plaintiff did not waive her

special appearance because “the discovery process includes timely objections to

discovery and does not require a defendant to choose between waiving discovery

objections and waiving her special appearance,” and the defendant’s actions in

defending against merits-based discovery were “part of the discovery process.” Id.

Likewise, in Hotel Partners v. Craig, 993 S.W.2d 116 (Tex. App.—Dallas 1994,

pet. denied), the Dallas Court of Appeals held that a defendant’s filing of a motion

for a protective order in response to the plaintiffs’ motion to compel production was

“a proper use of the discovery process” and was “not a waiver of a previously filed

special appearance.” Hotel Partners, 993 S.W.2d at 123.

      In Case v. Grammar, 31 S.W.3d 304 (Tex. App.—San Antonio 2000),

abrogated on other grounds by BMC Software Belgium, N.V. v. Marchand, 83



                                          12
S.W.3d 789 (Tex. 2002), several defendants participated in a deposition and filed

motions to compel answers to interrogatories and responses to requests for

production which pertained to both the merits of the case and the jurisdictional issue.

Case, 31 S.W.3d at 310–11. The motions were not heard, id. at 311, and the trial

court denied the special appearances. Id. at 307. The San Antonio Court of Appeals

held that the defendants did not waive their special appearance because Rule 120a

states that use of discovery processes is not waiver, and it “specifically contemplates

ongoing discovery by both the party challenging jurisdiction and the party invoking

it.” Id. at 311. In a subsequent opinion, the San Antonio Court of Appeals held that

participation at a hearing on a motion for default judgment, which was based on

discovery abuse, was also part of the discovery process and did not waive the special

appearance. Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 9 (Tex. App.—San

Antonio 2004, pet. denied).

      The foregoing cases involved defendants engaging in discovery in some way

that was consistent with a pending jurisdictional challenge, and therefore they are

factually distinguishable from this case. The case law shows that a specially

appearing party does not waive its jurisdictional challenge by: (1) serving

nonjurisdictional discovery requests;2 (2) filing a motion to compel nonjurisdictional


2
      Horowitz v. Berger, 377 S.W.3d 115, 124 (Tex. App.—Houston [14th Dist.]
      2012, no pet.); Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex. App.—Houston
      [1st Dist.] 2002, no pet.).

                                          13
discovery but not scheduling a hearing or obtaining a ruling on such motion;3

(3) litigating a jurisdictional discovery dispute;4 (4) litigating other disputes that are

factually related to the special appearance;5 or (5) litigating opposition to merits-

based discovery sought by another party.6 To the extent each of these examples

involved a defendant’s “use of discovery processes,” none of them also involved a

violation of the due order of pleading.

      NDS relies on cases involving compelled discovery from a specially

appearing party, but to no avail. Merits-based discovery should not be compelled

from a specially appearing defendant before ruling on the jurisdictional challenge.

See, e.g., In re Stern, 321 S.W.3d 828, 840–41 (Tex. App.—Houston [1st Dist.]

2010, no pet.) (motion to compel sought information that “far exceeded discovery

of jurisdictional facts”); see also IRN Realty Corp. v. Hernandez, 300 S.W.3d 900,



3
      Horowitz, 377 S.W.3d at 124; Silbaugh, 126 S.W.3d at 93.
4
      Exito Electronics Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004).
5
      First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d at 767, 776–78 (Tex.
      App.—Houston [1st Dist.] 2008, pet. denied).
6
      Forest River, Inc. v. Quality Frames, Inc., No. 01-04-01038-CV, 2005 WL
      615424, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2005, no pet.)
      (mem. op.) (moving to quash deposition of specially appearing party’s
      corporate representative does not waive special appearance); Gutierrez v.
      Cayman Islands Firm of Deloitte & Touche, 100 S.W.3d 261, 267 (Tex.
      App.—San Antonio 2002, pet. dism’d) (filing petition for writ of mandamus
      opposing an order compelling discovery does not waive special appearance).

                                           14
902–03 (Tex. App.—Eastland 2009, no pet.) (holding that plaintiff was not entitled

to order compelling merits-based discovery before the trial court ruled on special

appearance). In such cases, it has been the plaintiff seeking an order from the court

to compel discovery on the merits, and plaintiffs in that circumstance do not contend

that the court lacks jurisdiction over the case. See Stern, 321 S.W.3d at 840–41; IRN

Realty Corp., 300 S.W.3d at 901–02.

      In this case, NDS did not waive its special appearance merely by participating

in discovery processes. See Silbaugh, 126 S.W.3d at 93–94. It waived its special

appearance by obtaining affirmative relief from the trial court that was entirely

unrelated to the jurisdictional challenge. See Trejo, 142 S.W.3d at 306; Dawson-

Austin, 968 S.W.2d at 322. This was inconsistent with its claim that the court lacked

personal jurisdiction, and it was a violation of Rule 120a’s due-order-of-hearing

requirement. See TEX. R. CIV. P. 120a(2).

                                    Conclusion

      We conclude that NDS violated the due-order-of-hearing requirement of

Rule 120a(2) and that it waived its special appearance. In light of this conclusion,

we hold that the trial court did not err by denying it. Because we have found that

NDS waived its special appearance, it is not necessary for us to address NDS’s other

appellate issues. See TEX. R. APP. P. 47.1.




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      We affirm the interlocutory ruling of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.




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