                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00019-CV
         ______________________________


             MILACRON INC., Appellant

                          V.

     PERFORMANCE RAIL TIE, L.P., Appellee



    On Appeal from the 62nd Judicial District Court
                Lamar County, Texas
                Trial Court No. 75389




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                             OPINION

        Delaware corporation Milacron Inc. appeals the denial of its special appearance filed during

trial. We affirm the trial court's ruling that Milacron Inc. waived its special appearance for a variety

of reasons, including its neglect of the Texas Rules of Civil Procedure.

I.      Procedural Background: The Games Begin

        Performance Rail Tie, L.P., brought suit against Milacron Inc., which Performance alleged

had manufactured an extruder component contained within a machine built to produce composite

railroad ties. The extruder component malfunctioned, causing an explosion which severely damaged

the railroad tie machine. After filing suit, Performance had Milacron Inc. served with citation. In

response, Performance received an answer from Milacron Marketing Company (not then yet sued

by Performance), which purported to unilaterally substitute itself as the proper party to the suit in lieu

of Milacron Inc. Performance subsequently amended its petition several times to include both

Milacron Marketing Company and Milacron Inc. Despite the amended pleadings (which contained

an amended style and included the names of both entities as party defendants), no special exception

was filed by Milacron Inc.1 Instead, all pleadings and discovery documents were executed either by




        1
        For the first time on appeal, Milacron Inc. argues that Performance brought suit against
"Milacron, Inc., an entity that does not exist" (pointing out that the true name of the corporation does
not contain a comma). Since no special exception was filed to point out to the trial court the
existence of the superfluous comma, we reject Milacron Inc.'s argument that suit was improperly
brought against it.

                                                    2
"Milacron Marketing Company" or as "Milacron Marketing Company incorrectly sued as Milacron,

Inc."

        Although the defendants had sought to delay it, the case proceeded to trial with opening

statements commencing on January 14, 2008. Until that day, nothing in the record suggested that

Milacron Inc. had attempted to alert the trial court or Performance to the issue of personal

jurisdiction. Unfortunately, this Court was not presented with any reporter's record detailing the

crucial facts surrounding the filing of the special appearance. However, oral arguments at appeal

suggested that after opening statements in the trial began, the same attorneys who appeared for

Milacron Marketing Company presented the trial court with a motion filed on behalf of Milacron Inc.

wherein it sought to make a special appearance. Attached to this motion was a document (unsigned

at that point) which would, if signed, be an affidavit in support of a special appearance for Milacron

Inc. that set out basic facts which, if proven, would tend to support the lack of jurisdiction over

Milacron Inc. This document was subsequently executed by the affiant and refiled. There is no

record to indicate that Milacron Inc. requested a hearing on its special appearance or objected to any

failure to rule on it. The parties proceeded to a trial on the merits, after which the trial court entered

an order denying Milacron Inc.'s special appearance, finding that Milacron Inc. had waived it.

II.     Standard of Review

        Whether the trial court had personal jurisdiction over Milacron Inc. is a question of law.

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Conner v.



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ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 411 (Tex. App.—Houston [14th Dist.] 1997, no

writ). However, the resolution of that question is preceded by the analysis of underlying factual

disputes. Marchand, 83 S.W.3d at 794; Conner, 944 S.W.2d at 411. The standard of review to

determine the appropriateness of the trial court's resolution of those facts is an ordinary sufficiency

of the evidence review. Conner, 944 S.W.2d at 411. Thus, when we review this trial court's order

denying Milacron Inc.'s special appearance, we review the findings of fact for legal and factual

sufficiency, but we review de novo the conclusions of law drawn from those facts. See id.; CNOOC

Se. Asia Ltd. v. Paladin Res. (SUNDA) Ltd., 222 S.W.3d 889, 894 (Tex. App.—Dallas 2007, pet.

denied); Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 6 (Tex. App.—San Antonio 2004, pet.

denied). Disputed fact issues relating to personal jurisdiction will be found in support of the trial

court's judgment. Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex. App.—Dallas 1994, writ

denied) (citing Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987)).

III.   Milacron Inc. Waived Its Special Appearance

       To promote judicial economy, Rule 120a(1) of the Texas Rules of Civil Procedure mandates

that a special appearance be filed "prior to motion to transfer venue or any other plea, pleading or

motion." TEX . R. CIV . P. 120a(1). This is sometimes referred to as the "due-order-of-pleading"

requirement. Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004). The rule encourages

personal jurisdiction issues to be disposed of early in litigation and states "[e]very appearance, prior

to judgment, not in compliance with this rule is a general appearance."



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       Texas law clarifies that a special appearance is waived through participation in the trial.

Bullock v. Briggs, 623 S.W.2d 508, 511 (Tex. App.—Austin 1981, writ ref'd n.r.e.). A specially

appearing defendant may not go to trial on the merits of the case without first obtaining a ruling on

his special appearance. Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex. App.—Corpus Christi 1994,

no writ); Seeley v. Seeley, 690 S.W.2d 626, 628 (Tex. App.—Austin 1985, no writ). For this reason,

Rule120a requires that the specially appearing defendant timely request a hearing, specifically bring

that request to the trial court's attention, and secure a ruling on the preliminary question of personal

jurisdiction. TEX . R. CIV . P. 120a; Hart v. State, No. 03-02-00542-CV, 2003 Tex. App. LEXIS 1747,

at *6 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op.).

       It is the responsibility of a defendant which attempts to rely upon a special appearance to

request a hearing and secure a ruling on the preliminary question of personal jurisdiction. Bruneio,

890 S.W.2d at 154. Not only must a specially appearing defendant request a hearing on the

determination of the special appearance, it must specifically call that request to the trial court's

attention. Id. A defendant waives his special appearance by not timely pressing for a hearing. Id.;

Steve Tyrell Prods., Inc. v. Ray, 674 S.W.2d 430, 436–37 (Tex. App.—Austin 1984, no writ). It is

inappropriate, especially when considering judicial economy, to litigate the special appearance in

connection with the trial of the matter. Bruneio, 890 S.W.2d at 154.

       Rule 120a(4) provides that if an order is entered denying the special appearance, the objecting

party "may thereafter appear generally for any purpose" without waiver of the special appearance.



                                                   5
TEX . R. CIV . P. 120a(4). However, if the objecting party allows a trial to proceed without obtaining

a ruling on its Rule 120a motion, the special appearance is waived and the party has consented to the

court's jurisdiction. Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.—Fort Worth 1995, no writ).

       Milacron Inc. was named as a party in Performance's lawsuit and was represented by counsel

who appeared in the courtroom to defend that lawsuit on January 14. Although disputed,

Performance's briefing states that "Milacron Defendants" answered ready for trial. Since there is no

record indicating otherwise, this disputed fact issue will be resolved in favor of the trial court's

ruling.2 Craig, 993 S.W.2d at 120. Milacron Inc. waited until after opening statements to file its

special appearance and failed to request a hearing and secure a ruling on the special appearance

before proceeding to trial on the merits. Since Milacron Inc. was present through its attorneys and

allowed the case to be tried on the merits before the trial court ruled on its special appearance, it

effectively entered a general appearance. Seeley, 690 S.W.2d at 627–28.

       We need not address the issue of whether Milacron Inc. waived its special appearance

through pleadings and discovery filed by its attorneys which were conducted under the name

       2
         The burden was on Milacron Inc. to present a sufficiently complete record that clearly
demonstrated the error of which it complained. Since Milacron Inc. did not request a reporter's
record and the Court only has a partial record before it (the portion filed by Performance), every
reasonable presumption will be indulged in favor of the trial court's ruling. See TEX . R. APP . P.
38(h); Arredondo v. Rodriguez, 198 S.W.3d 236, 239 (Tex. App.—San Antonio 2006, no pet.);
Cooper v. Bowser, 610 S.W.2d 825, 828 (Tex. Civ. App.—Tyler 1980, no writ); Meyer v. Worden,
530 S.W.2d 904, 906 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.); Coleman v. Pac.
Employers Ins. Co., 484 S.W.2d 449, 454 (Tex. Civ. App.—Tyler 1972, writ ref'd n.r.e.) (op. on
reh'g); Wright v. Mack Motor Truck Corp., 336 S.W.2d 831, 833 (Tex. Civ. App.—Houston 1960,
no writ).

                                                  6
"Milacron Marketing Company incorrectly sued as Milacron, Inc." We do point out, however, that

contrary to the rules prescribed by the Texas Rules of Civil Procedure, Milacron Inc. did not

complain about service to the trial court and did not file a special exception or verified plea subject

to a special appearance. Instead, it attempted to unilaterally substitute a party, used the same

attorneys to defend the lawsuit and participated in discovery through that substituted party, saw that

its attorneys signed off on pleadings that included Milacron Inc. in the style of the case, failed to

answer amended petitions containing both Milacron Marketing Company and Milacron Inc.,

prepared a special appearance and affidavit immediately prior to or at trial, and decided to spring the

special appearance upon the court and the parties at the last minute. Although this could be

attributed to error on the part of the defendants, it smacks more of procedural gamesmanship,

conduct we cannot condone.

       We affirm the judgment of the trial court.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        August 13, 2008
Date Decided:          August 27, 2008




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