Opinion issued December 19, 2013.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-12-00515-CV
                            ———————————
                        MICHAEL SKINNER, Appellant
                                         V.
                         PAMELA SKINNER, Appellee


                    On Appeal from the 257th District Court
                            Harris County, Texas
                        Trial Court Case No. 1213030


                          MEMORANDUM OPINION

      Michael Skinner appeals a trial court’s judgment dismissing his divorce

proceeding after granting his estranged wife’s special appearance. In his sole issue,

Michael argues that his wife Pamela, who lives in Florida, waived her right to a
special appearance by submitting a letter to the district clerk that requested a

dismissal before she filed her verified special appearance. We affirm.

                                   Background

      Michael and Pamela are a married couple from Orlando, Florida. After more

than 20 years of marriage, Michael moved to Texas, eventually filing for divorce in

Harris County. Pamela—who never left Florida—was served citation there. The

divorce petition did not allege any jurisdictional facts to establish personal

jurisdiction over Pamela in the Texas court.

      Pamela wrote a letter to the district clerk stating that she did not have an

attorney, acknowledging that she had 20 days to file an answer to Michael’s

petition, stating that she did not plan to miss that deadline, but including a

statement that she was “requesting a motion to Dismiss the Petition for Divorce

under the grounds that I need a change of venue and need the case tried in Orlando

Florida.” She gave the following reasons in support of dismissal:

      The Petitioner Mike Skinner and I have resided in Orlando FL since
      2003 and we presently have Real Property here in Orlando including
      the marital home as well as all marital debt actively in both our
      names.
                                    . . .
      I am NOT able to proceed in any way with a divorce that is not in
      Orlando where we both have lived and still have existing property,
      vehicles, and debts.

      Within the 20-day answer period, Pamela retained an attorney and filed two

pleadings: Respondent’s Special Appearance and Original Answer Subject To

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Respondent’s Special Appearance. In the sworn pleading, Pamela again stated that

she and all marital assets were in Florida. She also asserted that there was an on-

going divorce proceeding in the Florida court system involving the couple in which

she sought spousal support, and she declared that she had never been to Texas and

had no contacts with the state.

      Michael filed a response arguing that the special appearance should be

denied   because     Pamela’s      letter   “constitute[d]   a   general   appearance

and waive[d the] right to specially appear” because it contained a motion to

dismiss and a motion to transfer venue. The trial court sustained the special

appearance and dismissed the case. Michael appeals that ruling.

                                  Standard of Review

      Whether a nonresident is subject to personal jurisdiction in Texas is a

question of law we review de novo. BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 794 (Tex. 2002). Likewise, we review a trial court’s ruling on waiver

of a special appearance de novo. Moore v. Pulmosan Safety Equip. Corp., 278

S.W.3d 27, 32 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Exito

Elecs. Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004) (per curiam)).

                              Special appearance law

      A court may assert personal jurisdiction over a nonresident defendant only if

the requirements of the Due Process Clause of the Fourteenth Amendment to the


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U.S. Constitution and the Texas long-arm statute both are satisfied. CSR Ltd. v.

Link, 925 S.W.2d 591, 594 (Tex. 1996). These require a showing that the

nonresident has minimal contacts with the state “such that the maintenance of the

suit does not offend ‘traditional notions of fair play and substantial justice.’” Id.

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158

(1945)).

      The plaintiff has the initial burden of pleading sufficient allegations to bring

the nonresident defendant within the personal jurisdiction of the Texas court. BMC

Software Belgium, 83 S.W.3d at 973. If the plaintiff fails to plead facts bringing the

defendant within the reach of the long-arm statute, the defendant can defeat

personal jurisdiction simply by proving she does not live in Texas. Kelly v. Gen.

Interior Const., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010).

      A challenge to personal jurisdiction is raised through a special appearance,

in which the defendant alleges, through a sworn motion, facts to establish that the

court does not have personal jurisdiction over her. TEX. R. CIV. P. 120a. Under the

“due-order-of-pleadings” rule, a special appearance must be made “prior to motion

to transfer venue or any other plea, pleading or motion.” TEX. R. CIV. P. 120a;

Exito Elec. Co., Ltd., 142 S.W.3d at 305–06 (discussing due-order-of-pleading

requirement). Any motion that invokes the judgment of the court on a non-

jurisdictional question, recognizes the jurisdiction of the court over the party, or


                                          4
seeks affirmative action from the court is considered a general appearance and

waives the defendant’s ability to obtain dismissal through a special appearance.

See Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Moore, 278

S.W.3d at 32.

      There remains a “narrow” ability to take action in a case before asserting a

special appearance without making a general appearance. Letersky v. Letersky, 820

S.W.2d 12, 13–14 (Tex. App.—Eastland 1991, no writ). The filing of a document

that does not seek affirmative relief outside of the limited issue of the jurisdiction

of the court does not waive a special appearance. See, e.g., Moore v. Elektro-Mobil

Tecknik GmbH, 874 S.W.2d 324, 327 (Tex. App.—El Paso 1994, writ denied)

(holding that defendant did not seek affirmative action, and therefore did not enter

general appearance, by sending letter to court stating defendant would be filing

motion to dismiss and inquiring whether local counsel was necessary); Exito Elec.

Co., Ltd., 142 S.W.3d at 306 (holding that Rule 11 agreement signed by

defendant’s attorney agreeing that defendant would have additional time to

respond to motion did not waive special appearance because it did not seek

affirmative action by trial court).

      In Letersky, a United States serviceman was married to a foreign citizen who

lived in Scotland with the couple’s minor children.        820 S.W.2d at 13. The

serviceman filed for divorce in Texas and argued that his wife waived special


                                          5
appearance by sending a letter to the district clerk where the suit was pending. Id.

The letter informed the clerk that there was a pending divorce proceeding in

Scotland through which she already had been awarded temporary custody of the

children, asserted that she had only minimal contacts with Texas, and informed the

clerk that her attorney in Scotland would be contacting the court soon thereafter.

See id. The appellate court affirmed the trial court’s grant of the special

appearance, holding that the foreign wife’s letter “questioned both the court’s

subject matter and in personam jurisdiction. The letter did not seek a judgment or

any adjudication by the court.” Id. at 14. Thus, correspondence with a district clerk

that questions the jurisdiction of the court over the party, without seeking any court

adjudication, does not waive a special appearance. See id.

      Michael argues that Pamela’s letter to the district clerk did more for several

reasons: (1) it is a motion to dismiss and not a special appearance; (2) it is an

unsworn pleading; (3) it is an answer; and (4) it seeks affirmative relief from the

court by “ask[ing] for both a dismissal and for a transfer of venue.” We will

address each of these challenges in turn.

                     Pamela’s letter is a special appearance

      Michael takes the position that the letter is a motion to dismiss which, he

argues, waives the special appearance she subsequently filed with assistance of

counsel. We disagree.


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      The nature of a pleading is not determined by its title or individual words it

contains, but by reviewing the pleading as a whole. See TEX. R. CIV. P. 71

(concerning misnomer of pleading); Huynh v. Nguyen, 180 S.W.3d 608, 616–17

(Tex. App.—Houston [14th Dist.] 2005, no pet.). Thus, we look “at the substance

of the pleading.” Id. (concluding that pleading entitled “Motion to Dismiss” was

actually “a special appearance because it [sought] dismissal based on lack of

personal jurisdiction”); N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex.

App.—Houston [1st Dist.] 2000, no pet.) (dismissing case after Florida defendant

sent letter to district clerk seeking “dismissal” based on greater contacts with

Florida and court treated letter as special appearance); State Bar of Tex. v. Heard,

603 S.W.2d 829, 833 (Tex. 1980) (substance of pleading controls over title or

form); Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508,

514 (Tex. App.—Houston [14th Dist.] 1987, writ denied) (substance of pleading is

determined by effect it would have on proceeding if granted).

      In N803RA, a Texas entity contracted with the Hammers, who lived and

worked in Florida, to refurbish its aircraft. 11 S.W.3d at 365. The Texas entity had

its plane flown to Florida for the Hammers to begin the repairs. A dispute arose,

and the Texas plaintiff sued the Hammers in Harris County, Texas. The Hammers

sent a signed, but unsworn, letter to the Harris County district clerk denying the

allegations against them and requesting that the suit be dismissed. Id. In the letter,


                                          7
they stated that they performed all work in Florida and none in Texas. The

Hammers subsequently hired a Texas attorney who filed a verified special

appearance and answer. After the trial court granted the special appearance and the

Texas plaintiff appealed, the appellate court ruled that (1) the letter was an answer,

(2) the only affirmative action sought was a dismissal based on jurisdictional

grounds, making it also a special appearance, (3) the unsworn letter was properly

amended to include a verification when defendants later filed an amended special

appearance, and (4) the trial court correctly granted the special appearance. See id.

at 366–68.

      Pamela’s letter challenges the appropriateness of a Texas court asserting

jurisdiction over her divorce, listing her Florida residency, the parties’ multiple

contacts with that state, and the parties’ marital property there. She phrased the

letter as a motion to dismiss instead of a special appearance; however, she was

challenging the court’s personal jurisdiction. We, therefore, treat the letter as a

special appearance. See TEX. R. CIV. P. 120a(4) (the court should “enter an

appropriate order” when it sustains objection to jurisdiction); N.H. Helicopters,

Inc. v. Brown, 841 S.W.2d 424, 425 (Tex. App.—Dallas 1992, no writ) (“If the

trial court sustains the special appearance, it may dismiss the case against the

objecting defendant.”); N803RA, Inc., 11 S.W.3d at 366 (dismissing case after

sustaining Florida defendant’s special appearance raised in letter to district clerk


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seeking “dismissal”); cf. FED. R. CIV. P. 12(b)(2) (providing that a party may

challenge personal jurisdiction through a motion to dismiss).

   The original special appearance could be amended to correct its defects

      Michael also argues that the special appearance was waived because

Pamela’s letter was an unsworn pleading, in violation of rule 120a’s requirement

that a special appearance be a sworn document. TEX. R. CIV. P. 120a. He relies on a

1967 decision, Austin Rankin Corp. v. Cadillac Pool Corp., 421 S.W.2d 733 (Tex.

App.—Beaumont 1967, no writ), in which the defendants filed an unsworn motion

to dismiss for lack of jurisdiction. Id. at 733. That court noted that Rule 120a—

setting forth the requirements of a special appearance—mandated that a pleading

challenging the court’s personal jurisdiction be sworn, and that the defendants’

motion was not. Id. at 734. As a result, the appellate court ruled the “defendants

made a general appearance by filing their unsworn motion to dismiss.” Id.

      Rule 120a has been revised since 1967 to permit a defendant to amend his

pleading challenging personal jurisdiction to cure defects in that pleading. TEX. R.

CIV. P. 120a (stating that a special appearance “may be amended to cure defects”

without specifying or limiting types of defects that can be cured); Dennett v. First

Cont. Inv. Corp., 559 S.W.2d 384, 385 (Tex. App.—Dallas 1977, no writ) (holding

that unsworn special appearance may be amended to cure defect and prevent

waiver); Ernest E. Figari, Jr., CIVIL PROCEDURE, 45 Sw. L.J. 73, 79–80 (1991)


                                         9
(explaining that holding in Austin Rankin was based on prior version of rule which

was subsequently amended to permit amendment of special appearance pleadings

to cure defects). Under the current version of the rule, a plaintiff whose initial

filing challenging jurisdiction has some defect may correct the defect and avoid

waiver. Cf. Dennett, 559 S.W.2d at 385.

      Any defect in Pamela’s initial special appearance—including the lack of a

verification—was cured through the subsequent filing of a sworn special

appearance challenging the court’s personal jurisdiction. See TEX. R. CIV. P. 120a

(permitting amendment to cure defects); see also Moore, 278 S.W.3d at 34 (finding

that initial unsworn motion gave plaintiff “fair notice of [defendant’s] intent to

challenge personal jurisdiction,” that the pleading was not required to include

magic words to be a special appearance, and that it was properly amended by

subsequent special appearance to avoid general appearance; also finding persuasive

that subsequent sworn special appearance “did not assert a wholly new ground for

lack of personal jurisdiction”).

      Thus, the letter’s failure to include an oath was properly corrected through a

subsequent sworn special appearance filed with the assistance of counsel and did

not result in a general appearance.




                                          10
               Whether the letter was also an answer is irrelevant

       Michael argues that the letter should be treated as an answer to his petition

which, he argues, waived Pamela’s subsequent special appearance. Again we

disagree.

      Whether the letter was also an answer does not alter our conclusion of non-

waiver. 1 A party is permitted to file a special appearance in the same instrument as

its answer. See TEX. R. CIV. P. 120a; N803RA, Inc., 11 S.W.3d at 366 (holding that

pro se plaintiff’s letter to court was both special appearance and original answer

and did not waive special appearance); White v. Cole, 880 S.W.2d 292, 294 (Tex.

App.—Beaumont 1994, writ denied) (holding that pro se pleadings should be

liberally construed); Letersky, 820 S.W.2d at 14 (holding that letter addressing

minimal contacts with Texas was questioning personal jurisdiction and did not

waive subsequently filed special appearance).

    The letter did not seek an adjudication within the meaning of rule 120a

      Lastly, Michael argues that a “motion to dismiss” is treated by the courts as

a request for affirmative relief and a general appearance, relying on Klingenschmitt

v. Weinstein, 342 S.W.3d 131 (Tex. App.—Dallas 2011, no pet.). We do not read


1
      We note that Pamela specifically states in her letter addressed to the district clerk
that she is aware she has 20 days to answer the petition, questions if the clerk will be
responding to her letter before this date, and affirms that she does not want to miss the
deadline or default by waiting to answer until she receives a reply. Because it is
unnecessary to decide whether the letter was an answer, we decline to do so.
                                           11
the case so broadly. That defendant sought dismissal, with prejudice, of the

plaintiff’s claim against him. Id. at 134. After the court denied the motion to

dismiss, the defendant sought a hearing on his special exceptions. See id. While

noting that the defendant did not violate the due-order-of-pleadings rule, the court

found that he violated the “due-order-of-hearing” rule by setting the hearing on the

motion to dismiss with prejudice before the hearing on the special exceptions. See

id. at 134–35. The appellate court explained:

      Inconsistent with his special appearance, in his motion to dismiss . . .
      Klingenschmitt sought affirmative relief from the trial court in the
      form of a dismissal with prejudice of the Weinsteins’ claims against
      him. A dismissal with prejudice is an adjudication on the merits. A
      dismissal with prejudice operates as a final determination on the
      merits. Further, in his motion to dismiss . . . Klingenschmitt sought
      dismissal based on the Weinsteins’ purported failure to comply with
      the trial court’s order that the Weinsteins plead allegations regarding
      their [underlying] claims . . . . Klingenschmitt makes no assertion that
      those alleged pleading deficiencies on the part of the Weinsteins are
      related to his special appearance . . . . The hearing on the motion to
      dismiss . . . preceded the hearing on Klingenschmitt’s special
      appearance and violated the due-order-of-hearing requirement of rule
      120a.

Id. at 134–35 (internal citations omitted).

      Here, Pamela’s letter requesting dismissal is distinguishable from the

Klingenschmitt motion to dismiss because (1) Pamela did not seek a dismissal with

prejudice, and (2) the dismissal she did request was consistent with her special

appearance which listed the overwhelming contacts the parties and their property

had with Florida. The Klingenschmitt holding does not apply.

                                          12
      Likewise, the venue case on which Michael relies is distinguishable. See

Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App.—Corpus Christi

1999, pet. denied). There, the defendant challenged the plaintiff’s standing to sue

under the Texas wrongful death and survival statute without filing a special

appearance or challenging denial of a motion to transfer venue. The court did not

address personal jurisdiction; instead, it focused on the plaintiff’s standing to sue.

Id. The case is inapplicable to our analysis of Pamela’s letter seeking to move her

divorce proceeding to Florida through a process she incorrectly labeled a “change

in venue.” Cf. TEX. R. CIV. P. 86 (noting that a motion to transfer venue seeks

transfer to another Texas county, not an out-of-state location). As discussed

previously, Pamela’s request constitutes a special appearance, and the use of the

phrase “change in venue” does not act to waive her right to challenge personal

jurisdiction. See White, 880 S.W.2d at 294) (holding that pro se pleadings should

be liberally construed); Letersky, 820 S.W.2d at 14 (holding that letter addressing

minimum contacts did not waive special appearance).

                                    Conclusion

      We conclude that the letter Pamela sent to the district clerk did not waive her

special appearance. Because Michael did not plead any jurisdictional facts, Pamela

satisfied her burden of demonstrating that the Texas court lacked personal




                                         13
jurisdiction over her when she asserted that she resides in Florida. Kelly, 301

S.W.3d at 658–59.

       Accordingly, the trial court did not err dismissing Michael’s case following

the grant of the special appearance. We overrule Michael’s sole issue and affirm

the trial court’s ruling.



                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.




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