I-90 Cold Storage, Inc. and Kim R. Smith v. Stellar Restoration Services, LLC ( 2021 )

AFFIRMED and Opinion Filed June 4, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01050-CV
I-90 COLD STORAGE, INC. AND KIM R. SMITH, Appellants
V.
STELLAR RESTORATION SERVICES, LLC, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-04465-2020
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Smith
I-90 Cold Storage, Inc. and Kim R. Smith appeal the trial court’s denial of
their special appearance. In two issues, appellants argue the trial court erred by
failing to file findings of fact and conclusions of law, and they are not amenable to
process because their underlying agreement with Stellar Restoration Services is void
and unenforceable. We affirm the trial court’s judgment.
In September 2020, Stellar filed its original petition in Collin County, Texas.
The petition alleged Stellar, a Texas limited liability company, specializes in the
restoration and replacement of commercial roofs. In spring 2020, appellants’
property in Rapid City, South Dakota, was damaged in a hailstorm. Appellants
entered into a restoration services agreement Stellar for roof repair. The agreement
contained the following provision:
8. GOVERNING LAW/ JURY WAIVER
It is understood and agreed that this Agreement shall be governed by,
construed, enforced in accordance with, and subject to, the laws of the
State of Texas, except Chapter 707(H.B.2102). Exclusive FORUM and
VENUE for any action brought pursuant to the terms of this Agreement,
or in any way relating to this Agreement, shall be in COLLIN County,
Texas. The parties hereto mutually agree to WAIVE THE RIGHT OF
TRIAL BY JURY AS TO ANY MATTER ARISING FROM OR
RELATING TO THIS AGREEMENT.
Under the terms of the agreement, appellants agreed to pay Stellar for its services
out of insurance proceeds. Instead, appellants’ insurance carrier issued a payment,
but appellants terminated the agreement with Stellar without paying any proceeds to
Stellar.
On October 1, 2020, appellants each filed an “original answer and request for
disclosure.” The pleadings alleged the “court does not have personal jurisdiction
over” appellants because the underlying contract that formed the basis of Stellar’s
suit was “void and any and all pertinent transactions occurred exclusively in the State
of South Dakota.” The pleadings sought attorney’s fees and disclosure of “the
information or material described in Rule 194.2” within thirty days. In the prayer,
the pleadings asked the court “to dismiss this suit or render judgment that plaintiff
take nothing.” On October 20, 2020, appellants filed a notice of hearing stating that
a hearing on their pleadings was set for November 13, 2020.
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On October 28, 2020, appellants filed a motion to dismiss for lack of personal
jurisdiction. In their motion to dismiss, appellants argued for the first time that,
pursuant to rule of civil procedure 120a, they were not amenable to process in Texas
and they lacked sufficient contacts with Texas. As a result, appellants asked the
court to dismiss the lawsuit for lack of personal jurisdiction.
On November 18, 2020, the trial court signed an order denying appellants’
motion to dismiss for lack of personal jurisdiction. The same day, appellants filed a
request for findings of fact and conclusions of law. On November 30, 2020,
appellants each filed a notice of appeal of the trial court’s denial of their special
appearances.
As an initial matter, we address appellants’ argument that the trial court
reversibly erred by failing to make findings of fact and conclusions of law. A party
waives a complaint that the trial court failed to file findings of fact and conclusions
of law by not making a timely request for findings of fact and conclusions of law, or
by failing to timely file and serve a notice of past due findings of fact and conclusions
of law. See TEX. R. CIV. P. 296, 297; Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d
171, 183 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Here, appellants failed
to file a notice of past due findings of fact and conclusions of law. Accordingly,
appellants have waived this issue. See Haut, 376 S.W.3d at 183.
Appellants further argue they are not subject to personal jurisdiction in Texas,
and the trial court erred in denying their special appearance. Under rule 120a, a
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special appearance, properly entered, enables a non-resident defendant to challenge
personal jurisdiction in a Texas court. TEX. R. CIV. P. 120a. Rule 120a requires strict
compliance, and a non-resident defendant will be subject to personal jurisdiction in
Texas courts if the defendant enters a general appearance. Klingenschmitt v.
Weinstein, 342 S.W.3d 131, 133 (Tex. App.—Dallas 2011). Rule 120a states that
“[e]very appearance, prior to judgment, not in compliance with this rule is a general
appearance.” TEX. R. CIV. P. 120a(1).
Rule 120a(1) mandates that a special appearance be filed “prior to a motion
to transfer venue or any other plea, pleading or motion.” Id. “[T]he plain language
of Rule 120a requires only that a special appearance be filed before any other ‘plea,
pleading or motion.’” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004).
“This is sometimes referred to as the ‘due-order-of-pleading’ requirement.” Id.A party enters a general appearance and waives a special 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.” Trejo, 142 S.W.3d at 304. The test for a general
appearance is whether a party requests affirmative relief inconsistent with an
assertion that the trial court lacks jurisdiction. Klingenschmitt, 342 S.W.3d at 134.
Here, appellants each filed an “original answer and request for disclosure.”
These pleadings did not mention a special appearance or rule 120a. The pleadings
alleged the “court does not have personal jurisdiction over” appellants because the
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underlying contract that formed the basis of Stellar’s suit was “void and any and all
pertinent transactions occurred exclusively in the State of South Dakota.” However,
this argument addressed the validity of the underlying contract, not the trial court’s
determination of personal jurisdiction pursuant to rule 120a. The pleadings sought
attorney’s fees and disclosure of “the information or material described in Rule
194.2” within thirty days. We note that rule 194.2 requires a party to make certain
initial disclosures within thirty days after the filing of the first answer or general
appearance. TEX. R. CIV. P. 194.2 (emphasis added). In the prayer, appellants’
pleadings asked the court “to dismiss this suit or render judgment that plaintiff take
nothing.” Twenty-seven days later, appellants finally filed their joint special
appearance pursuant to rule 120a. Under these circumstances, we conclude
appellants waived their special appearance; prior to filing their special appearance,
appellants entered general appearances by requesting affirmative relief inconsistent
with an assertion that the trial court lacked personal jurisdiction over them pursuant
to rule 120a. See TEX. R. CIV. P. 120a; Trejo, 142 S.W.3d at 304; Klingenschmitt,
342 S.W.3d at 134. Moreover, even if appellants had strictly complied with rule
120a, the underlying contract provided a choice of law provision establishing Texas
as the proper forum for any action between the parties. For these reasons, we
conclude the trial court did not err in denying appellants’ special appearance.
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We affirm the trial court’s denial of appellants’ special appearance.
/Craig Smith/
CRAIG SMITH
JUSTICE
201050F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
I-90 COLD STORAGE, INC. AND On Appeal from the 429th Judicial
KIM R. SMITH, Appellants District Court, Collin County, Texas
Trial Court Cause No. 429-04465-
No. 05-20-01050-CV V. 2020.
Opinion delivered by Justice Smith.
STELLAR RESTORATION Justices Molberg and Goldstein
SERVICES, LLC, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee STELLAR RESTORATION SERVICES,
LLC recover its costs of this appeal from appellants I-90 COLD STORAGE, INC.
AND KIM R. SMITH.
Judgment entered June 4, 2021.
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