Ken Hoagland v. Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC ( 2013 )

Denied and Dissenting Opinion on Denial of Rehearing filed February 26, 2013.
In the
Fourteenth Court of Appeals
NO. 14-11-01074-CV
KEN HOAGLAND, Appellant
V.
BILL BUTCHER, KARI BUTCHER, BUTCHER & BUTCHER, AND OCTV
PARTNERS, LLC, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-58144
DISSENTING OPINION ON
DENIAL OF REHEARING
I dissent from the denial of the motion for rehearing in this case for all of the
reasons that I outlined in my original dissent. The Butchers have lost a valuable
right of early review through a hyper-technical view of their controverting
affidavits, with the result that the plaintiff never had to prove his jurisdictional
facts. None of the special appearance cases cited by the plurality opinion is
similar, as each reached the merits of the jurisdictional issue, while the plurality
does not.
The plurality holding did not find that the facts alleged by Hoagland are true,
only that the Butchers failed to properly negate the jurisdictional facts in
Hoagland’s petition. I acknowledge that there are no cases that currently hold a
defendant can amend its special appearance affidavit after an appeal,1 but there is
some case law that would support such a procedure. See Dawson-Austin v Austin,
968 S.W.2d 319, 322 (Tex. 1998) (allowing amendment after an initial denial of
the special appearance). And the Supreme Court has held that a defective affidavit
does not convert a special appearance into a general one. Exito Elecs. Co., Ltd. v
Trejo, 142 S.W.3d 302, 307–08 (Tex. 2004).
Our holding encourages an inefficient system as the Butchers may also be
able to re-urge this issue on final appeal. See GJP, Inc. v. Ghosh, 251 S.W.3d 854,
866–67 (Tex. App.—Austin 2008, no pet.) (holding that appellate jurisdiction to
review special appearance rulings was not limited solely to interlocutory appeal
authorized by section 51.014(a)(7) of the Civil Practice and Remedies Code);
Canyon (Australia) Pty., Ltd. v. Maersk Contractors, Pty., Ltd., No. 08–00–00248–
CV, 2002 WL 997738, at *4 (Tex. App.—El Paso May 16, 2002, pet. denied) (not
designated for publication) (concluding that interlocutory appeal was not
“mandatory” and trial court’s special appearance grant could be reviewed on
appeal from final judgment); but see Matis v. Golden, 228 S.W.3d 301, 305 (Tex.
App.—Waco 2007, no pet.) (concluding that challenge to order denying special
appearance, raised for the first time on appeal from final judgment, was untimely
because parties failed to bring an interlocutory appeal). Ultimately, if the facts do
1
This is the first time that the Fourteenth Court of Appeals has not reached the merits of
a special appearance under the burden-shifting analysis.
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not support personal jurisdiction, the case will be reversed. See GJP, 251 S.W.3d
at 866–67.
We do not want to encourage multiple appeals of an issue, and this is
usually precluded under the law of the case doctrine. But when we do not reach
the merits of an issue or when the facts change, the law of the case may not apply.
See Virani v. Cunningham, No. 14–11–00331–CV, 2012 WL 355653, at *6–7
(Tex. App.—Houston [14th Dist.] Feb. 2, 2012, pet. denied) (mem. op.)
(discussing law of the case doctrine and noting that if issues or facts change, law of
the case may no longer apply); City of Houston v. Harris, 192 S.W.3d 167, 171–72
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that court of appeals’
decision affirming denial of city’s first plea to the jurisdiction was not law of the
case for purposes of second interlocutory appeal from denial of plea on another
claim).
I urge the Texas Supreme Court to take this case and reverse the plurality
opinion or to clarify that a defendant can submit amended affidavits in support of
its special appearance under the circumstances of this case: where a trial court
grants a special appearance and an appellate court reverses that decision because of
inadequacies in the affidavits of the defendant, with the result that the burden never
shifted to the plaintiff to prove his jurisdictional facts.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Christopher, and Jamison. (Christopher, J.,
dissenting).
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