the Raymond Corporation v. Guillermina Rubio, Individually and on Behalf of the Estate of Lorenzo Rubio Sr., Lorenzo Rubio Jr., Liliana Rubio, and Elizabeth Rubio ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE RAYMOND CORPORATION, §
Appellant, § No. 08-22-00097-CV
v. § Appeal from the
GUILLERMINA RUBIO, Individually, and § 120th Judicial District Court
on Behalf of the Estate of Lorenzo Rubio Sr.,
Deceased, LORENZO RUBIO JR., § of El Paso County, Texas
LILLIANA RUBIO, and ELIZABETH
RUBIO, § (TC# 2021DCV3930)
Appellees. §
OPINION
In this interlocutory appeal, the Raymond Corporation (Raymond) appeals the trial court’s
order denying its special appearance. 1 In one issue, Raymond argues the trial court lacks personal
jurisdiction over it because it was not personally served or properly named as a party defendant to
the suit, and the trial court erred in denying its special appearance. Finding no error, we affirm.
I. BACKGROUND
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(7) (providing for the interlocutory appeal of a grant or denial of
a special appearance of a defendant under rule 120a of the Texas Rules of Civil Procedure, except in a suit brought
under the Family Code).
This is a wrongful death case arising from a workplace injury occurring on or about
November 12, 2019, in El Paso, Texas. On November 5, 2021, Appellees Guillermina Rubio,
Lilliana Rubio, Lorenzo Rubio Jr., and Elizabeth Rubio (collectively, Appellees), filed “Plaintiffs’
Original Petition” against the following named parties: “The Toro Company d/b/a Toro
Manufacturing Corporation,” “OLP Haskins El Paso TX LLC,” and “Toyota Industries
Corporation a/k/a and d/b/a The Raymond Corporation.” 2 Appellees are the surviving spouse and
children of Lorenzo Rubio, Sr., deceased (Lorenzo Sr.). Appellees allege by their suit that Lorenzo
Sr. was “killed while working his shift at the TORO Distribution Center located at the 1400 block
of Don Haskins Dr., El Paso, Texas (owned by OLP), while properly operating a RAYMOND
stand-up forklift.” They further allege that Lorenzo Sr. “became pinned between the forklift he
was operating and a storage rack . . . therein severing his spine and ultimately causing his death.”
They contend that Lorenzo Sr.’s body was not found by other employees of Toro until the
following morning, close to twelve hours after the incident had occurred.
Appellees allege a variety of claims as follows: first, negligence, gross negligence, and
premises liability against Toro; second, premises liability against OLP; and third and finally,
negligence, strict liability for a manufacturing defect, strict liability for a design defect, strict
liability for a marketing defect, breach of express warranty, and breach of an implied warranty, all
against Raymond. Relevant to this proceeding, Appellees allege that “Defendant RAYMOND
knew, or in the exercise of due care should have known, that the forklift manufactured by
RAYMOND [and] utilized by LORENZO RUBIO, SR. in the pursuit of his employment . . . on
2
On December 10, 2021, the Toro Company removed the case to the U.S. District Court for the Western District of
Texas. Based on lack of complete diversity, however, the U.S. District Court for the Western District of Texas granted
Appellees’ motion for remand on February 25, 2022, and the case was remanded back to the 120th Judicial District
Court of El Paso County. See Rubio v. Toro Co., No. EP-21-CV-00304-DCG, 2022 WL 575673, at *5 (W.D. Tex.
Feb. 25, 2022).
2
the night of his death was unreasonably dangerous and defective, and its use would create a
foreseeable and unreasonable risk of harm to users, including employees of its customers like
LORENZO RUBIO, SR.”
On March 4, 2022, Raymond responded by filing an unverified pleading titled, “The
Raymond Corporation’s Special Appearance,” asserting the trial court did not have personal
jurisdiction over it, and thus, it should be dismissed from the suit. Collectively, Raymond
challenged Appellees’ original petition and the citation served upon it by certified mail. First,
Raymond asserted the case caption of the petition named a defendant described as “TOYOTA
INDUSTRIES COPRORATION A/K/A AND D/B/A THE RAYMOND COPRORATION.”
Second, it described the citation as being directed solely against “Toyota Industries Corporation.”
Raymond argued that only Toyota Industries Corporation was made a party defendant, and
jurisdiction over it depended on citation being issued and served as required by law.
Shortly after filing its challenge against the process served upon it, Raymond filed an
amended pleading titled, “The Raymond Corporation’s First Amended and Verified Special
Appearance,” which included an affidavit of its lead counsel, Francis H. Lococo. By his affidavit,
attorney Lococo avers that the Raymond Corporation is a New York corporation with its principal
place of business located in Greene, New York, while Toyota Industries Corporation is a Japanese
corporation with its business offices located in Japan.
Responding to Raymond’s lack of personal jurisdiction claim, Appellees asserted two
arguments. First, that Raymond had been properly served at its principal place of business located
in New York. And second, because Raymond filed an erroneous special appearance, it nonetheless
had generally appeared in the case. In effect, Appellees contended Raymond had presented a
motion to quash that was erroneously titled as if it were in fact a special appearance. In short,
3
Appellees asserted that Raymond’s purported special appearance was legally and factually
unfounded.
On March 31, 2022, Appellees filed a first amended petition restating all claims as
previously asserted by their original pleading. When naming party defendants, however, the
amended petition named “the Raymond Corporation” without including any further reference to
the company either doing business as or being known as “Toyota Industries Corporation.”
On April 7, 2022, the trial court held a hearing on Raymond’s purported special
appearance. On May 31, 2022, the trial court denied Raymond’s special appearance. Within its
denial order, the trial court issued findings of fact and conclusions of law. Relevant to this appeal,
the court made the following findings of fact:
8. In both the citation and Plaintiffs’ Original Petition, Raymond is identified by
Plaintiff’s as ‘TOYOTA INDUSTRIES CORPORATION A/K/A AND D/B/A
THE RAYMOND CORPORATION.’
9. Plaintiffs’ Original Petition was served via certified mail, return receipt
requested, on ‘TOYOTA INDUSTRIES CORPORATION’ at Raymond’s
principal place of business located at 22 South Canal Street, Greene, New York.
10. Plaintiffs’ Original Petition was accepted by ‘THE RAYMOND
CORPORATION AUTHORIZED PERSON TOYOTA’ on November 29,
2021, at 11:13 a.m. at Raymond’s corporate headquarters located at 22 South
Canal Street, Greene, New York.
Additionally, the trial court made the following conclusions of law presented in their entirety:
1. Texas Rule of Civil Procedure 120a provides for a special appearance to object
to the jurisdiction of the court over the person or property of the defendant on
the ground that such party or property is not amenable to process by the courts
of the State of Texas. Tex. R. Civ. P. 120a.
2. In contrast, where a party alleges a defect in service of process, it is properly
challenged through a motion to quash. Kawasaki Steel Corp. v. Middleton, 699
S.W.2d 199, 202 (Tex. 1985).
4
3. The Raymond Corporation’s First Amended and Verified Special Appearance
does not allege that it is not amenable to process issued by the courts of the
State of Texas.
4. The Raymond Corporation’s ‘Special Appearance’ complains of a defect in
service.
5. Plaintiffs’ citation naming ‘TOYOTA INDUSTRIES CORPORATION A/K/A
AND D/B/A THE RAYMOND CORPORATION’ and accepted by ‘THE
RAYMOND CORPORATION AUTHORIZED PERSON TOYOTA’ by a
self-identified Raymond Corporation representative is effective service on The
Raymond Corporation.
6. The Raymond Corporation was afforded due process and was placed on notice
of Plaintiffs’ asserted claims.
7. The Court has jurisdiction to hear claims against The Raymond Corporation
because it is properly before this Court as a party named in Plaintiffs’ Original
Petition and Plaintiffs’ First Amended Petition.
8. The Raymond Corporation’s ‘Special Appearance’ is not substantively nor
procedurally a ‘Special Appearance.’
This interlocutory appeal followed.
II. APPLICABLE LAW AND STANDARD OF REVIEW
A. Standard of Review
Whether a court has personal jurisdiction over a defendant is a question of law. Searcy v.
Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016). Frequently, however, a trial court must resolve
questions of fact to reach this question of law. Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002). “On appeal, the trial court’s determination to grant or deny a special
appearance is subject to de novo review, but appellate courts may be called upon to review the trial
court’s resolution of a factual dispute.” Id. When a trial court enters an order denying a special
appearance and issues findings of fact and conclusions of law, “an appellant may challenge the
5
fact findings on legal and factual sufficiency grounds.” BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789, 794 (Tex. 2002).
B. Applicable Law for Personal Jurisdiction
“The exercise of personal jurisdiction in Texas state courts turns on both federal and state
law.” Searcy, 496 S.W.3d at 66. Courts have personal jurisdiction over a defendant when two
criteria are met: “(1) the Texas long arm statute must grant jurisdiction; and (2) the exercise of
jurisdiction must comport with federal and state constitutional guarantees of due process.” Id.
Because the Texas long arm statute provides for personal jurisdiction that extends to the limits of
the United States Constitution, it is recognized that “federal due process requirements shape the
contours of Texas courts’ jurisdictional reach.” Id. “[W]hether a trial court’s exercise of
jurisdiction is consistent with due process requirements turns on two requirements: (1) the
defendant must have established minimum contacts with the forum state; and (2) the assertion of
jurisdiction cannot offend traditional notions of fair play and substantial justice. Id. (citing Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Sufficient minimum contacts exist when the
non-resident defendant “purposefully avails itself of the privilege of conducting activities within
the forum [s]tate, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357
U.S. 235, 253 (1958). The crux of the purposeful availment analysis is “whether a nonresident
defendant’s conduct in and connection with Texas are such that it could reasonably anticipate
being haled into court here.” Searcy, 496 S.W.3d at 67.
C. Special Appearance
A special appearance, properly entered, enables a non-resident defendant to object to
personal jurisdiction in a Texas court. TEX. R. CIV. P. 120a. “However, a non-resident defendant
may be subject to personal jurisdiction in Texas courts if the defendant enters a general
6
appearance.” Boyd v. Kobierowski, 283 S.W.3d 19, 21 (Tex. App.—San Antonio 2009, no pet.)
(citing TEX R. CIV. P. 120; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985)
(per curiam)).
A general appearance entered before a special appearance waives the special appearance.
Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004) (per curiam); Boyd, 238 S.W.3d at
21; Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 299 (Tex. App.—Fort Worth 2004,
pet. dism’d); see also TEX. R. CIV. P. 120a(1) (“Every appearance, prior to judgment, not in
compliance with [the special appearance] rule is a general appearance.”). A non-resident defendant
may enter a general appearance by seeking “the judgment of the court on any question other than
the court’s jurisdiction . . . .” Exito, 142 S.W.3d at 304. Nevertheless, rule 120a “makes matters in
the same instrument and subsequent matters subject to the special appearance without an express
statement to that effect for each matter.” Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.
1998).
Under the rules of civil procedure, a special appearance may be made by any party “for the
purpose of objecting to the jurisdiction of the court over the person or property of the defendant
on the ground that such party or property is not amenable to process issued by the courts of this
State.” TEX. R. CIV. P. 120a. The phrase “‘not amenable to process issued by the courts of this
state’ can only be interpreted to mean that the special appearance is available solely to establish
that the Texas Court cannot [] validly obtain jurisdiction over the person or the property of the
defendant with regard to the cause of action pled.” Kawasaki Steel Corp., 699 S.W.2d at 202; see
also HMS Aviation v. Layale Enterprises, S.A., 149 S.W.3d 182, 189 (Tex. App.—Fort Worth
2004, no pet.). “A curable defect in service of process does not affect a non-resident defendant’s
amenability to service of process.” Kawasaki Steel Corp., 699 S.W.2d at 202. Complaints
7
regarding defective service of process do not defeat a non-resident’s amenability to the court’s
process and thus should be raised by a motion to quash and not by special appearance. Kawasaki
Steel Corp., 699 S.W.2d at 203; see also Vitro Packaging de Mexico, S.A. de C.V. v. Dubiel, No.
05-17-00258-CV, 2017 WL 6349708, at *3 (Tex. App.—Dallas Dec. 13, 2017, pet. denied) (mem.
op.).
III. ISSUE ON APPEAL
Raymond raises a single issue on appeal. It contends the trial court erred in denying its
special appearance objecting to personal jurisdiction on the basis that it was not properly made a
party defendant to the suit. Raymond asserts the trial court erred in two ways. First, Raymond
attacks the trial court’s factual finding that the citation identified Raymond as “TOYOTA
INDUSTRIES CORPORATION a/k/a and d/b/a THE RAYMOND CORPORATION.” Raymond
asserts there is legally and factually insufficient evidence to support the finding because the
citation establishes on its face that it was directed solely to “TOYOTA INDUSTRIES
CORPORATION,” and Raymond is not otherwise mentioned as a party that is directed by the
citation to answer the suit. Second, Raymond asserts the trial court erred in its legal conclusion
that Raymond’s special appearance alleged only defective service of process and not a lack of
personal jurisdiction. Raymond argues that a component of personal jurisdiction is whether
plaintiffs made an entity a party defendant to the suit. Raymond argues the trial court erred in not
considering the facts in the context of whether they establish that Raymond is a named party
defendant.
In response, Appellees assert three arguments. First, they assert Raymond failed to properly
preserve complaints on the trial court’s findings of fact and conclusions of law by failing to request
additional or amended findings or conclusions from the court below. Second, Appellees assert
8
Raymond’s complaint on a defect in service constituted a general appearance, waiving its right to
bring forth the present interlocutory appeal. Lastly, Appellees assert the citation served on
Raymond complied with the rules and effected proper service. Overall, Appellees argue the trial
court obtained personal jurisdiction over Raymond and its order denying the special appearance
should be affirmed.
We begin our analysis with Appellees’ second argument asserting Raymond waived his
special appearance by filing (in substance) a motion to quash complaining about the method of the
service of process, but not otherwise asserting it lacked amenability to service in the district court.
Because we find this argument dispositive of the appeal, we conclude we need not address the
parties’ other arguments. See TEX. R. APP. P. 47.1. (stating court of appeals must hand down a
written opinion that is as brief as practicable but that addresses every issue raised and necessary
to final disposition of the appeal.).
IV. RULE 120a
Pursuant to Texas Rule of Civil Procedure 120a, a special appearance may be made by any
party either in person or by attorney “for the purpose of objecting to the jurisdiction of the court
over the person or property of the defendant on the ground that such party or property is not
amenable to process issued by the courts of this State.” TEX. R. CIV. P. 120a. This rule further
warns, however, that “[e]very appearance, prior to judgment, not in compliance with [rule 120a]
is a general appearance.’” See id.; see also Exito 142 S.W.3d at 304. Defining what constitutes a
general appearance, the Supreme Court adopted reasoning from this Court as follows:
A party enters a general appearance whenever it invokes the judgment of the court
on any question other than the court’s jurisdiction; if a defendant’s act recognizes
that an action is properly pending or seeks affirmative action from the court, that is
a general appearance.
9
Dawson-Austin 968 S.W.2d at 322 (quoting Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d
324, 327 (Tex. App.—El Paso 1994, writ denied).
Applying these principles, we must first examine Raymond’s amended pleading titled,
“The Raymond Corporation’s First Amended and Verified Special Appearance,” to determine
whether it properly asserted a special appearance in accordance with the requirements of rule 120a.
In reviewing a pleading, rule 71 of the Texas Rules of Civil Procedure states: “When a party has
mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or
pleading as if it had been properly designated.” See TEX. R. CIV. P. 71. Given this rule, the Supreme
Court of Texas has stressed that “courts should acknowledge the substance of the relief sought
despite the formal styling of the pleading.” In Interest of J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016)
(quoting Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per curiam)).
Moreover, the substance may be determined by what effect it will have on the proceeding if
granted. In re Medina, No. 13-19-00537-CV, 2019 WL 6906572, at *7 (Tex. App.—Corpus
Christi–Edinburg Dec. 18, 2019, orig. proceeding) (mem. op.); see generally Huynh v. Nguyen,
180 S.W.3d 608, 616–17 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (construing a “motion
to dismiss” as a special appearance “because it seeks dismissal based on lack of personal
jurisdiction”).
Here, Raymond’s first amended special appearance requested dismissal for want of
jurisdiction—not on the basis that Raymond was not amenable to service as required by rule 120a,
but rather, on the basis that it was not properly made a party defendant to the suit, nor otherwise
properly served with process. Raymond argued, “Rule 120a of the Texas Rules of Civil Procedure
provides for a special appearance ‘for the purpose of objecting to the jurisdiction of the court over
the person. . . .’” TEX. R. CIV. P. 120a. In citing rule 120a, however, Raymond failed to include the
10
remainder of the provision, which specifies that a special appearance’s purpose is to object to the
jurisdiction of the court “on the ground that such party or property is not amenable to process
issued by the courts of this State.” Id. [Emphasis added].
The operative words, “not amenable to process issued by the courts of this state,” have
been interpreted by the Supreme Court of Texas to mean “the special appearance is available solely
to establish that the Texas court cannot, under the federal and state constitutions and the
appropriate state statutes, validly obtain jurisdiction over the person or the property of the
defendant with regard to the cause of action pled.” Kawasaki Steel Corp., 699 S.W.2d at 202. In
this regard, the Court further instructs that “[a] curable defect in service of process does not affect
a non-resident defendant’s amenability to service of process.” Id. In other words, defective service
or defective process are not grounds that support a special appearance, and such complaints should
be raised instead by a motion to quash. Id. Consequently, a purported special appearance that only
challenges the propriety of the service of process, is not in fact a special appearance pursuant to
rule 120a. Id. Instead, such challenge against service of process is a general appearance seeking
affirmative action from the court on a question other than the court’s jurisdiction over the party.
Id.
Accordingly, Raymond’s amended pleading, although titled as a special appearance, does
not operate nor qualify as a special appearance. As the Supreme Court instructs, defective service
of process must be challenged by a motion to quash rather than by a special appearance. Id.
Here, however, Raymond argues the trial court “misapplied jurisdictional law to the facts
addressed by [it], which could serve a dual purpose—both to determine if a party has been
sufficiently served with process, and whether an entity has even been made a party to the suit in
the first instance.” In support of this point, Raymond relies on the importance of citation being
11
issued and served on a proper party. See Amato v. Hernandez, 981 S.W.2d 947, 950 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied) (“Jurisdiction is dependent on citation being issued and
served as required by law.”). We disagree.
Raymond’s cited authority involves a case where a default judgment was entered against a
defendant who was not properly served. See id. (holding that the trial court had no personal
jurisdiction over defendant when defendant was not served in strict compliance with the rules,
voiding the order entered against defendant). Here, however, there have been no default judgments
entered against Raymond nor other orders issued of such nature. The proper relief for a defect in
process is not dismissal of the cause, but rather, more time to answer the suit. Kawasaki Steel
Corp., 699 S.W.2d at 202; see also TEX. R. CIV. P. 122 (describing the result of a constructive
appearance through a successful motion to quash service). Complaining solely of defects in service
of process, Raymond’s pleading does not challenge its amenability to service or otherwise negate
all grounds for personal jurisdiction as were alleged by Appellees’ suit.
Because Raymond’s verified pleading is not a proper special appearance, we hold its attack
on defective service constitutes a general appearance. See Kawasaki Steel Corp., 699 S.W.2d at
202. Moreover, we need not review whether the citation accomplished proper service in this
instance because Raymond’s general appearance cured any defect that had resulted. See Caldwell
v. Tex. Dep’t of Pub. Safety, No. 03-20-00561-CV, 2021 WL 3376931, at *1 (Tex. App.—Austin
Aug. 4, 2021, no pet.) (providing that curable defects in service do not defeat a suit on jurisdictional
grounds; rather, by filing a motion to quash, a party effectively makes a general appearance and
consents to the trial court’s jurisdiction); Morales v. Morales, 195 S.W.3d 188, 191 (Tex. App.—
San Antonio 2006, pet. denied) (“[A]n appearance to contest lack of service and subsequent
participation in the proceedings constitutes a general appearance, making personal service, if
12
otherwise required, unnecessary.”); see also TEX. R. CIV. P. 123 (stating that when a judgment is
reversed on appeal for want of service, or because of defective service of process, no new citation
shall be issued or served, but “the defendant shall be presumed to have entered his appearance”).
We overrule Raymond’s sole issue and conclude the trial court did not err in denying
Raymond’s special appearance.
V. CONCLUSION
Finding no error, we affirm.
GINA M. PALAFOX, Justice
October 26, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
13