James W. Trenz and Terrane Associates, Inc. v. Peter Paul Petroleum Company and Posse Energy, Ltd.

Opinion issued August 9, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01103-CV
———————————
JAMES W. TRENZ AND TERRANE ASSOCIATES, INC.,
Appellants
V.
PETER PAUL PETROLEUM COMPANY AND POSSE ENERGY, LTD.,
Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2005-02964
OPINION
James W. Trenz and Terrane Associates, Inc. (collectively, Trenz) appeal
from the trial court’s denial of a special appearance in this declaratory judgment
action brought by Peter Paul Petroleum Company and Posse Energy, Ltd.
(collectively, Peter Paul) to resolve disputes over the calculation and payment of a
reversionary interest in an Oklahoma oil and gas lease. Trenz argues that the trial
court lacks personal jurisdiction over him and, in the alternative, lacks subject-
matter jurisdiction over this dispute because it requires the adjudication of interests
in real property located in another state. We hold that Trenz has waived any
objection to the trial court’s personal jurisdiction and affirm the trial court’s order
denying Trenz’s special appearance. We do not reach Trenz’s challenge based on
the location of certain real property because he did not raise it in his special
appearance in the trial court, and it is outside the scope of this interlocutory appeal
under section 51.014(a)(7) of the Civil Practice and Remedies Code.1
Background
James Trenz, a non-resident of Texas, is the sole owner of Terrane
Associates, a Delaware corporation with its principal place of business located
outside of Texas. Trenz is in the oil and gas consulting business. In 1990, Trenz
and Glen Rupe formed a joint venture (“ROC, et al.”) to operate certain Oklahoma
oil and gas wells owned by Peter Paul, a Texas oil and gas company.2 Through
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West 2011); TEX. R. CIV.
P. 120a.
2
Trenz and Rupe disputed the nature of their business arrangement in separate
litigation in Oklahoma. Pursuant to a settlement agreement between the parties, an
Oklahoma court entered judgment in 2004 declaring that Trenz had a contract with
Rupe and Rupe Oil Company, Inc. “to form a joint venture entitled ‘ROC, et al.’”
2
Rupe Oil Company, Inc.,3 Rupe entered into an operating agreement with Peter
Paul, under which ROC, et al. would operate the Oklahoma wells. Under the
operating agreement, Rupe, individually, agreed to purchase a five percent interest
in the wells (with Peter Paul purchasing the remaining ninety-five percent). The
agreement also granted ROC, et al. a “ten percent reversionary interest at payout of
the acquisition price, closing costs, additional drilling and workover costs, and
allocated [Peter Paul] overhead not to exceed [ten percent] of net cash flow.”
Essentially, ten percent of Peter Paul’s ninety-five percent interest in the wells
would pass to ROC, et al. once income from the wells exceeded startup costs.
ROC, et al. operated the Oklahoma wells for approximately one year before
Peter Paul notified ROC, et al. that it would replace ROC, et al. with a new
operator. ROC, et al. retained its contractual right to the ten percent reversionary
interest. Disputes arose between Trenz and Rupe regarding their business
arrangement and between Trenz and Peter Paul regarding calculation of the
reversionary interest payout. Litigation in Oklahoma resolved the dispute between
3
By “through Rupe Oil Company, Inc.,” we do not imply any determinations about
the nature of the agreement or the parties to the agreement. We only reference that
the agreement is on letterhead for “Rupe Oil Company, Inc.”; it states that it was
“made and entered into . . . by and between . . . Rupe Oil Company, Inc. . . . and
Peter Paul Petroleum Company”; and it has signature blocks for “Peter Paul
Petroleum Company” and “Rupe Oil Company, Inc.”
The signature block for “Rupe Oil Company, Inc.” is signed by Rupe. Rupe and
Rupe Oil Company are Kansas-based.
3
Trenz and Rupe, resulting in a judgment that Trenz and Rupe were joint venturers,
each with a one-half interest in the ten percent reversionary interest from Peter
Paul.4 Peter Paul filed this declaratory judgment action seeking various
declarations regarding Trenz’s rights and obligations with respect to the
reversionary interest payout and a 1997 agreement between Peter Paul and Rupe
regarding calculation of the payout.
Trenz specially appeared, challenging the trial court’s personal jurisdiction
over him. The trial court ultimately overruled the special appearance, and this
appeal followed.
Personal Jurisdiction
Trenz argues that Peter Paul failed to plead sufficient jurisdictional facts to
bring Trenz within the Texas long-arm statute and failed to prove sufficient
minimum contacts to establish Texas courts’ personal jurisdiction over Trenz.
Peter Paul responds that Trenz waived any challenge to personal jurisdiction by
generally appearing in the case and that it has demonstrated sufficient contacts to
establish jurisdiction over Trenz. “Whether a court has personal jurisdiction over a
nonresident defendant is a question of law, which we review de novo.” Zinc
4
Peter Paul eventually became a party to the Oklahoma litigation and impleaded the
disputed half of the reversionary interest (five percent) payout it had calculated,
after paying the other half (five percent) to Rupe. Peter Paul’s participation in the
litigation was limited by the Oklahoma court, and the parties dispute what issues,
as between Peter Paul and Trenz, were adjudicated in the litigation.
4
Nacional, S.A. v. Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).
A. Waiver
Unlike subject-matter jurisdiction, which concerns a court’s jurisdiction to
hear a case and cannot be waived, personal jurisdiction concerns a court’s
jurisdiction over a particular party and can be waived. Reata Const. Corp. v. City
of Dallas, 197 S.W.3d 371, 379 (Tex. 2006). A party waives the absence of
personal jurisdiction by making a general appearance in the case or by failing to
timely object to the court’s jurisdiction. Id. A party enters a general appearance
when he (1) invokes the judgment of the court on any question other than the
court’s jurisdiction, (2) recognizes by his acts that an action is properly pending, or
(3) seeks affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d
302, 304 (Tex. 2004) (holding that filing of rule 11 agreement and hearing of
jurisdiction-related discovery dispute did not waive special appearance).
Rule 120a of the Texas Rules of Civil Procedure recognizes a procedure for
a “special appearance”—a means by which a party may make a limited appearance
in the case for the purpose of challenging personal jurisdiction without making a
general appearance that will waive the challenge. See TEX. R. CIV. P. 120a; First
Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 776 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied). A party availing himself of rule 120a’s special
5
appearance procedure must strictly comply with the rule’s terms because failure to
do so results in waiver. See TEX. R. CIV. P. 120a(1) (“Every appearance, prior to
judgment, not in compliance with this rule is a general appearance.”); First Oil
PLC, 264 S.W.3d at 776; see also Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (“Rule 120a requires strict compliance.”);
SBG Dev. Servs., L.P. v. Nurock Group, Inc., No. 02-11-00008-CV, 2011 WL
5247873, at *2–4 (Tex. App.—Fort Worth Nov. 3, 2011, no pet.) (mem. op.)
(“Strict compliance with rule 120a is required[.]”). Rule 120a dictates the order in
which pleadings may be filed with respect to the filing of a special appearance—
the due-order-of-pleading requirement; it also dictates the order in which motions
may be heard with respect to a special appearance—the due-order-of-hearing
requirement. See TEX. R. CIV. P. 120a; First Oil PLC, 264 S.W.3d at 776.
1. The parties’ arguments
Peter Paul asserts that Trenz failed to comply with the due-order-of-hearing
requirement, which mandates that a special appearance “be heard and determined
before a motion to transfer venue or any other plea or pleading may be heard.”
TEX. R. CIV. P. 120a(2). Specifically, Peter Paul asserts that, before obtaining a
ruling on his special appearance, Trenz obtained hearings on a motion to dismiss, a
motion for summary judgment, and a motion for continuance of a summary
judgment hearing—each of which sought relief on non-jurisdictional grounds.
6
Thus, Peter Paul contends, Trenz made general appearances in the suit and waived
any objection to personal jurisdiction.
Trenz responds that, although the trial court did not rule on his special
appearance at the special appearance hearing in 2005, the trial court indicated that
it intended to deny the special appearance. Trenz asserts that he “relied on the
[trial] court’s statements and proceeded under the court’s implicit denial of the
special appearance” in pursuing his subsequent motions. He also asserts that
noticing a hearing for a summary judgment or continuance motion is insufficient to
waive a special appearance, citing Minucci v. Sogevalor, 14 S.W.3d 790, 800 (Tex.
App.—Houston [1st Dist.] 2000, no pet.), and Silbaugh v. Ramirez, 126 S.W.3d at
93. Trenz concludes that he “filed [his] special appearance first, filed other motions
strictly subject to the special appearance, and argued subsequent motions after the
trial court implicitly denied Trenz’s special appearance at the December 9, 2005
hearing.” Therefore, Trenz asserts that he “complied with the due order of the
pleading and hearing requirements under Texas Rule of Civil Procedure 120a, and
no waiver occurred.”
2. The pertinent procedural history
Trenz answered this lawsuit subject to his special appearance. In May 2005,
after filing his special appearance, Trenz moved for a determination that Texas law
did not govern the claims in this case and to dismiss the claims against him on
7
various grounds—the doctrine of comity, full faith and credit to a foreign
judgment, and statute of limitations. Trenz did not condition his request for
dismissal on denial of his special appearance or designate the motion as filed
“subject to” his special appearance. Peter Paul attempted to set Trenz’s motion to
dismiss for hearing on various dates in July 2005; Trenz ultimately re-set the
hearing for July 29, 2005.
In November 2005, Trenz moved for summary judgment but expressly made
his request for summary judgment and other relief subject to his special
appearance. Trenz set his special appearance for hearing on December 9, 2005 and
his motion for summary judgment for hearing on December 28, 2005. In the
meantime, Peter Paul had also moved for summary judgment, setting its motion
hearing on December 9. Subject to his special appearance, Trenz moved to
continue the hearing on Peter Paul’s summary judgment motion until December 28
so that both summary judgment motions could be heard at the same time; Trenz set
the motion for continuance for hearing on December 2. Peter Paul then agreed to
re-set its summary judgment hearing for December 28, and Trenz withdrew his
motion for continuance and request for hearing on the motion.
On December 9, the court conducted a hearing on Trenz’s special
appearance but did not issue a ruling. On December 28, the trial court conducted a
hearing on the parties’ summary judgment motions. The court issued an order
8
stating that it would “defer its ruling at this time on all pending motions in this
case, including [the motions for summary judgment] and Trenz’s Special
Appearance” to allow the Oklahoma courts of appeals “an opportunity to review
related issues raised by the parties” in the Oklahoma litigation. This order was
signed “AGREED” by counsel for both Peter Paul and Trenz. After this order, the
record is silent for more than two years.
Activity resumed when Peter Paul set both parties’ summary judgment
motions for hearing in May 2008. Peter Paul amended its pleading, and Trenz filed
an amended motion for summary judgment. Unlike his earlier motion for summary
judgment, Trenz did not designate this motion or the relief requested therein as
“subject to” his special appearance. Trenz’s amended motion for summary
judgment makes no reference to his special appearance or the trial court’s
purported lack of personal jurisdiction over Trenz. Trenz set his summary
judgment motion for hearing on August 29, 2008. Trenz also filed an amended
answer, which he designated as subject to his special appearance.
The record falls silent again until December 2009, at which time Trenz set a
status conference for December 30, 2009. Also on December 30, Trenz filed his
expert designations.
The record is then silent until August 2010, when the trial court issued a
docket control order. Trenz subsequently set a telephonic status conference for
9
September 16, 2010. In October 2010, the trial court issued a notice of trial setting
for November 19, 2010. Trenz again filed expert designations in October 2010. In
November 2010, the trial court reset the trial for February 2011. Trial did not go
forward at that time, and another status conference was set for May 6, 2011. A new
docket control order then set the case for trial in October 2011.
The record does not contain an order from the trial court denying Trenz’s
motion for summary judgment, but in September 2011, Trenz moved the trial court
to reconsider his summary judgment motion. Trenz set his motion to reconsider for
hearing on September 30, 2011. On September 22, 2011, Trenz filed a motion to
stay the case, subject to his special appearance, which he also set for hearing on
September 30. After filing the motion to stay, but before the hearing on the motion
to stay, Trenz moved for leave to have the trial court consider his motion for
reconsideration of his summary judgment motion.
At Trenz’s request, the trial court agreed to consider Trenz’s motion to
reconsider his summary judgment motion on October 3, 2011.
On October 25, 2011, the trial court issued on a new docket order, re-setting
the trial for January 9, 2012. In November 2011, Trenz moved for pro hac vice
admission of an attorney to appear before the court on his behalf at trial; the trial
court granted the pro hac vice motion in December 2011.
10
Finally, in December 2011, Trenz set his special appearance for another
hearing on January 6, 2012—three days before the scheduled trial setting. After the
trial court sent notice of a January 6, 2012 docket call for the January 9, 2012 trial
setting, Trenz moved for a ruling on his special appearance or, alternatively, an
emergency oral hearing. In the motion, Trenz noted that the trial court “did not
issue a ruling” on his special appearance at the December 2005 hearing and that
the court “ha[d], to date, not ruled.” Trenz therefore requested a ruling “[i]n
anticipation of trial.” The trial court then entered an order overruling Trenz’s
special appearance.
3. Trenz did not comply with the due-order-of-hearing requirement
Generally, if a defendant obtains a hearing on a motion that seeks
affirmative relief unrelated to his special appearance before he obtains a hearing
and ruling on his special appearance, he has entered a general appearance and thus
waived any challenge to personal jurisdiction; but if a defendant obtains a hearing
on a motion that only seeks relief appurtenant to his special appearance, it may not
result in waiver. Compare Klingenschmitt v. Weinstein, 342 S.W.3d 131, 134 (Tex.
App.—Dallas 2011, no pet.) (holding that party waived special appearance);
Landry v. Daigrepont, 35 S.W.3d 265, 267–68 (Tex. App.—Corpus Christi 2000,
no pet.) (same); SBG Dev. Servs., 2011 WL 5247873, at *2–4 (same), with Trejo,
142 S.W.3d at 306 (holding that defendant did not waive special appearance);
11
Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (same); First Oil PLC,
264 S.W.3d at 777, 781 (same). The test for whether a party has made a general
appearance by obtaining a hearing on another motion before obtaining a ruling on
his special appearance is whether the other motion sought “affirmative relief
inconsistent with [his] assertion that the district court lacked jurisdiction.”
Dawson-Austin, 968 S.W.2d at 323.
Trenz does not contend that the hearings he obtained on his motions to
dismiss and for summary judgment were necessary to, inextricably intertwined
with, or otherwise related to, his special appearance. Nor does he deny that they
sought affirmative relief from the trial court inconsistent with his assertion that the
trial court lacked jurisdiction over him. See Klingenschmitt, 342 S.W.3d at 134
(holding that party sought affirmative relief by filing motion to dismiss and
violated due-order-of-hearing requirement by having motion to dismiss and motion
to reconsider dismissal heard before special appearance); SBG Dev. Servs., 2011
WL 5247873, at *2–4 (holding that defendant waived special appearance by
having motion to strike pleadings—which requested dismissal of claims on basis of
failure to comply with order on special exceptions—heard before special
appearance at hearing).
Though Trenz asserts that the trial court foreshadowed its ruling and that he
relied on that “implied” ruling, Trenz admits that the trial court did not rule on his
12
special appearance at the December 2005 hearing—otherwise, this interlocutory
appeal would be years beyond its filing deadline. Thus, it is undisputed that Trenz
requested and obtained hearings on his motion to dismiss, original motion for
summary judgment, and amended motion for summary judgment before the trial
court heard and determined his special appearance. See TEX. R. CIV. P. 120a(2); see
also Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 875–76 (Tex.
App.—Texarkana 2008, no pet.) (“Rule 120a 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.”).
The appellate record demonstrates that Trenz did not move for the trial court
to issue a ruling on his special appearance until December 2011—six years after
the hearing—and never objected to the trial court’s failure to rule on the special
appearance sooner.5 By obtaining and participating in hearings on requests for
affirmative relief from the trial court before obtaining a ruling on his special
appearance, Trenz violated rule 120a and waived his challenge to personal
jurisdiction. See TEX. R. CIV. P. 120a; Klingenschmitt, 342 S.W.3d at 134;
5
Generally, a party may preserve error on an issue on which the trial court has not
ruled by requesting a ruling and objecting to the trial court’s refusal to rule. See
TEX. R. APP. P. 33.1(a)(2)(B).
13
Milacron, 262 S.W.3d at 875–76; Landry, 35 S.W.3d at 267–68; SGB Dev. Servs.,
2011 WL 5247873, at *3.
Trenz’s participation in the prosecution of this action, along with the
inordinate delay in obtaining a ruling, is more extensive than that of the defendants
in Minucci and Silbaugh, and evidences an intent to proceed in the Texas case. The
Minucci court held that the defendant challenging personal jurisdiction did not
waive his challenge by “mere[ly] filing [a] notice of oral hearing” on his motion to
dissolve a writ of garnishment. 14 S.W.3d at 800. The Minucci defendant did not
proceed with the hearing on his request for affirmative relief before obtaining a
ruling on its special appearance, as Trenz did here. See id. Silbaugh is also
distinguishable. In Silbaugh, the defendant set two motions for hearing: a motion
to quash discovery and a motion to strike an intervening party. 126 S.W.3d at 93.
Like in Minucci, the defendant in Silbaugh did not have her motions heard or ruled
on before her special appearance. Id. at 93−94. Additionally, the motion to quash
was a discovery dispute—rule 120a expressly contemplates jurisdictional
discovery before a special appearance hearing, TEX. R. CIV. P. 120a(3)—and the
motion to strike was based on the trial court’s lack of jurisdiction. Silbaugh, 126
S.W.3d at 93−94. Thus, Trenz’s reliance on Minucci and Silbaugh is misplaced.
Because Trenz waived his special appearance, we overrule his first issue.
14
The Local Action Doctrine
In addition to challenging the trial court’s denial of his special appearance,
Trenz raises a new issue on appeal, which he classifies as a challenge to the trial
court’s subject-matter jurisdiction. Specifically, Trenz argues that the trial court
lacks jurisdiction over this case because it involves an interest in real property,
which must be litigated in the place where the real property is located. The
principle Trenz invokes is sometimes referred to as the “local action doctrine.”6
A. The parties’ arguments
Trenz’s subject-matter-jurisdiction argument is as follows:
Peter Paul seeks a Texas court to adjudicate rights associated with a
contract that conveyed a working interest in oil and gas properties in
Oklahoma. A working interest is an oil and gas right that is an interest
in real property. Texas courts generally prohibit adjudicating rights in
real property located in other states. Consequently, Texas courts lack
subject-matter jurisdiction over this dispute[.]
(internal citations omitted). Trenz cites Trutec Oil & Gas, Inc. v. Western Atlas
International, Inc., 194 S.W.3d 580, 583, 591 (Tex. App.—Houston [14th Dist.]
2006, no pet.), to support this argument.
6
The local action doctrine is founded on the principle that “[l]ocal actions are in the
nature of suits in rem, and are to be prosecuted where the thing on which they are
founded is situated.” Casey v. Adams, 102 U.S. 66, 68, 26 L. Ed. 52 (1880). In in
personam proceedings, the doctrine requires that certain claims relating to real
property be tried where the real property is situated. See, e.g., Crawford v. Silette,
608 F.3d 275, 277−78 (5th Cir. 2010).
15
Peter Paul responds that Trenz’s subject-matter-jurisdiction argument is, in
fact, a “local action rule” argument, which is not jurisdictional in nature.
Therefore, Peter Paul contends, Trenz waived this argument by failing to raise it in
the trial court. Peter Paul further responds that the local action doctrine does not
apply to this action, which is in personam rather than in rem.7
Neither party addresses whether this Court has jurisdiction to consider
Trenz’s local-action-doctrine challenge to the trial court’s jurisdiction in this
interlocutory appeal. Nevertheless, we have an obligation to examine our own
interlocutory jurisdiction sua sponte. Ross v. Linebarger, Goggan, Blair &
Sampson, L.L.P., 333 S.W.3d 736, 741 (Tex. App.—Houston [1st Dist.] 2010, no
pet.) (citing M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per
curiam)). Thus, we must first determine whether Trenz’s local-action-doctrine
challenge to the trial court’s jurisdiction falls within section 51.014(a)(7)’s
7
Peter Paul asserts that “[t]he Texas Supreme Court has already rejected an attempt
to apply the local action rule to a case just like this,” citing Smith v. Hall, 219
S.W.2d 441, 444 (Tex. 1949). According to Peter Paul, “Smith rightly holds that
the local action rule does not apply to ‘a suit for specific performance of a contract
to convey an interest in land, or for damages for breach of such contract.’ That is
precisely this case, so the local action rule does not apply.” (internal citations
omitted). Smith, however, was a venue dispute. 219 S.W.2d at 442−44. The
Supreme Court made no reference to the local action rule—generally, a forum
doctrine—in deciding that the suit for specific performance on a royalties
agreement did not fall within a mandatory venue provision governing certain real-
property-related actions. Id. at 444.
16
authorization for interlocutory appeal. For the reasons discussed below, we
conclude that it does not.
B. We do not have jurisdiction to hear Trenz’s local-action-doctrine
challenge in this interlocutory appeal
Generally, Texas courts of appeals have jurisdiction over final judgments
and orders only. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.
2001). In section 51.014(a), the Legislature statutorily extended the courts of
appeals’ jurisdiction to certain, specified interlocutory orders. See TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014(a) (West 2011). Pursuant to the Legislature’s intent,
we strictly construe section 51.014(a) as a narrow exception to the general rule that
a trial court’s interlocutory orders are not appealable. Tex. A & M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Tex. S. Univ. v. Gilford, 277 S.W.3d
65, 71 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
1. Our jurisdiction under section 51.014(a)(7) is limited to orders
granting or denying a rule 120a special appearance
Trenz filed this interlocutory appeal under section 51.014(a)(7) of the Civil
Practices and Remedies Code.8 See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(7). Thus, this Court has interlocutory jurisdiction over this appeal only
to the extent such jurisdiction is expressly granted by section 51.014(a)(7). Id.; see
also Bally Total Fitness, 53 S.W.3d at 355; Qwest Communications Corp. v. AT &
8
The parties have not invoked any other statutory basis for interlocutory appeal.
17
T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (“An appellate court lacks jurisdiction to
review an interlocutory order unless a statute specifically authorizes an exception
to the general rule, which is that appeals may only be taken from final
judgments.”). Section 51.014(a)(7) grants courts of appeals jurisdiction over a
district court’s interlocutory order that “grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except in a suit
brought under the Family Code.” TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(7).
2. Rule 120a is a vehicle for challenging personal jurisdiction
Rule 120a provides that “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 second part
of this language—“on the ground that such party or property is not amenable to
process issued by the courts of this State”—demonstrates that rule 120a references
challenges to personal jurisdiction. See TEX. R. CIV. P. 120a; see also Steve Tyrell
Prods., Inc. v. Ray, 674 S.W.2d 430, 434 (Tex. App.—Austin 1984, no writ)
(observing, in context of in personam action, that this language makes it “readily
apparent that Rule 120a was designed only to allow a defendant to challenge the
power of the state court” to “subject an unwilling nonresident defendant to in
18
personam jurisdiction”—i.e., whether a sufficient relationship exists between
nonresident defendant and forum state).
3. To the extent Trenz challenges the trial court’s subject-matter
jurisdiction, that challenge falls outside the scope of section
51.014(a)(7)
The local action doctrine is a unique creature of the common law that courts
have, at times, applied in both venue and jurisdictional (personal and subject-
matter) analyses.9 We need not determine whether and how that doctrine applies to
this case at this time because we hold that Trenz’s local-action-doctrine challenge
falls outside the scope of the interlocutory appeal authorized under section
51.014(a)(7)—the only basis for interlocutory appeal invoked by Trenz in this
appeal.
9
E.g., Livingston v. Jefferson, 15 Fed. Cas. 660, 664 (C.C.D. Va. 1811) (applying
local action rule to hold that Virginia court lacked jurisdiction over claim for
trespass to land located in Louisiana); Casey, 102 U.S. at 68, 26 L. Ed. 52 (holding
that former federal venue statute applied to transitory actions only and did not
displace local action rule); Crawford v. Silette, 608 F.3d 275, 277−78 (5th Cir.
2010) (“The local action doctrine holds that ‘federal and state courts lack
jurisdiction over the subject-matter of claims to land located outside the state in
which the court sits.’”) (citing Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th
Cir. 1987)); Tex. & P. Ry. Co. v. Gay, 26 S.W. 599, 607−09 (Tex. 1894) (holding
that Louisiana courts lacked jurisdiction to adjudicate possession of land situated
in Texas and stating, “It has sometimes been stated that the principles thus
announced furnished simply a technical rule in reference to venue, and that they
had no bearing on the more substantial question of jurisdiction, but the language of
the great judge is not susceptible of such a construction.”), aff’d, 167 U.S. 745, 17
S. Ct. 1000 (1897).
19
To the extent that Trenz invokes the local action doctrine as a challenge to
personal jurisdiction, we have held Trenz waived his objection to personal
jurisdiction in this action. Moreover, parties must raise objections to personal
jurisdiction before the trial court in order to preserve them for appeal, and Trenz
did not raise his local-action-doctrine challenge before the trial court. See State v.
C.J.F., 183 S.W.3d 841, 852 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(holding that personal-jurisdiction challenges not raised in trial court may not be
raised for first time on appeal) (citing TEX. R. APP. P. 33.1); Reynolds v. Reynolds,
2 S.W.3d 429, 430 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (same). To the
extent Trenz invokes the doctrine as a challenge to venue or subject-matter
jurisdiction, it falls outside the scope of his section 51.014(a)(7) appeal; section
51.104(a)(7) only authorizes interlocutory review of a trial court’s ruling on
personal-jurisdiction challenges brought pursuant to rule 120a. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(7) (authorizing interlocutory appeal from
trial court order that “grants or denies the special appearance of a defendant under
Rule 120a”); see also TEX. R. CIV. P. 120a.
Section 51.014(a)(7) endows us with jurisdiction over appeals from the grant
or denial of a party’s objection to personal jurisdiction through special appearance
under rule 120a. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7); TEX. R.
CIV. P. 120a. Trenz has waived his objection to personal jurisdiction, and he did
20
not raise (nor did the trial court grant or deny) a local-action-doctrine objection to
personal jurisdiction in his special appearance. Trenz’s local-action-doctrine
challenge therefore falls outside the scope of this interlocutory appeal, as
authorized by section 51.014(a)(7) of the Civil Practices and Remedies Code.
Conclusion
We hold that Trenz waived his objection to the trial court’s personal
jurisdiction. We therefore affirm the trial court’s order denying Trenz’s special
appearance. We do not reach Trenz’s local-action-doctrine complaint, which we
determine to be outside the scope of this interlocutory appeal, brought pursuant to
section 51.104(a)(7) of the Civil Practices and Remedies Code.
Harvey Brown
Justice
Panel consists of Justices Bland, Massengale, and Brown.
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