Quality Truck Parts, Inc. Dba Worldwide Diesel v. Circle K Construction, LLC ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00111-CV
QUALITY TRUCK PARTS, INC.
DBA WORLDWIDE DIESEL,
Appellant
v.
CIRCLE K CONSTRUCTION, LLC,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 16-002605-CV-361
MEMORANDUM OPINION
Circle K Construction, LLC, filed suit against Quality Truck Parts, Inc. d/b/a/
Worldwide Diesel (Worldwide Diesel) for breach of contract, violations of the DTPA,
and breach of implied and express warranties. The trial court denied the special
appearance of Worldwide Diesel. We affirm.
Background Facts
Circle K entered into a contract with Worldwide Diesel to purchase a diesel
engine. Circle K contends that the engine it received was damaged and that Worldwide
Diesel misrepresented the condition of the engine. On October 11, 2016, Circle K filed
its original petition. On November 8, 2016, Greg Ferrier, managing member of
Worldwide Diesel filed a “Verified Response to Plaintiff’s Original Petition.” Circle K
filed an amended petition, and again Ferrier filed a pro se “Verified Response to
Plaintiff’s Original Petition.” Circle K filed a motion to strike Worldwide Diesel’s
answer and enter default judgment because Ferrier filed the response pro se.
Worldwide Diesel through counsel filed a special appearance on January 17, 2017, and
Circle K filed a response to the special appearance. The trial court denied Worldwide
Diesel’s special appearance.
Special Appearance
In the first issue, Worldwide Diesel argues that the initial pro se filing was a
special appearance rather than a general appearance. Generally, corporations may
appear in court and be represented only by a licensed attorney. Rhojo Enterprises, LLC v.
Stevens, 540 S.W.3d 621, 625 (Tex. App. — Beaumont 2018, no pet.); Rabb International,
Inc. v. SHL Thai Food Service, LLC, 346 S.W.3d 208, 209 (Tex. App. —Houston [14th Dist.]
2011, no pet.). However, when considering answers filed by non-attorney corporate
officers, appellate courts have gone to great lengths to excuse defects in answers to
Quality Truck Parts, Inc. v. Circle K Construction, LLC Page 2
prevent the entry of a default judgment. Rhojo Enterprises, LLC v. Stevens, 540 S.W.3d at
625. The Supreme Court of Texas has held that a non-attorney can perfect an appeal on
behalf of a corporation. See Kunstoplast of America, Inc. v. Formosa Plastics Corporation,
USA, 937 S.W.2d 455, 456 (Tex. 1996). A document filed in court by a non-attorney
purportedly on behalf of a corporation is defective but not void, and may be effective
for certain purposes. Kelly v. Hinson, 387 S.W.3d 906, 912 (Tex. App. — Fort Worth 2012,
pet. den’d); Rabb International, Inc. v. SHL Thai Food Service, LLC, 346 S.W.3d at 210. We
find that the “Verified Response” filed by Ferrier is not void.
Rule 120a of the Texas Rules of Civil Procedure provides:
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. A
special appearance may be made as to an entire proceeding or as to any
severable claim involved therein. Such special appearance shall be made
by sworn motion filed prior to motion to transfer venue or any other plea,
pleading or motion; provided however, that a motion to transfer venue
and any other plea, pleading, or motion may be contained in the same
instrument or filed subsequent thereto without waiver of such special
appearance; and may be amended to cure defects. … Every appearance,
prior to judgment, not in compliance with this rule is a general
appearance.
TEX. R. CIV. PROC. 120a. A party enters a general appearance, and so waives its special
appearance, if the party invokes the judgment of the court on any question other than
the court's jurisdiction or recognizes by its acts that an action is properly pending
against it. See Exito Electronics. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004).
Quality Truck Parts, Inc. v. Circle K Construction, LLC Page 3
Worldwide Diesel contends that the “Verified Response” filed by Ferrier was
misnamed and that it complies with Rule 120a other than not being verified. The
verified response states that Worldwide Diesel is a corporation in Michigan and does
not have offices in any other states and does not conduct business in any other states.
The response also states that there are several inconsistencies in Circle K’s petition and
that Worldwide does not agree with the allegations. Although the response does
address jurisdiction, it argues that Texas is inconvenient rather than Worldwide is not
amenable to process by the courts of Texas. The response appears to attempt to answer
the petition by arguing that the allegations are incorrect. The response asks the trial
court to dismiss the complaint. We find that the response filed by Ferrier is a general
appearance. We overrule the first issue. Because of our disposition of the first issue, we
need not address the second issue. TEX. R. APP. P. 47.1.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Quality Truck Parts, Inc. v. Circle K Construction, LLC Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed November 7, 2018
[CV06]
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