Michael Skinner v. Pamela Skinner ( 2013 )

Opinion issued December 19, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00515-CV
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MICHAEL SKINNER, Appellant
V.
PAMELA SKINNER, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 1213030
MEMORANDUM OPINION
Michael Skinner appeals a trial court’s judgment dismissing his divorce
proceeding after granting his estranged wife’s special appearance. In his sole issue,
Michael argues that his wife Pamela, who lives in Florida, waived her right to a
special appearance by submitting a letter to the district clerk that requested a
dismissal before she filed her verified special appearance. We affirm.
Background
Michael and Pamela are a married couple from Orlando, Florida. After more
than 20 years of marriage, Michael moved to Texas, eventually filing for divorce in
Harris County. Pamela—who never left Florida—was served citation there. The
divorce petition did not allege any jurisdictional facts to establish personal
jurisdiction over Pamela in the Texas court.
Pamela wrote a letter to the district clerk stating that she did not have an
attorney, acknowledging that she had 20 days to file an answer to Michael’s
petition, stating that she did not plan to miss that deadline, but including a
statement that she was “requesting a motion to Dismiss the Petition for Divorce
under the grounds that I need a change of venue and need the case tried in Orlando
Florida.” She gave the following reasons in support of dismissal:
The Petitioner Mike Skinner and I have resided in Orlando FL since
2003 and we presently have Real Property here in Orlando including
the marital home as well as all marital debt actively in both our
names.
. . .
I am NOT able to proceed in any way with a divorce that is not in
Orlando where we both have lived and still have existing property,
vehicles, and debts.
Within the 20-day answer period, Pamela retained an attorney and filed two
pleadings: Respondent’s Special Appearance and Original Answer Subject To
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Respondent’s Special Appearance. In the sworn pleading, Pamela again stated that
she and all marital assets were in Florida. She also asserted that there was an on-
going divorce proceeding in the Florida court system involving the couple in which
she sought spousal support, and she declared that she had never been to Texas and
had no contacts with the state.
Michael filed a response arguing that the special appearance should be
denied because Pamela’s letter “constitute[d] a general appearance
and waive[d the] right to specially appear” because it contained a motion to
dismiss and a motion to transfer venue. The trial court sustained the special
appearance and dismissed the case. Michael appeals that ruling.
Standard of Review
Whether a nonresident is subject to personal jurisdiction in Texas is a
question of law we review de novo. BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). Likewise, we review a trial court’s ruling on waiver
of a special appearance de novo. Moore v. Pulmosan Safety Equip. Corp., 278
S.W.3d 27, 32 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Exito
Elecs. Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004) (per curiam)).
Special appearance law
A court may assert personal jurisdiction over a nonresident defendant only if
the requirements of the Due Process Clause of the Fourteenth Amendment to the
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U.S. Constitution and the Texas long-arm statute both are satisfied. CSR Ltd. v.
Link, 925 S.W.2d 591, 594 (Tex. 1996). These require a showing that the
nonresident has minimal contacts with the state “such that the maintenance of the
suit does not offend ‘traditional notions of fair play and substantial justice.’” Id.
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158
(1945)).
The plaintiff has the initial burden of pleading sufficient allegations to bring
the nonresident defendant within the personal jurisdiction of the Texas court. BMC
Software Belgium, 83 S.W.3d at 973. If the plaintiff fails to plead facts bringing the
defendant within the reach of the long-arm statute, the defendant can defeat
personal jurisdiction simply by proving she does not live in Texas. Kelly v. Gen.
Interior Const., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010).
A challenge to personal jurisdiction is raised through a special appearance,
in which the defendant alleges, through a sworn motion, facts to establish that the
court does not have personal jurisdiction over her. TEX. R. CIV. P. 120a. Under the
“due-order-of-pleadings” rule, a special appearance must be made “prior to motion
to transfer venue or any other plea, pleading or motion.” TEX. R. CIV. P. 120a;
Exito Elec. Co., Ltd., 142 S.W.3d at 305–06 (discussing due-order-of-pleading
requirement). Any motion that invokes the judgment of the court on a non-
jurisdictional question, recognizes the jurisdiction of the court over the party, or
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seeks affirmative action from the court is considered a general appearance and
waives the defendant’s ability to obtain dismissal through a special appearance.
See Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Moore, 278
S.W.3d at 32.
There remains a “narrow” ability to take action in a case before asserting a
special appearance without making a general appearance. Letersky v. Letersky, 820
S.W.2d 12, 13–14 (Tex. App.—Eastland 1991, no writ). The filing of a document
that does not seek affirmative relief outside of the limited issue of the jurisdiction
of the court does not waive a special appearance. See, e.g., Moore v. Elektro-Mobil
Tecknik GmbH, 874 S.W.2d 324, 327 (Tex. App.—El Paso 1994, writ denied)
(holding that defendant did not seek affirmative action, and therefore did not enter
general appearance, by sending letter to court stating defendant would be filing
motion to dismiss and inquiring whether local counsel was necessary); Exito Elec.
Co., Ltd., 142 S.W.3d at 306 (holding that Rule 11 agreement signed by
defendant’s attorney agreeing that defendant would have additional time to
respond to motion did not waive special appearance because it did not seek
affirmative action by trial court).
In Letersky, a United States serviceman was married to a foreign citizen who
lived in Scotland with the couple’s minor children. 820 S.W.2d at 13. The
serviceman filed for divorce in Texas and argued that his wife waived special
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appearance by sending a letter to the district clerk where the suit was pending. Id.
The letter informed the clerk that there was a pending divorce proceeding in
Scotland through which she already had been awarded temporary custody of the
children, asserted that she had only minimal contacts with Texas, and informed the
clerk that her attorney in Scotland would be contacting the court soon thereafter.
See id. The appellate court affirmed the trial court’s grant of the special
appearance, holding that the foreign wife’s letter “questioned both the court’s
subject matter and in personam jurisdiction. The letter did not seek a judgment or
any adjudication by the court.” Id. at 14. Thus, correspondence with a district clerk
that questions the jurisdiction of the court over the party, without seeking any court
adjudication, does not waive a special appearance. See id.
Michael argues that Pamela’s letter to the district clerk did more for several
reasons: (1) it is a motion to dismiss and not a special appearance; (2) it is an
unsworn pleading; (3) it is an answer; and (4) it seeks affirmative relief from the
court by “ask[ing] for both a dismissal and for a transfer of venue.” We will
address each of these challenges in turn.
Pamela’s letter is a special appearance
Michael takes the position that the letter is a motion to dismiss which, he
argues, waives the special appearance she subsequently filed with assistance of
counsel. We disagree.
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The nature of a pleading is not determined by its title or individual words it
contains, but by reviewing the pleading as a whole. See TEX. R. CIV. P. 71
(concerning misnomer of pleading); Huynh v. Nguyen, 180 S.W.3d 608, 616–17
(Tex. App.—Houston [14th Dist.] 2005, no pet.). Thus, we look “at the substance
of the pleading.” Id. (concluding that pleading entitled “Motion to Dismiss” was
actually “a special appearance because it [sought] dismissal based on lack of
personal jurisdiction”); N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex.
App.—Houston [1st Dist.] 2000, no pet.) (dismissing case after Florida defendant
sent letter to district clerk seeking “dismissal” based on greater contacts with
Florida and court treated letter as special appearance); State Bar of Tex. v. Heard,
603 S.W.2d 829, 833 (Tex. 1980) (substance of pleading controls over title or
form); Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508,
514 (Tex. App.—Houston [14th Dist.] 1987, writ denied) (substance of pleading is
determined by effect it would have on proceeding if granted).
In N803RA, a Texas entity contracted with the Hammers, who lived and
worked in Florida, to refurbish its aircraft. 11 S.W.3d at 365. The Texas entity had
its plane flown to Florida for the Hammers to begin the repairs. A dispute arose,
and the Texas plaintiff sued the Hammers in Harris County, Texas. The Hammers
sent a signed, but unsworn, letter to the Harris County district clerk denying the
allegations against them and requesting that the suit be dismissed. Id. In the letter,
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they stated that they performed all work in Florida and none in Texas. The
Hammers subsequently hired a Texas attorney who filed a verified special
appearance and answer. After the trial court granted the special appearance and the
Texas plaintiff appealed, the appellate court ruled that (1) the letter was an answer,
(2) the only affirmative action sought was a dismissal based on jurisdictional
grounds, making it also a special appearance, (3) the unsworn letter was properly
amended to include a verification when defendants later filed an amended special
appearance, and (4) the trial court correctly granted the special appearance. See id.
at 366–68.
Pamela’s letter challenges the appropriateness of a Texas court asserting
jurisdiction over her divorce, listing her Florida residency, the parties’ multiple
contacts with that state, and the parties’ marital property there. She phrased the
letter as a motion to dismiss instead of a special appearance; however, she was
challenging the court’s personal jurisdiction. We, therefore, treat the letter as a
special appearance. See TEX. R. CIV. P. 120a(4) (the court should “enter an
appropriate order” when it sustains objection to jurisdiction); N.H. Helicopters,
Inc. v. Brown, 841 S.W.2d 424, 425 (Tex. App.—Dallas 1992, no writ) (“If the
trial court sustains the special appearance, it may dismiss the case against the
objecting defendant.”); N803RA, Inc., 11 S.W.3d at 366 (dismissing case after
sustaining Florida defendant’s special appearance raised in letter to district clerk
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seeking “dismissal”); cf. FED. R. CIV. P. 12(b)(2) (providing that a party may
challenge personal jurisdiction through a motion to dismiss).
The original special appearance could be amended to correct its defects
Michael also argues that the special appearance was waived because
Pamela’s letter was an unsworn pleading, in violation of rule 120a’s requirement
that a special appearance be a sworn document. TEX. R. CIV. P. 120a. He relies on a
1967 decision, Austin Rankin Corp. v. Cadillac Pool Corp., 421 S.W.2d 733 (Tex.
App.—Beaumont 1967, no writ), in which the defendants filed an unsworn motion
to dismiss for lack of jurisdiction. Id. at 733. That court noted that Rule 120a—
setting forth the requirements of a special appearance—mandated that a pleading
challenging the court’s personal jurisdiction be sworn, and that the defendants’
motion was not. Id. at 734. As a result, the appellate court ruled the “defendants
made a general appearance by filing their unsworn motion to dismiss.” Id.
Rule 120a has been revised since 1967 to permit a defendant to amend his
pleading challenging personal jurisdiction to cure defects in that pleading. TEX. R.
CIV. P. 120a (stating that a special appearance “may be amended to cure defects”
without specifying or limiting types of defects that can be cured); Dennett v. First
Cont. Inv. Corp., 559 S.W.2d 384, 385 (Tex. App.—Dallas 1977, no writ) (holding
that unsworn special appearance may be amended to cure defect and prevent
waiver); Ernest E. Figari, Jr., CIVIL PROCEDURE, 45 Sw. L.J. 73, 79–80 (1991)
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(explaining that holding in Austin Rankin was based on prior version of rule which
was subsequently amended to permit amendment of special appearance pleadings
to cure defects). Under the current version of the rule, a plaintiff whose initial
filing challenging jurisdiction has some defect may correct the defect and avoid
waiver. Cf. Dennett, 559 S.W.2d at 385.
Any defect in Pamela’s initial special appearance—including the lack of a
verification—was cured through the subsequent filing of a sworn special
appearance challenging the court’s personal jurisdiction. See TEX. R. CIV. P. 120a
(permitting amendment to cure defects); see also Moore, 278 S.W.3d at 34 (finding
that initial unsworn motion gave plaintiff “fair notice of [defendant’s] intent to
challenge personal jurisdiction,” that the pleading was not required to include
magic words to be a special appearance, and that it was properly amended by
subsequent special appearance to avoid general appearance; also finding persuasive
that subsequent sworn special appearance “did not assert a wholly new ground for
lack of personal jurisdiction”).
Thus, the letter’s failure to include an oath was properly corrected through a
subsequent sworn special appearance filed with the assistance of counsel and did
not result in a general appearance.
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Whether the letter was also an answer is irrelevant
Michael argues that the letter should be treated as an answer to his petition
which, he argues, waived Pamela’s subsequent special appearance. Again we
disagree.
Whether the letter was also an answer does not alter our conclusion of non-
waiver. 1 A party is permitted to file a special appearance in the same instrument as
its answer. See TEX. R. CIV. P. 120a; N803RA, Inc., 11 S.W.3d at 366 (holding that
pro se plaintiff’s letter to court was both special appearance and original answer
and did not waive special appearance); White v. Cole, 880 S.W.2d 292, 294 (Tex.
App.—Beaumont 1994, writ denied) (holding that pro se pleadings should be
liberally construed); Letersky, 820 S.W.2d at 14 (holding that letter addressing
minimal contacts with Texas was questioning personal jurisdiction and did not
waive subsequently filed special appearance).
The letter did not seek an adjudication within the meaning of rule 120a
Lastly, Michael argues that a “motion to dismiss” is treated by the courts as
a request for affirmative relief and a general appearance, relying on Klingenschmitt
v. Weinstein, 342 S.W.3d 131 (Tex. App.—Dallas 2011, no pet.). We do not read
1
We note that Pamela specifically states in her letter addressed to the district clerk
that she is aware she has 20 days to answer the petition, questions if the clerk will be
responding to her letter before this date, and affirms that she does not want to miss the
deadline or default by waiting to answer until she receives a reply. Because it is
unnecessary to decide whether the letter was an answer, we decline to do so.
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the case so broadly. That defendant sought dismissal, with prejudice, of the
plaintiff’s claim against him. Id. at 134. After the court denied the motion to
dismiss, the defendant sought a hearing on his special exceptions. See id. While
noting that the defendant did not violate the due-order-of-pleadings rule, the court
found that he violated the “due-order-of-hearing” rule by setting the hearing on the
motion to dismiss with prejudice before the hearing on the special exceptions. See
id. at 134–35. The appellate court explained:
Inconsistent with his special appearance, in his motion to dismiss . . .
Klingenschmitt sought affirmative relief from the trial court in the
form of a dismissal with prejudice of the Weinsteins’ claims against
him. A dismissal with prejudice is an adjudication on the merits. A
dismissal with prejudice operates as a final determination on the
merits. Further, in his motion to dismiss . . . Klingenschmitt sought
dismissal based on the Weinsteins’ purported failure to comply with
the trial court’s order that the Weinsteins plead allegations regarding
their [underlying] claims . . . . Klingenschmitt makes no assertion that
those alleged pleading deficiencies on the part of the Weinsteins are
related to his special appearance . . . . The hearing on the motion to
dismiss . . . preceded the hearing on Klingenschmitt’s special
appearance and violated the due-order-of-hearing requirement of rule
120a.
Id. at 134–35 (internal citations omitted).
Here, Pamela’s letter requesting dismissal is distinguishable from the
Klingenschmitt motion to dismiss because (1) Pamela did not seek a dismissal with
prejudice, and (2) the dismissal she did request was consistent with her special
appearance which listed the overwhelming contacts the parties and their property
had with Florida. The Klingenschmitt holding does not apply.
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Likewise, the venue case on which Michael relies is distinguishable. See
Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App.—Corpus Christi
1999, pet. denied). There, the defendant challenged the plaintiff’s standing to sue
under the Texas wrongful death and survival statute without filing a special
appearance or challenging denial of a motion to transfer venue. The court did not
address personal jurisdiction; instead, it focused on the plaintiff’s standing to sue.
Id. The case is inapplicable to our analysis of Pamela’s letter seeking to move her
divorce proceeding to Florida through a process she incorrectly labeled a “change
in venue.” Cf. TEX. R. CIV. P. 86 (noting that a motion to transfer venue seeks
transfer to another Texas county, not an out-of-state location). As discussed
previously, Pamela’s request constitutes a special appearance, and the use of the
phrase “change in venue” does not act to waive her right to challenge personal
jurisdiction. See White, 880 S.W.2d at 294) (holding that pro se pleadings should
be liberally construed); Letersky, 820 S.W.2d at 14 (holding that letter addressing
minimum contacts did not waive special appearance).
Conclusion
We conclude that the letter Pamela sent to the district clerk did not waive her
special appearance. Because Michael did not plead any jurisdictional facts, Pamela
satisfied her burden of demonstrating that the Texas court lacked personal
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jurisdiction over her when she asserted that she resides in Florida. Kelly, 301
S.W.3d at 658–59.
Accordingly, the trial court did not err dismissing Michael’s case following
the grant of the special appearance. We overrule Michael’s sole issue and affirm
the trial court’s ruling.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
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