matters necessitated by the defendant’s special appearance. For example, engaging in discovery related to personal jurisdiction, and filing motions to quash or seeking protective orders for such discovery, does not constitute a general appearance. See Dawson-Austin. Similarly, filing a Rule 11 agreement to extend an answer deadline to file a special appearance will not thereby enter a general appearance. Exito Electronics Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004). By contrast, any time a party makes a request of a court for affirmative relief that is not in furtherance of the party’s special appearance, it thereby makes a general appearance. Numerous courts have found that a party who files instruments requesting relief inconsistent with the party’s challenge to the court’s jurisdiction thereby has made a general appearance. For example, in SBG Dev. Servs., L.P. v. NuRock Group, Inc., No. 02-11-0008-CV, 2011 Tex. App. LEXIS 8813, 11-12 (Tex. App. – Fort Worth Nov. 3, 2011, no pet.)(mem. op.), the court of appeals held that a party entered a general appearance by the filing of a motion to strike pleadings that was unrelated to the defendant’s jurisdictional challenge, and additionally waived it by violating the “due order of hearing” rule by having the motion to strike heard before the special appearance was resolved. Id. Significantly, the filing of the motion to strike, by itself, constituted waiver independent of the hearing: Because Hoskins, via the motion to strike, specifically requested and prayed for affirmative relief from the trial court inconsistent with his position that the trial court possessed no personal jurisdiction over him—that being an order or judgment dismissing all of SBG's claims against him for reasons other than the trial court's purported lack of jurisdiction over him—he waived his special appearance. Id. Similarly, in Branckaert v. Otou, 01-08-00637-CV, 2011 Tex. App. LEXIS 6286, 6-7 (Tex. App. – Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.), explaining “the test for a general appearance is whether a party requests affirmative relief inconsistent with an assertion 3
4 12 12 Ps Response to Defs Spec Appearances (ED227J016824790)
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