Chapter 13-2 Due Order of Pleading Requirement

• Jurisdiction: United States

13-2 Due Order of Pleading Requirement

The Due Order of Pleading rule provides that certain defenses are waived if not presented in "due order." As a general rule, the defendant's answer may include any defenses he has, whether of law or fact, dilatory or merits-based,² and the trial court may take up these issues in any order it directs.³ The due order of pleading requirement, however, stands as an exception and requires special appearances and motions to transfer venue to be filed and heard in this order. If these defenses are not presented in the proper order, they are waived.

13-2:1 Due Order of Pleading—Special Appearance

A special appearance must be filed before a motion to transfer venue and any other plea, pleading, or motion.⁴ Other pleas, pleadings, and motions, however, may be filed in the same instrument as the special appearance without waiving the special appear-ance.⁵ If any other plea, pleading, or motion is filed before the special appearance, the special appearance is waived. This insures that any challenges to the court's jurisdiction over the party is heard as a threshold matter.

Any appearance not in conformity with this rule is a general appearance (waiving the challenge to personal jurisdiction),⁶ and case law makes clear that Rule 120a requires "strict compliance."⁷ A special appearance filed just one minute behind a motion to transfer venue and original answer constituted a general appearance and waived the challenge to personal jurisdiction.⁸

Despite the requirement that a special appearance must be filed before any other plea, pleading, or motion, a notice of removal filed before a special appearance does not constitute a general appearance.⁹ A notice of removal is not a general appearance whereby the defendant subjects himself to the jurisdiction of the trial court but is instead an instrument that removes the case from state to federal court.¹⁰

Agreements pursuant to Tex. R. Civ. P. 11 which extend the defendant's time to appear do not waive the defendant's special appearance, even when the agreement is not expressly made subject to the special appearance.¹¹ TA Rule 11 agreement is not a "plea, pleading or motion" that, under Rule 120a, would constitute a general appearance if filed before a special appearance, A Rule 11 agreement extending the time to file a response to the petition does not acknowledge that the trial court is a proper court for the adjudication of the dispute.¹² A letter to the court inquiring about the need to hire local counsel and indicating an intention to file a motion to dismiss did not constitute a general appearance.¹³

Merely filing a Rule 11 agreement is not a request that the trial court enforce the agreement (which would require the court to have jurisdiction to do so).¹⁴ This rationale implies that a defendant may waive a special appearance by asking the trial court to enforce the agreement, such as when the plaintiff seeks a default judgment before the deadline set forth in the motion.

13-2:2 Defects in the Special Appearance: Unsworn Motion

A special appearance must be made by sworn motion, but Rule 120a also provides that a special appearance may be amended to cure defects.¹⁵ In light of the amendment and cure language in Rule 120a, the failure to verify the special appearance does not, standing alone, constitute a general appearance and waiver, so long as the defect is cured before a general appearance is made.¹⁶ The defect can even be cured after the trial court has ruled on the special appearance.¹⁷

13-2:3 Defects in the Special Appearance: No "Subject to" Language

When filing other pleas, pleadings or motions, either with the special appearance or after it, Texas lawyers commonly (perhaps even obsessively) make the pleadings and motions "subject to the special appearance." While this is undoubtedly a good practice and will prevent a trial court judge accustomed to the practice from wondering whether the absence of the language constitutes a general appearance, the Supreme Court of Texas has held that the failure to expressly make other pleas, pleadings and motions subject to the special appearance does not constitute a general appearance and waiver.¹⁸

13-2:4 Special Appearance: Due Order of Hearing Requirement

A party may waive a special appearance even after complying with the due order of pleading requirements, if the party fails to comply with the due order of hearing requirement.

Rule 120a provides that "every appearance, prior to judgment, not in compliance with this rule is a general appearance." Rule 120a(2) provides that a special appearance shall be heard and determined before a motion to transfer venue or any other plea, pleading or motion.

The Supreme Court has quoted the following language from the El Paso Court of Appeals with approval:

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.¹⁹

As such, a party generally appears 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.²⁰ Citing this language from the Texas Supreme Court, the Eort Worth Court of Appeals held that a defendant generally appeared even after the trial court sustained its special appearance when the defendant moved for attorney fees under the Uniform Declaratory Judgment Act, obtained a hearing on the motion, and attended the hearing to argue its merits.²¹

The following activities have been held to constitute general appearances:

• Filing a motion to strike pleadings and having it heard prior to the determination of the special appearance.²²
• Filing and arguing a motion for new trial prior to the determination of the special appearance.²³
• Moving for an award of attorney fees under the Uniform Declaratory Judgment Act, obtaining a hearing on the matter, and appearing in court to argue the motion's merits after the trial court sustained the movant's special appearance.²⁴

In contrast, the following post appearance actions have been held not to constitute general appearances:

• Taking depositions and serving discovery requests going to the merits of the action.²⁵
• Conducting discovery related to the jurisdictional issue.²⁶
• Filing a motion for continuance as to hearings on other defensive matters.²⁷
• A motion for a protective order to limit discovery matters to the jurisdictional issue following the filing of a special appearance.²⁸
• Filing a motion to dismiss on forum non conveniens grounds, which was made expressly subject to the special appearance.²⁹
• Seeking a ruling on a discovery related issue that could affect the evidence presented at the special appearance hearing.³⁰

Rule 120a provides that that the issuance of process for witnesses, the taking of depositions, the serving of requests for admissions and the use of discovery processes do not constitute a general appearance and waiver. This language is not limited to...