In prior issues of this blog, the issues of waiver of special appearance and the due-order-of-pleading rule were briefly discussed. This month’s blog will address that specific issue in another context. That is, can entering into a written agreement to extend the date to answer or otherwise file a response to a new lawsuit containing a request for injunctive relief under Texas Rule of Civil Procedure 11, commonly known simply as a Rule 11 Agreement, waive a party’s special appearance to contest personal jurisdiction?
Texas Rule of Civil Procedure 120a mandates that a special appearance to contest personal jurisdiction must be filed prior to a motion to transfer venue or any other plea, pleading or motion. This is sometimes referred to as the “due-order-of-pleading” requirement. The Texas Supreme Court has held that a Rule 11 Agreement between the parties, in and of itself, is not a plea, pleading, or motion when it is simply extending the time to file an initial responsive pleading and does not violate Rule 120a’s due-order-of-pleading requirement. Such a Rule 11 Agreement does not constitute a general appearance. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004), citing, Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998). Seems simple enough. However, a Rule 11 extension agreement can go further and doing so may waive the special appearance and constitute a general appearance.
The Supreme Court of Texas held that a party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its 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 (Tex. 2004), citing, Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998). In Exito, the filing of a Rule 11 extension agreement to answer did not seek enforcement or any other affirmative relief from the court. In its analysis, the Supreme Court held that a Rule 11 agreement extending the time to answer or otherwise file a response does not acknowledge that the action is properly pending. It merely acknowledges that the party is required to respond to the petition in some manner. As a result, the Rule 11 Agreement in Exito that simply granted an extension to answer did not constitute a general appearance. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 306 (Tex. 2004). In contrast, the Defendant in Sedona Pac. Hous. Partnership v. Ventura, 408 S.W.3d 507, 513 (Tex. App.- El Paso 2013, no writ) made a general appearance when it agreed in the Rule 11 agreement to extend the answer date, agreed to continue the temporary injunction hearing and bond, cancel the eviction hearing, asked the court to order mediation and made the Rule 11 subject to “further order of the court” acknowledging the case was properly pending.
The short answer in drafting a Rule 11 Agreement to extend the time to answer or otherwise respond when personal jurisdiction may be an issue is to keep it simple. Ask for an extension to file an answer or responsive pleading and nothing more. Make sure the language is specific and does not trigger one of the factors set out by the Supreme Court of Texas as constituting a general appearance. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to me at firstname.lastname@example.org.