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CONSIDER THE FOLLOWING SCENARIO: Your client has been served with process, but you don’t think the court has personal jurisdiction. So you do what any good

lawyer would do – you file a special appearance. Despite your best efforts, however, the trial court rules against you. What next? What are your options? Texas law says you can immediately appeal the trial court’s decision. But what steps should you take? Are there any pitfalls you should avoid? This article addresses the interlocutory appeal of special appearance rulings in Texas, from the nuts and bolts of the appellate process to jurisdiction over the appeal in the Texas Supreme Court.

A Welcome Change to Texas LawInterlocutory appeal of a special appearance denial was not always possible in Texas. Prior to 1997, a plaintiff could imme-diately appeal a trial court’s ruling on a special appearance, but a defendant could not.1 The reason? An order granting a special appearance is final, whereas an order denying a special appearance is interlocutory, pending trial on the merits. Generally, the courts of appeals can only review final orders, and the denial of a special appearance had not yet been added to the list of statutorily appealable interlocutory orders. Thus, practitioners were left with only two options, neither of which was very attractive – wait to appeal until after a costly trial on the merits, or pursue a writ of mandamus.2

In 1997, the Texas Legislature amended section 51.014 of the Texas Civil Practice and Remedies Code to allow the immediate appeal of an interlocutory order denying a special appearance.3 This amendment was a welcome change – prac-titioners were no longer resigned to mandamus as their only immediate remedy for denial of a special appearance.

Mechanics of the AppealAn interlocutory order granting or denying a special appear-ance is accelerated, meaning the notice of appeal must be filed within 20 days after the order is signed.4 Importantly, the signing of a formal order is not the only action that can trigger this 20-day time period; rather, any order that is in writing, specific, and signed by the trial judge starts the appellate

SPECIAL APPEARANCE APPEALSBY LADAWN H. CONWAY & DEVON D. SHARP

clock ticking.5 Thus, for example, a letter signed by the trial judge granting or denying a special appearance may begin a party’s 20-day time period to perfect an appeal.6

Notably, filing a motion for new trial, a motion for reconsid-eration, or a request for findings of fact and conclusions of law will not extend the appellate timetable in an accelerated appeal.7 However, if you’ve missed the deadline for the appeal by 15 days or less, all is not lost. If you immediately file a notice of appeal with a motion to extend the time for filing the notice, the appellate court has the discretion to grant an extension.8

Section 51.014 permits you to challenge a special appearance ruling by interlocutory appeal, but must you challenge it using that vehicle? In other words, can you wait until after final judgment to challenge your special appearance ruling? At least one court of appeals says no. In Matis v. Golden, Matis waited until after final judgment to appeal the denial of his special appearance.9 Dismissing the appeal as untimely, the Waco Court of Appeals held: “An appeal of an order granting or denying a special appearance is an interlocutory appeal which must be perfected by filing a notice of appeal within twenty days after the ruling.”10 A concurring opinion explained the consequences of the majority’s holding: “[The court’s] holding means the losing party cannot wait until the end of the proceeding and then appeal the denial of the special appearance, but must instead comply with the requisites of timely filing a notice of appeal for the accelerated appeal.”11 In light of this holding, practitioners should always appeal special appearance rulings under the rules governing interlocutory appeals.

So exactly which orders are appealable under the statute permitting interlocutory review of a special appearance order? For example, what if the trial court denies your special appearance after (improperly, in your mind) striking your supporting evidence as a discovery sanction? Can you obtain immediate review of the propriety of the discovery sanction in the context of your interlocutory appeal? The answer is maybe. Appellate courts have jurisdiction to consider immediate

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appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. However, to the extent that the subject matter of a non-appealable interlocutory order may affect the validity of an appealable interlocutory order, the non-appealable order may be considered.12 Unfortunately, this rule, however, has not been applied uniformly among the courts of appeals. For example, in Santos Ltd. v. Gibson, the defendant filed a motion to strike its answer, which it had failed to make subject to its special appearance.13 After the trial court denied both the motion to strike and the special appearance, the defendant appealed. The Fourteenth Court of Appeals found that it had jurisdiction to review the trial court’s ruling on the motion to strike, stating, “[T]he trial court appears to have found that [the defendant] waived its special appearance based on its finding that [the defendant’s] initial answer was authorized.”14 Several months earlier, however, under analogous facts, the same court held differently. In Royal Solaris Caribe Hotel & Marina v. Ranselm, the trial court struck the only affidavit filed in support of the defendants’ special appearances as a discovery sanction and then denied the special appearances.15 On appeal, the court concluded that “discovery sanction orders, even ‘death penalty’ sanctions, are not appealable interlocutory orders.”16 Despite the fact that the discovery sanction clearly affected the validity of the defendants’ special appearances, the court ruled that the only procedure for immediate review of the discovery sanctions was mandamus.17 This issue has been further complicated by similarly inconsistent holdings in other courts of appeals.18

Stay Pending AppealOnce you file your notice of appeal, subsection (b) of 51.014 provides for an automatic stay of the underlying trial.19 Don’t be fooled, though – the stay is only “automatic” if you meet the deadlines set forth in subsection (c). Specifically, you must have filed your special appearance and requested a submission or hearing on it by the later of the following: (1) the date set by the trial court in a scheduling order; or (2) the 180th day after the date you filed (a) your original answer; (b) your first other responsive pleading to the plaintiff ’s petition; or (c) if the plaintiff files an amended pleading that alleges a new cause of action against you and you are able to raise a defense to the new cause of action concerning the lack of personal jurisdiction, the responsive pleading that raises that defense.20 This is a complicated provision, but compliance with it is essential. Assuming you’ve met these

deadlines, the trial court has no discretion but to grant your request for a stay. However, failure to inform the trial court of the operation of the stay waives any error that the trial court may commit by failing to stay the trial.21

Section 51.014(b) does not provide for a stay of discovery. To obtain such a stay, you must request it from the appellate court in which your appeal is pending,22 which may well grant the stay given the potentially wasted time and expense of discovery against a party whose presence may be improper in the case. For example, in Lattin v. Barrett, the appellants appealed the trial court’s denial of their special appearances

and sought to stay all proceed-ings, including discovery on a non-appealing defendant, CNM.23 The appellees objected to the stay on the ground that discovery served on CNM would impose no undue burden or expense on the appellants.24 Expressing concern for an appellant challenging the denial of a special appearance having to incur the expense and inconvenience of discovery

pending resolution of the interlocutory appeal, the court of appeals granted the stay.25 Thus, it is possible to obtain a stay of discovery even in cases where other defendants are not pursuing an interlocutory appeal.

A note of caution: violating the stay – or causing the trial court to violate the stay – can have unfavorable consequences, as the appellee learned in Oryx Capital International, Inc. v. Sage Apartments, L.L.C. In that case, the court of appeals ordered a stay of all proceedings pending disposition of Oryx’s interlocutory appeal from the trial court’s denial of its special appearance.26 One month later, while the appeal was still pending, Sage filed a notice to non-suit Oryx and the trial court entered an order dismissing Oryx from the lawsuit.27 Thirty minutes later, Sage filed a third amended petition, pleading additional jurisdictional facts to demonstrate per-sonal jurisdiction over Oryx in Texas. Sage then moved to dismiss Oryx’s appeal as moot based on the dismissal order entered by the trial court. The appellate court chastised Sage, stating, “By filing its notice of non-suit and asking the trial court to sign the order of dismissal, Sage violated our stay order . . . [and] caused the trial court to violate our order as well.”28 Because the trial court’s order dismissing Oryx from the case was entered in direct violation of the appellate court’s order, it was void.29

“ ... the losing party cannot wait until the end of the proceeding and then appeal the denial of the special

appearance, but must instead comply with the requisites of timely

filing a notice of appeal for the accelerated appeal ... ”

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Standard of Review on AppealPrior to the Texas Supreme Court’s 2002 opinion in BMC Software Belgium, N.V. v. Marchand,30 the standard for reviewing a trial court’s order denying a special appearance was unclear. Most of the Texas courts of appeals reviewed the trial court’s factual findings for legal and factual sufficiency and the trial court’s legal conclusions de novo.31 However, some courts reviewed the trial court’s decision for an abuse of discretion, since the personal jurisdiction analysis involves both legal and factual questions.32 In BMC Software, the Supreme Court settled the issue, agreeing with the majority of the intermediate appellate courts: the trial court’s factual findings are reviewed for legal and factual sufficiency and legal conclusions are reviewed de novo.33 While the issue of personal jurisdiction over a defendant is a question of law, the trial court frequently must resolve issues of fact before deciding the jurisdiction question.34 If the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. Unchallenged fact findings are binding on the appellate court.35

Although the Rules of Appellate Procedure expressly state that findings of fact and conclusions of law are not required in the interlocutory appeal context,36 the Texas courts of appeals have repeatedly held that the appellant should ask the trial court to make such findings and conclusions.37 So what happens when the trial court declines to do so? Under these circumstances, the courts of appeals presume that the trial court resolved all fact issues in favor of its ruling, and all facts necessary to support the ruling and supported by the evidence are implied.38 These implied findings, however, are not necessarily conclusive – if the record on appeal includes both the reporter’s and clerk’s records, the appellant may challenge both express and implied findings for legal and factual sufficiency of the evidence.39 Further, even in the absence of a reporter’s record on appeal, implied findings are not necessarily conclusively established – they may still be challenged if the trial court’s order on special appearance indicates that all of the evidence before it is included in the clerk’s record.40 In such case, a reporter’s record is unneces-sary to a sufficiency review.41

Care must be taken, however, with respect to the record on appeal – particularly in connection with the hearing on special appearance. The appellant bears the burden of assuring inclusion in the appellate record of all pleadings and evidence that were before the trial court at the time it made its special appearance decision.42 Any evidence missing from the record is presumed by the court of appeals to support the trial

court’s ruling.43 A reporter’s record of the hearing on special appearance is required, but only if evidence is introduced in open court. For nonevidentiary hearings, a reporter’s record is superfluous.44 Accordingly, if all of the evidence relating to the special appearance is filed with the clerk and only arguments by counsel are presented at the hearing, the appeal should be decided on the clerk’s record alone.45 If the record on appeal is unclear as to whether the special appearance hearing was evidentiary or nonevidentiary and there is no indication in the trial court’s order or the parties’ briefs to the contrary,46 the court on appeal should presume that the hearing was nonevidentiary and that the trial court considered only the evidence filed with the clerk.47 However, if there is any indication that the hearing was evidentiary, the appellant must present a record of the hearing to establish harmful error on appeal.48

The Texas courts of appeals review the trial court’s express or implied findings in a special appearance appeal for both legal and factual sufficiency.49 The legal sufficiency standards laid down by the Texas Supreme Court in City of Keller v. Wilson50 apply to a trial court’s ruling on special appearance. In conducting a legal sufficiency analysis, the appellate court reviews the evidence in the light most favorable to the challenged finding and indulges every reasonable inference that would support it.51 The court on appeal “must credit favorable evidence if a reasonable factfinder could and disre-gard contrary evidence unless a reasonable factfinder could not.”52 In its factual sufficiency review, the appellate court “examines the entire record, considering both the evidence in favor of, and contrary to, the challenged finding.”53 The court sets the finding aside only if, after considering and weighing all the evidence, the finding is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”54

The trial court’s conclusions of law are not reviewed on appeal for sufficiency of the evidence but, rather, for legal correctness.55 However, even if the trial court committed error in applying the law, reversal on appeal is not required if the trial court rendered a proper judgment.56 Accordingly, in reviewing challenges to the trial court’s conclusions of law, the court of appeals examines the entire record, not just the evidence from which the conclusions of law are drawn.57

Waiver on AppealIt is critical to cover all of your bases and avoid waiver on appeal. This means diligent preservation of error at every stage of the special appearance process. For example, in Mondial, Inc. v. Karcher, Mondial appealed the grant of Karcher’s special

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appearance, but, on appeal, challenged only the trial court’s legal conclusions, not its findings of fact.58 Additionally, Mondial failed to challenge the trial court’s findings and conclusions that no general jurisdiction existed over Karcher; thus, Mondial’s appeal hinged solely on specific jurisdiction.59 The court noted that “[w]hen findings of fact are filed and are unchallenged, . . . they occupy the same position and are entitled to the same weight as the verdict of a jury.”60 Because Mondial failed to challenge the trial court’s findings of fact, the appellate court affirmed trial court’s order.61

The mistake in PCC Sterom, S.A. v. Yuma Exploration and Production Co. was made at the special appearance hearing, where the plaintiff argued that a verification attached to the special appearance was defective but failed to obtain a ruling on its objection.62 The court of appeals held that this argument was waived.63

Although appellate courts tend to construe the briefing rules liberally, a thorough, accurate statement of issues in the appel-late brief is important. For instance, in its brief on appeal, the appellant in Arth Brass & Aluminum Castings, Inc. v. Harsco Corp., challenged the legal sufficiency of the evidence to support the trial court’s conclusions of law.64 This is an inaccurate state-ment of the issue, since appellate courts review fact findings for sufficiency, not conclusions of law.65 Nevertheless, the court of appeals in Arth Brass liberally construed the briefing rules and interpreted the appellant’s issue “as challenging the trial court’s legal conclusion in exercising personal jurisdiction.”66 Other appellate courts have followed this trend of liberal construction;67 however, practitioners should always err on the side of careful drafting of the issues.

Supreme Court JurisdictionSuppose you’ve gone through the process of an interlocutory appeal, but the court of appeals has ruled against you. What now? Generally, a court of appeals’ decision in an interlocutory appeal is final.68 There are, however, two exceptions to this general rule. The Texas Supreme Court has jurisdiction to review an interlocutory appeal when the justices of a court of appeals disagree on a question of law material to the decision (commonly known as “dissent jurisdiction”),69 or when one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case (commonly known as “conflicts jurisdiction”).70

The Supreme Court has exercised jurisdiction over very few interlocutory appeals of special appearance rulings. Since the amendment of section 51.014 in 1997, the Supreme

Court has reviewed only seven cases on the basis of conflicts jurisdiction72 and only two cases on the basis of dissent jurisdiction.73 The Court is thus willing to entertain such appeals, but only if the necessary jurisdictional criteria are met.74 Demonstrating jurisdiction in the Supreme Court over an interlocutory appeal is one of the more challenging tasks in the practice of appellate law; ironically, however, the rules of appellate procedure limit the petitioner’s jurisdictional state-ment to just that – a mere statement, “without argument,” of the basis of the Court’s jurisdiction.74 The dilemma presented by the challenge of establishing jurisdiction in the Supreme Court and the restrictions of the briefing rules was raised in Daimler-Benz Aktiengesellschaft v. Olson.75 In that case, the petitioner asserted that the Court had conflicts jurisdiction because the court of appeals’ decision conflicted with six prior decisions of other courts of appeals on material ques-tions of law.76 The jurisdictional statement in the petition for review explained the nature of the conflict in just over five pages.77 The respondents filed a waiver of response in which they alleged that petitioners had violated the briefing restrictions on the jurisdictional statement. The Court struck the petition and ordered it redrawn. In dissent, Justice Hecht argued that the petitioner’s “concise explanation of the basis for jurisdiction” did not violate the briefing rules:

It makes no sense to confine petitioner to merely citing the conflicts sections of the Government Code and the cases it asserts are in conflict. Without some explanation of the bases for these assertions, the peti-tion would give the Court no meaningful indication of the bases claimed for existence of its jurisdiction.

Although this was the first time the Court had ever struck a petition because of its jurisdictional statement,78 strict compliance with the briefing rules is advised when drafting petitions to the Texas Supreme Court.

LaDawn H. Conway is a shareholder with Munsch Hardt Kopf & Harr, P.C. Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, she specializes in complex civil appeals in both state and federal appellate courts.

Devon D. Sharp is an associate with Munsch Hardt Kopf & Harr, P.C. She practices general commercial litigation with an emphasis in employment law. ✯

1 See Laykin v. McFall, 830 S.W.2d 266, 268 (Tex. App.—Amarillo 1992, orig. proceeding).2 See TEX. R. CIV. P. 120a(4); TEX. GOV’T CODE ANN. § 22.221 (Vernon 2004).

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3 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (Vernon 1997). The amendment applies to all non-family law cases pending on June 20, 1997 in which the trial, new trial, or retrial after a motion or appeal begins after that date, and to all non-family law cases filed on or after June 20, 1997. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) historical note (Vernon Supp. 2007) [Act of June 20, 1997, 75th Leg., R.S., ch. 1297, § 2a (1) and (2), 1997 Tex. Gen. Laws 4936-37]; see also In re J.S.M., No. 14-03-01351-CV, 2004 WL 395911, at *1 (Tex. App.—Houston [14th Dist.] March 4, 2004, no pet.) (mem. op.)(“The grant or denial of a special appearance in a case brought under the Texas Family Code is not subject to interlocutory appeal.”); In re Cannon, 993 S.W.2d 354, 355 (Tex. App.—San Antonio 1999, no pet.) (mandamus is the proper vehicle for appealing special appearance rulings in cases under the Family Code).4 TEX. R. APP. P. 28.1, 26.1(b); Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463, 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.).5 Perna v. Taylor, 146 S.W.3d 791, 795 (Tex. App.—Beaumont 2004, no pet.).6 See id. at 795-96. “Issuing an appealable interlocutory order in correspondence seems to us to be an exceedingly bad practice . . . [P]roblems arise because of the failure to follow the venerable practice of preparing a formal document to be signed by the judge and properly recorded in the minutes of the trial court. Counsel could easily assume that the letter served to inform the parties of the ruling and that a written order would be signed on a later date, with disastrous consequences.” Id. at 796 n.2. But see Barron v. Vanier, 190 S.W.3d 841, 846 (Tex. App.—Fort Worth 2006, no pet.) (holding that a letter which used present language, did not anticipate future action, and was signed, dated, and stated the cause number and the parties’ names did not constitute an order by which to begin measuring the 20 days because it was not filed in the clerk’s record).7 TEX. R. APP. P. 28.1; Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463-64 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Preston v. Choctaw Ambulance Authority, No. 2-05-423-CV, 2006 WL 133538, at *1 (Tex. App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op.).8 TEX. R. APP. P. 26.3, 10.5(b)(2).9 228 S.W.3d 301, 305 (Tex. App.—Waco 2007, no pet h.)10 Id.11 Id. at 312.12 Santos Ltd. v. Gibson, No. 14-00-00151-CV, 2000 WL 1588095, at *2 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, no pet.) (not designated for publication) (citing Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied); Tex. R.R. Comm’n v. Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex. Civ. App.—Austin 1980, writ ref ’d n.r.e.)).13 Id. at *1.14 Id. at *3.15 No. 14-99-01255-CV, 2000 WL 767869, at *1 (Tex. App.—Houston [14th Dist.] June 15, 2000, pet. denied) (not designated for publication).16 Id. (citing Markel v. World Flight, Inc., 938 S.W.2d 74, 78 (Tex. App.—San Antonio 1996, no writ)).

17 Id. (citing Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992)).18 See, e.g., Gen. Mortgage Acceptance Corp. v. Inter Tel Leasing, Inc., No. 01-99-00809-CV, 1999 WL 1240936, at *1 (Tex. App.—Houston [1st Dist.] Dec. 23, 1999, no pet.) (not designated for publication) (considering the enforceability of a forum selection clause on interlocutory appeal of a special appearance denial); Abacan Technical Servs. Ltd. v. Global Marine Int’l Servs. Corp., 994 S.W.2d 839, 843 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (considering the enforceability of a forum selection clause on interlocutory appeal of a special appearance denial); Prosperous Maritime Corp. v. Farwah, 189 S.W.3d 389, 394 (Tex. App.—Beaumont 2006, no pet.) (refusing to consider the enforceability of a forum selection clause on interlocu-tory appeal of a special appearance denial). 19 TEX. CIV. PRAC. & REM. CODE § 51.014(b) (Vernon 1997).20 TEX. CIV. PRAC. & REM. CODE § 51.014(c) (Vernon 1997); see also Morrill v. Cisek, Nos. 01-03-01336-CV, 01-04-00266-CV, 2005 WL 2123714, at *5 (Tex. App.—Houston [1st Dist.] Aug. 31, 2005, pet. denied) (mem. op.).21 See Henry v. Flintrock Feeders, Ltd., No. 07-04-00224-CV, 2005 WL 1320121, at *1 (Tex. App.—Amarillo June 1, 2005, no pet.) (mem. op.) (citing Lewis v. Tex. Employers’ Ins. Ass’n, 246 S.W.2d 599, 600 (Tex. 1952)).22 TEX. R. APP. P. 29.3 (“When an appeal from an interlocutory order is perfected, the appellate court may make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal . . .”).23 127 S.W.3d 276, 276 (Tex. App.—Waco 2003, order).24 Id. at 277.25 Id. See also Lacefield v. Elec. Fin. Group, Inc., 21 S.W.3d 799, 800 (Tex. App.—Waco 2000, order) (“[Defendant] should not be required to submit to ‘the expense and inconvenience’ of discovery pending resolution of his appeal.”).26 167 S.W.3d 432, 436-37 (Tex. App.—San Antonio 2005, no pet.).27 Id. at 437.28 Id. at 438.29 Id.; see also TEX. R. APP. P. 29.5 (“While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders, including one dissolving the order appealed from . . . But the court must not make an order that . . . is inconsistent with any appellate court temporary order . . .”).30 83 S.W.3d 789 (Tex. 2002).31 Id. at 794 (citing E.L.M. LeBlanc v. Kyle, 28 S.W.3d 99, 101 (Tex. App.—Texarkana 2000, pet. denied); In re Estate of Judd, 8 S.W.3d 436, 440-41 (Tex. App.—El Paso 1999, no pet.); C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Cadle v. Graubart, 990 S.W.2d 469, 471 (Tex. App.—Beaumont 1999, no pet.); Ball v. Bigham, 990 S.W.2d 343, 347 (Tex. App.—Amarillo 1999, no pet.); Garner v. Furmanite Australia Pty, Ltd., 966 S.W.2d 798, 802 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Al-Turki v. Taher, 958 S.W.2d 258, 260-61 (Tex. App.—Eastland 1997, pet. denied)).

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32 Id. at 793-94 & n.1 (citing Klenk v. Bustamante, 993 S.W.2d 677, 681 (Tex. App.—San Antonio 1998, no pet.); Whalen v. Laredo Nat’l Bancshares Inc., 37 S.W.3d 89, 91 (Tex. App.—San Antonio 2000, pet. denied); Joe Guerra Exxon Station v. Michelin Tyre Pub. Ltd., 32 S.W.3d 383, 386 (Tex. App.—San Antonio 2000, no pet.); Case v. Grammar, 31 S.W.3d 304, 307-08 (Tex. App.—San Antonio 2000, no pet.)).33 Id. at 794; Feigin v. Robinson, No. 05-97-01500-CV, 1998 WL 375458, at *3 (Tex. App.—Dallas July 8, 1998, no pet.) (not designated for publication) (“The exercise of personal jurisdiction requires the trial court to resolve any factual disputes presented before applying the jurisdictional formula.”).34 BMC Software, 83 S.W.3d at 794.35 Williams v. Pichichero, No. 04-06-00211-CV, 2006 WL 2263909, at *4 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (mem. op.); Davey v. Shaw, 225 S.W.3d 843, 849 (Tex. App.—Dallas 2007, no pet. h.) (unchallenged findings “are binding on an appellate court unless the contrary is established as a matter of law, or if there is no evidence to support the finding.”).36 TEX. R. APP. P. 28.1. See I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 884 (Tex. App.—El Paso 2005, pet. denied). See also Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 579 n.5 (Tex. App.—Austin 2006, no pet.) (Rules 296 and 297 of the Texas Rules of Civil Procedure “‘do not impose any duty on the trial court to file findings of fact and conclusions of law where there has been no trial,’ such as a special appearance that is subject to interlocutory appeal.” (quoting Bruno’s Inc. v. Arty Imps., Inc., 119 S.W.3d 893, 897 n.2 (Tex. App.—Dallas 2003, no pet.)).37 Feigin, 1998 WL 375458, at *3; I & JC, 164 S.W.3d at 883. At least one court of appeals also holds that the losing party is required to bring the trial court’s failure to file findings of fact and conclusions of law to the attention of the trial court pursuant to Texas Rule of Civil Procedure 297, and that the party’s failure to file a notice of past due findings waives the right to complain about the court’s failure to file findings of fact and conclusions of law. I & JC, 164 S.W.3d at 884-85.38 Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002), cert. denied, 537 U.S. 1191 (2003); BMC Software, 83 S.W.3d at 795. But see Hoffman v. Dandurand, 143 S.W.3d 555, 560 (Tex. App.—Dallas 2004, no pet.) (trial court’s failure to enter findings of fact and conclusions of law addressing the issue of personal jurisdiction prevented adequate presentation of appeal of trial court’s denial of special appearance, requiring reversal and remand of case); Hoffman v. Dandurand, 180 S.W.3d 340, 345 (Tex. App.—Dallas 2005, no pet.) (appeal after remand for trial court’s entry of findings of fact and conclusions of law on issue of personal jurisdiction).39 BMC Software, 83 S.W.3d at 795; Arth Brass & Aluminum Cast-ings, Inc. v. Harsco Corp., No. 13-03-00323-CV, 2004 WL 103126, at *1 (Tex. App.—Corpus Christi Jan. 23, 2004, no pet.) (mem. op.) (“When the appellate record includes the reporter and clerk’s records, neither express nor implied fact findings are conclusive and may be challenged for legal and factual sufficiency.”); Mach.

Mktg., Inc. v. Breaux Mach. Works, Inc., No. 01-03-00881-CV, 2004 WL 1403571, at *2 (Tex. App.—Houston [1st Dist.] June 24, 2004, no pet.) (mem. op.) (“When, as here, the trial court files findings of fact and conclusions of law, and the record contains the reporter’s record of the [special appearance] hearing, we may review the findings of fact on legal and factual sufficiency grounds and review the conclusions of law de novo as legal questions.”).40 Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 486 n.3 (Tex. App—San Antonio 2003, no pet.), disapproved on other grounds by Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788 n.63 (Tex. 2005). See also Feigin, 1998 WL 375458, at *1 n.1 (where court of appeals could not determine whether various hearings on appellant’s special appearance were evidentiary, but both the special appearance and response were supported by affidavits included in the appellate record, and the parties did not complain that the record was incomplete, appellate court would (1) assume that all of the evidence considered by the trial court was contained in appellate record, and (2) conclude that the appellate record was complete for purposes of its review).41 Stern, 123 S.W.3d at 486 n.3. 42 See Intertek Corp. v. Rowell, No. 03-98-00664-CV, 1999 WL 976067, at *3, 5 (Tex. App.—Austin Oct. 28, 1999, no pet.) (not designated for publication).43 Id. (affirming trial court’s denial of special appearance where evidence before the trial court at hearing on special appearance was missing from record on appeal and court of appeals was required to presume missing evidence supported implied findings necessary for denial of special appearance).44 Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005). See TEX. R. APP. P. 34.1. 45 Michiana, 168 S.W.3d at 782.46 Id. at 783. “Either party, of course, may allege that a hearing was evidentiary, but that allegation must be specific.” Id. There must be “a specific indication that exhibits or testimony was presented in open court beyond that filed with the clerk.” Id. (emphasis in original); Song v. Trading, No. 01-04-0791-CV, 2005 WL 2234087, at *1 (Tex. App.—Houston [1st Dist.] Sept. 15, 2005, pet. denied) (mem. op.) (where no reporter’s record was filed and neither party made a specific indication that exhibits or testimony was presented in open court beyond that filed with the clerk, court of appeals presumed pretrial hearing was nonevidentiary, and appeal would be decided on the clerk’s record alone).47 Id. at 784 (refusing to presume the special appearance hearing was evidentiary “when everyone concedes it was not.”).48 Id.49 BMC Software, 83 S.W.3d at 794; I & JC, 164 S.W.3d at 884 (when legal and factual sufficiency points are raised, “the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact.”). The Texas Supreme Court’s review of the trial court’s resolution of fact issues is limited to legal sufficiency. BMC Software, 83 S.W.3d at 794. 50 168 S.W.3d 802 (Tex. 2005).51 Johns Hopkins Univ. v. Nath, No. 14-06-01083-CV, 2007 WL

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2767675, at *2 (Tex. App.—Houston [14th Dist.] Sept. 25, 2007, no pet. h.) (applying City of Keller, 168 S.W.3d at 822).52 Id. 53 Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); C-Loc Retention Sys., 993 S.W.2d at 476 (“The reviewing court considers all the evidence in the record). If the special appearance is based upon undisputed facts, “the reviewing court shall conduct a de novo review of the trial court’s order either granting or denying a special appearance.” C-Loc Retention Sys., 993 S.W.2d at 476; Crystalix Group Int’l, Inc. v. Vitro Laser Group USA, Inc., 127 S.W.3d 425, 427 (Tex. App.—Dallas 2004, pet. denied).54 Johns Hopkins Univ., 2007 WL 2767675, at *2 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).55 BMC Software, 83 S.W.3d at 794; Mach. Mktg., 2004 WL 1403571, at *2. 56 Id.; C-Loc Retention Sys., 993 S.W.2d at 477 (court of appeals “must affirm the judgment of the trial court on any legal theory finding support in the evidence”). 57 Arth Brass, 2004 WL 103126, at *2.58 No. 01-03-01311-CV, 2004 WL 1351506, at *1 (Tex. App.—Houston [1st Dist.] June 17, 2004, no pet.) (mem. op.).59 Id. at *6 n. 6.60 Id. at *1 (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986)).61 Id. at *6.62 No. 01-06-00414-CV, 2006 WL 2864478, at *1-2 (Tex. App.—Houston [1st Dist.] Oct. 5, 2006, no pet.) (mem. op.).63 Id. Ultimately, the appellate court reversed the trial court’s denial of the special appearance. Id. at *13.64 No. 13-03-00323-CV, 2004 WL 103126, at *1 (Tex. App.—Corpus Christi Jan. 23, 2004, no pet.) (mem. op.).65 Id. (citing M.G.M. Grand Hotel v. Castro, 8 S.W.3d 403, 408 (Tex. App.—Corpus Christi 1999, no pet.)).66 Id.67 See Burnham v. Ewin, No. 2-05-00254-CV, 2006 WL 417325,

at *4 (Tex. App.—Fort Worth Feb. 23, 2006, no pet.) (mem. op.) (“While not articulated as such, we will treat [appellant’s] issue as a challenge to the legal and factual sufficiency of the evidence, and a challenge to the resulting legal conclusion that the trial court acquired jurisdiction over Pamela.”); I & JC, 164 S.W.3d at 882-883 (“[W]e read Appellant’s complaints as a challenge that there is no or insufficient evidence to support the trial court’s decision finding jurisdiction and denying the special appearance.”).68 TEX. GOV’T CODE § 22.225(b)(3) (Vernon 2004).69 TEX. GOV’T CODE §§ 22.225(c), 22.001(a)(1) (Vernon 2004).70 TEX. GOV’T CODE §§ 22.225(c), 22.001(a)(2) (Vernon 2004).71 See PHC-Minden, L.P. v. Kimberly-Clark Corp., No. 05-00823, 2007 WL 2457843, at *5 n.4 (Tex. Aug. 31, 2007); IRA Res., Inc. v. Griego, 221 S.W.3d 592, 595 n.2 (Tex. 2007) (per curiam); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); Michiana, 168 S.W.3d at 781; Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004) (per curiam); Commonwealth Gen. Corp. v. York, 177 S.W.3d 923 (Tex. 2005) (per curiam); GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785 (Tex. 1999) (per curiam).72 See Am. Type Culture Collection, 83 S.W.3d at 805; BMC Software, 83 S.W.3d at 793.73 For purposes of dissent jurisdiction, disagreement on a question of law material to the decision means a “direct clash between the justice and the court on the appropriate analysis for the case.” Am. Type Culture Collection, 83 S.W.3d at 805. For purposes of conflicts jurisdiction, one court holds differently from another “when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” TEX. GOV’T CODE § 22.001(e) (Vernon 2004).74 TEX. R. APP. P. 53.2(e) (“The petition must state, without argument, the basis of the Court’s jurisdiction.”).75 53 S.W.3d 308 (Tex. 2000) (Hecht, J., dissenting).76 Id. at 308.77 Id.78 Id. at 309.