Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:DSP Enterprises filed suit on a sworn account against A&J Printing Inc. A&J made a special appearance before the case was dismissed in November 2003 for want of prosecution before a ruling on the special appearance was made. DSP moved to reinstate the case Jan. 26, 2004, arguing it didn’t receive notice of the dismissal order until Jan. 23. The trial court held a hearing on the motion to reinstate but no ruling was made at the time. On Feb. 23, the trial court entered a written order denying A&J’s special appearance filed when the suit was first started. A&J appealed the denial of the special appearance. No evidence was entered on this issue, though other court filings showed that A&J is a Missouri corporation that does not maintain a regular place of business or registered agent in Texas. A&J stated these and other facts in an affidavit. The basis for jurisdiction under Texas’ long-arm statute, according to DSP, was that A&J ordered goods from DSP, the goods were delivered, but that A&J did not pay the amount due. After A&J filed its notice of appeal, in April 2004, the trial court granted DSP’s motion to reinstate. HOLDING:Reversed and remanded. The court first confirms that the trial court’s reinstatement order was entered within the trial court’s plenary power. Although the case had not been reinstated by Feb. 23, 2004, when the trial court entered the written order denying A&J’s special appearance, the special appearance order was made within the plenary power period provided for in Texas Rule of Civil Procedure 165a(3). A&J does not cite any authority for the proposition that an order entered during the court’s plenary power period is void if made after a judgment of dismissal but before the case is properly and timely reinstated. Despite the court’s rejection of A&J’s argument on the trial court’s subject matter jurisdiction, the court agrees with A&J that the trial court did not have personal jurisdiction over it. The court agrees that there is nothing to show that A&J had minimum contacts with Texas. Upon filing a special appearance, A&J assumed the burden to negate all the bases of personal jurisdiction alleged by DSP. The only bases asserted by DSP were the facts on the sworn account. A&J did not file a sworn denial to these facts, so they are admitted as true. However, those facts, without anything else, are not proof that the account arose out of contacts with Texas. While DSP alleges that A&J did not pay for goods delivered, there is no evidence that A&J took any action in Texas in connection with that failure. Furthermore, the trial court was not precluded from considering the evidence set forth in A&J’s verified special appearance, even though A&J did not file a sworn denial of DSP’s suit on account. Without evidence of A&J’s purposeful contacts with Texas, the trial court could not exercise specific personal jurisdiction over A&J. OPINION:Whittington, J.; Morris, Whittington and O’Neill, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.