Motion for Appearance and Examination in MODE TRANSPORTATION, LLC vs. WILLIAM BOYER, et al| Trellis.Law

On January 10, 2022 a SUBJECT TO IT'S SPECIAL APPEARANCE, DEFENDANT MARKET EXPRESS, LLC'S NOTICE OF SUPPLEMENTAL AUTHORITY - MISCELLANOUS EVENT was filed involving a dispute between Mode Transportation, Llc, and Boyer, William, Market Express, Llc, Multimodal Transportation Solutions, Inc., Mx Solutions, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
2/2/2022 8:57 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY

CAUSE NO. DC—22—00091

MODE TRANSPORTATION, LLC, IN THE DISTRICT COURT

Plailmﬁ

V.
134TH JUDICIAL DISTRICT
WILLIAM BOYER, MULTIMODAL
TRANSPORTATION SOLUTIONS, INC.,
and MARKET EXPRESS, LLC,

Defendants. DALLAS COUNTY, TEXAS

SUBIECT TO ITS SPECIAL APPEARANCE, DEFENDANT MARKET EXPRESS,
LLC’S NOTICE OF SUPPLEMENTAL AUTHORITY

Pursuant to Rule 120a Of the Texas Rules of Civil Procedure, Defendant Market Express,

LLC (“Defendant” or “MXP”) ﬁles this Notice Of Supplemental Authority, pursuant to instructions

by Judge Tillery at the January 31, 2022 status conference hearing, to direct the Court to controlling

authority on the issue of due order of hearings on the Defendants’ Special Appearances (Defendant

Market Express, LLC, and Defendant William Boyer and Multimodal Transportation Solutions,

Inc.) in advance of any substantive and/ or evidentiary hearings set by Plaintiff MODE

Transportation, LLC, including but not limited to Plaintiffs Motion to Show Cause and For

Contempt, and the Temporary Injunction hearing.

Defendant MXP attaches courtesy copies of the following materials, for the Court‘s

consideration:

1. TEX. R. CIV. P. 120.

2. Kaufman v. AmmHecz/z‘b Labjl, LLC, No. 05—20—00504—CV, 2020 WL 6375336 (Tex.
App—Dallas Oct. 30, 2020, pet. denied) (affirmingjudge Tillery)

Dated: February 2, 2022.

DEFENDANT MARKET EXPRESS, LLC'S
NOTICE OF SUPPLEMENTAL AUTHORITY— Page 1
Respectfully Submitted,
KANE RUSSELL COLEMAN LOGAN PC

By: —
/J‘/Tame M. DeWeeJ
Kenneth W. Biermacher
kbiermacher krcl.com
State Bar No. 02302400
Andrew D. Robertson
drobertson@krcl.com
State Bar No. 24090845
Jaime M. DeWees
—
JH6WBBSEIGCLC0H1
State Bar No. 24097593

901 Main Street, Suite 5200
Dallas, Texas 75202
(214) 777—0068 (IMD direct telephone)
(214) 777-4299 Facsimile

And

TONKON TORP LLP
/J‘/ Steve” M. Wilker
Steven M. Wilker
Oregon State Bar No. 911882
Admitted Pro Hat Vice
888 SW Fifth Avenue, Suite 1600
Portland, Oregon 97204
(503) 802-040 (direct telephone)
(503) 972-3740 (direct facsimile)
Steven.wilker@ tonkon.com

Attorneys fbr DcféndantMarket Express, LLC

DEFENDANT MARKET EXPRESS, LLC'S
NOTICE OF SUPPLEMENTAL AUTHORITY— Page 2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has been
sent to all known counsel pursuant to the Texas Rules of Civil Procedure on this the 2'3dday of
February 2022.

VIA E-FILE
Stephen E. Fox
—
sfox she ardmullirmom
Jonathan E. Clark
'clark she ardmullin.com
Dan Syed
dsved@ sheppardmullin.com
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
220 Ross Avenue, Suite 2000
Dallas, Texas 75201
Attorneys fbr Plaintiff

David Brad Dowell
bdowellQQnamanhowellcom
Michael Shane O’Dell
sodell@,namanhowell.com
NAMAN, HOWELL, SMITH & LEE, PLLC
1300 Summit Ave, Suite 700
Fort Worth, Texas 76102
Attorneys tbr Dcténdan ts
William Boyer and Multimodal Tmnsporta tion Solutions, Inc.

/.r/ fame M. DeWm
Jaime M. DeWees

DEFENDANT MARKET EXPRESS, LLC'S
NOTICE OF SUPPLEMENTAL AUTHORITY— Page 3
Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

technical management. To carry out the services, Final Inch

2020 WL 6375336 gained access to AmeriHealth's conﬁdential and proprietary
information. According to AmeriHealth's original petition,
Only the Westlaw citation is currently available.
Kaufman is the CEO of Final Inch and “has continually been
SEE TX R RAP RULE 47.2 FOR Final Inch's point person for performance of the Agreement,
DESIGNATION AND SIGNING OF OPINIONS. as well as Final Inch'ssignatory on the Agreement.” Both
Final Inch and Kaufman are Florida residents.
Court of Appeals of Texas, Dallas.
On November 1, 2019, AmeriHealth ﬁled suit alleging
Aaron KAUFMAN, Appellant
tortious interference against Kaufman and breach of contract
v.
against Kaufman and Final Inch. It further sought a temporary
AMERIHEALTH LABORATORY, LLC, Appellee restraining order, requested a hearing on a temporary
injunction, and requested leave to conduct expedited
No. 05-20-00504-CV
discovery.
l

Opinion Filed October 30, 2020 The court held a hearing the same day. It is undisputed the
0n Appeal from the 134th Judicial District Court, Dallas beginning of the hearing was not transcribed.However, at

Trial Court Cause No. the subsequent special appearance hearing, AmeriHealth
County, Texas, DC-l9-17516,
Honorable Dale B. Tillery, Judge reminded the trial court of Kaufman's actions during the TRO
hearing. AmeriHealth emphasized that Kaufman's counsel
Attorneys and Law Firms appeared without limiting his appearance and actively made
arguments on Kaufman's behalf, which included arguing he
Nicole Therese Leboeuf, Linda Sulik, LeBoeuf Law, PLLC, was not a signatory to the consulting agreement. AmeriHealth
Dallas, for Appellant. reminded the court that the parties retired to the jury room,
at the court's suggestion, to work out the expedited discovery
James M. Stanton, Jennifer Salim Richards, Jose M. Portela,
requests. After their discussions, they proceeded on the
Stanton LLP, Dallas, for Appellee.
record] The second half of the hearing in our appellate
Before Justices Molberg, Carlyle, and Browning record is titled, “Rule 11 Agreement Proceeding.”

At the beginning of that hearing, the trial
court asked, “Y'all
MEMORANDUM OPINION have an agreement regarding discovery?” AmeriHealth‘s
attorney answered, “We do. Aﬁer --

discovery and extending
Opinion by Justice Browning the TRO.” AmeriHealth further stated that the court had
already signed and entered a TRO setting the TI hearing and
*1 The trial court denied appellant Aaron Kaufman's special
that “[t]he parties have agreed to extend the TRO until the
appearance. On appeal, he argues the trialcourt erred by
completion of a TI hearing.” AmeriHealth's attorney then
denying the special appearance on any of the multiple read into the record the parties' agreement regarding certain
theories asserted by appellee AmeriHealth Laboratory, LLC.
discovery issues and their agreement to mediate the case
We afﬁrm the trial court's order.
before the TI hearing. Counsel noted, “[W]e are requesting
that --
once I conﬁrm this agreement with [Kaufman's
attorney], that the Court order us to comply with our
Background Rule 11 agreement that we've announced on the record.”
He continued, “Did I get our entire agreement or did I
AmeriHealth is a clinicallaboratory capable of performing miss Kaufman's added one additional
something?” attorney
complex testing, including but not limited to qualitative discovery request and stated, “But everything else that he said
drug screens, genetic testing, and blood and molecular is agreed.” The court signed the temporary restraining order,
testing. AmeriHealth entered into a consulting agreement which included some modiﬁcations based on Kaufman‘s
with Final Inch, LLC in which Final Inch agreed t0 provide
arguments, on November 1, 2019.
consulting services regarding technology, automation, and

WESTLAW © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1
Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

*2 Kaufman ﬁled his special appearance on November reurging itsﬁve theories presented during the hearing and
8, 2019, alleging Texas did not have general or speciﬁc distinguishing case law relied on by Kaufman.
jurisdiction over him. He acknowledged he was the CEO of
Final Inch. He lived in Florida and met with AmeriHealth After considering “the pleadings on ﬁle, arguments of
representatives in Florida several times before entering into counsel, and the actionstaken by Aaron Kaufman prior tothis
the consulting agreement. He denied ever traveling to Texas hearing,” the trial court signed an order denying Kaufman's
and asserted that all contract negotiations occurred in Florida. special appearance “based on all of the reasons advanced”
He alleged he did not individually sign the contract, and by AmeriHealth. Kaufman requested ﬁndings of fact and
allof the services Final Inch performed under the contract conclusions of law, but the trial court did not enter any. This
occurred in Florida. He denied owning any real property appeal followed.
in Texas and claimed he visited the State a few times to
see relatives and to conduct one business meeting on behalf
of a company unrelated to the facts of the present case.
Standard of Review
He likewise argued AmeriHealth failed toexplain how his
alleged use of AmeriHealth's information related to Texas. Whether a court has personal jurisdiction over a defendant

is a question of law. l.'Am. Type Culture Collection, Inc.
The trial court signed a temporary injunction on November
v. Coleman, 83 S.W.3d 801, 805—06 (Tex. 2002). The trial
22, 2019. Subsequently, AmeriHealth ﬁled its first amended
court's decision to grant or deny a special appearance is
petition alleging alter ego and piercing the corporate veil
because “Final LLC is and as a subject to de novo review on appeal, but if a factual dispute
Inch, organized operated
exists,an appellate court iscalled upon to review the trial
conduit of Aaron Kaufman.” The trial court held a hearing
l
of the
'I
on the special appearance on April 6, 2020. AmeriHealth court's resolution factual dispute as well. Id. at
argued that based on Kaufman's previous actions, he had
806; see also l BMC Software Belgium, N. V. v. Marchand,
generally appeared. Counsel presented ﬁve different actions 83 S.W.3d 789, 794 If thetrial court does not
(Tex. 2002).
by Kaufman's attorney that he believed supported the general issue of as in this a court
ﬁndings fact, case, reviewing
appearance: (1) announcing he was appearing on behalf of
should presume the trialcourt resolved all factual disputes
Kaufman at the TRO hearing without limiting his appearance
to a special appearance; (2) actively participating in the in favor of its judgment.r. Am. Type Culture, 83 S.W.3d at
TRO hearing on behalf of Kaufman; (3) asking for expedited 806. Further, because the trialcourt did not specify under

discovery and obtaining such relief; (4) asking the trial court what ground itwas exercising its authority to deny the
to order all parties to comply with the agreed discovery order; special appearance, we may afﬁrm the judgment under
and (5) asking the trial court to extend the TRO. Counsel spent ”Point Lookout Inc. v.
any applicable legal theory. . West,
little time elaborating on the alter ego theory, and the court 742 S.W.2d 278 see also Baxter
Wharton, 277, (Tex. 1987);
did not have questions on that theory challenging jurisdiction. & Assocs., L.L.C.,v.D&D Elevators, Inc., No. 05-16-00330-
CV, 2017 WL 604043, at *5 (Tex. App—Dallas Feb. 15,
Kaufman's attorney argued his participation in discovery did
2017, no pet.) (mem. op.) (“In the absence of ﬁndings of fact
not waive his special appearance. The trialcourt asked, and conclusions of law, the judgment of the trial court must
“What authority do you have regarding the effect of the TRO be afﬁrmed if it can be upheld on any available legal theory
with attorney participation and the Rule 11? I think that's that ﬁnds support in the evidence”).
the operative facts, you know.” Counsel could not deﬁnitively
answer and requested to supplement, which the court agreed
because “that's what I want to see now.”
Waiver of Special Appearance
The parties ﬁled supplemental letter briefs. Kaufman argred
*3 In the trialcourt and on appeal, AmeriHealth argued
that participating in the TRO hearing and agreeing to an
Kaufman entered a general appearance thereby waiving his
extension did not waive his special appearance. Further, he
special appearance complaint. Because these issues must
contended he did not ask the trial court to order all parties
be resolved before considering the merits of the Special
to comply with the rule 11 agreement; rather, AmeriHealth
appearance, we address them ﬁrst.
misconstrued the proceedings. AmeriHealth ﬁled its letter

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Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

A special appearance permits a nonresident defendant to a plea of privilege “if he invokes the power of the court in a
object t0 personal jurisdiction in a Texas court. TEX. R. CIV. manner which negatives a continuing intent to insist upon the
P. 120a. However, a nonresident defendant may be subject plea.” Id.Without analysis, we held Perkola “did not waive
to personal jurisdiction in Texas if the defendant enters a _.
his plea by contesting the interlocutory temporary
Perkola's appearance at this hearing on an ancillary matter
general appearance. I.’
Boyd v. Kobierowski, 283 S.W.3d
l9, 21 (Tex. App—San Antonio 2009, no pet). A general was not an appearance in the main case.” I Id.at 112.
appearance entered before a special appearance waives the
Kaufman argues Perkola is “instructive” because like
special appearance. " Exito Elec. Co. v.Trejo, 142 S.W.3d
Perkola, he appeared and contested thetemporary restraining
302, 304 (Tex. 2004). In i
Dawson-Austin v. Austin, 968 order, which was nothing more than participation in an
S.W.2d 319, 322 (Tex. 1998), the supreme court provided ancillary matter. A closer review of the case, however, does
guidance as to What constitutes a general appearance: a party not support Kaufman's characterization of our holding.
(l) invokes the judgment of the court on any question other
than the court's jurisdiction,(2) recognizes by itsacts that *4 Importantly, unlike Kaufman, Perkola ﬁled his plea
an action is properly pending, or (3) seeks affirmative relief of privilege firstbefore taking any other action. Id.at 111
from the court. “The test for a general appearance is whether a order of filed).Here, Kaufman did not
(noting pleadings
party requests afﬁrmative relief inconsistent with an assertion ﬁle his special appearance until after the trial court signed
that the trial court lacks personal jurisdiction.” Brady v. Kane,the TRO. Further, Kaufman's focus on Perkola “contesting”
No. 05-18-01105-CV, 2020 WL 2029245, at *5 (Tex. App.i the temporary injumcﬁnm as the lynchpin to our holding
Dallas Apr. 28, 2020, no pet.) (mem. op.). is misplaced and an overly broad reading of the case. The
opinion is silent as to any actions that Perkola took, other than
We begin by considering whether Kaufman generally appearing, to contest the plea of privilege. Id.
at 111 (both
appeared by participating in the TRO hearing. Both parties sides ﬂaming argument as whether waiver occurred based
cite case law supporting their position; therefore, we address on voluntary appearance at temporary hearing).
each as it relates to the facts of this case. We did not conclude, as Kaufman suggests, that a party who
“appeared and contested” an ancillary matter prior to the
Kaufman argues that making legal arguments at the TRO main suit did not generally appear in the main case. Rather,
hearing did not waive his special appearance because Perkola contested the ancillary proceeding by appearing.
appearing in an ancillary matter prior to the main suit does Thus, Perkola isconsistent with the general principle that
not constitute a general appearance in the main suit.See
simply appearing for an ancillary proceeding, such as a
TRO hearing, isnot a general appearance under rule 120a.
FAlliantgroup, L.P. v. Feingold, N0. H-09-0479, 2009 WL

1109093, *5—6 (SD. Tex. Apr. 24, 2009); t 'rn re MGM,
7
See, e.g., Carone v. Retamco Operating, Inc., 138 S.W.3d

163 S.W.3d 200—01 no 1, 8 (Tex. App—San Antonio 2004, pet. denied) (“[P]arty
191, (Tex. App—Beaumont 2005,
who is a silentﬁgurehead in the courtroom, observing
pet); P II/Zllsangiacomo v. Americana Juice Imp, Inc.,35
the without has not
proceeding participating” generally
S.W.3d 201, n.3 (Tex. App—Corpus Christi 2000, no pet);
appeared); T
Bradford v. Bradford, 971 S.W.2d 595, 598
1999 WL 33659,
1‘

l“ Turner v. Turner, No. 14-98-00510-CV,
(Tex. App—Dallas 1998, no pet.) (same). However, those are
at *3 (Tex. App—Houston [14th Dist] Jan. 28, 1999, no not the facts before us.
p J
pet.) (not designated for publication); Perkola v. Koelling
& Assocs., Inc., 601 S.W.2d 110, 111—12 (Tex. Civ. App.— Rather, Kaufman voluntarily appeared through counsel at the
Dallas 1980, no writ). TRO hearing, succeeded in modifying the TRO based on
counsel's arguments, and argued he was not a signatory to
In Perkola, a case from our Court, we considered the denial the consulting agreement thereby challenging AmeriHealth's
of a plea of privilege and whether Perkola waived his plea breach of contract claim. By stepping outside the role of
of privilege by appearing at a temporary «Li
ir- :
hearing observer or silent ﬁgurehead and participating in the hearing,
counsel's actions were inconsistent with the assertion that
without having been served with process.
2 i Perkola, 601
the trialcourt lacked jurisdiction over Kaufman. See, e.g.,
S.W.2d at 11 1. In that case, we recognized that a party waives
‘Beistel v. Allen, No. 01-06-00246-CV, 2007 WL 1559840,

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Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

at *3 (Tex. App.iH0uston [lst Dist] 2007, no pet.) (mem. in that case raised the lack of personal jurisdiction in his
op.) (“While Texas courts have held that a party who merely ﬁrst responsive pleading before ﬁling a special appearance,
observes a proceeding without participating does not make a and the opinion does not indicate defense counsel's level
general appearance, Beistel's counsel participated when she of participation in the pre-special appearance hearings.
objected to the admission of Allen's spreadsheet”). Instead, l
WL
'Alliantgroup, L.P., 2009 1109093, *5—6.
counsel not only actively participated in the hearing but also
sought and received afﬁrmative relief from the trial court. See *5 The missing piece from each of these cases is the extent of
r‘ Dawson—Austin, 968 s.w.2d at 322. counsel's participation in the hearing and counsel seeking and
receiving afﬁrmative relief from the trial court.The Austin
We are likewise unpersuaded by the other cases Kaufman Court of Appeals has recognized this distinction.
relies on. Valsangiacomo cited Perkola, in part, for the
_
proposition that appearing and participating in an In Schoendienst v. Haug, 399 S.W.3d 313, 314 (Tex. App.
hearing did not constitute a general appearance in an ancillary —Austin 2013, no pet.), the court considered whether Haug
violated Schoendienst's due process rights by taking a default
S.W.3d at 204
‘

matter.1
Valsangiacomo, 35 n.3,However,
in that case “counsel for at and judgment without prior notice after she appeared in the action.
[defendant] appeared
Although the case did not involve a special appearance,
participated in the temporary injmmtion subject to the special
the Austin court conducted a thorough analysis of 120a
appearance.” Id. (emphasis added). Further, the opinion is
cases to determine whether Haug generally appeared through
silent as to the extent of counsel's participation in the hearing.
her actions thereby recognizing the trial court's jurisdiction
to decide broader questions in the case. Id. at 317. The
In Turner, the defendant appeared ata TRO hearing prior
court concluded that by agreeing without qualiﬁcation to a
i
to ﬁling a special appearance. II.
Turner, 1999 WL 33659, temporary 1,11',.111.121;::..1; she subjected herself to a court order
at *1—2. Counsel explained the defendant's position and that restricted her personal freedom and ability to deal with

TRO. r her property and ﬁnances in anticipation of a trialon the
presented argument in opposition to the 'Id.at *3.
On the court counsel was more than a merits. Id. at 320—21. The court acknowledged what had
appeal, recognized
“mere bystander at the hearing,” but because the TRO hearing been suggested by some courts to be “a categorical rule

was an ancillary it concluded the defendant did not that appearing in matters ‘ancillary and prior to the main
matter,
generally appear. Id.Signiﬁcantly, unlike counsel in Turner, suit,’ including agreeing to temporary injunctive relief, does
Kaufman's and obtained afﬁrmative relief not constitute a general appearance that waives a special
attorney sought
ﬁom the trial court because of his participation in the TRO appearance.” Id. at 321 n.8 (discussing two cases relying
on Turner and Perkola). As we explained above and the
hearing. See, e.g.,i Silbaugh v. Ramirez, 126 S.W.3d 88, Austin court likewise concluded “a close examination of the
93 (Tex. App—Houston [1stDist] 2002, no pet.) (noting authorities cited to support that proposition reveals it to be an
a party must not seek afﬁrmative relief on any question overbroad oversimpliﬁcation.” Id.
other than thatof the trial court'sjurisdiction before the
disposition of the special appearance). Further, thiscase
Kaufman has not the facts from the
challenged beginning
has no precedential value. See TEX. R. APP. P. 47.7(b) of the TRO In fact,
hearing that were not recorded. during
(“Opinions and memorandum opinions designated “do not
the AmeriHealth's counsel
special appearance hearing,
publish” under these rules by the courts of appeals prior to reminded the trial court of the procedural background without
January 1, 2003 have no precedential value”); see also Babiy any challenge from Kaufman:
v. Kelley, No. 05-17-01122-CV, 2019 WL 1198392, at *5
(Tex. App—Dallas Mar. l4, 2019, no pet.) (mem. op.). [Y]our Honor, respectfully, while there wasn't a record of
the ﬁrst part of your hearing, I think the Court recalls what
Lastly, Kauﬁnan relies on a federal district court case, which Mr. Dial did, appearing, making argument, the TRO speaks

is not binding authority.
‘ Alliantgmup,
l.’ L.P., 2009 WL for itself, more importantly, there is a record of the second
part of your hearing.
1109093, *5—6; see also l Roe v. Ladymon, 318 S.W.3d 502,
510 n.5 (Tex. AppiDallas 2010, no pet.) (noting binding THE COURT: Yeah.
authority on appellate courts).Regardless, the defendant

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Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

Accordingly, Kaufman's conduct during the beginning of the appearance). But see P1 Exchequer F in.Grp., Inc. v. Stratum,
TRO hearing, considered in the context of the present record, Dev, Inc, 239 S.W.3d 899, 905 (Tex. App—Dallas 2007, no
amounted to a general appearance. pet.) (no general appearance when “no evidence on our record
showing appellee requested any afﬁrmative relief from the
The reporter's record of the second half of the TRO hearing
trial court”).
further supports the conclusion Kaufman generally appeared
*6 In reaching this conclusion, we reject Kaufman's
by seeking afﬁrmative relief from the trial court. Kaufman,
he did not contention that language in the temporary ﬁgi‘W order
however, argues generally appear by requesting
"
and by agreeing to the
indicates AmeriHealth and the trial court understood he had
expedited, pre-i7_, discovery,
3
rule 11 agreement because he did not invoke the jurisdiction not generally appeared. By the time the trialcourt signed
of the court. the order, Kaufman had already generally appeared. Any
attempt to belatedly preserve his special appearance by
We agree engaging in discovery is not enough in and of inserting language into the temporary injunction order did
itself to waive a special appearance. See Brady, 2020 WL not eliminate or cure the effects of his prior actionsduring
2029245, at *6. We likewise recognize that under some the TRO hearing, which were inconsistent with the assertion
circumstances, a rule ll agreement will not constitute a that the trialcourt lacked jurisdiction over him. See, e.g.,

general appearance. See}. ‘Crystalz’x Grp. Inc.
Int'l, v.Vitro -.
'Beistel, 2007 WL 1559840, at *3 (counsel's participation
Laser Grp. USA, Ina, 127 S.W.3d 425, 428 n.2 (Tex. App. in hearing was inconsistent with special appearance and
—Dallas 2004, pet. denied) (concluding rule ll agreements attempt to preserve special appearance did not cure effect
did not constitutea general appearance but “declin[ed] to of actions at previous hearing). Moreover, inserting such
establish a bright-line rule affecting all rule
11 agreements” language, which is routinely included in pleadings ﬁled after
of the case before us”).
and instead “look[ed] to the facts a special appearance, did nothing more than acknowledge
the pending special appearance.
In Crystalix, we concluded two rule ll agreements, one
extending a TRO and another agreeing not to interfere 0r Given Kaufman's actions, considered in the context of the
seize certain property, did not amount to a general appearance present record,we conclude Kaufman generally appeared. As
because the agreements neither changed the status of any such, his general appearance waived his personal jurisdiction
action with the trial court nor requested or invoked any complaint, and we need not address whether Kaufman
negated personal jurisdiction based on AmeriHealth's alter
action from the trial court.A
'Id. at 428. Here, despite
Kaufman's arguments to the contrary, he agreed to the terms ego theory. See f ’Crystalix, 127 S.W.3d at 427 (“An
read into the record by AmeriHealth, but more importantly, appearance that does not comply with rule 120a is a general
he agreed to “everything else that [AmeriHealth] said,” which appearance and waives the party's personal jurisdiction
included the trialcourt ordering compliance with the rule l
complaint”); see also Wharton, 742 S.W.2d at 278
ll agreement. By suggesting a contrary conclusion because
denialof under
(afﬁrming special appearance any applicable
AmeriHealth's attorney read the agreement into the record,
legal theory when trialcourt does not specify under what
Kaufman underplays his own actions during the hearing.
ground itexercised authority);TEX. R. APP. P. 47.1.
AmeriHealth repeatedly said, “the parties have agreed,” and
“we have agreed” as terms were read into the record. Kaufman
We overrule Kaufman's arguments challenging the trial
never objected or attempted to clarify that he did not agree court's denial of his special appearance.
with the recitations.Further, Kaufman's attorney made one
clariﬁcation and said, “But everything else he said is agreed.”
Thus, Kaufman agreed to the trial court conﬁrming the rule
ll agreement and ordering the partiest0 comply with it. Conclusion
As such, he invoked action from the trial court inconsistent
We affirm the trial court's order denying Kaufman's special
with the assertion that the trial court lacked jurisdiction over
appearance.
him. See 't.
Dawson—Austin, 968 s.w.2d at 322 (seeking
affirmative relief from trialcourt will constitutea general

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Kaufman v. AmeriHealth Laboratory, LLC, Not Reported in S.W. Rptr. (2020)

All Citations

Not Reported in S.W. Rptr., 2020 WL 6375336

Footnotes

1 During the special appearance hearing, Kaufman's counsel did not dispute these recitation of events
because she was not the attorney at that time. She simply acknowledged “there is no transcript before this
Court as to what occurred at the beginning of the hearing. Mr. Dial's a good lawyer, he's at Greenberg Traurig.
And he thought it wasn't waived because every single thing he did thereafter said ‘subject to’ --

every written
record we have, ‘subject to and without waiving’ the special appearance."
2 Perkola is not a special appearance case and does not discuss rule 120a.
3 The order stated, in part, “The parties have agreed to the terms of this Order of Temporary — as
evidenced by their approval and of the approval of their attorneys below, without waiver of Defendant Aaron
Kaufman's Special Appearance.” In a footnote, the court elabo

Case Info

Judge

TILLERY, DALE Track Judge’s New Case

Case No.

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Document Filed Date

February 02, 2022

Case Filing Date

January 10, 2022

County

Parties

BIERMACHER, KENNETH W Attorney for the Defendant
BOYER, WILLIAM Defendant
DEWEES, JAIME M. Attorney for the Defendant
DOWELL, DAVID B Attorney for the Defendant
FOX, STEPHEN E Attorney for the Plaintiff
MARKET EXPRESS, LLC Defendant
MODE TRANSPORTATION, LLC Plaintiff
MULTIMODAL TRANSPORTATION SOLUTIONS, INC. Defendant
MX SOLUTIONS Defendant
O'DELL, MICHAEL SHANE Attorney for the Defendant
O'DELL, MICHAEL SHANE Attorney for the Plaintiff
ROBERTSON, ANDREW D. Attorney for the Defendant
Jonathan Clark Attorneys for Plaintiffs
Daniel Syed Attorneys for Plaintiffs

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Document for MODE TRANSPORTATION, LLC vs. WILLIAM BOYER, et al

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