## NO. 12

- 23

- 00091

- CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

CARL "TED" KEPPER , APPELLANT
V.
LISA SNOW , APPELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW

RUSK COUNTY, TEXAS
MEMORANDUM OPINION Carl “Ted” Kepper appeals the trial court’s gran t of Lisa Snow’s special appearance and dismissal of his case . He presents five issues on appeal. We affirm.

B ACKGROUND Kepper and Snow div orced in Colorado in 2014. As part of the divorce, they entered a “Stipulated Separation Agreement ” that require d Kepper to pay Snow $2,100 per month in maintenance for ten years. The agreement further s tated that the maintenance could be amended if Kepp er experienced a substantial change in circumstances. I n June 2022, Kepper filed suit in Rusk County, Texas, whe re he is a resident, seeking to have the maintenance agreement amended. He sought a declara tory judgment that the agreement should be amended and a temporary restraining order. Snow filed a special appearance and plea to the jurisdiction, including a s upporting affidavit . In her affidavit, Snow represented that she does not live in Texas and t hat she has lived in Colorado since 2005 , works i n Colorado, collects her paychecks in Colorado , pays state income tax in Colorado, and files her taxes in Colorad o. In addition, she claimed to have never conducted business in Texas or have any other act ivities that would subject her to jurisdiction in T exas. Kepper objected to Snow’s affidavit urging that it is self

- serving and violates the best2 evidence rule. K epper further included his own affidavit urging Snow cas h ed checks in Texas and included as exhibits copies of the checks allegedly cashed in T exas. Kepper also requested leave to conduct jurisdictional discovery

. The trial court held a hearing on Snow’s special appearance and plea to the jurisdiction. At the conclusion of the hearing, the trial court took the matter under advisement. Ultimat ely, the trial court granted the special appearance and dismissed the case against Snow. Kepper requested findin gs of fact and conclusions of law. After Snow filed a re sponse to Kepper’s request, Kepper filed a motion for reconsideration urging that Snow waived her special appearance via her response. At the conclusion of a hearing , the trial court denied the moti on to reconsider. The trial court did not issue findings of fact and conclusions of law, even after Kepper notified the trial court that they were past due. This appeal followed.

S PECIAL A PPEARANCES AND J URISDICTION T exas courts have personal jurisdicti on over a defendant when the Texas long

- arm statute grants jurisdiction and the exercise of jurisdiction comports with federal and state consti tutional guarantees of due process. Searcy v. Parex Res
. , Inc. , 496 S.W.3d 58, 66 (Tex. 2016) . Texas ’ s long

- arm statute stretches as far as due process will allow, so fede ral due

- process requirements shape the contours of Texas courts ’ jurisdictional reac h. Id

. A state ’ s exercise of jurisdiction comports with federal due process if (1) the nonresident defendant has “minimum contacts” with the state and (2) the exercise of j urisdiction “does not offend traditional notions of fair play and substantial justi ce.” Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P. , 493 S.W.3d 65, 70 (Tex. 2016) (quoting Walden v. Fiore , 571 U.S. 277, 283, 134 S. Ct. 1115, 1121, 18 8 L. Ed. 2d 12 (2014)). A defendant establishes minimum contacts with a forum whe n it purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking t he benefits and protections of its laws. Moncrief Oil Int ’ l Inc. v. OAO Gazprom , 414 S.W.3d 142, 150 (Tex. 2013)

. Three primary consideration s underlie the purposeful

- availment analysis: (1) only the defendant ’ s contacts with the forum are relevant, not the unilateral activity of another party or third person; (2) the defendant ’ s acts must be purposeful and not random, isolated, or fortuitous; and (3) the defendant must seek some benefit, advantage, or profit by availing itself of the forum such that it i mpliedly consents to suit there. Cornerstone , 493 S.W.3d at 70

– 71. Although physical3 presence in the forum is a relevant contact, it is not a prerequisite to jurisdiction. Id

. at 71 (quoting Walden , 571 U.S. at 285, 134 S. Ct. at 1122). Minimum contacts may create either general or specific personal jurisdiction. TV Azteca v. Ruiz , 490 S.W.3d 29, 37 (Tex. 2016). A court has general jurisdict ion over a nonresident defendant whose affiliations with the state are so continuous and systematic as to render it essentially at home in the forum state. Daimler AG v. Bauman , 57 1 U.S. 117, 127, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014). For an ind ividual such as Snow , the paradigm forum for the exercise of general jurisdiction is the individual ’ s domicile. Id

. 571 U.S. at 137, 134 S. Ct. at 760. When a court has general juris diction over a nonresident, it may exercise jurisdiction “even if the c ause of action did not arise from activities performed in the forum state.” TV Azteca , 490 S.W.3d at 37 (quoting Spir Star AG v. Kimich , 310 S.W.3d 868, 872 (Tex. 2010)). “Unlike genera l jurisdiction, which requires a more demanding minimum contacts analy sis, specific jurisdiction may be asserted when the defendant ’ s forum contacts are isolated or sporadic, but the plaintiff's cause of action arises out of those contacts with the state.” Spir Star , 310 S.W.3d at 873. To assess whether there is specific j urisdiction, we focus on the relationship among the defendant, the forum, and the litigation. Id

. Specific juri sdiction is appropriate when (1) the defendant ’ s contacts with the forum stat e are purposeful, and (2) the cause of action arises from or relat es to the defendant ’ s contacts. Id

. Parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activit ies

. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 473, 105 S. Ct. 2174, 2182, 85 L.Ed.2d 528 (1985); Moncrief O il , 414 S.W.3d at 151. Where individuals purposefully derive benefit from their interstate activities, it may well be unfair to allow them to escape having to account in other state s for consequences that arise proximately from such activities. Burger Ki ng , 471 U.S. at 473

– 74, 105 S. Ct. at 2183.

F INDINGS OF F ACT AND C ONCLUSIONS OF L AW In his second issue, Kepper complains that the trial cour t erred in failing to file findings of fa ct and conclusions of law when timely notified they were past due. See T EX

. R. C IV

. P. 296, 297. H e asks us to direct the trial court to issue findings of fact and conclusions of law.4 Appeals of orders on special appearances are most commonly brought as appeals of interlocutory orders, and findings of fact and conclusions o f law are not required in that procedural posture. See T EX

. R. A PP

. P. 28.1(c); T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014(a)(7) (West Supp. 202 2 ). N otwithstanding that, the order on Sn ow’s special appearance in this case is coupled with a dismissal of Kep per’s claims which makes it a final judgment. However, Kepper is still not entitled to findings of fact and conclusions of law. See T EX

. R. C IV

. P. 296. “The purpose of Rule 296 is to g ive a party a right to findings of fact and conclusions of law final ly adjudicated after a conventional trial on the merits before the court.” Ikb Indus. (Nigeria) Ltd
. v. Pro

– Line Corp. , 938 S.W.2d 440, 442 (Te x. 1997). Wher e there is no conventional trial on the merits , findings and conclusions may be proper, but a party is not entitl ed to them. See id

. (findings and conclusions in dismissal of suit as discovery sanction, helpful but not required). In this c ase, there was no conventional trial on the merits. Thus, Keppe r was not entitled to findings of fact and conclusions of law, a nd the trial court did not err in not providing them. WG & D Masonry, LLC v. Long Island ’ s Finest Homes, LLC , No. 10

- 16

- 00272

- C V, 2017 WL 2507 776, at *1 (Tex. App.

— Waco June 7, 2017, no pet.) (mem. op.). Kepper’s second issue is overruled.

W AIVER OF S PE CIAL A PPEARANCE In his first issue, Kepper urges the trial court erred in denying his motion to reconsider. He contends that S now’s response to his request for findings of fact and concl usions of law constituted a general appearance that waived her speci al appearance. Under Rule 120a, a properly entered special appearance enables a nonresident defendant to challenge personal juri sdiction in a T exas court. T EX

. R. C IV

. P. 120a; Arnold v. P rice , 365 S.W.3d 455, 458 (Tex. App.

— Fort Worth 2011, no pet.). St rict compliance with Rule 120a is required, and a nonresident defendant will be subject to personal jurisdiction in a Texas cour t if the defend ant enters a general appearance. Arnold , 365 S. W.3d at 458. Rule 120a provides that “[e]very appearance, prior t o judgment, not in compliance with this rule is a general appearance.” Id

. (quoting T EX

. R. C IV

. P. 120a(1)). A party enters a general appeara nce and waives a special appearance when it viola tes Rule 120a ’ s “due

- order

- of

- pleading” requirement. Exito Elec s. Co
. , Ltd. v. Trejo , 142 S.W.3d 302, 305 (Tex. 2004); see SBG Dev. Servs., L.P. v. Nurock Grp., Inc. , No. 02

- 11

- 00008

- CV,5 2011 WL 5247873, at *2 (T ex. App.

— Fort Worth Nov. 3, 2011, no pet.) (mem. o p.). This requirement mandates that a special appearance be fi led “prior to a motion to transfer venue or any other plea, pleading or motion.” Exito Elecs

. , 142 S.W.3d at 305. Furthe rmore, Rule 120a inco rporates a “due

- order

- of

- hearing” requirement, which provides that a special appearance motion “shall be heard an d determined before a motion to transfer venue or any other plea or pleading may be heard.” SBG Dev. , 2011 WL 5247873, at *2 (quoting T EX

. R. C IV

. P. 120a(2)). A party also enters a general appear ance “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 fr om the court.” Exito Elecs. , 142 S.W.3d at 304 (citing Dawson

- Austin v. Austin , 968 S.W.2d 319, 322 (Tex. 1998))

. Under this principle, the ultimate “test for a general appearance is whether a party requests affirmative relief incons istent with an assert ion that the trial court lack s jurisdiction.” Arnold , 365 S.W.3d at 459 (citing Dawson

- Austin , 968 S.W.2d at 323 ); see Graves v. DJO, LLC , 636 S.W.3d 321, 326 (Tex. App.

— Fort Worth 2021, pet. denied) ( defend an t did not general ly appea r when fil ed motion f or sanctions related to a nd in accordance with special appearance ) ; Exito Elecs

. , 142 S.W.3d at 305; Nationw ide Distrib. Servs., Inc. v. Jones , 496 S.W.3d 221, 227

– 28 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) (collecting examples o f actions that d o not constitute a general
app earance under this principle). Snow did not violate either of these principles such that she would have entered a general appearance. First, it is undisputed that Snow satisfied the due

- order requirements for the pleading and hearing of her special appear ance. The record indicates no other hearings were held prior to Snow’s special app earance
. Furthermore, Kepper’s request and Snow’s response were filed post

- judgment. The trial court had already granted the special appearan ce and dismissed the case agai nst Snow. Because any appearance “ prior to judgment , not in compliance with [Rule 120a] is a general appearance , ” Snow complied with the due

- order requirements to avoid generally appearing

. See Arnold , 365 S. W.3d at 458 (emp hasis added)

. Second, Snow’s response to Kepper’s request for findings of fact and conclusions of law is not “inc onsistent with an assertion that the trial court lack[ed] jurisdiction.” See i d. at 459. Snow simply responded to Kepper’s re quest for findin gs of fact and conclusions of law, arguing that the trial court was not required to make such findings and conclu sions under the Rules of Civil Procedure. Snow did not seek affirmative relief ; she merely responded to Kepper’s6 request. In addition, becaus e the only lit igated issue was the special appearance, the request for findings and conclusions, along with the r esponse, related to the special appearance. Therefore, Snow’s response was not inconsistent with her special appearance. As a result, the t rial court did not err in denying Kepper’s motion to reconsider based upon waiver. We overrule Kepper’s first is sue.

J URISDICTIONAL D ISCOVERY In his third issue, Kepper urges that he should have been permitted to conduct jurisdictional d iscovery. Texa s Rule of Civil Procedure 120a governs discovery issues related to special
appearances. T EX

. R. C IV

. P. 120a. In particular, Rule 120a(3) provides the procedure a party must use to postpone disposition of the special appearance in order to conduct addi tio nal discovery:

Should it appear from the affidavits of a party opposing the [special appearance] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidav it s to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Id

. We review for abuse of discretion the trial court ’ s ruling regarding Rule 120a procedures. Lamar v. Poncon , 305 S.W.3d 130, 13 9 (Tex. App.

— Hou ston [1st Dist.] 2009, pet. denied). Kepper specially excepted to Snow’s plea to the jurisdiction and included a “demand that Snow preserve her cell phone dat a that shows her GPS location” for the preceding six months. He again included t his request in h is objection to Snow’s affidavit. And in a supplemental brief and more objections, he included a “Rule 196 Reque st” for discovery from Snow. He again requested limited discovery in his motion to reconsider. It does not appear the trial c ourt made specif ic rulings regarding the discovery. However, to the extent these requests can be construed as motions to compel discovery, Kepper did not file a motion for continuance with attached affidavits as required under Rule 120a(3). See Parex Res
. , Inc. v. ERG R es . , LLC , 427 S.W.3d 407, 433

- 34 (Tex. App.

— Houston [14th Dist.] 2014 ), aff’d 496 S.W.3d 58 (Tex. 2016) . The
mot ions to compel may be fa ctors establishing Kepper’s due diligence in conducting discovery and, thus, supporting its right to a continuance. Id
. at 434. However, because Kepper did not7 follow the required procedure set out in Rule 120a(3) for continuing a special appearance, we cannot hold that the trial court abused its discretion by refusing additional jurisdictional discovery. Id. ; s ee IRN R ealty Corp. v. Hernandez , 300 S.W.3d 900, 903 (Tex. App.

— Eastland 2009, no pet.) (holding trial court abused its discretion by granting m otion to compel and abating special appearance hearing to allow plaintiff to conduct additional discove ry because plain tiff did not follow procedures for continuance under Rule 120a(3)); Washington DC Party Shuttle, LLC v. IGuide To urs LLC , 406 S.W.3d 723, 739 (Tex. App.

— Houston [14th Dist.] 2013, pet. denied ) (holding plaintiff did not follow procedures un der Rule 120a(3) for discovery continuance); Said v. Maria Invs., Inc. , No. 01

– 08

– 00962

– CV, 2010 WL 457463, at *3 (Tex. App.

— Houston [1st Dist.] Feb. 11, 201 0, pet. denied) (mem. op.) (“Rule 120a(3) gives the trial court the discretion to continue a specia l appearance hearing and thereby extend the time in which evidence may be served, but this power applies only to a party opposing the special appearance who avers that he cannot adequately prepare for the special appearance hearing.”); Lamar , 305 S.W.3d at 139 (determining pl aintiffs complied with Rule 120a(3) because they “moved three times for jurisdictional discovery, attaching affid avits to their motions e ach time”). Therefore, we overrule Kepper’s third issue.

A FFIDAVIT In his fourth issue, Kepper co ntends the trial cou rt erred in failing to rule on his objection to Snow’s affidavit. In his supplemental response to Snow’s plea to the jurisdiction, Kepper objected to Snow’s affidavit and alleged it is “self

- serving and violative of the best evidence r ule.” At the conclu sion of the hearing on the special appearance and plea to the juris diction, the trial court took the issues under advisement and did not rule. When it issued a letter ruling, the trial court simply stated that it granted the special ap pearance and asked t he parties to draft an order. Then, in his motion to reconsider, K epper asked the trial court to rule on his obj ections to “Snow’s self

serving affidavit.” At the hearing on the motion to reconsider, Kepper did not request the trial

c ourt rule on his obj ections to the affidavit , otherwise bring the issue to the court’s attention, or object to the trial court’s refu sal to make such a ruling. He only argued that Snow waived her general appearance by responding to his motion for findings of facts and conclus ions of law.8 R aising a complaint in the trial court is only one of two steps generally needed to
preserve a comp laint for appellate review. See Mansions in the Forest, L.P. v. Montgomery County , 365 S.W.3d 314, 317 (Tex. 2012) (per cu riam). The trial co urt also must rule or refuse to rule on the request, objection, or mo tion. Id

. (citing T EX

. R. A PP

. P. 33.1(a)) ; IGuide Tours , 406 S.W.3d at 736

. Simply restating the original objection is not sufficient to preserve an issue on appeal , and the complainin g party must object to the trial court’s refusal to rule. Ermisch v. HSBC Bank USA , No. 03

- 16

- 00080

- CV, 2016 WL 657 5232 at * 2 n.3 (Tex. App.

— Austin Nov. 4, 2016 , pet. denied) (mem. op.) (citing T EX

. R. A PP

. P. 33.1(a)(2)(B), Alejandro v. Bell , 84 S.W.3d 3 83, 388 (Tex. App.

— Corpus Christi 2002, no pet.))

. Because Kepper did not object to the trial court’s refusal to rule on his objections, he has not preserved this issue for our review. 1 Kepper’s fourth issue is overruled.

N ECESSITY O F P ERSONA L J URISDICT ION In his fifth issue, Kepper asserts that the trial court erred in granting Snow’s special appearance because he “only sought declaratory relief as it relates to his rights and remedies under a written instrument that had nothing to do with [ Snow’s] jur isdictional status

. ” In his argument section, Kepper discusses standing at length. He also explains that a just iciable controversy exists because he needs the maintenance requirement of the Stipulated Separation Agreement modified. H e then argues that h e is the “only party that has obligations to perform under the agreement.” And Kepper appears to argue that Snow will be unaffected by any declaratory judgment decision, and therefore, the trial court n eed not have jurisdiction over he r. We are not persu aded by this argument. Snow’s rights under the Stipulated Separation Agreement are very much in dispute. If a
t rial court were to determine the maintenance agreement should be amended, the maintenance amount paid to Snow would change. Therefore, Snow ne cessarily has a justiciable interest in the

1 We further note that Kepper’s argument on this issue contains no legal authority. An appellant ’ s brief must “contain a clear and conc ise argument for the contentions made, with appropriate citations to authorities and to the record.” T EX

. R. A PP

. P. 38.1(i). This requirement is not satisfied by merely uttering brief conclusory statements unsupported by legal citations

. Tesor o Petrole um Corp. v. Nabors Drilling USA, Inc. , 106 S.W.3d 118, 128 (Tex. App.

— Houston [1st Dist.] 2002, pet. denied). Fa ilure to cite legal authority or provide substantive analysis of the legal issue presented results in waiver of the complaint. Guimar a es v. Br ann , 562 S.W.3d 521, 538 (Tex. App.

— Houston [1st Dist.] 2018, pet. denied); Abdelnour v. Mid Nat ’ l Holdings, Inc. , 190 S.W.3d 237, 242 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) (appellant waived issue because appellant ’ s brief provided “no cit a tion to the record, nor any discussion of relevant or analogous authorities to assist the Court in evaluating its claim”)

.9 outcome of the declaratory judgment action. See T EX

. C IV

. P RAC

. & R E M

. C ODE A NN

. § 37.004(a) (West 2020 ) (a person interested under a written contract or whos e rights, status, or other legal relations are affect ed by a contract may have question of contract interpretation determined). Personal jurisdiction is “ a court’s p ower to bring a person into its adjudicative
process ; jurisdiction over a defendant’s pers onal rights, rather than merely p roperty interests

. ” Personal Jurisdiction , B LACK ’ S L AW D ICTIONARY (11th ed. 2019). And a trial court may not issue a judgment again st a defendant over whom it has no personal jurisdiction. See Pennoyer v. Neff , 95 U.S. 714 , 726 , 24 L. Ed. 565 (18 77 ). D eclaratory judgment actions are not exceptions to that rule. See Gaddy v. Fenenbock , 652 S.W.3d 860 , 866

- 73 (Tex. App.

— El Paso 2022, no pet.) (applying special appearance and personal jurisdiction rules in declaratory judgment action); Graves , 636 S.W.3d at 324

- 30 (Tex. App.

— Fort Worth 2021, pet. ref’d) (same); Triple SSS Aviation, Ltd. v. Adkinson , No. 12

- 07

- 00328

- CV, 2008 WL 142640 , at *2

- 3 (Tex. App.

— Tyler Jan. 16, 2008, no pet.) (mem. op.) (same)

. Therefore, it was not error for the trial court to

con sider Snow’s jurisdi ctional status. 2 We overrule Kepper’s fifth issue.

D ISPOSITION Having overruled Kepper’s five issues, we affi rm the trial court’s judgment.

B RIAN H OYLE Justice Opinion delivered November 8 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neel ey, J.

2 Kepper does not challenge the sufficiency of the evidence supporting the trial court’s order granting the special appearan ce.

## COURT OF APPEALS
TW ELFTH COURT OF APPEALS DISTR ICT OF TEXAS
JU DG MENT

NO VEMBER 8, 2023

NO
. 12-23-00091- CV

CARL "TED" KEPPER , Appellant V. LISA SNOW , Appellee

A ppeal from the County Co urt at Law of Rusk County, Texas (Tr.Ct.No. 2022-06-211) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is th erefore O RDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed , and that all costs o f this appeal are hereby adjudged against the app ellant , CARL “ TED ” KEPPER for which execution may issue, and that this decisi on be ce rtif ied t o the court below for observance.

B rian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.