COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE RAYMOND CORPORATION,

 Appellant, 

v. 

GUILLERMINA RUBIO, Individually, and 

on Behalf of the Estate of Lorenzo Rubio Sr., 

Deceased, LORENZO RUBIO JR., 

LILLIANA RUBIO, and ELIZABETH 

RUBIO, 

 Appellees. 

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No. 08-22-00097-CV

Appeal from the 

120th Judicial District Court

of El Paso County, Texas 

(TC# 2021DCV3930) 

O P I N I O N 

In this interlocutory appeal, the Raymond Corporation (Raymond) appeals the trial court’s 

order denying its special appearance.1 In one issue, Raymond argues the trial court lacks personal 

jurisdiction over it because it was not personally served or properly named as a party defendant to 

the suit, and the trial court erred in denying its special appearance. Finding no error, we affirm.

I. BACKGROUND

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(7) (providing for the interlocutory appeal of a grant or denial of 

a special appearance of a defendant under rule 120a of the Texas Rules of Civil Procedure, except in a suit brought 

under the Family Code). 
2

This is a wrongful death case arising from a workplace injury occurring on or about 

November 12, 2019, in El Paso, Texas. On November 5, 2021, Appellees Guillermina Rubio, 

Lilliana Rubio, Lorenzo Rubio Jr., and Elizabeth Rubio (collectively, Appellees), filed “Plaintiffs’ 

Original Petition” against the following named parties: “The Toro Company d/b/a Toro 

Manufacturing Corporation,” “OLP Haskins El Paso TX LLC,” and “Toyota Industries 

Corporation a/k/a and d/b/a The Raymond Corporation.”2 Appellees are the surviving spouse and 

children of Lorenzo Rubio, Sr., deceased (Lorenzo Sr.). Appellees allege by their suit that Lorenzo 

Sr. was “killed while working his shift at the TORO Distribution Center located at the 1400 block 

of Don Haskins Dr., El Paso, Texas (owned by OLP), while properly operating a RAYMOND 

stand-up forklift.” They further allege that Lorenzo Sr. “became pinned between the forklift he 

was operating and a storage rack . . . therein severing his spine and ultimately causing his death.” 

They contend that Lorenzo Sr.’s body was not found by other employees of Toro until the 

following morning, close to twelve hours after the incident had occurred. 

Appellees allege a variety of claims as follows: first, negligence, gross negligence, and 

premises liability against Toro; second, premises liability against OLP; and third and finally, 

negligence, strict liability for a manufacturing defect, strict liability for a design defect, strict 

liability for a marketing defect, breach of express warranty, and breach of an implied warranty, all

against Raymond. Relevant to this proceeding, Appellees allege that “Defendant RAYMOND 

knew, or in the exercise of due care should have known, that the forklift manufactured by 

RAYMOND [and] utilized by LORENZO RUBIO, SR. in the pursuit of his employment . . . on 

2 On December 10, 2021, the Toro Company removed the case to the U.S. District Court for the Western District of 

Texas. Based on lack of complete diversity, however, the U.S. District Court for the Western District of Texas granted 

Appellees’ motion for remand on February 25, 2022, and the case was remanded back to the 120th Judicial District 

Court of El Paso County. See Rubio v. Toro Co., No. EP-21-CV-00304-DCG, 2022 WL 575673, at *5 (W.D. Tex. 

Feb. 25, 2022).
3

the night of his death was unreasonably dangerous and defective, and its use would create a 

foreseeable and unreasonable risk of harm to users, including employees of its customers like 

LORENZO RUBIO, SR.”

On March 4, 2022, Raymond responded by filing an unverified pleading titled, “The 

Raymond Corporation’s Special Appearance,” asserting the trial court did not have personal 

jurisdiction over it, and thus, it should be dismissed from the suit. Collectively, Raymond

challenged Appellees’ original petition and the citation served upon it by certified mail. First, 

Raymond asserted the case caption of the petition named a defendant described as “TOYOTA 

INDUSTRIES COPRORATION A/K/A AND D/B/A THE RAYMOND COPRORATION.” 

Second, it described the citation as being directed solely against “Toyota Industries Corporation.” 

Raymond argued that only Toyota Industries Corporation was made a party defendant, and 

jurisdiction over it depended on citation being issued and served as required by law. 

Shortly after filing its challenge against the process served upon it, Raymond filed an 

amended pleading titled, “The Raymond Corporation’s First Amended and Verified Special 

Appearance,” which included an affidavit of its lead counsel, Francis H. Lococo. By his affidavit, 

attorney Lococo avers that the Raymond Corporation is a New York corporation with its principal 

place of business located in Greene, New York, while Toyota Industries Corporation is a Japanese 

corporation with its business offices located in Japan. 

Responding to Raymond’s lack of personal jurisdiction claim, Appellees asserted two 

arguments. First, that Raymond had been properly served at its principal place of business located 

in New York. And second, because Raymond filed an erroneous special appearance, it nonetheless 

had generally appeared in the case. In effect, Appellees contended Raymond had presented a 

motion to quash that was erroneously titled as if it were in fact a special appearance. In short, 
4

Appellees asserted that Raymond’s purported special appearance was legally and factually 

unfounded.

On March 31, 2022, Appellees filed a first amended petition restating all claims as 

previously asserted by their original pleading. When naming party defendants, however, the 

amended petition named “the Raymond Corporation” without including any further reference to 

the company either doing business as or being known as “Toyota Industries Corporation.”

On April 7, 2022, the trial court held a hearing on Raymond’s purported special 

appearance. On May 31, 2022, the trial court denied Raymond’s special appearance. Within its

denial order, the trial court issued findings of fact and conclusions of law. Relevant to this appeal, 

the court made the following findings of fact:

8. In both the citation and Plaintiffs’ Original Petition, Raymond is identified by 

Plaintiff’s as ‘TOYOTA INDUSTRIES CORPORATION A/K/A AND D/B/A 

THE RAYMOND CORPORATION.’

9. Plaintiffs’ Original Petition was served via certified mail, return receipt 

requested, on ‘TOYOTA INDUSTRIES CORPORATION’ at Raymond’s 

principal place of business located at 22 South Canal Street, Greene, New York.

10. Plaintiffs’ Original Petition was accepted by ‘THE RAYMOND 

CORPORATION AUTHORIZED PERSON TOYOTA’ on November 29, 

2021, at 11:13 a.m. at Raymond’s corporate headquarters located at 22 South 

Canal Street, Greene, New York. 

Additionally, the trial court made the following conclusions of law presented in their entirety:

1. Texas Rule of Civil Procedure 120a provides for a special appearance to object 

to the jurisdiction of the court over the person or property of the defendant on 

the ground that such party or property is not amenable to process by the courts 

of the State of Texas. Tex. R. Civ. P. 120a.

2. In contrast, where a party alleges a defect in service of process, it is properly 

challenged through a motion to quash. Kawasaki Steel Corp. v. Middleton, 699 

S.W.2d 199, 202 (Tex. 1985).
5

3. The Raymond Corporation’s First Amended and Verified Special Appearance 

does not allege that it is not amenable to process issued by the courts of the 

State of Texas. 

4. The Raymond Corporation’s ‘Special Appearance’ complains of a defect in 

service. 

5. Plaintiffs’ citation naming ‘TOYOTA INDUSTRIES CORPORATION A/K/A 

AND D/B/A THE RAYMOND CORPORATION’ and accepted by ‘THE 

RAYMOND CORPORATION AUTHORIZED PERSON TOYOTA’ by a 

self-identified Raymond Corporation representative is effective service on The 

Raymond Corporation. 

6. The Raymond Corporation was afforded due process and was placed on notice 

of Plaintiffs’ asserted claims. 

7. The Court has jurisdiction to hear claims against The Raymond Corporation 

because it is properly before this Court as a party named in Plaintiffs’ Original 

Petition and Plaintiffs’ First Amended Petition. 

8. The Raymond Corporation’s ‘Special Appearance’ is not substantively nor 

procedurally a ‘Special Appearance.’ 

This interlocutory appeal followed. 

II. APPLICABLE LAW AND STANDARD OF REVIEW

A. Standard of Review

Whether a court has personal jurisdiction over a defendant is a question of law. Searcy v. 

Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016). Frequently, however, a trial court must resolve 

questions of fact to reach this question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 

S.W.3d 801, 806 (Tex. 2002). “On appeal, the trial court’s determination to grant or deny a special 

appearance is subject to de novo review, but appellate courts may be called upon to review the trial 

court’s resolution of a factual dispute.” Id. When a trial court enters an order denying a special 

appearance and issues findings of fact and conclusions of law, “an appellant may challenge the 
6

fact findings on legal and factual sufficiency grounds.” BMC Software Belgium, N.V. v. Marchand, 

83 S.W.3d 789, 794 (Tex. 2002). 

B. Applicable Law for Personal Jurisdiction

“The exercise of personal jurisdiction in Texas state courts turns on both federal and state 

law.” Searcy, 496 S.W.3d at 66. Courts have personal jurisdiction over a defendant when two 

criteria are met: “(1) the Texas long arm statute must grant jurisdiction; and (2) the exercise of 

jurisdiction must comport with federal and state constitutional guarantees of due process.” Id. 

Because the Texas long arm statute provides for personal jurisdiction that extends to the limits of 

the United States Constitution, it is recognized that “federal due process requirements shape the 

contours of Texas courts’ jurisdictional reach.” Id. “[W]hether a trial court’s exercise of 

jurisdiction is consistent with due process requirements turns on two requirements: (1) the 

defendant must have established minimum contacts with the forum state; and (2) the assertion of 

jurisdiction cannot offend traditional notions of fair play and substantial justice. Id. (citing Int’l 

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Sufficient minimum contacts exist when the 

non-resident defendant “purposefully avails itself of the privilege of conducting activities within 

the forum [s]tate, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 

U.S. 235, 253 (1958). The crux of the purposeful availment analysis is “whether a nonresident 

defendant’s conduct in and connection with Texas are such that it could reasonably anticipate 

being haled into court here.” Searcy, 496 S.W.3d at 67.

C. Special Appearance

A special appearance, properly entered, enables a non-resident defendant to object to 

personal jurisdiction in a Texas court. TEX. R. CIV. P. 120a. “However, a non-resident defendant 

may be subject to personal jurisdiction in Texas courts if the defendant enters a general 
7

appearance.” Boyd v. Kobierowski, 283 S.W.3d 19, 21 (Tex. App.—San Antonio 2009, no pet.)

(citing TEX R. CIV. P. 120; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985) 

(per curiam)). 

A general appearance entered before a special appearance waives the special appearance.

Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004) (per curiam); Boyd, 238 S.W.3d at 

21; Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 299 (Tex. App.—Fort Worth 2004, 

pet. dism’d); see also TEX. R. CIV. P. 120a(1) (“Every appearance, prior to judgment, not in 

compliance with [the special appearance] rule is a general appearance.”). A non-resident defendant 

may enter a general appearance by seeking “the judgment of the court on any question other than 

the court’s jurisdiction . . . .” Exito, 142 S.W.3d at 304. Nevertheless, rule 120a “makes matters in 

the same instrument and subsequent matters subject to the special appearance without an express 

statement to that effect for each matter.” Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 

1998). 

Under the rules of civil procedure, a special appearance may be made by any party “for the 

purpose of objecting to the jurisdiction of the court over the person or property of the defendant 

on the ground that such party or property is not amenable to process issued by the courts of this 

State.” TEX. R. CIV. P. 120a. The phrase “‘not amenable to process issued by the courts of this 

state’ can only be interpreted to mean that the special appearance is available solely to establish 

that the Texas Court cannot [] validly obtain jurisdiction over the person or the property of the 

defendant with regard to the cause of action pled.” Kawasaki Steel Corp., 699 S.W.2d at 202; see

also HMS Aviation v. Layale Enterprises, S.A., 149 S.W.3d 182, 189 (Tex. App.—Fort Worth 

2004, no pet.). “A curable defect in service of process does not affect a non-resident defendant’s 

amenability to service of process.” Kawasaki Steel Corp., 699 S.W.2d at 202. Complaints 
8

regarding defective service of process do not defeat a non-resident’s amenability to the court’s 

process and thus should be raised by a motion to quash and not by special appearance. Kawasaki 

Steel Corp., 699 S.W.2d at 203; see also Vitro Packaging de Mexico, S.A. de C.V. v. Dubiel, No. 

05-17-00258-CV, 2017 WL 6349708, at *3 (Tex. App.—Dallas Dec. 13, 2017, pet. denied) (mem. 

op.). 

III. ISSUE ON APPEAL

Raymond raises a single issue on appeal. It contends the trial court erred in denying its 

special appearance objecting to personal jurisdiction on the basis that it was not properly made a 

party defendant to the suit. Raymond asserts the trial court erred in two ways. First, Raymond 

attacks the trial court’s factual finding that the citation identified Raymond as “TOYOTA 

INDUSTRIES CORPORATION a/k/a and d/b/a THE RAYMOND CORPORATION.” Raymond 

asserts there is legally and factually insufficient evidence to support the finding because the 

citation establishes on its face that it was directed solely to “TOYOTA INDUSTRIES 

CORPORATION,” and Raymond is not otherwise mentioned as a party that is directed by the 

citation to answer the suit. Second, Raymond asserts the trial court erred in its legal conclusion 

that Raymond’s special appearance alleged only defective service of process and not a lack of 

personal jurisdiction. Raymond argues that a component of personal jurisdiction is whether

plaintiffs made an entity a party defendant to the suit. Raymond argues the trial court erred in not 

considering the facts in the context of whether they establish that Raymond is a named party 

defendant. 

In response, Appellees assert three arguments. First, they assert Raymond failed to properly 

preserve complaints on the trial court’s findings of fact and conclusions of law by failing to request 

additional or amended findings or conclusions from the court below. Second, Appellees assert 
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Raymond’s complaint on a defect in service constituted a general appearance, waiving its right to 

bring forth the present interlocutory appeal. Lastly, Appellees assert the citation served on 

Raymond complied with the rules and effected proper service. Overall, Appellees argue the trial 

court obtained personal jurisdiction over Raymond and its order denying the special appearance 

should be affirmed. 

We begin our analysis with Appellees’ second argument asserting Raymond waived his 

special appearance by filing (in substance) a motion to quash complaining about the method of the 

service of process, but not otherwise asserting it lacked amenability to service in the district court. 

Because we find this argument dispositive of the appeal, we conclude we need not address the 

parties’ other arguments. See TEX. R. APP. P. 47.1. (stating court of appeals must hand down a 

written opinion that is as brief as practicable but that addresses every issue raised and necessary

to final disposition of the appeal.). 

IV. RULE 120a 

Pursuant to Texas Rule of Civil Procedure 120a, a special appearance may be made by any 

party either in person or by attorney “for the purpose of objecting to the jurisdiction of the court 

over the person or property of the defendant on the ground that such party or property is not 

amenable to process issued by the courts of this State.” TEX. R. CIV. P. 120a. This rule further 

warns, however, that “[e]very appearance, prior to judgment, not in compliance with [rule 120a] 

is a general appearance.’” See id.; see also Exito 142 S.W.3d at 304. Defining what constitutes a 

general appearance, the Supreme Court adopted reasoning from this Court as follows: 

A party enters a general appearance whenever it invokes the judgment of the court 

on any question other than the court’s jurisdiction; if a defendant’s act recognizes 

that an action is properly pending or seeks affirmative action from the court, that is 

a general appearance.
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Dawson-Austin 968 S.W.2d at 322 (quoting Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 

324, 327 (Tex. App.—El Paso 1994, writ denied).

Applying these principles, we must first examine Raymond’s amended pleading titled, 

“The Raymond Corporation’s First Amended and Verified Special Appearance,” to determine 

whether it properly asserted a special appearance in accordance with the requirements of rule 120a.

In reviewing a pleading, rule 71 of the Texas Rules of Civil Procedure states: “When a party has 

mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or 

pleading as if it had been properly designated.” See TEX.R.CIV. P. 71. Given this rule, the Supreme 

Court of Texas has stressed that “courts should acknowledge the substance of the relief sought 

despite the formal styling of the pleading.” In Interest of J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016)

(quoting Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per curiam)). 

Moreover, the substance may be determined by what effect it will have on the proceeding if 

granted. In re Medina, No. 13-19-00537-CV, 2019 WL 6906572, at *7 (Tex. App.—Corpus 

Christi–Edinburg Dec. 18, 2019, orig. proceeding) (mem. op.); see generally Huynh v. Nguyen, 

180 S.W.3d 608, 616–17 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (construing a “motion 

to dismiss” as a special appearance “because it seeks dismissal based on lack of personal 

jurisdiction”). 

Here, Raymond’s first amended special appearance requested dismissal for want of 

jurisdiction—not on the basis that Raymond was not amenable to service as required by rule 120a, 

but rather, on the basis that it was not properly made a party defendant to the suit, nor otherwise 

properly served with process. Raymond argued, “Rule 120a of the Texas Rules of Civil Procedure 

provides for a special appearance ‘for the purpose of objecting to the jurisdiction of the court over 

the person. . . .’” TEX. R. CIV. P. 120a. In citing rule 120a, however, Raymond failed to include the 
11

remainder of the provision, which specifies that a special appearance’s purpose is to object to the 

jurisdiction of the court “on the ground that such party or property is not amenable to process

issued by the courts of this State.” Id. [Emphasis added]. 

The operative words, “not amenable to process issued by the courts of this state,” have

been interpreted by the Supreme Court of Texas to mean “the special appearance is available solely 

to establish that the Texas court cannot, under the federal and state constitutions and the 

appropriate state statutes, validly obtain jurisdiction over the person or the property of the 

defendant with regard to the cause of action pled.” Kawasaki Steel Corp., 699 S.W.2d at 202. In 

this regard, the Court further instructs that “[a] curable defect in service of process does not affect 

a non-resident defendant’s amenability to service of process.” Id. In other words, defective service 

or defective process are not grounds that support a special appearance, and such complaints should 

be raised instead by a motion to quash. Id. Consequently, a purported special appearance that only 

challenges the propriety of the service of process, is not in fact a special appearance pursuant to 

rule 120a. Id. Instead, such challenge against service of process is a general appearance seeking 

affirmative action from the court on a question other than the court’s jurisdiction over the party.

Id.

Accordingly, Raymond’s amended pleading, although titled as a special appearance, does 

not operate nor qualify as a special appearance. As the Supreme Court instructs, defective service 

of process must be challenged by a motion to quash rather than by a special appearance. Id.

Here, however, Raymond argues the trial court “misapplied jurisdictional law to the facts 

addressed by [it], which could serve a dual purpose—both to determine if a party has been 

sufficiently served with process, and whether an entity has even been made a party to the suit in 

the first instance.” In support of this point, Raymond relies on the importance of citation being 
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issued and served on a proper party. See Amato v. Hernandez, 981 S.W.2d 947, 950 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied) (“Jurisdiction is dependent on citation being issued and 

served as required by law.”). We disagree. 

Raymond’s cited authority involves a case where a default judgment was entered against a 

defendant who was not properly served. See id. (holding that the trial court had no personal 

jurisdiction over defendant when defendant was not served in strict compliance with the rules, 

voiding the order entered against defendant). Here, however, there have been no default judgments 

entered against Raymond nor other orders issued of such nature. The proper relief for a defect in 

process is not dismissal of the cause, but rather, more time to answer the suit. Kawasaki Steel 

Corp., 699 S.W.2d at 202; see also TEX. R. CIV. P. 122 (describing the result of a constructive 

appearance through a successful motion to quash service). Complaining solely of defects in service 

of process, Raymond’s pleading does not challenge its amenability to service or otherwise negate 

all grounds for personal jurisdiction as were alleged by Appellees’ suit.

Because Raymond’s verified pleading is not a proper special appearance, we hold its attack 

on defective service constitutes a general appearance. See Kawasaki Steel Corp., 699 S.W.2d at

202. Moreover, we need not review whether the citation accomplished proper service in this 

instance because Raymond’s general appearance cured any defect that had resulted. See Caldwell 

v. Tex. Dep’t of Pub. Safety, No. 03-20-00561-CV, 2021 WL 3376931, at *1 (Tex. App.—Austin 

Aug. 4, 2021, no pet.) (providing that curable defects in service do not defeat a suit on jurisdictional 

grounds; rather, by filing a motion to quash, a party effectively makes a general appearance and 

consents to the trial court’s jurisdiction); Morales v. Morales, 195 S.W.3d 188, 191 (Tex. App.—

San Antonio 2006, pet. denied) (“[A]n appearance to contest lack of service and subsequent 

participation in the proceedings constitutes a general appearance, making personal service, if 
13

otherwise required, unnecessary.”); see also TEX. R. CIV. P. 123 (stating that when a judgment is 

reversed on appeal for want of service, or because of defective service of process, no new citation 

shall be issued or served, but “the defendant shall be presumed to have entered his appearance”). 

We overrule Raymond’s sole issue and conclude the trial court did not err in denying 

Raymond’s special appearance. 

V. CONCLUSION

Finding no error, we affirm. 

 GINA M. PALAFOX, Justice

October 26, 2022 

Before Rodriguez, C.J., Palafox, and Alley, JJ.