AFFIRMED and Opinion Filed June 4, 2021 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-01050-CV I-90 COLD STORAGE, INC. AND KIM R. SMITH, Appellants V. STELLAR RESTORATION SE RVICES, LLC, Appellee On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-04465-2020 MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Smith I-90 Cold Storage, Inc. and Kim R. Smit h appeal the trial court’s denial of their special appearance. In two issues, appellants argue the trial court erred by failing to file findings of fact and conclusi ons of law, and they are not amenable to process because their underlying agreement with Stellar Restoration Services is void and unenforceable. We affirm the trial court’s judgment. In September 2020, Stellar f iled its original petition in Collin County, Texas. The petition alleged Stellar, a Texas limited liability comp any, specializes in the restoration and replacement of commercial roofs. In spring 2020, appellants’ property in Rapid City, South Dakota, wa s damaged in a hailstorm. Appellants–2– entered into a restoration services agreemen t Stellar for roof re pair. The agreement contained the following provision: 8. GOVERNING LAW/ JURY WAIVER It is understood and agreed that th is Agreement shall be governed by, construed, enforced in accordance with, and subject to, the laws of the State of Texas, except Chapter 7 07(H.B.2102). Exclusive FORUM and VENUE for any action brought pursuant to the terms of this Agreement, or in any way relating to this Agr eement, shall be in COLLIN County, Texas. The parties hereto mutua lly agree to WAIVE THE RIGHT OF TRIAL BY JURY AS TO ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT. Under the terms of the agreem ent, appellants agreed to pay Stellar for its services out of insurance proceeds. Instead, appell ants’ insurance carrier issued a payment, but appellants terminated the agreement w ith Stellar without paying any proceeds to Stellar. On October 1, 2020, appellant s each filed an “origina l answer and request for disclosure.” The pleadings alleged the “court does not have personal jurisdiction over” appellants because the unde rlying contract that formed the basis of Stellar’s suit was “void and any and all pertinent tran sactions occurred exclusively in the State of South Dakota.” The pleadings sought a ttorney’s fees and disclosure of “the information or material descri bed in Rule 194.2” within th irty days. In the prayer, the pleadings asked the court “to dismiss th is suit or render judgment that plaintiff take nothing.” On October 20, 2020, appellants filed a notice of hearing stating that a hearing on their pleadings was set for November 13, 2020.–3– On October 28, 2020, appella nts filed a motion to dismiss for lack of personal jurisdiction. In their motion to dismiss, appellants argued for the first time that, pursuant to rule of civil procedure 120a, they were not amenable to process in Texas and they lacked sufficient contacts with Te xas. As a result, appellants asked the court to dismiss the lawsuit for lack of personal jurisdiction. On November 18, 2020, the trial cour t signed an order denying appellants’ motion to dismiss for lack of personal jurisd iction. The same day, appellants filed a request for findings of fact and conclu sions of law. On November 30, 2020, appellants each filed a notice of appeal of the trial court’s denial of their special
appearances. As an initial matter, we address appellants’ argume nt that the trial court reversibly erred by failing to make findings of fact and conclusions of law. A party waives a complaint that the tr ial court failed to file findi ngs of fact and conclusions of law by not making a timely re quest for findings of fact an d conclusions of law, or by failing to timely file and serve a notice of past due findings of fact and conclusions of law. See T EX
. R. C IV
. P. 296, 297; Haut v. Green Cafe Mgmt., Inc ., 376 S.W.3d 171, 183 (Tex. App.—Houston [14th Dist.] 2012, no pet.). He re, appellants failed to file a notice of past due findings of f act and conclusions of law. Accordingly, appellants have waived this issue. See Haut , 376 S.W.3d at 183. Appellants further argue they are not subj ect to personal jurisdiction in Texas, and the trial court erred in denying their special appearance. Under rule 120a, a–4– special appearance, properly entered, enab les a non-resident defe ndant to challenge personal jurisdiction in a Texas court. T EX
. R. C IV
. P. 120a. Rule 120a requires strict compliance, and a non-resident defendant will be subject to personal jurisdiction in Texas courts if the defendant enters a general appearance. Klingenschmitt v.
Weinstein , 342 S.W.3d 131, 133 (Tex. App.—Dalla s 2011). Rule 120a states that “[e]very appearance, prior to judgment, not in compliance with this rule is a general appearance.” T EX
. R. C IV
. P. 120a(1). Rule 120a(1) mandates that a special ap pearance be filed “prior to a motion to transfer venue or any othe r plea, pleading or motion.” Id. “[T]he plain language of Rule 120a requires only that a special a ppearance be filed before any other ‘plea, pleading or motion.’” Exito Elecs. Co. v. Trejo , 142 S.W.3d 302, 305 (Tex. 2004). “This is sometimes referred to as the ‘due-order-of-pleading’ requirement.” Id. A party enters a general appearance and waives a special appearance “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 from the court.” Trejo , 142 S.W.3d at 304. Th e test for a general appearance is whether a party requests a ffirmative relief inconsistent with an assertion that the trial court lacks jurisdiction. Klingenschmitt , 342 S.W.3d at 134. Here, appellants each filed an “original answer and request for disclosure.” These pleadings did not mention a special appearance or rule 120a. The pleadings alleged the “court does not ha ve personal jurisdiction ove r” appellants because the–5– underlying contract that formed the basis of Stellar’s suit was “void and any and all pertinent transactions occurred exclusively in the State of Sout h Dakota.” However, this argument addressed the validity of th e underlying contract, not the trial court’s determination of personal ju risdiction pursuant to rule 120a. The pleadings sought attorney’s fees and disclosu re of “the information or material described in Rule 194.2” within thirty days. We note that rule 194.2 requires a party to make certain initial disclosures within thirty da ys after the filing of the first answer or general
appearance . T EX
. R. C IV
. P. 194.2 (emphasis added). In the prayer, appellants’ pleadings asked the court “to dismiss this suit or render judgment that plaintiff take nothing.” Twenty-seven days later, appellants finally filed their joint special appearance pursuant to rule 120a. U nder these circumstances, we conclude appellants waived their special appearance; prior to filin g their special appearance, appellants entered general a ppearances by requesting affirm ative relief inconsistent with an assertion that the trial court lack ed personal jurisdiction over them pursuant to rule 120a. See T EX
. R. C IV
. P. 120a; Trejo , 142 S.W.3d at 304; Klingenschmitt , 342 S.W.3d at 134. Moreover, even if appellants had strictly complied with rule 120a, the underlying contract provided a c hoice of law provision establishing Texas as the proper forum for any action between the parties. For these reasons, we conclude the trial court did not err in denying appellants’ special appearance.–6– We affirm the trial court’s denial of appellants’ special appearance.

201050F.P05 /C r ai g Smith / CRAIG SMITH JUSTICE–7– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
I-90 COLD STORAGE, INC. AND KIM R. SMITH, Appellants
No. 05-20-01050-CV V.
STELLAR RESTORATION SERVICES, LLC, Appellee On Appeal from the 429th Judicial District Court, Collin County, Texas Trial Court Cause No. 429-04465- 2020. Opinion delivered by Justice Smith. Justices Molberg and Goldstein participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee STELLAR RESTORATION SERVICES, LLC recover its costs of this appeal from appellants I-90 COLD STORAGE, INC. AND KIM R. SMITH.
Judgment entered June 4, 2021.