Affirm and Opinion Filed October 30, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00504-CV

AARON KAUFMAN, Appellant

V.

AMERIHEALTH LABORATORY, LLC, Appellee

On Appeal from the 134th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-17516

MEMORANDUM OPINION

Before Justices Molberg, Carlyle, and Browning

Opinion by Justice Browning

The trial court denied appellant Aaron Kaufman’s special appearance. On 

appeal, he argues the trial court erred by denying the special appearance on any of 

the multiple theories asserted by appellee AmeriHealth Laboratory, LLC. We affirm 

the trial court’s order. 

Background

AmeriHealth is a clinical laboratory capable of performing complex testing, 

including but not limited to qualitative drug screens, genetic testing, and blood and 

molecular testing. AmeriHealth entered into a consulting agreement with Final Inch, 

LLC in which Final Inch agreed to provide consulting services regarding technology, 
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automation, and technical management. To carry out the services, Final Inch gained 

access to AmeriHealth’s confidential and proprietary information. According to 

AmeriHealth’s original petition, Kaufman is the CEO of Final Inch and “has 

continually been Final Inch’s point person for performance of the Agreement, as 

well as Final Inch’s signatory on the Agreement.” Both Final Inch and Kaufman are 

Florida residents. 

On November 1, 2019, AmeriHealth filed suit alleging tortious interference 

against Kaufman and breach of contract against Kaufman and Final Inch. It further 

sought a temporary restraining order, requested a hearing on a temporary injunction, 

and requested leave to conduct expedited discovery. 

The court held a hearing the same day. It is undisputed the beginning of the 

hearing was not transcribed. However, at the subsequent special appearance hearing, 

AmeriHealth reminded the trial court of Kaufman’s actions during the TRO hearing. 

AmeriHealth emphasized that Kaufman’s counsel appeared without limiting his 

appearance and actively made arguments on Kaufman’s behalf, which included

arguing he was not a signatory to the consulting agreement. AmeriHealth reminded 

the court that the parties retired to the jury room, at the court’s suggestion, to work 

out the expedited discovery requests. After their discussions, they proceeded on the 
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record.1 The second half of the hearing in our appellate record is titled, “Rule 11 

Agreement Proceeding.” 

At the beginning of that hearing, the trial court asked, “Y’all have an 

agreement regarding discovery?” AmeriHealth’s attorney answered, “We do. After 

- - discovery and extending the TRO.” AmeriHealth further stated that the court had 

already signed and entered a TRO setting the TI hearing and that “[t]he parties have 

agreed to extend the TRO until the completion of a TI hearing.” AmeriHealth’s 

attorney then read into the record the parties’ agreement regarding certain discovery 

issues and their agreement to mediate the case 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 Rule 11 agreement that we’ve 

announced on the record.” He continued, “Did I get our entire agreement or did I

miss something?” Kaufman’s attorney added one additional discovery request and 

stated, “But everything else that he said is agreed.” The court signed the temporary 

restraining order, which included some modifications based on Kaufman’s 

arguments, on November 1, 2019. 

Kaufman filed his special appearance on November 8, 2019, alleging Texas 

did not have general or specific jurisdiction over him. He acknowledged he was the 

 

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.” 
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CEO of Final Inch. He lived in Florida and met with AmeriHealth representatives 

in Florida several times before entering into the consulting agreement. He denied 

ever traveling to Texas and asserted that all contract negotiations occurred in Florida. 

He alleged he did not individually sign the contract, and all of the services Final Inch 

performed under the contract occurred in Florida. He denied owning any real 

property 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. He likewise argued AmeriHealth failed to explain how his alleged use 

of AmeriHealth’s information related to Texas. 

The trial court signed a temporary injunction on November 22, 2019. 

Subsequently, AmeriHealth filed its first amended petition alleging alter ego and 

piercing the corporate veil because “Final Inch, LLC is organized and operated as a 

conduit of Aaron Kaufman.” The trial court held a hearing on the special appearance 

on April 6, 2020. AmeriHealth argued that based on Kaufman’s previous actions, 

he had generally appeared. Counsel presented five different actions by Kaufman’s 

attorney that he believed supported the general appearance: (1) announcing he was 

appearing on behalf of Kaufman at the TRO hearing without limiting his appearance 

to a special appearance; (2) actively participating in the TRO hearing on behalf of 

Kaufman; (3) asking for expedited discovery and obtaining such relief; (4) asking 

the trial court to order all parties to comply with the agreed discovery order; and (5) 

asking the trial court to extend the TRO. Counsel spent little time elaborating on the 
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alter ego theory, and the court did not have questions on that theory challenging 

jurisdiction. 

Kaufman’s attorney argued his participation in discovery did not waive his

special appearance. The trial court asked, “What authority do you have regarding 

the effect of the TRO with attorney participation and the Rule 11? . . . I think that’s 

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.” 

The parties filed supplemental letter briefs. Kaufman argued that participating 

in the TRO hearing and agreeing to an extension did not waive his special 

appearance. Further, he contended he did not ask the trial court to order all parties 

to comply with the rule 11 agreement; rather, AmeriHealth misconstrued the 

proceedings. AmeriHealth filed its letter reurging its five theories presented during 

the hearing and distinguishing case law relied on by Kaufman. 

After considering “the pleadings on file, arguments of counsel, and the actions 

taken by Aaron Kaufman prior to this hearing,” the trial court signed an order 

denying Kaufman’s special appearance “based on all of the reasons advanced” by 

AmeriHealth. Kaufman requested findings of fact and conclusions of law, but the 

trial court did not enter any. This appeal followed. 

Standard of Review

Whether a court has personal jurisdiction over a defendant is a question of 

law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805–06 (Tex.
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2002). The trial court’s decision to grant or deny a special appearance is subject to 

de novo review on appeal, but if a factual dispute exists, an appellate court is called 

upon to review the trial court’s resolution of the factual dispute as well. Id. at 806; 

see also BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002). If the trial court does not issue findings of fact, as in this case, a reviewing 

court should presume the trial court resolved all factual disputes in favor of its 

judgment. Am. Type Culture, 83 S.W.3d at 806. Further, because the trial court did 

not specify under what ground it was exercising its authority to deny the special 

appearance, we may affirm the judgment under any applicable legal theory. Point 

Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); see also Baxter 

& Assocs., L.L.C., v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017 WL 604043, 

at *5 (Tex. App.—Dallas Feb. 15, 2017, no pet.) (mem. op.) (“In the absence of 

findings of fact and conclusions of law, the judgment of the trial court must be 

affirmed if it can be upheld on any available legal theory that finds support in the 

evidence.”).

Waiver of Special Appearance

In the trial court and on appeal, AmeriHealth argued Kaufman entered a 

general appearance thereby waiving his special appearance complaint. Because 

these issues must be resolved before considering the merits of the special 

appearance, we address them first. 
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A special appearance permits a nonresident defendant to object to personal 

jurisdiction in a Texas court. TEX. R. CIV. P. 120a. However, a nonresident 

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

general appearance. Boyd v. Kobierowski, 283 S.W.3d 19, 21 (Tex. App.—San 

Antonio 2009, no pet.). A general appearance entered before a special appearance 

waives the special appearance. Exito Elec. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 

2004). In Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998), the supreme 

court provided guidance as to what constitutes a general appearance: a party (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 

relief from the court. “The test for a general appearance is whether a party requests 

affirmative relief inconsistent with an assertion that the trial court lacks personal 

jurisdiction.” Brady v. Kane, No. 05-18-01105-CV, 2020 WL 2029245, at *5 (Tex. 

App.—Dallas Apr. 28, 2020, no pet.) (mem. op.). 

We begin by considering whether Kaufman generally appeared by 

participating in the TRO hearing. Both parties cite case law supporting their 

position; therefore, we address each as it relates to the facts of this case. 

Kaufman argues that making legal arguments at the TRO hearing did not 

waive his special appearance because appearing in an ancillary matter prior to the 

main suit does not constitute a general appearance in the main suit. See Alliantgroup, 

L.P. v. Feingold, No. H-09-0479, 2009 WL 1109093, *5–6 (S.D. Tex. Apr. 24, 
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2009); In re M.G.M., 163 S.W.3d 191, 200–01 (Tex. App.—Beaumont 2005, no 

pet.); Valsangiacomo v. Americana Juice Imp., Inc., 35 S.W.3d 201, n.3 (Tex. 

App.—Corpus Christi 2000, no pet.); Turner v. Turner, No. 14-98-00510-CV, 1999 

WL 33659, at *3 (Tex. App.—Houston [14th Dist.] Jan. 28, 1999, no pet.) (not 

designated for publication); Perkola v. Koelling & Assocs., Inc., 601 S.W.2d 110, 

111–12 (Tex. Civ. App.—Dallas 1980, no writ). 

In Perkola, a case from our Court, we considered the denial of a plea of 

privilege and whether Perkola waived his plea of privilege by appearing at a 

temporary injunction hearing without having been served with process.

2

 Perkola, 

601 S.W.2d at 111. In that case, we recognized that a party waives a plea of privilege 

“if he invokes the power of the court in a manner which negatives a continuing intent 

to insist upon the plea.” Id. Without analysis, we held Perkola “did not waive his 

plea by contesting the interlocutory temporary injunction. Perkola’s appearance at 

this hearing on an ancillary matter was not an appearance in the main case.” Id. at 

112. 

Kaufman argues Perkola is “instructive” because like Perkola, he appeared 

and contested the temporary restraining order, which was nothing more than 

participation in an ancillary matter. A closer review of the case, however, does not 

support Kaufman’s characterization of our holding. 

 

2 Perkola is not a special appearance case and does not discuss rule 120a. 
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Importantly, unlike Kaufman, Perkola filed his plea of privilege first before 

taking any other action. Id. at 111 (noting order of pleadings filed). Here, Kaufman 

did not file his special appearance until after the trial court signed the TRO. Further, 

Kaufman’s focus on Perkola “contesting” the temporary injunction as the lynchpin 

to our holding is misplaced and an overly broad reading of the case. The opinion is 

silent as to any actions that Perkola took, other than appearing, to contest the plea 

of privilege. Id. at 111 (both sides framing argument as whether waiver occurred 

based on voluntary appearance at temporary injunction hearing). We did not

conclude, as Kaufman suggests, that a party who “appeared and contested” an

ancillary matter prior to the main suit did not generally appear in the main case.

Rather, Perkola contested the ancillary proceeding by appearing. Thus, Perkola is 

consistent with the general principle that simply appearing for an ancillary 

proceeding, such as a TRO hearing, is not a general appearance under rule 120a. 

See, e.g., Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex. App.—San 

Antonio 2004, pet. denied) (“[P]arty who is a silent figurehead in the courtroom, 

observing the proceeding without participating” has not generally appeared.); 

Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.)

(same). However, those are not the facts before us. 

Rather, Kaufman voluntarily appeared through counsel at the TRO hearing, 

succeeded in modifying the TRO based on counsel’s arguments, and argued he was 

not a signatory to the consulting agreement thereby challenging AmeriHealth’s 
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breach of contract claim. By stepping outside the role of observer or silent 

figurehead and participating in the hearing, counsel’s actions were inconsistent with 

the assertion that the trial court lacked jurisdiction over Kaufman. See, e.g., Beistel 

v. Allen, No. 01-06-00246-CV, 2007 WL 1559840, at *3 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.) (mem. op.) (“While Texas courts have held that a party who 

merely observes a proceeding without participating does not make a general 

appearance, Beistel’s counsel participated when she objected to the admission of 

Allen’s spreadsheet.”). Instead, counsel not only actively participated in the hearing 

but also sought and received affirmative relief from the trial court. See DawsonAustin, 968 S.W.2d at 322. 

We are likewise unpersuaded by the other cases Kaufman relies on. 

Valsangiacomo cited Perkola, in part, for the proposition that appearing and 

participating in an injunction hearing did not constitute a general appearance in an 

ancillary matter. Valsangiacomo, 35 S.W.3d at 204 n.3. However, in that case 

“counsel for [defendant] appeared at and participated in the temporary injunction 

subject to the special appearance.” Id. (emphasis added). Further, the opinion is 

silent as to the extent of counsel’s participation in the hearing. 

 In Turner, the defendant appeared at a TRO hearing prior to filing a special 

appearance. Turner, 1999 WL 33659, at *1–2. Counsel explained the defendant’s 

position and presented argument in opposition to the TRO. Id. at *3. On appeal, the 

court recognized counsel was more than a “mere bystander at the hearing,” but 
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because the TRO hearing was an ancillary matter, it concluded the defendant did not 

generally appear. Id. Significantly, unlike counsel in Turner, Kaufman’s attorney 

sought and obtained affirmative relief from the trial court because of his participation 

in the TRO hearing. See, e.g., Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (noting a party must not seek affirmative relief on 

any question other than that of the trial court’s jurisdiction before the disposition of 

the special appearance). Further, this case has no precedential value. See TEX. R.

APP. P. 47.7(b) (“Opinions and memorandum opinions designated “do not publish” 

under these rules by the courts of appeals prior to January 1, 2003 have no 

precedential value.”); see also Babiy v. Kelley, No. 05-17-01122-CV, 2019 WL 

1198392, at *5 (Tex. App.—Dallas Mar. 14, 2019, no pet.) (mem. op.). 

Lastly, Kaufman relies on a federal district court case, which is not binding 

authority. Alliantgroup, L.P., 2009 WL 1109093, *5–6; see also Roe v. Ladymon, 

318 S.W.3d 502, 510 n.5 (Tex. App.—Dallas 2010, no pet.) (noting binding 

authority on appellate courts). Regardless, the defendant in that case raised the lack 

of personal jurisdiction in his first responsive pleading before filing a special 

appearance, and the opinion does not indicate defense counsel’s level of 

participation in the pre-special appearance hearings. Alliantgroup, L.P., 2009 WL 

1109093, *5–6.
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The missing piece from each of these cases is the extent of counsel’s 

participation in the hearing and counselseeking and receiving affirmative relief from 

the trial court. The Austin Court of Appeals has recognized this distinction. 

In Schoendienst v. Haug, 399 S.W.3d 313, 314 (Tex. App.—Austin 2013, no 

pet.), the court considered whether Haug violated Schoendienst’s due process rights 

by taking a default judgment without prior notice after she appeared in the action. 

Although the case did not involve a special appearance, the Austin court conducted 

a thorough analysis of 120a cases to determine whether Haug generally appeared 

through her actions thereby recognizing the trial court’s jurisdiction to decide 

broader questions in the case. Id. at 317. The court concluded that by agreeing 

without qualification to a temporary injunction, she subjected herself to a court order 

that restricted her personal freedom and ability to deal with her property and finances 

in anticipation of a trial on the merits. Id. at 320–21. The court acknowledged what 

had been suggested by some courts to be “a categorical rule that appearing in matters 

‘ancillary and prior to the main suit,’ including agreeing to temporary injunctive 

relief, does not constitute a general appearance that waives a special appearance.” 

Id. at 321 n.8 (discussing two cases relying on Turner and Perkola). As we 

explained above and the Austin court likewise concluded “a close examination of 

the authorities cited to support that proposition reveals it to be an overbroad 

oversimplification.” Id. 
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Kaufman has not challenged the facts from the beginning of the TRO hearing 

that were not recorded. In fact, during the special appearance hearing, 

AmeriHealth’s counsel reminded the trial court of the procedural background 

without any challenge from Kaufman: 

[Y]our Honor, respectfully, while there wasn’t a record of the first part 

of your hearing, I think the Court recalls what Mr. Dial did, appearing, 

making argument, the TRO speaks for itself, more importantly, there is 

a record of the second part of your hearing.

THE COURT: Yeah.

Accordingly, Kaufman’s conduct during the beginning of the TRO hearing, 

considered in the context of the present record, amounted to a general appearance. 

The reporter’s record of the second half of the TRO hearing further supports 

the conclusion Kaufman generally appeared by seeking affirmative relief from the 

trial court. Kaufman, however, argues he did not generally appear by requesting

expedited, pre-injunction discovery, and by agreeing to the rule 11 agreement 

because he did not invoke the jurisdiction of the court. 

We agree engaging in discovery is not enough in and of itself to waive a 

special appearance. See Brady, 2020 WL 2029245, at *6. We likewise recognize 

that under some circumstances, a rule 11 agreement will not constitute a general 

appearance. See Crystalix Grp. Int’l, Inc. v. Vitro Laser Grp. USA, Inc., 127 S.W.3d 

425, 428 n.2 (Tex. App.—Dallas 2004, pet. denied) (concluding rule 11 agreements 

did not constitute a general appearance but “declin[ed] to establish a bright-line rule 
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affecting all rule 11 agreements” and instead “look[ed] to the facts of the case before 

us”). 

In Crystalix, we concluded two rule 11 agreements, one extending a TRO and 

another agreeing not to interfere or seize certain property, did not amount to a general 

appearance because the agreements neither changed the status of any action with the 

trial court nor requested or invoked any action from the trial court. Id. at 428. Here, 

despite Kaufman’s arguments to the contrary, he agreed to the terms read into the 

record by AmeriHealth, but more importantly, he agreed to “everything else that 

[AmeriHealth] said,” which included the trial court ordering compliance with the 

rule 11 agreement. By suggesting a contrary conclusion because AmeriHealth’s 

attorney read the agreement into the record, Kaufman underplays his own actions

during the hearing. AmeriHealth repeatedly said, “the parties have agreed,” and “we 

have agreed” as terms were read into the record. Kaufman never objected or 

attempted to clarify that he did not agree 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 11 agreement and 

ordering the parties to comply with it. As such, he invoked action from the trial 

court inconsistent with the assertion that the trial court lacked jurisdiction over him. 

See Dawson-Austin, 968 S.W.2d at 322 (seeking affirmative relief from trial court 

will constitute a general appearance). But see Exchequer Fin. Grp., Inc. v. Stratum, 

Dev., Inc., 239 S.W.3d 899, 905 (Tex. App.—Dallas 2007, no pet.) (no general 
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appearance when “no evidence on our record showing appellee requested any 

affirmative relief from the trial court”). 

In reaching this conclusion, we reject Kaufman’s contention that language in 

the temporary injunction order indicates AmeriHealth and the trial court understood 

he had not generally appeared.3 By the time the trial court signed the order, Kaufman 

had already generally appeared. Any attempt to belatedly preserve his special 

appearance by inserting language into the temporary injunction order did not

eliminate or cure the effects of his prior actions during the TRO hearing, which were 

inconsistent with the assertion that the trial court lacked jurisdiction over him. See, 

e.g., Beistel, 2007 WL 1559840, at *3 (counsel’s participation in hearing was 

inconsistent with special appearance and attempt to preserve special appearance did 

not cure effect of actions at previous hearing). Moreover, inserting such language, 

which is routinely included in pleadings filed after a special appearance, did nothing 

more than acknowledge the pending special appearance. 

Given Kaufman’s actions, considered in the context of the present record, we 

conclude Kaufman generally appeared. As such, his general appearance waived his 

 

3 The order stated, in part, “The parties have agreed to the terms of this Order of Temporary 

Injunction 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 elaborated,

Defendants expressly condition the submission of this Agreed Temporary Injunction on 

the condition that neither the filing nor the Court’s entry of this Agreed Temporary 

Injunction waives Aaron Kaufman’s Special Appearance. Plaintiff agrees not to use the 

parties’ agreement of the entry of the Agreed Temporary Injunction as evidence of waiver 

of Aaron Kaufman’s Special Appearance or to argue that either constitutes a waiver of 

Aaron Kaufman’s Special Appearance.
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personal jurisdiction complaint, and we need not address whether Kaufman negated 

personal jurisdiction based on AmeriHealth’s alter ego theory. See Crystalix, 127 

S.W.3d at 427 (“An appearance that does not comply with rule 120a is a general 

appearance and waives the party’s personal jurisdiction complaint.”); see also

Whorton, 742 S.W.2d at 278 (affirming denial of special appearance under any 

applicable legal theory when trial court does not specify under what ground it 

exercised authority); TEX. R. APP. P. 47.1.

We overrule Kaufman’s arguments challenging the trial court’s denial of his 

special appearance. 

Conclusion

We affirm the trial court’s order denying Kaufman’s special appearance. 

200504f.p05 /John G. Browning/

JOHN G. BROWNING

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

AARON KAUFMAN, Appellant

No. 05-20-00504-CV V.

AMERIHEALTH LABORATORY, 

LLC, Appellee

On Appeal from the 134th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-19-17516.

Opinion delivered by Justice 

Browning. Justices Molberg and 

Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee AMERIHEALTH LABORATORY, LLC 

recover its costs of this appeal from appellant AARON KAUFMAN.

Judgment entered this 30th day of October, 2020.