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 LABORATO RY, 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 wh ich Final Inch agreed to provide consulting services regarding technology,– 2

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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 ori ginal 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 cond uct 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 t he 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 c onsulting agreement

. AmeriHealth reminded the court that the parties retired to the jury room, at the court’s suggestion, to work out the expedited discovery reques ts. After their discussions, they proceeded on the– 3

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record. 1 T he second half of the hearing in our appellate re cord is titled, “Rule 11 Agreement Proceeding.”
A t 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 fur ther 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’ ag reement reg arding 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 addi tional discovery request an d stated , “But everything else that he said is agreed.” The court signed the temporary restraining order , which includ ed some modifications based on Kaufman’s arguments, on November 1, 2019. Kaufman filed his specia l appearanc e 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 t he 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.”– 4

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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 con sulting 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 a ll of the services Final Inch performed under the contract occurred in Florid a. He denied own ing an y 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 e xplain how his alleged use of AmeriHealth’s information related to Texas. The trial court signed a temporary injunction on November 22, 2019

. Subsequently, Am

eriHealth 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 partici pating 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. Coun sel spent little time elaborating on the– 5

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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 beca use “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 hi s special appearance. Further, he contended he did not ask the trial court to order all parties to comply with the rule 11 agreement; rather, AmeriHealt h misconstrued the proceedings. AmeriHealth filed its letter reurging its five theories presented during the hearing and distinguishing case law re lied 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 Cultu re Collection, Inc. v. Coleman , 83 S.W.3d 801, 805

– 06 (Tex.– 6

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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 tr ial cour t’ 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 j udgment 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 b e upheld on any available legal theory that finds support in the evidence.”)

. Waiver of Special Appearance In the trial co urt and on appeal, AmeriH ealth argued Kaufman entered a general appearance thereby waiving his special appearance compla int. Because these issues mu st be resolved before considering the merits of the special appearance, we address them first.– 7

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A special appearance permits a nonresident defendant to object to personal jurisdiction in a Texas court. T EX
. R. C IV
. P . 120a. However, a nonresident defendant may be subject to personal jurisdiction in Texas i f 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

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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 pro perly 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 app earance in the main suit. See Alliantgroup, L.P. v. Feingold , No. H

- 09

- 0479, 2009 WL 1109093, *5

– 6 ( S.D. Tex. Apr. 24,– 8

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2009) ; In re M.G.M ., 16 3 S.W.3d 191, 200

– 01 (Tex. App.

— Beaumont 2005, no pet.); Valsangiacomo v. Americana Juice Imp

. , Inc. , 35 S.W.3d 2 01, 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 P erk ola 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 cas e , 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 i s “instructive” because like P erk ola, 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 hol ding

.

2 Perkola is not a special appearance case and does not discuss rule 120a.– 9

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Importantly , unlike Kaufman, P erk ola 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. F urther, Kaufman’s focus on Perkola “contesting” the temporary injunction as the lynchpin to our holding is misplaced and a n overly broad reading of the case

. The opinion is silent as to any actions that P erk ola took, other than appearing , to contest the p lea of privilege. Id . at 111 ( both sides framing argument as whether waiver occurred based on voluntary appearance at temporary injunction hearing )

. W e did not conclude , as Kaufman suggests , that a party who “appeared and contested” an ancillary matter p rior to the main suit did not g enerally appear in the main case

. Rather, P erk ola contested the ancillary proceeding by appearing. Thus, Perkola is consistent with the general principle that simply appearing for a n ancillary proceeding, such as a TRO hearing , is not a gen eral 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 part icipating” 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– 10

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breach of contract claim

. By stepping outside the role of observer or silent figure head an d participating in t he hearing, c ounsel’s actions were inconsistent with the assertion that the trial co urt 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 a ctively participated in the hearing but also sought and received affirmative relief from the trial court. See Dawson

Austin , 968 S.W.2d at 322. We are likewise unpersuaded by the other cases Kaufman relies on . Valsangiacomo cited Pe rk ola , 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. C ounsel explained the defendant’s position and presented argument in opposition to the TRO. Id . at *3. On appeal, the court recognized counsel wa s more than a “mere bystander at the hearing,” but– 11

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because the TRO hearing was an ancillary matter, it concluded the defendant did not generally appear. Id

. Sig nificantly, unlike counsel in Turner , Kaufman’s attorney sought and obtained affirmative relie f 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 T EX
. R.
A PP . P. 47.7(b) (“Opinions and memorandum opinions designated “do not publish” under these rules by the courts of app eals 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. Ladymo n , 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 pers onal jurisdiction in his first responsive pleading before filing a s pecial
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.– 12

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T he missin g piece from each of these cases is the extent of counsel’s participation in the hearing and counsel seeking and receiving affirmat ive 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.
A lthough the case did not involve a special appearance, the Austin court conducted a thorough analysis of 120a cases to determine whether Haug generally app eared through her actions thereby recognizing the trial court’s jurisdiction to decide broader questions in the case

. Id . at 317. Th e 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

r e lief, does not constitute a general appeara nce 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

.– 13

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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, t he 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 gener al 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

. K aufman, however, argues he did not generally appear by requesting
exp edited, 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 2029 245, 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 ge neral appearance but “declin[ed] to establish a bright

- line rule– 14

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affec ting all rule 11 agreements” and instead “look [ed] to the facts of the case before us”).
In Crystalix , we c oncluded 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 change d 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 [AmeriH ealth] 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 re a d 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 agre ed.” 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– 15

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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 cou rt 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
in consistent 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

mo re than acknowledge the pending special appearance. Given Kaufman’s actions , considered in the contex t of the present record, we conclud e Kaufman generally appeared. As suc h, 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.– 16

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personal jurisdiction complaint , and we nee d 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); T EX
. R. A PP
. 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– 17

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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 30 th day of October, 2020.