in Re LeBlanc & Waddell, L.L.C.

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-278 CV ____________________ IN RE LEBLANC & WADDELL, L.L.C. Original Proceeding MEMORANDUM OPINION (1) LeBlanc & Waddell, L.L.C., seeks a writ of mandamus to compel the trial judge to vacate an order, entered May 20, 2004, that denies a motion to quash a deposition and orders the relator to submit to a deposition in the county of suit. The underlying litigation consists of a petition for declaratory judgment filed by Joseph C. Blanks, P.C., against LeBlanc & Waddell, L.L.C., Roger G. Worthington, P.C., and Herschel L. Hobson. The relator filed a special appearance, and contends it cannot be compelled to submit to a deposition in the State of Texas because it is not a party to the suit while the issue of the trial court's jurisdiction over the relator remains unresolved. The relator did not contend in the trial court that it would be unduly burdensome to travel from Baton Rouge, Louisiana, to Woodville, Texas, to engage in discovery. A Texas court may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). A nonresident defendant may file a special appearance for the purpose of objecting to the court's jurisdiction on the ground that the defendant is not amenable to process issued by the courts of this state. Tex. R. Civ. P. 120a. The purpose of Rule 120a is to allow a defendant to make a special appearance in a case in order to attack the court's jurisdiction over the defendant without being subjected to the jurisdiction of the court generally. C.W. Brown Mach. Shop, Inc. v. Stanley Machinery Corp., 670 S.W.2d 791, 793 (Tex. App.--Fort Worth 1984, no writ). The use of discovery processes does not constitute a waiver of a special appearance filed by a nonresident defendant. Tex. R. Civ. P. 120a. The relator's only argument is that it is not yet a party to the litigation because the trial court has not ruled on its special appearance, and therefore it must be subpoenaed in Louisiana under Louisiana law. By filing a Rule 120a special appearance, however, the relator subjected itself to the jurisdiction of Texas courts for the special purpose of determining in personam jurisdiction. While relator argues in its response brief on appeal that the travel costs from Baton Rouge should be considered, relator did not present that issue to the trial court. The sole issue we decide is whether the filing of a special appearance subjects a party to the jurisdiction of the court for the limited purpose of determining the court's jurisdiction. The proposed discovery is directly and exclusively related to the special appearance. Therefore, the trial court does not lack the power to order the relator to submit to participate in discovery confined to the special appearance and its order is not void. The petition for writ of mandamus, filed June 21, 2004, is denied. WRIT DENIED PER CURIAM Opinion Delivered July 22, 2004 Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4.