Bobby Dane v. John D. Chavers and Dennis Chavers--Appeal from County Court at Law No. 5 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Bobby Dane

Appellant

Vs. No. 11-01-00315-CV B Appeal from Dallas County

John D. Chavers and Dennis Chavers

Appellees

Bobby Dane appeals from the trial court=s order sustaining the special appearance of appellees, John D. Chavers and Dennis Chavers.[1] The trial court ruled that it had no jurisdiction over the person of appellees. We affirm.

Appellant filed suit against appellees in Dallas County urging several causes of action resulting from appellees= acts in converting a commercial bus for appellant=s personal use and travel. Appellees filed a special appearance pursuant to TEX.R.CIV.P. 120a, objecting to the trial court=s jurisdiction. The trial court=s docket sheet reflects that appellees= Rule 120a motion was heard by the court on June 18, 1999. The docket sheet reflects the name and telephone number of the court reporter who was apparently present for the hearing. The docket sheet reflects that the court determined that it did not have jurisdiction over the appellees. No formal order granting appellees= motion was entered at that time. Thereafter, appellant filed a motion requesting the court to reconsider its ruling. On March 7, 2001, the trial court entered the following order which provides in pertinent part:

On June 18, 1999 this Court held a hearing on the special appearances filed by each of the defendants. After considering the evidence and the argument of counsel, the Court sustained the special appearances of the individual defendants....Before the Court signed an order reflecting its ruling, the plaintiff filed a motion to reconsider.

On February 16, 2001 this Court held a hearing on the motion to reconsider. After hearing the argument of counsel, the Court finds that the motion is not meritorious and should be denied.

IT IS THEREFORE ORDERED THAT the motion to reconsider is DENIED.

IT IS FURTHER ORDERED THAT the special appearances of Defendants John D. Chavers...and Dennis Chavers are sustained, the Court having found that it lacks jurisdiction over the person of said defendants.

Appellant first argues that appellees waived their objections to personal jurisdiction because appellees filed an unsworn special appearance and an original answer on March 25, 1999. Appellees did not correct the defective unsworn special appearance until June 18, 1999. Therefore, appellant argues that the special appearance of appellees was filed after the appellees filed their original answer. The clerk=s record shows that appellees= special appearance was filed on March 25, 1999, at A10:51 a.m.@ Appellees= general denial original answers were filed on March 25, 1999, at A10:58 a.m.@ Our Supreme Court in Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998), rejected the argument asserted by appellant. The court in Dawson stated:

Austin argues that Dawson-Austin made a general appearance by filing a motion to quash service, a plea to the jurisdiction, and a plea in abatement, all in the same instrument with the special appearance and all following the special appearance in the instrument, but none expressly made subject to the special appearance. The district court agreed with this argument; the court of appeals did not address it. The argument is contrary to Rule 120a, which states: Aa motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance.@ The rule makes matters in the same instrument and subsequent matters subject to the special appearance without an express statement to that effect for each matter. (Emphasis added)

Appellees did not waive their special appearance.

We also disagree with appellant=s contention that appellees= special appearance motion referred only to appellant=s contract cause of action. Appellees= motion was made to the Aentire proceeding.@

Appellant urges that the trial court improperly sustained appellees= special appearance because appellees had sufficient contacts with the State of Texas and because appellees failed to negate all bases of jurisdiction of Texas courts. The clerk=s record reflects that a court reporter was present at the June 18, 1999, special appearance hearing. The court=s order on March 7, 2001, states that, after Aconsidering the evidence,@ the court sustained the special appearance of appellees. Our record on appeal contains no reporter=s record; therefore, we must presume that sufficient evidence was introduced to support the ruling of the trial court.[2] Lane v. Fair Stores, 243 S.W.2d 683 (Tex.1951); Poe v. San Antonio Express-News Corporation, 590 S.W.2d 537, 543 (Tex.Civ.App. - San Antonio 1979 , writ ref=d n.r.e.); Cevallos v. Maverick, 572 S.W.2d 353 (Tex.Civ.App. - San Antonio 1978, no writ); Overmyer v. Eliot Realty, Inc., 571 S.W.2d 381 (Tex.Civ.App. - Texarkana 1978, no writ); and Zemke v. Stevens, 494 S.W.2d 227 (Tex.Civ.App. - Eastland 1973, no writ).

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

March 28, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.[3]

[1]Brenda Chavers, who was an original defendant in this case, is not a party to this appeal. This court severed and abated appellant=s claim as to Brenda Chavers. See Cause No. 11-01-00127-CV.

[2]Appellant originally requested that the court reporter prepare the record. Later, appellant directed the reporter not to prepare the record. Appellant did not file an affidavit of inability to pay costs on appeal. TEX.R.APP.P. 37.3(c).

[3]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.