D'Juana Forster Parr v. Brian K. Parr--Appeal from County Court at Law No. 3 of Montgomery County

Opinion filed December 20, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-06-00150-CV

__________

 D=JUANA FORSTER PARR, Appellant

V.

BRIAN K. PARR, Appellee

On Appeal from the County Court at Law No. 3

Montgomery County, Texas

Trial Court Cause No. 05-03-02028

M E M O R A N D U M O P I N I O N

D=Juana Forster Parr appeals from the trial court=s order granting Brian K. Parr=s special appearance and dismissing D=Juana=s divorce action with prejudice. We modify and affirm.

D=Juana filed a divorce action in Montgomery County on April 11, 2005, naming Brian as respondent. The trial court received a letter from Brian on June 7, 2005, in which he stated:

I am faxing to you documentation verifying that the named parties have been divorced since May 3, 2001. Please contact me immediately upon receipt of this letter once the documentation has been reviewed by the Court.

Brian sent a copy of the parties= final decree of divorce issued in Harris County. Brian filed a special appearance on June 8, 2005, challenging the personal jurisdiction of the Montgomery County Court and arguing that venue was not proper in Montgomery County. Bryan further alleged that the 247th Judicial District Court of Harris County maintained exclusive jurisdiction over the matter. After a hearing on the special appearance, the trial court entered an order in which it found that:

[T]he 247th Judicial District Court of Harris County, Texas has continuing, exclusive jurisdiction over the Child the subject matter of this suit and also FINDS that the 247th District Court has never lost continuing, exclusive jurisdiction of the Child. This Court further FINDS that these parties were never remarried after the 247th Judicial District Court of Harris County, Texas signed a Final Divorce Decree on May 8, 2001.

The trial court sustained Brian=s special appearance and dismissed the divorce petition with prejudice. It is from this order that D=Juana appeals.

In two issues on appeal, D=Juana argues that Brian waived his special appearance. D=Juana first contends that Brian waived his special appearance by filing a pleading with the trial court one day prior to filing his motion for special appearance. Tex. R. Civ. P. 120a provides that a special appearance Ashall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion.@ D=Juana argues that Brian=s June 7 letter with the attached copy of the divorce decree was a pleading seeking to have the cause dismissed and that, therefore, Brian waived his special appearance.

To constitute an answer or an appearance, an act of a party in an action must seek a judgment or an adjudication by the court on some question. Letersky v. Letersky, 820 S.W.2d 12, 14 (Tex. App.CEastland 1991, no writ). A general appearance is entered whenever a party invokes the judgment of the court on any question other than that of the court=s jurisdiction. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Letersky, 820 S.W.2d at 14. Within narrow limits, a party may take certain actions relating to the case without entering an appearance under the theory that such actions do not recognize or invoke the court=s power in the action. Austin, 968 S.W.2d at 322; Letersky, 820 S.W.2d at 14. Brian did not seek a judgment or adjudication by sending the trial court a letter and a copy of the final decree of divorce. Brian did not make a general appearance, and he did not waive his special appearance. D=Juana=s first issue on appeal is overruled.

D=Juana next argues that Brian waived his special appearance by seeking affirmative relief prior to obtaining a ruling on his special appearance. In his motion for special appearance, Brian challenged the jurisdiction of the Montgomery County Court and, subject to the special appearance, made other allegations and requested relief. A special appearance shall be made by sworn motion prior to filing any other pleading or motion, and Aa motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument.@ Rule 120a. D=Juana contends that Brian sought affirmative relief prior to obtaining a ruling on his special appearance in violation of Rule 120a(2). The trial court held a hearing on the special appearance and later issued an order sustaining the special appearance and dismissing the divorce action. The record does not support D=Juana=s argument that Brian waived his special appearance under Rule 120a(2). D=Juana=s second issue on appeal is overruled.

In her third issue on appeal, D=Juana argues that the trial court erred in dismissing the divorce action in the same order in which it sustained Brian=s special appearance. In its order, the trial court states that the special appearance Ais sustained and that the above referenced divorce action is dismissed with prejudice.@ An order dismissing claims for lack of personal jurisdiction precludes relitigation of the jurisdictional issues that were actually litigated and essential to the dismissal; however, such an order does not preclude a second action asserting the same claims in a court that can establish personal jurisdiction based on issues that were not decided in the first action. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999); Nguyen v. Desai, 132 S.W.3d 115, 118 (Tex. App.CHouston [14th Dist.] 2004, no pet.). A dismissal of a suit for lack of personal jurisdiction does not always preclude the assertion of personal jurisdiction in a second suit involving the same or similar claims. Nguyen, 132 S.W.3d at 119. In its order, the trial court should have sustained the special appearance and dismissed the claim for lack of personal jurisdiction. See id. D=Juana=s third issue on appeal is sustained.

We modify the order to reflect that Brian=s special appearance is sustained and that the cause is dismissed for lack of personal jurisdiction. The order, as modified, is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 20, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.