Rod Mench Studios, LLC, Rod Mench and Semara Kane v. Joseph Robert Paciencia d/b/a Pipe's Dream--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00827-CV
ROD MENCH STUDIOS, LLC, Rod Mench and Semara Kane,
Appellants
v.
Joseph R. PACIENCIA d/b/a Pipe's Dream,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-15035
Honorable Michael P. Peden, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 30, 2007

 

AFFIRMED

In this accelerated appeal, we consider whether the defendants' answer filed subsequent to the denial of their special appearance, and before the filing of an amended special appearance, constitutes a general appearance. Because we hold that the defendants' answer constituted a general appearance, we affirm the judgment of the trial court.

 

Background

On September 9, 2006, Joseph Paciencia d/b/a Pipe's Dream sued Rod Mench Studios, LLC, Rod Mench, and Semara Kane (collectively "Mench") in Bexar County for breach of a franchise contract. Rod Mench Studios is located in Colorado, where the other defendants also reside. Mench filed a special appearance on October 9, 2006 and set a hearing seeking dismissal for lack of jurisdiction on October 16, 2006. At the hearing, the trial court overruled the special appearance because it was not verified as required by Rule 120(a). See Tex. R. Civ. P. 120(a). The same day, Mench filed an "Original Answer" in which he generally denied Paciencia's allegations and separately prayed for attorney's fees; the answer was not made subject to the special appearance. Fifteen days later, Mench filed an amended special appearance which was verified. After a second hearing on the special appearance, the trial court signed a written order denying the special appearance, stating "[t]he court finds that Defendants made a general appearance by filing an Original Answer before filing their Amended Special Appearance."

Analysis

On appeal, Mench argues that the answer containing a general denial and request for attorney's fees was not a request for affirmative relief constituting a general appearance; thus, the special appearance was not waived and the amendment cured the prior defect. Paciencia counters that 1) Mench's failure to cure the defect in his special appearance prior to filing an answer waived the special appearance, and 2) Mench's request for attorney's fees in his answer constitutes a general appearance subjecting Mench to the trial court's jurisdiction. We need not reach the issue regarding the request for attorney's fees because we agree that the filing of the answer before the amendment of the special appearance constituted a general appearance.

Rule 120a requires strict compliance. (1) Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.--Fort Worth 1995, no writ). Under the due order of pleading rule, a special appearance must be made by a sworn motion filed prior to any other plea, pleading, or motion that seeks affirmative relief; otherwise, a party makes a general appearance. Tex. R. App. P. 120a(1); Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998). It is well settled law that an answer constitutes a general appearance. Tex. R. Civ. P. 121; Baker v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003). "[O]nce a party has filed an answer or otherwise appeared, he is before the court for all purposes...." Von Briesen, Purtell & Roper, S.C. v. French, 78 S.W.3d 570, 575 (Tex. App.--Amarillo 2002, pet. dism'd w.o.j.). Although a party has the right to file an amended special appearance to "cure defects" such as the lack of verification, the amendment must be filed before there is a general appearance. Tex. R. Civ. P. 120a(1); Dawson-Austin, 968 S.W.2d at 322.

Although Mench correctly notes that Rule 120a authorizes the filing of other pleadings subsequent to a special appearance, the rule also provides that once a special appearance has been overruled, the objecting party thereafter appears generally. Tex. R. App. P. 120a(1), (4). Here, Mench's special appearance was overruled by the trial court, after which Mench filed his answer containing the general denial. (2)

Furthermore, Mench's answer did not state that it was "subject to" the special appearance, and it was filed fifteen days before the amended special appearance was filed. As such, Mench entered a general appearance before the special appearance was amended. Accordingly, the trial court did not err in denying Mench's special appearance. See American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (appellate court reviews de novo the trial court's determination to grant or deny a special appearance).

Because the special appearance was denied based on waiver, we need not address whether Mench is in fact subject to the jurisdiction of the Texas courts. The judgment of the trial court is affirmed.

 

Phylis J. Speedlin, Justice

1. Rule 120a(1) provides in pertinent part: "[A] special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State . . . . Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a 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; and may be amended to cure defects." Tex. R. Civ. P. 120a(1).

2. The answer read: "Now comes Rod Mench Studios, LLC, Rod Mench and Semara Kane, named defendants in the above entitled and numbered cause of action and file this their Original Answer as follows: GENERAL DENIAL Defendants each and individually generally deny all of the allegations set forth in Plaintiff's Original Petition and demand strict proof thereof by a preponderance of the credible evidence. WHEREFORE PREMISES CONSIDERED, Defendants pray for their attorney fees as damages incurred in defense of this suit, and separately pray for their attorney fees and costs incurred to the extent authorized by law or in equity. Defendants pray that Plaintiff take nothing for the claims asserted against the[m], and for all other and further relief to which they may be justly entitled, at law or in equity."