TRIAD REALTY SERVICES, LTD, BASIC CAPITAL MANAGEMENT, INC., NATIONAL OPERATING, L.P., EQK BRIDGEVIEW PLAZA, INC., TRANSCONTINENTAL REALTY INVESTORS, INC., AND EQK HOLDINGS, INC., Appellants v. MICHAEL GREEN, Appellee

REVERSE and REMAND; Opinion issued October 30, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01631-CV
............................
TRIAD REALTY SERVICES, LTD, BASIC CAPITAL MANAGEMENT, INC.,
NATIONAL OPERATING, L.P., EQK BRIDGEVIEW PLAZA, INC.,
TRANSCONTINENTAL REALTY INVESTORS, INC.,
AND EQK HOLDINGS, INC., Appellants
 
V.
MICHAEL GREEN, Appellee
.............................................................
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DV-04-12034-B
.............................................................
MEMORANDUM OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Appellants Triad Realty Services, Ltd., et al., appeal from the trial court's order dismissing their claims against appellee with prejudice. In two issues, appellants argue that appellee's pro se letter to the trial court waived a subsequent special appearance and the trial court erred in dismissing appellants' claims with prejudice. For the following reasons, we reverse and remand.
Background
        On December 1, 2004, appellants Triad Realty Services, Ltd., Transcontinental Realty Investors, Inc., Basic Capital Management, Inc., National Operating, L.P., EQK Bridgeview Plaza, Inc., and EQK Holdings, Inc., (Triad) brought suit against Michael Green and other defendants    See Footnote 1  for breach of fiduciary duty, breach of contract, conversion, alter ego, and conspiracy for claims arising out of a dispute involving a mortgaged shopping center. On February 16, 2005, Green wrote a pro se letter to the clerk of the trial court. The letter, which identified the style and cause number of the case, was filed two days later. It reads in part as follows:
 
To Whom it May Concern:
 
 
 
I have been named individually as a Defendant in the above referenced matter and was served with notice of the above referenced Citation on January 26, 2005. Pursuant to the Citation I am required to file an answer by Monday February 21st. I deny all of the allegations set forth against me in the Citation; however, due to the fact that I am an Illinois resident, I am still in the process of finding and retaining representation in Texas in order to file a complete answer to the Citation. Therefore, I hereby plead to the court for an extension of time, of an additional sixty (60) days, in order to find and retain representation in Texas in order to file a complete answer to the Citation. Thank you for your consideration.
 
The letter also contains Green's signature but not his address or telephone number.
        On June 9, 2005, Green filed a special appearance objecting to the trial court's jurisdiction. He also filed an answer subject to his special appearance. In his special appearance, Green claimed he was a resident and domiciliary of Illinois, that he had done no business in Texas, and he was not subject to personal jurisdiction in Texas. Triad claimed Green's letter to the court constituted a general appearance, thereby waiving his subsequent special appearance. After an associate judge overruled the special appearance, Green appealed the decision to the trial court. The trial court granted Green's motion objecting to jurisdiction and ordered “that all claims in the above-styled and numbered cause against Defendant Michael Green are dismissed for lack of personal jurisdiction with prejudice to the re-filing of same.” This appeal followed.
 
Analysis
        In its first issue, Triad argues that Green's pro se letter waived his subsequent special appearance because it did not comply with Texas Rule of Civil Procedure 120a, which governs special appearances.
        Rule 120a provides in part:
 
. . . [A] special appearance may be made by any party . . . 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 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. The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. Every appearance, prior to judgment, not in compliance with this rule is a general appearance.
 
Tex. R. Civ. P. 120a(1). Rule 120a also provides, “Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” Tex. R. Civ. P. 120a(2).
        On appeal we review de novo the trial court's determination to grant or deny a special appearance. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); BMC Software v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) . We review all evidence in the record to determine if the nonresident defendant negated all possible grounds for personal jurisdiction. N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.-Houston [1st Dist.] 2000, no pet.). When, as in this case, the trial court does not issue findings of fact or conclusions of law with its special appearance ruling, all facts necessary to support the trial court's judgment that are supported by the evidence must be implied. BMC Software, 83 S.W.3d at 795. Here, the relevant facts are not in dispute.         We agree with Triad that Green's letter was an answer. A defendant “who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.” Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (rejecting a technical definition or test for what constitutes an answer); see also N803RA, 11 S.W.3d at 367 (pro se pleadings are liberally construed). Green's letter acknowledged service of the lawsuit, contained the style and cause number of the case, and denied all of the plaintiffs' accusations. Green also signed the letter. The letter did not contain Green's address or telephone number. See Tex. R. Civ. P. 57 (“A party not represented by an attorney shall sign his pleadings, state his address, telephone number, and, if available, his telecopier number.”). However, it gave the trial “court a timely response acknowledging receipt and acceptance of [plaintiffs'] citation and petition.” Lippman, 826 S.W.2d at 138; see Gales v. Denis, 260 S.W.3d 22, 30 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (pro se letter filed with trial court and signed by defendant was an answer even though it did not contain address or telephone number because it acknowledged service, contained the cause number, correctly named most of the defendants and one of the plaintiffs, denied the accusations against him, and did not express any objections to jurisdiction); Guadalupe Econ. Services Corp. v. Dehoyos, 183 S.W.3d 712, 716 (Tex. App.-Austin 2005, no pet.) (pro se letter acknowledging receipt and acceptance of citation and petition and denying plaintiff's allegations was answer even though it failed to state cause number and additional defendants); Terehkov v. Cruz, 648 S.W.2d 441, 443 (Tex. App.-San Antonio 1983, no writ) (pro se answer was sufficient even though it contained only the defendant's signature, address, and assertion that it was not liable for plaintiff's claims); see also Harris v. Harris, 850 S.W.2d 241, 242-43 (Tex. App.-Houston [1st Dist.] 1993, no writ) (pro se letter was answer when defendant's address was included only on envelope letter was mailed in and it was unclear whether case number identification was written by defendant or by clerk's office employee).
        Citing N803RA, however, Green argues that his letter should not be construed to waive his special appearance. In N803RA, the court concluded that the defendant's pro se letter, while containing all of the elements necessary to make it an answer, did not waive his subsequent special appearance because the letter also contained a challenge to the trial court's jurisdiction. N803RA, 11 S.W.3d at 366-67. Thus, the letter functioned as both an answer and a special appearance. Id. at. 367. As the court noted, “[a] challenge to jurisdiction is allowed in the same instrument as an answer without waiving a special appearance.” Id. This distinguishes N803RA from the present case. In this case, Green's letter contained no challenges or even references to the trial court's jurisdiction.
        We therefore conclude that Green waived his special appearance. Green's letter constituted an answer but it did not comply with rule 120a because it did not claim he was not amenable to service of process by Texas courts. See Gales, 260 S.W.3d at 30 (citing Tex. R. Civ. P. 120a).
        We sustain Triad's first issue. We reverse the trial court's order and remand this cause to the trial court for further proceedings consistent with this opinion. We do not reach Triad's second issue.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
071631F.P05
 
Footnote 1 Green is the only appellee in this appeal.