Opinion
No. 05-03-01438-CV
Opinion Filed December 1, 2003.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-1295-01.
Before Justices MORRIS, WRIGHT, and RICHTER.
MEMORANDUM OPINION
Appellants have filed a September 29, 2003 notice of appeal of the trial court's September 9, 2003 "Order Denying Defendant's Special Appearance Motion to Dismiss." An order granting or denying the special appearance of a defendant under Texas civil procedure rule 120a is one of several interlocutory orders which may be appealed as provided by Section 51.014 of the Texas Civil Practice and Remedies Code. Civil procedure rule 120a provides that "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 issued by the courts of this State." Appellants' special appearance and their motion to dismiss do not challenge that they are not amenable to process issued by a Texas court. In fact, the motion states that Jerry's Custom Designed Homes is a Texas corporation and contains no assertion that Jerry Moore is not a Texas resident.
After reviewing the record filed on November 3, 2003, the Court questioned whether the order on appeal constituted the denial of the special appearance of a defendant under civil procedure rule 120a. By letter dated November 5, 2003, we directed appellants to file a jurisdictional letter brief. In response, appellants filed a November 18, 2003 motion to abate appeal as to Jerry Moody and motion to dismiss appeal as to Jerry's Custom Designed Homes, Inc. In the motion, appellants provide no explanation for the Court's jurisdiction to consider the interlocutory order on appeal and do not clearly state the purpose of abating this appeal as to Mr. Moore.
Although the order on appeal is labeled "Order Denying Defendant's Special Appearance Motion to Dismiss," it summarizes the issues before the trial court as follows:
On August 22, 2003, the court considered the merits of the defendant's claim that this lawsuit should be dismissed because of lack of jurisdiction because of, among other reasons, he had not been served with citation, he was not a party to the suit, and was not the same as the name sued as the defendant.
Issues regarding service of citation, proper parties to the suit, and misnomer or misidentification of parties are not matters that can be properly raised by a rule 120a special appearance. See Tex. R. Civ. P. 120a. "When a pleading is mistakenly designated, we look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of THE title given to it." Moore v. Collins 897 S.W.2d 496,499 (Tex. App.-Houston [1st Dist.] 1995, no writ) (citing Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) (plea in abatement was actually plea to the jurisdiction)). The issues brought to this Court's for its review do not include the issue of the defendants' amenability to process in a Texas court and the order on appeal does not constitute the denial of a special appearance. The trial court's "Order Denying Defendant's Special Appearance Motion to Dismiss" is not an order that may be appealed on an interlocutory basis and is not a final judgment. The Court is without jurisdiction to consider this appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014 (Vernon Supp. 2004); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). On the Court's own motion, we DISMISS this appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a). We DENY appellants' motion to abate and to dismiss as moot.