Douglas J. Pahl v. Don Swaim, P.C.

Dismiss and Opinion Filed July 26, 2013

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01438-CV

DOUGLAS J. PAHL, Appellant V. DON SWAIM, P.C., Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC 10-16517

MEMORANDUM OPINION Before Justices O'Neill, FitzGerald, and Lang-Miers Opinion by Justice FitzGerald

This appeal arises from the trial court’s denial of appellant’s special appearance. Because

we conclude the notice of appeal was not timely filed, we dismiss for want of jurisdiction.

BACKGROUND

Appellees filed the underlying lawsuit on December 21, 2010. Appellant filed a special

appearance on April 4, 2011, but did not set it for hearing. Appellees set the special appearance

for a hearing on three occasions. On the day before the first two settings, appellant requested and

was granted a continuance. Although appellant also requested a continuance before the third and

final setting, the trial court denied the motion.

The trial court conducted a hearing on the special appearance, and on July 6, 2012 signed

an order denying appellant’s special appearance. On August 9, 2012, appellant filed a document

entitled “motion to reconsider defendants’ special appearance and amended and restated special

appearance.” At a hearing on September 24, 2012, the trial court entered an order denying the

“motion to reconsider defendant’s special appearance.” On October 15, 2012, appellant filed a

notice of appeal. The notice states, “after denial of his motion to reconsider and amended and

restated special appearance, [appellant] gives notice of his accelerated appeal from that certain

order denying [his] special appearance signed on September 24, 2012.”

Concerned that we lacked jurisdiction over this appeal, we requested jurisdictional

briefing, and upon receipt, tentatively concluded the court had jurisdiction. Having fully

considered the jurisdictional issue, we conclude for the reasons that follow the Court lacks

jurisdiction over this appeal.

DISCUSSION

An order granting or denying a special appearance is an interlocutory, appealable order.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West Supp. 2012). Interlocutory appeals are

accelerated. TEX. R. APP. P. 28.1. A notice of appeal in an accelerated appeal must be filed within

twenty days after the interlocutory order is signed. TEX. R. APP. P. 26.1(b).

In the present case, the order denying the special appearance was signed on July 6, 2012.

The notice of appeal was due on July 26, 2012. See TEX. R. APP. P. 26.1(b). Appellant did not file

his notice of appeal until October 15, 2012, and did not request an extension of time.

Appellant maintains his “first” special appearance was not presented at the July 6

hearing, and “by conducting the September 18, 2012 hearing and receiving evidence and

argument,” the trial court afforded him the opportunity to be heard on the special appearance.

The record reflects, however, that the trial judge expressly declined to re-open the evidence. The

judge permitted appellant to admit the affidavit attached to his initial special appearance because

she stated she had considered the affidavit in ruling on the special appearance. And the judge

allowed the admission of appellant’s amended affidavit because she noted that it was not –2

significantly different from the first. But there is no indication the court reconsidered the special

appearance on the merits. Indeed, the order makes clear the court denied the motion for

reconsideration.

Appellant argues the order designated in his notice of appeal must be “viewed in terms of

substance,” rather than the label assigned to it. While this proposition is generally true, here, the

title of the order is indicative of its substance. The title of the order states that it is a denial of

appellant’s motion for reconsideration. The body of the order states the court heard and

considered the motion to reconsider the special appearance, and that such motion is denied.

Thus, the substance of the order reflects that the court declined reconsideration of appellant’s

special appearance.

Interlocutory orders may be appealed only if permitted by statute and only to the extent

jurisdiction is conferred by statute. See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex.

2007). Statutes authorizing interlocutory appeals are strictly construed because they are a narrow

exception to the general rule that interlocutory orders are not immediately appealable. CMH

Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). An order denying a motion for

reconsideration is not an immediately appealable order. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(7); Diggs v. Knowledge Alliance, Inc, 176 S.W.3d 463, 464 (Tex. App.—Houston

[1st Dist.] 2004, no pet.) (stating court lacked jurisdiction over interlocutory appeal because

motion to reconsider order granting special appearance is not “independently appealable”); see

also Denton Cnty v. Huther, 43 S.W.3d 665, 667 (Tex. App.—Fort Worth 2001, no pet.)

(holding order denying motion to reconsider and renewed plea to the jurisdiction not an

appealable interlocutory order). As the supreme court has observed, “allowing interlocutory

appeals whenever a trial court refuses to change its mind . . . would invite successive appeals and –3

undermine the statute’s purpose in promoting judicial economy.” Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 355, 358 (Tex. 2001).

Finally, appellant argues that the rules permit an amendment to a special appearance. See

TEX. R. CIV. P. 120a. But the rule is more specific than appellant’s argument suggests. Read in its

proper context, the rule provides for amendment to a special appearance to cure defects.1 Here,

the amendment did not cure a defect. Instead, the amended affidavit simply added more facts,

and as the trial judge observed, was not materially different from the original. Ultimately,

however, the issue is not whether appellant had the right to amend the special appearance, but

rather the effect of such an amendment on the appellate timetable.

In City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (per curium), the

supreme court answered this question in connection with a plea to the jurisdiction. Specifically,

the court considered the deadline to appeal an order denying a plea to the jurisdiction when an

amended plea had been filed. The court concluded the appellate deadline should be calculated

from the date of the original order rather than a second order denying the subsequent plea. Id. In

reaching its conclusion, the court noted that the renewed plea was “substantially a motion to

reconsider the denial of [the original] plea.” Id. Because the interlocutory appeal was based on

the denial of the amended plea, the court concluded it was not timely and the appellate court

lacked jurisdiction over the appeal. Id. The court observed that “[p]ermitting appeals under

circumstances such as these would effectively eliminate the requirement that appeals from

interlocutory orders must be filed within twenty days after the challenged order is signed.” Id.

(citations omitted). The right to an interlocutory appeal in a plea to the jurisdiction arises under

the same statutory authority as the right to appeal a special appearance; therefore, we see no

1 TEX. R. CIV. P. 120a provides, in pertinent part, that a special appearance “shall be made by sworn motion filed prior to motion to transfer venue or any other plea . . . and may be amended to cure defects . . . .”

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reason why this rationale would not apply with equal force in the case at bar. See TEX. CIV.

PRAC. & REM. CODE ANN. §51.014(a) (7), (8).

We are to construe the rules of appellate procedure reasonably and liberally so that the

right to appeal is not lost by imposing requirements not absolutely necessary to effectuate the

purpose of a rule. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). Nevertheless,

we are prohibited from enlarging the scope of our jurisdiction by enlarging the time for

perfecting an appeal in a civil case in a manner not provided for by rule. See TEX. R. APP. P. 2; In

re T.W., 89 S.W.3d 641, 642 (Tex. App.—Amarillo 2002, no pet.). Because this Court is not

authorized to extend the time for perfecting an appeal except as provided by Texas Rules of

Appellate Procedure 26.1 and 26.3, and appellant’s notice of appeal was not timely filed, we

dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

121438F.P05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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S Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

DOUGLAS J. PAHL, Appellant On Appeal from the 191st Judicial District Court, Dallas County, Texas No. 05-12-01438-CV V. Trial Court Cause No. DC 10-16517. Opinion delivered by Justice FitzGerald. DON SWAIM, P.C., Appellee Justices O'Neill and Lang-Miers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is DISMISSED for want of jurisdiction. It is ORDERED that appellee DON SWAIM, P.C. recover his costs of this appeal from appellant DOUGLAS J. PAHL.

Judgment entered July 26, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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