Critter Control, Inc. and Kevin Clark v. Galt Strategis, LLC

Opinion

Dismissed and Opinion Filed October 5, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01011-CV

CRITTER CONTROL, INC. AND KEVIN CLARK, Appellants

V.

GALT STRATEGIES, LLC, Appellee

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-05281

MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Whitehill

This is an appeal from the trial court’s interlocutory order denying Critter Control, Inc.

and Kevin Clark’s (collectively, “Critter Control”) motion to withdraw and/or strike original

answer in favor of a subsequently filed “special appearance and objection to jurisdiction and

original answer subject thereto.” Characterizing the order as an order denying the special

appearance, Critter Control asserts this appeal is authorized by section 51.014(a)(7) of the Texas

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(7)

(West 2015). Disagreeing with Critter Control’s characterization, Galt Strategies, LLC has filed

a motion to dismiss the appeal for lack of jurisdiction. We have jurisdiction to consider an immediate appeal of an interlocutory order only

when authorized by statute. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

Because an appeal from an interlocutory order is an exception to the general rule that appeals

may only be taken from final judgments, we strictly construe statutes authorizing interlocutory

appeals. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007).

Section 51.014(a)(7) of the civil practice and remedies code allows an appeal from an

interlocutory order granting or denying a special appearance of a defendant under rule 120a of

the Texas Rules of Civil Procedure, except in a suit under the Family Code. TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014 (a)(7). Rule 120a allows a nonresident defendant to challenge the

power of the trial court to exercise jurisdiction over his person or property. See Kawasaki Steel

Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985); Trenz v. Peter Paul Petroleum Co., 388

S.W.3d 796, 805-06 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

A review of Critter Control’s motion to withdraw and/or strike reveals argument only

with respect to why the trial court should withdraw the original answer in favor of the

subsequently filed special appearance. It does not address why the trial court lacks personal

jurisdiction over it. Further, at the hearing on the motion, a record of which Galt attached to its

motion to dismiss, the parties argued only whether the original answer should be withdrawn.

Galt’s motion to dismiss has been on file for more than ten days, and no response from

Critter Control has been filed. Because the record before us does not reflect the trial court

considered the merits of the special appearance, we cannot agree section 51.014(a)(7) of the civil

practice and remedies code authorizes this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(7); Koseoglu, 233 S.W.3d at 841.

–2– Accordingly, we grant Galt’s motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).

151101F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CRITTER CONTROL, INC. AND KEVIN On Appeal from the 162nd Judicial District CLARK, Appellants Court, Dallas County, Texas Trial Court Cause No. DC-15-05281. No. 05-15-01011-CV V. Opinion delivered by Justice Whitehill. Justices Lang and Evans participating. GALT STRATEGIES, LLC, Appellee

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER appellee Galt Strategies, LLC recover its costs, if any, of this appeal from appellants Critter Control, Inc. and Kevin Clark.

Judgment entered October 5, 2015.

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