Thomas J. Gesswein v. Sharon L. Gesswein

• Court: Court of Appeals of Texas
• Decided: June 22, 2018
• Docket: 13-18-00252-CV
• Status: Published

Opinion

NUMBER 13-18-00252-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS J. GESSWEIN, Appellant,

v.

SHARON L. GESSWEIN, Appellee.

On appeal from the County Court at Law No. 6 of Hidalgo County, Texas.

ORDER

Before Chief Justice Valdez and Justices Rodriguez and Benavides Order Per Curiam

This cause is before the Court on consideration of appellant Thomas J. Gesswein’s

Amended Motion to Stay Trial. By his motion, Thomas asks the Court to stay

proceedings in the trial court pending resolution of his interlocutory appeal.

On interlocutory appeal, Thomas challenges the denial of his special appearance

in the lawsuit filed by his former spouse Sharon L. Gesswein. The Civil Practice and Remedies Code provides for an appeal from an interlocutory order which “grants or

denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil

Procedure, except in a suit brought under the Family Code . . . .” TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(7) (West, Westlaw through 2017 1st C.S.).

An interlocutory appeal under this section automatically stays the commencement

of a trial pending resolution of the appeal. See id. § 51.014(b). “[T]he stay set forth in

section 51.014 is statutory and allows no room for discretion.” In re Univ. of Incarnate

Word, 469 S.W.3d 255, 259 (Tex. App.—San Antonio 2015, orig. proceeding).

The automatic stay is only available, however, when the special appearance was

filed, and a hearing requested, within a defined timeframe. See In re Tex. Dep’t of

Transp., 510 S.W.3d 701, 705 (Tex. App.—El Paso 2016, orig. proceeding). To trigger

the automatic stay, the special appearance must have been filed and a hearing requested

no later than the date set in a scheduling order, if any, or 180 days after the defendant’s

first responsive pleading. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(c); Incarnate

Word, 469 S.W.3d at 258.

The record reveals that Thomas’s special appearance was filed within the required

180-day window: there was no scheduling order; Thomas filed his special appearance

on January 16, 2018; and the hearing on the special appearance took place on April 12,

2018, well within 180 days of his special appearance. Because Thomas timely filed and

requested a hearing on his special appearance, his interlocutory appeal automatically

triggered a stay of any trial in the county court. See Incarnate Word, 469 S.W.3d at 258.

2 This Court, having fully examined and considered Thomas’s motion, believes it should be

granted with an order recognizing the automatic stay.

Accordingly, Thomas’s motion is hereby GRANTED, and it is ORDERED that

commencement of a trial in the county court be stayed.

PER CURIAM

Delivered and filed the 22nd day of June, 2018.