Tobey Waggoner v. Lead Generation, LLC

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00785-CV

Tobey WAGGONER, Appellant

v.

LEAD GENERATION AND MARKETING, LLC, Appellee

From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-09405 Honorable Barbara Hanson Nellermoe, Judge Presiding

PER CURIAM

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: December 21, 2012

DISMISSED FOR WANT OF JURISDICTION

On June 8, 2012, appellee Lead Generation and Marketing, LLC sued appellant Tobey

Waggoner and other defendants for various civil causes of action. On November 6, 2012,

Appellant’s counsel’s assistant electronically filed a special appearance approximately nine

minutes after the trial court called for announcements in the default judgment hearing. Appellant

did not present a copy of the special appearance to opposing counsel or the court. The trial court

was unable to confirm that the special appearance had been filed, and it granted a default 04-12-00785-CV

judgment in favor of appellee. The default judgment did not dispose of all parties and claims in

the underlying suit.

On November 20, 2012, Appellant filed a notice of appeal “from an Interlocutory Order

. . . that, ‘in effect,’ denied [his] Special Appearance.” In response to Appellant’s motions, on

November 30, 2012, we stayed all discovery with respect to Appellant, and on December 7,

2012, we stayed all further proceedings in the underlying suit pending resolution of this appeal—

numbered 04-12-00785-CV.

On December 7, 2012, Appellee filed a motion to dismiss this appeal for want of

jurisdiction. Appellee asserts that this court lacks jurisdiction in this appeal because the trial

court did not consider or deny Appellant’s special appearance.

A party may appeal a district court’s interlocutory order that denies a special appearance.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West Supp. 2012); see BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). However, the record does not show that the

trial court considered or denied the special appearance. Further, the November 6, 2012 default

judgment does not dispose of all pending parties and claims. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001). Therefore, we lack jurisdiction over this appeal. See BMC

Software Belg., 83 S.W.3d at 793; Lehmann, 39 S.W.3d at 195.

Appellee’s motion is granted. We withdraw our November 30, 2012 and December 7,

2012 orders in this appeal, and we dismiss this appeal for want of jurisdiction. See BMC

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