Tobey Waggoner v. Lead Generation, LLC ( 2012 )

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