                                MEMORANDUM OPINION
                                       No. 04-11-00634-CV

                                 OASIS AT FIVE PALMS, LLC,
                                          Appellant

                                                 v.

 William C. LANGE, Stacey J. Lange, Kristofer J. Lange, Joseph G. Pascua, Frank E. Perkins,
    Judy L. Schulmire, Brad A. Russell, Michael D. Garber, P.C., and Michael D. Garber,
                                         Appellees

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 10-522-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: February 8, 2012

AFFIRMED

           This is an accelerated appeal from the trial court’s order sustaining the special

appearances filed by appellees Stacy Lange and Brad Russell. On appeal, appellant asserts the

trial court erred because Lange and Russell violated Texas Rule of Civil Procedure 120a by

filing and obtaining rulings on pleas in abatement and a motion for continuance before their
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special appearances were “heard and determined.” Because we conclude that neither Lange nor

Russell waived their special appearance, we affirm the trial court’s order. 1

                                       SPECIAL APPEARANCE

        Rule 120a requires that “[a]ny motion to challenge the jurisdiction provided for herein

shall be heard and determined before a motion to transfer venue or any other plea or pleading

may be heard.” TEX. R. CIV. P. 120a.2. Failure to comply with Rule 120a results in waiver of

the special appearance. A party enters a general appearance and waives a special appearance

“when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction,

(2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from

the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson–Austin v.

Austin, 968 S.W.2d 319, 322 (Tex. 1998). The test for a general appearance is whether a party

requests affirmative relief inconsistent with an assertion that the trial court lacks jurisdiction.

Dawson–Austin, 968 S.W.2d at 323. Although Rule 120a allows a defendant to file other

motions subsequent to the special appearance, the rule contains no exception allowing a

defendant to set and argue other motions before the special appearance is determined. See TEX.

R. CIV. P. 120a.2 (expressly stating that special appearance “shall be heard and determined”

before any other pleading or motion).

                             LANGE’S DTPA PLEA IN ABATEMENT

        On March 1, 2010, appellant filed suit against a variety of defendants, including Lange

and Russell, alleging negligence, negligent misrepresentation, breach of contract, common law

fraud, fraud by non-disclosure, and violations of the Texas Deceptive Trade Practices Act (“the

DTPA”). None of the defendants are Texas residents. On April 26, 2010, Lange and two other

1
  On appeal, appellant does not argue the merits of the trial court’s decision to grant the special appearances.
Instead, appellant argues only that the special appearances were waived.


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defendants (Harbor Funding Group, Inc. and William Lange) filed a “Plea in Abatement Subject

to Special Appearance” in which they asserted as follows:

               this cause must be abated for a period of sixty (60) days because
       [appellant] failed to provide written notice to Defendants prior to filing suit
       advising each Defendant in reasonable details of [appellant’s] specific complaint
       and the amount of economic damages, and expenses, including attorney’s fees, if
       any, reasonably incurred by [appellant] in asserting the claim against Defendants,
       as required by § 17.505, Texas Business & Commerce Code.

              Defendants were and are entitled to proper statutory notice in order to
       pursue settlement negotiations and to tender a settlement offer, as appropriate, in
       accordance with § 17.505(c), Texas Business & Commerce Code.

In early May 2010, appellant filed a “Motion for Docket Control Order” and a “Notice of

Hearing” setting the motion for May 20, 2010. Lange’s plea in abatement was not set for a

hearing.

       At the commencement of the May 20 hearing, appellant’s attorney stated he had filed a

motion for docket control order on his client’s behalf, but he noted to the court that Lange, and

two other defendants, had filed a plea in abatement regarding the notice provision in the DTPA.

When appellant’s attorney began to argue the merits of the plea, Lange’s attorney informed the

court that his clients had filed special appearances and were “in the state of Washington, subject

to special appearance.” The trial court heard further arguments and then granted the abatement

as to Lange only.

       On appeal, appellant asserts the hearing and ruling on Lange’s DTPA plea in abatement

invoked the trial court’s jurisdiction on a question other than personal jurisdiction and sought

affirmative relief from the court. Appellant contends that because the hearing and ruling violated

the “due order of hearing” rule, Lange waived her special appearance. Lange counters that the

trial court granted the abatement during the May 20 hearing held on appellant’s motion for a

docket control order, and it was at this hearing that appellant’s attorney—not Lange—raised the

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issue of the abatement and asked the court to rule. Therefore, Lange concludes that because she

neither sought affirmative relief from the court nor invoked the court’s ruling at the May 20

hearing, she did not waive her special appearance. We agree with Lange.

       It was appellant that first raised the issue of Lange’s request for an abatement at the

hearing on appellant’s request for a scheduling order. Lange did not set her plea in abatement for

a hearing, she did not raise the issue of the plea at the hearing requested by appellant, and she did

not ask the court to rule on the plea at the May 20 hearing. Therefore, we conclude Lange did

not seek affirmative relief inconsistent with her assertion that the trial court lacked jurisdiction

over her. Accordingly, the trial court’s ruling on Lange’s DTPA plea in abatement did not

constitute a general appearance such that she waived her special appearance.

           INDEFINITE ABATEMENT AND MOTION FOR CONTINUANCE

       About one year after the lawsuit was filed, Lange and Russell asked for an indefinite

abatement of the trial because two other defendants had been arrested and could not travel to

Texas for trial. Lange and Russell then filed a motion for continuance of the April 18, 2011 trial

setting, arguing defense counsel had a conflict of interest and because the other two defendants

were now under indictment in New York on criminal charges. Following an April 8, 2011

hearing, the trial court passed the April 18 trial setting, ordered counsel to set the special

appearances for hearing forty-five days out, and ordered counsel to obtain a trial setting ninety

days out. On appeal, appellant asserts that, similar to Lange’s request for an abatement under the

DTPA, the hearing and ruling on the request for an indefinite abatement and a continuance of the

trial setting were unrelated to the special appearance and, instead, addressed Lange’s and

Russell’s alleged inability to prepare for trial on the merits, which was scheduled for ten days

later. As a result, appellant argues Lange and Russell waived their special appearance.



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       At the hearing, Lange’s and Russell’s attorney explained he represented several of the

defendants in the lawsuit and an indefinite abatement was necessary because two of the

defendants were under criminal indictment and not available for trial. Counsel said he filed the

motion for continuance of the trial date in the event the abatement was denied. Counsel also

stated that he had, that very morning, filed a motion to withdraw because of a conflict that had

arisen. Apparently counsel represented both Lange and her husband William, but a conflict now

existed because Lange recently filed a petition for divorce. His motion to withdraw was also

based on the fact that the two defendants under federal indictment were not allowed to

communicate with each other except through their federal attorneys. Counsel stated he needed

either an abatement or a continuance to allow him time to withdraw from the case. After hearing

arguments, the trial court stated it would grant the abatement and pass the trial date, but the

parties were required to obtain a hearing date on the special appearance and a trial setting.

According to the court, this would “allow [counsel’s clients] an opportunity to get new counsel

and resolve the indictments.”

       At the hearing, appellant argued the requests for additional time were merely delaying

tactics on counsel’s part. However, there is no dispute that counsel was faced with a conflict

because he could no longer represent both Langes and he could no longer effectively represent

the other two defendants. We cannot conclude a party waives a special appearance when placed

in a position such as the one presented here. Lange and Russell had no choice but to request a

continuance of all matters pending their attorney’s resolution of the conflicts. Also, the trial

court clearly understood that the special appearance had to be considered before trial when it

ordered counsel to obtain a hearing date on the special appearance within forty-five days.




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Therefore, we conclude the filing of the plea in abatement and motion for a continuance did not

constitute a general appearance such that Lange or Russell waived their special appearance.

                                        CONCLUSION

       For the reasons stated above, we affirm the trial court’s Order on Defendants’ Special

Appearance Challenging Personal Jurisdiction.



                                                      Sandee Bryan Marion, Justice




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