. . Defendant Ruben Garza received Plaintiffs Original Petition on March 5, 2012, for Summersett …. It is in the course of Knapp Medical Center’s (the "Hospital’s") business that Garza routinely accepts service on behalf of the Hospital …. After receipt of Plaintiff’s Original Petition, Garza then realized that he and Summersett were being sued in their individual capacity . . . . Though he was never personally served, sometime later, Summersett received Plaintiff’s Original petition from Garza. (footnote omitted). In a footnote, Summersett alleged that he had made his appearance in the suit on March 19, 2012, when he had filed an agreed order. In so alleging, Summersett provided citation to Texas Rule of Civil Procedure 120. See Tex. R. Civ. P. 120. Summersett thus requested an extension of time to file the motion to dismiss.
Summersett supported his motion for leave with his personal affidavit in which he stated that he had "never been personally served by a process server, " that "in the regular course of business, " Garza regularly accepted service on behalf of Knapp, and that on March 5, "Garza received a citation intended for me, " and "[s]ometime later, I received the citation and Petition from Mr. Garza." Summersett also included the executed officer’s return for the citation stating that personal service was made on Summersett on March 5, 2012. Summersett also included an affidavit filed by one of his lawyers discussing the foregoing matters, disagreeing that the statutory deadline for filing the motion to dismiss had expired but stating that if the motion to dismiss was filed after the deadline, the error was not intentional and the "uncertainty" regarding the "effective date of service contributed to the mistake."
In response to the motion to dismiss, Jaiyeola filed a motion for sanctions against Summersett’s counsel under Rule 13 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 13 (providing sanctions for pleadings that are groundless or brought in bad faith or for the purposes of harassment). Jaiyeola contended that the motion to dismiss was groundless and Summersett’s attorney was "using a motion with an automatic discovery stay provision to further delay this case and the Plaintiff from obtaining information necessary to the prosecution of her case."[3]
The trial court held a hearing on the motion to dismiss that began on May 21, 2012, but was recessed and concluded on June 6, 2012. The court took judicial notice of the contents of its file and admitted evidence pertaining to the issue of service of citation and the merits of the motion to dismiss. Included in the evidence was an affidavit from Garza stating that Summersett did not authorize him to accept service on "his personal behalf."
The trial court informed the parties that he was denying the motion for leave, and questioned whether that disposed of the motion for sanctions. The court ultimately ruled that the motion for sanctions "is denied if it’s not moot."
With regard to the motion to dismiss, the trial court initially stated that "I will rule that it is dismissed by operation of law." After subsequent argument by counsel for Jaiyeola, the trial court stated "I have specifically ruled that the Motion for Leave is denied. And my thought was that that rendered the matter of the Motion to Dismiss moot, or alternatively, that it was by operation of law." After further discussion, the court retracted its earlier oral ruling and stated that "[t]he only order I’m entering today is that the Motion for Leave is denied." The trial court entered a written order denying the motion for leave that same day. The trial court did not enter a ruling, either orally or in writing, on the motion to dismiss itself.
III. Jurisdiction
Jaiyeola has filed a motion to dismiss this appeal on grounds that (1) there is no statutory right to appeal the denial of a motion for leave or motion for extension of time, or alternatively, (2) the appeal was not timely filed because if such a right to appeal existed, it would be governed by the general rules for interlocutory appeals rather than the statutory rules for appeals under the TCPA. Compare Tex. R. App. P. 26.1(b) (requiring the notice of appeal in an accelerated appeal to be filed within twenty days), with Tex. Civ. Prac. & Rem. Code Ann. § 27.008(c) (requiring the notice of appeal under the statute to be filed within sixty days). Summersett has filed a response to the motion to dismiss, and Jaiyeola has filed a reply thereto.
The cases that have discussed the statutory right to appeal under this section to date have not addressed whether or not the statute provides for an appeal of a denial of a motion for leave or motion for extension of time. Currently, the cases that have addressed the scope of the right to appeal have disagreed regarding whether the statute provides for interlocutory appeals when the motion to dismiss is overruled both by express order and by operation of law. Compare San Jacinto Title Servs. of Corpus Christi, LLC v. Kingsley Props., LP, No. 13-12-00352-CV, 2013 Tex.App. LEXIS 5081, at *15 (Tex. App.—Corpus Christi April 25, 2013, no pet. h.) (motion for rehearing pending) (concluding that the statute allows an interlocutory appeal whether the motion to dismiss is determined by express order or by operation of law), and Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-CV, 2013 Tex.App. LEXIS 1898, at *8 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (op. on order) (same), with Jennings, 378 S.W.3d at 529 (concluding that the statute does not allow an interlocutory appeal when the motion to dismiss is determined by express order), and Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 Tex.App. LEXIS 7059, at *2 (Tex. App.—Fort Worth Aug. 23, 2012, pet. filed) (same). Based on statutory construction, we have already determined that an appellant may appeal either the express denial of a motion to dismiss or the trial court’s failure to rule on a motion to dismiss within the statutory time limit. San Jacinto Title Servs. of Corpus Christi, LLC, 2013 Tex.App. LEXIS 5081, at *15. The statute does not expressly address whether there is a right to appeal motions for extension of time.
In construing a statute, our primary objective is to give effect to the legislature’s intent. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009)). In determining the legislature’s intent, we begin by looking to the plain meaning of the statute’s words. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex. 2007); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). "The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results." Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); Tex. Lottery Comm’n, 325 S.W.3d at 635.
In the instant case, the statute expressly provides that if the trial court does not rule on "a motion to dismiss" in the time prescribed by section 27.005, that is, "not later than the 30th day following the date on the hearing on the motion, " the motion is "denied by operation of law" and "the moving party may appeal." Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a). The statute directs the appellate courts to "expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005." See id. § 27.008(b). The statute includes an express and specific deadline for appeals under the statute: an "appeal or other writ under this section must be filed on or before the 60th day after the date the trial court’s order is signed or the time prescribed by Section 27.005 expires, as applicable." See id. § 27.008(c). The statute makes no appellate provisions regarding motions for extension of time to file a motion to dismiss, and the specific language allowing for an appeal is limited to the trial court’s ruling, or lack thereof, on the motion to dismiss itself.
Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides such jurisdiction. Koseoglu, 233 S.W.3d at 840; Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). We strictly construe statutes that provide for interlocutory appeal as "narrow exception[s] to the general rule that only final judgments are appealable." Koseoglu, 233 S.W.3d at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). The question of jurisdiction is a question of law, which we review de novo. Koseoglu, 233 S.W.3d at 840; State v. Holland, 221 S.W.3d 639, 642 (Tex. 2006).
Thus, while we construe the substantive provisions of the TCPA "liberally" to "fully" effectuate its purpose and intent, see Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b), we narrowly and strictly construe the interlocutory right to appeal under the TCPA. Koseoglu, 233 S.W.3d at 841. Thus, we conclude that the statute does not "explicitly" grant the right to appeal from the denial of motions for leave to file a motion to dismiss. See Koseoglu, 233 S.W.3d at 840-41. Our inquiry does not end here, however, because on appeal, Summersett contends that the trial court "expressly ruled that he would allow the Motion to Dismiss to be denied ‘by operation of law’ under Texas Civil Practice and Remedies Code § 27.008(a)."
This contention is rebutted by the hearing transcript. At the hearing, the trial court expressly ruled that "I’m denying the Motion for Leave, " then questioned the parties regarding whether or not that ruling rendered Jaiyeola’s motion for sanctions moot. The trial court then ruled that the motion for sanctions was denied "if it’s not moot." Counsel for Summersett requested that the trial court affirmatively rule on the motion to dismiss in order to avoid "confusion" regarding when the appellate time table began. The trial court responded that "I will rule that it is dismissed by operation of law, " then after further discussion, stated that "I have specifically ruled that the Motion for Leave is denied. And my thought was that that rendered the matter of the Motion to Dismiss moot or, alternatively, that it was [overruled] by operation of law. Is that not the view?" Counsel for Summersett again requested that the trial court "enter an order disposing of the Motion to Dismiss, " and the trial court finally concluded that "[t]he only order I’m entering today is that the Motion for Leave is denied." Summersett raised this issue again at a subsequent hearing and the trial court again reiterated that the motion for leave was denied.
We disagree with Summersett’s premise that the trial court allowed the motion to dismiss to be filed so that it could be overruled by operation of law. First, the foregoing colloquy indicates that the trial court retracted his original statement that he would "rule that it is dismissed by operation of law, " thus the record does not show an express ruling that the motion to dismiss was denied by operation of law and it certainly does not invoke the right to appeal embodied in section 27.008 as suggested by Summersett. Second, even if we were to conclude otherwise, we are not bound by a trial court’s conclusion on an issue of law. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (holding that appellate courts may review trial court’s legal conclusions to determine their correctness). A trial court’s denial of a motion for leave or a motion for extension of time to file a motion to dismiss is neither a ruling on the merits of the motion to dismiss, nor a denial "by operation of law" of a motion to dismiss. And third, as stated previously, the trial court did not grant the motion for leave and did not render an order denying the motion to dismiss. In such circumstances, where the record shows that the motion to dismiss was filed after the expiration of the statutory deadline for filing such a motion, we do not infer or presume that the motion to dismiss was overruled based on the operation of law.
Finally, even if we were to conclude that the statute allows an interlocutory appeal from the denial of a motion for leave to file a motion to dismiss, which we do not, we would conclude that the trial court did not abuse its discretion in denying the motion for leave. In this regard, Summersett asserts that the trial court reversibly erred by not finding "good cause" to file the motion to dismiss late. The trial court was presented with conflicting evidence regarding whether Summersett was served on March 5, 2012. "The return of service is not a trivial, formulaic document, " but is "prima facie evidence of the facts recited therein." Primate Constr v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The return of service in the record, which states that Summersett was served in person, constitutes prima facie evidence of the facts recited, and the recitations "carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party." See id. Moreover, a person within the jurisdiction of a court generally has an obligation to accept service of process when it is reasonably attempted. See Dosamantes v. Dosamantes, 500 S.W.2d 233, 237 (Tex. Civ. App.—Texarkana 1973, writ dism’d); see also Red Hot Enters. LLC v. Yellow Book Sales & Distrib. Co., No. 04-11-00686-CV, 2012 Tex.App. LEXIS 5967, at *5 (Tex. App.—San Antonio July 25, 2012, no pet.) (mem. op.); Rogers v. Moore, No. 05-05-01666-CV, 2006 Tex.App. LEXIS 9819, at **1-2 (Tex. App.—Dallas Nov. 13, 2006, no pet.) (mem. op.). A defendant who does not physically accept citation is held to have been personally served as long as the return affirmatively shows the papers were deposited in an appropriate place in his presence or near him where he is likely to find them, and he was informed of the nature of the process and that service is being attempted. Dosamantes, 500 S.W.2d at 237; see also Red Hot Enters. LLC, 2012 Tex.App. LEXIS 5967, at **5-6; Rogers, 2006 Tex.App. LEXIS 9819, at **1-2. In the instant case, the evidence is undisputed that Summersett was informed of the nature of the process and of the fact that service was being attempted.
Finally, and significantly, Summersett has explicitly recognized that he made a general appearance in this case in March. Although Summersett contends that the general appearance prohibits him from contesting service of process through a motion to quash, he contends that "the fact remains that he was never properly served." However, when a defendant’s attorney enters an appearance in open court, such appearance "shall have the same force and effect as if the citation had been duly issued and served as provided by law." See Tex. R. Civ. P. 120. Any defect in service is cured by a general appearance. See Baker v. Monsanto Co., 111 S.W.3d 158, 160-61 (Tex. 2003). Stated otherwise, the filing of an answer or entering some other appearance generally waives any defect in the service of citation. Id. Here, Summersett made a general appearance through filing an agreed order and filing his answer in the case, and therefore cured or waived any alleged defect in service of citation.
IV. Conclusion
The Court, having examined and fully considered the briefs, the motion to dismiss and the response and reply thereto, is of the opinion that we lack jurisdiction over this appeal. Accordingly, we grant Jaiyeola’s motion to dismiss. This appeal is dismissed.
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