James Summersett Iii v. Remi Jaiyeola, M.D.

NUMBER 13-12-00442-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JAMES SUMMERSETT III, Appellant,

v.

REMI JAIYEOLA, M.D., Appellee.

On appeal from the 93rd District Court
of Hidalgo County, Texas.

OPINION

Before Chief Justice Valdez and Justices Garza and Longoria
Opinion by Chief Justice Valdez

Remi Jaiyeola, M.D., brought suit against James Summersett III and Ruben

Garza for tortious interference with existing and prospective business relationships,

unfair competition, defamation, and conspiracy. At the time of suit, Summersett was the

president and chief executive officer of Knapp Medical Center (“Knapp”) and Garza was
the vice president of administrative services of Knapp.1 Jaiyeola is a board-certified

gastroenterologist who has privileges and performs surgical procedures at Knapp. She

alleged that the defendants made false statements about her regarding patient

complaints and her willingness to “take call” for Knapp in order to “cause her [economic]

harm, force her out of business and so that both Defendants, individually, could profit

through a conspiracy designed to reduce income to their own hospital in order to justify

sale of said hospital.” Jaiyeola did not bring suit against Knapp Medical Center.

Summersett moved to dismiss the lawsuit pursuant to the Texas Citizens

Participation Act (“TCPA”), which provides for the dismissal of actions involving the

exercise of certain constitutional rights, and subsequently filed a motion for leave to file

the motion for dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–27.011

(West Supp. 2011). The trial court denied the motion for leave, and this appeal ensued.

Summersett appeals by two issues contending that: (1) the trial court erred by allowing

appellant’s motion to dismiss to be denied by operation of law; and (2) if the trial court

ruled that the motion to dismiss was not timely filed under section 27.003(b), the trial

court erred.

Concluding we lack jurisdiction over this interlocutory appeal, we dismiss the

appeal as stated herein.

I. TEXAS CITIZENS PARTICIPATION ACT

The TCPA is a recently enacted statute that provides for the early dismissal of

legal actions that involve the exercise of certain constitutional rights. See generally TEX.

1
Garza is not a party to this appeal.

2
CIV. PRAC. & REM. CODE ANN. §§ 27.001–27.011.2 The TCPA is considered to be anti-

SLAPP legislation. Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519, 521

n.1 (Tex. App.—Fort Worth 2012, pet. filed). “SLAPP” stands for Strategic Lawsuit

Against Public Participation. See id.

The purpose of the TCPA is “to encourage and safeguard the constitutional rights

of persons to petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law and, at the same time, protect the

rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &

REM. CODE ANN. § 27.002; Avila v. Larrea, 394 S.W.3d 646, 653 (Tex. App.—Dallas

2012, pet. filed). The TCPA provides a means for a defendant, early in the lawsuit, to

seek dismissal of certain claims identified in the act, including defamation. See id. §§

27.003, 27.008. The act is to be “construed liberally to effectuate its purpose and intent

fully.” Id. § 27.011(b). “Exercise of the right of free speech” is defined by the act as “a

communication made in connection with a matter of public concern.” Id. § 27.001(3).

2
Even though the TCPA is of recent origin, it has been the genesis for numerous appeals and
original proceedings. See, e,g., Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro.
Dallas, Inc., No. 05-11-01337-CV, 2013 Tex. App. LEXIS 7348 (Tex. App.—Dallas June 14, 2013, no pet.
h.); Rehak Creative Servs., Inc. v. Witt, No. 14-12-00658-CV, 2013 Tex. App. LEXIS 6196 (Tex. App.—
Houston [14th Dist.] May 21, 2013, no pet. h.); Better Bus. Bureau of Metro. Dallas, Inc. v. Ward, No. 05-
12-00575-CV, 2013 Tex. App. LEXIS 6048 (Tex. App.—Dallas May 15, 2013, no pet. h.); Better Bus.
Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., No. 05-12-00587-CV, 2013 Tex. App. LEXIS 6057 (Tex.
App.—Dallas May 15, 2013, no pet. h.); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
No. 01-12-00581-CV, 2013 Tex. App. LEXIS 5407 (Tex. App.—Houston [1st Dist.] May 2, 2013, no pet.
h.); San Jacinto Title Servs. of Corpus Christi, LLC v. Kingsley Props., LP, No. 13-12-00352-CV, 2013
Tex. App. LEXIS 5081 (Tex. App.—Corpus Christi April 25, 2013, no pet. h.); In re Lipsky, No. 02-12-
00348-CV, 2013 Tex. App. LEXIS 4975 (Tex. App.—Fort Worth April 22, 2013, orig. proceeding.); Jain v.
Cambridge Petroleum Grp., Inc., No. 05-12-00677-CV, 2013 Tex. App. LEXIS 2088 (Tex. App.—Dallas
Mar. 1, 2013, no pet.); Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-
CV, 2013 Tex. App. LEXIS 1898 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (op. on order);
Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. filed); Lipsky v. Range Prod. Co., No. 02-
12-00098-CV, 2012 Tex. App. LEXIS 7059 (Tex. App.—Fort Worth Aug. 23, 2012, pet. filed); Jennings v.
Wallbuilder Presentations, Inc., 378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. filed); see also
Ramsey v. Lynch, No. 10-12-00198-CV, 2013 Tex. App. LEXIS 5554 (Tex. App.—Waco May 2, 2013, no
pet.) (mem. op.); In re Thuesen, No. 14-13-00255-CV, 2013 Tex. App. LEXIS 4636 (Tex. App.—Houston
[14th Dist.] Apr. 11, 2013, orig. proceeding) (mem. op.).

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“Matter of public concern” includes, inter alia, an issue related to “health or safety” or “a

good, product, or service in the marketplace.” Id. § 27.001(7)(E).

“If a legal action is based on, relates to, or is in response to a party’s exercise of

the right of free speech, right to petition, or right of association, that party may file a

motion to dismiss the legal action.” Id. § 27.003(a). Such motion must be filed not later

than the 60th day after the date of service of the legal action unless the court extends

the time for filing on a showing of good cause. Id. § 27.003(b). On the filing of a motion

to dismiss pursuant to section 27.003(a), all discovery in the legal action is suspended

until the court has ruled on the motion to dismiss, except as provided by section

27.006(b). Id. § 27.003(c). Section 27.006(b) states, “[o]n a motion by a party or on the

court’s own motion and on a showing of good cause, the court may allow specified and

limited discovery relevant to the motion.” Id. § 27.006(b).

A hearing on a motion under section 27.003 must be set not later than the

thirtieth day after the date of service of the motion unless the docket conditions of the

court require a later hearing. Id. § 27.004. Section 27.005 of the TCPA, titled “Ruling,”

states, in part, as follows:

(a) The court must rule on a motion under Section 27.003 not later
than the 30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party
under Section 27.003, a court shall dismiss a legal action against
the moving party if the moving party shows by a preponderance of
the evidence that the legal action is based on, relates to, or is in
response to the party’s exercise of:

(1) the right of free speech;

(2) the right to petition; or

(3) the right of association.

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Id. § 27.005(a)–(b). A trial court “may not dismiss a legal action under this section if the

party bringing the legal action establishes by clear and specific evidence a prima facie

case for each essential element of the claim in question.” Id. § 27.005(c). In

determining whether a legal action should be dismissed under the TCPA, “the court

shall consider the pleadings and supporting and opposing affidavits stating the facts on

which the liability or defense is based.” Id. § 27.006(a).

Section 27.008 of the TCPA is titled “Appeal.” Id. § 27.008. That section

provides:

(a) If a court does not rule on a motion to dismiss under Section 27.003
in the time prescribed by Section 27.005, the motion is considered
to have been denied by operation of law and the moving party may
appeal.

(b) An appellate court shall 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.

(c) 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.

Id. Finally, where a court orders dismissal of a legal action under the TCPA, the court

shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other

expenses incurred in defending against the legal action as justice and equity may

require; and (2) sanctions against the party who brought the legal action as the court

determines sufficient to deter the party who brought the legal action from bringing

similar actions. Id. § 27.009(a).

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 II. BACKGROUND

Jaiyeola filed the instant lawsuit on March 1, 2012. The return of service states

that Summersett was personally served with citation on March 5, 2012. Summersett

and Garza filed a general denial on March 23, 2012. Summersett filed a first amended

answer on April 16, 2012 raising additional defenses, including the assertion that the

injunctive relief sought by Jaiyeola constituted an unconstitutional restraint on speech,

that Summersett’s conduct was privileged, that Jaiyeola committed breach of contract,

and that Jaiyeola’s claims were barred by the peer review privilege and the release

doctrine, and that Jaiyeola failed to exhaust her administrative remedies. On May 7,

2012, Summersett filed a motion to dismiss under the TCPA.

On May 11, 2012, Summersett filed a motion for leave to file the motion to

dismiss. In his motion for leave, Summersett asserted that because he “was never

properly served” with Jaiyeola’s petition, he did not believe that a motion for leave was

required in order for his motion to dismiss to be considered properly filed; however, he

was filing the motion for leave “out of an abundance of caution.” According to the

motion for leave:

. . . Summersett’s Anti-SLAPP Motion to Dismiss involves a statutory
deadline to file sixty days after being served. On Monday, May 7, 2012,
Summersett learned that the return of service indicates he was personally
served on March 5, 2012. If that service was proper (Summersett
believes it was not), then sixty days from that date was May 4, 2012.
Summersett filed his anti-SLAPP Motion to Dismiss on Monday, May 7,
2012.

. . . To date, Summersett has never been properly served with the
summons in this case. While Summersett’s ability to contest service of
process through a Motion to Quash is no longer an option because he has
made an appearance, the fact remains that he was never properly served
with Plaintiff’s Original Petition. Summersett received his citation and a
copy of Plaintiff’s Original Petition from co-defendant, Ruben Garza, whom

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 is not Summersett’s agent and, therefore, not authorized to accept service
on his behalf.

....

. . . Defendant Ruben Garza received Plaintiff’s 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.

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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

3
Jaiyeola ultimately filed a motion to compel discovery against Summersett. The trial court’s
order on discovery is the subject of an original proceeding in this Court. See In re Summersett, No. 13-
12-00431-CV, 2013 Tex. App. LEXIS ____ (Tex. App.—Corpus Christi June __, 2013, orig. proceeding).

8
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.

9
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

10
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

11
“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

12
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

13
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

14
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.

____________________
ROGELIO VALDEZ
Chief Justice

Delivered and filed the
18th day of July, 2013.

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