OPINION
This is an interlocutory appeal of the trial court’s denial of appellant Gordon Klingenschmitt’s special appearance. See Tex. Crv. PRác. & Rem.Code Ann. § 51.014(a)(7) (West 2008). We affirm the trial court’s denial of Klingenschmitt’s special appeаrance.
Background
In September 2009, appellees Michael L. Weinstein and Bonnie Weinstein filed suit against Klingenschmitt, Elmer Harmon Ammerman, and the Chaplaincy of Full Gospel Churches (CFGC). Klingenschmitt is not a resident of Texas. He filed a rule 120a special appearance contesting the trial court’s jurisdiction over him and an answer to the lawsuit subject to his special appearance. See Tex.R. Civ. P. 120a. His answer contained special exceptions to the Weinsteins’ рetition and requested judgment from the trial court on the special exceptions. 1
On November 23, 2009, the trial court conducted a hearing on the special exceptions contained in Klingenschmitt’s first amended answer to the Weinstеins’ first amended petition. The trial court signed a December 4, 2009 order sustaining several of Klingenschmitt’s special exceptions and requiring that any amendment to the Weinsteins’ first amended petition to meet the sustained special exсeptions be filed by December 23, 2009.
On December 30, 2009, Klingenschmitt filed a motion to dismiss with prejudice all claims against him in the Weinsteins’ second amended petition. Klingenschmitt asserted the Weinsteins’ second amended petition failed to comply with the trial court’s December 4, 2009 order. He sought dismissal of the Weinsteins’ claims of “imminent violence based on Sections 22.01 and 22.07 of the Texas Penal Code (which do not authorize any civil cause of action),” conspiracy, and intentional infliction of emotional distress. He also sought dismissal of the Weinsteins’ request for in-junctive relief. In his motion to dismiss, Klingenschmitt asserted the trial court ordered the Weinsteins to file an amended pleading alleging (1) acts that would constitute a conspiracy with Ammerman and CFGC, (2) what was published, to whom it was published, and when it was published with regard to the Weinsteins’ allegation that Klingenschmitt was “appealing to his followers to acts of imminent violence” through “fatwahs,” and (3) sufficient facts tо warrant injunctive relief.
On April 19, 2010, the trial court heard Klingenschmitt’s motion to dismiss. On April 22, 2010, the trial court signed an *133 order denying Klingenschmitt’s motion to dismiss and special exceptions contained in his second amended answer. Although not contained in the rеcord, the parties do not dispute that the trial court conducted a hearing on Klingenschmitt’s motion for reconsideration of his motion to dismiss.
Thereafter, on July 13, 2010, Klingen-schmitt filed his brief in support of his rule 120a special appearance challenging the trial court’s jurisdiction over him. At the July 19, 2010 hearing of the special appearance, the trial court noted Klingen-schmitt’s attempts to obtain dismissal of the claims against him and heard argument on the issue of whether Klingеn-schmitt waived his special appearance under rule 120a(2). The trial court denied Klingenschmitt’s special appearance and entered findings of fact and conclusions of law. In addition to its finding of fact that Klingenschmitt has еxtensive and systematic contacts with Texas and its conclusion of law that Klingenschmitt has continuous and systematic contacts with Texas, the trial court concluded that Klingenschmitt’s motion to dismiss and motion for reconsideration of the mоtion to dismiss sought dismissal of the Weinsteins’ claims on the merits and that Klingenschmitt waived his special appearance. Klingenschmitt filed this interlocutory appeal of the trial court’s denial of his special appearance.
Analysis
We first consider whether, as a matter of procedure, Klingenschmitt made a general appearance in this case, and therefore waived his special appearance.
See Dawson-Austin v. Austin,
Under rule 120a, a special аppearance, properly entered, enables a non-resident defendant to challenge personal jurisdiction in a Texas court. Tex.R. Civ. P. 120a. Rule 120a requires strict compli-
ance, and a non-resident defendant will be subject to personal jurisdiction in Texas courts if the defendant enters a general appearance.
Morris v. Morris,
Rule 120a(l) mandates that a special appearance be filed “prior to a motion to transfer venue or any other plea, pleading or motion.” Tex.R. Crv. P. 120a(l). “[T]he plain language of Rule 120a requires only that a special appearance be filed before any other ‘plea, pleading or motion.’”
Exito Elecs. Co. v. Trejo,
Klingenschmitt asserts that while rule 120a requires the filing of a special appearance рrior to a motion to transfer venue or any other plea, pleading or motion, the rule does not require the special appearance to be heard prior to any other hearing. However, in addition to the duе-order-of-pleading requirement, rule 120a also entails a “due-order-of-hearing” requirement.
See First Oil PLC v. ATP Oil & Gas Corp.,
The Weinsteins contend Klingenschmitt did not meet the due-order-of-hearing requirement of rule 120a(2). They assert the trial court correctly concluded that pursuant to rule 120a(2), Klingenschmitt waived his special appearance by having his motion to dismiss and motion for reconsideration of the motion to dismiss heard prior to the special appеarance and correctly denied Klingenschmitt’s special appearance. The Weinsteins contend that the motion to dismiss and motion for reconsideration of the motion to dismiss were inconsistent with Klingenschmitt’s special аppearance because, as concluded by the trial court, he sought relief on the merits, and, therefore, Klingenschmitt made a general appearance by participation in hearings of those motions prior to the hearing of his special appearance. We agree.
In reply to the Weinsteins’ assertion regarding Klingenschmitt’s violation of the due-order-of-hearing requirement of rule 120a(2), Klingenschmitt contends his motion to dismiss and motion fоr reconsideration of the motion to dismiss were not inconsistent with his special appearance. He argues that because his attempts to obtain dismissal of the Weinsteins’ claims against him were preceded by speciаl exceptions and based on special exceptions, they were “procedural” and did not constitute “substantive actions.” We disagree.
A party enters a general appearance and waives a speсial 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.”
Trejo,
Inconsistent with his special appearance, in his motion to dismiss and motion for rеconsideration of the motion to dismiss, Klingenschmitt sought affirmative relief from the trial court in the form of a dismissal with prejudice of the Weinsteins’ claims against him. A dismissal with prejudice is an adjudication on the merits.
Love v. Moreland,
In Klingenschmitt’s motion to dismiss and motion for reconsideration of the motion to dismiss, he sought affirmative relief inconsistent with his special appearance prior to the hearing and determination оf his special appearance.
See
Tex.R. Civ. P. 120a(2);
Trejo,
Having concluded that Klingenschmitt entered a general appearance and waived his special appearance, we need not address whether the facts underlying Klin-genschmitt’s special appearance establish personal jurisdiction over him. See Tex. R.App. P. 47.1.
We affirm the trial court’s denial of Klingenschmitt’s special appearance.
Notes
. Ammerman and CFGC filed an answer without contesting the trial court's jurisdiction over them. They also filed special exceptions to the Weinsteins' petition and requested judgment from the trial court on their special exceptions.