Six Brothers Concrete Pumping, LLC and Joseph Lowry v. Martin Tomczak

• Court: Court of Appeals of Texas
• Decided: August 19, 2021
• Docket: 01-21-00161-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Six Brothers Concrete Pumping, LLC and Joseph Lowry v. Martin Tomczak

Appellate case number: 01-21-00161-CV

Trial court case number: 2021-07817

Trial court: 333rd District Court of Harris County

On March 29, 2021, appellants Six Brothers Concrete Pumping, LLC and Joseph Lowry filed a notice of interlocutory appeal challenging the trial court’s March 9, 2021 temporary injunction. About two weeks later, appellee Martin Tomczak filed a notice appeal of appeal from the same temporary injunction order. On June 2, 2021, the appellants filed their appellate brief. On June 22, 2021, appellee and cross-appellant Tomczak filed his appellate brief. After an extension of time, the appellants’ reply brief was due on August 12, 2021. Also on June 2, 2021, however, the appellants filed a second notice of appeal, which challenged the trial court’s May 11, 2021 order denying their motion to dismiss under the Texas Citizens Participation Act (“TCPA”). This notice of appeal was filed in appellate case number 01-21-00161-CV. See TEX. R. APP. P. 12.2(c) (“Multiple Notices of Appeal. All notices of appeal must be given the same docket number.”). Although the May 11, 2021 order denying the motion to dismiss under the TCPA does not appear to be “a further appealable interlocutory order concerning the same subject matter,” see TEX. R. APP. P. 29.6(a), the Court will consider the appeals from both orders together under case number 01-21-00161-CV. See TEX. R. APP. P. 2 (permitting court of appeals to suspend operation of rule in particular case and order different procedure). On August 12, 2021, the appellants filed a motion seeking leave to file supplemental briefs to address the appeal from the order denying the TCPA motion to dismiss. and for extension of time to file a reply brief. The certificate of conference indicates that Tomczak agrees with the request. Accordingly, the Court grants the motion for leave to file supplemental briefing and orders the parties to file supplemental briefing in accordance with the following schedule: 1. The brief of appellants, Six Brothers Concrete Pumping, LLC and Joseph Lowry, regarding the order denying the TCPA motion to dismiss is due September 2, 2021. 2. The response brief of appellee Tomczak regarding the order denying TCPA motion to dismiss is due September 23, 2021. 3. The reply brief of appellants, Six Brothers Concrete Pumping, LLC and Joseph Lowry, regarding both the temporary injunction and the TCPA motion to dismiss is due October 7, 2021. It is so ORDERED.

Judge’s signature: ____/s/ Peter Kelly________  Acting individually  Acting for the Court

Date: ___August 19, 2021__