ACCEPTED 06-13-00051-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/26/2015 10:19:44 AM DEBBIE AUTREY CLERK
NO. 06-13-00051-CV
FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS FOR THE SIXTH DISTRICT OF TEXAS8/26/2015 10:19:44 AM AT TEXARKANA, TEXAS DEBBIE AUTREY Clerk
WARREN WHISENHUNT, Appellant,
v.
MATTHEW LIPPINCOTT and CREG PARKS, Appellees and Cross-Appellants,
On Appeal from the County Court at Law of Hopkins County, Texas Cause No. CV 41303 The Honorable Amy M. Smith Presiding
APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT AND CREG PARKS', MOTION FOR REHEARING
JonM. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
1 TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Appellees and Cross-Appellants, Matthew Lippincott and Creg Parks, file
this motion for rehearing and would show as follows:
INTRODUCTION
Lippincott and Parks request that this Court reconsider its decision not to
consider their cross appeal. Texas law and judicial economy support the
consideration of the cross appeal.
THE CROSS APPEAL WAS TIMELY FILED
This Court concluded that because Lippincott and Parks' cross appeal was
not timely filed that it did not have jurisdiction to consider it. The court relied on a
mix of appellate court decisions, none of which specifically addresses the issue in
this case. There are other appellate opinions that either address the issue more
directly or that set forth a preferable approach to this issue and which should be
followed.
The version of the TCPA in effect at the time relevant to this case does not provide
a deadline for a cross appeal. As then worded, the statute stated, "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." Act of May 21, 2011, 82d Leg., R.S., ch. 341, §2, Sec. 27.008(c), 2011
2 Tex. Gen. Laws 961, 963 . There is nothing in any part of section 27.008 of the TCPA
that prohibits a cross-appeal or prevents a party from filing a cross-appeal by complying
with the deadline set forth in Tex. R.App. P. 26.1(d). As stated in this court's opinion,
Whisenhunt timely filed a notice of appeal, satisfying the statute's requirement for filing
"an appeal."
The plain meaning of Rule 26.1(d) shows that it applies to the deadline to file a
notice of cross-appeal in any situation, including an appeal under the TCPA. Rule
26.1 (d) states, "if any party timely files a notice of appeal, another party may file a notice
of appeal within the applicable period stated above or 14 days after the first filed notice
of appeal, whichever is later." Rule 26.1 (d) is not limited to any particular type of appeal
and does not exclude accelerated appeals.
The cases cited by the Court in support of its decision do not address the issue of a
cross appeal after an appeal has been perfected. In Jain v. Cambridge Petroleum Grp.,
Inc., 395 S.W.3d 394 (Tex. App.-Dallas 2013, no pet.) the Dallas Court of Appeals was
considering whether the deadline for perfecting an appeal under the TCPA could be
extended by the weekend provisions of Texas Rule of Appellate Procedure 4.1. In
holding that the deadline could not be extended in that way, the Dallas court cited Texas
Rule of Appellate Procedure 28.1(b). That rule states, "Unless otherwise provided by
statute, an accelerated appeal is perfected by filing a notice of appeal in compliance with
Rule 25.1 within the time allowed by Rule 26.l(b) or as extended by Rule 26.3."
(emphasis added). Unlike Rule 28.1(b), Rule 26.1(d) does not contain the limiting
language of "unless otherwise provided by statute."
3 Similarly, the other case cited by the Court on this point, In re D.B., 80 S.W.3d
698 (Tex. App.-Dallas 2002, no pet.) discussed the deadline for perfecting an appeal in
order to vest the appellate court with jurisdiction. The court in D.B. stated, "When a
statute provides the deadline for perfecting an appeal, compliance with that statutory
deadline, not the deadline in the rules of appellate procedure, is necessary to give the
appellate court jurisdiction. In re D.B., 80 S.W.3d at 702. When Whisenhunt timely filed
his notice of appeal this court obtained jurisdiction over the appeal.
The Dallas Court of Appeals actually considered the specific issue before this
Court in Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.-Dallas
2014, no pet.) In the Gonzalez case the court considered whether a cross appellant was
entitled to the additional fourteen days provided under Texas Rule of Appellate
Procedure 26.1(d) in the context of an appeal under the TCPA. The court in Gonzalez
held that because section 27.008(a) states that a party "may" appeal, that created a
permissive right of interlocutory appeal. Because Dinah was not required to file an
interlocutory appeal and could appeal after final judgment, the court denied ARC's
motion to dismiss Dinah's cross appeal for lack of jurisdiction. This Court should make
the same ruling.
In discussing the case of Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009), the
Gonzalez court reasoned that, "The court also concluded that permitting the appeal after
final judgment would advance the legislature's purpose in adopting the motion-to-dismiss
procedure by facilitating a defendant's right to seek redress for defending a meritless
claim and by perhaps reducing the number of interlocutory appeals." !d. Similarly in the
4 instant case, ifthe point ofthe TCPA's dismissal procedure is one of judicial economy,
then it is contrary to that goal to set up a framework in which there could potentially be
two appeals instead of only one. In other words, because the TCPA's interlocutory
appeal right is permissive, Petitioners could have immediately appealed the court's partial
denial of their motion to dismiss, or they could have waited and appealed that denial after
final judgment. Because Respondent chose to appeal the partial granting ofthe motion to
dismiss on an interlocutory basis, it only makes sense that a cross-appeal would be
allowed to frame all of the issues at once as opposed to having a second potential appeal
looming after this case is concluded. Presumably at least a part of the purpose behind
Rule 26.1 (d) is to allow a party to determine whether it appeals based on whether the
other party appeals. Because of the 14-day window provided by Rule 26.1(d) many
appeals that would be filed ''just in case" are never filed. There is no reason to eliminate
that effective tool in the context ofthe TCPA's interlocutory appeal scheme.
The other two cases cited by the Court, Valerus Compression Servs. v. Reeves
Cnty. Appraisal Dist., No. 08-13-00366-CV, 2014 WL 645035 (Tex. App.-El Paso Feb
19, 2014, no pet.)(mem. op.) and Charette v. Fitzgerald, 213 S.W.3d 505 (Tex. App.-
Houston [14th Dist.] 2006, no pet.) fail to address the issue before this Court. In both of
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ACCEPTED 06-13-00051-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/26/2015 10:19:44 AM DEBBIE AUTREY CLERK
NO. 06-13-00051-CV
FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS FOR THE SIXTH DISTRICT OF TEXAS8/26/2015 10:19:44 AM AT TEXARKANA, TEXAS DEBBIE AUTREY Clerk
WARREN WHISENHUNT, Appellant,
v.
MATTHEW LIPPINCOTT and CREG PARKS, Appellees and Cross-Appellants,
On Appeal from the County Court at Law of Hopkins County, Texas Cause No. CV 41303 The Honorable Amy M. Smith Presiding
APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT AND CREG PARKS', MOTION FOR REHEARING
JonM. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
1 TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Appellees and Cross-Appellants, Matthew Lippincott and Creg Parks, file
this motion for rehearing and would show as follows:
INTRODUCTION
Lippincott and Parks request that this Court reconsider its decision not to
consider their cross appeal. Texas law and judicial economy support the
consideration of the cross appeal.
THE CROSS APPEAL WAS TIMELY FILED
This Court concluded that because Lippincott and Parks' cross appeal was
not timely filed that it did not have jurisdiction to consider it. The court relied on a
mix of appellate court decisions, none of which specifically addresses the issue in
this case. There are other appellate opinions that either address the issue more
directly or that set forth a preferable approach to this issue and which should be
followed.
The version of the TCPA in effect at the time relevant to this case does not provide
a deadline for a cross appeal. As then worded, the statute stated, "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." Act of May 21, 2011, 82d Leg., R.S., ch. 341, §2, Sec. 27.008(c), 2011
2 Tex. Gen. Laws 961, 963 . There is nothing in any part of section 27.008 of the TCPA
that prohibits a cross-appeal or prevents a party from filing a cross-appeal by complying
with the deadline set forth in Tex. R.App. P. 26.1(d). As stated in this court's opinion,
Whisenhunt timely filed a notice of appeal, satisfying the statute's requirement for filing
"an appeal."
The plain meaning of Rule 26.1(d) shows that it applies to the deadline to file a
notice of cross-appeal in any situation, including an appeal under the TCPA. Rule
26.1 (d) states, "if any party timely files a notice of appeal, another party may file a notice
of appeal within the applicable period stated above or 14 days after the first filed notice
of appeal, whichever is later." Rule 26.1 (d) is not limited to any particular type of appeal
and does not exclude accelerated appeals.
The cases cited by the Court in support of its decision do not address the issue of a
cross appeal after an appeal has been perfected. In Jain v. Cambridge Petroleum Grp.,
Inc., 395 S.W.3d 394 (Tex. App.-Dallas 2013, no pet.) the Dallas Court of Appeals was
considering whether the deadline for perfecting an appeal under the TCPA could be
extended by the weekend provisions of Texas Rule of Appellate Procedure 4.1. In
holding that the deadline could not be extended in that way, the Dallas court cited Texas
Rule of Appellate Procedure 28.1(b). That rule states, "Unless otherwise provided by
statute, an accelerated appeal is perfected by filing a notice of appeal in compliance with
Rule 25.1 within the time allowed by Rule 26.l(b) or as extended by Rule 26.3."
(emphasis added). Unlike Rule 28.1(b), Rule 26.1(d) does not contain the limiting
language of "unless otherwise provided by statute."
3 Similarly, the other case cited by the Court on this point, In re D.B., 80 S.W.3d
698 (Tex. App.-Dallas 2002, no pet.) discussed the deadline for perfecting an appeal in
order to vest the appellate court with jurisdiction. The court in D.B. stated, "When a
statute provides the deadline for perfecting an appeal, compliance with that statutory
deadline, not the deadline in the rules of appellate procedure, is necessary to give the
appellate court jurisdiction. In re D.B., 80 S.W.3d at 702. When Whisenhunt timely filed
his notice of appeal this court obtained jurisdiction over the appeal.
The Dallas Court of Appeals actually considered the specific issue before this
Court in Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.-Dallas
2014, no pet.) In the Gonzalez case the court considered whether a cross appellant was
entitled to the additional fourteen days provided under Texas Rule of Appellate
Procedure 26.1(d) in the context of an appeal under the TCPA. The court in Gonzalez
held that because section 27.008(a) states that a party "may" appeal, that created a
permissive right of interlocutory appeal. Because Dinah was not required to file an
interlocutory appeal and could appeal after final judgment, the court denied ARC's
motion to dismiss Dinah's cross appeal for lack of jurisdiction. This Court should make
the same ruling.
In discussing the case of Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009), the
Gonzalez court reasoned that, "The court also concluded that permitting the appeal after
final judgment would advance the legislature's purpose in adopting the motion-to-dismiss
procedure by facilitating a defendant's right to seek redress for defending a meritless
claim and by perhaps reducing the number of interlocutory appeals." !d. Similarly in the
4 instant case, ifthe point ofthe TCPA's dismissal procedure is one of judicial economy,
then it is contrary to that goal to set up a framework in which there could potentially be
two appeals instead of only one. In other words, because the TCPA's interlocutory
appeal right is permissive, Petitioners could have immediately appealed the court's partial
denial of their motion to dismiss, or they could have waited and appealed that denial after
final judgment. Because Respondent chose to appeal the partial granting ofthe motion to
dismiss on an interlocutory basis, it only makes sense that a cross-appeal would be
allowed to frame all of the issues at once as opposed to having a second potential appeal
looming after this case is concluded. Presumably at least a part of the purpose behind
Rule 26.1 (d) is to allow a party to determine whether it appeals based on whether the
other party appeals. Because of the 14-day window provided by Rule 26.1(d) many
appeals that would be filed ''just in case" are never filed. There is no reason to eliminate
that effective tool in the context ofthe TCPA's interlocutory appeal scheme.
The other two cases cited by the Court, Valerus Compression Servs. v. Reeves
Cnty. Appraisal Dist., No. 08-13-00366-CV, 2014 WL 645035 (Tex. App.-El Paso Feb
19, 2014, no pet.)(mem. op.) and Charette v. Fitzgerald, 213 S.W.3d 505 (Tex. App.-
Houston [14th Dist.] 2006, no pet.) fail to address the issue before this Court. In both of
those cases the courts of appeals dismissed cross appeals that had failed to meet the
deadline under TRAP 26.1(d). Lippincott and Parks met that deadline and, therefore,
this Court has jurisdiction to consider the cross appeal.
The better approach in deciding this issue is that taken by the San Antonio Court
of Appeals in Stolte v. Cnty. Of Guadalupe, 139 S.W.3d 406, 408 (Tex. App.-San
5 Antonio 2004, no pet.). The court in Stolte specifically disagreed with the Dallas Court
of Appeals' opinion in the In re D.B. case. In Stolte, the court held that an application for
permission to appeal pursuant to Texas Civil Practice & Remedies Code §51.014(f) is
subject to the motion for extension of time provision in TRAP 26.3(b). In so holding, the
San Antonio court cited the Texas Supreme Court in stating that, "appellate courts should
not dismiss an appeal for a procedural defect whenever any arguable interpretation of the
Rules of Appellate Procedure would preserve the appeal. Stolte, 139 S.W.3d at 409,
citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Supreme Court made
no distinction between various types of appeals in that opinion.
This court should follow the reasoning applied in Stolte and Verburgt and consider
Lippincott and Parks' cross appeal. As has been previously briefed in this Court, because
Whisenhunt failed to meet his burden in responding to the TCPA motion to dismiss with
regard to his defamation claim, if this Court grants this motion for rehearing and
considers the cross appeal, it will likely result in the dismissal of Whisenhunt's final
remaining cause of action.
Because the 14-day window for cross-appeals provided for by TRAP 26.1 (d)
applies in this case, this Court has jurisdiction on Petitioners' cross-appeal.
PRAYER
FOR THE FOREGOING REASONS, Appellees and Cross-Appellants pray
that this Court grant this motion for rehearing and consider their cross appeal.
6 Appellees and Cross-Appellants further pray that this court reverse the trial court's
refusal to dismiss Whisenhunt's defamation claim and reverse Judge Smith's
failure to impose the mandatory sanction against Whisenhunt and remand this case
to the trial court for the purpose of allowing the court to consider evidence
regarding the proper imposition of attorney's fees, costs and sanctions.
Respectfully submitted,
/s/ Jon Smith- - - - - JonM. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
ATTORNEYFORAPPELLEESAND CROSS-APPELLANTS LIPPINCOTT AND PARKS
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent applicable, I certify that this brief contains 1628 words.
/s/ Jon Smith- - - - - Jon Michael Smith
7 CERTIFICATE OF SERVICE
I, Jon Michael Smith, do hereby certify that a true and correct copy of the foregoing document was delivered to all attorneys of record as listed below via fax on August 26, 2015.
Alan E. Brown Via Fax: 903-597-2413 Ramey & Flock, P.C. 100 East Ferguson Suite 500 Tyler, Texas 75702
FarbodFamia Via Fax: 214-741-4717 McCathem, L.L.P. Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219
/s/ Jon Smith' - - - - - - - Jon Michael Smith