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Herschel Hawthorne, LLC v. Gleiser

Court of Appeals of Texas, Fifth District, Dallas
Nov 9, 2021
No. 05-21-00743-CV (Tex. App. Nov. 9, 2021)

Opinion

05-21-00743-CV

11-09-2021

HERSCHEL HAWTHORNE, LLC, ALEXANDER PERRY, AND LABORA REAL ESTATE, INC. F/K/A CES PROPERTY INVESTMENTS, INC., Appellants v. PAUL AND LESLIE GLEISER, STEVE AND TINA GWINN, AND WARD AND CHERI COPLEY, Appellees


On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-19191

Before Chief Justice Burns, Justice Molberg, and Justice Smith

ORDER

CRAIG SMITH JUSTICE.

By notice of appeal filed August 26, 2021, appellants challenge the trial court's August 11, 2021 interlocutory "Order Denying Defendants' Motion to Dismiss with Prejudice Pursuant to the Texas Citizens' Participation Act" (TCPA) and "associated rulings." See TEX. CIV. PRAC. &REM. CODE ANN. §§ 27.003 (providing for motion to dismiss under TCPA), 51.014(a)(12) (permitting appeal). The order identifies the "defendants" as appellants Alexander Perry and Labora Real Estate, Inc. f/k/a CES Property Investments, Inc. As reflected in the record, appellant Herschel Hawthorne, LLC's motion to dismiss was "stricken from the docket" and "dismissed from this cause of action" by order of June 4, 2021.

Asserting Herschel Hawthorne's notice of appeal was untimely filed, appellees have filed a motion to dismiss Herschel Hawthorne's appeal. See id. § 27.008(b) (providing that appeal from order on TCPA motion to dismiss shall be expedited); TEX. R. APP. P. 26.1(b) (providing 20-day deadline for filing notice of appeal in accelerated appeals); 28.1(a) (providing that expedited appeals are accelerated); see also Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.-2009, no pet.) (op. on reh'g) (timely filing of notice of appeal is jurisdictional). Herschel Hawthorne has filed a response to which appellees have filed a reply. In its response, Herschel Hawthorne asserts the order dismissing its motion was not an appealable order because an appeal is authorized only from an order denying a TCPA motion. Herschel Hawthorne further asserts the trial court reconsidered its motion at the hearing that led to the August 11th order.

Herschel Hawthorne's arguments fail, however, because an order striking a motion to dismiss is functionally equivalent to an order denying the motion. See Retzlaff v. Klein, No. 04-16-00675-CV, 2017 WL 3270368, at *2 (Tex. App.-San Antonio Aug. 2, 2017, pet. denied) (mem. op.). And, while the reconsideration of a motion that leads to an appealable interlocutory order can reset the appellate timetable, a new substantive argument must be raised on reconsideration for the timetable to be reset. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (per curiam). As reflected in the record here, the "reconsideration" of the motion consisted of appellants arguing that procedurally, the TCPA required the court to deny Herschel Hawthorne's motion to dismiss rather than dismiss it, and the trial court stating it would consider the argument in rendering its ruling. No new substantive argument was raised.

Based on the record before us, the deadline for filing Herschel Hawthorne's appeal was June 24 or, with an extension motion, July 9. See TEX. R. APP. P. 26.1(B), 26.3. BECAUSE IT WAS NOT FILED UNTIL AUGUST 26, WE GRANT appellees' motion and dismiss Herschel Hawthorne from the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); Brashear, 302 S.W.3d at 545. We DIRECT the Clerk of the Court to change the caption of the appeal to "Alexander Perry and Labora Real Estate, Inc. f/k/a CES Property Investments, Inc. v. Paul and Leslie Gleiser, Steve and Tina Gwinn, and Ward and Cheri Copley" and ORDER Perry and Labora Real Estate to file their opening brief no later than November 29, 2021.


Summaries of

Herschel Hawthorne, LLC v. Gleiser

Court of Appeals of Texas, Fifth District, Dallas
Nov 9, 2021
No. 05-21-00743-CV (Tex. App. Nov. 9, 2021)
Case details for

Herschel Hawthorne, LLC v. Gleiser

Case Details

Full title:HERSCHEL HAWTHORNE, LLC, ALEXANDER PERRY, AND LABORA REAL ESTATE, INC…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 9, 2021

Citations

No. 05-21-00743-CV (Tex. App. Nov. 9, 2021)