Opinion
01-21-00519-CV
05-02-2023
ANITA F. KAWAJA, ANTHONY R. SUEING, SR., FRONTLINE RECOVERY AND CONSULTING, INC., AND FRONTLINE RECOVERY AND CONSULTING NORTH, Appellants v. DEREK U. OBIALO, Appellee
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2021-18043
Panel consists of Chief Justice Adams, and Justices Kelly and Goodman.
MEMORANDUM OPINION
Peter Kelly Justice
This case is a purported interlocutory appeal from orders entered relating to two motions to dismiss under the Texas Citizens Participation Act ("TCPA"). All parties have moved for dismissal, which we grant. We deny the appellee's motion for appellate sanctions.
Procedural History
On June 22, 2021, Anita F. Kawaja filed a TCPA motion to dismiss claims made by appellee Derek U. Obialo. The following day, appellants Anthony R. Sueing, Sr., Frontline Recovery and Consulting, Inc., and Frontline Recovery and Consulting North, Inc. filed a TCPA motion to dismiss claims made by appellee Obialo. On July 23, 2021, the trial court held a hearing on the TCPA motions to dismiss.
On August 24, 2021, Kawaja filed a notice of appeal from the denial by operation of law of her TCPA dismissal motion. That appeal was docketed in appellate case number 01-21-00458-CV, and which was subsequently dismissed on motion. See Kawaja v. Obialo, No. 01-21-00458-CV, 2021 WL 4256091, at *1 (Tex. App.-Houston [1st Dist.] Sept. 17, 2021, no pet.) (mem. op.) (issuing mandate immediately). On August 30, 2021, Sueing, Frontline Recovery and Consulting, and Frontline Recovery and Consulting North filed a notice of appeal from the trial court's denial by operation of law of their TCPA motion to dismiss. This appeal was also dismissed.
On September 9, 2021, the trial court signed two orders, granting with prejudice both motions to dismiss. In both orders, the trial court stated that it extended the date to rule on the motions to September 9, 2021, pursuant to the authority granted by the Texas Supreme Court's Emergency Order.
The Texas Supreme Court's the Fortieth Emergency Order Regarding the COVID-19 State of Disaster provides in part:
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal, without a participant's consent:
a. except as provided in paragraph 4, modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than October 1, 2021; . . . .
8. This Order is effective August 1, 2021, and expires October 1, 2021, except as otherwise stated herein, unless extended by the Chief Justice of the Supreme Court. . . . .Misc. Docket No. 21-9079 (Tex. July 19, 2021).
After the dismissal of the earlier appeal, the appellants questioned the validity of the September 9, 2021 orders granting their motions to dismiss under the TCPA because they were entered while the statutory automatic stay was in effect. See Tex. Civ. Prac. & Rem. Code § 51.014(b) (providing for stay of all proceedings in trial court pending resolution of appeal of denial of motion to dismiss under TCPA). They asked the trial court to again sign orders granting the motions to dismiss under the TCPA, and on September 27, 2021, the trial court signed orders that were substantially the same as the September 9, 2021 orders, except that they extended the time for determining the motions until the date of the orders.
On September 27, 2021, Kawaja filed a notice of interlocutory appeal challenging the trial court's earlier interlocutory denial by operation of law of her TCPA motion to dismiss. The next day, Sueing, Frontline Recovery and Consulting, and Frontline Recovery and Consulting North filed a notice of appeal from the trial court's September 27, 2021 order granting their motion to dismiss under the TCPA.
All the parties have now filed motions to dismiss asserting that we lack jurisdiction over this appeal. In October 2022, appellee Derek U. Obialo filed two motions to dismiss this appeal for want of jurisdiction, asserting that the Court lacks jurisdiction because the notice of appeal was untimely, the appeal is taken from an interlocutory order for which no interlocutory appeal is authorized, and, in the alternative, the appeal challenges an order that has been vacated and superseded. In an order dated January 19, 2023, this Court deferred determination of that and other motions stating that these motions would be carried with the case.
The following week, all the appellants filed motions to dismiss that sought, in the alternative, an extension of time to file briefs. They also argued that this Court was without jurisdiction. Obialo filed a statement of non-opposition to the motions to dismiss.
Analysis
Dismissal
Both appellants and appellee have all moved to dismiss, and no opinion has issued. We grant the motions to dismiss dated October 7, 2022, October 18, 2022, January 20, 2023, and January 23, 2023, and we dismiss the appeal. See Tex.R.App.P. 42.1(a)(1); see also Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012) (explaining that Texas courts lack jurisdiction in the absence of "a live, non-abstract question of law that, if decided, would have a binding effect on the parties"); CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) ("Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments.").
Appellate Sanctions
Obialo has also filed a motion seeking appellate sanctions from Kawaja. He alleges that her appeal was frivolous, and he seeks $9,900 in attorney's fees
Rule 45 provides that if a court of appeals determines that an appeal is frivolous, it may award a prevailing party just damages. See Tex. R. App. P. 45. We have discretion to award damages to a prevailing party if we objectively determine that an appeal is frivolous. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.- Houston [1st Dist.] 2001, pet. denied). Rule 45 does not require an appellate court to award just damages in every case in which an appeal is frivolous. Woods v. Kenner, 501 S.W.3d 185, 198 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (citing Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet. denied)). Because we have dismissed the appeal, there is no prevailing party. We deny the motion for sanctions.
Conclusion
We dismiss the appeal. All pending motions are dismissed as moot.