Opinion
04-23-00665-CV
02-01-2024
Alison MAYNARD and Richard Carlisle, Appellants v. William R. LUCERO, Jacob Vos, Jacob Zimmerman and Mark Bankston,Appellees
From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-21633 Honorable Tina Torres, Judge Presiding
ORDER
IRENE RIOS, JUSTICE
On November 29, 2023, we ordered appellants Alison Maynard and Richard Carlisle to show cause why this appeal should not be dismissed for want of jurisdiction. For the reasons explained below, we retain jurisdiction over appellants' challenges to the trial court's orders granting special appearances filed by appellees William R. Lucero, Jacob Vos, and Jacob Zimmerman. We also retain jurisdiction over the trial court's order dismissing appellants' claims against appellee Mark Bankston under the Texas Citizens Participation Act.
In the original trial court cause number, 2020-CI-21633, appellants asserted claims against Lucero, Vos, Zimmerman, Bankston, and three individuals who are not party to this appeal: Leonard Pozner, Doug Maguire, and Elizabeth Williamson. Lucero, Vos, and Zimmerman filed special appearances arguing the trial court lacked personal jurisdiction over them. Bankston filed a motion to dismiss appellants' claims against him under the TCPA.
On June 1, 2023, the trial court signed an order that granted the special appearance jointly filed by Lucero and Vos, dismissed appellants' claims against them, and severed the now-dismissed claims into a separate cause number, 2023-CI-11772. On June 2, 2023, Maynard filed a motion to vacate and modify that order, and on June 9, 2023, Maynard and Carlisle filed a joint motion to reinstate their claims against Lucero and Vos. Appellants filed their post-judgment motions in the original cause number, not the severed cause number.
In their reply to appellants' response to our show cause order, Lucero and Vos argued that appellants "filed no post-judgment motion in the severed case involving Lucero and Vos, and therefore a timely notice of appeal was due in the severed case by June 30, 2023." (emphasis added). It is true that appellants' post-judgment motions bore the original cause number rather than the severed cause number. However, Lucero and Vos's implication that this error rendered the motions ineffective to extend appellate deadlines is directly contrary to the Texas Supreme Court's holding in Mitschke v. Borromeo, 645 S.W.3d 251, 253-54, 262-63 (Tex. 2022).
On June 27, 2023, the trial court signed an order granting Zimmerman's special appearance and dismissing appellants' claims against him. The same day, the trial court signed an order severing appellants' claims against Zimmerman into a separate cause number, 2023-CI-12586. Neither Maynard nor Carlisle filed any post-judgment motions regarding the dismissal of their claims against Zimmerman.
On July 13, 2023, the trial court signed an order granting Bankston's TCPA motion and dismissing appellants' claims against him. However, at that time, the trial court did not sign an order severing appellants' claims against Bankston into a separate cause number. Nor did the trial court dispose of appellants' claims against Pozner, Maguire, and Williamson.
On July 26, 2023, appellants filed a notice of appeal in the original cause number. The notice stated appellants' "intent to appeal the orders granting special appearance of Jacob Vos / William R. Lucero and Jacob Zimmerman, signed on May 31st, 2023 and June 27th, 2023 [.]" The notice also noted that appellants' claims against Vos, Lucero, and Zimmerman had been severed into separate cause numbers, and it listed those cause numbers. While the notice of appeal noted the trial court had granted Bankston's TCPA motion, it also represented that an appeal of that order "is not yet ripe." Nevertheless, appellants' subsequent filings in this court indicated they wished to appeal the TCPA order.
Although the trial court's order granting Lucero and Vos's special appearance is titled "Order of May 31, 2023," the trial court signed it on June 1, 2023.
On November 29, 2023, we issued an order directing appellants to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellants filed a response to our order on December 13, 2023. Lucero and Vos filed a reply to appellants' response on December 19, 2023. Appellants subsequently filed a supplemental response and a motion to strike Lucero and Vos's reply.
On January 24, 2024, appellants filed a "Motion to Review Further Orders, and Share Record" informing this court that they had recently learned that the trial court signed a January 4, 2024 order severing their claims against Bankston into a separate cause number, 2024-CI-00306. They also filed an amended notice of appeal regarding their claims against Bankston. On January 30, 2024, the district clerk filed a supplemental clerk's record containing the January 4, 2024 severance order.
After reviewing the record before this court, we conclude the severance orders created final, appealable judgments disposing of appellants' claims against Lucero, Vos, Zimmerman, and Bankston. See Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap, & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per curiam). We additionally conclude that appellants filed timely notices of appeal from each of those judgments. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994) (per curiam) ("When a severance order takes effect, the appellate timetable runs from the signing date of the order that made the judgment severed 'final' and appealable."); Tex.R.App.P. 25.1, 26.1.
We therefore RETAIN appellants' appeal on our active docket. However, "[b]ecause [appellants have perfected an appeal from [multiple] entirely separate orders," we "believe that the proper course of action is to docket the appeal from each order as a separate appeal with an identifiable cause number." See Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 871 (Tex. App -Waco 2001, order) (per curiam). We therefore ORDER the clerk of this court to:
• retain the appeal from the order dismissing appellants' claims against Lucero and Vos (trial court cause number 2023-CI-11772) as Cause Number 04-23-00665-CV;
• docket the appeal from the order dismissing appellants' claims against Zimmerman (trial court cause number 2023-CI-12586) in a separate cause number to be assigned by the clerk of this court and notify the parties of the newly assigned cause number; and
• docket the appeal from the order dismissing appellants' claims against Bankston (trial court cause number 2024-CI-00306) in a separate cause number to be assigned by the clerk of this court and notify the parties of the newly assigned cause number.
We further ORDER the clerk of this court to transfer a copy of the existing appellate record in this case into the two newly assigned appellate cause numbers.
We DENY appellants' pending motion to strike the reply filed by Lucero and Vos.