Opinion
No. 05-19-00482-CV
12-09-2020
PALLADIUM METAL RECYCLING, LLC, Appellant v. 5G METALS, INC. AND 4G METALS, INC., Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-18-18472
ORDER
Before Justices Molberg and Partida-Kipness
The Honorable David Bridges, Justice, participated in the submission of this case. However, due to his death on July 25, 2020, he did not participate in the issuance of our opinion, judgment, mandate, or this order.
Our mandate in this case issued on October 7, 2020. On November 17, 2020, appellees filed a "Motion for Damages for Frivolous Appeal Pursuant to TRAP 45 and TEX. CIV. PRAC. & REM. CODE § 27.009(b)." Because we lack plenary power over this matter, we dismiss the motion for lack of jurisdiction. See TEX. R. APP. P. 19.
On July 28, 2020, we issued a memorandum opinion and judgment affirming the portion of the trial court's April 4, 2019 order denying appellant's motion to dismiss under the Texas Citizens Participation Act (TCPA) and ordering that appellees recover their costs of this appeal from appellant. Palladium Metal Recycling, LLC v. 5G Metals, Inc. and 4G Metals, Inc., No. 05-19-00482-CV, 2020 WL 4333538 (Tex. App.—Dallas July 28, 2020, no pet.) (mem. op.). We did not make any rulings regarding the issue of attorneys' fees.
See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to "an action filed on or after" that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687. Because the underlying lawsuit was filed before September 1, 2019, the law in effect before September 1, 2019 applies. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961-64, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499-2500. All citations to the TCPA are to the version before the 2019 amendments took effect.
Following our memorandum opinion and judgment, no party filed a motion for rehearing, a motion for rehearing en banc, a petition for review, or a motion to extend the time for filing a petition for review.
We issued our mandate on October 7, 2020. See TEX. R. APP. P. 18.1(a). Like our judgment, our mandate ordered that appellees recover their costs of this appeal from appellant but did not include any rulings or instructions regarding the issue of attorneys' fees.
Almost six weeks later, on November 17, 2020, appellees filed the motion for "damages" that is currently pending before us. The "damages" appellees seek apparently consist of approximately $13,500 in attorneys' fees that appellees maintain they incurred in connection with this appeal. In their motion, appellees ask us to determine that appellant's appeal was frivolous and to order appellants to pay those attorneys' fees under rule of appellate procedure 45 and section 27.009(b) of the TCPA. See TEX. R. APP. P. 45; TEX. CIV. PRAC. & REM. CODE § 27.009(b).
On November 24, 2020, appellant submitted a letter to the Court asserting that the motion is without merit and could be denied without the necessity of a response, while also indicating a willingness to submit a response should the Court like one. A response is unnecessary under the circumstances.
Our plenary power has expired. See TEX. R. APP. P. 19.1(a). While we may take certain actions after our plenary power has expired, we may not take the steps appellees now ask us to take. See TEX. R. APP. P. 19.3.
Accordingly, we dismiss appellees' motion for want of jurisdiction.
/s/ KEN MOLBERG
JUSTICE