Opinion
01-22-00599-CV
09-15-2022
Wen Lian H. Patience v. Christine Hendricks Hodson
458th District Court of Fort Bend County, Trial court case number: 22-DCV-290170
ORDER & NOTICE OF INTENTION TO DISMISS FOR LACK OF JURISDICTION
RICHARD HIGHTOWER JUDGE.
This is an appeal from a judgment signed on June 1, 2022, granting appellee Christine Hendricks Hodson's motion to dismiss pursuant to the Texas Citizen's Participation Act (TCPA). Appellant Wen Lian H. Patience filed a motion for new trial on July 1, 2022 and a notice of restricted appeal on August 17, 2022.
On September 8, 2022, the Court issued an order advising appellant that the notice of restricted appeal was incorrect because the record showed that appellant participated in the hearing that resulted in the trial court's judgment. The order did not mention that the notice of appeal, though timely for a restricted appeal, appeared to be untimely for an expedited appeal from an order under TCPA Section 27.003, which must be filed in compliance with the rules concerning accelerated appeals. See Spencer v. Pagliarulo, 448 S.W.3d 605, 606 (Tex. App.-Houston [1st Dist.] 2014, no pet.) ("An appeal from an 'order on a motion to dismiss a legal action under Section 27.003' of the Texas Civil Practice and Remedies Code is an accelerated appeal.") Because the Court's order of September 8, 2022 may have given the impression that appellant's notice of appeal may have been timely as a notice of accelerated appeal, the Court withdraws the order of September 8, 2022.
A notice of accelerated appeal must be filed within 20 days from the date the order or judgment is signed or within 15 days of that deadline with a motion for extension of time to file the notice of appeal. See Tex. R. App. P. 26.1(b); 26.3. The deadline to file a notice of accelerated appeal is not extended by the filing of a motion for new trial. See Tex. R. App. P. 28.1(b); In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Because the trial court signed its judgment on June 1, 2022, the notice of accelerated appeal was due by June 21, 2022, or with a motion for extension of time to file the notice of appeal, July 6, 2022. The clerk's record indicates that the notice of appeal was not filed until August 17, 2022. Although appellant filed a motion to amend her notice of appeal to a notice of accelerated appeal, the deadline to file a notice of accelerated appeal had already expired.
Because appellant's notice of appeal, originally filed on August 17, 2022, appears to be untimely filed for an accelerated appeal, the Court will dismiss the appeal for lack of jurisdiction unless appellant files a response within 10 days from the date of this order establishing that this Court has jurisdiction.
It is so ORDERED.