                                                                               ACCEPTED
                                                                           06-13-00051-CV
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                     8/26/2015 10:19:44 AM
                                                                          DEBBIE AUTREY
                                                                                    CLERK


                      NO. 06-13-00051-CV

                                                  FILED IN
                                           6th COURT OF APPEALS
               IN THE COURT OF APPEALS       TEXARKANA, TEXAS
            FOR THE SIXTH DISTRICT OF TEXAS8/26/2015 10:19:44 AM
                 AT TEXARKANA, TEXAS            DEBBIE AUTREY
                                                    Clerk


                   WARREN WHISENHUNT,
                        Appellant,

                               v.

          MATTHEW LIPPINCOTT and CREG PARKS,
               Appellees and Cross-Appellants,


 On Appeal from the County Court at Law of Hopkins County, Texas
                       Cause No. CV 41303
              The Honorable Amy M. Smith Presiding


APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT
      AND CREG PARKS', MOTION FOR REHEARING




                                    JonM. Smith
                                    State Bar No. 18630750
                                    3305 Northland Drive
                                    Suite 500
                                    Austin, Texas 78731
                                    Telephone: (512) 371-1006
                                    Facsimile: (512) 476-6685
                                    jon@jonmichaelsmith.com




                                1
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:


      Appellees and Cross-Appellants, Matthew Lippincott and Creg Parks, file

this motion for rehearing and would show as follows:



                                  INTRODUCTION

      Lippincott and Parks request that this Court reconsider its decision not to

consider their cross appeal.         Texas law and judicial economy support the

consideration of the cross appeal.



                    THE CROSS APPEAL WAS TIMELY FILED

      This Court concluded that because Lippincott and Parks' cross appeal was

not timely filed that it did not have jurisdiction to consider it. The court relied on a

mix of appellate court decisions, none of which specifically addresses the issue in

this case. There are other appellate opinions that either address the issue more

directly or that set forth a preferable approach to this issue and which should be

followed.

      The version of the TCPA in effect at the time relevant to this case does not provide

a deadline for a cross appeal. As then worded, the statute stated, "An appeal or other writ

under this section must be filed on or before the 60th day after the date the trial court's

order is signed." Act of May 21, 2011, 82d Leg., R.S., ch. 341, §2, Sec. 27.008(c), 2011


                                            2
Tex. Gen. Laws 961, 963 . There is nothing in any part of section 27.008 of the TCPA

that prohibits a cross-appeal or prevents a party from filing a cross-appeal by complying

with the deadline set forth in Tex. R.App. P. 26.1(d). As stated in this court's opinion,

Whisenhunt timely filed a notice of appeal, satisfying the statute's requirement for filing

"an appeal."

       The plain meaning of Rule 26.1(d) shows that it applies to the deadline to file a

notice of cross-appeal in any situation, including an appeal under the TCPA.              Rule

26.1 (d) states, "if any party timely files a notice of appeal, another party may file a notice

of appeal within the applicable period stated above or 14 days after the first filed notice

of appeal, whichever is later." Rule 26.1 (d) is not limited to any particular type of appeal

and does not exclude accelerated appeals.

       The cases cited by the Court in support of its decision do not address the issue of a

cross appeal after an appeal has been perfected. In Jain v. Cambridge Petroleum Grp.,

Inc., 395 S.W.3d 394 (Tex. App.-Dallas 2013, no pet.) the Dallas Court of Appeals was

considering whether the deadline for perfecting an appeal under the TCPA could be

extended by the weekend provisions of Texas Rule of Appellate Procedure 4.1. In

holding that the deadline could not be extended in that way, the Dallas court cited Texas

Rule of Appellate Procedure 28.1(b). That rule states, "Unless otherwise provided by

statute, an accelerated appeal is perfected by filing a notice of appeal in compliance with

Rule 25.1 within the time allowed by Rule 26.l(b) or as extended by Rule 26.3."

(emphasis added).     Unlike Rule 28.1(b), Rule 26.1(d) does not contain the limiting

language of "unless otherwise provided by statute."

                                               3
       Similarly, the other case cited by the Court on this point, In re D.B., 80 S.W.3d

698 (Tex. App.-Dallas 2002, no pet.) discussed the deadline for perfecting an appeal in

order to vest the appellate court with jurisdiction. The court in D.B. stated, "When a

statute provides the deadline for perfecting an appeal, compliance with that statutory

deadline, not the deadline in the rules of appellate procedure, is necessary to give the

appellate court jurisdiction. In re D.B., 80 S.W.3d at 702. When Whisenhunt timely filed

his notice of appeal this court obtained jurisdiction over the appeal.

       The Dallas Court of Appeals actually considered the specific issue before this

Court in Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.-Dallas

2014, no pet.) In the Gonzalez case the court considered whether a cross appellant was

entitled to the additional fourteen days provided under Texas Rule of Appellate

Procedure 26.1(d) in the context of an appeal under the TCPA. The court in Gonzalez

held that because section 27.008(a) states that a party "may" appeal, that created a

permissive right of interlocutory appeal. Because Dinah was not required to file an

interlocutory appeal and could appeal after final judgment, the court denied ARC's

motion to dismiss Dinah's cross appeal for lack of jurisdiction. This Court should make

the same ruling.

       In discussing the case of Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009), the

Gonzalez court reasoned that, "The court also concluded that permitting the appeal after

final judgment would advance the legislature's purpose in adopting the motion-to-dismiss

procedure by facilitating a defendant's right to seek redress for defending a meritless

claim and by perhaps reducing the number of interlocutory appeals." !d. Similarly in the

                                              4
instant case, ifthe point ofthe TCPA's dismissal procedure is one of judicial economy,

then it is contrary to that goal to set up a framework in which there could potentially be

two appeals instead of only one. In other words, because the TCPA's interlocutory

appeal right is permissive, Petitioners could have immediately appealed the court's partial

denial of their motion to dismiss, or they could have waited and appealed that denial after

final judgment. Because Respondent chose to appeal the partial granting ofthe motion to

dismiss on an interlocutory basis, it only makes sense that a cross-appeal would be

allowed to frame all of the issues at once as opposed to having a second potential appeal

looming after this case is concluded. Presumably at least a part of the purpose behind

Rule 26.1 (d) is to allow a party to determine whether it appeals based on whether the

other party appeals. Because of the 14-day window provided by Rule 26.1(d) many

appeals that would be filed ''just in case" are never filed. There is no reason to eliminate

that effective tool in the context ofthe TCPA's interlocutory appeal scheme.

       The other two cases cited by the Court, Valerus Compression Servs. v. Reeves

Cnty. Appraisal Dist., No. 08-13-00366-CV, 2014 WL 645035 (Tex. App.-El Paso Feb

19, 2014, no pet.)(mem. op.) and Charette v. Fitzgerald, 213 S.W.3d 505 (Tex. App.-

Houston [14th Dist.] 2006, no pet.) fail to address the issue before this Court. In both of

those cases the courts of appeals dismissed cross appeals that had failed to meet the

deadline under TRAP 26.1(d).       Lippincott and Parks met that deadline and, therefore,

this Court has jurisdiction to consider the cross appeal.

       The better approach in deciding this issue is that taken by the San Antonio Court

of Appeals in Stolte v. Cnty. Of Guadalupe, 139 S.W.3d 406, 408 (Tex. App.-San

                                              5
Antonio 2004, no pet.). The court in Stolte specifically disagreed with the Dallas Court

of Appeals' opinion in the In re D.B. case. In Stolte, the court held that an application for

permission to appeal pursuant to Texas Civil Practice & Remedies Code §51.014(f) is

subject to the motion for extension of time provision in TRAP 26.3(b). In so holding, the

San Antonio court cited the Texas Supreme Court in stating that, "appellate courts should

not dismiss an appeal for a procedural defect whenever any arguable interpretation of the

Rules of Appellate Procedure would preserve the appeal. Stolte, 139 S.W.3d at 409,

citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Supreme Court made

no distinction between various types of appeals in that opinion.

       This court should follow the reasoning applied in Stolte and Verburgt and consider

Lippincott and Parks' cross appeal. As has been previously briefed in this Court, because

Whisenhunt failed to meet his burden in responding to the TCPA motion to dismiss with

regard to his defamation claim, if this Court grants this motion for rehearing and

considers the cross appeal, it will likely result in the dismissal of Whisenhunt's final

remaining cause of action.

       Because the 14-day window for cross-appeals provided for by TRAP 26.1 (d)

applies in this case, this Court has jurisdiction on Petitioners' cross-appeal.




                                         PRAYER

       FOR THE FOREGOING REASONS, Appellees and Cross-Appellants pray

that this Court grant this motion for rehearing and consider their cross appeal.



                                              6
Appellees and Cross-Appellants further pray that this court reverse the trial court's

refusal to dismiss Whisenhunt's defamation claim and reverse Judge Smith's

failure to impose the mandatory sanction against Whisenhunt and remand this case

to the trial court for the purpose of allowing the court to consider evidence

regarding the proper imposition of attorney's fees, costs and sanctions.

                                       Respectfully submitted,



                                        /s/ Jon Smith- - - - -
                                       JonM. Smith
                                       State Bar No. 18630750
                                       3305 Northland Drive
                                       Suite 500
                                       Austin, Texas 78731
                                       Telephone: (512) 371-1006
                                       Facsimile: (512) 476-6685
                                       jon@jonmichaelsmith.com


                                       ATTORNEYFORAPPELLEESAND
                                       CROSS-APPELLANTS LIPPINCOTT
                                       AND PARKS



                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent
applicable, I certify that this brief contains 1628 words.



                                        /s/ Jon Smith- - - - -
                                       Jon Michael Smith

                                          7
                         CERTIFICATE OF SERVICE

      I, Jon Michael Smith, do hereby certify that a true and correct copy of the
foregoing document was delivered to all attorneys of record as listed below via fax
on August 26, 2015.

Alan E. Brown            Via Fax: 903-597-2413
Ramey & Flock, P.C.
100 East Ferguson
Suite 500
Tyler, Texas 75702

FarbodFamia             Via Fax: 214-741-4717
McCathem, L.L.P.
Regency Plaza
3710 Rawlins, Ste. 1600
Dallas, Texas 75219




                                       /s/ Jon Smith' - - - - - - -
                                      Jon Michael Smith




                                         8
