                              IN THE
                      TENTH COURT OF APPEALS

                            No. 10-14-00355-CV

WILLIAM M. WINDSOR,
                                                       Appellant
v.

SAM ROUND,
                                                       Appellee

                            No. 10-14-00___-CV

WILLIAM M. WINDSOR,
                                                       Appellant
v.

SEAN D. FLEMING,
                                                       Appellee


                        From the 40th District Court
                            Ellis County, Texas
                           Trial Court No. 88611


                                  ORDER


     William M. Windsor has filed a notice of appeal from an order that granted a

motion to dismiss filed by Sean D. Fleming. The motion was based on the Texas
Citizens Participation Act (TCPA), generally referred to as the Texas Anti-Slapp law.

“Slapp” is an acronym for “strategic lawsuits against public participation.”

       Windsor had previously filed a notice of appeal of an order granting the Special

Appearance of another defendant in the same suit, Sam Round. The appeal from the

order granting the special appearance is docketed as 10-14-00355-CV.

       Our first question is whether to file the appeal of the Anti-Slapp dismissal in the

same proceeding as the appeal of the special appearance.

       Texas Rule of Appellate Procedure 12 describes some of the duties of the

appellate court clerk. Included in the rule is an extensive description of the procedure

for assigning docket numbers to appeals. Rule 12.2(c) provides:

       Multiple Notices of Appeal. –All notices of appeal filed in the same case
       must be given the same docket number.

TEX. R. APP. P. 12.2(c).

       A literal application of the rule would potentially require both notices of appeal

to be filed under the same number. Such a reading would require that same docket

number be assigned to an appeal of the final judgment as had been assigned to an

interlocutory appeal. This is because the interlocutory appeal and the appeal of the

final judgment are both filed in the “same” case.

       However, it is common, if not the usual, practice for appellate court clerks to

assign one docket number to the interlocutory appeal and an entirely new docket

number to the appeal of a final judgment. Moreover, it would be unwieldy to have to
Windsor v. Fleming                                                                  Page 2
use a docket number for the appeal of the final judgment that had been previously used

for an interlocutory appeal when the interlocutory appeal has been concluded and the

file closed. The same problem would be present if a final judgment were reversed on

appeal and remanded for a new trial if there were an appeal after the new trial on

remand.

       Thus, we decline a literal application of Rule 12.2(c) as it would yield an absurd

result to construe and apply the term “same case” in this manner on these facts.

Furthermore, to the extent necessary, we use Rule 2 to suspend Rule 12.2(c) for good

cause as described herein and order a different procedure. See TEX. R. APP. P. 2; 12.2(c).

       The Clerk is hereby ordered to docket William M. Windsor’s notice of appeal of

the order granting Sean D. Fleming’s motion to dismiss as a new and separate appeal,

styled William M. Windsor v. Sean D. Fleming as distinguished from docket number 10-

14-00355-CV, styled William M. Windsor v. Sam Round.




                                          PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Order issued delivered and filed December 18, 2014
Publish




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