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
Windsor v. Fleming Page 3