In a case that, among other things, demonstrates the consequences of failing to timely file a notice of appeal in an accelerated appeal, the Dallas Court of Appeals has dismissed a plaintiff’s appeal of a trial court order dismissing some of his claims under the Texas Citizens Participation Act (Ch. 27, CPRC).
Michael Sutton v. Octapharma Plasma Incorporated (No. 05-20-00018-CV; issued December 23, 2022) arose from a blood banks alleged mishandling of plaintiff’s blood plasma donation in 2017. The blood bank’s test found the donation positive for HIV, which triggered reporting requirements to Dallas County, the National Donor Registry, and other blood banks. The blood bank made those reports without retesting or obtaining a second donation. Subsequently, plaintiff was barred from making further blood plasma donations. Plaintiff initially sued the blood bank for negligence and defamation, and later added claims for violations of the DTPA, tortious interference, conspiracy to commit tortious interference, and declaratory judgment stating that plaintiff was not HIV-positive. The blood bank filed a TCPA motion to dismiss the negligence, defamation, and DTPA claims that were based on the bank’s reporting of the test results. The trial court granted this motion and issued an order dismissing those claims. The blood bank further moved for summary judgment on the non-TCPA claims, which the trial court granted nearly a year later on October 7, 2019. Plaintiff filed a motion for reconsideration or, alternatively, a new trial on November 5, which the trial court denied on December 2. Plaintiff filed a notice of appeal on January 2, 2020.
The question before the court of appeals was when the 20-day clock for filing a notice of appeal in an accelerated appeal (i.e., the TCPA order) began to run. The blood bank argued that the clock started on October 7, 2019, the date the trial court signed its summary judgment order disposing of all claims. It further argued that plaintiff’s postjudgment motion for reconsideration, filed on November 5, did not extend the 20-day deadline. Plaintiff argued that the deadline ran from the date of the trial court’s denial of his postjudgment motion on December 2. He based this argument on a postjudgment motion’s effect on a trial court’s plenary power, which in this case would have extended to December 20. In that event, his January 2 notice of appeal was well within the 20-day accelerated notice period.
The court of appeals agreed with the blood bank. Noting that plaintiff ignored Texas Rule of Appellate Procedure 28.1(b), which provides that “a motion for new trial or other postjudgment motion does not extend the deadline to perfect an appeal” (emphasis added), the court pointed out that if plaintiff had filed a motion for 15-day extension of the 20-day deadline under Rule 26.3, it could have assumed that the trial court granted the extension and accepted plaintiff’s appeal as timely. But plaintiff didn’t file that motion. As SCOTX held in In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005), “in an accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is strictly set at 20 days after the judgment is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fat and conclusions of law will not extend the deadline. Allowing such post-order motions to automatically delay the appellate deadline is simply inconsistent with the idea of accelerating the appeal in the first place” (emphasis added). Oops.
The court of appeals went on to affirm the trial court’s summary judgment on all claims in favor of the blood bank on the basis that plaintiff “ha[s] inadequately briefed this issue because, with respect to his arguments on this issue, [plaintiff] offers little to no citation to the record, analysis of the evidence, or citation to legal authorities to support his conclusion.” That’s another oops. We are constantly surprised to see intermediate appellate decisions admonishing parties for not briefing their issues. This has to be incredibly frustrating for appellate justices who have to devote considerable time and effort to a case when a party didn’t do the same.
