Opinion
NO. 03-17-00289-CV
08-11-2017
Appellants, Ryan R. Grant (individually, and as trustee of the Ryan R. Grant 2007 Trust); Laura Grant; Jana Grimes; John E. Grimes (trustee of the John E. Grimes 2007 Trust); Anne Fielding; Scott Sizemore; John D. Rowell; Herschel Sova; Britta Butler; Nathan Tart; Kristin Hunninghake; Susan Robb; Robert Arnett; Claire Gregory; Danna Stedman; Sue Hawk; Blaine Matte; Russell Harris; Ashley Ambroso; Julianne Primeaux; Briana Burt; Kiera Talbott; Marc Ferrari; David Morales; James Friedrich; Jeremy Kling; GTS Technology Solutions, Inc. (formerly ARC Government Solutions, Inc. and Austin Ribbon & Computer Supplies, Inc.) // Cross-Appellants, Pivot Technology Solutions, Ltd.; Pivot Acquisition Corp.; and ARC Acquisition (US), Inc. v. Appellees, Pivot Technology Solutions, Ltd.; Pivot Acquisition Corp.; and ARC Acquisition (US), Inc., // Cross-Appellees Ryan R. Grant (individually, and as trustee of the Ryan R. Grant 2007 Trust); Laura Grant; Jana Grimes; John E. Grimes (trustee of the John E. Grimes 2007 Trust); Anne Fielding; Scott Sizemore; John D. Rowell; Herschel Sova; Britta Butler; Nathan Tart; Kristin Hunninghake; Susan Robb; Robert Arnett; Claire Gregory; Danna Stedman; Sue Hawk; Blaine Matte; Russell Harris; Ashley Ambroso; Julianne Primeaux; Briana Burt; Kiera Talbott; Marc Ferrari; David Morales; James Friedrich; Jeremy Kling; GTS Technology Solutions, Inc. (formerly ARC Government Solutions, Inc. and Austin Ribbon & Computer Supplies, Inc.)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-16-005731 , HONORABLE DARLENE BYRNE, JUDGE PRESIDING ORDER
PER CURIAM
Appellants, the defendants below, filed a notice of appeal from an order signed by the trial court on April 17, 2017, denying a motion to dismiss filed by Appellants pursuant to the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (TCPA), 51.014(a)(12) (authorizing interlocutory appeal of order denying motion to dismiss filed under TCPA section 27.003). Appellees subsequently filed their own notice of appeal from the same order, "urg[ing] the Third Court to affirm the trial court's denial of [Appellants'] Anti-SLAPP Motion to Dismiss." In their notice of appeal Appellees state, "Although the Order specified several legitimate grounds for the trial court's denial of [Appellants'] Anti-SLAPP Motion to Dismiss, it did not address additional, legitimate grounds for the ruling. [Appellees] in the Third Court file this notice of appeal to include additional, proper bases for the trial court's denial of [Appellants'] Anti-SLAPP Motion to Dismiss."
Appellants have now filed a motion to dismiss Appellees' cross-appeal, asserting that the cross-appeal is "both unnecessary and procedurally improper" and "will only serve to increase the parties' expenses and burden on this Court." Appellants do not dispute that Appellees are generally entitled to raise alternative grounds for affirming the trial court's order (assuming such grounds were properly presented and preserved below) but instead contend that, as a procedural matter, Appellees' arguments should be raised in a response brief and that Appellees lack standing to file a separate cross-appeal.
A notice of appeal is necessary when a party seeks to alter all or some portion of the judgment. Tex. R. App. P. 25.1(c) ("A party who seeks to alter the trial court's judgment . . . must file a notice of appeal."); see Texas Comm'n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887, 892 (Tex. App.—Austin 2014, no pet.) (explaining that generally, party "who obtains a favorable judgment in the lower court may not appeal that judgment merely for the purpose of striking findings and conclusions with which it does not agree"). "The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause." See City of Austin v. Whittington, 384 S.W.3d 766, 789 (Tex. 2012) (citing Tex. R. App. P. 25.1(c)). Conversely, a notice of appeal is not necessary when a party merely seeks to raise additional arguments in support of an appealed judgment. Id. Such arguments, otherwise preserved, may instead be raised by the party in a response brief. Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ("The independent grounds for affirmance can be raised in a cross-point as long as the appellee is not requesting greater relief than that awarded by the trial court."). Although we understand why, out of an abundance of caution, a party may file a cross-appeal to ensure preservation of alternative grounds, the filing of a cross-appeal that does not seek to alter the trial court's judgment or seek additional relief not granted below is not only unnecessary, it is improper.
Appellees note that many courts of appeals have considered "conditional cross-appeals." See, e.g., Ranchero Esperanza Ltd. v. Marathon Oil Co., 488 S.W.3d 354 (Tex. App.—El Paso 2015, no pet.). There is no indication in the cases cited by Appellees, however, that any party objected to the cross-appeal or argued that the cross-appeal should be dismissed. Moreover, we see no reason why, in the absence of an objection made prior to briefing, an appellate court could not address issues that have been improperly raised in a cross-appeal by, in effect, treating the issues as if they had been properly raised in responsive briefing.
In their cross-appeal brief, Appellees raise arguments, not relied on by the trial court, that if meritorious, would support the trial court's decision to deny Appellants' TCPA motion to dismiss. To the extent these arguments were preserved below and Appellees wished to present them as alternative bases for affirmance, Appellees should have presented these arguments to this Court in their response brief to Appellants' appeal. See Cardwell v. Whataburger Rests., LLC, 484 S.W.3d 426, 428 (Tex. 2016) (per curiam) (concluding that petitioner could argue that other grounds she had raised in trial court would support trial court's denial of respondent's motion to compel, "without perfecting her own appeal") (citing Whittington, 384 S.W.3d at 789; Tex. R. App. P. 25.1(c)). Nevertheless, we will treat these alternative arguments as if they were properly raised by Appellees in Appellees' response brief and, if necessary, address the arguments in Appellants' appeal. Appellants may respond to these arguments in their reply brief. The motion to dismiss Appellees' cross-appeal is granted, and Appellees' cross-appeal is dismissed.
It is ordered on August 11, 2017. Before Justices Puryear, Field, and Bourland