Facts
- Christopher Isaiah Manns was indicted for multiple charges, including attempted malicious wounding and using a firearm in the commission of a felony [lines="18-19"].
- Manns originally faced a jury trial but, after a series of continuances, a bench trial was set for May 3, 2022 [lines="47-50"].
- During the August 27, 2021 hearing, Manns expressed a desire for a jury trial, but later did not object to subsequent orders setting a bench trial [lines="72-75"], [lines="135-139"].
- On May 3, 2022, Manns' counsel confirmed that he had waived his right to a jury trial and proceeded with the bench trial [lines="95-101"].
- Manns' motion to vacate his convictions was filed three months after trial, asserting he did not waive his right to a jury [lines="104-112"].
Issues
- Did Manns effectively waive his right to a jury trial during the proceedings? [lines="35"].
- Was the trial court's acceptance of Manns' waiver valid given his later claims of not waiving that right? [lines="135-138"].
Holdings
- The court affirmed that Manns waived his right to a jury trial, noting his counsel's confirmation and lack of objection during the bench trial [lines="154-156"].
- Manns' attempt to retract his waiver after the trial constitutes an impermissible change in position, which precluded reconsideration of the waiver [lines="157-158"].
OPINION
Case Information
*0 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 10/28/2024 8:00:00 AM ELIZABETH G. FLORES Clerk *1 ACCEPTED 08-24-00363-CV EIGHTH COURT OF APPEALS EL PASO, TEXAS 08-24-00363-CV 10/27/2024 6:07 PM ELIZABETH G. FLORES CLERK No. 08-24-00363-CV [1]
In The
Eighth Court of Appeals, at El Paso, Texas
__________________________________ BENJAMIN DUNN
Appellant, v.
THOMPSON, COE, COUSINS & IRONS, L.L.P., Appellee.
__________________________________ On appeal from Cause No. D-1-GN-23-008730, in the 455th Judicial District Court of Travis County, Texas; the Honorable Amy Clark Meachum, Presiding
__________________________________ APPELLANT BENJAMIN DUNN’S RESPONSE TO APPELLEE
THOMPSON, COE, COUSINS & IRONS, L.L.P.’S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION AND APPELLANT’S MOTION FOR SANCTIONS FOR APPELLEE FILING FRIVOLOUS MOTION __________________________________ /s/ Benjamin Paul Dunn Benjamin Paul Dunn Texas Bar No. 24124581 *2 ben@benpdunn.com Pro Se Appellant P.O. Box 311128 New Braunfels, TX 78131-1128 P: 210-819-3970 PRO SE APPELLANT *3 TABLE OF CONTENTS TABLE OF CONTENTS ……………………………………………………… i
TABLE OF AUTHORITIES …………………………………………………..ii
FACTUAL AND PROCEDURAL BACKGROUND ……………………… 2
A. Procedural History in the Court Below …………………………….. 3 B. The trial court dismissed all of Appellant’s causes of action against Appellee in its June 20, 2024 order, meaning that as between Appellant and Appellee, the dismissal was not an accelerated appeal, but instead was a regular dismissal subject to the usual appeals timeline ………………………………………………………… 5 C. This is not an accelerated appeal, as Chapter 27 of the Texas Civil Practice & Remedies Code applies to denials of TCPA Motions to Dismiss, not an appeal from an order granting a TCPA Motion to Dismiss …………………………………………………………………… 6 D. Because this is not an accelerated appeal, it was filed timely……. 9 E. Appellee’s timeline has issues…………………………………………. 9
CONCLUSION AND PRAYER ……………………………………………. 11
CERTIFICATE OF CONFERENCE ……………………………………… 12
CERTIFICATE OF SERVICE ……………………………………………... 12
TABLE OF AUTHORITIES CASES
In re Panchakarla, 602 S.W.3d 536, 538 (Tex. 2020) (orig. proceeding)
(per curiam) ......................................................................................... - 8 -
STATUTES
T EX . C IV . P RAC . & R EM . C ODE A NN . § 51.014 ........................................... - 7
T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.003 ......................................... - 7-
T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.008 ........................................ - 7 -
RULES
T EX . R. A PP . P. 10.1 .............................................................................. - 12 -
T EX . R. A PP . P. 26.1 ................................................................................ - 5 -
T EX . R. A PP . P. 26.3 ................................................................................ - 5 -
T EX . R. PP . P. 9.4 ................................................................................ - 11 -
T EX . R. . P. 9.5 ................................................................................ - 1 2 -
T C IV P. 4 .................................................................................... - 10 -
-
TO THE HONORABLE COURT OF APPEALS:
Appellant Benjamin Dunn moves the Court to disregard, dismiss, and overrule Appellee Thompson, Coe, Cousins & Irons, L.L.P.’s Motion
to Dismiss for Want of Jurisdiction, first, (1) because Appellee did not
comply with T P. 9.4(e) (requiring that “A document produced
on a computer must be printed in a conventional typeface no smaller than
14-point except for footnotes, which must be no smaller than 12-point.”),
and second, (2) because it is brought solely for purpose of delay, as
explained in further detail below, and the Motion to Dismiss for Want of
Jurisdiction was filed wholly without merit as Appellant was appealing
a regularly dismissed cause of action. Appellant’s notice of appeal was for
a final, appealable order, as to all causes of action existing between
Appellant, and Appellee, and so it is not interlocutory as no causes of
action remained from the trial court’s order of dismissal dated June 20,
2024, and as other sister appellate courts have held.
Appellant further moves the Court of Appeals to sanction Appellee and Appellee’s counsel for bringing this frivolous Motion before the Court
of Appeals.
Appellee’s Motion to Dismiss for Want of Jurisdiction appears to have been completely written in 12-point font, however, because Appellee
had the experience of an appellate lawyer, the Court should not allow its
Motion to Dismiss for Want of Jurisdiction to be considered, as their
counsel should have known the T EXAS R ULES OF A PPELLATE P ROCEDURE .
In the interest of justice, however, the Court of Appeals may consider an
incorrectly formed document to be considered in the interest of justice .
T EX . R. A PP . P. 9.4 (“Except for the record, a document filed with an
appellate court, including a paper copy of an electronically filed
document, must— unless the court accepts another form in the interest of
justice —be in the following form[.]”) (emphasis supplied). Appellant
defers to the wisdom of the Court of Appeals in this determination.
For the Court, this Appellant’s Response to Appellee’s Motion to Dismiss for Want of Jurisdiction, complies with the required 14-point
font size of T EX . R. PP . P. 9.4(e). The typeface utilized by Appellant for
this response is Century Schoolbook, which has been completed in 14-
point font for the text of Appellant’s Response, and 12-point font for all
footnotes, in full compliance with T P. 9.4(e).
FACTUAL AND PROCEDURAL BACKGROUND *7 A. Procedural history in the trial court below.
The procedural history in the trial court below is important to consider, in responding to Appellee’s Motion to Dismiss for Want of
Jurisdiction.
Appellant sued Appellee, and others, by the filing of his Original Petition with the Travis County District Clerk, on December 4, 2023.
Clerks Record (“CR”) 5–15. In Appellant’s Original Petition, he sued
Appellee for defamation of character, in that Appellant caused to be
stated factually false statements relating to Appellant. Id . Appellant also
originally sued Jane Does and John Does. CR 5. In response, Appellee
filed its TCPA Motion to Dismiss (“TCPA MTD”) with the Clerk on May
2, 2024. CR 26. On May 20, 2024, Appellant’s trial counsel filed her
Notice of Appearance and Designation of Lead Counsel (CR 55–57), and
Appellant filed his First Amended Petition, suing Defendant Stephanie
Simons Rojo for the first time for defamation of character (CR 57–72).
The trial court held a hearing on Appellee’s TCPA MTD on May 21, 2024.
Reporter’s Record (“RR”) 1. The trial court provided Appellant until July
1, 2024 to file his response to Appellee’s TCPA MTD (RR 11) (“So I’m on
the clock. I calculate my deadline as 7-1-2024, if what you said is correct.
And so get that response on file, and I’ll look at it.”), but prior to July 1,
2024, Appellee’s trial counsel violated various local rules, the Texas Rules
of Civil Procedure, and filed a time-is-of-the-essence filing with the trial
court via the trial court’s submission email address, on June 17, 2024 (CR
155).
The trial court signed its order dismissing Appellant’s causes of action against Appellee, inter alia , on June 20, 2024 (CR 156), which was
submitted by Appellee’s trial counsel, in violation of various rules, with
the trial court directly via the trial court’s submission email. CR 155.
Appellant filed his Motion for New Trial and In the Alternative Motion to Correct and/or Reform Judgment on Defendant TCCI’S TCPA Motion
to Dismiss, and paid the applicable fee with the Clerk, on July 19, 2024.
CR 212–234. The filing of the Motion for New Trial, pursuant to T EX . R. PP . P. 26.1(a)(1), meant the timely notice of appeal for Appellant was
required to be filed “within 90 days after the judgment is signed”.
Appellant filed his notice of appeal on the 90 th day after the trial court signed its order of dismissal dated June 20, 2024. CR 287–288.
Even presuming Appellant was late in filing his appeal, which was not
subject to an accelerated appeal, Appellant requests the Court of Appeals
to consider T P. 26.3 and grant Appellant an extension,
because Appellee did not bring up the alleged late-filed appeal until after
the time period provided for under T P. 26.3. However,
Appellant does not concede that his appeal was not timely filed.
B. The trial court dismissed all of Appellant’s causes of action against Appellee in its June 20, 2024 order, meaning that as between Appellant and Appellee, the dismissal was not an accelerated appeal, but instead was a regular dismissal subject to the usual appeals timeline.
Appellee wants to use the trial court’s dismissal order of June 20, 2024, as both a shield and a sword. Appellant admits that the trial court
dismissed his TCPA cause of action against Appellee, on June 20, 2024,
and all of the causes of action filed by Appellant against Appellee,
meaning the June 20, 2024 order dismissing Appellant’s cause of action
against Appellee was a final, appealable order and this appeal, is
therefore, not interlocutory. CR 73, 156 (“IT IS HEREBY ORDERED that
Defendant’s Motion to Dismiss under the Texas Citizen’s Participation
Act is GRANTED and all claims in Plaintiff’s First Amended Petition are
dismissed as a matter of law.”) (emphasis supplied). This appeal is not
interlocutory, because as between Appellant and Appellee, the trial
court’s June 20, 2024 order dismissed Appellant’s defamation lawsuit
against Appellee, and incorrectly also dismissed “all claims in Plaintiff’s
First Amended Petition”. CR 156.
Appellee and Defendant Stephanie Simons Rojo share the same trial counsel, and that trial counsel filed a special appearance in Stephanie
Simons Rojo’s answer, attempting to use the trial courts complete
dismissal of June 20, 2024 as a shield. CR 283–286.
C. This is not an accelerated appeal, as Chapter 27 of the Texas Civil Practice & Remedies Code applies to denials of TCPA Motions to Dismiss, not an appeal from an order granting a TCPA Motion to Dismiss.
As Appellant has shown above, Appellant timely filed his appeal if the trial court’s June 20, 2024 order did as it stated it did and dismissed all
of Appellant’s causes of action against Appellee, and others, because
Appellant was not appealing a denial of a TCPA MTD. See CR 73, 156 (IT
IS HEREBY ORDERED that Defendant’s Motion to Dismiss under the
Texas Citizen’s Participation Act is GRANTED and all claims in
Plaintiff’s First Amended Petition are dismissed as a matter of law.”)
(emphasis supplied); T EX . C IV . P RAC . & R EM . C ODE NN . § 27.008(b).
However, T C IV P RAC . & R EM . C ODE NN . § 27.008(b) is only cross-
referencing T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.003, whereas T EX .
C IV . P RAC . & R EM . C ODE A NN . § 27.003, which applies to the party filing
the TCPA MTD and mandates the requirements of a Court to follow in
applying the TCPA Chapter 27. Indeed, T EX . C IV . P RAC . & R EM . C ODE NN . § 27.008(b) provides ample clarification, wherein it states that “An
appellate court shall expediate an appeal or other writ, whether
interlocutory or not, form a trial court order on a motion to dismiss a legal
action under Section 27.003 or from a trial court’s failure to rule on that
motion in the time prescribed by section 27.005.” Section 27.008 does not
apply to a party against whom a TCPA MTD was granted against, but
instead the accelerated appeal applies to the party moving for the TCPA
MTD. Indeed, T C IV P RAC . & R EM . C ODE NN . § 51.014(a)(12) states
that “A person may appeal from an interlocutory order of a district court
. . . that . . . denies a motion to dismiss filed under Section 27.003”.
(emphasis supplied).
Appellee cannot use the trial court’s order of June 20, 2024 as both a sword and a shield.
The case law citing to cases where the TCPA appeal was tied to an interlocutory appeal are not applicable to this case as this case was a
final, appealable order from a motion for new trial, moreover, those cases
do not involve the filing of a motion for new trial, as this case does. First,
as stated above, the trial court’s order dismissed, as Appellee admits, all
of Appellant’s causes of action against Appellee. Second, because a
motion for new trial was timely filed, the regular appeals process applies,
not an accelerated appeal process.
The Texas Supreme Court has ruled on this issue, and has stated that “[i]f the trial court timely grants the motion to dismiss, an order disposing
of the entire case is appealable to the same extent as any other final
judgment . But if granting the motion does not resolve the entire
controversy, the order is interlocutory and unappealable unless made
final by severance.” In re Panchakarla , 602 S.W.3d 536, 538 (Tex. 2020)
(orig. proceeding) (per curiam) (emphasis supplied). The case at bar
follows the facts as set out by the Supreme Court of Texas case of In re
Panchakarla , and so the Court of Appeals should dismiss Appellee’s
Motion to Dismiss for Want of Jurisdiction, and grant Appellant’s motion
for sanctions against Appellee. Appellant filed a timely motion for new
trial. The trial court’s order of June 20, 2024, and by admission of counsel
for Appellee, the trial court’s order dismissed the entire lawsuit as
between Appellant and Appellee. But the trial counsel for Appellee goes
farther and contends that the trial court’s dismissal of June 20, 2024
applies to all issues by Appellant, Appellee, and Defendants Jane Does,
John Does, and Stephanie Simons Rojo. CR 283–286.
Under In re Panchakarla , the issues as to Appellant and Appellee were completely resolved in the trial court’s June 20, 2024 order granting the
Appellee’s TCPA MTD, as such, this appeal is timely filed.
D. Because this is not an accelerated appeal, it was filed timely. As stated above, this was not an accelerated appeal and it was timely filed, because it was not an accelerated appeal.
E. Appellee’s timeline has issues. Appellee argues, incorrectly, that Appellant filed his appeal 91 days after the trial court signed the June 20, 2024 order. Under T C IV P.
4, you do not count the date of the action, here, the date the trial court
signed the dismissal order, but instead count beginning after the date of
the action, here after the date the trial court signed its order of dismissal.
(“In computing any period of time prescribed or allowed by the rules, by
order of court, or by any applicable statute, the day of the act , event , or
default after which the designated period of time begins to run is not to be
included .”) (emphasis supplied). Considering the correct application of
T EX . R. C IV . P. 4, Appellant filed his notice of appeal on the 90 th day after
the trial court signed its order dismissing all causes of action filed by
Appellant against Appellee on June 20, 2024—not 91 days after the order
was signed, as Apellee incorrectly has argued to this Court.
Practitioners do not count the day of the event when calculating a deadline under T EX . R. C IV . P. 4. Justice Rebecca Simmons, in her pretrial
procedure class in law school, taught us well, and taught us that the T EX .
R. C IV . P. apply as if you were playing Candyland, you do not begin
counting when you pick up the piece, but you begin counting on the space
immediately after the space you leave from, when moving on a new turn
in Candyland, and the timelines under the T EX . R. C IV . P. work similarly
as the rules of Candyland do.
F. Appellant objects that Appellee did not follow T EX . R. PP . P. 9.4 in its formatting of form in its Motion to Dismiss for Want of Jurisdiction.
As stated above, Appellee’s Motion to Dismiss for Want of Jurisdiction does not comply with the T EX R. . P. 9.4, and to the extent Appellee’s
Motion to Dismiss for Want of Jurisdiction does not comply with T PP . P. 9.4, Appellant would as the Court to dismiss it for failing to
confirm to the Rules applicable before the Court of Appeals.
CONCLUSION AND PRAYER When applying applicable Supreme Court of Texas case law, it becomes clear that this Court does have jurisdiction to hear this appeal.
Furthermore, Appellee’s Motion to Dismiss for Want of Jurisdiction does
not conform to the T P. As such, the Court of Appeals should
overrule Appellee’s Motion to Dismiss for Want of Jurisdiction and
sanction Appellee and Appellee’s counsel for the filing of a frivolous
motion with the Court of Appeals, that the Court of Appeals tax costs
against Appellee for its filing of a frivolous motion, and for such other and
further relief to which Appellant may be justly entitled.
Respectfully submitted, /s/ Benjamin Paul Dunn Benjamin Paul Dunn State Bar No. 24124581 ben@benpdunn.com P: 210-819-3970 P.O. Box 311128 New Braunfels, TX 78131-1128 PRO SE APPELLANT *16 CERTIFICATE OF CONFERENCE By my signature above, I do hereby certify that pursuant to T EX . R. PP . P. 10.1(a)(5) that I conferred with Appellee’s counsel via email on October 27, 2024 regarding the relief sought by the forgoing motion.
Counsel for Appellee responded that he was opposed to the motion.
CERTIFICATE OF SERVICE By my signature above , I do hereby certify that the forgoing Response has been sent electronically to the Appellee’s attorney of record
on the date of filing in compliance with T P. 9.5(b)(1).
- 12 - *17 Automated Certificate of eService This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 93613536
Filing Code Description: Response
Filing Description: Appellant's Response to Appellee's Motion to Dismiss
for Want of Jursidiction
Status as of 10/28/2024 10:08 AM MST
Associated Case Party: BenjaminPDunn
Name BarNumber Email TimestampSubmitted Status
Benjamin PaulDunn ben@benpdunn.com 10/27/2024 6:07:48 PM SENT
Associated Case Party: Thompson, Coe, Cousins & Irons, LLP d/b/a Thomposon
Coe
Name BarNumber Email TimestampSubmitted Status
Amy Welborn awelborn@grsm.com 10/27/2024 6:07:48 PM SENT
Marisol Mendiola mmendiola@grsm.com 10/27/2024 6:07:48 PM SENT
Steven Bitter sbitter@grsm.com 10/27/2024 6:07:48 PM SENT
Anna Ortiz aortiz@grsm.com 10/27/2024 6:07:48 PM SENT
Cynthia Givens cgivens@grsm.com 10/27/2024 6:07:48 PM SENT
Taylor Yetter tyetter@grsm.com 10/27/2024 6:07:48 PM SENT
J. AndrewHutton ahutton@grsm.com 10/27/2024 6:07:48 PM SENT
[1] The Supreme Court of Texas, Misc. Docket No. 24-9081, ordered that this case, inter alia , be transferred from the 3rd Court of Appeals, Docket No. 03-24-00613-CV, is now in the 8th Court of Appeals, Docket No. 08-24-00363-CV. As such, the 8th Court of Appeals shall decide this case according to the precedent of the 3rd Court of Appeals.