Warren Chen and Dynacolor, Inc. v. Razberi Technologies, Inc., Thomas J. Galvin, Liveoak Ventures Partners 1A, L.P., Kenneth L. and Virginia T. Boyda, as Trustees of the Boyda Family ( 2020 )

DISMISSED and Opinion Filed November 2, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01551-CV
WARREN CHEN AND DYNACOLOR, INC., Appellants
V.
RAZBERI TECHNOLOGIES, INC., THOMAS J. GALVIN, LIVEOAK
VENTURES PARTNERS 1A, L.P., KENNETH L. AND VIRGINIA T.
BOYDA, AS TRUSTEES OF THE BOYDA FAMILY, ET AL., Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-16568
MEMORANDUM OPINION
Before Justices Whitehill, Schenck, and Browning
Opinion by Justice Browning
In this appeal, appellants Warren Chen and DynaColor, Inc. challenge an
interlocutory order denying their special appearance. For the following reasons, we
dismiss the appeal as moot.
Background
The underlying lawsuit involved, among other things, claims for fraud and
breach of fiduciary duty regarding the purchase of certain stock. Appellants filed a
special appearance, which the trial court denied. Appellants filed an accelerated
notice of appeal challenging the special appearance. Despite appellants’ attempts to
stay the underlying proceedings, the proceedings continued.
Appellees subsequently filed motions for summary judgment, which the trial
court granted. The trial court signed a final judgment in appellees’ favor on June
30, 2020. The final judgment stated, “The Court previously disposed of certain
issues and claims in the above-referenced February 19, 2020 Order, the June 18,
2020 Order, and two nonsuit orders signed on April 23, 2020. These orders and all
other orders of the Court in this case are incorporated herein.”
Based on the final judgment, appellees filed a motion to dismiss arguing the
interlocutory appeal is now moot. They rely on City of Lancaster v. White Rock
Commercial, LLC, No. 05-16-00842-CV, 2017 WL 2875520, at *1 (Tex. App.—
Dallas July 6, 2017, no pet.) (mem. op.) and Henry v. Flintrock Feeders, Ltd., No.
07-04-0224-CV, 2005 WL 1320121, at *1–2 (Tex. App.—Amarillo June 1, 2005,
no pet.) (mem. op.). Appellants oppose the motion to dismiss.
Discussion
“Appeals of some interlocutory orders become moot because the orders have
been rendered moot by subsequent orders.” Hernandez v. Ebrom, 289 S.W.3d 316,
319 (Tex. 2009). We applied this reasoning in City of Lancaster. 2017 WL
2875520, at *1.
In that case, the trial court denied the city’s plea to the jurisdiction based on
governmental immunity, and the city perfected an interlocutory appeal. Id. While
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the interlocutory appeal was pending, the underlying case went to trial and final
judgment. Id. We asked for supplemental briefing on whether the appeal was
mooted by the final judgment, and both parties argued the appeal was not moot. Id.
We concluded otherwise. Relying in part on Hernandez, we reasoned the
interlocutory appeal was moot because the appealed interlocutory order merged into
the final judgment and could be challenged in an ensuing appeal. Id. We further
noted that although the issues related to the denial of the plea to the jurisdiction may
not be moot, the purpose of the interlocutory appeal had been mooted by the final
judgment. Id. (citing Tex. Dep’t of Pub. Safety v. Alexander, No. 03-04-00439-CV,
2005 WL 8147253 (Tex. App.—Austin Apr. 14, 2005, no pet.) (mem. op.)). Thus,
although the city could not challenge the plea to the jurisdiction through its
interlocutory appeal, it could raise the issue in its appeal from the final judgment.
Id.
In Henry, the Amarillo court of appeals considered whether a final summary
judgment rendered moot the interlocutory appeal challenging the denial of a special
appearance. 2005 WL 1320121, at *1. The court held that the final judgment did in
fact moot the interlocutory appeal. Id. at *2 (citing Richards v. Mena, 820 S.W.2d
372, 373 (Tex. 1991) (final judgment moots an appeal of temporary injunction)).
Appellants have failed to provide any persuasive arguments challenging these
authorities. Rather, similar to these cases, appellants filed an interlocutory appeal,
and the trial court entered a final judgment prior to consideration of the appeal. The
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special appearance order merged into the final judgment mooting this interlocutory
appeal.
To the extent appellants argue that Texas Rule of Civil Procedure 120a(4)
precludes waiver of a special appearance, their argument is misplaced. See TEX. R.
APP. P. 120a(4). The issue is not one of waiver because appellants could have
challenged the special appearance post-judgment by filing a separate notice of
appeal. They chose not to. Accordingly, we grant appellees’ motion to dismiss this
interlocutory appeal as moot.
Appellees also request that the Court expedite issuance of the mandate.
However, appellate rule 18.1(c) allows the Clerk to issue the mandate earlier than
the designated deadlines “if the parties so agree, or for good cause on the motion of
a party.” TEX. R. APP. P. 18.1(c). Nothing in the motion indicates appellants have
agreed to expedite the mandate. Moreover, appellees have not established good
cause for expediting issuance of the mandate. At this time, we deny appellees’
request to expedite the mandate.
For the reasons stated above, we dismiss this appeal as moot. TEX. R. APP. P.
42.3(a).
/John G. Browning/
JOHN G. BROWNING
JUSTICE
191551F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WARREN CHEN AND On Appeal from the 193rd Judicial
DYNACOLOR, INC., Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-18-16568.
No. 05-19-01551-CV V. Opinion delivered by Justice
Browning. Justices Whitehill and
RAZBERI TECHNOLOGIES, INC., Schenck participating.
THOMAS J. GALVIN, LIVEOAK
VENTURES PARTNERS 1A, L.P.,
KENNETH L. AND VIRGINIA T.
BOYDA, AS TRUSTEES OF THE
BOYDA FAMILY, ET AL.,
Appellees
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellees RAZBERI TECHNOLOGIES, INC.,
THOMAS J. GALVIN, LIVEOAK VENTURES PARTNERS 1A, L.P.,
KENNETH L. AND VIRGINIA T. BOYDA, AS TRUSTEES OF THE BOYDA
FAMILY, ET AL. recover their costs of this appeal from appellants WARREN
CHEN AND DYNACOLOR, INC.
Judgment entered November 2, 2020.
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