DK Media Group Inc. v. the Korea Times Media Inc. and Yunju Kyoung

DISMISS and Opinion Filed June 25, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00198-CV

DK MEDIA GROUP INC., Appellant V. THE KOREA TIMES MEDIA, INC. AND YUNJU KYOUNG, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-23-10906

MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Nowell On December 1, 2023, the trial court granted appellees’ motion to dismiss

brought pursuant to the Texas Citizen’s Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. The trial court signed a final judgment, on January 2, 2024, awarding appellees their attorney’s fees pursuant to section 27.009(a)(1) of the TCPA. See id. § 27.009(a)(1). After filing a motion for new trial, appellant filed its notice of appeal on February 22, 2024. Asserting that the notice of appeal was untimely filed, appellees have filed a motion to dismiss the appeal for want of jurisdiction. For reasons explained below, we grant the motion and dismiss the appeal.

Under TCPA Section 27.008(b), “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from 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.” Id. § 27.008(b). Appeals that are statutorily required to be expedited are accelerated appeals. See TEX. R. APP. P. 28.1(a). In an accelerated appeal, a notice of appeal is due within twenty days after the date the judgment or order is signed or, with an extension motion, within fifteen days of the deadline. See TEX. R. APP. P. 26.1(b), 26.3, 28.1(b). Filing a motion for new trial does not extend the time to perfect an accelerated appeal. See id. 28.1(b). Absent a timely filed notice of appeal or extension request, we lack jurisdiction. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). Because this appeal is accelerated, the notice of appeal was due January 22, 2024 or, with an extension motion, February 6, 2024.

In its response to appellees’ motion to dismiss, appellant asserts that this appeal is subject to the ordinary timetable because the December 1st interlocutory order granting the TCPA motion was not subject to appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (permitting interlocutory appeal of order denying TCPA motion to dismiss). It is true that the December 1st interlocutory order was

–2– not appealable. However, the final judgment signed on January 2nd was appealable and, pursuant to section 27.008(b), the appeal of the final judgment is expedited and proceeds as an accelerated appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b); TEX. R. APP. P. 28.1(a).

Appellant also asserts that this Court has jurisdiction because the appealed order is void. It asserts the order is void because the trial court lacked subject matter jurisdiction. However, without a timely filed notice of appeal, an appellate court has no jurisdiction to consider any complaint, even a complaint that the trial court lacked subject matter jurisdiction. See Siddiqui v. Unlimited Asset Recovery, Inc., No. 01– 09–00026–CV, 2009 WL 3930748, at *2 (Tex. App.--Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op.); see also Denton Cnty. v. Huther, 43 S.W.3d 665, 667 n. 2 (Tex. App.—Fort Worth 2001, no pet.) (in absence of timely notice of appeal, appellate court lacks jurisdiction to consider even fundamental error).

Because appellant failed to file a timely notice of appeal, we grant appellees’ motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE 240198F.P05

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S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DK MEDIA GROUP INC., On Appeal from the 160th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-23-10906. No. 05-24-00198-CV V. Opinion delivered by Justice Nowell. Justices Molberg and Kennedy THE KOREA TIMES MEDIA, INC. participating. AND YUNJU KYOUNG, Appellees

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees THE KOREA TIMES MEDIA, INC. AND YUNJU KYOUNG recover their costs of this appeal from appellant DK MEDIA GROUP INC.

Judgment entered June 25, 2024

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