Dante Flores-Demarchi v. Melissa Smith and Jose Garcia ( 2022 )

NUMBER 13-21-00303-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DANTE FLORES-DEMARCHI, Appellant,
v.
MELISSA SMITH AND JOSE GARCIA, Appellees.
On appeal from the 206th District Court
of Hidalgo County, Texas.
SUPPLEMENTAL MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Marion1
Supplemental Memorandum Opinion by Chief Justice Contreras
Appellees Melissa Smith and Jose “Pepe” Garcia filed a defamation suit against
appellant Dante Flores-Demarchi. Flores-Demarchi moved to dismiss the suit under the
1 The Honorable Sandee Bryan Marion, Senior Chief Justice (Retired) of the Fourth Court of
Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN.
§§ 74.003, 75.002, 75.003.
Texas Citizens Participation Act (TCPA), and the trial court denied the motion. On June
30, 2022, we held that the trial court erred in denying the motion to dismiss. Flores-
Demarchi v. Smith, Nos. 13-21-00303-CV & 13-21-00304-CV, 2022 WL 2348056 (Tex.
App.—Corpus Christi–Edinburg June 30, 2022, no pet. h.) (mem. op.) (concluding that
the claims should have been dismissed pursuant to the TCPA because appellees failed
to produce clear and specific evidence of actual malice).
The cause is now before this Court on appellees’ “Amended Motion for Rehearing
and Amended Motion for En Banc Reconsideration” and Flores-Demarchi’s “Motion to
Abate Appeal and Expedite Mandate.” In his motion, Flores-Demarchi states that he and
appellees reached a settlement agreement on October 19, 2022, “and now desire the
Court to abate this matter so that the trial court may dispose of the case.” The motion also
asks us to “expedite the issuance of [the] mandate.” The motion was not filed jointly and
does not contain a certificate of conference. See TEX. R. APP. P. 10.1(a)(5); TEX. R. APP.
P. 18.1(c) (“The mandate may be issued earlier if the parties so agree, or for good cause
on the motion of a party.”). We therefore construe the motion as a motion for voluntary
dismissal of the appeal under Texas Rule of Appellate Procedure 42.1(a)(1). See TEX. R.
APP. P. 42.1(a)(1) (“In accordance with a motion of appellant, the court may dismiss the
appeal or affirm the appealed judgment or order unless such disposition would prevent a
party from seeking relief to which it would otherwise be entitled.”); see also TEX. R. APP.
P. 42.1(a)(2)(c) (stating that we may “abate the appeal and permit proceedings in the trial
court to effectuate [a settlement] agreement” only “[i]n accordance with an agreement
signed by the parties or their attorneys and filed with the clerk”).
Having reviewed the parties’ motions and the record, we conclude the appeal
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should be dismissed. Accordingly, we hereby withdraw our judgment of June 30, 2022 in
cause number 13-21-00303-CV; however, we do not withdraw memorandum opinion
issued on that date. See TEX. R. APP. P. 42.1(c) (“In dismissing a proceeding, the
appellate court will determine whether to withdraw any opinion it has already issued.”).
Flores-Demarchi’s “Motion to Abate Appeal and Expedite Mandate,” which we construe
as a motion to dismiss, is granted, and the appeal in cause number 13-21-00303-CV is
dismissed in accordance with the motion. See TEX. R. APP. P. 42.1(a)(1). Further,
appellees’ “Amended Motion for Rehearing and Amended Motion for En Banc
Reconsideration” is dismissed as moot. Costs of the appeal will be assessed against
Flores-Demarchi. See TEX. R. APP. P. 42.1(d). Because the appeal is dismissed pursuant
to Flores-Demarchi’s motion, no motion for rehearing will be entertained, and our
mandate shall issue forthwith.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
3rd day of November, 2022.
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