Novo Point, LLC and Quantec, LLC v. Elissa Katz

Dismiss and Opinion Filed December 2, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00677-CV

NOVO POINT, LLC AND QUANTEC, LLC, Appellants
V.
ELISSA KATZ, CHRISTOPHER A. PAYNE, AND
SANDLER SIEGEL PLLC, Appellees

On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-01512-2014

MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Carlyle
Opinion by Chief Justice Burns
Appellants, limited liability companies that “register, purchase, monetize,

and/or develop domains,” filed this suit in April 2014, following a separate suit in

federal court that resulted in the establishment of a receivership over the assets of

Jeffrey Baron, the beneficiary of a trust of which appellants are 100% subsidiaries.

Appellees Elissa Katz and Christopher Payne “manage and control” appellants. In

filing this suit, appellants sought, among other relief, a declaration that Katz and

Payne lack authority to manage or represent appellants and a declaration that non-

party David McNair is appellants’ “duly appointed manager.” Baron intervened,
seeking similar relief. The appeal, filed on July 11, 2023, following a timely motion

to modify judgment, challenges the trial court’s March 28, 2023 order, which

clarified and addressed certain orders signed in 2015 and 2016 by a predecessor

judge, dismissed appellants’ claims, and severed Baron’s claims from appellants’

claims so as to make the order final and appealable.

Pending before the Court are appellants’ motion for a fifteen-day extension of

time to file their notice of appeal and Katz’s motion to dismiss the appeal for want

of jurisdiction for being “eight-years out of time.”1 See Mitschke v. Borromeo, 645

S.W.3d 251, 260 (Tex. 2022) (timely filing of notice of appeal is jurisdictional). For

the reasons that follow, we agree with Katz that the appeal is “several years too late.”

Accordingly, we deny appellants’ extension motion and grant Katz’s motion to the

extent we vacate the appealed order as void and dismiss the appeal.

BACKGROUND

At the heart of Katz’s motion to dismiss are the trial court’s December 31,

2015 order granting non-party to this appeal Gary Schepps’s motion to dismiss

Baron’s intervention claims against Schepps and August 26, 2016 order striking

appellants’ pleadings and dismissing their claims. As reflected in the record,

appellants’ live pleading at the time these orders were signed was their April 22,

2014 original petition, which asserted claims against Katz, Payne, and Payne’s law

1
This appeal was abated for several months due to bankruptcy proceedings.

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firm Sandler Siegel PLLC. 2 Baron’s live pleading, filed on behalf of the trust and

himself as well as conditionally on behalf of appellants, was his December 3, 2015

amended plea in intervention. Like appellants’ petition, Baron’s amended plea

asserted claims against Katz, Payne, and Sandler Siegel, as well as non-parties to the

appeal Schepps, Domain Vault, LLC, and Domain Protection, LLC. 3 No counter-

or cross-claims were asserted.

Both appellants’ petition and Baron’s amended plea asserted claims for

•declaratory judgment;
•accounting;
•breach of fiduciary duty;
•conversion;
•negligence;
•fraud;
•money had and received;
•property had and received;
•conspiracy;
•injunctive relief, including a temporary restraining order;
•attorney’s fees; and
•punitive damages.

2
Appellants’ petition also named as defendants Domain Holdings Group, Inc., Fabulous Pty,
Name.Com, Inc., and Does 1-15, and they appear in the style of the appealed order. However, they were
not served with citation, and the record does not reflect they otherwise appeared. Accordingly, they are not
parties to the suit. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (per curiam) (merely being
named as defendant does not make one party to lawsuit); see also Youngstown Sheet & Tube Co. v. Penn,
363 S.W.2d 230, 232 (Tex. 1962) (when named defendant is never served with citation and does not answer,
“case stands as if there had been a discontinuance” as to that defendant).
3
Baron’s amended plea also asserted claims against Fabulous Pty, Name.com, and Does 1-15, but as
stated, they never appeared and were not served with citation. See Baker v. Monsanto Co., 111 S.W.3d 158,
160 (Tex. 2003) (per curiam) (quoting 1 MCDONALD AND CARLSON, TEXAS CIVIL PRACTICE § 5:81 at 609
(1992 ed.)) (“Citation is necessary when the intervenor asks [for] affirmative relief against a defendant who
has not appeared[.]”).

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Further, appellants’ petition asserted claims for violation of the Texas Theft Liability

Act, tortious interference, and breach of contract, while Baron’s amended plea

asserted additional claims for constructive trust, fraudulent transfer, and

disgorgement. Baron’s amended plea also requested “findings of defalcation,

embezzlement, and actual intent to defraud.”4

Schepps moved to dismiss Baron’s claims against him under the Texas

Citizens’ Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. On

December 31, 2015, following a hearing, the trial court signed an order, which, in

relevant part, reads as follows:

[It] is ORDERED, ADJUDGED AND DECREED that the Texas
Citizens’ Participation Act Motion of Gary Schepps is hereby
GRANTED.

It is further ORDERED, ADJUDGED AND DECREED that
Intervenor-Plaintiff, Jeffrey Baron, individually, and on behalf of, and
as Settlor and Beneficiary of The Village Trust and the Trustee of the
Village Trust, shall take nothing by and through his claims against
Intervenor-Defendant Gary Schepps in the above-entitled and
numbered cause and his claims for:

• Accounting;
• Breach of Fiduciary Duty;

4
With respect to this request, the amended plea states
P. REQUEST FOR FINDINGS OF DEFALCATION, EMBEZZLEMENT AND
ACTUAL INTENT TO DEFRAUD.

170. The Court should make findings at the conclusion of this case that Defendants Katz
and Payne engaged in embezzlement and defalcation of Baron’s property, fraudulent
transfer and conversion of property with the actual intent to defraud.

171. Such Defendants engaged in fraud on Intervenor to obfuscate, hinder and delay the
return of his property, for the purposes of enabling said Defendants to embezzle, defalcate,
and convert such property.
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• Constructive Trust;
• Conversion;
• Negligence;
• Fraud (Page 23 of Plea in Intervention);
• Fraud (Page 24 of Plea in Intervention);
• Money Had and Received;
• Property Had and Received;
• Conspiracy;
• Fraudulent Transfers;
• Disgorgement;
• Injunction against Conspirators;
• Request for TRO;
• Request for Temporary Injunction;
• Request for Permanent Injunction;
• Request for Findings of Actual Intent to Hinder, Delay and Defraud;
• Request for Declaratory Judgment;
• Punitive damages; and
• Attorney’s fees.

It is further ORDERED, ADJUDGED AND DECREED that each of
the stated claims enumerated above are hereby DISMISSED WITH
PREJUDICE.

Several months later, on August 26, 2016, the trial court granted Sandler

Siegel’s motion challenging appellants’ counsel’s authority to prosecute the suit,

struck “all pleadings” filed by counsel, and dismissed “all claims asserted therein.”

DISCUSSION

In arguing the appeal should be dismissed as untimely, Katz asserts that the

trial court’s order on Schepps’s motion dismissed all of Baron’s intervention claims,

not just the claims against Schepps, because it dismissed “each of the stated claims

enumerated above[,]” which were all of the live claims in Baron’s amended plea.

And because following that order, the only claims remaining were appellants’

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claims, Katz argues the order granting Sandler Siegel’s motion dismissing all of

appellants claims constituted a final judgment from which the trial court’s plenary

power and appellate deadlines ran. We agree.

The date the trial court signs a final judgment is critical to a trial court’s and

appellate court’s jurisdiction as the date triggers the running of the trial court’s

plenary jurisdiction and the deadline for filing a notice of appeal. See Baker v.

Bizzle, 687 S.W.3d 285, 291 n.13 (Tex. 2024); see also TEX. R. CIV. P. 306a(1) (trial

court’s plenary power); TEX. R. APP. P. 26.1 (appellate deadline). Under Texas Rule

of Civil Procedure 329b(d), a trial court retains plenary power over a case for thirty

days after a final judgment is signed. See TEX. R. CIV. P. 329b(d). If a motion for

new trial is timely filed, the trial court retains plenary power until thirty days after

all such timely filed motions are overruled, by either signed order or operation of

law, whichever occurs first. See id. 329b(e). Once the trial court’s plenary power

has expired, the trial court’s jurisdiction to act is limited,5 and orders issued outside

the trial court’s plenary power are typically void. See Hines v. Villalba, 231 S.W.3d

550, 552 (Tex. App.—Dallas 2007, no pet.).

Similar to the thirty-day period in rule 329b(d), appellate rule 26.1 provides a

thirty-day deadline for filing a notice of appeal. See TEX. R. APP. P. 26.1. If a request

5
A trial court’s jurisdiction after its plenary power has expired is limited to (1) correcting clerical
errors in the judgment, see TEX. R. CIV. P. 329b(f); (2) declaring a previous judgment or order void for
being signed outside the trial court’s plenary power, see id.; (3) supervising post-judgment discovery
conducted to aid in the enforcement of judgment, see id. 621a; and (4) enforcing its judgment, see id. 308.
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for finding of facts and conclusions of law or motion to reinstate or modify or for

new trial is timely filed, the deadline is ninety days. See id. 26.1(a). Either deadline

can be extended fifteen days upon the filing of a motion reasonably explaining the

need for an extension. See id. 10.5(b), 26.3.

For purposes of the trial court’s plenary jurisdiction and appellate deadline, a

judgment issued without a conventional trial on the merits, as here, is final if it

actually disposes, or clearly and unequivocally states it finally disposes, of all parties

and claims as delineated in the live pleadings. Lehmann v. Har-Con Corp., 39

S.W.3d 191, 205 (Tex. 2001); Perez v. Perez, 658 S.W.3d 864, 869 (Tex. App.—El

Paso 2022, no pet.); Davis v. Angleton Indep. Sch. Dist., 582 S.W.3d 474, 478 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied) (mem. op.). When claims are

determined by different orders, the order that disposes of the remaining parties and

issues is final and triggers the running of the trial court’s jurisdiction and the deadline

for the filing the notice of appeal. See Lehmann, 39 S.W.3d at 200; Farmer v. Ben

E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).

As Katz argues, although only Schepps moved for dismissal of Baron’s

claims, the trial court’s order on Schepps’s motion dismissed all of Baron’s

intervention claims, not just the claims against Schepps. The order listed all the live

claims in Baron’s amended plea and specifically dismissed with prejudice each of

the enumerated claims. An order that grants more relief than requested may be

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subject to reversal, but the granting of more relief does not negate the disposition.

See Lehmann, 39 S.W.3d at 204.

Baron’s claims having been dismissed, the only claims remaining following

the order on Schepps’s motion were appellants’ claims. When those claims were

dismissed in August 2016 on Sandler Siegel’s motion, the order dismissing the

claims constituted a final judgment from which the trial court’s plenary power and

appellate deadlines ran. See id. at 200; Farmer, 907 S.W.2d at 496.

Because the trial court disposed of all claims in the two live pleadings in this

suit by its December 31, 2015 and August 16, 2016 orders, the trial court had no

jurisdiction to sign the appealed March 2023 order, and the deadline for appealing

ran from August 16, 2016. See Barker, 687 S.W.3d at 291 n. 13. Having been filed

seven years later, the appeal is untimely, and we lack jurisdiction over the appeal.

See TEX. R. APP. P. 26.1; Mitschke, 645 S.W.3d at 260.

When, as here, an appeal is taken from an order signed outside a trial court’s

plenary jurisdiction, we may vacate the order as void. See State ex. rel Latty v.

Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Accordingly, we vacate the

trial court’s March 28, 2023 order, deny appellants’ motion to extend time to file the

notice of appeal, grant Katz’s motion, and dismiss the appeal.

230677f.p05 /Robert D. Burns, III//
ROBERT D. BURNS, III
CHIEF JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

NOVO POINT, LLC AND On Appeal from the 401st Judicial
QUANTEC, LLC, Appellants District Court, Collin County, Texas
Trial Court Cause No. 401-01512-
No. 05-23-00677-CV V. 2014.
Opinion delivered by Chief Justice
ELISSA KATZ, CHRISTOPHER A. Burns, Justices Molberg and Carlyle
PAYNE, AND SANDLER SIEGEL participating.
PLLC, Appellees

In accordance with this Court’s opinion of this date, we VACATE the trial
court’s March 28, 2023 “Orders on Motion for Clarification, Severance, Etc.” and
DISMISS the appeal.

We ORDER that appellees Elissa Katz, Christopher A. Payne, and Sandler
Siegel PLLC recover their costs, if any, of this appeal from appellants Novo Point,
LLC and Quantec, LLC.

Judgment entered this 2nd day of December, 2024.

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