Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00534-CV ___________________________ TEXAS LOGISTICS AND FULFILLMENT SERVICES, LLC, Appellant V. KIRALP CAPITAL, LLC AND SELIM KIRALP, LLC, Appellees On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-377383-26 Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION I. Introduction and Background The parties agree that this appeal should be dismissed, but they dispute whether we should award damages under Texas Rule of Appellate Procedure 45. In this case, Appellant Texas Logistics and Fulfillment Services, LLC attempts to appeal the “Order Denying [Appellant’s] Combined Special Appearance, Plea in Abatement, Special Exceptions, and Motion to Enforce Forum-Selection Clause, insofar as that interlocutory order denie[d] Appellant’s special appearance under Texas Rule of Civil Procedure 120a.” On August 26, 2026, we considered “Appellant Texas Logistics and Fulfillment Services, LLC’s Emergency Motion for Temporary Relief (Stay) Under Tex. R. App. P. 29.3 and 29.5, and Request for Oral Argument” and granted the motion in part. We stayed the trial court’s hearing on Appellees’ traditional motion for summary judgment until further order of this court, and we ordered Appellees Kiralp Capital, LLC and Selim Kiralp, LLC to file a response. Appellees have now filed a combined motion to dismiss and response to Appellant’s emergency motion for temporary relief. Within Appellees’ motion, they seek not only to have this appeal dismissed, claiming that it is frivolous, but also to be awarded damages under Texas Rule of Appellate Procedure 45. According to Appellees, at the hearing on Appellant’s special appearance, Appellant did not actually contend that the trial court lacked personal jurisdiction over it. Appellant instead 2 argued that the venue was the root issue and remained “even if our contention does not constitute a special appearance, and even if this [c]ourt acquires personal jurisdiction.” Appellees claim that because Appellant “had not actually challenged personal jurisdiction below, its counsel agreed to withdraw the appeal and twice confirmed in writing that it would be dismissed” but did not follow through. Appellees state that after retaining new counsel, Appellant “reversed course and is now attempting to characterize the case as presenting a ‘threshold issue of personal jurisdiction’ while using the appeal to halt the proceedings below.” Appellees argue that because Appellant “expressly disclaimed the only issue that could support this interlocutory appeal [i.e., special appearance] and nevertheless continues to pursue the appeal after agreeing to dismiss it, this Honorable Court should dismiss the appeal and award Appellees ‘just damages’ under Rule 45 of the Texas Rules of Appellate Procedure.” Appellant filed a motion to dismiss and a separate response, agreeing that dismissal is proper but arguing that damages are not. Appellant argues that the undersigned counsel substituted in as new counsel during a fast- moving procedural emergency, acted as promptly as possible and in good faith to protect Appellant from imminent prejudice posed by a pending summary[-]judg[]ment hearing for which prior counsel had filed no response, and then, as evidenced by the filing of Appellant’s Motion to Dismiss Appeal, took corrective action to discontinue the appeal after becoming fully apprised of the record and issues. Appellees then filed a reply arguing that Appellant’s response confirms that the appeal is objectively frivolous and that this appeal was pursued to prevent the 3 summary-judgment hearing from going forward. Appellees request that we grant their motion to dismiss, dismiss the appeal, determine that the appeal is objectively frivolous, and award them reasonable attorneys’ fees and expenses as “just damages” under Rule 45. In the alternative, if we dismiss the appeal pursuant to Appellant’s motion to dismiss, Appellees request that we separately consider and grant their previously filed request for Rule 45 damages. II. Dismissal After considering the motions to dismiss, the response, and the reply, we grant the parties’ motions insofar as they request that we dismiss the appeal. III. Rule 45 Damages We turn now to Appellees’ request for Rule 45 damages. Texas Rule of Appellate Procedure 45 provides that “[i]f the court of appeals determines that an appeal is frivolous, it may—on motion of any party or on its own initiative, after notice and a reasonable opportunity for response—award each prevailing party just damages.” Tex. R. App. P. 45. In determining whether an appeal is frivolous, we apply an objective test. Dunbar v. Bolding, No. 01-24-00485-CV, 2024 WL 3973922, at *2 (Tex. App.—Houston [1st Dist.] Aug. 29, 2024, no pet.) (citing Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). We review “the record from the viewpoint of the advocate and decide whether [the appellant] had reasonable grounds to believe the case could be reversed.” Id. In doing so, we must “exercise prudence and caution and use careful deliberation.” Id. And we grant 4 sanctions only after careful deliberation and only under circumstances we find truly egregious. Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012, no pet.); D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205 (Tex. App.—Dallas 2011, no pet.); see also R. Hassell Builders, Inc. v. Texan Floor Serv., Ltd., 546 S.W.3d 816, 833 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“Rule 45 does not require that we award just damages in every case in which an appeal is frivolous[.]”). Under the circumstances presented here, we decline to conclude that Appellant’s attempt to appeal was objectively frivolous nor do we hold Appellant’s conduct so egregious that it warrants the imposition of sanctions. See R. Hassell Builders, 546 S.W.3d at 833. We deny Appellees’ request for Rule 45 damages against Appellant. See id. IV. Conclusion Having granted the portion of the parties’ motions to dismiss and having denied Appellees’ request for Rule 45 damages, we dismiss the appeal and lift our stay order of August 26, 2026. Per Curiam Delivered: September 24, 2026 5