Filed 13 March 6 P4:34 Gary Fitzsimmons District Clerk Dallas District

CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant. IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

44th JUDICIAL DISTRICT

DEFENDANTS MOTION TO AMEND ORDER TO ALLOW PERMISSIVE APPEAL

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, AVI ADELMAN (Defendant), by and through the undersigned counsel, and makes this motion for the Court to amend its Order Granting Plaintiffs Motion to Proceed with Discovery entered on March 1, 2013, and shows: I. BACKGROUND 1. Plaintiff filed a Motion to Proceed with Discovery, and then a Supplemental Motion to Proceed with Discovery. In her motion, Defendant argued the Court could not and/or should not consider Defendants Anti-S.L.A.P.P. Motion to Dismiss. 2. The Court held a hearing on Plaintiffs motion on February 28, 2013, and on March 1, 2013, entered an Order Granting Plaintiffs Motion to Proceed with Discovery, which included language stating, This Court grants Plaintiffs Motion to Not Consider Defendants AntiS.L.A.P.P. Motion to Dismiss. II. ARGUMENT & AUTHORITIES 3. The Courts order on March 1, 2013, effectively denies Defendant an opportunity to have his Anti-S.L.A.P.P. Motion to Dismiss considered, and reopens this case for litigation.

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4. TEX. R. CIV. P. 168 provides a mechanism by which this Court can permit an appeal of its interlocutory order of March 1, 2013, which may not otherwise be appealable.1 5. Whether the Court has authority to refuse to conduct a hearing on a motion to dismiss under TEX. CIV. PRAC. & REM. CODE 27.004 is an important question of law upon which there is substantial ground for difference of opinion, and an immediate appeal of this issue would materially advance the ultimate termination of this litigation because, if the Court of Appeals held this Court must hold a hearing on Defendants Anti-S.L.A.P.P. Motion to Dismiss, this Court would then consider the merits of a dispositive motion that could very well end the need for further litigation, and saves all parties the necessity of expending more time and resources. 6. An appellate Court has not yet ruled on an appeal regarding the interpretation and application of TEX. CIV. PRAC. & REM. CODE 27.004. By allowing a permissive interlocutory appeal, this Court can materially advance the ultimate resolution of this case by having this important question answered sooner in the litigation rather than later. 7. A Court who allows a permissive appeal should amend its prior order to include the permission and identify the controlling question of law as to where there is a substantial ground for difference of opinion, and should state why an immediate appeal may materially advance the ultimate termination of the litigation. See TEX. R. CIV. P. 168. 8. Therefore, Defendant requests the Court amend its March 1st order include permission to appeal, identifying the following question as the controlling question of law: Whether a trial court, under Section 27.004, may refuse to consider a motion to dismiss filed under Section 27.003 if the trial Court finds the movant failed to secure the hearing within 30 days after serving

By this motion, Defendant does not waive his right to appeal under TEX. CIV. PRAC. & REM. CODE 27.008. Its unclear whether the Courts March 1st order constitutes the Court ruling on the motion as discussed in the Alvia case for the purposes of creating appellate jurisdiction.

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its motion, and find the Courts docket conditions would have permitted an earlier hearing than the date the hearing is set. III. PRAYER WHEREFORE, Defendant prays the Court grant this motion and all relief requested herein, and prays for all other relief, at law or equity, specific or general, to which Defendant may show himself to be entitled. Respectfully submitted, THE NICHOLS LAW FIRM, P.L.L.C.

____________________________________ JUSTIN P. NICHOLS Texas Bar No.: 24081371 106 S. Saint Marys Street, Suite 255 San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com ATTORNEY FOR AVI ADELMAN CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing instrument was served upon Plaintiff, through her attorneys, by fax to (972) 788-2667 per TEX. R. CIV. P. 21a on March 6, 2013.

______________________________ JUSTIN P. NICHOLS LOCAL RULE 2.07 CERTIFICATE OF CONFERENCE On March 4, 2013, counsel for Defendant, as movant, and Plaintiff, as respondent, personally conducted a telephonic conference at which there was a substantive discussion of every item presented to the Court in this motion, and despite best efforts the course have not been able to resolve those matters as presented. Certified on this March 6, 2013.

______________________________ JUSTIN P. NICHOLS -3-

CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant. IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

44th JUDICIAL DISTRICT

AMENDED ORDER GRANTING PLAINTIFFS MOTION TO PROCEED WITH DISCOVERY

Came on for consideration Plaintiffs Motion to Proceed with Discovery, and after consideration of the pleadings, evidence, law and argument of the parties, the Court hereby grants the Motion. The Court finds that Defendant failed to take reasonable steps to secure a hearing from the Court on his Anti-S.L.A.P.P. Motion until March 4, 2013, 140 days after serving it on Plaintiffs and that the Courts docket conditions did not preclude Defendant from securing a hearing on his Anti-S.L.A.P.P. Motion. The Court further finds that because Defendant failed to have his Anti-S.L.A.P.P. Motion heard pursuant to 27.004, Tex. Civ. Prac. & Rem. Code, this Court grants Plaintiffs Motion to Not Consider Defendants Anti-S.L.A.P.P. Motion. Further, the Court hereby grants permission to the parties to appeal this interlocutory order pursuant to TEX. R. CIV. P. 168. The Court finds the question of whether a trial court, under Section 27.004, may refuse to consider a motion to dismiss filed under Section 27.003 if the trial Court finds the movant failed to secure the hearing within 30 days after serving its motion, and find the Courts docket conditions would have permitted an earlier hearing than the date the hearing is set, is a controlling question of law as to which there is a substantial ground for difference of opinion. The Court also finds an immediate appeal of this Order will materially advance the ultimate termination of this litigation because it will determine whether the Court could consider a motion which could be dispositive to this case under Texas relatively new Citizens Participation Act.

SIGNED on this _____ day of March, 2013.

____________________________________ JUDGE PRESIDING