Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2018-33380
consists of Justices Wise, Zimmerer, and Spain.
withdraw our opinion issued February 5, 2019 and issue this
an appeal from an order signed October 8, 2018. On December
17, 2018 appellees filed a motion to dismiss the appeal.
See Tex. R. App. P. 42.3. Because this court lacks
jurisdiction over the appeal, the motion is granted, and the
appeal is dismissed.
suit underlying this appeal, appellees prevailed on their
motion to dismiss appellant's claims under section 27.003
of the Texas Citizens Participation Act (TCPA). See
Tex. Civ. Prac. & Rem. Code § 27.003. Appellees'
motion for attorney's fees pursuant to section 27.009 of
the TCPA was pending in the trial court at the time this
appeal was filed. Appellees contend the outstanding claim for
attorney's fees renders the order interlocutory.
argues the order is final because the trial court did not
make a ruling on attorney's fees within thirty days of
the hearing on the motion to dismiss and, therefore, the
motion for attorney's fees was denied by operation of
law. Alternatively, appellant requests we abate the appeal
until the trial court rules on attorney's fees.
TCPA motion to dismiss requested that, "following
dismissal, the Court schedule a hearing to award them court
costs and reasonable attorney's fees, pursuant to Texas
Civil Practices and Remedies Code § 27.009(a)(1)."
The trial court's order granting the motion to dismiss
stated, "[h]aving considered the motion to dismiss, the
court is of the opinion that the motion should be granted in
all of its particulars. It is therefore ORDERED that the
Motion to Dismiss is GRANTED." Eight days after the
motion was granted, appellant filed his notice of appeal.
Three days later, appellees filed a notice of submission
setting a hearing on their motion for attorney's fees.
The trial court has not yet ruled on appellees' request
for attorney's fees.
Law and Analysis
appeals may be taken only from final judgments. Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When
orders do not dispose of all pending parties and claims, the
orders remain interlocutory and unappealable until final
judgment is rendered unless a statutory exception applies.
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352,
352 (Tex. 2001). We strictly construe statutes authorizing
interlocutory appeals. Young v. Villegas, 231 S.W.3d
1, 5 (Tex. App.- Houston [14th Dist.] 2007, pet. denied).
Civil Practice and Remedies Code provides for an
interlocutory appeal of an order that "denies a motion
to dismiss filed under section 27.003" of the TCPA.
See Tex. Civ. Prac. Rem. Code § 51.014(a)(12).
No statutory authority exists, however, for an interlocutory
appeal from the grant of a motion to dismiss under
the TCPA. See Trane US, Inc. v. Sublett, 501 S.W.3d
783, 786 (Tex. App.-Amarillo 2016, no pet.) (dismissing
appeal from granting of TCPA motion to dismiss for want of
jurisdiction); Fleming & Assocs. v. Kirklin, 479
S.W.3d 458, 460-61 (Tex. App.-Houston [14th Dist.] 2015, pet.
denied) (holding interlocutory order granting TCPA motion to
dismiss was not appealable).
contends the appeal is not interlocutory because the motion
for attorney's fees was denied by operation of law.
Appellant argues that to the extent the trial court's
order did not grant relief within thirty days of the hearing
on the TCPA motion to dismiss, any undisposed requests for
relief were denied by operation of law. Appellant's
contention is based upon section 27.008, which provides,
"[i]f a court does not rule on a motion to dismiss under
Section 27.003 in the time prescribed by Section 27.005 [30
days], the motion is considered to have been denied by
operation of law and the moving party may appeal." Here,
the trial court ruled on the motion to dismiss within thirty
days but did not rule on the motion for attorney's fees
in that time period. Nothing within the TCPA expressly
prohibits the trial court from timely ruling on the request
for dismissal and later resolving issues relating to
statutorily required attorney's fees and sanctions.
DeAngelis v. Protective Parents Coal., 556 S.W.2d
836, 859-60 (Tex. App.-Fort Worth 2018, no pet.) (holding
trial court still had plenary power after granting TCPA
motion to dismiss). Appellant contends the Texas Supreme
Court's decision in D Magazine Partners. L.P., v.
Rosenthal, supports his contention that attorney's
fees are deemed denied by operation of law under section
27.008(a) if the trial court does not award them within 30
days of a hearing on a motion to dismiss under section
27.003. D Magazine Partners. L.P., v. Rosenthal, 529
S.W.3d 429 (Tex. 2017). The facts in D. Magazine,
however, reflect that the trial court denied the request for
attorney's fees. D. Magazine, 529 S.W.3d at 441.
the TCPA's fee-shifting provision is mandatory.
See Tex. Civ. Prac. & Rem. Code § 27.009(a)
(providing, "[i]f the court orders dismissal of a legal
action under this chapter, the court shall award to
the moving party: (1) court costs, reasonable attorney's
fees, and other expenses incurred in defending against the
legal action as justice and equity may require."
(emphasis added)); see Toth v. Sears Home Improvement
Prods., 557 S.W.3d 142, 158--59 (Tex. App.-Houston [14th
Dist.] 2018, no pet.) (stating, "[w]hen an action is
properly dismissed under the TCPA, a trial court must award
court costs, reasonable attorney's fees, and other
expenses incurred in defending against the action as ...