Nelly Suarez Garcia v. Lorrie Semler ( 2021 )

Dismiss and Opinion Filed April 13, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00761-CV
NELLY SUAREZ GARCIA, Appellant
V.
LORRIE SEMLER, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-04494
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Partida-Kipness
This is an appeal from the trial court’s order granting appellee’s motion to
dismiss the underlying suit under the Texas Citizens’ Participation Act (“TCPA” or
“Act”), awarding appellee costs and attorney’s fees as mandated by the Act for
successfully defending against the suit, but leaving the amount of costs and fees to
be determined by subsequent order. See TEX. CIV. PRAC. & REM. CODE §§ 27.003,
27.005, 27.009. Because the order is an unappealable interlocutory order, we
dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
Interlocutory orders that do not dispose of all parties and claims, such as the
order at issue here, may be appealed only if permitted by statute or rule. Jack B.
Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Although orders
denying a TCPA motion to dismiss are appealable, no statute or rule authorizes an
appeal from an interlocutory order granting a TCPA motion to dismiss. Fleming &
Assocs. v. Kirklin, 479 S.W.3d 458, 460 (Tex. App.—Houston [14th Dist.] 2015,
pet. denied) (per curiam). Accordingly, we questioned our jurisdiction over the
appeal and directed the parties to file letter briefs addressing our concern.
In her letter brief, appellant does not dispute an appeal from an interlocutory
order granting a TCPA motion to dismiss is not authorized by statute but asserts the
appeal is proper under the Austin Court of Appeals’ decision in Eureka Holdings
Acquisitions, L.P. v. Marshall Apartments, 597 S.W.3d 921 (Tex. App.—Austin
2020, pet. denied). There, the trial court signed an order that granted appellant
Eureka’s TCPA motion to dismiss as to one of multiple claims brought by appellee,
denied it as to the other claims, and noted Eureka was entitled to attorney’s fees and
sanctions as to the dismissed claim in an amount to be determined at a later date.
Eureka Holdings, 597 S.W.3d at 923. Eureka sought to challenge the portion
denying its motion, but instead of appealing from that order, appealed from the
subsequent order setting the amount of fees and sanctions awarded. Id. Because the
appealable order was the order partially denying the TCPA motion, not the order on
fees from which Eureka appealed, the Austin court dismissed the appeal for want of
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jurisdiction. Id. at 924-25. In so doing, the court rejected Eureka’s argument that,
since the order partially denying the motion left the amount of fees and sanctions
pending, the time to appeal was triggered by the order that set the amount. Id.at 924.
Appellant asserts Eureka Holdings “creates a trap for the unwary[.]”
Appellant appears to argue that because the appealable order in Eureka Holdings
was the order partially denying the motion, orders granting a TCPA motion to
dismiss should also be immediately appealed even if the issue of attorney’s fees
remains pending. As appellee notes in her jurisdictional letter brief, however,
Eureka sought to appeal the denial, not the granting, of its motion to dismiss.
Resolution of the issue of attorney’s fees and sanctions was not necessary to trigger
appellate deadlines there because the order denying the motion to dismiss was
appealable as an interlocutory order. See TEX. CIV. PRAC. & REM. CODE §
51.014(a)(12).
Recognizing her argument might fail, appellant asks in the alternative that we
abate the appeal to allow the trial court to determine the amount of fees and costs to
which appellee is entitled. We decline to do so.
Because the appealed order here is not appealable, we dismiss the appeal. See
TEX. R. APP. P. 42.3(a).
/Robbie Partida-Kipness/
200761F.P05 ROBBIE PARTIDA-KIPNESS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NELLY SUAREZ GARCIA, On Appeal from the 14th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-20-04494.
No. 05-20-00761-CV V. Opinion delivered by Justice Partida-
Kipness, Justices Myers and Garcia
LORRIE SEMLER, Appellee participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee Lorrie Semler recover her costs, if any, of this
appeal from appellant Nelly Suarez Garcia.
Judgment entered this 13th day of April, 2021.
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