Deepwell Energy Services, LLC v. Aveda Transportation and Energy Services, Jared Brown, Linda Clark, Tom Halliday, and Mickey Sims ( 2020 )

Opinion filed April 2, 2020
In The
Eleventh Court of Appeals
__________
No. 11-20-00067-CV
__________
DEEPWELL ENERGY SERVICES, LLC, Appellant
V.
AVEDA TRANSPORTATION AND ENERGY SERVICES,
JARED BROWN, LINDA CLARK, TOM HALLIDAY, AND
MICKEY SIMS, Appellees
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV54356
MEMORANDUM OPINION
Deepwell Energy Services, LLC filed a notice of appeal from an order
granting the defendants’ second amended motion for attorneys’ fees, costs,
expenses, and sanctions and dismissing Deepwell’s claims with prejudice. Upon
docketing this appeal, the clerk of this court wrote the parties and informed them
that the notice of appeal appeared to have been untimely filed. We requested that
Deepwell respond and show grounds to continue the appeal. Deepwell filed a
response in which it asserts that the trial court has not yet entered a final judgment
in this cause and that, therefore, the notice of appeal was premature rather than late.
Deepwell asserts that the order from which it filed the notice of appeal is not a final,
appealable judgment “because it lacks language indicating finality and does not
allocate responsibility for taxable court costs.” Because we conclude that the order
constituted a final judgment, we must dismiss this appeal for want of jurisdiction
based upon the untimely filing of the notice of appeal.
The order at issue in this appeal reads as follows:
On September 18, 2018, this Court granted Defendants’ TCPA1
Motion to Dismiss. Before the Court is Defendants’ . . . Second
Amended Motion for Attorneys’ Fees, Costs, Expenses, and Sanctions
. . . . Defendants’ Motion is GRANTED.
It is ORDERED that, pursuant to Texas Civil Practice &
Remedies Code § 27.009, Plaintiff Deepwell Energy Services, LLC
shall pay Defendant Aveda Transportation and Energy Services Inc.
$402,729.30 for reasonable and necessary attorneys’ fees, costs, and
expenses incurred in defending this legal action.
It is further ORDERED that if Plaintiff appeals . . . Defendant
Aveda Transportation and Energy Services Inc. is awarded $75,000.00
for additional reasonable and necessary attorneys’ fees. If Plaintiff
1
This appeal stems from the dismissal of Deepwell’s claims pursuant to motions filed by the
defendants under the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 27.001–.011 (West 2015) (the TCPA). The Texas legislature amended the TCPA effective September 1,
2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–9, 12 (H.B. 2730) (codified at TEX. CIV.
PRAC. & REM. CODE ANN. §§ 27.001, .003, .005–.007, .0075, .009–.010 (West Supp. 2019)). Because the
underlying lawsuit was filed prior to September 1, 2019, the law in effect before September 1 applies. See
id. §§ 11–12. For convenience, all citations to the TCPA in this opinion are to the version of the statute
prior to September 1, 2019. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws
961–64, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500.
Under Section 27.009 of the TCPA, when a trial court orders dismissal under the TCPA, the trial court
“shall award to the moving party” “court costs, reasonable attorney’s fees, and other expenses incurred in
defending against the legal action as justice and equity may require.” Id. § 27.009(a)(1).
2
petitions for review in the Supreme Court of Texas, Defendant Aveda
Transportation and Energy Services Inc. is awarded additional
reasonable and necessary attorneys’ fees of $15,000.00 [plus an
additional $50,000.00 if the petition is granted and an additional
$10,000.00 for representation through oral argument and the
completion of proceedings in the Supreme Court of Texas].
It is further ORDERED that, pursuant to Texas Civil Practice &
Remedies Code § 27.009, Plaintiff Deepwell Energy Services, LLC
shall pay Defendant Aveda Transportation and Energy Services Inc.
$250,000.00 for sanctions to deter Plaintiff from bringing similar legal
actions.
It is further ORDERED that all of Plaintiff’s claims in the above-
styled and numbered cause are hereby dismissed with prejudice.
The above order disposes of all of the parties’ claims2 and contains language
that indicates finality. For an order or judgment to be final and appealable in a case
in which “there has not been a conventional trial on the merits,” the order or
judgment must either (1) “actually dispose[] of every pending claim and party” or
(2) “clearly or unequivocally state[] that it finally disposes of all claims and all
parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The court
in Lehmann indicated that “[l]anguage that the plaintiff take nothing by his claims
in the case, or that the case is dismissed, shows finality if there are no other claims
by other parties.” Id. Here, the order specifically dismissed Deepwell’s claims with
prejudice.
We cannot hold that the order is interlocutory merely because it awarded
“costs” and did not specifically award “taxable court costs” as suggested by
Deepwell. Moreover, we note that at least two of our sister courts have held that the
failure to assess costs does not affect the finality of a trial court’s judgment. See
2
We note that the appellate record was previously filed in this court in an interlocutory appeal from
the denial of Deepwell’s responsive TCPA motion to dismiss. See Deepwell Energy Servs., LLC v. Aveda
Transp. & Energy Servs., 574 S.W.3d 925 (Tex. App.—Eastland 2019, pet. denied).
3
Straza v. Friedman, Driegert & Hsueh, L.L.C., 124 S.W.3d 404, 406 (Tex. App.—
Dallas 2003, pet. denied) (rejecting argument that the orders were not final
judgments because costs were not addressed); City of Marshall v. Gonzales ex rel.
Gonzales, 107 S.W.3d 799, 803 (Tex. App.—Texarkana 2003, no pet.) (same);
Thompson v. Beyer, 91 S.W.3d 902, 905 (Tex. App.—Dallas 2002, no pet.)
(concluding that a trial court is not required to assess costs for its judgment to be
final). We hold that the order at issue in this cause constituted a final, appealable
order.
Because the trial court’s order was final and appealable, the appellate
timetables began on the date that the trial court signed the order—January 10, 2020.
Accelerated timetables apply to this appeal because it is an expedited appeal from a
final order of dismissal under Section 27.003 of the TCPA. See CIV. PRAC. & REM.
§ 27.008(b); TEX. R. APP. P. 28.1(a). Thus, the notice of appeal was due to be filed
on January 30, 2020—twenty days after the order was signed. See TEX. R.
APP. P. 26.1(b), 28.1(b). Appellant’s notice of appeal was filed on February 27,
2020—forty-eight days after the date that the trial court signed the order. The notice
of appeal was filed outside the fifteen-day extension period permitted by the rules.
See TEX. R. APP. P. 26.3, 28.1(b). The notice of appeal was therefore untimely.
Absent a timely notice of appeal, this court is without jurisdiction to consider
this appeal. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex.
2005); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233–34 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); see also Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997). We note that we are prohibited from suspending the rules “to alter
the time for perfecting an appeal in a civil case.” TEX. R. APP. P. 2. Because we are
without jurisdiction, we must dismiss the appeal. See TEX. R. APP. P. 42.3(a).
4
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
April 2, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
5