Summary
concluding section 51.014's interlocutory appellate jurisdiction in TCPA case did not extend to appeal of separate interlocutory order that did not deny motion to dismiss under section 27.003
Summary of this case from Minett v. SnowdenOpinion
NO. 03-18-00073-CV
04-30-2018
Wylie Cavin; Lillian Cavin; and Eagle Radiology, PLLC, Appellants v. Kristin Abbott and William Abbott, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-16-000201 , HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING MEMORANDUM OPINION
This cause—an interlocutory appeal brought under color of Civil Practice and Remedies Code Section 51.014(a)(12)—arises from trial-level proceedings on remand following our opinion and judgment in Cavin v. Abbott (which we will start terming "Cavin I" because it is now merely the first of an ongoing series). The appellees have filed a motion to dismiss the appeal for want of jurisdiction. We agree that we lack jurisdiction over the appeal and will accordingly grant the motion and dismiss.
See Cavin v. Abbott, No. 03-16-00395-CV, ___ S.W.3d ___, 2017 Tex. App. LEXIS 6511 (Tex. App.—Austin July 14, 2017, no pet.) ("Cavin I").
Today we also deny a companion petition for writ of mandamus filed by the appellants. See In re Cavin, No. 03-18-00113-CV (Tex. App.—Austin Apr. 30, 2018, orig. proceeding) (mem. op.).
BACKGROUND
As was true in Cavin I, the issues now before this Court require a bit of explanation. As we recounted in our Cavin I opinion, the underlying controversy and ensuing litigation has centered on "family tumult over an adult daughter's choice of a husband," specifically the marriage of Kristin and Bill Abbott despite the vociferous opposition of Kristin's parents, Wylie and Lillian Cavin, and what the Abbotts have decried as scorched-earth tactics by the Cavins to harass and isolate them. To be fair, the Cavins insist that the Abbotts or their allies have also stooped to similar lows in attempting to ostracize them amongst their common extended family and friends. The current filings reflect that collateral effects of the internecine strife have grown beyond those described in Cavin I to include, e.g., heated discovery disputes—including accusations of intentional spoliation—regarding emails allegedly sent to Kristin's elderly grandmother.
See Cavin I, 2017 Tex. App. LEXIS 6511, at *1-13 (summarizing the Abbotts' allegations and documentary evidence). Because some of the parties share common surnames, we occasionally use first names instead.
The controversy (thus far) has spawned what originated as four separately filed lawsuits: (1) a $1 million defamation suit filed in mid-2015 by the Cavins against Sandy Whitley, Lillian's sister and a supporter of the Abbotts in the family schism; (2) a second $1 million defamation suit filed by the Cavins later in 2015 against Sandy's husband and fellow Abbott ally, David Hayes; (3) the lawsuit filed by the Abbotts in early 2016 against the Cavins and Lillian's business (Eagle Radiology, PLLC) that became the immediate focus of the Cavin I appeal; and (4) yet another defamation suit filed by the Cavins, in mid-2016, this time targeting Bill Abbott, which was consolidated shortly thereafter into the Abbotts' Cavin I lawsuit. The first lawsuit (Cavins v. Sandy Whitley) and the consolidated third and fourth lawsuits (the Cavin I lawsuit plus the Cavins' defamation claim against Bill Abbott) form the backdrop of the post-remand proceedings now at issue. The second lawsuit (Cavins v. David Hayes) is not implicated directly, but it has given rise to a separate appeal that is also pending before this Court.
See id. at *10 & n.9.
See Hayes v. Cavin, No. 03-17-00501-CV (Tex. App.—Austin filed July 26, 2017).
As our Cavin I opinion explained, that appeal was brought by the Cavins and Eagle to challenge an interlocutory order denying their motion under the Texas Citizens Participation Act (TCPA) to dismiss the claims asserted by the Abbotts against them. The TCPA's broad language as written, the state of the controlling jurisprudence, and the posture of the Abbotts' trial-level filings compelled us to hold that the Act required dismissal of most of the claims that the Abbotts had asserted as of that juncture; the Abbotts' sole pending claim to survive the motion was the one seeking damages based on the Cavins' alleged assault of Kristin in February 2014. This partial grant of the TCPA dismissal motion necessitated further proceedings on remand to determine, per the Act's requirements, the amount of attorney's fees and sanctions to be awarded to the Cavins and Eagle. Following issuance of mandate, the district court awarded the Cavins and Eagle $21,500 in attorney's fees and $1,000 in sanctions.
See Cavin I, 2017 Tex. App. LEXIS 6511, at *14-47.
See id. at *47 (citing Tex. Civ. Prac. & Rem. Code § 27.009(a); Serafine v. Blunt, No. 03-16-00131-CV ___ S.W.3d ___, ___, 2017 Tex. App. LEXIS 4606, *19-24 (Tex. App.—Austin May 19, 2017, pet. denied)).
Meanwhile, upon mandate in Cavin I, Bill Abbott had filed his own TCPA motion to dismiss the Cavins' defamation claims against him (which, again, had remained pending in the same consolidated trial-level cause). The Cavins filed objections to evidence Bill had submitted in support of his motion and alternatively sought the discretionary limited discovery authorized by the TCPA. Contemporaneously with its order awarding the Cavins and Eagle attorney's fees and sanctions on their TCPA motion, the district court signed an order granting Bill's TCPA motion and dismissing the Cavins' claims against him, reserving the amount of mandatory attorney's fees and sanctions for further hearing. And by separate order on the same date, the district court sua sponte also consolidated into this same underlying cause (now consisting of the Abbotts' assault claim against the Cavins and Bill's still-pending request for TCPA fees and sanctions incident to the dismissal of the Cavins' defamation claims against him) the Cavins' pending defamation suit against Sandy Whitley.
See Tex. Civ. Prac. & Rem. Code § 27.006(b) ("On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.").
The district court would also sign an order a few days later stating explicitly that it had overruled the Cavins' evidentiary objections.
The district court did not similarly consolidate the sole remaining original lawsuit, the Cavins' defamation suit against David Hayes. By that juncture, trial-level proceedings in the Hayes suit had been automatically stayed by the appeal in that case, in which Hayes challenges an interlocutory order denying his own TCPA motion. See id. § 51.014(a)(12), (b).
ANALYSIS
With that prologue, the Cavins filed their present appeal in an attempt to challenge the district court's post-remand order granting Bill's TCPA motion. In the same appeal, joined by Eagle, the three have also attempted to complain of the amount of attorney's fees awarded by the district court in connection with their own TCPA motion against the Abbotts. There is no dispute that both challenged orders are interlocutory—still pending below, in the same trial-level cause, are Bill's request for TCPA attorney's fees and sanctions against the Cavins, the Abbotts' assault claim against the Cavins, and now also the Cavins' defamation claims against Sandy Whitley. We lack jurisdiction to review interlocutory orders unless authorized explicitly by statute, and any purported statutory grants of this sort are construed strictly as narrow exceptions to the general rule.
Their notice also expressly challenges the adverse discovery and evidentiary rulings that were merged into this order.
See, e.g., CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).
To invoke our appellate jurisdiction, the Cavins and Eagle point to a statutory authorization—Section 51.014(a)(12) of the Civil Practice and Remedies Code, which confers jurisdiction on us to review "an interlocutory order of a district court . . . that . . . denies a motion to dismiss filed under Section 27.003," the latter being a reference to the motion to dismiss authorized by the TCPA. Section 51.014(a)(12) was the basis for our appellate jurisdiction in Cavin I, which as noted was an appeal from the denial of a TCPA motion. But the problem here, as the Abbotts emphasize in their motion to dismiss the appeal, is that neither interlocutory order being challenged "denies a motion to dismiss filed under Section 27.003," as Section 51.014(a)(12) requires.
See id. § 27.003.
See Cavin I, 2017 Tex. App. LEXIS 6511, at *13 & n.15 (citing Tex. Civ. Prac. & Rem. Code § 51.014(a)(12)).
One of the two orders instead granted a TCPA motion to dismiss, that of Bill. In Pulliam v. City of Austin, this Court recently dismissed, for want of jurisdiction, a similar attempt to appeal an order granting a TCPA motion to dismiss. We reasoned that that "[n]o statute . . . expressly provides for an interlocutory appeal of an order granting a motion to dismiss under the TCPA," and cited several decisions of sister courts that had reached the same conclusion. The second order, likewise, partially denied a request for attorney's fees, "a distinct interlocutory ruling that did not deny [a] 'motion to dismiss filed under Section 27.003,' but instead . . . denied a request for fees as authorized by a separate provision, Section 27.009."
Pulliam v. City of Austin, No. 03-17-00131-CV, 2017 Tex. App. LEXIS 3325, at *3 (Tex. App.—Austin Apr. 14, 2017, order) (per curiam).
See id. at *2 (per curiam) (citing Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—Amarillo 2016, no pet.); Fleming & Assocs. v. Kirklin, 479 S.W.3d 458, 460-61 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 887 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Flynn v. Gorman, No. 02-16-00131-CV, 2016 Tex. App. LEXIS 10032, at * 1 (Tex. App.—Fort Worth Sept. 8, 2016, no pet.) (mem. op.)).
Paulsen v. Yarrell, 455 S.W.3d 192, 195-96 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
In insisting that we possess jurisdiction nonetheless, the Cavins seek in effect to litigate the merits of their attempted appeal of the order granting Bill's TCPA motion. They argue that Bill's underlying motion was untimely, such that the motion should have been deemed denied by operation of law at a much earlier juncture, rendering null the order on appeal. Even if the Cavins' premise regarding the motion's timeliness were correct, we would still lack jurisdiction under Section 51.014(a)(12) to review or disturb the order they complain of—which, it remains, is an order granting Bill's TCPA motion. The Cavins do not complain of any explicit or deemed order that "denies a motion to dismiss filed under Section 27.003," and to the extent their appeal could be construed as doing so, the deemed denial under their theory would have occurred back in 2016, making their current appeal untimely (just as they insist regarding Bill's motion) and again leaving us without jurisdiction.
See Tex. Civ. Prac. & Rem. Code §§ 27.003(b) (motion to dismiss must generally be filed "not later than the 60th day after the date of service of the legal action"), .004(a), (b) (hearing on motion must generally be held "not later than the 60th day after the date of service of the motion"), .008(a) (motion is deemed overruled by operation of law "[i]f a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005").
This absence of jurisdiction over the type of TCPA order being appealed also distinguishes this case from Jain v. Cambridge Petroleum Group, Inc., on which the Cavins rely. 395 S.W.3d 394 (Tex. App.—Dallas 2013, no pet.). In Jain, the court of appeals held that a TCPA dismissal motion had been denied by operation of law, in turn rendering a subsequent ruling on the motion a nullity, in the context of an appeal from a subsequent order denying the TCPA motion; the effect of the deemed-denial holding was to render untimely an interlocutory appeal that otherwise would have been permitted jurisdictionally. See id. at 396. Similarly unavailing is the Cavins' attempt to rely on Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2013, no pet.). While the Beacon Hill court did conclude that it possessed appellate jurisdiction to review an interlocutory order granting a TCPA order, see Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-CV, 2013 Tex. App. LEXIS 1898, at *2-10 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, order), its analysis predated intervening material amendments to the TCPA and evidently is no longer followed even by that sister court. See Trane, 501 S.W.3d at 787 (observing that Beacon Hill had been superseded by the intervening amendments and that "the Fourteenth Court of Appeals, like other Texas courts, has [since] determined that '[n]o statutory authority exists . . . for an interlocutory appeal from the grant of a motion to dismiss under section 27.003 of the TCPA.'" (second alteration in original) (quoting Inwood Forest Cmty. Improvement Ass'n v. Arce, 485 S.W.3d 65, 70 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)). Our Pulliam decision follows this same dominant line of authority, and we would adhere to Pulliam in any event in lieu of any conflicting sister court decision.
The same jurisdictional flaw would also distinguish this Court's early TCPA memorandum decision in Kinney v. BCG Attorney Search, Inc., in which the Cavins and Eagle perceive we exercised appellate jurisdiction to review "the sanctions awarded in relation to an interlocutory grant of a [TCPA] motion to dismiss." Assuming without deciding that this is a correct reading of Kinney, that issue, as the Cavins and Eagle acknowledge, was raised in a party's cross-appeal to a primary appeal that we held to be authorized under the then-newly enacted Section 51.014(a)(12). In this case, by contrast, there is no means by which we acquired appellate jurisdiction under Section 51.014(a)(12) in the first instance.
No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at *32-33 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.).
See id. at *9-13.
Beyond this, the Cavins and Eagle urge that we should exercise jurisdiction to avoid "frustrating the purposes of the TCPA." By this, they mean that we should "liberally read" Section 51.014(a)(12) so as to enable us to remedy now what they decry as egregious trial-level errors in applying the TCPA, errors that potentially may not be merged into an appealable final judgment for many months or even years, especially considering the previous consolidations of claims and parties. Whatever the merits of these concerns regarding policy or practicality, the text of Section 51.014(a)(12) defies such expansiveness, especially when construed strictly as we must. And any revisions to our interlocutory-appeals jurisdiction to address these concerns must come from the Legislature rather than this intermediate appellate court.
See, e.g., CMH Homes, 340 S.W.3d at 447; Pulliam, 2017 Tex. App. LEXIS 3325, at *2.
* * *
We grant the Abbotts' motion and render judgment dismissing the appeal for want of jurisdiction.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Dismissed for Want of Jurisdiction Filed: April 30, 2018