Motion Denied; Order filed January 24, 2013.
In The
Fourteenth Court of Appeals
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NO. 14-12-00896-CV
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DIRECT COMMERCIAL FUNDING, INC., Appellant
V.
BEACON HILL ESTATES, LLC AND INTESAR HUSAIN ZAIDI, Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2012-01150
ORDER
This is an appeal from the trial court’s interlocutory order under Chapter 27 of
the Texas Civil Practices and Remedies Code dismissing appellant Direct Commercial
Funding, Inc.’s claims against appellees Beacon Hill Estates, LLC and Intesar Husain
Zaidi. The appellees filed a motion to dismiss the appeal arguing that Chapter 27 does
not allow an interlocutory appeal under the circumstances of this case. We deny the
motion to dismiss.
Beacon Hill Estates and Zaidi attempted to obtain funding from Direct
Commercial Funding for a commercial building; according to appellees, they paid
several thousand dollars in fees but received nothing in return. These circumstances
prompted Zaidi to post negative comments about Direct Commercial Funding on an
internet message board called Ripoffreport.com.
Direct Commercial Funding sued Beacon Hill Estates and Zaidi on January 5,
2012 and alleged, among other things, that they breached “the non-disparagement and
anti-cyber forum provisions” contained in an agreement between the parties.
Beacon Hill Estates and Zaidi filed an answer, along with counterclaims for
common law fraud, statutory fraud, negligent misrepresentation, and claims under the
Deceptive Trade Practices Act. They also asserted a claim against Direct Commercial
Funding under a new statute entitled the “Texas Citizens Participation Act,” which is
codified in Chapter 27 under the heading “Actions Involving the Exercise of Certain
Constitutional Rights.” This statute is a type of Anti-SLAPP law, which is an acronym
for “Strategic Lawsuits Against Public Participation.”
Chapter 27’s purpose is to “encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time protect the
rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.002 (Vernon Supp. 2012). The statute effectuates this
purpose by establishing a mechanism for the early dismissal of lawsuits that threaten
the right of free speech, the right to petition, or the right of association.
If a legal action is “based on, relates to, or is in response to a party’s exercise of
the right of free speech, right to petition, or right of association, that party may file a
motion to dismiss the legal action.” Id. § 27.003(a). A hearing on the motion to
dismiss must be set not later than the 30th day after the date of service of the motion
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“unless the docket conditions of the court require a later hearing.” Id. § 27.004. The
trial court must rule on a Chapter 27 motion to dismiss not later than the 30th day
following the date of the hearing on the motion. Id. § 27.005(a).
The trial court signed an order dismissing Direct Commercial Funding’s claims
under Chapter 27 on September 5, 2012. It is undisputed that this express dismissal
order is interlocutory because the trial court has not adjudicated or severed Beacon Hill
Estates’ and Zaidi’s counterclaims against Direct Commercial Funding.
Section 27.008 is entitled “Appeal” and provides as follows:
(a) If a court does not rule on a motion to dismiss under Section 27.003 in
the time prescribed by Section 27.005, the motion is considered to have
been denied by operation of law and the moving party may appeal.
(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss a legal
action under Section 27.003 or from a trial court’s failure to rule on that
motion in the time prescribed by Section 27.005.
(c) An appeal or other writ under this section must be filed on or before
the 60th day after the date the trial court’s order is signed or the time
prescribed by Section 27.005 expires, as applicable.
Id.
Beacon Hill Estates and Zaidi argue that section 27.008(a) permits an
interlocutory appeal when the court fails to rule on the motion and it is denied by
operation of law. Section 27.008(a) does not apply here because the trial court signed
an express ruling granting dismissal; therefore, we do not address section 27.008(a).
According to Beacon Hill Estates and Zaidi, section 27.008(b) does not allow an
interlocutory appeal from an express order on a motion to dismiss. Direct Commercial
Funding argues that section 27.008(b) authorizes an interlocutory appeal from “a trial
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court order on a motion to dismiss” regardless of whether the motion was denied by
operation of law without an order or determined in an express order.
The statutory interpretation inquiry at issue here operates under a de novo
standard of review and is governed by several precepts of statutory construction.
In construing a statute, our objective is to determine and give effect to
legislative intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.
2000). If the meaning of statutory language is unambiguous, we adopt the
interpretation supported by the plain meaning of the provision’s words. St. Luke’s
Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in
forced or strained construction; instead, we must yield to the plain sense of the words
the Legislature chose. See id. A court should not give one provision meaning out of
harmony or inconsistent with other provisions, although it might be susceptible to such
a construction standing alone. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.
2001). Additionally, a court “must not interpret the statute in a manner that renders
any part of the statute meaningless or superfluous.” Columbia Med. Ctr. of Las
Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008).
We also note that statutes providing for interlocutory appeals are to be construed
strictly as exceptions to “‘the general rule that only final judgments are appealable.’”
See, e.g., Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007)
(quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). This
precept must be viewed in light of the legislature’s express command in this particular
circumstance that Chapter 27 “shall be construed liberally to effectuate its purpose and
intent fully.” Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b).
Section 27.008 recently was analyzed in Jennings v. Wallbuilder Presentations,
Inc., 378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. filed). The trial court in
Jennings held a hearing and expressly denied the Chapter 27 motion to dismiss in a
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written interlocutory order. Id. at 522. The Fort Worth Court of Appeals determined
that it lacked appellate jurisdiction because an interlocutory appeal is permitted under
subsection (a) only when the trial court fails to rule on the dismissal motion, resulting
in the motion being denied by operation of law. Id. at 524–29. The court held:
Relying on the plain language of section 27.008(a) as expressing
legislative intent, we agree with Appellees that the interlocutory appeal
statutorily authorized by subsection (a) is limited to situations in which a
trial court has failed to timely rule on a timely-filed motion to dismiss,
and the motion to dismiss is therefore considered to have been denied by
operation of law. Because the trial court in this case did timely hold a
hearing on Appellants’ timely-filed motion to dismiss and did timely rule
on Appellants’ motion to dismiss, we agree with Appellees that the
present appeal does not fall within the category of interlocutory appeals
authorized by section 27.008(a).
Id. at 524.
Subsection (b) does not repeat the language from subdivision (a) providing that
a party “may appeal” the interlocutory order. Jennings determined that section
27.008(b) does not allow an interlocutory appeal when the trial court has ruled
expressly on a motion to dismiss. Id. The court determined that subsection (b)
mandates that an appeal be expedited, but does not allow an interlocutory appeal when
the trial court signs an express order denying or granting the motion to dismiss. Id.;
see also Lipsky v. Range Production Co., No. 02-12-00098-CV; 2012 WL 3600014
(Tex. App.—Fort Worth Aug. 23, 2012, no pet.) (mem. op.) (following Jennings, court
held it did not have jurisdiction over trial court’s order denying motion to dismiss); cf.
Avila v. Larrea, No. 05-11-01637-CV; 2012 WL 6633994 (Tex. App.—Dallas Dec.
18, 2012, no pet.) (mem. op.) (court found trial court failed to rule, which was
appealable under section 27.008(a)). Jennings did not analyze the impact of section
27.008(c) on this issue. See Jennings, 378 S.W.3d at 525 n.5 (“Neither party contends
that section 27.008(c) creates a statutory right of interlocutory appeal.”).
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We depart from the analysis in Jennings, and we reject Beacon Hill Estates’ and
Zaidi’s invitation to dismiss this appeal because the result they advocate impermissibly
renders portions of subsections (b) and (c) meaningless in contravention of statutory
construction precepts.
Subsection (b) states that “an appellate court shall expedite an appeal or other
writ, whether interlocutory or not, from a trial court order on a motion to dismiss . . . or
from a trial court’s failure to rule . . . .” Tex. Civ. Prac. & Rem. Code Ann. §
27.008(b). If no interlocutory appeal is available when the trial court expressly rules
on a motion to dismiss by signing an order, then the phrase “from a trial court order on
a motion to dismiss” appearing after the phrase “whether interlocutory or not” is
rendered meaningless. We further conclude that the most natural reading of the phrase
“whether interlocutory or not” is to read it as modifying both of the subsequent
references to “a trial court order” and “a trial court’s failure to rule.” See McIntyre v.
Ramirez, 109 S.W.3d 741, 746 (Tex. 2003) (interpreting phrase “a person who would
ordinarily receive or be entitled to receive” in statute to mean a person who would
“ordinarily receive” or “ordinarily be entitled to receive”); Cent. Power & Light Co. v.
Bradbury, 871 S.W.2d 860, 863–64 (Tex. App.—Corpus Christi 1994, writ denied)
(interpreting phrase “ambulatory devices and services” in statute to mean “ambulatory
devices” and “ambulatory services”); see also Bonilla v. State, No. 14–08–00289–CR,
2010 WL 2195440, at *9 n. 18 (Tex. App.—Houston [14th Dist.] June 3, 2010, no
pet.) (mem.op.) (interpreting phrase “written order or grant of permission” in criminal
statute to mean “written order” or “written grant of permission” according to “rules of
grammar and common usage”).
Subsection (c) states that an appeal “must be filed on or before the 60th day
after the date the trial court’s order is signed or the time prescribed by section 27.005
expires, as applicable.” If no signed order can be the subject of an interlocutory
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appeal, then the reference to the date on which “the trial court’s order is signed” also is
superfluous.
The motion of Beacon Hill Estates and Zaidi to dismiss Direct Commercial
Funding’s appeal from the trial court’s September 5, 2012 order granting dismissal
under Chapter 27 is denied. In light of this disposition, we do not address Direct
Commercial Funding’s alternative request to treat its appellate pleadings as a petition
for writ of mandamus.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and McCally.
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