Nelly Suarez Garcia v. Lorrie Semler

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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