Emily Kieth v. Summer Wilkes, as Next Friend of D.V.W.
Opinion
In the
Court of Appeals
Second Appellate District of Texas at Fort Worth
No. 02-24-00166-CV
EMILY KIETH, Appellant
V.
SUMMER WILKES, AS NEXT FRIEND OF D.V.W., Appellee
On Appeal from the 43rd District Court Parker County, Texas
Trial Court No. CV23-1932
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Emily Kieth seeks to appeal the trial court’s order (the Order)
denying her “Motion for Extension of Time to File TCPA Motion” (the Motion for Extension). Appellee Summer Wilkes, as next friend of D.V.W., filed a motion to dismiss Kieth’s appeal for want of jurisdiction. We will grant Wilkes’s motion to dismiss, dismiss Kieth’s appeal for want of jurisdiction, and deny Kieth any alternatively pleaded mandamus relief.
II. BACKGROUND
Wilkes sued Kieth for defamation, and Kieth was served with the lawsuit on November 7, 2023. Kieth filed an answer to the lawsuit on December 12, 2023. On February 27, 2024, Kieth filed the Motion for Extension. Kieth was represented by different counsel when she filed the Motion for Extension from when she answered Wilkes’s lawsuit. In the Motion for Extension, Kieth argued that good cause existed to extend her deadline to file a motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) (requiring a TCPA motion to dismiss to be filed “not later than the 60th day after the date of service of the legal action” and allowing a court to extend the time to file a TCPA motion to dismiss “on a showing of good cause”). Specifically, Kieth argued that her prior counsel had made a mistake by not timely filing a TCPA motion to dismiss, that her prior counsel had “not [been] competent” to represent her in a
defamation suit, and that Wilkes’s lawsuit “chills speech.” On March 25, 2024, the trial court denied Kieth’s Motion for Extension.1 Kieth later filed her notice of appeal of the Order. On April 17, 2024, we notified Kieth by letter of our concern that we lacked jurisdiction over this appeal because the order did not appear to be a final judgment or appealable interlocutory order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001) (holding that, generally, appeals may be taken only from final judgments or interlocutory orders authorized by statute). We informed Kieth that unless she or any party filed a response showing grounds for continuing the appeal, we could dismiss it for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. The day after we sent our letter, Wilkes filed her motion to dismiss for want of jurisdiction, echoing the concerns from our letter. Kieth filed a response to our letter and to Wilkes’s motion to dismiss.
III. DISCUSSION
We consider the three bases for jurisdiction argued by Kieth in her response to our letter and to Wilkes’s motion to dismiss: (1) that statutory law provides a basis for our jurisdiction; (2) that case law provides a basis for our jurisdiction; and (3) to the extent that statutory law and case law do not provide a basis for our jurisdiction, her appeal should be construed as a mandamus action, giving us original jurisdiction.
1 On April 3, 2024, Kieth filed a motion for a permissive interlocutory appeal from the Order. See id. § 51.014(d). That motion was denied by the trial court.
As to the statutory basis for our jurisdiction, Kieth points to Sections 27.008(a), (b) and 51.014(a)(12) of the Texas Civil Practice and Remedies Code. Section 27.008(a) provides, “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.” Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a); see id. §§ 27.003, .005. Section 27.008(b) provides, “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.” Id. § 27.008(b); see id. §§ 27.003, .005. Section 51.014(a)(12) provides that a person may appeal from an interlocutory order that “denies a motion to dismiss filed under Section 27.003.” Id. § 51.014(a)(12); see id. § 27.003.
We construe a statute to implement the legislature’s intent as expressed in the statute’s plain language, and we presume that the legislature intended each word to be given effect. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). We consider a statute’s words in context and construe them according to the rules of grammar and common usage. See Tex. Gov’t Code Ann. § 311.011(a).
Through a tortured reading of Sections 27.008(a), (b) and 51.014(a)(12), Kieth argues that those statutes provide us with jurisdiction to review a trial court’s denial of a motion to extend the deadline to file a TCPA motion to dismiss. We hold that the
statutes do no such thing. Each of the statutes plainly refers to a TCPA “motion to dismiss”—not to a motion to extend the deadline to file a TCPA motion to dismiss. If the legislature had desired to extend our appellate jurisdiction to the review of an order denying a motion to extend the deadline to file a TCPA motion to dismiss, it could have done so.2 See Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 225 (Tex. App.— Fort Worth 2005, no pet.) (applying rule of construction to different statute and noting that, “[i]f the legislature had desired to place the filing requirement on the surety, it easily could have done so”). We thus reject Kieth’s argument that there is a statutory basis for our jurisdiction over this appeal.3 As to the case-law basis for our jurisdiction, Kieth points to a number of cases standing for the proposition that it is the character and function of an order—rather than the form of the order—that determines its classification. See, e.g., Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809–10 (Tex. 1992) (“We reject the notion that
Pointing to Section 27.011(b), Kieth argues that the “TCPA requires a liberal 2
construction in the case of ambiguities.” See Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b) (providing that “[t]his chapter shall be construed liberally to effectuate its purpose and intent fully”). But the statutes are not ambiguous, and even a liberal construction of Sections 27.008(a), (b) and 51.014(a)(12) cannot change the plain meaning of the unambiguous phrase “motion to dismiss.” See id. §§ 27.008(a), (b), 51.014(a)(12).
Kieth also argues that the trial court’s denial of the Motion for Extension 3
“operates as a denial of a TCPA motion by operation of law.” Kieth acknowledges, however, that her attorney “did an extensive survey of TCPA cases where good cause was contested on appeal, and this issue [was] not directly addressed.” We likewise have searched for authorities to support Kieth’s sweeping proposition and have found none.
such matters of form control the nature of the order itself—it is the character and function of an order that determine its classification.”); Chapa v. Chapa, No. 04-12- 00519-CV, 2012 WL 6728242, at *5 (Tex. App.—San Antonio Dec. 28, 2012, no pet.) (mem. op.) (“Our interlocutory jurisdiction is controlled by the substance and function of an order, viewed in the context of the record, not the title or form of the order or the parties’ characterization of the order.”).
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