TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00806-CV
Eureka Holdings Acquisitions, L.P., Appellant
v.
Marshall Apartments, LLC, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-16-005630, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING
OPINION
Appellant Eureka Holdings Acquisitions, L.P. sued appellee Marshall
Apartments, LLC, seeking specific performance of a real-estate contract. Marshall filed
counterclaims for tortious interference and breach of contract, breach of the original agreement,
and breach of a settlement agreement. Eureka filed a motion to dismiss Marshall’s
counterclaims pursuant to the Texas Citizens Protection Act (TCPA). See generally Tex. Civ.
Prac. & Rem. Code §§ 27.001-.011.
On July 31, 2019, the trial court signed an “Order on Plaintiff’s Motion to
Dismiss,” granting the motion as to Marshall’s counterclaim for tortious interference and
dismissing that claim with prejudice but denying the motion to dismiss as to Marshall’s other
counterclaims. In the July order, the trial court noted that Eureka was entitled under the TCPA
to attorney’s fees and sanctions as to the dismissed claim and stated that those “amounts shall be determined by subsequent order.” Eureka then filed a letter with the trial court stating that it
“will not appeal the Dismissal Order, although Plaintiff retains the procedural right to appeal [the
trial court’s] future order setting the amount of attorney’s fees and sanctions that must be
awarded to Plaintiff, if necessary.”
On October 17, 2019, after holding a hearing on the matter, the trial court signed a
“Subsequent Order on Attorney’s Fees, Costs, and Other Expenses and Sanctions Awarded to
Plaintiff Pursuant To Chapter 27 of the Texas Civil Practice and Remedies Code,” awarding
Eureka $6,345.42 in attorney’s fees, plus additional fees in the event of a successful appeal, and
$2,000 in sanctions. 1 On November 1, Eureka filed its notice of appeal, stating that it was
appealing from “the Court’s October 17, 2019 final ruling denying, in part, Plaintiff’s Motion to
Dismiss” pursuant to the TCPA.
Marshall has filed with this Court a motion to dismiss Eureka’s appeal, asserting
that the October 17 order on fees and expenses is not an appealable interlocutory order. We
agree and will therefore dismiss Eureka’s appeal for want of jurisdiction.
DISCUSSION
“Unless a statute authorizes an interlocutory appeal, appellate courts generally
only have jurisdiction over final judgments.” CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.
2011). “We strictly apply statutes granting interlocutory appeals because they are a narrow
exception to the general rule that interlocutory orders are not immediately appealable.” Id.; see
Pulliam v. City of Austin, No. 03-17-00131-CV, 2017 WL 1404745, at *1 (Tex. App.—Austin
Apr. 14, 2017, order) (per curiam) (dismissing interlocutory order granting TCPA motion and
1 Eureka had sought $36,793.80 in fees related to the tortious-interference claim. 2 allowing interlocutory appeal from denial of plea to jurisdiction to continue). The TCPA
provides that “[i]f a legal action is based on or is in response to a party’s exercise of the right of
free speech, right to petition, or right of association or arises from any act of that party in
furtherance of the party’s communication or conduct described by Section 27.010(b), that party
may file a motion to dismiss the legal action.” Tex. Civ. Prac. & Rem. Code § 27.003(a). An
interlocutory appeal may be taken from an order that “denies a motion to dismiss filed under
Section 27.003,” id. § 51.014(a)(12), but not from an order that grants a TCPA motion, see
Pulliam, 2017 WL 1404745, at *1; Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—
Amarillo 2016, no pet.); Flynn v. Gorman, No. 02-16-00131-CV, 2016 WL 4699198, at *1 (Tex.
App.—Fort Worth Sept. 8, 2016, no pet.) (mem. op.); Fleming & Assocs, L.L.P. v. Kirklin, 479
S.W.3d 458, 460 (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.).
Eureka argues that its time to appeal was triggered by the October order on
attorney’s fees, not the earlier July order ruling on the merits of Eureka’s TPCA motion. Eureka
cites for support a case in which our sister court stated that a “formal order of dismissal,” to be
appealable under the TCPA, “had to include the award of attorney’s fees and sanctions.” Wilson
v. Trevino, No. 01-19-00441-CV, 2019 WL 3484422, at *3 (Tex. App.—Houston [1st Dist.]
Aug. 1, 2019, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code § 27.009). 2 However, as
another sister court has explained, “Nothing within the TCPA expressly prohibits the trial court
2 In that case, Wilson filed an interlocutory appeal from a letter by the trial court stating that it was granting the appellees’ TCPA motions on most of Wilson’s claims and that it would enter orders to that effect during a later hearing on TCPA attorney’s fees. Wilson v. Trevino, No. 01-19-00441-CV, 2019 WL 3484422, at *1 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet.) (mem. op.). The court of appeals dismissed the appeal for want of jurisdiction after concluding that the letter was not an “order” subject to appeal. Id. *3. 3 from timely ruling on the request for dismissal and later resolving issues relating to statutorily
required attorney’s fees and sanctions.” Leniek v. Evolution Well Servs., LLC, No. 14-18-00954-
CV, 2019 WL 438825, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (mem. op.)
(citing DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 859-60 (Tex. App.—Fort Worth
2018, no pet.)). 3 We agree with the 14th Court’s reading, as the wording of the TCPA allows a
trial court to sign an order ruling on the merits of a TCPA motion—from which, in the event of a
denial, an interlocutory appeal may be taken under section 51.014, see Tex. Civ. Prac. & Rem.
Code § 51.014(a)(12)—and then to resolve the issue of attorney’s fees in a separate, later order.
Eureka’s notice of appeal characterizes the trial court’s October order as
“denying, in part, Plaintiff’s Motion to Dismiss Defendant’s First Amended Counterclaim”
pursuant to the TCPA, but the July order had already done so. The October order did not rule on
the motion to dismiss but instead only made a determination of attorney’s fees as to the partial
granting of the motion. Indeed, the October order notes:
By Order dated July 31, 2019, the Court granted the Motion to Dismiss in part and ordered that, pursuant to Section 27.005 of the Texas Civil Practice and Remedies Code, Defendant’s Counterclaim for tortious interference was dismissed with prejudice.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00806-CV
Eureka Holdings Acquisitions, L.P., Appellant
v.
Marshall Apartments, LLC, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-16-005630, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING
OPINION
Appellant Eureka Holdings Acquisitions, L.P. sued appellee Marshall
Apartments, LLC, seeking specific performance of a real-estate contract. Marshall filed
counterclaims for tortious interference and breach of contract, breach of the original agreement,
and breach of a settlement agreement. Eureka filed a motion to dismiss Marshall’s
counterclaims pursuant to the Texas Citizens Protection Act (TCPA). See generally Tex. Civ.
Prac. & Rem. Code §§ 27.001-.011.
On July 31, 2019, the trial court signed an “Order on Plaintiff’s Motion to
Dismiss,” granting the motion as to Marshall’s counterclaim for tortious interference and
dismissing that claim with prejudice but denying the motion to dismiss as to Marshall’s other
counterclaims. In the July order, the trial court noted that Eureka was entitled under the TCPA
to attorney’s fees and sanctions as to the dismissed claim and stated that those “amounts shall be determined by subsequent order.” Eureka then filed a letter with the trial court stating that it
“will not appeal the Dismissal Order, although Plaintiff retains the procedural right to appeal [the
trial court’s] future order setting the amount of attorney’s fees and sanctions that must be
awarded to Plaintiff, if necessary.”
On October 17, 2019, after holding a hearing on the matter, the trial court signed a
“Subsequent Order on Attorney’s Fees, Costs, and Other Expenses and Sanctions Awarded to
Plaintiff Pursuant To Chapter 27 of the Texas Civil Practice and Remedies Code,” awarding
Eureka $6,345.42 in attorney’s fees, plus additional fees in the event of a successful appeal, and
$2,000 in sanctions. 1 On November 1, Eureka filed its notice of appeal, stating that it was
appealing from “the Court’s October 17, 2019 final ruling denying, in part, Plaintiff’s Motion to
Dismiss” pursuant to the TCPA.
Marshall has filed with this Court a motion to dismiss Eureka’s appeal, asserting
that the October 17 order on fees and expenses is not an appealable interlocutory order. We
agree and will therefore dismiss Eureka’s appeal for want of jurisdiction.
DISCUSSION
“Unless a statute authorizes an interlocutory appeal, appellate courts generally
only have jurisdiction over final judgments.” CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.
2011). “We strictly apply statutes granting interlocutory appeals because they are a narrow
exception to the general rule that interlocutory orders are not immediately appealable.” Id.; see
Pulliam v. City of Austin, No. 03-17-00131-CV, 2017 WL 1404745, at *1 (Tex. App.—Austin
Apr. 14, 2017, order) (per curiam) (dismissing interlocutory order granting TCPA motion and
1 Eureka had sought $36,793.80 in fees related to the tortious-interference claim. 2 allowing interlocutory appeal from denial of plea to jurisdiction to continue). The TCPA
provides that “[i]f a legal action is based on or is in response to a party’s exercise of the right of
free speech, right to petition, or right of association or arises from any act of that party in
furtherance of the party’s communication or conduct described by Section 27.010(b), that party
may file a motion to dismiss the legal action.” Tex. Civ. Prac. & Rem. Code § 27.003(a). An
interlocutory appeal may be taken from an order that “denies a motion to dismiss filed under
Section 27.003,” id. § 51.014(a)(12), but not from an order that grants a TCPA motion, see
Pulliam, 2017 WL 1404745, at *1; Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—
Amarillo 2016, no pet.); Flynn v. Gorman, No. 02-16-00131-CV, 2016 WL 4699198, at *1 (Tex.
App.—Fort Worth Sept. 8, 2016, no pet.) (mem. op.); Fleming & Assocs, L.L.P. v. Kirklin, 479
S.W.3d 458, 460 (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.).
Eureka argues that its time to appeal was triggered by the October order on
attorney’s fees, not the earlier July order ruling on the merits of Eureka’s TPCA motion. Eureka
cites for support a case in which our sister court stated that a “formal order of dismissal,” to be
appealable under the TCPA, “had to include the award of attorney’s fees and sanctions.” Wilson
v. Trevino, No. 01-19-00441-CV, 2019 WL 3484422, at *3 (Tex. App.—Houston [1st Dist.]
Aug. 1, 2019, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code § 27.009). 2 However, as
another sister court has explained, “Nothing within the TCPA expressly prohibits the trial court
2 In that case, Wilson filed an interlocutory appeal from a letter by the trial court stating that it was granting the appellees’ TCPA motions on most of Wilson’s claims and that it would enter orders to that effect during a later hearing on TCPA attorney’s fees. Wilson v. Trevino, No. 01-19-00441-CV, 2019 WL 3484422, at *1 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet.) (mem. op.). The court of appeals dismissed the appeal for want of jurisdiction after concluding that the letter was not an “order” subject to appeal. Id. *3. 3 from timely ruling on the request for dismissal and later resolving issues relating to statutorily
required attorney’s fees and sanctions.” Leniek v. Evolution Well Servs., LLC, No. 14-18-00954-
CV, 2019 WL 438825, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (mem. op.)
(citing DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 859-60 (Tex. App.—Fort Worth
2018, no pet.)). 3 We agree with the 14th Court’s reading, as the wording of the TCPA allows a
trial court to sign an order ruling on the merits of a TCPA motion—from which, in the event of a
denial, an interlocutory appeal may be taken under section 51.014, see Tex. Civ. Prac. & Rem.
Code § 51.014(a)(12)—and then to resolve the issue of attorney’s fees in a separate, later order.
Eureka’s notice of appeal characterizes the trial court’s October order as
“denying, in part, Plaintiff’s Motion to Dismiss Defendant’s First Amended Counterclaim”
pursuant to the TCPA, but the July order had already done so. The October order did not rule on
the motion to dismiss but instead only made a determination of attorney’s fees as to the partial
granting of the motion. Indeed, the October order notes:
By Order dated July 31, 2019, the Court granted the Motion to Dismiss in part and ordered that, pursuant to Section 27.005 of the Texas Civil Practice and Remedies Code, Defendant’s Counterclaim for tortious interference was dismissed with prejudice. The Court further ordered that Defendant shall pay to Plaintiff court costs, reasonable attorney’s fees, and sanctions, the amounts of which were to be determined by subsequent order.
The time to appeal from the trial court’s partial denial of the TCPA motion to dismiss began to
run on July 31, 2019, when the trial court signed its order addressing the merits of Eureka’s
3 In Leniek, the trial court signed an order granting a TCPA motion to dismiss but left the issue of attorney’s fees pending, and the court of appeals held that because there is no right to appeal from the granting of a TCPA motion, the order was an unappealable interlocutory order. Leniek v. Evolution Well Servs., LLC, No. 14-18-00954-CV, 2019 WL 438825, at *1-2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (mem. op.).
4 motion. Eureka’s notice of appeal was filed well beyond the deadline to appeal from the trial
court’s partial denial of the TCPA motion, and there is no statutory basis for an interlocutory
appeal from the trial court’s October order which only addresses attorney’s fees for the partial
granting of the motion to dismiss. Any challenges Eureka wishes to make to the sufficiency of
the attorney’s fee award can be brought on appeal after final judgment. See Seekra Realty, LLC
v. Garner Paving & Constr., Ltd., No 14-18-00984-CV, 2019 WL 613530, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 14, 2019, no pet.) (per curiam) (mem. op.); see also Cavin v. Abbott,
No. 03-18-00073-CV, 2018 WL 2016284, at *2-4 (Tex. App.—Austin Apr. 30, 2018, pet.
denied) (mem. op.). 4
CONCLUSION
Eureka did not file a timely appeal from the trial court’s appealable order ruling
on the merits of the TCPA motion to dismiss. Instead, it filed its notice of appeal complaining of
a non-appealable interlocutory order. We therefore grant Marshall’s motion and dismiss this
attempted interlocutory appeal for lack of jurisdiction.
4 In Cavin, after we reversed a trial court’s denial of a TCPA motion and remanded the cause for a determination of attorney’s fees, the Cavins attempted to appeal from the attorney’s fees award while the case was still pending in the trial court, and we held that there was no right to an interlocutory appeal from an order awarding attorney’s fees. Cavin v. Abbott, No. 03-18- 00073-CV, 2018 WL 2016284, at *2-4 (Tex. App.—Austin Apr. 30, 2018, pet. denied) (mem. op.). Although the procedural posture of that case is different, the logic applies equally here. 5 __________________________________________ Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Baker and Triana
Dismissed for Want of Jurisdiction
Filed: February 6, 2020