Keisha Pope-Nixon v. Jeanine Howard and Alvin Green

Opinion

DISMISS and Opinion Filed February 25, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01215-CV

KEISHA POPE-NIXON, Appellant V. JEANINE HOWARD AND ALVIN GREEN, Appellees

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02907

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Nowell Opinion by Chief Justice Burns

At issue in this appeal is the trial court’s order granting Jeanine Howard’s anti-SLAPP

motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005. Howard filed the motion

after being sued by Keisha Pope-Nixon for defamation and intentional infliction of emotional

distress. Pope-Nixon also sued Alvin Green.

In relevant part, the challenged order states as follows:

[T]he Court finds that the conduct of Plaintiff Keisha Pope-Nixon violates Chapter 27 of the Texas Civil Practice and Remedies Code. IT IS THEREFORE ORDERED that the Motion filed by Howard is in all things GRANTED and that this case is dismissed with prejudice in its entirety.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in accordance with Texas Civil Practice and Remedies Code § 27.009(1), Howard is entitled to recover her attorney’s fees, court costs, and other expenses in bringing her Motion to Dismiss and defending against these claims. Defendant is ordered to submit evidence of her fees, court costs, and other expenses by affidavit within 14 days from the date of this Order. Because the trial court’s order left pending the damages issue and Green had not moved

for dismissal, we questioned our jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001) (subject to mostly statutory exceptions, appeal may only be taken

from judgment that disposes of all parties and claims); Trane US Inc. v. Sublett, 501 S.W.3d 783,

785, 786 (Tex. App.—Amarillo 2016, no pet.) (per curiam) (order granting chapter 27 motion to

dismiss appealable if no pending claims or parties remain). In response, Pope-Nixon filed a letter

brief agreeing the Court lacks jurisdiction. Howard also filed a letter brief, but argues the order is

final. As to the claims against Green, she asserts the language dismissing “the case . . . . in its

entirety” disposed of Green’s claims even though he did not move for dismissal. See Lehmann,

39 S.W.3d 200 (order that includes language unequivocally disposing of all claims and parties is

final even if record does not provide adequate basis for rendition of judgment). As to the damages

issue, she notes section 27.005 of the anti-SLAPP statute requires a trial court to rule on a motion

to dismiss within thirty days of the date of the hearing on the motion. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005. She further notes the trial court failed to rule on the request for fees within

that time period.

Generally, an order that expressly adjudicates all parties and claims in a case is final and

appealable. See Lehmann, 39 S.W.3d at 206. When, as here, however, the order on its face is

ambiguous, it is not final unless the records supports finality. See In re Elizondo, 544 S.W.3d 824,

827-28 (Tex. 2018). The record before the Court does not do that.

To the extent Howard argues the damages issue was overruled by operation of law, section

27.005 does not require the trial court to completely resolve all matters raised in a motion to

dismiss within thirty days of the dismissal hearing. It requires only that the trial court determine

–2– whether the cause of action should be dismissed. See DeAngelis v. Protective Parents Coalition,

556 S.W.3d 836, 859 (Tex. App.—Fort Worth 2018, no pet.).

Because the trial court’s order does not dispose of all claims, we lack jurisdiction and

dismiss the appeal. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

181215F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KEISHA POPE-NIXON, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-18-01215-CV V. Trial Court Cause No. DC-18-02907. Opinion delivered by Chief Justice Burns, JEANINE HOWARD AND ALVIN Justices Molberg and Nowell participating. GREEN, Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER appellees Jeanine Howard and Alvin Green recover their costs, if any, of this appeal from appellant Keisha Pope-Nixon.

Judgment entered February 25, 2019.

–4–