the Travis Law Firm, P.C. v. Allison E. Martin and Texas Workforce Commission

• Court: Court of Appeals of Texas
• Decided: February 11, 2021
• Docket: 01-19-00361-CV
• Status: Published

Opinion

Opinion issued February 11, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00361-CV ——————————— THE TRAVIS LAW FIRM, P.C., Appellant V. ALLISON E. MARTIN AND TEXAS WORKFORCE COMMISSION, Appellees

On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2017-04271

MEMORANDUM OPINION

Appellant, The Travis Law Firm, P.C. (“Law Firm”), attempts to appeal

from an order awarding attorney’s fees pursuant to section 27.009 of the Texas

Civil Practice and Remedies Code. We dismiss the appeal for lack of jurisdiction. Background

The underlying facts of this wage dispute can be found in our prior opinion.

See Terri Porter-Garcia v. The Travis Law Firm, P.C., 564 S.W.3d 75 (Tex.

App.—Houston [1st Dist.] 2018, pet. denied). Notably, our prior opinion reversed

the trial court’s denial of appellee’s Texas Citizens Participation Act (“TCPA”)

motion on the Law Firm’s fraud and theft of wages claims and remanded to the

trial court to dismiss those claims. Id. at 93. Our prior opinion also affirmed the

trial court’s denial of appellee’s TCPA motion on the Law Firm’s breach of

contract claim, which remains pending below. Id. We remanded to the trial court

for consideration of additional relief under section 27.009 of the Texas Civil

Practice and Remedies Code for the Law Firm’s fraud and theft of wages claims,

and Martin sought to recover her attorney’s fees and other expenses from the Law

Firm.1

On April 3, 2019, the trial court awarded Martin attorney’s fees, expenses,

court costs, and sanctions. The Law Firm filed its notice of appeal on May 3, 2019,

attempting to appeal the “Order Granting Attorney’s Fees, Costs, and Sanctions”

signed on April 3, 2019.

1 See TEX. CIV. PRAC. & REM. CODE § 27.009.

2 Interlocutory Appeal

Generally, appeals may be taken only from final judgments. Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of

all pending parties and claims, the orders remain interlocutory and unappealable

until final judgment is rendered unless a statutory exception applies. Bally Total

Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). We strictly construe

statutes authorizing interlocutory appeals. Young v. Villegas, 231 S.W.3d 1, 5 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied).

The Civil Practice and Remedies Code provides for an interlocutory appeal

of an order that “denies a motion to dismiss filed under section 27.003” of the

TCPA. See TEX. CIV. PRAC. REM. CODE § 51.014(a)(12). No statutory authority

exists, however, for an interlocutory appeal from the grant of a motion to dismiss

under the TCPA. See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—

Amarillo 2016, no pet.) (dismissing appeal from interlocutory grant of TCPA

motion to dismiss for want of jurisdiction); Fleming & Assocs. v. Kirklin, 479

S.W.3d 458, 460–61 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding

interlocutory order granting TCPA motion to dismiss was not appealable).

The record reveals that at least one claim remains pending below, and

therefore, the trial court’s April 3, 2019 order awarding attorney fees is an

interlocutory order. On November 5, 2020, we notified the Law Firm that it

3 appeared that we lacked jurisdiction because the appellate record does not contain

a final judgment and no statute allows for the appeal of the interlocutory order on

attorney’s fees.

The Law Firm responded that section 27.008(b) confers jurisdiction to

review the trial court’s award of costs and damages through interlocutory appeal.

We disagree.

Section 27.008 provides,

(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.

TEX. CIV. PRAC. & REM. CODE § 27.008.

Section 27.008(a) states that a motion to dismiss that has not been ruled

upon by the statutory deadline is denied by operation of law and may be appealed.

See id. § 27.008(a). Section 27.008(b) provides that appeals from orders on

motions to dismiss are expedited. See id. No statutory language in either subsection

of section 27.008 provides this court with jurisdiction to consider an interlocutory

appeal of the order at issue here. See Paulsen v. Yarrell, 455 S.W.3d 192, 195–96

(Tex. App.—Houston [1st Dist.] 2014, no pet.) (concluding that we lacked 4 jurisdiction over appeal because “order denying Chapter 27 attorney’s fees is an

order from which no statutory right to interlocutory appeal lies”); Eureka Holdings

Acquisitions, L.P., v. Marshall Apartments, LLC, 597 S.W.3d 921, 924–25 (Tex.

App.—Austin 2020, pet. denied) (“[T]here 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.”); 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.) (mem. op.) (concluding no jurisdiction from order granting TCPA

motion and that “[a]ppellant’s complaint regarding attorney’s fees may be brought

up on appeal when this case is finally disposed”). Likewise, we are not aware of

any statutory authority that allows for the Law Firm’s interlocutory appeal.

The Law Firm alternatively argues that we should remand to the trial court

so that the causes of action “forming the basis of the damages and costs can be

severed from Travis Law Firm’s remaining live cause of action not dismissed

under Chapter 27 of the Texas Civil Practice and Remedies Code.”

The Law Firm provides no authority in support of its argument, and we note

that the trial court has broad discretion to sever a claim. See State v. Morello, 547

5 S.W.3d 881, 889 (Tex. 2018); TEX. R. CIV. P. 41. We thus decline the Law Firm’s

request.

For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.