WIKD, LLC v. Maximiliano Gomez and Zachary Tyler Hilbourn

• Court: Court of Appeals of Texas
• Decided: August 6, 2024
• Docket: 05-24-00710-CV
• Status: Published

Opinion

DISMISS and Opinion Filed August 6, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00710-CV

WIKD, LLC, Appellant V. MAXIMILIANO GOMEZ AND ZACHARY TYLER HILBOURN, Appellees

On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 001-00910-2024

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III Opinion by Chief Justice Burns The trial court granted appellees’ separate motions to dismiss brought

pursuant to the Texas Citizen’s Participation Act (TCPA). See TEX. CIV. PRAC. &

REM. CODE ANN. § 27.003. The trial court awarded appellees their attorney fees

pursuant to section 27.009(a)(1) in an amount to be determined at a separate hearing.

See id. § 27.009(a)(1) (trial court shall award successful movant reasonable

attorney’s fees). Because the orders grant the motions to dismiss but leave pending

the issue of attorney’s fees, we questioned our jurisdiction and directed the parties

to file letter briefs addressing the jurisdictional issue. Generally, this Court has jurisdiction over final judgments that dispose of all

parties and claims and certain interlocutory orders as permitted by statute.

See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(a)(1)–(17) (listing appealable interlocutory

orders including an interlocutory order denying a TCPA motion to dismiss).

Because the amount of attorney’s fees awarded to defendants remains to be

determined, the orders are neither final judgments nor subject to interlocutory

appeal. See Garcia v. Semler, No. 05-20-00761-CV, 2021 WL 1381156, at *1 (Tex.

App.—Dallas Apr. 13, 2021, no pet.) (mem. op.) (dismissing appeal of interlocutory

order granting TCPA motion to dismiss but leaving amount of attorney’s fees to be

determined).

In its letter brief, appellant fails to address this Court’s authority that is directly

on point. See id. Instead, appellant asserts the appealed orders are final because the

determination of the amount of attorney’s fees is a ministerial act because the TCPA

requires that fees be awarded to a successful movant. A ministerial act is one that

does not involve judicial discretion. See In re Rodriguez, 77 S.W.3d 459, 461 (Tex.

App.—Corpus Christi 2002, orig. proceeding). A determination of the amount of

reasonable attorney’s fees under the TCPA involves judicial discretion. See Sullivan

v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). Because the determination of the

amount of attorney’s fees awarded to a successful movant under the TCPA requires

judicial discretion, it is not a ministerial act. See id.

–2– Alternatively, appellant asks that we abate the appeal to allow the trial court

to determine the amount of attorneys’ fees to which appellees are entitled. We

decline to do so.

Because the orders granting appellees’ TCPA motion to dismiss are

unappealable interlocutory orders, we dismiss the appeal for want of jurisdiction.

See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III 240710F.P05 CHIEF JUSTICE

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

WIKD, LLC, Appellant On Appeal from the County Court at Law No. 1, Collin County, Texas No. 05-24-00710-CV V. Trial Court Cause No. 001-00910- 2024. MAXIMILIANO GOMEZ AND Opinion delivered by Chief Justice ZACHARY TYLER HILBOURN, Burns. Justices Molberg and Appellees Pedersen, III participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees MAXIMILIANO GOMEZ AND ZACHARY TYLER HILBOURN recover their costs of this appeal from appellant WIKD, LLC.

Judgment entered August 6, 2024

–4–