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Date: 12-01-2022
Case Style:
Central States Water Resources, Inc. v. Undine Development, LLC and Undine Texas, LLC
Case Number: 02-22-00134-CV
Judge: Dana Womack
Court:
Second Appellate District of Texas at Fort Worth
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peal from the 431st District Court of Denton County
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Defendant's Attorney: Laura L. Worsham
Lindy D. Jones
Ty Jones
Description:
Fort Worth, Texas – Business Law lawyer represented Appellees with alleging a breach-of-contract claim.
.
As background, CSWR filed suit against Undine and Terra Southwest, Inc.,
alleging a breach-of-contract claim against Terra and certain declaratory-judgment
claims against both Undine and Terra. Terra later filed a plea to the jurisdiction,
asserting that the trial court lacked jurisdiction to hear certain of the declaratoryjudgment claims. Undine filed a motion to dismiss the claims brought against them
pursuant to the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem.
Code Ann. § 27.001–.011.
The trial court ultimately granted Terra’s plea to the jurisdiction, dismissing
certain of the declaratory-judgment claims but maintaining that the trial court “has
jurisdiction over [CSWR’s] claim for breach of contract against [Terra], and [that] that
breach of contract claim remains to be litigated in this case.” The trial court also
granted Undine’s motion to dismiss, ordering that CSWR’s claims against Undine
were dismissed with prejudice and ordering that Undine “shall receive their necessary
and reasonable attorney’s fees in bringing the Motion upon submission of evidence of
such fees to the Court.”
In two separate notices of appeal, CSWR challenged the trial court’s grant of
Terra’s plea to the jurisdiction and grant of Undine’s TCPA motion to dismiss. This
3
appeal concerns CSWR’s challenge to the trial court’s grant of Undine’s TCPA
motion to dismiss.1
After CSWR filed its brief in this appeal, Undine filed their
motion to dismiss CSWR’s appeal, contending that our court lacks appellate
jurisdiction over CSWR’s challenge to the trial court’s grant of Undine’s TCPA
motion to dismiss.
This court has appellate jurisdiction only over appeals from final judgments and
from interlocutory orders that the Texas Legislature has specified are immediately
appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see, e.g., Tex.
Civ. Prac. & Rem. Code Ann. § 51.014. A judgment is final when it either (1) actually
disposes of every pending claim and party or (2) clearly and unequivocally states that it
finally disposes of all claims and all parties. Lehmann, 39 S.W.3d at 200, 205. Here,
the order CSWR is appealing is not a final judgment because it does not actually
dispose of every pending claim and party; to the contrary, the breach-of-contract
claim remains against Terra, as does Undine’s request for their attorney’s fees on their
TCPA motion to dismiss. Moreover, the order CSWR is appealing is not a final
judgment because it does not clearly and unequivocally state that it finally disposes of
all claims and all parties; to the contrary, the order specifically references that Undine
shall receive their reasonable and necessary attorney’s fees upon submitting evidence
of such fees to the trial court.
1
CSWR’s challenge to the trial court’s grant of Terra’s plea to the jurisdiction is
the subject of a separate appeal in this court.
4
We have repeatedly held that an order granting a TCPA motion to dismiss is
not an appealable interlocutory order. See WSG Asia Pacific, Ltd. v. Fifield, Inc., No. 02-
19-00400-CV, 2020 WL 3969557, at *2 (Tex. App.—Fort Worth June 18, 2020, no
pet.) (per. curiam) (mem. op.); Hollis v. ProPath Assocs., PLLC, No. 02-19-00167-CV,
2019 WL 3024472, at *1 (Tex. App.—Fort Worth July 11, 2019, no pet.) (per curiam)
(mem. op.); Flynn v. Gorman, No. 02-16-00131-CV, 2016 WL 4699198, at *1 (Tex.
App.—Fort Worth Sept. 8, 2016, no pet.) (per curiam) (mem. op.).2
2
In its response to Undine’s motion to dismiss, CSWR points us to Direct
Commercial Funding, Inc. v. Beacon Hill Estates, LLC, where the Fourteenth Court of
Appeals found that it had jurisdiction over an interlocutory order granting a TCPA
motion to dismiss. No. 14-12-00896-CV, 2013 WL 407029, at *1–4 (Tex. App.—
Houston [14th Dist.] Jan. 24, 2013, order). In that case, the Fourteenth Court of
Appeals noted that Section 27.008(b) of the Civil Practice and Remedies Code stated
that “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or
not, from a trial court order on a [TCPA] motion to dismiss . . . or from a trial court’s
failure to rule on that motion in the time prescribed by Section 27.005.” Id. (citing
Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b) (emphasis added)). According to the
appellate court, the phrase “whether interlocutory or not” contained in Section
27.008(b) was rendered meaningless if no interlocutory appeal was available when the
trial court expressly ruled on a TCPA motion to dismiss. Id. at *3. Beacon Hill,
however, was decided before the enactment of Section 51.014(a)(12) of the Civil
Practice and Remedies Code—a section authorizing an interlocutory appeal of the
denial of a TCPA motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(12). Since the enactment of Section 51.014(a)(12), the Fourteenth Court
of Appeals has held that “[n]o statutory authority exists . . . for an interlocutory appeal
from the grant of a [TCPA] motion to dismiss[.]” Inwood Forest Cmty. Improvement Ass’n
v. Arce, 485 S.W.3d 65, 70 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). As
noted above, we have similarly held that an order granting a TCPA motion to dismiss
is not an interlocutory order. See WSG Asia Pacific, 2020 WL 3969557, at *2; Hollis,
2019 WL 3024472, at *1; Flynn, 2016 WL 4699198, at *1
Outcome: Because the order CSWR attempts to appeal is neither a final judgment nor an
appealable interlocutory order, we dismiss this appeal for want of jurisdiction.
Plaintiff's Experts:
Defendant's Experts:
Comments: