Ravinder K. Jain v. Cambridge Petroleum Group, Inc. ( 2013 )

DISMISS; Opinion Filed March 1, 2013.
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N0. 05-12-00677-CV
RAVINDER K. JAIN, Appellant
V.
CAMBRIDGE PETROLEUM GROUP, INC., Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429—05053—2011
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OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion by Justice Myers
On the Court’s own motion, we withdraw the opinion issued February 7, 2013 and vacate
ourjudgment of that date. The following is now the opinion ofthis Court.
Ravinder K. Jain appeals the trial court’s denial of his motion to dismiss under the Texas
Citizens Participation Act,‘ chapter 27 of the Texas Civil Practice and Remedies Code. See TEX.
CIV. PRAC. & REM. CODE ANN. §§ 27.001—.01 1 (West Supp. 2012). Appellant brings this
interlocutory appeal under section 27.008 of the code. See id. § 27.008(b). Appellant brings one
issue on appeal contending the trial court improperly denied appellant’s motion to dismiss. In a
I See Act ofMay 21, 2012, 82nd Leg, R.S., ch. 341,§ l, 2011 Tex. Gen. Laws 960, 960.
cross—point, Cambridge Petroleum Group, Inc. contends this Court lacks jurisdiction over the
appeal because appellant did not timely file his notice of appeal. We agree appellant’s notice of
appeal was untimely, and we dismiss the appeal for want ofjurisdiction.
BACKGROUND
The Citizens Participation Act permits a defendant who has been sued in response to the
defendant’s exercise of the right of free speech, right to petition, or right of association to move
for dismissal ofthe suit. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). The defendant must
file the motion within sixty days ofthe date of service of the legal action. Id. § 27.003(b). The
trial court must set the hearing on the motion to dismiss within thirty days after service of the
motion unless the court’s docket conditions require a later setting. Id. § 27.004. The court must
rule on the motion to dismiss within thirty days ofthe hearing. Id. § 27.005(a). If the court does
not rule on the motion to dismiss within thirty days of the hearing, then the motion is considered
denied by operation of, law. A defendant may bring an interlocutory appeal of a motion to
dismiss that was denied by operation of law. Id. § 27.008(a). The notice of appeal must be filed
“on or before the 60th day after the date the trial court’s order is signed or” the date the motion is
denied by operation of law. Id. § 27.008(c).
In this case, appellee sued appellant for defamation, and appellant timely mOVed for
dismissal of the suit. The trial court held a hearing on the motion on February 2, 2012. The trial
court did not issue a ruling on the motion Within thirty days; accordingly, the motion was denied
by operation of law on March 5, 2012.2 Appellant had to file his notice of appeal within sixty
days, that is, by May 4, 2012. Id. Appellant filed his notice of appeal on May 21, 2012. In the
2 March 3, 2012 was the thirtieth day after February 2, 2012. However, because March 3 was a Saturday, the
time was extended to the following Monday, March 5. See TEX. R. CIV. P. 4.
meantime, the trial court signed a written order purporting to deny appellant’s motion to dismiss
on May 17, 2012.
JURISDICTION
We begin by addressing appellee’s cross-point asserting we lack jurisdiction over this
appeal. See Small v. Specialty Contractors, Inc, 310 S.W.3d 639, 642 (Tex. Apvaallas 2010,
no pet.). Generally, courts of appeals have jurisdiction only over appeals from final judgments.
Lehmann v. Har—Con Corp, 39 S.W.3d 191, 195 (Tex. 2001). The courts have jurisdiction over
interlocutory orders only when that authority is explicitly granted by statute. See Tex. A & M
Univ. Sys. v. Koseoglu. 233 S.W.3d 835, 840 (Tex. 2007). Statutes authorizing interlocutory
appeals are strictly construed because they are a narrow exception to the general rule that
interlocutory orders are not immediately appealable. See CMH Homes v. Perez, 340 S.W.3d
444, 447 (Tex. 2011).
Appellee contends appellant’s notice of appeal was untimely because it was not filed
within sixty days of the denial by operation of law of appellant’s motion to dismiss.3 Appellant
argues his notice of appeal was timely because it was filed within sixty days of the trial court’s
3 Applying the weekend provisions of rule of appellate procedure 4.1, appellant filed his notice of appeal on the
fifteenth day after the deadline for perfecting the appeal. See TEX. R. APP. P. 4.1(a). Rule 26 permits an appellate
court to extend the time to file the notice of appeal if the appellant files the notice of appeal and a motion for
extension of time within fifteen days of the deadline, TEX. R. APP. P. 26.3. Appellant did not file a motion for
extension of time to file notice of appeal. The courts imply such a motion under rule 26.3 when a notice of appeal is
filed in good faith during the time for filing a motion for extension. See Verburgt v. Dorner, 959 S.W.2d 615, 617
(Tex, 1997). However, appellant’s notice of appeal was not filed under rule 26; it was filed under Civil Practice &
Remedies Code section 27.008(_c). The deadlines and extensions for perfecting an appeal under rule 26 do not apply
when a statute provides the times for perfecting appeal. See TEX. R. APP. P. 28.1(b) (“Unless otherwise provided by
statute, an accelerated appeal is perfected by filing a notice of appeal in compliance with Rule 251 within the time
allowed by Rule 26.1(b) or as extended by Rule 26.3.” (Emphasis added.)). Section 27.008(c) requires the appeal
be filed “on or before the 60th day after . . . the time prescribed” for the trial court to rule on a motion to dismiss.
Permitting an extension of time, express or implied, to file the notice of appeal beyond the sixtieth day would
conflict with the requirements of section 27.008(c). Accordingly, we do not imply an extension.
signed order denying the motion to dismiss.4 We agree with appellee. Section 27.008(C)
requires “the appeal” be filed “on or before the 60th day after the date the trial court’s order is
signed or the time prescribed by Section 27.005 expires, as applicable.” The only “time
prescribed by Section 27.005” is the requirement that the trial court rule on the motion to dismiss
within thirty days after the hearing. Thus, “the 60th day after . . . the time prescribed by Section
27.005 expires” is the “applicable” period. The trial court’s signing the order denying the
motion after it was already denied by operation of law is legally ofno effect because the motion
to dismiss was already denied.
We are to construe chapter 27 “liberally to effectuate its purpose and intent fully.” CIV.
PRAC. § 27.01 l(b). The chapter’s purpose is
to encourage and safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to the maximum
extent permitted by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.
Id. § 27.002. The structure of the statute indicates a legislative intent for an expedited resolution
ofa defendant’s assertion that a frivolous lawsuit has been filed against him in retaliation for the
exercise of his constitutional right of free speech, right to petition, or right of associations; The
statute requires the motion to dismiss be filed within sixty days of the defendant being served
with the “legal action,” id. § 27.003(b); the hearing must occur within thirty days of the filing of
4 The Fort Worth Court of Appeals has determined that chapter 27 does not provide for an interlocutory appeal
from a timely ruling denying a motion to dismiss. See Jennings v. WallBuilder Presentations, Inc, 378 S.W.3d 5l9,
524—»25 (Tex. App.gFort Worth 2012, pet. filed). Because we conclude in this opinion that the trial court did not
timely rule on appellant’s motion to dismiss, we express no opinion here on the issue addressed in Jennings.
5 See also House Comm. On Judiciary & Civil Jurisprudence, Bill Analysis, Tex. HB. 2973, 82nd Leg, RS.
(2011) (“C.S.H.B. 2973 seeks to encourage greater public participation of Texas citizens through safeguarding the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government by
providing/or an expedited motion to dismiss frivolous lawsuits aimed at retaliating against someone who exercises
the person’s right of association, free speech, or right of petition.” (Emphasis added.)).
the motion to dismiss unless docket conditions require a later setting, id. § 27.004; the trial court
must rule on the motion to dismiss within thirty days of the hearing or the motion is denied by
operation of law, id. §§ 27.005(a), .008(a‘); and the court of appeals must expedite the appeal, id.
§ 27.008(b). Permitting a defendant to appeal more than sixty days after the motion to dismiss
has been denied by operation of law by obtaining a signed order from the trial court denying the
motion to dismiss would defeat the legislature’s public policy objective.
Appellant failed to timely perfect his appeal within sixty days after the motion to dismiss
was denied by operation of law. Accordingly, we lack jurisdiction over the appeal. We sustain
appellee’s first cross—point, and we do not address appellant’s issue.
We dismiss the appeal for want ofjurisdiction.
LANA MYERS
JUSTICE
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JUDGMENT
Ravinder K. Jain, Appellant On Appeal from the 429th Judicial District
Court, Collin County, Texas
No. ()5-12-00677—CV V. Trial Court Cause No. 429-05053—2011.
Opinion delivered by Justice Myers.
Cambridge Petroleum Group, inc, Appellee Justices Moseley and Fillmore participating.
We VACATE this Court’sjudgment of February 7, 2013. The following is now the
judgment of the Court.
In accordance with this Court’s opinion of this date, this appeal is DISMISSED for want
ofjurisdiction.
It is ORDERED that appellee Cambridge Petroleum Group, Inc. recover its costs of this
appeal from appellant Ravinder K. Jain.
Judgment entered this 1“ day of March, 2013.
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LANA MYERS
JUSTICE