the Fell Clutch, LLC v. Cherokee Black Entertainment Inc., and Jimmie D. Wheeler ( 2020 )

Motion Granted; Appeal Dismissed, and Memorandum Opinion filed January
23, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00577-CV
THE FELL CLUTCH, LLC, Appellant
V.
CHEROKEE BLACK ENTERTAINMENT INC., AND JIMMIE D.
WHEELER, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2017-81958
MEMORANDUM OPINION
This court informed the parties the record contains no appealable order and
requested a response showing meritorious grounds for continuing the appeal.
Appellant filed a response and appellees subsequently moved to dismiss the appeal
for lack of jurisdiction. For the reasons stated below, we grant appellees’ motion
and dismiss the appeal.
The underlying suit in this appeal was filed by Savir Productions, LLC,
Savir’s Pizza Joint Movie, LLC , and The Fell Clutch, LLC (Fell Clutch), against
Cherokee Black Entertainment, Inc. and Jimmie D. Wheeler for various claims.
Savir Productions and Savir Pizza, in separate motions, nonsuited all claims
against all defendants. Appellees counterclaimed against the only remaining
plaintiff, Fell Clutch, for breach of contract or unjust enrichment and defamation.
Appellant eventually filed a motion to dismiss the defamation claim under
the Texas Citizens Participation Act (TCPA) on May 1, 2019. A hearing was held
on May 20, 2019, and an order was signed the same day. In the order the trial court
(1) granted the motion to dismiss; (2) ordered appellees to pay appellant $2,000 in
attorney’s fees; and (3) denied appellant’s request for sanctions.
On May 21, 2019, a second order was signed that (1) granted the motion to
dismiss; (2) ordered appellees to pay appellant $4,125 in attorney’s fees; and
$76.00 for expenses; and (3) granted appellant’s request for sanctions against
appellees of $50,000.
On May 22, 2019, the trial court signed a third order which states:
The court’s May 21, 2019 ORDER in this case is VACATED. The
court’s ORDER OF May 21, 2019 remains. It is so ORDERED.
Appellant filed a motion to clarify on June 14, 2019. On June 20, 2019, the
trial court signed a fourth order, stating:
On May 22, 2019, the court signed an ORDER attempting to
vacate an ORDER that was inadvertently signed. Unfortunately, the
May 22, 2019 ORDER had a clerical error. Therefore, the court
hereby VACATES its ORDER of May 22, 2019 and issues this
ORDER in its stead. Hopefully now properly correcting the clerical
error:
The court’s May 21, 2019 ORDER in this case is VACATED.
The court’s ORDER of May 20, 2019 remains awarding attorney’s
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fees of $2,000, denying additional sums for sanction and ordering the
parties to mediate with Brian Coleman. The payment of attorney’s
fees of $2,000 is sufficient to properly sanction Defendant. It is so
ORDERED.
Appellant filed a notice of appeal on July 20, 2019.
Under the TCPA, a defendant may file a motion to dismiss claims based on
the defendant’s exercise of the right of free speech. Tex. Civ. Prac. & Rem. Code §
27.003. The trial court must rule on a TCPA motion to dismiss within 30 days of
the hearing on the motion. Tex. Civ. Prac. & Rem. Code § 27.005(a). If the court
does not rule within that time, the motion is denied by operation of law. Tex. Civ.
Prac. & Rem. Code § 27.008(a). Once the motion is denied by operation of law,
“the moving party may appeal.” Id.; see Tex. Civ. Prac. & Rem. Code §
51.014(a)(12) (authorizing appeal from interlocutory order denying motion to
dismiss filed under section 27.003). Section 27.008(b) of the Texas Civil Practice
and Remedies Code requires an appellate court to expedite an appeal from an order
on a motion to dismiss under section 27.003 or trial court’s failure to rule under
section 27.005. Tex. Civ. Prac. & Rem. Code § 27.008(b). Because such an appeal
is an accelerated appeal of an interlocutory order, a notice of appeal must be filed
within 20 days of the date the motion is either ruled upon or denied by operation of
law. See Tex. R. App. P. 28.1 (appeals from interlocutory orders are accelerated
appeals); 26.1(b) (in accelerated appeal, notice of appeal must be filed within 20
days of judgment or order).
The trial court’s fourth order of June 20, 2019, was timely. The hearing was
held on May 20, 2019. The thirtieth day from that day was June 19, 2019, a state
and county legal holiday which is not included in the computation of the deadline
to rule on a TCPA motion to dismiss. See Tex. R. Civ. P. 4. Pursuant to the fourth
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order, the second order of May 21, 2019, was vacated and the first order of May
20, 2019, which granted the TCPA motion to dismiss, was reinstated.
This court lacks jurisdiction to hear an interlocutory appeal of an order
granting a motion to dismiss under section 27.003 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. Rem. Code § 51.014(a)(12); Seekra Realty,
LLC v. Garner Paving & Constr., Ltd., No. 14-18-00984-CV, 2019 WL 613530, at
*1 (Tex. App.—Houston [14th Dist.] Feb. 14, 2019, no pet.) (mem. op.); Fleming
& Assocs. v. Kirklin, 479 S.W.3d 458, 460–61 (Tex. App.—Houston [14th Dist.]
2015, pet. denied). Accordingly, we dismiss the appeal.1
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
1
Appellant’s motion for extension of time to file its brief and appellees’ objection to that
motion are therefore moot.
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