Chang Ho Song v. Hoon Ku Lee, Yung Sang Lee AKA Raymond Lee, and Hung Ju Park

NUMBER 13-18-00267-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHANG HO SONG, Appellant,
v.
HOON KU LEE, YUNG SANG LEE AKA
RAYMOND LEE, AND HUNG JU PARK, Appellees.
On appeal from the 370th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Chang Ho Song appeals from an order granting a motion to dismiss filed
by appellees Hoon Ku Lee, Yung Sang Lee aka Raymond Lee, 1 and Hung Ju Park
(collectively Lee) pursuant to the Texas Citizens Participation Act (TCPA or anti-SLAPP
1 We note that Yung Sang Lee is also referred to as Young Sang Lee in the trial court documents.
statute). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003 (West, Westlaw through 2017
1st C.S.). We dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a),
43.2(f).
I. BACKGROUND
On January 19, 2018, Song filed suit alleging that Lee had engaged in conduct
constituting defamation and libel that caused him damage. Song’s second amended
petition asserted claims for defamation, libel/slander per se, common law defamation per
se, and negligence. Song also alleged intentional infliction of emotional distress, tortious
interference with contract/employment, and invasion of privacy/intrusion of seclusion.
Lee filed a motion requesting the dismissal of Song’s defamation and libel claims
under the TCPA because Song had not presented clear and specific evidence to establish
a prima facie case for each element of his claims. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(c) (West, Westlaw through 2017 1st C.S.). Lee also claimed that he had
established by a preponderance of the evidence each essential element of his valid
defense. See id. § 27.005(d). Song filed a partial response with objections, a
supplemental response, and a second supplemental response. On May 7, 2018, the trial
court granted Lee’s motion to dismiss and signed an order dismissing Song’s defamation
and libel claims with prejudice.2 The order contained no language finally disposing of all
claims and parties.
2 The trial court’s order set out that it heard Lee’s motion to dismiss pursuant to chapter 27 and
rule 91a. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003 (West, Westlaw through 2017 1st C.S.); TEX.
R. CIV. P. 91a. However, Lee filed no rule 91a motion upon which the trial court could have ruled. See
TEX. R. CIV. P. 91a.
2
Song filed his notice of appeal “from an Order Granting Dismissal pursuant to
Texas Citizens Participation Act (TCPA).” In his notice, Song set out that he filed this
“accelerated appeal from an order of partial dismissal dated May 7, 2018.” He also
stated that his accelerated appeal did “not concern a parental termination or child
protection case, as defined in [r]ule 28.4.” See TEX. R. APP. P. 28.4. Song did not assert
that it was an agreed interlocutory appeal or a permissive appeal. See id. R. 28.2, 28.3.
And the notice provided no statutory authority for an accelerated interlocutory appeal from
an order granting a TCPA motion. Cf. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003,
27.008 (West, Westlaw through 2017 1st C.S.).
After Song filed his appellate brief with this Court, Lee filed a motion to dismiss the
interlocutory appeal for lack of jurisdiction. Song responded to Lee’s motion. He also
filed (1) a motion to accept the appeal, and (2) an alternative motion to accept it as an
original proceeding or to give him leave to file it as such.
II. JURISDICTION
A. Applicable Law
Generally, appellate courts have jurisdiction only over appeals from final
judgments and orders. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
An order or judgment is not final for purposes of appeal unless it actually disposes of
every pending claim and party or unless it clearly and unequivocally states that it finally
disposes of all claims and all parties. Id. at 205; see Crites v. Collins, 284 S.W.3d 839,
841 (Tex. 2009) (per curiam). A judicial decree that actually disposes of all parties and
all claims is a final judgment, regardless of the language used; however, a decree that
fails to dispose of all claims can be final only if the intent to finally dispose of the case is
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unequivocally expressed in the decree itself. See In re Burlington Coat Factory
Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding).
Whether an order is final must be determined from its language and the record in the
case. See Lehmann, 39 S.W.3d at 205.
This Court has jurisdiction to review interlocutory orders only when explicitly
authorized by statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014 (West,
Westlaw through 2017 1st C.S.). Because statutes permitting accelerated appeals from
interlocutory orders present a narrow exception to the general rule that interlocutory
orders are not immediately appealable, they are strictly applied. CMH Homes v. Perez,
340 S.W.3d 444, 447 (Tex. 2011). Chapter 51 of the civil practice and remedies code
provides such an exception for an interlocutory order that “denies a motion to dismiss
filed under Section 27.003 [of the TCPA].” Id. § 51.014(a)(12) (emphasis added); see id.
§ 27.003.
B. Analysis
Based on our review of the order and the record in this case, it is apparent that no
final judgment has been signed by the trial court. See Lehmann, 39 S.W.3d at 195. The
order only dismissed some of Song’s claims against Lee, and it did not include an
unequivocal expression of finality. See id. at 205; see also Crites, 284 S.W.3d at 841;
Burlington, 167 S.W.3d at 830. It is, therefore, not an appealable, final judgment. See
Lehmann, 39 S.W.3d at 195. Claims for intentional infliction of emotional distress,
tortious interference with contract/employment, and invasion of privacy/intrusion of
seclusion currently remain pending in the trial court.
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Moreover, the order granted the dismissal of Song’s claims for defamation and
libel. Such an order is not one that is immediately appealable. See Trane US, Inc. v.
Sublett, 501 S.W.3d 783, 786 (Tex. App.—Amarillo 2016, no pet.); Fleming & Assocs. v.
Kirklin, 479 S.W.3d 458, 460–61 (Tex. App.—Houston [14th Dist.] 2015, pet. denied);
Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 887 (Tex. App.—Houston [1st Dist.]
2015, no pet.); cf. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12).
III. CONCLUSION
Because we do not have jurisdiction to consider the merits of the trial court's
interlocutory decision to grant Lee's motion to dismiss pursuant to the TCPA, we grant
Lee’s motion to dismiss for lack of jurisdiction and dismiss Song's appeal without
prejudice to refiling once the trial court renders a final, appealable judgment.3 In addition,
we deny Song’s motion to accept the appeal. We also deny Song’s alternative motion
to accept his motion as an original proceeding because he has an adequate remedy by
appeal from a final judgment. See In re Odebrecht Construction, Inc., 548 S.W.3d 739,
744 (Tex. App.—Corpus Christi 2018, orig. proceeding) (“Mandamus relief is proper to
correct a clear abuse of discretion when there is no adequate remedy by appeal.”).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 6th
day of December, 2018.
3 Song may file a separate notice of appeal when the trial court signs a final judgment or appealable
order in the case and, upon proper motion, may request that the Clerk of the Court transfer any or all of the
appellate record filed in this case to the new cause number. See TEX. R. APP. P. 26.1 (setting out that the
time to perfect civil appeal is calculated from the date the judgment or order is signed).
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