Humberto Leniek v. Evolution Well Services, LLC, and Evolution Well Services Operating, LLC

Motion to Dismiss Granted; Motion to Abate Denied; Appeal Dismissed and
Memorandum Opinion filed February 5, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00954-CV
HUMBERTO LENIEK, Appellant
V.
EVOLUTION WELL SERVICES, LLC, AND EVOLUTION WELL
SERVICES OPERATING, LLC, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2018-33380
MEMORANDUM OPINION
This is an appeal from an order signed October 8, 2018. On December 17,
2018 appellees filed a motion to dismiss the appeal. See Tex. R. App. P. 42.3.
Because this court lacks jurisdiction over the appeal, the motion is granted, and the
appeal is dismissed.
In the suit underlying this appeal, appellees prevailed on their motion to
dismiss appellant’s claims under section 27.003 of the Texas Citizens Participation
Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.003. Appellees’ motion for
attorney’s fees pursuant to section 27.009 of the TCPA was pending in the trial
court at the time this appeal was filed. Appellees contend the outstanding claim for
attorney’s fees renders the order interlocutory.
Appellant argues the order is final because the trial court did not make a
ruling on attorney’s fees within thirty days of the hearing on the motion to dismiss
and, therefore, the motion for attorney’s fees was denied by operation of law.
Alternatively, appellant requests we abate the appeal until the trial court rules on
attorney’s fees.
I. Background
Appellees’ TCPA motion to dismiss requested that, “following dismissal,
the Court schedule a hearing to award them court costs and reasonable attorney’s
fees, pursuant to Texas Civil Practices and Remedies Code § 27.009(a)(1).” The
trial court’s order granting the motion to dismiss stated, “[h]aving considered the
motion to dismiss, the court is of the opinion that the motion should be granted in
all of its particulars. It is therefore ORDERED that the Motion to Dismiss is
GRANTED.” Eight days after the motion was granted, appellant filed his notice of
appeal. Three days later, appellees filed a notice of submission setting a hearing on
their motion for attorney’s fees. The trial court has not yet ruled on appellees’
request for attorney’s fees.
II. Law and Analysis
Generally, appeals may be taken only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of
all pending parties and claims, the orders remain interlocutory and unappealable
until final judgment is rendered unless a statutory exception applies. Bally Total
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Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). We strictly construe
statutes authorizing interlocutory appeals. Young v. Villegas, 231 S.W.3d 1, 5 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied).
The Civil Practice and Remedies Code provides for an interlocutory appeal
of an order that “denies a motion to dismiss filed under section 27.003” of the
TCPA. See Tex. Civ. Prac. Rem. Code § 51.014(a)(12). No statutory authority
exists, however, for an interlocutory appeal from the grant of a motion to dismiss
under the TCPA. See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—
Amarillo 2016, no pet.) (dismissing appeal from granting of TCPA motion to
dismiss for want of jurisdiction); Fleming & Assocs. v. Kirklin, 479 S.W.3d 458,
460–61 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding interlocutory
order granting TCPA motion to dismiss was not appealable).
Appellant contends the appeal is not interlocutory because the motion for
attorney’s fees was denied by operation of law. Appellant argues that to the extent
the trial court’s order did not grant relief within thirty days of the hearing on the
TCPA motion to dismiss, any undisposed requests for relief were denied by
operation of law. Appellant’s contention is based upon section 27.008, which
provides, “[i]f a court does not rule on a motion to dismiss under Section 27.003 in
the time prescribed by Section 27.005 [30 days], the motion is considered to have
been denied by operation of law and the moving party may appeal.” Here, the trial
court ruled on the motion to dismiss within thirty days but did not rule on the
motion for attorney’s fees in that time period. Nothing within the TCPA expressly
prohibits the trial court from timely ruling on the request for dismissal and later
resolving issues relating to statutorily required attorney’s fees and sanctions.
DeAngelis v. Protective Parents Coal., 556 S.W.2d 836, 859–60 (Tex. App.—Fort
Worth 2018, no pet.) (holding trial court still had plenary power after granting
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TCPA motion to dismiss). Appellant contends the Texas Supreme Court’s decision
in D Magazine Partners. L.P., v. Rosenthal, supports his contention that attorney’s
fees are deemed denied by operation of law under section 27.008(a) if the trial
court does not award them within 30 days of a hearing on a motion to dismiss
under section 27.003. D Magazine Partners. L.P., v. Rosenthal, 529 S.W.3d 429
(Tex. 2017). The facts in D. Magazine, however, reflect that the trial court denied
the request for attorney’s fees. D. Magazine, 529 S.W.3d at 441.
Moreover, the TCPA’s fee-shifting provision is mandatory. See Tex. Civ.
Prac. & Rem. Code § 27.009(a) (providing, “[i]f the court orders dismissal of a
legal action under this chapter, the court shall award to the moving party: (1) court
costs, reasonable attorney’s fees, and other expenses incurred in defending against
the legal action as justice and equity may require.” (emphasis added)); see Toth v.
Sears Home Improvement Prods., 557 S.W.3d 142, 158–-59 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (stating, “[w]hen an action is properly dismissed under
the TCPA, a trial court must award court costs, reasonable attorney’s fees, and
other expenses incurred in defending against the action as justice and equity may
require”). Thus, the trial court did not have discretion to allow the motion for
attorney’s fees to be overruled by operation of law. See id.
Appellant’s contention that appellees’ motion for attorney’s fees was
overruled by operation of law is without support. The trial court’s order is an
unappealable interlocutory order. Accordingly, we grant appellees’ motion to
dismiss.
III. Appellant’s motion to abate
Appellant requests that we abate the appeal pursuant to Texas Rule of
Appellate Procedure 27.2, if we determine the order is interlocutory. Rule 27.2
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provides, in relevant part, “[t]he appellate court may allow an appealed order that
is not final to be modified so as to be made final and may allow the modified order
and all proceedings relating to it to be included in a supplemental record.” Tex. R.
App. P. 27.2. Appellant contends Lehmann v. Har-Con Corp., supports the use of
rule 27.2 to abate in these circumstances. Lehmann, 39 S.W.3d at 206; However,
appellant misquotes the Lehmann language in his motion. The Lehmann Court
stated “[i]f the appellate court is uncertain about the intent of the order, it can abate
the appeal to permit clarification by the trial court.” Id. (emphasis added). In this
case, the amount of attorney’s fees requested by appellees greatly exceeds the
amount appellant acknowledges would be reasonable. Accordingly, the trial court’s
decision regarding attorney’s fees will amount to be more than a mere clarification.
Trane US, 501 S.W.3d at 787–88 (denying Trane’s request to abate for trial court
to determine amount of attorney’s fees under TCPA claim because it would require
more than ministerial or perfunctory act).
Rule 27.2 is intended to be used to correct or clarify orders of the trial court,
not to allow the trial court to finish disposing of unresolved claims. See Lehmann,
39 S.W.3d at 206 & n.92; Coastal Terminal Operators v. Essex Crane Rental
Corp., 133 S.W.3d 35, 228–39 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Rule 27.2 has also been used when all that is left is a ministerial act of the trial
court to make the judgment final. See Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex.
App.—Houston [1st Dist.] 1999, no pet.) (abating appeal when trial court needed
only to act on previously filed notice of nonsuit). Accordingly, appellant’s motion
to abate this appeal is denied.
IV. Conclusion
For the reasons stated above, appellees’ motion to dismiss is granted, and
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appellant’s motion to abate is denied. This appeal is dismissed.
PER CURIAM
Panel consists of Justices Wise, Zimmerer, and Spain.
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