Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq.

Case

Seekra Realty, LLC v. Garner Paving & Construction, Ltd., 14-18-00984-CV, (Tex. App. – Houston [14th] February 14, 2019) (no pet. h.).

Denial of Attorney’s Fees in a Texas anti-SLAPP, TCPA, Case – Interlocutory Appeal

In this case, the trial court granted the movant’s motion to dismiss under the Texas anti-SLAPP, TCPA, law. However, the trial court did not award mandatory attorneys fees. The movement then filed an interlocutory appeal over the issue of attorney’s fees.

The appeals court ruled that it did not have jurisdiction because there is no interlocutory appeal from the granting of a motion to dismiss under the TCPA only an interlocutory appeal if the motion is denied. Since the trial court did grant the motion to dismiss, the fact that the trial court refused to award attorneys fees could only be raised in a regular appeal. Since there are still issues involved in the case, the case was not final and so the appeal was dismissed for lack of jurisdiction.

Denial of Attorney’s Fees in a Texas anti-SLAPP, TCPA, case.

Please note that the Gaskamp case cited below has been changed in an en banc reconsideration. Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018), withdrawn and superseded by Gaskamp, 596 S.W.3d at 457.

Appellant cites a case in his appellate brief out of the First Court of Appeals in his “statement of jurisdiction” for the contention that an appellate court may review the denial of an attorney’s fees and sanctions award on interlocutory appeal. See Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810, at *13 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018, no pet.). In Gaskamp, the trial court denied the TCPA motion to dismiss. Id. Therefore, appellate jurisdiction was warranted under section 51.014(a)(12) of the Civil Practice and Remedy Code. See Tex. Civ. Prac. Rem. Code § 51.014(a)(12). In appellant’s case, the trial court granted his TCPA motion to dismiss, but denied his request for attorney’s fees. Gaskamp is not instructive on the jurisdictional issue at hand.

What Could Have Been Done

Since there is no interlocutory appeal from the granting of a motion to dismiss under the Texas anti-SLAPP, TCPA, law you cannot file an interlocutory appeal if the trial court denies a party mandatory attorney’s fees. You can and should file a regular appeal when the case has a final judgment.