                            NUMBER 13-12-00352-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

SAN JACINTO TITLE SERVICES
OF CORPUS CHRISTI, LLC., SAN
JACINTOTITLE SERVICES OF TEXAS,
LLC., ANDMARK SCOTT,                                                     Appellants,

                                          v.

KINGSLEY PROPERTIES, LP.,                                                  Appellee.


               On appeal from the County Court at Law No. 2
                        of Nueces County, Texas.


                                     OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
                     Opinion by Justice Longoria

      Appellants, San Jacinto Title Services of Texas (“SJT”), San Jacinto Title

Services of Corpus Christi (“SJCC”) (collectively, “San Jacinto”), and Mark Scott, filed

an interlocutory appeal of the trial court’s order denying their motion to dismiss under
the Texas Citizens Participation Act (“TCPA”), the Texas anti-SLAPP statute.1 See Act

of May 18, 2011, 82nd Leg. R.S., ch. 341, § 2, 2011 Tex. Sess. Law Serv. 341 (West)

(codified at TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West Supp. 2011)).2

For the reasons stated below, we agree with appellants that we have jurisdiction over

this appeal, but we conclude that the TCPA does not apply to the lawsuit appellee,

Kingsley Properties, filed against appellants. Accordingly, we affirm the trial court’s

denial of appellants’ motion to dismiss.

                                                 I. BACKGROUND
        Appellee owns land (“the Property”) in Corpus Christi, Texas on which a golf

course and country club facilities are located. San Jacinto acted as Kingsley’s escrow

agent during appellee’s purchase of the Property in 2005. Scott, who serves as Vice

President of San Jacinto, was apparently briefly present at the closing but not involved

in the actual proceedings. In 2009, Jim Robichaux, a homeowner in the King’s Crossing

Subdivision adjacent to the Property, sent an open letter to the Corpus Christi City

Council asserting that appellee intended to close the golf course and club, re-plat the

Property and develop it commercially.3 Robichaux asserted that appellee’s alleged

plans would substantially decrease the value of his home, stated his strong opposition

        1
          A SLAPP suit can be defined as a lawsuit that is “without substantial merit that stop[s] citizens
from exercising their political rights or to punish them for having done so.” GEORGE W. PRING & PENELOPE
CANAN, “Strategic Lawsuits Against Public Participation” (“SLAPPS”): An Introduction for Bench, Bar and
Bystanders, 12 BRIDGEPORT L. REV. 937, 942 (1992) (internal quotations omitted); see generally SHANNON
HARTZLER, Note, Protecting Informed Public Participation: Anti-SLAAP Law and the Media Defendant, 41
VAL. U. L. REV. 1235 (collecting and analyzing state anti-SLAAP laws). As discussed below, we take no
position on whether the underlying lawsuit in this case constitutes a SLAPP suit.
        2
          All statutory references in opinion are to Chapter 27 of the Texas Civil Practice and Remedies
Code unless otherwise noted.
        3
          Robichaux’s statements apparently arose from pleadings that appellee filed in a separate,
unrelated lawsuit where Robichaux stated that appellee asserted that it had the right to develop the
Property without restriction. Appellee’s pleadings in that lawsuit, if any, are not part of the record in this
appeal.


                                                      2
to appellee’s plans, and asked to know the Council’s opinion on the matter. Scott, who

was a (ultimately successful) candidate for the city council at the time, responded with

what the parties refer to as the “Hobbs Letter,” a mass mailing to all the residents of the

subdivision. In the Hobbs Letter, which was sent on Scott’s campaign stationary, Scott

stated his opposition to the plan and invited people to contact him regarding that issue

or any other. Scott provided his contact information, including his office phone number

at San Jacinto.

        In February 2010, appellee filed suit for business disparagement, breach of

fiduciary duty, and tortuous interference with prospective relations against Scott and

San Jacinto, and for breach of contract against San Jacinto alone.4 Appellee further

alleges that Scott acted in the course and scope of his employment with San Jacinto

when he sent the Hobbs Letter and that San Jacinto is therefore vicariously liable for

Scott’s actions. All of appellee’s claims arise from the Hobbs Letter, and the effect it

allegedly had on appellee’s negotiations with Philip Hurst, a Corpus Christi

businessman who had been negotiating with appellee to purchase the Property at the

time. Hurst testified in an affidavit that after seeing the Hobbs Letter, he was no longer

willing to pay appellee’s asking price of $5,000,000. Negotiations between appellee and

Hurst eventually broke down completely.

        Appellants filed a motion to dismiss under the TCPA, which requires a trial court

to dismiss a lawsuit that “is based on, relates to, or is in response to” the defendant’s

exercise of any of their constitutional rights of free speech, petition, or association. Id.

§ 27.005(b). The moving party must prove by a preponderance of the evidence that


        4
            Appellee filed three amended petitions that added and non-suited various claims. We take this
list of claims from appellee’s Third Amended Petition, its live petition.

                                                   3
they are being sued on this basis.       Id.   The party bringing the action can prevent

dismissal by showing that they have established “by clear and specific evidence a prima

facie case for each essential element of the claim in question.” Id. § 27.005(c). Once a

defendant brings a motion to dismiss under this chapter, all discovery in the lawsuit is

suspended. Id. § 27.003(c).

       In this case, without specifically ruling that the TCPA applied, the trial court

denied appellants’ motion. Appellants filed a request for findings of fact pursuant to

section 27.007(a). The trial court issued findings of fact that appellee’s lawsuit was not

brought to “deter or prevent” either defendant from exercising their constitutional rights,

or for an improper purpose. Appellants subsequently perfected this interlocutory appeal

challenging the trial court’s denial of their motion to dismiss.

                                           II. DISCUSSION

   A. Jurisdiction
       As a threshold matter, appellee argues that we do not have jurisdiction over this

appeal because section 27.005 does not create an interlocutory appeal when the trial

court denies a motion to dismiss by written order. For the reasons stated below, we

conclude that we do possess jurisdiction over this appeal.

       1. Standard of Review
         Statutory construction is a question of law that we review de novo. Railroad

Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619,

624 (Tex. 2011). Our primary object in construing a statute is to give effect to the

legislature’s intent. Id. at 628; Tex. Lottery Comm’n v. First State Bank of DeQueen,

325 S.W.3d 628, 635 (Tex. 2010).          “We rely on the plain meaning of the text as

expressing legislative intent unless a different meaning is supplied by legislative

                                               4
definition or is apparent from the context, or the plain meaning leads to absurd results.”

Tex. Lottery Comm’n, 325 S.W.3d at 635; see City of San Antonio v. City of Boerne,

111 S.W.3d 22, 25 (Tex. 2003). The Texas Supreme Court instructs appellate courts to

read a statute as a whole and give effect to every part. Tex. Citizens, 336 S.W.3d at

628; City of San Antonio, 111 S.W.3d at 25. In interpreting a statute, we “consider the

objective the legislature sought to achieve through the statute as well as the

consequences of a particular construction.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352

(Tex. 2009).

       2. Applicable Law
       Appellate courts possess jurisdiction only over final judgments unless a statute

authorizes an interlocutory appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447–48

(Tex. 2011). “Jurisdiction     over   an    interlocutory   order   when    not   expressly

authorized . . . by statute is jurisdictional fundamental error.” N.Y. Underwriters Ins. Co.

v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). We normally strictly construe statutes

that grant interlocutory appeals, CMH Homes, 340 S.W.3d at 447, but the legislature

instructed us in this case to liberally construe the TCPA in order to “effectuate its

purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE § 27.011(b).

       3. Section 27.008 of the TCPA
       Section 27.008 of the TCPA is titled “Appeal,” and contains the TCPA’s only

language regarding appeals. It reads in whole:

               (a) If a court does not rule on a motion to dismiss under Section
               27.003 in the time prescribed by Section 27.005, the motion is
               considered to have been denied by operation of law and the
               moving party may appeal.

               (b) An appellate court shall expedite an appeal or other writ,
               whether interlocutory or not, from a trial court order on a motion to

                                             5
                 dismiss a legal action under Section 27.003 or from a trial court's
                 failure to rule on that motion in the time prescribed by Section
                 27.005.

                 (c) An appeal or other writ under this section must 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.

       § 27.008.

       4. Analysis
       Appellee argues that we lack jurisdiction because the plain language of section

27.008(a) only creates an interlocutory appeal when the trial court constructively denies

a motion to dismiss after sixty days, and the plain language of subsections (b) and (c)

do not expressly create an interlocutory appeal when the trial court denies the motion by

written order.

       Only two other courts of appeals have considered jurisdiction of an appeal under

Chapter 27 in these circumstances, and they have come to divergent conclusions. In

Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519, 524–29 (Tex. App.—Fort

Worth 2012, pet. filed), the court of appeals concluded that it did not possess jurisdiction

for the same reasons argued by appellee in this case. See also Lipsky v. Range Prod.

Co., No. 02-12-0098-CV, 2012 WL 3600014, at *1 (Tex. App.—Fort Worth Aug. 23,

2012, pet. filed) (mem. op.). The Fourteenth Court of Appeals, in contrast, recently

issued an opinion in support of an order that denied a motion to dismiss an appeal on

these same jurisdictional grounds for reasons we will discuss below. Direct Commercial

Funding, Inc., v. Beacon Hill Estates, LLC, No. 14-12-896-CV, 2013 WL 407029, at *3–

4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, order).

       Appellee argues, as the Jennings court reasoned, that the legislature uses

specific language to create an interlocutory appeal. See, e.g., TEX. CIV. PRAC. & REM.

                                                6
CODE ANN. § 51.014(a)(1) (West Supp. 2011) (providing that “a person may appeal from

an interlocutory order of a . . . court” and listing a series of appealable interlocutory

orders.); id. § 150.002(f) (West 2011) (“An order granting or denying a motion for

dismissal [based on this section] is immediately appealable as an interlocutory order.”);

id. § 15.003(b) (West Supp. 2011) (“[A]n interlocutory appeal may be taken of a trial

court’s determination . . . .”). Section 27.008(a) contains similar language that creates

an appeal when the trial court does not timely rule on the motion, but the legislature

does not use the same language in subsections (b) or (c). Appellee reads subsection

(b) as ordering appellate courts to expedite appeals brought under section 27.008 and

subsection (c) as providing the time frame to file an appeal.

       Appellee argues that interpreting section 27.008 in this way does not reach an

absurd result and is actually consistent with the logic of the TCPA. Appellee argues that

the purpose of the TCPA is to provide a defendant who claims he is being sued for

exercising his constitutional rights “one opportunity to have the issue heard and actually

decided.” Appellee interprets subsection (a) as furthering that purpose by providing that

appellate courts will consider and rule on a defendant’s claims if the trial court fails to do

so within the time periods laid out by the TCPA.

       We decline to adopt appellee’s interpretation of section 27.008 because to do so

would render portions of section 27.008(b) and (c) meaningless. Tex. Citizens, 336

S.W.3d at 628; see also Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010)

(observing that courts “avoid treating statutory language as surplusage where

possible”). Subsection (b) provides that “[a]n appellate court shall expedite an appeal or

other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a



                                              7
legal action under Section 27.003 or from a trial court's failure to rule on that motion in

the time prescribed by Section 27.005.” TEX. CIV. PRAC. & REM. CODE § 27.008(b)

(emphasis added). The plain language of subsection (b) indicates that the legislature

contemplated two situations: (1) an appeal from a trial court’s order on a motion to

dismiss brought under chapter 27 and (2) an appeal from the trial court’s failure to issue

an order on the motion to dismiss. Additionally, subsection (c) provides that an appeal

or other writ must be filed with the court of appeals sixty days “after the trial court’s

order is signed” or the time for the court to rule expires. To give section 27.008 the

construction appellee requests would render the language in subsections (b) and (c)

meaningless. Our opinion comports with the holding of the Fourteenth Court of Appeals

that “if no signed order can be the subject of an interlocutory appeal,” then the language

in subsections (b) and (c) is superfluous. Direct Commercial Funding, 2013 WL 407029,

at *3–4.

       We are mindful that courts “are not responsible for omissions in legislation” and

that even if it appears that the legislature did not accomplish something in a statute that

we think it intended, “courts are not empowered to ‘fix’ the mistake by disregarding

direct and clear statutory language that does not create an absurdity.” Tex. Lottery

Comm’n, 325 S.W.3d at 638. However, after reading the statute as a whole in light of

the legislature’s stated purpose for enacting it, we conclude that adopting appellee’s

proposed interpretation of section 27.008 leads to an absurd result. The legislature’s

stated purpose in enacting the TCPA was to “encourage and safeguard” the exercise of

First Amendment rights by Texans “to the maximum extent permitted by law” while also

protecting the rights of persons to file lawsuits for “demonstrable injury.” § 27.002. It is



                                             8
evident that the legislature intended to effectuate the purpose of the TCPA by ensuring

that courts will dismiss SLAAP suits quickly and without the need for prolonged and

costly proceedings.5 The legislature chose to title section 27.008 “appeal,” indicating

that they intended to provide for quick appellate review on trial court rulings on motions

to dismiss brought under this chapter. Under appellee’s reading of section 27.008,

whether a defendant receives appellate relief under the TCPA does not depend on

whether they suffered the harm the TCPA was designed to prevent, but on the trial

court’s attentiveness to the motion to dismiss. A defendant whose motion was denied

by written order would have no choice but to go to trial and receive a judgment before

raising a First Amendment defense on appeal, but a second defendant sued under

identical circumstances could immediately take an interlocutory appeal if the trial court

failed to timely rule on his motion. The first defendant would effectively have no remedy

under the TCPA even if the suit against him was the quintessential SLAPP suit.

Appellee’s interpretation creates an absurdity by drawing an artificial distinction within

the class of defendants the TCPA was designed to protect regardless of whether they

suffered the harm for which the legislature addressed by enacting the TCPA. We see

nothing in the statute or its history that indicates the legislature intended to actually draw

this distinction when granting appellate rights in section 27.008.6


        5
          Almost all motions to dismiss under this chapter will be heard by the trial court within 120 days
of the date the defendant is first served with the lawsuit. See Jennings, 378 S.W.3d at 526 n.6.
        6
           Additionally, we presume that the legislature enacted a statute “with complete knowledge of the
existing law and with reference to it.” Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). In
Texas law, an “appeal” refers to “a review by a superior court of an inferior court’s decision.” Bigby v.
State, 892 S.W.2d 864, 871 (Tex. Crim. App. 1994); see also Waters-Pierce Oil Co. v. State, 106 S.W.
326, 331 (Tex. 1907) (“appellate jurisdiction . . . is defined to be the power and authority conferred upon a
superior court to rehear and determine causes which have been tried in inferior courts”). The procedure
appellee discerns in section 27.008 is not an “appeal” in the sense that it is used in Texas law, but is
essentially a grant of original jurisdiction to the courts of appeals to rule on a Chapter 27 motion to

                                                     9
         Normally, statutes conferring interlocutory appeals are strictly construed, CMH

Homes, 304 S.W.3d at 447, but the legislature expressly instructed us to liberally

construe the TCPA in order to “effectuate its purpose and intent fully.” § 27.011(b).7

We conclude that our construction furthers the legislature’s intent in enacting the statute

by allowing for quick review of all timely motions to dismiss under this chapter that are

denied by the trial court. Interpreting section 27.008 in this way also gives full effect to

the language the legislature employed in 27.008(b) and (c). See Direct Commercial

Funding, 2013 WL 407029, at *3–4. In sum, we conclude that section 27.008 permits

an interlocutory appeal when the trial court denies the defendant’s motion by written

order.

   B. Application of the Statute
         Appellee argues that even if we have jurisdiction over this appeal, the statute

does not apply to appellee’s suit because appellee filed before the statute’s effective

date. Appellee filed suit in February 2010 and the TCPA went into effect on June 17,

2011. Act of May 18, 2011, 82nd Leg. R.S., ch. 341, § 3, 2011 Tex. Sess. Law Serv.

341 (West).          Appellants argue that the TCPA applies to this suit because the Act

broadly defines the “legal actions” subject to dismissal under the TCPA as “more than

just [a] lawsuit.” Therefore, appellant argues that the TCPA applied from the date of

appellee’s first amended petition, which added a cause of action for business

disparagement. Alternatively, San Jacinto of Texas (“SJT”) argues alone that the TCPA



dismiss if the trial court did not make a timely motion. Although the legislature may confer original
jurisdiction on the courts of appeals by statute, the fact remains that they chose to enact an “appeal”
section of the TCPA, and we see no evidence in the statute that they intended for that word to bear a
different meaning than it normally bears in Texas law.
         7
             The Jennings court did not address the legislature’s direction to liberally construe the TCPA.

                                                       10
applies to the suit against it because it was not added as a party until after the TCPA’s

effective date.

              1. Applicable Law
       In applying a new statute, we begin with the presumption that it is applies

prospectively unless it is expressly made retroactive. Subaru of Am., Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); TEX. GOV’T CODE ANN.

§ 311.022 (West 2005). As always, our primary goal in interpreting statutory language

is to give effect to the legislature’s intent. Tex. Citizens, 336 S.W.3d at 624; Tex. Lottery

Comm’n, 325 S.W.3d at 635.

              2. Analysis
       The TCPA defines a “legal action” as a “lawsuit, cause of action, petition,

complaint, cross-claim or counterclaim or any other judicial pleading or filing that

requests legal or equitable relief.” § 27.001(6). Appellants argue that this expansive

definition refers to “more than just [a] lawsuit,” so that the TCPA applies whenever a

pleading in any case makes a claim that could be construed as a SLAPP claim, even if

the plaintiff commenced the lawsuit before the effective date of the TCPA. However,

appellant does not address language the legislature enacted as section 3 of the TCPA:

        “[t]he change in law made by this Act applies only to a legal action filed on
       or after the effective date of this Act. A legal action filed before the
       effective date of this Act is governed by the law immediately before that
       date, and that law is continued in effect for that purpose.”

Act of May 18, 2011, 82nd Leg. R.S., ch. 341, § 3, 2011 Tex. Sess. Law. Serv 341

(West).

       The legislature has made it quite clear with this language that the TCPA applies

only to a “legal action,” of any sort, that is filed after the TCPA’s effective date. See In


                                             11
re Omni Hotels Mgmt. Corp., 159 S.W.3d 627, 629 n.4 (Tex. 2005) (noting that almost

identical language in an amendment to the probate code meant that it did not apply to a

case filed before the amendment’s effective date); Tex. Dept. of Protective and

Regulatory Serv. v. Sherry, 46 S.W.3d 857, 860 n.1 (Tex. 2001) (same, for an

amendment to the family code). Far from overcoming the presumption that a new

statute applies prospectively, we interpret this language as legislative confirmation of

that presumption for the TCPA. See City of Rockwall v. Hughes, 246 S.W.3d 621, 626

(Tex. 2008) (“When a statute’s language is clear and unambiguous, it is inappropriate to

resort to the rules of construction or extrinsic aids to construe the language.”).

       SJT argues that its motion was timely because SJT was not sued until after the

TCPA became effective. SJT reasons that SJCC had become a “nonexistent entity” at

the time appellee filed suit, so appellee did not actually commence a “legal action”

against SJT within the meaning of the TCPA until the First Amended Petition, which was

filed after the effective date. However, Texas law provides that when one corporation

merges into another, it no longer has a separate existence from the surviving entity.

TEX. BUS. ORG. CODE ANN. § 10.008(a)(1) (West Supp. 2011). When SJCC appeared

by filing an answer and responding to appellee’s requests for discovery, it did not exist

as an entity separate from SJT, and this suit was pending against SJT at the time.

Lawyers for SJT and Mark Scott eventually informed appellee of the merger in their

responses to discovery, and appellee accordingly amended its petition to name SJT as

the successor in interest to SJCC. Because suit was pending against SJT from the time

of appellee’s Original Petition, we conclude that the TCPA is inapplicable to appellee’s




                                             12
legal action against SJT for the same reasons that we discussed above: appellee filed

suit before the TCPA’s effective date

      In sum, we conclude that the TCPA does not apply to appellee’s suit against any

of the named appellants. We overrule appellants’ remaining issues on appeal, all of

which related to the TCPA.

                                        III. CONCLUSION
      We affirm the trial court’s denial of appellants’ motion to dismiss.




                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice

Delivered and filed the
25th day of April, 2013.




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