Opinion issued August 31, 2023

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-21-00679-CV

———————————

ERIN MCCAIN AND MARC A. TOWNLEY, Appellants

V.

LINDA A. LANIER, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2020-59696

MEMORANDUM OPINION

Appellants Erin McCain and Marc A. Townley, acting pro se, filed this 

interlocutory appeal from the trial court’s orders denying their request for an oral

hearing on their Texas Citizens Participation Act (TCPA)1 motion to dismiss a 

1 See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011.
2

motion for sanctions filed by appellee Linda A. Lanier and finding the TCPA motion 

to dismiss moot. In five issues on appeal, appellants argue that the trial court erred 

by: (1) denying their request for a hearing on their TCPA motion; (2) mooting and 

failing to rule on their TCPA motion; (3) failing to dismiss Lanier’s motion for 

sanctions because it infringed on their right to petition; (4) imposing sanctions 

without a hearing in violation of due process; and (5) sustaining Lanier’s special 

exceptions without first providing appellants an opportunity to respond or to cure 

defects.

Because we conclude that we do not have jurisdiction over an appeal from an 

order imposing sanctions or an order granting special exceptions, we dismiss 

appellants’ appeal to the extent they purport to appeal from such orders. We further 

affirm the trial court’s denial of appellants’ TCPA motion to dismiss.

Background

Appellants sued Lanier for actions related to a fence built by Lanier 

purportedly along the property line between her property and the appellants’ 

property. The record reflects that the trial court referred the case, which was set for 

trial on November 15, 2021, to mediation on August 28, 2021. On November 4, 

2021, Lanier moved for a continuance of the trial explaining that the “Court ordered 

the parties to mediation . . . and an agreeable date has not been decided upon between 

the parties and mediator.” The certificate of conference noted that Lanier’s counsel 
3

attempted to confer with appellants (who were also pro se in the trial court) on 

October 27, but the emails were not returned. 

Appellants filed objections to the motion for continuance that same day, 

which contained the following statements:

• “In the Motion, counsel for the Defendant is lying, as per usual in this case, to 

the Court. Counsel did not attempt to confer with the Plaintiffs about the 

Motion for Continuance.”

• “Plaintiff would further show that the Defendant has unilaterally failed to 

cooperate with the mediation process in this case. See attached ‘Exhibit A’, email dialogue. Plaintiffs contacted the appointed mediator Steven C. Howard 

on August 31, 2021 and proposed four dates during the first week of October 

for mediation. Defendant did not respond to any of these distributed e-mails 

or otherwise attempt to arrange time for mediation. Defendant had sufficient 

opportunity over a two month period to participate in mediation of this matter, 

but instead utterly refused to cooperate. Plaintiffs argue that the reason cited 

for continuance is solely Defendant’s own fault.”

• “The appointed mediator, Steven C. Howard, did not ‘select a date, for all 

parties to appear as directed by the Mediator’ as set forth under the Order of 

Referral for Mediation.” 

In response, on November 5, Lanier filed a reply to appellants’ objections and 

moved for sanctions under Texas Rule of Civil Procedure 13.2 She cited the above 

2 Rule 13 provides: 

The signatures of attorneys or parties constitute a certificate by them 

that they have read the pleading, motion, or other paper; that to the 

best of their knowledge, information, and belief formed after 

reasonable inquiry the instrument is not groundless and brought in bad 

faith or groundless and brought for the purpose of harassment.

Attorneys or parties who . . . shall make statements in pleading which 

they know to be groundless and false, for the purpose of securing a 

delay of the trial of the cause, shall be held guilty of a contempt. If a 
4

statements in appellants’ objections and argued that appellants “knew [these 

statements] to be groundless and were made in bad faith.” Lanier argued that these 

statements constituted a violation of Rule 13 and requested that the trial court award 

$750.00 in sanctions. 

On November 11, appellants responded to Lanier’s motion for continuance 

and motion for sanctions. In their response, appellants stated that Lanier’s “motions

for sanctions constitute violations of Chapter 27 of the Texas Civil Practice and 

Remedies Code to the extent that these actions interfere with Plaintiffs’ exercise of 

their Constitutional rights to petition.” Appellants further stated that “[f]or purposes 

of Defendant’s requests for sanctions which are currently pending before the Court, 

Plaintiffs hereby invoke the provisions of § 27.003 of the Texas Civil Practice and 

Remedies Code and move to dismiss.” 

The trial court granted Lanier’s motion for continuance on November 15, 

continuing the case “until the 2 week docket starting April 4, 2022.” The trial court’s 

order further stated: “The parties are hereby reminded that they must comply with 

the Court’s prior mediation Order. Further the Court would like to indicate that 

pleading, motion or other paper is signed in violation of this rule, the 

court, upon motion or upon its own initiative, after notice and hearing, 

shall impose an appropriate sanction available under Rule 215, upon 

the person who signed it, a represented party, or both.”

TEX. R. CIV. P. 13.
5

Plaintiffs’ reference to Texas Civil Practice & Remedies Code Chapter 27, et seq. 

are not persuasive nor legally applicable to Defendant’s Motions.” The trial court 

also granted Lanier’s motion for sanctions and awarded $50 to Lanier as reasonable 

attorney’s fees. The same day, appellants filed a “request for hearing/notice of 

submission” and requested “a hearing on their motion according to § 27.004 of the 

Texas Civil Practice and Remedies Code” and, alternatively, requested that the 

motion “be set on the Court’s submission docket for Monday, November 29, 2021 

at 8:00 a.m.” Appellants filed an amended request for hearing the following day, 

stating that “counsel for Defendant has complained that notice is inadequate under 

subsection (d) of the [CPRC] (requiring 21 days[’] notice).” Accordingly, appellants 

requested that the motion “instead be set on the Court’s submission docket for 

Monday, December 13, 2021 at 8:00 a.m.” 

On November 18, Lanier filed special exceptions to appellants’ amended 

request for hearing, arguing that appellants’ representation that Lanier’s counsel 

complained that notice of the hearing was inadequate was “blatantly false” as 

counsel “asserted no such complaint.” Further, Lanier noted that the trial court had 

already ruled on her motion for sanctions. Lanier requested that the trial court strike 

the amended request for hearing in full and remove the motion to dismiss from the 

trial court’s docket, as the motion was moot and the setting was not necessary. On 

November 29, the trial court sustained Lanier’s special exceptions and found that 
6

appellants’ TCPA motion to dismiss was moot and denied their request for a hearing. 

The trial court further found “no need for further discussion or hearing of the Motion 

to Dismiss or the Special Exceptions based upon this Order and prior Orders of this 

Court.” 

Appellants filed their notice of appeal, purporting to appeal from the trial 

court’s November 15 and 29 orders.

Jurisdiction

In their five issues on appeal, appellants challenge the trial court’s denial of 

their TCPA motion to dismiss and oral hearing on that motion, as well as the trial 

court’s substantive rulings on Lanier’s motion for sanctions and special exceptions. 

Generally, appellate courts have jurisdiction to review a trial court’s rulings 

after entry of a judgment finally disposing of the case. Lehmann v. Har–Con Corp., 

39 S.W.3d 191, 195 (Tex. 2001). Interlocutory appellate jurisdiction is an exception 

to this general rule; it enables appellate courts to review a trial court’s ruling while 

the case is still pending before the trial court. See Tex. A & M Univ. Sys. v. Koseoglu, 

233 S.W.3d 835, 840–41 (Tex. 2007). As an intermediate appellate court, we lack 

jurisdiction to review an interlocutory order unless a statute specifically authorizes 

an exception to the general rule that appeals may only be taken from final judgments. 

Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000). And we 
7

strictly construe statutes authorizing appeals from interlocutory orders. Brand FX, 

LLC v. Rhine, 458 S.W.3d 195, 201 (Tex. App.—Fort Worth 2015, no pet.).

The Civil Practice and Remedies Code provides that a person may appeal from 

an interlocutory order of a district court that denies a motion to dismiss filed under 

Section 27.003. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12). Thus, to the 

extent appellants appeal from the portion of the trial court’s orders denying their 

TCPA motion to dismiss, we have jurisdiction over that portion of this appeal.

But in their fourth and fifth issues, appellants also purport to appeal from and 

challenge the trial court’s substantive orders and rulings on Lanier’s motion for 

sanctions and special exceptions. Neither an order imposing sanctions nor an order 

granting special exceptions is an appealable interlocutory order. See Brenners v. 

Green, No. 06-20-00034-CV, 2020 WL 4044716, at *1 (Tex. App.—Texarkana July 

16, 2020, no pet.) (mem. op.) (“Generally, an order imposing monetary sanctions is 

reviewed on appeal from the final judgment in the case.”); Nguyen v. Aventus Ins. 

Co., No. 14-18-00720-CV, 2018 WL 5261141, at *1 (Tex. App.—Houston [14th 

Dist.] Oct. 23, 2018, no pet.) (mem. op.) (holding that orders sustaining special 

exceptions and granting motion for sanctions are interlocutory in nature and not 

appealable before final judgment); Kamel v. Advocare Int’l, L.P., No. 05-15-01295-

CV, 2016 WL 836809, at *1 (Tex. App.—Dallas Mar. 4, 2016, no pet.) (mem. op.) 

(“A sanctions order that does not dispose of all the parties and issues is neither an 
8

appealable final judgment nor an appealable interlocutory order.”); Matassarin v. 

Odiorne, No. 04-01-00498-CV, 2001 WL 1479258, at *1 (Tex. App.—San Antonio 

Nov. 21, 2001, no pet.) (per curiam) (“An order for monetary sanctions rendered in 

connection with an underlying lawsuit is interlocutory if it does not dispose of all 

parties and claims in the lawsuit.”).

Where only a portion of an order qualifies for interlocutory review, we 

generally cannot exercise jurisdiction over other portions of the order. See 

Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 891 (Tex. App.—Houston [1st 

Dist.] 2015, no pet.) (dismissing appeal from partial grant of TCPA motion to 

dismiss and concluding that “denial of a [TCPA] motion to dismiss does not provide 

an avenue of interlocutory appeal to all other ancillary rulings contained within the 

same written ‘interlocutory order’”); see also Five Star Glob., LLC v. Hulme, No. 

05-20-00940-CV, 2021 WL 3159792, at *2–4 (Tex. App.—Dallas July 26, 2021, no 

pet.) (mem. op.) (considering interlocutory appeal to extent it challenged 

appointment of receiver but dismissing remainder of appeal because appellate court 

lacked jurisdiction to review trial court’s order to extent it appointed person to act 

as auditor or master); Waite v. Waite, 64 S.W.3d 217, 224 n.6 (Tex. App.—Houston 

[14th Dist.] 2001, pet. denied) (“When a litigant challenges both appealable and 

unappealable interlocutory orders, we review the portion of an order which is 
9

appealable and refuse to consider the portion which is not[]appealable.” (internal 

citation and quotation omitted)). 

Because appellants challenge three interlocutory rulings, only one of which is 

appealable by statute, “the proper course is to dismiss that portion which is nonappealable, and to rule on the portion from which an appeal may be taken.” Bobbitt 

v. Cantu, 992 S.W.2d 709, 712 (Tex. App.—Austin 1999, no pet.); see also Five 

Star Glob., 2021 WL 3159792, at *2–4; Schlumberger, 472 S.W.3d at 891; Waite, 

64 S.W.3d at 224 n.6. Accordingly, because an interlocutory appeal is not authorized 

from the imposition of sanctions or from the granting of special exceptions, we 

dismiss those portions of appellants’ appeal for lack of jurisdiction.

Preservation

In their first three issues, appellants challenge the trial court’s failure to hold 

a hearing on or expressly deny their TCPA motion to dismiss, and request that this 

Court “itself render judgment dismissing Appellee’s Motion for Sanctions, because 

the legal action clearly is purposed to suppress Appellants’ Constitutional exercise 

of their right to petition.” At the outset, we note that appellants conceded in 

supplemental briefing3that although the trial court did not conduct an oral hearing 

on their motion, the trial court heard their motion by submission on November 29. 

3 Supplemental briefing was requested by this Court with respect to the jurisdictional 

issue, as discussed above. 
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See Garcia v. Semler, 663 S.W.3d 270, 278 (Tex. App.—Dallas 2022, no pet.) (“The 

current TCPA allows the ‘hearing’ on the merits of a motion to dismiss to be 

conducted by submission.”). Appellants also concede that the trial court’s rulings in 

the November 15 and 29 orders, concluding that the TCPA did not apply to Lanier’s 

motion for sanctions and then finding that appellants’ TCPA motion was moot, taken 

together resulted in a denial of their motion to dismiss. Thus, we conclude that 

appellants have abandoned their first two issues on appeal challenging the trial 

court’s failure to hold a hearing and rule on their motion to dismiss. We overrule 

their first two issues.

Turning to their third issue on appeal, i.e., whether the trial court erred in 

denying their motion to dismiss, we hold that appellants have not preserved this issue

for our review. See TEX. R. APP. P. 33.1(a)(1).

As explained above, Lanier filed a motion for sanctions under Texas Rule of 

Civil Procedure 13 seeking sanctions against appellants for allegedly “groundless” 

and “bad faith” statements appellants made in their objections to Lanier’s motion for 

continuance. See TEX. R. CIV. P. 13. Appellants filed a response, in which they 

included two paragraphs referencing the TCPA. The entirety of appellants’ TCPA 

argument is set out below:

4. Plaintiffs further contend that the Defendant’s motions for 

sanctions constitute violations of Chapter 27 of the Texas Civil Practice 

and Remedies Code to the extent that these actions interfere with 

Plaintiffs’ exercise of their Constitutional rights to petition.
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5. For purposes of Defendant’s requests for sanctions which are 

currently pending before the Court, Plaintiffs hereby invoke the 

provisions of § 27.003 of the Texas Civil Practice and Remedies Code 

and move to dismiss.

In order for appellants to be entitled to dismissal, they must demonstrate that 

a “legal action” is “based on” or “in response to” their exercise of the right to 

petition. TEX. CIV. PRAC. & REM. CODE § 27.005(b)(1)(B). The term “legal action” 

includes “a lawsuit, cause of action, petition, complaint, cross-claim, or 

counterclaim or any other judicial pleading or filing that requests legal, declaratory, 

or equitable relief,” but does not include “a procedural action taken or motion made 

in an action that does not amend or add a claim for legal, equitable, or declaratory 

relief.” Id. § 27.001(6). The right to petition is defined as, among other things, a 

“communication in or pertaining to . . . a judicial proceeding.” Id. § 27.001(4).

Appellants did not file any briefing related to their TCPA “motion” and did 

not make any of the arguments that they make on appeal. For instance, appellants 

did not argue below that Lanier’s motion for sanctions fits within the definition of 

“legal action” as is defined by the TCPA. Nor did they identify any 

“communications” that qualified as an exercise of their right to petition or otherwise 

explain how Lanier’s motion for sanctions implicated their right to petition.

Appellants made no legal argument whatsoever. They simply included a one-
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sentence statement purporting to invoke the TCPA. We hold that this is not sufficient 

to preserve the issue for our review on appeal. See TEX. R. APP. P. 33.1(a)(1).

We are mindful that the Texas Supreme Court has cautioned courts of appeals 

not to impose “too strict a view of error preservation in th[e TCPA] context. Rules 

of error preservation should not be applied so strictly as to unduly restrain appellate 

courts from reaching the merits of a case.” Adams v. Starside Custom Builders, LLC, 

547 S.W.3d 890, 896 (Tex. 2018). In Adams, Adams moved to dismiss Starside’s 

defamation claim under the TCPA, which was purportedly based on various 

statements he made about Starside’s conduct in texts and emails. Adams contended 

that the TCPA applied because he had a constitutional right to speak about Starside’s 

services and to interact with law enforcement. Adams v. Starside Custom Builders, 

LLC, 545 S.W.3d 572, 578 n.4 (Tex. App.—Dallas 2016), rev’d, 547 S.W.3d 890 

(Tex. 2018). The court of appeals held that Adams failed to establish that the 

statements forming the basis of Starside’s defamation claim were based on or related 

to Starside’s services in the marketplace, and therefore, an exercise of his right to 

free speech. Id. at 578–79. The court of appeals declined to address Adams’s 

argument on appeal that the statements also implicated his right to free speech 

because they were related to community well-being because Adams did not raise 

that argument in the trial court. Id. at 578 n.4. The Supreme Court reversed, first 

noting that it was “not convinced that Adams failed to argue community and 
13

environmental well-being in the trial court, as he expressly mentioned these concerns 

at the hearing on the motion to dismiss.” Adams, 547 S.W.3d at 896. The Supreme 

Court explained that it had not “previously cabined [its] TCPA analysis to the precise 

legal arguments or record references a moving party made to the trial court regarding 

the TCPA’s applicability.” Id. at 897. Therefore, the Supreme Court considered the 

appellant’s arguments that his alleged defamatory statements were related to 

Starside’s services in the marketplace and to the community and environmental 

well-being. Id.

We find this case distinguishable from Adams because this is not a case where, 

on appeal, appellants merely expanded on issues previously presented to the trial 

court or presented new arguments in support of those issues previously raised. See 

id. at 896–97 (“We do not consider issues that were not raised in the courts below, 

but parties are free to construct new arguments in support of issues properly before 

the Court.” (citing Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 

2014)). Rather, in their “motion,” appellants identified no protected 

communications, provided no explanation for how Lanier’s motion infringed on a 

protected right, and included no analysis of the applicability of the TCPA. The 

motion consisted of a single statement that the TCPA applied because the motion for 

sanctions interfered with appellants’ right to petition. Apart from this single 

statement, appellants presented no legal argument to the trial court in the first 
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instance. Cf. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (“Preservation 

of error reflects important prudential considerations recognizing that the judicial 

process benefits greatly when trial courts have the opportunity to first consider and 

rule on error.”). For this reason, based on the specific facts of this case and the 

manner in which the TCPA was presented to the trial court, we hold that appellants 

have failed to preserve their argument that the trial court should have granted their 

TCPA motion to dismiss. See TEX. R. APP. P. 33.1(a)(1). We overrule appellants’ 

third issue.

Conclusion

We dismiss for lack of jurisdiction appellants’ appeal from the trial court’s 

November 15 and 29 orders to the extent that those orders impose sanctions and 

grant special exceptions. We affirm the trial court’s November 15 and 29 orders to 

the extent that they deny appellants’ TCPA motion to dismiss.

Amparo Guerra

Justice

Panel consists of Justices Landau, Countiss, and Guerra.