## In the Cour t of Appeals Second Appellate District of Texas

at Fort Worth

___ ___ _____________________ No. 02

- 24

- 00166

- CV

___________________________

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CV23

- 1932

Before Womack , Wallach, and Wal ker, JJ

. Mem orandum Opinion b y Justice Womack 

### E MILY 

### K

IETH 

### , Appellant

V


### . S UMMER 

### W ILKES 

### , AS 

### N EXT 

### F RIEND OF 

### D.V.W. , Appellee2 MEMORANDUM OPINION
I
. I NTRODUCTION A ppellant E mil y Kieth seeks to appeal the trial court ’ s order (the Order) denying her “Motion for Extension of Time to File TCPA Motion ” (the Motion for
Extension ). Appellee Su mmer Wil kes, as n ext f riend of D. V.W., filed a motion to
dismiss Kieth ’ s appe al for want of jurisdiction

. We will grant Wi lkes ’ s motion to dismiss, dismiss Kieth ’ s appeal for want of j urisdiction , and deny Kieth any alternativ ely pleaded manda mus relief.
I I
. B AC KGROUND Wilkes sued Kieth for defamation, and Kieth was ser ved with the lawsuit on
No vember 7, 2023. Kieth filed an answer to the lawsuit on December 12, 2023. On February 2 7, 2024, Kieth filed the Moti o n for Extensio n. Kieth was represented by
differe nt co unse l w hen she filed the Motion for Extension from when she answered
Wilk es ’ s lawsuit. In the Motion for Extension, K ieth argued that good cause existe d

t o e xtend her deadline to file a motion to dismiss under the Texas Citizens Participation Act (TC PA)

. See Tex. Civ. Prac. & Rem. Code Ann. § 27.00 3 ( b) ( requiring a TCP A motion to dis miss to be filed “ not later than the 60th day after the
date of s erv

ice of the legal action ” and allowing a court to extend the time to file a
TCPA m otion to dismiss “ on a showing of good cause ” ). Specifically, Kieth argued
that he r prior counsel had made a m istake by not timely filing a TCPA motion to
dismi ss, that her pr ior counsel had “not [been] com petent ” to represent her in a3

defamation suit, and that Wilkes ’s lawsu it “chills spee ch

. ” On March 2 5, 2024, the
trial court denied Kieth ’ s Motion for Extens ion. 1
Kieth later filed her notice of ap peal of the Order. On April 17 , 2024 , we notif ied Kieth by letter o f o ur c oncern that we l ack ed jurisdi ction over th is appeal
because the o rder d id not appear to be a fi na l judgment or appealable in terlocutory
order. See Lehmann v. Har

- Con Corp. , 39 S .W.3d 191, 195 , 200 (Tex. 2001) (holding that, g enera lly, appea ls may b e t ak en only fro m fin al judgments or i nterlocu tory orders authorized by statute)

. We infor med Kieth that unless s he or any party filed a
response showing grounds for continui ng the appeal , w e could dismiss it for wan t o f jurisdiction. See Tex. R. App. P. 42

. 3 (a), 44. 3. The day after we sent our letter, Wilkes
filed her motion to dismiss for want of jurisdiction, echoing the concerns from our letter. Kieth filed a response to our letter and t o W il kes ’s motion to dismiss

. I II
. D ISCUSSION We consider the three bases for jurisdiction a rgu ed by Kieth in her res po n se to

o ur letter and to Wilkes ’ s motion to dismiss : (1) that statutory law pr ov ides a basis for our jurisdiction ; (2) that c ase law p rovides a basis for our jurisdiction ; and (3) to the
extent that sta tu tory law and case law do not provide a basis for ou r jurisdiction , h er appeal should b e construed as a man dam us action, giving us original jurisdictio n .

1 On April 3, 2024, Kieth filed a motion for a permiss ive interlocutory appeal from the Order. See id. § 51.014 (d)

. That motion was de nie d by the trial court.4

As t o the statutory b asis for our jurisdiction , Kieth poi nts to Sections 2 7.008 (a), (b) and 51.01 4(a) (12) of the Texas Civil Practice and Remedies Code.
S ection 27.008 (a) provides , “ If a court does not rule on a motion to dismiss under
Section 27. 003 in the time pres cribed by Sectio n 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal. ” Tex. Civ.
Pr ac . & Rem. Code Ann. § 27.008 (a) ; see id. § § 27.003, .005

. Section 27.008(b)
pro vides, “ An appell ate court shall expedite an appea l or other writ, whether interlocutory or not , from a trial court order on a motion to dismiss a legal action
under Section 2 7. 0 03 or from a trial court ’ s failure to rule on that motion in the
time prescribed by Section 27. 005. ” Id. § 27.008 ( b ) ; see id. § § 27.003, .005

. Section 51.014(a)(12) provides that a perso n may appeal from an interlo cutory order
that “ denies a motion to d i sm iss filed under Section 27.003. ” Id. § 51.014 ( a)(12); see id. § 27.003

. We construe a statu te to implement the legis lature ’ s intent as expressed in the

statute ’ s pla in language, and we presume that the legislature intended each word to be given effe ct
. S ee Silguero v. CSL Plasma, In c. , 579 S.W.3d 53, 59 (Tex. 2019). We

con sider a statute ’ s wor ds in context and const r ue them according to the rules of
gra mmar and common usage. See Tex. G ov ’ t Code Ann. § 311.0 11 ( a)

. Through a tortured reading of Sec ti o ns 2 7.008 (a), (b) and 51.014(a) (12) , Kieth argues that those s tatutes provide us with juri sdict ion to review a trial court ’ s denial of
a motion to extend the deadline to file a TCPA motion to dismiss. We hold that the5

statutes do no such t hi ng . Each of t he statutes plainly refers to a TCPA “ motion to
dismiss ”

— not to a motion to exten d the deadline to file a TCPA motion to dismiss. If the legislature had desired to extend ou r appellate jurisdiction t o the re view of an order denying a moti on to extend the deadli ne to file a TCPA motion to dismiss, it
could have done so. 2 See Pavecon, Inc. v. R

- Com, Inc. , 159 S.W.3d 219, 225 (Tex. App.

— Fort Worth 2005, no pet.) ( applying rule of construction to different statute and noting that, “ [i] f the legisl ature had d e sired to place t he filing requirement on the
surety, it easily could have do ne so ” ). We thus reject K ieth ’ s argument that there is a statutory basis for our jurisdiction over this appeal. 3
As to the case

- law basis for our jurisdiction , Kie th points to a number of cases standing for the pro posit io n that it is the character and f unctio n of an order

— rather
than the form of the ord er

— that determines its classification

. See , e.g . , D el Valle Indep.
Sch. Di st. v. Lopez

, 845 S.W.2d 808, 809

– 10 ( Tex. 1992) ( “We r eject the notion that

2 Pointing to Sec tion 27.011(b), Kiet h ar gu es that the “TCPA requires a liberal construction in the case of ambiguities. ” See Tex. Civ. Prac. & Rem. Co de Ann. § 27.0 11( b) (providing that “ [t]his chapter shall be construed l iberall y t o effectuate its purpose a nd intent fully ” ). But the statutes are not ambiguous, and even a liberal construction of Sections 2 7.008 (a), (b) and 51.014(a) (12) cannot change the plain meaning of the unambiguous phr ase “ motion to dismiss. ” See id. § § 27. 008 (a), (b), 51.01 4(a)(12).

3 Kieth also argues that t he trial court ’s denial of the Moti on for Extension “operates as a denial of a TCPA motion by o peration of law. ” Kieth acknowledges, however, that her attorney “ did an extensive survey of TCPA cases whe re good cause was contested on appeal, an d this issue [was] not directly addressed. ” We like wise have searched for authorit ies to support Kieth ’s sweeping proposition and have found none.6

such matters of form control the nature o f the order itself

— it is the character and
functio n of an order that d etermine its classification

. ”) ; Chapa v. Chap a , No. 04

- 12

- 0 0519

- CV, 2012 WL 6728242, at *5 (Tex. App.

— San Antonio Dec. 28, 2012, no pet.) (mem. op.) ( “ Our interlocutory jurisdiction is controlled by the s ubstance and
function of an orde r, viewe d in the context of the record, not the title or form of the order or the partie s ’ characterization of the order. ” ).
Even if we looke d past the title o f the Motion for Exten sion

— “ Motion for
Extensi on of Time to File TC PA Motion ”

— the sub stance and function of the
Motion for Extension reflect that its purpose was to request leave from the t rial court to file an untimely TCPA motion to dis m iss. In this regard, the Motion for Extension opens with the phrase, “ Now co mes [ Kieth ] and files this motion fo r an extension of
time to file a TCPA motion to dismiss in the ab ove
- numbered cause, and would show
as follows

. ” The b ody of the Motion for E x tension cont ains arguments for why

“ good cause exi s ts ” to allow the extens i on of time to file the TC PA motion to
dismiss. Finally, in the prayer, Kieth “ as ks leave to file a TCPA Motion to D ismiss

. ” Thus, af ter looking at the substance and function of t h e Motion for Extension , we conclude that its substance an d function matc h its form

— na mely, the Motion for
Extension seeks leave to file a n untimely TC PA motion to dismiss not the actual
dismissal of the d efamation ac t ion on TCPA grounds

. The substance an d function of the O r der likewise match the form of the
Order

. In this regard, the Order states, in pertinent part, “ The Court, after7

considering the Moti on to Extend Time finds that the motion should be DENIED. IT IS THEREFORE ORDERED, AD JUDGED, and D ECR EED that Defendant ’ s Motion to Extend Tim e is hereby D ENIED. ” In short , the subst ance and function
of the Order reflect that the trial court was d eny ing a motion for ex tension of time to
file a TCPA motion to d i smiss, no t that the trial court was denyi ng a TCPA motion to
dismiss. We thus reject K ieth ’s argument that there i s a case

- la w basis for our jurisdiction over this appeal. Finally, we turn to Kieth ’s alternative argument that , should we find that we lack jurisdiction over h er appeal, we should con strue h er appeal as a petition for writ
of mand amus , thus invoking our original ju risdiction . Even if we were to construe Kieth ’ s a ppeal as a mand amu s proceeding, we would deny r elief. See In re Note boo m , 111 S.W.3d 794, 797 (Tex . App.

— Fort Worth 2003 , o rig. proceeding ) ( “ Mandamus is an extraordinary remedy av ailable only i n limited c ircumstances to correct a clear
abuse of discretio n or the violat ion of a duty imposed by law when the relator has no
ade quate reme dy by appeal. ” ) ; see also Tex. R. App. P . 5 2.8(a)

. Bec ause we have no basis for jurisdicti on over Kieth ’ s appeal , we grant Wi lkes ’ s motion to dismiss and dismiss this appeal for want of juri sdi ction. 4 See Te x. R. App.
P. 42 .3(a), 43.2 (f); Lehmann , 39 S .W.3d at 195, 200

.

4 I n her motion to dismiss the appeal, Wilkes ask s that we assess a t to rn ey ’s fees against Kieth for filing a friv olous appeal. We deny that request.8 I V
. C ONCLUSION We dismi ss Kieth ’ s appeal and deny any alternatively plead ed mandamus relief. /s/ Dana Womack
D ana Womack Justice
Delivered: May 16, 2024