In the

Court 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 Walker, JJ.

Memorandum Opinion by Justice Womack

EMILY KIETH, Appellant

V.

SUMMER WILKES, AS NEXT FRIEND OF D.V.W., Appellee
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Emily 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 Summer Wilkes, as next friend of D.V.W., filed a motion to 

dismiss Kieth’s appeal for want of jurisdiction. We will grant Wilkes’s motion to 

dismiss, dismiss Kieth’s appeal for want of jurisdiction, and deny Kieth any 

alternatively pleaded mandamus relief.

II. BACKGROUND

Wilkes sued Kieth for defamation, and Kieth was served with the lawsuit on 

November 7, 2023. Kieth filed an answer to the lawsuit on December 12, 2023. On 

February 27, 2024, Kieth filed the Motion for Extension. Kieth was represented by 

different counsel when she filed the Motion for Extension from when she answered 

Wilkes’s lawsuit. In the Motion for Extension, Kieth argued that good cause existed 

to extend her deadline to file a motion to dismiss under the Texas Citizens 

Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) 

(requiring a TCPA motion to dismiss to be filed “not later than the 60th day after the 

date of service of the legal action” and allowing a court to extend the time to file a 

TCPA motion to dismiss “on a showing of good cause”). Specifically, Kieth argued

that her prior counsel had made a mistake by not timely filing a TCPA motion to 

dismiss, that her prior counsel had “not [been] competent” to represent her in a 
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defamation suit, and that Wilkes’s lawsuit “chills speech.” On March 25, 2024, the 

trial court denied Kieth’s Motion for Extension.1

Kieth later filed her notice of appeal of the Order. On April 17, 2024, we 

notified Kieth by letter of our concern that we lacked jurisdiction over this appeal

because the order did not appear to be a final judgment or appealable interlocutory 

order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001) (holding 

that, generally, appeals may be taken only from final judgments or interlocutory orders 

authorized by statute). We informed Kieth that unless she or any party filed a 

response showing grounds for continuing the appeal, we could dismiss it for want of 

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 to Wilkes’s motion to dismiss.

III. DISCUSSION

We consider the three bases for jurisdiction argued by Kieth in her response to 

our letter and to Wilkes’s motion to dismiss: (1) that statutory law provides a basis for 

our jurisdiction; (2) that case law provides a basis for our jurisdiction; and (3) to the 

extent that statutory law and case law do not provide a basis for our jurisdiction, her

appeal should be construed as a mandamus action, giving us original jurisdiction. 

1On April 3, 2024, Kieth filed a motion for a permissive interlocutory appeal 

from the Order. See id. § 51.014(d). That motion was denied by the trial court. 
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As to the statutory basis for our jurisdiction, Kieth points to Sections 27.008(a),

(b) and 51.014(a)(12) of the Texas Civil Practice and Remedies Code.

Section 27.008(a) provides, “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.” Tex. Civ. 

Prac. & Rem. Code Ann. § 27.008(a); see id. §§ 27.003, .005. Section 27.008(b) 

provides, “An appellate court shall expedite an appeal or other writ, whether 

interlocutory or not, from a trial court order on a motion to 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.” Id. § 27.008(b); see id. §§ 27.003, .005. 

Section 51.014(a)(12) provides that a person may appeal from an interlocutory order 

that “denies a motion to dismiss filed under Section 27.003.” Id. § 51.014(a)(12); see 

id. § 27.003.

We construe a statute to implement the legislature’s intent as expressed in the 

statute’s plain language, and we presume that the legislature intended each word to be 

given effect. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). We 

consider a statute’s words in context and construe them according to the rules of 

grammar and common usage. See Tex. Gov’t Code Ann. § 311.011(a).

Through a tortured reading of Sections 27.008(a), (b) and 51.014(a)(12), Kieth 

argues that those statutes provide us with jurisdiction to review a trial court’s denial of 

a motion to extend the deadline to file a TCPA motion to dismiss. We hold that the 
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statutes do no such thing. Each of the statutes plainly refers to a TCPA “motion to 

dismiss”—not to a motion to extend the deadline to file a TCPA motion to dismiss. 

If the legislature had desired to extend our appellate jurisdiction to the review of an 

order denying a motion to extend the deadline 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 legislature had desired to place the filing requirement on the 

surety, it easily could have done so”). We thus reject Kieth’s argument that there is a

statutory basis for our jurisdiction over this appeal.3

As to the case-law basis for our jurisdiction, Kieth points to a number of cases 

standing for the proposition that it is the character and function of an order—rather 

than the form of the order—that determines its classification. See, e.g., Del Valle Indep. 

Sch. Dist. v. Lopez, 845 S.W.2d 808, 809–10 (Tex. 1992) (“We reject the notion that 

2Pointing to Section 27.011(b), Kieth argues that the “TCPA requires a liberal 

construction in the case of ambiguities.” See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.011(b) (providing that “[t]his chapter shall be construed liberally to effectuate its 

purpose and intent fully”). But the statutes are not ambiguous, and even a liberal 

construction of Sections 27.008(a), (b) and 51.014(a)(12) cannot change the plain 

meaning of the unambiguous phrase “motion to dismiss.” See id. §§ 27.008(a), (b), 

51.014(a)(12).

3Kieth also argues that the trial court’s denial of the Motion for Extension 

“operates as a denial of a TCPA motion by operation of law.” Kieth acknowledges, 

however, that her attorney “did an extensive survey of TCPA cases where good cause 

was contested on appeal, and this issue [was] not directly addressed.” We likewise 

have searched for authorities to support Kieth’s sweeping proposition and have found 

none.
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such matters of form control the nature of the order itself—it is the character and 

function of an order that determine its classification.”); Chapa v. Chapa, No. 04-12-

00519-CV, 2012 WL 6728242, at *5 (Tex. App.—San Antonio Dec. 28, 2012, no pet.)

(mem. op.) (“Our interlocutory jurisdiction is controlled by the substance and 

function of an order, viewed in the context of the record, not the title or form of the

order or the parties’ characterization of the order.”).

Even if we looked past the title of the Motion for Extension—“Motion for 

Extension of Time to File TCPA Motion”—the substance and function of the 

Motion for Extension reflect that its purpose was to request leave from the trial court 

to file an untimely TCPA motion to dismiss. In this regard, the Motion for Extension

opens with the phrase, “Now comes [Kieth] and files this motion for an extension of 

time to file a TCPA motion to dismiss in the above-numbered cause, and would show 

as follows.” The body of the Motion for Extension contains arguments for why 

“good cause exists” to allow the extension of time to file the TCPA motion to 

dismiss. Finally, in the prayer, Kieth “asks leave to file a TCPA Motion to Dismiss.”

Thus, after looking at the substance and function of the Motion for Extension, we 

conclude that its substance and function match its form—namely, the Motion for 

Extension seeks leave to file an untimely TCPA motion to dismiss not the actual 

dismissal of the defamation action on TCPA grounds.

The substance and function of the Order likewise match the form of the

Order. In this regard, the Order states, in pertinent part, “The Court, after 
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considering the Motion to Extend Time finds that the motion should be DENIED. 

IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant’s 

Motion to Extend Time is hereby DENIED.” In short, the substance and function 

of the Order reflect that the trial court was denying a motion for extension of time to 

file a TCPA motion to dismiss, not that the trial court was denying a TCPA motion to 

dismiss. We thus reject Kieth’s argument that there is a case-law basis for our 

jurisdiction over this appeal.

Finally, we turn to Kieth’s alternative argument that, should we find that we 

lack jurisdiction over her appeal, we should construe her appeal as a petition for writ 

of mandamus, thus invoking our original jurisdiction. Even if we were to construe 

Kieth’s appeal as a mandamus proceeding, we would deny relief. See In re Noteboom, 

111 S.W.3d 794, 797 (Tex. App.—Fort Worth 2003, orig. proceeding) (“Mandamus is 

an extraordinary remedy available only in limited circumstances to correct a clear 

abuse of discretion or the violation of a duty imposed by law when the relator has no 

adequate remedy by appeal.”); see also Tex. R. App. P. 52.8(a).

Because we have no basis for jurisdiction over Kieth’s appeal, we grant Wilkes’s 

motion to dismiss and dismiss this appeal for want of jurisdiction.4 See Tex. R. App. 

P. 42.3(a), 43.2(f); Lehmann, 39 S.W.3d at 195, 200.

4

In her motion to dismiss the appeal, Wilkes asks that we assess attorney’s fees 

against Kieth for filing a frivolous appeal. We deny that request.
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IV. CONCLUSION

We dismiss Kieth’s appeal and deny any alternatively pleaded mandamus relief.

/s/ Dana Womack

Dana Womack

Justice

Delivered: May 16, 2024