Fleming & Associates, L.L.P N/K/A Fleming, Nolen & Jez, L.L.P. v. Charles Kirklin, Stephen Kirklin, Paul Kirklin, and the Kirklin Law Firm, P.C.
14-15-00369-CV
| Tex. | Oct 29, 2015Background
- Fleming & Associates (F&A) and George Fleming sued the Kirklin Parties and the Jackson Parties arising from post-settlement solicitation related to prior diet-drug litigation claims.
- The Kirklin Parties and Jackson Parties each filed Texas Citizens’ Participation Act (TCPA / Anti‑SLAPP) motions to dismiss; Kirklin also moved for summary judgment and Rule 13 sanctions.
- On Feb. 24, 2015 the trial court: denied Kirklin’s TCPA motion as to F&A; granted Kirklin’s TCPA motion as to Fleming; and granted Jackson’s TCPA motions as to F&A and Fleming — with handwritten notes reserving attorneys’ fees and sanctions for later.
- On Apr. 6, 2015 the trial court granted the Kirklin Parties’ summary judgment; the order did not resolve attorneys’ fees or claims against the Jackson Parties.
- Appellants appealed the TCPA grants and the summary judgment to the Fourteenth Court of Appeals; the appellate court questioned its jurisdiction because the orders were interlocutory and did not dispose of all claims or parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appeal lies from trial court orders granting TCPA motions to dismiss | Fleming argued the dismissals should be appealable | Kirklin/Jackson argued the grants are final as to those claims | Court: No jurisdiction — statute permits interlocutory appeal only for denials of TCPA motions, not grants; appeals dismissed |
| Whether the summary judgment was final and appealable despite reserved attorneys’ fees and unresolved claims against other defendants | Fleming argued the summary judgment should be appealable | Kirklin argued summary judgment disposed of the moving parties’ claims | Court: No jurisdiction — summary judgment left attorneys’ fees and claims against Jackson unresolved, so not final |
| Whether the court could exercise interlocutory jurisdiction by relying on prior dicta in Jardin v. Marklund | Fleming relied on Jardin’s language suggesting jurisdiction | Respondents noted Jardin was distinguishable and that the language was dictum | Court: Jardin’s statement was dictum and not binding; does not confer jurisdiction |
| Whether the cross‑appeal of denial of fees was properly before the court | Kirklin cross‑appealed the denial of fees after trial court denied fees | Fleming maintained interlocutory posture and noted fees/resolution reserved | Court: Cross‑appeal relates to an interlocutory context and court lacked jurisdiction over primary appeals, so dismissed |
Key Cases Cited
- Lehmann v. Har–Con Corp., 39 S.W.3d 191 (Tex. 2001) (Texas appellate jurisdiction generally limited to final judgments)
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (reaffirming final-judgment rule)
- CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (statutory authorization required for interlocutory appeals)
- Stary v. DeBord, 967 S.W.2d 352 (Tex. 1998) (appellate jurisdiction limited to appeals authorized by statute)
- McNally v. Guevara, 52 S.W.3d 195 (Tex. 2001) (summary judgment that reserves attorneys’ fees is not final)
- Jardin v. Marklund, 431 S.W.3d 765 (Tex. App.—Houston [14th Dist.] 2014) (distinguished as dictum regarding appellate jurisdiction)
- Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2013) (discussing operation‑of‑law denial and TCPA appeal timing)
Per curiam: appeals dismissed for want of jurisdiction.