MAGAZINEPARTNERS MAGAZINE AND DALLAS SYMPHONY ASSOCIATION INC DALLAS SYMPHONY ORCHESTRA v. JOSE REYES (2017)

DISSENTING OPINION ON DALLAS SYMPHONY ASSOCIATION, INC.'S MOTION FOR EN BANC RECONSIDERATION

Dallas Symphony Association, Inc. (DSA) moves for en banc reconsideration of the panel's decision to dismiss for lack of jurisdiction its issue challenging the trial court's denial of summary judgment with respect to appellee Jose Reyes's claim for tortious interference with employment. The panel concluded that section 51.014(a)(6) of the Texas Civil Practice and Remedies Code did not grant appellate jurisdiction to review all of DSA's grounds for summary judgment that were denied in the interlocutory order but required a claim-by-claim analysis to determine which summary judgment grounds were based on a free-speech claim or defense.¹ The panel concluded the denial of summary judgment on Reyes's claim for tortious interference with employment did not pertain to a free-speech claim or defense for which reason this Court lacked jurisdiction for appellate review of the trial court's denial of summary judgment as to that claim. DSA contends (1) the plain meaning of section 51.014(a)(6) grants jurisdiction to review all summary judgment grounds denied in an interlocutory order so long as at least one ground was based on a free-speech claim or defense, (2) the appellate courts in Texas have split over this question, the majority of which have concluded section 51.014(a)(6) grants jurisdiction to review all grounds when at least one denied ground of summary judgment was based on a free-speech claim or defense, and (3) this Court has authority favorable to DSA on this issue. Because a majority of the Court votes to deny en banc reconsideration, I dissent from that decision and from the panel's jurisdictional decision for the reasons stated below.

Text of Section 51.014(a)(6)

Reyes and DSA argue, and the panel opinion concluded, that the meaning of section 51.014(a)(6) of the civil practice and remedies code determines whether we have jurisdiction, so I begin there. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (West Supp. 2016). We review statutory construction questions de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). In construing statutes, we seek to determine the Legislature's intent where possible from the text. Id. We “presume the Legislature chose statutory language deliberately and purposefully.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014). We use the context of words and phrases “construed according to the rules of grammar and common usage” giving words their ordinary meaning except where they are defined by statute or have acquired technical or particular meaning. See TEX. GOV'T CODE ANN. §§ 311.011, 312.02 (West 2013). We may not add words to a statute that are not already “implicitly contained” in the statute's language or amend a statute. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999) (court may not “judicially amend the statute to add an exception not implicitly contained in the language of the statute”); Lee v. City of Houston, 807 S.W.2d 290, 294–95 (Tex. 1991) (“A court may not ․ add words that are not implicitly contained in the language of the statute.”).

The plain meaning of section 51.014(a)(6) confers jurisdiction for interlocutory review of entire orders denying summary judgment so long as the motion for summary judgment included a ground based in whole or in part on a claim or defense involving the free-speech clause. The statute provides:

(a) A person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that:

* * *

(6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (emphasis added). Subsection (a) provides that an interlocutory appeal may be perfected from an interlocutory order that is described by one of the subsections that follow. Id. § 51.014(a). There is no language that limits the phrase “interlocutory order” to only certain relief contained within an interlocutory order. See id. The statute instead authorizes “appeal from an interlocutory order ․” See id.

Subsection (a)(6) requires that to be appealable the interlocutory order must deny a motion for summary judgment described in the remainder of the sentence. See id. § 51.014(a)(6). Texas Rule of Civil Procedure 166a governs motions for summary judgment. See TEX. R. CIV. P. 166a. Rule 166a(c) allows a single motion for summary judgment to include multiple grounds and to challenge multiple causes of action by using the plural “grounds” and “issues” when the rule provides that a motion for summary judgment must “state the specific grounds” and may be granted on “the issues expressly set out in the motion.” See TEX. R. CIV. P. 166a(c). In light of rule 166a's allowance for multiple-ground motions for summary judgment, section 51.014(a)(6) requires that to be appealable an interlocutory order must deny a summary judgment motion that is “based in whole or in part upon a claim ․ or defense” arising under the free-speech clause of the First Amendment.

In subsection (a)(6), the phrase, “based in whole or in part,” has further importance for this jurisdictional analysis and is easily understood. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). “[T]he Legislature's use of the disjunctive word ‘or’ is significant when interpreting statutes.” City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 642 (Tex. 2013). “[T]he use of the disjunctive conjunction ‘or’ between the two phrases ․ signifies a separation between two distinct ideas.” Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000); see City of Dallas v. TCI W. End, Inc., 463 S.W.3d 53, 58 (Tex. 2015) (“The statute's use of ‘or,’ a disjunctive, identifies two alternative bases for recovering civil penalties.”). So in section 51.014(a)(6) “in whole” is an alternative basis to “in part.” As relevant here, “whole” means “constituting the total sum or undiminished entirety.” Whole, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/whole (last visited June 23, 2017). “Part” means “one of the often indefinite or unequal subdivisions into which something is or is regarded as divided and which together constitute the whole” and “in part” means “in some degree.” Part, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/part (last visited June 23, 2017). Therefore, under section 51.014(a)(6) an order denying a motion for summary judgment that in its entirety (“in whole”) is based on a free-speech claim or defense is subject to appeal, but so is an order denying a motion that does so to some degree (“in part”).

So subsection (a) does not limit “may appeal from an interlocutory order” and subsection (a)(6) authorizes such an appeal if the denied motion for summary judgment was based to some degree on a free-speech claim or defense. A multiple-ground motion for summary judgment that includes one ground based on a free-speech claim or defense is a motion for summary judgment that to some degree (“in part”) is based on a free-speech claim or defense. Accordingly, the plain meaning of section 51.014(a)(6) authorizes appeal of an interlocutory order that denies a motion for summary judgment so long as at least one ground is based on a free-speech claim or defense. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6).

Had the Legislature intended to limit appeals to just the grounds in a summary judgment motion challenging free-speech claims or defenses, there are several easy ways the Legislature could have stated that limitation. Subsection (a) could have stated, “A person may appeal from an interlocutory order ․ to the extent of the relief that ․” Or subsection (a)(6) could have stated, “denies a ground of a motion for summary judgment that is based in whole or in part upon” a free-speech claim or defense. But when we interpret statutes we may not add words to—and I submit we may not delete words from—a statute to amend it or that are not already “implicitly contained” in the statute's language. See Fitzgerald, 996 S.W.2d at 867; Lee, 807 S.W.2d at 294–95.

Instead of analyzing the text of section 51.014(a)(6), Reyes primarily relies on Astoria Industries of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616 (Tex. App.—Fort Worth 2007, pet. denied), to argue section 51.014(a)(6) means that there is appellate jurisdiction to review only those grounds of a summary judgment motion that involved a free-speech claim or defense and that were denied by a trial court. The court in SNF limited its textual analysis to the following:

The pertinent language of section 51.014(a)(6) provides that “[a] person may appeal from an interlocutory order ․ that ․ denies a motion for summary judgment that is based in whole or in part upon a claim ․ or defense ․ arising under the free speech ․ clause.” A plain reading of this language evidences clear legislative intent that a party seeking summary judgment on claims or defenses that implicate free speech be entitled to appeal a trial court's denial of this relief. Nothing in the language of section 51.014(a)(6), however, suggests to us that there is a legislative intent to permit an interlocutory appeal from summary judgment rulings on non-free speech claims and defenses simply because they happen to be included in the same motion.

Id. at 626 (ellipses in original; footnotes omitted). I agree with the first two sentences quoted above, but the textual analysis of the limited scope of appellate review in SNF is confined to the last sentence. The SNF court then proceeded to rely on opinions interpreting the scope of appellate review of subsections (a)(5) and (a)(8) of section 51.014. Id. But neither subsection is at issue in this appeal and neither contains the phrase “in whole or in part” which expands the scope of review as discussed above. In my view, the effect of the SNF court's reasoning is to add or delete words or concepts to amend the statutory text to arrive at the conclusion that section 51.014(a)(6) limits the scope of appeal of an interlocutory order to only free-speech claims or defenses, which is not proper textual analysis. See Fitzgerald, 996 S.W.2d at 867; Lee, 807 S.W.2d at 294–95. I disagree with the textual conclusion of SNF for the reasons stated above.

I would conclude the plain meaning of the text of section 51.014(a)(6) authorizes appeal from an interlocutory order that denies a motion for summary judgment containing at least one ground that is based on a free-speech claim or defense. Because the interlocutory order denying DSA's motion for summary judgment falls within the scope of section 51.014(a)(6), I conclude it was appealable, including the ground that challenged Reyes's claim for tortious interference with employment. I would consider the merits of DSA's appeal from the trial court's denial of its motion for summary judgment challenging that claim rather than dismiss the appeal of that issue for lack of jurisdiction.

Split of Appellate Courts regarding Section 51.014(a)(6)

The split among the appellate courts over this jurisdictional issue has existed now for eighteen years. The SNF court recognized multiple appellate courts disagree with its conclusion and instead conclude section 51.014(a)(6) authorizes an appeal of an entire interlocutory order denying a motion for summary judgment so long as one ground was based in whole or in part on a free-speech claim or defense. See SNF, 223 S.W.3d at 626 n.19 (summarizing Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720 (Tex. App.—Austin 2001, pet. denied); Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 26 (Tex. App.—San Antonio 1999, pet. denied), disapproved on other grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 429 (Tex. App.—Waco 1997, writ denied)). In addition to these opinions, DSA cites opinions supporting its position that the scope of appellate review under section 51.014(a)(6) is the entire interlocutory order. See K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex. App.—San Antonio 2002, no pet.); Dolcefino v. Randolph, No. 14-00-00602-CV, 2001 WL 931112, at *3 (Tex. App.—Houston [14th Dist.] Aug. 16, 2001, pet. denied) (op. on reh'g) (not designated for publication). DSA's counsel fulfills their ethical duties by disclosing an additional authority favorable to Reyes's position and the panel opinion that the scope of review is limited: KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 787 (Tex. App.—Houston [1st Dist.] 1998, pet. denied), disapproved on other grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000).

I observe that the supreme court denied review of every authority on both sides of the split. I also note the panel's opinion aligns this Court with the minority view.

No Previous Opinion of this Court on this Issue

Reyes and the panel opinion do not rely on any previous opinion of this Court favorable to the conclusion that interlocutory appeals under section 51.014(a)(6) are limited to free-speech claims or defenses. DSA argues that in New Times, Inc. v. Doe, 183 S.W.3d 122 (Tex. App.—Dallas 2006, no pet.), a different panel of this Court concluded appellate review was not limited to free-speech claims and defenses under section 51.014(a)(6):

Although this is an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, the parties do not contend our review of the issues presented is limited. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6); K–Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex. App.—San Antonio 2002, no pet.) (where media defendant's motion for summary judgment relied in part on law of libel under statute included in section 51.014(a)(6), entirety of trial court's orders were appealable under section 51.014(a)(6)).

New Times, 183 S.W.3d at 124 (emphasis added). DSA's reliance, therefore, is on the summary of Santiago in the New Times opinion. DSA also argues the New Times opinion resolved the appellate issue without considering any argument based on a free-speech claim or defense. The panel opinion concedes DSA's argument about the basis of the disposition of the appeal in New Times, but the panel opinion distinguishes New Times because the claims that were resolved there did involve free speech raised in another appellate issue so jurisdiction fell within the panel opinion's view of the limited appellate jurisdiction authorized by section 51.014(a)(6).

Even if the panel is correct about its distinction, New Times clearly did not articulate the panel's view of limited jurisdiction, so the panel cannot and did not rely on New Times for its conclusion. In my view, therefore, the panel opinion is this Court's first expressed conclusion on this important issue of the scope of review under section 51.014(a)(6). Every subsequent panel of this Court—including this dissenting author—will be bound thereby. See Signature Mgmt. Team, LLC v. Quixtar, Inc., 281 S.W.3d 666, 671 n.1 (Tex. App.—Dallas 2009) (“[I]n the absence of a decision by a majority of the Texas Supreme Court or by this Court sitting en banc repudiating our prior holding in Sarieddine, we are bound to follow it.”), rev'd on other grounds, 315 S.W.3d 28 (Tex. 2010). The panel opinion on this important question should be considered by the full court.

Conclusion

Because the panel distinguishes a previous opinion of this Court and for the first time on behalf of this Court draws a conclusion placing this Court in the minority-view regarding the scope of appellate review under section 51.014(a)(6), I dissent from denial of en banc reconsideration. On the merits of the jurisdictional issue, I would conclude section 51.014(a)(6) authorizes appeal from an interlocutory order that denies a motion for summary judgment containing at least one ground that is based on a free-speech claim or defense. Because the interlocutory order denying DSA's motion for summary judgment falls within the scope of section 51.014(a)(6), I conclude it was appealable, including the ground that challenged Reyes's claim for tortious interference with employment. I would consider the merits of DSA's appeal from the trial court's denial of its motion for summary judgment challenging that claim rather than dismiss the appeal of that issue for lack of jurisdiction.

FOOTNOTES

1.   Because I agree with the panel opinion's analysis of the free-speech claim or defense, this dissenting opinion refers to the free-speech claim or defense in section 51.014(a)(6) without further explanation.

DAVID EVANS JUSTICE

Bridges, Lang, Whitehill, Schenck, and Boatright, J.J., join this dissenting opinion.