Larry Maxwell v. Sipra Boyd

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00130-CV
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LARRY MAXWELL, Appellant

V.

SIPRA BOYD, ET AL, Appellees

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On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 65589
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MEMORANDUM OPINION

This appeal is before the Court on an opposed motion to dismiss for lack of

jurisdiction. We conclude the trial court has not signed a final judgment and no

accelerated appeal is available for an immediate review of the trial court’s

interlocutory orders. Accordingly, we dismiss the appeal for want of jurisdiction.

Background

Larry Maxwell sued Wildwood Property Owners Association, the members

of its Board of Directors—John Ferguson, Danny Gilcrease, Thomas Hall, Michael

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Heidemann, Larry Hodge, Barry W. Johnson, Jolynda Loeb, and Richard E.

Mitchell—individually and in their official capacities, Wildwood’s attorney—Sipra

S. Boyd—individually and in her official capacity, and Boyd’s law firm—Roberts

Markel Weinberg Butler Hailey PC—which Maxwell incorrectly named as

“RMWBH Law”, for damages, declaratory relief, and injunctive relief, on claims for

breach of contract for the construction of a dam, fraudulent misrepresentation,

fraudulent inducement, statutory fraud, negligent misrepresentation, libel and

defamation.

The defendants filed a combined motion to dismiss under the Texas Citizen’s

Participation Act (TCPA) and partial motion to dismiss pursuant to Texas Rule of

Civil Procedure 91a. They argued Maxwell filed his lawsuit in response to a pre-suit

demand letter that Boyd mailed to Maxwell on behalf of Wildwood in an exercise

of the right to petition. They argued that Maxwell’s claims against Boyd and the law

firm were barred by the doctrine of attorney immunity and that Maxwell’s claims

against the Board Members were barred by charitable immunity. They argued

Maxwell’s defamation and libel claims lack a basis in fact because the letter was not

published, the attorney and law firm are protected by attorney immunity, and the

Board Members are protected by charitable immunity. They requested attorney’s

fees.

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Maxwell filed a response to the motion to dismiss. He argued Boyd’s demand

letter was published to the Board Members and that his verified amended original

petition established clear and specific evidence of a prima facie case for every

element of his claims.

On March 13, 2025, the trial court signed two orders. In one order, the trial

court granted the defendants’ TCPA motion to dismiss. The trial court dismissed

with prejudice all the claims Maxwell asserted against Sipra Boyd, John Ferguson,

Danny Gilcrease, Thomas Hall, Michael Heidemann, Larry Hodge, Barry W.

Johnson, Jolynda Loeb, Richard E. Mitchell, and Roberts Markel Weinberg Butler

Hailey PC. The trial court dismissed the claims Maxwell asserted against Wildwood,

“except for Plaintiff’s breach of contract claim[.]” The trial court ordered that

“Defendants are entitled to reasonable and necessary fees and costs necessitated by

this Motion pursuant to Texas Civil Practice and Remedies Code Sec. 27.009[]” and

ordered Defendants to submit their evidence on attorney’s fees within 14 days.

The other order granted the Defendants partial motion to dismiss under Rule

91a. The trial court dismissed with prejudice all claims Maxwell asserted against

Sipra Boyd, John Ferguson, Danny Gilcrease, Thomas Hall, Michael Heidemann,

Larry Hodge, Barry W. Johnson, Jolynda Loeb, Richard E. Mitchell, and Roberts

Markel Weinberg Butler Hailey PC. The trial ordered that “Plaintiff’s sole remaining

claim is his breach of contract against Wildwood Property Owners Association, Inc.

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All other claims against Wildwood Property Owners Association, including claims

of libel and fraud, are DISMISSED with prejudice.” The trial court further ordered

that “Defendants are entitled to reasonable and necessary fees and costs necessitated

by this Motion pursuant to Texas Rule of Civil Procedure 91a[]” and ordered them

to submit their evidence of attorney’s fees and costs within 14 days.

Maxwell requested findings of fact and conclusions of law under Texas Rule

of Civil Procedure 296. On April 25, 2025, the trial court signed findings of fact and

conclusions of law. The trial court found, “In December 2023, Plaintiff Larry

Maxwell, through his business, Earthloc, and Defendant Wildwood Property

Owners Association (the ‘Association’) executed a construction contract in which

Plaintiff would perform repair and modification work on Lake Kimble Dam in

exchange for payment from the Association.” The trial court found that the Board

authorized Boyd, an Equity Shareholder in the law firm, “to send a legal demand

letter to Plaintiff to immediately cease work on the Lake Kimble Dam and to remove

his work materials from the worksite, excluding dirt purchased by the Association.

The letter also preserved the Association’s rights and remedies against Plaintiff

going forward. The Association did not complete payments to Maxwell in

accordance with its position that its contract with Plaintiff was breached by

Plaintiff.” The trial court found Maxwell filed his lawsuit in response to the demand

letter. The trial court found its March 13, 2025, orders dismissed with prejudice Sipra

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Boyd, John Ferguson, Danny Gilcrease, Thomas Hall, Michael Heidemann, Larry

Hodge, Barry W. Johnson, Jolynda Loeb, Richard E. Mitchell, and Roberts Markel

Weinberg Butler Hailey PC. The trial court found its March 13, 2025, orders “also

dismissed all claims against Defendant Wildwood Property Owners Association

except for Plaintiff’s breach of contract claim. Finally, the Orders stated that

Defendants were entitled to their reasonable and necessary attorney’s fees and costs

under the Texas Citizens Participation Act and Texas Rule of Civil Procedure 91a.”

The trial court found, “The Court has not awarded attorney’s fees and costs to

Defendants yet, and this item remains outstanding.”

In its conclusions of law, the trial court included a conclusion of law that

“Defendant Wildwood Property Owner’s Association, Inc. is entitled to dismissal

with prejudice of Plaintiff’s claims of libel, fraud, breach of contract, and claims for

injunctive relief.” The trial court also concluded that the Defendants are entitled to

reasonable and necessary attorney’s fees under the TCPA and Rule 91a. The trial

court concluded that the Defendants “are entitled to dismissal of Plaintiff’s claim of

libel arising from issuance of Sipra Boyd’s demand letter[,]” “as Plaintiff’s claim of

libel against them has no basis in law or fact.”

Motion to Dismiss Appeal

On April 7, 2025, Maxwell filed a notice of appeal. After Maxwell filed his

brief, Appellees filed a motion to dismiss the appeal. They argue the trial court’s

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orders of March 13, 2025, are interlocutory orders and that no statute authorizes an

accelerated appeal. In response, Maxwell argues that together the trial court’s orders

and findings of fact and conclusions of law demonstrate an intent to dispose of all

claims. We disagree.

“A ‘finding of fact’ is ‘[a] determination by a judge ... of a fact supported by

the evidence in the record.’” In re M.S., 115 S.W.3d 534, 538 (Tex. 2003) (quoting

Black’s Law Dictionary 646 (7th ed.1999)). Here, the trial court did not find that

Maxwell filed his breach of contract claim in response to Appellees’ exercise of their

right to petition. Quite the opposite, the trial court found that Maxwell’s breach of

contract claim had not been dismissed and that the award of attorney’s fees had not

been resolved. These findings are consistent with the language contained in the

March 13 orders, which expressly provides Maxwell’s breach of contract claim is

not part of the dismissal and which expressly states that the award of attorney’s fees

would be resolved at a later date by separate order. The inclusion of the phrase

“breach of contract” in a conclusion of law in findings of fact and conclusions of law

which were separate from the signed orders does not alter the language within and

effect of those orders, which we conclude are unequivocally interlocutory. See In re

Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig.

proceeding) (en banc) (Findings of fact and conclusions of law explain the reasons

for an order or judgment and they do not change the order or judgment.).

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“[A] judgment rendered without a conventional trial on the merits is not final

unless (1) it actually disposes of every pending claim and party or (2) it clearly and

unequivocally states that it finally disposes of all claims and parties, even if it does

not actually do so.” In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021).

The two orders at issue here did not dispose of Maxwell’s claim for breach of

contract and reserved Appellees’ recovery for attorney’s fees to be decided later.

No statute explicitly provides for an accelerated appeal from an interlocutory

order that grants a motion to dismiss under Chapter 27 of the Civil Practice and

Remedies Code. Fleming & Assocs., L.L.P. v. Kirklin, 479 S.W.3d 458, 460 (Tex.

App.–Houston [14th Dist.] 2015, pet. denied). Likewise, an order granting a motion

to dismiss under Texas Rule of Civil Procedure 91a has not been designated as an

appealable interlocutory order. Gaff v. PHH Mortg. Corp., No. 02-24-00486-CV,

2025 WL 1478175, at *2 (Tex. App.—Fort Worth May 22, 2025, no pet. h.) (mem.

op.).

We conclude the trial court’s orders are interlocutory and no statutory

authority allows for an accelerated appeal from an interlocutory order that grants a

motion to dismiss under either Chapter 27 of the Civil Practice and Remedies Code

or Rule 91a of the Texas Rules of Civil Procedure. Accordingly, we dismiss the

appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); 43.2(f).

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APPEAL DISMISSED.

PER CURIAM

Submitted on August 13, 2025
Opinion Delivered August 14, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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