Background

After a motion to dismiss under the Texas anti-SLAPP law was denied, the movant filed an interlocutory appeal. Sullo v. Kubosh, 01-18-00418-CV, (Tex. App. – Houston [1st] June 7, 2018).
During the appeal, a third party also filed a motion to dismiss under the Texas anti-SLAPP law. As required by the Texas anti-SLAPP law, the trial court set a hearing on the new motion to dismiss. The two parties involved in the original interlocutory appeal filed a request for an emergency order to stay the hearing on the new motion to dismiss. They filed a Joint Emergency Motion with the appeals court seeking:

(C)onfirmation that the automatic stay, imposed by Section 51.014(b) following the parties’ interlocutory appeals from the trial court’s denial of their motions to dismiss under the Texas Citizens Participation Act (the “TCPA”), tolls the June 11, 2018 hearing set by Brandon Nash, a third party, for another TCPA motion to dismiss, and stays all other trial court proceedings pending this Court’s resolution of their appeals. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.008(a), 51.014(a)(12), (b) (West 2014); Tex. R. App. P. 29.3. In the alternative, should this Court decide that the stay does not toll the TCPA deadlines, the parties seek to temporarily lift the stay for the trial court to hear and rule upon Nash’s TCPA motion.

Court of Appeals

The court of appeals granted the emergency motion and ordered the trial court to stay all proceedings including the hearing on the third party’s new motion to dismiss under the Texas anti-SLAPP law.

The automatic stay imposed by section 51.014(b) creates a bright line rule, staying “the commencement of a trial” for most interlocutory appeals under section 51.014(a), and it “also stays all other proceedings in the trial court” pending resolution of any interlocutory appeal filed under section 51.014(a)(12), as here. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12), (b); In re I-10 Colony, Inc., No. 01-14-00775-CV, 2014 WL 7914874, at *2 (Tex. App.-Houston [1st Dist.] Feb. 24, 2014, orig. proceeding) (mem. op.) (granting mandamus petition to direct trial court to vacate order compelling discovery entered in violation of section 51.014(b) automatic stay); see also Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2016 WL 4980505, at *1 (Tex. App.- Austin Sept. 15, 2016, order) (granting motion to stay all trial court proceedings pending resolution of interlocutory appeal, filed under section 51.014(a)(12), challenging denial of TCPA motion to dismiss because section 51.014(b) automatic stay was statutory and allowed no room for discretion). If the trial court holds a hearing or enters an order after the automatic stay has been imposed, that would be a violation of section 51.014(b) and a clear abuse of discretion. See In re Bliss & Glennon, Inc., No. 01-13-00320-CV, 2014 WL 50831, at *2-3 (Tex. App.-Houston [1st Dist.] Jan. 7, 2014, orig. proceeding) (granting mandamus petition because trial court’s entry of severance order in violation of section 51.014 stay was abuse of discretion); see also In re Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.-Austin 2014, orig. proceeding) (granting mandamus petition because district court’s conducting hearings and signing orders was abuse of discretion since it violated automatic stay of section 51.014(b)).

Conclusion and Disposition

Once an interlocutory appeal is taken in a Texas anti-SLAPP case, all proceedings in the trial court are stayed pending resolution of the appeal, even additional or separate Texas anti-SLAPP motions to dismiss.

Update

An interlocutory appeal once again illustrates that all proceedings are stayed pending the interlocutory appeal. Superior Healthplan, Inc. v. Badawo, 03-18-00691-CV, (Tex. App. – Austin Dec. 21, 2018). The nonmovant asked the appeals court to “lift the automatic stay imposed by Section 51.014(b) of the Civil Practice and Remedies Code and permit the trial court to consider her pending motions.” The nonmovant had filed motions to:

(1) impose sanctions on appellants under the TCPA, (2) dismiss appellants’ notice of appeal under the TCPA, (3) compel appellants to respond to discovery, and (4) sanction appellants and their counsel under Rule 13 of the Rules of Civil Procedure or Chapter 10 of the Civil Practice and Remedies Code.

The appeals court denied the motions.