Texas Anti-Slapp Appeal Rights Without A Hearing

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.

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Court of Appeals

Texas Anti-Slapp Appeal Rights Without A Hearing

Facts

In a defamation case heard by the Dallas Court of Appeals, MOLLY v. GORDON, No. 05-17-00176-CV, (Tex. App. – Dallas, September 26, 2017 no. pet.) (mem. op.) , the issue was whether the appeals court had jurisdiction to hear the appeal when there never was a hearing on the motion. Gordon sued Braun for defamation. Braun filed a Texas Anti-Slapp motion seeking to dismiss the suit. Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. The judge never set a hearing on the motion. Braun filed an appeal taking the position that the motion had been overruled by operation of law. The appeals court ruled it had no jurisdiction because there was no order from which to appeal.

Hearing

“Braun timely moved for dismissal of Gordon’s suit under the TCPA. The act requires that a hearing on the motion “be set not later than the 60th day after the date of service of the motion . . . but in no event shall the hearing occur more than 90 days after service of the motion. . . .” Id. § 27.004(a). Braun served Gordon with the motion on October 18, 2016. Therefore, the hearing had to occur no later than January 16, 2017. The docket sheet for this case shows the motion was set for a hearing on March 10, 2017, almost two months after the deadline for holding the hearing. Braun filed her notice of appeal on February 26, 2017, which stayed all further proceedings in the trial court pending resolution of this appeal. See id. § 51.014(b). Thus, there was no hearing on the motion to dismiss, and the trial court never expressly ruled on the motion.”

The court then held that since there was no hearing, the TCPA’s appeal rights never existed. “A movant for dismissal under section 27.003 may bring an interlocutory appeal from the express denial of the motion to dismiss or from the denial by operation of law resulting from the trial court’s failure to rule on the motion within thirty days after the hearing. If the trial court does not expressly deny the motion to dismiss and the motion to dismiss is not denied by operation of law because there was no hearing, then there is no order subject to an interlocutory appeal.” The 30 day deadline that denies the motion by operation of law if the trial court hasn’t ruled on it only runs from the date of the hearing.

What could have been done?

In a note the appeals court stated “Braun states in her brief that she made numerous attempts to secure a timely hearing date, but the trial court was unable to provide a hearing date within the statutory period and was unwilling to refer the motion to an associate judge. However, these statements are not supported by the record, and we cannot consider them. “[W]e do not consider factual assertions that appear solely in briefs and are not supported by the record.”” And added this “movant has burden to set hearing on motion because motions are usually handled by court clerk and trial court will probably be unaware that motion was filed.”
Compare this case with the Grubbs v. ATW Investments, Inc. case where the trial court denied the dismissal because the hearing wasn’t timely.