Texas Anti-Slapp Law Appeal Before Hearing

Texas Citizens Participation Act (TCPA) appeal before 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

Anti-Slapp in Texas

Texas Anti-Slapp or TCPA

In WIGHTMAN-CERVANTES v. Hernandez, 02-17-00155-CV, (Tex. App. – Fort Worth February 9, 2018) (mem. op.), the appeals court was confronted with an appeal of a Texas Anti-Slapp or TCPA motion when the trial court never had a hearing.

Facts

Hernandes sued Wightman-Cervantes for defamation. Wightman-Cervantes, acting pro-se, filed a motion to dismiss on March 3, 2017 under the Texas Anti-Slapp or TCPA.

In his motion, Wightman-Cervantes took the position that the trial court should decide his motion by submission because his right to dismissal pursuant to the TCPA was evident from the face of Hernandez’s pleadings alone. Forty-eight days later, on April 20, 2017, Wightman-Cervantes filed a motion asking the trial court to set his motion to dismiss for a hearing by submission. In that motion, Wightman-Cervantes asserted that he needed the trial court to rule on his motion and requested it to set the motion for hearing by submission.

The trial court did not set a hearing or rule on the motion. Wightman-Cervantes filed an appeal as provided in §27.008(a) of the TCPA.

Ruling

It is undisputed that the trial court never held a hearing on the motion. And that fact is fatal to this appeal. For although the TCPA has a mechanism by which a motion to dismiss can be denied by operation of law, the statute’s plain language provides that occurs only if the trial court fails to rule on the motion within thirty days after the trial court’s hearing on the motion.

Reasoning

A party initiates the TCPA’s dismissal procedure by filing a motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). A hearing on a TCPA motion to dismiss generally must be set not later than the sixtieth day after the date of service of the motion. See id. § 27.004(a) (West 2015). A hearing may, however, be set more than sixty days after service of the motion (1) if the trial court’s docket conditions require a later hearing, (2) upon a showing of good cause, or (3) by agreement of the parties. See id. But there is limit: a hearing on a TCPA motion to dismiss may not occur more than ninety days after service of the motion except in cases where the trial court orders limited discovery in accordance with the statute, in which case such a hearing may not occur more than 120 days after service of the motion. See id. § 27.004(a), (c).

(I)t is the date of the trial court’s hearing on the motion to dismiss that starts the clock for the trial court’s thirty-day deadline to rule, and only if the trial court fails to rule within that time frame is the motion considered denied by operation of law.

The appeals court, like the court in MOLLY v. GORDON, found no evidence in the file that a hearing was ever requested. A hearing by submission was requested but the court ruled that the trial court was not obligated to have the hearing by submission.

Both in the trial court and in his briefing in this appeal, Wightman-Cervantes cited to section 27.006(a) to argue that the TCPA mandates the trial court consider a motion to dismiss by submission. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006. It does not. Section 27.006(a) merely provides what evidence the trial court must consider in deciding a motion to dismiss. See id. § 27.006(a).

(T)he TCPA does not mandate that the trial court consider a motion to dismiss by submission. As noted above, Hernandez never agreed to have the motion heard by submission, and although the trial court could have heard the motion to dismiss by submission in the absence of an agreement, it did not. Finally, nothing in the record indicates that Wightman-Cervantes ever requested the trial court to set the motion to dismiss for an oral hearing by the sixtieth day after he filed his motion to dismiss.

Thus, based on the record, Wightman-Cervantes never made a proper request for the trial court to set his motion to dismiss for hearing by May 2, 2017, the sixtieth day after he filed his motion to dismiss.

The Texas Anti-Slapp or TCPA has a mechanism for a later hearing if “the docket conditions of the court require a later hearing.” According to the court, nothing in the record indicated that good cause warranted a later hearing.

Update: in Janus I Unlimited, Inc. v. Doe, 14-18-00188-CV, (Tex. App. – Houston [14th] April 26, 2018) the court could not determine if a hearing had been held. In that situation, the appeals court abated the appeal and sent the case back to the trial court to determine if a hearing had been held.

Update: in In re Herbert, 05-19-01126-CV, (Tex. App. – Dallas, September 19, 2019, no pet. h.) (mem. op), the court ruled that if a proper request for a hearing was made and the trial court failed to hold a hearing, mandamus relief was appropriate because there can be no appeal from a denial of a Texas anti-SLAPP, TCPA, motion to dismiss until after a hearing. Pay close attention to the time to file the mandamus.

WHAT COULD HAVE BEEN DONE

Ask the trial court to extend the hearing and get a written order?
Get a written agreement with the other side to extend the hearing?
If the trial court will not set a hearing what can you do? Compare this case with the MOLLY v. GORDON case where the court also noted that a proper request for hearing was missing in the record.
File a writ of mandamus.