Atlas Survival Shelters, LLC v. Scott
| Decision Date | 18 November 2020 |
| Docket Number | NO. 12-20-00054-CV,12-20-00054-CV |
| Parties | ATLAS SURVIVAL SHELTERS, LLC, APPELLANT v. CLYDE SCOTT AND RISING S COMPANY, LLC, APPELLEES |
| Court | Texas Court of Appeals |
This is an accelerated interlocutory appeal brought pursuant to the Texas Citizens Participation Act (TCPA).1 Atlas Survival Shelters, LLC appeals the denial of its motion to dismiss the libel suit brought by Clyde Scott and Rising S Company, LLC (collectively Scott). In four issues, Atlas contends the trial court erroneously denied its motion to dismiss. Because we conclude that Scott's suit is exempt from the TCPA, we affirm the trial court's order denying the motion to dismiss.
Scott and Atlas are competitors in the survival shelter industry. Atlas's owner, Ron Hubbard, posted two videos to Atlas's YouTube channel in April 2019 in which Hubbard made statements about Scott and Rising S Company. One video, entitled "Texas Man Spends 33 Months in Prison After Buying Shelter From Rising S Bunkers," featured Hubbard interviewing a man who believed his incarceration was a direct result of his interactions with Clyde Scott when he purchased a Rising S shelter. Another video, entitled "Lady in Minnesota and Her Horrible Bomb Shelter," featured Hubbard touring and critiquing a shelter installed by Rising S. Scott sued Atlas for libel and business disparagement based on these two videos. Hubbard posted a third video on June 23, 2019, after Scott filed this suit, entitled "World Expert Visits a Badly Engineered $500,000 Bomb Shelter," in which Hubbard allegedly referred to Scott disparagingly. Atlas answered and moved to dismiss the suit pursuant to the TCPA. Atlas also counterclaimed for libel, slander, business disparagement, negligent misrepresentation, and breach of contract. Scott filed an amended petition adding claims for breach of contract and fraudulent misrepresentation. On August 22, 2019, Scott filed a second amended petition to which it attached additional exhibits. A hearing on the motion to dismiss was held on August 26, 2019. At the conclusion of the hearing, the court did not rule on the motion and stated it was taking the motion under advisement to review the pleadings and evidence, including the videos in question. On October 15, 2019, the court signed an order denying the motion to dismiss. There is nothing in the record explaining why the court did not rule sooner, though he advised the parties at the August 26 hearing he would try to rule on the motion by week's end. Atlas filed its notice of appeal on October 22, 2019.
After Atlas filed its notice of appeal in this court, Scott moved to dismiss the appeal for want of jurisdiction because the notice of appeal was filed more than twenty days after the motion to dismiss was denied by operation of law. Atlas filed a response asserting the October 15 ruling modified the denial of its motion to dismiss pursuant to Rule of Civil Procedure 329b, and the time for appealing runs from the October 15 ruling. This court overruled Scott's motion and set the case for submission.2
Before proceeding with the substantive issues in this appeal, we first address Scott's claim this court lacks jurisdiction to hear Atlas's appeal. Our initial inquiry is always whether we have jurisdiction over an appeal. Laster v. Thomas, 487 S.W.3d 772, 773 (Tex. App.—Dallas 2016, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). In its brief, Scott asserts that the trial court lacked authority to issue its October 15 order, and therefore that order is void and unappealable. Scott argues that the TCPA requires the trial court to rule no later than the thirtieth day after the hearing on the motion. Because it did not, the argument continues, the motion was overruled by operation of law on September 25, andany order entered after that date is void. The record is clear that the hearing on Atlas's motion to dismiss was held and concluded on August 26 and that an order denying the motion was rendered on October 15. Scott's argument implicates the question of timeliness of Atlas's notice of appeal.
The applicable version of Section 27.005(a) required the trial court to rule on a TCPA dismissal motion not later than the thirtieth day following the date of the hearing on the motion. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 960, 962 (amended 2019) ). If the trial court does not issue a timely ruling, the motion is considered to have been denied by operation of law and the moving party may appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a).
The TCPA further provides that the appellate court shall expedite an appeal from a trial court order on a motion to dismiss under Section 27.003 or from a trial court's failure to rule on that motion in the time prescribed by Section 27.005. Id. at 27.008(b). The rules of appellate procedure provide that, in an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment or order is signed. TEX. R. APP. P. 26.1(b). In appeals from a Section 27.003 motion to dismiss, where there is no order rendered within the thirty-day time period, courts have determined that the twenty-day timeframe to file the notice of appeal begins when the motion is denied by operation of law. See Montiel v. Lechin, No. 01-18-00781-CV, 2019 WL 1186695, at *3 (Tex. App.—Houston [1st Dist.] March 14, 2019, no pet.) (per curiam) (mem. op.); Clewis v. Harris Cty., No. 14-15-00424-CV, 2015 WL 5935825, at *1 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, pet. denied) (per curiam) (mem. op.).
Atlas counters that the trial court retained plenary jurisdiction after the September 25 denial of the motion to dismiss by operation of law. Therefore, it argues, the October 15 order is not void and if not void, the notice of appeal filed on October 22 is certainly timely. We first note that the TCPA does not address whether the trial court may rule on a motion to dismiss after it has been denied by operation of law. While Section 27.005(a) requires a timely ruling on a motion to dismiss, it says nothing about a trial court's plenary power outside the statute's thirty-day deadline. See In re Panchakarla, 602 S.W.3d 536, 540 (Tex. 2020). We need not specifically answer whether the trial court retained plenary power as to Atlas's motion to dismiss after it was denied by operation of law, or whether the September 25 or October 15 date controls the appellate timeline. Even if we assume without deciding that September 25 is the correct date,our analysis turns on the fact that Atlas filed its notice of appeal during the fifteen-day time period for extensions applicable to the September 25 denial.
Texas Rule of Appellate Procedure 26.3 allows a party to move to extend the time to perfect an appeal if he acts within fifteen days after expiration of the deadline for filing the notice. See TEX. R. APP. P. 26.3. The Texas Supreme Court has made it clear that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the rules of appellate procedure would preserve the appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
Even if the appeal deadline was on October 15, which was twenty days after the motion to dismiss was denied by operation of law, Atlas's October 22 notice of appeal was filed within fifteen days of that date. Although Atlas did not file a motion to extend time to file the notice of appeal pursuant to Rule 26.3, because it tendered a notice of appeal within that fifteen-day time period beginning October 15, we imply that it filed a motion to extend. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt, 959 S.W.2d at 617. Further, Atlas filed a response to Scott's motion to dismiss. In that response, Atlas provided a reasonable explanation why its appeal was not timely perfected as required by Rule 10.5(b)(1)(C). See TEX. R. APP. P. 10.5(b)(1)(C). Atlas explained its belief that the October 15 written order modified the earlier denial of its motion by operation of law thereby beginning the time to file a notice of appeal on that date, making the notice of appeal timely filed well within the requisite twenty-day period.
Regardless of the accuracy of Atlas's legal interpretation of the controlling date, it indicates the failure to file within twenty days of the date the motion was overruled by operation of law was not deliberate or intentional, but was the result of inadvertence or mistake, and satisfies the requirement for a reasonable explanation to justify the need for an extension. See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam). Atlas made a bona fide attempt to invoke the appellate jurisdiction of this court by offering a reasonable explanation for failing to timely file its notice of appeal by October 15, if that was the controlling date. Accordingly, based on the liberal standard for considering untimely appeals, we find this court has jurisdiction to hear Atlas's appeal. See id. at 888.
In its third issue, Atlas contends the trial court erred in denying its motion to strike Scott's response to his motion to dismiss as untimely. Appellate courts have jurisdiction over interlocutory orders only when that authority is explicitly granted by statute. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). There is no statutory authority for this court to review the denial of Atlas's motion to strike. See Morrison v. Profanchik, 578 S.W.3d 676, 681 n.2 (Tex. App.—Austin 2019, no pet.). We overrule Atlas's third issue.
In its second issue, Atlas asserts that the trial court failed to apply the appropriate standard in its October 15 ruling, and the ruling contradicts itself....
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