Stewart v. Douglas ex rel. TCU Pee Wee Youth Ass'n, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Justice Gabriel
• Decision Date: 30 July 2020
• Docket Number: No. 02-19-00292-CV,02-19-00292-CV
• Citation: Stewart v. Douglas ex rel. TCU Pee Wee Youth Ass'n, Inc., No. 02-19-00292-CV (Tex. App. Jul 30, 2020)
• Parties: EARL STEWART, RAYFORD ROCHON, CEDRIC DORSEY SR., ADRIAN DORSEY, D/B/A TCU PEE WEE YOUTH FOOTBALL ASSOCIATION, D/B/A TCU SPORTS ASSOCIATION, D/B/A TCU PEE WEE FOOTBALL ASSOCIATION, AND NORTH TEXAS PEE WEE YOUTH LEAGUE, Appellants v. CHARLES DOUGLAS, ON BEHALF OF TCU PEE WEE YOUTH ASSOCIATION, INC., Appellee

EARL STEWART, RAYFORD ROCHON, CEDRIC DORSEY SR.,ADRIAN DORSEY, D/B/A TCU PEE WEE YOUTH FOOTBALL ASSOCIATION,D/B/A TCU SPORTS ASSOCIATION, D/B/A TCU PEE WEE FOOTBALL ASSOCIATION,AND NORTH TEXAS PEE WEE YOUTH LEAGUE, Appellants v. CHARLES DOUGLAS, ON BEHALF OF TCU PEE WEE YOUTH ASSOCIATION, INC., Appellee

No. 02-19-00292-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

July 30, 2020

On Appeal from the 236th District Court Tarrant County, Texas

Trial Court No. 236-304998-18

Before Gabriel, Kerr, and Birdwell, JJ.

Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellants Earl Stewart, Rayford Rochon, Cedric Dorsey Sr., Adrian Dorsey, d/b/a TCU Pee Wee Youth Football Association, d/b/a TCU Sports Association, d/b/a TCU Pee Wee Football Association, and North Texas Pee Wee Youth League (collectively, the Coaches) attempt to bring an interlocutory appeal from the alleged denial of their motion to dismiss under the Texas Citizens Participation Act (TCPA).¹ See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .008(a), § 51.014(a)(12). The trial court never signed an order denying the motion, but the Coaches filed their notice of appeal taking the position that their motion had been denied by operation of law. See id. § 27.008(a). We conclude that it was not.

The Coaches obtained a hearing setting on their Section 27.003 motion, and at that hearing, the trial court orally denied the motion before Appellee Charles Douglas, on behalf of the TCU Pee Wee Youth Association, Inc. (Douglas), had an opportunity to present his response. But during that same setting, the trial court withdrew its ruling, ordered the parties to mediation, recessed the hearing, and ordered the hearing to be reconvened at a later time. Because the record does not reflect that the Coaches ever obtained a date on which to reconvene the hearing, thehearing was never concluded, and the trial court's thirty-day deadline to rule on the motion under TCPA Section 27.005(a) was never triggered. Thus, the Coaches' Section 27.003 motion is not deemed overruled by operation of law, and there is no order from which the Coaches may appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

I. BACKGROUND

This dispute concerns an organization that manages youth football teams. Douglas filed this suit against the Coaches; the Coaches consist of former coaches in Douglas's youth association and the league within which Douglas's organization operated. Douglas alleged that the former coaches left his organization to operate a new association that used a name that was derivative of the name of Douglas's organization, used the same marks and colors as Douglas's organization, and operated within the same league, thereby causing confusion among consumers. Douglas asserted claims for common-law fraud, fraud by nondisclosure, tortious interference with existing and prospective contracts, breach of fiduciary duty, misappropriation of name or likeness, and negligent misrepresentation, and he requested injunctive relief.

The Coaches filed a motion to dismiss under the TCPA, alleging that Douglas's suit was based on, related to, or in response to their exercise of their right to free speech, their right to petition, or their right of association. See id. § 27.003(a).

The trial court held a hearing on the Section 27.003 motion and other matters² on June 17, 2019, noting at the outset that the hearing was allotted only thirty minutes. After the Coaches presented the testimony of three witnesses, the trial court asked to see the parties' counsel in the jury room. When the trial court went back on the record, the trial court denied the Coaches' motions to dismiss, appointed a mediator, and ordered the parties to mediation.³ As the hearing went on, Douglas's counsel asked permission to offer declarations and objections in writing in order to preserve the record in case the Coaches immediately appealed the trial court's TCPA ruling. After the Coaches' counsel confirmed that they wanted to preserve their right to appeal, Douglas's counsel informed the trial court that he had filed an objection to the hearing on grounds that the TCPA motion had been untimely filed and that the hearing on the motion had been untimely set. The trial court then stated that it was "going to reconsider its ruling and recess the hearing for now." The Coaches' counsel requested clarification about whether the parties were mediating, and the trial court responded,

The [c]ourt is going to withdraw all of its rulings. It's going to reconsider this matter after resumption of the hearing on it and we will reset -- we will reconvene this hearing at a later time to be determined by the [c]ourt and the parties.

Thank you very much. We're in recess.

The hearing was never resumed. Instead, roughly two weeks later, the Coaches' counsel sent the trial court a letter wherein she cited Section 27.005 of the TCPA and instructed the trial court that the "[c]ourt's ruling on [the Coaches'] TCPA motion must be filed by July 17, 2019[,] or it is overruled by operation of law." Douglas's counsel responded in a letter of the same date, stating that the "spirit, if not the court's actual ruling, was that the hearing was continued. Therefore, there is no deadline at this time for the court to rule because the hearing is not concluded until [Douglas] puts on [his] rebuttal evidence." About a week later, the Coaches' counsel sent the trial court a letter wherein she did not address the continuation of the hearing and instead stated that she "did not consent to an abatement;⁴ therefore, Your Honor's ruling on [the Coaches'] TCPA motion is due by July 17, 2019." The trial court did not rule on the motion.

The Coaches subsequently filed a notice of appeal in which they asserted that their Section 27.003 motion had been overruled by operation of law on July 17, 2019.

II. JURISDICTION

A. GENERAL LAW GOVERNING JURISDICTION

Generally, appellate courts have jurisdiction to review a trial court's ruling only after entry of a judgment finally disposing of the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory appellate jurisdiction is an exception to this general rule; it enables appellate courts to review a trial court's ruling while the case is still pending before the trial court. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex. 2007). As an intermediate appellate court, we lack jurisdiction to review an interlocutory order unless a statute specifically authorizes the appeal. Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000). We strictly construe statutes authorizing appeals from interlocutory orders. Brand FX, LLC v. Rhine, 458 S.W.3d 195, 201 (Tex. App.—Fort Worth 2005, no pet.).

Section 51.014(a)(12) of the Texas Civil Practice and Remedies Code provides that a person may appeal from an interlocutory order of a district court that denies a motion to dismiss filed under Section 27.003. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12). As noted above, the Coaches filed their motion to dismiss under Section 27.003. Thus, whether we have jurisdiction over this appeal depends on whether that motion was denied. And the answer to that question depends on whether the trial court has held the hearing on the Section 27.003 motion.

B. THE COACHES' SECTION 27.003 MOTION WAS NOT OVERRULEDBY OPERATION OF LAW BECAUSE THE TRIAL COURT CONTINUED THEHEARING AND THE COACHES NEVER SOUGHT TO RECONVENE THE HEARING.

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). Its purpose is to identify and summarily dispose of lawsuits designed to chill First Amendment rights, not to dismiss meritorious lawsuits. Id. at 589 (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.002). It accomplishes this purpose by establishing a burden-shifting scheme that, if satisfied, results in a relatively expedient dismissal of lawsuits that are meritless within the meaning of the TCPA. See id. at 586; see also Wightman-Cervantes v. Hernandez, No. 02-17-00155-CV, 2018 WL 798163, at *2 (Tex. App.—Fort Worth Feb. 9, 2018, pet. denied) (mem. op.).

To initiate the TCPA's dismissal procedure, a party must file a motion to dismiss under Section 27.003 and get the motion set for hearing. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). If the trial court denies the motion, then the moving party may immediately appeal the order. See id. § 51.014(a)(12); Wightman-Cervantes, 2018 WL 798163, at *3. If the trial court does not rule on the motion "in the time prescribed by Section 27.005" then "the motion is considered to have been denied by operation of law and the moving party may [immediately] appeal." See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.008(a), 51.014(a)(12); Wightman-Cervantes, 2018 WL 798163, at *3.

As we have previously explained, the "time prescribed by Section 27.005" is "not later than the 30th day following the date of the hearing on the motion." See Wightman-Cervantes, 2018 WL 798163, at *3 (discussing Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(a) and 27.008(a)). Thus, the trial court's thirty-day deadline to rule on a Section 27.003 motion to dismiss does not begin to run until "the date of the hearing on the motion." See id.; Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *2 (Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem. op.). Consequently, a motion to dismiss under Section 27.003(a) is considered to have been overruled by operation of law only if the trial court does not rule by "the 30th day following the date of the hearing on the motion." See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(a), .008(a); Wightman-Cervantes, 2018 WL 798163, at *3.

The question presented here is whether June 17, 2019, was "the date of the hearing on the motion" under Section 27.005(a) when the trial court commenced a hearing on the Coaches' motion that...