Motion Granted; Appeal Dismissed and Opinion filed November 19, 2015




                                       In The

                    Fourteenth Court of Appeals

                               NO. 14-14-00825-CV


  INWOOD FOREST COMMUNITY IMPROVEMENT ASSOCIATION,
                      Appellant

                                         V.
ELIO ARCE, ROBERT BURCHFIELD, DOROTHY BURCHFIELD, JUAN
 ORTIZ, LUXCIOLA ORTIZ, ALMA JEAN DOOLING, DONNA EBELT,
 CYNTHIA FOSS, DAVID FOSS, KATHRYN KERR HIX, RENE LOERA,
   ADOLFO LONG, KELLY McCLOUD, CHARLOTTE McMILLAN,
  MARICELA MENDEZ, MARTIN MENDEZ, INEZ M. NORMAN, AND
                  OLGA SANCHEZ, Appellees


                   On Appeal from the 165th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2014-18791


                                 OPINION
      In this accelerated, interlocutory appeal, the appellant contends that the trial
court’s purported oral grant of motions to dismiss under the Texas Citizens
Participation Act (TCPA) was ineffective and therefore the motions were denied
by operation of law. Under the TCPA, the trial court must rule on a motion to
dismiss no later than the 30th day following the date of the hearing on the motion,
and if the trial court does not rule within the prescribed time, the motion is denied
by operation of law. Tex. Civ. Prac. § Rem. Code §§ 27.005(a), 27.008(a). At the
hearing, the judge stated that she was going to grant the appellees’ motions to
dismiss, but she declined to sign a written order and instead instructed the parties
to try to work out their differences over the next thirty days. After the statutory 30-
day deadline had passed, the trial court signed written orders granting most of the
homeowners’ motions to dismiss. For the reasons explained below, we hold that
the trial court’s comments at the hearing did not constitute a ruling and therefore
the motions to dismiss were denied by operation of law. The appellant has moved
to dismiss its appeal in the event we conclude the motions to dismiss were denied
by operation of law. We therefore grant appellant’s motion and dismiss the appeal.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant Inwood Forest Community Improvement Association (the
“Association”) is the homeowners association of Inwood Forest, a residential
subdivision in Houston. The subdivision is divided into several sections, and each
section has its own set of deed restrictions. This lawsuit involves the deed
restrictions applicable to Section 12, which contains 138 lots owned by one or
more homeowners. The appellees are some of Section 12’s homeowners who were
named as defendants in the lawsuit (the “Homeowners”).

      In November 2013, Elio Arce, one of the Homeowners, filed in the Harris
County real property records a “Petition to Modify Deed Restrictions” to change
the existing deed restrictions to permit the placement of fences along the rear lot
lines of all the lots in Section 12. These lots border a golf course that was closed
and sold in 2007. According to the Homeowners, the now-empty and unsupervised

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fairways and golf cart paths are easily accessible by criminals who enter the area
and break into the surrounding homes. The petition to modify recited that it “must
receive the approval of 51% of the owners of property” in Section 12 to modify the
deed restrictions.

      In response, the Association filed a declaratory judgment action in district
court against Arce and over 100 owners of lots in Section 12, seeking to have the
petition to modify declared invalid. The Association claims that it filed the action
because the petition to modify created a cloud on the title to all of the affected
land. In the declaratory judgment action, the Association argued that the petition to
modify was invalid because, under the deed restrictions, the petition needed to be
“signed by the then record owners of a majority of the residential lots,” and that a
majority of the lots was more than “51% of the owners of property” recited in the
petition to modify. The Association contended that all of the owners of each multi-
owner lot had to sign the petition in order for that lot to count, and it also lodged
various challenges to the sufficiency and validity of the list of homeowners and
signatures compiled by the Homeowners in support of the petition to modify.

      In June 2014, Arce filed a motion to dismiss the Association’s declaratory
judgment action under the TCPA. See Tex. Civ. Prac. & Rem. Code §§ 27.001–
.011. Other Homeowners also filed motions to dismiss under the TCPA or joined
in previously filed motions. The Homeowners generally alleged that the
Association’s declaratory judgment action should be dismissed because it was
based on, related to, or in response to the Homeowners’ exercise of their
constitutional rights of free speech, petition, and association. According to the
Homeowners, the Association’s intent was to prevent the Homeowners from
changing the Section 12 deed restrictions without the Association’s permission or
approval.

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      On September 15, 2014, the trial court held a hearing on the Homeowners’
motions to dismiss. At the conclusion of the hearing, the judge stated:

      I am going to grant the motions to dismiss. There’s 30 days before
      they are final. In those 30 days, I want you to go out and find out what
      the community wants to do. So you guys have the opportunity to go
      out and say, hey, Judge dismissed the cases. I want you to come back
      to me before those 30 days are up and tell me what the community
      wants to do. That’s why they call me Solomon.

A discussion ensued concerning whether the judge was making an oral ruling only
or whether she would be making a written ruling. Counsel for one group of
Homeowners wanted a written ruling, but counsel for the Association indicated
that if there were a written ruling, the Association intended to take an accelerated
appeal. The trial court then stated:

      So here’s what we are going to do. We are going to go back into the
      community. We are going to say the Judge has orally granted the
      motion to dismiss. She will be signing final orders in 30 days. . . . All
      right, and we have 30 days to get back to her and tell her what we
      want to do as a community. At the end of that 30 days, we will talk
      again; but I’m not going to sign anything in writing at this point.
The parties and the judge then discussed at length the steps the Homeowners
should take over the next thirty days to obtain sufficient authorizations from the
Section 12 homeowners to satisfy the Association’s criteria for a valid petition to
modify. The hearing was then adjourned.

      Thirty days after the hearing on the motions to dismiss, on October 16, 2014,
the Homeowners filed a “Notice of Filing of Community Support of Petition to
Modify Deed Restrictions” purporting to attach the notarized signatures of all




                                          4
owners of more than 70 of the 138 lots in Section 12. That same day, the
Association filed this interlocutory appeal.1

       More than thirty days after the hearing, the trial court signed the first written
order granting the motion to dismiss of Homeowner Robert Burchfield. Similar
orders were signed in January granting the motions to dismiss of Arce and most of
the other Homeowners. The trial court’s orders included awards of attorney’s fees
to the Homeowners based on the amounts stated in affidavits filed by the counsel
representing the specific Homeowner or group of Homeowners represented. For
reasons not apparent from the record, the trial court signed a written order denying
the motion to dismiss of one of the Homeowners, Dorothy Burchfield.

                         ANALYSIS OF THE ASSOCIATION’S ISSUES

       In its fourth issue, the Association contends that the trial court’s purported
oral ruling was ineffective and the Homeowners’ motions to dismiss were denied
by operation of law when the trial court failed to sign any written orders within the
30-day deadline in the TCPA.2 The Association also questions whether this court


       1
          The Association contends that this appeal is interlocutory because not all of the
defendants sued by the Association filed or joined in the Homeowners’ motions to dismiss.
Further, we have found nothing in the record to indicate that the claims against the Homeowners
were severed from the main case or that any other action occurred in the trial court that would
result in the purported oral ruling becoming final. Moreover, the trial court’s written orders do
not expressly provide that they are final and appealable. Although several of the orders recite that
the trial court “dismisses [the Association’s] case with prejudice,” the preceding paragraph
identifies the specific Homeowners in whose favor the motions to dismiss were granted.
Similarly, the order granting Robert Burchfield’s motion to dismiss specifically recites that the
Association’s case “against Robert Burchfield” is dismissed with prejudice.
       2
         In its first three issues, the Association contends that (1) the trial court erred in granting
the motions to dismiss because the Association’s declaratory judgment lawsuit is not the type of
lawsuit to which the TCPA applies; (2) the Homeowners failed to meet their preponderance of
the evidence burden because the Association’s declaratory judgment lawsuit is not based on,
does not relate to, and is not in response to the Homeowners’ exercise of the right to free speech,
petition or of association; and (3) the trial court erred in granting the motions to dismiss because
there is clear and specific evidence of a prima facie case for the Association’s declaratory
                                                  5
has jurisdiction over this interlocutory appeal. We conclude that the trial court’s
oral statements at the hearing were ineffective to constitute a ruling and
consequently the Homeowners’ motions to dismiss were denied by operation of
law. Because the fourth issue is dispositive, we resolve the appeal on that issue and
do not reach the others.

       A.     The Texas Citizens Participation Act

       The Texas Legislature enacted the TCPA “to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. To that end, section
27.003 of the TCPA provides for early dismissal of a legal action that is “based on,
relates to, or is in response to a party’s exercise of the right of free speech, right to
petition, or right of association.” Id. § 27.003(a).

       Relevant here, section 27.005 of the TCPA provides that “[t]he court must
rule on a motion under Section 27.003 not later than the 30th day following the
date of the hearing on the motion.” Id. § 27.005(a). This deadline is mandatory and
gives the trial court no discretion to grant extensions of time. Direct Commercial
Funding, Inc. v. Beacon Hill Estates LLC, 407 S.W.3d 398, 401 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); Avila v. Larrea, 394 S.W.3d 646, 656 (Tex.
App.—Dallas 2012, pet. denied). The trial court’s only options are to rule to
dismiss or not dismiss the legal action. Avila, 394 S.W.3d at 656.

       If a court does not rule on the motion to dismiss under section 27.003 within
the time prescribed under section 27.005, “the motion is considered to have been


judgment lawsuit.

                                            6
denied by operation of law and the moving party may appeal.” Tex. Civ. Prac. &
Rem. Code § 27.008(a). Additionally, “[a] person may appeal from an
interlocutory order of a district court” that “denies a motion to dismiss filed under
Section 27.003.” Id. § 51.014(a)(12). Under TCPA section 27.008(b), “[a]n
appellate court shall expedite an appeal or other writ, whether interlocutory or not,
from a trial court order on a motion to dismiss a legal action 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. § 27.008(b).

      No statutory authority exists, however, for an interlocutory appeal from the
grant of a motion to dismiss under section 27.003 of the TCPA. See, e.g., Fleming
& Assocs., L.L.P. v. Kirklin, No. 14-15-00238-CV, No. 14-15-00369-CV, 2015
WL 6560520, at *2 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, n. pet. h.)
(per curiam); Schlumberger Ltd. v. Rutherford, No. 01-14-00776-CV, ___ S.W.3d
___, 2015 WL 5026076, at *3 (Tex. App.—Houston [1st Dist.] Aug. 25, 2015, no
pet.) ((holding that no statutory authority provides for an interlocutory grant of a
motion to dismiss under § 27.003); Roll-N-Rock, 2015 WL 5098520, at *1 (Tex.
App.—Dallas Aug. 31, 2015, no pet. h.) (mem. op.) (“A party may appeal from an
interlocutory order that grants a motion to dismiss filed pursuant to Section 27.003
only upon final judgment.”).

      B.     Jurisdiction over the Association’s Appeal and Consideration of
             Association’s Motion to Dismiss
      The Association suggests that if the trial court’s purported oral grant is
ineffective and the Homeowners’ motions to dismiss were overruled by operation
of law, we may not have jurisdiction over its appeal under section 27.008 of the
TCPA, and it wishes to dismiss its appeal in any event. The Homeowners respond



                                          7
that the trial court’s oral ruling granting the motions was effective, but do not
otherwise address the Association’s jurisdictional concerns.

      Generally, appellate jurisdiction exists only in cases in which a final
judgment has been rendered that disposes of all issues and parties in the case. See
CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). Courts of appeal do not have jurisdiction
to hear appeals from interlocutory orders, unless specifically authorized by statute.
See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Stary v.
DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998) (per curiam).

      As discussed above, no statute specifically authorizes this court to hear an
appeal from an interlocutory order granting a motion to dismiss. Therefore, we
must first determine whether the trial court’s purported ruling granting the
Homeowners’ motions for summary judgment was effective. If so, then we have
no jurisdiction over the appeal. If the trial court failed to timely rule on the motions
to dismiss, however, then the motions were denied by operation of law. If the
motions were denied by operation of law, then the Association has moved to
dismiss its appeal.

      1.     The Trial Court’s Oral Statements at the Hearing Were
             Ineffective to Constitute a Ruling Granting the Homeowners’
             Motion to Dismiss Under the TCPA
      The Association asserts that the Homeowners’ motions to dismiss were
denied by operation of law when the trial court failed to sign a written order within
thirty days after the hearing on September 15, 2014. See Tex. Civ. Prac. & Rem.
Code §§ 27.005(a), 27.008(a). The Association argues that the judge’s purported
“ruling” in favor of the Homeowners, which stated that the ruling would not be
final for thirty days, was ineffective. The Association also argues that, even if the


                                           8
trial court effectively made an oral ruling, a written ruling is nevertheless required
under the reasoning of Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980)
(“When there is a time limit within which the court has jurisdiction to act, the order
must be in writing, specific, and signed by the trial judge.”).

      Generally, a judgment is rendered when the decision is officially announced
orally in open court or by written memorandum filed with the clerk. State v.
Naylor, 466 S.W.3d 783, 788 (Tex. 2015). In contrast, the formal entry of a signed
judgment is merely a ministerial act. Ex parte Olivares, 662 S.W.2d 594, 595 (Tex.
1983). Rendition of judgment is “the judicial act by which the court settles and
declares the decision of the law upon the matters at issue.” Comet Aluminum Co. v.
Dibrell, 450 S.W.2d 56, 58 (Tex. 1970). Likewise, “[a]n order pronounced in open
court is considered ‘rendered’ when it is officially announced and is valid from that
time, making formal entry only a ministerial act.” State Farm Ins. Co. v. Pults, 850
S.W.2d 691, 693 (Tex. App.—Corpus Christi 1993, no writ).

      “A trial court renders judgment orally when it announces rendition as a
present act and not as an intention to render judgment in the future.” See Naylor,
466 S.W.3d at 788 (internal quotations omitted). The words used by the trial court
must clearly indicate the intent to render judgment at the time the words are
expressed. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per
curiam). What the trial court believes to be the legal effect of its act is not
dispositive. Id. “The fact that the trial court believed that he had rendered judgment
during the May 14 hearing is not dispositive.”).

      At the September 15, 2014 hearing, the trial judge stated that she was “going
to grant the motions to dismiss” and refused to sign a written order at that time,
indicating that her ruling would not be final for thirty days. Importantly, her
comments that she “will be signing final orders in 30 days” but was “not going to

                                           9
sign anything in writing at this point” indicate the judge’s tentative intention to rule
in the Homeowners’ favor at some point in the future rather than a present
intention to render a ruling disposing of the issues at that time.

       Our conclusion is supported by the judge’s instructions to the parties, which
reflect that the judge was trying to give the parties time to work on resolving their
dispute before she signed a written ruling from which an accelerated appeal could
be taken. After the judge declined to sign a written ruling, a lengthy discussion
ensued between the judge and the parties’ attorneys concerning the steps they
should take to determine whether the community wanted the deed restrictions
amended and the requirements for obtaining sufficient signatures to satisfy the
Association that a majority of the Section 12 owners wanted to modify the deed
restrictions.

       Placing the trial judge’s statements in context, we conclude that her
purported oral ruling was ineffective because the judge’s statements reflect her
intent to rule on the Homeowners’ motions to dismiss at some point in the future
rather than to make a present rendition of judgment granting the Homeowners’
motion to dismiss the Association’s case on that day. See Leal, 892 S.W.2d at 858;
see also Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976) (trial judge’s statement
that he was required to grant a motion for new trial and “will grant it” unless the
parties resolved their differences was not a present rendition of judgment); James
v. Hubbard, 21 S.W.3d 558, 561–62 (Tex. App.—San Antonio 2000, no pet.)
(holding that judge’s statements that he was “going to grant” a divorce coupled
with a request that a final divorce decree be on his desk by Wednesday did not
indicate a present intent to render judgment, even if judge expressed in the written
judgment a belief that he had rendered judgment at the hearing). Compare Naylor,
466 S.W.3d at 788–89 (holding trial court rendered judgment after parties read

                                           10
terms of settlement into record, each party confirmed they were asking the court to
grant a divorce that day, and the judge announced that the “divorce is granted
pursuant to the agreement you have recited into the record”).

       Because the trial court’s oral statements were ineffective to constitute a
ruling, the motions to dismiss were denied by operation of law as the TCPA
requires when the trial court does not rule within the 30-day deadline. See Tex.
Civ. Prac. & Rem. Code § 27.008(a).3 Further, because the TCPA places a 30-day
limit on the trial court’s authority to grant dismissal, the court erred in signing the
untimely written orders granting dismissal after the 30-day deadline had expired.
See Direct Commercial Funding, Inc., 407 S.W.3d at 401–402 (explaining that the
TCPA contains no provision authorizing a trial court to sign an order granting a
motion to dismiss after the motion was overruled by operation of law).

       2.      The Association’s Motion to Dismiss its Appeal is Granted
       Having determined that the Homeowners’ motions to dismiss were overruled
by operation of law, we next consider the grounds raised in the Association’s
motion to dismiss its appeal. First, the Association suggests that neither section
27.008(a) of the TCPA nor section 51.014(a)(12) of the Texas Civil Practice and
Remedies Code authorizes the Association’s appeal. Second, the Association states
in the alternative that it wishes to withdraw its appeal if the motions to dismiss its
declaratory judgment action were overruled by operation of law. Given the
Association’s position that it does not wish to pursue its interlocutory appeal even
if authorized, we need not decide whether either section authorizes this appeal.



       3
          Because we hold that the trial court’s oral statements in this case were ineffective to
constitute a ruling, we do not reach the issue of whether the Act requires that a trial court’s ruling
be in writing to be effective.

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Because the Homeowners have not sought affirmative relief, we grant the
Association’s motion and dismiss this appeal. See Tex. R. App. P. 42.1(a)(1).

                                    Conclusion

      We hold that the trial court’s statements at the hearing on the Homeowners’
motions to dismiss the Association’s declaratory judgment action did not constitute
a ruling on the Homeowners’ motion to dismiss within the 30-day deadline
provided under section 27.005(a) of the TCPA. Consequently, the motions were
denied by operation of law under section 27.008(a) and the trial court’s written
orders signed after the expiration of the 30-day deadline were of no effect. We
therefore grant the Association’s motion to dismiss and dismiss this appeal.




                                      /s/     Ken Wise
                                              Justice

Panel consists of Justices Jamison, Busby and Wise.




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