                            NUMBER 13-18-00526-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

DEMPSIE CLINTON AND
VICTORIA CLINTON,                                                          Appellants,

                                           v.

LEOBARDO ARAGUZ,                                                              Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
          Memorandum Opinion by Chief Justice Contreras

      This case concerns a motion to dismiss brought under the Texas Citizens

Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. ch. 27. Appellants

Dempsie Clinton and Victoria Clinton argue by a single issue that the trial court erred in

failing to grant their motion to dismiss a suit filed by appellee Leobardo Araguz. The
Clintons contend that Araguz’s suit is “based entirely on their privileged communications

with their bank and law enforcement” and that Araguz failed to produce clear and specific

evidence to support his claims. See id. § 27.003.

        In response, Araguz argues in part that we lack jurisdiction over the appeal

because the trial court did not rule on the Clintons’ motion to dismiss. Because we agree,

we will dismiss the appeal for want of jurisdiction.

                                            I. BACKGROUND

        Araguz alleged that the Clintons had entered into a construction agreement with

his firm, Araguz Construction, LLC, in 2016, and that as part of the project, he endorsed

a $18,788 check issued by Texas National Bank which was made payable to both him

and the Clintons. According to Araguz, the Clintons complained to Texas National Bank

about the endorsement and they filed a report with the Harlingen Police Department

alleging that their signatures were forged. Araguz states that he was arrested on May 27,

2017, but that after further investigation, the Cameron County District Attorney dismissed

the charges against him. 1 On May 24, 2018, he sued the Clintons, the City of Harlingen,

the Harlingen Police Department, and Scott Vega, a police department employee,

alleging defamation and malicious prosecution, among other claims. 2

        The Clintons filed a combined answer and motion to dismiss under the TCPA on

June 27, 2018. See id. That day, the trial court ordered that a hearing on the motion to

dismiss would take place on August 9, 2018 at 8:30 a.m. The day before the scheduled



         1 According to the Clintons, a grand jury returned an indictment against Araguz for forgery of a

financial instrument, but Araguz “managed to get the prosecutors to dismiss the indictment.”
        2  The non-Clinton defendants did not file a TCPA motion to dismiss but instead filed a plea to the
jurisdiction. The record does not contain a ruling on the plea. These defendants are not parties to this
appeal.

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hearing, the Clintons submitted various pieces of evidence in support of their motion. No

response to the TCPA motion to dismiss appears in the record.

       The August 9 hearing proceeded before an associate judge. The record of the

hearing is, in its entirety, as follows:

       COURT COORDINATOR:                  [The Clintons’ counsel is] in the courtroom.
                                           He has been waiting for [Araguz’s counsel].
                                           He has a motion to dismiss.

       [Clintons’ counsel]:                Good morning, Your Honor.

       THE COURT:                          2018-DCL-3174,           defendant’s   motion   to
                                           dismiss.

       [Clintons’ counsel]:                Yes, Your Honor. I have not spoken or seen
                                           [Araguz’s counsel]. I did send him an email
                                           this morning, letting him know that I was here
                                           waiting for him, and I have not heard back.

       THE COURT:                          Do you have his cellphone number?

       [Clintons’ counsel]:                I do not.

       THE COURT:                          [Court coordinator], what do you have?

       [Clintons’ counsel]:                I would prefer that he was here since it is a
                                           motion to dismiss.

       THE COURT:                          Well, what’s going to happen is—the same
                                           thing is going to happen. We’re going to end
                                           up with—

       [Clintons’ counsel]:                May I make a suggestion to the Court?

       THE COURT:                          I’ll probably take it.

       [Clintons’ counsel]:                Okay. This is a motion under the TCPA, the
                                           Texas Citizens Participation Act.

       THE COURT:                          Yes. I’m very familiar with that.

       [Clintons’ counsel]:                And because of the rules, the Court had to set
                                           it for a hearing within 30 days of the date that
                                           the motion was filed, and I know that the
                                           Court is required to enter a ruling within—I’m

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                       not sure if it’s 30 or 60 days—

THE COURT:             I want to say it’s—

[Clintons’ counsel]:   —from the date of the hearing.

THE COURT:             I want to say it’s another 30.

[Clintons’ counsel]:   I’m not sure which it is. I filed evidence
                       yesterday. [Araguz’s counsel] has never
                       responded to the motion, and I’m sure that if
                       he were here he would probably ask the
                       Court for time so that he could file a response
                       to the evidence that I filed yesterday.

                       The other reason that I had delayed is he’s
                       included the City of Harlingen and a detective
                       as defendants. They apparently have not
                       been served. I spoke with Mr. Navarro, who
                       is the city attorney for the City of Harlingen,
                       and he advised me that as soon as he got
                       served they would probably move it to
                       Federal Court, which is why I had delayed in
                       submitting my evidence because I assumed
                       that we would probably be in Federal Court
                       by now. I have submitted evidence—

THE COURT:             I see it.

[Clintons’ counsel]:   I have submitted some evidence to the Court.
                       I do have a recent Texas Supreme Court
                       case that I believe is on point that I can hand
                       to the Court.

THE COURT:             If you’ll hand that to me, I’ll put it in the file.

[Clintons’ counsel]:   Yeah. And then what we can do is maybe let
                       [Araguz’s counsel] know that—

THE COURT:             Here’s how we’re going to do it.

[Clintons’ counsel]:   —that he can respond or something.

THE COURT:             Here’s how we’re going to do it. Give me
                       about two weeks.

COURT COORDINATOR:     August 23rd?


                               4
THE COURT:             Let’s do it this way. When’s your next drop
                       docket?

COURT COORDINATOR:     Judge does them every 30 days, Judge. So
                       the next one would be September 27th.

THE COURT:             This case will be reset for September 27th,
                       given that [Araguz’s counsel] has not
                       appeared. We’re going to send you a drop
                       docket notice just like we did the other case
                       before.

[Clintons’ counsel]:   Okay.

THE COURT:             On that date, if he doesn’t appear, then I’m
                       just going to dismiss it for failure—want of
                       prosecution.

[Clintons’ counsel]:   All right.

THE COURT:             But then if he does appear, then we will hear
                       the motion and see where it goes and I’ll put
                       this in the file.

[Clintons’ counsel]:   Okay. And then I guess if he ends up serving
                       the City, we’ll end up—

THE COURT:             If y’all are going to remove it, I won’t have to
                       worry about it, but the other thing is, I’ll put—
                       I’m going to put it on you to make sure that
                       you email or send him the notice certified
                       mail.

[Clintons’ counsel]:   Okay.

THE COURT:             And I want documentation when we come to
                       court so I can say, you know what, he knew.

[Clintons’ counsel]:   What I will do, Your Honor, is I’ll check the
                       rule because I’m not sure that—I want to
                       make sure that the Court does everything in
                       accordance with the rule.

THE COURT:             Right, and I don’t remember the—

[Clintons’ counsel]:   I don’t recall if it’s 30 or 60 days, but whatever
                       it is, what I’ll do is prepare a letter to the Court
                       and copy [Araguz’s counsel] on it.

                               5
        THE COURT:                           And make sure he gets the order—the drop
                                             docket order—the drop docket order for the
                                             27th. You’ll get it. I want to make sure he gets
                                             it.

        [Clintons’ counsel]:                 We’ll do that, Your Honor.

        THE COURT:                           Thank you, [Clintons’ counsel]. Have a
                                             wonderful day.

        The record shows that a “Drop Docket Notice” was sent to both parties’ attorneys,

commanding them to appear at 8:00 a.m. on September 27, 2018, to “show cause why

this matter should not be dismissed for want of prosecution.” However, before that hearing

could take place, the Clintons filed a notice of interlocutory appeal on September 18,

2018, contending that their TCPA motion to dismiss was denied by operation of law, and

was therefore appealable, because the trial court failed to rule on the motion within thirty

days of August 9. See id. § 51.014(a)(12) (permitting interlocutory appeal of order that

denies a TCPA motion to dismiss). As a result of the Clintons’ notice of appeal, all trial

court proceedings were automatically stayed. See id. § 51.014(b) (providing that an

appeal under § 51.014(a)(12) stays commencement of a trial and “all other proceedings

in the trial court pending resolution of that appeal”). 3

                                             II. JURISDICTION

        In his brief on appeal, Araguz argues that we lack jurisdiction because the trial

court did not explicitly or implicitly deny the Clintons’ TCPA motion. See id.

§ 51.014(a)(12) (permitting interlocutory appeal of order that “denies a motion to dismiss

filed under [§] 27.003”).



        3 On September 19, 2018, the City of Harlingen removed the underlying suit to federal district court.
We therefore abated the appeal on October 12, 2018. The federal court remanded the case back to state
court on June 11, 2019, and we reinstated the appeal on July 22, 2019.

                                                     6
        Under the applicable version of the TCPA, a party may move to dismiss a lawsuit

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.” Act of May 21, 2011, 82nd Leg., R.S.,

ch. 341, § 2, 2011 Tex. Gen. Laws 961 (current version at TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(a)). 4 Such a motion must be filed not later than the sixtieth day after the

date of service of the suit. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b). A hearing on

the motion must be set not later than the sixtieth day after the date of the service of the

motion “unless the docket conditions of the court require a later hearing, upon a showing

of good cause, or by agreement of the parties, but in no event shall the hearing occur

more than 90 days after service of the motion,” unless the court allows discovery on the

TCPA motion. Id. § 27.004(a). “The court must rule on a motion under [§] 27.003 not later

than the 30th 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 961 (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 27.005(a)). If the court does not rule on a TCPA motion to

dismiss within that time, the motion is considered denied by operation of law. TEX. CIV.

PRAC. & REM. CODE ANN. § 27.008(a).

        The record contains no written or oral ruling on the Clintons’ TCPA motion. Thus,

the jurisdictional question presented to us is whether the trial court failed to rule within the

time prescribed under TCPA § 27.005. See id. § 27.005. The Clintons argue that the trial

court did so fail because it did not rule on their motion within thirty days after the August

9, 2018 hearing. On the other hand, Araguz argues that “the court did not hear the matter”


        4 The Texas Legislature recently amended the TCPA, but the amendments apply only to “an action
filed on or after” September 1, 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess.
Law Serv. 684, 687. Because Araguz’s lawsuit was filed before that date, the prior version of the statute
applies here. See id. We cite the prior version where it materially differs from the current version.

                                                    7
of TCPA dismissal at the August 9, 2018 hearing “but instead reset the hearing to

September 27th, 2018, and provided [Araguz] with an opportunity to file a response.”

Therefore, according to Araguz, the motion is still pending and should not be considered

denied as an operation of law.

       Araguz cites Cuba v. Pylant and Puig v. Hejtmancik to support his position. In

Cuba, there was no hearing held on the defendants’ TCPA motion to dismiss; therefore,

the motion could not have been overruled by operation of law. 814 F.3d 701, 710 (5th Cir.

2016) (noting that the TCPA “has no language contemplating a denial by operation of law

if there has been no hearing”). In Puig, the defendants served notice of a May 1, 2017

hearing on their TCPA motion, but no hearing occurred on that date. No. 14-17-00358-

CV, 2017 WL 5472781, at *2 (Tex. App.—Houston [14th Dist.] Nov. 14, 2017, no pet.)

(mem. op.). On appeal, the defendants argued that the trial court actually heard their

motion to dismiss at a different hearing on May 27, 2017, during which the court also

considered a petition for pre-suit depositions. Id. The appeals court rejected that

argument, noting that the plaintiff disputed that the motion to dismiss was heard on May

27; that there was no reporter’s record of the May 27 hearing; that “no party filed a formal

bill of exception in the trial court as an alternative means of showing that the trial court

conducted a hearing on the motion to dismiss” on May 27 or at any other time; that the

clerk’s record does not show that the motion to dismiss was set for hearing on May 27;

and that the record does not show the plaintiff agreed to proceed with a hearing on the

motion to dismiss while waiving the notice requirement. Id. Because there was no hearing,

the motion was not overruled by operation of law, and the appeals court lacked jurisdiction

over the interlocutory appeal. Id.



                                             8
        Cuba and Puig are not directly analogous to this case, but they are instructive.

Here, there is no dispute that a hearing on the Clintons’ TCPA motion to dismiss was

properly noticed for August 9, 2018, nor is there a dispute that some sort of hearing in

fact occurred on that date. However, unlike in Puig, we have the benefit of a reporter’s

record from the hearing. And the transcript of the hearing clearly reflects that the merits

of the TCPA motion to dismiss were never discussed. Instead, the Clintons’ counsel

suggested that, if Araguz’s counsel had appeared, he would ask for additional time to

respond to the evidence which the Clintons had filed the previous day. The trial court

apparently agreed with this suggestion and stated the “case will be reset” for September

27. The court stated that, if Araguz’s counsel failed to appear on September 27, the cause

would be dismissed for want of prosecution, but if Araguz’s counsel did appear on that

date, “then we will hear the motion and see where it goes . . . .” The record establishes

that the trial court intended to postpone the hearing on the TCPA motion so that Araguz’s

counsel could have an opportunity to respond to the newly-filed evidence. 5 On this record,

we cannot conclude that August 9, 2018 constituted “the date of the hearing on the

[TCPA] motion” so as to trigger the trial court’s obligation to rule within thirty days. See

Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 27.005(a), 2011 Tex. Gen. Laws

961 (“The court must rule on a motion under [§] 27.003 not later than the 30th day

following the date of the hearing on the motion.”). 6


        5 No response appears in the record. Araguz contends that is because of the removal to federal

court. On appeal, he notes that he “did file a response to the motion to dismiss [in federal court] once the
Clintons requested the Federal Court to consider their motion to dismiss.” Araguz attached a copy of this
response to his brief. The response urges that his suit should not be dismissed under Federal Rule of Civil
Procedure 12(b)(6); it does not explicitly address the Clintons’ TCPA motion. In any event, we may not
consider materials not in the trial court record. See Gonzalez v. Villarreal, 251 S.W.3d 763, 777 (Tex. App.—
Corpus Christi–Edinburg 2008, pet. dism’d) (“An appellate court cannot consider documents cited in a brief
and attached as appendices if they are not formally included in the record on appeal.”).
        6   We observe that the newly-amended version of the statute requires the court to rule on a TCPA

                                                     9
        In their reply brief, the Clintons argue that the trial court could not have permissibly

continued the TCPA hearing until September 27, 2018 because that is more than ninety

days after the motion was served. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(a)

(stating that “in no event shall the hearing occur more than 90 days after service of the

motion” unless discovery is ordered). That may be true, but it does not change the fact

that, according to the transcript of the August 9, 2018 hearing, the TCPA motion was not

heard on that date. And under the statute, denial by operation of law may only occur when

there has been a hearing. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a); Cuba, 814

F.3d at 710.

        It must be emphasized that a party may not avoid a deemed denial of a TCPA

motion to dismiss by simply failing to appear at the duly-noticed hearing, as Araguz’s

counsel did on August 9, 2018. But, by the same token, a TCPA movant may not ambush

the other party with evidence the day before the hearing and expect that hearing to trigger

the trial court’s obligation to rule within thirty days. Here, the record plainly shows that the

trial court intended to postpone consideration of the merits of the TCPA motion to give

Araguz a chance to respond to the Clintons’ evidentiary submission. Under these

circumstances, where the record has not been sufficiently developed and the trial court

never had the opportunity to consider the TCPA motion on its merits, we conclude that

there has been no denial by operation of law.




motion “not later than the 30th day following the date the hearing on the motion concludes.” TEX. CIV. PRAC.
& REM. CODE ANN. § 27.005(a) (emphasis added). If this version of the statute applied here, the result would
be the same because it is undisputed that, even if a hearing on the TCPA motion occurred on August 9,
2018, that hearing was never “concluded.”

                                                    10
                                    III. CONCLUSION

      The appeal is dismissed for want of jurisdiction.

                                                          DORI CONTRERAS
                                                          Chief Justice

Delivered and filed the
7th day of November, 2019.




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