Affirmed and Opinion Filed July 2, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00676-CV

                              RUTH TORRES, Appellant
                                        V.
                        PURSUIT OF EXCELLENCE, INC., Appellee

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-16-08711

                             MEMORANDUM OPINION
                          Before Justices Myers, Osborne, and Nowell
                                   Opinion by Justice Myers
       Appellant Ruth Torres files this interlocutory appeal of the trial court’s denial of her motion

to dismiss under the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 27.008, 51.014(a)(12). Torres brings six issues on appeal, four concerning the motion’s

untimeliness, one addressing its merits, and one questioning whether an automatic stay was in

place at the time the motion was denied. We affirm the trial court’s denial of Torres’s motion to

dismiss.

                                             BACKGROUND

       The underlying dispute in this case concerns a contract in which Torres was to provide

human resources consulting services to appellee, Pursuit of Excellence (POE). Due to the nature

of the agreement, Torres received access to a broad range of POE’s confidential and proprietary
information. Appellee alleged Torres prematurely terminated her contract with the company and

transmitted POE’s confidential and proprietary information to her personal electronic storage

device. On July 20, 2016, POE filed suit against Torres for breach of contract, breach of fiduciary

duty, misappropriation of trade secrets, unjust enrichment, tortious interference with contract and

business relationships, and commercial disparagement. Torres filed an answer, denying allegations

and asserting claims against POE and other parties. On February 7, 2018 POE filed its first

amended petition, containing no new causes of action. POE filed a second amended petition adding

violations of the Texas Finance Code and the Texas Harmful Access by Computer Act on March

14, 2018.

         On May 15, 2018 Torres filed a motion to dismiss POE’s claims against her pursuant to

the TCPA. POE filed a response, objecting that the motion was untimely because it was filed over

two years after the inception of all claims except two, and sixty-two days after those claims, and

also objecting that Torres failed to meet her burden of proof under the TCPA. Torres responded,

seeking leave to file her motion on the basis that she was “pro se and was unaware of this statute.”

The trial court held a hearing on Torres’s motion to dismiss, and the court denied that motion on

June 6, 2018. The next day, Torres filed a notice of appeal challenging the order denying her

motion to dismiss, among other orders.1

                                     TEXAS CITIZENS PARTICIPATION ACT

         We review a trial court’s denial of a TCPA motion to dismiss de novo. Dyer v. Medoc

Health Servs., LLC, No. 05-18-00472-CV, 2019 WL 1090733, at *3 (Tex. App.—Dallas Mar. 8,

2019, pet filed). A party triggers the TCPA's dismissal procedure by filing a motion to



         1
          We ordered Torres to file a brief in this case limited to the trial court’s denial of Torres’s motion to dismiss
under the TCPA. We determined that we lack jurisdiction over numerous other orders listed in Torres’s notice of
appeal, and that review of the trial court’s order on DFW Airport’s jurisdictional plea would proceed under a separate
case number.

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dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). A motion to dismiss must be filed

not later than the 60th day after the date of service of the legal action. Id. § 27.003(b). If the motion

is not filed within the statutory deadline, the movant forfeits the early-dismissal protections of the

statute. See, e.g., Braun v. Gordon, No. 05-17-00176, 2017 WL 4250235, at *1, 3 (Tex. App.—

Dallas Sept. 26, 2017, no pet.) (mem. op.). But, the trial court may extend the time to file a motion

on a showing of good cause. TEX. CIV. PRAC. & REM. CODE ANN § 27.003(b).

                                                 ANALYSIS

        I.      Torres’s Motion Was Untimely

        Torres’s first four issues concern the timeliness of her TCPA motion to dismiss. First,

Torres asks whether the petitions and pleadings of the parties are sufficient to support dismissal

under the TCPA without Torres explicitly invoking the Act. Both parties agree that Torres did not

mention the TCPA in anything she filed prior to May 15. Relief under the TCPA requires the filing

of a motion to dismiss under the Act. See TEX. CIV. PRAC. & REM. CODE § 27.003(a), (b). Until

Torres filed her motion to dismiss under the Act, the trial court had no motion before it on which

it was empowered to rule in accordance with the TCPA. The Act empowers the court to rule on a

motion pending before it; it does not empower the court to apply the TCPA sua sponte. TEX. CIV.

PRAC. & REM. CODE § 27.005. The trial court could not have granted this relief without a pending

motion. See TEX. CIV. PRAC. & REM. CODE § 27.003(c). We decide against Torres on this issue.

        In her second issue, Torres asks whether her TCPA Motion to Dismiss was “considered

filed timely if one day late due to technical difficulty per [TEX. R. CIV. P. 21(f)(6)].” Torres filed

her motion to dismiss on May 15, 2018. The parties do not dispute that this was more than sixty

days after she was served with the second amended petition. See TEX. CIV. PRAC. & REM. CODE

ANN § 27.003(b). In defense of her late filing, Torres argues to this Court that she was unable to

file timely due to a “technical difficulty” in the e-filing system. In the trial court, however, she

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justified her untimeliness with different explanations, arguing first that “the record did not show

service of the citation” for POE’s amended February 7, 2018 pleading; second, that the record did

not show “service of the citation for POE’s March 14, 2018 pleading”; and third, that she “is pro

se and unaware [of the TCPA].”

       Under Texas law, POE’s certificates of service for both pleadings create a presumption of

service because they constitute prima facie evidence of service. Mathis v. Lockwood, 166 S.W.3d

743, 745 (Tex. 2005). The record shows that Torres was served with both of POE’s amended

pleadings. Torres did not argue or attempt to rebut such a presumption. Also, she provided no

evidence at trial to support her claim of technical difficulty. Because she provided no evidence of

her alleged technical difficulty in the trial court, there is no evidence for us to review here. Torres

did not meet the statutory deadline. We overrule Torres’s second issue.

       In Torres’s third issue, she asks whether POE’s First Amended Original Petition “restart[s]

the count for purposes of the TCPA.” At the time Torres filed her TCPA Motion to Dismiss, POE

had filed a Second Amended Original Petition, which the trial court reviewed under the TCPA.

The record shows Torres was served with the Second Amended Original Petition on March 14,

2018. Torres filed her motion to dismiss under the TCPA on May 15, 2018, which is more than

sixty days later. We need not address whether the clock was “restarted” by the February 7 filing

and service, because even if it was, Torres’s TCPA motion to dismiss would have been filed more

than sixty days after she was served with the Second Amended original petition, making her motion

untimely. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b).

       Torres’s fourth issue contending her TCPA motion was timely is that it was filed within

sixty days after service of other motions by POE, making it timely as to those motions. However,

Torres moved only to dismiss POE’s pleaded causes of action in her motion; she did not move to

dismiss any legal actions by POE filed within the sixty-day period. Because she did not move to

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dismiss any of POE’s interim motions, we need not determine whether any of POE’s interim

motions constitute “legal actions” within the TCPA’s statutory definition of that term. See TEX.

CIV. PRAC. & REM. CODE §27.001(6). We overrule Torres’s fourth issue.

       II.      Torres’s Untimely Motion Makes It Unnecessary to Address the Merits of Her

                Remaining Arguments

       Torres raises two additional issues before this Court. In her fifth issue, she asks this Court

to address the motion on its merits. In light of our conclusion that the motion was untimely, we

need not examine its merits. See Braun v. Gordon, No. 05-17-00176, 2017 WL 4250235, at *1, 3

(Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem. op.). In her sixth issue, Torres asks whether

there was an automatic stay under section 51.014(b) at the time the motion to dismiss was denied.

Because the motion was untimely, we need not examine the possible existence of a stay. See id.

(concluding that the movant's failure to have the case set for a timely hearing results in the movant

forfeiting the TCPA's protections, and the case should continue as if the motion to dismiss was

never filed).

                                              CONCLUSION

       We affirm the trial court’s denial of the motion to dismiss.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE


180676F.P05




                                                –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 RUTH TORRES, Appellant                              On Appeal from the 44th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-18-00676-CV          V.                      Trial Court Cause No. DC-16-08711.
                                                     Opinion delivered by Justice Myers.
 PURSUIT OF EXCELLENCE, INC.,                        Justices Osborne and Nowell participating.
 Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 2nd day of July, 2019.




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