FAILURE TO SECURE A HEARING DEPRIVES DEFENDANT OF ANTI-SLAPP PROTECTIONS AND INTERLOCUTORY APPEAL

Braun v. Gordon
Braun v. Haley
Dallas Court of Appeals, Nos. 05-17-00176-CV and 05-17-00086-CV (September 26, 2017)
Justices Francis (Haley Opinion, here), Myers (Gordon Opinion, here), and Whitehill

Ken Carroll

Under this state’s anti-SLAPP statute, the Texas Citizens Participation Act, a hearing on a motion to dismiss ordinarily “must be set not later than the 60th day after the date of service of the motion …, but in no event shall the hearing occur more than 90 days after service of the motion” (unless the court allows discovery on the motion, which can push the hearing deadline to 120 days). TEX. CIV. PRAC. & REM. CODE § 27.004. The trial court then must rule on the motion “not later than the 30th day following the date of the hearing.” Id. § 27.005(a). If it doesn’t, “the motion is considered to have been denied by operation of law and the moving party may appeal.” Id. § 27.008(a). But, what happens when no hearing occurs within the time prescribed by statute? Nothing good for the movant, says the Dallas Court of Appeals in two related opinions.

In Gordon and Haley, Braun timely filed motions to dismiss under the TCPA. But she did not get a hearing set within the statutory deadline in either case. Nevertheless, shortly after 120 days had elapsed since the filing of her motion in each case—the 120 days apparently comprising the passing of both the 90-day hearing deadline of § 27.004 and the 30-day deadline for a ruling in §§ 27.005(a) and 27.008(a)—Braun filed a notice of appeal, arguing her motion had been denied by operation of law. But the Dallas Court of Appeals disagreed and dismissed both appeals for want of jurisdiction, citing the absence of an appealable order. The Court explained that denial by operation of law under § 27.008(a), and the corollary right of appeal, are expressly predicated on the lapse of time after a hearing on the motion. No hearing, no denial by operation of law, and therefore no appeal, said the Court.

Braun argued that would lead to absurd results in two respects. First, she said, it would allow a trial court to effectively deny a motion to dismiss without actually ruling and therefore without appeal—creating a giant loophole in the statute. But the Court of Appeals reminded her that the burden rests on the movant to obtain a hearing. Failure to do that, like failure to timely file a motion in the first place, forfeits the movant’s right to the statute’s protections, including the right of interlocutory appeal. Braun protested that she had tried to get hearings set within the statutory deadline, but that the trial court would not accommodate her requests. The appeals court, however, found nothing in the record to reflect her purported attempts to obtain a hearing or the trial court’s lack of cooperation. So, those allegations could not be considered on appeal. The Court did not say whether the outcome might have been different if the record on appeal had confirmed that Braun did seek a timely hearing, and that the trial court ignored or denied such requests. It did note, but expressly reserved for another day, the question whether a movant could seek mandamus to compel a timely hearing if a trial court refused to set one.

Second, Braun argued the Court’s ruling left the parties in limbo in the trial court. Under the TCPA, the filing of a motion to dismiss suspends discovery. If there is no denial by operation of law in these circumstances, does that mean the parties and the case are simply frozen in place? No, said the Court. The better reading of the statute, again, is that the movant’s failure to carry his or her burden to obtain a timely hearing forfeits the statutory stay of discovery, just like all other statutory protections.