DISMISS and Opinion Filed December 3, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00700-CV
CBS STATIONS GROUP OF TEXAS, LLC, Appellant V. CEDRIC BURNS, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-00669
MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Molberg Opinion by Chief Justice Burns CBS Stations Group of Texas, LLC (CBS) appeals from the alleged denial by
operation of law of its motion to dismiss pursuant to the Texas Citizens Participation
Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. Due to an
uncertainty as to whether CBS’s TCPA motion had, in fact, been denied by operation
of law, we questioned our jurisdiction over this appeal and instructed CBS to file a
letter brief addressing the jurisdictional issue with an opportunity for Burns to file a
response. After considering the record and CBS’s jurisdictional brief, we dismiss
for lack of jurisdiction. Background
Cedric Burns sued CBS for defamation and intentional infliction of emotional
distress over CBS’s broadcast of a false report that he was part of a gang that had
committed several bank robberies. CBS filed a TCPA motion to dismiss Burns’s
claims. The day prior to the scheduled hearing on the TCPA motion, Burns filed a
motion for continuance. At the hearing held on June 18, 2020, the trial court heard
both the motion for continuance and the TCPA motion. At the hearing, counsel for
Burns argued that he needed a continuance to obtain a doctor’s affidavit to support
his claim for intentional infliction of emotional distress. He asserted that, due to
Covid-19, the doctor could not get into her office to obtain what she needed to
prepare the affidavit and that the “global pandemic” had “affected the ability for us
to argue this case.” According to Burns, section 3(a) of the Supreme Court’s
seventeenth emergency order extended all civil deadlines. CBS disputed Burns’s
interpretation of the emergency order, arguing that the focus of the emergency order
was safety because it referred to not having to appear in court in order to avoid risks
to parties and court staff. At the conclusion of the hearing, the trial court and CBS’s
counsel stated as follows:
[The Court]: I’m going to have to research this whole Supreme Court issue and the Section 3(a), check with some colleagues.
If I grant the Motion for Continuance, then we’ll just have like an updated hearing. I’ll let you guys know one way or the other. Otherwise, if they say no, you really need to have proceeded, then I’ve got the arguments to make a ruling.
–2– [CBS’s Counsel]: Your Honor, just procedurally, if you do grant the Motion for Continuance, that gets you into a pretty sticky situation because you’ve started the hearing now, and so you have to rule within 30 days of this hearing.
[The Court]: Well, I can continue the hearing. If the Supreme Court says that I shouldn’t have gone through, that I should have granted their continuance, then it’s more like a do-over.
On June 26th, the trial court signed an order granting a continuance stating as
follows:
On June 18, 2020, came on to be heard and considered Plaintiff’s Motion for Continuance (the “Motion”), in the above-styled and numbered cause.
The parties appeared through their attorneys of record. After careful consideration of the Motion, the Defendant’s Response, and replies, if any, and considering the pleadings, supporting and opposing affidavits (if any), and the arguments presented, the Court finds that the Motion is well taken and should be, and hereby is, in all respects Granted.
It is, THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion for Continuance is granted, the record on the Motion to Dismiss remains open, and pursuant to the Texas Supreme Court’s Seventeenth Emergency Order, the deadline is extended to September 30, 2020.
CBS filed its notice of accelerated appeal on July 27th, stating its TCPA motion had
been denied by operation of law.
The Law
Section 3(a) of the Supreme Court’s Seventeenth Emergency Order Regarding
the Covid-19 State of Disaster provides:
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public— without a participant’s consent: –3– a. except as provided in paragraph (b) [relevant to proceedings under the family code], modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than September 30, 2020;
Misc. Docket No. 20-9071 (Tex. May 26, 2020), 83 Tex. B.J. 496, 496 available
at https://www.txcourts.gov/media/1446702/209071.pdf. Additionally, a trial court
may extend the hearing date on a motion to dismiss to allow limited discovery
relevant to the motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.004(c), 27.006(b). These provisions permit a trial court to recess the hearing
for the purpose of allowing discovery and to resume that hearing at any point within
120 days from the service of the motion to dismiss. See Jones v. Heslin, 587 S.W.3d
134, 136–37 (Tex. App.—Austin 2019, no pet.). An extension under these
circumstances would reset the thirty-day timeline for ruling on the motion in
accordance with the extended hearing date. See id. In this circumstance, the TCPA
motion is not denied by operation of law and remains pending. Id. at 137.
Discussion
In its letter brief, CBS explains that it was possible its TCPA motion was
denied by operation of law on July 18th. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 27.005(a), 27.008(a) (motion considered denied by operation of law if trial court
fails to rule on it within thirty days of hearing). The trial court conducted a hearing
on its TCPA motion and stated at the conclusion of the hearing that it had the
arguments needed to make a ruling. See Avila v. Larrea, 394 S.W.3d 646, 656 (Tex.
App.—Dallas 2012, pet. denied) (statute requires that the court rule on the motion –4– within thirty days of hearing and either dismiss the action or not). Additionally, CBS
notes the trial court’s June 26th order was vague as to what deadline was extended.
Because of these circumstances, CBS felt it had no choice but to file its notice of
interlocutory appeal.
The Supreme Court’s seventeenth emergency order, gave the trial court broad
discretion to suspend any and all deadlines, including those prescribed by statute.
Relying on another pandemic-related emergency order with a similar provision, this
Court held the trial court abused its discretion in denying an agreed motion for
continuance of discovery deadlines. See In re Rodriguez, No. 05-20-00523-CV,
2020 WL 2487061, at *2–3 (Tex. App.—Dallas May 13, 2020, orig. proceeding).
In Rodriguez, we recognized the “unique and serious circumstances created by the
COVID-19 pandemic require flexibility and adaptability in all aspects of our legal
system.” See id. at *2.
Conclusion
Pursuant to the emergency order, the trial court was within its discretion to
continue the hearing on CBS’s TCPA motion. Thus, CBS’s TCPA motion was not
denied by operation of law, but instead remained pending in the trial court when
CBS filed the notice of appeal.
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DISMISS and Opinion Filed December 3, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00700-CV
CBS STATIONS GROUP OF TEXAS, LLC, Appellant V. CEDRIC BURNS, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-00669
MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Molberg Opinion by Chief Justice Burns CBS Stations Group of Texas, LLC (CBS) appeals from the alleged denial by
operation of law of its motion to dismiss pursuant to the Texas Citizens Participation
Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. Due to an
uncertainty as to whether CBS’s TCPA motion had, in fact, been denied by operation
of law, we questioned our jurisdiction over this appeal and instructed CBS to file a
letter brief addressing the jurisdictional issue with an opportunity for Burns to file a
response. After considering the record and CBS’s jurisdictional brief, we dismiss
for lack of jurisdiction. Background
Cedric Burns sued CBS for defamation and intentional infliction of emotional
distress over CBS’s broadcast of a false report that he was part of a gang that had
committed several bank robberies. CBS filed a TCPA motion to dismiss Burns’s
claims. The day prior to the scheduled hearing on the TCPA motion, Burns filed a
motion for continuance. At the hearing held on June 18, 2020, the trial court heard
both the motion for continuance and the TCPA motion. At the hearing, counsel for
Burns argued that he needed a continuance to obtain a doctor’s affidavit to support
his claim for intentional infliction of emotional distress. He asserted that, due to
Covid-19, the doctor could not get into her office to obtain what she needed to
prepare the affidavit and that the “global pandemic” had “affected the ability for us
to argue this case.” According to Burns, section 3(a) of the Supreme Court’s
seventeenth emergency order extended all civil deadlines. CBS disputed Burns’s
interpretation of the emergency order, arguing that the focus of the emergency order
was safety because it referred to not having to appear in court in order to avoid risks
to parties and court staff. At the conclusion of the hearing, the trial court and CBS’s
counsel stated as follows:
[The Court]: I’m going to have to research this whole Supreme Court issue and the Section 3(a), check with some colleagues.
If I grant the Motion for Continuance, then we’ll just have like an updated hearing. I’ll let you guys know one way or the other. Otherwise, if they say no, you really need to have proceeded, then I’ve got the arguments to make a ruling.
–2– [CBS’s Counsel]: Your Honor, just procedurally, if you do grant the Motion for Continuance, that gets you into a pretty sticky situation because you’ve started the hearing now, and so you have to rule within 30 days of this hearing.
[The Court]: Well, I can continue the hearing. If the Supreme Court says that I shouldn’t have gone through, that I should have granted their continuance, then it’s more like a do-over.
On June 26th, the trial court signed an order granting a continuance stating as
follows:
On June 18, 2020, came on to be heard and considered Plaintiff’s Motion for Continuance (the “Motion”), in the above-styled and numbered cause.
The parties appeared through their attorneys of record. After careful consideration of the Motion, the Defendant’s Response, and replies, if any, and considering the pleadings, supporting and opposing affidavits (if any), and the arguments presented, the Court finds that the Motion is well taken and should be, and hereby is, in all respects Granted.
It is, THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion for Continuance is granted, the record on the Motion to Dismiss remains open, and pursuant to the Texas Supreme Court’s Seventeenth Emergency Order, the deadline is extended to September 30, 2020.
CBS filed its notice of accelerated appeal on July 27th, stating its TCPA motion had
been denied by operation of law.
The Law
Section 3(a) of the Supreme Court’s Seventeenth Emergency Order Regarding
the Covid-19 State of Disaster provides:
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public— without a participant’s consent: –3– a. except as provided in paragraph (b) [relevant to proceedings under the family code], modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than September 30, 2020;
Misc. Docket No. 20-9071 (Tex. May 26, 2020), 83 Tex. B.J. 496, 496 available
at https://www.txcourts.gov/media/1446702/209071.pdf. Additionally, a trial court
may extend the hearing date on a motion to dismiss to allow limited discovery
relevant to the motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.004(c), 27.006(b). These provisions permit a trial court to recess the hearing
for the purpose of allowing discovery and to resume that hearing at any point within
120 days from the service of the motion to dismiss. See Jones v. Heslin, 587 S.W.3d
134, 136–37 (Tex. App.—Austin 2019, no pet.). An extension under these
circumstances would reset the thirty-day timeline for ruling on the motion in
accordance with the extended hearing date. See id. In this circumstance, the TCPA
motion is not denied by operation of law and remains pending. Id. at 137.
Discussion
In its letter brief, CBS explains that it was possible its TCPA motion was
denied by operation of law on July 18th. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 27.005(a), 27.008(a) (motion considered denied by operation of law if trial court
fails to rule on it within thirty days of hearing). The trial court conducted a hearing
on its TCPA motion and stated at the conclusion of the hearing that it had the
arguments needed to make a ruling. See Avila v. Larrea, 394 S.W.3d 646, 656 (Tex.
App.—Dallas 2012, pet. denied) (statute requires that the court rule on the motion –4– within thirty days of hearing and either dismiss the action or not). Additionally, CBS
notes the trial court’s June 26th order was vague as to what deadline was extended.
Because of these circumstances, CBS felt it had no choice but to file its notice of
interlocutory appeal.
The Supreme Court’s seventeenth emergency order, gave the trial court broad
discretion to suspend any and all deadlines, including those prescribed by statute.
Relying on another pandemic-related emergency order with a similar provision, this
Court held the trial court abused its discretion in denying an agreed motion for
continuance of discovery deadlines. See In re Rodriguez, No. 05-20-00523-CV,
2020 WL 2487061, at *2–3 (Tex. App.—Dallas May 13, 2020, orig. proceeding).
In Rodriguez, we recognized the “unique and serious circumstances created by the
COVID-19 pandemic require flexibility and adaptability in all aspects of our legal
system.” See id. at *2.
Conclusion
Pursuant to the emergency order, the trial court was within its discretion to
continue the hearing on CBS’s TCPA motion. Thus, CBS’s TCPA motion was not
denied by operation of law, but instead remained pending in the trial court when
CBS filed the notice of appeal. The notice of appeal automatically stayed all trial
court proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b). Because
the TCPA motion remains pending in the trial court, there is no order that can support
an interlocutory appeal, and we must dismiss this appeal. See id. § 51.014(a)(12)
–5– (allowing interlocutory appeal from a denial of a motion to dismiss under the
TCPA); see also Jones, 587 S.W.3d at 137.
Accordingly, we dismiss this appeal for want of jurisdiction. The thirty-day
timeline for ruling on CBS’s TCPA motion runs from the date of this opinion. Jones,
587 S.W.3d at 136.
/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE
200700F.P05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CBS STATIONS GROUP OF On Appeal from the 101st Judicial TEXAS, LLC, Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-20-00669. No. 05-20-00700-CV V. Opinion delivered by Chief Justice Burns. Justices Whitehill and CEDRIC BURNS, Appellee Molberg participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee CEDRIC BURNS recover his costs of this appeal from appellant CBS STATIONS GROUP OF TEXAS, LLC.
Judgment entered December 3, 2020
–7–