Eric Lynn Baumgart v. Phillip Douglas Archer, KPRC-TV Channel 2, Graham Media Group, Houston, Inc., Graham Media Group, Graham Holdings Company

• Court: Court of Appeals of Texas
• Decided: May 25, 2018
• Docket: 01-18-00298-CV
• Status: Published

Opinion

ACCEPTED 01-18-00298-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/25/2018 3:10 PM CHRISTOPHER PRINE CLERK

NO. 01-18-00298-CV _____________________________________ FILED IN IN THE COURT OF APPEALS OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT 5/25/2018 3:10:26 PM _____________________________________ CHRISTOPHER A. PRINE Clerk ERIC LYNN BAUMGART APPELLANT

VERSUS

PHILLIP DOUGLAS ARCHER; KPRC-TV CHANNEL 2; GRAHAM MEDIA GROUP, HOUSTON, INC.; GRAHAM MEDIA GROUP; GRAHAM HOLDINGS COMPANY APPELLEES * * * ON INTERLOCUTORY APPEAL FROM THE 157TH DISTRICT OF TEXAS-HARRIS COUNTY CAUSE NUMBER 2017-83349 _____________________________________

APPELLANT’S STATEMENT OF JURISDICTION _____________________________________

Eric L. Baumgart Appellant pro se PO Box 613 Nome, Texas 77629 (409) 338-1661 Telephone eric.baumgart @texasinvestigations.us TO THE HONORABLE COURT OF APPEALS OF TEXAS:

INTO COURT COMES, the appellant ERIC LYNN BAUMGART, pro se,

who files this statement of jurisdiction and in support thereof would respectfully

show the court as follows:

PREDICATE BACKGROUND

On May 17th, 2018 the court of appeals required the appellant to show

authority that the appellate court has jurisdiction in this case. The appellant was

given ten days to show this authority or face dismissal.

INTERLOCUTORY JURISDICTION

In the clerk notice, the authority cited for grounds of a threatened dismissal

was the exact same authority that affirms the jurisdiction of this appellate court;

namely, CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011).

Mandamus Relief

The appellant’s interlocutory appeal is a mandamus action. The appellant

declared this to the appellate court on May 5th, 2018 in two separate filings. In

CMH Homes the Supreme Court held that the court of appeals erred in dismissing

an interlocutory mandamus action for want of jurisdiction. CMH Homes, 340

S.W.3d at 446 and 453-454. This precedent was recognized in March 2016 by the

-2- Fourteenth Court of Appeals of Texas. Sintim v. Larson, 489 S.W.3d 551, 556

(Tex.App.-Houston [14th Dist.] 2016, no pet.) (affirming that mandamus relief

must be expressly requested in order to invoke appellate court jurisdiction on an

interlocutory appeal); see also, In re Estate of Aguilar, 435 S.W.3d 831, 833-834

(Tex.App.-San Antonio 2014, no pet.).

Abuse of Discretion

The trial court summarily dismissed the appellant’s case without giving a

reason and without allowing the appellant to conduct discovery to develop critical

evidence prior to dismissal. More importantly, the trial court ignored section

27.010(b) of the Texas Civil Practice and Remedies Code which excluded the

appellees from protection under the Texas Anti-SLAPP law.

The appellees engage in the for-profit sale of advertising services and the

defamation committed by them was done in the course of providing these services.

This fact was not only in the record, but it was patently obvious. The trial court had

no discretion in ignoring this legislative exclusion. The appellant was not allowed

to conduct discovery before the Anti-SLAPP motion was heard; he was not

allowed to examine witnesses at the hearing; and he was not allowed to cross-

examine affidavits presented by the appellees.

Judicial Economy

This interlocutory appeal is proper and necessary. The summary dismissal

-3- by the trial court disposed of the substance of the case without reaching the merits

and this was a de facto final judgment. The only remaining issue at the trial court

level is attorney fees and costs that are statutorily mandated, but this mandate only

exists if the appellees prevail on appeal.

The corporate appellees are now rushing to obtain an unconscionable

judgment against the appellant for attorney fees and costs at the trial court level

before the appellate court can determine whether such a judgment is permitted. If

this interlocutory appeal is dismissed it will lead to the waste of judicial resources

and it will subject the appellant to unjust consequences.

CLOSING STATEMENT

The Supreme Court of Texas has rightfully maintained precedent that the

substance of an appellate case must not be drowned by perceived imperfections in

form. CMH Homes, 340 S.W.3d at 453-454 (citing, Wagner & Brown, Ltd. v.

Horwood, 53 S.W.3d 347, 351 (Tex. 2001) (rejecting an “approach [that] catapults

form over substance to deny appellate review on the merits”)).

The trial court abused its discretion, this warrants mandamus relief, and the

appellant is entitled to interlocutory appellate review. This appellate court has

jurisdiction to resolve the appellant’s interlocutory appeal and the relief sought by

the appellant should be granted. Alternatively, should the appellate court decide it

-4- is without jurisdiction at the moment then the appellant requests an abatement of

the appeal until it is ripe in order to save effort and expense already incurred.

Respectfully submitted by:

Eric L. Baumgart Appellant pro se PO Box 613 Nome, Texas 77629 (409) 338-1661 Telephone eric.baumgart @texasinvestigations.us

-5- CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, it is certified that this document contains 633 words, as counted by word processor software, for included sections as defined under Rule 9.4(i)(1).

Eric L. Baumgart Appellant pro se

-6- CERTIFICATE OF SERVICE

Pursuant to Rule 9.5(d) of the Texas Rules of Appellate Procedure, it is certified that on May 25th, 2018 a true copy of these papers were served on the following parties:

Phillip Douglas Archer KPRC-TV Channel 2 Graham Media Group, Houston, Inc Graham Media Group Graham Holdings Company c/o Attorney Thomas J. Forestier

Via: Email to tforestier@winstead.com Email to srodriguez@winstead.com

-7-