Fairlawn Assets LLC, John Ferrante, and Jarrod Freeborn v. Barbara Booker, as Guardian of the Person and Estate of M.H.

• Court: Court of Appeals of Texas
• Decided: July 25, 2019
• Docket: 09-19-00208-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00208-CV __________________

FAIRLAWN ASSETS LLC, JOHN FERRANTE, AND JARROD FREEBORN, Appellants

V.

BARBARA BOOKER, AS GUARDIAN OF THE PERSON AND ESTATE OF M.H., Appellee

__________________________________________________________________

On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-202,429 __________________________________________________________________

MEMORANDUM OPINION

In this accelerated interlocutory appeal, Barbara Booker, as guardian of the

person and estate of M.H. (Booker), filed a motion in this Court challenging the

Court’s jurisdiction to consider an interlocutory appeal that arose from a motion filed

in the trial court by Fairlawn Assets LLC, John Ferrante, and Jarrod Freeborn to

dismiss Booker’s claims under the Texas Citizens Participation Act (“TCPA”). See 1 Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015) (TCPA); id. §

51.014(a)(12) (West Supp. 2018) (providing for an interlocutory appeal of the denial

of a motion to dismiss filed under section 27.003 of the TCPA). Fairlawn, Ferrante,

and Freeborn responded to the motion, alleging that, by failing to timely rule on their

motion to dismiss under the TCPA, the trial court’s ruling was appealable because

the trial court was deemed to have denied the motion by operation of law. Id. §

27.008(a). For the reasons explained below, we conclude the trial court has not yet

ruled on the motion to dismiss, so Fairlawn’s, Ferrante’s and Freeborn’s appeal must

be dismissed for lack of jurisdiction.

The record from the court below reflects that on May 29, 2019, the parties

appeared in the trial court for a hearing on Fairlawn’s, Ferrante’s and Freeborn’s

motion to dismiss, a motion raising grounds for dismissal under the TCPA. At the

beginning of the hearing, the attorneys for the parties agreed to continue the hearing,

but Booker sought not only a continuance, she also wanted the trial court to allow

her to conduct discovery on questions raised by Fairlawn’s, Ferrante’s and

Freeborn’s motion to dismiss. After hearing argument on Booker’s request for

discovery, the trial court advised the parties that it would “allow discovery with

regards to that[,]” apparently referring to Booker’s request to be allowed to conduct

limited discovery on the motion to dismiss.

2 On June 21, 2019, the trial court reduced the ruling it made during the hearing

to writing by signing an order stating the trial court conducted “a full hearing,

evidentiary or otherwise, particularly because it was allowing limited discovery and

additional briefing based on the outcome of that discovery.” The order reflects the

trial court continued the hearing on the motion to dismiss “to allow the parties to

conduct limited discovery . . . to be completed no later than July 22, 2019.”

In their response to Booker’s motion to dismiss the appeal, Fairlawn, Ferrante,

and Freeborn argue the trial court heard the merits of their motion to dismiss but

failed to rule on the motion within thirty days, a period they argue resulted in their

motion being overruled by operation of law. In support of this position, Fairlawn,

Ferrante and Freeborn rely on Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas

2012, pet. denied). But the Legislature amended the TCPA after the Dallas Court

decided Avila, thereby allowing trial courts to grant continuances so that parties

could conduct limited discovery on issues raised by motions to dismiss under the

TCPA. See Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, § 1, sec. 27.004(c), 2013

Tex. Gen. Laws 2501, 2501 (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 27.004(c)). Section 27.004(c) provides: “If the court allows discovery under

Section 27.006(b), the court may extend the hearing date to allow discovery under

that subsection, but in no event shall the hearing occur more than 120 days after the

3 service of the motion under Section 27.003.” Tex. Civ. Prac. & Rem. Code Ann. §

27.004(c). We conclude that Avila does not apply to the motion that is at issue here.

Given the amendment to the TCPA that extended the deadline before trial

courts are deemed to have overruled motions to dismiss, we agree with Booker that

the trial court has not yet ruled on Fairlawn’s Ferrante’s, and Freeborn’s motion to

dismiss. Their motion has also not yet been overruled by operation of law. Id.

Because the trial court has not issued a ruling subject to appeal, we dismiss the

appeal for lack of jurisdiction.

APPEAL DISMISSED.

_________________________ HOLLIS HORTON Justice

Submitted on July 24, 2019 Opinion Delivered July 25, 2019

Before Kreger, Horton and Johnson, JJ.