In Re: Dr. Violetta Lozovyy, M.D. and High Risk Pregnancy Doctors PLLC v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 11, 2024
• Docket: 05-24-00195-CV
• Status: Published

Opinion

CONDITIONAL GRANT and Opinion Filed March 11, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00195-CV

IN RE DR. VIOLETTA LOZOVYY, M.D. AND HIGH RISK PREGNANCY DOCTORS PLLC, Relators

Original Proceeding from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-23-14387

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Breedlove Opinion by Chief Justice Burns

The Texas Citizens Participation Act allows a party to file a motion to dismiss

in certain specified cases, and it requires the trial court to hear that motion within

specific and relatively short deadlines. If the motion is denied, whether by ruling or

by operation of law, the movant has a statutory right to an interlocutory appeal. But

this procedural framework can be undermined when a trial court refuses or fails to

hold a timely hearing. Absent a timely hearing, the movant forfeits TCPA relief and

the court of appeals loses jurisdiction to consider any interlocutory appeal.

We have previously explained that a trial court has no discretion but to give

the TCPA movant a timely hearing so long as the movant has acted with reasonable diligence in requesting it. This original proceeding requires us to determine whether

relators acted with reasonable diligence to obtain a timely hearing on their TCPA

motion to dismiss. Concluding that they did, we conditionally grant their mandamus

petition.

Background

Plaintiff Feruza Akhmedjanova filed suit against High Risk Pregnancy

Doctors, PLLC, Violetta Lozovyy, M.D., and Waranch & Nunn, PLLC, asserting

claims of negligent invasion of privacy, violations of the Texas Debt Collection Act,

violations of the Texas Deceptive Trade Practices Act, and intentional infliction of

emotional distress. Dr. Lozovyy and High Risk Pregnancy Doctors (relators) were

served with process on October 16, 2023. On December 15, 2023, they moved to

dismiss under the TCPA.

After filing their motion, relators called the trial court four times and sent two

emails requesting dates and times for a hearing on the motion but got no response.

Thereafter, on February 1, 2024, relators filed a letter explaining that (1) they had

filed a TCPA motion to dismiss on December 15, 2023; (2) the TCPA required the

trial court to hold a hearing within sixty days, which is February 13, 2024; (3) they

had contacted the trial court six times to obtain a hearing with no response; (4) and

it appeared unlikely the trial court would be able to set a hearing by the initial sixty-

day deadline. In their letter, relators requested that the trial court (1) take judicial

notice of its docketing conditions so that the deadline may be extended to 90 days

–2– and (2) set their motion for hearing at the court’s earliest convenience. The same

day, relators also filed a motion to similar effect.

On February 2, 2024, relators emailed the trial court to again notify the trial

court of the TCPA 60-day and 90-day deadlines and to request a hearing for their

TCPA motion to dismiss within the statutory period. The trial court responded that,

while it does its best to accommodate requests for hearings, its docket is “jammed

packed” and “there is no way to SQUEEZE your motion into the requested docket.”

The trial court suggested that relators could “frequently call the clerk’s office to

check for cancellations” or see if all parties will consent to the motion being

considered by the trial court on its agreed submission docket. On February 5, 2024,

by email, the trial court took judicial notice of its docketing conditions.

After the initial 60-day deadline passed without a hearing, relators initiated

this mandamus proceeding seeking to compel the trial court to set and conduct a

hearing on their TCPA motion to dismiss before the 90-day or 120-day deadlines

lapse. We requested a response and stayed all trial court proceedings except for a

hearing on the motion to dismiss and other actions authorized under the TCPA. Real

party in interest Akhmedjanova filed a response opposing mandamus relief.

The Texas Citizens Participation Act The TCPA “protects citizens . . . from retaliatory lawsuits that seek to

intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.

proceeding); Forget About It, Inc. v. BioTE Med., LLC, 585 S.W.3d 59, 63–64 (Tex.

–3– App.—Dallas 2019, pet. denied). The TCPA’s stated purpose is to “encourage and

safeguard the constitutional rights of persons to petition, speak freely, associate

freely, and otherwise participate in government to the maximum extent permitted by

law and, at the same time, protect the rights of a person to file meritorious lawsuits

for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002; see also

ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per

curiam).

To effectuate the statute’s purpose, the legislature has provided a procedure

to expedite dismissing claims brought to intimidate or to silence a party’s exercise

of the rights protected by the statute. Coleman, 512 S.W.3d at 898; see also TEX.

CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b); Youngkin v. Hines, 546

S.W.3d 675, 679 (Tex. 2018). Under this procedure, absent mutual agreement or

good cause, the movant is required to file its motion to dismiss within sixty days of

service of the legal action. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b).

TCPA dismissal motions must be heard and resolved on an expedited basis.

We have previously determined that the TCPA does not necessarily require an oral

hearing on a dismissal motion; a hearing by submission suffices. Garcia v. Semler,

663 S.W.3d 270, 276–78 (Tex. App.—Dallas 2022, no pet.). As for timing, the

TCPA generally requires the hearing to be held within sixty days after the motion is

served. TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(a). The deadline can be

extended to ninety days if the court’s docket conditions require it, good cause exists,

–4– or the parties agree. Id. § 27.004(a), (b). The deadline can be extended to 120 days

if the trial court allows relevant discovery, but that is the maximum extension

allowed. Id. § 27.004(c).

Once a TCPA motion is heard, the trial court must rule on it within thirty days

or the motion is denied by operation of law. Id. §§ 27.005(b), 27.008(a). When the

dismissal motion is denied either by ruling or by operation of law, the movant is

entitled to an interlocutory appeal. Id. §§ 27.008(a), 51.014(a)(12). Absent a timely

hearing, however, a TCPA movant forfeits TCPA relief, including the right to an

interlocutory appeal. Vertical Holdings, LLC v. LocatorX, Inc., No. 05-21-00469-

CV, 2022 WL 130903, at *4 (Tex. App.—Dallas Jan. 14, 2022, no pet.) (mem. op.);

In re Herbert, No. 05-19-01126-CV, 2019 WL 4509222, at *2 (Tex. App.—Dallas

Sept. 19, 2019, orig. proceeding) (mem. op.); see also Wightman-Cervantes v.

Hernandez, No. 02-17-00155-CV, 2018 WL 798163, at *1 (Tex. App.—Fort Worth

Feb. 9, 2018, pet. denied) (mem. op.) (a TCPA motion is not overruled by operation

of law, and no interlocutory appeal is permitted, if no hearing is held); accord RPM

Servs. v. Santana, No. 06-19-00035-CV, 2019 WL 4064576, at *1–2 (Tex. App.—

Texarkana Aug. 29, 2019, no pet.) (mem. op.).

Mandamus Standard of Review Entitlement to mandamus relief requires a relator to show that the trial court

clearly abused its discretion and that the relator lacks an adequate appellate remedy.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

–5– proceeding). We have previously held that (1) a trial court abuses its discretion by

refusing or failing to set and conduct a hearing on a TCPA motion to dismiss within

the applicable statutory deadlines when the movant has acted with reasonable

diligence to request a timely hearing and (2) the movant lacks an adequate appellate

remedy for such an abuse of discretion. Herbert, 2019 WL 4509222, at *1; see also,

e.g., In re Dror, No. 14-22-00646-CV, 2022 WL 5156721, at *3 (Tex. App.—

Houston [14th Dist.] Oct. 5, 2022, orig. proceeding).

Based on the record before us, relators filed a TCPA motion to dismiss but the

trial court has not yet set a hearing on the motion and the applicable statutory

deadlines for holding the hearing are on the verge of lapsing. In their mandamus

petition, relators ask this Court to compel the trial court to set and conduct a hearing

on their TCPA motion within the applicable statutory deadlines. Therefore, the

question presented in this original proceeding is whether relators have acted with

reasonable diligence to request a timely hearing.

Discussion

Based on the record before us, relators were served with process on October

16, 2023, and filed their TCPA motion to dismiss on December 15, 2023. Therefore,

we conclude that relators’ TCPA motion was timely. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.003(b).

Following the filing of their TCPA motion to dismiss, relators called and

emailed the trial court on at least six occasions attempting to obtain a hearing on

–6– their motion. Relators also filed a letter and motion explaining the trial court’s

mandatory deadlines for setting a timely hearing under the TCPA and again

requesting a timely hearing. In response, the trial court did not acknowledge these

mandatory deadlines. Instead, it insisted that its docket was full and that it would not

make room in its docket for a timely hearing and suggested that relators might see if

all the parties would agree instead to have the motion set for submission. On this

record, we conclude that relators acted with reasonable diligence to obtain a timely

hearing on their TCPA motion to dismiss.

Real party in interest responds that mandamus relief is inappropriate because

relators have an adequate remedy by appeal. They contend that relators’ TCPA

motion to dismiss will simply be overruled by operation of law if the trial court runs

out the clock at which point the TCPA authorizes them to appeal. But denial by

operation of law cannot occur unless and until the trial court holds a hearing. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005, 27.008 (explaining that if a trial

court does not rule on a TCPA motion to dismiss within 30 days of the date of the

hearing on the motion, then the motion is considered to have been denied by

operation of law); see also Herbert, 2019 WL 4509222, at *2 (discussing same).

And without a timely hearing, relators risk forfeiting TCPA relief and their right to

an interlocutory appeal. See Herbert, 2019 WL 4509222, at *2.

For the foregoing reasons, we hold that the trial court clearly abused its

discretion by not setting and conducting a hearing on relators’ TCPA motion to

–7– dismiss within the statutory deadlines and that relators do not have an adequate

remedy by appeal. We note that the record appears to show that the parties have filed

one or more motions for specified and limited discovery relevant to the motion under

section 27.006(b). If so, and if the trial court determines there is good cause, it may

allow for the parties to conduct such discovery before the hearing. In that case, the

120-day deadline would apply. Otherwise, based on the trial court’s docket

conditions, the ninety-day deadline applies.

Conclusion

We conditionally grant relators’ petition for writ of mandamus and direct the

trial court to either (1) take judicial notice of its docketing conditions, waive the 21-

day notice requirement under TCPA section 27.003(d), allow if necessary real party

in interest to file a response less than seven days before the hearing under TCPA

section 27.003(e), and set relators’ TCPA dismissal motion for hearing on or before

Thursday, March 14, 2024,1 or (2) allow specified and limited discovery under

TCPA section 27.006(b) and set relators’ TCPA dismissal motion for hearing on or

before Monday, April 15, 2024.2 We further note that an oral hearing is not required;

hearing by submission will suffice. See Semler, 663 S.W.3d at 276–78. We are

1 Ninety days after December 15, 2023 is Thursday, March 14, 2024. 2 One hundred and twenty days after December 15, 2023 is Saturday, April 13, 2024. Because the deadline falls on a Saturday, the last day of the period so computed is to run until the end of the next day that is not a Saturday, Sunday, or legal holiday, which is Monday, April 15, 2024. See TEX. R. CIV. P. 4. –8– confident the trial court will act in accordance with this opinion and the writ will

issue only if the trial court fails to comply.

We also lift the stay issued by this Court’s February 23, 2024 Order.

/s/ Robert D. Burns, III ROBERT D. BURNS, III CHIEF JUSTICE

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