Richard Gehrke and Pacific Companies, Inc. v. Merritt Hawkins and Associates, LLC

Opinion

Order entered February 14, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00026-CV No. 05-18-01160-CV

RICHARD GEHRKE AND PACIFIC COMPANIES, INC., Appellants

V.

MERRITT HAWKINS & ASSOCIATES, LLC, Appellee

On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-09562

ORDER Before Justices Whitehill, Molberg, and Nowell

Before the Court are two interlocutory appeals arising from the underlying case.

Appellate cause number 05-18-01160-CV involves an appeal from a temporary injunction (the

TI appeal); and appellate cause number 05-19-00026-CV involves an appeal from the trial

court’s denial by operation of law of appellants’ motion to dismiss pursuant to section 27.003 of

the civil practice and remedies code (the TCPA appeal). See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 27.003; 27.008(a); 51.014(a)(4), (12).

By order dated December 20, 2018 in the TI appeal, we addressed appellee’s emergency

motion to enforce alleging that appellee Richard Gehrke had violated the temporary injunction. The Court granted appellee’s motion and referred it to the trial court for an evidentiary hearing

and determination of any appropriate relief. See TEX. R. APP. P. 29.4(a).

Before us in the TCPA appeal, is appellants’ January 14, 2019 motion to stay and for

protection. That motion essentially asks us to enforce the automatic stay that became effective

when appellants filed their notice of appeal after their TCPA dismissal motion was denied. They

seek to stay all proceedings in the trial court including discovery. We DENY appellants’

motion.

We MODIFY this Court’s December 20 order and LIFT the section 51.014(b) automatic

stay for the following two purposes: (1) to allow the parties to conduct discovery related to the

alleged violations of the temporary injunction; and (2) to allow the trial court to conduct an

evidentiary hearing on the motion referred to it in our December 20 order. We ORDER the trial

court to conduct the hearing and grant in writing any appropriate relief WITHIN FORTY

DAYS of the date of this order.

We ORDER Felicia Pitre, Dallas County District Clerk, to file, WITHIN FORTY-

FIVE DAYS of the date of this order, a supplemental clerk’s record in appellate cause number

05-18-01160-CV containing any signed order on appellants’ emergency motion to enforce or

written notification that the trial court did not sign an order on the motion.

We DIRECT the Clerk of this Court to send a copy of this order to the Honorable Emily

Tobolowsky, Presiding Judge of the 298th Judicial District Court; Ms. Pitre; and all parties.

We ABATE the TI appeal to allow the trial court to comply with this Court’s order. The appeal will be reinstated in forty-five days or when the Court receives the requested

supplemental clerk’s record, whichever occurs sooner.

/s/ BILL WHITEHILL JUSTICE