Court of Appeals of Texas, First District, Houston
Alexandria Marrujo and Allied Stone, Inc.
Wisenbaker Builder Services, Inc.
court case number: 2018-54748 Trial court: 295th District
Court of Harris County
ORDER OF ABATEMENT
C. Higley, Judge.
Alexandria Marrujo and Allied Stone, Inc., timely filed a
joint notice of appeal on January 17, 2019, from the trial
court's December 28, 2018 order denying their
"Motion to Dismiss Pursuant to the Texas Citizens
Participation Act" ("TCPA"). See Tex.
R. App. P. 26.1(a)(4), (b). The trial court's order was
signed by the Honorable Caroline Baker, the former presiding
judge of the 295th District Court of Harris County. On
January 29, 2019, appellee, Wisenbaker Builder Services,
Inc., filed a notice of cross-appeal from the TCPA order
which had also denied appellee's request for
attorney's fees and costs.
filed their notice of appeal after timely filing a
"Motion for Issuance of Findings on its Motion to
Dismiss and Request for Rulings on Objections" on
January 11, 2019, from the new presiding judge, the Honorable
Donna Roth, under Section 27.007. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.007(a) (West 2014). On
February 6, 2019, the reporter's record of the December
17, 2018 hearing held before Judge Baker on the TCPA motion
to dismiss was filed in this Court. On February 22, 2019, the
clerk's record was filed. On March 11, 2019, the Clerk of
this Court granted appellants' motion for an extension of
time to file their brief until April 15, 2019.
April 2, 2019, appellants filed a "Request Made to
Supplement Clerk's Record" in this Court. Appellants
had requested that the district clerk file a supplemental
clerk's record with the attached March 26, 2019 Order
signed by Judge Roth, who declined to rule on appellants'
motion for findings because "[p]ursuant to the Texas
Civil Practice and Remedies Code once a Notice of Appeal is
filed all trial court proceedings are stayed."
the request of a party making a [TCPA] motion under Section
27.003, the court shall issue findings regarding whether the
legal action was brought to deter or prevent the moving party
from exercising constitutional rights and is brought for an
improper purpose, including to harass or to cause unnecessary
delay or to increase the cost of litigation." Tex. Civ.
Prac. & Rem. Code Ann. § 27.007(a). The trial court
"must issue findings under Subsection (a) not later than
the 30th day after the date a request under that subsection
is made." Id. at § 27.007(b); see also
Batra v. Covenant Health Sys., 562 S.W.3d 696, 705 (Tex.
App.-Amarillo, pet. filed) ("When requested to issue
such findings by the movant, the trial court is required to
do so."). However, the appeal from the denial of a TCPA
motion is an interlocutory appeal, which imposes an automatic
stay. See Tex. Civ. Prac & Rem. Code Ann.
§§ 27.008(b), 51.014(a)(12), (b) (West 2014). The
automatic stay imposed by section 51.014(b) creates a bright
line rule which "stays all other proceedings in the
trial court" pending resolution of any interlocutory
appeal filed under section 51.014(a)(12), as here. Tex. Civ.
Prac & Rem. Code Ann. § 51.014(a)(12), (b); In
re I-10 Colony, Inc., No. 01-14-00775-CV, 2014 WL
7914874, at *2 (Tex. App.-Houston [1st Dist.] Feb.
24, 2014, orig. proceeding) (mem. op.) (granting mandamus to
direct trial court to vacate order compelling discovery
entered in violation of section 51.014(b) stay).
"[w]hen an appeal from an interlocutory order is
perfected, the appellate court may make any temporary orders
necessary to preserve the parties' rights until
disposition of the appeal and may require appropriate
security." Tex.R.App.P. 29.3. Because Judge Roth, who
continues to serve on the district court, properly refrained
from violating the section 51.014(b) automatic stay, this
Court must direct the trial court to correct the error, if
any, by lifting the stay. See Tex. R. App. 7.2(b)
("In all other cases, the suit will not abate, and the
successor will be bound by the appellate court's judgment
or order as if the successor were the original party.");
the Court construes the appellants' "Request Made to
Supplement Clerk's Record" to include a motion to
abate, grants the motion,
lifts the stay, abates this
appeal, and remands to the trial court for
the limited purpose of ruling on appellants' "Motion
for Issuance of Findings on its Motion to Dismiss and Request
for Rulings on Objections," including the findings of
fact required by Section 27.007(a). See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(12), (b); see
also In re I-10 Colony, Inc., 2014 WL 7914874, at *2.
Because this is an accelerated appeal, the Court
orders the trial court to sign any order and
findings of fact within 15 days of the date of this
Order. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.008(b). The district clerk is directed to file
a supplemental clerk's record containing the trial
court's order, if any, and findings with the Clerk of
this Court within 5 days of the date the
district court signs any order and findings.
appeal is abated, treated as a closed case, and removed from
this Court's active docket. This appeal will be
reinstated on this Court's active docket when the
supplemental clerk's record that complies with this Order
is filed in this Court. The Court will also consider an
appropriate motion to reinstate the appeal filed by either
party or may reinstate the appeal on its own motion.