Appeal from the 29th District Court Palo Pinto County, Texas
Trial Court Cause No. C46164-1
Ruff sued her son, Michael A. Ruff, and a number of entities,
including Borderline Management, LLC (Borderline). Suzann
alleges that Michael created these entities to hide assets
that he had misappropriated from Suzann. Borderline filed a
motion to dismiss the claims against it pursuant to the Texas
Citizens Participation Act (the TCPA), and Suzann filed a
motion to sever the claims against Borderline from the claims
against the other defendants.
5, 2019, at 8:32 a.m., the trial court sent an e-mail to
counsel making general findings to the effect that
Borderline's motion to dismiss was untimely and that
Borderline failed to establish its right to dismissal under
the TCPA. The trial court denied Borderline's motion to
dismiss, awarded Suzann's attorney fees, and requested
that Suzann's counsel prepare an order as well as
findings of fact and conclusions of law. On May 5, 2019, at
8:37 a.m., the trial court sent a second email to counsel
granting Suzann's motion to sever and making no further
requests of counsel. At 12:00 a.m. on May 6, 2019, Borderline
filed a notice of interlocutory appeal from the trial
court's denial of the TCPA motion to dismiss. The trial
court signed an order on May 8, 2019, that denied the motion
to dismiss, awarded Suzann attorney's fees incurred in
responding to the motion to dismiss, and severed Suzann's
claims against the other defendants.
has filed a "Motion for Clarification of Stay" in
this court. In the motion, Borderline requests that we
determine that the trial court's severance of
Suzann's claims against the other defendants violated the
automatic stay of all trial court proceedings imposed by
Section 51.014(b) of the Texas Civil Practice and Remedies
Code for an appeal of the denial of a TCPA motion to dismiss.
Civil Practice and Remedies Code allows a party to bring an
interlocutory appeal from the trial court's denial of a
TCPA motion to dismiss. Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(1) (West Supp. 2018). The interlocutory
appeal "stays all other proceedings in the trial court
pending resolution of that appeal." Id. §
54.014(b). "[T]he stay set forth in section 51.014 is
statutory and allows no room for discretion." In re
Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.-Austin
2014, orig. proceeding) (alteration in original) (quoting
Sheinfeld, Maley & Kay, P.C. v. Bellush, 61
S.W.3d 437, 439 (Tex. App.-San Antonio 2001, no pet.));
see also Craig v. Tejas Promotions, LLC, 550 S.W.3d
287, 293 & n.22 (Tex. App.- Austin 2018, pet. filed)
(noting that filing of notice of appeal from denial of TCPA
motion to dismiss triggered an automatic statutory stay of
all trial-level proceedings in their then-existing state).
The automatic stay, however, does not take effect until the
interlocutory appeal is filed. See Civ. Prac. &
Rem. § 51.014(b); Swanson v. Town of Shady
Shores, No. 02-15-00351-CV, 2016 WL 4395779, at *4-5
(Tex. App.-Fort Worth Aug. 18, 2016, orig. proceeding) (mem.
op.) (noting automatic stay was triggered by filing of notice
of interlocutory appeal).
trial court's e-mail regarding Suzann's motion to
sever stated, in present tense language, that the motion was
granted and did not contain a directive for counsel to
prepare an order. Further, the e-mail bears a
"FILED" mark from the district clerk's office.
Accordingly, the trial court arguably granted Suzann's
motion to sever on May 5, 2019. See Tex. Dep't of
Criminal Justice v. Avellaneda, No. 11-05-00414-CV, 2006
WL 1172253, at *2 (Tex. App.-Eastland May 4, 2006, no pet.)
trial court's e-mail denying Borderline's motion to
dismiss, however, directed Suzann's attorney to prepare
an order, indicating that the trial court did not intend for
the e-mail to be the operative order as to Borderline's
motion to dismiss. See Perdue v. Patten Corp., 142
S.W.3d 596, 602 n.8 (Tex. App.-Austin 2004, no pet.).
Therefore, the May 6, 2019 notice of appeal filed by
Borderline from the denial of the motion to dismiss was
premature. Borderline's premature notice of appeal became
effective, and was deemed filed, on May 8, 2019, after the
trial court signed the written order denying Borderline's
motion to dismiss and granting Suzann's motion to sever.
See Tex. R. App. P. 27.1(a).
of whether the trial court first granted Suzann's motion
to sever in the May 5, 2019 e-mail or in the May 8, 2019
order, it did so before the automatic stay became effective.
See Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL
2255139, at *4-5 (Tex. App.-San Antonio May 13, 2015, pet.
denied) (mem. op.) (concluding that premature notice of
appeal of order denying TCPA motion to dismiss did not become
effective until after written order was signed and,
therefore, automatic stay did not deprive trial court of
jurisdiction to simultaneously grant temporary injunction and
deny motion to dismiss).
Borderline's motion for clarification because the trial
court did not sign an order granting Suzann's motion to
sever after the automatic stay under Section 51.014(b) of the
Civil Practice and Remedies Code became effective. See
Swanson, 2016 WL 4395779, at *4. In doing so, we express
no opinion on Borderline's arguments that the severance
was improper or that the trial court abused its discretion by
including a ruling on Suzann's motion to sever in the
same order in which it denied Borderline's motion to
consists of: Bailey, C.J., Stretcher, J., and Wright,
Willson, J., not participating.