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Clinton v. Araguz

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 7, 2019

DEMPSIE CLINTON AND VICTORIA CLINTON, Appellants,
v.
LEOBARDO ARAGUZ, Appellee.

          On appeal from the 107th District Court of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          DORI CONTRERAS Chief Justice

         This case concerns a motion to dismiss brought under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. ch. 27. Appellants Dempsie Clinton and Victoria Clinton argue by a single issue that the trial court erred in failing to grant their motion to dismiss a suit filed by appellee Leobardo Araguz. The Clintons contend that Araguz's suit is "based entirely on their privileged communications with their bank and law enforcement" and that Araguz failed to produce clear and specific evidence to support his claims. See id. § 27.003.

         In response, Araguz argues in part that we lack jurisdiction over the appeal because the trial court did not rule on the Clintons' motion to dismiss. Because we agree, we will dismiss the appeal for want of jurisdiction.

         I. Background

         Araguz alleged that the Clintons had entered into a construction agreement with his firm, Araguz Construction, LLC, in 2016, and that as part of the project, he endorsed a $18, 788 check issued by Texas National Bank which was made payable to both him and the Clintons. According to Araguz, the Clintons complained to Texas National Bank about the endorsement and they filed a report with the Harlingen Police Department alleging that their signatures were forged. Araguz states that he was arrested on May 27, 2017, but that after further investigation, the Cameron County District Attorney dismissed the charges against him.[1] On May 24, 2018, he sued the Clintons, the City of Harlingen, the Harlingen Police Department, and Scott Vega, a police department employee, alleging defamation and malicious prosecution, among other claims.[2]

         The Clintons filed a combined answer and motion to dismiss under the TCPA on June 27, 2018. See id. That day, the trial court ordered that a hearing on the motion to dismiss would take place on August 9, 2018 at 8:30 a.m. The day before the scheduled hearing, the Clintons submitted various pieces of evidence in support of their motion. No response to the TCPA motion to dismiss appears in the record.

         The August 9 hearing proceeded before an associate judge. The record of the hearing is, in its entirety, as follows:

COURT COORDINATOR: [The Clintons' counsel is] in the courtroom. He has been waiting for [Araguz's counsel]. He has a motion to dismiss.
[Clintons' counsel]: Good morning, Your Honor.
THE COURT: 2018-DCL-3174, defendant's motion to dismiss.
[Clintons' counsel]: Yes, Your Honor. I have not spoken or seen [Araguz's counsel]. I did send him an email this morning, letting him know that I was here waiting for him, and I have not heard back.
THE COURT: Do you have his cellphone number?
[Clintons' counsel]: I do not.
THE COURT: [Court coordinator], what do you have?
[Clintons' counsel]: I would prefer that he was here since it is a motion to dismiss.
THE COURT: Well, what's going to happen is-the same thing is going to happen. We're going to end up with-
[Clintons' counsel]: May I make a suggestion to the Court?
THE COURT: I'll probably take it.
[Clintons' counsel]: Okay. This is a motion under the ...

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