Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 107th District Court of Cameron County,
Chief Justice Contreras and Justices Hinojosa and Tijerina
CONTRERAS Chief Justice
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.
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.
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. 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.
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.
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
THE COURT: I'll probably take it.
[Clintons' counsel]: Okay. This is a motion under the