DAVID H. ARRINGTON OIL & GAS OPERATING, LLC; MIDLAND-PETRO D.C. PARTNERS, LLC; PERMIAN DEEP ROCK DRILLING, LLC; AND DAVID H. ARRINGTON, Appellants
M. SCOTT WILSHUSEN, Appellee
Appeal from the 238th District Court Midland County, Texas
Trial Court Cause No. CV55454
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
March 22, 2019, M. Scott Wilshusen filed suit against David
H. Arrington Oil & Gas Operating, LLC; Midland-Petro D.C.
Partners, LLC: Permian Deep Rock Drilling, LLC; 3 Platinum,
LLC; and David H. Arrington. On May 23, 2019, the defendants
filed a motion to dismiss some of Wilshusen's claims
pursuant to the Texas Citizens Participation Act, Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.001- .011 (West
2015) (the TCPA). On September 20, 2019, the trial court
held a hearing on the motion to dismiss but did not rule on
the motion at that time.
In a letter dated September 27, 2019, the trial court wrote:
The Court has concluded that Defendants' Texas Citizens
Participation Act Motion to Dismiss should be granted as to
Plaintiff's fraud claim and denied as to his conversion
claim and conspiracy theory[.]
Counsel for Defendants are directed to prepare and provide an
Order to opposing counsel and the Court. The Local Rules
provide that counsel shall have ten (10) days to review and
object to proposed Order[.]
letter then closed with "Sincerely" followed by the
trial judge's signature. It is not apparent from the
record before us whether counsel prepared an order as
directed by the trial court. However, Appellants have
informed this court that the parties discussed a formal order
but that "an agreed order was not submitted prior to the
20 days expiring." On October 17, 2019, Appellants filed
a notice of appeal in which they stated that they were
appealing "from the order dated September 27,
2019." In the notice of appeal, Appellants noted that
the trial court had instructed them to submit a proposed
order and also noted that they "may amend this Notice of
Appeal to include any subsequent order of the trial court, as
the appeal was docketed in this court on October 22, 2019,
the clerk of this court sent a letter to the parties. In the
October 22 letter, we informed the parties:
The hearing on Defendants' Motion to Dismiss was heard on
September 20, 2019. Therefore, the Motion to Dismiss
is denied by operation of law on October 21, 2019.
Texas Citizens Participation Act, Section 27.005(a) provides:
"The court must rule under Section 27.003 not later
than the 30th day following the date of the hearing on the
motion." Section 27.008(a) provides: "If a
court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion
is considered to have been denied by operation of law and the
moving party may appeal."
December 9, 2019, Appellants filed a response to this
court's October 22 letter. In their response, Appellants
first assert that the trial court's September 27 letter
is a "ruling . . . sufficient under section 27.008 to
keep a denial by operation of law from occurring."
Appellants then assert that, because the September 27 letter
is a ruling but is not a "formal, written order,"
the September 27 "ruling did not start the appellate
timetable." Appellants further assert that we have no
jurisdiction over this appeal because the trial court has not
entered a written, signed order. Appellants request that we
determine this jurisdictional matter at this time to preserve
judicial resources and avoid duplicative appeals and filings.
considered Appellants' response, and we respectfully
disagree with their assertion that the trial court issued a
ruling on September 27. The trial court merely set forth its
conclusion as to how the motion "should be" ruled
upon in a future order. See Inwood Forest Cmty.
Improvement Ass'n v. Arce, 485 S.W.3d 65, 71-72
(Tex. App.-Houston [14th Dist.] 2015, pet. denied) (trial
court's statement in open court that it was "going
to grant" the TCPA motions to dismiss was held not to be
a "ruling"); see also S & A Rest. Corp. v.
Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam)
(stating that, with respect to the rendition of a judgment,
the words used by a trial court must clearly indicate the
intent to render judgment at the time the words are
expressed). Here, the trial court did not express any intent
to rule at the time that it issued the September 27 letter.
Furthermore, the trial court's September 27 letter
directed Appellants' counsel to prepare an order,
indicating that the trial court did not intend for its letter
to be the operative order as to Wilshusen's motion to
dismiss. See Perdue v. Patten Corp., 142 S.W.3d 596,
602 (Tex. App.- Austin 2004, no pet.).
we agree with Appellants' assertion that Section
51.014(a)(12) of the Texas Civil Practice and Remedies Code
references an "interlocutory order," we do not
agree that a written order was necessary under the
circumstances in this case. See Civ. Prac. &
Rem. § 51.014(a)(12) (providing that a party "may
appeal from an interlocutory order . . . that denies a motion
to dismiss filed under Section 27.003"). Here, as
discussed above, the motion to dismiss that was filed under
Section 27.003 was denied by operation of law pursuant to
Section 27.008(a), rather than by a written order. See
id. §§ 27.003, .005(a), .008(a). Section
27.008(a) specifically authorizes a party to appeal when the
party's TCPA motion to dismiss "is considered to
have been denied by operation of law." Id.
§ 27.008(a); see Avila v. Larrea, 394 S.W.3d
646, 655-56 (Tex. App.-Dallas 2012, pet. denied) (holding
that appellate court had jurisdiction over interlocutory
appeal from denial-by operation of law- of TCPA motion to
dismiss). To hold as ...