Alexandria Marrujo and Allied Stone, Inc v. Wisenbaker Builder Services, Inc. ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Alexandria Marrujo and Allied Stone, Inc. v. Wisenbaker
Builder Services, Inc.
Appellate case number: 01-19-00056-CV
Trial court case number: 2018-54748
Trial court: 295th District Court of Harris County
Appellants, 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.
Appellants 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.
On 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.”
“At 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).
Here, “[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.”); 44.4(a), (b).
Accordingly, 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.
This 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. Appellant’s brief shall be due within twenty days after the
appeal is reinstated. See TEX. R. APP. P. 38.6(a).
It is so ORDERED.
Judge’s signature: ___/s/ Laura C. Higley______
x Acting individually Acting for the Court
Date: __April 9, 2019_____
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