by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals
Simmons v. Taylor, __ S.W.3d __, 2022 WL 1498090 (Tex. App.—Houston [14th Dist.] May 12, 2022, no pet.) (Christopher, C.J.).
In Simmons, the court held that it had jurisdiction over an interlocutory appeal challenging an oral ruling denying a motion to dismiss under the Texas Citizens Participation Act (“TCPA”).
Derrick Taylor asserted defamation claims against the defendants, and the defendants filed a TCPA motion to dismiss. But the defendants failed to comply with the TCPA’s 60-day deadline for setting a hearing on their motion and instead set the hearing for 77 days after the motion was served. See Tex. Civ. Prac. & Rem. Code Ann. § 27.004(a).
At the hearing, the defendants argued two exceptions permitted their deviation from the 60-day deadline: (1) the trial court’s docket conditions, and (2) the defendants’ mistaken belief that they set a hearing within the deadline. Concluding that neither exception applied, the trial court orally denied the defendants’ motion. The trial court did not sign a written order. The defendants filed an interlocutory appeal.
On appeal, the court began by examining its jurisdiction. The general rule is that a party may bring an interlocutory appeal only from a written order; however, the TCPA provides an exception where the trial court “does not rule” on the motion to dismiss and the motion is considered overruled by operation of law. See id. § 27.008(a). The court noted that at least two other courts of appeals had held that this exception did not authorize an interlocutory appeal where, as here, the trial court orally denied the motion to dismiss but failed to issue a written order.
Deviating from these authorities, the court reasoned that the TCPA’s purpose “would be thwarted if a trial court could insulate its decision from appellate review by refusing to sign a written order and instead choosing instead to orally deny a motion that should have been granted.” The court held that, by failing to sign a written order, the trial court “did not rule” on the defendants’ motion to dismiss. Therefore, the motion was overruled by operation of law, and the court could properly exercise its appellate jurisdiction over the interlocutory appeal.
Addressing the merits, the court held that the trial court did not err in determining that no applicable exception to the 60-day hearing deadline applied and denying the defendants’ motion, affording substantial deference to the trial court’s evaluation of its own docket.
Thompson Hancock Witte & Assocs., Inc. v. Stanley Spurling & Hamilton, Inc., __ S.W.3d __, 2022 WL 1010270 (Tex. App.—Houston [14th Dist.] Apr. 5, 2022, no pet.) (Zimmerer, J.).
In Thompson Hancock, the court held that a petition could not “relate back” to a previously filed, non-suited petition to evade a statutory amendment that broadened application of the certificate of merit filing requirement.
Brazos filed suit in connection with construction project and, in an amended petition, asserted claims against architectural firm Thompson Hancock. Thompson Hancock filed a third-party petition against Stanley, an engineering services firm. Thompson Hancock non-suited these claims without prejudice.
A few months later, Thompson Hancock refiled its third-party petition against Stanley. Stanley filed a chapter 150 motion to dismiss Thompson Hancock’s petition for failure to file a certificate of merit, which the trial court granted.
Governed by section 150.002 of the Civil Practice and Remedies Code, the certificate of merit filing requirement applies to any action for damages arising out of the provision of professional services. Analyzing this statute on appeal, the court noted that, when Thompson Hancock filed its first third-party petition against Stanley, this requirement applied only to a “plaintiff.” However, subsequent amendments to section 150.002 (effective June 2019) applied the requirement to a “claimant.”
Asserting that it was not required to file a certificate of merit with its refiled third-party petition, Thompson Hancock argued that its refiled petition related back to its non-suited third-party petition for purposes of the law governing its claims. Rejecting this argument, the court noted that a non-suit “extinguishes a case or controversy from the moment the motion is filed” and is equivalent to suit never having been filed. Therefore, Thompson Hancock’s refiled third-party petition was governed by the amended version of section 150.002, effective at the time of the refiled pleading. And because Thompson Hancock did not file a certificate of merit, the trial court properly granted Stanley’s motion to dismiss.
Alternatively, Thompson Hancock argued that its refiled third-party petition incorporated by reference the certificate of merit filed with Brazos’s petition. Rejecting this argument, the court noted that Thompson Hancock did not (1) affirmatively state in its petition that it was incorporating Brazos’s certificate, or (2) attach Brazos’s certificate to its petition.