James Summersett Iii v. Remi Jaiyeola, M.D.

438 S.W.3d 84

Tex. App.

2013

Check Treatment

James SUMMERSETT III, Appellant, v. Remi JAIYEOLA, M.D., Appellee.

No. 13-12-00442-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 18, 2013.

relator has not met his burden to obtain mandamus relief. See

In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36. Accordingly, the stay previously imposed by this Court is LIFTED. See TEX.R.APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.“). The petition for writ of mandamus is DENIED. See id. 52.8(a).

In so holding, we note that immediately prior to the oral argument of this cause, Summersett filed a letter with the Court “to advise the Court of circumstances that have changed since the filing of these appellate matters that may be relevant to the Court‘s analysis of the issues presented.” According to the letter, since the mandamus and related appeal were filed: (1) Knapp has been acquired by Prime Healthcare Services; (2) Summersett is no longer employed by Knapp and is now employed by Prime; (3) Jaiyeola no longer practices at Knapp; and (4) Summersett‘s co-defendant in the trial court, Ruben Garza, is no longer employed by Knapp.

We express no opinion herein regarding these allegations. Any contentions regarding the effect of these allegedly changed factual circumstances should be addressed in the first instance by the trial court. See, e.g.,

Henderson v. Floyd, 891 S.W.2d 252, 255 (Tex.1995) (orig. proceeding); see also .

Jordan K. Mullins, Austin, Mark Domel, Patton G. Lochridge, McGinnis, Lochridge & Kilgore, Austin, for Appellant.

Javier Pena, The Pena Law Firm, Edinburg, Rebecca Vela, Yzaguirre & Vela, PLLC, McAllen, for Appellee.

Before Chief Justice VALDEZ and Justices GARZA and LONGORIA.

OPINION

Opinion by Chief Justice VALDEZ.

Remi Jaiyeola, M.D., brought suit against James Summersett III and Ruben Garza for tortious interference with existing and prospective business relationships, unfair competition, defamation, and conspiracy. At the time of suit, Summersett was the president and chief executive officer of Knapp Medical Center (“Knapp“) and Garza was the vice president of administrative services of Knapp.¹ Jaiyeola is a board-certified gastroenterologist who has privileges and performs surgical procedures at Knapp. She alleged that the defendants made false statements about her regarding patient complaints and her willingness to “take call” for Knapp in order to “cause her [economic] harm, force her out of business and so that both Defendants, individually, could profit through a conspiracy designed to reduce income to their own hospital in order to justify sale of said hospital.” Jaiyeola did not bring suit against Knapp Medical Center.

Summersett moved to dismiss the lawsuit pursuant to the Texas Citizens Participation Act (“TCPA“), which provides for the dismissal of actions involving the exercise of certain constitutional rights, and subsequently filed a motion for leave to file the motion for dismissal. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 27.001-27.011 (West Supp.2011). The trial court denied the motion for leave, and this appeal ensued. Summersett appeals by two issues contending that: (1) the trial court erred by allowing appellant‘s motion to dismiss to be denied by operation of law; and (2) if the trial court ruled that the motion to dismiss was not timely filed under section 27.003(b), the trial court erred.

Concluding we lack jurisdiction over this interlocutory appeal, we dismiss the appeal as stated herein.

I. TEXAS CITIZENS PARTICIPATION ACT

The TCPA is a recently enacted statute that provides for the early dismissal of legal actions that involve the exercise of certain constitutional rights. See generally TEX. CIV. PRAC. & REM.CODE ANN. §§ 27.001-27.011.² The TCPA is considered to be anti-SLAPP legislation.

Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 521 n. 1 (Tex.App.-Fort Worth 2012, pet. filed). “SLAPP” stands for Strategic Lawsuit Against Public Participation. See

The purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM.CODE ANN. § 27.002;

Avila v. Larrea, 394 S.W.3d 646, 653 (Tex.App.-Dallas 2012, pet. filed). The TCPA provides a means for a defendant, early in the lawsuit, to seek dismissal of certain claims identified in the act, including defamation. See id. §§ 27.003, 27.008. The act is to be “construed liberally to effectuate its purpose and intent fully.” Id. § 27.011(b). “Exercise of the right of free speech” is defined by the act as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). “Matter of public concern” includes, inter alia, an issue related to “health or safety” or “a good, product, or service in the marketplace.” Id. § 27.001(7)(E).

“If a legal action is based on, relates to, or is in response to a party‘s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” Id. § 27.003(a). Such motion must be filed not later than the 60th day after the date of service of the legal action unless the court extends the time for filing on a showing of good cause. Id. § 27.003(b). On the filing of a motion to dismiss pursuant to section 27.003(a), all discovery in the legal action is suspended until the court has ruled on the motion to dismiss, except as provided by section 27.006(b). Id. § 27.003(c). Section 27.006(b) states, “[o]n a motion by a party or on the court‘s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.” Id. § 27.006(b).

A hearing on a motion under section 27.003 must be set not later than the thirtieth day after the date of service of the motion unless the docket conditions of the court require a later hearing. Id. § 27.004. Section 27.005 of the TCPA, titled “Ruling,” states, in part, as follows:

(a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party‘s exercise of:

the right of free speech;

the right to petition; or

the right of association.

Id. § 27.005(a)-(b). A trial court “may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). In determining whether a legal action should be dismissed under the TCPA, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a).

Section 27.008 of the TCPA is titled “Appeal.” Id. § 27.008. That section provides:

(a) 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.

(b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court‘s failure to rule on that motion in the time prescribed by Section 27.005.

(c) An appeal or other writ under this section must be filed on or before the 60th day after the date the trial court‘s order is signed or the time prescribed by Section 27.005 expires, as applicable.

Id. Finally, where a court orders dismissal of a legal action under the TCPA, the court shall award to the moving party: (1) court costs, reasonable attorney‘s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions. Id. § 27.009(a).

II. BACKGROUND

Jaiyeola filed the instant lawsuit on March 1, 2012. The return of service states that Summersett was personally served with citation on March 5, 2012. Summersett and Garza filed a general denial on March 23, 2012. Summersett filed a first amended answer on April 16, 2012 raising additional defenses, including the assertion that the injunctive relief sought by Jaiyeola constituted an unconstitutional restraint on speech, that Summersett‘s conduct was privileged, that Jaiyeola committed breach of contract, and that Jaiyeola‘s claims were barred by the peer review privilege and the release doctrine, and that Jaiyeola failed to exhaust her administrative remedies. On May 7, 2012, Summersett filed a motion to dismiss under the TCPA.

On May 11, 2012, Summersett filed a motion for leave to file the motion to dismiss. In his motion for leave, Summersett asserted that because he “was never properly served” with Jaiyeola‘s petition, he did not believe that a motion for leave was required in order for his motion to dismiss to be considered properly filed; however, he was filing the motion for leave “out of an abundance of caution.” According to the motion for leave:

... Summersett‘s Anti-SLAPP Motion to Dismiss involves a statutory deadline to file sixty days after being served. On Monday, May 7, 2012, Summersett learned that the return of service indicates he was personally served on March 5, 2012. If that service was proper (Summersett believes it was not), then sixty days from that date was May 4, 2012. Summersett filed his anti-SLAPP Motion to Dismiss on Monday, May 7, 2012.

... To date, Summersett has never been properly served with the summons in this case. While Summersett‘s ability to contest service of process through a Motion to Quash is no longer an option because he has made an appearance, the fact remains that he was never properly served with Plaintiff‘s Original Petition. Summersett received his citation and a copy of Plaintiff‘s Original Petition from co-defendant, Ruben Garza, whom is not Summersett‘s agent and, therefore, not authorized to accept service on his behalf.

... Defendant Ruben Garza received Plaintiff‘s Original Petition on March 5, 2012, for Summersett .... It is in the course of Knapp Medical Center‘s (the “Hospital‘s“) business that Garza routinely accepts service on behalf of the Hospital .... After receipt of Plaintiff‘s Original Petition, Garza then realized that he and Summersett were being sued in their individual capacity .... Though he was never personally served, sometime later, Summersett received Plaintiff‘s Original petition from Garza.

(footnote omitted). In a footnote, Summersett alleged that he had made his appearance in the suit on March 19, 2012, when he had filed an agreed order. In so alleging, Summersett provided citation to Texas Rule of Civil Procedure 120. See TEX.R. CIV. P. 120. Summersett thus requested an extension of time to file the motion to dismiss.

Summersett supported his motion for leave with his personal affidavit in which he stated that he had “never been personally served by a process server,” that “in the regular course of business,” Garza reg-ularly accepted service on behalf of Knapp, and that on March 5, “Garza received a citation intended for me,” and “[s]ometime later, I received the citation and Petition from Mr. Garza.” Summersett also included the executed officer‘s return for the citation stating that personal service was made on Summersett on March 5, 2012. Summersett also included an affidavit filed by one of his lawyers discussing the foregoing matters, disagreeing that the statutory deadline for filing the motion to dismiss had expired but stating that if the motion to dismiss was filed after the deadline, the error was not intentional and the “uncertainty” regarding the “effective date of service contributed to the mistake.”

In response to the motion to dismiss, Jaiyeola filed a motion for sanctions against Summersett‘s counsel under Rule 13 of the Texas Rules of Civil Procedure. See TEX.R. CIV. P. 13 (providing sanctions for pleadings that are groundless or brought in bad faith or for the purposes of harassment). Jaiyeola contended that the motion to dismiss was groundless and Summersett‘s attorney was “using a motion with an automatic discovery stay provision to further delay this case and the Plaintiff from obtaining information necessary to the prosecution of her case.”³

The trial court held a hearing on the motion to dismiss that began on May 21, 2012, but was recessed and concluded on June 6, 2012. The court took judicial notice of the contents of its file and admitted evidence pertaining to the issue of service of citation and the merits of the motion to dismiss. Included in the evidence was an affidavit from Garza stating that Summersett did not authorize him to accept service on “his personal behalf.”

The trial court informed the parties that he was denying the motion for leave, and questioned whether that disposed of the motion for sanctions. The court ultimately ruled that the motion for sanctions “is denied if it‘s not moot.”

With regard to the motion to dismiss, the trial court initially stated that “I will rule that it is dismissed by operation of law.” After subsequent argument by counsel for Jaiyeola, the trial court stated “I have specifically ruled that the Motion for Leave is denied. And my thought was that that rendered the matter of the Motion to Dismiss moot, or alternatively, that it was by operation of law.” After further discussion, the court retracted its earlier oral ruling and stated that “[t]he only order I‘m entering today is that the Motion for Leave is denied.” The trial court entered a written order denying the motion for leave that same day. The trial court did not enter a ruling, either orally or in writing, on the motion to dismiss itself.

III. JURISDICTION

Jaiyeola has filed a motion to dismiss this appeal on grounds that (1) there is no statutory right to appeal the denial of a motion for leave or motion for extension of time, or alternatively, (2) the appeal was not timely filed because if such a right to appeal existed, it would be governed by the general rules for interlocutory appeals rather than the statutory rules for appeals under the TCPA. Compare TEX.R.APP. P. 26.1(b) (requiring the notice of appeal in an accelerated appeal to be filed within twenty days), with TEX. CIV. PRAC. & REM.CODE ANN. § 27.008(c) (requiring the notice of appeal under the statute to be filed within sixty days). Summersett has filed a re-sponse to the motion to dismiss, and Jaiyeola has filed a reply thereto.

The cases that have discussed the statutory right to appeal under this section to date have not addressed whether or not the statute provides for an appeal of a denial of a motion for leave or motion for extension of time. Currently, the cases that have addressed the scope of the right to appeal have disagreed regarding whether the statute provides for interlocutory appeals when the motion to dismiss is overruled both by express order and by operation of law. Compare

San Jacinto Title Servs. of Corpus Christi, LLC v. Kingsley Props., LP, No. 13-12-00352-CV, ___ S.W.3d ___, 2013 WL 1786632, at *6, 2013 Tex.App. LEXIS 5081, at *15 (Tex.App.-Corpus Christi April 25, 2013, no pet. h.) (motion for rehearing pending) (concluding that the statute allows an interlocutory appeal whether the motion to dismiss is determined by express order or by operation of law), and (op. on order) (same), with (concluding that the statute does not allow an interlocutory appeal when the motion to dismiss is determined by express order), and (same). Based on statutory construction, we have already determined that an appellant may appeal either the express denial of a motion to dismiss or the trial court‘s failure to rule on a motion to dismiss within the statutory time limit. . The statute does not expressly address whether there is a right to appeal motions for extension of time.

In construing a statute, our primary objective is to give effect to the legislature‘s intent. See

Tex. Lottery Comm‘n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010) (citing ). In determining the legislature‘s intent, we begin by looking to the plain meaning of the statute‘s words. ; . “The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” ; .

In the instant case, the statute expressly provides that if the trial court does not rule on “a motion to dismiss” in the time prescribed by section 27.005, that is, “not later than the 30th day following the date on the hearing on the motion,” the motion is “denied by operation of law” and “the moving party may appeal.” TEX. CIV. PRAC. & REM.CODE ANN. § 27.008(a). The statute directs the appellate courts to “expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court‘s failure to rule on that motion in the time prescribed by Section 27.005.” See id. § 27.008(b). The statute includes an express and specific deadline for appeals under the statute: an “appeal or other writ under this section must be filed on or before the 60th day after the date the trial court‘s order is signed or the time prescribed by Section 27.005 expires, as applicable.” See id. § 27.008(c). The statute makes no appellate provisions regarding motions for extension of time to file a motion to dismiss, and the specific language allowing for an appeal is limited to the trial court‘s ruling, or lack thereof, on the motion to dismiss itself.

Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides such jurisdiction.

Koseoglu, 233 S.W.3d at 840; . We strictly construe statutes that provide for interlocutory appeal as “narrow exception[s] to the general rule that only final judgments are appealable.” (quoting ). The question of jurisdiction is a question of law, which we review de novo. ; .

Thus, while we construe the substantive provisions of the TCPA “liberally” to “fully” effectuate its purpose and intent, see TEX. CIV. PRAC. & REM.CODE ANN. § 27.011(b), we narrowly and strictly construe the interlocutory right to appeal under the TCPA.

Koseoglu, 233 S.W.3d at 841. Thus, we conclude that the statute does not “explicitly” grant the right to appeal from the denial of motions for leave to file a motion to dismiss. See . Our inquiry does not end here, however, because on appeal, Summersett contends that the trial court “expressly ruled that he would allow the Motion to Dismiss to be denied ‘by operation of law’ under Texas Civil Practice and Remedies Code § 27.008(a).”

This contention is rebutted by the hearing transcript. At the hearing, the trial court expressly ruled that “I‘m denying the Motion for Leave,” then questioned the parties regarding whether or not that ruling rendered Jaiyeola‘s motion for sanctions moot. The trial court then ruled that the motion for sanctions was denied “if it‘s not moot.” Counsel for Summersett requested that the trial court affirmatively rule on the motion to dismiss in order to avoid “confusion” regarding when the appellate time table began. The trial court responded that “I will rule that it is dismissed by operation of law,” then after further discussion, stated that “I have specifically ruled that the Motion for Leave is denied. And my thought was that that rendered the matter of the Motion to Dismiss moot or, alternatively, that it was [overruled] by operation of law. Is that not the view?” Counsel for Summersett again requested that the trial court “enter an order disposing of the Motion to Dismiss,” and the trial court finally concluded that “[t]he only order I‘m entering today is that the Motion for Leave is denied.” Summersett raised this issue again at a subsequent hearing and the trial court again reiterated that the motion for leave was denied.

We disagree with Summersett‘s premise that the trial court allowed the motion to dismiss to be filed so that it could be overruled by operation of law. First, the foregoing colloquy indicates that the trial court retracted his original statement that he would “rule that it is dismissed by operation of law,” thus the record does not show an express ruling that the motion to dismiss was denied by operation of law and it certainly does not invoke the right to appeal embodied in section 27.008 as suggested by Summersett. Second, even if we were to conclude otherwise, we are not bound by a trial court‘s conclusion on an issue of law. See

BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002) (holding that appellate courts may review trial court‘s legal conclusions to determine their correctness). A trial court‘s denial of a mo-tion for leave or a motion for extension of time to file a motion to dismiss is neither a ruling on the merits of the motion to dismiss, nor a denial “by operation of law” of a motion to dismiss. And third, as stated previously, the trial court did not grant the motion for leave and did not render an order denying the motion to dismiss. In such circumstances, where the record shows that the motion to dismiss was filed after the expiration of the statutory deadline for filing such a motion, we do not infer or presume that the motion to dismiss was overruled based on the operation of law.

Finally, even if we were to conclude that the statute allows an interlocutory appeal from the denial of a motion for leave to file a motion to dismiss, which we do not, we would conclude that the trial court did not abuse its discretion in denying the motion for leave. In this regard, Summersett asserts that the trial court reversibly erred by not finding “good cause” to file the motion to dismiss late. The trial court was presented with conflicting evidence regarding whether Summersett was served on March 5, 2012. “The return of service is not a trivial, formulaic document,” but is “prima facie evidence of the facts recited therein.”

Primate Constr. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). The return of service in the record, which states that Summersett was served in person, constitutes prima facie evidence of the facts recited, and the recitations “carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.” See Moreover, a person within the jurisdiction of a court generally has an obligation to accept service of process when it is reasonably attempted. See ; see also ; . A defendant who does not physically accept citation is held to have been personally served as long as the return affirmatively shows the papers were deposited in an appropriate place in his presence or near him where he is likely to find them, and he was informed of the nature of the process and that service is being attempted. ; see also ; . In the instant case, the evidence is undisputed that Summersett was informed of the nature of the process and of the fact that service was being attempted.

Finally, and significantly, Summersett has explicitly recognized that he made a general appearance in this case in March. Although Summersett contends that the general appearance prohibits him from contesting service of process through a motion to quash, he contends that “the fact remains that he was never properly served.” However, when a defendant‘s attorney enters an appearance in open court, such appearance “shall have the same force and effect as if the citation had been duly issued and served as provided by law.” See TEX.R. CIV. P. 120. Any defect in service is cured by a general appearance. See

Baker v. Monsanto Co., 111 S.W.3d 158, 160-61 (Tex.2003). Stated otherwise, the filing of an answer or entering some other appearance generally waives any defect in the service of citation. Here, Summersett made a general appearance through filing an agreed order and filing his answer in the case, and therefore cured or waived any alleged defect in service of citation.

IV. CONCLUSION

The Court, having examined and fully considered the briefs, the motion to dismiss and the response and reply thereto, is of the opinion that we lack jurisdiction over this appeal. Accordingly, we grant Jaiyeola‘s motion to dismiss. This appeal is dismissed.

Douglas HOOPES, Appellant v. The STATE of Texas, Appellee.

No. 07-12-00201-CR.

Court of Appeals of Texas, Amarillo.

May 22, 2014.

Rehearing Overruled July 10, 2014.

John G. Jasuta, for Douglas Hoopes.

Rosemary Lehmberg, for The State of Texas.

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Appellant Douglas Hoopes appeals from his conviction of the felony offense of violation of a protective order¹ and the resulting sentence of seven years of imprisonment. He presents two issues. We will reverse the judgment of the trial court and render a judgment of acquittal.

Background

Appellant was charged by indictment with the misdemeanor offense of violation of a protective order, enhanced by two prior convictions for that offense, into a third degree felony.²

Evidence at trial showed that after a hearing in September 2011 at which appellant was present, a Travis County district court issued an order for the protection of appellant‘s ex-wife and their children. The order prohibited appellant from approaching within 200 yards of his ex-wife and their children, and included his former

Notes

Garza is not a party to this appeal. TEX. PENAL CODE ANN. § 25.07 (West 2013).

Even though the TCPA is of recent origin, it has been the genesis for numerous appeals and original proceedings. See, e.g., ; ; ; ; ; ; ; ; ; ; ; ; see also ; . TEX. PENAL CODE ANN. § 25.07(g) (West 2013).

Jaiyeola ultimately filed a motion to compel discovery against Summersett. The trial court‘s order on discovery is the subject of an original proceeding in this Court. See .

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