in Re: Mark Nusbaum, Chris Clark, and Lead Equity Group, LLC ( 2019 )

Writ Conditionally Granted; Opinion Filed September 23, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01016-CV
IN RE MARK NUSBAUM, CHRIS CLARK, AND LEAD EQUITY GROUP, LLC,
Relators
Original Proceeding from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-18-18742
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Nowell
Opinion by Justice Myers
Mark Nusbaum, Chris Clark, and Lead Equity Group, LLC seek a writ of mandamus
requiring the trial court to vacate its order denying relators’ motion to dismiss under the Texas
Citizens Participation Act (TCPA) because the trial court had granted the motion to dismiss in an
earlier order and the court signed the order denying the motion to dismiss more than thirty days
after the hearing on the motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–
.011.1 Because the trial court lacked authority to vacate its earlier order to grant the motion to
dismiss, we conditionally grant the writ.
1
The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to “an action filed on or after” that date.
Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687. Because the underlying lawsuit was filed before September
1, 2019, the law in effect before September 1 applies. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64,
amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. All citations to the TCPA are to the version before
the 2019 amendments took effect.
BACKGROUND
Real parties in interest Wellington Management, LLC, WRC Advisers, LLC, and David
Shaffer filed suit against relators, alleging relators breached their fiduciary duties, breached
contracts, tortiously interfered with contracts, were unjustly enriched, and stole trade secrets by
hiring the real parties in interest’s employees and opening a competing business. Relators moved
for dismissal under the TCPA of all the causes of action except theft of trade secrets.
The trial court held a hearing on the motion to dismiss on May 17, 2019.
Twenty-five days later, on June 11, the trial court signed an order granting the motion to
dismiss the seven causes of action.
On July 30, seventy-four days after the hearing, the trial court signed the “Order
Reconsidering and Denying TCPA Motion to Dismiss.” The July 30 order states the trial court
had further considered the motion to dismiss and concluded the motion to dismiss should be
denied.
Two days later, on August 1, relators filed a motion asking the trial court to vacate the July
30 order and reconsider its ruling denying the motion to dismiss, and they attached a copy of this
Court’s opinion in In re Hartley, No. 05-19-00571-CV, 2019 WL 2266672 (Tex. App.—Dallas
May 24, 2019, orig. proceeding [mand. pending]) (mem. op.). The trial court denied the motion
to reconsider.
AVAILABILITY OF MANDAMUS RELIEF
Mandamus generally issues to correct a clear abuse of discretion or the violation of a duty
imposed by law when there is no other adequate remedy at law. In re Prudential Ins. Co., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus is also proper, however, if a trial
court issues an order beyond its jurisdiction because such an order is void. In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). For example, mandamus is appropriate when
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a trial court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d 247,
250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66,
68–69 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show he lacks
an adequate appellate remedy to obtain mandamus relief. In re Sw. Bell Tel. Co., 35 S.W.3d at
605.
MOTION TO DISMISS UNDER THE TCPA
The TCPA “is directed toward the expeditious dismissal and appeal of suits that are brought
to punish or prevent the exercise of certain constitutional rights.” Direct Commercial Funding,
Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.] 2013,
no pet.). In keeping with that purpose, the TCPA requires the trial court to rule on the motion to
dismiss within thirty days of the hearing. CIV. PRAC. § 27.005(a). If the trial court does not rule
on a motion to dismiss under the TCPA within thirty days after the hearing, “the motion is
considered to have been denied by operation of law and the moving party may appeal.” Id.
§ 27.008(a).
In In re Hartley, this Court faced a nearly identical situation to that in this case. In that
case, the defendants filed a motion to dismiss under the TCPA. Hartley, 2019 WL 2266672, at
*1. The trial court held a hearing on the motion and, four days later, signed an order granting the
motion and dismissing the claims of one of the plaintiffs against the defendants. Id. Thirty-two
days after the hearing, the plaintiff whose claims were dismissed filed a motion for reconsideration.
Id. Seventy-seven days after the hearing, the trial court granted the plaintiff’s motion for
reconsideration, vacated the earlier order granting the motion to dismiss, and ordered that the
motion to dismiss was denied. Id. The defendants sought a writ of mandamus from this Court.
We determined the trial court “was statutorily prohibited” from granting the motion for
reconsideration more than thirty days after the hearing on the motion to dismiss and that the trial
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court’s order granting the motion for reconsideration, vacating the earlier order, and denying the
motion to dismiss was void. Id. at *3. We conditionally granted the petition for writ of mandamus
and ordered the trial court to vacate the order denying the motion to dismiss and to reinstate the
order granting the motion to dismiss. Id.
There is no meaningful distinction between this case and Hartley. The trial court in this
case, like the trial court in Hartley, was statutorily prohibited from reconsidering the granting of
the motion to dismiss and ordering the motion be denied more than thirty days after the hearing.
The real parties in interest argue that Hartley is distinguishable because they present arguments
and authorities that were not discussed in this Court’s opinion in Hartley. However, those
arguments do not distinguish Hartley. If we agreed with those arguments, we would have to
conclude Hartley was wrongly decided and must be overruled. We follow our own precedent.
Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 427 (Tex. App.—Dallas 2019, pet. denied).
“We may not overrule a prior panel decision of this Court absent an intervening change in the law
by the legislature, a higher court, or this Court sitting en banc.” MobileVision Imaging Servs.,
L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no
pet.). Accordingly, we adhere to our decision in Hartley.
We conditionally grant the writ of the mandamus. We direct the trial court to vacate the
July 30, 2019 order denying relators’ TCPA motion to dismiss and to reinstate the June 11, 2019
order granting relators’ motion to dismiss within thirty days of the date of this opinion. A writ
will issue if the trial court fails to comply.
191016F.P05 /Lana Myers/
LANA MYERS
JUSTICE
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