in Re Daniel Dror II ( 2022 )

Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed October 5, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00646-CV
IN RE DANIEL DROR, II, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
164th District Court
Harris County, Texas
Trial Court Cause No. 2022-31881
MEMORANDUM OPINION
On September 7, 2022, Relator Daniel Dror, II (“Relator”) filed a petition
for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also
Tex. R. App. P. 52. In the petition, Relator asks this Court to compel the
Honorable C. Elliott Thornton, presiding judge of the 164th District Court of
Harris County, to schedule a hearing on Relator’s motion to dismiss plaintiffs’
defamation and business disparagement claims pursuant to Chapter 27 of the Texas
Civil Practice and Remedies Code on or before September 22, 2022, or if the trial
court is unable to do so due to the trial court’s docket conditions, on or before
October 21, 2022. In his sole issue, Relator contends that the trial court abused its
discretion by refusing to hold a timely hearing on Relator’s TCPA motion to
dismiss despite Relator’s reasonable requests to the trial court for that hearing and
that Relator is entitled to relief because he does not have an adequate remedy by
appeal. We conditionally grant the requested mandamus relief.
BACKGROUND
On May 26, 2022, Real Parties in Interest Gabriela Dror, and on behalf of
D.A.D., a minor child, and Gabriela Dror, LLC (“Real Parties”), plaintiffs in the
trial court, filed defamation and business disparagement claims against Relator
Dror. The Real Parties allege that Relator made defamatory statements regarding
the Real Parties arising out of pending litigation concerning the probate of an
estate.1 Relator asserted counterclaims against real party Gabriela Dror for breach
of contract, tortious interference, and conversion.
Relator filed a motion to dismiss plaintiffs’ defamation and business
disparagement claims under the Texas Citizens Participation Act (“TCPA”),2
claiming the Real Parties’ broad, unspecified allegations of defamation and
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On March 15, 2021, Relator’s father, who also was Gabriela’s husband and father to D.A.D.,
died. The probate of the estate is pending in probate court in Harris County.
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Strategic Lawsuits Against Public Participation (“SLAPP”) are frivolous or meritless lawsuits
filed by plaintiffs who attempt to silence or chill their critics’ First Amendment activities. In 2011, Texas
codified its anti-SLAPP statute, the Texas Citizens Participation Act, found at Chapter 27 of the Texas
Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 27.001, et seq. The TCPA was
enacted “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.” Id.§ 27.002.
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business disparagement fall within the protections afforded by the TCPA. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 27.001–.011.1. The record shows that Relator
Dror served his TCPA dismissal motion on July 24, 2022, and filed it on July 25,
2022.
On August 11, 12, and 15, 2022, counsel for Relator emailed the trial court’s
staff to obtain a hearing date for the TCPA motion to dismiss. On August 15,
2022, the trial court’s clerk provided a hearing date of January 11, 2023. Counsel
responded that the proposed hearing date would not comply with the requirements
of the TCPA. On August 16, 2022, counsel for Relator spoke with the trial court’s
assistant clerk by telephone, and the assistant clerk indicated that counsel would
need to file a motion for emergency hearing in order to obtain a hearing date that
complied with the statutory deadlines of the TCPA.
On August 22, 2022, following the assistant clerk’s instruction, Relator filed
a motion for emergency hearing on the motion to dismiss. Relator’s counsel
emailed the assistant clerk on August 23, 2022, to request that the motion be
submitted to the trial court so that a hearing could be set on the motion to dismiss
in accordance with the statutory deadlines of Chapter 27. The trial court’s
coordinator responded with the following, “This case has been set on our two-week
trial docket beginning March 13, 2023 and a DCO has been issued.” The trial
court signed an order denying relator’s motion for emergency hearing on August
23, 2022.
Prior to receiving the trial court’s order denying an emergency hearing, on
August 24, 2022, counsel for Relator filed a letter with the trial court advising the
court of the status, the statutory compliance deadlines, and exchanges with the
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court’s staff and that a hearing in January 2023, and a trial setting in March 2023,
will not satisfy the mandates of Chapter 27, which strictly require that a hearing on
a motion to dismiss be scheduled no later than sixty days after the motion is
served, or no later than ninety days after service of the motion if the docket
conditions of the court require a later hearing, upon a showing of good cause, or by
agreement of the parties.
On September 7, 2022, Relator filed his petition for writ of mandamus. On
September 9, 2022, we requested Real Parties to file their response to the petition,
if any, by September 14, 2022; however, they did not file a response.
MANDAMUS STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, the relator must show that
the trial court clearly abused its discretion, and that the relator lacks an adequate
remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig.
proceeding) (per curiam). A trial court abuses its discretion if it acts arbitrarily,
unreasonably, or without regard to guiding legal principles. In re J.B. Hunt
Transp., Inc., 492 S.W.3d 287, 293–94 (Tex. 2016) (orig. proceeding). A trial
court has no discretion in determining what the law is or in applying the law to the
facts. Id. at 294; In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.
2004) (orig. proceeding). Thus, the trial court’s failure to analyze or apply the law
correctly constitutes an abuse of discretion. See In re Nationwide Ins. Co. of Am.,
494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).
Relator also must demonstrate that he does not have an adequate remedy at
law, such as a remedy by an appeal. See J.B. Hunt Transp., 492 S.W.3d at 299.
The adequacy of appeal as a remedy for an alleged clear abuse of discretion in an
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interlocutory ruling involves a balance of jurisprudential considerations that
“implicate both public and private interests.” In re Ford Motor Co., 165 S.W.3d
315, 317 (Tex. 2005) (orig. proceeding) (per curiam) (internal quotations omitted);
see also Prudential Ins. Co., 148 S.W.3d at 136. We determine the adequacy of an
appellate remedy by balancing the benefits of mandamus review against the
detriments. See In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.
proceeding) (per curiam); Prudential Ins. Co., 148 S.W.3d at 136.
HEARINGS ON TCPA DISMISSAL MOTIONS
A. SECTION 27.004 OF THE TEXAS CIVIL PRACTICES AND REMEDIES CODE
TCPA dismissal motions must be heard and resolved on an expedited basis.
The hearing generally must be held within sixty days after the motion is served.
Tex. Civ. Prac. & Rem. Code Ann. § 27.004(a). The deadline can be extended to
ninety days if the court’s docket conditions require it, good cause exists, or the
parties agree to an extension. Id. § 27.004(a), (b). The deadline can be extended to
120 days if the trial court allows discovery, but that is the maximum extension
permitted. Id. § 27.004(c).
Once a TCPA motion is heard, the trial court must rule on it within thirty
days or the motion is denied by operation of law. Id. §§ 27.005(b), 27.008(a).
A TCPA movant forfeits the motion if he fails to get a timely hearing of his
motion. In re Herbert, No. 05-19-01126-CV, 2019 WL 4509222, at *2 (Tex.
App.—Dallas Sept. 19, 2019, orig. proceeding) (mem. op.); (citing Braun v.
Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *3 (Tex. App.—Dallas Sept.
26, 2017, no pet.) (mem. op.)); see also Wightman-Cervantes v. Hernandez, No.
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02-17-00155-CV, 2018 WL 798163, at *1 (Tex. App.—Fort Worth Feb. 9, 2018,
pet. denied) (mem. op.) (a TCPA motion is not overruled by operation of law, and
no interlocutory appeal is permitted, if no hearing is held); accord RPM Servs. v.
Santana, No. 06-19-00035-CV, 2019 WL 4064576, at *1–2 (Tex. App.—
Texarkana Aug. 29, 2019, no pet. h.) (mem. op.).
B. TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO SET A TIMELY
HEARING
A trial court generally has a reasonable time within which to consider and
rule on a motion. In re Buholtz, No. 05-16-01312-CV, 2017 WL 462361, at *1
(Tex. App.—Dallas Jan. 31, 2017, orig. proceeding) (mem. op.). The
circumstances of the case determine whether the court has acted within a
reasonable time. See id. As set forth above, the TCPA presents special
circumstances by requiring TCPA motions to be heard within strict deadlines,
subject to limited extensions.
“Because the TCPA imposes strict deadlines on the hearing of a dismissal
motion, and because a party forfeits its dismissal motion if the deadline runs before
a hearing can be held, the trial court has less discretion to defer hearing a TCPA
motion to dismiss.” Hebert, 2019 WL 4509222, at *2. The trial court must set a
TCPA motion to dismiss for hearing within the applicable statutory deadline (sixty,
ninety, or one-hundred twenty days after service of the motion, depending on the
circumstances) if the movant makes reasonable efforts to obtain a timely hearing.
Id. We conclude that the record before the Court in this proceeding establishes that
Relator made reasonable efforts to obtain a hearing, but was unsuccessful in
obtaining a timely date from the trial court.
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Thus, we conclude the trial court abused its discretion by refusing to set and
conduct a hearing on Relator’s TCPA motion to dismiss within the applicable
statutory deadlines.
C. RELATOR HAS SHOWN HE HAS NO ADEQUATE REMEDY BY APPEAL
Moreover, we conclude that Relator has no adequate remedy by appeal. A
main purpose of the TCPA is to achieve the expeditious dismissal of unmeritorious
cases that come within its purview. See In re Lipsky, 460 S.W.3d 579, 586 (Tex.
2015) (orig. proceeding) (noting that TCPA creates “a special procedure for the
expedited dismissal” of covered suits). If we do not correct the trial court’s error
now, Relator’s dismissal motion will be forfeited, at least for purposes of the
TCPA’s expedited dismissal procedure and accompanying interlocutory appellate
remedy. See Tex. R. Civ. P. § 51.014(a)(12) (allowing interlocutory appeal from
order denying TCPA dismissal motion); see also Braun, 2017 WL 4250235, at *3
(defendant forfeits TCPA’s protections if it does not timely file its motion “and
obtain a hearing”). For these reasons, this is a case in which mandamus review is
“essential to preserve important substantive and procedural rights from impairment
or loss.” Prudential Ins. Co., 148 S.W.3d at 136. Accordingly, we conclude that
Relator lacks an adequate remedy by appeal. Cf. Braun, 2017 WL 4250235, at *3
n.4 (noting that appeal did not present question of whether movant would be
entitled to mandamus relief if trial court refused to set timely hearing).
CONCLUSION
We hold that Relator has established that the trial court abused its discretion
by refusing to hold a timely hearing on Relator’s TCPA motion to dismiss despite
Relator’s reasonable requests to the trial court for that hearing and that Relator
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does not have an adequate remedy by appeal. Therefore, we conditionally grant
the requested mandamus relief and direct the trial court to set Relator’s TCPA
dismissal motion for hearing no later than October 21, 2022. We are confident the
trial court will act in accordance with this opinion and the writ will issue only if the
trial court fails to comply.
PER CURIAM
Panel consists of Justices Spain, Poissant, and Wilson.
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