Borderline Management, LLC v. Suzann Ruff

Order filed June 20, 2019
In The
Eleventh Court of Appeals
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No. 11-19-00152-CV
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BORDERLINE MANAGEMENT, LLC, Appellant
V.
SUZANN RUFF, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C46164-1
ORDER
Suzann Ruff sued her son, Michael A. Ruff, and a number of entities,
including Borderline Management, LLC (Borderline). Suzann alleges that Michael
created these entities to hide assets that he had misappropriated from Suzann.
Borderline filed a motion to dismiss the claims against it pursuant to the Texas
Citizens Participation Act (the TCPA), and Suzann filed a motion to sever the claims
against Borderline from the claims against the other defendants.
On May 5, 2019, at 8:32 a.m., the trial court sent an e-mail to counsel making
general findings to the effect that Borderline’s motion to dismiss was untimely and
that Borderline failed to establish its right to dismissal under the TCPA. The trial
court denied Borderline’s motion to dismiss, awarded Suzann’s attorney fees, and
requested that Suzann’s counsel prepare an order as well as findings of fact and
conclusions of law. On May 5, 2019, at 8:37 a.m., the trial court sent a second e-
mail to counsel granting Suzann’s motion to sever and making no further requests
of counsel. At 12:00 a.m. on May 6, 2019, Borderline filed a notice of interlocutory
appeal from the trial court’s denial of the TCPA motion to dismiss. The trial court
signed an order on May 8, 2019, that denied the motion to dismiss, awarded Suzann
attorney’s fees incurred in responding to the motion to dismiss, and severed
Suzann’s claims against the other defendants.
Borderline has filed a “Motion for Clarification of Stay” in this court. In the
motion, Borderline requests that we determine that the trial court’s severance of
Suzann’s claims against the other defendants violated the automatic stay of all trial
court proceedings imposed by Section 51.014(b) of the Texas Civil Practice and
Remedies Code for an appeal of the denial of a TCPA motion to dismiss.
The Civil Practice and Remedies Code allows a party to bring an interlocutory
appeal from the trial court’s denial of a TCPA motion to dismiss. TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014(a)(1) (West Supp. 2018). The interlocutory appeal
“stays all other proceedings in the trial court pending resolution of that appeal.” Id.
§ 54.014(b). “[T]he stay set forth in section 51.014 is statutory and allows no room
for discretion.” In re Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin
2014, orig. proceeding) (alteration in original) (quoting Sheinfeld, Maley & Kay,
P.C. v. Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no pet.)); see
also Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 293 & n.22 (Tex. App.—
Austin 2018, pet. filed) (noting that filing of notice of appeal from denial of TCPA
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motion to dismiss triggered an automatic statutory stay of all trial-level proceedings
in their then-existing state). The automatic stay, however, does not take effect until
the interlocutory appeal is filed. See CIV. PRAC. & REM. § 51.014(b); Swanson v.
Town of Shady Shores, No. 02-15-00351-CV, 2016 WL 4395779, at *4–5 (Tex.
App.—Fort Worth Aug. 18, 2016, orig. proceeding) (mem. op.) (noting automatic
stay was triggered by filing of notice of interlocutory appeal).
The trial court’s e-mail regarding Suzann’s motion to sever stated, in present
tense language, that the motion was granted and did not contain a directive for
counsel to prepare an order. Further, the e-mail bears a “FILED” mark from the
district clerk’s office. Accordingly, the trial court arguably granted Suzann’s motion
to sever on May 5, 2019. See Tex. Dep’t of Criminal Justice v. Avellaneda, No. 11-
05-00414-CV, 2006 WL 1172253, at *2 (Tex. App.—Eastland May 4, 2006, no pet.)
(mem. op.).
The trial court’s e-mail denying Borderline’s motion to dismiss, however,
directed Suzann’s attorney to prepare an order, indicating that the trial court did not
intend for the e-mail to be the operative order as to Borderline’s motion to dismiss.
See Perdue v. Patten Corp., 142 S.W.3d 596, 602 n.8 (Tex. App.—Austin 2004, no
pet.). Therefore, the May 6, 2019 notice of appeal filed by Borderline from the
denial of the motion to dismiss was premature. Borderline’s premature notice of
appeal became effective, and was deemed filed, on May 8, 2019, after the trial court
signed the written order denying Borderline’s motion to dismiss and granting
Suzann’s motion to sever. See TEX. R. APP. P. 27.1(a).
Regardless of whether the trial court first granted Suzann’s motion to sever in
the May 5, 2019 e-mail or in the May 8, 2019 order, it did so before the automatic
stay became effective. See Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL
2255139, at *4–5 (Tex. App.—San Antonio May 13, 2015, pet. denied) (mem. op.)
(concluding that premature notice of appeal of order denying TCPA motion to
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dismiss did not become effective until after written order was signed and, therefore,
automatic stay did not deprive trial court of jurisdiction to simultaneously grant
temporary injunction and deny motion to dismiss).
We deny Borderline’s motion for clarification because the trial court did not
sign an order granting Suzann’s motion to sever after the automatic stay under
Section 51.014(b) of the Civil Practice and Remedies Code became effective. See
Swanson, 2016 WL 4395779, at *4. In doing so, we express no opinion on
Borderline’s arguments that the severance was improper or that the trial court abused
its discretion by including a ruling on Suzann’s motion to sever in the same order in
which it denied Borderline’s motion to dismiss.
PER CURIAM
June 20, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
4