The Fifth Court of Appeals in Dallas has given a trial court judge in Dallas two options: hold a hearing by Thursday on a Texas Citizens Participation Act motion to dismiss that’s been pending before her since Dec. 15, or allow for some discovery in the underlying dispute and hold a hearing by April 15.
“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,” the three-justice panel wrote in a March 11 opinion directed at Dallas County District Judge Staci Williams.
In the case at issue, Dr. Violetta Lozovyy and High Risk Pregnancy Doctors argue that Faruza Akmedjanova filed an invasion of privacy lawsuit against them in response to their filing of a debt collection action. Lozovyy and HRPD allege that because the suit was brought in response to their right to petition, the state’s anti-SLAPP law — which is intended to bring an early end to so-called strategic lawsuits against public participation that are filed to chill free speech — applies and the action should be dismissed under the TCPA.
The TCPA’s statutory framework requires dismissal motions be heard and resolved on an expedited basis.
“If the motion is denied, whether by ruling or by operation of law, the movant has a statutory right to an interlocutory appeal,” the Fifth Court of Appeals explained. “But this procedural framework can be undermined when a trial court refuses or fails to hold a timely hearing. Absent a timely hearing, the movant forfeits TCPA relief and the court of appeals loses jurisdiction to consider any interlocutory appeal.”
Here, Lozovyy and HRPD attempted to get a hearing on the docket six times. But Judge Williams’ staff told the them that, while it does its best to accommodate requests for hearings, its docket is “jammed packed” and “there is no way to SQUEEZE your motion into the requested docket.”
For Joshua Graham, the North Richland Hills lawyer who represents Lozovyy and HRPD, this marks his second time filing a petition for writ of mandamus after a trial court failed or refused to set a timely hearing on his TCPA motion to dismiss.
The first time was in November 2019 when he was representing Aaron Herbert against Kasey Krummel and Dallas County Court-at-Law Judge D’Metria Benson did not set a hearing.
“That was a case where the court deliberately and intentionally refused to set a hearing,” he said. “I sent an associate down to court to set a hearing and she refused to hear the associate, canceled her afternoon docket and locked the courtroom so she couldn’t come back and address the issue. … We documented very thoroughly through letters to the court what the circumstance was, and the court of appeals ordered the judge to have a hearing the very next day.”
That’s very different than what happened here, Graham said.
“What distinguishes the two cases is, in the current case, the court only hears these types of motions on Mondays, and three Mondays were absorbed by holidays — Christmas, New Year’s and Martin Luther King Day,” he said, noting a recent change in the statute that increased the amount of days notice required prior to a hearing also complicated scheduling. “So the clock goes by so fast … and if you look at the court’s docket, it’s massive, and we’re experiencing some rollover from COVID. That’s not over yet.”
He said he believes the solution to the problem he’s now encountered twice is education — court coordinators need to be aware of the statutory deadlines triggered by the filing of a TCPA dismissal motion.
“They need to know that when a motion to dismiss under Chapter 27 is filed they need to be prepared for the request for hearing and what the options are,” he said.
Stephen Jones of Jaffer and Associates, who represents real party in interest Akhmedjanova, did not respond to a message seeking comment.
Paul Watler, a partner at Jackson Walker who specializes in First Amendment law, said more communication between court coordinators and judges could alleviate the issue.
“A lot of times, busy district judges are relying on staff to set hearings, and maybe the staff doesn’t have particular knowledge of statutory requirements for hearings,” he said. “It’s not unusual for a court coordinator to hear from a lawyer, anxious to set a hearing, ‘I really need to get my hearing set,’ and it kind of all sounds the same and becomes noise to a court coordinator who is doing a good job under difficult conditions.”
The case offers lessons to judges, who should train staff on when to elevate a request for hearing, as well as to lawyers, Watler said.
“You can’t sit idly by and make one request for a hearing and let time expire, because then you’re out of luck,” he said. “You have to be diligent and persistent and make a record that you’ve sought a hearing and done everything reasonable in your power to get it set. And if you don’t do that, you can forfeit your right to a hearing.”
Chief Justice Robert D. Burns III, who is not seeking reelection to the bench, authored the court’s opinion. Judge Williams, who is running for chief justice of the Fifth Court of Appeals, defeated her opponent Justice Dennise Garcia in the Democratic primary and will face Republican candidate J.J. Koch, who currently presides over Criminal District Court No. 2 in Dallas County, in the November general election.
Justices Ken Molberg and Maricela Moore Breedlove also sat on the panel for the Fifth Court of Appeals.
Lozovyy and High Risk Pregnancy Doctors are also represented by Kevin C. Smith of Joshua Graham Trial Lawyers.
The case number is 05-24-00195-CV.