While I had hoped the Texas Supreme Court’s next Anti-Slapp opinion would resolve the ROA conflict, instead we get In re. Praveen Panchakarla, No. 19-0585 (Tex. May 8, 2020) which breathes new life into motions to reconsider the grant of Texas Anti-Slapp motions.*
I blogged about this almost exactly a year ago when the Dallas COA issued a ruling granting a mandamus an ordering the trial court to reinstate a prior grant of a Texas Anti-Slapp.
As a refresher:
· On Feb. 22, 2019, the trial court granted the defendants’ Texas Anti-Slapp motion;
· On March 8, 2019, the Dallas COA issued Dyer v. Medoc No. 05-18-00472-CV, (constant readers know this was the death knell for ROA cases in the 5th District);
· On March 22, 2019. plaintiffs filed a motion for new trial, based on Dyer;
· On May 6, 2019, the trial court vacated its Order granting the dismissal;
· Movant appealed using both an interlocutory appeal and a mandamus action; and
· On May 24, 2019, the Dallas COA granted the mandamus, ordering the trial court to reinstate the dismissal Order.
Which brings us to the Texas Supreme Court ruling holding that the Dallas COA erred in granting the mandamus, reasoning that nothing prevents a trial court to reconsider a grant of a Texas Anti-Slapp dismissal order, provided plenary power exists:
In this case, unlike those the court of appeals relied on, the trial court made a timely ruling on the dismissal motion. The question presented is whether the trial court could vacate that timely issued order after Section 27.005(a)’s 30-day window closed. While the TCPA imposes myriad deadlines, no statutory provision speaks to this issue. See id. §§ 27.001–.011. Section 51.014 of the Civil Practice and Remedies Code constrains the trial court’s authority to act on a prior ruling, but only when an interlocutory appeal is pending. Section 27.005(a) requires a timely ruling, but says nothing about a trial court’s power to vacate such a ruling outside the statute’s 30-day deadline. To hold that the trial court had no power to vacate the dismissal order based on new precedent, as occurred here, would require us to “judicially amend” the TCPA “by adding words that are not contained in the language of the statute.” . . .
Put simply, nothing in the statutory scheme prohibits trial courts from vacating their own orders when they otherwise have plenary power to do so. Here, once the trial court vacated its February 22 order, as it had authority to do, no ruling on the dismissal motion was in place. Accordingly, the motion to dismiss was either overruled by operation of law for want of a timely ruling, see TEX. CIV. PRAC. & REM. CODE § 27.008(a), or denied by the trial court in a new trial.
From a timing perspective, this setup is not unique in Anti-Slapp cases. Two scenarios come to mind:
Scenario 1: Texas Anti-Slapp granted, only some of the claims are dismissed, and no appeal by the movant. Because there is no final judgment the case proceeds, carrying the dismissed claims until a final judgment is entered. It is possible there are multiple cases after Creative Oil that fall within this scenario.
Scenario 2: Cases where attorneys’ fees on a grant of Texas Anti-Slapp remain undecided. Rarely are attorneys’ fees decided the same day as the grant of the motion. Consider the COVID-19 situation.
With Court’s shut down any Texas Anti-Slapp granted in mid-March is more than likely still carrying the attorneys’ fees issue, meaning plenary power still exists because the final judgment has not issued.
Also, new decisions by the Texas Supreme Court or a new controlling opinion in the appropriate COA create a reconsideration scenario. And a reversal of a prior grant of a dismissal triggers the movant’s ability to appeal and stay the case.
Appellate attorneys just cancelled hair appointments at their favorite salon, choosing to reexamine cases in Scenario 1 or 2, as Justices in the COA just sigh.
And my next post may cause all trial court judges to pull out whatever hair they have left.
*Wick Phillips represented the movant in this case. My friend, Chad Ruback handled the appeal for the non-movant.