Garcia v. Semler

NELLY SUAREZ GARCIA, Appellant v. LORRIE SEMLER, Appellee

No. 05-21-00750-CV

Court of Appeals of Texas, Fifth District, Dallas

December 30, 2022

On Appeal from the 14th Judicial District Court Dallas County Texas Trial Court Cause No. DC-20-04494

Before Justices Myers, Nowell, and Rosenberg, J. ^[1]

OPINION

BARBARA ROSENBERG JUSTICE, ASSIGNED.

Appellant Nelly Suarez Garcia sued appellee Lorrie Semler for defamation and malicious prosecution. Semler moved to dismiss the case under the Texas Citizens Participation Act (TCPA) and the trial court granted her motion. Garcia appeals, in six issues, complaining about the court's failure to hold an oral hearing consideration of Semler's evidence, and application of the TCPA. We conclude the trial court did not err by granting the motion to dismiss and affirm.

BACKGROUND

In March 2020, Garcia filed her original petition against Semler, asserting claims for malicious prosecution and defamation. In her live petition, Garcia alleged the following facts:

On or before August 16, 2019, Semler placed several estate-sale yard signs around the Town of Addison in violation of an Addison sign ordinance. On August 16, 2019, Semler gave false information to Addison's police and prosecutor, claiming that Garcia had sought to deprive Semler of tangible personal property- namely, one of the estate-sale signs. This resulted in a criminal prosecution against Garcia for theft. Additionally, from August 16 to August 20, 2019, Semler published several defamatory statements about Garcia on Facebook.

The criminal prosecution against Garcia went to trial, and she was acquitted.

Semler answered and on May 26, 2020, filed a motion to dismiss under the TCPA, Chapter 27 of the Texas Civil Practice and Remedies Code. Semler argued that Garcia's claims for malicious prosecution and defamation were based on or in response to Semler's exercise of her right to petition and right of free speech, respectively. Semler also requested her court costs and reasonable attorney's fees.

In June 2020, Semler filed a notice that her motion to dismiss would be heard on July 15, 2020, at 11:00 a.m., and then she filed an amended notice that her motion would be heard on July 16, 2020, at 11:00 a.m.

On July 9, 2020, Garcia filed a response to Semler's TCPA motion to dismiss. The response included objections to evidence attached to Semler's motion to dismiss. On July 13, 2020, Semler filed a reply.

The trial court cancelled the oral hearing and announced it would consider Semler's TCPA motion on submission. The record reflects that this occurred on July 15 or 16, 2020. The fact that the trial court heard the motion by submission is reflected on the trial court's docket sheet, and it is asserted in Garcia's appellate brief without contradiction by Semler. See TEX. R. APP. P. 38.1(g).

On July 31, 2020, the trial court signed an order granting Semler's motion to dismiss and permitting Semler to submit additional evidence to support an award of attorney's fees and costs. Garcia appealed this order, but we dismissed her appeal for want of jurisdiction. Garcia v. Semler, No. 05-20-00761-CV, 2021 WL 1381156, at *1 (Tex. App.-Dallas Apr. 13, 2021, no pet.) (mem. op.).

In the interim, Semler filed evidence of her attorney's fees. On April 26, 2021, after we had dismissed Garcia's appeal, Garcia filed a motion for reconsideration in the trial court, arguing, among other things, that the TCPA required the trial court to hold a hearing but the trial court had not set a hearing on Semler's TCPA motion to dismiss. Semler filed a response to the motion to reconsider on June 3, 2021, arguing, among other things, that the TCPA does not require an oral hearing.

On July 6, 2021, the trial court held an oral hearing on Garcia's motion to reconsider and later signed an order denying the motion. Semler also filed additional evidence about her attorney's fees.

On August 4, 2021, after a hearing about Semler's attorney's fees, the trial court signed a Final Judgment and Order Granting Attorneys' Fees. The trial court awarded Semler fees of $22,150.00, plus additional amounts for appellate attorney's fees, and postjudgment interest.

Garcia appealed the final judgment, raising the following six issues:

1. Whether the District Court should have held a hearing on the TCPA motion.

2. Whether Semler's evidence established the applicability of the TCPA to Garcia's claims.

3. Whether Garcia's unrebutted summary-judgment evidence established the required elements of Garcia's defamation claim.

4. Whether Garcia's unrebutted summary-judgment evidence established the required elements of Garcia's malicious-prosecution claim.

5. Whether Garcia's unrebutted summary-judgment evidence precluded as a matter of law Semler's defenses or inferential rebuttals to Garcia's malicious-prosecution claim.

6. Whether the District Court should have denied attorney's fees to Semler and actually awarded them against her.

DISCUSSION

A. Whether the TCPA requires the trial court to hold an oral hearing (Issue 1).

In her first argument, Garcia contends that the trial court's judgment should be reversed because the trial court erred in cancelling the oral hearing on Semler's TCPA motion and instead granted the motion after considering it submitted on the parties' filings. Garcia argues the TCPA requires an oral hearing on a motion to dismiss. Both sides agree that no Texas court has decided whether the TCPA mandates an oral hearing, and we have found no such case. Whether an oral hearing is required for the submission of a TCPA motion to dismiss presents a question of statutory interpretation, so our standard of review is de novo. See Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.-Dallas 2019, pet. denied).

Garcia recognizes Martin v. Martin, Martin &Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam), for the proposition that "[u]nless required by the express language or the context of the particular rule, the term 'hearing' does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court." But she then takes the position that we should interpret the TCPA as requiring an oral hearing for the same reasons the Supreme Court of Texas held that a rule 165a motion for reinstatement required an oral hearing in Gulf Coast Investment Corp. v. NASA 1 Business Center. See 754 S.W.2d 152, 153 (Tex. 1988) (per curiam) (holding trial court abused its discretion by refusing to hold an oral hearing on a rule 165a motion to reinstate an action dismissed for want of prosecution). Specifically, the Gulf Coast court held that rule 165a required an oral hearing because that rule required the judge to (1) set a hearing on a motion to reinstate as soon as practicable and (2) notify all parties or their attorneys of the date, time, and place of the hearing. Id. Garcia argues that the TCPA is analogous to rule 165a because the TCPA repeatedly uses the word "hearing"^[2] and also requires the movant to give written notice of the "date and time" of the hearing. See TEX. CIV. PRAC. &REM. CODE ANN. § 27.003(d). She does not address the fact that the TCPA does not require notice of the "place" of a hearing, unlike rule 165a. Compare id. with TEX. R. CIV. P. 165a(3).

Semler responds that the TCPA does not require an oral hearing. She analogizes the TCPA to Texas summary-judgment practice, relying upon the Supreme Court of Texas's opinion in Martin. In that case, the court held that an oral hearing is not mandatory on a summary-judgment motion. 989 S.W.2d at 359. Semler argues that although the TCPA contemplates a hearing, there is no provision in the TCPA that expressly calls for a personal appearance or oral presentation to the trial court. Rather, she argues, the TCPA provides the same framework to dispose of a TCPA motion to dismiss as the summary-judgment framework found in rule 166a.

We agree with Semler. In Martin, the Supreme Court of Texas held that although rule 166a(c) calls for a hearing on a summary-judgment motion, an oral hearing is not mandatory because "oral testimony cannot be adduced in support of or opposition to a motion for summary judgment." Id. The court further explained: "The hearing date determines the time for response to the motion; without notice of hearing, the respondent cannot know when the response is due." Id. Both reasons also apply to the current TCPA.

First, with respect to live testimony, before the 2019 amendments to the TCPA,^[3] the Texas courts of appeals were split on the question about whether live testimony was permitted at a TCPA hearing. See Columbia Valley Healthcare Sys., L.P. v. Pisharodi, No. 13-18-00660-CV, 2020 WL 486491, at *6 n.9 (Tex. App.- Corpus Christi-Edinburg Jan. 30, 2020, no pet.) (mem. op.) (discussing the split). When the legislature amended § 27.006 in 2019, it authorized consideration of the kind of evidence that may be considered in the summary-judgment context. Section 27.006(a) now states as follows:

In determining whether a legal action is subject to or should be dismissed under this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.

TEX. CIV. PRAC. &REM. CODE ANN. § 27.006(a) (emphasis added). As the Martin court held, rule 166a allows evidence only in certain forms and specifically states that "[n]o oral testimony shall be received at the hearing." TEX. R. CIV. P. 166a(c). Live testimony is also not enumerated within the list contained in § 27.006. Thus, we conclude that the TCPA, as amended in 2019, like rule 166a, does not permit the...