Gregory Sullo v. Felix Michael Kubosh A/K/A Kubosh Bail Bonding, Paul Kubosh A/K/A Kubosh Law Office

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER ON JOINT EMERGENCY MOTION

Appellate case name: Gregory Sullo and Brian Zimmerman v. Felix Michael
Kubosh a/k/a Kubosh Bail Bonding and Paul Kubosh a/k/a
Kubosh Law Office

Appellate case number: 01-18-00418-CV

Trial court case number: 2013-50819

Trial court: 333rd District Court of Harris County

Appellants, Gregory Sullo and Brian Zimmerman, and appellees/cross-appellants,
Felix Michael Kubosh a/k/a Kubosh Bail Bonding, and Paul Kubosh a/k/a Kubosh Law
Office, have filed a “Joint Emergency Motion by All Parties to Confirm the Scope of the
Automatic Stay or, Alternatively, Temporarily Lift the Automatic Stay” (hereinafter, the
“Joint Emergency Motion”). The Joint Emergency Motion seeks confirmation that the
automatic stay, imposed by Section 51.014(b) following the parties’ interlocutory appeals
from the trial court’s denial of their motions to dismiss under the Texas Citizens
Participation Act (the “TCPA”), tolls the June 11, 2018 hearing set by Brandon Nash, a
third party, for another TCPA motion to dismiss, and stays all other trial court
proceedings pending this Court’s resolution of their appeals. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.008(a), 51.014(a)(12), (b) (West 2014); TEX. R. APP. P. 29.3. In
the alternative, should this Court decide that the stay does not toll the TCPA deadlines,
the parties seek to temporarily lift the stay for the trial court to hear and rule upon Nash’s
TCPA motion.

The automatic stay imposed by section 51.014(b) creates a bright line rule, staying
“the commencement of a trial” for most interlocutory appeals under section 51.014(a),
and it “also stays all other proceedings in the trial court” pending resolution of any
interlocutory appeal filed under section 51.014(a)(12), as here. TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(a)(12), (b); In re I-10 Colony, Inc., No. 01-14-00775-CV, 2014 WL
7914874, at *2 (Tex. App.—Houston [1st Dist.] Feb. 24, 2014, orig. proceeding) (mem.
op.) (granting mandamus petition to direct trial court to vacate order compelling
discovery entered in violation of section 51.014(b) automatic stay); see also Craig v.
Tejas Promotions, LLC, No. 03-16-00611-CV, 2016 WL 4980505, at *1 (Tex. App.—
Austin Sept. 15, 2016, order) (granting motion to stay all trial court proceedings pending
resolution of interlocutory appeal, filed under section 51.014(a)(12), challenging denial
of TCPA motion to dismiss because section 51.014(b) automatic stay was statutory and
allowed no room for discretion). If the trial court holds a hearing or enters an order after
the automatic stay has been imposed, that would be a violation of section 51.014(b) and a
clear abuse of discretion. See In re Bliss & Glennon, Inc., No. 01-13-00320-CV, 2014
WL 50831, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, orig. proceeding)
(granting mandamus petition because trial court’s entry of severance order in violation of
section 51.014 stay was abuse of discretion); see also In re Tex. Educ. Agency, 441
S.W.3d 747, 750 (Tex. App.—Austin 2014, orig. proceeding) (granting mandamus
petition because district court’s conducting hearings and signing orders was abuse of
discretion since it violated automatic stay of section 51.014(b)).

Accordingly, the Court grants the Joint Emergency Motion and orders the trial
court to stay the June 11, 2018 hearing and all other trial-court proceedings, pending
this Court’s resolution of the interlocutory appeals. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(12), (b); TEX. R. APP. P. 29.3 (“When an appeal from an interlocutory
order is perfected, the appellate court may make any temporary orders necessary to
preserve the parties’ rights until disposition of the appeal and may require appropriate
security.”); see also In re I-10 Colony, Inc., 2014 WL 7914874, at *2.

It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes

Date: June 7, 2018