NUMBER 13-19-00627-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
IN RE FRAUDULENT HOSPITAL LIEN LITIGATION
On appeal from MDL No. 15-0360-H in the 444th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Currently before the Court is appellant MedData d/b/a Alegis Revenue Group,
L.L.C. (MedData)’s motion to dismiss this appeal.1 Because we lack jurisdiction over the
appeal, we grant MedData’s motion to dismiss and dismiss the appeal.
1 This case originated in trial court cause number C-2466-19-C in the 139th District Court of Hidalgo
County, Texas, which was transferred to MDL No. 15-0360-H in the 444th District Court of Cameron County,
Texas, for consolidated pretrial proceedings.
I. BACKGROUND
MedData filed this notice of appeal from MDL No. 15-0360-H, In re Fraudulent
Hospital Lien Litigation, pending in the 444th District Court of Cameron County, Texas.
MedData alleged that the judge of the MDL pretrial court had not ruled on MedData’s
motion to dismiss under the Texas Citizens Participation Act (TCPA) within the statutory
deadline, and accordingly, the motion was “considered to have been denied by operation
of law.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a), 27.008(a). This appeal
ensued.
On January 9, 2020, MedData filed a “Motion to Dismiss Appeal as Premature.”
This motion to dismiss states:
On December 19, 2019, this Court issued an order in a related appeal
holding that the underlying MDL litigation is stayed and any notices of
appeal relating to actions pending in that MDL proceeding are
premature. . . . On that basis, and without abandoning its position that each
case in an MDL proceeding is distinct, [MedData] acknowledges that the
Court’s ruling means that appellate jurisdiction has not vested in this Court.
Thus, on the basis of the Court’s ruling regarding the stay of the underlying
proceeding, this attempted interlocutory appeal may be dismissed. See
TEX. R. APP. P. 42.1(a)(1).
The “order” referred to in MedData’s motion to dismiss is this Court’s memorandum
opinion issued in cause numbers 13-19-00545-CV and 13-19-00547-CV. See In re
Fraudulent Hosp. Lien Litig., Nos. 13-19-00545-CV & 13-19-00547-CV, 2019 WL
6907087, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 19, 2019, orig. proceeding)
(mem. op.). MedData’s motion to dismiss is opposed by appellees, Dalia Aguilera, et al.,2
2 The appellees include: Dalia Aguilera, Elizabeth Arriaga, Juan Barreto, Angelica Borrego, Oscar
Bosques, Adriana Cantu, Oscar Centeno, Desiree Chapa, Roman Cordova, Santiaga Coronado, Daniel
Davila, Nora Estrada, Yessica Gaona, Ana Gasca, Juan Gomez, Aron Gonzalez, Corina Gonzalez,
Emmanuel Gonzalez, Maria Gonzalez, Veronica Gonzalez, Ruth Graham, Elsa Granados, Alejandro
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however, more than ten days have passed since the motion was filed and appellees have
not filed a response or other pleading in opposition to MedData’s motion. See TEX. R.
APP. P. 10.1(a)(5), 10.1(b), 10.3(a).
II. TCPA
“The Texas Citizens Participation Act is a bulwark against retaliatory lawsuits
meant to intimidate or silence citizens on matters of public concern.” Dallas Morning
News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); see In re Lipsky, 460 S.W.3d 579,
586 (Tex. 2015) (orig. proceeding). “The TCPA’s purpose is to identify and summarily
dispose of lawsuits designed only to chill First Amendment rights, not to dismiss
meritorious lawsuits.” In re Lipsky, 460 S.W.3d at 589; see TEX. CIV. PRAC. & REM. CODE
ANN. § 27.002 (“The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits for demonstrable injury.”). To
accomplish its purpose, the TCPA “endorses a summary process” that includes a
procedure for the expedited dismissal of such lawsuits. In re Lipsky, 460 S.W.3d at 589.
In accordance with this goal, the TCPA contains several specific procedural deadlines.
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b) (requiring the motion to dismiss to be
filed within sixty days from service of the legal action or claim implicating the TCPA);
Guajardo, Jeannette Guerrero, Leandra Hernandez, Maria Ibarra, Maribel Jacobo, Bette Loukakis, Victor
Luevano, Maria Martinez, Miriam Martinez, Justin Molina, Pedro Lopez Montalvo, Gerardo Montoya, Martin
Mora, Lorena Moreno, Neal Nelson, Jose Pecina, Felipa Perez, Consuelo Ramos, Sofia Rodriguez, Horacio
Saldana, Eradio Salinas, Annateresa Santamaria, Maria Santana, Hermelinda Sarreon, Jose Sauceda,
Manuel Trevino, Anthony Valadez, and Jose Valadez.
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§ 27.003(d),(e) (requiring twenty-one days’ notice of the hearing and the response, if any,
to be filed not later than seven days before the date of the hearing); § 27.004(a) (requiring
a hearing on the motion to be set no later than the sixtieth day after service of the motion);
§ 27.005(a) (requiring the court to rule on a motion to dismiss within thirty days from the
date the hearing on the motion concludes); § 27.008 (providing that the failure to rule
within the specified time frame is considered a denial by operation of law); § 27.007(b)
(requiring the trial court to issue findings for any sanctions awarded to be issued within
thirty days from the date of request).
III. ANALYSIS
The Texas Civil Practice & Remedies Code provides for an interlocutory appeal of
an order that denies a motion to dismiss filed under the TCPA. See id. § 51.014(a)(12).
Section 51.014(b) provides that an interlocutory appeal of such an order stays the
commencement of a trial pending resolution of the appeal and “also stays all other
proceedings in the trial court pending resolution of that appeal.” Id. § 51.014(b). The stay
of trial court proceedings delineated in § 51.014 is “statutory” and “allows no room for
discretion.” Sheinfeld, Maley & Kay, P.C. v. Bellush, 61 S.W.3d 437, 439 (Tex. App.—
San Antonio 2001, no pet.); see In re Univ. of the Incarnate Word, 469 S.W.3d 255, 259
(Tex. App.—San Antonio 2015, orig. proceeding); In re Tex. Educ. Agency, 441 S.W.3d
747, 750 (Tex. App.—Austin 2014, orig. proceeding); see also In re Fraudulent Hosp.
Lien Litig., 2019 WL 6907087, at *3; Swanson v. Town of Shady Shores, No. 02-15-
00351-CV, 2016 WL 4395779, at *4 (Tex. App.—Fort Worth Aug. 18, 2016, no pet.)
(mem. op.); In re Bliss & Glennon, Inc., No. 01-13-00320-CV, 2014 WL 50831, at *2 (Tex.
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App.—Houston [1st Dist.] Jan. 7, 2014, orig. proceeding) (mem. op.). Accordingly, the
trial court abuses its discretion by entering orders and conducting proceedings during the
pendency of a stay under § 51.014. See In re Univ. of the Incarnate Word, 469 S.W.3d at
259; In re Tex. Educ. Agency, 441 S.W.3d at 750; see also In re Fraudulent Hosp. Lien
Litig., 2019 WL 6907087, at *3.
On December 19, 2019, in two petitions for writ of mandamus arising from this
same MDL, this Court conditionally granted relief on grounds that the pretrial MDL court
had violated the automatic stay by continuing with MDL trial court proceedings despite
the pendency of two appeals arising from the MDL under § 51.04(a)(12). See In re
Fraudulent Hosp. Lien Litig., 2019 WL 6907087, at *1–4. In our opinion issued in those
original proceedings, we joined the Austin Court of Appeals in determining that, when an
appeal has been filed from an MDL proceeding, the automatic stay provided by § 51.014
applies to all of the cases pending in the MDL pretrial court and not just the individual
cases in which an appeal has been filed. Id. at *3; see In re Volkswagen Clean Diesel
Litig., No. 03-16-00718-CV, 2017 WL 160919, at *1 (Tex. App.—Austin Jan. 11, 2017, no
pet.) (per curiam order). We held that the interlocutory appeals which had been filed under
§ 51.014(a)(12) stayed the commencement of a trial and “all other proceedings in the trial
court” pending resolution of the appeal and concluded that “the automatic stay under
§ 51.014 tolls the deadlines imposed by the TCPA . . . including any appeals filed under
the TCPA.” See In re Fraudulent Hosp. Lien Litig., 2019 WL 6907087, at *4. We expressly
noted that we had “received multiple notices of appeals based on the MDL pretrial court’s
failure to rule on TCPA motions to dismiss within the statutory deadline,” and stated that
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“[u]nless and until we are given contrary direction from the Legislature or the Texas
Supreme Court, we consider these appeals premature because the TCPA deadlines were
stayed by statute.” Id. We thus held that notices of appeal filed during the pendency of
the automatic stay were premature. Id.
This is one such notice of appeal. MedData filed this notice of appeal from the MDL
during the pendency of the automatic stay. MedData asserted that, because the judge of
the MDL pretrial court had not ruled on MedData’s motion to dismiss under the TCPA
within the statutory deadline, its motion was “considered to have been denied by
operation of law.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a), 27.008(a).
However, the automatic stay applied to the TCPA deadlines, and accordingly, MedData’s
motion to dismiss was not overruled by operation of law. See In re Fraudulent Hosp. Lien
Litig., 2019 WL 6907087, at *4. Because the pretrial MDL proceedings were stayed, the
trial court did not overrule the TCPA motion to dismiss as a matter of law, and we lack
jurisdiction over the attempted appeal. In other words, the trial court’s alleged denial of its
TCPA motion to dismiss is not ripe for our review. See Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex. 1998) (“The ripeness doctrine conserves judicial time and
resources for real and current controversies, rather than abstract, hypothetical, or remote
disputes.”); see also Bustamante v. Miranda & Maldonado, P.C., 569 S.W.3d 852, 863
(Tex. App.—El Paso 2019, no pet.).
Further, we may not treat this as an appeal from a judgment or order which can be
modified so as to be made final under Texas Rule of Appellate Procedure 27. See TEX.
R. APP. P. 27. Under Rule 27, an “appellate court may allow an appealed order that is not
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final to be modified so as to be made final and may allow the modified order and all
proceedings relating to it to be included in a supplemental record.” Id. R. 27.2. However,
“[t]his rule concerns a valid order that is not yet final.” Malone v. PLH Grp., Inc., 570
S.W.3d 292, 296–97 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Here, the trial court
has not had the opportunity to issue a ruling or order, and the time period for it to rule has
not elapsed due to the automatic stay. Therefore, under these circumstances, there is no
order or ruling to be modified, and Rule 27.2 does not apply. See TEX. R. APP. P. 27.2
(referring to an appealed order); cf. Malone, 570 S.W.3d at 296–97) (refusing to treat a
void order as premature under Rule 27); Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex.
App.—Waco 2007, pet. denied) (“Rule 27.1 does not contemplate an appellate place
holder until there is a final appealable judgment.”).
Based on the foregoing, we conclude that we lack jurisdiction over this attempted
appeal and the appeal should be dismissed.
IV. CONCLUSION
We grant MedData’s “Motion to Dismiss Appeal as Premature” and we dismiss this
appeal for lack of jurisdiction. Pending motions, if any, are dismissed as moot.
GINA M. BENAVIDES.
Justice
Delivered and filed the
5th day of March, 2020.
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