NUMBER 13-20-00334-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GALLERIA LOOP NOTE HOLDER, LLC, Appellant,
v.
GEORGE M. LEE, Appellee.
On appeal from the 157th District Court
of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
In this accelerated interlocutory appeal, appellant Galleria Loop Note Holder, LLC
appeals the trial court’s denial of its motion to dismiss a suit filed by appellee, George M.
Lee.1 By one issue, Galleria contends that the trial court erred in denying its motion to
dismiss under the Texas Citizens Participation Act (“TCPA”). We affirm.
I. PERTINENT FACTS
Lee sued Galleria, among others, for the alleged fraudulent transfer of a property
over which Lee had a secured lien. Pursuant to the TCPA, Galleria filed a motion to
dismiss requesting that the trial court dismiss Lee’s suit. The trial court held a TCPA
hearing on October 4, 2019,2 and it denied Galleria’s motion in a signed order on that
day. Subsequently, Lee filed a motion requesting to nonsuit his claim against Galleria,
which the trial court granted. This appeal followed.
II. EFFECT OF THE NONSUIT
As a preliminary issue, Lee contends that the appeal is moot because he nonsuited
his claim. See Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010) (providing that we are
prohibited from deciding moot controversies). Galleria responds that despite the nonsuit,
the case is not moot because it sought affirmative relief.
“In Texas, plaintiffs may nonsuit at any time before introducing all of their evidence
other than rebuttal evidence,” and “a court order is not required.” Epps v. Fowler, 351
1
This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.
2
Although not reflected in the trial court’s docket sheet, when we contacted the district clerk, the
district clerk informed us that the trial court held a hearing on Galleria’s motion to dismiss; however, the
district clerk was not aware if a reporter’s record was taken of the TCPA hearing and no reporter’s record
has been filed in this Court. See Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *1 (Tex.
App.—Dallas Sept. 26, 2017, no pet.) (explaining that the appellate court lacks jurisdiction over an appeal
from a denial of a motion to dismiss pursuant to TCPA if the trial court fails to conduct a hearing as required
by chapter 27 and that “the date of the hearing triggers the date when a motion to dismiss under chapter
27 will be considered to have been denied by operation of law”). Lee states in his brief that the trial court
held an oral hearing on the TCPA motion.
2
S.W.3d 862, 868 (Tex. 2011). “A nonsuit terminates a case ‘from the moment the motion
is filed.’” Id. However, “a nonsuit does not affect any pending claim for affirmative relief or
motion for attorney’s fees or sanctions.” Id. “Rule 162 permits the trial court to hold
hearings and enter orders affecting costs, attorney’s fees, and sanctions, even after
notice of nonsuit is filed, while the court retains plenary power.” Univ. of Tex. Med. Branch
at Galveston v. Est. of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (per
curiam). “Thus, the trial court has discretion to defer signing an order of dismissal so that
it can ‘allow a reasonable amount of time’ for holding hearings on these matters which
are ‘collateral to the merits of the underlying case.’” Id. “Although the Rule permits motions
for costs, attorney’s fees, and sanctions to remain viable in the trial court, it does not
forestall the nonsuit’s effect of rendering the merits of the case moot.” Id.
Here, although Lee nonsuited his claim rendering the merits of his cause of action
moot, as set out above, Rule 162 permits the trial court to hold hearings and enter orders
affecting attorney’s fees even after a notice of nonsuit is filed because the court retains
plenary power. Id. As we recently explained in Kocaoglan v. Law Office of Chris Sanchez,
P.C., “TCPA motions to dismiss survive nonsuit because, unlike a nonsuit, the TCPA
motion to dismiss might also allow the movant to obtain a dismissal with prejudice,
attorney’s fees, or sanctions.” No. 13-19-00596-CV, 2021 WL 161395, at *4 (Tex. App.—
Corpus Christi–Edinburg Jan. 14, 2021, no pet.) (mem. op.); see Gaskamp v. WSP USA,
Inc., 596 S.W.3d 457, 468 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d);
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n Inc., 390 S.W.3d 299, 300
(Tex. 2013); Abatecola v. 2 Savages Concrete Plumbing, LLC, No. 14-17-00678-CV,
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2018 WL 3118601, at *13 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied)
(mem. op.). Here, the TCPA’s award of attorney’s fees is mandatory because it states
that the court “shall award” attorney’s fees if the movant prevails.3 See TEX. GOV’T CODE
ANN. § 311.016(1), (2) (providing that “may” “creates discretionary authority” while “shall”
“imposes a duty”); see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.009. Thus, Lee’s claim
was moot due to the nonsuit, Galleria’s claim for attorney’s fees under the TCPA remained
viable. See Gaskamp, 596 S.W.3d at 468; see also Kocaoglan, 2021 WL 161395, at *4.
Accordingly, we conclude that the appeal is not moot.
III. TCPA
By its sole issue, Galleria contends that reversal is warranted in this case because
it showed that the TCPA applies, and Lee failed to provide prima facie evidence of each
element of his claim.
The appellant has a burden to bring forward an appellate record showing reversible
error. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Sareen v. Sareen, 350
S.W.3d 314, 317 (Tex. App.—San Antonio 2011, no pet.); Magellan Terminal Holdings,
L.P. v. Vargas, No. 13-19-00354-CV, 2021 WL 79351 at *3 (Tex. App.—Corpus Christi–
Edinburg Jan. 7, 2020, no pet.) (mem. op.). It is not possible to review all the evidence
3
We note that the Legislature recently amended the TCPA; however, under the previous version
and the current version, a TCPA movant is entitled to attorney’s fees, if among other things, the movant
prevails. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (providing that “[e]xcept as provided by
Subsection (c), if the court orders dismissal of a legal action under this chapter,” the trial court “shall award
to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal
action”); see also Kocaoglan v. Law Office of Chris Sanchez, P.C., No. 13-19-00596-CV, 2021 WL 161395,
at *4 (Tex. App.—Corpus Christi–Edinburg Jan. 14, 2021, no pet.) (mem. op.) (explaining that the prior
version of the TCPA’s award of attorney’s fees was mandatory because it used the phrase “shall award”
attorney’s fees; therefore, the movant’s claim under the TCPA was not mooted by the nonmovant’s nonsuit).
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presented to the trier of fact or to apply the appropriate sufficiency standards without a
complete reporter’s record. Sareen, 350 S.W.3d at 317. Therefore, if an appellant files a
partial reporter’s record, a presumption arises that the missing portions of the reporter’s
record support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 228–
30 (Tex. 2002) (explaining that we must presume the omitted items support the trial
court’s judgment); Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171, 179 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (“[I]f the appellant entirely fails to file a statement of
points or issues, he is not entitled to the presumption that the record is complete for
appellate review purposes, and, instead, an appellate court presumes that the material
missing from the reporter’s record supports the trial court’s judgment.” (citing Bennett 96
S.W.3d at 229–30)); see also Bulthuis v. Avila, No. 13-13-00717-CV, 2015 WL 9487472,
at *2 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2015, pet. denied) (mem. op.)
(determining that an appellant is not entitled to the presumption that the record is
complete for appellate review purposes if that appellant does not file a statement of points
or issues and that we must presume that anything missing from the appellate record
supports the judgment). An appellant can avoid this presumption by complying with Texas
Rule of Appellate Procedure 34.6(c), requiring the inclusion in the appellant’s request for
a partial reporter’s record “a statement of the points or issues to be presented on
appeal[.]” TEX. R. APP. P. 34.6(c)(1). Once done, we are required to presume that the
partial record constitutes the entire record with respect to the issues raised on appeal. Id.
R. 34.6(c)(4).
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Galleria, as the appellant, needed to provide this Court with proof that Lee did not
present sufficient evidence to support his prima facie case. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(b), (c); see also Kocaoglan, 2021 WL 161395, at *4. Galleria has not
filed a complete reporter’s record because, although a hearing was held on its TCPA
motion to dismiss, it has not provided a copy of that record for our review or even
mentioned it. Galleria did not request a partial reporter’s record with a statement of the
points to be argued as per Rule 34.6(c)’s requirements for filing a partial reporter’s record.
Because Galleria challenges Lee’s evidence and we lack the reporter’s record of
the TCPA hearing, see TEX. R. APP. P. 34.6(c), we must presume that the omitted portions
of the reporter’s record support the trial court’s determination that Lee met his burden and
the denial of Galleria’s motion to dismiss was appropriate.4 See Bennett, 96 S.W.3d at
4
As previously stated, pursuant to § 27.004, a trial court must not set a hearing on a TCPA motion
“later than the 60th day after the date of service of the motion unless the docket conditions of the court
require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall
the hearing occur more than 90 days after service of the motion under Section 27.003 . . . .” TEX. CIV. PRAC.
& REM. CODE ANN. § 27.004. The type of evidence that the court may consider is set out in § 27.006, which
states the following:
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. Although under Rule 166a, the trial court is permitted
to grant or deny a motion for summary judgment without a hearing, here, the trial court held a
hearing on Galleria’s TCPA motion. Thus, we will not address Galleria’s issues by only analyzing
the motion and response.
Moreover, the Fourteenth Court of Appeals has cited Braun favorably stating
parenthetically, “[T]he 30-day deadline before a motion is deemed denied by operation of law runs
only from the date of the hearing on the motion. But, because no such hearing was held in these
cases, the TCPA motion was not denied by operation of law.” KHOU-TV, Inc. and William Langlois;
Hearts Newspapers, LLC d/b/a Houst. Chronicle v. Status Lounge Inc., No. 14-19-00393-CV, 2021
WL 2371003, at *2 (Tex. App.—Houston [14th Dist.] June 10, 2021, no pet. h.) (mem. op.) (citing
Braun, 2017 WL 4250235, at *2 (quoting Cuba v. Pylant, 814 F.3d 701, 707 (5th Cir. 2016)); see
also Walker v. Pegasus Eventing, LLC, No. 05-19-00252-CV, 2020 WL 3248476, at *5 (Tex. App.—
Dallas June 16, 2020, pet. denied) (mem. op.) (“Specifically, if the trial court does not hold a hearing
6
229 (“There is no question that, had [the appellant] completely failed to submit his
statement of points or issues, Rule 34.6 would require the appellate court to affirm the
trial court’s judgment.”); Haut, 376 S.W.3d at 179; see also Kocaoglan, 2021 WL 161395,
at *4. Galleria’s assertion that the trial court erred by denying the motion to dismiss,
therefore, is insufficient on the record before us. Presuming, as we must, that the missing
portions of the record support the trial court’s order, we overrule Galleria’s sole appellate
issue. See Bennett, 96 S.W.3d at 229; Haut, 376 S.W.3d at 180 (presuming “that the
omitted portions of the record are relevant and support the trial court’s judgment” on
issues in which evidentiary review is required because the appellant “failed to follow the
requirements for Rule 34.”); see also Kocaoglan, 2021 WL 161395, at *4.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
1st day of July, 2021.
at all, then we lack jurisdiction over an appeal related to the motion.” (citing In re Herbert, No. 05-
19-01126-CV, 2019 WL 4509222, at *1 (Tex. App.—Dallas Sept. 19, 2019, orig. proceeding) (mem.
op.) “[C]ourts of appeals lack jurisdiction over an appeal involving [a TCPA] motion if the trial court
refuses to hold a timely hearing despite the movant’s reasonable requests to the trial court for that
hearing.”))).
7