rejecting an “approach [that] catapults form over substance to deny appellate review on the merits”
How later courts described this case
- rejecting an “approach [that] catapults form over substance to deny appellate review on the merits”
Written by the judges who cited it.
The opinion
ACCEPTED
01-18-00298-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/25/2018 3:10 PM
CHRISTOPHER PRINE
CLERK
NO. 01-18-00298-CV
_____________________________________
FILED IN
IN THE COURT OF APPEALS OF TEXAS
1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT 5/25/2018 3:10:26 PM
_____________________________________ CHRISTOPHER A. PRINE
Clerk
ERIC LYNN BAUMGART
APPELLANT
VERSUS
PHILLIP DOUGLAS ARCHER; KPRC-TV CHANNEL 2;
GRAHAM MEDIA GROUP, HOUSTON, INC.; GRAHAM MEDIA GROUP;
GRAHAM HOLDINGS COMPANY
APPELLEES
* * *
ON INTERLOCUTORY APPEAL FROM THE
157TH DISTRICT OF TEXAS-HARRIS COUNTY
CAUSE NUMBER 2017-83349
_____________________________________
APPELLANT’S STATEMENT OF JURISDICTION
_____________________________________
Eric L. Baumgart
Appellant pro se
PO Box 613
Nome, Texas 77629
(409) 338-1661 Telephone
eric.baumgart
@texasinvestigations.us
TO THE HONORABLE COURT OF APPEALS OF TEXAS:
INTO COURT COMES, the appellant ERIC LYNN BAUMGART, pro se,
who files this statement of jurisdiction and in support thereof would respectfully
show the court as follows:
PREDICATE BACKGROUND
On May 17th, 2018 the court of appeals required the appellant to show
authority that the appellate court has jurisdiction in this case. The appellant was
given ten days to show this authority or face dismissal.
INTERLOCUTORY JURISDICTION
In the clerk notice, the authority cited for grounds of a threatened dismissal
was the exact same authority that affirms the jurisdiction of this appellate court;
namely, CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011).
Mandamus Relief
The appellant’s interlocutory appeal is a mandamus action. The appellant
declared this to the appellate court on May 5th, 2018 in two separate filings. In
CMH Homes the Supreme Court held that the court of appeals erred in dismissing
an interlocutory mandamus action for want of jurisdiction. CMH Homes, 340
S.W.3d at 446 and 453-454. This precedent was recognized in March 2016 by the
-2-
Fourteenth Court of Appeals of Texas. Sintim v. Larson, 489 S.W.3d 551, 556
(Tex.App.-Houston [14th Dist.] 2016, no pet.) (affirming that mandamus relief
must be expressly requested in order to invoke appellate court jurisdiction on an
interlocutory appeal); see also, In re Estate of Aguilar, 435 S.W.3d 831, 833-834
(Tex.App.-San Antonio 2014, no pet.).
Abuse of Discretion
The trial court summarily dismissed the appellant’s case without giving a
reason and without allowing the appellant to conduct discovery to develop critical
evidence prior to dismissal. More importantly, the trial court ignored section
27.010(b) of the Texas Civil Practice and Remedies Code which excluded the
appellees from protection under the Texas Anti-SLAPP law.
The appellees engage in the for-profit sale of advertising services and the
defamation committed by them was done in the course of providing these services.
This fact was not only in the record, but it was patently obvious. The trial court had
no discretion in ignoring this legislative exclusion. The appellant was not allowed
to conduct discovery before the Anti-SLAPP motion was heard; he was not
allowed to examine witnesses at the hearing; and he was not allowed to cross-
examine affidavits presented by the appellees.
Judicial Economy
This interlocutory appeal is proper and necessary. The summary dismissal
-3-
by the trial court disposed of the substance of the case without reaching the merits
and this was a de facto final judgment. The only remaining issue at the trial court
level is attorney fees and costs that are statutorily mandated, but this mandate only
exists if the appellees prevail on appeal.
The corporate appellees are now rushing to obtain an unconscionable
judgment against the appellant for attorney fees and costs at the trial court level
before the appellate court can determine whether such a judgment is permitted. If
this interlocutory appeal is dismissed it will lead to the waste of judicial resources
and it will subject the appellant to unjust consequences.
CLOSING STATEMENT
The Supreme Court of Texas has rightfully maintained precedent that the
substance of an appellate case must not be drowned by perceived imperfections in
form. CMH Homes, 340 S.W.3d at 453-454 (citing, Wagner & Brown, Ltd. v.
Horwood, 53 S.W.3d 347, 351 (Tex. 2001) (rejecting an “approach [that] catapults
form over substance to deny appellate review on the merits”)).
The trial court abused its discretion, this warrants mandamus relief, and the
appellant is entitled to interlocutory appellate review. This appellate court has
jurisdiction to resolve the appellant’s interlocutory appeal and the relief sought by
the appellant should be granted. Alternatively, should the appellate court decide it
-4-
is without jurisdiction at the moment then the appellant requests an abatement of
the appeal until it is ripe in order to save effort and expense already incurred.
Respectfully submitted by:
Eric L. Baumgart
Appellant pro se
PO Box 613
Nome, Texas 77629
(409) 338-1661 Telephone
eric.baumgart
@texasinvestigations.us
-5-
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, it is
certified that this document contains 633 words, as counted by word processor
software, for included sections as defined under Rule 9.4(i)(1).
Eric L. Baumgart
Appellant pro se
-6-
CERTIFICATE OF SERVICE
Pursuant to Rule 9.5(d) of the Texas Rules of Appellate Procedure, it is
certified that on May 25th, 2018 a true copy of these papers were served on the
following parties:
Phillip Douglas Archer
KPRC-TV Channel 2
Graham Media Group, Houston, Inc
Graham Media Group
Graham Holdings Company
c/o Attorney Thomas J. Forestier
Via: Email to tforestier@winstead.com
Email to srodriguez@winstead.com
Eric L. Baumgart
Appellant pro se
-7-