# In Re Derek Obialo v. the State of Texas

> Texas Court of Appeals, 1st District (Houston) · July 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9407793

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** July 6, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Opinion issued July 6, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00382-CV
———————————
IN RE DEREK OBIALO, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Derek Obialo filed a petition for writ of mandamus asking this Court

to compel the trial court to set aside as void the September 27, 2021 order granting

real party in interest Anita Kawaja’s motion to dismiss under the Texas Citizens

Participation Act.1 We conditionally grant the petition for writ of mandamus.

1
The underlying case is Derek Obialo v. Jerald A. Brown, Anthony Ray Sueing,
Frontline Recovery and Consulting, Inc., Frontline Recovery Consulting North,
Inc., and Anita Fred Kawaja, cause number 2021-18043, pending in the 55th
District Court of Harris County, Texas, the Honorable Latosha Lewis Payne,
Background

On June 22, 2021, Anita F. Kawaja filed a TCPA motion to dismiss claims

made by relator Obialo. On July 23, 2021, the trial court held a hearing on

Kawaja’s TCPA motion to dismiss. The trial court did not rule on the motion

within 30 days, and on August 24, 2021, Kawaja filed a notice of appeal from the

denial by operation of law of her TCPA dismissal motion.

On September 9, 2021, the trial court signed an order, granting with

prejudice Kawaja’s motion to dismiss. The trial court’s order stated that the court

extended the time for ruling on the motion to September 9, 2021, pursuant to the

authority granted by the Texas Supreme Court’s Emergency Order.2

presiding. Kawaja is the sole real party in interest involved in this original
proceeding.
2
The Texas Supreme Court’s Fortieth Emergency Order Regarding the COVID-19
State of Disaster provides in part:

3. Subject only to constitutional limitations, all courts in Texas
may in any case, civil or criminal, without a participant’s consent:
a. except as provided in paragraph 4, modify or suspend
any and all deadlines and procedures, whether prescribed by
statute, rule, or order, for a stated period ending no later than
October 1, 2021;
....
8. This Order is effective August 1, 2021, and expires October
1, 2021, except as otherwise stated herein, unless extended by the
Chief Justice of the Supreme Court.
....

Misc. Docket No. 21-9079 (Tex. July 19, 2021).
2
Kawaja questioned the validity of the September 9, 2021 order granting her

motion to dismiss under the TCPA because it was entered while the statutory

automatic stay was in effect. See TEX. CIV. PRAC. & REM. CODE § 51.014(b)

(providing for stay of all proceedings in trial court pending resolution of appeal of

denial of motion to dismiss under TCPA). Kawaja dismissed her interlocutory

appeal, see Kawaja v. Obialo, No. 01-21-00458-CV, 2021 WL 4256091, at *1

(Tex. App.—Houston [1st Dist.] Sept. 17, 2021, no pet.) (mem. op.), and she asked

the trial court to sign a new order granting her TCPA motion to dismiss.

On September 27, 2021, the trial court held a hearing on Kawaja’s motion

for the court to sign a new order granting the TCPA motion to dismiss. At the

hearing, Kawaja’s counsel acknowledged that the September 9, 2021 order was

void because it was entered while the automatic stay was in effect. Obialo argued,

among other things, that extending the time to rule on Kawaja’s TCPA dismissal

motion would violate the Texas Constitution’s limitations on retroactivity. The trial

court and the parties discussed the unusual procedural posture and whether the

court had the power to grant the relief that Kawaja had requested, considering the

statutory deadline for ruling on a TCPA dismissal motion, the Supreme Court’s

emergency orders, the general rule that a trial court with plenary power may vacate

its own earlier interlocutory orders before entering final judgment, and concerns

about the rights and timeliness of a potential second interlocutory appeal. They

3
also discussed what an order granting Kawaja’s request should specifically state,

including whether it should expressly vacate any earlier orders.

On September 27, 2021, the trial court signed an order that was substantially

the same as the September 9, 2021 order, except that it extended the time for

determining the motions until September 27, 2021. That same day, Kawaja filed a

notice of interlocutory appeal challenging the trial court’s earlier denial by

operation of law of her TCPA motion to dismiss.

In this Court, all the parties involved filed motions to dismiss this second

interlocutory appeal, including both Kawaja and Obialo. On May 2, 2023, we

dismissed the appeal, noting that no opinion had issued.3 See Kawaja v. Obialo

(II), No. 01-21-00519-CV, 2023 WL 3183319, *2 (Tex. App.—Houston [1st Dist.]

Sept. 17, 2021, no pet.) (mem. op.).

On May 23, 2023, Obialo filed this petition for writ of mandamus.

Analysis

In this court, Obialo asks us to order the trial court to vacate its September

27, 2021 order as void. He makes several arguments to support his contention that

the order granting Kawaja’s TCPA dismissal motion was void because it had

already been denied by operation of law and the Supreme Court’s COVID-19 order

3
Kawaja has since filed a combined motion for rehearing and motion for en banc
reconsideration. By separate order, the Court today grants Kawaja’s motion for
rehearing.
4
did not permit an after-the-fact extension of time. Kawaja responds that mandamus

is inappropriate because Obialo has not made a predicate request, such as asking

the trial court to vacate the order.

I. Standards of review

“Mandamus is an extraordinary remedy, not issued as a matter of right, but

at the discretion of the court.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367

(Tex. 1993) (citing Callahan v. Giles, 137 Tex. 571, 575, 155 S.W.2d 793, 795

(1941)). “Although mandamus is not an equitable remedy, its issuance is largely

controlled by equitable principles.” Id.; accord In re Am. Airlines, Inc., 634

S.W.3d 38, 42 (Tex. 2021). A writ of mandamus will issue only if the trial court

clearly abused its discretion, and the relator has no adequate remedy on appeal. In

re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam)

(citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)). “A

trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law . . . .” In re

Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)

(per curiam) (footnote omitted) (internal quotations omitted). A trial court has no

discretion in determining what the law is or applying the law to the facts, even

when the law is unsettled. Dawson, 550 S.W.3d at 628; Prudential, 148 S.W.3d at

135. When a relator asserts that a challenged order is void, he does not need to

5
show that there is no adequate remedy by appeal. In re Sw. Bell Tel. Co., 35

S.W.3d 602, 605 (Tex. 2000); In re Florence, No. 01-20-00556-CR, 2023 WL

362889, at *2 (Tex. App.—Houston [1st Dist.] Jan. 24, 2023, orig. proceeding)

(mem. op.).

II. Waiver

Before we reach the merits of Obialo’s arguments, we consider Kawaja’s

contention that he has waived his right to seek mandamus by failing to make a

predicate request of the trial court.

“Equity is generally not served by issuing an extraordinary writ against a

trial court on a ground that was never presented to the court and that the court thus

had no opportunity to address.” In re Tex. Best Staff Leasing, Inc., No. 01-08-

00296-CV, 2008 WL 4531028, at *5 (Tex. App.—Houston [1st Dist.] Oct. 9,

2008, orig. proceeding) (mem. op.); accord In re Khanduja, No. 01-20-00041-CV,

2020 WL 543418, at *1 (Tex. App.—Houston [1st Dist.] Feb. 4, 2020, orig.

proceeding) (mem. op.). Mandamus relief generally requires a predicate request for

an action and a refusal of that request. In re Perritt, 992 S.W.2d 444, 446 (Tex.

1999) (citing Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990)).

However, the requirement that there be a predicate request and an adverse ruling is

excused “when the request would have been futile and refusal little more than a

formality.” Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991); accord Tex.

6
Best Staff Leasing, 2008 WL 4531028, at *5. To determine whether a request

would have been futile, courts examine whether the request would have added

anything for the court’s consideration. Perritt, 992 S.W.2d at 446.

In this case, the trial court held a hearing on September 27, 2021, on

Kawaja’s motion for the trial court to sign another order granting her TCPA

motion to dismiss. During the hearing, Obialo argued that the TCPA dismissal

motion was “dead” because it was denied by operation of law, appealed, and

voluntarily dismissed on appeal. He also argued that the Supreme Court’s

emergency orders permitted trial courts to alter deadlines subject to constitutional

limitations. He asserted that a retroactive extension of the deadline for the court to

rule on the TCPA motion would run afoul of the Texas and United States

Constitutions. Kawaja’s counsel responded that constitutional prohibitions on

retroactivity applied to vested common law rights but not to vested statutory rights

or claims.

Obialo raised the same arguments in the trial court as he does in this

mandamus proceeding. Requiring Obialo to make an additional request to the trial

court to vacate an order on the same grounds on which he argued against the trial

court’s issuance of the order would be little more than a formality. Because Obialo

already presented these arguments to the trial court, it has already had an

opportunity to address them. Thus, we conclude that an additional request to vacate

7
the trial court’s September 27, 2021 order would not have added anything for the

trial court’s consideration. See Perritt, 992 S.W.2d at 446. We therefore reject

Kawaja’s contention that Obialo waived his right to seek mandamus.

III. Voidness

Obialo contends that the trial court’s September 27, 2021 order is void, and

we agree. Our Court’s recent case, Cweren v. Eureka Multifamily Group, L.P., No.

01-21-00470-CV, 2023 WL 2977755, at *8 (Tex. App.—Houston [1st Dist.] Apr.

18, 2023, no pet. h.) (mem. op.), is controlling here. In Cweren, our Court

considered whether an order granting a TCPA dismissal motion on September 3,

2021 was effective when the motion had already been denied by operation of law

several days prior, on August 30, 2021. Id. The Cweren appellants argued that their

TCPA motion to dismiss was not denied by operation of law because the trial court

“invoked the authority granted by the Texas Supreme Court’s emergency orders

and [extended] the deadline for it to rule on [appellants’] TCPA [m]otion [to]

September 3, 2021.” Id. (quoting appellants’ brief). Cweren explained the relevant

provisions of the TCPA as well as the relevant Texas Supreme Court Emergency

Order Regarding the COVID-19 State of Disaster. Id. at *9–10. We held that the

Supreme Court’s emergency order could not be used “after the deadline to rule has

passed and after the TCPA motion has been denied by operation of law to revive or

8
extend the mandatory deadline for the trial court to rule on a TCPA motion to

dismiss.” Id. at *11 (emphasis in original).

In this case, the trial court entered two orders that purported to grant

Kawaja’s TCPA motion after the deadline to rule had passed and after the TCPA

motion had already been denied by operation of law. Prior to the denial of the

TCPA motion by operation of law, the court did not indicate that anything about

the COVID-19 State of Disaster warranted an extension of time to rule or that it

was extending the deadline in accordance with the Texas Supreme Court’s

emergency order. Under Cweren, the trial court’s September 27, 2021 order is

void.4

4
In this original proceeding, Obialo did not challenge the September 9, 2021 order,
which, like the September 27, 2021 order, was entered after the TCPA dismissal
motion had already been denied by operation of law.
9
Conclusion

Having concluded that the challenged order is void, we conditionally grant

the petition for writ of mandamus. See Sw. Bell Tel. Co., 35 S.W.3d at 605. We

direct the trial court to vacate the September 27, 2021 order. We are confident the

trial court will comply, and our writ will issue only if it does not.

Peter Kelly
Justice

Panel consists of Chief Justice Adams, and Justices Kelly and Goodman.

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9407793. Public record. Not legal advice.