EICHNER v. OCWEN FINANCIAL CORPORATION PHH (2025)

OPINION

Appellees Ocwen Financial Corporation and PHH Mortgage Corporation (collectively, “Ocwen”) filed suit against former employee Jean-Marc Eichner, asserting he had breached a separation agreement and full release between the parties and that he had fraudulently induced Ocwen to enter same. In this interlocutory appeal, Eichner appeals the trial court's decision to deny his motion to dismiss Ocwen's claims pursuant to the Texas Citizens Participation Act (“TCPA”). See Tex. Civ. Prac. & Rem. Code § 27.001, et seq. As a matter of first impression, we conclude that appellate jurisdiction is proper because Eichner's motion was denied by operation of law despite the trial court's oral ruling at the hearing of the motion. On the merits, we affirm the trial court's denial of the motion.

Background

I. Events Preceding the Instant Lawsuit

In 2012, attorney and non-party to this appeal, Samuel L. Boyd, acting on behalf of non-party Michael J. Fisher, filed lawsuits against Ocwen and its predecessors in federal courts, alleging Ocwen defrauded the federal government by making false certifications and statements to the government to participate in and receive incentive payments under the Home Affordable Mortgage Program. Eichner gave deposition testimony on behalf of Ocwen in those cases. Fisher's claims were ultimately settled in 2017 and documented by a written settlement agreement.

In early 2019, Eichner was informed his employment with Ocwen would be terminated effective in May 2019 because Ocwen had decided to close its facility in Arlington, Texas. On May 10, 2019, Eichner signed a separation agreement and later on May 23 a corrected separation agreement (the “Separation Agreement”) with Ocwen Loan Servicing, LLC, predecessor of Ocwen, pursuant to which Ocwen paid Eichner $130,000 as severance and Eichner agreed, among other things, the Separation Agreement “settle[d], bar[red], and waive[d] any and all claims [he] had or might have had against Ocwen up through the settlement date of this release” and “not to make statements to ․ members of the public that are in any way disparaging or negative towards [Ocwen].” On July 15, 2019, Eichner, represented by Boyd, filed a qui tam suit against Ocwen alleging Ocwen had defrauded the federal government and had engaged in various acts of misconduct when servicing borrower loans.

II. The Current Lawsuit

On April 1, 2023, Ocwen filed suit against Boyd, Eichner, and Boyd's law firm Boyd & Associates. Ocwen alleged Boyd had breached the settlement agreement related to Fisher's suit by filing Eichner's suit, alternatively had tortiously interfered with that settlement agreement, and had fraudulently induced Ocwen to enter into same. As to Eichner, Ocwen alleged Eichner breached the Separation Agreement by filing a qui tam suit against Ocwen, in which he disparaged Ocwen and interfered with its business relationships, and that he fraudulently induced Ocwen to enter the Separation Agreement by planning to sue Ocwen “at the same time he was signing off on and accepting the benefits under the Separation Agreement.” On January 17, 2024, after the defendants filed a notice of removal to federal court and the case was remanded for lack of subject matter jurisdiction, Eichner filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a and the TCPA. On February 22, 2024, Ocwen filed a first amended petition, which did not materially differ from its original petition, and filed its response to Eichner's motion to dismiss.

On March 1, the trial court conducted a hearing on both of Eichner's motions to dismiss, orally denying each after hearing argument from the parties. However, despite Eichner's offers of proposed orders, the trial court did not sign an order denying the motion to dismiss pursuant to the TCPA.

On April 8, 2024, Eichner filed an amended notice of appeal, asserting his motion to dismiss pursuant to the TCPA was “overruled by operation of law on March 31, 2024.” On April 18, Ocwen filed a motion to dismiss the appeal, asserting this Court lacked jurisdiction to hear the appeal because the trial judge orally denied the motion to dismiss, so the motion could not be deemed overruled by operation of law and that neither the TCPA nor the statute authorizing interlocutory appeals authorized an interlocutory appeal in this case. Eichner filed a response, and Ocwen filed a reply. This Court determined that Ocwen's motion to dismiss would be decided with Eichner's direct appeal.

The TCPA and Standard of Review

Chapter 27 of the Texas Civil Practice and Remedies Code is an anti-SLAPP statute, meaning that the legislature enacted it to curb strategic lawsuits against public participation. In re J.L.M., No. 05-22-00758-CV, 2023 WL 1960681, at *2 (Tex. App.—Dallas Feb. 13, 2023, no pet.) (mem. op.). Its main feature is a motion-to-dismiss procedure that allows defendants at an early stage to seek dismissal, attorney's fees, and sanctions for the filing of a meritless suit in response to a defendant's proper exercise of a protected right. Id.

A Chapter 27 movant bears the initial burden of showing by a preponderance of the evidence “that the legal action is based on or is in response to the party's exercise of the right of free speech, the right to petition, or the right of association.” See Civ. Prac. & Rem. § 27.005(b); see also Brenner v. Centurion Logistics LLC ex rel. Centurion Pecos Terminal LLC, No. 05-20-00308-CV, 2020 WL 7332847, at *3 (Tex. App.—Dallas Dec. 14, 2020, pet. denied) (mem. op.) (holding amendments to TCPA do not change burden of “preponderance of the evidence” established by Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). If the movant carries his or her initial burden, the nonmovant must then establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Civ. Prac. & Rem. § 27.005(c). Notwithstanding the nonmovant's proof of a prima facie case, however, the court shall dismiss a legal action against the movant if the movant establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law. Id. § 27.005(d).

We review de novo the trial court's determinations that the parties met or failed to meet their respective burdens under section 27.005. See id. § 27.005 (b), (c); see also Brenner, 2020 WL 7332847, at *3 (holding amendments to TCPA do not change de novo appellate standard of review). In conducting this review, we consider, in the light most favorable to the nonmovant, the pleadings and any supporting and opposing affidavits and other evidence stating the facts on which the claim or defense is based. See Fishman v. C.O.D. Cap. Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *5 (Tex. App.—Dallas July 18, 2017, no pet.) (mem. op.); see also Civ. Prac. & Rem. § 27.006(a). However, the plaintiff's pleadings are generally “the best and all-sufficient evidence of the nature of the action.” Hersh, 526 S.W.3d at 467.

Intertwined with and overlaying this multi-step dismissal process is the TCPA provision exempting certain actions from the TCPA's application. See Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 337, 343 (Tex. App.—Dallas 2022, no pet.) (citing Civ. Prac. & Rem. § 27.010(a); Clean Energy v. Trillium Transp. Fuels, LLC, No. 05-18-01228-CV, 2019 WL 3212145, at *3 (Tex. App.—Dallas July 9, 2019, no pet.) (mem. op.) (noting existence of four exemptions under prior version of the statute)). A party can avoid the TCPA's burden-shifting requirements by showing that one of the exemptions applies. See id. (citing Clean Energy, 2019 WL 3212145, at *3). The nonmovant bears the burden of proving a statutory exemption. Id. (citing Clean Energy, 2019 WL 3212145, at *3; Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.—Dallas 2015, pet. denied); Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex. App.—Dallas 2013, pet. denied)).

Included among the TCPA's exemptions is Section 27.010(a)(5)(B), which states that Chapter 27 does not apply to a legal action arising from an employee–employer relationship that seeks to enforce a non-disparagement agreement. See id. § 27.010(a)(5)(B).

Jurisdiction

Before we address the merits of this appeal, we initially address Ocwen's motion to dismiss, in which Ocwen asserts this Court lacks jurisdiction to consider this appeal, as well as Eichner's first issue, in which he urges this Court has jurisdiction to consider this appeal. Whether we have jurisdiction to determine the merits of an appeal is a question of law, which we review de novo. See In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam).

The statute governing appeals from interlocutory orders provides for the appeal from an interlocutory order that denies a motion to dismiss filed under Section 27.003. See id. § 51.014(a)(12). While the general rule is that a party may bring an interlocutory appeal only from a written order, see id. § 51.014,¹ the TCPA provides an exception to that rule: “If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.” Id. § 27.008(a).

Ocwen urges, and at least two courts of appeals have held, that this exception does not authorize an interlocutory appeal when, as in this case, the trial court orally denies a motion to dismiss yet fails to issue a written order. See Casillas v. M & S Concrete, No. 01-19-00145-CV, 2020 WL 2026367, at *3–4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.) (mem. op.); Clark v. Paddington British Priv. Sch., Inc., No. 09-19-00056-CV, 2016 WL 4247963, at *2–3 (Tex. App.—Beaumont Aug. 11, 2016, no pet.) (mem. op.). In both Casillas and Clark, the appellate courts concluded the oral ruling meant that the motion could not be overruled by operation of law, such that the exception in Section 27.008(a) did not apply. Both of those appellate courts and Ocwen cite as support an opinion from yet another court of appeals. See Kinney v. BCC Att'y Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *7 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op. on reh'g). In Kinney, the Third Court of Appeals addressed the argument that a trial court's rendition was not a signed order and thus the trial court did not “rule” within thirty days of the hearing as required by Section 27.005. See id. (citing Civ. Prac. & Rem. § 27.005(a) (requiring trial court to “rule on a motion under Section 27.003 not later than the 30th day following the date the hearing on the motion concludes”)). The Kinney court held, “If the legislature had intended to require the trial court to sign an order within 30 days, it could have done so; instead the plain language of the statute requires only that the trial court ‘rule’ within 30 days.” Id.

We are not bound by our sister courts’ decisions, and we disagree with their reasoning. Instead, we conclude the reasoning of the Fourteenth District Court of Appeals in Simmons v. Taylor is more persuasive. See 651 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2022, no pet.). In that case, the court began by noting that the legislature mandated that the TCPA “shall be construed liberally to effectuate its purpose and intent fully.” See id. (quoting Civ. Prac. & Rem. § 27.011(b)). The court continued: “The purpose of the TCPA is to encourage and safeguard constitutional rights [and t]hat purpose would be thwarted if a trial court could insulate its decision from appellate review by refusing to sign a written order and choosing instead to orally deny a motion that should have been granted.” See id. (citing Civ. Prac. & Rem. § 27.002). We agree with the Simmons court that the likely result of Ocwen's proposed interpretation of the TCPA and this Court's jurisdiction would be to undermine the purpose of the TCPA.

We hold that by not signing a written order the trial judge did not “rule” on Eichner's motion to dismiss within the meaning of Section 27.008(a), which means that the motion was overruled by operation of law, and that we have appellate jurisdiction under Section 27.008(a). In accordance with these holdings, we sustain Eichner's first issue and deny Ocwen's motion to dismiss this appeal.

Discussion

Eichner argues in his second issue that the TCPA applies to Ocwen's claim against him for breach of contract and that the TCPA's exemption of actions to enforce non-disparagement agreements does not apply.² According to Eichner, Ocwen failed to meet its burden of proof to support that argument. We first consider whether the exemption applies. See Temple, 657 S.W.3d at 346 (noting when both TCPA movant's step-one burden and nonmovant's TCPA exemption are disputed, we may consider exemption first). Eichner argues Ocwen's pleadings failed to show the factual basis for its claim and that it did not present any evidence of any alleged falsity of the assertions in Eichner's qui tam complaint, of malice, or of the absence of privilege in filing the qui tam complaint, such that it has not shown the non-disparagement exemption applies to its claim.

In its claim for breach of contract, Ocwen alleges Eichner breached the Separation Agreement by suing Ocwen for conduct predating the agreement. Ocwen's first amended petition alleges Eichner breached the Separation Agreement by filing a qui tam action against Ocwen in violation of provisions in which he agreed not to sue Ocwen. In that petition, Ocwen cites the following provisions as relevant to the claim.

4. Agreement Not to Sue. Other than an action for breach of the Release Agreement or as otherwise provided in paragraphs 6 and 7,[3] Individual expressly acknowledges that if Individual files any claim or lawsuit, or causes or aids any claim or arbitration to be filed on Individual's behalf, regarding any matter described in the Release Agreement, Employer may be entitled to recover from Individual some or all money paid under this Release Agreement, plus attorneys’ fees and costs incurred in defending against such action, to the extent permitted by law.

6. No Interference with Rights. ․ [N]othing in this Agreement including but not limited to the ․ non-disparagement provisions ․ prevents Individual from filing a charge or complaint with or from participating in an investigator or proceeding conducted by the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, National Labor Relations Board, the Securities and Exchange Commission, or any other federal, state or local agency charged with the enforcement of laws[.]

10. Post-Employment Restrictions. Individual agrees that he will not: (i) for a period of (2) years following the date of this Agreement take any action that would interfere with, diminish or impair the valuable relationships that the Company has with its clients, customers and others with which the Company has business relationships or to which services are rendered[.]

12. Non-Disparagement. Individual agrees not to make statements to clients, customers and suppliers of the Released Parties or to other members of the public that are in any way disparaging or negative towards the Released Parties or their products and services.

In its petition, Ocwen asserts that in Eichner's qui tam suit, he “accuses Ocwen of defrauding the federal government and [of] engaging in various acts of misconduct when servicing borrower loans” and that his suit “disparages Ocwen and interferes with Ocwen's business relationships, in violation of his promises in the Separation Agreement.” In its response to Eichner's motion, Ocwen attached copies of the separation agreements signed by Eichner, which included the cited provisions, as well as excerpts from Eichner's qui tam complaint in which he referred to “Ocwen's wrongful conduct” and “Ocwen's violations of the False Claims Act,” including “fraudulent inducement of the SPA and Amended and Restated SPA” and “for each false and fraudulent HAMP Annual Certification executed thereafter.”

We conclude that Ocwen successfully demonstrated that its contract claim is exempted by the TCPA. The TCPA provides that Chapter 27 does not apply to a legal action arising from an employee–employer relationship that seeks to enforce a non-disparagement agreement. See Civ. Prac. Rem. § 27.010(a)(5)(B). Ocwen's pleadings assert its employer–employee relationship with Eichner, the existence of a non-disparagement provision in a contract between them (the Separation Agreement), and that Eichner breached the provision by accusing Ocwen of engaging in fraud and various acts of misconduct in his qui tam suit. Additionally, Ocwen provided evidence of the Separation Agreement and Eichner's claims in his qui tam suit against Ocwen. Accordingly, we disagree with Eichner's complaints about any lack of factual basis or sufficient evidence and conclude the pleadings and evidence are sufficient to survive Eichner's TCPA motion to dismiss based on the exemption.

We overrule Eichner's second issue and need not address his third concerning whether Ocwen met its burden of establishing a prima facie case. See, e.g., Temple, 657 S.W.3d at 348 (pretermitting discussion of whether movant met step-one burden to demonstrate TCPA applies to nonmovant's claims and whether nonmovant offered prima facie evidence of essential elements of its claims after concluding TCPA did not apply to same) (citing Tex. R. App. P. 47.1 (requiring appellate court to hand down written opinion “as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”)).

Conclusion

We affirm the trial court's denial by operation of law of Eichner's motion to dismiss pursuant to the TCPA.

FOOTNOTES

1.   In Archer v. Tunnell, we held that a written order was required to invoke our jurisdiction over interlocutory appeal. No. 05-15-00459-CV, 2016 WL 519632, at *3 (Tex. App.—Dallas Feb. 9, 2016, no pet.) (mem. op.). We distinguish Archer because that appeal did not involve a motion to dismiss pursuant to the TCPA and because the TCPA provides for appeals from motions denied by operation of law. See Civ. Prac. & Rem. § 27.008(a); see also, e.g., Jain v. Cambridge Petroleum Grp., Inc., 395 S.W.3d 394, 396 (Tex. App.—Dallas 2013, no pet.); Soo v. Pletta, Tr. for Ann H. Pletta & Timothy G. Pletta Revocable Tr., No. 05-20-00876-CV, 2022 WL 131045, at *1 (Tex. App.—Dallas Jan. 14, 2022, no pet.) (mem. op.).

2.   In his motion to dismiss, Eichner sought dismissal of Ocwen's claims of both breach of contract and fraudulent inducement. At the hearing on the motion to dismiss, he conceded the fraudulent inducement claim was subject to Section 27.010(a)(12), which provides Chapter 27 does not apply to a legal action based on a common law fraud claim. See Civ. Prac. & Rem. § 27.010(a)(12). Eichner does not argue on appeal that the TCPA applies to Ocwen's fraudulent inducement claim. Accordingly, we limit our discussion to Ocwen's claim for breach of contract. See Tex. R. App. P. 47.1 (requiring appellate court to hand down written opinion “as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”).

3.   Paragraph 7 limits Eichner's criminal and civil liability for disclosure of trade secrets under certain circumstances pursuant to the Federal Defend Trade Secrets Act.

Opinion by Justice Kennedy