Grubbs v. Atw Invs., Inc.

544 S.W.3d 421
CourtCourt of Appeals of Texas
DecidedDecember 20, 2017
DocketNo. 04-17-00555-CV
StatusPublished
Cited by13 cases

This text of 544 S.W.3d 421 (Grubbs v. Atw Invs., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grubbs v. Atw Invs., Inc., 544 S.W.3d 421 (Tex. Ct. App. 2017).

Opinion

Opinion by: Irene Rios, Justice

The sole issue presented in this appeal is whether the trial court erred in denying a motion to dismiss filed pursuant to the Texas Citizen's Participation Act ("TCPA"). The trial court's order expressly states the motion was denied because the hearing on the motion was untimely. We affirm the trial court's order.

BACKGROUND

ATW Investments, Inc. filed the underlying lawsuit against Kenneth E. Grubbs alleging claims for attorney malpractice, breach of fiduciary duty, and violations of the Texas Uniform Trade Secrets Act. On January 17, 2017, Grubbs filed and served on ATW a motion to dismiss pursuant to the TCPA. Although a hearing was initially set on the motion for March 16, 2017, the hearing was reset several times until a fourth amended fiat set the hearing for July 19, 2017. On July 17, 2017, ATW filed a response to Grubbs's motion asserting the motion should be denied because Grubbs did not obtain a timely hearing on the motion.

At the hearing on the motion, the trial court heard the parties' arguments regarding the timing of the hearing and allowed the parties to file additional briefing. After reviewing the additional briefing, the trial court signed an order denying Grubbs's motion because the hearing was untimely. Grubbs appeals.

TCPA PROCEDURE

"[T]he Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015). Section 27.002 of the TCPA recognizes that the statute is designed to serve the following dual purpose:

... [1] 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 [2] at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2015).

The TCPA "provides a special procedure for the expedited dismissal of" retaliatory lawsuits, see In re Lipsky , 460 S.W.3d at 586, which includes "a series of fairly tight deadlines." Morin v. Law Office of Kleinhans Gruber, PLLC , No. 03-15-00174-CV, 2015 WL 4999045, at *1 (Tex. App.-Austin Aug. 21, 2015, no pet.) (mem. op.). First, a motion to dismiss "must be filed not later than the 60th day after the date of service of the legal action." TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b). Next, a hearing on the motion "must be set not 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" unless the trial court extends the hearing date to allow discovery in which event the hearing must occur no later than 120 days after the service of the motion. Id. at § 27.004. Finally, the trial court must rule on the motion "not later than the 30th day following the date of the hearing on the motion" or "the motion is considered to have been denied by operation of law." Id. at §§ 27.005(a), 27.008(a).

*423STANDARD OF REVIEW

Grubbs challenges the trial court's construction of the TCPA's procedural deadlines. "Issues of statutory construction are reviewed de novo." ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017). "Our objective in construing a statute is to give effect to the Legislature's intent, which requires us to first look to the statute's plain language." Id. (internal quotation omitted). "If the statute's language is unambiguous, we interpret the statute according to its plain meaning." Id.

DISCUSSION

Absent a trial court's extension of the hearing date to allow discovery, the plain language of section 27.004 requires a hearing on a motion to dismiss to occur within ninety days. TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(a). Although it does not appear that any other court has discussed the effect of an untimely hearing on a pending motion to dismiss, courts have discussed the effect of failing to meet other procedural deadlines set forth in the TCPA.

In Morin, a law firm sued Levi Morin, a former client, for defamation after Morin expressed his dissatisfaction with the firm's services in an online review. 2015 WL 4999045, at *1. Morin filed a motion to dismiss the lawsuit pursuant to the TCPA. Id. In denying the motion, the trial court found Morin did not timely set a hearing on his motion. Id.

On appeal, the Austin court first noted the TCPA requires a motion to dismiss to be set for a hearing "not later than the sixtieth 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." Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(a) ). The court then noted Morin sent notice of a hearing setting seventy-four days after the motion to dismiss was served. Id. at *2. Morin asserted "the trial court should have found that he had good cause for setting the hearing more than sixty days after the motion was served" because he delayed setting the hearing while attempting to amicably resolve a discovery dispute. Id. The Austin court held the trial court did not abuse its discretion in denying Morin's claim of good cause, reasoning:

Given the tight deadlines of the TCPA process, the trial court might reasonably have determined that, however well-intentioned, attempts to resolve discovery disputes concerning claims that are no longer pending1

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Cite This Page — Counsel Stack

Bluebook (online)
544 S.W.3d 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grubbs-v-atw-invs-inc-texapp-2017.