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Grubbs v. ATW Investments, Inc.

Court of Appeals of Texas, Fourth District, San Antonio

December 20, 2017

Kenneth E. GRUBBS, Appellant
v.
ATW INVESTMENTS, INC., Appellee

         From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-19633 Honorable Renée Yanta, Judge Presiding

          Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          OPINION

          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).

         Standard 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 ...


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