Court of Appeals of Texas, Fourth District, San Antonio
Kenneth E. GRUBBS, Appellant
ATW INVESTMENTS, INC., Appellee
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-19633 Honorable Renée Yanta, Judge
Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene
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.
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.
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
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:
. . .  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  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
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).
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