Texas Anti-Slapp Law Motion to Dismiss and a Timely Hearing

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.



Court of Appeals

Texas Anti-Slapp Law Motion to Dismiss and a Timely Hearing

Background

In Grubbs v. ATW Investments, Inc., 544 S.W.3d 421, (Tex. App. – San Antonio 2017, no. pet.), ATW filed suit against Grubbs, an attorney, for attorney malpractice, breach of fiduciary duty, and violations of the Texas Uniform Trade Secrets Act. Grubbs filed a motion to dismiss under the Texas Anti-Slapp or TCPA statute. A hearing was set then reset several times. Two days before the eventual hearing, ATW responded to the motion claiming that Grubbs motion to dismiss should be denied because he did not obtain a timely hearing on the motion. The hearing was eventually held but the trial court denied the motion to dismiss because the hearing was not timely.

Ruling

The appeals court upheld the denial of the motion to dismiss because the hearing was not held within the time limits of the statute. The court set out the time limits:

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).

The trial court did not extend the hearing date to allow discovery. The record contains no agreement by ATW referring to the 90-day deadline or agreeing to extend that deadline.

“(W)hen parties use an agreed order to extend the section 74.351 threshold expert report deadline, the order must explicitly indicate the parties’ intention to extend the deadline and reference that specific deadline;” [o]therwise, the agreed order is ineffective to extend the section 74.351 deadline”). More importantly, however, the statute itself expressly restricts agreements in this context, allowing parties to agree to set a hearing for a date later than the 60th day after the motion is served but precluding a hearing from occurring more than 90 days after the motion is served. Id. at § 27.004(a).

The reference to §74.351 is to the Tex. Civ. Prac. & Rem. Code dealing with expert reports in medical malpractice cases. Interesting…

Finally, Grubbs argues ATW waived the requirement that the hearing occur within 90 days by failing to object. This argument, however, ignores that Grubbs had the burden to timely obtain a hearing in his efforts to invoke the TCPA’s protections. It was not incumbent on ATW to ensure that Grubbs met his burden or even to inform the trial court of Grubbs’s failure. Instead, Grubbs’s “failure to meet [the procedural] requirements result[ed] in [his] forfeiting the statute’s protections.”

The statute requires a defendant seeking its protections to move for dismissal and obtain a hearing on the motion within certain clearly defined periods. The failure to meet these requirements results in the defendant forfeiting the statute’s protections. This result is consistent with the TCPA’s second purpose, to “protect the rights of a person to file meritorious lawsuits for demonstrable injury.” If the defendant fails in its responsibility to obtain a timely hearing on the motion to dismiss, then the case can proceed to trial on the plaintiff’s claims without the delay of an interlocutory appeal.

What could have been done

Ask the trial court to extend the hearing and get a written order?
Get a written agreement with the other side to extend the hearing?
If the trial court will not set a hearing what can you do? Compare this case with the MOLLY v. GORDON case and what the court noted was missing in the record.