Estate of Paul Edward Check, 2014 Tex. App. LEXIS 7331

Appellee Powers was appointed independent executor of Paul Check's estate under his will; Appellant Patrick Check contested the will.
Powers filed counterclaims including defamation; Check moved to dismiss under the Texas Citizens’ Participation Act (TCPA).
The probate court denied the motion to dismiss by operation of law because it did not rule within 30 days after the hearing.
Powers alleged Check made defamatory statements about her to SAPD and others, and Check reported concerns to Adult Protective Services.
The central issue was the timeliness of Check’s TCPA motion; the court analyzed service of process and the effect of amendments.
The appellate court affirmed, holding Check’s motion to dismiss was untimely and the court did not err in denying it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of the TCPA motion to dismiss	Check argues timely within 60 days of service.	Powers asserts service of the original counterclaim triggered the deadline.	Motion untimely; deadline triggered by service of original counterclaim.

Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (presumption of service requires evidence beyond counsel’s assertion)
In re E.A., 287 S.W.3d 1 (Tex. 2009) (certificate of service creates presumption of service; other evidence can counter it)
Wembley Inv. Co. v. Herrera, 11 S.W.3d 924 (Tex. 1999) (presumption of service vanishes when opposing evidence shows non-receipt)
Ward v. Better Bus. Bureau of Metro. Dallas, Inc., 401 S.W.3d 440 (Tex. App.—Dallas 2013) (defense to 60-day deadline depends on whether new claims were added)
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (statutory interpretation; plain meaning governs absent absurd results)
Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) (statutory construction; purpose to safeguard rights to petition and speak)