544 S.W.3d 421
Tex. App.2017Background
- ATW Investments sued Kenneth Grubbs for legal malpractice, breach of fiduciary duty, and trade-secret violations.
- Grubbs filed a TCPA motion to dismiss and served it on January 17, 2017.
- The hearing on the motion was reset multiple times and ultimately occurred more than 90 days after service; ATW argued the hearing was untimely.
- The trial court denied Grubbs’s TCPA motion expressly because the hearing was untimely.
- Grubbs appealed, challenging the trial court’s construction and application of the TCPA timing provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying the TCPA motion because the hearing was untimely | ATW: hearing was untimely; motion should be denied | Grubbs: delay was justified (mediation/party agreement); literal reading yields absurd result or waiver by ATW | Court affirmed: defendant forfeited TCPA protections by failing to obtain a hearing within 90 days; denial affirmed |
| Whether parties can contractually extend the 90‑day hearing limit | ATW: no valid agreement extending the 90‑day limit | Grubbs: parties agreed to resets, so deadline should be extended | Held: statute limits agreements; no record showing an agreement that referenced/extended the 90‑day deadline |
| Whether plaintiff waived timeliness objection by not objecting earlier | ATW: did not need to police defendant’s compliance with TCPA deadlines | Grubbs: ATW’s failure to object amounted to waiver | Held: no waiver; burden is on movant to timely obtain hearing; failure forfeits TCPA protection |
| Whether literal application of timing deadlines produces an absurd result | ATW: deadlines are mandatory to ensure expeditious resolution | Grubbs: strict timing can produce unfair/absurd outcomes when parties agreed to delays | Held: not absurd; Legislature intended tight mandatory deadlines to prevent gamesmanship |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (describing TCPA purpose and expedited dismissal procedure)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (statutory-construction principles; interpret plain language)
- Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249 (Tex. 2010) (agreed orders must explicitly reference and extend statutory deadlines to be effective)
- Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2013) (trial court cannot grant TCPA dismissal after statutorily prescribed post-hearing ruling period)