GRANT and Opinion Filed September 19, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-19-01126-CV IN RE AARON HERBERT, RELATOR Original Proceeding from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-18-04644-A



### MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Whitehill The Texas Citizens Participation Act permits a defendant to fil e a motion to dismiss in certain specified cases, and it requires the trial court to hea r that motion within specific and relatively short deadlines. The mov ant has a statutory right t o an interlocutory appeal from a trial court order denying a TCPA moti on—if the trial court holds that hearing and either affirmatively denies the motion or allows it to be denied by operation of law by not timely ruling on it. But, courts of appeals lack jurisdict ion over an appe al involving th at motion if the tri al court refuses to hold a timely hearing despite the m ovant’s reasonable requests to the trial court for that hearing. This mandamus proceeding presents the question whether the tria l court has th e discretion to deny a TCPA movant’s reasonabl e requests for a timely hearin g and set the mo tion for hearing after the last possible date that the TCPA permits. We hold th at the trial court lacks such discretion–2– because the TCPA requires the trial court to hold a timely hear ing when the movant acts with reasonable diligence to obtain such a hearing. We further hold that the TCPA movant in this situation lacks an adequate remedy by appeal because he forfeit s TCPA relief, including a right to an interlocutory appeal, if a timely hearing is not held. Because the mandamus record establishes that relator Aaron Herb ert acted with reasonable diligence to obtain a timely hearing of his TCPA dismissal moti on and the trial court has refused to schedule a timely hearing on that motion, we grant mandamus relief and order the trial court to hold a timely hearing of H erbert’s motion. I. F ACTS Relator Herbert is a plaintiff in the trial court. Real party in interest Kasey Krummel, a defendant in the trial court, fil ed defamation and invasion of privacy counterclaims against relator. Relator filed a motion to dismiss Krummel’s counterclaims under the Texas Citizens Participation Act. See T EX
. C IV
. P RAC

. & R EM
. C ODE §§ 27.001–.011. 1 The record shows that relator served his TCPA dismissal motion on June 22, 2019, and filed it on June 24, 2019. On July 19, 2019, relator filed a letter requesting a hearing a nd advising that the TCPA required the dismissal motion to be heard within sixty days aft er service (August 21, 2019), or within ninety days (September 20, 2019) if docket conditions re quired an extension. The letter further stated that the trial c ourt’s staff had told relator th ree things: • “The court wants parties to mediate before setting a motion t o dismiss on Anti-SLAPP grounds.” • “This court only sets hearings on dispositive motions on Frid ays.” • “The court is experiencing crowded dockets, such as [sic] the earliest date is October 18, 2019.” The letter requested an ea rlier date than October 18, 2019, giv en the statutory deadlines.

1 The case was filed before the effective date of the 2019 amend ments to the TCPA, so all citations are to the prior version of the statute.–3– On August 22, 2019, relator filed a motion for emergency hearin g on his dismissal motion. Relator’s motion explained that the TCPA required his motion to be heard within ninety days after service because the court’s doc ket would not permit a hearing w ithin sixty days after service. On August 23, 2019, relator filed a letter with the trial court . The letter recounted that relator’s counsel had personally appeared in the trial court’s courtroom on August 22 to explain the situation and attempt to secure a timely hearing. The lett er again argued that relator needed the trial court to set his moti on for hearing within the ninety -day deadline and take judicial notice that crowded docket conditions prevented the sixty-day deadline from being met. On September 16, 2019, relator filed its mandamus petition and emergency motion for relief in this Court. On Sep tember 17, 2019, we requested real party in interest and respondent to file their responses to the petition and motion, if any, by noo n on September 18, 2019. Real party in interest timely f iled a response opposing the man damus petition. II. A NALYSIS A. Applicable Law TCPA dismissal motions must be heard and resolved on an expedit ed basis. The hearing generally must be held within sixty days after the motion is se rved. Id . § 27.004(a). The deadline can be extended to ninety days if the court’s docket conditions require it, good cause exists, or the parties agree to an extension. Id . § 27.004(a), (b). The deadline can be extended to 120 days i f the trial court allows discovery, but that is the maximum exten sion permitted. Id . § 27.004(c). Once a TCPA motion is heard, the trial court must rule on it wi thin thirty days or the motion is denied by operation of law. Id . §§ 27.005(b), 27.008(a). We have held that a TCPA movant forfeits the motion if it fails to get a timely hearing of its motion. Braun v. Gordon , No. 05-17-00176-CV, 2017 WL 4250235, at *3 (Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem. op.); see also Wightman-Cervantes v. Hernandez , No. 02-17-00155-–4– CV, 2018 WL 798163, at *1 (Tex. App.—Fort Worth Feb. 9, 2018, p et. denied) (mem. op.) (a TCPA motion is not overruled by operation of law, and no interl ocutory appeal is permitted, if no hearing is held); accord RPM Servs. v. Santana , No. 06-19-00035-CV, 2019 WL 4064576, at *1– 2 (Tex. App.—Texarkana Aug. 29, 2019, no pet. h.) (mem. op.). The standard on mandamus is whether relator has shown a clear a buse of discretion and the lack of an adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135– 36 (Tex. 2004). B. Does the trial court have d iscretion to deny a TCPA movant’s reasonably diligent requests for a timely hearing? No, the statute requires the tria l court to give a TCPA movant a timely hearing if the movant acts with reasonable dili gence to obtain a hearing. A trial court generally has a reasonable time within which to c onsider and rule on a motion. In re Buholtz , No. 05-16-01312-CV, 2017 WL 462361, at *1 (Tex. App.—Dallas J an. 31, 2017, orig. proceeding) (mem. op.). The circumstances of the case de termine whether the court has acted within a reasonable time. See id . As explained above, the TCPA presents special circumstances by requiring TCPA motions to be he ard within strict deadlines, subject to limited extensions. Because the TCPA imposes strict deadlines on the hearing of a d ismissal motion, and because a party forfeits its dismissal motion if the deadline r uns before a hearing can be held, the trial court has less discretion to defer hearing a TCPA motion to dismiss. We conclude that the trial court must set a TCPA mo tion to dismiss for hearing withi n the applicable s tatutory deadline (sixty, ninety, or 120 days aft er service of the motion, depend ing on the circumstances) if the movant makes reasonable effort s to obtain a timely hearing. Fu rther, we conclude that the record establishes that the ninety-day deadline applies in this case, based on the trial court’s docket conditions, and relator made rea sonable efforts to obtain a tim ely hearing. Thus, we conclude that–5– the trial court clearly abused its discretion by not setting an d conducting a hearing on relator’s TCPA motion within the ninety-day deadline. Moreover, we conclude that relator has no adequate remedy by ap peal. A main purpose of the TCPA is to achieve the expeditious dismissal of unmeritorio us cases that come within its purview. See In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding) (noting th at TCPA creates “a special procedure for the expedited dismissal” of co vered suits). If we do not correct the trial court’s error now, rel ator’s dismissal motion will be forfeited, at least for purposes of the TCPA’s expedited dismissal procedure and accompanying interlocu tory appellate remedy. See C IV
. P RAC . § 51.014(a)(12) (allowing interlocutory appeal from order den ying TCPA dismissal motion); see also Braun , 2017 WL 4250235, at *3 (defendant forfeits TCPA’s protections if it doesn’t timely file its motion “and obtain a hearing”). For th ese reasons, this is a case in which mandamus review is “essential to preserve important substantive and procedural rights from impairment or loss.” In re Prudential Ins. Co. , 148 S.W.3d at 136. Accordingly, we conclude that relator lacks an adequa te remedy by appeal. Cf

. Braun , 2017 WL 4250235, at *3 n.4 (noting that appeal did not present question of whether a movant would be en titled to mandamus relief if trial court refused to set a timely hearing). III. C ONCLUSION We grant relator’s petition for writ of mandamus and order that a writ of mandamus issue instanter requiring the trial court to set relator’s TCPA dismi ssal motion for hearing no later than Friday, September 20, 2019.

191126F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE