Reversed and Remanded and Opinion filed July 1 1, 2013.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00896

- CV

DIRECT COMMERCIAL FU NDING, INC. , Appellant

V. BEACON HILL ESTATES, LLC AND INTESAR HUSAIN Z AIDI , Appellee s

On Appeal from the 295th District Court

Harris County, Texas Trial Court Cause No. 2012

- 01150

O P I N I O N

In the dispositive issue in this interlocutory appeal, the plaintiff in a
defamation and breach

- of

- contract suit contends that the trial court erred in granting the defendants’ motion to dismiss under the Citizens Participation Act six weeks after the motion was overruled by operation of law. We agree; thus, we reverse the trial court’s order and remand the case to the trial court.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND According to the pleadings in this case, appellant Direct Commercial Funding, Inc. (“Direct”) is a private commercial lender . Appellees Bea con Hill Estates, LLC and Intesar Husain Zaidi (collectively, “Zaidi”) contacted Direct about obtaining financing for a construction project. Zaidi signed a hold

- harmless agreement in which he agreed not to defame or slander Direct or its principal
Calvin Blake “in any cyber, private or public forum” if Zaidi’s loan request were rejected. After Direct denied the loan request, Zaidi posted comments about Direct
and Blake on the internet web sites “Ripoffreport.com” and “complaintsboard.com.”

Direct sued Zaidi for breach of contract and defamation , seeking declaratory and injunctive relief as well as actual and punitive damages and attorney ’ s fees.
Zaidi responded to the suit by filing a pleading that combined his answer with counterclaims, a third

- party complaint against Blake, and pursuant to the Citizens Participation Act, a motion to dismiss Direct’s claims

. The motion to dismiss was heard by submissi on on June 25, 2012. 1 The Citizens Participation Act (“the Act”)

1 In the prayer for relief of Zaidi’s answer/counterclaims/third

- party complaint/motion to dismiss , Zaidi asked “[t]hat the Court set this matter for a hearing within 30 days, as provided by the Anti

- SLAPP statute and that upon hearing, the Court grant this motion and dismiss [Direct’s] claim s against Zaidi with prejudice in their entirety, [and] award Zaidi

. . . reasonable costs and attorney’s fees

. . . .” The statement in Zaidi’s prayer did not comply with local rules for setting a motion for hearing by submission or for setting a motion for oral hearing. S ee C IVIL T RIAL D IV ., H ARRIS C NTY

. (T EX .) D IST

. C T

. L OC

. R. 3.3.3 (“Motions may be heard by written submission. Motions shall state Monday at 8:00 a.m. as the date for written submission

. This date shall be at least 10 days from filing , except on leave of court.”) (emphasis added); id. , Rule 3.3.4 (“Settings for oral hearings should be requested from the court clerk.”). Because Direct does not complain on appeal that Zaidi’s ineffective “prayer” for a hearing did not comply with the tr ial court’s local rules, we do not address the effect under the Act of a movant’s failure to take the steps actually required to set the motion to dismiss for a timely hearing. On June 13, 2012 , Zaidi filed a notice of submission setting the motion to be heard without oral argument at 8:00 a.m. on June 25, 2012. We t ake judicial notice that June 25, 2012 was a Monday; thus
, this subsequent request complied with local rules.3

provides that if a trial court does not rule on a motion to dismiss under the Act within 30 days after the hearing, then the motion is overruled by operation of law

. It is undisputed that t he trial court did not rule on the motion within that time; however, 72 days after the hearing
, the trial court signed an order in which it granted Zaidi’s motion to dismiss Direct’s claims, held Direct liable for Z aidi ’s costs and attorney’s fees incurred in responding to Direct’s suit , and directed Zaidi

to file an affidavit to substantiate these amounts.

Direct timely filed a notice of interlocutory appeal. We overruled Zaidi’s motion to dismiss the appeal
, 2 and now address the merits of Direct’s app ellate complaint

. II. I SSUES P RESENTED In its first issue, Direct argues that Zaidi’s motion to dismiss was overruled by operation of law 30 days after it was served, and thus, the trial court erred in granting the motion to dismiss 72 days after the mot ion was served. Direct argues in its second issue that the trial court erred in granting the motion to dismiss
because (a) Zaidi did not set the motion for hearing within 30 days after it was
filed
, (b) Zaidi failed to present the trial court with suffici ent evidence to establish
that he could prevail on a First

- Amendment defense , and (c) Direct provided
sufficient evidence to defeat the motion. Direct asserts in its third issue that the Act violates the Texas Constitution’s open

- courts provision because it imposes a heightened evidentiary standard on plaintiffs that, as a matter of law, cannot be
satisfied.

III. S TANDARD OF R EVIEW We review questions of statutory construction de novo. Molinet v. Kimbrell
,

2 Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC , No. 14

- 12

- 00896

- C V, 2013 WL 407029 (Tex. App.

— Houston [14th Dist.] Jan. 24, 2013, order).4

356 S.W.3d 407, 411 (Tex. 2011). Our purpose in construing a statute is to determine and give effect to the legislature’s intent. Id. Because the text’s plain meaning is the best expression of that intent, we will construe the text in
accordance with its plain meaning unless doing so would lead to absurd or nonsensical results, or the context makes it apparent that the legislature intended some other meaning. Id.

IV. A NALYSIS The Texas legislature enacted t he Citizens Participation Act “ to encourag e 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 lawsu its for demonstrable injury .” T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 27.002 ( West Supp. 2012 ) . To achieve these ends, the legislature provided that if a legal action is brought in response to a person’s exercise of certain constitutional rights, that person may move to dismiss the action

. Id. § 27.003(a). The movant bears the initial burden to show by a preponderance of the evidence that the action “is based on, relates to, or is in response to the party’s exercise” of certain rights, including the right of free speech. Id. § 27.005(b). If the movant satisfies this burden, then the trial court must dismiss the legal action unless the party who brought the action “ establishes by clear and specific evidence a prima
facie case for each essential element of th e claim in question .” Id. § 27.005(c). The legislature included several specific deadlines in the Act , and a lthough the legislature authorized the trial court to extend the deadlines for filing and hearing a motion to dismiss , it did not authorize the trial court to extend the time in
which the court is permitted to rule on the motion. To illustrate, t he first deadline
in the Act concerns the time during which a party may move to dismiss the action.5

A motion to dismiss under the Act “must be filed” within 60 days after service of the legal action, but upon a showing of good cause, the trial court may extend the
time to file the motion. Id. § 27.003(b). The second deadline concerns the date of the hearing. A hearing on the motion “must be set” within 30 days after the motion was served “unless the docket conditions of the court require a later hearing.” Id. § 27.004. In contrast to these provisions, t he next deadline is mandatory: “The court must rule on a motion [to dismi ss] not later than the 30th day following the date on the hearing on the motion.” Id. § 27.005(a). The legislature gave the trial
court no discretion to ex tend this deadline , but instead provided that if the trial
court does not rule on the motion within 30 days after the hearing, then the motion is overruled by operation of law. Id. § 27.008(a)

. 3

Here, the trial court signed an order granting Zaidi’s motion to dismiss six weeks after the motion was overruled by operation of law. We agree with Direct
that the trial court erred in granting the motion more than 30 days after it was
heard. The Act contains no provision authorizing such an action, nor can the authority to do so be implied.

T he entire Act is directed toward the expeditious dismissal and appeal of
suits that are brought to punish or prevent the exercise of certain constitutional rights . The distinction drawn by the legislature between extendable deadlines and
firm deadlines

— and more particularly, the mandatory de adline that applies to the trial court’s authority to rule on a motion to dismiss

— would be meaningless if the trial court, acting sua sponte, could reverse the consequences imposed by statute

3 For the sake of completeness, we note two additional deadlines. T he ruling on the motion, whether expressly made by the trial court or by operation of law, may be challenged by an appeal or other writ filed within 60 days of the ruling. Id. § 27.008(c). Direct’s appeal was timely. The Act also contains a deadline tha t applies if certain statutory findings are requested. See id. § 27.007. Findings were requested, but were not made in this case; however, neither party complains of the trial court’s failure to issue findings.6

for the failure to timely act

. See Avila v. Larrea
, 394 S.W.3d 646, 656 (Tex. App.

— Dallas 2012, pet. filed ) (holding that a motion to dismiss under the Act was overruled by operation of law 30 days after the hearing on the motion because no provision in the Act permits the extension of this mandatory deadline).

Zai di contends that the trial court properly could grant the motion to dismiss even after it was overruled by operation of law because a trial court that has plenary power over the case can always set aside an interlocutory order. In support of this argument , Zaidi cites Fruehauf Corp. v. Carrillo , 848 S.W.2d 83, 84 (Tex. 1993) (per curiam)

. The issue presented in Fruehauf was whether a trial court that had expressly granted a motion for new trial could set aside the order and overrule
the motion on the 75th day after judgment. Id. at 84. The court quoted the
subsection of Texas Rule of Civil Procedure 329b in which it is stated that a motion for new trial is overruled by operation of law on the “ expiration ” of the
75 th day after the judgment. Id. (citing T EX

. R. C IV

. P . 329b(c)). A t the time the trial court made the challenged ruling in Fruehauf , the time in which the trial court was permitted to rule had not yet expired, and the motion had not been overruled by operation of law. The opposite is true her e. Moreover, Rule 329b contains an additional provision specifically empowering the trial court “ to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely

- filed motions are overruled , either by a wr itten and signed order or by operation of law , whichever occurs first .” T EX

. R. C IV

. P . 329b(e) (emphasis added). See also T EX

. R. C IV

. P . 165a(3) (similarly providing that if a case is dismissed for want of prosecution and the trial court does not rule on a motion to
reinstate within the prescribed time , then the motion is overruled by operation of law, but authorizing the trial court to reinstate the case within 30 days after the motion to reinstate is overruled, regardless of whether the motion was ove rruled7

expressly or by operation of law). Unlike these procedural rules, t he Citizens Participation Act contains no analogous provision empowering the trial court to grant a motion to dismiss after it has been overruled by operation of law. In sum, the p lain text of the Citizens Participation Act provides a limited
authorization for a party to seek, and a trial court to grant, dismissal of a legal
action that was brought in response to the party’s exercise of the right of free speech. Because a trial cou rt is not authorized to grant a motion to dismiss under
the Act more than 30 days after the hearing on the motion, the trial court erred in signing such an order here. We therefore sustain Direct’s first issue. In light of our disposition of this issue, Direct’s remaining issues are moot. 4

V. C ONCLUSION Because Zaidi’s motion to dismiss was overruled by operation of law, w e reverse the trial court’s subsequent order purporting to grant the motion, and w e remand the case for further proceedings not inconsistent with this opinion.

/s/ Tracy Christopher Justice

Panel consists of Justices Brown, Christopher, and McCally.

4 Because Zaidi neither timely filed a cro ss

- appeal nor raised any cross

- points to argue that the trial court erred in allowing the motion to dismiss to be overruled by operation of law, that question is not presented for our review.