      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00174-CV



                                      Levi Morin, Appellant

                                                 v.

                      Law Office of Kleinhans Gruber, PLLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-14-003874, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Levi Morin appeals the trial court’s denial of his motion to dismiss a defamation

suit by Law Office of Kleinhans Gruber, PLLC under the Texas Citizens Participation Act. See

Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Because we conclude that the trial court did not abuse

its discretion by finding that Morin did not have good cause to set a hearing more than sixty days

after he filed his motion to dismiss, we will affirm the denial of the motion.


                                        Procedural history

               Morin was a client of the firm and grew disenchanted with its performance. He

expressed his dissatisfaction in a review on a website that compiles information and customer

reviews about businesses. The firm sued Morin for defamation and the following chronology of

events occurred:
Sep 24, 2014           Firm files its original petition
Sep 30, 2014           Morin receives service
Dec 1, 2014            Morin files/serves motion to dismiss under the TCPA without exhibits
Dec 3, 2014            Morin files/serves motion to dismiss under the TCPA with exhibits
Dec 22, 2014           Firm files notice of nonsuit
Feb 13, 2015           Morin sends notice of hearing on motion to dismiss1
Feb 17-Mar 4 2015      Firm files several documents responding to and attacking Morin’s motion to
                       dismiss, including a “Conditional Notice of Withdraw [sic] of Notice of
                       Nonsuit”
Feb 26, 2015           Court postpones hearing on motion to dismiss due to a scheduling conflict on
                       the court’s docket
Mar 5, 2015            Trial court hears motion to dismiss
Mar 25, 2015           Trial court signs amended order denying the motion to dismiss


When denying the motion to dismiss, the trial court made several findings, including that Morin did

not set the hearing timely.


                        Summary of the Texas Citizens Participation Act

                The stated purpose of the TCPA is “to encourage 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 persons to file

meritorious lawsuits for demonstrable injuries.” Tex. Civ. Prac. & Rem. Code § 27.002; Wakefield

v. British Med. Journal Publ’g Grp., Ltd., 449 S.W.3d 172, 177 n.3 (Tex. App.—Austin 2014,

no pet.). The statute has a series of fairly tight deadlines to allow a party to obtain early dismissal

of certain causes of action. Wakefield, 449 S.W.3d at 177 n.3. If a party is the subject of a

“legal action” that is “based on, relates to, or is in response to the party’s exercise of the right of

free speech” or other listed rights, that party may seek relief under the TCPA by filing a motion



       1
          Morin asserts in his brief that he sent notice on “a Friday” and did not dispute the assertion
in the firm’s motions below and brief here that the Friday he sent it was February 13, 2015.

                                                   2
to dismiss no later than the sixtieth day after the action was served. Tex. Civ. Prac. & Rem. Code

§ 27.003(a), (b). The court may extend this time upon a showing of good cause. Id. § 27.003(b).

Filing a TCPA-based motion to dismiss stays discovery. Id. § 27.003(c). A hearing on the motion

must be set not later than the sixtieth 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 under

Section 27.003, except as provided by Subsection (c).” Id. § 27.004(a). If the court allows discovery

under section 27.006(b), the court “may extend” the period for holding a hearing up to 120 days after

the service of the motion. Id. § 27.004(c). The court can allow specified and limited discovery on

a showing of good cause. Id. § 27.006(b).


                                            Discussion

               Before reaching the merits, we will address whether we have jurisdiction over

an appeal of the denial of a motion to dismiss claims that have been nonsuited as well as the

effect of a purported conditional withdrawal of the nonsuit. A voluntary nonsuit extinguishes a case

immediately upon being filed and renders the merits of the action moot. See Tex. R. Civ. P. 162;

University of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100

(Tex. 2006). One party’s nonsuit does not affect the opposing party’s pending claims for attorney’s

fees. Tex. R. Civ. P. 162; Blackmon, 195 S.W.3d at 100. The nonsuit does not prevent the court

from holding a hearing on the nonmovant’s claims before signing an order memorializing the

dismissal through nonsuit. Blackmon, 195 S.W.3d at 101. In his motion to dismiss, which was filed

before the nonsuit, Morin sought attorney’s fees under a TCPA provision that requires trial courts

                                                 3
to award attorney’s fees to parties whose motions to dismiss are granted. See Tex. Civ. Prac. &

Rem. Code § 27.009(a)(1). We conclude that we have jurisdiction over the appeal of the trial court’s

denial of the motion to dismiss under the TCPA.

               Among the bases of the trial-court order that Morin challenges is this finding: “Morin

did not set the hearing on his motion to dismiss within 60 days after service of the motion, and did

not meet any of the exceptions indicating the hearing can be set later than the 60th day.” Morin sent

notice of the hearing on February 13, 2015, which was seventy-four days after the motion to dismiss

and seventy-two days after the amended motion to dismiss. On the eighty-seventh day after the

original motion was filed, the trial court made the following statement on the record:


       ... I’m calling the case today, you’re set for this morning, unfortunately I have a jury
       trial that’s ongoing, so I am going to have to recess this case for a week and I’ll have
       you back here on March 5th, a week from today, March 5th, 2015, at 2:00 p.m. in the
       afternoon. And Court will continue with the case at that time.


The trial court heard the motion to dismiss on March 5, 2015, ninety-four days after the original

motion was served and ninety-two days after the amended motion to dismiss was served.

               Morin contends that the trial court should have found that he had good cause for

setting2 the hearing more than sixty days after the motion was served. He asserts that he delayed

setting the hearing to resolve disputes arising from the firm’s insistence that he provide discovery,

even though discovery is suspended by the filing of a TCPA-based motion to dismiss absent


       2
          The Fort Worth court held that the word “setting” applied to the sending of notice of the
hearing, not the holding of the hearing or consideration of the motion. See In re Lipsky, 411 S.W.3d
530, 540-41 (Tex. App.—Fort Worth, orig. proc.) (interpreting previous version of statute with same
language but different deadlines).

                                                  4
permission from the court. See id. §§ 27.003(a), (c), .006(b). He asserts that his attempts to resolve

these disputes amicably provided sufficient good cause to grant the extension.3

               We assess for an abuse of discretion the trial court’s finding that Morin did not

show good cause for an extension of the hearing-setting period to ninety days. Cf. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (reviewing denial of motion

for continuance for a clear abuse of discretion). In assessing “good cause” in other contexts, the

supreme court held that “[g]ood cause is established by showing that the failure involved was

an accident or mistake, not intentional or the result of conscious indifference.” Wheeler v. Green,

157 S.W.3d 439, 442 (Tex. 2005). A trial court “abuses its discretion when it reaches a decision




       3
          It is not clear from the record before us how Morin preserved the good-cause issue for
review by presenting it to the trial court. See Tex. R. App. P. 33.1(a). The El Paso court held that
the preservation requirement applied to a finding of good cause relating to a different section of the
TCPA that permits late filing of a motion to dismiss. See Miller Weisbrod, L.L.P. v. Llamas-Soforo,
No. 08-12-00278-CV, 2014 WL 6679122 at *12 (Tex. App.—El Paso Nov. 25, 2014, no pet.).
Morin did not set the hearing during the basic sixty-day period and there is no motion for extension
of time to set the hearing in the clerk’s record. The trial court found on February 26, 2015, that its
conduct of a trial required a delay of the hearing, but that was already beyond the sixty-day period.
However, the trial court did make an express finding that Morin did not show good cause for the late
hearing, so the issue may have been presented to the trial court by means not apparent in the record
before us.

           We also note that, even if Morin were correct on the good-cause issue, the effect is unclear
because the hearing was not held within the ninety-day period that a good-cause extension warrants.
The statute provides that hearings can be held more than ninety days after the motion is served only
with court permission when the court allows discovery under Texas Civil Practice and Remedies
Code section 27.006(b). Id. § 27.003(c). No order permitting discovery or extension on that basis
is in the record before us. The trial court did find that its docket conditions prohibited a hearing on
February 26, 2015, but docket conditions provide good cause for an extension of time for a hearing
only through the ninetieth day after the motion was served. See id. § 27.003(a), (b). However, the
trial court did not make any finding regarding the fact that the hearing on the merits occurred more
than ninety days after the motion was served.

                                                  5
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Marchand,

83 S.W.3d at 800.

               The record reveals no abuse of discretion in the trial court’s denial of Morin’s claim

of good cause. The firm’s nonsuit of its claims on December 22 immediately extinguished those

claims. See Tex. R. Civ. P. 162; Polansky v. Berenji, 393 S.W.3d 362, 366-67 (Tex. App.—Austin

2012, no pet.) (citing Blackmon, 195 S.W.3d at 100).4 Discovery was statutorily suspended by the

filing of the motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.003(c). The sixtieth day after

service of the original motion to dismiss was January 30, 2015. Based on the record before us, the

only affirmative claim for relief pending after December 22, 2014 was Morin’s claim for attorney’s

fees. Given the tight deadlines of the TCPA process, see id. §§ 27.003-.008, the trial court might

reasonably have determined that, however well-intentioned, attempts to resolve discovery disputes

concerning claims that are no longer pending and on which discovery is statutorily suspended did

not provide good cause for an extension of time to set a hearing on a motion to dismiss those

abandoned claims. We cannot say that the trial court abused its discretion by finding that Morin did

not show good cause to extend the hearing-setting period.

               The question remains whether Morin’s failure to set the hearing timely is sufficient

to support the denial of the motion to dismiss. Setting the hearing is the second step in the dismissal


       4
           We find no support in the rules of procedure, the statutes, or case law for the proposition
that a plaintiff can unilaterally withdraw its notice of nonsuit. Texas law has long been the contrary.
See Sanchez v. Atchison T. & S.F.Ry. Co., 90 S.W. 689, 690 (Tex. Civ. App. 1905, no writ) (stating
that “[i]f a plaintiff can, as seemingly contended . . . enter a nonsuit whenever he may doubt his
ability to obtain a verdict, and then on the mere asking, without any further showing, have the cause
reinstated, cases might be tried an indefinite number of times, and the proceedings of courts rendered
farcical”); see also Trigg v. Moore, 335 S.W.3d 243, 246 (Tex. App.—Amarillo 2010, pet. denied).

                                                  6
process, and the TCPA dictates compliance with the time periods in mandatory terms at each step.

See id. § 27.004 (setting and holding hearing); see also id. §§ 27.003 (filing motion), .005 (ruling),

.007 (making additional findings), .008 (failure to rule timely results in denial by operation of law).

Generally, statutes that use words like “shall” or “must” are construed as mandatory. TJFA, L.P.

v. Texas Comm’n on Envtl. Quality, 368 S.W.3d 727, 734 (Tex. App.—Austin 2012, pet. denied).

Such language has sometimes been construed as directory, however. Id. There is no absolute test

for whether a requirement is mandatory or directory. Id. Statutory provisions that are included for

the purpose of promoting the proper, orderly and prompt conduct of business are not usually

construed as mandatory, particularly if the failure to comply will not prejudice the rights of interested

parties and the statute lacks any constraint on performing the directed action after the specified

period. Id. We must look to the purpose of the requirement in the context of the entire statute. Id.

                We conclude that the requirement that the hearing be set within the specified time

is mandatory. While there is no specific penalty set out for failure to set the hearing timely, the

multiple deadlines demonstrate the legislature’s intent that these motions be resolved expeditiously.

See Tex. Civ. Prac. & Rem. Code § 27.003-.008. While there is no express consequence for the

failure to timely set and hold a hearing, the statute provides that “in no event shall the hearing occur

more than 90 days after the service of the motion” absent court-ordered discovery that did not occur

in this case. See Tex. Civ. Prac. & Rem. Code § 27.004(a), (b). The court has only thirty days after

the hearing in which to rule, after which the motion is denied by operation of law and is appealable.

See id. § 27.005(a), .008(a). If there were no consequence for failure to comply with these deadlines,

the time limits would be meaningless and the goal of ensuring expeditious resolution would be



                                                   7
thwarted. Meaningless deadlines for setting hearings, coupled with the automatic suspension of

discovery while the motion remains pending, could invite gamesmanship aimed at avoiding

discovery.5 Viewing the TCPA as a whole, we conclude that the hearing-setting deadline is

mandatory and that failure to comply with it and a failure to show good cause for that noncompliance

are a proper basis for denial of a motion to dismiss.


                                            Conclusion

               We conclude from the record before us that the trial court did not abuse its discretion

by finding that Morin did not timely set the hearing and did not show good cause for that failure.

We affirm the denial of Morin’s motion to dismiss.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: August 21, 2015




       5
         This is an observation of hypothetical discovery abuse and is not a finding or intimation
concerning conduct in this case.

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