For many years, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) has provided an effective tool for dismissing baseless claims early in the litigation process. The Texas Rules of Civil Procedure did not offer an equivalent rule until Rule 91a became effective March 1, 2013. [1] This update examines the prevalence and practical application of Rule 91a since its enactment.
The Basics
Rule 91a of the Texas Rules of Civil Procedure allows a party to seek dismissal of a groundless cause of action. Tex. R. Civ. P. 91a. The rule provides in pertinent part:
[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.[2]
Timing is important. The motion must be filed within 60 days after the first pleading containing the challenged cause of action is served. Tex. R. Civ. P. 91a.3(a). Twenty-one days’ notice is required before a hearing. Tex. R. Civ. P. 91a.3(b). A court may not rule on a motion to dismiss if a respondent to the challenged cause of action files a nonsuit at least three days before the hearing. Tex. R. Civ. P. 91a.5(a). A court must [3] award the prevailing party all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action. Tex. R. Civ. P. 91a.7.
Availability of Appeal and Standard of Review
A court order granting a motion to dismiss is final and may be appealed. A party may obtain an interlocutory appeal from the denial of a motion to dismiss pursuant to Texas Rule of Civil Procedure 168 and section 51.014(d) of the Texas Civil Practice & Remedies Code, which allows an interlocutory appeal if a trial court finds (1) the order involves a controlling question of law as to which there is a substantial ground for difference of opinion, and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.[4] A trial court’s order on a Rule 91a motion is considered a question of law.[5] An appellate court will review the trial court’s ruling on a question of law de novo.[6]
Prevalence of Rule 91a
Eleven appellate court opinions stem from decisions based on Rule 91a. Of those eleven decisions, seven involved lower court decisions granting Rule 91a motions. The decisions included cases involving (1) a pro se inmate convicted of aggravated sexual assault suing an attorney in a civil action for post-conviction malpractice in connection with a habeus petition,[7] (2) parents of a son who died from a drug overdose suing the City of Dallas for negligence by 911 operators,[8] (3) a pro se plaintiff suing Chase Bank for a cause of action that does not exist under Texas law,[9] and (4) a judgment debtor filing a separate retaliatory suit against the plaintiff creditor under the Texas Debt Collection Act even though the judgment against the debtor did not involve a consumer debt.[10]
Of the four appeals involving denials of Rule 91a motions, three of the decisions were reversed or a petition for mandamus was granted, [11] and the remaining denial was not addressed on appeal because the appellate court found the lower court did not have jurisdiction when it reached its decision on the 91a motion.[12]
Takeaways
Rule 91a motions are not widely used and should be filed with caution. The unfamiliarity of Rule 91a likely deters courts from granting early dismissals, and the financial consequences of losing may not be worth the limited chance of success.
The decisions granting Rule 91a motions occurred in cases involving well-established law and sparse facts. And even when the law is well-established, recent decisions indicate there is no guarantee of success.[13] We did not recognize any trends in handling Rule 91a motions within any particular county or by any particular judge.
The limited chance of success on a Rule 91a motion is generally not worth the consequences involved if the motion is denied, as the rule requires an award of attorney fees and costs to the prevailing party.[14] Although we anticipate Rule 91a will become a more effective tool in time, the current unfamiliarity coupled with fee-shifting consequences has limited its prevalence and practical use by defendants thus far.
NOTES:
1. Adopted effective March 1, 2013, by order dated February 12, 2013. Tex. Sup. Ct. Order, Misc. Docket No. 13-9022.
3. The only exceptions to the requirement of awarding fees are if the action is by or against (1) a governmental entity or (2) a public official acting in his or her official capacity or under color of law.
4. GoDaddy.com LLC v. Toups , 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. filed). A party also may file a petition for mandamus. See In re Essex Ins. Co., 450 S.W.3d 524 (Tex. 2014).
5. See City of Austin v. Liberty Mut. Ins. , 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.)(reviewing trial court’s grant of Rule 91a motion to dismiss de novo); Dailey v. Thorpe, 445 S.W.3d 785, 788 (Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (same).
7. Wooley v. Schaffer , 447 S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
8. City of Dallas v. Sanchez , 449 S.W.3d 645 (Tex. App.—Dallas 2014, no pet.).
9. Drake v. Chase Bank , 2014 WL 6493411 (Tex. App.—Fort Worth Nov. 20, 2014) (borrower sued Chase Bank for “irreparable harm to credit”).
10. DeVoll v. Demonbreun , 2014 WL 7440314 (Tex. App.—San Antonio Dec. 31, 2014).
11. City of Austin , 431 S.W.3d at 822; GoDaddy.com LLC, 429 S.W.3d at 752; and In re Essex Ins. Co., 450 S.W.3d 524 (Tex. 2014) (granted petition for mandamus due to trial court’s abuse of discretion).
12. Jefferson Co., Texas v. Swain , 452 S.W.3d 881, 2014 WL 6985118 (Tex. App.—Beaumont Dec. 11, 2014).
13. See In re Essex Ins. Co. , 450 S.W.3d 524 (Tex. 2014), where the Texas Supreme Court granted a petition for mandamus after the lower court denied a Rule 91a motion despite well-established law preventing the cause of action, and Sophus v. Houston Police Department, where lower court granted dismissal on separate grounds despite defendant filing Rule 91a motion and appellate court stating there was no legal basis for plaintiff’s action. Cause No. 1036595 (County Ct. Law 3—Harris Co. Oct. 29, 2013)(order).