GDS Transport, LLC v. MV Transp., Inc. reversed a dismissal under Rule 91a, in no small part because of a mismatch between the grounds in the motion and the plainitff’s specific theories of liability.

Specifically, the plaintiff’s breach-of-contract claim alleged that the defendant wrongfully deducted “maintenance costs” from the amount owed under the contract. The defendant cited a limitation-of-liability provision that, admittedly, foreclosed liability for operational costs. But “the damages sought are not maintenance costs,” said the Fifth Court: “Rather, they are the amount of an offset improperly taken from amounts owed ….” No. 05-23-00067-CV (June 24, 2024) (mem. op.).

In Longhorn Creek Ltd. v. Gardens of Connemara Ltd., the trial court applied Tex. R. Civ. P. 91a to dismiss a declaratory-judgment claim about the assessment of a transfer fee pursuant to a restrictive covenant. An issue was whether certain required notices had been made in compliance with a statute. Specifically:

“[Appellees] argue the notices were printed in fourteen-point boldface type and referenced records that sufficiently described the property subject to the private transfer fee—they rely on the notices attached as pleading exhibits to [Appellant’s] amended petition for this contention.”

The Fifth Court rejected this argument:

“[W]e may not consider evidence in deciding a rule 91a motion but only the pleading of the cause of action and the narrow class of exhibits permitted by rule 59. That narrow class includes ‘[n]otes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.’ The copies of the notices attached to the amended petition may be important future evidence for some of Longhorn Creek’s allegations, but they cannot be said to constitute the claim sued on.”

No. 05-22-00842-CV (Feb. 20, 2024) (citations omitted).

In Merrill v. Curry, the Fifth Court reversed the grant of a TCPA motion to dismiss, and then declined to address a ruling on a partial Rule 91a motion that had also been appealed: “[W[e first consider the propriety and efficiency of addressing interlocutory issues after we have reversed the judgment dismissing the case. We have not located a case in which a party pursued, and a court addressed, the denial of a partial 91a motion under these circumstances. But this situation is analogous to the analysis employed when a party seeks review of a cross motion for partial summary judgment. As courts have explained, the denial of a motion for summary judgment is generally not appealable, except when both parties move for summary judgment and the trial court grants one and denies the other. In such a case, an appellate court reviews both motions and renders the judgment the trial court should have rendered. But, when a party moves for only partial summary judgment, the exception does not apply.” No. 05-19-01229-CV (Nov. 5, 2020) (mem. op.) (citations omitted, emphasis added).

In Bethel v. Quilling Selander – what is now the second (here is the first) opinion to note the distinction between “issues” and “arguments” after the Fifth Court’s March 29 en banc opinion in St. John Missionary Baptist Church v. Flakes – the Court observed: “Courts may not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the court. Thus, to the extent Bethel’s assertion is an argument as opposed to an issue, we address it.” (emphasis in original, citation omitted). The Court was also willing to consider a defense of attorney immunity in the context of a Rule 91 motion to dismiss, notwithstanding other intermediate Texas authority that takes a narrower focus in that procedural setting. No. 05-17-00850-CV (May 30, 2018) (mem. op.)

In Watson v. Hardman, the Dallas Court of Appeals reversed a trial court’s refusal to dismiss defamation claims under the Texas anti-SLAPP statute.

The facts were tragic. A car accident took the lives of a married couple, who both had children from prior marriages. The Hardmans, relatives of the husband, set up “go fund me” pages to benefit the surviving children. Watson, the father of one of the surviving children, filed a Rule 202 petition to investigate claims that the Hardmans had stolen some of the donations. The Hardmans then sued Watson for defamation for statements in the 202 petition and alleged rumors in the community suggesting the Hardmans stole donations. The trial court denied an anti-SLAPP motion to dismiss, which asserted that any alleged statements were protected as an exercise of the right to petition or right to free speech.

The Dallas Court of Appeals reversed, holding that allegations in the 202 Petition were the “exercise of the right to petition” because they were “a communication in or pertaining to … a judicial proceeding,” which are subject to an absolute privilege. The Court specifically rejected arguments that the statements in the judicial proceeding had to concern anything of public interest.

In addition, allegations outside of the 202 Petition were also protected “exercise of the right of free speech” because they related to community well-being, specifically the well-being of people who made donations and of the intended beneficiaries. The Dallas Court of Appeals remanded to the trial court for consideration of a motion by the Hardmans to conduct additional discovery relating to other statements outside of the 202 Petition pursuant to § 27.006(b). So the Hardmans may yet have the opportunity to discover and respond with a prima facie case for defamation showing when, where, and what was said, the defamatory nature of the statements, and how they damaged the Hardmans.  

Watson v. Hardman

In what appears to be only the third opinion in the state reviewing a motion to dismiss under Texas Rule of Civil Procedure 91a, the Dallas Court of Appeals has affirmed a trial court’s order that granted in part and denied in part a motion to dismiss on the pleadings. Similar to Federal Rule of Civil Procedure 12(b)(6), Rule 91a allows a party to move to dismiss a cause of action “on the grounds that it has no basis in law or fact,” based solely on the claimant’s pleadings. In this case, the plaintiffs sued the City of Dallas after emergency services failed to respond to a 911 call reporting their son’s drug overdose. The plaintiffs attempted to plead their way around governmental immunity by claiming the City had negligently used or misused the 911 system’s telephone and computer systems. The Court affirmed dismissal of negligence claims that the City had failed to properly respond to the 911 call, but also affirmed the denial of the motion as to claims that the equipment itself had failed or malfunctioned.

City of Dallas v. Sanchez, No. 05-13-01651-CV