Scope of TRCP 91a

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).