I'm on a roll. I've read dozens of these cases; I've probably read every important 91a decision and even all the unimportant ones. I am the 91a Scholar. I inhabit the very words of the Rule and can pronounce judgment on all erroneous interpretations of the Rule. I have become familiar with its cousins in Rules 45, 46, 47, 59, 91 and the entire corpus of insanely contradictory plea to the jurisdiction law. I have reached into the heart of justice and seized only shards of a darkened mirror.
So I continue my quest to elucidate and educate.
Blah blah blah Rule 91a is a tool used to attack baseless causes of action. It's a poorly worded Rule and it's led to a zillion opinions all contradicting each other. The Supreme Court barely remarks on its own shitty Rule and when it does it just foments more disagreement.
I will consider some simple cases today: Koenig v. Blaylock, Cypress Creek EMS v. Dolcefino, In re Odebrecht Construction, Thuesen v. Amerisure Insurance, and AC Interests.
The first four are intermediate appellate opinions each of which deal with a separate, but interrelated matter concerning the "prevailing party" rule, and the latter is a recent 2018 Texas Supreme Court "remark" on Rule 91a that added nothing to the conversation.
Rule 91a is a "loser pays" Rule; if you lose the Rule 91a motion, whether as movant or nonmovant, the trial court has a ministerial duty to award "reasonable attorneys' fees." What is reasonable has long been held to be within "the sound discretion of the trial court," meaning that almost no one will disturb an award of fees unless the award is an abuse of discretion, which generally requires the court to go off on its own in determining a reasonable fee; no sane attorney would ask a court to do that because the Supreme Court has done so much work in clarifying how to justify the reasonableness of a fee, so almost all attorneys remove the discretion from the court to a certain extent by describing why their fee is perfectly reasonable. Thus, an attorney defending a motion may ask for $150.00 an hour for 50 hours in defending a protracted 91a motion, and a movant's attorney may ask for $500.00 an hour for 15 hours in prosecuting the motion; either way you split the baby, it's $7,500.00 and the law is such a shitshow on "reasonableness" that disparate rates are considered totally reasonable from case to case on almost the same fact patterns before the same court. The law grift is awesome.
It is therefore very cool to win a 91a motion because there's no worming around the fact a fee must come down. This is the "prevailing party rule."
Prevailing under 91a
Rule 91a.7 says this: "Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award."
Okay so for most civil cases the key phrase is must award reasonable and necessary attorney fees incurred with respect to the challenge cause of action in the trial court. Gee, what could that mean. Oh, guess it means fees on appeal because the drafters didn't know where to put the prepositional phrase "in the trial court." Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 188 (Tex. App.--Houston [14th Dist.] 2015) (stating because "in the trial court" didn't follow "incurred" appellate fees could be awarded). It also means the award is mandatory. Drake v. Chase Bank, No. 02-13-00340-CV, 5-6 (Tex. App.--Fort Worth Nov. 20, 2014, no pet.) (mem. op.) (slip. op.) (mandatory to award prevailing party fee even if loser indigent); accord Marshall v. Enter. Bank, No. 10-16-00379-CV (Tex. App.--Waco Sept. 5, 2018, no pet. h.) (mem. op.) (slip op.) (fee mandatory if you win 91a motion). The fee is mandatory even if you win and then the court vacates the order. Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673 (Tex. App.--Houston [1st Dist.] 2018) (maybe--the vacatur wasn't challenged as a "ruling" on the motion lol).
The intermediate holdings of note to me
Koenig v. Blaylock, 497 S.W.3d 595 (Tex. App.--Austin 2016)
In this case, the appellate court wrestled with a problem involving a clause in Rule 91a that says the 91a motion "must be granted or denied within 45 days after the motion is filed." Tex. R. Civ. P. 91a.3(c). It sure sounds mandatory. Turns out it's not, at least in Austin.
Two lovebirds got a house together before they married. Then they married, moved in, realized they hated each other, and the wife took off. I looked her up on Facebook. Everyone looks happier after divorce except the guy but it looks like he found a new woman, too. Hell yeah.
Divorce court told hubbie to pay wifey $61,500.00 in lieu of property sale. Wifey couldn't collect, so she filed a suit to force a sale of the home hubbie had stayed in. Wifey worked as the Budget Officer for Wilco, and Hubbie was nervous about having his case heard by any Wilco judges. Smart move! Another judge was assigned to hear the case from out of county. Hubbie moved to dismiss the suit under 91a.
For whatever reason, the court was unable to hear the case within 45 days of the 91a motion's filing date. On the hearing date, the court denied the motion, and later on at end of trial said it was because it was past 45 days. Hell yeah! Justice. Literally the thing Rule 91a is meant to avoid: trial.
The appeals court decided that since "the Rule does not provide any consequence if a court takes no action on the motion within the prescribed period." Blaylock, 497 S.W.3d at 598. Rule 91a is a "directory" rule, not a "mandatory" rule, accordingly. Id. at 598-99. The Court adds a common-sense observation: "Koenig has not identified how a plaintiff in her position would be prejudiced by a court's ruling on a motion to dismiss after the 45-day period, nor can we imagine any such prejudice. In fact, a plaintiff would have more time to formulate a response to a dismissal argument, more time to amend a petition to add facts or adjust legal theories, and more time to consider whether to non-suit her case." Id. at 599.
Callback to my Texas Thicc Tip Series 13: the Court said that because the wifey added exhibits to her RESPONSE to the 91a motion, the court could consider it as a proper Rule 59 exhibit. Id. at 599-600.
On top of this all, the court reversed and rendered for hubbie: the partition suit was overkill with no basis in law, so it should have been dismissed and fees awarded. Id. at 600-01. Partition actions are proper only where the petitioner has interest and present possessory interest; the divorce decree divested her of title by reducing her interest in the residence to a money judgment.
So, a court may not grant or deny the Rule 91a motion within 45 days but the best practice is to urge the court to set it for hearing (whether by submission or oral), for which two weeks' notice is required. Tex. R. Civ. P. 91a.6.
Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673 (Tex. App.--Houston [1st Dist.] 2018)
This one is sad as shit. An EMS company sued a poor fellow for conversion, alleging they had "accidentally mailed certain confidential documents". The poor fellow denied receipt, moved to dismiss under 91a (along with motion for summary judgment). The court granted the 91a motion, but later vacated the grant, ostensibly because the "granting of the motion had been untimely." I looked up the motion to vacate on Harris District Clerk (Cause No. 2015-23275); the docket shows the first notice of submission hearing filed by the movant was on August 10, 2015, and the 91a motion filed May 21, 2015; therefore, more than 45 days had lapsed between the first attempt to get a hearing and the filing. I'm not sure this is the rule (i.e. I'm not sure the Rule requires the movant move, but I sure wouldn't give an opening to the other side to argue this). It is certainly clear that the Rule dictates the timing deadlines similar to the summary judgment rule; the hearing date controls response, amendment and nonsuit deadlines. (Note, at no time prior to the 91a hearing did the plaintiff's attorneys argue about this, but they filed a response and a sur-reply. Guess they scratched their heads to figure out how they could ask for $23,897.50 to bring a conversion claim for public records and figured they'd move to vacate! Ha ha!)
The appeals court observed that the 91a movant "does not contest CCEMS's claim that it was a prevailing party on his Rule 91a motion to dismiss because the trial court ultimately ruled on Dolcefino's Rule 91a motion in an untimely manner and subsequently granted summary judgment in favor of Dolcefino." Damn; well now there's precedent to do exactly this - Blaylock.
There's a good ending: the evil EMS company only got $850.00 out of their fee request.
So read Blaylock and Dolcefino together: a 91a movant should not be foreclosed from relief simply because the motion is untimely heard, but a diligent 91a movant should make sure it at least attempts to request a setting within the 45 day deadline.
Thuesen v. Amerisure Ins. Co. 487 S.W.3d 291 (Tex. App.--Houston [14th Dist.] 2016)
This case is simple. It holds that a movant is not a prevailing party under Rule 91a where the party “timely nonsuits” its claim before the 91a hearing. In fact, if the sole cause of action challenged by Rule 91a is nonsuited in a timely fashion, there’s no discretion to the court to conduct the hearing by the plain language of the Rule. Simple! There is simply no prevailing party because there can never be a ruling. You use Rule 91a as a game of chicken; if the other side chickens out, you win. Id. at 301.
In re Odebrecht Construction, 548 S.W.3d 739 (Tex. App.--Corpus Christi 2018, no pet.) (mem. op. on reh'g)
This case sucks. The 91a movant, a construction firm, sought to use 91a to dismiss a former employee's action for wrongful termination on the basis that "Mora failed to allege any facts to show that he 'testified' or was 'about to testify' in a workers' compensation proceeding" under the Texas Labor Code § 451.001(4), apparently an element of the claim. The appeals court decided that the "allegations, taken as true, have a basis in law" and therefore denied the petition for writ of mandamus to force the trial court to grant the motion to dismiss and vacate the order denying the motion. Section 451.001(4) of the Labor Code says that the usual “employment-at-will doctrine” cannot shield an employer from a wrongful termination claim where the discharge is “because the employee has testified or is about to testify in a proceeding” under another Labor Code section. Tex. Lab. Code § 451.001(4). The “retaliation claim” may be based on this, and apparently it was based on this. So, the movant simply sought to dismiss because of the failure to plead facts showing this element was met. It would have been as simple as this, if true: “Plaintiff testified or was about to testify in a proceeding” under blah blah blah “and was discharged.” Right?
The Court got it right the first time: it decided the petition’s failure to allege these facts showing an exception to the at-will doctrine formed a “clear legal bar” to the claim, and 91a relief was mandatory. However, apparently, due to “carefully examining Mora’s motion for rehearing, the response, and intervening case law issued by the Texas Supreme Court regarding Rule 91a dismissals” the Court now decided that “two developing tenets regarding the proper application of Rule 91a” compelled a different ruling.
These “two developing tenets” are 1) that the court’s “review is narrowly focused on the plaintiff’s pleading of the cause of action” under Rule 91a.6. For support, they cited to dicta from the Supreme Court in ConocoPhillips Company v. Koopmann (issued March 23, 2018), where the Court refused to find the 91a movant was a prevailing party when he won on summary judgment (a similar topic was briefly raised in Dolcefino, supra but not discussed at all). This is a taffy stretch of the language in Koopmann, and I’m not interested here in going over that language. The Court focused on the Supreme Court’s language that the evidence-based victory of the 91a movant after losing the 91a motion does not make him a victor on an evidence-free 91a motion, but the Court also took issue with the total failure to have appealed the 91a denial and instead wait until after the grant of summary judgment: “We reject Burlington’s argument that it is entitled to recover attorney’s fees as the prevailing party on the motion under Rule 91a when Burlington received an adverse ruling on that motion, did not challenge the ruling at that time, and later prevailed on its motion for summary judgment, which became final when it was not appealed to this Court.” In re ConocoPhillips, No. 16-0662, 34-35 (Tex. Mar. 23, 2018) (slip op. corr. June 22, 2018). This is fucking important and goes to the mandamus discussion in my Texas Thicc Tip Series 13. The Supreme Court appears to be flagging that a 91a movant who loses may indeed be the prevailing party if a challenge is made and some showing can be made subsequently that the decision should have been in favor of the movant (perhaps even if the challenge is denied) – the Court seems concerned with playing a “wait and see” game and coming back and asking for fees when victory is assessed on some grounds not based on the defects in the pleadings.
The second tenet is another over-reach of the Texas Supreme Court’s language in a Rule 91a case, AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, No. 16-0260 (issued the same day as ConocoPhillips). The Court interpreted the language in AC Interests as essentially cabining Rule 91a from looking “beyond the pleadings” to determine statutory compliance as a ground for dismissal; according to the AC Interests holding, that’s a no-no. From this very tiny remark, the Court decided that “The supreme court thus limited the scope of Rule 91a dismissals to the grounds presented by the rule and indicated that these motions should not be utilized as a substitute for general motions to dismiss or motions that seek to resolve cases on their merits.” Synthesizing all of this, the Court decided that the Mora petition “under the relevant law [contained] . . . nothing in the pleading itself [that] triggers a clear legal bar to his claim. . . . To ascertain whether Mora’s claim has no basis in law, we would need to look beyond Mora’s pleading, and this expanded scope of review is prohibited by Rule 91a.”
Holy shit. Egads. The Court read a petition that absolutely did not plead a fact showing the plaintiff met an exception from the at-will doctrine as perfectly fine so long as that could be a basis for the petition. They reached this bizarre conclusion by over-stretching the taffy in AC Interests. It seems like an untenable stretch to hold that the failure to plead a fact showing an exception to the rule of law such that the plaintiff would have standing to bring the claim was not a pleading or jurisdictional defect, but rather an issue that needed to be either specially excepted or challenged on an evidentiary ground. What else should be freely inferred if that’s the case? Can a person in Corpus Christi never use 91a to dismiss a plaintiff’s action for, say, an FDCPA violation where the person is in fact not a debt collector covered by the FDCPA and such is never pleaded affirmatively? Corpus Christi’s rule in this case is that, indeed, an FDCPA defendant who is a wrongfully sued person should never be allowed to use Rule 91a to do this, and must instead do a usual motion to dismiss (and in order to recoup the “fee” also move for sanctions, or “creatively” bring a declaratory counterclaim for the fees under that statute).
There’s ample room to require a plaintiff plead the elements of a claim. See County of Cameron v. Brown, 80 S.W.3d 549, 555-59 (Tex. 2002) (pre-91a case going over each element of a premises liability claim when challenged by a plea to the jurisdiction and determining whether each element satisfied the pleading sufficiency or jurisdictional existence standards for a plea to the jurisdiction, and finding that absence of facts meting an element simply needed to be given a chance to amend to satisfy the plea to the jurisdiction).
Why else is this decision wrong?
Well, because the Supreme Court also has said Rule 91a motions are fundamentally “pleas to the jurisdiction.” City of Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016) (“To determine whether dismissal under Rule 91a is required in this case, we thus consider whether the pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under the Tort Claims Act.”) Wow, so it sounds like a Rule 91a motion “reaches” out into the available law to determine if a pleading conforms with the law at hand. Perhaps AC Interests is a modification of City of Dallas. Perhaps not. That language was too broad for Corpus Christi. “[W]e are wary of turning analogy into actuality. . . . we also note that whereas rule 91a was designed to allow for the dismissal of baseless claims, the purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. The most critical and relevant distinction between a 91a motion and a plea to the jurisdiction is that a ruling on a 91a motion must not be based on extrinsic evidence if necessary to resolve a plea to the jurisdiction. . . . [To otherwise blend Rule 91a with pleas to the jurisdiction] would distort the bounds of procedure for summary judgment and rule 91a, and it would foreclose a vital aspect of plea to the jurisdiction practice: the introduction of evidence.” Reaves v. City of Corpus Christi, 518 S.W.3d 594, 605 (Tex. App.–Corpus Christi 2017).
Fair enough. The City of Dallas case did not go out and say ALL 91a MOTIONS ARE BASICALLY PLEAS TO THE JURISDICTION. It just cited with approval the exact holding from Wooley v. Schaffer that essentially said that. Too far a bridge for Corpus.
AC Interests, LP v. Tex. Comm'n on Envtl. Quality, 543 S.W.3d 703, 706 (Tex. 2018)
The Texas Supreme Court spent very little time on Rule 91a in this opinion, although the little time it did spend was important but unfortunately so broadly worded as to blow up the interpetive capacities of the lower courts. In this case, the 91a movant (the TCEQ) simply challenged “a statutory requirement–the timely service of citation.” The TCEQ totally failed to “address the pleadings or the deficiency of any cause of action.” The court chided, “that was not the proper motion to file.” A 91a motion challenging a statutory requirement “is premised on matters of statutory construction rather than on any matter subject to Rule 91a.” Accordingly, the Court treated the 91a motion as a “general motion to dismiss or dilatory plea premised on the TCEQ’s interpretation of the statute.”
Rock and roll. So the Court simply spent time adding dicta to express its disapproval of using Rule 91a to achieve goals not contemplated by the plain language. Rule 91a does not once mention citation, and over and over says the attack must be on the causes of action in the pleadings. Holding that Rule 91a could not be used to challenge service is a no-brainer. Saying that Rule 91a could not be used as a tool of “statutory construction,” alas, says much too much, especially since the Court already interpreted Rule 91a challenges in the context of the Texas Tort Claims Act in City of Dallas, goddammit. Surely, service of papers gives parties a cause of action; e.g., abuse of process claims. There’s no way AC Interests is saying that service of process could never be subject to a Rule 91a claim when process underlies the claim; all AC Interests is saying is that to the extent service is unrelated to the substantive claims, Rule 91a is not the tool to challenge service of process, and by extension, any similar statutory requirement that may precede the continuance of an action.
You know what is not a “statutory requirement” prior to continuing an action? Whether one testified or was about to testify in a covered hearing prior to being fired by their boss. That is, in fact, the precondition to standing to sue under the wrongful discharge statute, rather like a jurisdictional fact than anything else.
That’s it today.