Thursday, November 15, 2018

Texas Thicc Tip Series 14: Rule 91a and the Prevailing Party Rule



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.

Tuesday, November 13, 2018

Texas Thicc Tip Series 13: Using Rule 91a as a Plea to the Jurisdiction in Light of the Edgefield case, and Some Free 91a Tactics

Cross-linked

https://www.linkedin.com/pulse/texas-thicc-tips-series-13-using-rule-91a-plea-j-cottle/


Keeping this one fairly brief. In this piece, I discuss how to use Rule 91a motions generally, some practical considerations, a tiny primer on their appealability and then the application of subject matter jurisdiction challenges through a Rule 91a motion.

91a history

In 2011, the Texas Legislature amended Section 22 of the Texas Government Code, adding §22.004(g). This section ordered the Texas Supreme Court to come up with a rule regarding the dismissal of baseless causes of action:

"(g) The supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence. The rules shall provide that the motion to dismiss shall be granted or denied within 45 days of the filing of the motion to dismiss. The rules shall not apply to actions under the Family Code."

Rule 91a is what SCOTX came up with to satisfy the Lej. It is a long Rule. I will reproduce it in full at the bottom of this post. Suffice to say, its significant points are that trial courts may, upon a motion filed within 60 days of a suspect cause of action being pleaded, dismiss the cause of action if as stated in the pleading it fails to show it has a basis in law or basis in fact. Experienced litigators will recognize this phrase as the idea of a "baseless" action is found in Chapter 9, Texas Civil Practice and Remedies Code (concerning sanctions for "frivolous pleadings and claims"), and defines, relevantly, for that section alone a "groundless" claim as one having "no basis in fact." Tex. Civ. Prac. & Rem. Code §9.001(3)(A). Rule 13 of the Texas Rules of Civil Procedure forbids "groundless" claims brought in bad faith or for the purpose of harassment, as well as groundless and false statements in pleadings intended to cause a delay of trial. Tex. R. Civ. P. 13. Under Rule 13, a groundless filing has "no basis in law or fact and is not warranted by a good faith argument for the extension, modification, or reversal of existing law."

So the Texas Legislature and the Supreme Court have already used these terms - no basis in law / no basis in fact before. Likely, then, a court trying to figure out if a pleading is baseless in fact or law should look to these laws for illustration, right? Maybe. I don't think many courts have. Most courts have struggled with how to apply Rule 91a and the result is a shitshow of holdings, many at odds with each other, many simply taking one another at face value, and very many exhibiting a supreme intellectual laziness in trying to determine when a cause is baseless or not based on the pleadings. One day, I will write that article.

How does a 91a motion work? Kitchen sink method!

The guts of a 91a motion must do three things substantially. It "must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Tex. R. Civ. P. 91a.2. A 91a motion that does not do these three things is deficient and should be denied or not ruled on. The Rule begs the question as to what it means to "state specifically" the particular baselessness of a given cause of action, although (as I recall) I have only seen one reported case where this was the problem with the motion. Almost all motions that go up on appeal must meet the Rule, or a plaintiff has simply not made this the issue for the judge's decision to deny. Most of the discussion of a challenged cause of action as raised in the 91a motion subject to appeal establishes that a 91a motion "particularly" points out the problems with the challenged pleading and why relief should not be given at law. This seems like the smart way to go about doing a 91a motion.

The Rule clearly incentivizes "the kitchen sink" approach to pleading. Any reason is a reason to dismiss if it shows the claim has no basis in law or fact or both. That said, almost no one argues "no basis in fact," but several appellate opinions ruin their holdings by opining a cause has no basis in fact (NBIF) when it was challenged for no basis in law (NBIL). The standards for a NBIF and NBIL are different, however. Under the Rule, a cause has NBIL "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1. On the other hand, a cause of action has NBIF "if no reasonable person could believe the facts pleaded." Those are very different, no? What is "no reasonable person could believe"? That sounds like an absurdist fact scenario or impossible statement of reality. I.e. delusional pleadings alone are challengeable as NBIF. However, see the Dallas approach: "If a petition provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied. In re Odebrecht Constr., 2018 WL 1737074, at *7." In re RNDC Tex., LLC, No. 05-18-00555-CV, at *2-3 (Tex. App.--Dallas Jun. 11, 2018). This approach thus shows that the "facts" must give rise to a claim; if the "facts" alleged give notice of the claim, then the pleading survives a NBIF attack (I do not think that the Rule allows for this stretch.)

The most common 91a attack is NBIL. Texas is a so-called "notice pleading" jurisdiction, where, if the pleadings give "fair notice" of a certain cause of action or basis in relief, then the pleadings are "okay" and not subject to challenge. However, many courts have struggled with whether Rule 91a essentially overrode or implicitly requires a "modified pleadings review" not subject to the "fair notice" standard. The result, of course, is that one appellate court says a 91a challenge may not succeed if the claim gives fair notice of the claim to relief (which is not what the Rule says) and another appellate court will say "Rule 91a allows a trial court to really ask questions of the fact pleadings, and to do so under a pseudo-FRCP 12b(6) standard or the actual FRCP 12b(6) standard." I would recommend carefully reviewing the various holdings in your area. And on top of that, while an appellate court may say that "notice pleading" isn't displaced by Rule 91a, frequently their analysis belies the statement. A summary of the Dallas approach to NBIL attacks: "[I]f nothing in the pleading itself triggers a clear legal bar to the claim, then there is a basis in law and the motion should be denied." In re RNDC Tex., LLC, No. 05-18-00555-CV, at *3 (Tex. App.--Dallas Jun. 11, 2018) (citation omitted). This suggests a weird "fair notice" or factual allegation approach to a 91a challenge: if facts alleged explicitly invoke some kind of legal bar, like subject matter jurisdiction, then the claims fail on their face and that's all the 91a motion needs to point out.

The notion of pleading a "legal bar" is interesting; some courts hold a 91a motion may succeed by essentially operating as a pseudo-affirmative defense; affirmative defenses must be pleaded defensively and proven. However, many 91a motions are allowed to essentially assert that a pleading effectively shows the affirmative defense. Compare Bedford Internet Office Space, LLC v. Tex. Ins. Group, Inc., 537 S.W.3d 717 (Tex. App.--Fort Worth 2017) (refusing a limitations defense to creep in through 91a) with Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., No. 05-17-00850-CV (Tex. App.--Dallas May 30, 2018) (distinguishing Bedford partially on ground that pleading before court did raise issues pertinent to the affirmative defense relied upon by 91a movant). I find it hard to believe that "limitations" will not necessarily be implicated by an affirmative pleading; for instance, if I sue for breach on January 2, 2005 and say "last payment was due on January 1, 2001" and the suit is brought, then it looks like I have facially pleaded a limitations defense to the claim, since a cause of action is barred by limitations for breach in Texas if the claim is not brought more than four years after the cause of action accrued, and a cause of action accrues on a breach claim when the injury under the contract first occurs. In fact, in the debt collection context, several debt collectors get pinged with liability simply for suing past the limitations even though the limitations defense is not raised (and sometimes limitations is not a defense; it's something else, depends on state law).

A 91a loser pay the attorneys' fees of the 91a winner

Rule 91a is a game of chicken. It has a "loser-pays" provision, requiring the person who loses a 91a challenge (either the pleader defending the motion or the movant attacking the cause of action) to pay the other side's attorneys' fees regarding the particular cause of action challenged. Tex. R. Civ. P. 91a.7. This is very abnormal in Texas and is contrary to the American Rule. It is also very scary. How much does it cost to defend a non-existent cause of action? It could be thousands. And anyway, you can attack pleadings using Rule 90 special exceptions without this "loser-pays" provision, so why would anyone use this Rule? Most judges don't know about it, and the appellate law on it is schizophrenic. I recommend using the Rule when you feel confident in your position and want to force the other side to amend their pleadings or drop causes of action because the value of the claim isn't worth the fees to defend. You don't do it if the judge is the other side's friend. You don't do it if the judge is incompetent.

Assume the judge was best man of the other side's wedding and is certified braindead. The former may turn out to be the case, and the latter is almost guaranteed.

Tread cautiously with Rule 91a actions. That said, I love the Rule and I think it needs to be actively and aggressively argued.

Appellate relief

The remedy on having the motion improperly denied appears to be solely the writ of mandamus. The Fourteenth District COA told an appellant that literally because they tried to appeal the denial twice unsuccessfully (once using the interlocutory appeal rule, once using the permissive appeal rule) they had no further right to mandamus because they delayed too long. In re HMR Funding, LLC, No. 14-18-00085-CV (Tex. App.--Houston [14th Dist.] Jul. 31, 2018). In the majority's opinion, the Court's previous discussion of the "right" tool to appeal a denial of 91a relief has been mandamus since the Supreme Court said that mandamus can be used and previously granted mandamus relief on a 91a denial in 2013.

I'll tell you what: no court, and not the Supreme Court, has yet held that the exclusive remedy to 91a denial is mandamus. The Supreme Court has hinted that it thinks this is the case, which for any nerd out there looking to get a byline, suggests that there is a "modified mandamus standard" out there for 91a denials exclusively. See ConocoPhillips Co. v. Koopmann, No. 16-0662 (corrected June 22, 2018 SCOTX) (slip op.). As of the date of this post, I don't believe the petition for writ of certiorari to the Texas Supreme Court on the Fourteenth District COA decision in HMR Funding has yet expired; I would be shocked if the holding was not challenged on petition--it says "you snooze, you lose, even if the statutory relief clearly says you have the right to seek appellate relief on these orders, because you sought statutory relief first before trying mandamus relief." Mandamus is approved and granted in almost all of the reported cases for 91a denials, but SCOTX has yet to go out and say "you must mandamus these cases."

What is mandamus? It's exceptional appellate relief which requires a court do something because by failing to do something or by having done something else, the trial court abused the discretion it is entitled to exercise in adjudicating a dispute. To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). "An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012)." In re Moreno, No. 13-17-00282-CV, at *2 (Tex. App.--Corpus Christi Jun. 20, 2017)

Here's another way of saying it: "To be entitled to mandamus relief, the relator must show (1) that she has no adequate remedy at law and (2) that the action she seeks to compel is ministerial, not one involving a discretionary or judicial decision." Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

This has usually been held to be a high bar, and justifies frequent appellate denials of the mandamus relief requested because either there is found to be an adequate remedy on appeal (i.e. wait until end of trial and then appeal) or no discretion abuse occurred.

However, an “appellate remedy is inadequate if it comes too late to cure the trial court's error." In re Prudential Ins. Co. of America, 148 S.W.3d 124, 141 (Tex. 2004) (Phillips. C.J., dissenting). Whether a 91a denial is an error that means appellate relief would be "too late" does not seem yet established, but there is an indication out of Dallas that a 91a denial automatically satisfies the inadequate appellate remedy prong. "Relator also has an adequate remedy on appeal regarding the trial court's subject matter jurisdiction because relator may seek mandamus relief if the trial court denies the Rule 91a motion." In re Tunad Enters., Inc., No. 05-18-01157-CV, at *2 (Tex. App.--Dallas Oct. 15, 2018) (citing In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014)). Wow! In Dallas, therefore, the "second prong" of the mandamus relief entitlement test is automatically satisfied if the 91a motion is denied. Cool. I think this is a clear indication that "mandamus" in the 91a context is subject to a relaxed standard.

List of mandamus cases applied but not explicitly held to be the exclusive relief:
In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (per curiam) (finding mandamus appropriate to correct erroneous denial of 91a motion because it “is appropriate to spare the parties and the public the time and money spent on fatally flawed proceedings”);
In re Odebrecht Constr., Inc., No. 13-17-00289-CV (Tex. App.--Corpus Christi Apr. 11, 2018);
In re Wood Grp. PSN Inc., No. 04-18-00418-CV (Tex. App.--San Antonio Oct. 3, 2018);
In re RNDC Tex., LLC, No. 05-18-00555-CV (Tex. App.--Dallas Jun. 11, 2018) (denying mandamus relief but discussing nothing about why it reached its conclusion);
In re Perkins, No. 03-18-00146-CV, at *1 (Tex. App.--Austin Mar. 9, 2018) (denying because "adequate appellate remedy" not shown to not exist);
In re Gutierrez, No. 13-14-00660-CV (Tex. App.--Corpus Christi, Nov. 20, 2014) (mandamus to rule on the 91a motion denied without discussion);
In re Bernsen, No. 13-18-00507-CV, at *1 (Tex. App.--Corpus Christi Oct. 4, 2018) (denying mandamus for mootness when trial court finally ruled on 91a motion);
In re Patel, No. 14-18-00853-CV (Tex. App.--Houston [14th Dist.] Nov. 1, 2018, no pet. h.) (mem. op.) (per curiam) (denying mandamus because no abuse of discretion shown);
In re TPCO Am. Corp., No. 13-17-00294-CV (Tex. App.--Corpus Christi Apr. 11, 2018) (apparently denying mandamus relief for failure to show abuse of discretion after lengthy analysis of legal issues implicated by pleadings).

There are some appellate cases involving 91a relief, whether granted or denied. A denial is interlocutory. It is not listed in the interlocutory appeal statute and therefore must be "permissibly appealed" or finally appealed at the end of trial, or it must be mandamused.   See Wiley v. ACCC Ins. Co., No. 01-18-00219-CV, at *4 (Tex. App.--Houston [1st Dist.] May. 10, 2018) ("Appellate courts review Rule 91a dismissals under a de novo standard of review, but we lack appellate jurisdiction over denials of such motions.");  cf. S. Cent. Houston Action v. Stewart, No. 14-15-00088-CV, 2015 WL 1508699, at *1 (Tex. App.—Houston [14th Dist.] Mar. 31, 2015, no pet.) (holding that appellate court has no jurisdiction over denial of Rule 91a motion).

List of cases involving non-mandamus appellate relief:
Ruth v. Crow, No. 03-16-00326-CV(Tex. App.-- Austin May 2, 2018) (op on reh'g) (mem. op.) (grant);
Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.--Houston [14th Dist.] 2014) (grant);
GoDaddy.com LLC v. Toups, 429 S.W.3d 752 (Tex. App. Beaumont 2014) (permissive appeal for 91a denial);
Edgefield Holdings, LLC v. Kenneth J. Gilbert, Helen K. Gilbert, Chandler Estates, Ltd., No. 02-17-00359-CV (Tex. App.--Fort Worth Sept. 20, 2018) (final judgment appeal which bundled the interlocutory 91a denial order);
Aguilar v. Morales, 545 S.W.3d 670 (Tex. App.--El Paso 2017) (grant).

The holdings show there's a pretty big split on the propriety of mandamus. More importantly, you need to have a slam dunk mandamus case before bringing it or it'll likely be denied without explanation (the Texas Rules of Appellate Procedure do not require an explanation for a denial of relief, just a grant). That said, most people would be wise to review the petitions for writ of mandamus filed in the successful cases, no? Wallace Jefferson is out there making a killing doing this for HEB. I have a copy of his filing in the In re Butt case (but you have to order it; Nueces County is the weirdest metroplex area to get copies of anything and they always make you pay for it, which is really cool).

A discussion of Edgefield will form the next part of this Texas Thicc Tip: subject matter jurisdiction pleading.

Using 91a to attack a court's subject matter jurisdiction

A court can only adjudicate disputes if it has jurisdiction over parties, property or the subject matter. That's the law. In Texas, trial court subject matter jurisdiction is based on the language of the granting statutes and the Texas Constitution. At this time, the court which can basically hear any dispute is a district court. A county court at law can hear only those matters exclusively delegated to it; same for probate courts, family courts, county courts, and justice courts. Why is this important to Rule 91a?

Subject matter jurisdiction requires that the party bringing the suit have standing, that there is a live controversy between the parties, and that the case be justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Therefore, if a court has no subject matter jurisdiction, its orders are void as a matter of law because they're completely baseless and, in other words, meaningless / advisory. A court without the power to determine a dispute has no binding authority. It doesn't matter if the parties all agree that the court can hear the issue; the court's authority is not based on litigants' consent, but the Texas Constitution and the Constitution vis-a-vis the legislative grant. An appellate court may on its own accord determine whether a trial court has subject matter jurisdiction (primarily because if it did not, then the appellate court cannot validate the holding, or turn it over and order anything in the trial court; the trial court has no power, therefore the appellate court has no power).

People have begun using Rule 91a to attack trial courts' subject matter jurisdiction (SMJ); a NBIL challenge based on SMJ goes like this: "Because the trial court has no SMJ, it may not grant relief, and therefore the cause of action is NBIL and should be dismissed. Now please give us our attorneys' fees as mandated by the Rule for knocking this nonsense cause of action out of court."

By the way: a trial court without SMJ must give the fee if the 91a movant wins on this basis. That is the law of the land baby. The court may have no authority to determine the substance of the cause of action, but it nonetheless has authority to dismiss the action as being baseless for lack of SMJ; therefore, the 91a movant is the "winner" and so the loser must pay his attorneys' fees.

When a 91a motion is used to "attack jurisdiction" it is functioning as a "plea to the jurisdiction." In other cases, courts have held that a 91a motion is naturally akin to a plea to the jurisdiction. Here's why: in a plea to the jurisdiction, if the court determines it has no jurisdiction, it has to dismiss the challenged action. 91a attacks a court's power to determine a cause of action as having "no basis in law" where the factual allegations do not show entitlement to relief; therefore, if the pleadings fail to show the right to relief, then there is no jurisdiction to hear the case, and it must go away. So you get the 91a / plea to the jurisdiction overlap. The "family resemblance" is limited, as observed by some justices; for one, pleas to the jurisdiction allow for the presentation of "summary judgment quality" evidence. Rule 91a, however, explicitly bars the consideration of any evidence outside of the exhibits voluntarily attached to a pleading. "Except as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." Tex. R. Civ. P. 91a.6. (91.a7, of course, concerns the award of the reasonable and necessary attorneys' fee.)

Well, if Rule 91 is a plea to the jurisdiction or explicitly asserts a plea to the jurisdiction as the "specific reason" for denying relief as NBIL, then it seems the court has to violate the Rule in order to determine the jurisdictional dispute. Some trial courts have struggled with this. The Edgefield case went ahead and, for the most part, provided some assurances to its trial courts that it's totally okay to consider 91a evidence attached to the 91a motion to determine SMJ. Edgefield Holdings, LLC v. Kenneth J. Gilbert, Helen K. Gilbert, Chandler Estates, Ltd., No. 02-17-00359-CV (Tex. App.--Fort Worth Sept. 20, 2018). This opinion expressed that when Rule 91a relief is denied after being used to challenge SMJ, the appellate court must determine which "plea to the jurisdiction" scope of review it should apply on its de novo consideration of the 91a order.

"Like a plea to the jurisdiction challenging a plaintiff's pleadings, a Rule 91a motion to dismiss may be based on a party's failure to allege facts demonstrating the trial court's subject-matter jurisdiction over the party's claim. . . . Whether reviewing a plea to the jurisdiction challenging the pleadings or a Rule 91a motion challenging the trial court's subject-matter jurisdiction, we liberally construe the pleadings to determine whether they contain sufficient facts to demonstrate jurisdiction." (Note the 2nd District COA is distinguishing between a plea to the jurisdiction and a 91a challenge to SMJ, but the same "liberal construction" pleading review is done de novo).

" 'A plea to the jurisdiction may also challenge the existence of jurisdictional facts. Mission Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In that case, a trial court's review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion.' . . . The party filing the plea has the burden to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. . . . If it does, the opposing party must then show that a disputed material fact exists regarding the jurisdictional issue. . . . '[W]e take as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in its favor.' Tex. Dep't of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 814 n.2 (Tex. 2012). '[W]hether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law.' Miranda, 133 S.W.3d at 226."

From this summary of plea to the jurisdiction law, the Court reached the following synthesis allowing a Rule 91a motion to bring both these types of jurisdictional challenges (pleading defect based on no evidence, existence of jurisdictional facts based on evidence):

Likewise, in ruling on a plea to the jurisdiction challenging the pleadings, the trial court looks at the pleadings. Miranda, 133 S.W.3d at 226. If, however, a movant challenges the existence of jurisdictional facts, the trial court must consider relevant jurisdictional evidence provided by the movant and, if the movant's evidence negates jurisdiction, consider evidence produced by the nonmovant. Garcia, 372 S.W.3d at 635.
In this case, Edgefield's Motion to Dismiss did not specify whether its plea to the jurisdiction challenged a failure to plead jurisdictional facts or the existence of jurisdictional facts. However, in its Motion to Dismiss, Edgefield attached and referenced evidence other than what would be allowed under Rule 59, and argued that its evidence established that only a federal court had jurisdiction over the Gilbert parties' claims. For the trial court to consider that evidence, Edgefield had to be challenging the existence of jurisdictional facts. Id. Accordingly, for purposes of reviewing the trial court's ruling on the Rule 91a part of the motion, we look to see if the Gilbert parties pled a cause of action with an arguable basis in law—specifically here, whether they pled facts showing the trial court's jurisdiction—and, for purposes of reviewing the trial court's ruling on the plea to the jurisdiction, we look to see if Edgefield negated the existence of jurisdictional facts. 
Edgefield, at *12-13.
What a weird way to get to this. Rather than simply hold "rule 91a movants can put forth evidence to attack a court's SMJ on the basis that there are no jurisdictional facts," the Court said because Rule 91a motions are like pleas to the jurisdiction, and pleas to the jurisdiction can put forth evidence regarding the existence of jurisdictional facts, and this motion had attached to it exhibits, we know that he was using Rule 91a in this fashion, and review it accordingly. Cool! The result is doubly weird because there's no need to explain whether the trial court properly considered the evidence attached; if they hadn't, there'd still be room to doubt if you can do that in a 91a motion, but by saying the court could have considered it, they have opened the door to using 91a motions to bring forth evidence of SMJ.

This seems heavily at odds with the Rule, but perhaps it's not. Rule 91a.6 says "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause." I'm not sure what this means, admittedly. What does it mean to "consider evidence." Is a judicial fact "evidence"? I doubt it. Is simply attaching persuasive papers to the 91a motion "evidence"? How does a court consider "solely . . . the pleadings of the cause" when the only reason to do so is when challenged by a 91a motion which must "specifically" show why the pleaded cause has NBIL or NBIF? Conceptually speaking, what does this phrase mean? In Bedford, the Fort Worth Court of Appeals suggested that it means something like a "four corners" analysis of the petition when the 91a was to be based on limitations. "It is this provision that, according to Bedford in its first and second issues, was violated by the trial court when the trial court dismissed Bedford's claims on the basis of statute of limitations because in order to do so, the trial court was required to look beyond Bedford's petition and consider TIG's pleadings. We agree." Again, this holding may have only been reached because the instant petition did not facially indicate a limitations problem (as noted by the Dallas COA in Bethel). I have not yet personally reviewed the petition at issue in Bedford but will do so eventually if I can get a copy. However, one may ask: does the same logic (refusing to grant a 91a trying to bring an affirmative defense issue up on its own) apply to a SMJ determination, even though SMJ is presumed if affirmatively pleaded or not affirmatively pleaded out? Apparently not, according to the same COA in its later Edgefield decision: SMJ is different somehow from an affirmative defense of limitations (although there's no dispute that their analysis required the court "look beyond [plaintiff's] petition and consider [defendant's] pleadings" to the extent a "defendant's pleadings" include a 91a motion attacking SMJ). Is Edgefield an implicit overruling of Bedford? Probably not. Is it a bit of a hedge for 91a motions not based on traditional affirmative defenses but SMJ? Probably so.

Considering evidence, Rule 91a and SMJ

The Rule says "do not consider evidence" but if the principles of law already out there forbid a court from ruling on disputes where it has no SMJ, then surely the Rule, which is ostensibly a pre-discovery tool meant to attack causes of action out the gate (although of course you may amend pleadings to add causes after discovery has occurred), is meant to encourage the consideration of documents showing the court has no SMJ, right? The opposite is perverse! A plaintiff is actively encouraged to hide the ball from the trial court that it has no SMJ by refusing to attach pertinent documents which may show the lack of jurisdiction; this is known as an "asshole thing to do."

Here's what such plaintiffs think: "If I don't show the court it has no SMJ by attaching documents or alleging anything which may show that, and I'm attacked by a defendant using a 91a challenge, I can simply chortle to the court, pat my paunch and say, 'Your Honor, the Rule forbids you from considering any evidence I did not attach. Therefore, Your Honor, you may not use the Rule 91a motion to consider evidence not before you.' Therefore, I win and you must award me fees. If he wants to come back in and do a general plea to the jurisdiction, why, of course, Your Honor, I would be happy to respond accordingly." And this absurd tactic has worked before. I've seen it. It's absurd. It's alien. It's insane. It's double insane because a court is free to take judicial notice of any public records out there which may establish the question of subject matter jurisdiction! SUBJECT MATTER JURISDICTION MAY BE RAISED ANY TIME IN A CASE, BY ANYONE, INCLUDING THE JUDGE. "Subject-matter jurisdiction cannot be waived, and can be raised at any time." Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (citing Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004)). ANY TIME. What kind of sick pervert lawyer would tell the judge it cannot consider subject matter jurisdiction simply because he won't give the court the documents to do so voluntarily? Imagine an even worse set of facts: Plaintiff ACTIVELY lies to the trial court about jurisdiction, Defendant uses 91a motion to try to show there's a lie, and Plaintiff again bats it away, saying, "Court, you can't determine I'm lying unless you consider documents to show I'm lying, which is forbidden. Now give me fees." Plaintiff amends pleadings to correct jurisdictional defects, and laughs his way to the bank.

It's a shitty idea and a shitty rule if that's what this thing does; it's especially shitty if the "fair notice" rule is allowed to let shitstain pleadings survive 91a challenges for simply being "inartfully pled" though "sufficient to give notice of the claim."

Here's an extra note on the topic. I've seen about three cases which explicitly uphold or do not reverse 91a orders where the 91a movant attached to the motion copies of documents to help bolster the claims on review. In Zheng, the Fourteenth COA, perhaps the most liberal appellate court in Texas, did not reach the issue whether the trial court could permissibly consider a 91a movant's copy of an alleged timeshare agreement when the plaintiff refused to attach it for the court's review. In refusing to reach the issue, the Court did a simple two-step analysis: any analysis that a contract was a timeshare agreement required a comparison of the contractual terms to the timeshare statute, which would further involve a "determination" that the plaintiff was "bound by his answers" to a timeshare questionnaire; such "issues extend beyond a mere determination of whether the claim as pleaded is baseless under the Rule 91a standards" (NBIF fails because the appellate court felt people could believe the contract was a timeshare, and NBIL failed because the court must take as true the plaintiff's allegation that it was a timeshare agreement). I don't think a determination that a contract is a timeshare agreement where the very definition of timeshare-iness is based on a statute is much of an allegation of fact at all; I daresay that a conclusory, legal allegation. If bored, read Zheng v. Vacation Network, Inc., 468 S.W.3d 180 (Tex. App.--Houston [14th Dist.] 2015) (mem. op.). The Fourteenth, however, then explicitly upheld a 91a grant where materials were attached to the 91a motion showing a statute of limitations had passed. See Univ. of Tex.--M.D. Anderson Cancer Ctr. v. Porter, No. 14-17-00107-CV (Tex. App.--Houston [14th Dist.] Nov. 2. 2017) (mem. op.) (slip op.). In Porter, the 91a motion had "[a]ttached . . . a copy of appellee's Charge of Discrimination filed with the Texas Workforce Commission Civil Rights Division" which "[reflected] the complaint was filed August 20, 2013" and the record showed suit was filed "on October 10, 2016, more than two years after her complaint was filed." Id. at *5. The Court noted in a footnote that the plaintiff attached in her response to the 91a motion a September 23, 2016 notice denying her workforce claim that also referenced the August 20, 2013 date of the complaint. At no time did the pleadings contain a copy.
There is precedent for considering 91a attachments in the Fourteenth and the Second COA in obtaining 91a relief. In denying a permissive appeal, the Dallas COA helpfully informed the appellant that he "did not prove that substantial grounds for difference of opinion exist" for this very question (whether a trial court could permissibly consider a 91a attachment); substantial grounds for disagreement exist if different courts disagree. Patel v. Patel, No. 05-16-00575-CV, *3-4 (Tex. App.--Dallas July 19, 2016) (mem. op.) (slip op.) (citing inter alia Workers' Comp. Sols. v. Tex. Health, LLC, No. 05-15-01504-CV (Tex. App.--Dallas mar. 14, 2016, no pet.). The plaintiff did reference the agreement the 91a movant attached, but did not attach a copy. The issue in Patel was whether an LLC member or manager is liable for the LLC's debts (a question of law under Texas Business and Commerce Code Section 101.114). The 91a motion was granted; reconsideration denied; permissive appeal was applied for and granted, and the rest is history. For a case to the contrary, see Quintanilla v. TreviƱo, No. 13-15-00377-CV, at *6 (Tex. App.--Corpus Christi Apr. 14, 2016) (“Quintanilla's petition, as contained in the record before this Court, does not include a copy of the Agreement as an exhibit, nor does it include any other properly attached exhibits. Therefore, the trial court was permitted to consider only the allegations made in the petition.”). In Trevino, the 91a movant attached an attorney referral agreement to his motion; a copy was not attached to the petition. No bueno in Nueces. So there's your split, Dallas.

Not much to go on but it does seem as if the courts who are struggling with the problem of deficient pleadings are at least open to a 91a movant putting the paperwork before its face, perhaps under the right circumstances (where issue is raised; cf. another Dallas case, Bethel, where the Dallas COA upheld a 91a based on affirmative defense where pleadings extensively referenced the facts which would naturally lead into the defense). In one other case involving an interpretation of what the Lej and SCOTX "intended" with the Rule, a hypothetical venue problem was mulled over and held not to foreclose future 91a filings where the "deadline" passed:

First, the defendant files a Rule 91a motion to dismiss that is actually meritorious but is nevertheless denied by the trial court. The defendant then subsequently files a motion to transfer venue, which is erroneously denied by the trial court. Under those circumstances, the defendant is entitled to challenge the venue ruling in an original mandamus proceeding, see TEX.CIV.PRAC.&REM.CODE ANN. § 15.0642 (West 2002), and is successful in doing so. Ultimately, the case is then transferred back to the correct county where it should have been filed. If we were to adopt the Aguilars' reasoning, the defendant in this hypothetical would be precluded from refiling its Rule 91a motion to dismiss because more than 60 days necessarily passed from the date the defendant was served. Surely the drafters of Rule 91a did not intend this result. We decline to adopt the Aguilars' interpretation of the rule. Accordingly, because we hold that the Morales' motion to dismiss was timely filed in the Bexar County Probate Court on October 4, 2013, and their January 14, 2015, motion to dismiss in the El Paso trial court relates back to the date of filing in the Bexar County Probate Court, we overrule Issues One, Two, Three, Four, and Thirteen.

Aguilar v. Morales, 545 S.W.3d 670, 679 (Tex. App.--El Paso 2017)

If trying to figure out the "intent" behind SCOTX's rulemaking is a valid move, then courts should be encouraged by briefs to see what SCOTX meant by a Rule which requires "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." Tex. R. Civ. P. 91a.6. What does Rule 59 say?

Notes, 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, may be made a part of the pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to said instruments and shall be deemed a part thereof for all purposes. Such pleadings shall not be deemed defective because of the lack of any allegations which can be supplied from said exhibit. No other instrument of writing shall be made an exhibit in the pleading.

Hey, so it sounds like the cleanest way to get 91a evidence before the court is to attach it to the answer if the plaintiff won't do it. The trial court is limited "solely on the pleading of the cause of action" and "any pleading exhibits permitted by Rule 59," which explicitly allows attachments to an answer. That's a good plain-text, no-policy type argument.  (There is only one problem, and that's the relatively confusing statement in Rule 91a that a court's review must be only to the pleadings and the Rule 59 attachments, suggesting a limited review of the petition + attachments only, and not the answer + attachments; however, the Rule doesn't say this, and broadly references Rule 59, so there's room to go with my theory.)

What if you do a combination answer with 91a motion as your pleading? (I feel it's too unclean a tactic, but it may work.) I personally don't see the significance in a capable answer which denies the relief entitled to the plaintiff and a 91a motion which denies the relief entitled to the plaintiff. Rule 91a of course requires a motion to identify it is brought pursuant to the Rule, but what's to stop someone from just saying "this answer contains all the following: general denial allowed under Rule 92, special exceptions under Rule 91, verified denials under Rule 93, and grounds to dismiss for failure to state a claim under Rule 91a." Think about it, baby.

And, of course, whether a court "considers" the documents or not (wink wink) seems to be an open question. Hell, just attach the documents and let the plaintiff freak out and say the court needs to strike them from consideration. That should be fun. You can sit back and say, "Of course the judge did not consider evidence. The documents are not attached as evidence but as illustration." And whose fault is it if the judge does consider it as evidence? How are you going to prove the judge relied on it on appeal? Just a "smell test" argument? Good luck.

END EDIT

Admittedly, SMJ will be presumed if shown affirmatively through the factual allegations of the pleading or not disconfirmed through the allegations. Peek v. Equipment Service Co., 779 S.W.2d 802, 804 (Tex. 1989) (courts presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition). The absence of jurisdiction may similarly be shown through the failure of the pleadings to establish it.

So in my 91a SMJ motions, I always argue that if judicial notice can help resolve the issue, the court should deploy it. Why? Because I give a shit about justice, fairness and cheapening lawsuits unlike some unethical scumbags out there I will happily name and shame at the first CLE I get to do : )

Judicial notice has long been used to determine a court's SMJ. Basically, the thinking is - why should a court be limited in how it can determine SMJ? While Edgefield didn't get this far, it seems like an implicit extension of the court's rule - if a 91a motion is used to challenge SMJ, a 91a movant can urge the court to take judicial notice of the pertinent public records which could establish the lack of SMJ. See, e.g., Cnty. of El Paso v. Navar, No. 08-17-00058-CV (Tex. App.--El Paso Jun. 6, 2018) (using judicial notice to determine SMJ in declaratory action). There is no reported case found by this humble author involving judicial notice, SMJ and Rule 91a. I hope one day to be the cause of it, or to see it succeed with someone else's capable hands.

I'll develop this Thicc Tip into something substantial over time. This is my basic thinking on the topic.

Rule 91a:

91a.1. Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, 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.

91.2. A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.

91a.3. A motion to dismiss must be:

(a)      filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;

(b)       filed at least 21 days before the motion is heard; and

(c)       granted or denied within 45 days after the motion is filed.

91a.4. Any response to the motion must be filed no later than 7 days before the date of the hearing.

91a.5. (a)       The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.

(b)       If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.

(c)       Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).

(d)       An amended motion filed in accordance with (b) restarts the time periods in this rule.

91a.6. Each party is entitled to at least 14 days' notice of the hearing on the motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.

91a.7. 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.

91a.8. This rule is not an exception to the pleading requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to the court's jurisdiction only in proceedings on the motion and is bound by the court's ruling, including an award of attorney fees and costs against the party.

91a.9. This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal.

Thursday, September 13, 2018

The unforgiving debtor

The favorite pastime of the Christian is a bad faith misunderstanding of certain passages in their Bible.  By indulging his cultic devotion to illiteracy, the Christian ensures perpetuation of inherited patterns of confusion and ignorance.

An example is the misunderstood story Jesus is said to have related concerning the Unforgiving Debtor.  The story goes like so:

Peter, one of Jesus's followers, must have felt conflicted about somebody.  He walks up to Jesus and asks him, "How many times do I have to forgive someone who's wronged me?"

Jesus gives a psychologically insightful reply, by basically refusing to answer the question as if it was a real question.  If the question were real, calling for a real answer, then there might be a "limit" to forgiveness.  You could count up the perceived wrongs, and then give out perceived forgiveness, until a certain limit.  At that point, I guess, you could just be an asshole to them, or something.

Peter says, "How about seven times? Someone fucks me over 7 times, that's enough, right?"
Jesus says, "How about this Peter. How high can you count? That high."
Peter is agog.  This is a guy who must really be vested in counting up wrongs and forgivenesses.  Sounds like any number of lovers out there.  "Well you fucked me over this one time and I forgave, I stuck with you, I, I , I, I. Not this time, asshole! I'm NOT forgiving you."

This is a selfish position.  Counting up "wrongs" and counting up "forgiveness" is also stupid.  It's important to take account of people's behavior, of course, but not to keep a little I'm Bigger Than They Are cheat sheet.

Jesus is not done.  He decides to make a cryptic analogy for no reason at all.  This cryptic analogy is where Christians lose their minds.  The basic moral is easy enough to accept - don't lose your head about what other people "owe" you because, likelier than not, you don't actually know that that is true - i.e. you see shitty things and do not see your own shitty behavior.

Jesus's analogy is to a rich Tyrant who leant a loooot of money to one of his subjects.  Payback day has come and the debtor is shitting himself in fear.  He tells the king he can't afford it.  The king says "I WILL SELL YOUR FUCKING FAMILY."  The debtor begs for an extension.  The king decides to "release" the debt (i.e. forgive it entirely - the king, however, turns out to be an Indian giver).

The debtor is jumping for joy and comes across some deadbeat who owes him money too (much less than what he owed the Tyrant).  He beats the guy, choking him and insisting on payment.  The other debtor asks for an extension.  The shitty guy says, "NO BITCH" and has the guy jailed until he could pay him back this lesser amount.

Everyone had heard about the Tyrant's forgiveness of the shitty guy, so they went and ratted on him to the Tyrant.  The Tyrant summons him, and then yells at him.  The basic principle he articulates goes like so: "I forgave you, why can't you forgive him?  It's what you should have done you fucking cunt. But because you are so shitty, guess what? As Tyrant, I take back the release I gave you.  Now I will torture you until you pay me."  (Whatever the fuck that means. How does torturing someone get you money?  What kind of insane king is this?)  The money loaned at the time was "10,000 talents" which is like a billions of dollars or some shit if it's gold (as measured by today's values).  No one knows how much a talent was supposed to weigh, but it's anywhere from 20kg to 50kg.  A kg of gold these days fetches about $41,000.00.  So 10,000 talents at today's value is about $205 billion dollars.  In any event, 10,000 talents was a lot of money, perhaps an unpayable amount.  So this king basically loaned the value of a kingdom to one of his servants.  His choice, I guess!  I guess he'll be torturing the guy for the rest of his life. Cool story, Jesus!

So we forgive people unless no one has any dirt on us, is that the real moral? It can't be.  Jesus just said "forgive people so many times you can't count it up," in so many words; in other words, he said, "don't keep track of forgiving people" because if you do, it ends up being like, in the theology of the Jews, demanding payback of a pittance (in the moral sense only) from a fellow human compared to the great forgiveness of YHWH on the sinner.  Whatever wrong your fellow man has done to you, it's way less than whatever wrong you did to YHWH.  As the prophet said, "All our deeds are like filthy rags" in the eyes of YHWH (when we live in sin).

Christians do not struggle with this passage because for them, the easy solution is to just transmute all the anonymous characters in the passage to "real" entities.  The "king" in the story is JESUS, not YHWH.  JESUS forgives us, not YHWH (a heresy, of course).  The "unforgiving debtor" is anyone who forgets the grace of Jesus/YHWH.  The other debtor is just anyone who happens to be caught in the unforgiving debtor's orbit that did him wrong once.  The mentality of the unforgiving debtor is, in other words, Peter's own: calculating, tallying, remembering, not forgiving, not forgetting, ignorant of the great mercies shown in his life.

The Christian reading of this passage is, of course, a literary abuse.  If their review is right, here's the reading:

A Christian must beg forgiveness of a debt to Jesus from Jesus.  If he does, Jesus will forgive him automatically.  Then, a Christian must forgive everyone around him, or Jesus will rescind his forgiveness of the Christian's sin and torture him for all eternity.

In other words, "grace" is contingent on way more than "belief" in Jesus - it is dependent on your continued acts of mercy and your revocation of superiority to any man.  If you believe yourself superior, then you believe your lessers owe you moral debts.  If you think that, then you arrogate to yourself a position of perfect inscrutability, which is the province only of the sovereign. If the sovereign has shown you mercy, however, then you owe it to the sovereign to pass the mercy along to his other subjects.

Jesus is not saying anything else.  He is not talking about "what ifs."  As a Jew, he believed in YHWH's forgiveness of sins through sacrifice.  If someone subject to YHWH obtains His forgiveness, then that person owes it to others to be merciful and righteous, even if the law does not require it.

Christians don't like this line of thinking, so they say that's not what the passage means. The typical Christian despises the idea that mercy might be contingent, that forgiveness might be revocable, that grace is not eternal.  Then why would the passage ever refer to Jesus / forgiveness / sins, and not to mercy / YHWH, which is the archetype Jesus teaches and what the Old Testament establishes?  It takes too much thinking and backwards leaping.  The Christian looks ahead to the passages written by the Church, then look back at what Jesus reputedly said and say "Because Christians say this and they say Jesus said this, then it stands to reason Jesus meant this."  That is akin to reading an argument by, say, the Yale Law dude Akhir Amar says about the Constitution, then reading the Constitution and saying the Constitution means what Amar says.  Which is fucking lunacy.



The careful Christian will not vest that much meaning in this extremely simple passage.  The typical Christian will not because that requires thinking.  Indeed, careful Christians are as rare as good cops.

Wednesday, August 29, 2018

The Rich Man and Lazarus - an unsophisticated interpretation

One of the tales told me in childhood which I despise most is Luke's accursed parable of the anonymous rich man and Lazarus the sickly beggar.  It is often told in Christendom as a means of persuading the wayward young of two principal morals - that there is a physically sensate "heaven" and hell and that you go to one after you die.

As I've written elsewhere, Luther, and Tyndale after him, popularizing the Bible into the common tongues of Europeans are the most damned of men, alongside the Enola Gay's Tibbets. A bunch of mouthbreathing plumbers pumping come into their wives' guts and springing up a whole new crop of averagely engaged Sunday schoolers are not the people you want convinced of absolute truths, much less truths without any physical corollary (unlike, say, a constant like the relationship of 1 and 1 or the rate at which a bottle of water fills assuming certain conditions).

A terrible aspect of this tale is that it is often presented by the illiterates who teach it as an account, or even a fucking recording of an actual conversation, rather than a joke or a simpler parable to illustrate a rather common sentiment.  This is done through the usual acrobatics - every word of the NT is like every word of Scripture because people don't know how to read and are sick in the head and want both of these things to be true; then because the story is in the NT, one needs to figure out if it's a "real story" about people like that of the centurion and his dead kid or a "fake story" like that of the sower and the seeds. Most dumbass Christians you meet will simply conclude without much work in any form of scholarship that it's a "real story" and therefore what Jesus is really doing is, for the most concrete time in Jewish history, telling a fucking story about two real people who went to real afterlives in This World.

That's insane.  If anyone says that to you, pity them and see if you can bilk them of their money because they clearly don't need it.  In fact, they should welcome suffering since Lazarus goes to a good place when he died and the rich man went to a bad one! They should welcome expropriation : )

But read on.

The tale goes like so - once upon a time, there lived a poor man and a rich man.  The rich man's name is lost to time, similar to Snow White's mother's name or Cinderella's father's name or Hansel and Gretel's evil parents' and witch's names.  The poor man, however, is named Lazarus.

I'll pause.  The mere fact that the guy has a name is pretty much the sole reason people think Jesus broke stride to tell a real-ass story about a real-ass dead dude. These people, however, waste no time in dismissing the story of the woman sweeping around looking for a necklace of hers as being a fictional story told to make a point (and waste no time in saying that the disciples' accounts of Jesus are somehow in a meta-way super-true, and then waste no other time adding that the disciples' accounts are themselves not their accounts but rather the accounts of Jesus vis-a-vis God (if a trinitarian) or God's (if a monotheist)).  They do it by waving broadly at "dissimilarities" and "peculiarities."  Satisfied with this gloss from people who think rap English is equivalent to white English, who've never even looked at a Greek letter without going numb in the forehead and raising their feeble arms in class to say, "Mees, mees, mees, I just doan get it mees. It's too hard for me, mees.  I need help! Mees, this shit's boooring. When am I gonna need to know this in the real world, mees" right before you gat their brains out.

The poor man is sickly.  His body is wrecked with sores.  At the time, it must have been a norm for some people to eat in a public way such that beggars and dogs hanging out at the table would have been a common sight, for Luke's Jesus says that the poor man hungered for the crumbs falling hither and thither from the rich man's plates.  He was such a sickly piece of shit the dogs licked his sores.  The common wisdom of a dog licking sores is not total abject destitution but to illustrate that animals had more compassion than humans on this poor, dying sucker (the lore is that dog licks help encourage healing).  Eventually, the beggar dies, and one day the rich man dies, too; Luke's Jesus says the angels escort the beggar to "Abraham's bosom" which is said to basically be like a feast table where the dudes reclined such that they'd lean in a totally not-gay-way into each other's chests.  In other words, Lazarus and the Patriarch were fucking tight.

The rich man's conveyance is not so celestial; he ends up in a place of torment called Hades.  Any child will tell you that the Greek god of the dead is Hades; for Luke's purpose, the term probably carried other significance for the Jews in the audience as another word for the Hebrew term "Sheol" (the Grave where all the dead are said to go, and in Ecclesiastes are specifically said to sleep forever, senseless of the world). The torment is implied to be a fire, and through this burning fire the rich man manages to catch sight of none other than that poor motherfucker Lazarus hanging out with Abraham. (A smart child would stop here and say "How the fuck does this dead-ass dude recognize Abraham who's been dead who knows how long by now." A sophist child would respond and say, "How do you know Jesus isn't talking about a contemporary of Abraham's, ehhh?"  A smarter child would then murder the sophist, all of his family and friends and then burn the fucking book he was quoting and whoever taught him this gibberish.  Unfortunately I was neither smart nor smarter as a child.)

The rich man begs, "Please give me some water to ease this burning."

Abraham looks down on the rich man and (somehow) says "dude there's this gulf between us," as in like, there's an uncrossable chasm.  How good are these assholes' vision and voices?  I guarantee you on stackexchange some guy wrote a screed about afterlife physics because of this very passage.  Abraham adds, "So yeah I can't give you any water."

Then the rich man starts to think and realizes that his brothers on earth may end up where he's at.  Why? Are we to assume all rich people are the same? Yes. Yes you are.  Because they are.  Jesus's audience is a mix of rich and poor; most of the rich are rejected by Jesus as basically undeserving wretches, and the Pharisees in the audience are particular subjects of his ire and criticism for an apparently common teaching that wealth is a sign of God's blessing and favor (and conversely, poverty is a sign of his disfavor).  Considering that many of the old passages of the Bible are replete with prayers for wealth and promises of wealth as exactly signs of God's favor, and genocide, dismemberment, disinheritance and impoverishment signs of his disfavor, this wasn't a crazy thought to have.  Jesus, however, is having none of it.

The rich man asks if Abraham could send Lazarus back to Earth to tell the brothers about this place so they'd somehow end up avoiding it.  How, who knows.  It's not explained.  Abraham says "nah. They can figure it out on their own.  If they don't listen to Moses or the Prophets, how will someone who rises from the dead do the trick?"

And here Christians unanimously squirt their shorts. These are the same people who literally say without a guy rising from the dead they'd never have a chance at a paradise like that of Abraham's bosom.  So why do they like this story so much? Why do they put so much literalist weight on a clear moral fable?  If it's truly literalist, then their bizarre belief in Jesus is completely offset by the fact that the voice of Abraham is mocking their current belief structure; they only focus on the a) torment in the rich man's hell, and b) the inability for the "good dead" to come back and warn the "bad living" about the coming binary afterlives - good / bad, heaven / hell.

Yet, if Jesus is saying through the character of Abraham (or indeed is even quoting the Patriarch) that all one needs to get to the afterlife of the beggar's is Moses and the Prophets, and not someone rising from the dead, then what use do Christians have of the resurrection?  The true Christian would be putzing around trying to figure out how Lazarus somehow figured out what the rich man did not.  But the smart Christian would look through it all as a transparent condemnation of the "rich goes onto paradise, the poor go onto hell" - it's a fucking inversion of this notion.

To exorcise one's demons, one must name them out loud.  Purge this tale from your banks, ye feeble Christians, and mock and condemn them who believe it, anyone else out there.

Monday, June 4, 2018

Texas Thicc Tip Series 9 - - Wells Fargo Bank, N.A. v. Farkas, and § 50(a)(6) for Texas homestead law compliance

https://www.linkedin.com/pulse/texas-thicc-tips-series-9-wells-fargo-bank-na-v-farkas-j-cottle/?published=t
I'm beggin' for someone to Shepardize this case for me but according to Casetext no one has cited this case. The case is Wells Fargo Bank, N.A. v. Farkas, Civil Action No. A-15-CV-165-AWA (W.D. Tex. Apr. 28, 2017). If you Google it, 8 results pop up, all of them germane to the case itself, and nothing about citing authority.
I've written about constitutional litigation under Section 50(a)(6) of article XVI of the Texas constitution, which regulates foreclosure-eligibility laws for homestead loans. In 2016, the Supreme Court of Texas issued a pair of related § 50(a)(6) opinions in Wood and Garofolo.
A lot of debtors sue creditors seeking to foreclose on pretty spurious grounds that they essentially can seek to, at any time, have the validity of the loan "declared," and that no statute of limitations defense bars such. I disagree with this interpretation. While the Court and Texas law are both clear that no void lien may be, essentially, protected from being set aside by dint of a limitations defense, the law is equally clear that merely voidable liens are susceptible to applicable limitations defenses--namely, the four-year SOL.
The Farkas case said that a loan which incorporates the provisions of § 50(a)(6) will be valid. It based its decision on contract incorporation law; under Texas precedent, unsigned papers may be incorporated by reference into signed documents. Thus, homestead lien contracts and related notes could "incorporate" the Texas Constitutional provisions into their own terms and thereby bind the lender, and also imbue the loan documents with lien validity. The Court observed that a magistrate's decision to deny a motion to dismiss a foreclosure action because the magistrate found "that Section 50(a)(6) had been incorporated by reference in Section 29 of the Agreement, and thus not all terms needed to be explicitly referenced for the lien to be valid." The court observed that since "Section 50(g) requires the exact language of that section to be sent in a notice to the homeowner," and there is a "general requirement to comply under Section 50(a)(6)," the duty to sent out a notice delineating the § 50(a)(6) requirements "is further proof that not every provision will be explicitly referenced in the lien documents. Rather, it was expected that some of the provisions could be incorporated by reference." The Court concluded that the loan agreement and deed both "reference[d] the entirety of Article (sic) 50(a)(6) in at least two sections," the first being the caption of the Agreement which claimed it was an "Extension of Credit as that term is defined by Section 50(a)(6) and 50(t), Article XVI of the Texas Constitution." The Court found that such language "evidences a clear intent to incorporate Section 50(a)(6). By defining 'Extension of Credit' under the terms of Section 50(a)(6), the Agreement references the requirements of that Section as being the terms by which the Agreement is made. Section 50(a)(6) does not define an extension of credit, but rather provides that a valid lien complies with the provisions of that section. Thus, defining 'Extension of Credit' as provided in Section 50(a)(6) incorporates the entirety of that provision. Moreover, this section provides clear notice that the provisions are to be applied through the document wherever 'Extension of Credit' is mentioned and clearly indicates an intent to be bound."
Only this last sentence is a bit unclear as to whether the Court meant that it viewed that simple statement as providing such notice, or if other provisions in "Section 29 of the Agreement" did this heavy lifting.
The Court then asserted that even if it bought (which it did not) the debtor's argument that such language only met the disclosure requirement of section 50(a)(6)(Q)(vi), the agreement also incorporated Section 50(a)(6) in another provision which said that the "Bank shall comply with any of its obligations under sections 50(a)(6), 50(e)-(i), or 50(t). The Court said this is more than "'mere reference' and indicates a clear intention to comply with with the constitutional provision." To add more beef to the argument, the Court noted that the document was internally consistent thereafter and even specifically reference various "terms" (which are likely terms contained in the § 50(a)(6) list). "This points to a clear intention to abide by the Texas Constitution, and 'plainly refers' to Section 50(a)(6)."

So this is pretty cool. The Supreme Court hinted at "incorporation" in Garofolo, although when I reviewed the lower case, I did not find any clear evidence that this was done "by reference." Farkas stands for the proposition that a creditor can comply with the lien validation protocols of the Constitution and the Supreme Court's concerns in Wood and Garofolo by incorporating by reference the "terms and conditions" of Section 50(a)(6).

Texas Thicc Tip Series 8: There's no such discovery objection as "Assumes Disputed Facts" - stop using it



I remember one day day I went to court, where I got to watch and listen to the antics and gesticulations of a maniacal attorney, which were (mercifully for him) off the record. The court told us to work out the motion to compel basics out before he had to rule on anything. This guy is the laziest sack of shit I've ever been against; he said that the case "wasn't his first rodeo" but when I asked him why he didn't give me the responses on the facts underlying his clients' defense of failure to mitigate damages, he literally said "that's the first I've heard that term." Makes me wonder if the rumors are true.
He's not the subject of this Thicc Tip. His misplaced discovery responses to some requests are the subject.
In a debt collection suit, his clients provided a general denial and a specific denial of "each allegation" of my client creditor's claim for debt. In other words, they said there's no debt, and if there is one, they don't owe it, right? They also made an affirmative defense of "payment," which means a full payment or partial payment not accounted for has been made, and accounting is to be made by them.
So I ask: tell me why you don't owe the debt and also, show me your facts supporting the defense of payment.
Objection: Assumes disputed facts.
Assumes. Disputed. Facts. Besides the inherent incompetence of this attorney and the danger he poses to the bar by being allowed to send stuff like this out, I was miffed by the objection. I'd never heard of it before. Turns out, there's a good reason: it's almost never been uttered until recently in the discovery context. Most people object to "assumes facts" or "assumes facts not in evidence." It may very well be that something which "assumes disputed facts" is the rarer, original form of "assumes facts." An objection that a question "assumes facts not in evidence" is generally reserved for trial witness examination objections, and is generally aimed at attacking a question posed to get testimony on a subject not yet introduced into evidence (though a trial witness should be able to testify and thereby introduce the evidence into the record, right?).
So I did a little historical research. The term "assumes disputed facts" is a proscriptive term applied against judges' jury instructions or charges, and not a parties' discovery objection basis. This was how it used to be through all the way through the first third of the 20th century. Only recently have I found any indications that this term is creeping into modern litigation discovery, but it seems that it is crawling in through reliance on cognitive psychology handbooks.
As early as 1887, this term was found in an appellate court's refusal to consider certain points of error assigned, as it felt the question was in the jury's province and to do otherwise would "assume[] disputed facts for the jury to determine" (this issue involved whether a certain property line fell on this or that side of some fencing). See Central Reporter Vol. IX (all Cases Determined In The Courts Of Last Resort), ed. Edmund H. Smith (citing case of Stryker v. Ross).
An Oregon case found in an 1897 reporter of cases in the Supreme Court of the State of Oregon, as reported by Robert G. Morrow, summarized the holding of a case called Owens v. Snell, 484 as the following: "An instruction which assumes disputed facts to have been established is properly refused." [I like that one, don't you? The assumption of establishment is the real evil this rule is aimed at blocking.]

In 1902, De Witt Clinton Blashfield wrote a treatise on judges' instructions to juries, and remarked that it is "the exclusive province of the jury to determine the existence or nonexistence of the facts" and is an invasion of such "for the court in its instructions to assume the existence or nonexistence of material facts which are in issue between the parties, and as to which the evidence is conflicting." He adds: "The instructions should be so drawn as to state the law upon a supposed state of facts to be found by the jury. No matter how slight the evidence is, the court cannot assume the existence of facts...." (Blashfield also noted the obvious exception in the cases of a "directed verdict" where the court can instruct the ruling "where the evidence would not sustain a contrary finding.") Blashfield has a section devoted to instructions "held not to assume disputed facts," and remarked that such instructions are those which "state[] in hypothetical form the facts which the evidence tends to prove." In other words, the proper jury charge should be framed in the conditional of certain findings of fact by the jury.
A case compiler called Current Law: A Complete Encyclopedia of New Law, Volume II: Fires to Witnesses, from Foster and Longdorf in 1904 had a remark that a jury instruction which "conceded" that decedent died "under the circumstances" did not count as a conclusion as to defendant's agency therein, and thus did not "assume disputed facts." The case cited was Bliss v. State (Wis.), 94 N.W. 325. So you see the nature of this argument: a judge cannot "assume disputed facts" in its instructions, and people would frequently harp that certain orders did so based on basic inferences that would be permitted.
In 1904, the Supreme Court of Alabama in Frierson v. Frazier, 37 So. 825, found that a jury instruction was "not merely misleading, but when referred to the evidence, as all charges must be, was positively erroneous" (involving a finding that if one side was to be determined negligent by the jury in a case, then negligence had to be assessed, notwithstanding any evidence of defendant's negligence as well - tsk tsk).
The same term was found in Blashfield's 1916 version of the treatise. Not a bad set of reads.
The same concern about invading the jury's province and "assum[ing] disputed facts" occurred in a 1920 opinion from the Supreme Court of Oregon, State v. Turnbow.
Even Wal-Mart used the term as late as 2002 in attacking a jury instruction regarding the timing of some event in Kenney v. Wal-Mart Stores, Inc., No. SC84770.
In a 2013 filing in the Supreme Court of Texas for the case Shagrithaya v. Argo Data Resource Corp. et al, there's a court transcript where the attorneys are reading into the record that a subpart of an instruction was "vague and confusing . . . and assumes disputed facts or otherwise fails to instruct the jury on the pertinent inquiry." Hell yeah.

So what happened?
I dunno. But I see an application of the term "assumes disputed facts" in a motion to compel case from 1961, Cembrook v. Superior Court of the State of California in and for the City and County of San Francisco, Civ. 19564 (Cal. App. First Dist., Div. 1, Feb 23. 1961). (dealing with motion to compel response to lengthy RFAs, and "cull[ing] the questions to sanction those that call for direct and simple answers" after categorizing the requests as proper and improper, finding the improper ones to include those which "assume disputed facts" or "seek admission of facts whic hconstitute the ultimate issue.") The Court noted: "To assume and assert, as part of the question, a fact in dispute is to make it impossible for the questioned party to render an intelligible answer. The following questions do so" and then it listed certain interesting questions for further study, which the court argued "assumes the pre-existence of a disputed fact." In my book, I read this as essentially blocking any questions which take for granted a mens rea of sorts. One of the questions it counted as "assuming disputed facts" is the following - "That prior to the above time, and with knowledge of the above, D did nothing to warn P or others that said irritation of the stomach could result from taking said Bayer Aspirin regularly for colds and/or headaches during a period of over one year." I think it's fine to condition the request in issue depending on previous requests' being admitted which establish the mens rea or other assumed fact as to that otherwise objectionable request; in other words, if your question WOULD assume disputed facts but for the fact that just before that you asked them to admit something else which would clear up the fact to be assumed, then I think it's okay to ask it. But it is interesting to note that the judge has essentially found objectionable an entire body of questions which "assume disputed facts" and leaving it to us to figure out what that means. I think the question could have been knocked out for simply being compound and vague. I really don't like the ruling as it is - which part is disputed, exactly? Every part? Just the parts about irritation?
But you see the term "assumes disputed facts" appear in a global objection to requests for admission from DuPont here (page 2, and this is a 2000 case in Dallas, Broussard v. GAF Corp.). At least DuPont defined the term for its own use - "When DuPont objects to a specific admission on the basis that it 'assumes disputed facts,' DuPont is referring to facts on which Plaintiff Joseph Genzer has the burden of proof and that are currently disputed or are facts that DuPont reasonably believes will be disputed as investigation and discovery proceeds."
Maybe I should ask Larry Cotten why he used this term. I'm trying to get at this - take a breach claim: Plaintiff has burden of proving things like valid contract, breach and damages, right; so if you ask the other side in a case where nonpayment is a condition of default and therefore breach, "Admit you stopped paying the contract as required under the terms." "OBJECTION: ASSUMES DISPUTED FACTS." Maybe. But what about "Admit you stopped making payments after this date"? Less so, right? And then Plaintiff can just use that admission as evidence of violation of the contractual term. Doesn't seem like as a tool it does much heavy lifting, especially as a "global objection."
In 2014, a similar objection was raised in a Department of Telecommunications and Cable suit from Massachusetts - the global objection was to any requests which "assume disputed facts or legal conclusions in defining the information sought." Comcast of Massachusetts III, Inc. v. Peabody Muni. Light Plant et al, D.T.C. 14-2. See also this case from Texas (same shit - global objection to interrogatories on basis that they may assume disputed facts or legal conclusions).
In Fratus v. Mazyck, No. 2:16-cv-0076 KJM EFB P (E.D. Cal. Nov. 1, 2017), we see it again: the response to discovery request on data about correctional officers' "beatings" of a guy objected that the request "assumes disputed facts" (i.e. "no we didn't beat him") and was also vague; but the court upheld the motion to compel on this request and overruled the objection.
Now we're seeing manuals characterize as a type of leading question as one which "assumes disputed facts" like - "was the red car going fast" when the color of the car isn't yet established; easy to get around by just getting a DX on the color of the car first, right? But that's not really a "disputed fact" so much as one "not yet in evidence." So it sounds like people are just adding gobbledygook into legal proceedings which had one place only, in jury instructions. Check out the Handbook of Psychology of Investigative Interviewing - Bull, Valentine and Williamson 2009 - (noting that since kids are susceptible to suggestion, you should not ask questions which "assume disputed facts" such as "How fast was the red car going" when the color of the car is not yet ascertained" - but clearly if we had established that the color of the car was red, then this would not be disputed fact.) [Also check out the 2016 book Art of Advocacy Series: Direct Examination (noting that certain questions to avoid during DX include those which 'assume disputed facts." (This goes to the trial evidence text which says that this is a kind of leading question) (referring more reading to chapter 2, § 2.02[1] of that book - after review of this, I did not find anything on the topic, only a general description of proper DX form)).]
I saw this in an answer on file. Johnston v. Crawford, E.D.Mo. Jun. 30, 2005 (denying a petition's allegation paragraph because the paragraph "contains allegations that assume disputed facts and assume the ultimate allegation and, therefore, defendants deny.")
We also see this in settlement guides: Here's a supplemental excerpt from Sexual Harassment in the Workplace: Law and Practice, by Alba Conte from 2010 - Cook v. Yellow Freight System, 132 F.R.D. 548, 554 (E.D. Cal. 1990): ""What is stated as fact on the record could very well not be the sort of evidence which the parties would otherwise actually contend to be wholly true. That is, the parties may assume disputed facts to be true for the unique purpose of settlement negotiations. The discovery of these sorts of 'facts' would be highly misleading if allowed to be used for purposes other than settlement." (Basic holding: "plaintiff female former employees alleging that their supervisor sexually harassed them were not entitled to obtain written communications between the employer and supervisor regarding his termination and possible settlement when such communications were privileged and protected by the right of privacy." See id. here: "parties may assume disputed facts to be true for the purposes of settlement negotiation" because "Settlement negotiations are different from litigation and therefore its factual details should not be considered for any purposes other than settlement."
SO WHAT GIVES? Why is this term coming into the discovery and trial examination world after being so long hidden within the annals of obscure judicial rules?
I don't know. But it's something to pay attention to and prepare for. I think this objection is easily dealt with, as it appears to be most often handled with clumsy hands.