While many lawsuits play an important role in providing justice, some do not warrant the time and expense required to bring them to court. To address such frivolous cases, the Texas Legislature mandated in H. B. 274 (82nd R.S.) that the Texas Supreme Court create rules to allow for cases to be dismissed if they “have no basis in law or fact on motion and without evidence.” In addition, the legislature mandated that attorneys’ fees and costs should be awarded to the successful party in the motion. As a result of this 2011 mandate, the Texas Supreme Court created Rule 91a, which went into effect in March of 2013. Tex. Misc. Docket No. 13-9022.
Initially, Rule 91a was not often used, perhaps due to the mandatory awarding of costs and attorneys’ fees, which seemed to deter its use. See Senate Research Center, Bill Analysis and HRO Bill Digest, H.B. 3300 (86th R.S.) (2019). As a result, the legislature made a simple but impactful edit, changing the word shall to the word may, thus making the award of attorneys’ fees and costs permissive. This 2019 amendment may lead to 91 a being used more frequently as a means to dismiss cases in Texas.
Basics of 91a Motion
According to Tex. R. Civ. P. 91a. 1, “a cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” It does, however, include two specific situations for dismissal: “too few facts to demonstrate a viable, legally cognizable right to relief” or “additional facts that if true bar recovery.” Galperin v. Smith Protective Services, Inc., No. 01-18-00427- CV, 2019 WL 2376118, at *1 (Tex. App.—Houston [1st Dist.] June 6, 2019, no pet.); see also Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 741 (Tex. 2019).
A motion filed under Rule 91a should include the following: a statement declaring that the motion is brought under 91a, identification of each specific cause of action for dismissal, and details about why each action “has no basis in fact.” Tex. R. Civ. P. 91a.2. The motion must be filed within 60 days of being served, and any response must be filed “not later than 7 days before the date of the hearing. Id. At 91a.4.
Once the motion is filed, the hearing must occur within 21 days. Each party must be served a notice of the hearing at least 14 days before the hearing, which may be either in the form of a written submission or an oral argument. Id. At 91a.6. The court then has 45 days after the 91a motion is filed to issue its ruling although that time frame is suggested rather than mandated. Id. At 91a.e(b)-(c). After the change in 2019, the court is still allowed but is no longer required to award the prevailing party “all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in trial court. Any award of costs or fees must be based on evidence.” Tex. R. Civ. P. 91a. Unchanged by the 2019 amendment, however, is the fact that the trial court has discretion over exactly how much is awarded to the prevailing party.
Granting a 91a motion in trial court is a final judgment which can reviewed by regular appeal. E.g., Cazares v. Segovia, No. 11-18-00141-CV, 2020 WL 3127335, at *1 (Tex. App.—Eastland June 11, 2020, no pet. h.). However, if the motion is denied, it may lead to an interlocutory appeal with no defined right to an immediate appeal. One option for the losing party is to file a petition for writ of mandamus, in this case, a request to a higher court to compel a lower court to grant the 91a motion. Used rarely, the writ of mandamus is the last hope for overturning the trial court’s decision.
91a was written to provide litigants a procedure for dismissing frivolous causes of action. Filing or defending against a motion to dismiss is far from simple. A knowledgeable lawyer will help a litigant through the difficult process of navigating a 91a motion in trial court, avoiding dangerous pitfalls in the process.
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