The Dallas Court of Appeals has joined its sister court in Amarillo in holding that the trial court’s denial of a Rule 91a motion to dismiss for failure to state a claim is not reviewable on appeal if the plaintiff proceeds to trial and proves “facts sufficient to support relief.” The case, American Pride Xpress Logistics, Inc. and Thomas E. Flores v. Joe Jordan Trucks, Inc. (No. 05-20-00281-CV), arose from a dispute over lease payments on property owned by Jordan. The trial court denied Flores’s motion to dismiss under Rule 91a as having no basis in law or fact, as well as the defendant’s motions for summary judgment and for a directed verdict. At trial, the jury found in favor of the plaintiff and awarded approximately $300,000 in damages for accrued unpaid rental and damage to the property plus attorney’s fees.
SCOTX has established that the standard of review of a Rule 91a ruling is de novo “because the availability of a remedy under the facts alleged is a question of law and the rule’s factual-plausibility standard is akin to a legal-sufficiency review.” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). However, when the trial court denies a Rule 91a motion and the case proceeds to trial on the merits, the issue becomes moot if the plaintiff “has proved, not merely alleged, facts sufficient to support relief.” Raider Ranch, LP v. Lugano, Ltd., 579 S.W.3d 131, 133 (Tex. App.—Amarillo 2019, no pet.) (quoting Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir. 1996) (regarding appealability of denial of FRCP 12(b)(6) motion to dismiss for failure to state a claim when the plaintiff prevails at trial).
In a footnote, the court of appeals noted that its holding did not address whether the court would review the denial of a Rule 91a motion if the plaintiff failed to prevail. That issue will have to wait for a future case.