Justice Evan Young
In a case in which the Texas Supreme Court denied review, Justice Young has issued a concurring opinion identifying an issue that could trouble the trial and appellate courts in years to come: whether and under what circumstances a trial court should consider the plaintiff’s pleading exhibits when deciding a Rule 91a motion to dismiss.
Gardens of Connemara Ltd. and Emerson Farm Company, Ltd. v. Longhorn Creek Ltd. (No. 24-0271; January 23, 2026) arose from a dispute over the payment of a private transfer fee. Longhorn purchased acreage subject to Connemara’s private transfer fee obligation. Not thrilled about paying it, Longhorn filed a declaratory judgment action to void the fee based on a § 5.203, Property Code. Enacted in 2011, the statute generally prohibits private transfer fees but grandfathers previous obligations, as long as the holder of the obligation triennially files a notice in the real property records of the county in which the property is located that is printed in at least 14-point boldface type and states the legal description of the property. Longhorn alleged that Connemara didn’t compy with the statute and attached as exhibits the notices filed in 2012, 2015, 2018, and 2021. Connemara filed a Rule 91 motion to dismiss, which the trial court granted. The court of appeals reversed. Connemara sought review.
SCOTX denied Connemara’s PFR, leaving the court of appeals’ decision in place. The court of appeals, however, decided the case based solely on Longhorn’s amended petition while refusing to refer to the appended notices. Connemara argued that the court erred in its refusal because the notices established that it complied with the statute. Though SCOTX didn’t bite on this argument, Justice Young, in a concurring opinion, observed that Connemara’s argument raised the question of whether the court of appeals “should have decided the Rule 91a motion based on Longhorn’s amended petition ‘together with’ the notices, see Tex. R. Civ. P. 91a.6, which ‘constitut[e], in whole or in part, the claim sued on,’ id. R. 59” (emphasis added). Justice Young noted further that Longhorn advanced two other issues upon which the court of appeals ruled in its favor: (1) whether Connemara waived the transfer fee obligation by releasing third parties from it in exchange for an increased fee on the sale of certain property; and (2) the fee didn’t “touch and concern the land.”
But, according to Justice Young, since Connemara’s petition also included issues other than Rule 91a, the case didn’t really offer SCOTX “the opportunity to clarify what Rule 91a requires courts to consider when ruling on such a motion to dismiss.” Anticipating that SCOTX will have that opportunity in the future, Justice Young examined the court of appeals’ holding that the notices didn’t “constitu[e], in whole or in part, the claim sued” in accordance with Rule 59. In making its decision, the court of appeals relied a 1915 SCOTX precedent that, though Justice Young acknowledged was on point, it arguably misunderstood. In that case, SCOTX held that a pleading exhibit showing that a statutorily required notice didn’t comply with a city of ordinance did not wholly or partly constitute the cause of action, which was constituted by debt, not by the validity of the publication of the notice. But in the present case, the exhibits, which Longhorn contended complied with the statute, had to constitute the Longhorn’s cause of action, since the notices in part determined the validity of the transfer fee (as to the statutory issue). “By ignoring the pleading exhibits,” Justice Young wrote, “which could potentially refute the pleading’s allegations (indeed, its primary theory of the case) as a matter of law, would be impermissible on this understanding of the rules.”
Justice Young declined to commit himself to a particular view in any future case, wisely and properly deciding to wait “percolation” from the intermediate courts of appeals. The stakes? Carrying out Rule 91a’s purpose, which is to get rid of cases that shouldn’t have been filed before the parties engage in expensive discovery and other proceedings. “Such a waste,” Justice Young observed, “would flout the legislature’s decision to afford litigants a unique procedural mechanism to escape meritless claims brought by adversaries who have pleaded themselves out of court” (citation omitted).
Justice Young acknowledged that the issue may or may not ever arise again, particularly in this narrow context. But the issue exists, and as parties get hold of the court of appeals’ opinion and start scheming ways to either take advantage of or defeat its reasoning regarding the appropriate exhibits to a Rule 91a motion to dismiss, we may see some weird variations that might rise to importance to the jurisprudence of the state.
