It has been 10 years since the Legislature, as part of the “loser pays” legislation championed by former Governor Rick Perry, directed the Texas Supreme Court to adopt a rule authorizing a trial court to dismiss a cause of action that has no basis in law or fact. Use of the rule, Rule 91a, TRCP, seemed slow to develop, in part because defendants were averse to risking the mandatory cost-shifting that would occur if the trial court denied their motions to dismiss. The Legislature remedied that problem in 2019 by making an award of attorney’s fees and costs discretionary. One question about Rule 91a has always been how it would interact with Texas’ relatively liberal fair notice pleading standards, which are generally not as strict as the federal standard under FRCP 8.
A decision hot off the presses from the San Antonio Court of Appeals offers a glimpse of how Rule 91a jurisprudence is developing. Minor v. Diverse Facility Solutions, Inc. (No. 04-20-00526-CV) arose from an adverse employment action claim brought by an employee against his employer. The employee, who is African-American, claimed that the employer wrongfully terminated his employment based on racial discrimination. He further alleged that after he complained about the wrongful termination, he was rehired, falsely accused of wrongdoing, and terminated again, in retaliation for filing the complaint. The employer moved to dismiss the employee’s claims under Rule 91a. The trial court granted the motion and dismissed the case with prejudice. The employee appealed.
After reciting the pertinent provisions of Rule 91a, the court of appeals stated that “[I]n determining whether a cause of action should be dismissed pursuant to Rule 91a, a court considers ‘the allegations of the live petition and any attachments thereto’” (citing Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183 [Tex. App.—Houston [14th] 2015, pet. denied)). In reviewing the plaintiff’s pleading, the court “appl[ies] the fair notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action” (citing Wooley v; Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th] 2014, pet. denied)). The court will “construe the pleadings liberally in favor of the plaintiff, look to the plaintiff’s intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact” (citing Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin, 2016, pet. denied)). The court cautioned that “[t]readbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” (citing Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 451 (Tex. App.—San Antonio, 2016, pet. denied)). However, at the same time, the fact that the employee in this case appeared pro se, the court noted that the court will review pro se pleadings with “liberality and patience” (citation omitted).
The employer alleged that the employee’s pleading made baseless allegations and that the petition “alleged too few facts to demonstrate a viable, legally cognizable right to relief” (citation omitted). The court of appeals disagreed, holding that the employee had pled sufficient facts to make a prima facie showing of each of the required elements of both a discrimination and retaliation claim. The court of appeals noted the procedural irregularities in the pro se plaintiff’s original and amended pleadings (which the plaintiff mischaracterized as an “answer”), but found that the plaintiff’s “intent” was to file an amended pleading that the trial court should have considered. The defendant employer likewise committed a procedural blunder, failing to either withdraw its original Rule 91a motion or file an amended motion if the plaintiff filed his amended pleading at least three days before the hearing on the motion, as occurred here, pursuant to Rule 91a.5. This required the trial court to consider the defendant’s Rule 91a motion in light of the plaintiff’s amendedpleading. This procedural posture allowed the court of appeals to find that the plaintiff’s amended pleading met the fair notice pleading standards (i.e., notice of the facts upon which the pleader bases his claim such that the opposing party has sufficient information to prepare a defense). The court of appeals reversed the trial court and remanded for further proceedings.
It is hard to tell how much, if at all, the plaintiff’s self-representation influenced the court’s decision. In any event, we read the opinion to say that as long as the plaintiff’s pleadings give the defendant “fair notice” of the claim (or cause of action) and sufficient facts to “ascertain the nature and basic issues of the controversy and what testimony will be relevant, it should be enough to defeat a Rule 91a motion to dismiss. See Montelongo, et al. v. Abrea, 622 S.W.3d 290, 300 (Tex. 2021).