In an amicus brief filed this afternoon, TCJL asks the Texas Supreme Court to accept review of a court of appeals decision gutting the early dismissal rule enacted by the 2011 Legislature in H.B. 274 and enshrined in Rule 91a, Texas Rules of Civil Procedure. Among other things, H.B. 274 directed the Court In 2011 the Texas Legislature enacted H.B. 274, which, among other things, directed the Supreme Court “to adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence” (similar in some ways to Federal Rule 12(b)(6)). The legislation also provided for the award of costs and attorney’s fees to a “prevailing party” in a trial court’s “granting or denial, in whole or in part, of a motion to dismiss filed” under the rules adopted pursuant to the statute.
In this case, ConocoPhillips Company and Burlington Resources Oil & Gas Co., L.P. v. Koopman (No. 16-0662), the Corpus Christi Court of Appeals upheld a trial court order requiring ConocoPhillips to pay attorney’s fees to the plaintiffs for the denial of ConocoPhillips’ Rule 91a motion, even though the trial court later dismissed the same claims on summary judgment. In effect, the trial court made the plaintiffs “the prevailing party” for claims that it ultimately decided had “no basis in law or fact” after all. If the court of appeals decision accurately reflects the law, then no prudent defense attorney will ever avail itself of Rule 91a again. Rather than risk incurring the rule’s cost-shifting, defendants will be left to suffer the burden of mertiless claims all the way to summary judgment, where no cost-shifting applies. TCJL’s brief argues that this result could never have been intended by the Legislature when it passed H.B. 274 or the Supreme Court when it adopted Rule 91a.