In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.
Reaves v. City of Corpus Christi, No. 13-15-00385-CV (Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Benavides)
In this appeal from an order of dismissal, the Thirteenth Court of Appeals addressed several matters of first impression for the court regarding the dismissal and review of cases under Texas Rule of Civil Procedure 91a.
This case stems from a high-speed chase of a drunk driver that resulted in a collision.
On August 4, 2012, Corpus Christi Police Officer Jorge Fernandez initiated a high-speed chase of a Kimberly Balboa, who was driving while intoxicated. Balboa ran a red light in the course of the chase, and collided with the vehicle of Hayden Reaves and Billy Rochier.
Reaves and Rochier (“Plaintiffs”) sued Officer Fernandez, the City of Corpus Christi, Balboa, and the individual who entrusted Balboa with her car. The Plaintiffs pleaded a waiver of sovereign immunity under section 101.021 of the Texas Civil Practice and Remedies Code (i.e., the Texas Tort Claims Act) based on Officer Fernandez’s allegedly reckless actions within the course and scope of his employment. They also asserted claims for direct negligence by the City, including negligent entrustment, hiring, training, and retention.
The City filed a motion to dismiss under Rule 91a, claiming that the Plaintiffs’ claims had “no basis in law or fact.” Specifically, the City argued that there was no waiver of sovereign immunity pleaded or available, and that the Plaintiffs’ allegations against Balboa undermined the causal nexus between Officer Fernandez’s actions and the Plaintiffs’ injuries. There was no mention of the Plaintiffs’ direct negligence claims against the City. More than five months later, the trial court held a hearing on the motion and dismissed all of the Plaintiffs’ claims against the City—including those not addressed in the City’s motion.
The Plaintiffs appealed, challenging the trial court’s dismissal of their claims for respondeat superior.
Held: The 45-day deadline for ruling on a Rue 91a motion is mandatory but not jurisdictional, and thus the trial court had jurisdiction to rule on the City’s Rule 91a motion. Although the City’s motion challenged the court’s jurisdiction, it must be reviewed based on what it purports to be—a Rule 91a motion—and thus the trial court could not consider evidence. Moreover, the enactment of Rule 91a did not change the pleading standard in Texas. Thus, the trial court erred by dismissing the Plaintiffs’ claims because they complied with the fair-notice pleading standard.
The Thirteenth Court of Appeals began by tracing the history of Rule 91a. The court noted that Rule 91a was created after the Legislature directed the Texas Supreme Court—via Texas Government Code section 22.004(g)—to adopt a rule providing for the dismissal of baseless cases. Rule 91a provides for the dismissal of a cause of action on the pleadings alone if the claims have “no basis in law or fact.” Such a dismissal is reviewed de novo, and the court construes the pleadings liberally in light of the fair-notice pleading standard.
Timing of Rule 91a Dismissal
The Plaintiffs first challenged the timing of the Rule 91a dismissal. Rule 91a provides that a motion filed under its provisions must be granted or denied within 45 days after the motion is filed. The Thirteenth Court was thus asked to determine if the requirement was jurisdictional; i.e.., if the trial court still had the authority to grant the Rule 91a motion after the 45-day deadline expired.
The court first held that, because both Rule 91a and Texas Government Code section 22.004(g) used the mandatory terms “must” and “shall” when discussing the deadline, the deadline was mandatory. The court noted that this was in conflict with a decision of the Third Court of Appeals in Austin, which held the deadline to be directory.
Nonetheless, the Thirteenth Court continued by noting that not all mandatory deadlines are jurisdictional. Whether a mandatory provision is jurisdictional is determined by examining the 3 Helena Chemical factors: (1) “the presence or absence of specific consequences for noncompliance;” (2) the “overall statutory objective to be achieved;” and (3) “the implications that result from each possible interpretation.”
Regarding the first factor, Rule 91a provides no penalties for noncompliance with the 45-day deadline. The court recognized however, that the parties were not without recourse because they could seek a writ of mandamus to compel compliance with the 45-day deadline. This mandamus relief also addressed the second factor, because it satisfied the statutory objective of removing baseless claims early in litigation. Finally, the third factor—the implications of each interpretation—also weighed in favor of viewing the deadline as non-jurisdictional. Rule 91a was crafted to benefit the party faced with frivolous litigation, and the non-movant should not be able to avoid dismissal of a baseless claim based on the expiration of the 45-day deadline.
Thus, the Thirteenth Court held that the 45-day deadline was not jurisdictional, although it explicitly declined to address whether the deadline would constitute reversible error. The court also noted that many of its sister courts of appeals had similarly held the Rule 91a deadline to be non-jurisdictional, although their analyses did not rely on the Helena Chemical factors.
Rule 91a Motion as a Plea to the Jurisdiction
Next, the court examined the standards applicable to the City’s motion. The City characterized the motion as a de facto plea to the jurisdiction since it challenged the City’s immunity. The City thus argued that the Rule 91a requirements did not apply, and that the court should instead use the standards of review applicable to pleas to the jurisdiction. The Plaintiffs, meanwhile, claimed that the motion was what it claimed to be; namely, a Rule 91a motion to dismiss. Thus, under Rule 91a, the trial court was prohibited from considering any extrinsic evidence and the trial court erred by weighing the evidence, rather than determining the sufficiency of the pleadings.
Examining the approaches of its sister courts, the Thirteenth Court of Appeals noted that the Third Court of Appeals treated a Rule 91a motion challenging the court’s jurisdiction as a plea to the jurisdiction, and the First Court of Appeals treated the Rule 91a motion as a generic motion to dismiss. Even the Texas Supreme Court has analogized the Rule 91a motion to the plea to the jurisdiction in terms of the liberal construction and examination of the pleadings. However, the Thirteenth Court emphasized that the Rule 91a motion is not identical to the plea to the jurisdiction; the use on extrinsic evidence, the ability to recover of attorney’s fees, the preservation requirements, and the overall purposes of the motions are different. The Thirteenth Court thus held that the title and characterization of a motion seeking relief under Rule 91a cannot be entirely disregarded, particularly since the requirements and deadlines for a plea to the jurisdiction differ from a Rule 91a motion and from a motion for summary judgment.
Here, the City’s motion was consistent with the form requirements of Rule 91a, and even included a statement that relief was sought under Rule 91a. Thus, the City’s motion was subject to the requirements and standards of review applicable to Rule 91a motions.
Substance of the Rule 91a Motion
Finally, the court proceeded to analyze the substance of the City’s Rule 91a motion, and whether the City had immunity under the Texas Tort Claims Act. The City’s motion alleged that the Plaintiffs’ claims lacked both a basis in law and a basis in fact. However, the City did not provide specific reasons or arguments regarding the alleged lack of a basis in fact, so the Thirteenth Court of Appeals addressed only the basis-in-law argument.
The relevant law provides that the City’s immunity was waived under the Texas Tort Claims Act if the Plaintiffs’ injuries were caused by the negligence of a government employee acting in the scope of his employment and the injury “arises from” the operation of a motor vehicle for which the employee would traditionally be personally liable under Texas law. The “arises from” phrase reflects the causal nexus challenged by the City.
The Plaintiffs argued that the Rule 91a standard was equivalent to the federal “failure to state a claim” standard under Federal Rule of Civil Procedure 12(b)(6), and that their petition satisfied the federal pleading standard. The Plaintiffs further claimed that Rule 91a replaced Texas’s fair-notice pleading standard with a new standard, just as Federal Rule 12(b)(6) was held by the Supreme Court to replace the federal fair-notice standard in Twombly and Iqbal.
The Thirteenth Court contrasted Texas’s fair-notice standard with the federal rule in place before Twombly and Iqbal, and with the standard established under Federal Rule 12(b)(6). The Thirteenth Court noted that the federal fair-notice standard was a product of case law, whereas the Texas fair-notice standard has been in the Rules of Civil Procedure since 1940. The United States Supreme Court held in Twombly and Iqbal that Rule 12(b)(6) replaced the federal fair-notice standard and required the plaintiff to plead particular facts and plausible claims, as determined after disregarding all conclusory statements. In contrast, the Texas Supreme Court has affirmed the fair-notice standard since Rule 91a was enacted in 2013.
The Thirteenth Court thus held that Rule 91a did not change the pleading standard, and requires compliance only with the fair-notice standard which has been long-established in Texas, and which was in place in the federal courts before Twombly and Iqbal. In particular, several Texas courts have cited pre-Twombly/Iqbal federal case law when applying Rule 91a, holding that a claim may be dismissed if the pleadings establish “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” The Thirteenth Court expressed approval of this fair-notice test.
In light of the fair-notice standard, the court held that a claim has no basis in law under Rule 91a in at least 2 situations: (1) when the plaintiff pleads too few facts to provide fair notice ofa legally cognizable claim; and (2) where the plaintiff pleads facts that bar recovery. This rule was a slight adaptation of the rule announced by the First Court of Appeals, although the Thirteenth Court modified the first category to clarify the continuing authority of the fair-notice pleading standard. In a footnote, the court described the Rule 91a motion as a faster, more structured version of a motion for summary judgment on the pleadings, with attorney’s fees available.
Finally, the court applied these rules to the Plaintiffs’ petition. Quoting extensively from the petition, the court highlighted the allegations related to the various elements of the Plaintiffs’ claims. The City argued that the Plaintiffs’ allegations regarding Balboa made it impossible for them to prove proximate cause against the City. However, all of the cases relied upon by the City involved pleas to the jurisdiction, in which the relevant government entity offered evidence disproving the officer’s reckless involvement. Without similar evidence, there was no per-se rule precluding the Plaintiffs’ recovery based on the pleadings alone. The Thirteenth Court thus held that the Plaintiffs’ claims had a basis in law, and that the trial court erred by granting the Rule 91a motion to dismiss. The trial court’s judgment was reversed and remanded.
However, the reversal applied only to the claims regarding the City’s liability for Officer Fernandez’s conduct under the theory of respondeat superior. Although the City did not address the Plaintiffs’ actions for direct negligence in its Rule 91a motion, the Plaintiffs did not challenge the trial court’s dismissal of these claims on appeal. Consequently, the Thirteenth Court of Appeals refrained from reviewing or reversing the Plaintiffs’ other claims.
Johnson v. State, No. 13-15-00502-CR (Memorandum Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Rodriguez)
In this direct appeal from a revocation of community supervision—in both the deferred adjudication and probation contexts—the Thirteenth Court of Appeals reaffirmed the standards for revocation.
Kia Johnson was indicted for deadly conduct, murder, and engaging in organized criminal activity. Johnson pleaded guilty to the latter two charges. She wasplaced on ten years’ deferred adjudication for murder, and ten years’ probation for engaging in organized criminal activity. Both forms of community supervision required Johnson to refrain from committing an offense.
Two years later, the State moved to adjudicate guilt on Johnson’s murder charge, and to revoke her probation on the engaging in organized criminal activity charge. The State’s motions claimed that Johnson committed three crimes in violation of the terms of her community supervision: assault on a public servant, evading arrest, and failure to identify. Johnson denied the assault, but admitted the remaining two charges. The State called two police officers to testify regarding the alleged offenses at her revocation hearing. During the course of the testimony, the prosecutor asked one of the police officers if it was common for police officers to choose not to pursue an otherwise-valid charge for assault on a public servant. Johnson objected, and the trial court overruled her objection.
The trial court found that Johnson had indeed committed all three offenses. The court sentenced Johnson to thirty years’ confinement for murder and ten years’ confinement for engaging in organized criminal activity, to run concurrently.
Johnson appealed, challenging the trial court’s ruling on her objection to the police officer’s testimony.
Held: Johnson pleaded “true” to two violations of her community supervision. Thus, regardless of the officer’s testimony, the trial court did not abuse its discretion by revoking Johnson’s community supervision. The judgment was affirmed.
The Thirteenth Court of Appeals immediately noted that Johnson pleaded “true” to two of the three alleged violations of community supervision: evading arrest and failure to identify. She denied only the assault on a public servant allegation. However, a single violation of community supervision is sufficient to support a revocation, and it can be upheld on the defendant’s plea of “true” alone. Thus, Johnson’s challenge to the officer’s testimony was not harmful, because the trial court did not abuse its discretion by revoking Johnson’s community supervision.