Opinion
NUMBER 13-17-00294-CV
04-11-2018
IN RE TPCO AMERICA CORP.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Contreras
See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d) ("When denying relief [in an original proceeding], the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.").
Relator TPCO America Corp. (TPCO) filed a petition for writ of mandamus in the above cause through which it seeks to compel the trial court to: (1) vacate its order denying TPCO's amended motion to dismiss the underlying case as "baseless" under Texas Rule of Civil Procedure 91a; (2) sign an order granting its motion to dismiss; and (3) award TPCO its costs and attorney's fees. See TEX. R. CIV. P. 91a (providing for the dismissal of "baseless" causes of action). We deny the petition for writ of mandamus.
This original proceeding arises from trial court cause number 2016-CCV-62747-4 in the County Court at Law No. 4 of Nueces County, Texas, and the respondent in this cause is the Honorable Mark Woerner. See TEX. R. APP. P. 52.2.
I. BACKGROUND
Real party in interest Julio Castillo Jr. brought suit against Barraza Trucking, Inc., its employee Juan Franco Barrera, and TPCO for claims arising from a two-vehicle collision. Barrera, while working as a driver for Barraza Trucking, Inc., exited TPCO's property from its private driveway onto a public roadway, Spur 202 in Gregory, Texas. The intersection of TPCO's driveway and the public road did not include any traffic control devices, signage, or warnings. Barrera's truck collided with Castillo's vehicle.
After Castillo filed his original petition, TPCO filed a motion to dismiss the case as baseless under Rule 91a. See id. Thereafter, Castillo filed first and second amended petitions and a response to TPCO's motion to dismiss. Castillo's live pleading, his second amended petition, provides the following with regard to his allegations against TPCO:
9. On or about December 16, 2015, Juan Franco Barrera drove a tractor and trailer owned by Barraza Trucking Inc. out of a private drive owned and maintained by TPCO America Corp onto Spur 202 in Gregory, Texas without stopping and yielding the right of way to traffic. The tractor and trailer collided with Plaintiff causing significant damage to his vehicle, and substantial injury to Plaintiff.
. . . .
25. Defendant TPCO America Corp. had a duty to exercise the degree of care that a reasonably careful person would use to avoid harm to others under circumstances similar to those described herein. Plaintiff's injuries were proximately caused by Defendant TPCO America Corp.'s negligent, careless, and reckless disregard of said duty.
26. The negligent, careless, and reckless disregard of the duty of TPCO America Corp . . . consisted of the following acts and omissions:
a. Failing to maintain proper signage and/or warnings for vehicles leaving its premises and entering a public road;
b. Failing to warn motor vehicles traveling on public roads passing the entrance of Defendant's premises, including Plaintiff, of the hazards of an unreasonably dangerous condition on Defendant's premises;
c. Failing to use ordinary care in maintaining the premises in a safe condition by inspecting the property for any dangerous conditions and making safe any latent defect or giving warning of any defect; and
d. Failure to maintain a safe egress and ingress for the premises in question.
27. Attached hereto and incorporated herein for all purposes as exhibit "A," is a true and correct copy of "Permit to Construct Access Driveway Facility of Highway Right of Way." The pertinent portions of the permit state as follows on page one:
"Subject to the access driveway policy described on page 2 and the following:
. . . Design of facility shall be as follows and/or as shown on sketch on page 2 and is subject to the conditions stated below: . . . Traffic control measures complying with applicable portions of the 'Texas Manual of Uniform Traffic Control Devices' and will be installed and maintained for the duration of this installation."
28. Defendant TPCO America Corp.'s failure to install and maintain traffic control measures complying with the Texas Manual of Traffic Control Devices pursuant to the permit's express specific terms set forth in paragraph 27 above and described in exhibit "A" was negligent, grossly negligent and a breach of TPCO America Corp.'s legal duty.
29. Each and all of the foregoing acts and or omissions were negligent and constituted negligence and were each and all the proximate cause of the dangerous condition and the incident which forms the basis of this suit, and the proximate cause of Plaintiff's injuries and damages.
TPCO filed an amended motion to dismiss the case under Texas Rule of Civil Procedure 91a. See id. Castillo filed a response to the amended motion to dismiss, and TPCO filed a reply. The trial court held a hearing on the motion to dismiss and denied the motion by written order. This original proceeding ensued.
By two main issues with multiple sub-issues, TPCO contends that (1) the trial court abused its discretion by denying its motion to dismiss, and (2) it lacks an adequate remedy by appeal. This Court requested and received a response to the petition for writ of mandamus from Castillo. Castillo contends that his pleadings contain sufficient facts to establish that TPCO had a duty to him which it breached, thus causing Castillo damages. The parties have also furnished this Court with additional arguments and authority in the form of reply briefs and letter briefs.
II. STANDARD OF REVIEW
"Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal." In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding); see In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. Mandamus will not issue when the law provides another plain, adequate, and complete remedy. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding); In re Prudential, 148 S.W.3d at 135-36.
Mandamus is available to review a trial court's denial of a motion to dismiss under Texas Rule of Civil Procedure 91a. See In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Butt, 495 S.W.3d 455, 467 (Tex. App.—Corpus Christi 2016, orig. proceeding).
III. APPLICABLE LAW
Texas Rule of Civil Procedure 91a governs the dismissal of baseless causes of action and provides in pertinent part:
[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.TEX. R. CIV. P. 91a.1; see City of Dallas v. Sanchez, 494 S.W.3d 722, 724-25 (Tex. 2016). "A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." TEX. R. CIV. P. 91a.2. The rule allows the responding party to either nonsuit or amend the challenged cause of action at least three days before the date of the hearing on the motion to dismiss. See id. R. 91a.5(a), (b). "The trial court may, but is not required to, conduct an oral hearing on the motion." Id. R. 91a.6. Further, "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by" the rules of civil procedure. Id.; see City of Dallas, 494 S.W.3d at 725; Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied); see also TEX. R. CIV. P. 59 (governing the incorporation of exhibits to pleadings).
When we construe rules of procedure, we apply the same rules of construction that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007) (orig. proceeding); In re CompleteRx, Ltd., 366 S.W.3d 318, 323 (Tex. App.—Tyler 2012, orig. proceeding). We liberally construe the rules of civil procedure to obtain "just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law" with "as great expedition and dispatch and at the least expense to both the litigants and to the state as may be practicable." TEX. R. CIV. P. 1; see Huston v. U.S. Bank Nat'l Ass'n, 359 S.W.3d 679, 681 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Although unique, Rule 91a motions to dismiss are analogous to pleas to the jurisdiction, which require a court to determine whether the pleader has alleged facts demonstrating jurisdiction. See City of Dallas, 494 S.W.3d 724-25; Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). We perform a de novo review of the trial court's ruling on a Rule 91a motion to dismiss. See City of Dallas, 494 S.W.3d at 725; Parkhurst v. Office of Atty. Gen. of Tex., 481 S.W.3d 400, 402 (Tex. App.—Amarillo 2015, no pet.); Wooley, 447 S.W.3d at 76; Dailey v. Thorpe, 445 S.W.3d 785, 788 (Tex. App.—Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.); GoDaddy.com, L.L.C. v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. denied). We apply a de novo standard 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. See City of Dallas, 494 S.W.3d at 725; Wooley, 447 S.W.3d at 75-76.
Texas is a fair notice pleading jurisdiction and we apply this doctrine to Rule 91a motions to dismiss. Aguilar v. Morales, No. 08-15-00098-CV, 2017 WL 192910, at *3, ___ S.W.3d ___, ___ (Tex. App.—El Paso Jan. 18, 2017, pet. denied); Koenig, 497 S.W.3d at 599; In re Butt, 495 S.W.3d at 462; Wooley, 447 S.W.3d at 76. The fair notice criterion is a "relatively liberal standard." Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see TEX. R. CIV. P. 45 ("All pleadings shall be construed so as to do substantial justice."); TEX. R. CIV. P. 47 (requiring pleadings to contain "a short statement of the cause of action sufficient to give fair notice of the claim involved"). Under this standard, "a petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim." Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013); see Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982). The test for determining whether a petition provides fair notice is whether the opposing party can ascertain from the pleading the nature and basic issues presented by the controversy and what evidence might be relevant. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224-25 (Tex. 2017); Low, 221 S.W.3d at 612; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). The fair-notice standard measures "whether the pleadings have provided the opposing party sufficient information to enable that party to prepare a defense or a response." First United Pentecostal Church of Beaumont, 514 S.W.3d at 224; see Kopplow Dev., Inc., 399 S.W.3d at 536; Roark, 633 S.W.2d at 810.
Under this standard, we look to the pleader's intent and uphold the pleading "even if some element of a cause of action has not been specifically alleged" because "[e]very fact will be supplied that can be reasonably inferred from what is specifically stated." Roark, 633 S.W.3d at 809 (quoting Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963)); see In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding); Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (op. on reh'g); see also Aldous v. Bruss, 405 S.W.3d 847, 857 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ("It is not a valid objection to generally complain that the pleading does not set out enough factual details if fair notice of the claim is given."). Under fair notice pleading, a plaintiff is not required to "set out in his pleadings the evidence upon which he relies to establish his asserted cause of action." In re Lipsky, 460 S.W.3d at 590 (quoting Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494-95 (Tex. 1988)). However, we may not "use a liberal construction of the petition as a license to read into the petition a claim that it does not contain." In Estate of Sheshtawy, 478 S.W.3d 82, 87 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). When applying the fair notice standard to our review of the pleadings on a Rule 91a motion to dismiss, we must construe the pleadings liberally in favor of the plaintiff, look to the pleader'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. Aguilar, 2017 WL 192910, at *3, ___ S.W.3d at ___; Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Koenig, 497 S.W.3d at 599; In re Butt, 495 S.W.3d at 462; Wooley, 447 S.W.3d at 76.
IV. ANALYSIS
TPCO contends that Castillo's pleadings allege facts which illustrate that it owes Castillo no duty. Stated otherwise, TPCO contends that Castillo's claims lack a basis in law. TPCO specifically alleges that Castillo's claims fall within a general no-duty rule under which a landowner does not owe a duty to protect motorists on an adjoining highway from collisions with third-party vehicles entering and leaving the premises.
The existence of a duty is a threshold inquiry in any negligence case. Pagayon v. Exxon Mobil Corp., No. 15-0642, 2017 WL 2705530, at *3, ___ S.W.3d ___, ___ (Tex. June 23, 2017); Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Pagayon, 2017 WL 2705530, at *3; Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a duty exists turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant." Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). Courts will also consider the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 101 (Tex. 2017).
Generally, an owner or occupier of property has a duty to use reasonable care to keep the premises under its control in a safe condition. United Scaffolding, Inc. v. Levine, No. 15-0921, ___ S.W.3d ___, ___, 2017 WL 2839842, at *6 (Tex. June 30, 2017); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985). Further, a premises-liability defendant may be held liable for a dangerous condition on property if it assumed control over and responsibility for the premises, even if it did not own or physically occupy the property. Cty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (concluding that, for purposes of a premises-liability claim, the county assumed sufficient control over a state-owned causeway because it had a maintenance contract with the state that included responsibilities over the causeway's streetlight system); see also Oncor Elec. Delivery Co. v. Murillo, 449 S.W.3d 583, 590-91 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
TPCO's argument in this case is premised on the concept that the "duty of a premises owner or occupier to provide protection arises from control of the premises," and that "duty does not extend beyond the limits of the premises owner's control." Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762 (Tex. App.—Houston [1st Dist.] 1994, no pet.); see Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 546 (Tex. App.—Houston [14th Dist.] 2017, no pet.). More specifically, TPCO asserts that, as a general principle, "an owner or occupier of property has no duty to insure the safety of persons who leave the owner's property and suffer injury on adjacent highways or railroad tracks, or to insure safety against the dangerous acts of third persons." Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 706 (Tex. App.—Fort Worth 1998, pet. denied); see Oakbend Med. Ctr., 515 S.W.3d at 546; Hyde v. Hoerauf, 337 S.W.3d 431, 437 (Tex. App.—Texarkana 2011, no pet.); Guereque v. Thompson, 953 S.W.2d 458, 466 (Tex. App.—El Paso 1997, pet. denied); Lawson v. B Four Corp., 888 S.W.2d 31, 35 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Dixon, 874 S.W.2d at 762-63. In this regard, there is no legal requirement that a person anticipate the negligent or unlawful conduct of another. Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303, 307 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
TPCO's argument fails to recognize that there are several exceptions to the general rule that there is no duty to prevent accidents on adjacent property that a person neither owns nor occupies. The Texas Supreme Court has held that "[t]he owner or occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or endanger the safety of persons using the highway as a means of passage or travel." Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981); see also Atchison v. Tex. & Pac. Ry. Co., 143 Tex. 466, 186 S.W.2d 228, 229 (1945). The supreme court has further delineated numerous other exceptions to the general rule. See, e.g., Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) ("The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist."); Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) ("Under certain circumstances, however, even one not in control of the property at the time of the injury may owe a duty to make the premises safe. One who agrees to make safe a known dangerous condition of real property owes a duty of due care."); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993) ("On its own initiative and at its own expense, Wal-Mart built the ramp after leasing the premises. By so doing, it assumed actual control of the ramp area. A lessee is responsible for those areas adjacent to the demised premises which it actually controls."); Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex. 1991) ("[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all."); City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (stating that one who has created a dangerous condition may be liable even though not in control of the premises at the time of the injury and one who agrees to make safe a known dangerous condition may be liable for the failure to remedy the condition); Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) ("Having undertaken to place a flashing light at the crossing for the purpose of warning travelers, the railroad was under a duty to keep the signal in good repair, even though the signal was not legally required."); see also City of San Antonio v. Pollock, 284 S.W.3d 809, 831 (Tex. 2009) (Medina, J., dissenting) ("[T]his Court and others have recognized that an owner or occupier's negligence on its own property may lead to liability for injuries suffered on adjoining property." (citations omitted)).
Several courts have limited this rule to cases where an owner negligently releases a "dangerous agent" onto the highway. See, e.g., Raburn v. KJI Bluechip Invs., 50 S.W.3d 699, 703 (Tex. App.—Fort Worth 2001, no pet.); Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 763 (Tex. App.—Houston [1st Dist.] 1994, no writ); Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 191 (Tex. App.—San Antonio 1988, writ denied); see also Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at *3 (Tex. App.—Austin Aug. 20, 2010, no pet.) (mem. op.).
The Fort Worth Court of Appeals has summarized four such exceptions to a general "no duty" rule as follows:
First, a person who agrees or contracts, either expressly or impliedly, to make safe a known, dangerous condition of real property may be held liable for the failure to remedy the condition. Second, a person who has created a dangerous condition may be liable even though not in control of the premises at the time of injury. Third, a lessee who assumes actual control over a portion of adjacent property also assumes legal responsibility for that adjacent portion, even though none of the adjacent property is included in the lease. Fourth, where an obscured danger exists on land directly appurtenant to the land owned or occupied, and where that danger is near a place where invitees enter and exit the landowner's or occupier's property, the owner or occupier owes a duty to those invitees entering and exiting to warn of the danger.Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 707 (Tex. App.—Fort Worth 1998, pet. denied) (internal citations omitted) (holding that a restaurant that set up its business near a busy roadway had no duty to provide a means for safely crossing that roadway).
The question for this Court is whether Castillo's pleaded allegations, taken as true, together with inferences reasonably drawn from them, entitle him to the relief sought. See TEX. R. CIV. P. 91a.1. TPCO argues Castillo's claim is baseless both because it owes no duty to Castillo under the Hirabayashi line of cases and because Castillo failed to plead facts to support his negligence cause of action. See Hirabayashi, 977 S.W.2d at 706. We disagree. Castillo has clearly and expressly pleaded a cause of action for negligence against TPCO and the cases that we have discussed here, including Hirabyashi, simply do not constitute a "clear legal bar" to a negligence cause of action based on Castillo's pleaded facts. See Reaves, 518 S.W.3d at 608; Guillory, 470 S.W.3d at 240.
Further, in contending that Castillo's action is "baseless," TPCO argues that Castillo "repeatedly seeks to benefit from omissions in his pleadings." According to TPCO, "[c]rediting unpleaded facts, as Castillo urges, would encourage conclusory pleadings devoid of factual matter" and "would defeat the purpose of Rule 91a by hiding the baseless nature of claims behind a purposeful lack of detail." TPCO's contentions rest on a fundamental misapprehension about the nature of a Rule 91a proceeding. It is well-settled that we apply the fair notice pleading doctrine to Rule 91a motions to dismiss. See Aguilar, 2017 WL 192910, at *3, ___ S.W.3d at ___; Koenig, 497 S.W.3d at 599; In re Butt, 495 S.W.3d at 462; Wooley, 447 S.W.3d at 76. Examining Castillo's second amended petition, TPCO can ascertain from the pleading the nature and basic issues presented by the controversy and what evidence might be relevant. See First United Pentecostal Church of Beaumont, 514 S.W.3d at 224-25; Horizon/CMS Healthcare Corp., 34 S.W.3d at 896; Low, 221 S.W.3d at 612. Castillo's second amended petition clearly provides TPCO with sufficient information to enable relator to prepare a defense to the suit. See First United Pentecostal Church of Beaumont, 514 S.W.3d at 224; Kopplow Dev., Inc., 399 S.W.3d at 536; Roark, 633 S.W.2d at 810. In short, Castillo's pleading specifically alleges a negligence cause of action and we need not make any inferences in support of that cause of action. Accordingly, we conclude that the trial court did not err in denying relator's Rule 91a motion to dismiss.
In so holding, we note that the legislative history behind the adoption of Rule 91a reflects an intent to provide for the "early dismissal of actions" involving causes of action that lack a basis in law or fact. Tex. House Res. Org., Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). The purpose was "to make the civil justice system more efficient, less costly, and more accessible by reforming certain procedures in these cases and making available certain new procedures." House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011); Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). "Rule 91a is unique, an animal unlike any other in its particulars." Wooley, 447 S.W.3d at 84 (Frost, C.J., concurring).
Given the foregoing, we reject a general concept that a Rule 91a proceeding should function, in effect, as a summary judgment proceeding. Rather, the Rule 91a proceeding regarding the dismissal of baseless actions is more akin to a threshold test. When we are examining a petition under Rule 91a to see if there is a basis in the law, we require only that the petition state a plausible and viable cause of action pursuant to the fair notice doctrine; we do not demand a fully developed pleading on the merits wherein the plaintiff marshals his evidence, analyzes and briefs the applicable law, and provides comprehensive factual details regarding the incident that gave rise to the lawsuit. Given the fact that we are reviewing a nascent lawsuit, it would be inappropriate to require a level of detail and clarity for the petition that might only be available after the case has been developed through discovery and responsive pleadings. We are mindful of the thoughtful comments provided by our colleague Justice Rebeca Martinez of the San Antonio Court of Appeals in dissenting to the dismissal of a case: "Whether the evidence later proves or negates any essential element of a cause of action, as asserted, is a question for another day. It is not this court's role, in reviewing the granting of a Rule 91a motion, to determine prematurely the merits of an alleged cause of action, but rather to recognize the foundation of one." Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 462 (Tex. App.—San Antonio 2016, pet. denied) (Martinez, J., dissenting).
See also Hoke v. Campbell Group, L.L.C., No. 13-14-00215-CV, 2016 WL 1633076, at *2 (Tex. App.—Corpus Christi Apr. 21, 2016, pet. denied) (mem. op.). In Hoke, we reversed and remanded a summary judgment rendered on a vehicular accident and noted that:
The record is devoid of any affidavits, depositions, pictures or other summary judgment evidence that would show how the accident occurred, where the accident occurred, or whether the accident was unforeseeable. There is no summary judgment evidence that shows the conditions of the private roadway, the entrance of the driveway in relation to the highway, and the proximity of the accident to appellees' property entrance or roadway. There is also no summary judgment evidence to show that the driver executed his right turn in front of Hoke in a negligent manner or that appellees did not exert any control over the driver. While we agree . . . that appellees should expect drivers entering their property to exercise due care, there is simply no summary judgment evidence in the record that the driver failed to do so.Id. at *3 (internal citations omitted). Our analysis in Hoke illustrates the complexity involved in analyzing the factual and legal issues involved in negligence cases.
Other colleagues have similarly struggled with the parameters of dismissals pursuant to Rule 91a at the inception of litigation:
More importantly for purposes of this appeal, the quick and harsh Rule 91a procedures are ill-suited for and not intended to encompass such an examination. This is not a simple case of a pleading that fails to state a cause of action with a basis in law and fact, as the majority maintains.In Estate of Sheshtawy, 478 S.W.3d 82, 88-89 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (Jamison, J., dissenting); see also Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 185 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (reversing a Rule 91a dismissal where the "issues extend beyond a mere determination of whether the claim as pleaded is baseless under the Rule 91a standards" and were more properly addressed in a summary judgment context).
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus, the response, the reply, additional briefing, and the foregoing law, is of the opinion that TPCO has not met its burden to obtain mandamus relief. Accordingly, we lift the stay previously imposed in this cause. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We deny the petition for writ of mandamus.
DORI CONTRERAS
JUSTICE Delivered and filed the 11th day of April, 2018.