Texas Thicc Tip Series 13: Using Rule 91a as a Plea to the Jurisdiction in Light of the Edgefield case, and Some Free 91a Tactics

Keeping this one fairly brief. In this piece, I discuss how to use Rule 91a motions generally, some practical considerations, a tiny primer on their appealability and then the application of subject matter jurisdiction challenges through a Rule 91a motion.

91a history

In 2011, the Texas Legislature amended Section 22 of the Texas Government Code, adding §22.004(g). This section ordered the Texas Supreme Court to come up with a rule regarding the dismissal of baseless causes of action:

"(g) The supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence. The rules shall provide that the motion to dismiss shall be granted or denied within 45 days of the filing of the motion to dismiss. The rules shall not apply to actions under the Family Code."

Rule 91a is what SCOTX came up with to satisfy the Lej. It is a long Rule. I will reproduce it in full at the bottom of this post. Suffice to say, its significant points are that trial courts may, upon a motion filed within 60 days of a suspect cause of action being pleaded, dismiss the cause of action if as stated in the pleading it fails to show it has a basis in law or basis in fact. Experienced litigators will recognize this phrase as the idea of a "baseless" action is found in Chapter 9, Texas Civil Practice and Remedies Code (concerning sanctions for "frivolous pleadings and claims"), and defines, relevantly, for that section alone a "groundless" claim as one having "no basis in fact." Tex. Civ. Prac. & Rem. Code §9.001(3)(A). Rule 13 of the Texas Rules of Civil Procedure forbids "groundless" claims brought in bad faith or for the purpose of harassment, as well as groundless and false statements in pleadings intended to cause a delay of trial. Tex. R. Civ. P. 13. Under Rule 13, a groundless filing has "no basis in law or fact and is not warranted by a good faith argument for the extension, modification, or reversal of existing law."

So the Texas Legislature and the Supreme Court have already used these terms - no basis in law / no basis in fact before. Likely, then, a court trying to figure out if a pleading is baseless in fact or law should look to these laws for illustration, right? Maybe. I don't think many courts have. Most courts have struggled with how to apply Rule 91a and the result is a shitshow of holdings, many at odds with each other, many simply taking one another at face value, and very many exhibiting a supreme intellectual laziness in trying to determine when a cause is baseless or not based on the pleadings. One day, I will write that article.

How does a 91a motion work? Kitchen sink method!

The guts of a 91a motion must do three things substantially. It "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. A 91a motion that does not do these three things is deficient and should be denied or not ruled on. The Rule begs the question as to what it means to "state specifically" the particular baselessness of a given cause of action, although (as I recall) I have only seen one reported case where this was the problem with the motion. Almost all motions that go up on appeal must meet the Rule, or a plaintiff has simply not made this the issue for the judge's decision to deny. Most of the discussion of a challenged cause of action as raised in the 91a motion subject to appeal establishes that a 91a motion "particularly" points out the problems with the challenged pleading and why relief should not be given at law. This seems like the smart way to go about doing a 91a motion.

The Rule clearly incentivizes "the kitchen sink" approach to pleading. Any reason is a reason to dismiss if it shows the claim has no basis in law or fact or both. That said, almost no one argues "no basis in fact," but several appellate opinions ruin their holdings by opining a cause has no basis in fact (NBIF) when it was challenged for no basis in law (NBIL). The standards for a NBIF and NBIL are different, however. Under the Rule, a cause has NBIL "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1. On the other hand, a cause of action has NBIF "if no reasonable person could believe the facts pleaded." Those are very different, no? What is "no reasonable person could believe"? That sounds like an absurdist fact scenario or impossible statement of reality. I.e. delusional pleadings alone are challengeable as NBIF. However, see the Dallas approach: "If a petition provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied. In re Odebrecht Constr, 2018 WL 1737074, at *7." In re RNDC Tex., LLC, No. 05-18-00555-CV, at *2-3 (Tex. App.--Dallas Jun. 11, 2018). This approach thus shows that the "facts" must give rise to a claim; if the "facts" alleged give notice of the claim, then the pleading survives a NBIF attack (I do not think that the Rule allows for this stretch.)

The most common 91a attack is NBIL. Texas is a so-called "notice pleading" jurisdiction, where, if the pleadings give "fair notice" of a certain cause of action or basis in relief, then the pleadings are "okay" and not subject to challenge. However, many courts have struggled with whether Rule 91a essentially overrode or implicitly requires a "modified pleadings review" not subject to the "fair notice" standard. The result, of course, is that one appellate court says a 91a challenge may not succeed if the claim gives fair notice of the claim to relief (which is not what the Rule says) and another appellate court will say "Rule 91a allows a trial court to really ask questions of the fact pleadings, and to do so under a pseudo-FRCP 12b(6) standard or the actual FRCP 12b(6) standard." I would recommend carefully reviewing the various holdings in your area. And on top of that, while an appellate court may say that "notice pleading" isn't displaced by Rule 91a, frequently their analysis belies the statement. A summary of the Dallas approach to NBIL attacks: "[I]f nothing in the pleading itself triggers a clear legal bar to the claim, then there is a basis in law and the motion should be denied." In re RNDC Tex., LLC, No. 05-18-00555-CV, at *3 (Tex. App.--Dallas Jun. 11, 2018) (citation omitted). This suggests a weird "fair notice" or factual allegation approach to a 91a challenge: if facts alleged explicitly invoke some kind of legal bar, like subject matter jurisdiction, then the claims fail on their face and that's all the 91a motion needs to point out.

The notion of pleading a "legal bar" is interesting; some courts hold a 91a motion may succeed by essentially operating as a pseudo-affirmative defense; affirmative defenses must be pleaded defensively and proven. However, many 91a motions are allowed to essentially assert that a pleading effectively shows the affirmative defense. Compare Bedford Internet Office Space, LLC v. Tex. Ins. Group, Inc., 537 S.W.3d 717 (Tex. App.--Fort Worth 2017) (refusing a limitations defense to creep in through 91a) with Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., No. 05-17-00850-CV (Tex. App.--Dallas May 30, 2018) (distinguishing Bedford partially on ground that pleading before court did raise issues pertinent to the affirmative defense relied upon by 91a movant). I find it hard to believe that "limitations" will not necessarily be implicated by an affirmative pleading; for instance, if I sue for breach on January 2, 2005 and say "last payment was due on January 1, 2001" and the suit is brought, then it looks like I have facially pleaded a limitations defense to the claim, since a cause of action is barred by limitations for breach in Texas if the claim is not brought more than four years after the cause of action accrued, and a cause of action accrues on a breach claim when the injury under the contract first occurs. In fact, in the debt collection context, several debt collectors get pinged with liability simply for suing past the limitations even though the limitations defense is not raised (and sometimes limitations is not a defense; it's something else, depends on state law).

A 91a loser pay the attorneys' fees of the 91a winner

Rule 91a is a game of chicken. It has a "loser-pays" provision, requiring the person who loses a 91a challenge (either the pleader defending the motion or the movant attacking the cause of action) to pay the other side's attorneys' fees regarding the particular cause of action challenged. Tex. R. Civ. P. 91a.7. This is very abnormal in Texas and is contrary to the American Rule. It is also very scary. How much does it cost to defend a non-existent cause of action? It could be thousands. And anyway, you can attack pleadings using Rule 90 special exceptions without this "loser-pays" provision, so why would anyone use this Rule? Most judges don't know about it, and the appellate law on it is schizophrenic. I recommend using the Rule when you feel confident in your position and want to force the other side to amend their pleadings or drop causes of action because the value of the claim isn't worth the fees to defend. You don't do it if the judge is the other side's friend. You don't do it if the judge is incompetent.

Assume the judge was best man of the other side's wedding and is certified braindead. The former may turn out to be the case, and the latter is almost guaranteed.

Tread cautiously with Rule 91a actions. That said, I love the Rule and I think it needs to be actively and aggressively argued.

Appellate relief

The remedy on having the motion improperly denied appears to be solely the writ of mandamus. The Fourteenth District COA told an appellant that literally because they tried to appeal the denial twice unsuccessfully (once using the interlocutory appeal rule, once using the permissive appeal rule) they had no further right to mandamus because they delayed too long. In re HMR Funding, LLC, NO. 14-18-00085-CV (HOUSTON 14th Jul. 31, 2018). In the majority's opinion, the Court's previous discussion of the "right" tool to appeal a denial of 91a relief has been mandamus since the Supreme Court said that mandamus can be used and previously granted mandamus relief on a 91a denial in 2013.

I'll tell you what: no court, and not the Supreme Court, has yet held that the exclusive remedy to 91a denial is mandamus. The Supreme Court has hinted that it thinks this is the case, which for any nerd out there looking to get a byline, suggests that there is a "modified mandamus standard" out there for 91a denials exclusively. See ConocoPhillips Co. v. Koopmann, No. 16-0662 (corrected June 22, 2018 SCOTX) (slip op.). As of the date of this post, I don't believe the petition for writ of certiorari to the Texas Supreme Court on the Fourteenth District COA decision has yet expired; I would be shocked if the holding was not challenged on petition--it says "you snooze, you lose, even if the statutory relief clearly says you have the right to seek appellate relief on these orders, because you sought statutory relief first before trying mandamus relief." Mandamus is approved and granted in almost all of the reported cases for 91a denials, but SCOTX has yet to go out and say "you must mandamus these cases."

What is mandamus? It's exceptional appellate relief which requires a court do something because by failing to do something or by having done something else, the trial court abused the discretion it is entitled to exercise in adjudicating a dispute. To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). "An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012)." In re Moreno, No. 13-17-00282-CV, at *2 (Tex. App.--Corpus Christi Jun. 20, 2017)

Here's another way of saying it: "To be entitled to mandamus relief, the relator must show (1) that she has no adequate remedy at law and (2) that the action she seeks to compel is ministerial, not one involving a discretionary or judicial decision. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

This has usually been held to be a high bar, and justifies frequent appellate denials of the mandamus relief requested because either there is found to be an adequate remedy on appeal (i.e. wait until end of trial and then appeal) or no discretion abuse occurred.

However, an “appellate remedy is inadequate if it comes too late to cure the trial court's error." In re Prudential Ins. Co. of America, 148 S.W.3d 124, 141 (Tex. 2004) (Phillips. C.J., dissenting). Whether a 91a denial is an error that means appellate relief would be "too late" does not seem yet established, but there is an indication out of Dallas that a 91a denial automatically satisfies the inadequate appellate remedy prong. "Relator also has an adequate remedy on appeal regarding the trial court's subject matter jurisdiction because relator may seek mandamus relief if the trial court denies the Rule 91a motion." In re Tunad Enters., Inc., No. 05-18-01157-CV, at *2 (Tex. App.--Dallas Oct. 15, 2018) (citing In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014)). Wow! In Dallas, therefore, the "second prong" of the mandamus relief entitlement test is automatically satisfied if the 91a motion is denied. Cool. I think this is a clear indication that "mandamus" in the 91a context is subject to a relaxed standard.

List of mandamus cases applied but not explicitly held to be the exclusive relief: In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (per curiam) (finding mandamus appropriate to correct erroneous denial of 91a motion because it “is appropriate to spare the parties and the public the time and money spent on fatally flawed proceedings”); In re Odebrecht Constr., Inc., No. 13-17-00289-CV (Tex. App.--Corpus Christi Apr. 11, 2018); In re Wood Grp. PSN Inc., No. 04-18-00418-CV (Tex. App.--San Antonio Oct. 3, 2018); In re RNDC Tex., LLC, No. 05-18-00555-CV (Tex. App.--Dallas Jun. 11, 2018) (denying mandamus relief but discussing nothing about why it reached its conclusion); In re Perkins, No. 03-18-00146-CV, at *1 (Tex. App.--Austin Mar. 9, 2018) (denying because "adequate appellate remedy" not shown to not exist); In re Gutierrez, No. 13-14-00660-CV (Tex. App.--Corpus Christi, Nov. 20, 2014) (mandamus to rule on the 91a motion denied without discussion); In re Bernsen, No. 13-18-00507-CV, at *1 (Tex. App.--Corpus Christi Oct. 4, 2018) (denying mandamus for mootness when trial court finally ruled on 91a motion); In re Patel, No. 14-18-00853-CV (Tex. App.--Houston [14th Dist.] Nov. 1, 2018, no pet. h.) (mem. op.) (per curiam) (denying mandamus because no abuse of discretion shown); In re TPCO Am. Corp., No. 13-17-00294-CV (Tex. App.--Corpus Christi Apr. 11, 2018) (apparently denying mandamus relief for failure to show abuse of discretion after lengthy analysis of legal issues implicated by pleadings).

There are some appellate cases involving 91a relief, whether granted or denied. A denial is interlocutory. It is not listed in the interlocutory appeal statute and therefore must be "permissibly appealed" or finally appealed at the end of trial, or it must be mandamused. See Wiley v. ACCC Ins. Co., NO. 01-18-00219-CV, at *4 (Tex. App.--Houston [1st Dist.] May. 10, 2018) ("Appellate courts review Rule 91a dismissals under a de novo standard of review, but we lack appellate jurisdiction over denials of such motions."); cf. S. Cent. Houston Action v. Stewart, No. 14-15-00088-CV, 2015 WL 1508699, at *1 (Tex. App.—Houston [14th Dist.] Mar. 31, 2015, no pet.) (holding that appellate court has no jurisdiction over denial of Rule 91a motion).

List of cases involving non-mandamus appellate relief: Ruth v. Crow, No. 03-16-00326-CV(Tex. App.-- Austin May 2, 2018) (op on reh'g) (mem. op.) (grant); Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.--Houston [14th Dist.] 2014) (grant); GoDaddy.com LLC v. Toups, 429 S.W.3d 752 (Tex. App. Beaumont 2014) (permissive appeal for 91a denial); Edgefield Holdings, LLC v. Kenneth J. Gilbert, Helen K. Gilbert, Chandler Estates, Ltd., No. 02-17-00359-CV (Tex. App.--Fort Worth Sept. 20, 2018) (final judgment appeal which bundled the interlocutory 91a denial order); Aguilar v. Morales, 545 S.W.3d 670 (Tex. App.--El Paso 2017) (grant).

The holdings show there's a pretty big split on the propriety of mandamus. More importantly, you need to have a slam dunk mandamus case before bringing it or it'll likely be denied without explanation (the Texas Rules of Appellate Procedure do not require an explanation for a denial of relief, just a grant). That said, most people would be wise to review the petitions for writ of mandamus filed in the successful cases, no? Wallace Jefferson is out there making a killing doing this for HEB. I have a copy of his filing in the In re Butt case (but you have to order it; Nueces County is the weirdest metroplex area to get copies of anything and they always make you pay for it, which is really cool).

A discussion of Edgefield will form the next part of this Texas Thicc Tip: subject matter jurisdiction pleading.

Using 91a to attack a court's subject matter jurisdiction

A court can only adjudicate disputes if it has jurisdiction over parties, property or the subject matter. That's the law. In Texas, trial court subject matter jurisdiction is based on the language of the granting statutes and the Texas Constitution. At this time, the court which can basically hear any dispute is a district court. A county court at law can hear only those matters exclusively delegated to it; same for probate courts, family courts, county courts, and justice courts. Why is this important to Rule 91a?

Subject matter jurisdiction requires that the party bringing the suit have standing, that there is a live controversy between the parties, and that the case be justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Therefore, if a court has no subject matter jurisdiction, its orders are void as a matter of law because they're completely baseless and, in other words, meaningless / advisory. A court without the power to determine a dispute has no binding authority. It doesn't matter if the parties all agree that the court can hear the issue; the court's authority is not based on litigants' consent, but the Texas Constitution and the Constitution vis-a-vis the legislative grant. An appellate court may on its own accord determine whether a trial court has subject matter jurisdiction (primarily because if it did not, then the appellate court cannot validate the holding, or turn it over and order anything in the trial court; the trial court has no power, therefore the appellate court has no power).

People have begun using Rule 91a to attack trial courts' subject matter jurisdiction (SMJ); a NBIL challenge based on SMJ goes like this: "Because the trial court has no SMJ, it may not grant relief, and therefore the cause of action is NBIL and should be dismissed. Now please give us our attorneys' fees as mandated by the Rule for knocking this nonsense cause of action out of court."

By the way: a trial court without SMJ must give the fee if the 91a movant wins on this basis. That is the law of the land baby. The court may have no authority to determine the substance of the cause of action, but it nonetheless has authority to dismiss the action as being baseless for lack of SMJ; therefore, the 91a movant is the "winner" and so the loser must pay his attorneys' fees.

When a 91a motion is used to "attack jurisdiction" it is functioning as a "plea to the jurisdiction." In other cases, courts have held that a 91a motion is naturally akin to a plea to the jurisdiction. Here's why: in a plea to the jurisdiction, if the court determines it has no jurisdiction, it has to dismiss the challenged action. 91a attacks a court's power to determine a cause of action as having "no basis in law" where the factual allegations do not show entitlement to relief; therefore, if the pleadings fail to show the right to relief, then there is no jurisdiction to hear the case, and it must go away. So you get the 91a / plea to the jurisdiction overlap. The "family resemblance" is limited, as observed by some justices; for one, pleas to the jurisdiction allow for the presentation of "summary judgment quality" evidence. Rule 91a, however, explicitly bars the consideration of any evidence outside of the exhibits voluntarily attached to a pleading. "Except as required by 91a.7, 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 Rule 59." Tex. R. Civ. P. 91a.6. (91.a7, of course, concerns the award of the reasonable and necessary attorneys' fee.)

Well, if Rule 91 is a plea to the jurisdiction or explicitly asserts a plea to the jurisdiction as the "specific reason" for denying relief as NBIL, then it seems the court has to violate the Rule in order to determine the jurisdictional dispute. Some trial courts have struggled with this. The Edgefield case went ahead and, for the most part, provided some assurances to its trial courts that it's totally okay to consider 91a evidence attached to the 91a motion to determine SMJ. Edgefield Holdings, LLC v. Kenneth J. Gilbert, Helen K. Gilbert, Chandler Estates, Ltd., No. 02-17-00359-CV (Tex. App.--Fort Worth Sept. 20, 2018). This opinion expressed that when Rule 91a relief is denied after being used to challenge SMJ, the appellate court must determine which "plea to the jurisdiction" scope of review it should apply on its de novo consideration of the 91a order.

"Like a plea to the jurisdiction challenging a plaintiff's pleadings, a Rule 91a motion to dismiss may be based on a party's failure to allege facts demonstrating the trial court's subject-matter jurisdiction over the party's claim. . . . Whether reviewing a plea to the jurisdiction challenging the pleadings or a Rule 91a motion challenging the trial court's subject-matter jurisdiction, we liberally construe the pleadings to determine whether they contain sufficient facts to demonstrate jurisdiction." (Note the 2nd District COA is distinguishing between a plea to the jurisdiction and a 91a challenge to SMJ, but the same "liberal construction" pleading review is done de novo).

" 'A plea to the jurisdiction may also challenge the existence of jurisdictional facts. Mission Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In that case, a trial court's review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion.' . . . The party filing the plea has the burden to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. . . . If it does, the opposing party must then show that a disputed material fact exists regarding the jurisdictional issue. . . . '[W]e take as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in its favor.' Tex. Dep't of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 814 n.2 (Tex. 2012). '[W]hether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law.' Miranda, 133 S.W.3d at 226."

From this summary of plea to the jurisdiction law, the Court reached the following synthesis allowing a Rule 91a motion to bring both these types of jurisdictional challenges (pleading defect based on no evidence, existence of jurisdictional facts based on evidence):

"Likewise, in ruling on a plea to the jurisdiction challenging the pleadings, the trial court looks at the pleadings. Miranda, 133 S.W.3d at 226. If, however, a movant challenges the existence of jurisdictional facts, the trial court must consider relevant jurisdictional evidence provided by the movant and, if the movant's evidence negates jurisdiction, consider evidence produced by the nonmovant. Garcia, 372 S.W.3d at 635.

In this case, Edgefield's Motion to Dismiss did not specify whether its plea to the jurisdiction challenged a failure to plead jurisdictional facts or the existence of *13 jurisdictional facts. However, in its Motion to Dismiss, Edgefield attached and referenced evidence other than what would be allowed under Rule 59, and argued that its evidence established that only a federal court had jurisdiction over the Gilbert parties' claims. For the trial court to consider that evidence, Edgefield had to be challenging the existence of jurisdictional facts. Id. Accordingly, for purposes of reviewing the trial court's ruling on the Rule 91a part of the motion, we look to see if the Gilbert parties pled a cause of action with an arguable basis in law—specifically here, whether they pled facts showing the trial court's jurisdiction—and, for purposes of reviewing the trial court's ruling on the plea to the jurisdiction, we look to see if Edgefield negated the existence of jurisdictional facts."

What a weird way to get to this. Rather than simply hold "rule 91a movants can put forth evidence to attack a court's SMJ on the basis that there are no jurisdictional facts," the Court said because Rule 91a motions are like pleas to the jurisdiction, and pleas to the jurisdiction can put forth evidence regarding the existence of jurisdictional facts, and this motion had attached to it exhibits, we know that he was using Rule 91a in this fashion, and review it accordingly. Cool! The result is doubly weird because there's no need to explain whether the trial court properly considered the evidence attached; if they hadn't, there'd still be room to doubt if you can do that in a 91a motion, but by saying the court could have considered it, they have opened the door to using 91a motions to bring forth evidence of SMJ. EDIT: The holding in no way endorses freewheeling use of evidence in a 91a challenge to jurisdiction; it only endorses Rule 59-compliant evidence, which I'll discuss in another Thicc Tip. END EDIT.

This seems heavily at odds with the Rule, but perhaps it's not. Rule 91a.6 says "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause." I'm not sure what this means, admittedly. What does it mean to "consider evidence." Is a judicial fact "evidence"? I doubt it. Is simply attaching persuasive papers to the 91a motion "evidence"? How does a court consider "solely . . . the pleadings of the cause" when the only reason to do so is when challenged by a 91a motion which must "specifically" show why the pleaded cause has NBIL or NBIF? Conceptually speaking, what does this phrase mean? In Bedford, the Fort Worth Court of Appeals suggested that it means something like a "four corners" analysis of the petition when the 91a was to be based on limitations. "It is this provision that, according to Bedford in its first and second issues, was violated by the trial court when the trial court dismissed Bedford's claims on the basis of statute of limitations because in order to do so, the trial court was required to look beyond Bedford's petition and consider TIG's pleadings. We agree." Again, this holding may only be reached because the instant petition did not facially indicate a limitations problem (as noted by the Dallas COA in Bethel). I have not yet personally reviewed the petition at issue in Bedford but will do so eventually if I can get a copy. Does the same logic apply to a SMJ determination? Apparently not, according to the same COA in its later Edgefield decision: SMJ is different somehow from an affirmative defense of limitations (although there's no dispute that their analysis required the court "look beyond [plaintiff's] petition and consider [defendant's] pleadings" to the extent a "defendant's pleadings" include a 91a motion attacking SMJ). Is Edgefield an implicit overruling of Bedford? Probably not. Is it a bit of a hedge for 91a motions not based on traditional affirmative defenses but SMJ? Probably so. EDIT: Is Bedford just wrong? If the Rule says a court may only consider the pleadings and Rule 59-compliant evidence, then the answer as to what attachments a court may consider under Rule 59 is informed by Rule 59, which clearly says a plaintiff or defendant may attach, quote or "file and refer" to certain kinds of written contractual documents to their respective pleadings, petition or answer. The implication clearly shows a defendant may indeed make a facial defense through Rule 59 if the compliant documents show the defensive matter. This is an argument not raised in Bedford (or in any other case I have seen yet). END EDIT.

The Rule says "do not consider evidence" but if the principles of law already out there forbid a court from ruling on disputes where it has no SMJ, then surely the Rule, which is ostensibly a pre-discovery tool meant to attack causes of action out the gate (although of course you may amend pleadings to add causes after discovery has occurred), would want to encourage the consideration of documents showing the court has no SMJ, right? The opposite is perverse! A plaintiff is actively encouraged to hide the ball from the trial court that it has no SMJ by refusing to attach pertinent documents which may show the lack of jurisdiction; this is known as an "asshole thing to do." Here's what such plaintiffs think: "If I don't show the court it has no SMJ by attaching documents or alleging anything which may show that, and I'm attacked by a defendant using a 91a challenge, I can simply chortle to the court, pat my paunch and say, 'Your Honor, the Rule forbids you from considering any evidence I did not attach. Therefore, Your Honor, you may not use the Rule 91a motion to consider evidence not before you.' Therefore, I win and you must award me fees. If he wants to come back in and do a general plea to the jurisdiction, why, of course, Your Honor, I would be happy to respond accordingly." And this absurd tactic has worked before. I've seen it. It's absurd. It's alien. It's insane. It's double insane because a court is free to take judicial notice of any public records out there which may establish the question of subject matter jurisdiction! SUBJECT MATTER JURISDICTION MAY BE RAISED ANY TIME IN A CASE, BY ANYONE, INCLUDING THE JUDGE. "Subject-matter jurisdiction cannot be waived, and can be raised at any time." Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (citing Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004)). ANY TIME. What kind of sick pervert lawyer would tell the judge it cannot consider subject matter jurisdiction simply because he won't give the court the documents to do so voluntarily? Imagine an even worse set of facts: Plaintiff ACTIVELY lies to the trial court about jurisdiction, Defendant uses 91a motion to try to show there's a lie, and Plaintiff again bats it away, saying, "Court, you can't determine I'm lying unless you consider documents to show I'm lying, which is forbidden. Now give me fees." Plaintiff amends pleadings to correct jurisdictional defects, and laughs his way to the bank. EDIT: See supra, discussing Rule 59 attachments -- this is the perfect solvent to a deceitful plaintiff: be the abundantly honest defendant, since it's your 91a motion and there's nothing in Rule 91a clearly saying you cannot use Rule 59 attachments to do this in your answer. END EDIT.

It's a shitty idea and a shitty rule if that's what this thing does; it's especially shitty if the "fair notice" rule is allowed to let shitstain pleadings survive 91a challenges for simply being "inartfully pled" though "sufficient to give notice of the claim."

Edited in: Here's an extra note on the topic. I've seen about three cases which explicitly uphold or do not reverse 91a orders on the basis of the 91a movant attaching to the motion copies of documents to help bolster the claims on review. In Zheng, the Fourteenth COA, perhaps the most liberal appellate court in Texas, did not reach the issue whether the trial court could permissibly consider a 91a movant's copy of an alleged timeshare agreement when the plaintiff refused to attach it for the court's review. In refusing to reach the issue, the Court did a simple two-step analysis: any analysis that a contract was a timeshare agreement required a comparison of the contractual terms to the timeshare statute, which would further involve a "determination" that the plaintiff was "bound by his answers" to a timeshare questionnaire; such "issues extend beyond a mere determination of whether the claim as pleaded is baseless under the Rule 91a standards" (NBIF fails because the appellate court felt people could believe the contract was a timeshare, and NBIL failed because the court must take as true the plaintiff's allegation that it was a timeshare agreement). I don't think a determination that a contract is a timeshare agreement where the very definition of timeshare-iness is based on a statute is much of an allegation of fact at all; I daresay that a conclusory, legal allegation. If bored, read Zheng v. Vacation Network, Inc., 468 S.W.3d 180 (Tex. App.--Houston [14th Dist.] 2015) (mem. op.). The Fourteenth, however, explicitly upheld a 91a grant where materials were attached to the 91a motion showing a statute of limitations had passed. See Univ. of Tex.--M.D. Anderson Cancer Ctr. v. Porter, No. 14-17-00107-CV (Tex. App.--Houston [14th Dist.] Nov. 2. 2017) (mem. op.) (slip op.). In Porter, the Fourteenth reviewed a 91a motion which had "[a]ttached . . . a copy of appellee's Charge of Discrimination filed with the Texas Workforce Commission Civil Rights Division" which "[reflected] the complaint was filed August 20, 2013" and the record showed suit was filed "on October 10, 2016, more than two years after her complaint was filed." Id. at *5. The Court noted in a footnote that the plaintiff attached in her response to the 91a motion a September 23, 2016 notice denying her workforce claim that also referenced the August 20, 2013 date of the complaint. At no time did the pleadings contain a copy. There is precedent for considering 91a attachments in the Fourteenth and the Second COA in obtaining 91a relief. In denying a permissive appeal, the Dallas COA helpfully informed the appellant that he "did not prove that substantial grounds for difference of opinion exist" for this very question (whether a trial court could permissibly consider a 91a attachment); substantial grounds for disagreement exist if different courts disagree. Patel v. Patel, No. 05-16-00575-CV, *3-4 (Tex. App.--Dallas July 19, 2016) (mem. op.) (slip op.) (citing inter alia Workers' Comp. Sols. v. Tex. health, LLC, No. 05-15-01504-CV (Tex. App.--Dallas mar. 14, 2016, no pet.). The plaintiff did reference the agreement the 91a movant attached, but did not attach a copy. The issue in Patelwas whether an LLC member or manager is liable for the LLC's debts (a question of law under Texas Business and Commerce Code Section 101.114). The 91a motion was granted; reconsideration denied; permissive appeal was applied for and granted, and the rest is history. For a case to the contrary, see Quintanilla v. Trevi?o, No. 13-15-00377-CV, at *6 (Tex. App.--Corpus Christi Apr. 14, 2016) (“Quintanilla's petition, as contained in the record before this Court, does not include a copy of the Agreement as an exhibit, nor does it include any other properly attached exhibits. Therefore, the trial court was permitted to consider only the allegations made in the petition.”). In Trevino, the 91a movant attached an attorney referral agreement to his motion; a copy was not attached to the petition. No bueno in Nueces. So there's your split, Dallas.

Not much to go on but it does seem as if the courts who are struggling with the problem of deficient pleadings are at least open to a 91a movant putting the paperwork before its face, perhaps under the right circumstances (where issue is raised; cf. another Dallas case, Bethel, where the Dallas COA upheld a 91a based on affirmative defense where pleadings extensively referenced the facts which would naturally lead into the defense). In one other case involving an interpretation of what the Lej and SCOTX "intended" with the Rule, a hypothetical venue problem was mulled over and held not to foreclose future 91a filings where the "deadline" passed:

First, the defendant files a Rule 91a motion to dismiss that is actually meritorious but is nevertheless denied by the trial court. The defendant then subsequently files a motion to transfer venue, which is erroneously denied by the trial court. Under those circumstances, the defendant is entitled to challenge the venue ruling in an original mandamus proceeding, see TEX.CIV.PRAC.&REM.CODE ANN. § 15.0642 (West 2002), and is successful in doing so. Ultimately, the case is then transferred back to the correct county where it should have been filed. If we were to adopt the Aguilars' reasoning, the defendant in this hypothetical would be precluded from refiling its Rule 91a motion to dismiss because more than 60 days necessarily passed from the date the defendant was served. Surely the drafters of Rule 91a did not intend this result. We decline to adopt the Aguilars' interpretation of the rule. Accordingly, because we hold that the Morales' motion to dismiss was timely filed in the Bexar County Probate Court on October 4, 2013, and their January 14, 2015, motion to dismiss in the El Paso trial court relates back to the date of filing in the Bexar County Probate Court, we overrule Issues One, Two, Three, Four, and Thirteen.

Aguilar v. Morales, 545 S.W.3d 670, 679 (Tex. App.--El paso 2017)

If trying to figure out the "intent" behind SCOTX's rulemaking is a valid move, then courts should be encouraged by briefs to see what SCOTX meant by a Rule which requires "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 Rule 59." Tex. R. Civ. P. 91a.6. What does Rule 59 say? "Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a part of the pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to said instruments and shall be deemed a part thereof for all purposes. Such pleadings shall not be deemed defective because of the lack of any allegations which can be supplied from said exhibit. No other instrument of writing shall be made an exhibit in the pleading." Hey, so it sounds like the cleanest way to get 91a evidence before the court is to attach it to the answer if the plaintiff won't do it. The trial court is limited "solely on the pleading of the cause of action" and "any pleading exhibits permitted by Rule 59," which explicitly allows attachments to an answer. That's a good plain-text, no-policy type argument.

What if you do a combination answer with 91a motion as your pleading? (I feel it's too unclean a tactic, but it may work.) I personally don't see the significance in a capable answer which denies the relief entitled to the plaintiff and a 91a motion which denies the relief entitled to the plaintiff. Rule 91a of course requires a motion to identify it is brought pursuant to the Rule, but what's to stop someone from just saying "this answer contains all the following: general denial allowed under Rule 92, special exceptions under Rule 91, verified denials under Rule 93, and grounds to dismiss for failure to state a claim under Rule 91a." Think about it, baby.

And, of course, whether a court "considers" the documents or not (wink wink) seems to be an open question. Hell, just attach the documents and let the plaintiff freak out and say the court needs to strike them from consideration. That should be fun. You can sit back and say, "Of course the judge did not consider evidence. The documents are not attached as evidence but as illustration." And whose fault is it if the judge does consider it as evidence? How are you going to prove the judge relied on it on appeal? Just a "smell test" argument? Good luck.

END EDIT

Admittedly, SMJ will be presumed if shown affirmatively through the factual allegations of the pleading. Peek v. Equipment Service Co., 779 S.W.2d 802, 804 (Tex. 1989) (courts presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition). The absence of jurisdiction may similarly be shown through the failure of the pleadings to establish it.

So in my 91a SMJ motions, I always argue that if judicial notice can help resolve the issue, the court should deploy it. Why? Because I give a shit about justice, fairness and cheapening lawsuits unlike some unethical scumbags out there I will happily name and shame at the first CLE I get to do : )

Judicial notice has long been used to determine a court's SMJ. Basically, the thinking is - why should a court be limited in how it can determine SMJ? While Edgefield didn't get this far, it seems like an implicit extension of the court's rule - if a 91a motion is used to challenge SMJ, a 91a movant can urge the court to take judicial notice of the pertinent public records which could establish the lack of SMJ. See, e.g., Cnty. of El Paso v. Navar, No. 08-17-00058-CV (Tex. App.--El Paso Jun. 6, 2018) (using judicial notice to determine SMJ in declaratory action). There is no reported case found by this humble author involving judicial notice, SMJ and Rule 91a. I hope one day to be the cause of it, or to see it succeed with someone else's capable hands.

I'll develop this Thicc Tip into something substantial over time. This is my basic thinking on the topic.

Rule 91a:

91a.1. Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, 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.

91.2. 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.

91a.3. A motion to dismiss must be:

(a)      filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;

(b)       filed at least 21 days before the motion is heard; and

(c)       granted or denied within 45 days after the motion is filed.

91a.4. Any response to the motion must be filed no later than 7 days before the date of the hearing.

91a.5. (a)       The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.

(b)       If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.

(c)       Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).

(d)       An amended motion filed in accordance with (b) restarts the time periods in this rule.

91a.6. Each party is entitled to at least 14 days' notice of the hearing on the motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as required by 91a.7, 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 Rule 59.

91a.7. Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award.

91a.8. This rule is not an exception to the pleading requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to the court's jurisdiction only in proceedings on the motion and is bound by the court's ruling, including an award of attorney fees and costs against the party.

91a.9. This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal.