Two YEARS OF MOTIONS TO DISMISS IN TEXAS: WHAT HAVE WE LEARNED? DANIEL E. BOLIA*
I.
INTRODUCTION ................................................................................. 43
II. III.
THE RULE .....................................................................................
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V. VI.
V II.
43 SOM E STATISTICS ............................................................................. 45 STANDARD OF REVIEW ON APPEAL ............................................. 47 48 APPELLATE REVIEW OF A DENIAL OF A RULE 91A MOTION ...... PROCEDURAL ISSUES .................................................................... 50 C ONCLUSION ................................................................................. 51
I. INTRODUCTION
Almost three years ago, on March 1, 2013, the Texas Rules of Civil Procedure were amended to include a rule providing for the early dismissal of causes of action that have no basis in law or in fact. Some thought that Rule 91 a would usher in a new era of federal-type motion practice in Texas, given the rule's similarities to Federal Rule of Civil Procedure 12(b)(6), which provides for dismissal of causes of action that fail to state a claim upon which relief can be granted. Others were more cautious, arguing that the mandatory loser-pays provision would deter defendants from filing Rule 91 a motions except in the most patently frivolous cases. Texas practitioners have now been living with Rule 9 1a for two years, and a handful of cases have made their way through the appellate courts. Based on the available data so far, the cautious crowd appears to be winning the argument. And while it is too soon to draw any definitive conclusions about the future of Rule 91a, certain trends can be discerned from the decisions handed down to date. II. THE RULE Rule 91a grew out of Section 22.004(g) of the Texas Government Code, enacted in 2011, which tasked the Texas Supreme Court with * Daniel Bolia is an attorney in the Law Department at Exxon Mobil Corporation. The opinions expressed in this Article are his alone and do not reflect the opinions of his employer.