Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Salazar v. HEB Grocery Co., LP

Court of Appeals of Texas, Fourth District, San Antonio

April 4, 2018

Michael A. SALAZAR, Appellant
v.
HEB GROCERY COMPANY, LP and Wal-Mart #1198, Appellees

          From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-11032 Honorable John D. Gabriel Jr., Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice.

         AFFIRMED.

         Appellant Michael A. Salazar filed defamation/slander, intentional infliction of emotional distress, civil conspiracy, and aiding and abetting causes of action against Appellees HEB Grocery Company, LP and Wal-Mart #1198.[1] Appellees sought dismissal of the suit pursuant to Rule 91a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 91a (authorizing dismissal of a cause of action that has no basis in law or fact). On October 10, 2016, the trial court dismissed the suit. The trial court entered an amended order on October 24, 2016 clarifying a misnomer. This appeal ensued.

         PRO SE PARTIES

         Salazar appeared pro se before the trial court and is also representing himself before this court. "We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure." Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.--Dallas 2012, no pet.). In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)). "To do [otherwise] would give a pro se litigant an unfair advantage over a litigant who is represented by counsel." Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.-San Antonio 1999, pet. denied).

         Dismissal under Rule 91a

         A. Standard of Review

         An appellate court reviews de novo a trial court's order granting a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a. City of Dall. v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (citing Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied)) ("[T]he 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."). Whether a cause of action can withstand a Rule 91a contest rests "on the allegations of the live petition and any attachments thereto." Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). "We apply the fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action." Wooley, 447 S.W.3d at 76.

         B. Applicable Law

         An appellate court "construe[s] the pleadings liberally in favor of the plaintiff, look[s] to the pleader's intent, and accept[s] as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.-Austin 2016, pet. denied) (citing Wooley, 447 S.W.3d at 76); see also Zheng, 468 S.W.3d at 183-84. "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; accord Sanchez, 494 S.W.3d at 724; Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 661 (Tex. App.-Houston [14th Dist.] 2016, no pet.).

         "Whether the dismissal standard is satisfied depends solely on the pleading of the cause of action." Yeske, 513 S.W.3d at 661 (citing Sanchez, 494 S.W.3d at 724). A motion to dismiss under Rule 91a must identify each cause of action it attacks and specify "the reasons the cause of action has no basis in law, no basis in fact, or both." Tex.R.Civ.P. 91a.2. When a defendant moves to dismiss a cause of action on the grounds that it has no basis in law or fact, a plaintiff may amend the pleadings at least three days before the date of the hearing. See id. R. 91a.5(b). "[T]he 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 [permissible] pleading exhibits. . . ." Id. R. 91a.6.

         C. Pleadings

         Our determination of whether Salazar's claims sufficiently showed a basis in law or fact is limited to a review of the face of the petition, without regard to extrinsic evidence. See id.; Sanchez, 494 S.W.3d at 724. We therefore set forth a detailed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.