Court of Appeals of Texas, Fourth District, San Antonio
Michael A. SALAZAR, Appellant
HEB GROCERY COMPANY, LP and Wal-Mart #1198, Appellees
the 438th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-11032 Honorable John D. Gabriel Jr., Judge
Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini,
Justice Patricia O. Alvarez, Justice.
Patricia O. Alvarez, Justice.
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. 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
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).
under Rule 91a
Standard of Review
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.
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
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.
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 ...