Court of Appeals of Texas, Third District, Austin
William W. Ruth, Appellant
James Albert Crow, Sandra Ford, The Ruby and Annie Smith Family Partnership, and Todd Steele, Appellees
THE DISTRICT COURT OF SAN SABA COUNTY, 424TH JUDICIAL
DISTRICT NO. 9537, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Chief Justice Rose, Justices Goodwin and Bourland
Olson Bourland, Justice
withdraw the memorandum opinion and judgment dated February
23, 2018, substitute the following memorandum opinion and
judgment in their place, and deny appellant's motion for
William W. Ruth filed suit against James Albert Crow, Sandra
Ford, the Ruby and Annie Smith Family Partnership, and Todd
Steele,  asserting claims for malicious
prosecution, intentional infliction of emotional distress,
and conspiracy. Within sixty days, appellees filed motions
to dismiss pursuant to rule 91a. See Tex. R. Civ. P.
91a. The trial court held a hearing on the motions, and on
the day of the hearing, Ruth "bench-filed" a
supplemental petition directly with the trial court. The
trial court signed orders dismissing Ruth's suit against
the defendants, and Ruth argues on appeal (1) that the trial
court erred in dismissing under rule 91a because special
exceptions are "the applicable remedy for any alleged
defect in" Ruth's pleadings; (2) that the court
erred in dismissing the suit before Ruth could take a
deposition; (3) that the court erred in dismissing the suit
when Ruth had given appellees a copy of his supplemental
petition, which he filed the day of the hearing; (4) that the
court should have granted Ruth additional time to amend or
supplement his petition because Ruth's counsel had been
ill and therefore had not filed an amended petition or a
response to appellees' motions to dismiss; and (5) that
the trial court judge should have recused himself. We affirm
the orders of dismissal.
in certain situations not applicable here, a party may seek
dismissal of a cause of action on the grounds that it has no
basis in law or fact. Tex.R.Civ.P. 91a.1; City of Dall.
v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per
curiam). "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 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 claim has no
basis in law or fact. Tex.R.Civ.P. 91a.2. We review de novo a
trial court's decision on a rule 91a motion "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."
Sanchez, 494 S.W.3d at 724 (citing Wooley v.
Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th
Dist.] 2014, pet. denied)); Koenig v. Blaylock, 497
S.W.3d 595, 599 (Tex. App.-Austin 2016, pet. denied). Thus,
we "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."
Koenig, 497 S.W.3d at 599 (citing Wooley,
447 S.W.3d at 76). If the trial court decides to conduct a
hearing on the motion, it may not consider evidence and
"must decide the motion based solely on the pleading of
the cause of action" and any documents made part of the
pleadings. Tex.R.Civ.P. 91a.6; see also id. R. 59
(explaining when document may be deemed part of petition).
the trial court have filed Ruth's supplemental petition
or given additional time?
we address Ruth's arguments related to his supplemental
petition and whether he should have been granted additional
time to respond or to amend his petition.
asserts that as soon as he learned his attorney had been ill
and thus had not filed an amended petition or rule 91a
response, he himself drafted a supplemental petition,
personally served it on the other parties, attempted to file
it with the trial court the day before the hearing but was
unable to do so because the office was temporarily closed,
and instead filed the petition on the day of the
hearing. However, many of Ruth's assertions are
not reflected in the record. For instance, although Ruth
states that his attorney informed the trial court why the
supplemental petition and response were not timely filed and
asked for additional time, the record from the hearing does
not bear that out. Instead, during the hearing, appellees
stated that Ruth had faxed them the supplemental petition the
day before, that they did not know if the petition had been
filed, and that it could not be considered because it was not
timely filed under rule 91a. Ruth's attorney made
reference to having been ill when explaining why a deposition
had not yet occurred and in stating that he had discussed
with one of appellees' attorneys whether they could agree
to extend the time period for the trial court to rule on the
motions "so that the Court would have the time to
accurately address each and every one of the issues."
There was no further discussion of or reference to the
supplemental petition. Additionally, Ruth's motion for
new trial stated only that his attorney "was sick at the
time recovering from surgery and not acclimated [to] his
medication, which reduced his effectiveness and the hours
that he could work, " and that counsel had had surgery
in September and October and "was not healthy enough to
conduct discovery which would have led to additional
pleadings more succinct and which would have precluded this
result." The motion was not sworn, nor was it
accompanied by an affidavit explaining any details about
counsel's illness or treatment. See Yoon v.
State, No. 03-11-00722-CV, 2012 WL 5974071, at *2 (Tex.
App.-Austin Nov. 20, 2012, no pet.) (mem. op.) (party waived
right to complain of trial court's refusal to grant
additional time before rendering summary judgment when party
did not file affidavit or verified motion for continuance
explaining need for additional discovery).
rule 91a has fairly strict time constraints-it requires that
a motion to dismiss be filed within sixty days of the
pleading making the challenged claim but at least twenty-one
days before a hearing on the motion, that a response be filed
at least seven days before the hearing, that amended
pleadings or nonsuits be filed at least three days before the
hearing, and that the trial court act on the motion to
dismiss within forty-five days of the motion's filing-and
it does not include a "good cause" exception.
See Tex. R. Civ. P. 91a.3, .4, .5(b). While the
motions to dismiss were filed more than twenty-one days
before the hearing, Ruth did not file a response and he
"bench filed" his supplemental petition the day of
the hearing. We hold that the trial court did not err in
refusing to consider Ruth's late-filed supplemental
petition. See Odam v. Texans Credit Union, No.
05-16-00077-CV, 2017 WL 3634274, at *4-5 (Tex. App.-Dallas
Aug. 24, 2017, no pet.) (mem. op.).
Ruth shown that the court would have abused its discretion or
otherwise erred in denying a request for additional time to
supplement or amend Ruth's petition, had such a request
been made. See, e.g., Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)
(discussing factors to consider in evaluating whether trial
court abused discretion in denying additional time for
discovery before summary-judgment hearing); Texas
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 229 (Tex. 2004) (rules allow "parties to request
additional time to prepare for certain hearings or to conduct
discovery upon a showing of sufficient cause, and the
court's ruling on such a motion is reviewed for an abuse
of discretion"). We overrule Ruth's complaints
related to the court's refusal to consider the
supplemental petition and whether Ruth should have been given
more time to amend or supplement his petition or respond
under rule 91a.
exceptions versus rule 91a
also argues that special exceptions, rather than dismissal
under rule 91a, were the proper method of addressing any
deficiencies in his pleadings, see Tex. R. Civ. P.
91 ("Special Exceptions"), citing to cases
discussing how deficiencies in a plaintiff's pleadings
should be remedied through special exceptions. However, those
cases were decided before the adoption of rule
See, e.g., Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 897 (Tex. 2000); Connolly v.
Gasmire, 257 S.W.3d 831, 839 (Tex. App.-Dallas 2008, no
pet.). We hold that the trial court did not err by acting on
appellees' motions to dismiss under rule 91a. See
Holland v. Davis, No. 05-15-01173-CV, 2016 WL 3547982,
at *1 (Tex. App.-Dallas June 28, 2016, pet. denied) (mem.
op.) ("Although Holland argues that Davis's rule 91a
motion to dismiss must fail because she did not specially
except to his petition, he does not cite any authority
requiring a defendant to file special exceptions before
seeking a rule 91a dismissal. We also have not found
allegations and claims made in Ruth's petition
move to examine whether Ruth's claims as pled
sufficiently showed a basis in law or fact. Our consideration
is limited to the face of the petition, without reference to
extrinsic evidence. See Reaves v. City of Corpus
Christi, 518 S.W.3d 594, 605 (Tex. App.-Corpus Christi
2017, no pet.) (quoting Wooley, 447 S.W.3d at 83-84
(Frost, C.J., concurring)). We thus fully describe Ruth's
factual allegations as set out in his original petition.
alleged that in January 2013, he learned that a warrant had
been issued for his arrest and later learned he had been
indicted for barratry.See Tex. Penal Code §
38.12(a) (person commits barratry if, with intent to obtain
economic benefit, he institutes claim without authority to do
so; solicits employment for himself or another; or pays,
gives, advances, or offers to pay, give, or advance anything
of value to solicit employment). When he arrived home after
turning himself into jail, he was shocked, distressed, and
embarrassed to find that his wife, escorted by law
enforcement, was leaving him and was moving her belongings
out of the house. He was instructed repeatedly not to try to
speak to her, as neighbors outside watched the commotion. At
school, Ruth's son was "questioned and exposed to
the lies, innuendos and humiliation" of gossip related
to crimes "assumed to have been committed by Ruth"
after a story accompanied by Ruth's mug shot was run in
the local paper. "[W]eeks later, " Ruth was also
indicted for aggravated perjury and arrested again, and that