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Ruth v. Crow

Court of Appeals of Texas, Third District, Austin

May 2, 2018

William W. Ruth, Appellant
James Albert Crow, Sandra Ford, The Ruby and Annie Smith Family Partnership, and Todd Steele, Appellees


          Before Chief Justice Rose, Justices Goodwin and Bourland


          Cindy Olson Bourland, Justice

         We 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 rehearing.

         Appellant William W. Ruth filed suit against James Albert Crow, Sandra Ford, the Ruby and Annie Smith Family Partnership, and Todd Steele, [1] asserting claims for malicious prosecution, intentional infliction of emotional distress, and conspiracy.[2] 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.

         Standard of Review

         Except 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).

         Should the trial court have filed Ruth's supplemental petition or given additional time?

         Initially, 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.

         Ruth 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.[3] 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).

         Further, 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.).

         Norhas 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.[4]

         Special exceptions versus rule 91a

         Ruth 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 91a.[5] 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 any.").

         Factual allegations and claims made in Ruth's petition

         We now 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.

         Ruth 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.[6]See Tex. Penal Code ยง 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 ...

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