Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2015-517, 630, Honorable Paul Davis,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. CAMPBELL JUSTICE.
Lugano, Ltd., A & L Sharif Family, LP, and Mamoush, Ltd.,
(collectively, the "limited partners") are limited
partner investors in appellant Raider Ranch, LP. Raider Ranch
operates a long-term care and transitional living facility in
Lubbock. The limited partners sued Raider Ranch and its
general partner, Raider Ranch GP, LLC ("RRGP") for
declaratory relief. The trial court denied the Rule
motion to dismiss filed by Raider Ranch and RRGP and rendered
judgment on the merits for the limited partners. Through two
issues Raider Ranch and RRGP appeal. We will overrule their
issues and affirm the judgment of the trial court.
limited partners demanded inspection of the books and records
of Raider Ranch. The request was denied. Thereafter, the
limited partners sued Raider Ranch and RRGP seeking a
declaration that the limited partnership agreement and Texas
statutes provided them the right to inspect the firm's
books and records. Raider Ranch and RRGP filed a motion to
dismiss under Rule 91a.
Ranch and RRGP's theory supporting dismissal under Rule
91a arose from the attachment of the Raider Ranch limited
partnership agreement to the limited partners' petition.
The copy attached did not include the second amendment to the
agreement. That amendment contained a mutual release signed
by the limited partners that, Raider Ranch and RRGP argued,
foreclosed the declaratory relief the plaintiffs sought.
Raider Ranch and RRGP attached the second amendment to their
amended answer and amended motion to dismiss. For purposes of
dismissal under Rule 91a, they argued "optional
completeness" required consideration of the second
amendment as part of the limited partnership agreement
attached to the limited partners' petition, even though
the second amendment was not attached to the petition. By
giving consideration to the second amendment's release
language, the petition on its face showed an absolute bar to
relief, the argument continued, because the limited partners
thereby relinquished any right to inspect the
partnership's books and records. Lacking a legal or
factual basis, Raider Ranch and RRGP argued, the petition was
frivolous on its face and subject to dismissal under Rule
visiting judge denied the motion to dismiss and then
adjudicated the merits of the limited partners' claim for
declaratory relief. Judgment was for the limited partners.
Raider Ranch and RRGP's motion for new trial was denied
by written order. This appeal followed.
their first issue, Raider Ranch and RRGP argue the trial
court erred in denying their Rule 91a motion to dismiss
because the release should have been considered along with
the limited partners' live petition and when so
considered the pleading is shown frivolous on its face,
lacking a basis in law or fact.
believe Raider Ranch and RRGP's complaint of the trial
court's denial of their motion to dismiss was rendered
moot when the court tried the merits of the limited
partners' case and rendered judgment in their favor.
See Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir.
1996) (concluding "[w]hen a plaintiff has prevailed
after a full trial on the merits, a district court's
denial of a [motion to dismiss] becomes moot" because
"[a]fter a trial on the merits, the sufficiency of the
allegations in the complaint is irrelevant"; the
plaintiff "has proved, not merely alleged, facts
sufficient to support relief"); ClearOne Communs.,
Inc. v. Biamp Sys., 653 F.3d 1163, 1172 (10th Cir. 2011)
(stating, "as a general rule, a defendant may not, after
a plaintiff has prevailed at trial, appeal from the pretrial
denial of a Rule 12(b)(6) motion to dismiss, but must instead
challenge the legal sufficiency of the plaintiff's claim
through a motion for judgment as a matter of
if the issue is not moot, we find no merit to Raider Ranch
and RRGP's "optional completeness" argument,
which called on the trial court to base its determination on
Raider Ranch and RRGP's affirmative defense of release,
contained in their pleadings.
is an affirmative defense, Tex.R.Civ.P. 94, where the
defendant bears the burden to plead and prove the existence
of an effective and valid release." Barras v.
Barras, 396 S.W.3d 154, 170 n.5 (Tex. App.-Houston [14th
Dist.] 2013, pet. denied) (citing Williams v. Glash,
789 S.W.2d 261, 264 (Tex. 1990)).
of appeals reviews a ruling under Rule 91a "de novo
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."