Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2017-32333-B
consists of Justices Lloyd, Kelly, and Hightower.
Russell Lloyd, Justice.
Galperin appeals the dismissal of his negligence claim
against Smith Protective Services, Inc. (SPSI) under Texas
Rule of Civil Procedure 91a. In two issues, Galperin contends
that the trial court erred in granting SPSI's motion, and
that SPSI is not entitled to attorney's fees. We reverse
owns a condominium unit at the Marlborough Square
Condominiums, located at 594 Wilcrest, in Houston, Texas.
While Galperin was out of the country, his condominium was
foreclosed upon and the homeowners' association (HOA)
purchased it at auction. When Galperin returned home, he
discovered that his automobiles, safes, firearms, and
business data had been stolen, and that his bank account had
been emptied and his credit cards "maxed out."
sued SPSI, among others, asserting a cause of action for
negligence.In his first amended petition, Galperin
alleged that SPSI "has a contract to provide security
services to the HOA and unit owners," and that, under
the contract, SPSI acted as the HOA's agent in providing
security for the complex. Galperin alleged that SPSI was
negligent in failing to (1) "secure his condo and
property to prevent the thefts that occurred"; (2)
institute proper processes and procedures to ensure that the
HOA and its various agents . . . adequately guarded against
theft of property from condos foreclosed on and owned by the
HOA during the redemption period"; (3) provide adequate
security to prevent the thefts for [his] condo based on what
was known or should have been known"; and (4) alert the
HOA and its management company of suspicious activities
surrounding access to his condo during the period it was
owned by the HOA in the redemption period."
filed a motion to dismiss pursuant to Texas Rule of Civil
Procedure 91a, arguing that Galperin's negligence cause
of action has no basis in law or fact. Galperin filed a
response to the motion, and SPSI filed a reply. The trial
court granted SPSI's motion, dismissed SPSI from the
suit, and awarded attorney's fees and costs to SPSI. This
first issue, Galperin contends that the trial court erred in
dismissing his negligence claim against SPSI. In his second
issue, he argues that SPSI is not entitled to attorney's
Texas Rule of Procedure 91a
91a provides that "a party may move to dismiss a cause
of action on the grounds that it has no basis in law or
fact." Tex.R.Civ.P. 91a.1. 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
plaintiff to the relief sought. Id. Generally, a
cause of action has no basis in law under Rule 91a in at
least two situations: (1) the petition alleges too few facts
to demonstrate a viable, legally cognizable right to relief;
and (2) the petition alleges additional facts that, if true,
bar recovery. Guillory v. Seaton, LLC, 470 S.W.3d
237, 240 (Tex. App.-Houston [1st Dist.] 2015, pet. denied).
"A cause of action has no basis in fact if no reasonable
person could believe the facts pleaded." Tex.R.Civ.P.
91a.1. The trial court must determine the motion "based
solely on the pleading of the cause of action, together with
any pleading exhibits permitted by" the rules of civil
procedure. Tex.R.Civ.P. 91a.6; Dailey v. Thorpe, 445
S.W.3d 785, 788 (Tex. App.-Houston [1st Dist.] 2014, no
review a trial court's ruling dismissing a case under
Rule 91a de novo. Walker v. Owens, 492 S.W.3d 787,
789 (Tex. App.-Houston [1st Dist.] 2016, no pet.). We
construe the pleadings liberally in favor of the plaintiff,
look to the plaintiff'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. Wooley v.
Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th
Dist.] 2014, pet. denied). In doing so, we apply the fair
notice standard of pleading. Id.; see also
Tex. R. Civ. P. 47(a); Roark v. Allen, 633 S.W.2d
804, 810 (Tex. 1982) ("A petition is sufficient if it
gives fair and adequate notice of the facts upon which the
pleader bases his claim."). Under this standard,
pleadings are sufficient if a cause of action can reasonably
be inferred from the facts pleaded. McNeil v. Nabors
Drilling USA, Inc., 36 S.W.3d 248, 250 (Tex.
App.-Houston [1st Dist.] 2001, no pet.).
Establishing a ...