Court of Appeals of Texas, Sixth District, Texarkana
BRIAN A. SMALE, Appellant
PAMELA ANN WILLIAMS, Appellee
Submitted: November 12, 2019
Appeal from the County Court at Law Cass County, Texas Trial
Court No. CCL18C571
Morriss, C.J., Burgess and Stevens, JJ.
E. STEVENS JUSTICE.
A. Smale, a beneficiary of the John and Gwen Smale Living
Trust, sued trustee, Pamela Ann Williams, for an accounting
of trust assets and asserted claims for breach of fiduciary
duty and fraud for failing to list and distribute all trust
assets. These claims have been repeatedly raised in three
other lawsuits filed by Smale in other courts. Smale v.
Williams, No. 06-18-00055-CV, 2019 WL 490136 (Tex.
App.-Texarkana Feb. 8, 2019, no pet.) (mem. op.). Because
these claims were compromised and settled in a previous
lawsuit, Williams moved to dismiss Smale's petition under
Rule 91a of the Texas Rules of Civil Procedure on grounds of
res judicata. See id. at *1-2 (affirming
another court's dismissal of Smale's claims under
trial court found that another court had previously dismissed
Smale's petition asserting the same claims raised here
after granting a similar Rule 91a motion filed by Williams
and concluded that Smale's claims were barred by res
judicata. As a result, the trial court granted
Williams' motion, dismissed Smale's petition, and
awarded Williams $5, 125.00 for attorney fees. Smale,
appearing pro se, argues that the trial court erred in
dismissing his lawsuit, awarding attorney fees against him,
and denying his motion for new trial.
that the trial court properly granted the Rule 91a dismissal,
that Smale failed to preserve his attorney fee complaint, and
that his complaints about the trial court's ruling on his
motion for new trial are waived. As a result, we affirm the
trial court's judgment.
The Rule 91a Dismissal Was Proper
is appropriate under Rule 91a 'if the allegations, taken
as true, together with inferences reasonably drawn from them,
do not entitle the claimant to the relief sought . . . [or]
no reasonable person could believe the facts
pleaded.'" City of Dallas v. Sanchez, 494
S.W.3d 722, 724 (Tex. 2016) (per curiam) (alteration in
original) (quoting Tex.R.Civ.P. 91a.1). Whether the dismissal
standard is satisfied depends "solely on the pleading of
the cause of action." Tex.R.Civ.P. 91a.6. "We
review the merits of a Rule 91a motion 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."
Sanchez, 494 S.W.3d at 724.
first point of error claims the trial court "abused
discretion, committed fraud upon the court, and perverted the
course of justice when [it] signed" the dismissal order.
As best we can discern, Smale argues that the court erred in
dismissing his case because (1) it did not rule within
forty-five days of the motion's filing; (2) while it
cites Rule 91a, the order does not specify whether it
dismissed the case because Smale's claims had "no
basis in law or in fact, or both"; (3) the trial court
failed to rule on Smale's motions to compel discovery
responses before dismissing his case; (4) Smale was not able
to present evidence in support of his claims because the
dismissal hearing, at which he appeared, was moved from its
original date to an earlier date; and (5) the trial court
erred in determining Smale raised the same claims in front of
other courts because (a) Williams "withheld the material
fact that she is not the successor trustee of the John and
Gwen Smale Living Trust . . . [(b)] she knew . . . .
Plaintiff Smale had revoked his consent of the April 18,
2016[, ] Mediated Settlement Agreement," (c) Smale's
petition contains a new demand for accounting, and (d) local
counsel allegedly misled the trial court when he stated a
prior court had entered a final judgment on these previously
Smale's first argument, Rule 91a.3(c) states that a
motion to dismiss must be "granted or denied within 45
days after the motion is filed." Tex.R.Civ.P. 91a.3(c).
However, "the 45-day period . . . is merely directory
rather than mandatory." Koenig v. Blaylock, 497
S.W.3d 595, 599 (Tex. App.-Austin 2016, pet. denied). A
plaintiff cannot show harm from the failure to follow the
deadline, which is meant to "promote the orderly and
prompt dismissal of baseless causes of action," because
"a plaintiff would have more time to formulate a
response to a dismissal argument, more time to amend a
petition to add facts or adjust legal theories, and more time
to consider whether to non-suit [a] case." Id.
We resolve Smale's first argument against him.
"[t]he Rules of Appellate Procedure require that the
appellant's brief 'contain a clear and concise
argument for the contentions made, with appropriate citations
to authorities and to the record.'" In re
D.V., No. 06-16-00065-CV, 2017 WL 1018606, at *7 (Tex.
App.-Texarkana Mar. 16, 2017, pets. denied) (mem. op.)
(quoting Tex.R.App.P. 38.1(i)). Smale cites no authority
showing that the trial court was required to specify in its
order whether the Rule 91a dismissal was granted because
Smale's petition had no basis in law or in fact, or both.
Rule 91a does not require such specification in its order.
Smale also fails to cite relevant authority showing that the
trial court was required to rule on his motions to compel
discovery before determining whether his claims were barred
by res judicata. We resolve Smale's second and third
complaints against him.
fourth complaint, Smale argues that he was not able to
present evidence concerning the merits of his case at the
dismissal hearing. Smale did not raise this issue below.
Moreover, "[e]xcept as required by 91a.7, the 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 pleading exhibits permitted by Rule
59." Tex.R.Civ.P. 91a.6. We resolve Smale's fourth
complaint against him.
turn to Smale's remaining complaint, arguing that the
trial court erred in determining Smale raised the same claims
in front of other courts. "In conducting our review, we
must 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. Here, Smale's
petition demanded an accounting from Williams and asserted
breach of fiduciary duty and fraud for her failure to include
two abbey crypts located at a Dallas-area cemetery in the
inventory of trust assets filed with the Dallas Court.
Smale's petition specifically stated that he had
previously demanded an ...