Summary
In Owings v. Kelly, No 07-20-00115-CV, 2020 WL 6588610, at *1 (Tex. App.-Amarillo Nov. 10, 2020, no pet.) (mem. op.), Kelly filed a Rule 91a motion to dismiss Owings's claims on the ground that they were barred by res judicata.
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No. 07-20-00115-CV
11-10-2020
LINDSEY OWINGS AND SUE OWINGS, APPELLANTS v. JIM KELLY, INDIVIDUALLY AND D/B/A WOOD MASTER HOMES, APPELLEE
On Appeal from the 12th District Court Walker County, Texas
Trial Court No. 1929400 , Honorable Donald Kraemer, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER, and DOSS JJ.
Lindsey and Sue Owings appeal from a final order dismissing their lawsuit against Jim Kelly, individually, and d/b/a Wood Master Homes. The trial court dismissed the suit in response to Kelly's Texas Rule of Civil Procedure 91a request encompassed within a "plea to the jurisdiction." Through it, Kelly argued that the trial court "does not have jurisdiction over this suit because the cause of action asserted by Plaintiffs has become moot." Allegedly, the "case [was] no longer live because underlying claims were tried to the Walker County Court at Law on May 16, 2017 in Cause No. 12376CV ('original suit') and a final judgment was entered on May 19, 2017 by the Honorable Tracy Sorensen rendering judgment for Jim Kelly." The Owingses' "current claims [arose] out of the same transaction or occurrence involving the same parties that was subject to a final hearing on the merits," according to Kelly. So, they purportedly "had an obligation to assert their claims in the form of counterclaims in the Original Suit." Because they did not, they "are barred from doing so now," he concluded. Upon convening a hearing on Kelly's motion to dismiss and directing him to provide a copy of the judgment omitted from the motion, the trial court dismissed the suit. Through two issues, the Owingses now assert that the trial court erred in granting the motion and erred in delaying its decision. We affirm.
Texas Rule of Civil Procedure 91a provides a means to dismiss baseless suits, that is, those lacking basis in law or fact. TEX. R. CIV. P. 91a; Bethel v. Quilling, 595 S.W.3d 651, 654 (Tex. 2020). Furthermore, a suit lacks basis in law if the allegations in the plaintiff's pleading, when taken as true, along with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Id. In turn, it lacks factual basis when "no reasonable person could believe the facts pleaded." Id. According to our Supreme Court, the factual inquiry is limited to the plaintiff's pleadings, Bethel, 595 S.W.3d at 656, for the Rule bars the trial court from considering evidence as part of the Rule 91a analysis. TEX. R. CIV. P. 91a.6; Bethel, 595 S.W.3d at 654. The same cannot be said of the legal inquiry, though. Bethel, 595 S.W.3d at 656. A defendant's pleadings may be considered in some instances. Those instances include, at the very least, situations where the defendant purportedly alleged an affirmative defense and consideration of the pleading "is necessary to make the legal determination of whether an affirmative defense is properly before the court." Id. Nevertheless, that the defensive pleading may then be considered does not mean its factual allegations are within the court's purview. We deem this true due to another passage in Bethel. The passage is that wherein the Court said "some affirmative defenses will not be conclusively established by the facts in a plaintiff's petition" and "[b]ecause Rule 91a does not allow consideration of evidence, such defenses are not a proper basis for a motion to dismiss." Id. If nothing else, those words indicate that we return to the plaintiff's pleading to ultimately decide whether the affirmative defense warrants dismissal. If this were not so, then there would be no reason for the Court to reference the "plaintiff's petition" in saying that some defenses will not be conclusively established by the facts in it. With that said, we turn to the issues at hand.
Though Kelly did not ascribe the moniker of res judicata to his description of why the Owingses' suit was "moot," that label best describes his contention. Simply put, he broached the affirmative defense of res judicata as a means to dispose of the lawsuit. Such was permissible under Bethel. So too did he convince the court to find the defense dispositive. Consequently, the burden thrust upon the Owingses on appeal consisted of illustrating how the trial court erred in accepting Kelly's invitation to rely on the defense. See Jetall Cos., Inc. v. JPG Waco Heritage, LLC, No. 07-20-00126-CV, 2020 Tex. App. LEXIS 4860, at *2 (Tex. App.—Amarillo June 30, 2020, no pet.) (mem. op.) (stating that one seeking reversal has the burden to illustrate its entitlement to it and, if the order under attack is based on multiple grounds, the appellant has the burden to establish why none of those grounds support the decision). Satisfying that burden required them to establish how application of the defense lacked basis in fact when tested against the allegations in their petition or basis in law. However, they said little about res judicata in their appellate brief. Indeed, the substance of their argument consisted of saying they alleged a valid cause of action, gave fair notice of it to Kelly, and sued within two years of discovering it. Then they proposed that "Rule 91a was never intended to resolve factual and legal issues related to an affirmative defense [i.e., res judicata] presented by a Defendant, especially when the Defendant carries the burden of proof, thus requiring evidence—that is not allowed in a Rule 91a Motion to Dismiss."
That the court requested evidence (i.e., the prior judgment) at the hearing is rather clear. Equally clear is that the Owingses failed to object to the request. So, any complaint they had regarding the court's request was and is waived. See Thomas v. Logic Underwriters, Inc., No. 02-16-00376-CV, 2017 Tex. App. LEXIS 10805, at *11-12 (Tex. App.—Fort Worth Nov. 16, 2017, pet. denied) (mem. op.) (overruling the Rule 91a complaint because it was not raised via objections or supplemental objections to the motions, at the hearing, or in a motion for new trial).
At first blush, we immediately note that they mistakenly suggest that affirmative defenses fall outside the scope of Rule 91a. Bethel, however, held otherwise.
Next, we find no description of the "factual and legal issues related to the affirmative defense" supposedly needing resolution. They leave us to guess at them.
Nor did they turn to their live petition and try to illustrate how its factual allegations somehow negated the application of res judicata. While a plaintiff may aver legally cognizable causes of action, that means nothing if recovery upon them are barred by an affirmative defense, and such an affirmative defense purportedly existed here. The Owingses did not argue otherwise, save for alluding to nondescript "factual and legal issues" needing resolution and mistakenly positing that affirmative defenses could not be considered in a Rule 91a setting.
Again, the burden lay upon the Owingses to illustrate error necessitating reversal. Having failed to address res judicata, describe how the defense was not conclusively established via their pleadings, discuss why its application was precluded by law, or proffer anything more than generalities unrelated to the grounds upon which the trial court apparently relied, they did not carry their burden. The situation before us likens to one involving inadequate briefing. Though they cited authority, the Owingses did not accompany it with substantive analysis honing in on pivotal issues. We mentioned above various pivotal issues necessitating comment. Others include the propriety of the trial court asking Kelly, at the hearing, for a copy of the final judgment entered in the earlier trial and the apparent absence of any mention about that judgment in the plaintiff's pleadings. Yet, it is not our job to develop arguments for the litigants, Sister Initiative, LLC v. Broughton Maint. Ass'n, Inc., No. 02-19-00102-CV, 2020 Tex. App. LEXIS 1243, at *85 (Tex. App.—Fort Worth Feb. 13, 2020, pet. denied) (mem. op.), or figure out ways which may lead to a better ending for them. Instead, we are "'constrained by what arguments appear in the parties' briefs.'" Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 125 (Tex. App.—El Paso 2018, no pet.) (quoting Hogg v. Lynch, Chappell & Alsup, P.C., 553 S.W.3d 55, 65 (Tex. App.—El Paso 2018, no pet.)). That means the gaps created by generalities given us by the Owingses must remain unfilled.
As for their contention regarding the untimeliness of the trial court's decision, we note that Rule 91a.3 specifies a 45-day period within which to rule, and the clock begins when the motion is filed. TEX. R. CIV. P. 91a.3(c). Interesting, that the time period has been construed as both mandatory, see, e.g., Marshall v. Enter. Bank, No. 10-16-00379-CV, 2018 Tex. App. LEXIS 7421, at *14 (Tex. App.—Waco Sept. 5, 2018, pet. denied) (mem. op.); Walker v. Owens, 492 S.W.3d 787, 790-91 (Tex. App.—Houston [1st Dist.] 2016, no pet.), and directory. See, e.g., Smale v. Williams, 590 S.W.3d 633, 636 (Tex. App.—Texarkana 2019, no pet.); Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied). But, because this appeal was transferred from the Waco Court of Appeals and the latter treats the period as mandatory, see Marshall, 2018 Tex. App. LEXIS 7421, at *14, we too must do so here. TEX. R. APP. P. 41.3 (requiring the transferee court to abide by the transferor court's precedent in cases of conflict). So too must we hold that the trial court violated the rule and erred by issuing its decision after the lapse of the 45-day period.
Nevertheless, before the error is reversible, the Owingses must show how it harmed them. Alsay, Inc. v. Gicon Pumps & Equip., Inc., No. 07-19-00302-CV, 2020 Tex. App. LEXIS 7597, at *12-13 (Tex. App.—Amarillo Sept. 17, 2020, no pet.) (mem. op.) (conditioning reversal on proof of harm and placing the burden on the appellant to show it). Furthermore, the harm contemplated involves the rendition of an improper judgment or an impediment to preparing one's case for appellate review. That is, reversal is improper unless the error in question 1) probably caused the rendition of an improper judgment or 2) probably impeded the appellant's ability to present the case to the reviewing court. See TEX. R. APP. P. 44.1(a). The effort by the Owingses to satisfy this standard consisted of arguing that they were gathering evidence by securing a report from an inspector in preparation for suit. Obtaining a pre-suit inspector's report before the trial court delayed in ruling on a post-suit motion hardly illustrates that the delay probably caused the rendition of an improper judgment or impeded some ability to present the case for review. We see no causative nexus between them, and the Owingses made no attempt to explain it.
Instead, we interpret their argument as insinuating that, because they were preparing their case, the trial court should have allowed them to proceed. Since it did not, then they were harmed somehow. But, a baseless suit is a baseless suit even though the plaintiff undertook pre-filing effort to discover evidence supporting it. A delay in recognizing its baselessness does not somehow make it less baseless. So, we find no harm arising from the delay. See Smale, 590 S.W.3d at 636-37 (quoting Koenig, 497 S.W.3d at 599, for its observation that a plaintiff cannot show harm from the failure to follow the deadline since the delay would afford him more time to formulate a response to a dismissal argument, to amend a petition to add facts, or adjust legal theories, and to consider whether to nonsuit the case).
Both of the issues before us are overruled. We also affirm the order of dismissal.
Brian Quinn
Chief Justice