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recognizing that "rule 91a has fairly strict time constraints" and "it does not include a 'good cause' exception"
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NO. 03-16-00326-CV
05-02-2018
William W. Ruth, Appellant v. James Albert Crow, Sandra Ford, The Ruby and Annie Smith Family Partnership, and Todd Steele, Appellees
ON MOTION FOR REHEARING FROM THE DISTRICT COURT OF SAN SABA COUNTY, 424TH JUDICIAL DISTRICT
NO. 9537, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
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, asserting claims for malicious prosecution, intentional infliction of emotional distress, and conspiracy. 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.
As background, Arma Lee Crow is Ruth's elderly grandmother, she had three children (James Crow, Sandra Ford, and Ruth's mother), and the Ruby and Annie Smith Family Partnership (the Partnership) consisted of Arma and her three children. Steele is an attorney who represented Arma and James Crow and possibly Ford and the Partnership; it is unclear the degree to which or the matters in which he represented the various parties. Because Arma and James Crow share a surname, we will refer to Arma by her first name. Ruth is an attorney; he was represented by an attorney in the trial court but represents himself pro se on appeal.
Ruth also asserted claims for false arrest, "concert of action and participatory and vicarious liability," fraudulent misrepresentation, and negligent misrepresentation. However, in his brief, Ruth only presents arguments as to malicious prosecution, conspiracy, and intentional infliction of emotional distress, concluding, "Due to space limitations, Appellant will not address each and every cause of action unless requested by the Court." Ruth has waived any error related to the dismissal of the unbriefed causes of action. See Premier Learning Acad., Inc. v. Texas Educ. Agency, 521 S.W.3d 439, 442 (Tex. App.—Austin 2017, pet. denied).
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. 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).
The trial court's dismissal orders recite that Ruth "present[ed] to the Court, after the conclusion of the hearing, a Plaintiff's Supplemental Original Petition, that the Court bench filed at 4:10 p.m., which cannot be considered under Rule 91a.5 because it was not filed at least 3 days prior to the date of the hearing." Ruth disputes when exactly the brief was filed, asserting that he filed it before the hearing. However, the precise timing of the filing is not important to the resolution of this appeal, nor does it effect whether the trial court was within its discretion to refuse to consider it.
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.).
Nor has 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.
Ruth also asserts that he should have been given additional time to take Arma's deposition, but the record does not reflect that Ruth told the trial court that he was unable to amend his petition without the deposition testimony. Ruth has waived any error related to his seeking to take Arma's deposition before responding to the motions to dismiss. See Tex. R. App. P. 33.1.
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. 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.").
Rule 91a was adopted in 2013 to comply with section 22.004(g) of the government code, which was adopted in 2011 and which required the supreme court to adopt rules "to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence." Tex. Gov't Code § 22.004(g).
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. See Tex. Penal Code § 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 arrest was again the subject of news reports in the area. Ruth alleged that as a result of the indictments and arrests, he and his family were humiliated and embarrassed, his reputation in the community was harmed, and his business dealings were virtually ruined.
We note that we have previously considered issues related to this family and to the sale of land referenced in Ruth's petition. See Ford v. Ruth, No. 03-14-00460-CV, 2016 WL 1305209 (Tex. App.—Austin Mar. 31, 2016, pet. denied) (mem. op.). However, as stated above, our review of the dismissal of Ruth's suit may not stray beyond the allegations in his original petition.
Ruth also asserted that the "deliberate underlying dishonesty in the prosecution of Ruth became even more evident when the prosecutor sought to charge Ruth with yet another crime arising from Defendant Pierce-Jones alleging that Ruth failed to report the abuse of his grandmother." However, there is no one named Pierce-Jones referred to elsewhere in the petition, nor does Ruth explain anything further about that criminal charge.
Ruth alleged that the barratry indictment arose "entirely" from his having petitioned the trial court in late October 2011 to appoint independent counsel for Arma, who was represented by Steele. Ruth alleged that he filed the petition because he believed that Steele and James Crow were financially exploiting and unlawfully manipulating Arma and exposing her to civil and criminal liability. Ruth stated that he acted solely to protect Arma's interests, did not seek to be appointed her attorney, and did not stand to receive any economic benefit as a result of his petition. As explanation for his belief that James Crow and Steele were exploiting Arma, Ruth asserted (1) that James Crow "had provided false and erroneous information to a lending institution in order to obtain a $110,000 loan against Arma Lee Crow's residence," and (2) that Steele "attempted to commit a fraud upon the U.S. Government and the Buyers to benefit his client, [James Crow], which exposed and subjected Arma Lee Crow to civil and criminal liability." Ruth explained that James Crow, who was incarcerated in a federal penitentiary on unspecified charges, had fraudulently failed to disclose to the federal government his ownership interest in the Partnership, and that Ruth had "spoiled [Steele's] attempt to sell [the Partnership's] property prior to the U.S. Government learning of" that ownership interest. In retaliation, Ruth contended, Steele arranged for Arma to provide "erroneous, if not, [sic] false information as to Ruth's parents not owning a 10.92 acre tract of land under their home where they have lived for more than 30 years" and made some kind of claim against Ruth's parents' property, but the type of claim and resolution thereof is never explained. However, Ruth stated, Arma testified in February 2014 that she did not wish to assert a claim against Ruth's parents' property, which "indicate[d] that the claim asserted by [Steele] was made by [Steele] . . . purely as a vindictive action sought by [Steele's] other client, [James Crow]."
Ruth alleged that although Steele testified that he did not have anything to do with the criminal charges, he was in fact "the primary facilitator of the false charges and evidence presented to the Grand Jury" that indicted Ruth for barratry. Ruth contended that Steele procured from Arma a false affidavit that was made the "primary" basis for the barratry charges against Ruth, but his petition does not explain the contents of that affidavit. He alleged that the evidence would show that "the false affidavit of Arma Lee Crow was notarized by [Steele's] legal assistant, Steele also provided false information to the buyers with the tacit approval of the other defendants if not outright, that the US government had given approval to [James Crow] to sell the San Saba property.[] Steele probably drafted and authored the false affidavit." Ruth stated that Arma later testified "that she did not even know about the affidavit, the statements contained therein were false and if she had been informed of it[s] intent she wouldn't have signed it." Ruth asserted that Steele "was the only witness to testify to the Grand Jury other than Texas Ranger Danny Crawford who interviewed no one." Finally, Ruth alleged that Steele "provided the false affidavit of [James Crow] which [Steele] knew at the time that [James Crow] had lost all legal right to the San Saba property."
The "San Saba property" is the property that Steele and James Crow allegedly attempted to sell before the government learned of James Crow's ownership interest in the Partnership.
As for his causes of action, we quote Ruth's assertions below in full:
• Malicious prosecution a. Criminal prosecution was commenced against the plaintiff; b. Defendants initiated and or procured the prosecution; c. The prosecution was terminated in the plaintiffs favor; d. The plaintiff was innocent of the charge; e. Defendants did not have probable cause to initiate or procure the prosecution; f. Defendants acted with malice; g. Plaintiff suffered damage as a result of the prosecution.
• Intentional infliction of emotional distress a. Plaintiff is a person; b. Defendants acted intentionally or recklessly; c. The emotional distress suffered by the plaintiff was severe; d. The defendant's conduct was extreme and outrageous; e. The defendants conduct proximately caused the plaintiffs emotional distress; f. No alternative cause of action would provide a remedy for the severe emotional distress.
• Conspiracy The defendants were a member of a combination of two or more persons. a. the object of the combination was to accomplish b. an unlawful purpose or a lawful purpose by unlawful means; c. the members had a meeting of the minds of the object and/or course of action.
Discussion
Ruth sued appellees for malicious prosecution, conspiracy, and intentional infliction of emotional distress. Thus, he was required to plead facts that, along with reasonable inferences, could support all of the elements of each cause of action as to each appellee. See Sanchez, 494 S.W.3d at 724. To state a cause of action for a "malicious criminal prosecution claim," Ruth was required to show (1) the commencement of criminal proceedings against him; (2) that was initiated or procured by appellees; (3) termination of the proceeding in Ruth's favor; (4) Ruth's innocence; (5) a lack of probable cause for the proceeding; (6) malice in filing the charge; and (7) damages to Ruth. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). To show conspiracy, he had to allege facts that could show "(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result." Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Finally, to support a claim for intentional infliction of emotional distress, Ruth had to allege facts tending to show that appellees acted intentionally or recklessly, that their conduct was extreme and outrageous, that their actions caused him emotional distress, and that his distress was severe. See Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006). However, "[w]here the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available." Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
Initially, we note that Ruth never specified in his petition what unlawful purpose was the basis of his claim for conspiracy or what extreme and outrageous conduct by appellees was the basis of his claim for intentional infliction of emotional distress; he merely recited the elements of those claims. Certain portions of his briefing seem to point to the alleged fraud related to the San Saba property or the unspecified claim leveled against Ruth's parents' property as possible bases for the claims, but based on Ruth's petition and briefing overall, we conclude that the alleged bad acts underlying all of his claims against appellees are those that led to Ruth being charged with barratry.
Other than mentioning that he was indicted for perjury and an unspecified third criminal charge, Ruth does not explain anything about those charges or explain whether they were resolved.
Ruth points to the following allegations as tending to show that appellees instituted or procured the barratry charge and lacked probable cause to do so: Steele "provided information to the buyers with the tacit approval of the other defendants if not outright, that the US government had given approval to [James Crow] to sell the San Saba property"; Steele denied having had anything to do with the criminal charges but was the "primary facilitator of the false charges and evidence" presented to the grand jury; Arma's "false affidavit" was notarized by Steele's legal assistant; "Steele probably drafted and authored the false affidavit"; Arma testified that she did not know about the "false affidavit," that its statements were false, and that if she been told of its intended use, she would not have signed it; Arma's affidavit was the "primary" evidence used "to mislead the grand jury for purposes of facilitating the barratry indictment" against Ruth; Steele and Texas Ranger Danny Crawford were the only witnesses before the grand jury; and Steele presented a false affidavit by James Crow at a time Steele knew that James Crow had lost his legal rights to the San Saba property. As for the element of malice, Ruth points to the same allegations, as well as his allegations that: he petitioned for a new attorney to represent Arma because of Steele's representation of James Crow and their attempt to "commit a fraud upon the U.S. Government and the Buyers to benefit [James Crow], which exposed and subjected [Arma] to civil and criminal liability"; Arma "provided erroneous, if not, false information as to Ruth's parents not owning a 10.92 acre tract of land under their home where they have lived for more than 30 years"; and the unspecified claim against Ruth's parents' property was asserted by Steele in retaliation for Ruth having "spoiled" the attempted sale of the Partnership's property before the government learned of James Crow's ownership interest in the Partnership. Ruth argues that those allegations and the reasonable inferences that can be drawn from them were sufficient to support a claim for malicious prosecution. We disagree.
As explained by our sister courts in discussing the application of rule 91a, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. denied) (cleaned up, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see Wooley, 447 S.W.3d at 76. Threadbare and conclusory statements, however, are precisely what were contained in Ruth's petition.
The appellate courts that first discussed rule 91a after its adoption in 2013 looked to federal courts' application of federal rule 12(b)(6). See, e.g., Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754-55 (Tex. App.—Beaumont 2014, pet. denied); see also Fed. R. Civ. P. 12(b)(6) (party may seek dismissal for "failure to state a claim upon which relief can be granted").
First, Ford and the Partnership were barely mentioned in the petition, and although Ruth asks that we infer that they were involved in the bringing of criminal charges, nothing in his petition supported such inferences. For instance, Ruth's conclusory and unsupported assertion that in providing false information about the sale of the Partnership's property, Steele acted with the "tacit approval of the other defendants" cannot without more lead to an inference that Ford or the Partnership were involved in any misrepresentations related to the land sale, much less that they initiated or procured Ruth's prosecution, lacked probable cause to do so, or acted with malice. See Richey, 952 S.W.2d at 517 (elements of malicious-prosecution claim). Similarly, although Ruth alleged that James Crow was complicit in the attempted fraud upon the federal government, the petition did not allege facts tending to show that James Crow was involved in the preparation of the "false affidavit" or in somehow bringing that affidavit to the attention of law enforcement.
As for Steele, Ruth alleged that Steele procured Arma's "false affidavit," but he provided no information about what that affidavit said or how it led to Ruth being charged with barratry, nor did Ruth allege that the legal proceedings were resolved in his favor, and we disagree that in the absence of actual allegations, we may infer such facts because Ruth pled that the elements of barratry were not applicable and asserted a claim for malicious prosecution. In addition to Steele's testimony before the grand jury, the contents of which are never described, Ruth stated that a Texas Ranger testified. Thus, to infer that there was evidence of a lack of probable cause for the criminal proceeding would require us to conclude that the Texas Ranger and the prosecutor who presented the case to the grand jury were negligent in their investigations, and Ruth pled no facts that could support such an inference. Ruth's petition provided no information about the contents of the "false affidavit," the substance of the barratry charge, or how the two were related other than the simple assertion that they were, and does not allow sufficient inferences to support a malicious-prosecution claim against Steele.
We decline to view Ruth's bald assertion that the ranger "interviewed no one," unsupported by further allegations, explanation, or evidence, as leading to an inference that the ranger was complicit in Steele's alleged campaign against Ruth.
As for his claim for conspiracy and intentional infliction of emotional distress, Ruth points to the following assertion in his petition as alleging a conspiracy among appellees:
Arma Lee Crow testified in her February 25th, 2014 deposition that she did not even want to assert a claim to the 10.92 acres the Ruths' [sic] purchased from her in 1978 which indicates that the claim asserted by [Steele] on or about October 25, 2011 was made by [Steele] (against the wishes of Arma Lee Crow) and purely as a vindictive action sought by [Steele's] other client, [James Crow] despite [James Crow] having no ownership interest in the property.That allegation did not refer to the Partnership or to Ford, and although Ruth asserts on appeal that "it is evident" from his pleaded facts that all of the appellees (1) acted "out of retaliation and intended to hurt Ruth by having him falsely charged with a crime," and (2) "did not act independently of each other and were aware of the false Affidavit" used "as the sole basis to procure the barratry charge," we find no allegations from which we might infer that Ford or the Partnership were involved. Further, and more important, as noted earlier, although Ruth points to the bringing of criminal charges as the unlawful object of the conspiracy and as the extreme and outrageous conduct leading to the infliction of emotional distress, we have already noted that the petition did not support an inference that Steele or James Crow, through Steele, procured the criminal charges, lacked probable cause, or acted with malice.
Ruth argues in his appellate brief that unlawful acts by all of the appellees were "adequately pled in paragraph 27-35 as to Steele testifying specifically that he did not represent Arma Lee Crow in the suit which led to the barratry indictment but nevertheless, filed a complaint against Ruth directly with the district attorney which violated the policy and procedure of the District Attorney's office, and provided the false Affidavit of Arma Lee Crow to procure the barratry charge against Ruth." However, Ruth's original petition did not allege that Steele testified that he did not represent Arma, that Steele filed a complaint against Ruth, or that anything about such a complaint violated any policies or procedures.
Ruth's pleadings simply did not contain enough information about the barratry prosecution, much less the other criminal charges, to support his causes of action. Taking all of Ruth's allegations as true, there is no support in the record of at least one element of each of Ruth's claims. Therefore, the trial court did not err in dismissing Ruth's claim for malicious prosecution, conspiracy, and intentional infliction of emotional distress pursuant to rule 91a. See Jones v. Shipley, 508 S.W.3d 766, 770-71 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (allegations of threatening words and conduct could not support claim for assault by threat of imminent bodily injury); Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 186-87 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (petition recited elements of fraud claim but did not allege misrepresentations or concealed facts that induced contract; trial court properly dismissed claim supported only by threadbare recital of elements of claim without reference to facts).
Should the trial judge have recused himself?
Finally, we consider Ruth's arguments related to the trial judge's decision not to recuse himself. In Ruth's motion for new trial, he argued for the first time that the trial judge should have recused himself because he had represented a water district in an "adversarial role against Plaintiff Ruth" before becoming a judge. Ruth also asserted that the judge "had had communications with third parties regarding the very facts which were the gravamen of the Plaintiff's complaints," pointing to an email sent to the judge by Michael Bradle two days before the hearing on the motions to dismiss, which stated:
Ruth's motion for new trial stated that he had been blind-copied on the email sent to the judge and that he asked the judge about the email during the hearing, but he does not cite to anything in the record showing that such a discussion occurred. Further, Ruth asserts that "[o]nly after Appellant Ruth filed his Affidavit in Support of New Trial on December 21, 2015 did [the trial judge] acknowledge having both received the November 18, 2015 email and having prior communications with Michael Bradle as to the specific facts and issues of the case which for obvious reasons raises concern; especially, in light of the predisposed opinions and prejudices expressed to Bradle by [the trial judge] which obligated Bradle to inform [the trial judge] and Ruth as to the matter when he learned that Ruth's case was before [the trial judge]." However, none of those allegations are supported by the record.
I heard that you are the judge on the case involving William Ruth et al versus Dr. [James] Crow et al in San Saba County. If you remember when we met at your office
over some of the LISD issues awhile back, prior to our meeting with other parents I mentioned some of these same people to you because at that time there was a judicial investigation in Brown County and I mentioned Dr [James] Crow went to federal prison etc. I also told you that Judge Griffin had asked me about you. He handled a fraudulent land transfer etc. that benefitted Dr. [James] Crow. So this places you in a potential conflict position and I didn't want you to be caught off guard, and frankly, never thought these issues would be in San Saba County district court either, and prior to your run for judge. I am just making you aware of these issues because I support you and don't want you to be compromised.Ruth's motion to recuse was referred to another judge, who denied the motion.
Although Ruth asserts on appeal that "based upon information obtained, [the trial judge] referenced his friendship with one of the Appellees and stated specifically that he highly questioned the allegations made against this particular Appellee, or words to this effect," the record does not support that vague and unexplained contention. Further, our review of the reporter's record from the hearing does not show an apparent bias against Ruth or his attorney.
Ruth has provided no case law to support the implied conclusion that the trial judge should have recused himself sua sponte because as an attorney in private practice, he was aligned in an unrelated matter against Ruth, who later appeared before him. Nor has he provided sufficient briefing or a record to show that the trial court had information actually related to this case, much less that such information impaired his ability to be impartial. See, e.g., Doss v. Robinson, No. 04-16-00560-CV, 2017 WL 2124488, at *4 n.4 (Tex. App.—San Antonio May 17, 2017, no pet.) (mem. op.) (refusing to consider factual assertions related to recusal of judge made in brief that were not supported by record); Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 88 (Tex. App.—El Paso 2005, no pet.) (party must file verified motion to recuse before trial or hearing). We overrule Ruth's arguments related to the trial judge's refusal to recuse himself sua sponte.
Conclusion
Having reviewed the record and Ruth's complaints, we affirm the trial court's orders of dismissal pursuant to rule 91a.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed on Motion for Rehearing Filed: May 2, 2018