Laura Leticia Zepeda Vasquez, Individually and on Behalf of the Estate of Jose Abraham Vasquez,Jr. v. Legend Natural Gas III, LP Legend Natural Gas, LLC Lewis Energy Group, LP And Lewis Petro Properties, Inc ( 2015 )

ACCEPTED
04-14-00899-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/29/2015 3:15:15 PM
KEITH HOTTLE
CLERK
No. 04-14-00899-CV
Court of Appeals, Fourth District FILED IN
4th COURT OF APPEALS
San Antonio, Texas SAN ANTONIO, TEXAS
04/29/2015 3:15:15 PM
KEITH E. HOTTLE
Clerk
Laura Leticia Zepeda Vasquez, individually and behalf of the Estate of Jose
Abraham Vasquez, Jr.
Appellant
vs.
Legend Natural Gas III, LP, et al.
Appellees
Appeal from the 81st Judicial District Court, LaSalle County, Texas
No. 14-07-00119-CVL
BRIEF OF APPELLEES
J. Joseph Vale (jvale@atlashall.com)
State Bar No. 24084003
E. Michael Rodriguez (mrodriguez@atlashall.com)
State Bar No. 00791553
Erin A. Hudson (ehudson@atlashall.com)
State Bar No. 24059978
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
Attorneys for Appellees
Enterprise Products Holdings LLC and Enterprise Products Co.
April 29, 2015
Identity of Parties and Counsel
Enterprise Products Holdings, LLC, and Enterprise Products Company file
this supplement to the plaintiff’s Identity of Parties and Counsel as follows,
pursuant to Rule 38.2(a)(1)(A) of the Texas Rules of Appellate Procedure:
Party designation Party name Attorney/address
Defendants/appellees Enterprise J. Joseph Vale (appellate)
Products jvale@atlashall.com
Holdings LLC E. Michael Rodriguez
and Enterprise mrodriguez@atlashall.com
Products Co. Erin A. Hudson
ehudson@atlashall.com
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
2
Table of Contents
Identity of Parties and Counsel ..................................................................................2
Index of Authorities ...................................................................................................5
Statement Regarding Oral Argument ........................................................................8
Issue Presented ...........................................................................................................9
Statement of Facts ....................................................................................................11
1. Lawsuit, severance, and dismissal ......................................................11
2. Vasquez’s allegations ..........................................................................11
2.1. Defendants ................................................................................12
2.2. Krueger Road ............................................................................12
2.3. Defendants’ knowledge prior to operating the wells ................ 12
2.4. Defendants’ use of Krueger Road .............................................13
2.5. The accident ..............................................................................13
2.6. Negligence theory .....................................................................14
Summary of the Argument.......................................................................................15
Standard of Review ..................................................................................................16
Argument..................................................................................................................17
I. Vasquez’s claim has no basis in law. ..................................................17
A. Rule 91a is an appropriate vehicle for dismissal when a
defendant owes no duty as a matter of law. ..............................17
B. The defendants owed no duty to act to prevent harm to
Jose Vasquez as a matter of law. ..............................................18
i. The defendants did not actively create a dangerous
situation...........................................................................19
ii. The defendants have no legal ability to comply
with Vasquez’s proposed duty........................................26
iii. Factors of foreseeability and social utility dictate
that no duty be imposed on those who contribute to
gradual degradation of public roads. ..............................28
3
II. Conclusion ...........................................................................................29
Prayer .......................................................................................................................30
Certificate of Rule 9.4(i) Compliance......................................................................31
Certificate of Service ...............................................................................................32
Appendices ...............................................................................................................34
4
Index of Authorities
Cases
Abalos v. Oil Dev. Co. of Tex.,
544 S.W.2d 627 (Tex. 1976) ......................................................................... 20, 22
Adams v. Grapotte,
69 S.W.2d 460 (Tex. Civ. App.—Eastland 1934)................................................21
Amaro v. Wilson Cnty.,
398 S.W.3d 780 (Tex. App.—San Antonio 2011, no pet.) ..................................27
Barras v. Monsanto Co.,
831 S.W.2d 859 (Tex. App.—Houston [14th Dist.] 1992, writ denied) ..............19
Bird v. W.C.W.,
868 S.W.2d 767 (Tex. 1994) ................................................................................29
Buchanan v. Rose,
159 S.W.2d 109 (Tex. 1942) ........................................... 19, 20, 22, 23, 25, 28, 29
City of San Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) ..................................................................................27
Courville v. Home Transp. Co.,
497 S.W.2d 788 (Tex. App.—Beaumont 1973, writ ref’d n.r.e.) ................. 20, 23
DeVoll v. Demonbreun,
No. 04-14-00116-CV, 2014 Tex. App. LEXIS 13865 (Tex. App.—San
Antonio Dec. 31, 2014, no pet. h.) ...........................................................11, 16, 18
Dudley & Orr v. Jacobs,
257 S.W. 315 (Tex. Civ. App. 1923, writ dism’d) ...............................................25
Elliott v. State,
818 S.W.2d 71 (Tex. App.—San Antonio 1991, writ denied) .............................22
Gatten v. McCarley,
391 S.W.3d 669 (Tex. App.—Dallas 2013, no pet.) ............................................17
5
Grapotte v. Adams,
111 S.W.2d 690 (Tex. 1938) ....................................................... 20, 21, 23, 28, 29
Kehler v. Eudaly,
933 S.W.2d 321 (Tex. App.—Fort Worth 1996, writ denied) .............................18
Kroger Co. v. Elwood,
197 S.W.3d 793 (Tex. 2006) (per curiam) ...........................................................19
Naumann v. Windsor Gypsum, Inc.,
749 S.W.2d 189 (Tex. App.—San Antonio 1988, writ denied) ...........................22
New Tex. Auto Auction Servs., L.P. v. De Hernandez,
249 S.W.3d 400 (Tex. 2008) ................................................................................22
Rocha v. Faltys,
69 S.W.3d 315 (Tex. App.—Austin 2002, no pet.)..............................................22
SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347 (Tex. 1995) ......................................................................... 22, 24
Statutes
Tex. R. Civ. P. 91a ...................................................................................................17
Tex. Transp. Code Ann. § 251.003 ..........................................................................26
Tex. Transp. Code Ann. § 251.016 ..........................................................................26
Tex. Transp. Code Ann. § 251.153 ..........................................................................25
Tex. Transp. Code Ann. § 621.301 ..........................................................................25
Other Authorities
Tex. Att’y Gen. Op. No. GA-0430 (2006)...............................................................28
Tex. Att’y Gen. Op. No. GA-0693 (2009)........................................................ 27, 28
Tex. Att’y Gen. Op. No. GA-1013 (2013)...............................................................27
Tex. Att’y Gen. Op. No. JM-1241 (1990) ...............................................................28
6
Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure
and Review, 33 Rev. Litig. 469 (2014).................................................................18
7
Statement Regarding Oral Argument
This relatively simple case involves the plaintiff’s failure to allege a claim
for negligence as a matter of law. No complicated questions of law or fact are
presented. For this reason, the Enterprise Defendants 1 do not believe oral
argument will be helpful to the Court. If, however, the Court decides to grant oral
argument, the Enterprise Defendants will attend and present argument.
1
The “Enterprise Defendants” are Enterprise Products Holdings LLC and Enterprise Products
Co.
8
Issue Presented
1. Did the trial court properly rule that the defendants owed no duty to
act to prevent harm to others when the defendants allegedly caused the condition of
a public road to degrade over time by driving on the road? See Argument § I.
9
No. 04-14-00899-CV
Court of Appeals, Fourth District
San Antonio, Texas
Laura Leticia Zepeda Vasquez, individually and behalf of the Estate of Jose
Abraham Vasquez, Jr.
Appellant
vs.
Legend Natural Gas III, LP, et al.
Appellees
Appeal from the 81st Judicial District Court, LaSalle County, Texas
No. 14-07-00119-CVL
BRIEF OF APPELLEES
Enterprise Products Holdings, LLC, and Enterprise Products Company,
appellees herein, file this Brief pursuant to Rule 38 of the Texas Rules of Appellate
Procedure. Parties will be referred to as in the trial court or by name. References
to the Clerk’s Record will be to CR{page}, and references to the Supplemental
Clerk’s Record will be to SuppCR{page}. References to the Appendices will be to
App{tab}. The Reporter’s Record is not cited.
Statement of Facts
1. Lawsuit, severance, and dismissal. On July 21, 2014, Laura Vasquez
filed a lawsuit against several defendants2 claiming that the defendants had
degraded the condition of a public road over time and that the road’s condition had
caused the death of Jose Vasquez. CR1, 4–6 (original petition). 3 The trial court
granted some defendants’ Rule 91a motions to dismiss Vasquez’s claims
concerning the condition of the road and severed Vasquez’s remaining claim
concerning a vehicle allegedly present at the time of Vasquez’s death. SuppCR7
(order).4 In the written order, the trial court stated that Vasquez’s negligence
theory had no basis in law. SuppCR7–8. This appeal followed. SuppCR1.5
2. Vasquez’s allegations. The question on appeal is whether the
defendants owed a duty to affirmatively act to prevent harm to users of a public
road when the defendants allegedly caused the condition of the road to degrade
over time. See Appellant’s Brief 4. To answer this question, the Court must
accept as true the factual allegations in the plaintiff’s petition. DeVoll v.
2
Lewis Energy Group, LP, Lewis Petro Properties, Inc., Rosetta Resources Operating LP,
Legend Natural Gas III, LP, Legend Natural Gas, LLC, Virtex Holdings, LLP, Virtex Operating
Company, Inc., Enterprise Products Holdings LLC, Enterprise Products Company, and XTO
Energy, Inc. CR1, 79.
3
See also CR79 (first amended petition – live pleading).
4
Though only some defendants filed motions to dismiss, the trial court ruled that the dismissal
was applicable to all defendants. SuppCR7–8. Vasquez has not challenged the order’s
application to the non-movant defendants on appeal.
5
Vasquez prematurely filed a notice of appeal from a prior order. CR147 (order), 159 (notice of
appeal). Vasquez amended her notice of appeal after the trial court signed a new order that was
final and appealable. SuppCR1 (amended notice of appeal), 7 (new order).
11
Demonbreun, No. 04-14-00116-CV, 2014 Tex. App. LEXIS 13865, at *4 (Tex.
App.—San Antonio Dec. 31, 2014, no pet. h.); see also, infra, Standard of
Review. Vasquez’s First Amended Petition (the live pleading) alleges the
following facts. CR79. 6
2.1. Defendants. Vasquez alleges that the defendants are owners or
operators of oil or gas wells in the area around Krueger Road in La Salle County.
CR81. However, Enterprise Products Holdings LLC and Enterprise Products
Company deny owning or operating any oil or gas wells in this area.
2.2. Krueger Road. Krueger Road is a public road both in the sense
that it is open to the public’s use and that it is maintained and repaired by La Salle
County using public funds. CR81–82.
2.3. Defendants’ knowledge prior to operating the wells. According
to Vasquez, before the defendants’ began operating their wells, the defendants
knew several facts concerning how much they would need to use Krueger Road to
operate the wells. CR81–82. Specifically, the defendants allegedly knew:
• “it takes almost 1,200 loaded trucks to bring one oil or gas well into
production,”
• “over 350 trucks are required per year for maintenance of an oil or gas well,”
• “almost 1,000 trucks are needed every five years to re-fracture a well,”
6
The defendants generally deny the allegations in this pleading and assert other defenses. CR34
(Legend defendants’ original answer), 42 (Enterprise defendants’ original answer), 51 (Lewis
defendants’ original answer and counterclaim), 56 (XTO’s original answer), 93 (Virtex
Operating Company, Inc.’s first amended original answer), 105 (Virtex Holdings, LLP’s first
amended original answer), 115 (Rosetta’s first amended original answer).
12
• “the service life of roads in areas around wells is reduced more than 30
percent a year due to natural gas well operations,” and
• “infrastructure costs for counties to repair roads near wells far outpace a
county’s ability to raise revenue from local property tax, even with the
increasing tax base created by the wells.”
CR81–82.
2.4. Defendants’ use of Krueger Road. Vasquez alleges that the
defendants “created a dangerous condition for all drivers on Krueger Road” by
sending “numerous loaded and unloaded trucks up and down Krueger Road.”
CR82. The defendants were aware that the county was not able to repair the road
to match the defendants’ use of it. CR82. At one point, Krueger Road was a safe,
paved road for the public. CR83. Over time, the road has degraded into a dirt road
with potholes, bumps, crevices, and no markings left to determine the proper lanes
of travel. CR83. The defendants’ vehicles travel on Krueger Road “at a high rate
of speed” in “heavy and maybe overweight vehicles.” CR83 (emphasis added).
The defendants did not fix the road and/or provide any warnings to drivers on
Krueger Road. CR82.
2.5. The accident. On August 4, 2012, Jose Vasquez tragically died
in an automobile accident on Krueger Road. CR82. According to Laura Vasquez,
Jose lost sight of the road due to a cloud of dust. CR82. Laura alleges that the dust
13
was caused, in part, by the dangerous condition of the road. CR82.7 Unable to see
where the road was, Jose drove into a ditch and flipped his vehicle. CR82.
2.6. Negligence theory. Vasquez admits that the defendants’ use of
the road was lawful except in some possible instances of negligence. CR83.
Vasquez alleges that the defendants’ trucks travel at a “high rate of speed” but does
not claim that they were driven unlawfully fast. CR83, 85. 8 Vasquez further
alleges that the trucks were heavy but only notes that it is possible that some of the
trucks were “maybe” or “possibly” overweight. CR83, 85. Nonetheless, Vasquez
seeks to hold the defendants liable under a negligence theory claiming that they
created a dangerous condition without fixing the road, attempting to prevent
injuries, or providing any warnings. CR83, 85. Vasquez also pleads gross
negligence. CR86.
7
Laura also attributes the dust to the alleged negligent driving of a Lewis Energy truck, but the
trial court severed this theory into a separate lawsuit. CR82, SuppCR8.
8
Contrary to Vasquez’s brief, Vasquez’s sole allegation of “reckless” driving occurred in the
severed cause involving the Lewis Energy truck allegedly at the scene of the accident. CR84;
Appellant’s Brief 5 (citing CR83 for the term “recklessly” where the term “reckless” only
appears on CR84 concerning the Lewis Energy truck). That theory is not subject to this appeal.
14
Summary of the Argument
As the basis for imposing a duty on the defendants, Vasquez argues that the
defendants created a dangerous situation. This is simply not true. Mere
contribution to the wear and tear of a public road by lawful use with some possibly
overweight vehicles does not constitute active creation of a dangerous situation
under Texas law. See Argument § I.B.i.
Moreover, the defendants cannot even comply with Vasquez’s proposed
duty to repair or warn. The county undisputedly has control of maintenance of the
road and of posting warning signs on the roadside. The defendants’ inability to
comply demonstrates why the trial court correctly held that the defendants owed no
duty as a matter of law. See Argument § I.B.ii.
Finally, the law cannot impose a duty to repair or warn on those who
contribute to the gradual degradation of the road’s condition because such a duty
would expose the public to too much liability for driving. Moreover, it is not
foreseeable that harm will follow merely by driving on the road and contributing to
the road’s wear and tear. See Argument § I.B.iii.
For these reasons, the trial court properly dismissed this case as having no
basis in law, and this Court should affirm the trial court’s judgment.
15
Standard of Review
A trial court’s ruling on a Rule 91a motion to dismiss presents a question of
law that is subject to de novo review on appeal, based on the allegations of the live
petition in question and any attachments thereto. DeVoll v. Demonbreun, No. 04-
14-00116-CV, 2014 Tex. App. LEXIS 13865, at *4 (Tex. App.—San Antonio Dec.
31, 2014, no pet. h.).
16
Argument
I. Vasquez’s claim has no basis in law.
The sole question on appeal is whether the defendants had a duty to take
actions to prevent harm to Jose Vasquez on Krueger Road. Appellant’s Brief 4.
They owed no such duty, and as a result, the trial court properly dismissed the
plaintiff’s claim under Rule 91a.
A. Rule 91a is an appropriate vehicle for dismissal when a defendant
owes no duty as a matter of law.
Implemented in 2013, Rule 91a permits a court to dismiss a cause of action
at an early stage in a lawsuit on the pleadings and without evidence for having no
basis in law or in fact. See Tex. R. Civ. P. 91a. In the present case, the trial court
dismissed the case under Rule 91a for having no basis in law. SuppCR7–8. By
rule, a claim has no basis in law “if the allegations, taken as true, together with
references reasonably drawn from them, do not entitle the claimant to the relief
sought.” Tex. R. Civ. P. 91a.1.
Though Rule 91a is fairly new to Texas civil procedure, Texas courts have
long had the power to dismiss negligence claims on the pleadings when the
defendant owed no duty to the plaintiff as a matter of law. See, e.g., Gatten v.
McCarley, 391 S.W.3d 669, 673–77 (Tex. App.—Dallas 2013, no pet.) (dismissing
negligence claim for no duty via special exception to pleadings); Kehler v. Eudaly,
17
933 S.W.2d 321, 325, 332 (Tex. App.—Fort Worth 1996, writ denied) (dismissing
negligence claims for no duty via summary judgment on the pleadings). Since
Rule 91a presents a question of law, cases that find no duty as a matter of law are
instructive for the present case’s Rule 91a analysis. See DeVoll v. Demonbreun,
No. 04-14-00116-CV, 2014 Tex. App. LEXIS 13865, at *4 (Tex. App.—San
Antonio Dec. 31, 2014, no pet. h.) (explaining that Rule 91a presents a question of
law); see also Timothy Patton, Motions to Dismiss Under Texas Rule 91a:
Practice, Procedure and Review, 33 Rev. Litig. 469, 482–86 (2014)/TabE (arguing
that summary judgment on the pleadings and special exceptions cases should be
applicable to Rule 91a dismissal for no basis in law). 9
B. The defendants owed no duty to act to prevent harm to Jose
Vasquez as a matter of law.
To prove her negligence claim, Vasquez must show that the defendants had
a duty to take actions to prevent harm to Jose Vasquez. Kroger Co. v. Elwood, 197
9
Patton explains:
Actually, there's no need to search for an already-existing rule or statute using the exact
phrase “no basis in law” to determine the meaning of “no basis in law” under Rule 91a.
For decades, Texas trial and appellate courts have resolved cases on the pleadings by
deciding that the plaintiff's petition did not state a valid cause of action under Texas law.
They have done so by using two procedures: special exceptions and motions for
summary judgment.
Supra, 33 Rev. Litig. 469, 482.
18
S.W.3d 793, 794 (Tex. 2006) (per curiam). 10 Whether a duty exists is a threshold
inquiry and a question of law; liability cannot be imposed if no duty exists. Id.
The defendants in the present case had no duty to act as a matter of law because
(1) the defendants did not actively create a dangerous situation, (2) the defendants
do not even have the legal ability to comply with the proposed duty, and
(3) foreseeability and social utility factors dictate that no duty be imposed to
protect others from gradual degradation of a public roadway. As a result, the trial
court’s dismissal of the plaintiff’s cause of action must be affirmed.
i. The defendants did not actively create a dangerous
situation.
The law does not generally impose a duty on parties to take affirmative
action to prevent harm to others. See Buchanan v. Rose, 159 S.W.2d 109, 110
(Tex. 1942); see also Barras v. Monsanto Co., 831 S.W.2d 859, 865 (Tex. App.—
Houston [14th Dist.] 1992, writ denied) (“Mere knowledge of a dangerous
situation imposes only a moral duty to warn or render aid, not a legal duty”). The
Supreme Court has explained:
[I]t may be said generally, as a matter of law, that a mere bystander
who did not create the dangerous situation is not required to become
the good Samaritan and prevent injury to others. Under the last rule, a
bystander may watch a blind man or a child walk over a precipice, and
yet he is not required to give warning. He may stand on the bank of a
10
To establish negligence, Vasquez must establish a duty, a breach of that duty, and damages
proximately caused by the breach. Elwood, 197 S.W.3d at 794.
19
stream and see a man drowning, and although he holds in his hand a
rope that could be used to rescue the man, yet he is not required to
give assistance. He may owe a moral duty to warn the blind man or to
assist the drowning man, but being a mere bystander, and in nowise
responsible for the dangerous situation, he owes no legal duty to
render assistance.
Buchanan, 159 S.W.2d at 110. As Vasquez recognizes, an exception exists when a
party, either through negligence or not, creates a dangerous situation. See id.;
Appellant’s Brief 9–10. Under this exception, however, “creation” does not
merely entail being an actor in a causal chain that results in a dangerous situation.
See Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 632–33 (Tex. 1976)
(explaining that a driver may technically cause a dangerous situation on a public
road—“in the sense that he had something to do with the danger”—without
creating the dangerous situation in a sense that would impose a duty to prevent
harm to others); Buchanan, 159 S.W.2d at 110 (holding driver did not create a
dangerous situation when bridge fell as his vehicle passed over it); Courville v.
Home Transp. Co., 497 S.W.2d 788, 792 (Tex. App.—Beaumont 1973, writ ref’d
n.r.e.) (explaining that it is not sufficient that the dangerous condition actually
resulted from the defendant’s acts). The Supreme Court has provided two helpful
examples of this exception on public roadways: Grapotte and Buchanan.
Grapotte v. Adams, 111 S.W.2d 690 (Tex. 1938); Buchanan, 159 S.W.2d 109.
In Grapotte, the defendant operated a car storage garage that required
hundreds of vehicles to pass over a public sidewalk to enter the defendant’s
20
facility. 111 S.W.2d at 691. As a result of the vehicles driving over the sidewalk,
the sidewalk had become worn and formed a hole or depression, and the defendant
was aware of this problem. Id. Under Texas law, a public sidewalk is a part of the
public street, and the government bears the responsibility for keeping it in a
reasonably safe condition. Id. A plaintiff tripped over the depressed portion of the
sidewalk in front of the defendant’s business and suffered injuries. Id. The
Supreme Court held that the defendant had no duty to affirmatively act to prevent
harm to people walking on the sidewalk even though the defendant’s business was
technically a cause of the dangerous situation. Id. at 691–92. The Supreme Court
explained the defendant did nothing unusual, wrongful, or unlawful to require the
imposition of a duty. Id. Specifically, the Court explained that the degree or
quantity of cars crossing the sidewalk had nothing to do with whether the
defendant had used the sidewalk in such a way as to create a dangerous situation.
Id. at 692. The Court adopted the opinion of the court of appeals in that case as its
own, and the court of appeals had explained that the defendant would have had no
liability if the same situation had occurred in the street instead of a sidewalk. Id.;
Adams v. Grapotte, 69 S.W.2d 460, 462 (Tex. Civ. App.—Eastland 1934).
In Buchanan, a truck driver non-negligently drove across a public bridge
without the truck being overloaded, and the bridge fell below the embankment at
one end as the truck’s rear wheels crushed it. Buchanan v. Rose, 159 S.W.2d 109,
21
109 (Tex. 1942). A witness informed the truck driver of the damage, but the truck
driver did nothing to warn others of the dangerous situation. Id. Several days
later, the plaintiffs were injured when they crashed attempting to drive across the
damaged bridge. Id. Citing Grapotte for support, the Supreme Court held that the
truck driver owed no duty to act to prevent harm to the plaintiffs. Id. at 110–11.
Specifically, though the driver’s truck had helped cause the bridge to become
dangerous, the Court held that the driver did not create the dangerous situation. Id.
As the Court explained, to impose such a duty on the truck driver would be to
make travel on public roadways too hazardous from the standpoint of public
liability. Id. at 110. 11
Cases after Buchanan and Grapotte emphasize that these cases turn on
whether the defendant took an active role in creating the danger.12 Buchanan gave
11
In the Court’s words, “It would be carrying the matter too far to say that one must give notice
of every known defect in a road naturally resulting from his normal and legitimate use thereof.
To so hold would make the use of the highways too hazardous from the standpoint of public
liability.” Buchanan, 159 S.W.2d at 110.
12
See, e.g., New Tex. Auto Auction Servs., L.P. v. De Hernandez, 249 S.W.3d 400, 407 (Tex.
2008) (holding that auctioneer did not create dangerous situation by selling defective vehicle);
SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995) (holding that drug testing
company did not create dangerous situation by failing to warn person that ingesting substance
would trigger positive drug test); Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 632–33 (Tex.
1976) (holding that defendant did not create dangerous situation when defendant did not control
machine that injured plaintiff); Elliott v. State, 818 S.W.2d 71, 75 (Tex. App.—San Antonio
1991, writ denied) (holding that defendant did not create a dangerous situation by failing to
provide life jacket to plaintiff when plaintiff had none on his boat); Naumann v. Windsor
Gypsum, Inc., 749 S.W.2d 189, 192 (Tex. App.—San Antonio 1988, writ denied) (holding that
defendant did not create dangerous situation by building plant in a way that required tractor
trailers to block oncoming traffic when exiting plant on public two-lane road); Rocha v. Faltys,
69 S.W.3d 315, 320–22 (Tex. App.—Austin 2002, no pet.) (holding that defendant did not
22
two examples of what could create a dangerous situation and thus entail a duty to
warn: (1) excavating on or near a roadway or (2) placing an obstruction on the
road. Buchanan, 159 S.W.2d at 110.
The present case requires the same result as in Grapotte and Buchanan
because the defendants did not actively create the dangerous condition. Whereas
Grapotte’s defendant had vehicles driven over a public sidewalk, the present case’s
defendants drove their vehicles on a public road. Grapotte v. Adams, 111 S.W.2d
690, 691–92 (Tex. 1938); CR81–82. As in Grapotte, the subsequent degradation
of that road over time does not give rise to a duty even if the road becomes
dangerous for other users, regardless of the number of vehicles driven on the road.
See Grapotte, 111 S.W.2d at 691–92. Buchanan confirms that non-negligent use
of a road does not result in a duty to take affirmative action to prevent the degraded
road’s condition from harming others, even if the defendant is aware that the road
has become dangerous. Buchanan, 159 S.W.2d at 110–11. Vasquez cites
Buchanan for its rules but ignores Buchanan’s application. See Appellant’s Brief
9–10. Vasquez’s statement that Buchanan would impose a duty for non-negligent
driving on a public road is simply wrong. As a result, the defendants owe no duty
to act for non-negligent use of the public road.
negligently create dangerous situation when defendant led intoxicated adult plaintiff to top of a
cliff and encouraged plaintiff to jump off); Courville v. Home Transp. Co., 497 S.W.2d 788,
791–92 (Tex. App.—Beaumont 1973, writ ref’d n.r.e.) (holding that rear-ended truck had no
common law duty to stay on scene and warn others of disabled vehicle on I-10).
23
As for the alleged possible negligent use of the road, the defendants owed no
duty because such use also did not actively create a dangerous situation. Vasquez
relies on Buchanan for the proposition that negligent creation of a dangerous
situation imposes a duty to act to prevent harm resulting from that dangerous
situation. Appellants’ Brief 9. However, Buchanan does not support Vasquez’s
theory in the present case. Buchanan did not involve a negligent driver, and
moreover, Buchanan did not address a situation where the defendant damaged a
public roadway over the span of several years through lawful use and some
possible negligent use. See 159 S.W.2d at 109–11; CR81–82 (alleging the number
of loads and reduction of the road’s service life in annual terms). In a subsequent
case, the Supreme Court clarified that Buchanan’s statements of law were “very
general principles” to be applied on a case by case basis. See SmithKline Beecham
Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995). Vasquez cites no case for the
proposition that a gradual degradation of a public roadway by lawful use with
some possibly overweight trucks is sufficient to impose a duty to act. See
Appellant’s Brief.13 Instead, Vasquez appears to ask the Court to find that a duty
to act exists under a negligence theory because the defendants were possibly
negligent. See id. 9. This circular attempt at avoiding the duty requirement must
fail. The mere “possibility” of some overweight trucks on the road over time with
13
Indeed, few of Vasquez’s cited cases result in a duty being imposed at all.
24
other appropriately weighted trucks is not sufficient to actively create the
dangerous situation under the case law that has developed since Buchanan
described earlier in this section. Buchanan, 159 S.W.2d at 110 (requiring that a
dangerous situation be “created” even in a case of negligence).
Vasquez provides no authority for her apparent assumption that use of the
overweight trucks, if any, constitutes negligence. See Appellant’s Brief.14 Even if
the use of some overweight trucks is a negligent act, however, these trucks’
contribution (along with the use of appropriate weight trucks) to the gradual
degradation of the public road’s quality does not rise to the level of creating a
dangerous situation under Buchanan for reasons similar to those stated above in
this section with regard to non-negligent use. Importantly, Vasquez does not
allege that that the defendants committed a single negligent act to destroy the road,
as could be imagined as a variation of Buchanan. Perhaps a party could have a
legal duty to warn others for negligently destroying a bridge with a single act, 15 but
the same cannot be said for wearing down a public road over time by driving
properly loaded and some possibly overloaded trucks.
14
Vasquez also has not alleged or cited any authority for any load limit on Krueger Road. See
Tex. Transp. Code Ann. §§ 251.153/TabC, 621.301/TabD (giving county authority to implement
load limits on county roads with concurrence of Texas Department of Transportation).
15
See, e.g., Dudley & Orr v. Jacobs, 257 S.W. 315 (Tex. Civ. App. 1923, writ dism’d) (holding
defendant liable for dropping rocks on a road and causing an accident).
25
Since the defendants did not actively create the dangerous condition, the
defendants did not have a duty to affirmatively act, and as a result, the trial court’s
judgment should be affirmed.
ii. The defendants have no legal ability to comply with
Vasquez’s proposed duty.
Vasquez’s theory of liability contains another fatal flaw: the defendants
cannot legally comply with the proposed duty. Vasquez suggests that the law
required the defendants to repair the public road or to provide warning of its
danger. Appellant’s Brief 10. This proposal bears closer inspection. In Vasquez’s
view, private parties should be required by common law to repair potholes, repave
roads, and repaint lines on public roadways when the government fails to maintain
them. Appellant’s Brief 5 (describing the condition of the road as containing
potholes, crevices, and bumps and stating that the road has no markings to
determine proper lanes of travel). Vasquez rests her contention on the argument
that these parties have contributed to the wear and tear of the road while knowing
that the government cannot keep pace with maintenance. See Appellant’s Brief 9–
10. This incredible theory falls flat, however, because the defendants in question
do not even have the legal right or ability to repair a public road which is
undisputedly under the control of La Salle County. See Tex. Transp. Code Ann.
§§ 251.003/TabA, .016/TabB (expressly giving counties “general control” of their
26
public roads, including authority to maintain and repair them); Amaro v. Wilson
Cnty., 398 S.W.3d 780, 785 (Tex. App.—San Antonio 2011, no pet.) (“By granting
commissioners courts general control over the roads, the Legislature imposed on
them a duty to make the roadways safe for public travel.” (quoting City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 31–32 (Tex. 2003))); CR81–82
(acknowledging that La Salle County is responsible for maintaining Krueger
Road). In fact, the Attorney General has already addressed the issue of how
counties can respond to the alleged wear and tear on county roads due to the oil
and gas industry. Tex. Att’y Gen. Op. No. GA-1013 (2013), available at
https://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2013/pdf/ga1
013.pdf. Citing the county’s general control of its public roads, the Attorney
General ruled that counties have the authority to charge fees for permits to build
high traffic access points to county roads. Id. at 2–3.
Vasquez’s proposed duty to warn suffers from the same problem. Under
Vasquez’s view, private users of public roads would be required to post roadside
signs of the road’s possible degradation to avoid tort liability. It seems
indisputable, however, that private parties have no legal right to post road signs on
the right-of-way along a county road. See Tex. Att’y Gen. Op. No. GA-0693, at 1
(2009) (explaining that county’s statutory control of county road extends to the
right of way), available at https://www.texasattorneygeneral.gov/opinions
27
/opinions/50abbott/op/2009/pdf/ga0693.pdf; see also Tex. Transp. Code Chs. 251,
544 (containing road sign requirements). The Attorney General has ruled that
counties may remove objects from the right of way. Tex. Att’y Gen. Op. No. GA-
0693, at 1 (citing GA-0430 (2006),16 JM-1241 (1990)17). A duty to repair or to
warn might make sense when a party causes a dangerous condition by a single
act—such as excavating a sidewalk or dumping oil on a roadway—but not in the
context of use of a public roadway with other users where the road gradually
degrades. See Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942); supra n.11.
Since the defendants cannot comply with Vasquez’s proposed duty, the trial
court properly held that Vasquez’s cause of action has no basis in law, and this
Court should affirm the trial court’s judgment.
iii. Factors of foreseeability and social utility dictate that no
duty be imposed on those who contribute to gradual degradation
of public roads.
Finally, as stated in Buchanan and implied in Grapotte, an imposition of a
duty in the present case would result in the roads being too hazardous from a
public liability standpoint. Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942);
see Grapotte v. Adams, 111 S.W.2d 690, 691–92 (Tex. 1937). Vasquez’s proposed
16
Available at
https://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2006/pdf/ga0430.pdf.
17
Available at
https://www.texasattorneygeneral.gov/opinions/opinions/47mattox/op/1990/pdf/jm1241.pdf
28
duty raises the same concern faced by those cases: if the law were to impose a
duty to warn or repair for simply driving on a public road and contributing to the
gradual degradation of the road’s condition, the exposure to liability would be too
broad for the public to bear. See Buchanan, 159 S.W.2d at 110; see also Bird v.
W.C.W., 868 S.W.2d 767, 769 (Tex. 1994) (including social utility of defendants’
action as factor in duty analysis). The harm resulting from gradual degradation is
not sufficiently foreseeable to impose a duty to warn or repair, and the courts
would not be able to discern which of the millions of Texas drivers should be liable
for not repairing the public roadway. See Bird, 868 S.W.2d at 769 (including
foreseeability as factor in duty analysis). 18 Again, the number of times a party uses
the road is irrelevant to duty analysis. Grapotte, 111 S.W.2d at 691–92. The
social utility of public roads and the lack of foreseeability of the harm resulting
from wear and tear dictate that no duty be imposed. As a result, the trial court
properly held that the defendants had no duty in this case as a matter of law, and
this Court should affirm the trial court’s dismissal of the plaintiff’s cause of action.
II. Conclusion
As a matter of law, the defendants owed no duty to act to prevent harm to
others using Krueger Road. The road’s maintenance is the responsibility of the
18
Other factors in the duty analysis concern the burden on the defendants and the consequences
of placing the burden on the defendant. Bird, 868 S.W.2d at 769. As discussed above, however,
the defendants cannot even comply with Vasquez’s proposed duty. See supra § I.B.ii.
29
county, and users have no duty to prevent harm to others merely due to driving on
the road and causing it to degrade faster than the county can repair it. As a result,
the trial court properly dismissed Vasquez’s case for having no basis in law, and
this Court should affirm the trial court’s judgment.
Prayer
For the foregoing reasons, Enterprise Products Holdings, LLC, and
Enterprise Products Company request that this Court affirm the trial court’s
judgment.
Respectfully submitted,
Atlas, Hall & Rodriguez, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501/78502
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
By: /s/ J. Joseph Vale
J. Joseph Vale
State Bar No. 24084003
jvale@atlashall.com
E. Michael Rodriguez
State Bar No. 00791553
mrodriguez@atlashall.com
Erin A. Hudson
State Bar No. 24059978
ehudson@atlashall.com
Attorneys for Enterprise Products Holdings, LLC,
and Enterprise Products Company
30
Certificate of Rule 9.4(i) Compliance
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this Brief of Appellees, excluding those matters listed
in Rule 9.4(i)(1), is 4,948 words per the word processing program used for its
preparation (Microsoft Word).
/s/ J. Joseph Vale
J. Joseph Vale
31
Certificate of Service
I certify that the foregoing document was electronically filed with the Clerk
of the Court using the electronic case filing system of the Court. I also certify that
a true and correct copy of the foregoing was served on the following counsel of
record on April 29, 2015 as follows:
Recipient: Attorney for: Served by:
Jeffrey L. Dorrell Plaintiff/appellant Electronically if
(jdorrell@hanszenlaporte.com) Laura Zepeda available, or by
HANSZEN LAPORTE Vasquez facsimile
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Fax: 713-524-2580
William A. Abernethy Defendant/appellee Electronically if
(babernethy@dakpc.com) Rosetta Resources available, or by
DONNELL, ABERNETHY & Operating, L.P. facsimile
KIESCHNICK, P.C.
555 N. Carancahua, Suite 1770
Corpus Christi, Texas 78401-0853
Fax: 361-880-5618
David L. Ortega Defendants/appellees Electronically if
(dortega@namanhowell.com) Lewis Energy available, or by
Richard McNitzky Group, LP and facsimile
(rmcnitzky@namanhowell.com) Lewis Petro
NAMAN HOWELL SMITH & LEE, Properties, Inc.
PLLC
1001 Reunion Place, Suite 600
San Antonio, Texas 78216
Fax: 210-731-6300
Christopher Lowrance Defendants/appellees Electronically if
(chris.lowrance@roystonlaw.com) Virtex Operating available, or by
Karol S. Furmaga Company, Inc. and facsimile
(karol.furmaga@roystonlaw.com) Virtex Holdings,
ROYSTON, RAYZOR, VICKERY & LLP
WILLIAMS, L.L.P.
802 N. Carancahua, Suite 1300
32
Corpus Christi, Texas 78401-0021
Fax: 361-884-7261
Isaac J. Huron (ihuron@lawdcm.com) Defendants/appellees Electronically if
Celina G. Warren Legend Natural Gas available, or by
(cwarren@lawdcm.com) III, LP, and Legend facsimile
DAVIS, CEDILLO & MENDOZA, INC. Natural Gas, LLC
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Fax: 210-822-1151
Jose E. Garcia (jeg@gvlaw.net) Defendant/appellee Electronically if
Francisco R. Villarreal XTO Energy, Inc. available, or by
GARCIA & VILLARREAL, PLLC facsimile
4311 North McColl
McAllen, Texas 78504
Fax: 956-630-3631
/s/ J. Joseph Vale
J. Joseph Vale
33
Appendices
Tab Document
A Tex. Transp. Code Ann. § 251.003
B Tex. Transp. Code Ann. § 251.016
C Tex. Transp. Code Ann. § 251.153
D Tex. Transp. Code Ann. § 621.301
E Timothy Patton, Motions to Dismiss Under Texas Rule 91a:
Practice, Procedure and Review, 33 Rev. Litig. 469 (2014)
[excerpt]
34
TAB A
OF THE APPENDIX
Tex. Transp. Code § 251.003
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TRANSPORTATION CODE > TITLE 6. ROADWAYS > SUBTITLE
C. COUNTY ROADS AND BRIDGES > CHAPTER 251. GENERAL COUNTY AUTHORITY
RELATING TO ROADS AND BRIDGES > SUBCHAPTER A. GENERAL PROVISIONS
§ 251.003. Construction and Maintenance of Public Roads
(a) The commissioners court of a county may:
(1) make and enforce all necessary rules and orders for the construction and
maintenance of public roads;
(2) hire the labor and purchase the machinery and equipment needed to construct
and maintain public roads; and
(3) use any necessary material most convenient to build, repair, or maintain public
roads, regardless of the location or extent of the material.
(b) The court may enter any necessary order for the use of inmates of the county jails
to work on the county roads or to build bridges.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1,
1995.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
TAB B
OF THE APPENDIX
Tex. Transp. Code § 251.016
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TRANSPORTATION CODE > TITLE 6. ROADWAYS > SUBTITLE
C. COUNTY ROADS AND BRIDGES > CHAPTER 251. GENERAL COUNTY AUTHORITY
RELATING TO ROADS AND BRIDGES > SUBCHAPTER A. GENERAL PROVISIONS
§ 251.016. General County Authority over Roads, Highways, and Bridges
The commissioners court of a county may exercise general control over all roads,
highways, and bridges in the county.
History
Enacted by Acts 1999, 76th Leg., ch. 62 (S.B. 1368), § 13.11(b), effective September
1, 1999.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
TAB C
OF THE APPENDIX
Tex. Transp. Code § 251.153
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TRANSPORTATION CODE > TITLE 6. ROADWAYS > SUBTITLE
C. COUNTY ROADS AND BRIDGES > CHAPTER 251. GENERAL COUNTY AUTHORITY
RELATING TO ROADS AND BRIDGES > SUBCHAPTER E. COUNTY TRAFFIC REGULATIONS
§ 251.153. Load Limits on County Roads and Bridges
(a) The commissioners court of a county may establish load limits for any county
road or bridge in the manner prescribed by Section 621.301.
(b) The commissioners court may authorize a county traffic officer, sheriff, deputy
sheriff, constable, or deputy constable to weigh a vehicle to ascertain whether the
vehicle’s load exceeds the limit prescribed by the commissioners court.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1,
1995; am. Acts 2001, 77th Leg., ch. 1227 (S.B. 220), § 1, effective September 1,
2001.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
TAB D
OF THE APPENDIX
Tex. Transp. Code § 621.301
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TRANSPORTATION CODE > TITLE 7. VEHICLES AND TRAFFIC
> SUBTITLE E. VEHICLE SIZE AND WEIGHT > CHAPTER 621. GENERAL PROVISIONS
RELATING TO VEHICLE SIZE AND WEIGHT > SUBCHAPTER D. LOCAL REGULATIONS
§ 621.301. County’s Authority to Set Maximum Weights
(a) The commissioners court of a county may establish load limits for any county
road or bridge only with the concurrence of the Texas Department of Transportation.
A load limit shall be deemed concurred with by the Texas Department of
Transportation 30 days after the county submits to the Texas Department of
Transportation the load limit accompanied by supporting documentation and
calculations reviewed and sealed by an engineer licensed in this state, though the
Texas Department of Transportation may review the load limit and withdraw
concurrence at any time after the 30-day period.
(b) The commissioners court may limit the maximum weights to be moved on or
over a county road, bridge, or culvert by exercising its authority under this
subsection in the same manner and under the same conditions provided by Section
621.102 for the Texas Department of Transportation to limit maximum weights on
highways and roads to which that section applies.
(c) The commissioners court shall record an action under Subsection (b) in its
minutes.
(d) A maximum weight set under this section becomes effective on a road when
appropriate signs giving notice of the maximum weight are erected by the Texas
Department of Transportation on the road under order of the commissioners court.
(e) A vehicle operating under a permit issued under Section 623.011, 623.071,
623.094, 623.121, 623.142, 623.181, 623.192, or 623.212 may operate under the
conditions authorized by the permit over a road for which the commissioners court
has set a maximum weight under this section.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1,
1995; am. Acts 2001, 77th Leg., ch. 941 (S.B. 886), § 19, effective September 1,
2001; am. Acts 2001, 77th Leg., ch. 1227 (S.B. 220), § 5, effective September 1,
2001; am. Acts 2011, 82nd Leg., ch. 1345 (S.B. 1420), § 61, effective September 1,
2011; am. Acts 2013, 83rd Leg., ch. 1135 (H.B. 2741), § 99, effective September 1,
Page 2 of 2
Tex. Transp. Code § 621.301
2013.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
TAB E
OF THE APPENDIX
ARTICLE: Motions to Dismiss Under Texas Rule 91a: Practice, Procedure
and Review
Summer, 2014
Reporter
33 Rev. Litig. 469
Length: 47382 words
Author: Timothy Patton*
* Board certified in civil appellate law since 1987 by the Texas Board of Legal
Specialization and author of Summary Judgments in Texas: Practice, Procedure and
Review (LexisNexis 3d ed. 2013). I would like to thank Deb Grant, grammarian,
proofreader, typo-inconsistency catcher extraordinaire; Suzette, my wife, who knows far
more about trial practice than I and provided valuable input on procedural and
evidentiary issues; and Andrew Bluebond, Brian Young, Rachel Ratcliffe, Matt
Buongiorno, TJ Harris, and everyone else on the staff at The Review of Litigation for
their hard work.
LexisNexis Summary
… Examples include dismissals involving liability allegations which, even if true, were
insufficient to overcome qualified immunity rules; claims asserting a duty of care not
recognized under Texas law; tort causes of action pursued against a defendant whose
only potential liability was in contract; and a wrongful termination claim based on an
alleged exception to the employment-at-will doctrine not recognized in Texas. … The
federal ″plausibility″ standard incorporates an assessment and determination of the
plaintiff’s likelihood of success on the merits so that the trial judge weighs facts alleged
to see if they ″plausibly″ present a claim for relief at the earliest stage of the litigation.
… Rather, the court will simply ignore materials not permitted as Rule 59 exhibits when
deciding whether the challenged cause of action is baseless. … If filing a motion to
dismiss does not waive a special appearance or motion to transfer venue, then a Rule
91a motion may be filed before filing those pleadings which, in turn, means that Rule
91a is, indeed, an ″exception″ to due-order-of-pleading requirements. … As counsel for
the non-movant, if you’re justifiably concerned about your client losing the Rule 91a
motion, being designated as the ″loser″ under Rule 91a’s loser-pays provision, and
being hit with the movant’s fees and costs, nonsuit the challenged cause of action, or if
the client insists on going forward, make sure you’ve fully disclosed these risks to your
client in writing. … If it is not feasible to complete discovery before the expiration of
the forty-five-day deadline for a ruling, a court denying the motion to dismiss based on
Page 10 of 96
33 Rev. Litig. 469, *481
case law is not entirely consistent, 66 most courts of appeals have concluded that a claim
has no arguable basis in law if the legal theory on which the claim is based is
″indisputably meritless.″ 67 Applying this definition of ″no basis in law″ used in inmate
litigation in a rote manner to Rule 91a cases could prove problematic - and not just
because the ″indisputably meritless″ test has somewhat uncertain aspects. In Chapter 14
cases, courts have recognized that a pro se inmate’s petition should be viewed with
″liberality and patience″ and that an inmate is generally ″not held to the stringent
standards [*482] applied to formal pleadings drafted by attorneys.″ 68 In marked
contrast, attorneys who draft pleadings containing the cause of action challenged by a
Rule 91a motion should not receive the liberal benefit of doubt that is afforded to pro
se prisoners. 69
b. Procedures Closely Resembling Rule 91a.1’s ″No Basis in Law″ Standard
Actually, there’s no need to search for an already-existing rule or statute using the exact
phrase ″no basis in law″ to determine the meaning of ″no basis in law″ under Rule 91a.
70
For decades, Texas trial and appellate courts have resolved cases on the pleadings by
deciding that the plaintiff’s petition did not state a valid cause of action under Texas law.
They have done so by using two procedures: special exceptions 71 and motions for
summary judgment. 72 Under both procedures, as with Rule 91a, the court accepts the
plaintiff’s allegations and reasonable inferences arising from those allegations as true,
and then decides whether the plaintiff has stated a viable cause of action in its pleading.
73
There is no substantive difference between a liability allegation that fails to state a claim
and a cause of action that has no basis in law. The fact that cases in the special exception
and summary judgment contexts do not employ the precise words ″no basis in law″ is
66
See Burnett v. Sharp, 328 S.W.3d 594, 597-98 (Tex. App. - Houston [14th Dist.] 2010, no pet.) (discussing seemingly inconsistent
case law on whether determination that inmate ″failed to state a cause of action as a matter of law″ equates with decision that inmate’s
claim has ″no arguable basis in law″).
67
E.g., Burnett, 328 S.W.3d at 600; Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App. - Fort Worth 2010, no pet.); Nabelek v.
Dist. Attorney of Harris Cnty., 290 S.W.3d 222, 228 (Tex. App. - Houston [14th Dist.] 2006, no pet.); Minix v. Gonzales, 162 S.W.3d
635, 637 (Tex. App. - Houston [14th Dist.] 2005, no pet.).
68
E.g., Minix, 162 S.W.3d at 637; see also Hamilton, 298 S.W.3d at 339; Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App. - Houston
[1st Dist.] 2006, no pet.).
69
See Hon. Jane Bland, Hon. Bill Boyce, & Hon. Greg Perkes, What’s Appealing About the New Dismissal and Expedited Trial Rules,
23rd Annual Conference on State and Federal Appeals, June 13-14, 2013, at 10 (stating that although Rule 91a’s language ″suggests a
parallel″ with dismissal standards under Chapter 14, ″no special ″patience’ would be mandated for attorney-drafted pleadings″).
70
See id. (suggesting that practitioners take care in relying on federal rule 12(b)(6) authorities when litigating under Rule 91a and
instead ″look for analogies that can be drawn to existing Texas dismissal procedures″).
71
See Tex. R. Civ. P. 91.
72
See Tex. R. Civ. P. 166a.
73
See infra notes 84-87 and accompanying text (discussing the requirement that before dismissing on special exceptions or rendering
″no cause of action″ summary judgment, trial judge ordinarily must take allegations in petition as true).
Page 11 of 96
33 Rev. Litig. 469, *482
a semantical distinction if any distinction at all. If [*483] the plaintiff has not stated a
claim for relief under Texas law then its alleged cause of action has no basis in law for
Rule 91a purposes. To use Rule 91a.1’s wording, the defendant is entitled to prevail,
whether pursuing special exceptions, a motion for summary judgment, or a Rule 91a
motion to dismiss, if the taken-as-true allegations ″do not entitle the claimant to the
relief sought.″ 74
Courts have long viewed special exceptions as a proper method to determine whether
the plaintiff has stated a cause of action. 75 When deciding whether special exceptions
should be sustained, the trial judge must accept the plaintiff’s allegations and reasonable
inferences from those allegations as true 76 - just as the judge must when evaluating the
plaintiff’s allegations under Rule 91a. 77 After sustaining special exceptions but before
dismissing the plaintiff’s claims, the trial judge is generally required to first give the
plaintiff an opportunity to amend the pleading to state a viable cause of action. 78 If the
plaintiff still has not stated a cause of action after amendment and the remaining
portions of the petition also fail to state a viable claim, the trial court may dismiss the
case. 79 Appellate courts have upheld dismissals based on the plaintiff’s failure to state
a claim in cases where, had Rule 91a been in existence, dismissal on the grounds that
the challenged claim was baseless would likewise [*484] have been appropriate.
Examples include dismissals involving liability allegations which, even if true, were
insufficient to overcome qualified immunity rules; 80 claims asserting a duty of care not
recognized under Texas law; 81 tort causes of action pursued against a defendant whose
only potential liability was in contract; 82 and a wrongful termination claim based on an
74
Tex. R. Civ. P. 91a.1.
75
See, e.g., Gatten v. McClarley, 391 S.W.3d 669, 673 (Tex. App. - Dallas 2013, no pet.); Alpert v. Crain, Caton & James, P.C., 178
S.W.3d 398, 405 (Tex. App. - Houston [1st Dist.] 2005, pet. denied); Buecher v. Centex Homes, 18 S.W.3d 807, 809 (Tex. App. - San
Antonio 2000), aff’d on other grounds, 95 S.W.3d 266 (Tex. 2002).
76
See, e.g., Gatten, 391 S.W.3d at 674; James v. Easton, 368 S.W.3d 799, 803 (Tex. App. - Houston [14th Dist.] 2012, pet. denied);
Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 891 (Tex. App. - Dallas 2011, pet. denied).
77
Tex. R. Civ. P. 91a.1.
78
See Parker v. Barefield, 206 S.W.3d 119, 120-21 (Tex. 2006); Gatten, 391 S.W.3d at 673; see also Baylor Univ. v. Sonnichsen, 221
S.W.3d 632, 635 (Tex. 2007) (″Generally, when the trial court sustains special exceptions, it must give the pleader an opportunity to
amend the pleading, unless the pleading defect is of a type that amendment cannot cure.″); see also infra notes 416-418 and
accompanying text (describing circumstances when trial court need not provide a plaintiff with opportunity to amend before dismissing
on special exceptions).
79
See Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); Gatten, 391 S.W.3d at 673-74; Alpert, 178 S.W.3d at 405.
80
E.g., Easton v. Phelan, NO. 01-10-01067-CV, 2012 Tex. App. LEXIS 3710, at 20-21 (Tex. App. - Houston [1st Dist.] May 10, 2012,
no pet.) (mem. op.).
81
E.g., Gatten, 391 S.W.3d at 673-77.
82
E.g., Owen v. Option One Mortg. Corp., No. 01-10-00412-CV, 2011 Tex. App. LEXIS 5843, at 21-22 (Tex. App. - Houston [1st
Dist.] July 28, 2011, pet. denied) (mem. op.).
Page 12 of 96
33 Rev. Litig. 469, *484
83
alleged exception to the employment-at-will doctrine not recognized in Texas.
Texas case law dealing with ″no cause of action″ summary judgments should be
particularly useful in applying Rule 91a. If the plaintiff’s ″petition affirmatively
demonstrates that no cause of action exists or that plaintiff’s recovery is barred,″ the trial
court is entitled to render summary judgment on the pleadings against the plaintiff and
for the defendant. 84 Before granting summary judgment on the pleadings, the court
must take ″all allegations, facts, and inferences in the pleadings as true and view[] them
in a light most favorable to the pleader,″ 85 - the same perspective required by Rule 91a.
86
After reviewing the pleadings in this light, if the trial court correctly concludes that
the plaintiff has failed to state a viable cause of action or otherwise pled himself out of
court, the court is entitled [*485] to render a ″no cause of action″ summary judgment.
87
There are numerous examples of ″no cause of action″ summary judgments, affirmed
on appeal, where granting a Rule 91a motion to dismiss would have been equally
proper:
. Plaintiff’s liability claims were based on the Texas Penal Code - a statute that does not
create private civil causes of action. 88
. The trial court correctly granted summary judgment because plaintiffs’ pleadings did
not state a cause of action but alleged facts, which if proven, would have established the
defendant’s sovereign immunity defense. 89
83
See, e.g., Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 891 (Tex. App. - Dallas 2011, pet. denied).
84
See, e.g., Peek v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989); Delgado v. Combs, No. 07-11-00273-CV, 2012 Tex. App.
LEXIS 8610, at 5-7 (Tex. App. - Amarillo Oct. 15, 2012, no pet.) (mem. op.); Equitable Recovery, L.P. v. Health Ins. Brokers of Tex.,
L.P., 235 S.W.3d 376, 388 (Tex. App. - Dallas 2007, pet. dism’d); see also infra notes 416-428 and accompanying text (discussing
whether trial court is obligated to provide claimant with opportunity to amend before rendering ″no cause of action″ summary judgment).
85
Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Conquest Drilling Fluids, Inc. v. Tri-Flo Int’l, Inc., 137 S.W.3d 299,
309 (Tex. App. - Beaumont 2004, no pet.).
86
See Tex. R. Civ. P. 91a.1 (providing that a cause of action has no basis in law if allegations, taken as true, together with inferences
reasonably drawn from allegations do not entitle claimant to relief sought).
87
See Peek, 779 S.W.2d at 805 (stating that ″unless the petition affirmatively demonstrates that no cause of action exists or that
plaintiff’s recovery is barred, we require the trial court to give plaintiff an opportunity to amend before granting a motion to dismiss on
a motion for summary judgment″); Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974).
88
Delgado, 2012 Tex. App. LEXIS 8610, at 5-7. Probably the clearest example of a cause of action that should be dismissed as having
no basis in law is when the plaintiff is attempting to recover on a theory of liability not recognized in Texas. See, e.g., Trevino v. Ortega,
969 S.W.2d 950, 952 (Tex. 1998) (refusing to recognize spoliation of evidence as independent tort); Nelson v. Krusen, 678 S.W.2d 918,
925 (Tex. 1984) (″There is no cause of action in Texas for wrongful life″); San Saba Energy, L.P. v. McCord, 167 S.W.3d 67, 73 (Tex.
App. - Waco 2005, pet. denied) (collecting cases holding that Texas does not permit one party to a contract to sue another party to the
contract for conspiracy to breach contract).
89
Perser v. Perser, 738 S.W.2d 783, 784 (Tex. App. - Fort Worth 1987, writ denied).
Page 13 of 96
33 Rev. Litig. 469, *485
. Plaintiff’s claim, based on the existence of an implied statutory cause of action for
wrongfully terminating a public employee for filing a grievance, did not state a claim
recognized under existing Texas law. 90
. The trial court correctly granted a ″no cause of action″ summary judgment because
defendants owed no duty to plaintiffs based on the allegations in the plaintiffs’ petition
and duty is an essential element of a cause of action for negligence. 91
[*486] . Plaintiff failed to state a claim by alleging facts that established that his Texas
Tort Claims Act claims were based on providing or failing to provide police protection,
which is an exempt activity under the Act. 92
. Plaintiff’s allegations of intentional infliction of emotional distress, even when taken
as true, failed to rise to the level of outrageous misconduct required to state a valid
claim. 93
. Plaintiffs failed to allege a viable cause of action for fraud because their fraud claims
were based on communications during the course of the litigation which were absolutely
privileged. 94
. Plaintiffs ″did not plead a cause of action″ and ″cited no authority″ that issuing a notice
of cancellation of a health insurance policy (without more) constituted extreme and
outrageous misconduct. 95
3. Applying Rule 91a to Unsettled or Novel Legal Theories
An additional aspect of ″no basis in law″ under Rule 91a warrants mention. Rule 13, the
sanctions rule, defines ″groundless″ as meaning ″no basis in law … and not warranted
by good faith argument for the extension, modification, or reversal of existing [*487]
law.″ 96 The original draft of the dismissal rule proposed by the Supreme Court Advisory
90
Johnson v. Waxahachie Indep. Sch. Dist., 322 S.W.3d 396, 399-400 (Tex. App. - Houston [14th Dist.] 2010, pet. denied).
91
Kehler v. Eudaly, 933 S.W.2d 321, 325 (Tex. App. - Fort Worth 1996, writ denied).
92
Strickland v. Denver City, 559 S.W.2d 116, 118-19 (Tex. Civ. App. - Eastland 1977, no writ); see also Clawson v. Wharton Cnty.,
941 S.W.2d 267, 271-73 (Tex. App. - Corpus Christi 1996, writ denied) (affirming summary judgment because the plaintiffs alleged facts
that, if proved, would establish sovereign immunity defense).
93
Natividad v. Alexsis, Inc., 875 S.W.2d 695, 698-99 (Tex. 1994).
94
Settle v. George, No. 02-11-00444-CV, 2012 Tex. App. LEXIS 5831, at 8-10 (Tex. App. - Fort Worth July 19, 2012, no pet.) (mem.
op.).
95
Winters v. Parker, 178 S.W.3d 103, 105-06 (Tex. App. - Houston [1st Dist.] 2005, no pet.).
96
Tex. R. Civ. P. 13 (emphasis added); McIntyre v. Wilson, 50 S.W.3d 674, 687-88 (Tex. App. - Dallas 2001, pet. denied) (reversing
Rule 13 sanctions against some appellants who raised a good faith argument for extending, modifying or reversing existing law while
affirming sanctions against other appellant who did not). The definition of ″groundless″ in the Texas Civil Practice and Remedies Code