Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed July 31, 2018.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-18-00085-CV



                     IN RE HMR FUNDING, LLC, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              215th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2015-15269

                     DISSENTING OPINION

      The trial court abused its discretion in denying the relator’s motion to dismiss
under Texas Rule of Civil Procedure 91a based on the conclusion that the relator
filed the motion after the deadline. The relator timely filed the motion. The
purported late-filing was the only reason for the dismissal; the trial court did not
even consider the merits of the motion. Because the relator lacks an adequate
appellate remedy, this court should grant mandamus relief directing the trial court to
vacate the order denying the Rule 91a motion and to rule on the merits of the motion.

     The trial court abused its discretion by denying the motion as untimely.

       Robert Coleman sued Melford Amkrum and Best Transportation Services,
Inc. (collectively, the “Best Transportation Parties”) for injuries sustained in a
motor-vehicle accident. Coleman assigned his right to seek recovery of medical
expenses to relator HMR Funding, LLC. The Best Transportation Parties filed their
original third-party petition against HMR Funding on June 2, 2016. The Best
Transportation Parties attempted to serve citation on HMR Funding by serving the
Texas Secretary of State on July 11, 2016.

       HMR Funding claims that the service of citation on the Secretary of State was
defective service. Though HMR Funding alleges improper service, it voluntarily
appeared in the case on February 22, 2017, by answering and asserting affirmative
defenses and matters in avoidance (lack of capacity, lack of standing, lack of
ripeness, and contributory negligence). HMR Funding filed a Rule 91a motion to
dismiss on April 24, 2017, asserting that the Best Transportation Parties lacked
standing and capacity to maintain their claims against HMR Funding and that their
claims for unconscionable contracts, usurious interest, and invalid assignments have
no basis in law or fact.1

       The Best Transportation Parties responded that HMR Funding did not timely
file its motion to dismiss because HMR Funding filed the motion more than sixty


1
  See Tex. R. Civ. P. 91a.1 (providing that a party may move to dismiss a claim on the grounds
that it has no basis in law or fact).
                                              2
days after service of process.2 The Best Transportation Parties contend that the
trigger date was the date on which citation was served on the Secretary of State (July
11, 2016). HMR Funding contends that the Best Transportation Parties did not
properly serve process on HMR Funding and, therefore, the sixty-day deadline for
HMR Funding to file its Rule 91a motion to dismiss did not begin to run until the
date on which HMR Funding filed its answer and appeared (February 22, 2017).

       The trial court held a hearing on HMR Funding’s motion and later signed an
order stating that the trial court had denied the motion because the motion was
untimely. As required by Rule 91a, the trial court ordered HMR Funding to pay the
Best Transportation Parties $2,500 in attorney’s fees.3

       HMR filed a motion seeking permission to appeal the interlocutory order
denying its Rule 91a motion. The trial court granted HMR permission to appeal and
stayed all further proceedings until a final resolution of the permissive appeal. But,
this court denied HMR Funding’s petition for permissive interlocutory appeal.4

       HMR Funding then brought this original proceeding, contending that the trial
court clearly abused its discretion by denying its Rule 91a on the sole ground that
HMR Funding filed the motion late. HMR Funding also asserts that it lacks an
adequate appellate remedy for the trial court’s erroneous interlocutory order.


2
  See Tex. R. Civ. P. 91a.3 (a) (requiring the motion to dismiss to be “filed within 60 days after the
first pleading containing the challenged cause of action is served on the movant”).
3
 See Tex. R. Civ. P. 91a.7 (providing that “the court must award the prevailing party on the motion
all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause
of action in the trial court”).
4
 See HMR Funding, LLC v. Ankrum, No. 14-17-00702-CV, 2017 WL 6102784, at *1 (Tex. App.—
Houston [14th Dist.] Dec. 7, 2017, no pet.) (mem. op.).
                                                  3
          A party must file a Rule 91a motion to dismiss “within 60 days after the first
pleading containing the challenged cause of action is served on the movant.”5 This
case raises an issue of apparent first impression as to whether the “service” in this
rule is service of citation for a movant who has not yet been served with citation or
made an appearance in the lawsuit. This court should conclude that, under Rule
91a’s unambiguous language, as to a party who has not been served with citation or
made an appearance in the lawsuit, the sixty-day period for filing a Rule 91a motion
to dismiss begins when service of citation is effected properly or when the party
makes an appearance in the lawsuit, whichever occurs first.6

          The Best Transportation Parties claim that HMR Funding waived any service
defects for all purposes by failing to file a motion to quash the defective service. If

5
    Tex. R. Civ. P. 91a.3.
6
  See id.; Tex. R. Civ. P. 120 (providing that a defendant’s appearance “shall have the same force
and effect as if the citation had been duly issued and served a provided by law”); Zanchi v. Lane,
408 S.W.3d 373, 379 (Tex. 2013) (holding that objection provision in section 74.351(a) of the
Texas Civil Practice and Remedies Code is not implicated until the defendant has an obligation to
take part in the proceedings and, as a result the twenty-one-day objection period does not begin to
run until the defendant is served with process); Ross v. Nat’l Ctr. for the Emp’t of the Disabled,
197 S.W.3d 795, 798 (Tex. 2006) (“While diligence is required from properly served parties or
those who have appeared, those not properly served have no duty to act, diligently or otherwise.”)
(citations omitted); Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1 (Tex. 2004) (per curiam) (“A party
who becomes aware of the proceedings without proper service has no duty to participate in them.”);
Harrell v. Mexico Cattle Co., 11 S.W. 683, 865 (1889) (“A defendant may know that a suit has
been brought against him, yet he is not bound to take action until he has been duly served with
process.”); Bacharach v. Garcia, 485 S.W.3d 600, 601–02 (Tex. App.—Houston [14th Dist.]
2016, no pet.) (holding period for filing motion to dismiss under the Texas Citizens’ Participation
Act began on date party made an appearance without having been served with process even though
statute provided that period began on “date of service of the legal action”) ; Jordan v. Hall, 510
S.W.3d 194, 196–97 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (same as Bacharach). The
majority does not address whether the trial abused its discretion. The majority effectively
concludes that, even if the trial court clearly abused its discretion, HMR Funding is not entitled to
mandamus relief because it has an adequate appellate remedy.
                                                 4
HMR Funding had filed a motion to quash service and shown the defective service,
HMR Funding would not be entitled to have citation served on it properly; instead,
the only relief it would have received would have been additional time to file its
answer.7 HMR Funding’s failure to move to quash service of citation does not affect
the date on which the sixty-day period for filing a Rule 91a motion to dismiss
begins.8

          Section 17.044 of the Texas Civil Practice and Remedies Code, entitled
“Substituted Service on Secretary of State,” provides:

          (a) The secretary of state is an agent for service of process or complaint
          on a nonresident who:

          (1) is required by statute to designate or maintain a resident agent or
          engages in business in this state, but has not designated or maintained
          a resident agent for service of process;
          (2) has one or more resident agents for service of process, but two
          unsuccessful attempts have been made on different business days to
          serve each agent; or




7
 See Tex. R. Civ. P. 122; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985).
Rule 122 provides for quashing service:
          If the citation or service thereof is quashed on motion of the defendant, such
          defendant shall be deemed to have entered his appearance at ten o’clock a.m. on
          the Monday next after the expiration of twenty (20) days after the day on which the
          citation or service is quashed, and such defendant shall be deemed to have been
          duly served so as to require him to appear and answer at that time, and if he fails to
          do so, judgment by default may be rendered against him.

Tex. R. Civ. P. 122.
8
    See id.
                                                    5
          (3) is not required to designate an agent for service in this state, but
          becomes a nonresident after a cause of action arises in this state but
          before the cause is matured by suit in a court of competent jurisdiction.
          (b) The secretary of state is an agent for service of process on a
          nonresident who engages in business in this state, but does not maintain
          a regular place of business in this state or a designated agent for service
          of process, in any proceeding that arises out of the business done in this
          state and to which the nonresident is a party.9
Under the statute’s clear text, the secretary of state is not an agent for service of
process as to a nonresident required by statute to designate or maintain a resident
agent or engages in business in this state unless the nonresident (1) has not
designated or maintained an agent for service of process in Texas or (2) has one or
more resident agents for service of process, but two unsuccessful attempts have been
made on different business days to serve each agent.10

          Section 5.251 of the Texas Business Organizations Code, entitled “Failure to
Designate Registered Agent,” provides:

          The secretary of state is an agent of an entity for purposes of service of
          process, notice, or demand on the entity if:
          (1) the entity is a filing entity or a foreign filing entity and:
          (A) the entity fails to appoint or does not maintain a registered agent in
          this state; or

          (B) the registered agent of the entity cannot with reasonable diligence
          be found at the registered office of the entity[.]11


9
    Tex. Civ. Prac. & Rem. Code Ann. § 17.044(a), (b) (West, Westlaw through 2017 1st C.S.).
10
     See id.
11
     Tex. Bus. Orgs. Code Ann. § 5.251 (West, Westlaw through 2017 1st C.S.).
                                                6
According to this provision’s unambiguous language, the secretary of state is not an
agent for service of process under this statute as to a filing entity or a foreign filing
entity unless the entity (1) fails to appoint or does not maintain a registered agent in
this state, or (2) the registered agent of the entity cannot with reasonable diligence
be found at the registered office of the entity.12

          The Best Transportation Parties alleged in their original third-party petition
that HMR Funding is a foreign business entity that had designated Capitol Services
Corporation as its registered agent. According to the Best Transportation Parties’
pleading, HMR Funding could be served with process through this agent, and they
listed the address for this agent in Texas. They did not allege any of the following:
(1) that HMR Funding has not designated or maintained an agent for service of
process in Texas or (2) that HMR Funding has one or more resident agents for
service of process, but two unsuccessful attempts have been made on different
business days to serve each agent; or (3) that HMR Funding failed to appoint or did
not maintain a registered agent in this state, or (4) that HMR Funding’s registered
agent cannot with reasonable diligence be found at HMR Funding’s registered
office. Nor have the Best Transportation Parties alleged or proved that any of these
four scenarios applies in this case. Because none of these scenarios apply, the
secretary of state was not an agent for service of process on HMR Funding, and
service of citation was not properly effected on HMR Funding.13 And, because
HMR Funding was never properly served with citation, the sixty-day period for


12
     See id.
13
     Tex. Civ. Prac. & Rem. Code Ann. § 17.044(a), (b); Tex. Bus. Orgs. Code Ann. § 5.251.
                                                 7
filing a Rule 91a motion to dismiss as to claims in the original third-party petition
began when HMR Funding made an appearance in the lawsuit on February 22,
2017.14 Thus, HMR Funding timely filed its motion to dismiss on April 24, 2017,
and the trial court clearly abused its discretion by denying this motion solely on the
ground that HMR Funding did not file it timely.15

                      The relator lacks an adequate appellate remedy.

           Courts assess the adequacy of an appellate remedy by balancing the benefits
of mandamus review against the detriments.16 In evaluating benefits and detriments,
we are to consider whether mandamus would preserve important substantive and
procedural rights from impairment or loss.17              We also must consider whether
granting mandamus relief would allow the appellate courts to give needed and
helpful direction to the law that otherwise would prove elusive in appeals from final
judgments.18 Finally, we are to consider whether mandamus relief would spare
litigants and the public the time and money wasted enduring eventual reversal of
improperly conducted proceedings.19



14
  See Tex. R. Civ. P. 91a.3; Tex. R. Civ. P. 120; Zanchi, 408 S.W.3d at 379; Ross, 197 S.W.3d at
798; Caldwell, 154 S.W.3d at 97 n.1; Bacharach, 485 S.W.3d at 601–02; Jordan, 510 S.W.3d at
196–97.
15
  See Tex. R. Civ. P. 91a.3; Tex. R. Civ. P. 120; Zanchi, 408 S.W.3d at 379; Ross, 197 S.W.3d at
798; Caldwell, 154 S.W.3d at 97 n.1; Bacharach, 485 S.W.3d at 601–02; Jordan, 510 S.W.3d at
196–97.
16
     In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008).
17
     Id.
18
     Id.
19
     Id.
                                                 8
          The Texas Legislature directed the Supreme Court of Texas to adopt rules to
provide for the dismissal of claims that have no basis in law or fact on motion and
without evidence.20 The Legislature required that the rules provide for the motion
to dismiss to be granted or denied within 45 days of its filing.21 In response, the
Supreme Court of Texas promulgated Rule 91a, under which a defendant who timely
files a motion to dismiss has the right to a ruling on the merits of the motion within
45 days after filing.22            Under the rule, except in an action by or against a
governmental entity, a defendant who prevails on a motion to dismiss has the right
to recover all costs and reasonable and necessary attorney’s fees incurred with
respect to the challenged claims.23
               Preservation of Important Substantive and Procedural Rights
          By erroneously concluding that HMR Funding had filed its motion to dismiss
late and by denying the motion only on this basis, the trial court has deprived HMR
Funding of its right to a prompt ruling on the merits of its Rule 91a motion.
Additionally, the trial court erroneously ordered HMR Funding to pay the Best
Transportation Parties $2,500 in attorney’s fees under Rule 91a.7.24 In making these
rulings, the trial court has deprived HMR Funding of the opportunity to recover its
costs and reasonable and necessary attorney’s fees, in the event the Best
Transportation Parties’ claims have no basis in law or fact.25 Thus, granting

20
     See Tex. Gov’t Code Ann. § 22.004(g) (West, Westlaw through 2017 1st C.S.).
21
     See id.
22
     See Tex. R. Civ. P. 91a.3.
23
     See Tex. R. Civ. P. 91a.7.
24
     See Tex. R. Civ. P. 91a.3, 91a.7.
25
     See Tex. R. Civ. P. 91a.7.
                                                9
mandamus relief would preserve important substantive and procedural rights from
impairment or loss.26
                         Court’s Ability to Give Direction to the Law
           Granting mandamus relief also would allow this court to give needed and
helpful direction to the law as to when the sixty-day period for filing a Rule 91a
motion to dismiss begins for a party who has not been served with citation or made
an appearance in the lawsuit.27 This issue is likely to recur and judicial direction and
guidance on this point otherwise would prove elusive in appeals from final
judgments.28
                               Inadequacy of Summary-Judgment Relief
           The majority concludes that HMR Funding may get a ruling on the merits of
its defenses and arguments by asserting a motion for summary judgment. Yet, if
HMR Funding does so, and secures a summary judgment, HMR Funding would not
be entitled to recover its reasonable attorney’s fees, nor would the summary
judgment operate to set aside the $2,500 in attorney’s fees awarded to the Best
Transportation Parties under Rule 91a.7.29
           A recent opinion from the Supreme Court of Texas shows that HMR Funding
has no adequate appellate remedy to challenge the trial court’s erroneous award of
$2,500 in attorney’s fees under Rule 91a.7.30 In ConocoPhillips Co. v. Koopmann,


26
     See In re Team Rocket, L.P., 256 S.W.3d at 262–63.
27
     See id.
28
     See id.
29
     See Tex. R. Civ. P. 91a, 166a.
30
  See Tex. R. Civ. P. 91a.7; ConocoPhillips Co. v. Koopmann, No. 16-0662, — S.W.3d —, —,
2018 WL1440639, at *15–16 (Tex. Mar. 23, 2018).
                                                10
the Koopmanns sued Burlington Resources Oil & Gas Company, L.P., asserting a
declaratory-judgment claim as well as several non-declaratory judgment claims.31
Burlington filed a motion to dismiss the non-declaratory judgment claims under Rule
91a, without moving to dismiss the declaratory-judgment claim.32 The Koopmanns
asserted that Burlington had filed its motion to dismiss late as to all but the
negligence claims and that their claims were not frivolous.33 The trial court denied
the motion and ordered Burlington to pay the Koopmanns $26,190 in attorney’s fees
under Rule 91a.7.34 Burlington did not seek mandamus relief as to this order, nor
did Burlington pursue a permissive interlocutory appeal.35 Burlington later filed a
summary-judgment motion as to the non-declaratory judgment claims asserting
arguments similar to those made in its motion to dismiss. 36 The trial court granted
the summary-judgment motion and ordered that the Koopmanns take nothing as to
these claims.37
          After the trial court rendered a final judgment, both the Koopmanns and
Burlington appealed.38 Burlington argued, among other things, that the trial court
erred in denying its motion to dismiss under Rule 91a and in ordering Burlington to




31
     See ConocoPhillips Co., 2018 WL1440639, at *2.
32
     See id.
33
     See id. at *15.
34
     See id.
35
     See id. at *16.
36
     See id. at *2.
37
     See id.
38
     See id.
                                              11
pay the Koopmanns’ attorney’s fees under Rule 91a.7.39 The Koopmanns challenged
the trial court’s summary judgment as to the non-declaratory judgment claims.40 The
court of appeals affirmed the trial court’s summary judgment as to all of the non-
declaratory judgment claims, except for the breach-of-contract claim, as to which
the court reversed, and the court of appeals rejected Burlington’s challenge to the
trial court’s ruling on its Rule 91a motion to dismiss.41 Burlington sought and
obtained review by the Supreme Court of Texas; the Koopmanns did not challenge
the court of appeals’s judgment.42
          After adjudicating the declaratory-relief issues and affirming the court of
appeals’s judgment as to the breach-of-contract claim, the supreme court addressed
Burlington’s argument that the trial court erred in denying its motion to dismiss
under Rule 91a.43 The high court stated that Burlington asked the court to hold that
the trial court erred in denying the motion to dismiss “even though the trial court
ultimately granted Burlington summary judgment on those claims.” 44 After again
noting that the trial court had granted Burlington summary judgment after denying
its motion to dismiss, the supreme court stated that “[a]pparently, Burlington is not
satisfied, because it asks us to hold that the trial court erred in denying its motion to
dismiss.”45 The ConocoPhillips court concluded that if it were to hold that the trial


39
     See id. at *3,*15.
40
     See id. at *3.
41
     See id.
42
     See id.
43
     See id. at *15–16.
44
     See id. at *15 (emphasis added).
45
     See id. (emphasis added).
                                           12
court erred in denying Burlington’s motion to dismiss under Rule 91a, this holding
would require the supreme court to vacate or overrule the trial court’s summary
judgment in Burlington’s favor.46 The high court stated that it could not vacate or
overrule the trial court’s summary judgment because the Koopmanns had not sought
review of the court of appeals’s affirmance of the summary judgment as to all claims
except the breach-of-contract claim and therefore this affirmance was final and not
before the high court.47 The ConocoPhillips court noted that Burlington could have
challenged the trial court’s denial of its motion to dismiss by a petition for writ of
mandamus or by seeking a permissive interlocutory appeal and that Burlington had
failed to do so.48
          Under this binding precedent if this court denies mandamus relief based on an
adequate remedy by appeal and if HMR Funding eventually obtains a dismissal of
the Best Transportation Parties’ claims in the trial court’s final judgment, HMR
Funding will not be able to obtain appellate review of the trial court’s denial of its
Rule 91a motion unless the Best Transportation Parties appeal the trial court’s
judgment.49 An appellate remedy contingent upon an opponent’s decision to appeal
the trial court’s judgment is not an adequate appellate remedy. 50




46
     See id. at *16.
47
     See id. at *15–16.
48
  See id. at *16; In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per
curiam) (granting mandamus relief as to trial court’s denial of a Rule 91a motion to dismiss).
49
     See ConocoPhillips Co., 2018 WL1440639, at *15–16.
50
     See In re Team Rocket, L.P., 256 S.W.3d at 262–63.
                                                13
           In ConocoPhillips, Burlington challenged in the supreme court the court of
appeals’s failure to reverse the trial court’s denial of its Rule 91a motion.51 As the
high court pointed out, sustaining Burlington’s appellate complaint would have
required the supreme court to render judgment setting aside the trial court’s summary
judgment, reversing the trial court’s Rule 91a order, and granting Burlington’s Rule
91a motion.52 Thus, though Burlington did not assert that the trial court erred on the
merits in granting summary judgment in its favor, Burlington’s challenge to the trial
court’s prior denial of its Rule 91a motion necessarily challenged the court of
appeal’s affirmance of the trial court’s summary judgment.53
           The ConocoPhillips court concluded that it could not review Burlington’s
complaint because “the court of appeals’[s] affirmance of the summary judgment is
final and not before us.” 54 According to the high court, the reason that the court of
appeals’s affirmance of the summary judgment was final and not before the supreme
court was that “[t]he Koopmanns did not appeal that ruling.” 55 The majority
suggests that HMR Funding may obtain an adequate appellate remedy simply by
appealing the trial court’s final judgment in its favor, even if the Best Transportation
Parties do not appeal.56 But, according to the ConocoPhillips court, if the Best
Transportation Parties fail to appeal, this failure will make the trial court’s judgment


51
     See ConocoPhillips Co., 2018 WL1440639, at *15.
52
     See id. at *16.
53
     See id.
54
     Id.
55
  Id. at *15 (stating that “The Koopmanns did not appeal that ruling, and thus the court of appeals'
judgment affirming the summary judgment is final and not before us”).
56
     See ante at 8.
                                                14
in HMR Funding’s favor final and will prevent HMR Funding from getting review
on appeal of any complaint by HMR Funding that the trial court erred in denying its
Rule 91a motion.57 So, HMR Funding does not have an adequate remedy by
appeal.58
          Balancing the benefits of mandamus review against the detriments, this court
should conclude that HMR Funding lacks an adequate appellate remedy. 59
                                           Conclusion
          HMR Funding has shown that the trial court clearly abused its discretion in
denying the Rule 91a motion to dismiss as untimely and that HMR Funding lacks an
adequate appellate remedy. This court should grant HMR Funding’s request for
mandamus relief directing the trial court (1) to vacate the order denying the Rule 91a
motion and (2) to rule on the merits of the motion. Because the court does not do
so, I respectfully dissent.



                                              /s/     Kem Thompson Frost
                                                      Chief Justice


Panel consists of Chief Justice Frost and Justices Busby and Wise (Wise, J.,
majority).




57
     See ConocoPhillips Co., 2018 WL1440639, at *15–16.
58
     See In re Team Rocket, L.P., 256 S.W.3d at 262–63.
59
     See ConocoPhillips Co., 2018 WL1440639, at *2; In re Essex Ins. Co., 450 S.W.3d at 528; In re
Team Rocket, L.P., 256 S.W.3d at 262–63.
                                                 15
