Affirmed and Majority and Concurring Opinions filed August 14, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00385-CV

                    WILLIAM CARL WOOLEY, Appellant
                                         V.

                         RANDY SCHAFFER, Appellee

                     On Appeal from the 11th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2013-05833


                 CONCURRING OPINION
      I concur in the court’s judgment, but for the reasons set forth below, I
respectfully decline to join the majority opinion.

Dismissals under Texas Rule of Procedure 91a should be reviewed under a de
novo standard.
      Today, for the first time, this court reviews a trial court’s dismissal of causes
of action under recently promulgated Texas Rule of Civil Procedure 91a. 1 Thus, as
a threshold matter, this court must determine the standard of review for such cases.

          Rule 91a, entitled “Dismissal of Baseless Causes of Action,” contains the
following language relevant to this issue:

          91a.1 Motion and Grounds. Except in a case brought under the
          Family Code or a case governed by Chapter 14 of the Texas Civil
          Practice and Remedies Code, a party may move to dismiss a cause of
          action on the grounds that it has no basis in law or fact. 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.
          91a.2 Contents of Motion. A motion to dismiss must state that it is
          made pursuant to this rule, must identify each cause of action to which
          it is addressed, and must state specifically the reasons the cause of
          action has no basis in law, no basis in fact, or both.
          ...
          91a.6 Hearing; No Evidence Considered. Each party is entitled to at
          least 14 days’ notice of the hearing on the motion to dismiss. The
          court may, but is not required to, conduct an oral hearing on the
          motion. Except as required by 91a.7, the court may not consider
          evidence in ruling on the motion and must decide the motion based
          solely on the pleading of the cause of action, together with any
          pleading exhibits permitted by Rule 59.
          91a.7 Award of Costs and Attorney Fees Required. Except in an
          action by or against a governmental entity or a public official acting in
          his or her official capacity or under color of law, 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. The court must consider evidence regarding
          costs and fees in determining the award. 2
1
 Unless otherwise specified, all references to rules in this opinion are to the Texas Rules of Civil
Procedure.
2
    Tex. R. Civ. P. 91a.

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Rule 91a, which took effect on March 1, 2013, provides a unique dismissal
procedure not previously available in Texas practice. 3            Trial courts may not
dismiss under Rule 91a in either a case brought under the Family Code or in
inmate litigation governed by Chapter 14 of the Texas Civil Practice and Remedies
Code. 4 In all other cases, a party may move to dismiss on the ground that (1) a
cause of action has no basis in law, (2) a cause of action has no basis in fact, or (3)
on both of these grounds. 5

          A cause of action has no basis in law if the allegations in the claimant’s
pleading, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought. 6 A cause of action has no basis in fact
if no reasonable person could believe the facts pleaded by the claimant. 7 A motion
to dismiss under Rule 91a must (1) contain a statement that it is made pursuant to
that rule, (2) identify each cause of action to which it is addressed, and (3) state
specifically the reasons each such cause of action has no basis in law, no basis in
fact, or both.8

          In determining whether to grant a motion to dismiss under Rule 91a, a trial
court may not consider any evidence and must decide the motion based solely on
the pleading, together with any pleading exhibits permitted by Texas Rule of Civil
Procedure 59. 9 Except in an action by or against a governmental entity or a public

3
    See id.
4
  See Tex. R. Civ. P. 91a.1. The case under review was not brought under the Family Code, nor
is it governed by Chapter 14 of the Texas Civil Practice and Remedies Code.
5
    See id.
6
    See id.
7
    See id.
8
    See Tex. R. Civ. P. 91a.2.
9
    See Tex. R. Civ. P. 91a.6.

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official acting in his or her official capacity or under color of law, if a trial court
grants a Rule 91a dismissal as to a cause of action, the court must award the
movant all costs and reasonable and necessary attorney’s fees incurred with respect
to that cause of action in the trial court.10 In awarding these costs and fees, the trial
court must consider evidence regarding costs and fees.11

          In deciding whether to grant a motion to dismiss under Rule 91a, a trial court
may not consider evidence and must decide the motion based solely on a review of
the content within the four corners of the live pleading, including the attachments
thereto.12 Given the nature of such a dismissal, appellate courts should review de
novo a trial court’s dismissal of a cause of action under Rule 91a. 13

Under a de novo standard of review, the trial court did not err in granting the
motion to dismiss under Rule 91a.
          A de novo review of the statements and allegations within the four corners
of appellant William Carl Wooley’s live pleading against appellee Randy Schaffer
shows that Wooley, a convicted felon who has not been exonerated, asserts various

10
   See Tex. R. Civ. P. 91a.7. The trial court in the case under review did not award Schaffer any
attorney’s fees, and Schaffer has not appealed this ruling. Nonetheless, Rule 91a requires that
the trial court award a successful movant all costs and reasonable and necessary attorney’s fees
incurred with respect to the dismissed causes of action in the trial court. See id.
11
     See id.
12
     See Tex. R. Civ. P. 91a.6.
13
   See GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet.
filed) (reviewing trial court’s ruling on a Rule 91a motion to dismiss under a de novo standard of
review). Though the Third Court of Appeals has reviewed a trial court’s ruling on a Rule 91a
motion to dismiss under a de novo standard of review, the appellate court did so under the
standard of review for pleas to the jurisdiction challenging only the pleadings, after determining
that the Rule 91a motion constituted a plea to the jurisdiction. See City of Austin v. Liberty Mut.
Ins., 431 S.W.3d 817, 822 & n.1 (Tex. App.—Austin 2014, no. pet.). Thus, this precedent does
not address the standard of review for rulings on Rule 91a motions that are not pleas to the
jurisdiction. See id.


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causes of action for damages relating to Schaffer’s retention as an attorney to draft
post-conviction applications for habeas relief on Wooley’s behalf. The allegations
in Wooley’s live pleading as well as all reasonable inferences drawn from these
allegations, taken as true, would not entitle Wooley to the damages he seeks in
each of his causes of action under this court’s precedent applying an expansive
interpretation of the Peeler doctrine.14 A de novo, four-corners review shows that
none of Wooley’s causes of action has any basis in law. 15 The arguments Wooley
asserts on appeal do not show that the trial court erred in granting Schaffer’s
motion to dismiss under Rule 91a, and this court correctly affirms the trial court’s
judgment.

This court should not consider the evidence attached to the motion to dismiss.
          In determining whether to grant a motion to dismiss under Rule 91a, the trial
court may not consider evidence and must make its ruling based solely on a review
of the allegations and attachments within the four corners of the live pleading.16
Nonetheless, Schaffer attached eight exhibits to his motion to dismiss and
discussed the factual matters allegedly shown by these exhibits in this motion. On
appeal, the background section of the majority opinion is based in large part on
factual matters addressed in these motion exhibits but not alleged in Wooley’s live
pleading. The majority states that these matters are “additional background facts . .
14
  See Futch v. Baker Botts, LLP, No. 14-12-00731-CV, —S.W.3d—,—, 2014 WL 2583769, at
*7–8 (Tex. App.—Houston [14th Dist.] June 10, 2014, no pet.); Meullion v. Gladden, No. 14-10-
01143-CV, 2011 WL 5926676, at *2–4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no
pet.) (mem. op.); McLendon v. DeToto, No. 14-06-00658-CV, 2007 WL 1892312, at *1–2 (Tex.
App.—Houston [14th Dist.] Jul. 3, 2007, pet.denied) (mem. op.); Golden v. McNeal, 78 S.W.3d
488, 491–92 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); Johnson v. Odom, 949
S.W.2d 392, 393–94 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).
15
  See Tex. R. Civ. P. 91a.1; Futch, 2014 WL 2583769, at *7–8; Meullion, 2011 WL 5926676, at
*2–4; McLendon, 2007 WL 1892312, at *1–2; Golden, 78 S.W.3d at 491–92; Johnson, 949
S.W.2d at 393–94.
16
     See Tex. R. Civ. P. 91a.6.

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. presented for clarity and context.”17 Though some general background and
context are certainly appropriate, much of this material goes into details of
Schaffer’s representation of Wooley that are not alleged in Wooley’s live pleading
and thus are not relevant to the issues addressed in the majority opinion. 18 A
successful movant under Rule 91a is entitled to all costs and reasonable and
necessary attorney’s fees incurred in the trial court with respect to the dismissed
causes of action. 19 If movants under Rule 91a attach evidence to their motions as
if Rule 91a motions were traditional motions for summary judgment, there is a
danger that courts improperly might consider this evidence as a basis for
dismissing under Rule 91a, even though the ruling is supposed to be based solely
on a four-corners review of the live pleading. Basing a Rule 91a ruling on the
movant’s evidence essentially would allow the movant to obtain a prompt, de facto
summary judgment, possibly without notice to the claimant that evidence was
being considered, as well as attorney’s fees that are not normally available based
only on a party’s entitlement to summary judgment. Though attaching evidence to
a motion to dismiss under Rule 91a does not make the motion fatally defective,
courts should be careful to limit their analysis to the allegations in the live
pleading.

This court need not address whether, in his motion to dismiss, the movant states
specifically the reasons that each of the asserted causes of action has no basis in
law or has no basis in fact.
          In a motion to dismiss under Rule 91a the movant must identify each cause
of action to which the motion is addressed, and the movant must state specifically



17
     See ante at p.2, n.1.
18
     See ante at p. 2–4.
19
     See Tex. R. Civ. P. 91a.7.

                                          6
the reasons each cause of action has no basis in law, no basis in fact, or both.20
Arguably, a claimant might be able to assert for the first time on appeal that the
trial court erred in dismissing under Rule 91a because the movant did not specify
(1) the causes of action to which the motion is addressed, or (2) whether dismissal
was sought because the cause of action has no basis in law or because the cause of
action has no basis in fact, or (3) the reasons each cause of action has no basis in
law, no basis in fact, or both.21 Nonetheless, on appeal, Wooley has not advanced
any such argument; therefore, this court need not and should not address whether
Schaffer’s motion was sufficient in any of these respects. Despite Wooley’s failure
to raise these issues, the majority concludes that Schaffer’s motion was sufficiently
specific, even though Schaffer did not state whether he sought dismissal on the
ground that the causes of action have no basis in law or on the ground that they
have no basis in fact. 22 There is no reason to address whether Schaffer’s motion
has the specificity required by Rule 91a.23

The movant did not seek dismissal of any cause of action based on the cause of
action having no basis in fact.
          In his motion to dismiss under Rule 91a, Schaffer sought dismissal of all of
Wooley’s causes of action under the Peeler doctrine. Schaffer did not assert that
any of Wooley’s causes of action have no basis in fact, and Schaffer did not assert
that no reasonable person could believe any fact alleged in Wooley’s live pleading.
Schaffer did not assert, and the trial court did not rule, that any of Wooley’s causes

20
     See Tex. R. Civ. P. 91a.2.
21
     See id.
22
  See ante at p. 9, n.12. Schaffer does state at one point in the motion that Wooley’s allegation
that Schaffer “overcharged” him fails to state a claim on which relief can be granted. This is the
only part of the petition that Schaffer expressly states fails to state a claim on which relief can be
granted.
23
     See Tex. R. Civ. P. 91a.2.

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of action have no basis in fact. Thus, the majority is incorrect that Schaffer sought
dismissal on the ground that Wooley’s causes of action have no basis in fact. 24

          Before the promulgation of Rule 91a, Texas law did not provide a procedure
for a party to obtain dismissal of a cause of action because, based solely on a
review of the live pleading, no reasonable person could believe the facts pleaded.25
In this respect, Rule 91a is novel and unique in Texas procedure.                          Without
addressing the specific threshold for such a determination, it is reasonable to
deduce that alleged facts would have to have a high degree of implausibility for a
court to properly conclude that no reasonable person could believe these facts
based solely on the live pleading. The resolution of this important issue should be
left for another day because Schaffer did not seek dismissal on this basis. Instead,
the majority concludes that Wooley’s causes of action have no basis in fact
because no reasonable person could believe that Wooley had been exonerated.26
But, Wooley did not plead that he had been exonerated. Indeed, his live pleading
shows that he had not been exonerated. Because Wooley did not plead that he had

24
     See ante at pp. 1, 9, 11.
25
   Parties may move for sanctions, including attorney’s fees, under Texas Rule of Civil
Procedure 13 on the grounds that an attorney or party who signed a pleading violated her
certificate that she had read the pleading and that, to the best of her knowledge, information, and
belief formed after reasonable inquiry, the pleading is not groundless and brought in bad faith or
groundless and brought for the purpose of harassment. Tex. R. Civ. P. 13. “Groundless” in this
context means no basis in law or fact and not warranted by good faith argument for the
extension, modification, or reversal of existing law. See id. Parties may move for sanctions,
including attorney’s fees, under Texas Civil Practice and Remedies Code chapter 10, on the
grounds that an attorney or party who signed a pleading violated her certificate that to the best of
her knowledge, information, and belief, formed after reasonable inquiry, each allegation or other
factual contention in the pleading or motion has evidentiary support or, for a specifically
identified allegation or factual contention, is likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery. Tex. Civ. Prac. & Rem. Code Ann. § 10.001
(West 2014). As to either basis for sanctions, the inquiry is not limited to the live pleading, and
the movant’s entitlement to sanctions normally is proved by evidence. See Gomer v. Davis, 419
S.W.3d 470, 477–81 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
26
     See ante at p. 9, n.12.

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been exonerated, even if Schaffer had sought dismissal on the ground that
Wooley’s causes of action have no basis in fact, there would be no issue as to
whether a reasonable person could believe that Wooley had been exonerated.27

This court need not apply the fair-notice standard used to determine the
sufficiency of pleadings.
          Texas is a notice pleading jurisdiction; a petition is sufficient if it gives fair
and adequate notice of the facts upon which the pleader bases his claim. 28 The test
of fair notice is whether an opposing attorney of reasonable competence, with the
pleadings before her, could ascertain the nature and basic issues of the controversy
and the testimony that is probably relevant. 29 The majority purports to apply these
notice-pleading standards to its review of the trial court’s dismissal under Rule
91a. 30 But, the issue under Rule 91a is not whether the claimant sufficiently
pleaded a cause of action under Texas’s liberal notice-pleading standards; rather,
the issue is whether the challenged causes of action have no basis in law or no
basis in fact under the standards promulgated in Rule 91a.31 Thus, this court
should apply the legal standard from Rule 91a rather than the legal standard for
testing the sufficiency of the pleading in response to special exceptions.32

Rule 91a is sui generis and it is best not to analogize this rule to other procedural
vehicles.
          The majority concludes that a motion to dismiss under Rule 91a is similar to


27
     See Tex. R. Civ. P. 91a.1.
28
     Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013).
29
  See Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 489 (Tex. App.—Houston [14th
Dist.] 1994, writ denied).
30
     See ante at p. 8.
31
     See Tex. R. Civ. P. 91a.1.
32
     See id.

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a plea to the jurisdiction.33 But, parties who succeed under a plea to the jurisdiction
are not thereby entitled to recover their attorney’s fees; successful parties under
Rule 91a are entitled to attorney’s fees. 34 Pleas to the jurisdiction may be (and
often are) based on evidence extrinsic to the live pleading; Rule 91a motions may
not be based on such evidence.35 Grounds for a plea to the jurisdiction may be
added for the first time on appeal; grounds for Rule 91a motions must be raised in
the trial court. 36

          The majority also concludes that a motion to dismiss under Rule 91a based
on the alleged causes of action having no basis in fact is similar to a legal-
sufficiency challenge to fact findings. 37 Parties who succeed under a legal-
sufficiency challenge, however, are not thereby entitled to recover their attorney’s
fees; successful parties under Rule 91a are entitled to attorney’s fees. 38 Fact
findings are based on evidence, and the fact finder is the sole judge of the
credibility of the witnesses and the weight to give their testimony. 39 Rule 91a
motions may not be based on evidence, and there is no basis for assessing the
credibility of any witness.40 Rather, to conclude that a cause of action has no basis
in fact, a court must determine that no reasonable person could believe the facts



33
     See ante at p. 6.
34
     See Tex. R. Civ. P. 91a.7.
35
  See Tex. R. Civ. P. 91a.6; Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227–
28 (Tex. 2004).
36
  See Tex. R. Civ. P. 91a.2; Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–53 (Tex.
2000).
37
     See ante at p. 6.
38
     See Tex. R. Civ. P. 91a.7.
39
     See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
40
     See Tex. R. Civ. P. 91a.6.

                                                 10
alleged in the live pleading based solely on the pleading.41 This inquiry is not akin
to a legal-sufficiency analysis.42

          The majority also concludes that a motion to dismiss under Rule 91a is
similar to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).43
But, unlike successful movants under Rule 91a, successful movants under Federal
Rule of Civil Procedure 12(b)(6) are not entitled to recover their attorney’s fees.44
In addition, movants to dismiss under Federal Rule of Civil Procedure 12(b)(6)
may not challenge the veracity of factual allegations in the live pleading, but
movants under Rule 91a may challenge the factual allegations as having no basis in
fact.45

          Rule 91a is unique, an animal unlike any other in its particulars. Because this
new procedural creation differs from other procedures in its terms, benefits, and
application, courts should treat it as its own kind without analogizing it to other
species, lest practitioners and trial courts fall into error by tailoring their motions
and rulings to meet provisions that are different from the terms of Rule 91a.




                                                /s/      Kem Thompson Frost
                                                         Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise. (Jamison, J.,
Majority).

41
     See Tex. R. Civ. P. 91a.1; Tex. R. Civ. P. 91a.6.
42
     See City of Keller, 168 S.W.3d at 823, 827.
43
     See ante at p. 7.
44
     See Fed. R. Civ. P. 12.
45
  Compare Tex. R. Civ. P. 91a.1, with Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d
673, 675 (5th Cir. 2007).

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