Opinion issued August 6, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00379-CV
                          ———————————
        MOSE A. GUILLORY AND MARY GUILLORY, Appellants
                                      V.
          SEATON, LLC D/B/A STAFF MANAGEMENT, Appellee


                   On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-61407A


                          CONCURRING OPINION

      Mose A. Guillory and Mary Guillory (“the Guillorys”) appeal the dismissal

of their lawsuit against Seaton, LLC d/b/a Staff Management (“Seaton”) under

Texas Rule of Civil Procedure 91a. The Guillorys present three issues: (1) “Rule
91a is void and unenforceable because it conflicts with and is thus preempted by

Chapter 10 of the Texas Civil Practice and Remedies Code”; (2) Rule 91a is

unconstitutional on its face and as applied; and (3) the trial court erred in

dismissing the Guillorys’ claims against Seaton for negligent undertaking and

gross negligence.

      I join the majority opinion with respect to the Guillorys’ third issue, holding

that the Guillorys’ negligent undertaking and gross negligence claims have no

basis in law. I respectfully concur in the judgment as to the Guillorys’ first and

second issues.

                     Statutory Authority to Promulgate Rule 91a

      In their first issue, the Guillorys contend that “Rule 91a is void and

unenforceable because it conflicts with and is thus preempted by Chapter 10 of the

Texas Civil Practice and Remedies Code.” I would find the Guillorys’ argument to

be without merit. I find no conflict between Rule 91a and Chapter 10.

      Civil Practice and Remedies Code section 10.001 provides, in relevant part,

that the signing of pleadings and motions constitutes a certificate by the signatory

that each claim or defense “is warranted by existing law or by a nonfrivolous

argument for the extension, modification, or reversal of existing law or the

establishment of new law.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(2)

(Vernon 2002). Sections 10.002 and 10.004 provide authority for the trial court to



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impose sanctions for a violation of section 10.001, including an order that counsel

who signed pleadings in violation of section 10.001 must pay the other party’s

reasonable expenses, “including reasonable attorney’s fees.”        Id. §§ 10.002(c),

10.004(c) (Vernon 2002).      Finally, section 10.006 provides, “Notwithstanding

Section 22.004, Government Code, the supreme court may not amend or adopt

rules in conflict with this chapter.” Id. § 10.006 (Vernon 2002).

      Rule 91a was adopted by the Texas Supreme Court pursuant to Government

Code section 22.004(g). That subsection requires that the supreme court “adopt

rules to provide for the dismissal of causes of action that have no basis in law or

fact on motion and without evidence” and that a motion to dismiss under the rule

be granted or denied by the trial court within forty-five days of its filing. TEX.

GOV’T CODE ANN. § 22.004(g) (Vernon Supp. 2014). Rule 91a conforms to the

mandate in section 22.004(g). Rule 91a.1 provides:

      [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.

TEX. R. CIV. P. 91a.1. The question, thus, is whether Rule 91a, promulgated

pursuant to Government Code section 22.004(g), conflicts with Civil Practice and

Remedies Code Chapter 10. If it does, Rule 91a violates section 10.006, which

provides that the supreme court cannot adopt rules under section 22.004 that

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conflict with Chapter 10. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.006. I

would hold that Rule 91a does not conflict with Chapter 10 and therefore is not

procedurally invalid under section 10.006.

      Civil Practice and Remedies Code Chapter 10 and Government Code section

22.004(g), read together, require that any rule promulgated by the supreme court

pursuant to section 22.004—including Rule 91a—conform to Chapter 10. Rule

91a provides that a party may move to dismiss a cause of action that has no basis in

law. See TEX. R. CIV. P. 91a.1. If the trial court finds that a cause of action has no

basis in law and dismisses the case under Rule 91a, it necessarily finds that the

plaintiff’s claim is not “warranted by existing law,” and, accordingly, would

constitute a violation of section 10.001(2). See TEX. CIV. PRAC. & REM. CODE

ANN. § 10.001(2); TEX. R. CIV. P. 91a.1. Here, in dismissing the Guillorys’ suit

under Rule 91a as having no basis in law, the trial court necessarily impliedly

found that the Guillorys’ pleadings violated section 10.001(2). When that happens,

Chapter 10 sections 10.002 and 10.004 together authorize the trial court to sanction

the signatory of the pleadings by an order requiring the payment of the opposing

party’s reasonable expenses, including attorneys’ fees. See TEX. CIV. PRAC. &

REM. CODE ANN. §§ 10.001(2), 10.002(c), 10.004(c).            That is exactly what

occurred here. Thus, in this case, Government Code section 22.004, Chapter 10,

and Rule 91a, read together, authorized the trial court to dismiss the Guillorys’



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claims for negligent undertaking and gross negligence and to award reasonable

attorney’s fees to Seaton against the attorneys who signed pleadings on behalf of

the Guillorys because the Guillorys filed their negligence claims without a basis in

law, violating both Rule 91a and section 10.001(2). And the plain language of

those provisions likewise authorizes this Court to affirm the trial court’s judgment.

      I agree with the majority’s conclusion on de novo review that there was no

legal basis for the Guillorys’ claims. But I would hold that there is, therefore, no

conflict between Rule 91a, which was promulgated pursuant to Government Code

section 22.004, as applied in this case, and Civil Practice and Remedies Code

Chapter 10. I would overrule the Guillorys’ first issue on that basis.

                              Constitutionality of Rule 91a

      In their second issue, the Guillorys contend that Rule 91a is unconstitutional

on its face and as applied.

      A.     Facial challenge to constitutionality of Rule 91a

      Article V, section 31(b) of the Texas Constitution authorizes the Texas

Supreme Court to “promulgate rules of civil procedure for all courts not

inconsistent with the laws of the state as may be necessary for the efficient and

uniform administration of justice in the various courts.” TEX. CONST. art. V,

§ 31(b); In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). The Texas Government

Code further specifies that “[t]he supreme court has the full rulemaking power in



                                          5
the practice and procedure in civil actions, except that its rules may not abridge,

enlarge, or modify the substantive rights of a litigant.” TEX. GOV’T CODE ANN.

§ 22.004(a); In re M.N., 262 S.W.3d at 802. Moreover, “[s]o that the supreme

court has full rulemaking power in civil actions, a rule adopted by the supreme

court repeals all conflicting laws and parts of laws governing practice and

procedure in civil actions, but substantive law is not repealed.” TEX. GOV’T CODE

ANN. § 22.004(c); In re M.N., 262 S.W.3d at 802. The Texas Rules of Civil

Procedure must, therefore, be presumed constitutional unless it is shown that a rule

abridges, enlarges, or modifies the substantive rights of a litigant by conflicting

with a substantive law.

      The majority holds, and I agree, that Rule 91a does not abridge the

substantive rights of litigants by conflicting with a substantive law, namely Civil

Practice and Remedies Code Chapter 10. Therefore, Rule 91a is not procedurally

infirm as alleged by the Guillorys.

      The question remains, however, whether Rule 91a is constitutionally infirm

because it abridges a constitutionally guaranteed right. Because the supreme court

was constitutionally authorized to promulgate the rule by article V, section 31(b) of

the Texas Constitution and statutorily authorized to promulgate it by Government

Code section 22.004(g), I would hold that the rule is presumptively constitutional

under the plain language of article V, section 31(b). Thus, the Guillorys bear the



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burden of disproving the presumed constitutionality of Rule 91a.             I would,

therefore, require the Guillorys to bear the burden of demonstrating the rule’s

unconstitutionality by argument supported by authority.         See TEX. R. APP. P.

38.1(i) (requiring appellant’s brief to contain “clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”).

      The Guillorys contend that Rule 91a is facially unconstitutional because it

violates the open courts provision, article I, section 13 of the Texas Constitution;

the right to petition government for redress of grievances and the right to free

speech, article I, sections 8 and 27 of the Constitution; the right to a jury trial,

article I, section 15 and article V, section 10 of the Constitution; the right to due

process of law, article I, section 19 of the Texas Constitution and the Fourteenth

Amendment to the United States Constitution; and the right to equal protection of

the law under article I, sections 3 and 3a of the Texas Constitution and the

Fourteenth Amendment to the United States Constitution.

      With respect to the open courts provision of the Texas Constitution, I agree

with the majority that a fee-shifting rule does not, on its face, deprive litigants of

access to the courts in violation of their constitutional right to due process. Indeed,

Civil Practice and Remedies Code section 10.002 has long authorized the

imposition of the other party’s fees and expenses upon the signing of pleadings

without a basis in law or fact, and Rule 91a authorizes no more. See TEX. CIV.



                                          7
PRAC. & REM. CODE ANN. § 10.002(c) (“The court may award to a party prevailing

on a motion under this section the reasonable expenses and attorney’s fees incurred

in presenting or opposing the motion . . . .”). The Guillorys do not challenge the

constitutionality of section 10.002; indeed, they assume its validity when they

attack Rule 91a as being in conflict with it. Because the Guillorys make no other

argument that Rule 91a violates the open courts provision, I would conclude that

the Guillorys have presented no meritorious argument that Rule 91a, as a fee-

shifting rule, denies them access to the courts guaranteed by article I, section 13 of

the Texas Constitution.

      The Guillorys likewise present no meritorious argument supported by

authority that Rule 91a violates any of the other constitutional rights they

enumerate. They make only vague and unspecified allegations about the general

requirements for satisfying these constitutional provisions without showing, in any

specific way, how Rule 91a violates them.         Therefore, I would hold that the

Guillorys’ arguments regarding the facial invalidity of Rule 91a with respect to

these other constitutional provisions are inadequately briefed under Texas Rule of

Appellate Procedure 38.1(i) and present nothing for review. See TEX. R. APP. P.

38.1(i) (“The brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”).




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      I would overrule the Guillorys’ challenge to the facial constitutionality of

Rule 91a.

      B.     As-applied challenge to constitutionality of Rule 91a

      I would also hold that the Guillorys have not shown that Rule 91a operates

unconstitutionally as applied in this case. Indeed, they do not even distinguish

their arguments and authorities for contending that the rule is facially

unconstitutional from their arguments and authorities in support of their contention

that it is unconstitutional as applied. As the majority points out, the Guillorys

argue that Rule 91a is constitutionally infirm because it lacks a provision providing

that “a plaintiff may pursue a claim when it is warranted by . . . a nonfrivolous

argument for the extension, modification, or reversal of existing law,” but they do

not identify what, if any, extension, modification, or reversal of existing law they

seek. Slip Op at 18–19. Nor do they make any argument for a new or different

law that should apply in future negligent-undertaking claims in Texas. Instead,

they argue, inconsistently, that they have a valid claim under existing Texas law

without being able to show that they do. Slip Op. at 19.

      For the foregoing reasons, I would reject the Guillorys’ challenge to the

constitutionality of Rule 91a as applied for failure to adequately brief the issues,

just as I would reject their challenge to the facial constitutionality of the rule. See




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TEX. R. APP. P. 38.1(i) (requiring brief to “contain a clear and concise argument for

the contentions made, with appropriate citations to authorities and to the record”).

                                        Conclusion

      I concur in the panel’s judgment affirming the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice


Panel consists of Justices Keyes, Higley, and Brown.

Justice Keyes, concurring.




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