REVERSE and RENDER; and Opinion Filed August 26, 2019.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00916-CV

   DALLAS COUNTY REPUBLICAN PARTY AND MISSY SHOREY AS DALLAS
            COUNTY REPUBLICAN PARTY CHAIR, Appellants
                              V.
  DALLAS COUNTY DEMOCRATIC PARTY AND CAROL DONOVAN AS DALLAS
            COUNTY DEMOCRATIC PARTY CHAIR, Appellees

                        On Appeal from the 14th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-18-00821-A

                              MEMORANDUM OPINION
                          Before Justices Schenck, Osborne, and Reichek
                                   Opinion by Justice Schenck
        Appellants challenge the trial court’s decision to dismiss their claims with prejudice and

award attorney’s fees to appellees. In three issues, appellants argue the trial court erred in

concluding a political party lacks standing to sue another political party for injunctive relief against

a violation of the election code; dismissing appellants’ cause of action under rule 91a; and

awarding appellees their attorney’s fees. For the reasons discussed below, we reverse the portion

of the trial court’s order awarding attorney’s fees. Because all issues are settled in law, we issue

this memorandum opinion. TEX. R. APP. P. 47.4.

                                            BACKGROUND

        On January 19, 2018, appellants Dallas County Republican Party and Missy Shorey as

Dallas County Republican Party Chair filed suit against appellees Dallas County Democratic Party
and Carol Donovan as the Dallas County Democratic Party Chair, challenging appellees’

certification of over one hundred Democratic candidates’ applications for a place on the

Democratic Primary Ballot. In their petition, appellants alleged Donovan, as party chair, failed to

properly certify the challenged candidates for inclusion on the primary ballot in violation of

sections 141.037 and 172.029 of the election code. See TEX. ELEC. CODE ANN. §§ 141.037,

172.029. Appellants sought to enjoin appellees from including challenged candidates on the

Democratic Primary Ballot and the General Election Ballot. Appellants also sought to enjoin

appellees from declaring any of the challenged candidates administratively ineligible and replacing

them with candidates of Donovan’s choice so as to avoid a ruling in favor of appellants on the

merits.

          On January 24, appellees filed an answer that denied appellants’ allegations and raised

numerous affirmative defenses, as well as a motion to abate to allow joinder of all challenged

candidates, the Texas Secretary of State, and the Dallas County Elections Administrator. The same

day, appellees filed a plea to the jurisdiction, alleging the trial court lacked subject-matter

jurisdiction for the following reasons: appellants lacked standing to challenge the eligibility of any

Democratic candidates; appellants’ claims were moot because absentee balloting began the day

after appellants filed suit; and lack of justiciable controversy because Dallas County Democratic

Party lacks any power over the ballots and thus declarative relief would have no legal effect and

injunctive relief would similarly be unavailable. Appellees also filed a motion to dismiss pursuant

to rule 91a of the Texas Rules of Civil Procedure, alleging three grounds: appellants’ claims

became moot when absentee balloting began on January 20; the Dallas County Republican Party

lacked standing to challenge eligibility of another party’s candidates; and the election code does

not impose any signature requirement as alleged by appellants as the basis for relief.




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       On February 22, appellees filed an amended motion to dismiss pursuant to rule 91a, in

which they alleged appellants’ suit should be dismissed because:

       (1) the Dallas County Republican Party lacked standing to challenge eligibility of another
           party’s candidates;

       (2) all of the Dallas County Republican Party’s claims for relief in the primary election
           were moot;

       (3) the Dallas County Republican Party’s claims regarding any signature requirement
           ignored new regulations implemented by the Texas Secretary of State, rendering them
           incorrect; and

       (4) even assuming allegations in pleadings were correct, Texas Supreme Court precedent
           required remedy of elimination of errors, not candidates.

Additionally, several of the challenged candidates filed pleas in intervention in this case, including

Margaret Jones-Johnson (“Intervenor Jones-Johnson”).           Intervenor Jones-Johnson filed an

amended plea in intervention and plea to the jurisdiction in which she sought dismissal of

appellants’ claims on similar grounds as appellees, including mootness, standing, and lack of

violation of the election code.

       On April 20, the trial court conducted a hearing on the motion to dismiss and plea to the

jurisdiction, and on April 23, the trial court signed an order granting both without indicating on

which ground or grounds the court was granting the motion. The April 23 order further stated an

award of costs and attorney’s fees was mandatory pursuant to rule 91a, ordered appellees to submit

evidence on attorney’s fees no later than April 30, and ordered appellants to submit objections or

present “further pertinent evidence” no later than May 7. On May 7, the trial court signed a Final

Judgment Including Award of Attorney’s Fees in which it awarded fees to the Dallas County

Democratic Party and Intervenor Jones-Johnson, sustained the plea to the jurisdiction, and granted

the 91a motion to dismiss. Late the night of May 7, appellants filed a response to appellees’ request

for attorney’s fees and objections to evidence appellees presented on attorney’s fees, and an

objection to the trial court’s ruling on attorney’s fees before the ordered deadline of May 7 had

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elapsed. On May 8, the trial court signed an order in which it considered appellants’ objection to

the timing of the ruling as a motion for reconsideration and set the motion for hearing on May 14.

On May 14, the trial court signed an order overruling appellants’ objection and “affirming” the

final judgment signed May 7. Appellants requested, and the trial court entered, findings of fact

and conclusions of law. In its findings of fact and conclusions of law, the trial court concluded

appellants’ claim were moot, appellants lacked standing to maintain the suit, and the Election Code

does not impose a signature requirement. This appeal followed.

                                            DISCUSSION

       After reviewing the notice of appeal, on September 11, 2018, this Court sent a letter to the

parties in which we questioned our jurisdiction over the appeal, specifically whether the appeal

had or would become moot before briefing was completed because the relief sought in the trial

court would require alteration of the ballots and the deadline for mailing or emailing ballots to any

voter who submits a federal postcard application was September 22, 2018. In response, appellants

asserted they did not seek relief related to the election as “any relief regarding preparation of the

ballot . . . would be mooted by the election schedule,” but instead sought a ruling as to the

appropriateness of the rule 91a dismissal and subsequent award of attorney’s fees. Appellees

agreed relief related to the election was moot and that this Court retained subject-matter

jurisdiction over the trial court’s award of attorney’s fees.

       The trial court found, and we agree, that appellants’ requests for substantive relief were

moot. See In re Jones, No. 05-18-00065-CV, 2018 WL 549531, at *3 (Tex. App.—Dallas Jan. 24,

2018, orig. proceeding). Nevertheless, appellants’ challenge of the trial court’s award of attorney’s

fees remains extant. See Hanson v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 774–75 (Tex.

App.—Dallas 2011, no pet.). As discussed above, the trial court’s judgment dismissing appellants’




                                                 –4–
claims awarded attorney’s fees to appellees and to Intervenor Jones-Johnson “pursuant to the

mandatory provisions of rule 91a.7.”

           We review the merits of a rule 91a motion de novo because the availability of a remedy

under the facts alleged is a question of law and the rule’s factual-plausibility standard is akin to a

legal-sufficiency review. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016). Dismissal

is appropriate under rule 91a “if the allegations, taken as true, together with inferences reasonably

drawn from them, do not entitle the claimant to the relief sought . . . [or] no reasonable person

could believe the facts pleaded.” TEX. R. CIV. P. 91a.1. Whether the dismissal standard is satisfied

depends “solely on the pleading of the cause of action.” Id. 91a.6. Further, rule 91a provides that

it “is in addition to, and does not supersede or affect, other procedures that authorize dismissal.”

Id. 91a.9.

                                                                                I.

           The grounds raised in appellees’ rule 91a motion to dismiss included: (1) lack of standing;

(2) mootness; (3) lack of a violation of the election code; and (4) incorrect relief sought. Standing

and mootness may be raised by a plea to the jurisdiction, as well as by other procedural vehicles,

such as a motion for summary judgment, or even raised sua sponte. See Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 553–54 (Tex. 2000);1 M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.

2004). Mootness may be related to standing. For a plaintiff to have standing, we have said, a

controversy must exist between the parties at every stage of the legal proceedings. See City of

Dallas v. Woodfield, 305 S.W.3d 412, 416 (Tex. App.—Dallas 2010, no pet.) Thus, the first two

grounds of appellees’ rule 91a motion to dismiss could have been raised by other vehicles, i.e., a



     1
       Attorney’s fees are not awarded in a successful plea to the jurisdiction or motion for summary judgment, unless fees are allowed for the
underlying claim. Texas follows the “American rule” that attorney’s fees paid to prosecute or defend a lawsuit cannot be recovered in that suit
absent a statute or contract that allows for their recovery. See Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240 (1975); Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). The Texas summary judgment statute does not
provide for attorney’s fees and there is also no statute that provides for fees following a successful plea to the jurisdiction. See TEX. R. Civ. P. 85;
TEX. R. Civ. P. 166a.

                                                                         –5–
plea to the jurisdiction or motion for summary judgment. Indeed, appellees did raise these grounds

in a plea to the jurisdiction, but the trial court did not, and could not, award attorney’s fees in

conjunction with a grant of a plea to the jurisdiction. See Akin, Gump, Strauss, Hauer & Feld,

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009) (the rule in Texas is

attorney’s fees paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute

or contract that allows for their recovery).

          In this case, appellees claim entitlement to attorney’s fees under rule 91a, claiming their

motion is an appropriate vehicle through which to seek dismissal on the grounds asserted. Leaving

aside for the moment whether a jurisdictional attack arises under the rule simply because it might

be brought with it, “we [typically] look to the substance of a motion to determine the relief sought,

not merely to its title” in determining its effect. Surgitek, Bristol–Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999). The text of rule 91a.1 reads as follows2:

          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.

TEX. R. CIV. P. 91a. On its face, the rule addresses the merits of the claim. Nowhere in the four

corners of the rule is jurisdiction mentioned. Nevertheless, appellees urge that because jurisdiction

may be entertained alongside the merits inquiry in rule 91a, all such dismissals should carry fee-

shifting under that rule and invite us to be the first court to announce that result. We decline the

invitation.




2
  The Texas Supreme Court has approved an order amending the language of TEX. R. CIV. P. 91a. However, that order goes into effect on
September 1, 2019. Because the events in this case occurred prior to that date, we do not address the amended language.

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                                                                      II.

           A dismissal under 91a is a judgment on the merits and presumably carries res judicata

implications. See Richards v. Newport Strategic Search, Inc., No. 3:16-CV-0169-B, 2016 WL

10906448, at *2 (N.D. Tex. May 12, 2016) (“Though not identical to the Rule 12(b)(6) standard,

the Texas Courts of Appeals have interpreted Rule 91a as essentially calling for a Rule 12(b)(6)-

type analysis and have relied on the Rule 12(b)(6) case law in applying Rule 91a”) (citing Wooley

v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist. 2014], pet. denied);

GoDaddy.com, LLC v. Toups, 429 S.W.752, 754 (Tex. App.—Beaumont 2014, pet. denied)); see

also Stevens v. Bank of Am., N.A., 587 F. App’x 130, 133 (5th Cir. 2014) (noting that a federal

court's dismissal with prejudice of a 12(b)(6) motion is a final judgment on the merits for res

judicata purposes). In contrast, subject matter jurisdiction is a prerequisite to entertaining the

merits, and whenever a court finds a lack of jurisdiction it is obligated to go no further and dismiss.

See Stauffer v. Nicholson, 438 S.W.3d 205, 214 (Tex. App.—Dallas 2014, no pet.). Such a

judgment is, per force, not one “on the merits.” See Engelman Irrigation Dist. v. Shields Bros.,

Inc., 514 S.W.3d 746, 750 (Tex. 2017).

           No Texas case to date has held that a dismissal for lack of subject matter jurisdiction arises

under rule 91a for purposes of its mandatory fee shifting provision.3 Appellees nevertheless urge

that the Texas Supreme Court, through Sanchez, has grafted jurisdiction into rule 91a’s reach,

rendering every jurisdictional case a rule 91a case and allowing for the recovery of attorney’s fees.

In Sanchez the Texas Supreme Court recognized that the dismissal grounds under rule 91a have

been analogized to a plea to the jurisdiction. Sanchez, 494 S.W.3d at 724. The court acknowledged

that the rule 91a motion in that case challenged the court’s subject-matter jurisdiction on the



      3
        Prospectively operative amendments have made fee awards discretionary. They are inapplicable to this judgment in appeal, as they predate
the change.

                                                                     –7–
pleaded facts. Id. at 725. However, the court did not find rule 91a to be the vehicle through which

a challenge to subject-matter jurisdiction would arise, because the city did not challenge the vehicle

through which Sanchez sought dismissal. Instead, the court analogized the plea to jurisdiction

procedures and addressed the merits of the jurisdiction issue through the Texas Tort Claims Act,

which makes the jurisdiction and liability analysis coterminous. Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (“[t]he Tort Claims Act creates a unique statutory

scheme in which the . . . immunities to suit and liability are co-extensive”). Borrowing a standard

or applying it as an analogy obviously does not convert the basis on which the motion arises.

Schronk v. City of Burleson, 387 S.W.3d 692 (Tex. App.—Waco 2009, pet. denied) (accepting

analogy between plea to jurisdiction and summary judgment standards but rejecting consequent

borrowing of procedures as a result).

           Sanchez ultimately reversed a judgment of this court that had declined to dismiss a claim

against the City of Dallas, rendering judgment under rule 60.2(c), rather than remanding for further

proceedings, without discussing any need to consider the potential for mandatory fee shifting.

Regardless, Sanchez hardly purports to treat jurisdictional determinations under rule 91a as a basis

for the award of fees. At best, it is simply silent on the question presented here. In fact, no Texas

case has ever awarded attorney’s fees under rule 91a.7 where the dismissal resulted from a lack of

subject matter jurisdiction. In these circumstances rule 91a is not the “vehicle” by which the case

is disposed and, conversely, jurisdiction is not a “ground” to which 91a is directed. See Bristol–

Myers Corp., 997 S.W.2d at 601.4




4
  Appellees have also directed us to Data Foundry, Inc. v. City of Austin, 575 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The
court in Data Foundry cites Sanchez for the proposition that “Rule 91a may be used, as it was here, to challenge the trial court’s subject-matter
jurisdiction.” Id. at 96. Standing is jurisdictional and may be raised at any time and by any manner. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d
849, 851 (Tex. 2000). Nothing in the Data Foundry opinion addresses the fee-shifting question before us.
                                                                     –8–
                                                       III.

       As discussed above, the trial court’s judgment dismissing appellants’ claims awarded

attorney’s fees to appellees and to Intervenor Jones-Johnson “pursuant to the mandatory provisions

of rule 91a.7.” Rule 91a.7 exempts from its mandatory fee provision “an action by or against a

governmental entity or a public official acting in his or her official capacity or under color of

law[.]” See TEX. R. CIV. P. 91a.7. Appellants argue that Donovan is a “public official” under the

rule. Appellees dispute this classification. Because we do not read Sanchez as going as far

appellees claim it does, we pretermit the question of whether a party chair is a public official under

91a.7 to which the exemption from mandatory fees would apply. See 47.1.

                                                       IV.

       As for the third and fourth grounds of appellees’ 91a motion to dismiss, both seek to resolve

appellants’ claims on their merits. In light of our conclusion that dismissal for lack of jurisdiction

was proper, the trial court lacked jurisdiction to reach the merits. Stauffer, 438 S.W.3d at 214.

Accordingly, any ruling on the merits of the 91a motion would be inappropriate. Mapco, Inc. v.

Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding (per curiam)); Doan v. TransCanada

Keystone Pipeline, LP, 542 S.W.3d 794, 806 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

                                           CONCLUSION

       We reverse the portion of the trial court’s judgment awarding attorney’s fees to appellees

and Intervenor Jones-Johnson.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
180916F.P05                                         JUSTICE




                                                 –9–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

 DALLAS COUNTY REPUBLICAN                              On Appeal from the 14th Judicial District
 PARTY, ET AL., Appellants                             Court, Dallas County, Texas
                                                       Trial Court Cause No. DC-18-00821-A.
 No. 05-18-00916-CV           V.                       Opinion delivered by Justice Schenck.
                                                       Justices Osborne and Reichek participating.
 DALLAS COUNTY DEMOCRATIC
 PARTY, ET AL., Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED with respect to the award of attorney’s fees and judgment is RENDERED that
appellees take nothing as to their claim for attorney’s fees and that appellees’ claims for relief
related to the election are dismissed for lack of jurisdiction.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 26th day of August, 2019.




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