Chapter 5 — Rule 91a Motions to Dismiss

Standard

1. Legal Framework

  • Tex. R. Civ. P. 91a: permits dismissal of any cause of action with “no basis in law or fact.”
  • No basis in law: Allegations, even if true, do not entitle the claimant to relief (e.g., claim barred by statute or binding precedent).
  • No basis in fact: No reasonable person could believe the pleaded facts.
  • Motions are decided on the pleadings; no evidence is considered.
  • Fees: Prevailing party may recover discretionary attorney’s fees and costs.

Use in Dram Shop Litigation

Rule 91a is a defense scalpel in dram shop cases. It allows targeted dismissal of claims that cannot succeed as a matter of law. Courts permit partial dismissals (specific causes of action, claims, or remedies) while leaving the statutory dram shop claim intact if it is properly pleaded.

Strategic goal: Trim the case down to the Dram Shop Act’s statutory elements and remove improper parties, claims, and damage theories.

Common 91a Targets in Dram Shop Cases

2. Non-Statutory Provider Claims

Problem: Plaintiffs often plead negligence, negligence per se, or gross negligence alongside a dram shop claim.

Authority: Tex. Alco. Bev. Code § 2.03(c) — the Dram Shop Act “provides the exclusive cause of action” for providing alcohol to adults. See 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007).

Result: These common-law theories have no basis in law. Move under 91a to dismiss them and confine the case to the statutory claim.

Social Hosts and Other Non-Providers

Problem: Plaintiffs sue homeowners, employers, event sponsors, or others not licensed to sell alcohol.

Authority: Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) — no common-law duty for social hosts who serve adults. Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997) — confirms Dram Shop Act does not extend liability to social hosts.

Exception: Tex. Alco. Bev. Code § 2.02(c) — liability for adults (21+) who knowingly provide alcohol to minors under 18 (excluding parents, guardians, or spouses).

Result: Social-host claims involving adults, and non-provider theories generally, have no basis in law and are dismissible.

Exemplary (Punitive) Damages

Problem: Plaintiffs seek punitive damages by alleging gross negligence.

Authority: Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898 (Tex. App.—Fort Worth 2001) — punitive damages are not recoverable under the Dram Shop Act. Tex. Civ. Prac. & Rem. Code § 41.005 — bars punitives against a defendant for another’s criminal act.

Result: Punitive-damage claims are ripe for Rule 91a dismissal, while statutory dram shop claims remain.

Promoters, Media, and Sponsors

Problem: Plaintiffs sue radio stations, promoters, or sponsors who advertised alcohol-related events.

Authority: Triplex Communications, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995) — Texas Supreme Court rejected liability for a radio station under joint enterprise, civil conspiracy, and negligent promotion. The Court found no control, no intent, and no special duty.

Result: Claims against promoters/media defendants have no basis in law and should be dismissed under 91a.

Circumstantial Evidence Cases Post-Raoger

Problem: Plaintiffs plead dram shop claims based solely on BAC calculations, expert extrapolation, or other circumstantial evidence without direct observational evidence.

Authority: Raoger Corporation v. Myers — circumstantial evidence cannot establish obvious intoxication without direct observational evidence; expert opinions based solely on BAC constitute “pure speculation.”

Result: Claims lacking direct evidence of observable intoxication at service have no basis in fact under current law and should be dismissed under 91a.

Procedure, Timing, & Fees

3. Timing Requirements

  • Deadline: 60 days from service of the first pleading containing the challenged cause of action.
  • Amendments/Nonsuit: Plaintiffs can amend or nonsuit up to 3 days before the hearing to avoid dismissal.

Hearing and Decisions

  • Hearing: Court decides solely on pleadings.
  • Partial Dismissals: Courts can grant dismissal of targeted claims (e.g., punitive damages, social-host liability) while letting the dram shop claim proceed.
  • Severance: Consider requesting severance to make partial dismissals final and immediately appealable.

Attorney’s Fees: Request fees; even discretionary awards change settlement leverage.

Defense Practice Tips

4. Strategic Approach

  • File 91a early to narrow claims and force plaintiffs into the statutory framework.
  • Use 91a to eliminate improper parties (social hosts, promoters, officers, landlords).
  • Strike punitive damages quickly to reshape exposure and remove bifurcated-trial risk.
  • Post-Raoger: Challenge circumstantial evidence cases lacking direct observational proof.

Legal Citations:

  • Cite controlling precedent (Graff, Borneman, Triplex, Raoger) to show claims lack legal basis.
  • Target whole causes of action or discrete remedies (like punitives); avoid attacking mere theories.

Practice Notes:

  • Request attorney’s fees on each motion.
  • Pair with special exceptions if pleadings are unclear about what constitutes a “cause of action.”