Eric Ellis v. City of Fort Worth; Amelia Hope Heise; George Ferguson; And Deborah Fowler

Opinion

In the

Court of Appeals

Second Appellate District of Texas at Fort Worth

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No. 02-26-00190-CV

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ERIC ELLIS, Appellant

V.

CITY OF FORT WORTH; AMELIA HOPE HEISE; GEORGE FERGUSON; AND DEBORAH FOWLER, Appellees

On Appeal from the 352nd District Court Tarrant County, Texas

Trial Court No. 352-371978-25

Before Sudderth, C.J.; Womack and Walker, JJ.

Memorandum Opinion by Justice Womack

MEMORANDUM OPINION

I. INTRODUCTION

After Appellant Eric Ellis filed suit against Appellees City of Fort Worth, Amelia Hope Heise,1 George Ferguson, and Deborah Fowler, Appellees filed a Rule 91a motion to dismiss. See Tex. R. Civ. P. 91a.1. The trial court later granted that motion without setting a hearing or providing a submission date. In six issues on appeal, Ellis argues, among other things, that the trial court erred by granting Appellees’ Rule 91a motion without first setting a hearing or providing a submission date. We agree that the trial court erred in this respect and that Ellis was harmed by the error. Accordingly, we will sustain Ellis’s issues complaining about the lack of notice of a hearing or a submission date, and we will reverse the trial court’s dismissal order and remand for further proceedings consistent with this opinion.

II. BACKGROUND

As alleged in his petition, after a vehicle he co-owned was stolen, Ellis reported the theft to law enforcement. The Fort Worth Police Department (FWPD) later found the vehicle and impounded it. Ellis then requested that the vehicle be released back to him without payment of towing, storage, and exit-tow fees, and Appellees

1 In the record, Heise is sometimes referred to as “Amelia Hope Heise” and other times as “Amelia Heise” or “Amelia ‘Amy’ Heise.” We will refer to her as “Heise.”

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allegedly refused that request.2 Ellis sued Appellees for certain constitutional violations, statutory violations, conversion, negligence, and unjust enrichment. He also requested declaratory and injunctive relief.

Appellees filed a joint answer. Within that answer, Appellees included a Rule 91a motion to dismiss. See id. Through that motion, Appellees argued that, under the facts pleaded, none of Ellis’s claims had any basis in law or in fact. In the portion of their answer discussing the Rule 91a motion, Appellees stated that they were not requesting a hearing on the motion but that they were asking the trial court to consider the motion by submission. In their answer, Appellees also made a motion to dismiss pursuant to Chapter 13 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 13.001. Through that motion, Appellees argued that Ellis’s lawsuit was frivolous and malicious because he “ha[d] no realistic chance at succeeding on the merits of any of [his] claims and that none ha[d] any basis in law or [in] fact.”

A little over a month after Appellees filed their answer, the trial court signed an order granting the Rule 91a motion and dismissing Ellis’s claims with prejudice. Notably—and as acknowledged by both sides in their respective appellate briefs—the trial court signed the order even though it had not conducted a hearing on the Rule 91a motion and had not provided any notice of the submission date of the

According to Ellis’s petition, Heise and Ferguson are employed by FWPD, 2

while Fowler is an employee of the facility that impounded his vehicle.

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court’s consideration of the motion. The trial court’s dismissal order provided, in pertinent part:

On this date, the Court considered the Motion to Dismiss filed by [Appellees] pursuant to Texas Rule of Civil Procedure 91a. After considering such motion and other documents on file herein, the Court is of the opinion that [Appellees’] 91a Motion to Dismiss should be GRANTED.

Accordingly, it is ORDERED that [Appellees’] Motion to Dismiss . . . is hereby GRANTED and each of [Ellis’s] causes of action against [Appellees is] hereby DISMISSED with prejudice to refiling of same.

Ellis later filed a motion to vacate the trial court’s dismissal order, complaining that the order was void ab initio because it had been entered before service had been completed on each of Appellees. The trial court did not sign an order on the motion to vacate, and it was overruled by operation of law. See Tex. R. Civ. P. 329b(c) (providing that a motion for new trial or motion to modify, correct or reform a judgment is overruled by operation of law if not determined by written order signed within seventy-five days after the judgment was signed). This appeal followed.

III. DISCUSSION

In his first, third, and fourth issues, Ellis complains that the trial court erred by granting Appellees’ Rule 91a motion without first setting a hearing or providing a submission date.3 We will consider these issues together.

3 In his first issue, Ellis complains that “the trial court erred by granting dismissal with prejudice under Texas Rule of Civil Procedure 91a where the clerk’s record does not reflect that the trial court ever set or noticed a hearing or submission

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A. Applicable Law and Standard of Review Rule 91a authorizes a party to file a motion to dismiss a cause of action on the grounds that it has no basis in law or in fact. Tex. R. Civ. P. 91a.1. The motion to dismiss must be filed no later than the sixtieth day after the pleading containing the cause of action is served on the movant, may not be heard earlier than twenty-one days after the motion is filed, and must be ruled on within forty-five days after the motion is filed. Tex. R. Civ. P. 91a.3. Notably, each party is entitled to at least fourteen days’ notice of a hearing4 on a Rule 91a motion to dismiss. Tex. R. Civ. P. 91a.6. The trial court, however, is not required to conduct an oral hearing on the motion. Id. Any response to the motion must be filed no later than seven days before the hearing. Tex. R. Civ. P. 91a.4.

A trial court may not rule on a Rule 91a motion to dismiss if, at least three days before the hearing, the respondent files a nonsuit of the challenged cause of action or the movant withdraws the motion. Tex. R. Civ. P. 91a.5(a). If the respondent amends the challenged cause of action at least three days before the hearing, the

date as required to trigger the procedural safeguards contained in Rules 91a.4, 91a.5, and 91a.6.” In his third issue, Ellis argues that “the trial court violated Rule 91a.4 by dismissing [his] claims without first providing a hearing or submission date from which [he] could determine the deadline to file a response.” And in his fourth issue, Ellis contends that “the trial court violated Rule 91a.5 by dismissing [his] claims with prejudice without first providing a hearing or submission date sufficient to permit amendment or nonsuit before dismissal.”

4 As noted by a comment to Rule 91a, “The term ‘hearing’ in the rule includes both submission and an oral hearing.” Tex. R. Civ. P. 91a cmt. 2013.

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movant may file a withdrawal of the motion to dismiss or an amended motion to dismiss before the date of the hearing. Tex. R. Civ. P. 91a.5(b). An amended motion to dismiss restarts the time periods in Rule 91a. Tex. R. Civ. P. 91a.5(d).

Appellate courts typically review a trial court’s ruling on a Rule 91a motion to dismiss de novo. See Smart v. Prime Mortg. & Escrow, LLC, 659 S.W.3d 155, 161 (Tex. App.—El Paso 2022, pet. denied); Krause v. Mayes, 652 S.W.3d 880, 886 (Tex. App.— Houston [14th Dist.] 2022, no pet.); Bedford Int. Off. Space, LLC v. Tex. Ins. Grp., Inc., 537 S.W.3d 717, 719 (Tex. App.—Fort Worth 2017, pet. dism’d). B. Analysis In their Rule 91a motion to dismiss, Appellees requested that the trial court consider the motion by submission. The trial court later granted the Rule 91a motion without ever having provided notice of the date it would be considering the motion. Thus, there was no date that triggered the seven-day deadline for Ellis to file his response. See Tex. R. Civ. P. 91a.4; see also Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure and Review, 33 Rev. Litig. 469, 544 (2014) (“Unless the parties receive notice of the hearing date, they will be unaware that they have an approaching filing deadline under Rule 91a, and they will not be able to determine the actual deadlines.”). Similarly, without notice of the submission date, there was no date to trigger the three-day deadline for Ellis to file a nonsuit of the challenged causes of action or to amend the challenged causes of action. See Tex. R. Civ. P. 91a.5(a), (b). Further, without providing notice of the submission date, the trial court failed to give

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Ellis the requisite fourteen days’ notice required by Rule 91a.6.5 See Tex. R. Civ. P. 91a.6.

The San Antonio Court of Appeals’ decision in Gaskill v. VHS San Antonio Partners, LLC is instructive. 456 S.W.3d 234 (Tex. App.—San Antonio 2014, pet. denied). In Gaskill, the appellees filed a Rule 91a motion to dismiss the appellants’ claims. Id. at 237. The Rule 91a motion was not set for hearing, and neither the trial court nor the appellees provided a submission date. Id. On the forty-second day after the motion was filed, the appellees filed a motion for an expedited hearing, requesting that the trial court either: (1) decide the motion without an oral hearing and without any notice, (2) shorten the notice period and hold an expedited hearing, or (3) enlarge the time for ruling on the motion beyond the forty-five-day deadline set by Rule 91a.3 to allow the appellants at least seven days to file a response and fourteen days’ notice of the hearing. Id. The trial court later signed an order granting the motion to expedite the hearing and immediately thereafter granted the Rule 91a motion to dismiss. Id.

On appeal, the appellants argued that the trial court had abused its discretion by holding the hearing on the Rule 91a motion without giving them the requisite notice of the hearing and a meaningful opportunity to respond. Id. at 238. The

In their brief, Appellees candidly acknowledge that Rule 91a.6 “mandates that 5

all parties receive at least 14 days’ notice of the hearing date for a motion to dismiss,” and they “further acknowledge that neither Appellees nor [the trial court] provided such notice of a submission date.”

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appellees countered that in the absence of any formal notice of a hearing, Rule 91a.3(c) “effectively provide[d] notice that the motion to dismiss w[ould] be decided without an oral hearing on the forty-fifth day after the motion was filed.” Id.; see Tex. R. Civ. P. 91a.3(c). After considering the parties’ arguments, the San Antonio Court of Appeals held that “Rule 91a expressly requires that notice of the date of the hearing, whether oral or by submission, be given to the parties.” Gaskill, 456 S.W.3d at 239. Accordingly, the court “decline[d] to hold that notice of the hearing and thus notice of the deadlines to respond, amend, or file a nonsuit may be implied from the movant’s failure to give notice of a hearing.” Id. The court stated that “formal notice of a Rule 91a hearing must be provided to the parties, regardless of whether the trial court will hold an oral hearing” and that a trial court “has no discretion to hold a Rule 91a hearing without giving any prior notice of the date and time of the hearing to the respondent.” Id. Accordingly, “[b]ecause the trial court ruled on the motion and dismissed [the appellants’] causes of action without providing notice of the hearing and thus without providing [them] a meaningful opportunity to respond to the motion on the merits,” the court reversed the trial court’s dismissal order and remanded the case to the trial court. Id.

In their brief, Appellees candidly acknowledge the precedent from Gaskill, stating that the court in Gaskill held that “the hearing notice requirement applies equally to a submission date if the matter is to be decided without hearing” and that the “failure to provide such notice was held to be reversible error.” Appellees

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maintain, however, that Gaskill is distinguishable because in that case “there [was] no discussion of an alternative dispositive motion.” Appellees suggest that unlike in Gaskill, here, there was an alternative dispositive motion before the trial court— namely, their Chapter 13 motion to dismiss. Thus, according to Appellees, because the trial court could have signed an order granting their Chapter 13 motion to dismiss, any error in granting the Rule 91a motion was rendered harmless.

We disagree. The trial court did not grant Appellees’ Chapter 13 motion to dismiss; rather, the dismissal order was expressly based on Appellees’ Rule 91a motion. Even if the trial court could have properly granted Appellees’ Chapter 13 motion to dismiss, it did not do so, and we will not address the merits of a motion that was not reached by the trial court. See Harris v. Thompson Buick, G.M.A.C., Inc., 601 S.W.2d 757, 758–59 (Tex. App.—Tyler 1980, no writ) (holding that when record did not indicate that trial court ruled on appellees’ motion for special appearance, appellate court could not consider points of error relating to said motion); see also Martin v. Uvalde Sav. & Loan Ass’n, 773 S.W.2d 808, 814 (Tex. App.—San Antonio 1989, no writ) (“A motion which is not acted on by the trial court does not furnish a basis for a point of error.”).

In sum, like the court in Gaskill, we hold that Rule 91a requires that notice of the date of the hearing, whether oral or by submission, be given to the parties; thus,

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the trial court erred by granting the Rule 91a motion without providing such notice.6 See Tex. R. Civ. P. 91a.4, 91a.5, 91a.6; Gaskill, 456 S.W.3d at 239; see also Patton, Motions to Dismiss, supra, at 544 (“If the trial court decides to rule on the motion to dismiss without providing the parties with an oral hearing . . . the court will need to notify the parties of the submission date.”). We further hold that this error harmed Ellis because it probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Gaskill, 456 S.W.3d at 239; see also Valdez v. Robertson, 352 S.W.3d 832, 834 (Tex. App.—San Antonio 2011, no pet.) (“The failure to give sufficient notice [of a hearing] deprives a party of his due[-]process rights and warrants reversal.”); Lester v. Cap. Indus., Inc., 153 S.W.3d 93, 96 (Tex. App.—San Antonio 2004, no pet.) (holding that appellant’s lack of notice of summary-judgment hearing was “both injurious and prejudicial”); Patton, Motions to Dismiss, supra, at 545 (“A complete lack of notice to the

6 The parties apply different standards of review. In his brief, Ellis contends that the standard of review “is principally de novo.” In their brief, Appellees maintain that the standard of review is an abuse of discretion. As noted above, we typically review a trial court’s ruling on a Rule 91a motion to dismiss de novo. See Smart, 659 S.W.3d at 161; Krause, 652 S.W.3d at 886; Bedford Int. Off. Space, LLC, 537 S.W.3d at 719. We note, however, that although the San Antonio Court of Appeals did not specifically address the standard of review in Gaskill, it stated that a trial court has “no discretion” to hold a Rule 91a hearing without first giving notice of the hearing date to the respondent. 456 S.W.3d at 239. Generally, a trial court’s failure to correctly apply the law is an abuse of discretion, and an order is subject to reversal when the trial court misinterprets or misapplies the law or acts arbitrarily or unreasonably. Henry v. Smith, 637 S.W.3d 226, 239 (Tex. App.—Fort Worth 2021, pet. denied). Thus, even if we applied an abuse-of-discretion standard, we would similarly hold that the trial court’s granting of the Rule 91a motion to dismiss without providing the requisite notice of the submission date constituted an abuse of discretion. See id.; Gaskill, 456 S.W.3d at 239.

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non-movant of the Rule 91a hearing would almost certainly be viewed as a violation of the non-movant’s due process rights to notice and an opportunity to be heard in a meaningful time and in a meaningful manner.”).

We sustain Ellis’s first, third, and fourth issues.7 IV. CONCLUSION

Having sustained Ellis’s first, third, and fourth issues—which are dispositive—

we reverse the trial court’s dismissal order and remand for further proceedings consistent with this opinion.

/s/ Dana Womack

Dana Womack

Justice

Delivered: August 13, 2026

7 Because those issues are dispositive of this appeal, we need not address Ellis’s remaining issues. See Tex. R. App. P. 47.1.