Reversed and Remanded and Opinion Filed July 11, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01018-CV
JOSE ROSARIO MENDOZA JR., Appellant V. MILKSHAKE, LLC; MILKSHAKE CONCEPTS, LLC; MILKSHAKE CAPITAL PARTNERS, LLC; SP RESTAURANT HOLDINGS, LLC; AND CITIZEN UPTOWN, LLC, Appellees
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-22-02551-C
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Reichek Jose Rosario Mendoza Jr. appeals the trial court’s order granting appellees’
Rule 91a motion to dismiss. Mendoza contends the trial court erred in determining
that his claims had no basis in law or in fact. We agree that appellees’ motion did
not set out any meritorious reasons for dismissal under Rule 91a and reverse and
remand. Background
As alleged in Mendoza’s petition, on January 16, 2022, Mendoza was a patron
at a Dallas nightclub called “Citizen” when a fellow patron, Eric Lozano, shot and
critically injured him. Mendoza sued six limited liability companies—Citizen
Dallas, LLC, and the five appellees, Milkshake, LLC, Milkshake Concepts, LLC,
Milkshake Capital Partners, LLC, SP Restaurant Holdings, LLC, and Citizen
Uptown, LLC—seeking damages for his injuries. The petition states Mendoza sued
any business entity “whose name contains the words or who does business under or
as ‘Citizen,’ ‘Citizen Nightclub,’ or ‘Citizen Dallas’ located at 2511 Swiss Avenue”
in Dallas. Each defendant has its registered office at the same address on Main Street
in Dallas. The petition named Imran Sheikh as the registered agent for appellees
Milkshake, LLC and Milkshake Capital Partners, LLC and named Milkshake, LLC
as the registered agent for the other four defendants.
In his pleading, Mendoza referred to the six defendants collectively as
“Defendants” and alleged that each defendant was an agent of the others. Mendoza
alleged defendants owned and controlled the club and undertook to provide security
there. They searched, patted down, or used a metal detector wand on some, but not
all, patrons. Defendants allowed Lozano to enter the premises with a gun. After
Lozano shot Mendoza, security guards “scooped” Mendoza up and “threw him
outside onto the concrete like trash.” Mendoza alleged defendants were negligent
–2– in failing to provide appropriate and reasonable security services once they
undertook to provide such services. Among other things, he alleged defendants
failed to: reasonably inspect those entering the premises for concealed firearms,
provide rules and regulations for prevention of firearms being carried onto the
premises, enforce such rules and regulations, and properly train employees.
Mendoza alleged defendants’ conduct involved an extreme degree of risk and that
they had actual awareness of the risk, but proceeded with conscious indifference to
the rights, safety, and welfare of others. He sought actual and exemplary damages.
All defendants were represented by the same attorney. Citizen Dallas was the
only defendant to file an answer. The five appellees filed a short, joint motion to
dismiss Mendoza’s claims pursuant to Texas Rule of Civil Procedure Rule 91a.
Appellees asserted Mendoza’s claims have no basis in law or fact because (1)
appellees are entities that are not related to Citizen nightclub; (2) appellees are
parties solely for the purposes of harassment; and (3) Mendoza did not plead any
legal or factual basis to justify appellees being named as defendants.
After Mendoza responded that appellees’ stated reasons for dismissal were
either outside the scope of Rule 91a or incorrect, appellees filed a reply in support
of their motion. Under the heading “Verified Denial,” the reply stated, “Defendants
are not liable in the capacity in which they were sued . . . [and] are entirely separate
entities from the entity Plaintiff alleges committed the acts/omissions within
Plaintiff’s petition.” Attached to the reply was a sworn and notarized verification
–3– from Sheikh, who identified himself only as “an authorized representative of the
Defendants.” Sheikh said the statements contained in the verified denial are within
his personal knowledge and are true and correct.
A visiting judge sitting by assignment held a hearing on the motion to dismiss.
The sole argument made at the hearing was that appellees were the wrong parties.
The visiting judge granted the motion, dismissed appellees as defendants, and left
the issue of appellees’ attorney’s fees under Rule 91a to be determined. After
Mendoza filed a notice of nonsuit of his claims against Citizen Dallas, the district
judge signed an order which dismissed Mendoza’s claims against Citizen Dallas
without prejudice and “dispose[d] of all remaining claims and all remaining parties.”
Mendoza argues the trial court erred in granting the Rule 91a motion because
none of the three grounds asserted in appellees’ motion warranted dismissal of his
claims. We agree.
Applicable Law
Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss
a cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P.
91a.1. 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. Id. A cause of action has no basis in fact if no reasonable person could
believe the facts pleaded. Id. A motion to dismiss must state specifically the reasons
the cause of action has no basis in law, no basis in fact, or both. Id. 91a.2. The trial
–4– 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. Id. 91a.6; see id. 59 (“[n]otes, accounts, bonds,
mortgages, records, and all other written instruments, constituting, in whole or in
part, the claim sued on . . . may be made a part of the pleadings”).
Rule 91a permits motions to dismiss based on affirmative defenses, if the
plaintiff’s allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. Bethel v. Quilling, Selander,
Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). Because Rule
91a does not allow consideration of evidence, only affirmative defenses that are
conclusively established by the facts in a plaintiff’s petition are a proper basis for a
91a motion to dismiss. See id.; Frankel v. Butler, No. 05-21-01122-CV, 2022 WL
17883798, at *4 (Tex. App.—Dallas Dec. 23, 2022, no pet.) (mem. op.).
We review the merits of a Rule 91a motion de novo. Bethel, 595 S.W.3d at
654; City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
Because dismissal on the pleadings is a harsh remedy, courts must strictly construe
the requirements of Rule 91a. Renate Nixdorf GmbH & Co. KG v. TRA Midland
Props., LLC, No. 17-00577-CV, 2019 WL 92038, at *10 (Tex. App.—Dallas Jan. 3,
2019, pet. denied) (mem. op.).
Analysis
–5– In their motion to dismiss, appellees first asserted Mendoza’s claims should
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Reversed and Remanded and Opinion Filed July 11, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01018-CV
JOSE ROSARIO MENDOZA JR., Appellant V. MILKSHAKE, LLC; MILKSHAKE CONCEPTS, LLC; MILKSHAKE CAPITAL PARTNERS, LLC; SP RESTAURANT HOLDINGS, LLC; AND CITIZEN UPTOWN, LLC, Appellees
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-22-02551-C
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Reichek Jose Rosario Mendoza Jr. appeals the trial court’s order granting appellees’
Rule 91a motion to dismiss. Mendoza contends the trial court erred in determining
that his claims had no basis in law or in fact. We agree that appellees’ motion did
not set out any meritorious reasons for dismissal under Rule 91a and reverse and
remand. Background
As alleged in Mendoza’s petition, on January 16, 2022, Mendoza was a patron
at a Dallas nightclub called “Citizen” when a fellow patron, Eric Lozano, shot and
critically injured him. Mendoza sued six limited liability companies—Citizen
Dallas, LLC, and the five appellees, Milkshake, LLC, Milkshake Concepts, LLC,
Milkshake Capital Partners, LLC, SP Restaurant Holdings, LLC, and Citizen
Uptown, LLC—seeking damages for his injuries. The petition states Mendoza sued
any business entity “whose name contains the words or who does business under or
as ‘Citizen,’ ‘Citizen Nightclub,’ or ‘Citizen Dallas’ located at 2511 Swiss Avenue”
in Dallas. Each defendant has its registered office at the same address on Main Street
in Dallas. The petition named Imran Sheikh as the registered agent for appellees
Milkshake, LLC and Milkshake Capital Partners, LLC and named Milkshake, LLC
as the registered agent for the other four defendants.
In his pleading, Mendoza referred to the six defendants collectively as
“Defendants” and alleged that each defendant was an agent of the others. Mendoza
alleged defendants owned and controlled the club and undertook to provide security
there. They searched, patted down, or used a metal detector wand on some, but not
all, patrons. Defendants allowed Lozano to enter the premises with a gun. After
Lozano shot Mendoza, security guards “scooped” Mendoza up and “threw him
outside onto the concrete like trash.” Mendoza alleged defendants were negligent
–2– in failing to provide appropriate and reasonable security services once they
undertook to provide such services. Among other things, he alleged defendants
failed to: reasonably inspect those entering the premises for concealed firearms,
provide rules and regulations for prevention of firearms being carried onto the
premises, enforce such rules and regulations, and properly train employees.
Mendoza alleged defendants’ conduct involved an extreme degree of risk and that
they had actual awareness of the risk, but proceeded with conscious indifference to
the rights, safety, and welfare of others. He sought actual and exemplary damages.
All defendants were represented by the same attorney. Citizen Dallas was the
only defendant to file an answer. The five appellees filed a short, joint motion to
dismiss Mendoza’s claims pursuant to Texas Rule of Civil Procedure Rule 91a.
Appellees asserted Mendoza’s claims have no basis in law or fact because (1)
appellees are entities that are not related to Citizen nightclub; (2) appellees are
parties solely for the purposes of harassment; and (3) Mendoza did not plead any
legal or factual basis to justify appellees being named as defendants.
After Mendoza responded that appellees’ stated reasons for dismissal were
either outside the scope of Rule 91a or incorrect, appellees filed a reply in support
of their motion. Under the heading “Verified Denial,” the reply stated, “Defendants
are not liable in the capacity in which they were sued . . . [and] are entirely separate
entities from the entity Plaintiff alleges committed the acts/omissions within
Plaintiff’s petition.” Attached to the reply was a sworn and notarized verification
–3– from Sheikh, who identified himself only as “an authorized representative of the
Defendants.” Sheikh said the statements contained in the verified denial are within
his personal knowledge and are true and correct.
A visiting judge sitting by assignment held a hearing on the motion to dismiss.
The sole argument made at the hearing was that appellees were the wrong parties.
The visiting judge granted the motion, dismissed appellees as defendants, and left
the issue of appellees’ attorney’s fees under Rule 91a to be determined. After
Mendoza filed a notice of nonsuit of his claims against Citizen Dallas, the district
judge signed an order which dismissed Mendoza’s claims against Citizen Dallas
without prejudice and “dispose[d] of all remaining claims and all remaining parties.”
Mendoza argues the trial court erred in granting the Rule 91a motion because
none of the three grounds asserted in appellees’ motion warranted dismissal of his
claims. We agree.
Applicable Law
Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss
a cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P.
91a.1. 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. Id. A cause of action has no basis in fact if no reasonable person could
believe the facts pleaded. Id. A motion to dismiss must state specifically the reasons
the cause of action has no basis in law, no basis in fact, or both. Id. 91a.2. The trial
–4– 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. Id. 91a.6; see id. 59 (“[n]otes, accounts, bonds,
mortgages, records, and all other written instruments, constituting, in whole or in
part, the claim sued on . . . may be made a part of the pleadings”).
Rule 91a permits motions to dismiss based on affirmative defenses, if the
plaintiff’s allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. Bethel v. Quilling, Selander,
Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). Because Rule
91a does not allow consideration of evidence, only affirmative defenses that are
conclusively established by the facts in a plaintiff’s petition are a proper basis for a
91a motion to dismiss. See id.; Frankel v. Butler, No. 05-21-01122-CV, 2022 WL
17883798, at *4 (Tex. App.—Dallas Dec. 23, 2022, no pet.) (mem. op.).
We review the merits of a Rule 91a motion de novo. Bethel, 595 S.W.3d at
654; City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
Because dismissal on the pleadings is a harsh remedy, courts must strictly construe
the requirements of Rule 91a. Renate Nixdorf GmbH & Co. KG v. TRA Midland
Props., LLC, No. 17-00577-CV, 2019 WL 92038, at *10 (Tex. App.—Dallas Jan. 3,
2019, pet. denied) (mem. op.).
Analysis
–5– In their motion to dismiss, appellees first asserted Mendoza’s claims should
be dismissed because appellees “are entities that are NOT related to the
establishment [in] which the Plaintiff purports the incident occurred.” In their
appellate brief, appellees argue the trial court was entitled to dismiss the case based
on the affirmative defense that they were not proper parties. Neither appellees’
motion to dismiss nor their reply used the term “affirmative defense.” See TEX. R.
CIV. P. 91a.2 (motion to dismiss must state specifically reasons cause of action has
no basis in law or fact). Assuming appellees’ motion sufficiently raised this
affirmative defense as grounds for dismissal, the defense was not a valid reason for
dismissal in this case.
Appellees contend that in determining whether they were proper parties, the
trial court was entitled to consider the verified denial contained in their reply. See
TEX. R. CIV. P. 93 (requiring pleading setting up defect of parties to be verified by
affidavit). We reject appellees’ assertion that Mendoza’s claims against them can
be dismissed due to the verified denial. Assuming the verified denial conclusively
proved appellees were improper parties, it cannot be included in the Rule 91a
analysis. The trial court was required to decide the motion based solely on the
pleading of the cause of action. See id. 91a.6. This is not a case in which the
affirmative defense is conclusively established by the facts in the petition. Cf.
Bethel, 595 S.W.3d at 658 (plaintiff’s pleadings established affirmative defense of
attorney immunity because complained-of actions were the kind taken in connection
–6– with representing client in litigation). Whether appellees are improper parties is not
something that can be determined solely from Mendoza’s petition. Mendoza alleged
appellees owned and controlled the club, and we must accept his allegations as true.
There is nothing in the petition to establish that appellees are not related to Citizen
nightclub.1
As their second ground for dismissal, appellees asserted that Mendoza named
them as parties solely for the “purposes of harassment.” Appellees do not mention
this argument on appeal. Nothing in Mendoza’s petition demonstrates that appellees
were sued solely for purposes of harassment. The dismissal cannot be upheld on this
basis.
Finally, appellees asserted Mendoza did not plead any legal or factual basis to
justify appellees being parties to the suit. Appellees did not specify in their motion
why there is no legal basis to justify their being named as defendants. The motion
merely stated “Plaintiff’s causes of action against Defendants for: Negligence/Gross
Negligence have no basis in law.” We assume this is another reference to the
1 In the trial court, appellees relied on Drew v. Belver, No. 04-20-00483-CV, 2021 WL 3518541 (Tex. App.—San Antonio Aug. 11, 2021, pet. denied) (mem. op.), for the proposition that the court could consider the verified denial. Drew is not a Rule 91a case; it is a Texas Citizens Participation Act (TCPA) case. When ruling on a motion to dismiss under the TCPA, a trial court is permitted to consider evidence it could consider in a summary judgment proceeding. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); TEX. R. CIV. P. 166a(c). The holding in Drew was that it was not an abuse of discretion for the trial court to consider certified documents attached to a reply in ruling on a TCPA motion. Drew, 2021 WL 3518541, at *3. Drew does not stand for the proposition that a trial court can consider evidence in ruling on a Rule 91a motion, and appellees do not cite Drew on appeal.
–7– argument that appellees are not related to the nightclub where Mendoza was shot.
We have already rejected that basis for dismissal.
Appellees argued Mendoza’s claims had no basis in fact because Mendoza
did not plead any facts “that relate to any action and/or inaction on behalf of the
Defendants.” But Mendoza did allege appellees’ action or inaction. He alleged that
appellees (and Citizen Dallas) owned and controlled the nightclub and undertook to
provide security services at the club. He specified various ways in which appellees
failed to adequately perform security services and alleged the negligent acts or
omissions proximately caused his injuries. Mendoza alleged facts that, if true, could
support negligence claims against appellees.
In their brief, appellees present additional grounds for dismissal not included
in their motion to dismiss. For example, they argue Mendoza’s claims lacked any
basis in law because he did not distinguish between the conduct of the six defendants
and lacked any basis in fact because no reasonable person could believe six entities
engaged in a conspiracy to be negligent. A motion to dismiss must state specifically
the reasons the cause of action has no basis in law or in fact. TEX. R. CIV. P. 91a.2.
Because these arguments were not made in the trial court, we do not consider them.
See Renate Nixdorf GmbH, 2019 WL 92038, at *9 n.12. Appellees’ motion to
dismiss did not present any valid grounds for dismissal under Rule 91a, and therefore
the trial court erred in granting the motion. We sustain Mendoza’s sole issue.
–8– We reverse the trial court’s order granting appellees’ motion to dismiss and
remand for further proceedings consistent with this opinion.
/Amanda L. Reichek// 221018f.p05 AMANDA L. REICHEK JUSTICE
–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSE ROSARIO MENDOZA JR., On Appeal from the County Court at Appellant Law No. 3, Dallas County, Texas Trial Court Cause No. CC-22-02551- No. 05-22-01018-CV V. C. Opinion delivered by Justice MILKSHAKE, LLC; MILKSHAKE Reichek. Justices Partida-Kipness CONCEPTS, LLC; MILKSHAKE and Miskel participating. CAPITAL PARTNERS, LLC; SP RESTAURANT HOLDINGS, LLC; AND CITIZEN UPTOWN, LLC, Appellees
In accordance with this Court’s opinion of this date, the trial court’s August 16, 2022 order granting appellees’ motion to dismiss is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Jose Rosario Mendoza Jr. recover his costs of this appeal from appellees Milkshake, LLC, Milkshake Concepts, LLC, Milkshake Capital Partners, LLC, SP Restaurant Holdings, LLC AND Citizen Uptown, LLC.
Judgment entered this 11th day of July, 2023.
–10–