Opinion issued October 7, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00579-CV ——————————— REBECCA DE LA ROSA AND CESAR DE LA ROSA, Appellants V. MIRACLE FARM, INC. AND ROBERT D. AVERY, Appellees
On Appeal from the 21st District Court Washington County, Texas Trial Court Case No. 37976
MEMORANDUM OPINION
Rebecca and Cesar De La Rosa appeal the trial court’s orders dismissing their
claims alleging fraud and other misconduct in connection with the settlement of a
wrongful-death and survival action under Texas Rules of Civil Procedure 166a (summary judgment) and 91a (dismissal of baseless causes of action). We reverse
in part, affirm in part, and remand for further proceedings.
Background
The De La Rosas’ teenage son was killed in an accidental shooting that
occurred when Heston Avery—another teenager—pulled the trigger of what he
mistakenly believed was an unloaded shotgun.
The De La Rosas filed a wrongful-death and survival action against Heston,
Heston’s parents, and Heston’s grandfather Robert D. Avery in Shelby County (“the
Shelby County lawsuit”). Relevant here, the De La Rosas alleged Robert was
negligent for giving the shotgun to Heston when he knew or should have known that,
because of youth, inexperience, or other factors, Heston likely would use the shotgun
in a manner that risked harm to himself or others. During discovery in the Shelby
County lawsuit, Robert gave deposition testimony and answered interrogatories on
several topics, including his personal knowledge of whether Heston had behavioral,
disciplinary, or substance-abuse issues.
The De La Rosas also served discovery on a third-party, Miracle Farm, Inc.,
a residential boys’ ranch Heston attended before the shooting. Via subpoena, the De
La Rosas sought information about Heston’s time and experiences at Miracle Farm.
Miracle Farm did not respond to the subpoena.
2 Meanwhile, Robert filed a combined traditional and no-evidence motion for
summary judgment attacking the De La Rosas’ claims against him on the merits,
while his insurer offered to settle the claims. The De La Rosas never responded to
the summary-judgment motion and instead accepted the settlement offer. The
settlement agreement included a “full and complete” release with a
waiver-of-reliance clause stating that, in executing the release, the De La Rosas were
“not relying upon any statement or representation” of Robert and, instead, were
“relying upon their own judgment[.]” Under the settlement terms, the trial court
entered a partial take-nothing judgment for Robert in the Shelby County lawsuit.
Two weeks later, the De La Rosas moved for and obtained an order
compelling discovery from Miracle Farm in the still-pending litigation against
Heston.1 According to the De La Rosas, the records they eventually received from
Miracle Farm showed that, among other things, Heston was being treated for ADHD,
“had gotten with the ‘wrong crowd’ at school,” “had been receiving individual
counseling,” “needed ongoing social and psychological supervision,” “act[ed]
without thinking,” “disregarded rules at home and at school,” “ha[d] problems with
adult authority figures,” “had an alcohol and drug problem that caused family
discord,” and “was discharged or kicked out of Miracle Farm” about six months
1 The De La Rosas separately settled and dismissed their claims against Heston’s parents. 3 before the shooting “because he arranged to have a drug dealer deliver drugs to him
and other juveniles at Miracle Farm.”
In the De La Rosas’ view, the Miracle Farm records suggested that Robert
gave false or incomplete deposition testimony and interrogatory answers when he
claimed not to know of any psychological, behavioral, or substance-abuse issues that
would make it reasonably foreseeable that Heston would act incompetently or
recklessly with the shotgun. The De La Rosas’ counsel wrote to Robert’s counsel:
It is now clear that the settlement and boilerplate release were procured by fraud and fraudulent inducement by [Robert] and that [Miracle Farm] committed fraud by nondisclosure and/or conspired with [Robert] in making false representations regarding [Heston] and withholding truthful information about him. None of the information revealed in the documents from [Miracle Farm] was discussed in settlement negotiations.
Additionally, counsel stated the De La Rosas’ intention “to take all appropriate legal
actions” against Robert, including rescinding the settlement agreement and release
or filing a separate lawsuit for damages.
In response, Robert intervened in the Shelby County lawsuit and sought a
declaratory judgment on the enforceability of the settlement agreement and release.
He moved for a traditional summary judgment, arguing that the De La Rosas could
not undo the settlement agreement because the release was binding and the
waiver-of-reliance clause barred any fraud claims. The Shelby County trial court
4 granted Robert’s motion and severed the dispute between the De La Rosas and
Robert from the remaining claims against Heston.
The De La Rosas appealed the summary judgment in favor of Robert, and the
Tyler Court of Appeals affirmed.2 See De La Rosa v. Avery, No. 12-23-00112-CV,
2023 WL 7178022, at *4–7 (Tex. App.—Tyler Oct. 31, 2023, no pet.) (mem. op.).
In affirming, the Tyler Court rejected the De La Rosas’ arguments that the release
and its waiver-of-reliance provision were not binding because fact issues existed as
to whether the terms were negotiated and whether the parties discussed Robert’s
alleged misrepresentations during the settlement negotiations. Id. at *7. The court
ultimately concluded Robert was “entitled to judgment as a matter of law based on
a valid written release of liability.” Id.
A. The fraud lawsuit in Washington County
After Robert intervened in the Shelby County lawsuit but before the Shelby
County trial court granted him summary judgment, the De La Rosas filed a new
lawsuit against Robert and Miracle Farm in Washington County (the “Washington
2 Heston’s parents, whom the De La Rosas’ counsel copied on the letter alleging fraudulent inducement regarding the Miracle Farm records, took the same actions as Robert in that they intervened back into the Shelby County lawsuit, obtained a summary judgment on the enforceability of their separate settlement agreement with the De La Rosas, and then defended the ruling on appeal. See De La Rosa v. Avery, No. 12-24-00111-CV, 2024 WL 4002386, at *3–7 (Tex. App.—Tyler Aug. 29, 2024, no pet.) (mem. op.) (after remand, concluding trial court did not err in granting summary judgment on enforceability of waiver-of-reliance clause in settlement agreement). 5 County lawsuit”). In their original and amended pleadings, the De La Rosas pleaded
causes of action for fraud, negligence, gross negligence, and assisting and
participating in fraud against Robert based on allegations that he gave false and
misleading deposition testimony and interrogatory answers about Heston’s
immaturity, drug and alcohol use, and disciplinary issues and then failed to
“supplement his discovery to provide truthful and complete discovery responses.”
They further alleged that because they had no knowledge of the information
contained in Miracle Farms’ records and could not have discovered that information
from another source, they relied on Robert’s misrepresentations in deciding to settle
the Shelby County lawsuit “for a small fraction of the actual damages.”
Against Miracle Farm, the De La Rosas pleaded causes of action for
negligence, gross negligence, and fraud by nondisclosure based on Miracle Farm’s
“disregard of the subpoena” and “refusal to provide its records on Heston” until after
they settled their claims against Robert and obtained a court order compelling the
production. The gist of their allegations was that Miracle Farm had a “moral, social,
fiduciary, and legal duty . . . to produce the records in a timely manner” and, in
failing to do so, deprived the De La Rosas of information that would have reflected
negatively on Heston and increased the value of their claims in the Shelby County
lawsuit. Additionally, the De La Rosas alleged that Miracle Farm had an incentive
to withhold Heston’s records because Robert served on the board of trustees “for the
6 religious organization that controls Miracle Farm,” and thus was liable for assisting
and participating in Robert’s fraud.
Miracle Farm moved to dismiss under Rule 91a. Without specifying its
reasons, the trial court granted the Rule 91a motion and dismissed all the claims
against Miracle Farm.
On the same day, the trial court granted summary judgment for Robert,
disposing of all the De La Rosas’ claims against him. Robert had argued that he was
entitled to judgment as a matter of law because the Shelby County trial court’s
summary judgment order precluded the De La Rosas’ new claims in the Washington
County lawsuit and the release executed by the De La Rosas was binding and
estopped them from continuing to sue him. In its order granting Robert’s motion,
the trial court stated Robert was entitled to summary judgment because: (1) the
Shelby County trial court’s order “constitutes res judicata” in the Washington
County lawsuit, and (2) the De La Rosas’ settlement agreement with Robert “is
valid, enforceable, and forever bars them from bringing any claims or causes of
action against Robert . . . which in any way pertain to [the Washington County
lawsuit] or the [accidental shooting] incident.”
The De La Rosas now appeal.
7 Robert’s Motion for Summary Judgment
The De La Rosas contend the trial court erred by granting summary judgment
on their fraud claim against Robert because the claim was not barred by res judicata
or the waiver-of-reliance provision in the settlement agreement.3 We address only
res judicata because it is dispositive. See TEX. R. APP. P. 47.1.
A. Standard of review
We review a trial court’s summary judgment de novo, viewing the evidence
in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019).
A defendant who conclusively negates at least one essential element of the plaintiffs’
cause of action is entitled to summary judgment as to that cause of action. Randall’s
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a
defendant who conclusively establishes all the elements of an affirmative defense is
entitled to summary judgment. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643,
646 (Tex. 2000).
3 The De La Rosas do not complain about the dismissal of their negligence, gross negligence, or assisting and participating claims against Robert. 8 B. Res judicata
Res judicata—also known as claim preclusion—bars lawsuits that arise out of
the same subject matter as a prior suit when, “with the use of diligence, that subject
matter could have been litigated in the prior suit.” Eagle Oil & Gas Co. v. TRO-X,
L.P., 619 S.W.3d 699, 705 (Tex. 2021); Citizens Ins. Co. of Am. v. Daccach, 217
S.W.3d 430, 449 (Tex. 2007) (“Generally, res judicata prevents a plaintiff from
abandoning claims and subsequently asserting them when the claims could have
been litigated in the prior suit.”). The doctrine “seeks to bring an end to litigation,
prevent vexatious litigation, maintain stability of court decisions, promote judicial
economy, and prevent double recovery.” Daccach, 217 S.W.3d at 449; see
Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex.
2017) (“For any rational and workable judicial system, at some point litigation must
come to an end, so that parties can go on with their lives and the system can move
on to other disputes.”).
“‘[A] final judgment on an action extinguishes the right to bring suit on the
transaction, or series of connected transactions, out of which the action arose.’”
Eagle Oil & Gas, 619 S.W.3d at 705 (quoting Barr v. Resol. Tr. Corp., 837 S.W.2d
627, 631 (Tex. 1992)). We examine the factual bases, not the legal theories,
presented in the cases. Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 230,
234 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Barr, 837 S.W.2d at 631).
9 When deciding whether a set of facts forms a transaction, we make this
determination pragmatically, giving weight to considerations such as whether the
facts are related in time, space, origin, or motivation, and whether they form a
convenient unit for trial. See Barr, 837 S.W.2d at 631; Samuel, 434 S.W.3d at 234.
The elements of res judicata are: (1) a prior final judgment on the merits by a
court of competent jurisdiction; (2) identity of parties or those in privity with them;
and (3) a second action based on the same claims that were raised or could have been
raised in the first action. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212,
225 (Tex. 2022); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
The party asserting the defense of res judicata bears the burden to prove each element
of the defense. Eagle Oil & Gas, 619 S.W.3d at 706.
1. Prior final judgment
The De La Rosas contend the Shelby County trial court’s summary judgment
is not a prior final judgment on the merits because the order did not state the court’s
reasons for ruling in Robert’s favor and the order was on appeal to the Tyler Court
of Appeals. We disagree.
A final summary judgment is a judgment on the merits that is given preclusive
effect for the purpose of res judicata. Fernandez v. Mem’l Healthcare Sys., Inc., 896
S.W.2d 227, 231 (Tex. App.—Houston [1st Dist.] 1995, writ denied). There is no
real dispute that the Shelby County trial court’s summary judgment in Robert’s favor
10 became final upon its severance from the claims still pending against Heston. Even
though the trial court’s reasons for granting summary judgment are not specified in
the order itself, they are found in Robert’s motion, which requested a declaration
that the settlement agreement and release between him and the De La Rosas was
binding and concluded the litigation between them. See McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 340–41 (Tex. 1993) (summary-judgment motion
“must stand or fall on the grounds expressly presented in the motion”). Because the
uncontroverted evidence shows that the Shelby County trial court considered
Robert’s motion and granted summary judgment because it found the motion
meritorious, the summary judgment is an adjudication on the merits.4 See
Fernandez, 896 S.W.2d at 231.
4 In this appeal, the De La Rosas argue that the Shelby County trial court’s summary judgment cannot have preclusive effect because the order incorrectly referenced Robert’s pre-settlement summary-judgment motion attacking the merits of the De La Rosas’ negligence claims against him, rather than his post-settlement summary-judgment motion on res judicata and the release’s waiver-of-reliance provision. This position is inconsistent with the one they took in the Tyler Court, when they recognized the Shelby County trial court’s order as arising from Robert’s petition in intervention and subsequent motion on the enforceability of the settlement agreement. See De La Rosa, 2023 WL 7178022, at *4 (arguing “they are not bound by the settlement agreement and release [with Robert], despite its waiver-of-reliance provision”). Moreover, the incorrect reference to the pre-settlement motion was corrected by the Shelby County trial court in a nunc pro tunc order, and the De La Rosas did not challenge the propriety of the nunc pro tunc order in the Tyler appeal. See generally id.; see also Pharus Funding, LLC v. Sanchez, No. 14-20-00418-CV, 2022 WL 288122, at *1 n.1 (Tex. App.—Houston [14th Dist.] Feb. 1, 2022, pet. denied) (mem. op.) (nunc pro tunc order elates back to the date of the original order and is effective as of the earlier date). 11 The fact that the De La Rosas had appealed the Shelby County trial court’s
summary judgment to the Tyler Court of Appeals does not prevent that judgment
from having preclusive effect. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6
(Tex. 1986) (“[A] judgment is final for the purposes of issue and claim preclusion
despite the taking of an appeal unless what is called an appeal actually consists of a
trial de novo.” (quotations omitted)); Foussadier v. Triple B Servs., LLP, No.
01-21-00024-CV, 2022 WL 3589497, at *4 (Tex. App.—Houston [1st Dist.] Aug.
23, 2022, pet. denied) (mem. op.) (even though summary judgment was appealed,
“it was final for the purpose of res judicata as of the date of its issuance”). And it
retained its preclusive effect when it was affirmed by the Tyler Court. See De La
Rosa, 2023 WL 7178022, at *9. Thus, the first element of res judicata—requiring a
prior final determination on the merits by a court of competent jurisdiction—is
satisfied. See Amstadt, 919 S.W.2d at 652.
2. Identity of parties
The De La Rosas also assert that Robert did not meet the second res-judicata
element because there was not a complete identity of parties between the Shelby
County and Washington County lawsuits. They point out that Miracle Farm was not
a party to the Shelby County lawsuit but was a party to the Washington County
lawsuit, whereas Heston’s parents were parties to the Shelby County lawsuit but not
the Washington County lawsuit. It does not matter whether Miracle Farm or
12 Heston’s parents were parties in both actions because res judicata was asserted as an
affirmative defense by Robert, who was a party in both actions, against the De La
Rosas, who also were parties in both actions. Thus, the second element of res
judicata—requiring an identity of parties—is met. See id.
3. Same claims
The De La Rosas argue that Robert failed to meet the third res-judicata
element because their fraud claim related to the settlement agreement was not ripe
when they initially sued him in Shelby County for negligence in causing or
contributing to cause their son’s death. That is, the De La Rosas assert their fraud
claim against Robert arises from new facts that were not discovered before a partial
take-nothing judgment was entered for Robert in the Shelby County lawsuit per the
terms of the settlement.
Certainly, the Supreme Court of Texas has held that res judicata cannot bar a
claim that was not ripe at the time the first lawsuit was filed. Eagle Oil & Gas, 619
S.W.3d at 706. And certainly, when the De La Rosas filed the Shelby County
lawsuit, the claims related to the settlement agreement and release were not ripe
because the settlement agreement had not yet been created or signed. But the
Supreme Court has also held that when a dispute over a settlement agreement arises
while the trial court still has jurisdiction over the underlying action, “a claim to
enforce the settlement agreement should, if possible, be asserted in that court under
13 the original cause number.” Mantas v. Fifth Ct. of Appeals, 925 S.W.2d 656, 658
(Tex. 1996). Robert did that.
In the Shelby County lawsuit, although a partial take-nothing judgment had
been entered in his favor on the De La Rosas’ wrongful-death and survival claims,
Robert intervened in the still-pending case against Heston and sought a declaration
that the settlement agreement and release between him and the De La Rosas is valid,
enforceable, and binding on the parties. The letter from the De La Rosas’ counsel
that preceded (and prompted) Robert’s intervention essentially laid out the claim the
De La Rosas later asserted against Robert in the Washington County lawsuit. The
letter—sent about six months before the Shelby County trial court granted Robert
summary judgment—alleged that the Miracle Farm discovery showed Robert gave
false and incomplete deposition testimony and untruthful interrogatory answers
which the De La Rosas reasonably relied on in deciding to settle the case against
him, that none of the information revealed in the Miracle Farm documents was part
of the settlement negotiations, and that they believed the “boilerplate” settlement
and release were procured by Robert’s fraud and fraudulent inducement. Counsel
further related that the De La Rosas asked him to take “all appropriate legal actions
against [Robert] . . . including rescission of the settlement agreement and release and
a separate lawsuit to recover actual and punitive damages.”
14 In responding to Robert’s subsequent intervention and summary-judgment
motion on the enforceability of the settlement agreement and release in the Shelby
County lawsuit, the De La Rosas could have asserted a counterclaim for fraudulent
inducement. Premium Plastics Supply, Inc. v. Howell, 537 S.W.3d 201, 206 (Tex.
App.—Houston [1st Dist.] 2017, no pet.) (applying res judicata to compulsory
counterclaim); see also TEX. R. CIV. P. 97(a) (counterclaim must be litigated in an
initial suit when “it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction”). That is,
the issue of the settlement agreement and release’s validity and enforceability would
have formed a convenient trial unit with the allegation that the settlement agreement
and release are not enforceable because of fraudulent inducement. See Barr, 837
S.W.2d at 630 (observing substantial similarity of definition of res judicata and rule
of compulsory counterclaims). With due diligence, the De La Rosas’ fraudulent
inducement allegations could have been joined in the Shelby County lawsuit. Thus,
the third element of res judicata—requiring a second action based on the same claims
that were raised or could have been raised in the first action—is satisfied. See
Amstadt, 919 S.W.2d at 652.
In sum, because the De La Rosas were parties to the Shelby County Lawsuit,
wherein Robert sought relief declaring the settlement agreement valid and
15 enforceable, and the claims alleged both then and in the Washington County lawsuit
arise from the same nucleus of operative facts, we hold that res judicata bars the De
La Rosas’ fraud claim against Robert. And therefore, the trial court did not err in
granting summary judgment for Robert.
We overrule the De La Rosas’ issue challenging the summary judgment on
their claims against Robert.
Miracle Farm’s Rule 91a Motion to Dismiss
The De La Rosas argue the order dismissing their claims against Miracle Farm
under Rule 91a is erroneous because (1) Miracle Farm’s Rule 91a motion was not
timely as to their fraud by nondisclosure claim, (2) the economic-loss rule does not
bar recovery of their negligence claim, and (3) there is a factual basis for their
assisting-and-participating-in-fraud claim.5
A. Standard of review and applicable law
A party may move to dismiss a claim under Texas Rule of Civil Procedure
91a because the claim has no basis in law or fact. TEX. R. CIV. P. 91a.1; see City of
Dall. v. Sanchez, 494 S.W.3d 722, 724–25 (Tex. 2016). A claim “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.” TEX. R. CIV. P. 91a.1. A claim
5 The De La Rosas do not complain about the dismissal of their gross negligence claim under Rule 91a. 16 has no basis in law in at least two situations: when the nonmovant’s pleading alleges
(1) too few facts to establish a cognizable claim or (2) facts that defeat the
claim. Guillory v. Seaton, LLC, 470 S.W.3d 237, 240 (Tex. App.—Houston [1st
Dist.] 2015, pet. denied). A claim “has no basis in fact if no reasonable person could
believe the facts pleaded.” TEX. R. CIV. P. 91a.1.
In deciding the motion, the trial court must liberally construe the pleadings in
the nonmovant’s favor. See Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—
Houston [1st Dist.] 2016, no pet.). It cannot consider evidence. TEX. R. CIV. P.
91a.6. Instead, it “must decide the motion based solely on the pleading of the cause
of action, together with any pleading exhibits permitted by Rule 59,” which includes
a written instrument on which the claims or defenses are based. TEX. R. CIV. P. 59,
91a.6. These limitations, of course, do not bar the trial court from considering the
legal arguments made by the parties. Bethel v. Quilling, Selander, Lownds, Winslett
& Moser, P.C., 595 S.W.3d 651, 655–56 (Tex. 2020).
We review a trial court’s order dismissing claims under Rule 91a de novo. Id.
at 654. We do so because whether a remedy is available based on the facts alleged
by a plaintiff is a question of law and Rule 91a’s factual-plausibility standard is
analogous to a legal-sufficiency review. Sanchez, 494 S.W.3d at 724.
17 B. Fraud by nondisclosure
The De La Rosas argue the trial court erred in dismissing their fraud by
nondisclosure claim because Miracle Farm’s motion was untimely as to that claim.
Under Rule 91a.3, a motion to dismiss “must” be “filed within 60 days after
the first pleading containing the challenged cause of action is served on the
movant[.]” TEX. R. CIV. P. 91a.3(a). Generally, the term “must” is recognized as
mandatory, creating a duty or obligation. Helena Chem. Co. v. Wilkins, 47 S.W.3d
486, 493 (Tex. 2001). And in the context of a timing provision, like the sixty-day
deadline in Rule 91a.3, “must” is “given a mandatory meaning when followed by a
noncompliance penalty.” Id. But if a provision requiring an act to be performed
within a certain time does not contain words restraining the act’s performance after
that time, the timing provision is usually directory. Id. at 495.
Because Rule 91a does not provide any consequences for filing a motion
outside of the prescribed sixty-day period, this Court and others have held that the
timing provisions in Rule 91a.3 are directory and not mandatory. Malik v. GEICO
Advantage Ins. Co., No. 01-19-00489-CV, 2021 WL 1414275, at *4 (Tex. App.—
Houston [1st Dist.] Apr. 15, 2021, pet. denied) (mem. op.); Fiamma Statler, LP v.
Challis, No. 02-18-00374-CV, 2020 WL 6334470, at *7 (Tex. App.—Fort Worth
Oct. 29, 2020, pet. denied) (mem. op.). Consequently, any noncompliance with the
timing of the motion will not result in reversal if the error is harmless. Malik, 2021
18 WL 1414275, at *4 (citing TEX. R. APP. P. 44.1(a)); see also MedFin Mgr., LLC v.
Stone, 613 S.W.3d 624, 628–29 (Tex. App.—San Antonio 2020, no pet.) (trial
court’s failure to deny Rule 91a motion within prescribed time was error subject to
harm analysis); Malone v. Malone, No. 06-10-00083-CV, 2011 WL 908176, at *5
(Tex. App.—Texarkana Jan. 7, 2011, no pet.) (mem. op.) (“The harmless error rule
applies to all errors, even those involving the violation of procedural rules couched
in mandatory language.”).
The De La Rosas argue Miracle Farm’s motion was untimely as to their
fraud-by-nondisclosure claim because the motion was filed more than sixty days
after they first asserted the claim in their original petition. Assuming the De La
Rosas are correct about the motion’s untimeliness, they are not entitled to relief
because they have not shown harm from the complained-of delay. See TEX. R. APP.
P. 44.1(a); Malik, 2021 WL 1414275, at *4.
As Miracle Farm points out, the De La Rosas amended their pleadings four
times in the first five months of the Washington County lawsuit. They filed their
original petition alleging fraud by nondisclosure against Miracle Farm on November
22, 2022, and then amended the petition less than two weeks later. They voluntarily
abandoned the fraud-by-nondisclosure claim in their second amended petition filed
on February 20, 2023, and alleged claims for negligence and gross negligence
instead. The De La Rosas then revived the fraud-by-nondisclosure claim in a third
19 amended petition filed on March 3, 2023. And they carried the
fraud-by-nondisclosure claim forward in their fourth amended petition on April 27,
2023. Miracle Farm filed its initial Rule 91a motion forty-two days after the De La
Rosas revived the fraud-by-nondisclosure claim in the third amended petition.
The De La Rosas have not explained how this timing harmed them,
considering they effectively dismissed the fraud-by-nondisclosure claim when they
omitted it from their second amended petition just three months after the Washington
County lawsuit began. When the claim was revived in the third amended petition,
Miracle Farm moved with the speed contemplated by Rule 91a and challenged the
claim as ripe for early dismissal within forty-two days. As our sibling court in Fort
Worth recognized,
Rule 91a, including its directory deadlines, was intended to benefit a movant seeking early dismissal of a baseless claim before costly litigation ensues. Additional time would not prejudice a nonmovant because the delay would given the nonmovant more time to formulate a response to a dismissal argument, more time to amend a petition to add facts or adjust legal theories, and more time to consider whether to non-suit [its] case.
Fiamma Statler, 2020 WL 6334470, at *8 (internal quotation and citations
omitted) (rejecting argument that delay in filing and ruling on Rule 91a motion
probably caused rendition of improper judgment or probably prevented appellant
20 from properly presenting its case to appellate court).6 On this record, we cannot
conclude that the complained-of delay in the filing of Miracle Farm’s Rule 91a
motion caused the rendition of an improper judgment or prevented the De La Rosas
from properly presenting their case to this Court. See TEX. R. APP. P. 44.1(a).
We overrule the De La Rosas’ issue challenging the dismissal of their
fraud-by-nondisclosure claim against Miracle Farm.
C. Negligence
The De La Rosas argue the trial court erred by dismissing their negligence
claim against Miracle Farm because it is not barred by the economic-loss rule. While
the economic-loss rule was one ground on which Miracle Farm challenged the
negligence claim, it was not the only ground. The motion’s other ground—that the
negligence claim has no basis in law because a non-party does not owe a duty to
protect a plaintiff from prematurely settling their case before discovery responses
are served—is unchallenged by the De La Rosas on appeal. See D. Hous., Inc. v.
Love, 92 S.W.3d 450, 454 (Tex. 2002) (duty is essential element of every negligence
cause of action).
When, as here, an order granting a Rule 91a motion does not specify the
grounds for dismissal, the party appealing the order must challenge every ground
6 Notably, the De La Rosas do not make any argument that the Rule 91a motion should not have been granted as to the fraud-by-nondisclosure claim on the merits, further supporting our harmlessness determination. 21 upon which the trial court could have granted the motion. See Est. of Savana, 529
S.W.3d 587, 592 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Shumway v.
Whispering Hills of Comal Cnty. Tex. Prop. Owners Ass’n, Inc., No.
03-15-00513-CV, 2016 WL 4429939, at *2 (Tex. App.—Austin Aug. 16, 2016, pet.
denied) (mem. op.); Parkhurst v. Office of Att’y Gen. of Tex., 481 S.W.3d 400, 402
(Tex. App.—Amarillo 2015, no pet.). If the appealing party fails to address any
ground, we must uphold the order on the unchallenged ground. Parkhurst, 481
S.W.3d at 402. Because the De La Rosas did not address the duty ground on appeal,
we must uphold the dismissal of the negligence claim. See id.
We overrule the De La Rosas’ issue challenging the dismissal of their
negligence claim against Miracle Farm.
D. Assisting and participating in Robert’s fraud
The De La Rosas next argue the trial court erred by dismissing their claim that
Miracle Farm assisted and participated in Robert’s fraud.
Viewing the allegations for the assisting-and-participating claim liberally in
the De La Rosas’ favor, they allege that Robert committed fraud when he gave false
interrogatory responses in March 2021 and false deposition testimony in December
2021 in the Shelby County lawsuit, that they subpoenaed Miracle Farm for
documents regarding Heston in January 2022, that there was an incentive for Miracle
Farms to withhold the documents because Robert had been on the board of trustees
22 for the organization that controls Miracle Farm for twenty-six years, and that Miracle
Farm assisted and participated in Robert’s fraud by negligently, recklessly, or
intentionally withholding production of the documents regarding Heston.
In the Rule 91a motion, Miracle Farm’s sole challenge to the
assisting-and-participating claim is that the claim has no basis in fact because no
reasonable person could believe Miracle Farm assisted and participated in Robert’s
fraud by refusing to respond to the subpoena that was sent after Robert allegedly
provided fraudulent discovery answers. See TEX. R. CIV. P. 91a.1 (“A cause of
action has no basis in fact if no reasonable person could believe the facts pleaded.”).
Miracle Farm did not argue that the assisting-and-participating claim has no basis in
law because the allegations, taken as true, do not entitle the De La Rosas to the relief
sought. See Guillory, 470 S.W.3d at 240 (recognizing situations in which claim has
no basis in law under Rule 91a).
Assuming without deciding that an assisting-and-participating claim is
recognized under Texas law, and that the allegations provide a basis in law for the
claim if believable, we disagree that dismissal was warranted based on Miracle
Farm’s “no basis in fact” challenge. The De La Rosas are not asserting that Miracle
Farm literally assisted and participated Robert at the specific times he provided the
allegedly fraudulent interrogatory responses and deposition answers, but are
asserting Miracle Farm assisted and participated in Robert’s fraud by withholding
23 documents that would have revealed the fraud to the De La Rosas. Without regard
to whether these facts provide a basis in law for the claim, they are not unbelievable.
Because these allegations are not such that no reasonable person could believe them,
we hold Miracle Farm was not entitled to dismissal under Rule 91a. See Nat’l
Cleaners, LLC v. Aron, No. 14-21-00549-CV, 2022 WL 3973591, at *7 (Tex.
App.—Houston [14th Dist.] Sept. 1, 2022, no pet.) (mem. op.) (concluding claim
had basis in fact because allegations were not unbelievable). We sustain the De La
Rosas’ issue challenging the dismissal of their assisting-and-participating claim
Conclusion
We reverse that portion of the trial court’s Rule 91a motion order dismissing
the De La Rosas’ assisting-and-participating claim against Miracle Farm, affirm the
remainder of the trial court’s judgment, and remand for further proceedings
consistent with this opinion.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.