Scott Phillip Lewis v. Dunham & Jones Attorneys at Law, P.C.; Paul Dunham; Gary Barton; Duane Graeff

• Court: Texas Court of Appeals, 3rd District (Austin)
• Decided: April 3, 2026
• Docket: 03-25-00419-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00419-CV

Scott Phillip Lewis, Appellant

v.

Dunham & Jones Attorneys at Law, P.C.; Paul Dunham; Gary Barton; Duane Graeff, Appellees

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-25-002146, THE HONORABLE WILLIAM C. KIRKENDALL, JUDGE PRESIDING

MEMORANDUM OPINION

Scott Phillip Lewis appeals from the trial court’s order dismissing his

legal-malpractice lawsuit under Rule 91a. Because Lewis’s petition establishes that his claim is

time-barred, we will affirm.

BACKGROUND

Paul Dunham, Gary Barton, and Duane Graeff are criminal defense attorneys who

worked at Dunham & Jones Attorneys at Law, P.C. (collectively, appellees). Appellees

represented Lewis after he was arrested for driving while intoxicated in 2016. In March 2025,

Lewis filed this suit against appellees for legal malpractice and generally alleges that appellees

failed to explain charges and plea-bargain discussions to him, intentionally prolonged proceedings,

and never reviewed discovery with him. Lewis maintains that he “always intended to go to trial”

but instead pleaded guilty to a lesser charge “approximately four (4) years after the original charge,” i.e., in 2020. He alleges that appellees’ “malpractice” caused his “symptoms of

post-traumatic stress disorder (PTSD) to progress.”

Appellees answered and filed a Rule 91a motion to dismiss Lewis’s suit, noting that

the charges against Lewis were dismissed in September 2020 and thus Lewis’s suit—filed over

four years later—is barred by the two-year statute of limitations applicable to legal-malpractice

claims. See Tex. Civ. Prac. & Rem. Code § 16.003(a); Erikson v. Renda, 590 S.W.3d 557, 563

(Tex. 2019). Lewis did not respond to the motion or amend his petition. See Tex. R. Civ. P. 91a.4

(“Any response to the motion must be filed no later than 7 days before the date of the hearing.”),

91a.5(b) (“If the respondent amends the challenged cause of action at least 3 days before the date

of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or

an amended motion directed to the amended cause of action.”). After a hearing, the trial court

granted the motion and dismissed Lewis’s suit with prejudice.

DISCUSSION

Lewis, who is pro se, challenges the judgment in three issues on appeal. First, he

argues that the trial court lacked jurisdiction to enter its order because appellees have not been

served with citation nor have they waived service. But it is undisputed that appellees voluntarily

appeared in the suit. For example, the clerk’s record contains appellees’ answer and Rule 91a

motion to dismiss, and the reporter’s record indicates that appellees entered an appearance at the

Rule 91a hearing. Appellees therefore entered a general appearance. See Tex. R. Civ. P. 121 (“An

answer shall constitute an appearance of the defendant so as to dispense with the necessity for the

issuance or service of citation upon him.”); id. R. 120 (“The defendant may, in person, or by

attorney, or by his duly authorized agent, enter an appearance in open court. Such appearance . . .

2 shall have the same force and effect as if the citation had been duly issued and served as provided

by law.”); Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (“[A] party enters a

general appearance when it (1) invokes the judgment of the court on any question other than the

court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks

affirmative action from the court.”).

Lewis also contends that the trial court erred by granting appellees’ Rule 91a

motion to dismiss. “We review the merits of a Rule 91a motion de novo.” Bethel v. Quilling,

Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). “[W]hether a

defendant is entitled to dismissal under the facts alleged is a legal question.” In re Farmers Tex.

Cnty. Mut. Ins., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding).

Under Texas Rule of Civil Procedure 91a, 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. Relevant here,

“[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. “In ruling on a

Rule 91a motion to dismiss, a court may not consider evidence but ‘must decide the motion based

solely on the pleading of the cause of action, together with any [permitted] pleading exhibits.’”

In re Farmers, 621 S.W.3d at 266 (citing Tex. R. Civ. P. 91a.6). “Rule 91a limits a court’s factual

inquiry to the plaintiff’s pleadings but does not so limit the court’s legal inquiry.” Bethel,

595 S.W.3d at 656. “In deciding a Rule 91a motion, a court may consider the defendant’s

pleadings if doing so is necessary to make the legal determination of whether an affirmative

defense is properly before the court.” Id. And “Rule 91a permits motions to dismiss based on

affirmative defenses ‘if the allegations, taken as true, together with inferences reasonably drawn

from them, do not entitle the claimant to the relief sought.’” Id. (quoting Tex. R. Civ. P. 91a.1).

3 On appeal, Lewis argues that he “did not become aware of the legal malpractice

until I received my case file from Dunham and Jones on March 21, 2025,” such that “the clock did

not begin to run until I discovered the extent of the malpractice on this date.” But Lewis made no

such allegation in his petition nor did any of the facts stated in his petition indicate an underlying

basis for tolling or any other equitable principle that would allow the suit to proceed even though

limitations had run. See Tex. Civ. Prac. & Rem. Code § 16.003(a); Erikson, 590 S.W.3d at 563.

And the trial court also properly considered appellees’ pleadings to determine that their limitations

defense was properly before the court. See Bethel, 595 S.W.3d at 656. Thus, the trial court did

not err by granting appellees’ Rule 91a motion to dismiss based on limitations.

Finally, Lewis argues that the trial court’s dismissal should have been without

prejudice and asks for the opportunity to amend his petition. However, on a Rule 91a motion to

dismiss, the trial court’s consideration is expressly limited to the pleadings and “a narrow class of

exhibits.” Id. at 654. Lewis’s allegations in his petition, taken as true with inferences reasonably

drawn from them, do not entitle him to the relief he sought. See Tex. R. Civ. P. 91a.1. Because

he failed to allege facts that support a timely legal-malpractice claim, the trial court did not err by

granting appellees’ Rule 91a motion to dismiss. See, e.g., In re Amazon.com Servs., LLC,

No. 03-23-00634-CV, 2023 WL 8791266, at *6 (Tex. App.—Austin Dec. 20, 2023, orig.

proceeding) (mem. op.) (granting mandamus relief when trial court denied Rule 91a motion

because allegations established limitations had run); Ruth v. Crow, No. 03-16-00326-CV,

2018 WL 2031902, at *2 (Tex. App.—Austin May 2, 2018, pet. denied) (mem. op.) (noting that

Rule 91a has “fairly strict time constraints” and rejecting contention that claimant should have

been granted additional time to respond or to amend petition).

4 CONCLUSION

We affirm the trial court’s order dismissing Lewis’s suit.

__________________________________________ Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Theofanis and Crump

Affirmed

Filed: April 3, 2026