Rule 91a Motions to Dismiss in Texas Business Litigation: When Can a Lawsuit Be Dismissed Early?

Business lawsuits can be expensive long before a case reaches trial.

Contract disputes, business ownership disagreements, allegations of fraud, and other commercial claims may require substantial legal work, document production, and management attention.

But what happens when a lawsuit is based on allegations that do not support a legally viable claim?

Texas Rule of Civil Procedure 91a provides a mechanism for requesting dismissal of certain causes of action that have no basis in law or fact.

For businesses facing litigation, understanding Rule 91a can be an important part of evaluating the available defense strategies.

What Is a Rule 91a Motion to Dismiss?

Rule 91a allows a party to seek dismissal of a cause of action that has no basis in law or fact.

Under the rule, a cause of action has no basis in law when the allegations, taken as true together with the inferences reasonably drawn from them, do not entitle the claimant to the requested relief.

A cause of action has no basis in fact when no reasonable person could believe the facts pleaded.

This standard is important because a Rule 91a motion generally does not ask the judge to decide which party's evidence is more credible.

Instead, it asks whether the pleaded claim can proceed under the applicable legal standard.

How Can Rule 91a Apply to Business Lawsuits?

Rule 91a is not limited to disputes involving free speech or constitutional rights.

It may be available in a variety of business litigation matters.

Breach of Contract Claims

A plaintiff might file a lawsuit alleging breach of contract but fail to plead facts establishing an essential requirement of the claim.

Depending on the allegations and applicable law, a defendant may have grounds to argue that the cause of action has no basis in law.

However, merely disagreeing about what a contract means is not necessarily sufficient for Rule 91a dismissal.

Fraud and Misrepresentation Claims

Business disputes sometimes include allegations that one party made false representations during negotiations or business transactions.

Fraud claims have specific legal elements, and the allegations must support a legally recognizable cause of action.

A Rule 91a motion may be appropriate when the pleaded facts, even if accepted as true, fail to establish a legally viable claim.

Business Ownership Disputes

Disagreements between shareholders, members of limited liability companies, or business partners may result in litigation involving multiple legal theories.

Some claims may be legally supported while others may be defective.

Rule 91a permits a party to challenge individual causes of action rather than necessarily seeking dismissal of the entire lawsuit.

Construction and Commercial Disputes

Construction-related litigation may involve contract claims, alleged misrepresentations, payment disputes, and other causes of action.

Where a particular claim lacks a basis in law or fact under Rule 91a's standard, an early motion to dismiss may be worth evaluating.

The availability of dismissal depends on the specific pleadings, applicable law, and procedural posture.

Can You Submit Evidence With a Rule 91a Motion?

Generally, no.

One of the most important distinctions between Rule 91a and other dismissal procedures is the restriction on evidence.

Under Rule 91a.6, the court ordinarily decides the motion based solely on the pleading of the challenged cause of action and pleading exhibits permitted by Rule 59.

The court may not consider outside evidence when determining whether the claim should be dismissed, apart from evidence relevant to a potential attorney-fee or cost award.

For example, a defendant generally cannot use a Rule 91a motion simply to present competing witness testimony and ask the judge to believe the defendant instead of the plaintiff.

If the dispute requires weighing competing evidence, other procedures may be more appropriate.

What Is the Deadline to File a Rule 91a Motion in Texas?

Rule 91a imposes several procedural deadlines.

A motion generally must be:

• Filed within 60 days after the first pleading containing the challenged cause of action is served on the moving party.
• Filed at least 21 days before the hearing.
• Granted or denied within 45 days after filing, subject to the rule's provisions governing amended motions, withdrawal, amendments, and nonsuits.

A response generally must be filed no later than seven days before the hearing.

The court may decide the motion without conducting an oral hearing, but the parties are entitled to the required notice.

Because these deadlines are relatively short, parties should consider the potential use of Rule 91a early in the litigation process.

Can a Plaintiff Amend the Lawsuit After a Rule 91a Motion Is Filed?

Yes.

Rule 91a specifically addresses the consequences of amended pleadings and nonsuits.

For example, when a plaintiff amends the challenged cause of action at least three days before the hearing, the moving party may withdraw the motion or file an amended motion directed to the amended claim.

A properly filed amended motion restarts the applicable Rule 91a time periods.

A timely nonsuit of the challenged cause of action can also prevent the court from ruling on the dismissal motion.

These provisions can affect litigation strategy for both plaintiffs and defendants.

Can a Business Recover Attorney's Fees After Winning a Rule 91a Motion?

Potentially.

Under Rule 91a.7, the court may award the prevailing party costs and reasonable and necessary attorney's fees incurred with respect to the challenged cause of action in the trial court, subject to applicable exceptions.

Unlike the general attorney-fee provision for successful TCPA motions, an award under Rule 91a is discretionary.

Any award must be supported by evidence.

Businesses should therefore avoid assuming that successfully dismissing a claim will automatically result in reimbursement of their legal expenses.

Should a Business File a TCPA Motion or Rule 91a Motion?

The answer depends on the nature of the claims.

A TCPA motion is designed for qualifying legal actions involving protected speech, petitioning activity, association, and certain other statutorily protected conduct.

Rule 91a is broader in subject matter but focuses on whether the challenged cause of action lacks a basis in law or fact.

A business facing a lawsuit based on public statements or communications may need to evaluate both procedures.

For example, a dispute involving allegedly defamatory statements about a company could raise TCPA issues, while a separately pleaded cause of action might be vulnerable under Rule 91a.

Because the standards and available remedies differ, the appropriate motion strategy must be based on the specific lawsuit.

Why Early Dismissal Matters in Business Litigation

For businesses, the cost of litigation extends beyond attorney's fees.

A lawsuit can require substantial management time, internal document searches, employee involvement, and disruption to ordinary business operations.

When a cause of action lacks a basis in law or fact, Rule 91a may provide a way to address that claim before the case proceeds further.

However, not every weak claim qualifies for Rule 91a dismissal. The rule is not a substitute for trial, summary judgment, or other appropriate procedures when the dispute depends on contested evidence.

An experienced litigation attorney can help evaluate whether an early-dismissal motion is legally supportable and strategically appropriate.

Talk to McMillan & Black About Texas Business Litigation

If your company has been served with a lawsuit, understanding the available procedural options is an important first step.

McMillan & Black, PLLC represents businesses and individuals in Texas commercial litigation, including disputes involving contracts, business relationships, and motions to dismiss.

Our attorneys can review the allegations, assess whether Rule 91a or another procedural mechanism may apply, and help develop an appropriate litigation strategy.

Contact McMillan & Black, PLLC to discuss your Texas business litigation matter.

Frequently Asked Questions

Can Rule 91a dismiss an entire business lawsuit?

Yes, if every cause of action is subject to dismissal under the rule. A Rule 91a motion may also target only certain causes of action.

Does the plaintiff have to be lying for Rule 91a to apply?

No. A claim may have no basis in law even when the pleaded factual allegations are accepted as true.

Can I submit contracts or emails as evidence in a Rule 91a motion?

Generally, outside evidence cannot be considered in deciding the motion. The court ordinarily considers the challenged pleading and qualifying pleading exhibits under Rule 59.

Are attorney's fees mandatory when a Rule 91a motion succeeds?

No. Attorney's fees and costs are generally discretionary under Rule 91a.7, subject to applicable restrictions and proof requirements.

Featured photo by Vanessa Garcia