Lopez v. Sunstate Equip. Co.
| Decision Date | 29 August 2022 |
| Docket Number | 05-21-00100-CV |
| Parties | LAURA LOPEZ, INDIVIDUALLY, ON BEHALF OF HERNAN MURILLO, DECEASED, AND AS NEXT FRIEND OF ALFONSO MURILLO, MARCOS MURILLO, ABIGAIL MURILLO, AND KAREN MURILLO, Appellant v. SUNSTATE EQUIPMENT CO. LLC, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 44th Judicial District Court Dallas County Texas Trial Court Cause No. DC-21-02079
Before Justices Schenck, Molberg, and Pedersen, III
Appellant Laura Lopez, widow of Hernan Murillo, appeals a rule 91a order dismissing claims brought individually, on behalf of Murillo, and as next friend of their four children against appellee Sunstate Equipment Co. LLC. See Tex. R Civ. P. 91a. For the reasons that follow, we reverse the order and remand the case for further proceedings consistent with this memorandum opinion. See Tex. R. App. P 47.4 I Background
Laura Lopez is the surviving spouse of Hernan Murillo, a licensed electrician, who died as a result of an equipment-related, construction-site accident at a Frito-Lay facility in Irving, Texas, on October 4, 2019. She and Murillo had four children at the time of that incident.
Soon after Murillo's death, Lopez sued Walker Industrial, LLC and Frito-Lay, Inc. individually, on behalf of Murillo, and as next friend to their four children.
On July 31, 2020, she filed a second amended petition adding claims against Sunstate, one of eight defendants named in that pleading. She brought claims against Sunstate for premises liability and wrongful death and survival based on Sunstate's alleged negligence. No exhibits were attached to that pleading. Sunstate answered, asserting a general denial and various affirmative defenses not at issue here.
Fewer than sixty days after Sunstate was served with process, Sunstate also filed a rule 91a motion to dismiss "all of [the] claims against it, including negligence and premises liability," on the ground Lopez had "no basis in law" for her claims against Sunstate. See Tex. R. Civ. P. 91a.1. Sunstate argued Lopez's pleading did not identify an unreasonably dangerous condition, establish a premises liability claim, or establish Sunstate was otherwise negligent. As to negligence, Sunstate argued the facts pled did not establish Sunstate owed Murillo a duty, breached a duty, or caused injury.
Seven days before the rule 91a hearing, Lopez filed a response in opposition to Sunstate's motion. Lopez attached two documents to her response: (1) her second amended petition, which was her live pleading at the time, and (2) a one-page "terms and conditions" form that, by its own terms, is part of a broader equipment rental agreement.[1]
Five days before the hearing, Lopez amended her pleading and filed a third amended petition. No exhibits were attached. In that pleading, Lopez removed the premises liability claim against Sunstate and added two more allegations regarding Sunstate's negligence, increasing the number of Sunstate's allegedly negligent acts from eleven to thirteen, as further detailed below.
Sunstate did not amend its rule 91a motion after Lopez filed her third amended pleading. Less than forty-five days after Sunstate filed its motion, the trial court heard the motion and granted it, dismissing with prejudice Lopez's claims against Sunstate on the same day as the hearing. The signed order stated the court found the motion to be meritorious but did not additionally specify the basis for the court's ruling. The order did not award any attorneys' fees. See Tex. R. Civ. P. 91a.7.[2] Later, the trial court signed an order severing Lopez's claims against Sunstate from her other claims. Lopez timely appealed the once-interlocutory, now-final order dismissing her claims against Sunstate by filing a notice of appeal within thirty days of the severance order.[3]
Murillo was killed when he and two other workers fell approximately thirty feet from a scissor lift Sunstate had rented to another party, Johnson Equipment.
About seven weeks before the incident, Johnson Equipment had submitted a proposal to Frito-Lay for various projects at or near the construction site. The proposal included a bid for "lift rentals." Frito-Lay sent Johnson Equipment a purchase order for this work, thereby entering into a contract with Johnson Equipment.
As a result, on or about September 17, 2019, some two weeks before the incident, Johnson Equipment rented a Genie scissor lift from Sunstate, which Sunstate thereafter delivered to the construction site.
Nine days before the incident-on or about September 25, 2019-Johnson Equipment scheduled a pick-up of the Genie scissor lift with Sunstate. Sunstate did not retrieve the scissor lift from the construction site, leaving it in the possession of Frito-Lay, and possibly others.
At all relevant times, Frito-Lay had one or more written policies requiring the removal of the keys from equipment, such as the lift, when the equipment was not being actively operated. Sunstate and Johnson Equipment knew or should have known of Frito-Lay's requirements.
On the morning of his death, Murillo had been working on electrical projects on the construction site along with coworkers Jose Javier and Francisco Salazar. Salazar was the foreman of their three-man crew. After lunch, the crew was assigned to help with an overhead conduit project. The goal of this work was to pull electrical wires through a two-inch conduit, from one breaker panel to another. The work was needed because other electricians had been unable to pull the wires through the conduit. Apparently, there were no drawings or engineering plans for installing the conduit and electrical conductors, and Murillo and Salazar were sent to "borrow" a scissor lift from Frito-Lay for this work. They secured the Genie lift, which Sunstate had not yet retrieved from the work site. Although the lift was only rated for two people, Salazar allowed all three men onto the lift platform, which they then suspended thirty feet in the air to complete the work.
At the same time, Sammy Deer, an employee of Walker Engineering, was in the process of completing his own nearby tasks in a different lift. Deer failed to properly control his lift and hit the base of the scissor lift occupied by Murillo and the others. The hit to the base of Murillo's scissor lift caused Murillo's lift to tip over and crash onto the concrete below. Murillo died from the injuries sustained in the tip-over. His death was not caused by or contributed to by Murillo, nor did it occur through any fault or negligence on his part, but was proximately caused by the acts, wrongs, and/or omissions of defendants, including Sunstate.[5]
II. Discussion
In one issue, Lopez argues the trial court erred in granting Sunstate's rule 91a motion because her petition does not "trigger a clear legal bar" to her negligence claims against Sunstate.
In arguing this point, Lopez addresses several topics she describes as subsidiary issues: whether her pleading identified an unreasonably dangerous condition (a matter Sunstate challenged in its motion), whether Sunstate's motion was sufficiently specific as to the elements of breach and causation, and whether her pleading shows there is no clear legal bar to her allegations that Sunstate owed and breached a duty to Murillo and that such breach proximately caused his death.
In our analysis below, we resolve Lopez's issue and discuss these topics,[6] as well as a preliminary issue neither party raises: whether we may consider, in our de novo review, the "terms and conditions" form Lopez attached to her response to Sunstate's motion and to which both parties refer in their briefing on appeal.
We review the merits of a rule 91a ruling de novo. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021); In re Farmers Tex. Cty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
Rule 91a provides a harsh remedy and should be strictly construed. Renate Nixdorf GmbH & Co. KG v. TRA Midland Props., LLC, No. 05-17-00577-CV, 2019 WL 92038, at *10 (Tex. App.-Dallas Jan. 3, 2019, pet. denied) (mem. op.); In re RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.- Dallas June 11, 2018, orig. proceeding) (mem. op.). The rule is not a substitute for special exception practice under rule 91 or summary judgment practice under rule 166a, both of which come with protective features against summary dispositions on the merits. Royale v. Knightvest Mgmt., LLC, No. 05-18-00908-CV, 2019 WL 4126600, at *4 (Tex. App.-Dallas Aug. 30, 2019, no pet.) (mem. op.).
Under rule 91a, except in certain situations not applicable here, 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 that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Tex.R.Civ.P. 91a.2.
We apply a fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action. Thomas v. 462 Thomas Family Props., LP, 559 S.W.3d 634, 639 (Tex. App.-Dallas 2018, pet. denied). In Thomas, we stated:
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