Sw. Airlines Pilots Ass'n (SWAPA) v. The Boeing Co.
| Decision Date | 07 November 2022 |
| Docket Number | 05-21-00598-CV |
| Parties | SOUTHWEST AIRLINES PILOTS ASSOCIATION (SWAPA), AS ASSIGNEE OF 8,794 OF ITS MEMBER PILOTS, Appellant v. THE BOEING COMPANY, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 160th Judicial District Court Dallas County Texas Trial Court Cause No. DC-21-03072
Before Justices Myers, Pedersen, III, and Garcia
Southwest Airlines Pilots Association (SWAPA) appeals the dismissal of its claims against The Boeing Company. SWAPA brings two issues on appeal contending (1) the trial court erred in granting Boeing's motion to dismiss under Rule of Civil Procedure 91a based on the affirmative defense of res judicata, and (2) the trial court should have sustained SWAPA's objection to Boeing's untimely filing of the Rule 91a motion to dismiss. We conclude Boeing's motion to dismiss was not untimely but that the trial court erred by granting the motion to dismiss, and we reverse the trial court's judgment.
SWAPA is a non-profit labor organization and employee association that represents over 9,000 Southwest Airlines pilots. Acting in its representative capacity, SWAPA enters into collective bargaining agreements ("CBAs") with Southwest Airlines. The CBAs define employment terms, including pay benefits, working conditions, and the approved aircraft that the pilots agree to fly. Southwest pilots pay SWAPA a percentage of their wages as dues.
In 2016, SWAPA entered into a CBA in which SWAPA agreed that its members would operate Boeing's 737 MAX aircraft. In 2018 and 2019, the 737 MAX was involved in catastrophic crashes and as a result, the 737 MAX fleet was grounded worldwide.
In October, 2019, SWAPA filed suit against Boeing on behalf of itself and its members. The petition alleged that SWAPA sought damages on behalf of itself and its pilots "who have collectively lost, and are continuing to lose, millions of dollars in compensation as a result of Boeing's false representations concerning its 737 MAX aircraft, namely that the 737 MAX was safe, airworthy, and was essentially the same as the time-tested 737 aircraft that SWAPA pilots were already flying." SWAPA asserted Texas common law claims for fraudulent and negligent misrepresentation, tortious interference with contract and with an existing business relationship, negligence, and fraud by nondisclosure. SWAPA sought compensation for its member pilots in connection with cancelled or reduced flights following the grounding of the 737 MAX. SWAPA also sought damages on its own behalf for lost dues from its members and for legal fees incurred in connection with government investigations of the 737 MAX. Boeing filed a plea to the jurisdiction asserting SWAPA lacked standing to bring claims on behalf of its members and that SWAPA's claims were preempted by the federal Railway Labor Act. During the proceedings, SWAPA obtained assignments from some of the member pilots and asserted it had standing as their assignee. Boeing objected that the assignments were void as against public policy. The trial court granted Boeing's plea to the jurisdiction and dismissed SWAPA's case with prejudice. SWAPA appealed the dismissal to this Court. See Sw. Airlines Pilots Ass'n v. Boeing Co., No. 05-20-01067-CV, 2022 WL 951027 (Tex. App.-Dallas Mar. 30, 2022, pet. filed) (SWAPA I).
While the appeal of SWAPA I was pending, SWAPA obtained assignments from most of its member pilots of their claims against Boeing related to the 737 MAX. In 2021, SWAPA filed this suit against Boeing. The 2021 suit is similar to the 2019 lawsuit. However, SWAPA sued "as assignee of 8,794 of its pilot Members" and not "on behalf of itself and its members" as it had in the 2019 lawsuit. The 2021 lawsuit also omitted SWAPA's claims on its own behalf for lost dues and legal fees that it had alleged in the 2019 lawsuit.
Boeing filed an answer asserting the 2021 lawsuit was barred by res judicata. Boeing attached as exhibits to its answer copies of SWAPA's petition in the 2019 lawsuit and the trial court's order granting Boeing's plea to the jurisdiction and dismissing SWAPA's suit with prejudice. Boeing then filed a motion to dismiss under Rule 91a, asserting SWAPA's 2021 lawsuit had no basis in law because it was barred by res judicata. The trial court granted Boeing's motion to dismiss and dismissed SWAPA's suit. SWAPA appeals the dismissal under Rule 91a.
While the appeal of the Rule 91a dismissal of the 2021 lawsuit has been pending, this Court decided the appeal of the 2019 lawsuit. We determined that SWAPA lacked associational standing to bring claims on behalf of its members and that the post-petition assignments from its members could not give SWAPA standing because jurisdiction is determined at the time suit is filed. SWAPA I, 2022 WL 951027, at *6. However, we observed, "the Assignments might confer standing on SWAPA in the future." Id. at *8. We concluded SWAPA had standing to bring claims on its own behalf. We also held the claims were not preempted by the Railway Labor Act, id. at *13, and that assignments from the pilots were not against public policy, id. at *8. We held the trial court erred by granting the plea to the jurisdiction on SWAPA's claims brought on its own behalf, and we rendered judgment changing the disposition of the other claims to "dismissed without prejudice."[1] Id. at *13.
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. In ruling on a Rule 91a motion, a court "may not consider evidence . . . 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 also Tex. Gov't Code Ann. § 22.004(g) ( ). The motion to dismiss must be filed within sixty days after the pleading containing the challenged cause of action is served on the movant. Id. 91a.3(a). We review de novo a trial court's ruling on a Rule 91a motion to dismiss. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020).
In its second issue, SWAPA contends the trial court erred by overruling its objection to the timeliness of Boeing's motion to dismiss. Boeing had to file its motion to dismiss within sixty days of being served SWAPA's petition. See Tex. R Civ. P. 91a.3(a). Boeing was served the petition on March 15, 2021. The sixtieth day following March 15, 2021, was May 14, 2021. Boeing filed a motion to dismiss under Rule 91a on May 14, 2021. However, that motion to dismiss listed the cause number for the 2019 suit, not the 2021 suit. After filing the motion and serving it on SWAPA, Boeing's counsel discussed with SWAPA's counsel scheduling for the motion; SWAPA's counsel did not mention the fact that the motion had the incorrect cause number. On May 20, 2021, when Boeing's counsel contacted the trial court's court coordinator to schedule the hearing, the court coordinator asked Boeing to re-file the motion with the correct cause number. Boeing's attorney stated that was the first time she became aware of an issue with the cause number. On May 25, 2021, Boeing filed its "Corrected Motion to Dismiss Pursuant to Tex.R.Civ.P. 91a." That filing was seventy-one days after Boeing was served with the original petition.
SWAPA objected to the motion to dismiss as being untimely because it was filed seventy-one days after Boeing was served with the petition, but the trial court denied the objection and granted the motion to dismiss. SWAPA argues in its appellate briefing that the trial court erred by granting the motion to dismiss because it was not filed timely.
After the parties briefed the appeal in this case, the supreme court issued its opinion in Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022). In Mitschke, the supreme court held that a motion for new trial filed within thirty days of the judgment but that listed the wrong cause number was timely filed and that the error of filing the motion with the wrong cause number should be overlooked in favor of finding appellate jurisdiction. Id. at 262-63; see Tex. R. App. P. 26.1(a). The court observed, Id. at 263. The court held, "when a party timely attacks an order that grants a final judgment and then files a notice of appeal that is otherwise timely, the court of appeals must deem the appeal to have been timely perfected despite a non-prejudicial procedural defect." The court stated that it was not addressing the situation where a party's misfiling was done with the purpose of causing litigation harm to the other side. Id. at 256 n.27.
At submission of this case, SWAPA's counsel brought Mitschke to this Court's attention. Counsel told the Court that Boeing's filing the motion to dismiss was not done...
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