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Family attorneys often deal with causes of action that do not arise under the Family Code.  For example, one spouse might sue the other spouse as part of a divorce for assault or breach of fiduciary duty.  A new Texas Rule of Civil Procedure 91a applies to all cases, including those pending on March 1, 2013, other than cases brought under the Texas Family Code or in inmate litigation.

Under new Rule 91a, a party may move to dismiss a cause of action that has “no basis in law or fact.”  A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, “do not entitle the claimant to relief.”  A claim has no basis in fact if “no reasonable person could believe the facts as pleaded.”  A motion to dismiss a baseless case under Rule 91a must: state that it is made pursuant to Rule 91a; identify each cause of action to which it is addressed; and specifically state the reasons that the cause of action has no basis in law, fact, or both.

A Rule 91a movant must file the motion within 60 days after the first pleading that contains the cause of action at issue is served on the movant and at least 21 days before the hearing on the motion.  Each party is entitled to 14 days’ notice of the hearing, although the court may decide the motion on the written submissions.  The response is due seven days before the hearing.  If the respondent amends the cause of action at least three days before the hearing, the movant may withdraw or amend the motion.

The court must rule on the motion within 45 days after its filing/ The court may not consider any evidence in deciding the motion.

The prevailing party on a Rule 91a motion is entitled to an award of fees and costs incurred on the challenged cause of action, except in litigation by or against the government.