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CAUSE NO. 22-DCV-293829
BREONA GONZALEZ, IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT
FRIEND OF A.G., A MINOR,
FORT BEND COUNTY, TEXAS
PAMELA BORING, Individually;
FOSTER CREEK VETERINARY
HOSPITAL, PLLC; AND
DULLES PROPERTY, LLC,
400TH JUDICIAL DISTRICT
DEFENDANT PAMELA BORING’S
RULE 91a MOTION TO DISMISS
COMES NOW, Defendant/Counter Defendant Pamela Boring (“Boring” or “Defendant”)
and asks the Court to dismiss Scout’s Honor Rescue Inc.’s “counterclaim” as such is classified in
Scout’s Honor Rescue Inc.’s First Amended Answer and Counterclaim (and also as asserted
in Scout’s Honor Rescue Inc.’s Original Answer to Cross Claim and Counterclaim) under Texas
Rule of Civil Procedure 91a. Defendant files this Motion to Dismiss because Scout’s Honor
Rescue Inc.’s (“Scout’s Honor”) alleged counterclaim lacks any basis in law or in fact. Texas law
does not have an independent cause of action for damages for filing a frivolous lawsuit and a
request for sanctions cannot be brought as an independent cause of action under Texas law.
FACTUAL AND PROCEDURAL BACKGROUND
Boring adopted a dog from Scout’s Honor Rescue, Inc. On June 7, 2020, the dog bit a
person outside of Boring’s home. On June 8, 2020, Boring contacted Scout’s Honor and was told
to take the dog to Foster Creek Veterinary Clinic for a mandatory rabies quarantine. A
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 1
representative from Scout’s Honor came to Boring’s home and helped her put the dog inside her
car. While Boring was checking the dog in at the recommended clinic, the dog bit a child.
On May 31, 2022, Plaintiff Breona Gonzalez filed her original petition against Boring and
Foster Creek Veterinary Hospital, PLLC (“Foster Creek”) and Dulles Property, LLC relating to
the dog bite of her minor child that occurred on June 8, 2020, at Foster Creek Veterinary Hospital,
On June 27, 2022, Boring filed her Original Answer and asserted a claim against Scout’s
Scout’s Honor filed its original answer and counterclaim against Boring on September 14,
2022. On September 30, 2022, Scout’s Honor filed its First Amended Answer and Counterclaim.
On October 20, 2022, Boring filed her Original Answer to Scout’s Honor’s First Amended
Answer and Counterclaim.
On November 10, 2022, an Amended Motion to Appoint a Guardian Ad Litem was filed
for the review and approval the final settlements for the minor plaintiff.
MOTION TO DISMISS BASELESS ACTION
Under Texas Rule of Civil Procedure 91a, courts can dismiss causes of action that have
no basis in law or in fact. Tex. R. Civ. P. 91a. Scout’s Honor “counterclaim” as to Defendant
Pamela Boring has no basis in law or fact.
Rule 91a allows a party to move to dismiss a baseless 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.” . "A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.” . The motion must identify each cause of action to which it is
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 2
addressed and specifically state the reasons the action has no basis in law, no basis in fact, or both.
TEX. R. CIV. P. 91a.2. The trial court must decide the motion based solely on the pleading of the
cause of action, together with any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6.
v Demonbreun, No. 04-14-00116-CV, 2014 WL 7440314, at *3 (Tex. App.—San Antonio Dec.
31, 2014, no pet.).
Scout’s Honor’s “Counterclaim” Does Not State a Cause of Action
Instead of asserting an actual claim for which relief can be granted, Scout’s Honor
reiterates its affirmative defenses and calls that a “counterclaim. Scout’s Honor attempts to turn its
opinion of Boring’s claims for negligence and breach of warranty into a cause of action, but such
is not allowed under Texas law. No actual cause of action is pled in Scout’s Honor’s
“Counterclaim.” Instead, Scout’s Honor asserts that Boring’s claims are frivolous, and that Scout’s
Texas Law Does Not Create an Independent Cause of Action for Damages for
Filing a Frivolous Lawsuit
Scout’s Honor’s “counterclaim’ relies on two sections of the Texas Civil Practice &
Remedies Code §§9.011 et. seq. and §§10.001 et seq. Neither section creates a cause of action, but
instead they provide a procedure that allows for a party to file a for sanctions in response
to a pleading or motion that is frivolous. However, neither section is a cause of action unto itself.
Merritt v. State, No. 05–10–01008–CR, at *2, Tex. App.—Dallas, March 27, 2012, no pet.):
Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of
groundless pleadings and claims in bad faith or for an improper purpose, such as
harassment or to cause unnecessary delay. RAC ODE
9.001–.014 (West 2002). Chapter 10 allows for sanctions for filing pleadings and motions
without legal or evidentiary support or for improper purpose. RAC
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 3
. § 10 .001–.006 (West 2002). While both statutes allow for the filing of a
“motion” for sanctions, neither creates an independent tort cause of action for
damages for filing a frivolous lawsuit.
Mantri v. Bergman, 153 S.W.3d 715, 717–18 (Tex. App.-Dallas 2005, pet. denied)
(concluding chapter 10 does not provide independent cause of action for filing frivolous lawsuit);
, No. 03–08–00287–CV, 2009 WL 349167, at *4–5 (Tex. App.-Austin 2009,
pet. denied) (mem.op.) (concluding chapter 9 does not provide independent cause of action for
“In other words, the conduct prohibited by these statutes—filing frivolous pleadings or
motions—is sanctionable, not tortious.”
“The Texas courts have treated proceedings for sanctions as motions, not as independent
causes of action.” Mantri v Bergman, 153 S.W.3d 715, 717-18 (Tex. App.—Dallas 2005, pet.
denied) (affirming dismissal of independent lawsuit for claim under Texas Civil Practice and
Mantri asserts chapter 10 provides a litigant with an independent cause of action that may
be asserted against an opposing party who files a frivolous lawsuit. We disagree. Section
10.002 specifically states that a party may file a “motion” for sanctions. T RAC
ODE . § 10.002(a). Nowhere does chapter 10 permit a party to bring an
independent cause of action for sanctions. See Martin v. Tex. Dept. of Family & Protective
, No. 01-03-01111-CV, 2004 WL 1945255, at *2 (Tex. App.-Houston [1
31, 2004, no pet.) (observing that the Texas Civil Practice & Remedies Code “allow[s] a
‘motion’ for sanctions, not an affirmative ‘claim’”) .
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 4
The court in specifically stated that, under Texas law, “a motion for sanctions for
frivolous litigation under chapter 10 must be tied to the allegedly frivolous litigation and cannot
be brought as an independent cause of action.” The First Court of Appeals has repeatedly held
that a motion for sanctions pursuant to Chapter 105 the Texas Civil Practice and Remedies Code
does not present a claim for affirmative relief. Torres v. Tex. Dep’t of Family and Protective Servs
No. 01-03-01125-CV, 2004 WL 1631305, at *2 (Tex. App.-Houston [1 Dist.] July 22, 2004, no
Scout’s Honor’s alleged “counterclaim” is not in fact a counterclaim but a complaint. It
does not plead a cause of action, and as such should be dismissed under Rule 91a.
REQUEST FOR ATTORNEYS’ FEES
Under Texas Rule of Civil Procedure 91a, the prevailing party on a motion to dismiss may
be awarded reasonable and necessary attorneys’ fees and all costs incurred with respect to the
challenged cause(s) of action. Tex. R. Civ. P. 91a.7. Under Texas Civil Practice and Remedies
Code § 10.002(c), “[t]he court may award to a party prevailing on a motion [for sanctions] under
this section the reasonable expenses and attorney’s fees incurred in presenting or opposing the
motion, and, if no due diligence is shown, the court may award to the prevailing party all costs for
inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject
litigation.” Defendant Boring requests $1,000.00 as reasonable and necessary attorneys’ fees for
preparing this motion.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Pamela Boring respectfully
moves the Court to grant her Motion to Dismiss in its entirety and to enter judgment that Scout’s
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 5
Honor Rescue, Inc. takes nothing from Boring, that Scout’s Honor Rescue, Inc.’s counsel be
sanctioned for violating Texas Rule of Civil Procedure 13, that this Boring be awarded reasonable
attorneys’ fees and costs, and for such other and further relief to which she may show herself justly
entitled, both in law and at equity.
Respectfully submitted,
NAN LEVERETT
Fax: (855) 602-8224
Eservice: efiling@meaderslaw.com
Nan.Leverett@meaderslaw.com
ATTORNEYS FOR CROSS-PLAINTIFF/
COUNTER-DEFENDANT,
PAMELA BORING
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 6
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document has been
served upon all counsel on November 11, 2022, electronic service in accordance with the Texas
Loren Jackson
OUSTON NJURY AWYERS
E-mail: loren@houinjurylawyers.com
Attorneys for Plaintiff Breona Gonzalez
Branch M. Sheppard
Jonathon W. Austin
ALLOWAY OHNSON OMPKINS URR MITH
1301 McKinney, Suite 1400
bsheppard@gallowaylawfirm.com
jaustin@gallowaylawfirm.com
Attorneys for Scout’s Honor Rescue, Inc.
FFICE OF RIAN J. J
Chicago, IL 60690-4743
E-Service:
E-Mail: Brian.Judis@cna.com
Attorney for Defendants, Southern
Veterinary Partners, LLC dba
Foster Creek Veterinary Hospital
and Dulles Property, LLC
NAN LEVERETT
DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 7
Preview
CAUSE NO. 22-DCV-293829 BREONA GONZALEZ, IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT FRIEND OF A.G., A MINOR, FORT BEND COUNTY, TEXAS PAMELA BORING, Individually; FOSTER CREEK VETERINARY HOSPITAL, PLLC; AND DULLES PROPERTY, LLC, 400TH JUDICIAL DISTRICT DEFENDANT PAMELA BORING’S RULE 91a MOTION TO DISMISS COMES NOW, Defendant/Counter Defendant Pamela Boring (“Boring” or “Defendant”) and asks the Court to dismiss Scout’s Honor Rescue Inc.’s “counterclaim” as such is classified in Scout’s Honor Rescue Inc.’s First Amended Answer and Counterclaim (and also as asserted in Scout’s Honor Rescue Inc.’s Original Answer to Cross Claim and Counterclaim) under Texas Rule of Civil Procedure 91a. Defendant files this Motion to Dismiss because Scout’s Honor Rescue Inc.’s (“Scout’s Honor”) alleged counterclaim lacks any basis in law or in fact. Texas law does not have an independent cause of action for damages for filing a frivolous lawsuit and a request for sanctions cannot be brought as an independent cause of action under Texas law. FACTUAL AND PROCEDURAL BACKGROUND Boring adopted a dog from Scout’s Honor Rescue, Inc. On June 7, 2020, the dog bit a person outside of Boring’s home. On June 8, 2020, Boring contacted Scout’s Honor and was told to take the dog to Foster Creek Veterinary Clinic for a mandatory rabies quarantine. A DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 1 representative from Scout’s Honor came to Boring’s home and helped her put the dog inside her car. While Boring was checking the dog in at the recommended clinic, the dog bit a child. On May 31, 2022, Plaintiff Breona Gonzalez filed her original petition against Boring and Foster Creek Veterinary Hospital, PLLC (“Foster Creek”) and Dulles Property, LLC relating to the dog bite of her minor child that occurred on June 8, 2020, at Foster Creek Veterinary Hospital, On June 27, 2022, Boring filed her Original Answer and asserted a claim against Scout’s Scout’s Honor filed its original answer and counterclaim against Boring on September 14, 2022. On September 30, 2022, Scout’s Honor filed its First Amended Answer and Counterclaim. On October 20, 2022, Boring filed her Original Answer to Scout’s Honor’s First Amended Answer and Counterclaim. On November 10, 2022, an Amended Motion to Appoint a Guardian Ad Litem was filed for the review and approval the final settlements for the minor plaintiff. MOTION TO DISMISS BASELESS ACTION Under Texas Rule of Civil Procedure 91a, courts can dismiss causes of action that have no basis in law or in fact. Tex. R. Civ. P. 91a. Scout’s Honor “counterclaim” as to Defendant Pamela Boring has no basis in law or fact. Rule 91a allows a party to move to dismiss a baseless 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.” . "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” . The motion must identify each cause of action to which it is DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 2 addressed and specifically state the reasons the action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a.2. The trial court must decide the motion based solely on the pleading of the cause of action, together with any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6. v Demonbreun, No. 04-14-00116-CV, 2014 WL 7440314, at *3 (Tex. App.—San Antonio Dec. 31, 2014, no pet.). Scout’s Honor’s “Counterclaim” Does Not State a Cause of Action Instead of asserting an actual claim for which relief can be granted, Scout’s Honor reiterates its affirmative defenses and calls that a “counterclaim. Scout’s Honor attempts to turn its opinion of Boring’s claims for negligence and breach of warranty into a cause of action, but such is not allowed under Texas law. No actual cause of action is pled in Scout’s Honor’s “Counterclaim.” Instead, Scout’s Honor asserts that Boring’s claims are frivolous, and that Scout’s Texas Law Does Not Create an Independent Cause of Action for Damages for Filing a Frivolous Lawsuit Scout’s Honor’s “counterclaim’ relies on two sections of the Texas Civil Practice & Remedies Code §§9.011 et. seq. and §§10.001 et seq. Neither section creates a cause of action, but instead they provide a procedure that allows for a party to file a for sanctions in response to a pleading or motion that is frivolous. However, neither section is a cause of action unto itself. Merritt v. State, No. 05–10–01008–CR, at *2, Tex. App.—Dallas, March 27, 2012, no pet.): Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of groundless pleadings and claims in bad faith or for an improper purpose, such as harassment or to cause unnecessary delay. RAC ODE 9.001–.014 (West 2002). Chapter 10 allows for sanctions for filing pleadings and motions without legal or evidentiary support or for improper purpose. RAC DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 3 . § 10 .001–.006 (West 2002). While both statutes allow for the filing of a “motion” for sanctions, neither creates an independent tort cause of action for damages for filing a frivolous lawsuit. Mantri v. Bergman, 153 S.W.3d 715, 717–18 (Tex. App.-Dallas 2005, pet. denied) (concluding chapter 10 does not provide independent cause of action for filing frivolous lawsuit); , No. 03–08–00287–CV, 2009 WL 349167, at *4–5 (Tex. App.-Austin 2009, pet. denied) (mem.op.) (concluding chapter 9 does not provide independent cause of action for “In other words, the conduct prohibited by these statutes—filing frivolous pleadings or motions—is sanctionable, not tortious.” “The Texas courts have treated proceedings for sanctions as motions, not as independent causes of action.” Mantri v Bergman, 153 S.W.3d 715, 717-18 (Tex. App.—Dallas 2005, pet. denied) (affirming dismissal of independent lawsuit for claim under Texas Civil Practice and Mantri asserts chapter 10 provides a litigant with an independent cause of action that may be asserted against an opposing party who files a frivolous lawsuit. We disagree. Section 10.002 specifically states that a party may file a “motion” for sanctions. T RAC ODE . § 10.002(a). Nowhere does chapter 10 permit a party to bring an independent cause of action for sanctions. See Martin v. Tex. Dept. of Family & Protective , No. 01-03-01111-CV, 2004 WL 1945255, at *2 (Tex. App.-Houston [1 31, 2004, no pet.) (observing that the Texas Civil Practice & Remedies Code “allow[s] a ‘motion’ for sanctions, not an affirmative ‘claim’”) . DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 4 The court in specifically stated that, under Texas law, “a motion for sanctions for frivolous litigation under chapter 10 must be tied to the allegedly frivolous litigation and cannot be brought as an independent cause of action.” The First Court of Appeals has repeatedly held that a motion for sanctions pursuant to Chapter 105 the Texas Civil Practice and Remedies Code does not present a claim for affirmative relief. Torres v. Tex. Dep’t of Family and Protective Servs No. 01-03-01125-CV, 2004 WL 1631305, at *2 (Tex. App.-Houston [1 Dist.] July 22, 2004, no Scout’s Honor’s alleged “counterclaim” is not in fact a counterclaim but a complaint. It does not plead a cause of action, and as such should be dismissed under Rule 91a. REQUEST FOR ATTORNEYS’ FEES Under Texas Rule of Civil Procedure 91a, the prevailing party on a motion to dismiss may be awarded reasonable and necessary attorneys’ fees and all costs incurred with respect to the challenged cause(s) of action. Tex. R. Civ. P. 91a.7. Under Texas Civil Practice and Remedies Code § 10.002(c), “[t]he court may award to a party prevailing on a motion [for sanctions] under this section the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion, and, if no due diligence is shown, the court may award to the prevailing party all costs for inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject litigation.” Defendant Boring requests $1,000.00 as reasonable and necessary attorneys’ fees for preparing this motion. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Pamela Boring respectfully moves the Court to grant her Motion to Dismiss in its entirety and to enter judgment that Scout’s DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 5 Honor Rescue, Inc. takes nothing from Boring, that Scout’s Honor Rescue, Inc.’s counsel be sanctioned for violating Texas Rule of Civil Procedure 13, that this Boring be awarded reasonable attorneys’ fees and costs, and for such other and further relief to which she may show herself justly entitled, both in law and at equity. Respectfully submitted, NAN LEVERETT Fax: (855) 602-8224 Eservice: efiling@meaderslaw.com Nan.Leverett@meaderslaw.com ATTORNEYS FOR CROSS-PLAINTIFF/ COUNTER-DEFENDANT, PAMELA BORING DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 6 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing document has been served upon all counsel on November 11, 2022, electronic service in accordance with the Texas Loren Jackson OUSTON NJURY AWYERS E-mail: loren@houinjurylawyers.com Attorneys for Plaintiff Breona Gonzalez Branch M. Sheppard Jonathon W. Austin ALLOWAY OHNSON OMPKINS URR MITH 1301 McKinney, Suite 1400 bsheppard@gallowaylawfirm.com jaustin@gallowaylawfirm.com Attorneys for Scout’s Honor Rescue, Inc. FFICE OF RIAN J. J Chicago, IL 60690-4743 E-Service: E-Mail: Brian.Judis@cna.com Attorney for Defendants, Southern Veterinary Partners, LLC dba Foster Creek Veterinary Hospital and Dulles Property, LLC NAN LEVERETT DEFENDANT PAMELA BORING’S MOTION TO DISMISS UNDER TRCP 91a Page | 7