It's an issue that's split appellate courts.

When defendants in Texas courts move to dismiss a lawsuit, claiming it has no basis in law or fact, are they allowed to raise affirmative defenses such as the statute of limitations or attorney immunity?

Two Dallas attorneys will face off Thursday in arguments before the Texas Supreme Court, which will decide how trial courts should handle affirmative defenses raised in motions to dismiss under Texas Rule of Civil Procedure 91a. The petitioner in the case argues the motion-to-dismiss stage is too early to consider affirmative defenses, because that requires considering facts outside of the petition itself. The respondent, meanwhile, argues it's proper for a court to determine if a petition establishes a legal bar—such as an affirmative defense—to the plaintiff's claim.

Rule 91a was colloquially called "loser pays" when it passed the Texas Legislature in 2011, because if a case gets dismissed the movant wins attorney fees. Similar to the Federal Rule of Civil Procedure 12(b)(6), Texas' Rule 91a allows for the early dismissal of a claim with no basis in law or fact. But the federal and state versions have important differences.

In Bethel v. Quilling, Selander, Lownds, Winslett & Moser, Cheryln Bethel's husband died in an accident caused by defective trailer brakes and she sued the brakes manufacturer. James Moody and Quilling, Selander, Lownds, Winslett & Moser were opposing counsel who represented the brakes manufacturer.

Later, Bethel sued Moody and Quilling Selander as well. She alleged that either they or their experts took the brakes apart and destroyed their condition, impairing their use as evidence in her underlying wrongful death case.

The lawyer and firm filed a 91a motion to dismiss that argued Bethel's claims were barred by the attorney immunity doctrine, which shields Texas attorneys from liability to a third party for conduct they undertook in representation of a client. The trial court granted dismissal and awarded Moody and Quilling Selander $7,480 in attorney fees. The Fifth Court upheld the ruling.

Appellate Arguments

Bethel argues in her appeal that attorney immunity didn't apply to the type of lawyer conduct she alleged in her lawsuit. The law firm should have pleaded and proved its affirmative defense in its own pleadings, she claimed. She also argued that the Fifth Court inferred facts in her own pleadings to support the law firm's attorney immunity argument.

"Affirmative defenses cannot bar a plaintiff's claim at the early-dismissal stage," said Bethel's brief on the merits. "The plain language of Rule 91a prohibits looking outside the plaintiff's pleading when evaluating a claim's basis in law."

Bethel's attorney, Jessica Foster, an associate with Durham, Pittard & Spalding in Dallas, didn't immediately return a call seeking comment.

But Quilling Selander noted in its brief on the merits that Bethel raised an argument in her own pleading that attorney immunity did not bar her claims. That's why it was appropriate for the court to consider that affirmative defense in the case. The firm claimed that even if she didn't raise attorney immunity in her pleading, it still would have been proper for a court to consider it under a Rule 91a motion.

"A court is permitted to consider whether the facts as alleged by the plaintiff establish a legal bar to recovery, such as the application of an affirmative defense," the firm's brief said. "There is no basis in law for the claims asserted by Bethel because they are barred by the attorney immunity doctrine."

Quilling Selander shareholder Marcie Schout of Dallas, who's arguing for her firm, didn't immediately return an email seeking comment.

Quilling Selander has agreed to give five minutes of its time in oral argument Thursday to the state of Texas, which filed an amicus brief in the case that argues it's proper to consider affirmative defenses with Rule 91a motions.