A procedural method for defendants to swat down lawsuits early in the litigation got a boost Friday when the Texas Supreme Court settled a split among appellate courts, ruling that defendants can bring affirmative defenses in those dismissal motions.

The unanimous ruling is a win for law firm Quilling, Selander, Lownds, Winslett & Moser and attorney James H. Moody III, because the high court determined they enjoyed attorney immunity from the claims, and that they should be able to argue that fact to dismiss the case during a very early stage of the litigation process.

The dismissal motion at issue is the Texas Rule of Civil Procedure 91a motion to dismiss, which dismisses a claim with no basis in law or fact, and which is the Texas equivalent of the federal 12(b)(6) motion to dismiss.

"I think it's a really helpful ruling for Texas practitioners in that it clarifies how Rule 91a applies in the context of affirmative defenses," said Marcie Schout, shareholder in Quilling Selander in Dallas. "Having that is really helpful for practitioners in knowing the boundaries of what's allowed in Rule 91a."

The high court noted that a Rule 91a motion to dismiss a lawsuit with no basis in law or fact does limit a court to deciding a dismissal motion based on the pleading alone. But the opinion in Bethel v. Quilling, Selander, Lownds, Winslett & Moser determined that this limitation only applies to facts that a court can consider.

Legal arguments are different, because courts aren't limited to sticking to the four corners of the pleading to decide a legal argument.

"The rule does not limit the universe of legal theories by which the movant may show that the claimant is not entitled to relief based on the facts as alleged," said the ruling by Justice John Devine.

In the case, plaintiff Cheryln Bethel's husband died in an accident caused by defective trailer brakes, leading to the suit against the brakes manufacturer.

James Moody and Quilling Selander were opposing counsel, who represented the brakes manufacturer. She sued the lawyer and firm, alleging 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 defendants filed a  91a motion that argued Bethel's claims were barred by the attorney-immunity doctrine, which shields Texas lawyers from liability to a third party for conduct they undertook in representation of a client. The trial court granted dismissal, and an intermediate appellate court upheld the ruling.

While finding that defendants may raise affirmative defenses in a 91a motion, the ruling also explained that some affirmative defenses must be established by facts that will not be in the plaintiff's petition. Those defenses can't be used in 91a motions, since the rule states that courts can't consider evidence when deciding the motions, the opinion said.

It's clear from Bethel's petition that she's not entitled to relief, the court ruled.

"Taking Bethel's allegations as true, the trial court determined that Bethel was not entitled to the relief sought because attorney immunity barred Bethel's claims. That is enough for dismissal under Rule 91a," the opinion said.

The affirmative defense at issue in the case is attorney immunity, which gives a lawyer immunity from lawsuits by nonclients for actions that they took while representing their own client.

Bethel was arguing that criminal conduct should be an exception to wipe out attorney immunity, but the Supreme Court disagreed. If a nonclient could sue an attorney just by using the term "criminal" in pleadings, then that would significantly undercut attorney immunity, the opinion said.

However, the court clarified that attorney immunity isn't boundless. A wide range of criminal conduct wouldn't enjoy immunity since it wouldn't fall within the scope of a client's representation and would be foreign to an attorney's duties, the opinion explained.

The high court determined that in this case, Quilling Selander was taking actions that were connected to representing its client in litigation. Bethel complained of the way it disassembled the trailer brakes to inspect them. That brake inspection was central to examining and testing evidence during discovery in civil litigation, the court noted.

"Immunity also may not protect the intentional destruction of evidence—for instance, if Quilling had simply taken a sledgehammer to the brakes," the opinion said. "Here, however, Quilling acted in conjunction with its experts to examine and test key evidence in the underlying suit."