Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess OPINION In the trial court below, the real party in interest, Health Choice Advisory, LLC (HCA), brought a qui tam action under the Texas Medicaid Fraud Prevention Act (TMFPA) against Shire PLC, Baxter International Inc., Baxalta Incorporated, and ViroPharma Inc. (collectively Shire). Shire moved the trial court to dismiss the action under Rule 91a of the Texas Rules of Civil Procedure. The trial court denied the motion, and Shire filed this petition for a writ of mandamus asking us to compel the trial court to grant its motion to dismiss. For the reasons discussed below, we deny the petition. Factual and Procedural History The TMFPA and the Present Action The TMFPA states, A person commits an unlawful act if the person: . . . . (5) except as authorized under the Medicaid program, knowingly pays, charges, solicits, accepts, or receives, in addition to an amount paid under the Medicaid program, a gift, money, a donation, or other consideration as a condition to the provision of a service or product or the continued provision of a service or product if the cost of the service or product is paid for, in whole or in part, under the Medicaid program . . . . TEX. HUM. RES. CODE ANN. § 36.002(5). This provision is known as the “anti-kickback section” of the TMFPA. Section 36.011(a), subsections (2) and (3), provide that “a person acts ‘knowingly’” under the TMFPA “if the person (2) acts with conscious indifference to the truth or falsity of the information[] or (3) acts in reckless disregard of the truth or falsity of the information.” TEX. HUM. RES. CODE ANN. § 36.0011(a)(2)–(3). Section 36.101 of the TMFPA allows private persons to institute suits for civil remedies for violations of the Act “in the name of the person and of the state.” TEX. HUM. RES. CODE ANN. §§ 36.101(a), 36.052. The petition in suits instituted by private persons must be filed in camera and served on the Texas Attorney General, and the suit must remain under seal until the earlier of the date on which the Attorney General elects to intervene and prosecute the action or 180 days after the date the petition was filed. TEX. HUM. RES. CODE ANN. § 36.102(a), (b) (Supp.), § 36.104(a), (b). In its petition in this case, HCA alleged that Shire violated the anti-kickback section of the TMFPA by implementing two marketing programs that incentivized medical providers to prescribe certain pharmaceutical products covered by the Texas Medicaid Program. According to HCA, Shire provided nursing and support staff services to medical providers in exchange for the providers prescribing the covered products; it also alleged that, by virtue of these programs, Shire reduced the medical providers’ attendant expenses, thereby increasing their profit margins for prescribing the covered products. HCA further alleged that, by increasing the providers’ profit margins, these two programs constituted illegal kickbacks to the medical providers. Specifically, HCA alleged that, “in typical quid pro quo fashion,” the medical providers would have to prescribe the covered products to obtain the identified support services.[1] The Motion to Dismiss Shire moved to dismiss this suit in the trial court under Rule 91a of the Texas Rules of Civil Procedure. It alleged that HCA is “an affiliate of the National Health Care Analysis Group (NHCA Group), an agency created by investors and former Wall Street Investment Bankers for the purpose of pursuing false claims act litigation.” Shire further argued that in “2016 and 2017, acting through various shell companies, NHCA Group filed numerous, virtually identical qui tam actions across the country, against dozens of pharmaceutical companies.” Shire continued, “The plaintiffs in those actions made the same allegations HCA makes here: that the defendants’ nurse-educator and reimbursement-support services amounted to illegal kickbacks that resulted in the submission of fraudulent claims to federal and state healthcare programs.” Shire then alleged (1) that “[t]he United States, however, flatly rejected NHCA Group’s theory and exercised its authority under the False Claims Act [(FCA)]to dismiss the federal claims brought by NHCA Group’s affiliates” and (2) that, “[i]n moving to dismiss those claims, the United States, through the Department of Justice, explained that the allegations lacked both ‘factual and legal support’ and were an unfounded attack on ‘common industry practices’ that are ‘appropriate and beneficial to federal healthcare programs and their beneficiaries.’” Shire asserted two arguments to the trial court in support of its motions to dismiss. First, it argued that dismissal was required by the “public disclosure bar” of the TMFPA “because [RPI's] claims are based on allegations or transactions that were publicly disclosed—and thus available to state prosecuting authorities—well before HCA filed its petition in this case.”[2] Second, it argued that “the petition has no basis in law for purposes of Rule 91a because it does not allege facts sufficient to show that Shire’s product-support services were illegal kickbacks or that Shire acted with the scienter required to violate the TMFPA.” The trial court denied Shire’s motion to dismiss under Rule 91a. The Petition for a Writ of Mandamus Shire then petitioned this Court for a writ of mandamus, asking us to order the trial court to grant its motion. In its petition, Shire contends that this Court has jurisdiction to review its petition because “[t]he Texas Supreme Court has held that mandamus is available to review a trial court’s denial of a motion to dismiss under Texas Rule of Civil Procedure 91a,” that the trial court abused its discretion by failing to grant its motion to dismiss, and that it lacks an adequate remedy by appeal. In its petition, Shire reiterates the arguments it made to the trial court, but for ease of discussion, we will discuss them as three arguments rather than two: (1) that HCA’s claims have no basis in law because they are barred as a matter of law by the TMFPA’s public disclosure bar, (2) that—based on federal authorities interpreting a similar federal statute—the marketing schemes at issue here are not kickbacks under the TMFPA as a matter of law, and (3) that HCA failed to properly plead scienter as required by the TMFPA. Standard of Review and Issue Presented The Texas Supreme Court has held that mandamus is available to review a trial court’s denial of a Rule 91a motion to dismiss. In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014) (per curiam) (orig. proceeding). A party is entitled to a writ of mandamus when it demonstrates that the trial court abused its discretion and that it does not have an adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840–41 (Tex. 1992). A trial court abuses its discretion when “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding), disapproved of by In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding)). In other words, because “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts[,] . . . a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Id. at 840. In addition, the mere fact that “an appellate remedy . . . may involve more expense or delay than obtaining an extraordinary writ” does not establish that the appellate remedy is inadequate. Id. at 842. Rather, “[t]he most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial—regardless of the outcome—would defeat the substantive right involved.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding). The failure to establish either element will defeat a petitioner’s request for mandamus relief. To determine whether the trial court abused its discretion by denying Shire’s Rule 91a motion to dismiss, we must first decide whether the trial court was required to grant that motion. To do that, we must identify the type of case Rule 91a was adopted to address and determine whether this case falls within that category. Because no dismissal rule existed prior to the adoption of Rule 91a, we must also determine where Rule 91a fits within the continuum of pretrial procedures in the Texas Rules of Civil Procedure. We begin our analysis by reviewing the history of pleadings challenges leading to the adoption of Rule 91a.[3] Evolution of Dismissal and Challenges to Pleadings in Texas General Demurrers and Special Exceptions Professor Elaine A. Grafton Carlson explains in the treatise Texas Civil Practice that, originally in Texas, a defendant could file a “general demurrer” to the plaintiff’s petition. 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, Texas Civil Practice § 9.24[b] (2d ed. 2021) (Westlaw). A “general demurrer asserted that ‘the plaintiff’s petition [was] wholly insufficient in law to state any cause of action against the defendant.’” Id. Upon the filing of a general demurrer, “the trial judge was often required to determine . . . whether the defect, on the one hand, was trivial and subject to cure by amendment, or on the other, was fatal because the petition urged a groundless claim that could not be made sufficient in law.” Id. “The trial judge’s decision could be attacked on appeal on any theory that might occur to counsel either before or after the ruling.” Id. The Supreme Court adopted Rules 90 and 91 of the Texas Rules of Civil Procedure to end the practice of general demurrers and create instead “a procedure that, without depriving the defendant of the right to challenge the legal sufficiency of the claim, would compel a fair disclosure of the defect asserted.” Id. Rule 90 states, General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered. TEX. R. CIV. P. 90. Rule 91 states, “A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligently and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.” TEX. R. CIV. P. 91. As Professor Carlson explains this “special exception” procedure, A special exception may challenge the petition as a whole, or a divisible portion of the petition. Where several claims are joined, against the same or several defendants, or where a single claim involves a number of elements of recovery, the sufficiency of any one or more of such claims or elements may be challenged by special exception directed to the part deemed legally insufficient . . . . A special exception challenging a claim will be grounded on one or more of three propositions, the applicable one being set out explicitly: (1) that no legal rule justifies a recovery on a claim or defense of the type alleged; (2) that, though there is a legal rule that might be applicable, the petition or answer omits one or more allegations essential to bring the claim or defense within its scope; or (3) that, though there is a legal rule that might be applicable, the petition or answer shows on its face facts negating its application. In addition, any other pleading defect or omission may be urged though the special exception, including that the pleading[] fail[s] to give fair notice, is ambiguous, or is not verified as required. 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, Texas Civil Practice § 9.25[a] (2d ed. 2021) (Westlaw) (footnotes omitted) (citations omitted). Of course, Rules 90 and 91 do not expressly provide for dismissal. Nevertheless, a limited type of dismissal for pleading insufficiency gradually evolved through caselaw interpreting Rules 90 and 91 prior to the adoption of Rule 91a. Essentially, under that procedure,[4] if the trial court sustains a special exception, the plaintiff must be given an opportunity to replead for the purpose of curing the defect. Frieshenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). If the plaintiff refuses to replead and “stands” on its pleadings, the trial court will strike the defective allegations. Cruz v. Morris, 877 S.W.2d 45, 47 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (citing Ship Ahoy, Inc. v. Whalen, 347 S.W.2d 662, 663 (Tex. App.—Houston [1st Dist.] 1961, no writ)). “If the remaining allegations in the petition fail to state a cause of action, then the trial court [will] dismiss the suit.” Id. (citing Geochem Lab., Inc. v. Brown & Ruth Lab., Inc., 689 S.W.2d 188, 190 (Tex. App.—Houston [1st Dist. 1985, writ ref'd n.r.e.)). If the defect is curable, then dismissal is without prejudice. Hajdik v. Wingate, 753 S.W.2d 199, 202 (Tex. App.---Houston [1st Dist.] 1988), aff’d, 795 S.W.2d 717 (Tex. 1990). If, however, the defect is not curable, dismissal is with prejudice, thereby ending the litigation. Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 386 (Tex. 1991) (dismissal was with prejudice because there was no duty to warn of alcoholism). In addition, where a plaintiff “plead[ed] facts which affirmatively negate[d] his cause of action,” a defendant could forgo special exceptions altogether and move for summary judgment on the pleadings. Tex. Dep’t of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex. 1974). Subject to those limited exceptions, however, dismissal was generally not available in Texas. Motions to Dismiss Under Rule 91a In 2011, the Texas Legislature added subsection (g) to Section 22.004 of the Texas Government Code, which states, “The supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.” TEX. GOV’T CODE ANN. § 22.004(g) (Supp.). Pursuant to that Legislative mandate, the Texas Supreme Court adopted Rule 91a, which provides, in part, 91a.1. Motion and Grounds. Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. 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. 91a.2. Contents of Motion. A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a. Nevertheless, the Texas Supreme Court did not repeal or amend Rules 90 and 91.[5] To the contrary, it appears that Rule 91a was intended to supplement those rules. Most obviously, the fact that the Texas Supreme Court designated the new rule as 91a suggests a connection between the rules. Moreover, Rule 91a states that the motion “must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both,” which is consistent with both Rules 90 and 91. Id. Finally, Rule 91a.9 expressly states, “This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal.” TEX. R. CIV. P. 91a.9. All of these factors lead to the conclusion that Rule 91a did not repeal the special exception practice under Rules 90 and 91 but supplemented it. Texas Supreme Court Cases Granting and Denying Mandamus for the Denial of a Motion to Dismiss Under Rule 91a and the Meaning of the Rule’s Standard for Dismissal Since Rule 91a’s adoption, the Texas Supreme Court has issued several opinions granting or denying mandamus relief where trial courts denied motions to dismiss under Rule 91a. These opinions clarify what is required to establish that “the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”[6] In re Essex Insurance Co., 450 S.W.3d 524 (Tex. 2014) In In re Essex Insurance Co., the plaintiff, Zuniga, lost his hand during an industrial accident at SDT’s facility. In re Essex Ins. Co., 450 S.W.3d 524, 525 (Tex. 2014) (orig. proceeding). SDT’s insurer, Essex, investigated the claim and denied coverage to SDT on the basis that Zuniga was SDT’s employee, rather than an independent contractor as Zuniga and SDT claimed. Id. Zuniga added Essex as a defendant in his suit against SDT, “seeking a declaration that the policy require[d] Essex to indemnify SDT for its liability to Zuniga.” Id. The trial court denied Essex’s motion to dismiss under Rule 91a, and the court of appeals denied Essex’s mandamus petition. Id. at 525–26. The Texas Supreme Court granted Essex’s petition for a writ of mandamus, finding that, under “the general rule . . . that an injured party cannot sue the tortfeasor’s insurer directly until the tortfeasor’s liability has been finally determined by agreement or judgment,” Id. at 525, “Zuniga’s claims against [Essex were] barred.” Id. at 526. The fact that Zuniga brought his case against Essex under the Declaratory Judgments Act did not change the Texas Supreme Court’s analysis; it noted that the no direct action rule was settled law and that Zuniga could not point to “any cases in which [the court had] held that the plaintiff, who is not a party to the insurance policy, may seek or obtain a declaratory judgment regarding an insurer’s duty to indemnify an insured defendant against liability to the plaintiff before that liability has been determined.” Id. at 527. It concluded, “Because Texas law does not permit Zuniga to sue Essex directly for a declaration of Essex’s duty to indemnify SDT before SDT’s liability to Zuniga has been determined, . . . the trial court abused its discretion by denying [Essex's] motion to dismiss Zuniga’s claims in [that] case.” Id. at 527–28. The Texas Supreme Court also held that Essex had no adequate remedy at law via an appeal after final judgment, noting that “mandamus relief is appropriate to ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’” Id. at 528 (quoting In re John G. & Marie Stella Kenedy Mem’l Found., 315 S.W.3d 519, 523 (Tex. 2010) (orig. proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding))). In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. 2019) Next, in In re Houston Specialty Insurance Co., HSIC sued the law firm Thompson, Coe, Cousins, & Irons, LLP (Thompson Coe), for legal malpractice arising from a coverage opinion it issued to HSIC concluding that HSIC had no duty to defend and indemnify its insured, South Central Coal Company (the Coal Company) in the underlying litigation. In re Houston Specialty Ins. Co., 569 S.W.3d 138, 139 (Tex. 2019) (per curiam) (orig. proceeding). After HSIC denied coverage and a defense, the Coal Company sued HSIC and ultimately obtained a settlement whereby HSIC paid $2.8 million to the Coal Company. Id. Afterward, “HSIC accused Thompson Coe of committing legal malpractice during its representation of HSIC” in the underlying lawsuit and sought recovery of the money it had paid to settle the claim. Id. Thompson Coe responded by filing suit against HSIC seeking a declaratory judgment that, among other things, it did not commit legal malpractice. Id. HSIC then sued Thompson Coe for malpractice in a different court and moved the original trial court to dismiss Thompson Coe’s declaratory judgment action, arguing that “the suit violate[d] the rule of Abor v. Black, 695 S.W.2d 564 (Tex. 1985) (orig. proceeding), that a potential tort defendant may not use the [Declaratory Judgment Act] to obtain a declaration of nonliability in tort.” Id. The trial court denied the motion to dismiss, but the Texas Supreme Court granted mandamus, holding that “each of Thompson Coe’s requested declarations [were] aimed at establishing a defense to a potential legal malpractice claim by HSIC. Under Abor, they are legally invalid, have ‘no basis in law,’ and should have been dismissed.” Id. at 141 (quoting TEX. R. CIV. P. 91a.1). The Texas Supreme Court reiterated its prior holding in Essex that “mandamus relief is appropriate to ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’” Id. at 141–42 (quoting In re Essex Ins. Co., 450 S.W.3d at 528). Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020) Then, in Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., the plaintiff in a wrongful death suit against a trailer manufacturer filed suit against the trailer manufacturer’s law firm alleging, “among other things, fraud, trespass to chattel, and conversion.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 653, 654 (Tex. 2020). The basis of the underlying wrongful death suit was Bethel’s claim “that the trailer’s faulty brakes caused the accident” in which her husband was killed. Id. at 653. Against Quilling, Bethel alleged that “Quilling intentionally destroyed key evidence in the case by disassembling and testing the trailer’s brakes before Bethel had the opportunity to either examine them or document their original condition.” Id. at 654. Quilling alleged the affirmative defense of attorney immunity and moved for dismissal under Rule 91a. Id. The trial court granted the motion, and the court of appeals affirmed. Id. The Texas Supreme Court affirmed the lower courts’ rulings, first holding that “an affirmative defense may be the basis of a Rule 91a motion to dismiss.” Id. at 653.[7] Turning to the merits of Quilling’s motion to dismiss, the Texas Supreme Court held that “Quilling’s complained-of-actions are the kind of actions that are ‘taken in connection with representing a client in litigation.’” Id. at 658 (quoting Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)). While it admitted that a different result might ensue if the petition alleged different facts, the Texas Supreme Court concluded—based on the allegations in the petition—that Bethel’s claims against Quilling were barred by attorney immunity. Id. In re Farmers Texas County Mutual Insurance Co., 621 S.W.3d 261 (Tex. 2021) Finally, on April 23 of this year, the Texas Supreme Court handed down its opinion in In re Farmers Texas County Mutual Insurance Co., 621 S.W.3d 261 (Tex. 2021) (orig. proceeding). In that case, “Gary Gibson sued [Farmers' insured] Cassandra Longoria for damages he sustained in an automobile accident when Longoria rear-ended his vehicle.” Id. at 265. At a mediation, “the mediator proposed that the case settle for $350,000,” and “[a]fter mediation, Gibson notified Farmers that he would accept the mediator’s proposal.” Id. Farmers offered $250,000 in response to Gibson’s offer. Id. Longoria alleged that “Farmers ‘suggested’ or ‘ma[de] a demand’ that she ‘contribute the additional $100,000 necessary to secure a release.’” Id. (alteration in original). Subsequently, “Gibson rejected Farmers’ $250,000 settlement offer and withdrew his own settlement offer, advising that he would [instead] seek $2 million in damages.” Id. However, “[b]efore trial, Longoria’s personal counsel reopened settlement negotiations. . . . After Farmers again refused to contribute more than $250,000, Longoria offered to pay the additional $100,000 without waiving her right to seek recovery of that payment from Farmers.” Id. The case settled, and Gibson released Longoria in exchange for the total payment of $350,000. Id. Longoria then sued Farmers “for negligent failure to settle” under the authority of G.A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex. Comm’n. App. 1929, holding approved), and she subsequently amended her petition to assert a claim for breach of the insurance contract’s “obligation to defend Longoria against Gibson’s suit by failing to designate expert witnesses on time” and a claim for breach of the insurance contract’s indemnity obligation.[8] In re Farmers Tex. Cty. Mut. Ins. Co., 621 S.W.3d at 265, 268. Farmers moved to dismiss the petition under Rule 91a. Id. at 264. The trial court denied relief, and the court of appeals granted Farmers’ petition for a writ of mandamus regarding Longoria’s breach of contract claim but denied mandamus relief regarding her Stowers claim. Id. The Texas Supreme Court granted Farmers’ petition for a writ of mandamus regarding Longoria’s Stowers claim, holding that Stowers liability attaches only when “the insurer’s negligent failure to settle results in an excess judgment against the insured.” Id. at 267 (quoting Phillips v. Bramlett, 288 S.W.3d 876, 879 (Tex. 2009) (citing G.A. Stowers Furniture Co., 15 S.W.2d at 544)). Because the settlement made it impossible that Gibson would ever obtain an excess judgment against Longoria, a Stowers claim was barred. Id. at 268.[9] The Texas Supreme Court also ruled that Longoria’s claim for breach of the insurance contract’s duty to defend provision was barred, noting that Longoria “s[ought] to hold Farmers liable because the attorney it provided for her failed to secure and timely designate experts to testify in her favor,” that “a liability insurer is not vicariously responsible for the conduct of an independent attorney it selects to defend an insured,” id. at 269 (quoting State Farm Mut. Auto Ins. Co. v. Traver, 980 S.W.2d 625, 628 (Tex. 1998)), and that Longoria “identifi[ed] no pleaded facts that [took] her claim outside this legal rule,” id. However, the Texas Supreme Court granted mandamus to reverse the dismissal of Longoria’s claim for breach of the insurance contract’s duty to indemnify. It noted that Longoria quoted the following language from her insurance policy in her petition: “We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” Id. The Texas Supreme Court then noted that the law was clear that “[a] court judgment against an insured is not the only manner by which an insured can become legally obligated to pay a claim; a legal obligation can also arise out of a contract such as a settlement.” Id. at 270 (quoting 46 TEX. JUR. 3D INSURANCE CONTRACTS & COVERAGE § 893). The Texas Supreme Court held that “[b]ecause Texas courts recognize that an insured can become legally responsible due to a settlement, Longoria [had] alleged facts that trigger[ed] Farmers’ payment obligation under the plain language of [that] policy provision.” Id. Significantly, in response to the dissenting opinion’s position that Farmers was not liable under other provisions of the policy not alleged in the petition, the majority hinted that such arguments might be appropriate for a motion for summary judgment, but they did not require dismissal under Rule 91a. Id. at 276. The Supreme Court concluded, [O]ur holding is limited to the scope of Farmers’ Rule 91a motion and clarifies a narrow issue: Stowers and the other principles of Texas insurance law cited by Farmers do not foreclose as a matter of law a claim for breach of contract against an insurer regarding its indemnity obligation. Thus, the trial court properly denied Farmers’ Rule 91a motion to dismiss Longoria’s cause of action for breach of the contractual obligation to indemnify, and the court of appeals erred in concluding otherwise. Id. Summary of the Texas Supreme Court’s Rule 91a Cases The rulings in these Texas Supreme Court cases reveal a pattern that is consistent with the prior procedure for raising pleading defects under Rules 90 and 91. Namely, to establish that “the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought,” the defendant must establish that the plaintiff’s claims are “foreclose[d] as a matter of law” because either (1) the causes of action in the petition are not recognized by Texas law or (2) the causes of action are recognized, but the plaintiff has alleged facts that defeat those claims under settled law (i.e., the plaintiff has pleaded itself out of court). Id. Thus, in In re Essex Insurance Co. and in In re Houston Specialty Insurance Co., the prior settled law barred the precise claims asserted by the plaintiffs. In Essex, the Supreme Court held that “Texas law [did] not permit Zuniga to sue Essex directly for a declaration of Essex’s duty to indemnify SDT before SDT’s liability to Zuniga [had] been determined.” In re Essex Ins. Co., 450 S.W.3d at 527. In In re Houston Specialty Insurance Co., the law prohibited a defendant from filing a declaratory judgment action seeking a declaration of non-liability. In re Houston Specialty Ins. Co., 569 S.W.3d at 141. And, in Quilling and In re Farmers Insurance Co., a claim of the type alleged was possible under Texas law, but the plaintiffs pleaded themselves out of court. While the plaintiffs’ claims in Quilling were recognized by Texas law, the law also provides attorneys with immunity from suit for “actions that are ‘taken in connection with representing a client in litigation,’” and the plaintiffs’ claims alleged that exact type of liability. Quilling, 595 S.W.3d at 658 (quoting Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)). Also, plaintiff’s Stowers claim in In re Farmers Insurance Co. was recognized by Texas law, but liability could not occur under the Stowers doctrine because the parties’ settlement in the underlying litigation eliminated the possibility of an excess judgment against the plaintiff, In re Farmers Tex. Cty. Mut. Ins. Co., 621 S.W.3d at 275; likewise, Texas law recognizes a claim for breach of the insurance contract’s duty to defend, but the plaintiff could not prevail in the face of precedent holding that a liability insurer cannot be vicariously liable for the actions of an independent attorney retained to defend the insured, id. at 269. On the other hand, in In re Farmers Insurance Co., the Texas Supreme Court held that Rule 91a did not require dismissal of the plaintiff’s breach of the insurance contract claim because prior law had not foreclosed recovery under the policy provision cited by the plaintiff in her petition. Id. at 276 (“Stowers and the other principles of Texas insurance law cited by Farmers do not foreclose as a matter of law a claim for breach of contract against an insurer regarding its indemnity obligation.”). Although the Texas Supreme Court hinted that the question might ultimately be resolved in favor of the defendant on summary judgment, Farmers was not entitled to dismissal under Rule 91a. Id. at 277. In short, in every case in which the Supreme Court has found that dismissal was required by Rule 91a, the plaintiff’s recovery on his or her claims was foreclosed as a matter of law, whereas, in the case in which it found that dismissal was not required, the plaintiff’s recovery was not foreclosed as a matter of law. Thus, it is clear that the Texas Supreme Court has interpreted Rule 91a’s “no basis in law” standard to mean that the plaintiff’s recovery on its claims must be foreclosed as a matter of law in order to merit dismissal under that rule. The Supreme Court’s use of the term foreclose is instructive: the term foreclose is defined as “to shut out: PRECLUDE.” Foreclose, WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2006). The term “preclude” is defined as “to make impossible by necessary consequence: rule out in advance.” Preclude, WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2006). Consequently, the reasoning in those Supreme Court cases establishes that to demonstrate that “the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought,” the defendant must show that recovery on the claims in the plaintiff’s petition is foreclosed (i.e., that the plaintiff’s recovery is impossible by necessary consequence of the law) because either (1) the causes of action in the petition are not recognized by Texas law or (2) the plaintiff has alleged facts that defeat those causes of action under settled law (i.e., the plaintiff has pleaded itself out of court). In other words, a claim is foreclosed as a matter of law where recovery by the plaintiff is legally impossible. Moreover, the Texas Supreme Court’s interpretation of the “no basis in law” standard to mean that the claim is foreclosed as a matter of law—i.e., that recovery is legally impossible—is consistent with the language of the rule itself: “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 (emphasis added). Stated another way, Rule 91a requires a showing that there is “no basis in law or fact” rather than merely “no reasonable basis in law or fact” or “no meritorious basis in law or fact.”[10] It is also consistent with the policy reasons behind the rule: when it is legally impossible for the plaintiff to recover on the claims in the petition, it is unjust to require the defendant to expend the time and money “enduring eventual reversal of improperly conducted proceedings.” In re Essex Ins. Co., 450 S.W.3d at 528. Therefore, to establish that a cause of action has “no basis in law” because “the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought,” id., the defendant must demonstrate that recovery by the plaintiff is foreclosed as a matter of law—i.e., that it is legally impossible for the plaintiff to recover on the claims in its petition—because either (1) the causes of action in the petition are not recognized by Texas law or (2) the plaintiff has alleged facts that defeat those causes of action under settled law (i.e., the plaintiff has pleaded itself out of court). How Does Rule 91a Comport with Rules 90, 91, and 166a and Compare to Rule 12(b)(6) of the Federal Rules of Civil Procedure? Summary Judgment Under Rule 166a Shire argues that HCA’s claims have no basis in law because they are barred by TMFPA’s public disclosure bar as a matter of law and because—based on federal authorities interpreting a similar federal statute—the schemes at issue are not kickbacks under the TMFPA as a matter of law. Accordingly, we must also determine how Rule 91a’s “no basis in law or fact” standard compares to Rule 166a’s “judgment as a matter of law” standard. TEX. R. CIV. P. 166a(c). The Texas summary judgment procedure under Rule 166a is well established: To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff’s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). However, once the movant establishes it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In reviewing a summary judgment, we accept all of the nonmovant’s proof as true and indulge every reasonable inference in the nonmovant’s favor. Sci. Spectrum, 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). Allen v. A & T Transp. Co., 79 S.W.3d 65, 68 (Tex. App.—Texarkana 2002, pet. denied).[11] Technically, whenever a claim has no basis in law under Rule 91a, then the defendant is entitled to dismissal and dismissal of the action would be a judgment in the defendant’s favor “as a matter of law.” However, under the reasoning of the Texas Supreme Court’s mandamus cases, the reverse is not also true. That is, when a defendant is entitled to judgment as a matter of law under Rule 166a, it does not necessarily follow that he also would have been entitled to dismissal under Rule 91a. As noted above, equating the two standards would effectively convert Rule 91a into a pre-discovery motion for summary judgment for which there is immediate review via mandamus whenever a trial court denies such a motion even though no such review is permitted for the denial of a motion for summary judgment.[12] This would create the negative impact on the judicial system resulting from excessive mandamus petitions that the Supreme Court warned against in Walker.[13] However, the Texas Supreme Court has not interpreted Rule 91a that broadly. Rather, under its reasoning in In re Essex, In re Houston Specialty Insurance Co., Quilling, and In re Farmers Insurance Co.,[14] if the defendant cannot demonstrate that the plaintiff’s recovery on the claim in its petition are foreclosed as a matter of law, then it may still move for summary judgment, but it is not entitled to dismissal under Rule 91a.[15] Comparison of Rule 91a to Rule 12(b)(6) of the Federal Rules of Civil Procedure We also note that some appellate courts have concluded that we may look to federal cases interpreting Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance in interpreting Rule 91a. See GoDaddy.com v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. denied) (“While not identical, Rule 91a is analogous to Rule 12(b)(6); therefore, we find case law interpreting Rule 12(b)(6) instructive.”); but see In re Butt, 495 S.W.3d 455, 461 (Tex. App.—Corpus Christi 2016, orig. proceeding) (“We note, however, that the federal rules are based on a more stringent pleading standard than the Texas rules, and Rule 91a did not revoke Texas’s established ‘fair notice’ pleading standard.”). Shire cites to federal dismissal cases in support of the arguments in its mandamus petition. Thus, we must consider how federal Rule 12(b)(6) compares to Rule 91a.
