Laura Lopez, Individually, on Behalf of Hernan Murillo, and as Next Friend of Alfonso Murillo, Marcos Murillo, Abigail Murillo, and Karen Murillo v. Sunstate Equipment Co. LLC

REVERSE and REMAND and Opinion Filed August 29, 2022

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00100-CV

LAURA LOPEZ, INDIVIDUALLY, ON BEHALF OF HERNAN MURILLO,
DECEASED, AND AS NEXT FRIEND OF ALFONSO MURILLO,
MARCOS MURILLO, ABIGAIL MURILLO, AND KAREN MURILLO,
Appellant
V.
SUNSTATE EQUIPMENT CO. LLC, Appellee

On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-02079

MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Pedersen, III
Opinion by Justice Molberg

Appellant Laura Lopez, widow of Hernan Murillo, appeals a rule 91a order

dismissing claims brought individually, on behalf of Murillo, and as next friend of

their four children against appellee Sunstate Equipment Co. LLC. See TEX. R. CIV.

P. 91a. For the reasons that follow, we reverse the order and remand the case for

further proceedings consistent with this memorandum opinion. See TEX. R. APP. P.

47.4.
 I. BACKGROUND

A. Procedural Background

Laura Lopez is the surviving spouse of Hernan Murillo, a licensed electrician,

who died as a result of an equipment-related, construction-site accident at a Frito-

Lay facility in Irving, Texas, on October 4, 2019. She and Murillo had four children

at the time of that incident.

Soon after Murillo’s death, Lopez sued Walker Industrial, LLC and Frito-Lay,

Inc. individually, on behalf of Murillo, and as next friend to their four children.

On July 31, 2020, she filed a second amended petition adding claims against

Sunstate, one of eight defendants named in that pleading. She brought claims against

Sunstate for premises liability and wrongful death and survival based on Sunstate’s

alleged negligence. No exhibits were attached to that pleading. Sunstate answered,

asserting a general denial and various affirmative defenses not at issue here.

Fewer than sixty days after Sunstate was served with process, Sunstate also

filed a rule 91a motion to dismiss “all of [the] claims against it, including negligence

and premises liability,” on the ground Lopez had “no basis in law” for her claims

against Sunstate. See TEX. R. CIV. P. 91a.1. Sunstate argued Lopez’s pleading did

not identify an unreasonably dangerous condition, establish a premises liability

claim, or establish Sunstate was otherwise negligent. As to negligence, Sunstate

argued the facts pled did not establish Sunstate owed Murillo a duty, breached a

duty, or caused injury.

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 Seven days before the rule 91a hearing, Lopez filed a response in opposition

to Sunstate’s motion. Lopez attached two documents to her response: (1) her second

amended petition, which was her live pleading at the time, and (2) a one-page “terms

and conditions” form that, by its own terms, is part of a broader equipment rental

agreement.1

Five days before the hearing, Lopez amended her pleading and filed a third

amended petition. No exhibits were attached. In that pleading, Lopez removed the

premises liability claim against Sunstate and added two more allegations regarding

Sunstate’s negligence, increasing the number of Sunstate’s allegedly negligent acts

from eleven to thirteen, as further detailed below.

Sunstate did not amend its rule 91a motion after Lopez filed her third amended

pleading. Less than forty-five days after Sunstate filed its motion, the trial court

heard the motion and granted it, dismissing with prejudice Lopez’s claims against

Sunstate on the same day as the hearing. The signed order stated the court found the

motion to be meritorious but did not additionally specify the basis for the court’s

ruling. The order did not award any attorneys’ fees. See TEX. R. CIV. P. 91a.7.2

1
At the top of the one-page form, it states, under “TERMS AND CONDITIONS” and in smaller font,
“THIS AGREEMENT IS FOR THE RENTAL OF ALL EQUIPMENT, VEHICLES, AND/OR ITEMS
SHOWN ON THE OTHER SIDE [OF] THIS PAGE, INCLUDING ALL PARTS OF AND ALL
ACCESSORIES TO SUCH (‘EQUIPMENT’).” The bottom right corner of the form states “Revised
9/2018.” The form is not signed, contains only typewritten language, and does not identify the equipment
rented, date of rental, or the parties to the agreement, referring only generally to “Customer” and Sunstate.
2
According to the record before us, Sunstate did not seek or present any evidence of attorneys’ fees in
connection with its motion in the trial court. See TEX. R. CIV. P. 91a.7 (“Except in an action by or against
a governmental entity or a public official acting in his or her official capacity or under color of law, the

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 Later, the trial court signed an order severing Lopez’s claims against Sunstate

from her other claims. Lopez timely appealed the once-interlocutory, now-final

order dismissing her claims against Sunstate by filing a notice of appeal within thirty

days of the severance order.3

B. Pleading Allegations4

Murillo was killed when he and two other workers fell approximately thirty

feet from a scissor lift Sunstate had rented to another party, Johnson Equipment.

About seven weeks before the incident, Johnson Equipment had submitted a

proposal to Frito-Lay for various projects at or near the construction site. The

proposal included a bid for “lift rentals.” Frito-Lay sent Johnson Equipment a

purchase order for this work, thereby entering into a contract with Johnson

Equipment.

As a result, on or about September 17, 2019, some two weeks before the

incident, Johnson Equipment rented a Genie scissor lift from Sunstate, which

Sunstate thereafter delivered to the construction site.

court may award the prevailing party on the motion all costs and reasonable and necessary attorney fees
incurred with respect to the challenged cause of action in the trial court. Any award of costs or fees must
be based on evidence.”).
3
See TEX. R. APP. P. 26.1 (notice of appeal must be filed within 30 days after the judgment is signed,
except as specified in rule); DRC Constr. v. Pickle, No. 01-20-00576-CV, 2022 WL 479918, at *4 (Tex.
App.—Houston [1st Dist.] Feb. 17, 2022, no pet.) (per curiam) (mem. op.) (“No statutory or other authority
allows for an interlocutory appeal from an order that grants a Rule 91a motion to dismiss but does not
dispose of all pending claims.”); see also Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313
(Tex. 1994) (“When a severance order takes effect, the appellate timetable runs from the signing date of
the order that made the judgment severed ‘final’ and appealable.”).
4
For purposes of this appeal, we take as true the allegations of Lopez’s third amended petition. See
TEX. R. CIV. P. 91a.1.
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 Nine days before the incident—on or about September 25, 2019—Johnson

Equipment scheduled a pick-up of the Genie scissor lift with Sunstate. Sunstate did

not retrieve the scissor lift from the construction site, leaving it in the possession of

Frito-Lay, and possibly others.

At all relevant times, Frito-Lay had one or more written policies requiring the

removal of the keys from equipment, such as the lift, when the equipment was not

being actively operated. Sunstate and Johnson Equipment knew or should have

known of Frito-Lay’s requirements.

On the morning of his death, Murillo had been working on electrical projects

on the construction site along with coworkers Jose Javier and Francisco Salazar.

Salazar was the foreman of their three-man crew. After lunch, the crew was assigned

to help with an overhead conduit project. The goal of this work was to pull electrical

wires through a two-inch conduit, from one breaker panel to another. The work was

needed because other electricians had been unable to pull the wires through the

conduit. Apparently, there were no drawings or engineering plans for installing the

conduit and electrical conductors, and Murillo and Salazar were sent to “borrow” a

scissor lift from Frito-Lay for this work. They secured the Genie lift, which Sunstate

had not yet retrieved from the work site. Although the lift was only rated for two

people, Salazar allowed all three men onto the lift platform, which they then

suspended thirty feet in the air to complete the work.

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 At the same time, Sammy Deer, an employee of Walker Engineering, was in

the process of completing his own nearby tasks in a different lift. Deer failed to

properly control his lift and hit the base of the scissor lift occupied by Murillo and

the others. The hit to the base of Murillo’s scissor lift caused Murillo’s lift to tip

over and crash onto the concrete below. Murillo died from the injuries sustained in

the tip-over. His death was not caused by or contributed to by Murillo, nor did it

occur through any fault or negligence on his part, but was proximately caused by the

acts, wrongs, and/or omissions of defendants, including Sunstate.5

II. DISCUSSION

A. Question Presented

In one issue, Lopez argues the trial court erred in granting Sunstate’s rule 91a

motion because her petition does not “trigger a clear legal bar” to her negligence

claims against Sunstate.

5
Specifically, Lopez alleged Sunstate’s acts of negligence include but are not limited to the following:
(1) failing to exercise ordinary care to avoid reasonably foreseeable injury to Murillo; (2) exposing Murillo
to unreasonable risk of harm and injury; (3) failing to maintain control of the construction project,
construction site, and/or equipment in a reasonably safe condition; (4) failing to warn Murillo of the
unreasonably dangerous condition of the premises and/or equipment; (5) creating a dangerous condition on
the premises and allowing the dangerous condition to exist; (6) failing to correct the unreasonably
dangerous condition prior to the incident; (7) failing to make safe a dangerous condition; (8) failing to
maintain control of the Frito-Lay scissor lift; (9) authorizing others to operate the Frito-Lay scissor lift,
without proper training and/or supervision, and ratifying that conduct; (10) failing to follow the rules of
Frito-Lay to secure the equipment left at the Frito-Lay Facilities; (11) failing to implement policies and
procedures to confirm that the rules of Frito-Lay were followed; (12) knowing about the dangerous
conditions, but acting with conscious indifference to the rights, health, welfare, and/or safety of those
persons affected by it; and (13) failing to supervise, train, monitor, and look out for the employees,
independent contractors, and other personnel Johnson Equipment and/or Sunstate had knowledge and/or
reason to believe would be at or around the construction project, the construction site, and/or the equipment
on the day of the incident. Items ten and eleven were the two new allegations Lopez added in her third
amended petition; the other items were also included in her prior pleading.
–6–
 In arguing this point, Lopez addresses several topics she describes as

subsidiary issues: whether her pleading identified an unreasonably dangerous

condition (a matter Sunstate challenged in its motion), whether Sunstate’s motion

was sufficiently specific as to the elements of breach and causation, and whether her

pleading shows there is no clear legal bar to her allegations that Sunstate owed and

breached a duty to Murillo and that such breach proximately caused his death.

In our analysis below, we resolve Lopez’s issue and discuss these topics,6 as

well as a preliminary issue neither party raises: whether we may consider, in our de

novo review, the “terms and conditions” form Lopez attached to her response to

Sunstate’s motion and to which both parties refer in their briefing on appeal.

B. Applicable Standards

We review the merits of a rule 91a ruling de novo. San Jacinto River Auth. v.

Medina, 627 S.W.3d 618, 628 (Tex. 2021); In re Farmers Tex. Cty. Mut. Ins. Co.,

621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); City of Dallas v. Sanchez, 494

S.W.3d 722, 724 (Tex. 2016) (per curiam).

Rule 91a provides a harsh remedy and should be strictly construed. Renate

Nixdorf GmbH & Co. KG v. TRA Midland Props., LLC, No. 05-17-00577-CV, 2019

WL 92038, at *10 (Tex. App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.); In re

RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.—

6
See TEX. R. APP. P. 38.1(f) (requiring appellants to “state concisely all issues or points presented for
review” and stating, “The statement of an issue or point will be treated as covering every subsidiary question
that is fairly included.”).
–7–
Dallas June 11, 2018, orig. proceeding) (mem. op.). The rule is not a substitute for

special exception practice under rule 91 or summary judgment practice under rule

166a, both of which come with protective features against summary dispositions on

the merits. Royale v. Knightvest Mgmt., LLC, No. 05-18-00908-CV, 2019 WL

4126600, at *4 (Tex. App.—Dallas Aug. 30, 2019, no pet.) (mem. op.).

Under rule 91a, except in certain situations not applicable here, 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. 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.” Id. A cause of action has no basis in fact “if no

reasonable person could believe the facts pleaded.” Id.

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.2.

We apply a fair-notice pleading standard to determine whether the allegations

of the petition are sufficient to allege a cause of action. Thomas v. 462 Thomas

Family Props., LP, 559 S.W.3d 634, 639 (Tex. App.—Dallas 2018, pet. denied). In

Thomas, we stated:

Our procedural rules merely require that the pleadings provide fair
notice of the claim and the relief sought such that the opposing party
can prepare a defense. A petition is sufficient if it gives fair and

–8–
 adequate notice of the facts upon which the pleader bases his
claim. Even the omission of an element is not fatal if the cause of action
may be reasonably inferred from what is specifically stated. Under this
standard, courts assess whether an opposing party can ascertain from
the pleading the nature of the controversy, its basic issues, and the type
of evidence that might be relevant.

Id. at 639–40 (cleaned up).7

When applying the fair-notice pleading standard to our review in a rule 91a

context, “we must construe the pleadings liberally in favor of the plaintiff, look to

the pleader’s intent, and accept as true the factual allegations in the pleadings to

determine if the cause of action has a basis in law or fact.” In re RNDC, 2018 WL

2773262, at *1. “If a petition provides sufficient facts to give fair notice of the claim,

then a motion seeking dismissal based on lack of a basis in fact should be denied.

Similarly, if nothing in the pleading itself triggers a clear legal bar to the claim, then

there is a basis in law and the motion should be denied.” Id.

In ruling on the rule 91a motion, except as required by rule 91a.7—which does

not apply here—the court may not consider evidence and must decide the motion

based solely on the pleading of the cause of action, together with any pleading

exhibits permitted by rule 59.8 TEX. R. CIV. P. 91a.6; see Bethel v. Quilling,

Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020) (noting

7
See Jack Metzler, Cleaning Up Quotations, 18 J. APP. PRAC. & PROCESS 143 (2017), available at
https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss2/3 (explaining parenthetical).
8
Rule 59 permits as pleading exhibits only “[n]otes, accounts, bonds, mortgages, records, and all other
written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.”
TEX. R. CIV. P. 59.
–9–
rule 91a.6 expressly limits court’s consideration to the pleading of the cause of action

with a “narrow class of exhibits” and stating “[r]ule 91a limits the scope of a court’s

factual, but not legal, inquiry”).

When an order granting a rule 91a motion to dismiss does not specify the

grounds for dismissal, an appellant seeking reversal of a rule 91a dismissal must

negate the validity of each ground on which the trial court could have relied in

granting the dismissal. Buholtz v. Gibbs, No. 05-18-00957-CV, 2019 WL 3940973,

at *3 (Tex. App.—Dallas Aug. 21, 2019, pet. denied) (mem. op.).

C. Analysis

In her sole issue, Lopez argues the trial court erred in granting Sunstate’s rule

91a motion because her pleading does not trigger a clear legal bar to her negligence

claims against Sunstate. We address that matter in section II.C.3 below, but first

address two other matters discussed in the parties’ briefing.

1. Unreasonably Dangerous Condition

In its motion, Sunstate argued Lopez failed to identify in her pleading the

“unreasonably dangerous condition” for which Sunstate was allegedly responsible.

Both parties agree this ground is no longer relevant.9 When Sunstate filed its

rule 91a motion, Lopez’s live pleading was her second amended petition, a pleading

9
In its appellate response, Sunstate maintained Lopez’s argument regarding this topic was irrelevant to
this appeal because Lopez non-suited her premises liability claim against Sunstate. In her principal brief,
Lopez argued the premises liability ground in Sunstate’s rule 91a motion is irrelevant and acknowledged
she deleted her premises liability claim against Sunstate.
–10–
that contained both premises liability and negligence claims against Sunstate.

However, by the time of the rule 91a hearing and order, Lopez’s live pleading was

her third amended petition, a pleading alleging only negligence claims against

Sunstate and dropping any claim against Sunstate for premises liability.

While the existence of an unreasonably dangerous condition is necessary in a

premises liability claim,10 it is not in a negligence claim, which requires the existence

of a duty, a breach of that duty, and damages proximately caused by that breach.11

Because Lopez’s live pleading at the time of the rule 91a hearing did not

contain a premises liability claim against Sunstate, whether Lopez identified an

unreasonably dangerous condition was irrelevant in deciding Sunstate’s motion and

is irrelevant to our review of that decision in this appeal.

2. “Terms and Conditions” Form

In their arguments on appeal, both Lopez and Sunstate refer to the “terms and

conditions” form Lopez attached to her response to Sunstate’s motion. We do not

consider the form, however, because it was not attached to Lopez’s pleading and is

not the type of exhibit rule 59 permits. See TEX. R. CIV. P. 91a.6 (court may not

consider evidence and must decide rule 91a motion based solely on the pleading of

10
See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) (listing premises liability claim
elements, which include a premises condition that posed an unreasonable risk of harm).
11
See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (“The elements of
a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the
breach of duty.”).
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the cause of action, together with any pleading exhibits permitted by rule 59); Bethel,

595 S.W.3d at 654 (rule 91a limits scope of court’s factual inquiry).

3. Negligence Claims

Lopez argues the trial court erred in granting Sunstate’s rule 91a motion

because her pleading does not trigger a clear legal bar to her negligence claims

against Sunstate. Those claims are premised on allegations Sunstate owed and

breached a duty to Murillo and that such breach proximately caused his death.

Before we address that argument, we address a related topic about which she

complains: whether, as to breach and causation, Sunstate’s motion stated specific

reasons for dismissal. See TEX. R. APP. P. 91a.2 (stating, in addition to other

requirements, rule 91a motion “must state specifically the reasons the cause of action

has no basis in law, no basis in fact, or both”).

Lopez made no such complaint below. Assuming Lopez was required to and

did preserve error on this complaint,12 it lacks merit, as Sunstate’s motion stated, in

part, “The facts pled do not support that Sunstate breached [its] duty, or that any

purported breach caused . . . damages” and that Lopez “fail[ed] to allege a single act

of wrongdoing by Sunstate,” and “[did] not allege sufficient facts to establish that

[it] breached any duty, or that any action (or breach of duty) by Sunstate caused

[Murillo’s] injuries.”

12
See TEX. R. APP. P. 33.1(a) (requirements regarding preserving error).
–12–
 We turn, finally, to Lopez’s argument that the trial court erred in granting

Sunstate’s motion because her pleading does not trigger a clear legal bar to her

negligence claims. To support her position, Lopez relies, in part, on negligence cases

from our Court13 and our sister courts14 involving unattended vehicles with keys left

in the ignition—a situation Lopez analogizes to the facts alleged here. Lopez argues

Sunstate had a duty not to leave its scissor lift unattended for nine days, in an

operable condition or with the key inserted in violation of Frito-Lay rules, at a

location where it was tempting for unauthorized workers to borrow the lift, as

Murillo is alleged to have done. Lopez also argues that her pleading does not trigger

a clear legal bar to establishing Sunstate’s breach of that duty or that such breach

proximately caused Murillo’s death.

Sunstate, in contrast, insists no duty exists as a matter of law and argues, in

part, that the key-in-the-unattended-vehicle cases Lopez cites are distinguishable.

Sunstate’s arguments regarding Lopez’s allegations focus much more heavily on

what has not been alleged in her pleading than what has been, and in certain respects,

would have us infer facts favoring Sunstate, rather than favoring Lopez, contrary to

the applicable standards. For example, Sunstate argues, “Given Frito Lay’s alleged

13
See Hunsucker v. Omega Indus., 659 S.W.2d 692, 694 (Tex. App.—Dallas 1983, no writ).
14
See Amaya v. Potter, 94 S.W.3d 856 (Tex. App.—Eastland 2002, pet. denied); Sanders v. Tomball
Ford, Inc., No. 14-96-00470-CV, 1997 WL 539651 (Tex. App.—Houston [14th Dist.] Sept. 4, 1997, no
pet.) (not designated for publication); Stephens v. Crowder Invs., Inc., 841 S.W.2d 947 (Tex. App.—Waco
1992, no writ); Finnigan v. Blanco Cty., 670 S.W.2d 313 (Tex. App.—Austin 1984, no writ); Bicknell v.
Lloyd, 635 S.W.2d 150 (Tex. App.—Houston [14th Dist.] 1982, no writ).
–13–
policy of removing keys, the only reasonable inference from Lopez’s allegations is

that the key was not in the scissor lift and that someone on-site that day gave Murillo

or Salazar the key.” While this is certainly one possible inference, it is not the only

reasonable one, nor is it one we are permitted to make. In some respects, the dissent

appears to take a similar approach, such as by omitting various allegations from

Lopez’s pleading and by considering them solely through a lens of negligent

ownership and misappropriation, rather than by considering not only those

allegations but also other reasonable inferences that might be made from them and

by considering the active negligence theory Lopez has alleged.

Viewing the pleading, as we must, according to applicable standards, we

conclude that because nothing within Lopez’s pleading itself triggers a clear legal

bar to Lopez’s negligence claim, the claim has a basis in law, and the trial court erred

in granting Sunstate’s rule 91a motion. See Thomas, 559 S.W.3d at 639 (applicable

standards); In re RNDC, 2018 WL 2773262, at *1 (same); see also Hunsucker, 659

S.W.2d at 694 (concluding “issues such as reasonableness and foreseeability are

inherently issues for a jury because whether each is precluded as a matter of law

depends upon all of the facts and circumstances in each case” and noting “under

certain circumstances leaving the keys in the ignition of a vehicle in a locked garage

may be negligence, depending upon all of the surrounding facts and circumstances

[but] [o]n the other hand, after all of the facts and circumstances have been

developed, a court may conclude, as a matter of law, that no negligence existed”).

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 Our decision, of course, reaches only the issue before us, and should not be

construed as a comment on how the issues of duty, breach, or causation are to be

decided after remand, whether as a matter of law or upon submission to a fact-finder.

As some have said in other contexts, “the devil is in the details.”15 After remand,

depending on what the details show, the party who prevails here today may be the

same as, or different from, the party who ultimately prevails.

III. CONCLUSION

We sustain Lopez’s sole issue, reverse the trial court’s order, and remand the

case for further proceedings consistent with this opinion.

/Ken Molberg/
KEN MOLBERG
JUSTICE
Schenck, J., dissenting.

210100F.P05

15
See Priel v. State, No. 07-09-0349-CR, 2010 WL 445287, at *3 (Tex. App.—Amarillo Feb. 9, 2010,
no pet.) (mem. op., not designated for publication).
–15–
 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LAURA LOPEZ, INDIVIDUALLY, On Appeal from the 44th Judicial
ON BEHALF OF HERNAN District Court, Dallas County, Texas
MURILLO, DECEASED, AND AS Trial Court Cause No. DC-21-02079.
NEXT FRIEND OF ALFONSO Opinion delivered by Justice
MURILLO, MARCOS MURILLO, Molberg. Justices Schenck and
ABIGAIL MURILLO, AND Pedersen, III participating.
KAREN MURILLO, Appellant

No. 05-21-00100-CV V.

SUNSTATE EQUIPMENT CO.
LLC, Appellee

In accordance with this Court’s opinion of this date, the trial court’s order
granting appellee’s rule 91a motion is REVERSED and this cause is
REMANDED to the trial court for further proceedings consistent with this
opinion.

It is ORDERED that appellant LAURA LOPEZ, INDIVIDUALLY, ON
BEHALF OF HERNAN MURILLO, DECEASED, AND AS NEXT FRIEND OF
ALFONSO MURILLO, MARCOS MURILLO, ABIGAIL MURILLO, AND
KAREN MURILLO recover her costs of this appeal from appellee SUNSTATE
EQUIPMENT CO. LLC.

Judgment entered August 29, 2022.

–16–