The Fifteenth Court of Appeals has issued a dissenting opinion in In re Frank Jackson, a mandamus proceeding challenging Business Court Division 11B's denial of a Rule 91a motion to dismiss based on attorney immunity. The dissent provides important guidance on how appellate courts should review Business Court rulings on dispositive motions—particularly when attorney immunity is asserted as a complete bar to tortious interference claims.

Background and Procedural Posture

The underlying dispute involves Frank Jackson and plaintiff Barras. According to Barras's live petition, Jackson allegedly sought to oust the CEO of Reynolds—a company that did not employ Jackson as general counsel or in any other capacity—so that Jackson could secure the CEO position for himself. Jackson moved to dismiss under Rule 91a, asserting attorney immunity. The Business Court denied the motion, and Jackson sought mandamus relief from the Fifteenth Court of Appeals.

The Dissent's Rule 91a Analysis

The dissent emphasizes the demanding standard Jackson must meet to obtain mandamus relief: he must show the Business Court abused its discretion in denying the Rule 91a motion. The dissent stresses that Rule 91a is "not a summary judgment motion"—courts "may not consider evidence" and "must decide the motion based solely on the pleading[s]." Critically, the Texas Supreme Court has instructed that courts "must accept as true" the "allegations in the plaintiffs' live petition."

Under Rule 91a.1, a cause of action has no basis in law only if the allegations "do not entitle the claimant to the relief sought," and no basis in fact only if "no reasonable person could believe the facts pleaded." The dissent argues that the majority "mistakenly imposes a much lower threshold for dismissal than the Rule and Texas Supreme Court precedent required."

Attorney Immunity and the Dissent's Core Argument

The dissent cites the Texas Supreme Court's summary of attorney immunity from Haynes and Boone, LLP v. NFTD, LLC, which protects an attorney against a non-client's claim when the claim is based on conduct that (1) constitutes the provision of "legal" services involving the unique office, professional skill, training, and authority of an attorney and (2) the attorney engages in to fulfill the attorney's duties in representing the client within an adversarial context in which the client and the non-client do not share the same interests and therefore the non-client's reliance on the attorney's conduct is not justifiable.

Applying this standard, the dissent concludes that Barras's pleadings—taken as true—preclude any finding that Jackson's conduct qualifies for attorney immunity as a matter of law. The dissent emphasizes that "the facts as pleaded by Barras—which we must take as true—preclude any finding that Jackson's conduct qualifies for attorney immunity as a matter of law." The dissent warns that the majority's approach "would immunize the conduct of any attorney jockeying for a corporate position to promote his own self-interest."

Conclusion

The dissent concludes that the Business Court properly denied Jackson's Rule 91a motion and "certainly did not abuse its discretion by doing so." The opinion underscores the importance of adhering to the Rule 91a standard and accepting the plaintiff's allegations as true when evaluating whether a cause of action has no basis in law or fact.