Lisa Marie Gardner v. Leslie Majors, LJJM, Inc. D/B/A Legacy Realty Group and Mary Davidson, 10-21-00306-CV

Background

Gardner and Demetria Gordon co-owned a property; Gardner alleges she paid the purchase price, taxes, and mortgage while Gordon paid nothing.
On Sept. 23, 2019 Gordon electronically signed a listing agreement purporting to bind both owners; three days later Gordon produced a Durable Power of Attorney dated Sept. 26, 2019.
Gardner alleges Gordon forged the Durable Power of Attorney and that appellees (broker Leslie Majors, Legacy Realty, and agent Mary Davidson) listed and sold the property without contacting Gardner.
Appellees sold the property relying on the purported Durable Power of Attorney; Gardner sued for civil conspiracy, negligence/gross negligence, theft under the Texas Theft Liability Act, and other claims.
Appellees moved to dismiss under Texas Rule of Civil Procedure 91a, asserting for the first time the Estates Code presumption (Tex. Estates Code §§751.209/751.0022) that signatures on a durable power of attorney are genuine; the trial court granted dismissal, awarded attorney’s fees, and severed Gardner’s claims as to appellees.
The Tenth Court of Appeals reversed and remanded, holding the Estates Code presumption was not a proper basis for a Rule 91a dismissal and that Gardner’s pleaded claims gave fair notice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants may raise the Estates Code presumption for the first time in a Rule 91a motion	Gardner: defendants may not rely on a defensive theory first asserted in a Rule 91a motion; motions differ from pleadings	Appellees: Rule 91a allows dismissal based on affirmative defenses such as the Estates Code presumption	Held: No; raising the Estates Code presumption for the first time in a Rule 91a motion is improper because it is not conclusively established by the petition and requires evidence outside the pleadings
Whether Gardner pleaded facts sufficient to overcome the presumption of a genuine POA	Gardner: alleged forgery, lack of consent, and that agents had actual knowledge she was a co-owner and were in contact with Gordon, which supplied fair notice	Appellees: under §751.209 they acted in good faith and had no duty to dispute the POA; lack of actual knowledge defeats claims	Held: Court rejected using §751.209 in Rule 91a and evaluated pleadings on fair-notice standard; Gardner pleaded enough factual allegations to proceed
Whether Gardner’s claims (civil conspiracy, negligence/gross negligence, Texas Theft Liability Act) satisfy the fair-notice pleading standard for Rule 91a review	Gardner: pleadings allege concerted unlawful acts to procure listing/sale via forged POA, failure to contact co-owner, resulting loss — sufficient under fair notice	Appellees: pleadings are deficient and foreclosed by the statutory presumption of validity of the POA	Held: Gardner’s allegations adequately plead civil conspiracy, negligence/gross negligence, and a Texas Theft Liability Act claim under the fair-notice standard; dismissal was error
Whether rebuttable presumptions improperly heighten pleading requirements or may be used as defensive avoidance in Rule 91a without discovery	Gardner: presumptions (and defensive use of same) cannot be used to elevate pleading burden or deny discovery before dismissal	Appellees: statutory presumption allows them to rely on the POA and defeats Gardner’s claims at the pleading stage	Held: Rebuttable presumptions that require controverting evidence cannot be used as the sole basis for Rule 91a dismissal before discovery; they improperly raise the pleading bar

Key Cases Cited

Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020) (Rule 91a permits consideration of affirmative defenses only when conclusively established by the plaintiff’s petition)
City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (Rule 91a review is de novo and focuses on plaintiff’s pleadings)
In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (fair-notice pleading standard and liberal construction of pleadings)
Low v. Henry, 221 S.W.3d 609 (Tex. 2007) (description of Texas’s relatively liberal fair-notice pleading standard)
Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) (pleader’s intent and reasonable inferences supply omitted elements under fair notice)
Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167 (Tex. 1995) (definition and operation of presumptions of law)