Opinion by
Relators, Charles Butt, Craig Boyan, Carmen Gellhausen, and Kevin Holguin, who are' corporate officials for H.E.B. Grocery Company, L.P. (“H.E.B.”)> filed a petition for writ of mandamus in the above cause on February 26, 2016. Relators and H.E.B. are defendants in a premises liability case predicated on a slip-and-fall accident at an H.E.B. grocery store. Through this original proceeding, relators seek to compel- the trial court to: (1) vacate its order denying relators’ motion to dismiss under Texas Rule of Civil Procedure 91a; (2) grant their motion to dismiss; and (3) award them their costs and attorney’s fees. See Tex.R. Civ. P. 91a (providing for the dismissal of “baseless” causes of action).
I. BACKGROUND
Arturo Garcia slipped and fell while shopping at a McAllen-area H.E.B. grocery store. He and‘his wife, Aurelia, sued H.E.B. 'for' his injuries. In their fourth amended petition, the Garcias complained in two paragraphs of their petition that a wet floor created an unreasonably dangerous condition, that H.E.B. failed to use adequate methods to detect and remove foreign substances on its store floors, and that H.E.B. intentionally breached a duty ⅛) preserve the fluid Garcia purportedly slipped on, thereby justifying spoliation sanctions:
27. On the occasion in question, H.E.B. . owed a’duty to H.E.B.’s invitees, including Garcia, reasonably to inspect the store to discover dangerous conditions in the store which could harm H.E.B.’s invitees, including Garcia. H.E.B. breached such duty, by using an approach to inspecting the storé which was known to H.E.B. not to identify timely and reliably the presence of foreign materials on the floor of the store. H.E.B. breached such duty, by choosing not to use computerized video surveillance, or a comparably effective and financially feasible alternative means, to inspect the store to identify timely and reliably the presence of foreign materials on the floor of the store. Such breaches of duty by H.E.B. constituted negligence and gross negligence, which proximately caused Garcia’s slip/fall incident and Plaintiffs’ damages resulting from such incident which have been made subjects of this case.
28. On the occasion in question, H.E.B. 1 owed a legal duty to Garcia, to preserve the fluid as evidence, bécause H.E.B. had reason to believe: (1) that it was reasonably likely that Garcia would assert a claim against H.E.B. for personal injuries, and'(2) the fluid could be relevant to such a claim. ■ H.E.B. intentionally breached such duty. H.E.B is therefore subject to the imposition of such sanction as the Court in its discretion determines to be appropriate, which may consist of either of the following sanctions, among others: (1) a ruling that H.E.B. is liable to Garcia, as- a matter of law; or (2) an instruction to the jury, that it may assume that the fluid, had it not been destroyed byH.E.B., would have proven H.E.B.’s negligence on the occasion in question.
The Garcias’ fourth amended petition also included claims against four apex corporate officials for H.E.B.: Charles Butt, H.E.B.’s chairman and chief executive officer;' Crajg Boyan, H.E.B.’s president; Carmen Gellhausen, H.E.B.’s “top ■ risk management employee”; and Kevin Hol-guin, H.E.B.’s “top safety employee.” With regard to claims against these individuals, the petition alleged:
29. On information and belief, Plaintiffs allege that Holguin, Gellhausen, Boyan and Butt, singularly and/or collectively, had control over what was and was not done by H.E.B., to discharge H.E.B.’s duty to its patrons, as described in paragraph 27. Plaintiffs further allege that Holguin, Gellhausen, Boyan and/or Butt failed to exercise such control with reasonable care, .and- that such failure constituted negligence and gross negligence which'proximately caused Garcia’s slip/ fall incident and Plaintiffs’ damages made subjects of this case. 30, On information and belief, Plaintiffs allege that Holguin, Gellhausen, Boyan and Butt, singularly and/or collectively, had control over what was and was not done by H.E.B., to discharge H.E,B.’s duty to its patrons, as described in paragraph 28, Plaintiffs further allege that Holguin, Gellhausen, Boyan and/or Butt failed to exercise such control with reasonable care, and that such failure constituted negligence and gross negligence which proximately caused Garcia’s slip/ fall incident and Plaintiffs’ damages made subjects of this case.
These corporate officials moved to dismiss the claims against them, pursuant to Rule 91a of the Texas Rules of Civil Procedure on grounds that the corporate fonn of H.E.B. insulates them from liability and the Garcias failed to plead any cause of action which would result in personal liability. See generally id. The Garcias filed a response to the motion to' dismiss and a brief in support of their response. After additional briefing by the parties, the trial court held a hearing on the motion to dismiss. After the hearing, the trial court denied the relators’ motion to dismiss.
This original proceeding ensued. By one issue, relators contend that the Garci-as’ claims that apex corporate officials are individually liable for a slip and fall in a grocery store lacks any basis in law or fact. According to relators, Texas Rule of Civil Procedure 91 a mandates dismissal of claims like these and relators lack an appellate remedy for the trial court’s denial of their motion to dismiss; This Court requested and received a response to the petition' for writ of mandamus from the Garcias. The Garcias argue generally that H.E.B. should be liable for Arturo’s fall, and specifically contend that'mandamus is premature because they have not “been provided basic information about relators’ job duties” and relators should be required to respond to discovery requests before proceeding on a Rule 91a motion to dismiss. The Court has also received a reply to the Garcias’ response from the rélators.
II. STANDARD OF REVIEW
“Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal.” In re Frank Motor Co.,
The 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. In re Essex Ins. Co.,
Rule 91a was promulgated at the behest of the Legislature who “directed that a more determined effort be made to reduce the expense and delay of litigation, while ■ maintaining fairness to litigants.” Mise. Docket No. 12-9191, Adoption of Rules for Dismissals and Expedited Actions, (Tex. Nov. 13, 2012) (per curiam), available at http://www.txcourts.gov/AII_ ArehivedJDocuments/SupremeCourt/ AdministrativeOrders/miscdocket/12/ 12919100.pdf. The concern for an expedited proceeding in matters regarding “baseless” causes of action is illustrated by the strict deadlines imposed by Rule 91a. See Tex.R. Civ. P. 91a.3 (requiring the Rule 91a motion to dismiss to be filed within sixty days after the first pleading containing the challenged cause of action and the motion to be granted or denied within forty-five days after it is filed); Tex. Gov’t Code Ann. § 22.004(g) (West, Westlaw through 2015 R.S.) (“The rules shall provide that the motion to dismiss shall be granted or denied within 45 days of the filing of the motion to dismiss'.”). * In laying the groundwork for a rule mandating the early dismissal of baseless causes of action, the Legislature has effectively already balanced most of the relevant costs and benefits of an appellate remedy. Cf. In re McAllen Med. Ctr.,
In 2013, the Texas Supreme Court adopted Texas Rule of Civil Procedure 91a, which governs the dismissal of baseless causes of action and which provides in pertinent part:
[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 the 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.
Tex.R. Civ. P. 91a.l. 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.” Id. R. 91a.2. The rule allows the responding party to either nonsuit or amend the challenged cause of action at least three days before the date of the hearing on the motion to dismiss. See id. R. 91a.5(a),(b).
We perform a de novo review of the trial court’s ruling on a Rule 91a motion to dismiss. See Parkhurst v. Office of Atty. Gen. of Tex.,
IV. DISCOVERY
We first address the Garcias’ contention that relators should be requiréd to respond to additional discovery before further proceeding on the motion to dismiss. The Garcias have propounded requests for disclosure, interrogatories,' and requests for production to relators. The relators have answered the requests for disclosures, but have objected to answering the remaining interrogatories and requests for production. The Garcias allege that discovery is necessary to ascertain the scope of the relators’ job duties and activities related to customer safety in order to assess “what legal duties, if any, [r]elators owed the , Garcias on the occasion in question.”
We.disagree. Rule 91 a requires the motion to dismiss to be filed within
Y. Analysis
Relators contend that the Garcias have not pleaded that relators owe them any independent duties of care “distinct from what the corporation owes.” They thus argue that the Garcias’ claims should- be dismissed as baseless.- In contrast, the Garcias argue that the relators want this Court to rule “that the Texas common law provides immunity, from liability to. any employee, for torts committed, by the employee while acting within the course and scope of his or her employment.”
The existence of a duty is a threshold inquiry in any negligence case. See Kroger Co. v. Elwood,
In Leitch v. Hornsby, the Texas Supreme Court explained when individual liability will be imposed on a corporate officer and when it will,not.
In. determining that the corporate officers in Leitch could not be held individually liable, the supreme court focused on the fact that the corporate employer bore the “nondelegable duty to use ordinary care in providing [the employee] with a safe workplace.” Id, Because the duty to provide a
In. 2005, the Texas Supreme Court extended the Leitch rule to premises liability cases. See Tri v. J.T.T.,
The defendants are correct that a negligence finding against an individual does not automatically result in individual liability when the individual was acting as the agent or employee of a corporation. Corporations can, of course, only act through individuals. We explained in Leitch v. Hornsby when individual liability will be imposed and -when .it will not. “[IJndividual ‘liability arises only when the officer -or agent owes an independent duty of reasonable care to the injured party apart from the employer’s duty.” We gave as an example an agent whose negligence caused an automobile collision- while the agent was driving in the course and scope of employment. An agent, in his individual capacity, owes a duty to .the public to drive with reasonable care. Therefore, the individual is liable for his or her own negligence, and the employer is also vicariously liable. The situation in Leitch, however, was different. The corporate agents were not individually liable even though the jury had found them and their employer negligent. In that case, the plaintiff Hornsby, was injured when he lifted a sixty-pound reel of cable. There was evidence that his employer, through its officers and employees, had declined to provide Hornsby a lifting belt or dolly. We held that the actions or inactions of the individuals were actions or inactions “within their capacities as officers” of Hornsby’s corporate employer and that the individuals “had no individual duty as corporate officers to provide Hornsby with a safe workplace.” The individuals were not hable for their negligence because they “did not breach any separate duty” to Hornsby. Only their corporate employer was liable for their negligence.
Id. at 562-63 (citations omitted). In Tri, the plaintiffs alleged that the trial court erred in failing to render judgment individually against the officer of the corporation. Id. However, the supreme court could not determine whether the corporate
Following Leitch and Tri, the Fourteenth Court of Appeals affirmed a no-evidence summary judgment rendered in favor of the president and sole shareholder of a corporation in a wrongful death suit based on a premises liability theory. See Pico v. Capriccio Italian Rest., Inc.,
The question for this Court is whether relators had an independent duty, separate and apart from H.E.B.’s duty, to the .Garcias as invitees of H.E.B.’s McAl-len-area store. As- stated previously, we determine this issue based “solely” on the Garcias’ fourth amended petition, and we do not have in this case any pleading exhibits permitted by the rules of civil procedure. Tex.R; Crv. P. 91a.6; see also AC Interests L.P., 2016-WL 636546, at *1. The Garcias allege that “[o]n information and belief,”- relators “singularly and/or collectively, had control over what was and was hot done by H.E.B., to discharge H.E.B.’s duty to its patrons” as described in the allegations against H.E.B.
Examining the Garcias’ fourth amended petition liberally, the petition does not allege any facts that would support a conclusion that relators possessed any duties to ■the Garcias separate and apart from those duties owed to the Garcias by H.E.B. The Garcias have not alleged that relators committed tortious or fraudulent acts, or that they personally created the allegedly dangerous condition at issue in-this case — a wet floor. The- allegations against the in
As previously stated, liability cannot be imposed on employees where the employer and the employees committed the identical negligent acts or omissions. See Tri,
YI. Attorney’s Fees
Relators contend that the trial court must award them their attorney’s fees and costs. Under Texas law, attorney’s fees are not recoverable unless specifically provided by contract or statute. MBM Fin. Corp. v. Woodlands Operating Co.,
Award of Costs and Attorney Fees Required. 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 court must 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. The court must consider evidence regarding costs and fees in determining the award.
Tex.R. Crv. P. 91a.7;, see also Tex. Civ. Prao. & Rem.Code Ann. § 30.021 (West, Westlaw through 2015 R.S.) (stating that the trial court “shall award costs and reasonable and necessary attorney’s fees to the prevailing party” for the .granting or denial of a motion to dismiss).
“Undisputedly, the rule mandates an award of attorney’s fees to a prevailing party, and the award is not discretionary.” Zheng,
VII. Conclusion
The Court, having examined and fully considered the petition for writ of mandamus, the response, the reply, and the applicable law, is of the opinion that relators have met their burden to obtain mandamus relief. Accordingly, we lift the stay previously imposed in this cause. See Tex. R.App. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.”)- We conditionally grant the petition for writ of mandamus and we direct the trial court to: (1) withdraw its order denying the relators’ motion to dismiss; (2) grant the motion to dismiss; and (3) award relators their costs and attorney’s fees after conducting a hearing to consider evidence on these matters. Our writ will issue only if the -trial court fails to act in accordance with this opinion.
Notes
. See Tex.R,App, P: 47.4 (distinguishing opinions and memorandum opinions); Id. R. 52.8(d) (“When denying relief [in an original proceeding], the court may hand down an opinion but is not required to do so. When . granting relief, the court must hand down an opinion as in any other case.”).
. This original proceeding arises from trial court cause number C — 5581—13—I in the 398th District Court of Hidalgo County, Texas, and the respondent in this cause is the Honorable Aida Salinas Flores. See Tex.R.App, P. 52.2.
. The Garcias’ original petition was filed in September of 2013 against H.E.B. The Gar-cias added claims against relators in their first amended petition, after which relators filed their original Rule 91a motion to dismiss. The Garcias subsequently amended their petition twice. Relators then filed an amended Rule 91a motion to dismiss and the Garcias amended their petition a final time. This last petition, the fourth amended original petition, is the live pleading trader consideration in this proceeding.
. When we construe rules of procedure, we apply the same rules of construction that govern the interpretation of statutes. Ford Motor Co. v, Garcia,
. The Tri decision effectively abrogates previous decisions holding that store managers, by virtue of their mere employment as such, have individual liability to invitees. See, e.g., Wal-Mart Stores, Inc. v. Deggs,
. Numerous federal district courts have struggled with applying Leitch and Tri to the issue of joinder when a corporate defendant is joined with a store manager. See, e.g., Champion v. Wal-Mart Stores of Tex., L.L.C., No. 5:16-CV-112-DAE,
If the pleadings allege the store manager or employee played a personal and active role in creating the dangerous condition at issue, then an independent duty of care existed, recovery was possible, and remand was appropriate. Where the pleadings allege the store manager was acting in his or her corporate capacity and was not personally involved in creating the condition) then the store manager owed no separate duty of care, recovery was not possible, and remand was inappropriate. This distinction comports well with traditional understandings of tort liability and nonfeasance. Buchanan v. Rose,159 S.W.2d 109 [138 Tex. 390 ], 391-92 (Tex.1942) ("{l]f a party negli- • gently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to’ others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.”); Torrington Co. v. Stutzman,46 S.W.3d 829 , 837 (Tex.2000) ("Tex- , as law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances.”); . Restatement (Second) of Torts § 314 (1965) (“The fact that [an] actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of. itself impose upon him a duty to take such action.”).