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 ( 2022 )


Menu:
  • 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.
    –2–
    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
    –3–
    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.
    –4–
    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.
    –5–
    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.”).
    –11–
    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”).
    –14–
    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–