holding that a company with the power to elect a majority of members to a homeowners’ association was not liable for decisions made by the association with respect to security measures
How later courts described this case
- holding that a company with the power to elect a majority of members to a homeowners’ association was not liable for decisions made by the association with respect to security measures
- “The critical question is whether, in degree and detail, actions directed to the facility by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary’s facility.”
- holding that a request for a declaration of nonliability in tort had no basis in law and should have been dismissed because the request violated the rule of Abor v. Black, 695 S.W.2d 564 (Tex. 1985)
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 22-0227
══════════
In re First Reserve Management, L.P.; First Reserve
Corporation, L.L.C.; FR XII Alpha AIV, L.P.; FR XII-A Alpha
AIV, L.P.; FR Sawgrass, L.P.; and Sawgrass Holdings, L.P.,
Relators
═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════
Argued February 22, 2023
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which
Justice Lehrmann, Justice Devine, Justice Blacklock, Justice Busby,
Justice Huddle, and Justice Young joined.
Justice Boyd concurred in the disposition.
Justice Bland did not participate in the decision.
On Thanksgiving Eve 2019, serious explosions rocked the TPC
petrochemical processing plant in Port Neches, Texas, resulting in
extensive personal injury and property damage for miles around, the
release of toxic chemicals, and massive litigation. The first suit was filed
the same day. Now there are more than 2,000 cases involving more than
7,000 plaintiffs represented by more than 50 law firms consolidated in
an MDL court. The issue in this original proceeding is whether Plaintiffs
have sufficiently pleaded claims that investors in the plant owner are
directly liable for the damages. We conclude they have not.
I
A
The U.S. Chemical Safety Board’s investigation concluded that a
pipe in the TPC plant ruptured, spilling 6,000 gallons of liquid
butadiene, “a highly flammable petroleum-based chemical used in
plastic production”, which instantly vaporized, ignited, and caused an
explosion that could be felt up to 30 miles away. 1 At least one additional
explosion occurred later the same day. 2 The county judge declared a
state of disaster, required mandatory evacuations, and imposed a
curfew. The Golden Triangle3 sustained widespread property damage,
and its people personal injuries.
Plaintiffs sued the plant owner, the TPC Group, 4 alleging that the
plant pipe ruptured because of “popcorn polymerization”—a buildup of
popcorn-shaped polymers that occurs in the production of butadiene and
clogs equipment and pipes. Plaintiffs assert that the buildup could and
1 Erin Douglas, Federal Report Identifies Cause of 2019 Port Neches
Chemical Plant Explosion, TEX. TRIB. (Dec. 20, 2022, 5:00 PM),
https://www.texastribune.org/2022/12/20/texas-chemical-plant-explosion-tpc-
port-neches/.
2 Id.
3 The Golden Triangle is an area of Southeast Texas between the cities
of Beaumont, Port Arthur, and Orange. Port Neches is located inside the
Triangle, southeast of Beaumont and just a few miles north of Port Arthur.
4 Plaintiffs sued TPC Group Inc. and TPC Group LLC. Plaintiffs allege
that the LLC is the TPC entity that operates the Port Neches plant, but the
difference between the two entities is not relevant to Relators’ mandamus
petition.
2
should have been eliminated by a turnaround 5 that TPC delayed
because of its expense.
TPC is owned (indirectly) by Sawgrass Holdings LP, 6 which in
turn is owned by two private-investor groups, which Plaintiffs refer to
as “First Reserve” and “SK Capital”. The general partner of Sawgrass
Holdings LP is Sawgrass Holdings GP LLC, which has a five-member
Board of Managers. First Reserve and SK Capital each appoint two
members to the GP Board, and the fifth is TPC’s CEO. Plaintiffs allege
that the GP Board manages TPC directly.
Over a year into the litigation, Plaintiffs, by their first amended
petition, added the two investor groups and Sawgrass Holdings LP as
defendants. They later added Sawgrass Holdings GP. In their third
amended petition filed in October 2021, Plaintiffs assert that the
investors, through their control of four of the five seats on the GP Board,
together with Sawgrass Holdings LP and Sawgrass Holdings GP, are
responsible for TPC’s failure to perform the needed turnaround and
other maintenance that would have prevented the explosions.
Throughout the petition, Plaintiffs refer to the investors and Sawgrass
Holdings LP collectively as TPC’s “Owners”—never distinguishing
among them. Continuing that theme, the petition does not distinguish
between the conduct of “Owners” and Sawgrass Holdings GP; each
5 A turnaround is a scheduled event where an entire process unit of an
industrial plant is taken offline for an extended period for revamp and renewal.
Turnarounds are expensive—both in terms of direct costs and because they
result in lost production.
6Sawgrass Holdings LP owns TPC Holdings Inc., which owns TPC
Group Inc., which owns TPC Group LLC.
3
factual allegation is made against “Owners and Sawgrass Holdings GP”.
Plaintiffs contend that these defendants were motivated by their
desire to minimize TPC’s expenses to improve its balance sheet for a
future sale. Plaintiffs pleaded that “Owners and Sawgrass Holdings GP”
are TPC’s alter ego and liable for its torts by piercing the corporate veil
and also that they are liable for their own torts, including negligently
undertaking to control TPC’s day-to-day operations and to ensure plant
safety themselves.
Two days after the third amended petition was filed, the First
Reserve investor group and Sawgrass Holdings LP moved under
Rule 91a to dismiss Plaintiffs’ claims against them for having “no basis
in law or fact.” 7 They argued that piercing the corporate veil is “an
extraordinary measure reserved for instances where the facts
demonstrate that the owner (1) disregarded corporate formality, and
(2) used the corporate form to commit fraud or for illegal purposes” and
that “Plaintiffs allege no facts that come close to establishing these
exceptional circumstances.” Further, they argued that Plaintiffs’ non-
specific allegations of the movants’ control over plant operations were
conclusory and insufficient to assert a claim of negligent undertaking or
other direct tort. After the MDL court denied the motion to dismiss, the
court of appeals denied mandamus review, explaining in a short opinion
that Plaintiffs’ allegations gave fair notice of its claims. 8
7TEX. R. CIV. P. 91a.1 (“[A] party may move to dismiss a cause of action
on the grounds that it has no basis in law or fact.”).
8 665 S.W.3d 44, 45-46 (Tex. App.—Beaumont 2022); see TEX. R. CIV.
P. 45(b) (requiring that pleadings contain “a statement in plain and concise
4
The First Reserve investor group and Sawgrass Holdings LP
sought mandamus review in this Court. 9 We ordered full briefing and
heard oral argument on February 22, 2023. Because Plaintiffs make the
same allegations against Sawgrass Holdings LP as they do against the
First Reserve investor group, we will use First Reserve as a short form
for all Relators in the rest of this opinion.
B
On June 1, 2022, while First Reserve’s mandamus petition was
pending before this Court, TPC moved for protection in the U.S.
Bankruptcy Court for the District of Delaware. That court confirmed a
reorganization plan embodying a global settlement under which
millions of dollars went to pay the claims of unsecured creditors,
including Plaintiffs. As part of the plan, TPC released all claims its
estate might have had against First Reserve. In an opinion that issued,
coincidentally, during argument in this Court, the bankruptcy court
considered “whether the claims the tort plaintiffs intend to pursue
against [First Reserve] are claims that belonged to [TPC’s] estate[] (and
therefore are released and enjoined), or are claims that belong to the
plaintiffs themselves, such that they may be pursued in the MDL
language of the plaintiff’s cause of action or the defendant’s grounds of defense”
and stating that conclusory allegations are “not . . . grounds for an objection
when fair notice to the opponent is given by the allegations as a whole”).
9The motion to dismiss, filed by the First Reserve investor group and
Sawgrass Holdings LP, recites that the SK Capital entities joined the motion
separately. The SK Capital entities have not joined as relators in the court of
appeals or in this Court. Sawgrass Holdings GP did not join the Rule 91a
motion. Thus, the relators in this Court are the entities that comprise the First
Reserve investor group and Sawgrass Holdings LP.
5
litigation.” 10 The court held that Plaintiffs’ veil-piercing and alter ego
claims belonged to the estate and were released under the plan and that
Plaintiffs were enjoined from prosecuting them. 11
But the court recognized that Plaintiffs had also alleged a “direct,”
“negligent undertaking” claim that is “not affected” by the plan or the
injunction: specifically, that First Reserve “had sufficient substantive
involvement in the operation of [TPC’s] business that [First Reserve]
undertook responsibility for managing the safety function and [was]
negligent in the manner in which [it] carried it out”. 12 The court
reviewed Plaintiffs’ efforts to separate their veil-piercing claims by
revising their fifth amended petition, then their operative pleading, with
a proposed sixth amended petition. But the court rejected the effort,
observing that “it appears that the plaintiffs have endeavored, in the
[petition], to say as much as they could about efforts to ‘hide behind the
corporate veil’ while retaining the ability to maintain that the action is
not really a claim for veil piercing that would be barred by [the] Court’s
injunction.” 13
The court directed Plaintiffs to submit a revised pleading
complying with the plan injunction. Plaintiffs submitted a proposed
seventh amended petition, which the bankruptcy court approved by
letter dated April 18, 2023. The court explained that “it was not
10In re TPC Grp. Inc., No. 22-10493 (CTG), 2023 WL 2168045, at *1
(Bankr. D. Del. Feb. 22, 2023).
11 Id. at *2.
12 Id.
13 Id.
6
persuaded by [First Reserve’s] argument that a claim for negligent
undertaking was really a veil-piercing claim in disguise because both
causes of actions relied on allegations that [First Reserve] effectively
directed the debtors’ operations.” Rather:
The gravamen of the claim for negligent undertaking is
that [First Reserve] played such an active role in directing
the day-to-day affairs of [TPC] that [First Reserve itself
was] effectively making the decisions regarding the
company’s safety function. Those same factual
allegations . . . are also the basis of [Plaintiffs’] veil-
piercing claim . . . . The factual overlap, however, does not
convert the claim for negligent undertaking into a claim for
veil piercing.
“The task of deciding whether plaintiffs’ claims fall on one side of the
line or another”, the court added, “is a surgical one”.
II
A
Both Plaintiffs, on the one hand, and First Reserve, on the other,
have appealed the bankruptcy court’s order. Plaintiffs and First Reserve
urge us to decide the pending mandamus petition directed to the MDL
court’s denial of the motion to dismiss Plaintiffs’ claims in their third
amended petition. We decline to consider First Reserve’s arguments
regarding Plaintiffs’ alter ego, veil-piercing claims as the bankruptcy
court has enjoined Plaintiffs from proceeding on them. But the court has
now removed from the scope of the plan injunction Plaintiffs’ other
“direct” claims—principally the tort of negligent undertaking. We leave
for the MDL court in the first instance the “surgical” work of excising
one from the other. Here, we address whether Plaintiffs’ allegations of
negligent undertaking and other direct claims in the third amended
7
petition are sufficient to withstand First Reserve’s motion to dismiss
under Rule 91a. 14
B
1
Rule 91a provides:
[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 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. 15
“[T]he court may not consider evidence in ruling on the motion and must
decide the motion based solely on the pleading of the cause of action,
together with any pleading exhibits permitted by Rule 59.” 16
Plaintiffs’ principal claim is that First Reserve undertook to take
charge of TPC’s day-to-day operations through its appointees to the GP
Board and was negligent in failing to make the plant’s operations safe.
Under Texas law, a defendant who undertakes “to render services that
it knows or should know are ‘necessary for the protection of the other’s
person or things’” must generally “exercise reasonable care in
14 Against First Reserve, the third amended petition alleges negligence
(Counts IV-V, VII), gross negligence (Counts IV-V, VIII), nuisance (Count VI),
and “misrepresentations” or fraud (Count VII). Each claim is based on the
same allegations, and throughout the litigation, both sides have treated all the
direct-liability claims pleaded as a single claim for negligent undertaking. Our
analysis follows their lead and applies to all direct-liability claims pleaded in
the third amended petition.
15 TEX. R. CIV. P. 91a.1.
16 TEX. R. CIV. P. 91a.6.
8
performing the undertaking.” 17 “The critical inquiry concerning the duty
element of a negligent-undertaking theory is whether a defendant acted
in a way that requires the imposition of a duty where one otherwise
would not exist.” 18 But the duty is only implicated when the complained-
of undertaking is an affirmative course of action; liability for negligent
undertaking cannot be predicated on an omission. 19 Nor can liability for
negligent undertaking be predicated on a promise to render a service
that is not accompanied by either performance or reliance on the promise
by the injured party. 20
Plaintiffs have no claim that First Reserve undertook to run TPC
based on its indirect ownership of TPC. “Creation of affiliated
corporations to limit liability while pursuing common goals lies firmly
17Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 151 (Tex. 2022) (quoting
Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000)).
18 Id. (quoting Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013)).
See id. at 152 (“[N]ot giving a safety warning is an omission, not an
19
undertaking.”); id. at 152 n.80 (collecting cases).
20 Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex.
1991). In this case, plaintiff Sbrusch was injured while crossing over a bridge
that collapsed. The bridge was one of many that crossed over a drainage
channel maintained by the District. The District had a history of repairing the
bridges over the channel when nearby landowners requested it; the District
maintained a budgetary line item for maintenance of drainage channels; and,
prior to Sbrusch’s accident, a District employee told a landowner that the
District would try to repair the specific bridge on which Sbrusch was injured.
We held that the District could not be liable to Sbrusch for negligent
undertaking. We reasoned that Sbrusch could not have relied on the
employee’s “promise” that the District would repair the bridge because the
promise was never communicated to Sbrusch. Id. at 397. We further held that
neither the District’s promise to repair the bridge nor its budgetary line item
for maintaining drainage channels amounted to an affirmative course of
action. Id.
9
within the law and is commonplace.” 21 As long as companies are distinct
legal entities, they are not liable for each other’s conduct unless some
exception applies to remove this limited liability. 22 Nor can Plaintiffs
base their claim on First Reserve’s right to appoint members to the GP
Board. Even when one company appoints a loyal employee to the board
of a separate legal entity, the appointing company does not become liable
for the board’s conduct. 23 “[I]t is entirely appropriate for directors of a
parent corporation to serve as directors of its subsidiary, and that fact
alone may not serve to expose the parent corporation to liability for its
subsidiary’s acts.” 24 Plaintiffs do not argue to the contrary:
Plaintiffs do not disagree with Relators that “[t]he acts of a
company’s board are not imputed to that company’s
private-equity investors merely because the investors
appointed directors to the board.” Nor do Plaintiffs
disagree that “Texas law does not strip a private-equity
investor of limited liability for a portfolio company’s torts
merely because the investor engages in industry-standard
investment practices.” Plaintiffs do not merely allege that
Relators appointed directors to TPC’s board and engaged
21SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 455
(Tex. 2008).
22 See id. (“We have never held corporations liable for each other’s
obligations merely because of centralized control, mutual purposes, and shared
finances. There must also be evidence of . . . fraud, evasion of existing
obligations, circumvention of statutes, monopolization, criminal conduct, [or]
the like.”).
23See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 198-199 (Tex. 1995)
(holding that a company with the power to elect a majority of members to a
homeowners’ association was not liable for decisions made by the association
with respect to security measures).
24United States v. Bestfoods, 524 U.S. 51, 69 (1998) (quoting Am.
Protein Corp. v. AB Volvo, 844 F.2d 56, 57 (2d Cir. 1988)).
10
in industry standard investment practices. 25
The U.S. Supreme Court has summarized the law this way:
“[N]orms of corporate behavior . . . are crucial reference points” when
“distinguishing a parent[’s] . . . oversight of a subsidiary” from the
parent’s “control over the operation of the subsidiary’s facility.” 26
“Activities that involve the facility but which are consistent with the
parent’s investor status, such as monitoring of the subsidiary’s
performance, supervision of the subsidiary’s finance and capital budget
decisions, and articulation of general policies and procedures, should not
give rise to direct liability.” 27
A cause of action has no basis in law under Rule 91a if it is barred
by an established legal rule and the plaintiff has failed to plead facts
demonstrating that the rule does not apply. 28 Because liability cannot
25 Brief in Response of Real Parties-in-Interest (Plaintiffs) at 22
(quoting Relators’ Brief on the Merits at 41, 48).
26 Bestfoods, 524 U.S. at 71-72.
27 Id. at 72 (alterations omitted) (quoting Lynda J. Oswald, Bifurcation
of the Owner and Operator Analysis under CERCLA: Finding Order in the
Chaos of Pervasive Control, 72 WASH. U. L.Q. 223, 282 (1994)); see also id. (“The
critical question is whether, in degree and detail, actions directed to the facility
by an agent of the parent alone are eccentric under accepted norms of parental
oversight of a subsidiary’s facility.”).
28 See In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 269 (Tex.
2021) (holding that the plaintiff’s claim had no basis in law and should have
been dismissed under Rule 91a where she had “identifie[d] no pleaded facts
that would take her claim outside [the] legal rule” that an insurer is not
vicariously liable for the conduct of an independent attorney it retains to
defend an insured); In re Hous. Specialty Ins. Co., 569 S.W.3d 138, 141 (Tex.
2019) (holding that a request for a declaration of nonliability in tort had no
basis in law and should have been dismissed because the request violated the
rule of Abor v. Black, 695 S.W.2d 564 (Tex. 1985)); In re Essex Ins. Co., 450
11
be based on First Reserve’s ownership interest in TPC, its appointments
to the GP Board, or any other action that is consistent with its investor
status, Plaintiffs must have pleaded facts showing that First Reserve
undertook in other ways to run TPC’s day-to-day operations and,
specifically, to delay the turnaround that could have prevented the
explosions.
These allegations must satisfy our notice-pleading rules, which
“require pleadings to not only give notice ‘of the claim and the relief
sought’ but also of the essential factual allegations.” 29 “As we have
explained many times, a ‘cause of action’ means the ‘fact or facts
entitling one to institute and maintain an action, which must be alleged
and proved in order to obtain relief.’” 30 It is not enough for the plaintiff
to provide fair notice of the claims alleged because “[t]he pleading of a
legal theory, without more, does not provide notice of the facts that could
be pleaded to support that theory.” 31 The plaintiff must plead “the
essential factual allegations supporting those claims”, 32 which must be
S.W.3d 524, 527-528 (Tex. 2014) (holding that the trial court erred by denying
Essex’s Rule 91a motion because the declaratory judgment requested by the
plaintiff violated Texas’ “no direct action rule”, which prohibits an injured
party from suing a tortfeasor’s insurance company before liability has been
established).
Kinder Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835, 849
29
(Tex. 2021) (quoting Montelongo v. Abrea, 622 S.W.3d 290, 299-300 (Tex.
2021)).
30 Id. at 849 n.63 (quoting Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex.
2012)).
31 Id. at 850.
32 Id. at 849 (citing Montelongo, 622 S.W.3d at 299-300).
12
sufficient to support a judgment if ultimately proven. 33
2
As we have noted, Plaintiffs’ petition refers to TPC’s “Owners”
(including First Reserve) and Sawgrass Holdings GP collectively.
Plaintiffs allege that “Owners and Sawgrass Holdings GP undertook
direct operational control of the TPC plant in Port Neches and assumed
the duty of risk mitigation as well as other duties”. But Plaintiffs also
assert that TPC was controlled by the Board of Sawgrass Holdings GP,
which did not join the Rule 91a motion and is not a relator here.
Plaintiffs’ only factual allegation about how First Reserve itself
exercised “operational control” over TPC is that First Reserve acted
“through the Board” of Sawgrass Holdings GP. But as we have explained
and Plaintiffs now concede, First Reserve’s right to appoint two of the
five members of the GP Board does not subject it to liability for TPC’s
conduct. Because Plaintiffs make no allegation that First Reserve—a
group of entities that are distinct from Sawgrass Holdings GP—
undertook to render services to TPC, their negligent-undertaking claim
has no basis in law. 34
For example, Plaintiffs allege that First Reserve and Sawgrass
Holdings GP refused to authorize a turnaround and other safety
expenditures in order to keep TPC’s balance sheet strong for a possible
sale. Yet as we have said, an undertaking duty cannot be predicated on
33 See id. at 850-851.
34See 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.”).
13
an omission, 35 a promise that is not performed or relied on by the injured
party, 36 the failure to make an expenditure, 37 or a parent’s supervision
of its subsidiary’s financial and budgetary decisions. 38 And in any event,
First Reserve had no authority itself over TPC’s budget and expenses.
That authority was vested solely in the GP Board, not in First Reserve.
Plaintiffs allege that “Owners and Sawgrass Holdings GP . . . den[ied]
funds to adequately supply the plant with spare parts . . . or perform
necessary maintenance needed to keep the plant safe”, but they have
not pleaded a single instance in which First Reserve itself decided
whether to provide or withhold resources to TPC. To be sure, Plaintiffs
have pleaded at great length that First Reserve controlled TPC, but the
only factual bases pleaded are that First Reserve had an ownership
interest in TPC and designated two GP Board members, both of which
Plaintiffs acknowledge are insufficient to subject First Reserve to
liability for TPC’s actions.
In their merits brief, Plaintiffs summarize their allegations this
way:
Plaintiffs specifically plead Relators acted with direct
operational control over safety with respect to the
safeguards, protocols, procedures, personnel, equipment,
inspections, and resources and control such that Relators
took control away from TPC and supplanted TPC’s duties
to its employees and the public with respect to the specific
safety decisions that led to the explosion and the harms
35 Kenyon, 644 S.W.3d at 152 & n.80.
36 Sbrusch, 818 S.W.2d at 396.
37 See id. at 397.
38 Bestfoods, 524 U.S. at 72.
14
that followed. 39
But Plaintiffs pleaded that First Reserve “and Sawgrass Holdings GP”
did these things. Plaintiffs do not state factually how First Reserve itself
took and exercised such control other than through its ownership
interest and the GP Board, which, again, Plaintiffs concede is not
enough for a negligent undertaking. Plaintiffs add: “When an ‘owner’
actively inserts itself into the day-to-day operational decisions of a
company—and makes specific—and erroneous—operational decisions
that blow up a plant—Court-manufactured immunity will not lie.” 40
Perhaps not, but Plaintiffs must have alleged facts to show that is what
First Reserve did.
Plaintiffs’ third amended petition makes many legal accusations
but no factual allegations to show a cause of action with a basis in law
against First Reserve for TPC’s conduct. The MDL court should have
granted First Reserve’s motion to dismiss.
* * * * *
The posture of this case presents us with very exceptional
circumstances. Plaintiffs’ third amended petition asserts claims that the
bankruptcy court enjoined Plaintiffs from prosecuting at the very time
the case was being argued in this Court. But that court has since allowed
Plaintiffs to proceed on other claims that were asserted in the third
amended petition and now included in a proposed seventh amended
petition, though they are entangled with the prohibited claims. Those
39 Brief in Response of Real Parties-in-Interest (Plaintiffs) at 39
(emphasis omitted).
40 Id. at 40.
15
developments do not moot whether the allegations in the third amended
petition state a cause of action with a basis in law or fact. Plaintiffs
cannot, simply by amending their pleadings, avoid a determination of
the issues in this proceeding, nor have they sought to do so. Plaintiffs
and First Reserve not only argue that our ruling on those issues is
appropriate, they urge us to rule.
And we have. But we will not direct the MDL court to take action.
Mandamus is discretionary and “controlled by equitable principles”, 41
and we cannot determine what disruption a directive would have on
proceedings that have been stayed during the bankruptcy proceedings
and may resume on a different petition. 42 With that explanation, we
deny First Reserve’s petition for writ of mandamus.
______________________________
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: June 23, 2023
41 Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).
42Plaintiffs argue that their negligent-undertaking claim should not be
dismissed before they have had the opportunity to conduct full discovery from
First Reserve. First Reserve counters that a plaintiff must make a “reasonable
inquiry” into the facts before filing suit, TEX. R. CIV. P. 13, and that Plaintiffs
have already obtained significant discovery from TPC in any event. We note
that the time standards in Rule 91a leave little room for discovery before a
motion under the rule must be filed and ruled on. But as we are declining to
grant relief, we leave it to the trial court to adjudicate the parties’ discovery
dispute when proceedings resume in that court.
16