Reversed and Remanded and Opinion Filed July 11, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-01018-CV

JOSE ROSARIO MENDOZA JR., Appellant

V.

MILKSHAKE, LLC; MILKSHAKE CONCEPTS, LLC; MILKSHAKE 

CAPITAL PARTNERS, LLC; SP RESTAURANT HOLDINGS, LLC;

AND CITIZEN UPTOWN, LLC, Appellees

On Appeal from the County Court at Law No. 3

Dallas County, Texas

Trial Court Cause No. CC-22-02551-C

MEMORANDUM OPINION

Before Justices Partida-Kipness, Reichek, and Miskel

Opinion by Justice Reichek

Jose Rosario Mendoza Jr. appeals the trial court’s order granting appellees’ 

Rule 91a motion to dismiss. Mendoza contends the trial court erred in determining 

that his claims had no basis in law or in fact. We agree that appellees’ motion did 

not set out any meritorious reasons for dismissal under Rule 91a and reverse and 

remand. 
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Background

As alleged in Mendoza’s petition, on January 16, 2022, Mendoza was a patron 

at a Dallas nightclub called “Citizen” when a fellow patron, Eric Lozano, shot and 

critically injured him. Mendoza sued six limited liability companies—Citizen 

Dallas, LLC, and the five appellees, Milkshake, LLC, Milkshake Concepts, LLC, 

Milkshake Capital Partners, LLC, SP Restaurant Holdings, LLC, and Citizen 

Uptown, LLC—seeking damages for his injuries. The petition states Mendoza sued

any business entity “whose name contains the words or who does business under or 

as ‘Citizen,’ ‘Citizen Nightclub,’ or ‘Citizen Dallas’ located at 2511 Swiss Avenue” 

in Dallas. Each defendant has itsregistered office at the same address on Main Street 

in Dallas. The petition named Imran Sheikh as the registered agent for appellees

Milkshake, LLC and Milkshake Capital Partners, LLC and named Milkshake, LLC 

as the registered agent for the other four defendants.

In his pleading, Mendoza referred to the six defendants collectively as 

“Defendants” and alleged that each defendant was an agent of the others. Mendoza 

alleged defendants owned and controlled the club and undertook to provide security 

there. They searched, patted down, or used a metal detector wand on some, but not 

all, patrons. Defendants allowed Lozano to enter the premises with a gun. After 

Lozano shot Mendoza, security guards “scooped” Mendoza up and “threw him 

outside onto the concrete like trash.” Mendoza alleged defendants were negligent 
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in failing to provide appropriate and reasonable security services once they 

undertook to provide such services. Among other things, he alleged defendants

failed to: reasonably inspect those entering the premises for concealed firearms, 

provide rules and regulations for prevention of firearms being carried onto the 

premises, enforce such rules and regulations, and properly train employees. 

Mendoza alleged defendants’ conduct involved an extreme degree of risk and that 

they had actual awareness of the risk, but proceeded with conscious indifference to 

the rights, safety, and welfare of others. He sought actual and exemplary damages.

All defendants were represented by the same attorney. Citizen Dallas was the 

only defendant to file an answer. The five appellees filed a short, joint motion to 

dismiss Mendoza’s claims pursuant to Texas Rule of Civil Procedure Rule 91a. 

Appellees asserted Mendoza’s claims have no basis in law or fact because (1) 

appellees are entities that are not related to Citizen nightclub; (2) appellees are 

parties solely for the purposes of harassment; and (3) Mendoza did not plead any 

legal or factual basis to justify appellees being named as defendants. 

After Mendoza responded that appellees’ stated reasons for dismissal were 

either outside the scope of Rule 91a or incorrect, appellees filed a reply in support 

of their motion. Under the heading “Verified Denial,” the reply stated, “Defendants 

are not liable in the capacity in which they were sued . . . [and] are entirely separate 

entities from the entity Plaintiff alleges committed the acts/omissions within 

Plaintiff’s petition.” Attached to the reply was a sworn and notarized verification 
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from Sheikh, who identified himself only as “an authorized representative of the 

Defendants.” Sheikh said the statements contained in the verified denial are within 

his personal knowledge and are true and correct. 

A visiting judge sitting by assignment held a hearing on the motion to dismiss.

The sole argument made at the hearing was that appellees were the wrong parties. 

The visiting judge granted the motion, dismissed appellees as defendants, and left 

the issue of appellees’ attorney’s fees under Rule 91a to be determined. After 

Mendoza filed a notice of nonsuit of his claims against Citizen Dallas, the district 

judge signed an order which dismissed Mendoza’s claims against Citizen Dallas 

without prejudice and “dispose[d] of all remaining claims and all remaining parties.” 

Mendoza argues the trial court erred in granting the Rule 91a motion because 

none of the three grounds asserted in appellees’ motion warranted dismissal of his 

claims. We agree.

Applicable Law

Texas Rule of Civil Procedure 91a provides that 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 specifically the reasons 

the cause of action has no basis in law, no basis in fact, or both. Id. 91a.2. The trial 
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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. Id. 91a.6; see id. 59 (“[n]otes, accounts, bonds, 

mortgages, records, and all other written instruments, constituting, in whole or in 

part, the claim sued on . . . may be made a part of the pleadings”). 

Rule 91a permits motions to dismiss based on affirmative defenses, if the 

plaintiff’s allegations, taken as true, together with inferences reasonably drawn from 

them, do not entitle the claimant to the relief sought. Bethel v. Quilling, Selander, 

Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). Because Rule 

91a does not allow consideration of evidence, only affirmative defenses that are 

conclusively established by the facts in a plaintiff’s petition are a proper basis for a 

91a motion to dismiss. See id.; Frankel v. Butler, No. 05-21-01122-CV, 2022 WL 

17883798, at *4 (Tex. App.—Dallas Dec. 23, 2022, no pet.) (mem. op.). 

We review the merits of a Rule 91a motion de novo. Bethel, 595 S.W.3d at 

654; City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). 

Because dismissal on the pleadings is a harsh remedy, courts must strictly construe 

the requirements of Rule 91a. Renate Nixdorf GmbH & Co. KG v. TRA Midland 

Props., LLC, No. 17-00577-CV, 2019 WL 92038, at *10 (Tex. App.—Dallas Jan. 3, 

2019, pet. denied) (mem. op.).

Analysis
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In their motion to dismiss, appellees first asserted Mendoza’s claims should 

be dismissed because appellees “are entities that are NOT related to the 

establishment [in] which the Plaintiff purports the incident occurred.” In their 

appellate brief, appellees argue the trial court was entitled to dismiss the case based 

on the affirmative defense that they were not proper parties. Neither appellees’

motion to dismiss nor their reply used the term “affirmative defense.” See TEX. R.

CIV. P. 91a.2 (motion to dismiss must state specifically reasons cause of action has 

no basis in law or fact). Assuming appellees’ motion sufficiently raised this

affirmative defense as grounds for dismissal, the defense was not a valid reason for 

dismissal in this case. 

Appellees contend that in determining whether they were proper parties, the 

trial court was entitled to consider the verified denial contained in their reply. See 

TEX. R. CIV. P. 93 (requiring pleading setting up defect of parties to be verified by 

affidavit). We reject appellees’ assertion that Mendoza’s claims against them can 

be dismissed due to the verified denial. Assuming the verified denial conclusively 

proved appellees were improper parties, it cannot be included in the Rule 91a 

analysis. The trial court was required to decide the motion based solely on the 

pleading of the cause of action. See id. 91a.6. This is not a case in which the 

affirmative defense is conclusively established by the facts in the petition. Cf. 

Bethel, 595 S.W.3d at 658 (plaintiff’s pleadings established affirmative defense of 

attorney immunity because complained-of actions were the kind taken in connection 
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with representing client in litigation). Whether appellees are improper parties is not 

something that can be determined solely from Mendoza’s petition. Mendoza alleged 

appellees owned and controlled the club, and we must accept his allegations as true. 

There is nothing in the petition to establish that appellees are not related to Citizen 

nightclub.1 

As their second ground for dismissal, appellees asserted that Mendoza named 

them as parties solely for the “purposes of harassment.” Appellees do not mention 

this argument on appeal. Nothing in Mendoza’s petition demonstrates that appellees 

were sued solely for purposes of harassment. The dismissal cannot be upheld on this 

basis. 

Finally, appellees asserted Mendoza did not plead any legal or factual basis to 

justify appellees being parties to the suit. Appellees did not specify in their motion 

why there is no legal basis to justify their being named as defendants. The motion 

merely stated “Plaintiff’s causes of action against Defendants for: Negligence/Gross 

Negligence have no basis in law.” We assume this is another reference to the

 

1

In the trial court, appellees relied on Drew v. Belver, No. 04-20-00483-CV, 2021 WL 

3518541 (Tex. App.—San Antonio Aug. 11, 2021, pet. denied) (mem. op.), for the proposition 

that the court could consider the verified denial. Drew is not a Rule 91a case; it is a Texas Citizens 

Participation Act (TCPA) case. When ruling on a motion to dismiss under the TCPA, a trial court 

is permitted to consider evidence it could consider in a summary judgment proceeding. TEX. CIV.

PRAC. & REM. CODE ANN. § 27.006(a); TEX. R. CIV. P. 166a(c). The holding in Drew was that it 

was not an abuse of discretion for the trial court to consider certified documents attached to a reply 

in ruling on a TCPA motion. Drew, 2021 WL 3518541, at *3. Drew does not stand for the 

proposition that a trial court can consider evidence in ruling on a Rule 91a motion, and appellees 

do not cite Drew on appeal. 
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argument that appellees are not related to the nightclub where Mendoza was shot. 

We have already rejected that basis for dismissal. 

Appellees argued Mendoza’s claims had no basis in fact because Mendoza 

did not plead any facts “that relate to any action and/or inaction on behalf of the 

Defendants.” But Mendoza did allege appellees’ action or inaction. He alleged that 

appellees (and Citizen Dallas) owned and controlled the nightclub and undertook to 

provide security services at the club. He specified various ways in which appellees 

failed to adequately perform security services and alleged the negligent acts or 

omissions proximately caused his injuries. Mendoza alleged facts that, if true, could 

support negligence claims against appellees. 

In their brief, appellees present additional grounds for dismissal not included 

in their motion to dismiss. For example, they argue Mendoza’s claims lacked any 

basis in law because he did not distinguish between the conduct of the six defendants

and lacked any basis in fact because no reasonable person could believe six entities 

engaged in a conspiracy to be negligent. A motion to dismiss must state specifically 

the reasons the cause of action has no basis in law or in fact. TEX. R. CIV. P. 91a.2. 

Because these arguments were not made in the trial court, we do not consider them. 

See Renate Nixdorf GmbH, 2019 WL 92038, at *9 n.12. Appellees’ motion to 

dismiss did not present any valid grounds for dismissal under Rule 91a, and therefore 

the trial court erred in granting the motion. We sustain Mendoza’s sole issue.
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We reverse the trial court’s order granting appellees’ motion to dismiss and 

remand for further proceedings consistent with this opinion.

221018f.p05

/Amanda L. Reichek//

AMANDA L. REICHEK

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JOSE ROSARIO MENDOZA JR., 

Appellant

No. 05-22-01018-CV V.

MILKSHAKE, LLC; MILKSHAKE 

CONCEPTS, LLC; MILKSHAKE 

CAPITAL PARTNERS, LLC; SP 

RESTAURANT HOLDINGS, LLC; 

AND CITIZEN UPTOWN, LLC, 

Appellees

On Appeal from the County Court at 

Law No. 3, Dallas County, Texas

Trial Court Cause No. CC-22-02551-

C.

Opinion delivered by Justice 

Reichek. Justices Partida-Kipness

and Miskel participating.

In accordance with this Court’s opinion of this date, the trial court’s August 

16, 2022 order granting appellees’ motion to dismiss is REVERSED and this cause 

is REMANDED to the trial court for further proceedings consistent with this 

opinion.

It is ORDERED that appellant Jose Rosario Mendoza Jr. recover his costs of 

this appeal from appellees Milkshake, LLC, Milkshake Concepts, LLC, Milkshake 

Capital Partners, LLC, SP Restaurant Holdings, LLC AND Citizen Uptown, LLC.

Judgment entered this 11th day of July, 2023.