In re Oncor Electric Delivery Co. LLC, 24-0424, June 27, 2025.
On appeal from Court of Appeals for the Fourteenth District of Texas
Synopsis
The Texas Supreme Court held that transmission and distribution utilities cannot, as a matter of law, be alleged to have “created” or “maintained” a nuisance, so intentional-nuisance claims against them must be dismissed with prejudice. The Court also held the pleadings fail to state gross-negligence claims but granted plaintiffs leave to replead those claims with the guidance provided; mandamus relief was conditionally granted.
Relevance to Family Law
Although this is a commercial/regulatory decision, the opinion has concrete consequences for family-law practitioners who litigate divorce, custody, or property disputes that intersect with tort claims or community-property damage claims. The decision sharpens pleading standards for intentional-nuisance and gross-negligence theories (critical when seeking exemplary damages or allocating liability between spouses), affirms the potency of Rule 91a motions to cull legally deficient tort claims early, and underscores the importance of identifying and pleading the legal source of a defendant’s duty (including regulatory or contractual frameworks) rather than relying on conclusory allegations. In short: when family cases involve third-party property damage, service interruptions, or alleged intentional interference with marital property, counsel must plead with particularity the legal duty breached, the actor who created/maintained the actionable condition, and the factual basis for gross-negligence or intentional-tort claims to survive early dismissal and to preserve exemplary-damages claims that affect community‑property valuation and division.
Case Summary
Fact Summary
The case arose from Winter Storm Uri (February 2021), during which ERCOT declared a Level 3 emergency and ordered utilities to load-shed. Plaintiffs alleged that transmission and distribution utilities (the relators) aggravated the crisis by failing to execute promised roll blackouts, cutting power to generators and gas producers, lacking a load-shed plan, failing to maintain an accurate critical-customer list, keeping too much capacity on UFLS circuits, and misleading customers about the situation. The utilities operate under PUC-prescribed tariffs (including a pro forma tariff) that define certain duties, prohibitions, and liability limitations. After hundreds of suits were consolidated into MDL proceedings, the utilities moved to dismiss under Texas Rule of Civil Procedure 91a and sought mandamus review after mixed rulings at the trial-court and court-of-appeals level.
Issues Decided
The Court decided whether (1) transmission and distribution utilities can be held liable for intentional nuisance based on the alleged conduct during Winter Storm Uri, (2) the plaintiffs’ pleadings sufficiently allege gross negligence against the utilities to survive a Rule 91a dismissal, and (3) mandamus relief is appropriate where the trial court denied dismissal of those claims.
Rules Applied
The Court applied Rule 91a (motion to dismiss causes of action that have no basis in law or fact) and mandamus jurisprudence governing abuse of discretion and adequacy of appellate remedies (In re Prudential Ins. Co. of Am.; Walker v. Packer). The opinion treats the regulatory/contractual framework governing utilities as central—citing the PUC pro forma tariff at 16 TEX. ADMIN. CODE § 25.214 and City of Richardson v. Oncor for the proposition that tariffs define duties and limitations for transmission and distribution utilities. The Court also relied on recent mandamus precedents addressing trial-court analysis of Rule 91a motions (In re Sherwin-Williams; In re Farmers Tex. Cnty. Mut. Ins. Co.) to evaluate whether dismissal was warranted and whether a repleading opportunity should be afforded.
Application
The Court viewed the plaintiffs’ pleadings through Rule 91a’s lens and the regulatory statutory background that constrains a utility’s duties. Because the utilities do not generate power but only deliver it under tariffs and ERCOT directives, the Court concluded plaintiffs could not, as a legal matter, allege the utilities “created” or “maintained” a nuisance. That doctrinal determination rested on the distinction between those who create a harmful condition and those who implement directive-driven load-shedding under a regulated tariff regime.
On gross negligence, the Court found plaintiffs’ allegations legally deficient—primarily conclusory and lacking the factual specificity that demonstrates the heightened mental state (conscious indifference or gross neglect) necessary to support exemplary damages. Nevertheless, recognizing Rule 91a’s limits and that plaintiffs might cure deficiencies with well-pleaded facts, the Court allowed repleading of gross-negligence claims and provided guidance about the factual specificity required, while conditionally granting mandamus to correct the trial court’s failure to dismiss the insufficient claims as to intentional nuisance and to order dismissal of some other pleaded causes of action consistent with its analysis.
Holding
The Court held first that plaintiffs, as a matter of law, cannot allege that transmission and distribution utilities “created” or “maintained” a nuisance in connection with Winter Storm Uri and therefore intentional-nuisance claims against those utilities must be dismissed with prejudice. That holding turns on the utilities’ regulated role as delivery entities operating under tariffs and ERCOT directives, which precludes the required legal theory of nuisance creation/maintenance.
The Court further held that the pleadings did not sufficiently allege gross negligence. However, rather than a final dismissal with prejudice, the Court concluded plaintiffs should have the opportunity to replead gross-negligence claims in light of the specific pleading guidance it provided. Accordingly, the Court conditionally granted mandamus relief to correct the trial court’s analysis and to set boundaries for repleading.
Finally, the Court’s conditional mandamus signals that when a trial court misapplies Rule 91a (or fails to analyze the law correctly), mandamus is an appropriate remedy because appeal does not afford adequate relief for the prompt elimination of legally baseless claims.
Practical Application
For family-law practitioners, this opinion has several practical lessons.
First, if a divorce or post‑judgment dispute invokes tort claims against third parties (e.g., utilities, landlords, HOAs, contractors) for property damage, service interruptions, or hazards that affect community property value or custody contexts (where home conditions bear on best-interest or safety allegations), plead the source of any duty with precision—statutory, contractual, regulatory, or common-law. Do not rely on boilerplate assertions that a defendant “maintained” a nuisance without alleging the defendant both created and controlled the harmful condition.
Second, pleading gross negligence (to sustain a claim for exemplary damages or to shift allocation of community losses) requires factual allegations showing conscious indifference or an extreme degree of risk; conclusory characterizations will likely be vulnerable to a Rule 91a motion.
Third, use Rule 91a strategically: Move early to dismiss legally deficient tort claims that inflate damages or distract from core family-law issues. If a trial court refuses to apply Rule 91a correctly, consider mandamus when the issue is dispositive and appeal is inadequate. Finally, if you represent the plaintiff spouse asserting tort-based community claims, prepare to allege factual specifics, contemporaneous warnings/communications, knowledge of risk, and proximate causation to avoid dismissal and to preserve the possibility of exemplary damages.
Checklists
Practical checklists you can apply in family-law cases that intersect with tort/regulatory conduct:
Plead Gross Negligence to Withstand Rule 91a
- Identify and plead the precise legal source of the defendant’s duty (statute, regulation, tariff, contract, or established common-law duty).
- Allege specific acts or omissions showing conscious indifference to an extreme risk (dates, communications, warnings ignored).
- Plead prior knowledge or warnings, and why the defendant’s conduct was more than ordinary negligence.
- Connect conduct to concrete, compensable harm to community property or to a spouse/child (causation and damages).
- Attach or reference key documentary exhibits (tariff provisions, ERCOT directives, emails, maintenance logs) where available.
Avoid Losing Intentional Nuisance Claims
- Confirm the defendant plausibly could have “created” or “maintained” the condition alleged—if the actor merely carried out orders or functioned within a regulatory role, the claim may fail as a matter of law.
- If asserting intentional nuisance, plead factual predicates showing affirmative and independent creation/maintenance (not merely compliance with third‑party instructions).
- Avoid conclusory language like “defendant intentionally caused a nuisance”; instead, provide operational facts demonstrating the actor’s role in creating or perpetuating the condition.
Using Rule 91a and Mandamus Strategically
- Move under Rule 91a early to eliminate legally baseless tort claims that inflate damages or complicate discovery.
- Preserve record-level arguments explaining why the claim is legally insufficient and point to controlling authority (tariff/regulatory language, precedent).
- If the trial court fails to apply the law correctly and the issue is dispositive (no adequate remedy by appeal), evaluate mandamus as a remedy—prepare a concise legal showing that the denial is an abuse of discretion.
Discovery & Evidence to Build a Durable Tort Claim
- Serve targeted preservation and expedited discovery requests for documents evidencing knowledge, warnings, and decision-making (internal emails, manuals, logs).
- Subpoena regulatory filings, tariffs, and directives to show whether duties existed and were breached.
- Retain an expert early (engineering, industry practice, grid operations) to support assertions about foreseeability and standard of care.
Settlement & Case-Management Considerations
- If opposing counsel advances marginal tort claims to leverage settlement, use Rule 91a to remove leverage and recalibrate settlement posture.
- If representing a plaintiff, consider early limited discovery to demonstrate the factual predicate that survives Rule 91a scrutiny before extensive expensive discovery.
Citation
In re Oncor Electric Delivery Co. LLC, No. 24-0424 (Tex. June 27, 2025).
Full Opinion
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