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Rule 91






PLEADINGS AND SPECIAL EXCEPTIONS

Revised May 3, 2000

Table of Contents

Query: When are Pleadings “Sufficient?”

Special Exceptions Source: Rules 90, 91, Texas Rules of Civil Procedure

Special Exceptions Tests Sufficiency of the Opposing Party’s Pleading

Special Exception is Exclusive of Test of Sufficiency of Pleadings

Right to Amend Exists Following Sustaining of Special Exception

Amended Pleading Before Hearing Obliterates Special Exceptions

Amended Pleading Supplants Previous Pleading

General Demurrers Prohibited

Speaking Demurrer Prohibited

Standard of Review is Abuse of Discretion

Query: When are Pleadings “Sufficient?”

Rule 45 [Tex.R.Civ.P.] shifts the emphasis from the inherently unworkable metaphysical distinction . . . to a thoroughly practical test: Does the pleading give adequate notice?

2 McDonald Texas Civil Practice, § 7:5[b] (1992).

Under Rules 45 and 47, pleadings are sufficient if they give the opposing attorney fair notice of the claim involved. . . . The object and purpose of pleading is to give fair and adequate notice to the party being sued of the nature of the cause of action asserted against him so he may adequately prepare his defense.

Castleberry v. Goolsby Building Corp., 617 S.W.2d 665, 666 (Tex. 1981)(citations omitted).

The purpose of pleadings is to define the issues at trial. . . . A proper pleading gives fair and adequate notice of the facts relied upon, enabling the opposing party to prepare a defense.

Garvey v. Vawter, 795 S.W.2d 741, 742 (Tex. 1990)(per curiam)(holding that pleading “proximate cause” put defendant on fair notice of the issue of “foreseeability”).

Further, the courts of this state have uniformly held that the rules of pleading do not require but have uniformly condemned the practice of pleading the evidence upon which a party relies to prove the allegations of his pleadings.

King v. Harris County Flood Control District, 210 S.W.2d 438, 441 (Tex.Civ.App. — Galveston, writ ref’d n.r.e.) quoted in Andrews v. Daniels, 240 S.W.2d 1018, 1021 (Tex.Civ.App. — Austin 1951, writ dism.)(sustaining order rejecting special exceptions).

In general, counsel can, if he wishes, say nothing in advance about the evidence he intends to offer to prove the allegations. . . . Usually he lets the court and his opposition learn the nature of his evidence as he develops it during the trial.

Arkansas Fuel Oil C. v. State, 280 S.W.2d 723, 725 (Tex. 1955).

Rule 45 requires the defense attorney to make a fair effort to understand what the plaintiff is attempting to set forth.

    The test should be whether an opposing attorney of reasonable competence, perusing the pleadings, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant.

McDonald, § 7:4[b](emphasis added)(footnote omitted); see also State Fidelity Mortgage Co. v. Varner, 740 S.W.2d 477 (Tex.App. — Houston [1st Dist.] 1987, writ den.).

Fair notice requires that the pleader allege every element of his cause of action in order that the opposing party is able to prepare his defense. . . . To sufficiently allege the elements of a cause of action, the court must be able to identify each element in the pleadings. . . . However, whether each element is identifiable in the pleadings may be determined only after the pleadings are liberally construed. . . . Further, the court must consider the intention of the pleader and treat all reasonable inferences from the facts alleged as having been sufficiently stated in the pleadings.

Jackson v. Julian, 694 S.W.2d 434, 436 (Tex.App. — Dallas 1985, no writ)(upholding fraud pleading as adequate).

    A pleader cannot be expected to allege the circumstances with more particularity than their nature will permit.

McDonald, § 7:7.

Special Exceptions Source: Rules 90, 91, Texas Rules of Civil Procedure. Special exceptions are governed primarily by Tex.R.Civ.P. 91, with some guidance being provided by Tex.R.Civ.P. 90. Special exceptions may challenge the claim or cause of action itself, or may go to the form of the pleading.

    A special exception challenging a claim will be granted upon one or more of three propositions, the applicable one being set out explicitly: (1) that no legal rule justifies a recovery on a claim in the type alleged; (2) that, though there is a legal rule which might be applicable, the petition omits one or more allegations essential to bring plaintiff’s claim within its scope; or (3) that, though there is a legal rule which might be applicable, the petition shows on its face facts which negative its application.

2 McDonald Texas Civil Practice, § 9:25[a] (1992)(footnotes omitted).

    The special exception is most frequently utilized to compel the opponent to supply admissions, clarify obscurities, or strike improper allegations in his or her pleading.

* * *

    The exception must point out the pleading, and the particular portion thereof, under attack, and must state why it is defective. If the exception fails to do so, it may be overruled.

Id., § 9:27 (footnotes omitted).

Special Exceptions Tests Sufficiency of the Opposing Party’s Pleading. Texas law is well settled that if the defendant to a cause of action asserts that the cause of action does not exist under Texas law, the way to test the sufficiency of the plaintiff’s pleading is by way of special exceptions pursuant to Tex.R.Civ.P. 91. Smith v. Ortman-McCain Co., 537 S.W.2d 515 (Tex.Civ.App. — Austin 1976, writ ref. n.r.e.). The attack on the sufficiency of pleadings should ordinarily by special exceptions so that the pleader may have an opportunity to amend. State v. Houdille Industries, Inc., 632 S.W.2d 723 (Tex. 1982).

Special Exception is Exclusive of Test of Sufficiency of Pleadings. Whether or not a cause of action is stated in the pleadings against a defendant should be asserted by a special exception as opposed to a motion for summary judgment. Massey v. Armco Seal Co., 652 S.W.2d 932, 934 (Tex. 1983). The special exception would merely state that no legal rule justifies recovery against the defendant on the claim asserted in the plaintiff’s petition. It is improper

to use a summary judgment rather than a special exception to test the sufficiency of the pleading.

McDuff v. Chambers, 895 S.W.2d 492, 496 (Tex.App. — Waco 1995, writ den.). However, a case may be disposed of by summary judgment when special exceptions are sustained and amended pleadings still fail to state cause of action. Luna v. Estate of Rodriguez, 906 S.W.2d 576 (Tex.App. Austin 1995, no writ).

Right to Amend Exists Following Sustaining of Special Exception. Tex.R.Civ.P. 63 governs amendments to pleadings under Texas procedure. However, there is an interrelationship between Rule 63 and Rule 91 practice when a court sustains a special exception. A party whose pleading has been successfully attacked by a special exception has an absolute right to amend after the special exception is granted, if the party can meet the substance of the special exception. Atkinson v. Reid, 625 S.W.2d 64 (Tex.App.–San Antonio 1981, no writ); Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980); Heom v. Coca Cola Bottling Company of Lubbock, Inc., 595 S.W.2d 108 (Tex.Civ.App.–Amarillo 1980) writ ref. n.r.e. 599 S.W. 801 (Tex 1980); see also Aston v. Lyons, 577 S.W.2d 516 (Tex.Civ.App.–Texarkana 1979, no writ). When special exceptions are sustained, a party may either amend its pleadings to meet the exceptions or refuse to amend and test the validity of the ruling by appeal. Cameron v. University of Houston, 598 S.W.2d 344 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ ref. n.r.e.). Accordingly, a motion for summary judgment should not be used as a subterfuge for a special exception in order to deprive a plaintiff of the right to amend. Meisler v. Banker’s Capital Corp., 668 S.W.2d 828, 830 (Tex.App. — Houston [14th Dist.] 1984, no writ); Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1984); Friesenhahn v. Ryan, 950 S.W.2d 656 (Tex. 1998).

In Friesenhahn, plaintiffs filed their pleadings to which the defendants excepted. Some of the exceptions were sustained. The court entered an order prohibiting amendment of the pleadings for a period of time during which time the defendant filed a motion for summary judgment which was granted. The plaintiff claimed at the trial court level that he was denied the opportunity to amend his pleadings to attempt to allege a viable cause of action and that it was improper for the trial court to hear summary judgment without permitting him to amend. The Supreme Court agreed, holding as follows:

    Special exceptions may be used to challenge the sufficiency of a pleading. See Ft. Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.– Houston [14th Dist] 1992, no writ); Texas Rules of Civil Procedure 91. When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). If a party refuses to amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted. Herring, 513 S.W.2d at 10. Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

Id., 960 S.W.2d at 658. Furthermore, the Supreme Court held that a right to amend applies even under Tex.R.Civ.P. 166a(i), the “no evidence” motion for summary judgment:

Before a court may grant a “no cause of action” summary judgment in such a situation, it must give the parties an adequate opportunity to plead a viable cause of action. Pietila v. Crites, 851 S.W.2d 185, 186 note 2 Tex. 1993; Massey v. Armco Steel Company, 652 S.W.2d 932, 934 (Tex. 1983). Consequently, the trial court improperly rendered summary judgment against the Ryans.

Id., 960 S.W.2d at 659.

Amended Pleading Before Hearing Obliterates Special Exceptions. Once a party has levied special exceptions to a pleading, the filing of an amended pleading before a hearing is had on those special exceptions obliterates the special exceptions. Steahr v. Clark, 535 S.W.2d 39, 41 (Tex.Civ.App. — Austin 1976, no writ); Dierlan v. Clearlake Hospital, 593 S.W.2d 774, 776 (Tex.Civ.App. — Houston [14th Dist.] 1979, no writ); see also Simon v. Watson, 525 S.W.2d 210 (Tex.Civ.App. — Dallas 1975, writ dism.).

Amended Pleading Supplants Previous Pleading. Under Tex.R.Civ.P. 65, an amended pleading completely replaces and supplants the pleading that it amends. This is why a party must have a new set of special exceptions to the amended pleading. However, it the court orders a party to replead, there are situations in which the court can go ahead and dismiss or strike the amended pleading, without further special exceptions, if the amended pleading does not correct the defect and no new special exceptions are filed. A clear discussion of this was found in 2 R. McDonald, Texas Civil Practice, § 7.20 et seq. (rev. 1984). The latest edition of McDonald Texas Civil Practice does not have this discussion, or at least this writer could not find it. See 2 McDonald Texas Civil Practice, §§ 9:25, n.236, 10:9, n.56 (1992).

General Demurrers Prohibited. Tex.R.Civ.P. 90 expressly prohibits the use of a general demurrer. A general demurrer is a responsive pleading, usually with the misnomer of “special exception,” that asserts generally that there has been a failure to plead a cause of action or a ground of defense. It is improper to urge such a plea. Susan Oil, Inc. v. Continental Oil Co., 516 S.W.2d 260 (Tex.Civ.App. — San Antonio 1973, no writ) appeal after remand 519 S.W.2d 230 (Tex.Civ.App. — 1974, writ ref’d n.r.e.).

Speaking Demurrer Prohibited. When a “special exception” fails to limit itself to the pleadings of the opposing party and interjects additional factual allegations to bolster the “special exception,” it becomes an impermissible “speaking demurrer.” Facts extrinsic to the opposing party’s pleadings must be asserted by way of the pleading of an affirmative defense and not by way of “special exception” or “speaking demurrer.” Sepulveda v. Kirshnan, 839 S.W.2d 132 (Tex.App. — Houston [14th Dist.] 1992) affirmed sub nom. Kirshnan v. Sepulveda, 916 S.W.2d 478 (Tex. 1995). Of course, a motion for summary judgment is a type of speaking demurrer — though one expressly permitted by Tex.R.Civ.P. 166a.

Standard of Review is Abuse of Discretion. Whether the trial court has erred in its ruling on special exceptions is measured by the “abuse of discretion” standard. “Abuse of discretion” is action without reference to any guiding rules and principles. Nichols v. Jack Eckerd Corp., 908 S.W.2d 5 (Tex.App. — Houston [1st Dist.] 1995, no writ ).

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