Failure to state a claim / cause of action as a basis for dismissal in the absence of a specific rule comparable to the federal rule

THE TEXAS WAY TO CHALLENGE PLEADINGS & PROCURE DISMISSAL: SPECIAL EXCEPTION
 

THE TEXAS APPROACH: SPECIAL EXCEPTION

 

“A special exception is a proper method to determine whether a plaintiff has pleaded a cause of action.”  Alpert v. Crain, Canton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).  “Generally, when the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading, unless the pleading defect is of a type that amendment cannot cure.”  Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).  In such a case, the court may render a judgment dismissing the case.  See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Alpert, 178 S.W.3d at 408.  “We review a trial court’s dismissal of a case upon special exceptions for failure to state a cause of action as an issue of law, using a de novo standard of review.”  Alpert, 178 S.W.3d at 405.  “We accept all of the plaintiff’s material factual allegations and all reasonable inferences from those allegations as true.”  Id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01067-CV – 5/10/12

Is the plaintiff entitled to a second shot, i.e. amendment of the petition? – It depends.

Generally, a trial court must give the pleader an opportunity to replead defective claims before dismissing them upon special exceptions.  See Baylor Univ., 221 S.W.3d at 635; Friesenhahn, 960 S.W.2d at 658.  However, the opportunity to amend is available only when the defect is curable.  See Baylor Univ., 221 S.W.3d at 635.  In this case, the petition reveals that the alleged factual basis underlying the suit is that the Locke Lord attorneys and the Thompson Coe attorneys filed a “pretend lawsuit” and procured a void temporary restraining order and a void temporary injunction.  As previously noted, when attorneys file suits and pleadings in the course of representing clients, they enjoy qualified immunity from liability to non-clients.  Given that the alleged acts of the attorney-defendants in this case consisted of filing suits and pleadings on behalf of their clients, amendment of the pleadings would not “cure” the underlying facts triggering qualified immunity.  See Alpert, 178 S.W.3d at 408 (affirming dismissal of conspiracy-to-defraud claim upon attorney’s special exceptions when the attorney’s alleged acts included filing lawsuits and alleging baseless claims).  We accordingly hold that the trial court did not err in dismissing Easton’s and Whatley’s claims without allowing an opportunity to amend.  See id.; see also Baylor Univ., 221 S.W.3d 635–36 (affirming trial court’s dismissal upon special exceptions of breach-of-contract claim barred by statute of frauds).  

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01067-CV – 5/10/12

CASE STYLE: Michael Easton and Dawn Johnson Whatley, Individually and as Executrix of the Estate of Perry Lee Whatley v. Shawn Phelan; Thompson Coe Cousins & Irons, LLP; David Cabrales; Rachel Hope Stinson; Locke Lord Bissell & Liddell, LLP. -- Appeal from 190th District Court of Harris County