Monday, August 1, 2011

TRCP 91 - Failure to state viable cause of action is properly raised with special exceptions under Rule 91

Special exceptions under TRCP 91 are the procedural vehicle to challenge deficiencies in the opponent's pleadings, but may also be used to assert that the Plaintiff has not pleaded a valid cause of action at all. Trial court must generally provide an opportunity to amend upon sustaining special exceptions, at least when it would not be obviously futile. 
A party is generally required to file a special exception to challenge a defective pleading. Connolly v. Gasmire, 257 S.W.3d 831, 839 (Tex. App.—Dallas 2008, no pet.); see also TEX. R. CIV. P. 90 (providing that "[g]eneral demurrers shall not be used" and that any "defect, omission or fault in a pleading" is waived if not presented in writing to trial court prior to instruction or charge to the jury or, in non-jury case, prior to trial court signing the judgment). Texas Rule of Civil Procedure 91 provides:

A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.TEX. R. CIV. P. 91. 

The purpose of special exceptions is to furnish a party with a medium to force clarification of an adverse party’s pleadings when they are not clear or sufficiently specific. Connolly, 257 S.W.3d at 839.

Special exceptions may also be used to determine whether the plaintiff has stated a cause of action permitted by law. Mowbray v. Avery, 76 S.W.3d 663, 677 (Tex. App.—Corpus Christi 2002, pet. denied) (citing TEX. R. CIV. P. 91).

Standard of review of ruling on special exceptions

When reviewing a trial court’s dismissal of a cause of action following the sustaining of special exceptions, we review the propriety of both the trial court’s decision to sustain the special exceptions and the trial court’s order of dismissal. Perry v. Cohen, 285 S.W.3d 137, 142 (Tex. App.—Austin 2009, pet. denied) (citing Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ dism’d w.o.j.) (en banc)).

We review the pleadings to determine whether the trial court abused its discretion in granting special exceptions. Id. (citing Cole, 864 S.W.2d at 566 and Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000, no pet.)). The trial court has broad discretion in granting special exceptions to order more definite pleadings as a particular case may require. Id. (citing Burgess v. El Paso Cancer Treatment Ctr., 881 S.W.2d 552, 554 (Tex. App.—El Paso 1994, writ denied)). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). When reviewing the trial court’s decision on special exceptions, we accept as true all the material factual allegations and statements reasonably inferred from the allegations set forth in the pleadings. Id. (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994)).

If we determine that the trial court’s decision to grant the special exceptions was proper, we then review whether the decision to dismiss was appropriate. Connolly, 257 S.W.3d at 838 (citing Cole, 864 S.W.2d at 566).

Special exceptions must be specific 

Rule 91 requires that special exceptions "point out intelligibly and with particularity" the alleged defect or omission in the pleadings. TEX. R. CIV. P. 91. If special exceptions lack specificity in pointing out how the plaintiff’s allegations are faulty, they constitute a general demurrer, and general demurrers are prohibited by the Rules of Civil Procedure. See TEX. R. CIV. P. 90; see also Castano v. San Felipe Ag. Mfg. & Irrigation Co., 147 S.W.3d 444, 453 (Tex. App.—San Antonio 2004, no pet.) (holding that special exceptions failed "to state with specificity the elements lacking in [plaintiff’s] petition" and thus was general demurrer prohibited under rules and that grant of those special exceptions "would . . . permit the [defendants] to circumvent the protective features of the special exception procedure").

SOURCE: Houston Court of Appeals - 01-10-00412-CV - 7/28/11

The [ Plaintiffs ] rely on Muecke v. Hallstead to support their contention that [ Defendant's] special exceptions were impermissibly vague. In Muecke, the defendant’s special exceptions stated that the petition "‘fails to state any cause of action sufficient to give fair notice to [Defendant] of the claim(s) involved,’ fails to state ‘the circumstances constituting such an allegation with . . . any particularity,’ and ‘fail[s] to plead any of the elements constituting a cause of action for fraud or any other cognizable claim.’" 25 S.W.3d at 224. The court concluded that the special exceptions were not properly granted because they did not comply with Rule 91’s particularity requirement. Id.

Here, however, Option One’s second special exceptions went beyond a general allegation that the [ Plaintiffs ] failed to state a cause of action or plead sufficient facts. [ Defendant ]’s second special exceptions indentified specific causes of action and argued that the [ Plaintiffs' ] pleadings failed to allege an intentional tort that was independent of their claim for breach of contract. [ Defendant ] cited cases supporting its proposition that "before tort damages accrue from a contractual matter, liability must arise independent of the fact that a contract exists between the parties." [ Defendant ] also specially excepted on the ground that the [ Plaintiffs ]’ fraud and negligence claims, as they alleged breach of a duty that arose under a contract, "failed to allege a tort independent of the contract" between the parties. This argument from [ Defendant ]’s second special exceptions was sufficiently specific to "point out intelligibly and with particularity" the alleged defects in the [ Plaintiffs' ] fourth amended petition. See TEX. R. CIV. P. 91; see also Mowbray, 76 S.W.3d at 677 (holding that special exceptions may be used to determine whether plaintiff has stated cause of action permitted by law).

If the trial court properly granted special exceptions, and the plaintiff refused or failed to amend its petition in compliance with the trial court’s order, there is no error in the trial court’s dismissal of the cause of action. Perry, 285 S.W.3d at 142 (citing Cole, 864 S.W.2d at 566 and Sanchez v. Hunstville Indep. Sch. Dist., 844 S.W.2d 286, 290–91 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Furthermore, a party does not have a right to multiple opportunities to amend in the face of repeated grants of special exceptions, and the right to amend exists only if the defect is curable. See Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 335 (Tex. App.—Fort Worth 2005, pet. denied); Mowbray, 76 S.W.3d at 678. When a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review the issue of law under a de novo standard. Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 163 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)).

SOURCE: Houston Court of Appeals - 01-10-00412-CV - 7/28/11

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