law-special-exceptions TRCP 90 91 | sufficiency of pleadings and motions | pleading deficiency
SPECIAL EXCEPTIONS CASE LAW
See TEX. R. CIV. P. 90. In the absence of special exceptions, a petition should be construed liberally
in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).
In Texas, the standard for pleading is "fair notice." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d
887, 897 (Tex.2000). A petition is sufficient if it gives the defendant "fair and adequate notice" of the
facts upon which the pleader bases its claim. Id. (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex.
1982)); see also Howell v. Mauzy, 899 S.W.2d 690, 707 (Tex.App.-Austin 1994, writ denied) (noting
that pleadings will be construed to do substantial justice in accordance with Texas Rule of Civil
Procedure 45). The standard is whether the pleading gives the opposing party sufficient information to
enable it to prepare its defense thereto. Id.
DISMISSAL ON SPECIAL EXCEPTIONS - REVIEW ON APPEAL
When we review a trial court's dismissal of a cause of action after special exceptions have been sustained, we
review the propriety of both the trial court's decision to sustain the special exceptions and its order dismissing
the claim. Perry v. Cohen, 285 S.W.3d 137, 142 (Tex. App.-Austin 2009, pet. denied). We review the trial court's
decision to sustain the special exceptions for an abuse of discretion. Id. Special exceptions are used to identify
defects in a pleading—including both vagueness and the failure to state a cognizable cause of action— to allow
the opposing party to cure them by amendment, if possible. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d
887, 897 (Tex. 2000); Mowbray v. Avery, 76 S.W.3d 663, 677 (Tex. App.-Corpus Christi 2002, pet. denied). The
trial court has broad discretion in granting special exceptions to order more definite pleadings as a particular
case may require. Perry, 285 S.W.3d at 142. We review de novo the trial court's legal conclusions about whether
the petition states a cause of action. Id. If the trial court properly granted special exceptions, and the plaintiff
refused or failed to amend his petition in compliance with the court's order, the trial court does not err by
dismissing the cause of action. Id.
COURT OF APPEALS CASES
EMORY B. PERRY, ET AL. v. DARRYL R. COHEN, ET AL.; from Travis County;
3rd district (03-05-00786-CV, 285 SW3d 137, 03-26-09, pet. denied Sep. 2009)
(concurring opinion) (Justice Hecht not sitting)(special exceptions)
We consider this appeal on remand from the supreme court. See Perry v. Cohen, 272 S.W.3d 585, 586 (Tex.
2008) (per curiam). Appellants contend that the trial court erred in granting appellees' special exceptions and in
dismissing appellants' claims. Because we conclude the trial court did not err in granting appellees' special
exceptions or in dismissing appellants' claims with prejudice, we affirm the trial court's orders.
CONCLUSION Because we conclude there was no error in the trial court's order granting special exceptions and
no error in the trial court's order dismissing the shareholders' claims with prejudice, we affirm the trial court's
RULE 91 | SPECIAL EXCEPTIONS | SUFFICIENCY OF PLEADINGS
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
RULE 90. WAIVER OF DEFECTS IN PLEADING
General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance,
which is not specifically pointed out by exception in writing and brought to the
attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before
the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account;
provided that this rule shall not apply as to any party against whom default judgment is rendered.
PURPOSE OF SPECIAL EXCEPTIONS
The purpose of a special exception is to compel clarification of pleadings when the pleadings
are not clear or sufficiently specific or fail to plead a cause of action. Friesenhahn v. Ryan, 960
S.W.2d 656, 658 (Tex. 1998). 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. See id. A trial court has broad discretion in ruling on special exceptions.
See, e.g., West Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558, 583 (Tex. 2003).
TRCP 301 | JUDGMENT MUST CONFORM WITH THE PLEADINGS |
CANNOT GRANT MORE RELIEF THAN PLEADED FOR
RULE 301. JUDGMENTS
The judgment of the court shall conform to the pleadings, the nature of the case proved and the
verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or
equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto
if a directed verdict would have been proper, and provided further that the court may, upon like motion and
notice, disregard any jury finding on a question that has no support in the evidence. Only one final judgment
shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper
case, be given for or against one or more of several plaintiffs, and for or against one or more of several
defendants or intervenors.
MULTIPLE CLAIMS RULE
Rule 48 provides: “A party may set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements
are made in the alternative and one of them if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many
separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable
grounds or both.” TEX. R. CIV. P. 48.
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