17714 Bannister v. Tas Envtl. Servs.
| Docket Number | 05-22-00820-CV |
| Decision Date | 09 November 2023 |
| Parties | 17714 BANNISTER, Appellant v. TAS ENVIRONMENTAL SERVICES LP, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 429th Judicial District Court, Collin County Texas Trial Court Cause No. 429-044962020. Justices Carlyle and Kennedy participating.
Before Justices Carlyle, Smith, and Kennedy
In this appeal, 17714 Bannister challenges the trial court's dismissal of its breach of contract, negligence, nuisance and trespass claims against appellee TAS Environmental Services, L.P. (TAS). 17714 Bannister raises two issues contending the trial court erred in dismissing the claims based on either special exceptions or a Rule 91a[1] motion to dismiss. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
In its original petition, 17714 Bannister alleged that it leased office, warehouse, and yard space at 17714 Bannister Street in Dallas, Texas (the premises) to TAS beginning in August 2005. The lease was extended several times; TAS ultimately vacated the premises in March 2018. According to the petition, 17714 Bannister discovered that TAS stored hazardous materials on the premises, those materials leaked onto soil, carpet, and sheetrock, and the premises required extensive remediation. 17714 Bannister asserted claims against TAS for breach of contract and negligence. 17714 Bannister thereafter filed a first amended petition, which alleged the same operative facts and claims.
TAS filed special exceptions. In the only special exception relevant to this appeal, TAS asserted that 17714 Bannister was an assumed name for Dallascape, Inc., a company owned by Anthony Martellotto. Dallascape's assumed name certificate had expired while the case was pending therefore, TAS argued, Dallascape lacked capacity or legal authority to file suit as 17714 Bannister. TAS also contended that property records showed the premises was owned by Meredith Branstetter, trustee of the Bannister Trust. Following a hearing, the trial court granted the special exception and ordered that, within fourteen days, the petition be amended to include the plaintiff's correct legal name and facts establishing its capacity to sue. The order cautioned that the court would dismiss the lawsuit if the plaintiff failed or refused to timely amend and cure the defect.
17714 Bannister timely filed a second amended petition in response to the trial court's order. The petition identified Branstetter, trustee of the Bannister Trust d/b/a 17714 Bannister, as plaintiff and landlord and alleged that TAS leased the premises from the Bannister Trust, which conducted business under its informal common name of 17714 Bannister.
Approximately two months later, Branstetter, as trustee of the Bannister Trust d/b/a 17714 Bannister, filed a third amended petition. The petition added allegations that the premises was conveyed to the trust on March 29, 2006, and, as of that date, the trust was landlord of the premises, was identified in the lease as 17714 Bannister, and did business as 17714 Bannister.
A fourth amended petition was filed almost three months later. It named as plaintiffs: Branstetter, as trustee of (1) the Bannister Trust d/b/a 17714 Bannister, (2) the Sender Living Trust d/b/a 17714 Bannister, (3) the O'Malley Living Trust d/b/a 17714 Bannister, and (4) the Blair Living Trust d/b/a 17714 Bannister; and Dallascape d/b/a 17714 Bannister. The petition alleged that the trusts and Dallascape conducted business under the informal common name 17714 Bannister. A copy of the lease agreement attached to the fourth amended petition shows that TAS entered into the lease with 17714 Bannister. The petition further alleged that, beginning January 2001, Martellotto leased the premises to Dallascape d/b/a 17714 Bannister. Beginning August 2005, TAS leased the premises. On March 29, 2006, two of the three tracts that comprised the premises were conveyed to the Bannister Trust, and Martellotto assigned his role as landlord to the Bannister Trust. Also on March 29, 2006, two parcels of property, which together constituted a third tract of the premises, were conveyed to the Sender Living Trust and the O'Malley Living Trust and another tract adjacent to the premises was conveyed to the Blair Living Trust. The fourth amended petition also added new claims against TAS for negligence per se, trespass, and nuisance.
TAS, asserting that plaintiffs remained unable to identify which entity had entered into the lease agreement, filed a motion to dismiss, motion to strike, and second special exceptions. In response, 17714 Bannister filed a fifth amended petition. That petition alleges that the previously-named trusts, two new trusts (the Collin Living Trust d/b/a 17714 Bannister and the Kelly II Living Trust d/b/a 17714 Bannister), and Dallascape d/b/a 17714 Bannister operated a joint venture called 17714 Bannister at all times relevant to the lawsuit. 17714 Bannister, the joint venture, is the only named plaintiff in the fifth amended petition.
TAS amended its motion to dismiss, motion to strike, and second special exceptions. TAS moved to dismiss the lawsuit in its entirety (or, alternatively, that 17714 Bannister's claims be stricken) based on 17714 Bannister's failure to comply with the court's special exceptions order. TAS also sought dismissal under Rule 91a and a second special exceptions, arguing that the claims against it were barred by limitations, lack of privity, and lack of standing. On July 29, 2022, the trial court signed an order granting the motion and dismissing with prejudice all claims asserted against TAS.
This appeal followed. It is unclear from the trial court's order whether its dismissal of 17714 Bannister's claims was based on its special exceptions order, Rule 91a, and/or TAS's second special exceptions. In two issues, 17714 Bannister asserts the trial court erred in dismissing its claims on each ground.
In its first issue, 17714 Bannister contends that the trial court abused its discretion to the extent it dismissed 17714 Bannister's claims for failure to comply with the special exceptions order. 17714 Bannister asserts that it timely and adequately complied with the order and subsequently clarified its status as a joint venture.
A pleading must provide fair notice of the claim and relief sought such that the opposing party can prepare a defense. See TEX. R. CIV. P. 45, 47; Thomas v. 462 Thomas Fam. Props., LP, 559 S.W.3d 634, 639 (Tex. App.-Dallas 2018, pet. denied). The opposing party must be able to "ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that might be relevant." J.G. v. Jones, 660 S.W.3d 786, 789 (Tex. App.-Dallas 2023, pet. denied); Thomas, 559 S.W.3d at 639-40.
An opposing party may challenge the sufficiency of a pleading by special exceptions. TEX. R. CIV. P. 91; Gatten v McCarley, 391 S.W.3d 669, 673 (Tex. App.-Dallas 2013, no pet.). The purpose of special exceptions is to compel clarification of pleadings that are not sufficiently specific or fail to plead a cause of action. J.G., 660 S.W.3d at 789. "If a trial court grants special exceptions, the pleader may either amend [its] petition to cure the defect or stand on the pleadings and test the decision on appeal." Id. ().
Before a trial court may dismiss a plaintiff's case for pleading defects it must afford the plaintiff an opportunity to amend and cure the defects. Id. (citing Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex. App.-Fort Worth 1996, writ denied)); cf. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (). If the plaintiff makes a good faith attempt to amend its petition in response to an order granting special exceptions, the trial court may not dismiss the amended petition unless the defendant files special exceptions to the amended petition, the court sustains the new special exceptions, and the court gives the plaintiff the opportunity to amend the amended petition. J.G., 660 S.W.3d at 789-90; Humphreys, 938 S.W.2d at 753. We review the trial court's decision to dismiss for insufficient pleadings under an abuse of discretion standard. J.G., 660 S.W.3d at 789; Gatten, 391 S.W.3d at 673.
Citing Texas Rule of Civil Procedure 28, TAS's special exceptions complained that 17714 Bannister lacked capacity to sue. Rule 28 provides that an entity doing business under an assumed name may sue in its assumed or common name, but the entity's correct legal name may be substituted on motion by any party or on the trial court's own motion. TEX. R. CIV. P. 28. AN ENTITY'S CORRECT LEGAL NAME MUST BE SUBSTITUTED BEFORE JUDGMENT. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 53 (Tex. 2003). TAS argued that 17714 Bannister was an assumed name for Dallascape, but Dallascape's assumed name certificate had expired while this lawsuit was pending.[2] Further, property tax records reflected that Branstetter, as trustee of the Bannister Trust, owned the premises.
In response to TAS's special exceptions and the trial court's order, 17714 Bannister timely amended its pleading to identify itself as Branstetter, trustee of the Bannister Trust d/b/a 17714 Bannister and alleged that the trust was the landlord of the premises. The amendment did not correctly identify 17714 Bannister.[3] We nevertheless conclude that 17714...
To continue reading
Request your trial