McCamey v. Kinnear
| Decision Date | 29 June 1972 |
| Docket Number | No. 7365,7365 |
| Parties | Reba L. McCAMEY, Appellant, v. William E. KINNEAR, Appellee. |
| Court | Texas Court of Appeals |
B. J. McGinnis, Beaumont, for appellant.
Adams & Browne, Beaumont, for appellee.
Plaintiff appeals from a judgment of dismissal of his suit wherein he sought to recover of the defendant attorney's fees paid to defendant in connection with a patent application. Plaintiff also sought recovery of certain expenses incurred by reason of the alleged inaction of defendant. At the outset we note affirmatively that while plaintiff has prosecuted the appeal with diligence, such comment does not apply to his trial court actions.
On the day the case was specially set for trial upon the 'try or dismiss' docket, defendant filed a motion to dismiss plaintiff's cause of action, the allegations being set out in the margin. 1
The court's order, entered on January 31, 1972, recited that the defendant's motion to dismiss having been heard, and 'it appearing to the Court that said motion should be in all things granted; it is therefore ordered, adjudged and decreed that defendant's motion to dismiss be in all things granted.'
This order of dismissal was preceded by some unusual maneuvers which require mention at this point. Defendant leveled many exceptions to plaintiff's original petition, some of which were sustained by an order entered May 4, 1970, defendant's exceptions to such action being duly noted. Although plaintiff did not file amended pleadings until the very day of the dismissal (a matter which will be mentioned later), the docket sheet in our record shows that defendant procured three continuances, the last being on October 7, 1971. Upon this latter date, the trial court entered a specific and detailed order setting the case for trial on January 31, 1972, and advised counsel that it would be tried or dismissed upon said date 'depending upon any announcements which may or may not be made by counsel at such time.'
On January 31, 1972, the date set for trial, plaintiff filed what he denominated a 'Trial Amendment' but which was in fact an amended original petition. See Rule 71, Texas Rules of Civil Procedure. Our record does not reveal that leave was granted to file the instrument, whatever it might have been, under either Rule 63 or Rule 66, nor does the record show that such instrument ever came to the attention of the trial court before the order of dismissal was entered. On the other hand, the record is equally silent as to any motion to strike the pleading filed in violation of the rules just mentioned. See in this connection 2 McDonald, Texas Civil Practice (1970 Rev.Vol.), § 8.06, pp. 323, et seq.
Plaintiff timely gave notice of appeal from the order of dismissal, duly perfected his appeal, and now assigns many points of error. We do not find it necessary to discuss all of such points of error under our view of the record.
Plaintiff devotes much of his brief to the proposition that the trial court erred in granting the defendant's motion to dismiss (Footnote 1), contending that such motion was a general demurrer in legal disguise which is forbidden by Rule 90. Under our view of the record, we do not reach the point. Instead, we turn to the controlling issue in the appeal, the action of the trial court upon the exceptions.
When special exceptions addressed to a pleading are sustained, the party has two options available to him: (a) he may amend to meet the exceptions and this he may do as a matter of right; or, (b) he may stand upon his pleadings, refuse to amend, and test the validity of the ruling upon appeal. Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex.Civ.App., Houston, 1964, no writ); M. C. Winters, Inc. v. Lawless, 407 S.W.2d 275, 277 (Tex.Civ.App., Dallas, 1966, error dism.); and Farris v. Nortex Oil & Gas Corporation, 393 S.W.2d 684, 690 (Tex.Civ.App., Texarkana, 1965, error ref. n.r.e.).
A reasonable time should be allowed a party desiring to amend to conform to the ruling upon the special exceptions; but this is a matter within the sound discretion of the court not to be overthrown except for an abuse of discretion. Farias v. Besteiro, 453 S.W.2d 314, 317 (Tex.Civ.App., Corpus Christi, 1970, error ref. n.r.e.), and cases therein cited. The plaintiff, being ever under the duty of prosecuting his suit with diligence under the penalty of having it dismissed for want of prosecution, must also use diligence in amending his pleadings after an order sustaining exceptions. 4 McDonald, Texas Civil Practice (1971 Rev.Vol.), § 17.18, pp. 101--102 . In our case, the plaintiff waited nearly twenty months--and through three trial settings--before filing his amended pleading upon the very day the case was set upon the 'try or dismiss' docket.
Under the circumstances of this case, we hold that the long unexplained delay in filing the amended pleadings amounted in law to a refusal to amend. When a party stands firm on his pleadings, as we have held the plaintiff did in this case, the trial court may dismiss the cause if the remaining allegations fail to state a cause of action. Rutledge v. Valley Evening Monitor, 289 S.W.2d 952, 953 (Tex.Civ.App., San Antonio, 1956, no writ) and City of Roma v. Starr County, 428 S.W.2d 851, 853 (Tex.Civ.App., San Antonio, 1968, error ref. n.r.e.).
Having reviewed the remnants of the original petition, after the exceptions had been sustained, we are of the opinion that the remaining allegations of the petition failed to state a cause of action. The trial court was authorized, under these circumstances, to dismiss the case. Rutledge v. Valley Evening Monitor, supra; Wiseman v. Zorn, 309 S.W.2d 253, 259 (Tex.Civ.App., Houston, 1958, no writ).
The order sustaining the special exceptions was interlocutory in nature and plaintiff had no right of appeal therefrom. Mueller v. Banks,317 S.W.2d 254, 255 (Tex.Civ.App., San Antonio, 1958, no writ). However, when the court entered the order of dismissal on January 31, 1972, following plaintiff's failure to amend within a reasonable time, plaintiff's right to appeal was then exercised. We now turn to the validity of the special exceptions and review the action of the trial court in...
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...we then review the propriety of the trial court's decision to dismiss the cause of action. See McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.). An appellant complaining of the dismissal of a cause of action following the sustaining of special excepti......
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