Muecke v. Hallstead
| Decision Date | 30 June 1999 |
| Docket Number | 049700483CV,4 |
| Parties | In the Fourth Court of Appeals San AntonioAnnette S. MUECKE, Appellant v. B. Thomas HALLSTEAD, Appellee From the 45th Judicial District Court, Bexar County, Texas Trial CourtHonorable David Berchelman, Jr., Judge Presiding1 Opinion by: Sarah B. Duncan, Justice Dissenting opinion by: Alma L. Lpez, Justice Sitting: Alma L. Lpez, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: |
| Court | Texas Court of Appeals |
B. Thomas HALLSTEAD, Appellee
From the 45th Judicial District Court, Bexar County, Texas
Honorable David Berchelman, Jr., Judge Presiding1
Opinion by: Sarah B. Duncan, Justice
Sitting: Alma L. Lpez, Justice
Delivered and Filed: June 30, 1999
Annette Muecke appeals the trial court's judgment dismissing her lawsuit against her former attorney, Thomas Hallstead. We hold the trial court abused its discretion in dismissing Muecke's suit and, therefore, reverse the trial court's judgment and remand the cause for further proceedings.
Muecke filed an original petition against Hallstead. In response, Hallstead specially excepted to Muecke's petition because it failed to (1) specify the maximum amount of damages she claimed, and (2) give fair notice of her claims or plead either the elements of fraud or facts constituting fraud. These special exceptions were sustained, and Muecke was ordered to "replead a cause of action for legal malpractice and fraud, and state therein the maximum amount of damages alleged."
Muecke timely filed an amended petition stating the maximum amount of damages she sought. But Muecke's amended petition was otherwise identical to her original petition. Hallstead then moved to dismiss Muecke's case on two grounds: (1) her amended petition failed to meet the special exceptions order and (2) her amended petition failed to allege her claims were not barred by applicable statutes of limitations. The trial court granted Hallstead's motion without stating the reason for its ruling and then signed a dismissal order on January 9, 1997. Muecke appealed.
Hallstead has not responded to the merits of Muecke's brief. He instead argues Muecke waived her complaints by, for example, failing to include jump cites in her case citations and provide record references each time she references a pleading or order as required by Rule 38.1, TEX. R. APP. P. We disagree.
Muecke's original and amended briefs substantially comply with the requirements of Rule 38; they clearly identify the orders she appeals, state the proper standard of review, and cite to the ` relevant rules of civil procedure and pertinent authority. No more is required. See TEX. R. APP. P. 38.9. We therefore reject Hallstead's waiver argument.
If the trial court sustains special exceptions, the pleader may amend to meet the exceptions or choose to stand on her pleading and test the validity of the trial court's ruling on appeal. McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex. Civ. App.-Beaumont 1972, writ ref'd n.r.e.). On appeal, we take as true the factual allegations in the plaintiff's pleading and review the trial court's rulings under an abuse of discretion standard. Thompson v. El Centro Del Barrio, 905 S.W.2d 356, 358 (Tex. App.-San Antonio 1995, writ denied). An abuse of discretion will be found if the trial court fails to correctly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Muecke contends the trial court's order dismissing her case cannot be supported by her failure to replead to meet the order sustaining Hallstead's second special exception because the exception was legally insufficient. We agree.
A special exception may be used to object to a petition that is legally insufficient. Thompson, 905 S.W.2d at 357. However, an exception of this nature must "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 rules thus prohibit an exception generally alleging a petition fails to state the elements of a cause of action or give fair notice of the claims. TEX. R. CIV. P. 90.
In his second exception, Hallstead generally alleged Muecke's petition "fails to state any cause of action sufficient to give fair notice to Hallstead of the claim(s) involved" and "fail[s] to plead any of the elements constituting a cause of action for fraud or any other cognizable claim." However, Muecke's petition alleged facts sufficient to give fair notice of her professional liability claim and therefore shifted the burden to Hallstead to point out specific defects. Because Hallstead's second exception fails to meet this requirement, the trial court abused its discretion in sustaining it. Accordingly, Muecke's failure to replead in response to the trial court's order sustaining Hallstead's second special exception cannot support the trial court's order dismissing Muecke's case. See, e.g., Spillman v. Simkins, 757 S.W.2d 166, 168-69 (Tex. App.-San Antonio 1998, no writ); Villarreal v. Martinez, 834 S.W.2d 450, 452 (Tex. App.-Corpus Christi 1992, no writ); McCamey, 484 S.W.2d at 154.
Muecke next contends the trial court's dismissal order cannot be supported by her failure to plead facts demonstrating her cause of action was not barred by limitations because Hallstead did not specially except to her petition on this ground. We agree in part.
A defendant may specially except to a petition affirmatively alleging facts establishing a claim is barred by limitations; if the exception is sustained and the plaintiff fails to replead to meet the trial court's order, the trial court may render judgment against the plaintiff. E.g., Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974).
Muecke's petition did not plead facts establishing her claims were barred by limitations. Nor did Hallstead specially except to Muecke's petition on this ground. Accordingly, limitations will not support the trial court's dismissal order.
Because neither ground stated in Hallstead's motion supports the trial court's dismissal order, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
Publish
Sitting: Alma L. Lpez, Justice
Because I believe the trial judges who ruled respectively in favor of appellee's special exceptions and motion to dismiss were properly exercising their broad discretionary powers, I respectfully dissent.
Appellant filed pro se a petition seeking unspecified damages against her fourth or fifth attorney in what had apparently begun as an effort to modify child support and forestall a foreclosure on her homestead while her bankruptcy proceedings were pending. Appellee answered with a general denial, the affirmative defense of limitations, two special exceptions, and a counterclaim that the lawsuit was frivolous because it was barred by the statute of limitations, that the claims were unfounded, having no basis in fact or law, brought in bad faith and solely for purposes of harassment, and were an abuse of the legal system.
The trial court granted appellee's special exceptions and ordered appellant to replead within thirty days to specify the maximum amount claimed and state a cause of action for legal malpractice and fraud. Appellant filed a first amended original petition which simply added a prayer for an award of damages in the amount of $750,000 to the original allegations in response to Special Exception No. 1. Appellee then filed a motion to dismiss with prejudice on the grounds that appellant failed to specify a cause of action for legal malpractice and failed to specify how any cause now being asserted would not be barred by limitations. The motion was granted. Two months later another judge denied appellant's motion to set aside the dismissal and yet a fourth judge considered and denied a motion for rehearing.
A petition sufficiently pleads a recognized cause of action when it gives "fair and adequate notice of the facts on which the plaintiff pleader bases his claim." See Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982); TEX. R. CIV. P. 47(a) (). Generally speaking, the function of a special exception is to furnish the adverse party a means by which he may force clarification of and specifications in pleadings that are vague, indefinite or uncertain. TEX. R. CIV. P. 91; Farias v. Besteiro, 435 S.W.2d 314 (Tex. Civ. App.-Corpus Christi 1970, writ ref'd n.r.e.). A special exception may also question the sufficiency in law of the plaintiff's petition. The allegations of a petition must be accepted as true in testing its sufficiency by special exception. McFarland v. Reynolds,513 S.W.2d 620, 626-27 (Tex Civ App.-Corpus Christi 1974); City of Roma v. Starr County, 428 S.W.2d 851 (Tex. Civ. App.-San Antonio 1968, writ ref'd n.r.e.); Grimes v. Talbot, 233 S.W.2d 206 (Tex. Civ. App.-Galveston 1950, writ ref'd n.r.e.). The trial court, in considering special exceptions is accorded broad discretion. See City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 733, 783 (Tex. App. -Dallas 1992, writ denied) (); see also W. Wendell Hall, Standards of Review, 29 ST. MARY'S L.J. 351, 385 (1998).
When special exceptions are sustained and the pleader elects to stand on his pleadings, the trial court may dismiss the suit if the allegations fail to state a cause of action. Geochem Lab., Inc. v. Brown & Ruth Lab., Inc., 689 S.W.2d 288, 289-90 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). Pleadings alone constitute the appellate record to be considered in determining the propriety of an order of dismissal for failure to amend. Mitchell v. Amarillo Hosp. Dist.,...
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