Perry v. Cohen, 07-0301.

CourtSupreme Court of Texas
Citation272 S.W.3d 585
Docket NumberNo. 07-0301.,07-0301.
PartiesEmory B. PERRY, et al., Petitioners, v. Darryl R. COHEN, et al., Respondents.
Decision Date14 November 2008
272 S.W.3d 585
Emory B. PERRY, et al., Petitioners,
Darryl R. COHEN, et al., Respondents.
No. 07-0301.
Supreme Court of Texas.
November 14, 2008.

Robert Joseph Killeen Jr., Jay Alan McKendree, Jennifer Marie Stierman Edwards, Patricia Hotalen, Christopher Michael Raney, Killeen & Stern, P.C., David W. Holman, The Holman Law Firm, P.C., Houston, TX, Robert Craig Stern, Killeen & Stern, P.C., New Orleans LA, for Petitioners.

Richard Douglas Yeomans, Boyce C. Cabaniss, Graves, Dougherty, Hearon & Moody, P.C., William J. Albright, Albright & Albright LLP, Jane M.N. Webre, Scott Douglass & McConnico, L.L.P., Patton G. Lochridge, Karen L. Watkins, Carlos Ramon

[272 S.W.3d 586]

Soltero, McGinnis Lochridge & Kilgore, L.L.P., Austin TX, for Respondents.


In this case, the trial court dismissed a suit with prejudice after determining that the plaintiffs' amended pleadings failed to comply with an order granting defendants' special exceptions. The court of appeals held that the plaintiffs waived error as to the merits of the order sustaining special exceptions because they did not separately challenge the order on appeal. We hold that the plaintiffs preserved error by challenging the merits of the special exceptions order in the body of their appellate brief, even though they did not separately and specifically challenge the order in their notice of appeal or in the issues of their appellate brief. We reverse and remand to the court of appeals.

Emory Perry and other shareholders (collectively, "shareholders") of RAMP Corporation filed suit against Darryl R. Cohen, Andrew M. Brown, and the law firm of Jenkens & Gilchrist (collectively, "Cohen") after RAMP filed for bankruptcy. The shareholders alleged that before RAMP declared bankruptcy, Cohen induced the shareholders to hold RAMP stock they owned or to purchase additional stock by misrepresenting the nature of RAMP's finances. The shareholders asserted claims for negligence, common law fraud, statutory fraud, and conspiracy. Cohen specially excepted to the shareholders' pleadings. The shareholders responded by filing a First Amended Petition, and later, a Second Amended Petition. The shareholders added claims for violations of the Texas Securities Act in the Second Amended Petition.

Cohen then reasserted the special exceptions previously filed and also objected to the shareholders' claims on the basis that the shareholders lacked standing to bring derivative claims belonging to RAMP. The trial court granted Cohen's special exceptions and entered an order directing the shareholders to replead the allegations supporting each shareholder's cause of action against each defendant, identify the maximum amount of damages each shareholder suffered, and identify any alleged harm separate from that allegedly suffered by RAMP. The order stated that failure to replead appropriately would result in dismissal of all the shareholders' claims.

The shareholders filed a Third Amended Petition. Cohen moved to dismiss the suit because the amended pleadings failed to comply with the trial court's prior order sustaining the special exceptions. Following a hearing, the trial court entered an order dismissing all the shareholders' claims with prejudice for (1) failing to specify the allegations supporting each cause of action by each plaintiff against each defendant, and (2) failing to specifically identify any alleged injury to the shareholders that was distinct from injury to RAMP.

The court of appeals affirmed. 272 S.W.3d 661, 2007 WL 28157. The court of appeals held,...

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