Rodriguez v. Yenawine

• Decision Date: 05 October 1977
• Docket Number: No. 12568,12568
• Citation: 556 S.W.2d 410
• Parties: Esmeralda A. RODRIGUEZ, Appellant, v. Jan Paul YENAWINE, Appellee.
• Court: Texas Court of Appeals

Page 410

556 S.W.2d 410

Esmeralda A. RODRIGUEZ, Appellant, v. Jan Paul YENAWINE, Appellee.

No. 12568.

Court of Civil Appeals of Texas, Austin.

Oct. 5, 1977.

Rehearing Denied Oct. 19, 1977.

J. G. Hornberger, Laredo, for appellant.

Wayne H. Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.

O'QUINN, Justice.

Decision in this case, growing out of an automobile collision, turns on adequacy of pleadings.

Suit on behalf of Esmeralda A. Rodriguez, who is appellant, was filed in November of 1972 against Jan Paul Yenawine, claiming injuries received in an accident occurring in Travis County in April of 1974.

As plaintiff below, appellant alleged that the vehicle she was riding in as a passenger, shortly before the collision, was proceeding south on Interregional Highway 35 in Austin. Plaintiff described the accident in these allegations:

"Immediately in front of the vehicle in which the plaintiff was riding, but in the center lane . . . the defendant was also proceeding in a south-bound direction in a . . . motor vehicle which was pulling behind it a relatively small trailer. For reasons unknown to the plaintiff, the vehicle being driven by the defendant and the trailer being pulled by it suddenly swerved to its right into the path of the vehicle in which plaintiff was riding, and even though the driver of the vehicle in which plaintiff was riding attempted to avoid a collision, a collision between the said trailer and the vehicle in which the plaintiff was riding did occur, the two vehicles striking with great force and violence. As a result of such collision, and the hereinafter described acts of negligence on the part of the defendant, the plaintiff sustained the hereinafter described injuries and damages."

Plaintiff alleged that Defendant Yenawine ". . . was guilty of the following acts and omissions, each of which was negligence . . .

1. The defendant drove his vehicle at a speed and in a manner that was not reasonable or prudent under the circumstances then existing.

2. The defendant drove his vehicle at a speed and in a manner that he was not able to control the actions of the trailer which he was pulling.

3. The defendant drove a vehicle which was not equipped with tires that were in a reasonably safe and driveable condition."

Defendant answered plaintiff's suit by general denial in June of 1974, and later, after the case had been set down for trial on October 11, 1976, filed his first amended original answer on October 1, excepting to the "three allegations of negligence . . . (as being) . . . vague, indefinite, and do not apprise the defendant with sufficient particularity of the alleged conduct on his part which the plaintiff says is negligence."

Defendant further alleged that at the time of the accident he ". . . was confronted with an emergency situation which arose suddenly and unexpectedly and without negligence on his part, when the vehicle he was driving sustained a blowout, causing the vehicle and the trailer which he was pulling to go out of control."

At a hearing on defendant's special exceptions held October 7 the trial court sustained defendant's exceptions and granted plaintiff leave to amend. Plaintiff declined to amend, and the cause was dismissed by order entered October 12, 1976. Meanwhile, between the date of the hearing and date of the order of dismissal, the defendant on October 11 filed a supplemental answer in which exceptions to plaintiff's allegations of negligence were more specific than the exceptions filed in the first amended original answer. The order of October 12, by which suit was dismissed, recited that the court heard the exceptions on October 7 and that "after reading the pleadings and hearing the arguments of counsel thereon, the court is of the opinion that all the defendant's exceptions as contained in his amended original answer herein are well taken and should be sustained." (Emphasis added).

Appellant contends on appeal that only defendant's exceptions filed October 1, in the first amended answer, were sustained by the trial court, and that the more detailed exceptions, filed four days after the hearing, came too late and were not the exceptions sustained in the court's order of dismissal on October 12. Defendant as appellee insists that the supplemental answer was timely filed before entry of the order of dismissal, and that language in the order indicates the court considered the supplemental answer before ordering dismissal of the cause. Appellee also says the subsequent filing of more specific exceptions was pursuant to agreement between counsel for the parties.

Appellant brings two points of error. Under the first point appellant's position is that the trial court erred in sustaining the special exceptions, which were insufficient. Under the second point appellant urges error in dismissing the case on the basis that plaintiff's pleadings were adequate.

We will sustain appellant's second point of error and order the cause reinstated on the district court docket.

Broad discretion is vested in trial courts in hearing, construing, and sustaining special exceptions to pleadings, and the trial court's ruling on the exceptions will not be disturbed on appeal in absence of showing abuse of discretion resulting in injury. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App. Houston 1st 1972, no writ); U. S. Fidelity & Guaranty Co. v. Hernandez, 410 S.W.2d 224 (Tex.Civ.App. Eastland 1966, writ ref'd n. r. e.); Southern Underwriters v. Hodges, 141 S.W.2d 707 (Tex.Civ.App. Waco 1940, writ ref'd).

When special exceptions addressed to the pleadings are sustained, the pleader may amend to meet the exceptions or refuse to amend and test validity of the ruling on appeal. McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App. Beaumont 1972, writ ref'd n.r.e.), and cases there cited. If the plaintiff refuses to amend, as in the present case, an order dismissing the case with prejudice is proper. Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App. Corpus Christi 1970, writ ref'd n.r.e.). An appellate court must look to the rules of civil procedure and the body of case law which provides standards against which the pleadings are to be measured.

Under Rule 45, Texas Rules of Civil Procedure, pleadings ". . . Consist of a statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of defense." The Rule further provides, "That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole." (Emphasis added).

Rule 47 requires that a pleading contain ". . . a short statement of the cause of action sufficient to give fair notice of the claim involved . . ." (Emphasis added). McDonald characterizes the emphasis in Rule 45 as ". . . a thoroughly practical test: Does the pleading give adequate notice?" 2 McDonald, Texas Civil Practice, sec. 5.05, p. 13 (1970).

In defining fair notice and in measuring the adequacy of a pleading against that standard, Texas courts consistently indicate that to force a party to plead his entire case, with exactness, is not concordant with the spirit of the Rules governing pleading. The party excepting to a pleading has the burden to show that fair notice of the facts upon which the pleading is based has not been given the party excepting, and the burden is greater because the Rules of pleading uniformly condemn forcing a plaintiff to plead the evidence upon which plaintiff relies to prove the allegations of the pleadings. King v. Harris...