Today’s Blog in the area of Texas Collections and specifically Dallas Commercial Collections, is in the area of “Special Exceptions”. This is a Texas statutory creation in which one party can inform the opposing party of defects in its pleadings so it can cure them by amendment, if possible. By filing Special Exceptions, the opposing party identifies pleading defects that should be remedied before a substantive response is required. Unless the pleading is challenged by Special Exceptions, the defects are waived. The applicable Texas rules are Tex. R. Civ. Pro. 90 and 91.
There are two types of pleading defects that may be subject of Special Exceptions: defects in form and defects in substance. An example of a defect in form would be that a Plaintiff in its petition did not verify its petition when necessary. If a Plaintiff did not plead the applicable discovery level in the original petition, Defendant may file Special Exceptions requiring Plaintiff to do so.
Q. How much information am I obligated to put in my Petition?
On the other hand, there are defects in substance. These are the usual subject of Special Exceptions. The general rule in Texas is that courts follow the “fair notice” standard for pleading, which looks at whether the opposing party can ascertain from the face of the pleading, the nature and basic issues of the controversy, and what testimony will be relevant. Therefore, if a Plaintiff pleads a cause of action only in general terms, a Defendant may file Special Exceptions to require Plaintiff to plead more specifically. Rule 45 does not require Plaintiff to describe the evidence in detail in Plaintiff’s petition. The court’s option at that point, upon filing a Special Exception, that the petition is too general is to order Plaintiff to amend its petition to allege facts more specifically, or requiring Defendant to obtain the additional facts through discovery. See Horizon v. Auld 34 SW3d 887 (Tex. 2000)
If there are inadequate allegations in the petition, if Plaintiff does not plead all elements of the cause of action, Defendant may specially except asking the Plaintiff to plead the specific element more specifically. A Special Exception must, of course, specifically identify which element is missing. This is a pleading defect, which is subject to a Special Exception, and subsequent amendment. See Trevino v. Ortega 969 SW2d 950 (Tex. 1998).
If Plaintiff’s suit is not permitted by law, that is, there is no viable cause of action, Defendant may file Special Exceptions and a Motion to Dismiss. Also, if a jurisdictional defect is a pleading defect that could be cured by an amendment, it should then be challenged by filing a Special Exceptions, not by the filing of a plea to the jurisdiction or by filing of the Motion for Summary Judgment.
Under applicable Texas law and, as usually the case in Texas collection matter, a Plaintiff may plead for unliquidated damages under Rule 47, by stating that the damages sought are within the jurisdictional limits of the court. In that case, a Defendant may Specially Except, therefore, requiring Plaintiff to state the maximum amount of damages. When a Plaintiff pleads that the damages are “at least” a certain amount, that is the same as pleading unliquidated damages, and unless Defendant specially excepts, Plaintiff can recover more than its “at least” pleadings.
All Special Exceptions must be in writing. There are several cases where counsel specially excepted orally, but the courts found that that did not comply with the rules. When drafting Special Exceptions, a Defendant is required to identify the particular part of the pleading that is being challenged, and specifically point out the particular defect or omission, obscurity, duplicity, generality, or other insufficiency, under Rule 91. The Defendant should identify the defective paragraph by number, state to the court why it is defective and explain how it can be corrected. Previously, a Defendant could generally allege that the petition allegations were vague and indefinite and do not state a cause of action, but this does not identify the defect and is not sufficient. It is not necessary that Special Exceptions be verified. The party who is challenging the pleadings via Special Exceptions is required to secure a hearing on the exceptions or they are waived. See Muecke v. Hallstead (San Antonio 2000). Also Spillman v. Simkins (San Antonio 1988).
The general rule is that Special Exceptions should be filed with the answer or shortly thereafter, and by Plaintiff shortly after Defendant files the answer. The following are examples of
Special Exceptions which are not valid objections to pleadings.
1. “The pleadings do not set out enough factual details”.
2. “The pleadings do not state a cause of action”.
3. “The pleadings do not allege all elements necessary to support a cause of action”.
4. “Plaintiff’s pleadings allege matters that are immaterial, prejudicial, and inflammatory”.
5. “Plaintiff did not attach a copy of the contract to its petition”.
6. “The damage allegations do not specify the dollar amount for each element of special damages”.
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*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion
Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate