COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-314-CV
GARY
FORD AND BLINDA FORD APPELLANTS
V.
PERFORMANCE
AIRCRAFT SERVICES, INC. APPELLEES
AND
ROBERT JONES
------------
FROM
THE 17TH DISTRICT COURT OF TARRANT COUNTY
OPINION
This
case involves the propriety of the trial court’s order dismissing appellants
Gary and Blinda Ford’s negligence, failure to warn, and strict liability
claims against appellees Performance Aircraft Services, Inc. and Robert Jones
for the Fords’ failure to amend their pleadings within the time specified by
the trial court. In four issues, the Fords contend that the trial court abused
its discretion by sustaining appellees’ special exceptions to the Fords’
petition, dismissing the Fords’ case without trying lesser sanctions first,
and dismissing the Fords’ case in light of their untimely first amended
petition, which was filed before the trial court entered its dismissal order,
and that it denied them due process. We affirm.
Background Facts
The
Fords filed suit against appellees alleging negligence, failure to warn, and
strict liability in connection with Performance Aircraft’s use of chemicals to
clean airplane parts in a hangar where Gary Ford worked.1
Appellees filed special exceptions to the Fords’ petition, alleging that the
petition failed to state the maximum amount of damages pled in accordance with
Texas Rule of Civil Procedure 47; that it failed to give fair notice of the
Fords’ claims against Jones, the president of Performance Aircraft, because it
did not allege any facts that would support imposing liability upon Jones in his
individual capacity; and that it did not give appellees fair notice of the
products the Fords claimed were defective. The trial court granted appellees’
special exceptions and gave the Fords nine months to replead. The trial
court’s order stated that if the Fords failed to replead within nine months,
the case would be dismissed automatically.
Eleven
days after the nine-month deadline for repleading, on June 16, 2004, the Fords
filed a motion to extend the time to amend the petition and to retain the case
on the court’s docket.2 In their motion, the
Fords contended that they missed the deadline due to their counsel’s
inadvertence in failing to calendar the deadline. Thus, they acknowledged that
they failed to timely replead but asked the court not to dismiss their case
because their failure was due to accident or mistake.3
The Fords filed a first amended petition on June 23, 2004.
At
the hearing on the Fords’ motion, the Fords’ attorney testified that during
the nine-month period, the Fords and appellees were trying to work out discovery
issues. In addition, he testified that this case was also the subject of
an ongoing workers’ compensation claim in Louisiana and that the Louisiana
case had taken precedence over this case since the beginning of 2004.
Counsel did not discover that the deadline had been missed until June 16, when
he received a copy of a letter from opposing counsel to the trial court asking
the court to sign a judgment of dismissal.
Appellees’
counsel “stipulate[d] [to] mistake within the Craddock standard,” but stated
that “[t]he only reason we are here today is they [the Fords] still have not
pleaded in conformity with the order granting the special exceptions.”
Specifically, he contended that the untimely amended petition did not state the
allegedly defective products with sufficient specificity and asked the court to,
“at a minimum, dismiss[] . . . the claims as they relate to the product
allegations.”
The
trial court determined that the case had been dismissed automatically on June 5,
2004 “due to [the Fords’] failure to replead their Petition” and signed an
order dismissing the case without prejudice.
Analysis
In
their first, second, and third issues, the Fords claim that the trial court
abused its discretion in sustaining the special exceptions and in dismissing the
case.
Review
of a trial court’s dismissal of a case based on the grant of special
exceptions requires examination of two distinct rulings: 1) the decision to
sustain the special exceptions; and 2) the decision to dismiss the cause of
action. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus Christi
2002, pet. denied). If the decision to sustain the special exceptions was
proper, we then review whether the decision to dismiss was appropriate. Id.
An appellant must specifically challenge both rulings or face waiver of the
respective issue not challenged. Id. Thus, we will initially address the
Fords’ first issue challenging the trial court’s decision to grant
appellees’ special exceptions.
Our
supreme court has held that
Texas follows a “fair notice” standard for pleading, which looks to whether
the opposing party can ascertain from the pleading the nature and basic issues
of the controversy and what testimony will be relevant. . . . “A petition is
sufficient if it gives fair and adequate notice of the facts upon which the
pleader bases his claim. The purpose of this rule is to give the opposing party
information sufficient to enable him to prepare a defense.”
Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000) (quoting Roark
v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)); see Tex. R. Civ. P. 45, 47. A party
may object to a defect of form or substance in a pleading by special exceptions,
which 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. 90, 91.
We
review a trial court’s order sustaining special exceptions for abuse of
discretion. Mowbray, 76 S.W.3d at 678. The test for abuse of
discretion is whether the court acted without reference to any guiding rules and
principles or whether the act was arbitrary and unreasonable. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial
court has broad discretion in ruling on special exceptions. Mowbray,
76 S.W.3d at 678-79.
Appellees’
first special exception objected to the Fords’ failure to state the maximum
amount of monetary damages sought in their petition. This is a proper
special exception; therefore, the trial court did not abuse its discretion in
sustaining it. See Tex. R.
Civ. P. 47; McCaskell v. Methodist Hosp., 856 S.W.2d 519, 520
(Tex. App.—Houston [1st Dist.] 1993, no writ).
Appellees’
second special exception complains that the Fords’ original petition does not
give fair notice of the Fords’ claims against Jones because it does not allege
any facts upon which Jones would be liable in his individual capacity for
actions taken in his official capacity as president of Performance Aircraft, nor
does it state any theory upon which the Fords seek to hold Jones liable in an
individual capacity. The only places in which Jones is named in the
original petition are the preamble, the paragraph providing his address for
service, and the closing asking for a trial. Although the original
petition refers to “Defendants” throughout, the introduction to the part of
the negligence paragraph setting out specific acts and omissions states that
“Defendant Performance Aircraft Services, Inc. and its servants, employees and
agents, acting within the course and scope of their employment” were negligent
with respect to the listed acts and omissions. Nothing in the original
petition indicates on what basis the Fords sought to impose liability on Jones
in his individual capacity. Cf. Schlueter v. Carey, 112 S.W.3d 164,
169 (Tex. App.—Fort Worth 2003, pet. denied) (liberally construing pleading
alleging that businesses were owned by same person and had not been operated as
separate entities as alleging liability under alter ego theory in absence of
special exception). We hold that the trial court did not abuse its
discretion in sustaining appellees’ second special exception.
Appellees’
third special exception contends that the Fords’ original petition does not
give fair notice of the products that the Fords claim are defective; thus,
appellees have no way of notifying the manufacturers of those products that a
strict products liability case has been filed against appellees. See
Tex. Civ. Prac. & Rem. Code Ann.
§ 82.002 (Vernon 2005) (providing for indemnification of seller of defective
products by manufacturer). Knowing the specific products that the Fords
allege appellees were negligent in exposing Gary to is information necessary to
appellees’ ability to defend against the allegation. For instance,
appellees might contend that they did not use the alleged products. In
addition, to obtain indemnification from the manufacturers of the products,
appellees would need to know which products the Fords allege caused Gary’s
chemical sensitivities so that they could identify the manufacturers.
Accordingly, we hold that the trial court did not abuse its discretion in
sustaining appellees’ third special exception. We overrule the Fords’
first issue.
Having
determined that the trial court did not abuse its discretion in sustaining
appellees’ special exceptions, we next address whether the trial court abused
its discretion in dismissing the case. A trial court may not dismiss a
case after sustaining special exceptions without first giving the nonexcepting
party an opportunity to amend its pleadings. Friesenhahn v. Ryan,
960 S.W.2d 656, 658 (Tex. 1998); Marts v. Transp. Ins. Co., 111 S.W.3d
699, 706 (Tex. App.—Fort Worth 2003, pet. denied). The nonexcepting
party may then either 1) amend the pleadings to cure the defect or 2) stand on
the pleadings and test the trial court’s decision on appeal. Mowbray,
76 S.W.3d at 678. If the pleader fails or refuses to amend the pleading,
the trial court may dismiss the case. Holt v. Reproductive Servs., Inc.,
946 S.W.2d 602, 604 (Tex. App.—Corpus Christi 1997, writ denied); Cole v.
Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ dism’d w.o.j.)
(en banc). If the remainder of the pleading does not state a cause of
action, the trial court does not err in dismissing the entire case. Mowbray,
76 S.W.3d at 678; Cole, 864 S.W.2d at 566. The right to amend does
not extend to the privilege of multiple opportunities to amend in the face of
repeated grants of special exceptions. Mowbray, 76 S.W.3d at 678.
The
Fords contend the trial court abused its discretion in dismissing the case
because it did not attempt lesser sanctions first and because they filed a first
amended petition after the nine-month deadline but before the trial court signed
an order of dismissal. We disagree.
This
case is very similar to that of Cruz v. Morris, 877 S.W.2d 45 (Tex.
App.—Houston [14th Dist.] 1994, no writ). In that case, the trial court
sustained the appellee’s special exception challenging the failure of the
appellant’s pleading to state the maximum amount of damages claimed. Id.
at 46. The trial court ordered the appellant to replead within thirty days
or face dismissal of the damages parts of her pleading Id.
The appellant failed to file an amended pleading within the thirty-day period,
and the trial court dismissed the sections of her pleadings related to
damages. Id.
One
day after the dismissal, the appellant filed an amended pleading setting out
specific damages amounts. Id. She later filed a motion to reinstate the
parts of her pleading that the trial court had stricken, arguing that her
failure to replead was “due to clerical error and attorney oversight, not a
conscious intent to disregard the order.” Id. The trial
court denied the motion. Id. The appellees did not file a
motion to dismiss the appellant’s pleadings until over a year later when the
appellant filed a first supplemental petition increasing the damages amounts she
was claiming. Id. At that time, the appellees moved to
dismiss both petitions, and the trial court granted the motion because without
any damages allegations, the appellant’s pleadings failed to state a cause of
action. Id.
The
Houston Fourteenth District Court of Appeals held that “the trial court’s
actions, while perhaps severe, [were] within the bounds of her discretion in
managing her docket.” Id. at 47. The appellate court noted
that the trial court gave the appellant notice that it would strike the damages
portions of the pleading if she did not comply with the repleading deadline,
that the appellant did not object to the length of time given to replead, and
that the trial court had fulfilled its obligation to allow the appellant an
opportunity to replead. Id. at 48. The appellate court
stated, “Although we may disagree with the severity of the action, we cannot
say that such action is so arbitrary as to warrant our finding an abuse of
discretion.” Id.
Later,
the Houston Fourteenth court relied on Cruz in Continental Casing
Corp. v. Siderca Corp., 38 S.W.3d 782, 790-91 (Tex. App.—Houston [14th
Dist.] 2001, no pet.), in which it held that the trial court did not abuse its
discretion in striking Continental’s second and third petitions for failure to
replead within seven days as ordered by the trial court. Although
Continental argued that its untimely repleading should be excused because the
trial court’s order giving it seven days to replead was undated and “did not
affirmatively state when the order was issued,” the appellate court held that
it was not excused because “Continental’s counsel was chargeable with
notice” of the date the order was issued. Id. at 790. Thus,
the appellate court held that the trial court did not abuse its discretion in
striking Continental’s petitions. Id. at 791.
We
find the facts of this case to be similar to those of Cruz and Continental.
Although in Cruz the appellant filed her late repleading one day after
the trial court had already entered an order dismissing the case, we do not
consider that difference dispositive. See Cruz, 877 S.W.2d at 46. The
Fords’ first amended petition—although filed before the trial court signed a
dismissal order—was untimely pursuant to the trial court’s repleading order,
which specifically stated that the case would be dismissed automatically if the
Fords did not meet the deadline. Thus, the trial court had discretion whether to
consider the late-filed amended petition. See Continental, 38 S.W.3d at
790-91.
In
addition, we note that the Fords’ first amended petition omitted Jones as a
party and did not include a maximum amount of damages claimed as to their strict
products liability cause of action. Thus, their first amended petition was
subject to further special exceptions and also evidenced an intent to nonsuit
the Fords’ claims against Jones individually. See Webb v. Jorns, 488
S.W.2d 407, 409 (Tex. 1972) (stating rule that amended petition omitting a
defendant operates as a voluntary dismissal as to that party); Cigna Ins. Co.
v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.—Austin 1995, no writ)
(same).
Accordingly,
we hold that the trial court did not abuse its discretion in dismissing the case
after the Fords failed to replead within the nine-month deadline set by the
trial court. We overrule the Fords’ second and third issues.
In
their fourth issue, the Fords contend that the trial court’s dismissal of
their case violated their due process rights under article I, sections 13 and 19
of the Texas Constitution. Article I, section 13, the “open courts
provision,” guarantees that persons bringing common-law claims will not
unreasonably or arbitrarily be denied access to the courts. Tex. Const. art. I, § 13; Gilbert v.
Bartel, 144 S.W.3d 136, 145 (Tex. App.—Fort Worth 2004, pet. denied).
“The interpretation of this clause has been limited to considering the effect
a statutory remedy has on a common law cause of action.” Sage v. Wong,
720 S.W.2d 882, 885 (Tex. App.—Fort Worth 1986, writ ref’d n.r.e.). It
guards against legislative bodies arbitrarily withdrawing all legal remedies
from a person having a cause of action well established and well defined in the
common law. Id.; see also Shah v. Moss, 67 S.W.3d 836, 842 (Tex.
2001) (“[T]he Legislature cannot abrogate the right to bring a
well-established common-law claim without showing that the statute’s
objectives and purposes outweigh denying the constitutionally guaranteed right
of redress.”).
To
invoke the open courts provision, a litigant must show that a statute has
restricted a cognizable common law cause of action and that the restriction is
unreasonable or arbitrary when balanced against the purpose and basis of the
statute. Sage, 720 S.W.2d at 885. The Fords have not shown that any
statute restricts their causes of action in this case. The trial court’s
dismissal was based on the Fords’ own actions in failing to replead. Thus, the
Fords have not shown a violation of article I, section 13 of the Texas
Constitution. See id. at 885-86.
The
Fords also contend that the trial court denied them due process under article I,
section 19 of the Texas Constitution, citing TransAmerican Natural Gas Corp.
v. Powell, 811 S.W.2d 913, 918-19 (Tex. 1991). In analyzing whether the
trial court abused its discretion in ordering death penalty sanctions for
discovery abuse, the court in TransAmerican cited a United States Supreme
Court case holding that “[t]here are constitutional limitations upon the power
of courts, even in aid of their own valid processes, to dismiss an action
without affording a party the opportunity for a hearing on the merits of his
cause.” Id. at 918 (quoting Societe Internationale Pour
Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197,
209-10, 78 S. Ct. 1087, 1094 (1958)). The Fords were not denied notice or
hearing. The record does not contain any evidence that the Fords challenged
appellees’ special exceptions. Additionally, like the appellant in Cruz,
the Fords did not object on the record to the trial court’s order giving them
nine months to replead. Furthermore, the trial court considered and held a
hearing on the Fords’ motion to reinstate. We hold that the Fords were not
denied due process in violation of the Texas Constitution. We overrule the
Fords’ fourth issue.
Having
overruled the Fords’ four issues, we affirm the trial court’s judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL
B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED:
September 8, 2005
NOTES
1.
Gary was employed by Northrop Grumman, and Performance Aircraft was performing
contract work in the hangar for Northrop Grumman.
2.
They later filed an amended motion, which requested the same relief and also
added a request for a new trial to the extent the case was deemed automatically
dismissed.
3.
Appellees did not challenge this assertion.