Perry v. Cohen

285 S.W.3d 137, 2009 Tex. App. LEXIS 2123, 2009 WL 790204
CourtCourt of Appeals of Texas
DecidedMarch 26, 2009
Docket03-05-00786-CV
StatusPublished
Cited by26 cases

This text of 285 S.W.3d 137 (Perry v. Cohen) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Cohen, 285 S.W.3d 137, 2009 Tex. App. LEXIS 2123, 2009 WL 790204 (Tex. Ct. App. 2009).

Opinions

OPINION

JAN P. PATTERSON, Justice.

We consider this appeal on remand from the supreme court. See Perry v. Cohen, 272 S.W.3d 585, 586 (Tex.2008) (per curiam). Appellants contend that the trial court erred in granting appellees’ special exceptions and in dismissing appellants’ claims. Because we conclude the trial court did not err in granting appellees’ special exceptions or in dismissing appellants’ claims with prejudice, we affirm the trial court’s orders.

[140]*140FACTS AND PROCEDURAL BACKGROUND

Appellants are fourteen individual shareholders 1 of RAMP Corporation (collectively “shareholders”), a now-defunct company that developed communications technologies for the health care industry. Appel-lees Darryl R. Cohen and Andrew M. Brown are former directors of RAMP, and appellees Jenkens & Gilchrist Parker Cha-pin, L.L.P., and Jenkens & Gilchrist, P.C., are law firms that represented RAMP in securities matters.2 The shareholders filed suit in December 2004 alleging negligence, common law fraud, statutory fraud, and conspiracy. In their original petition, the shareholders alleged that the defendants made numerous misrepresentations on which the shareholders relied to their detriment.3 The shareholders alleged that these misrepresentations induced them to hold and refrain from selling their RAMP stock. The shareholders did not specify which misrepresentations by which defendant each shareholder relied upon, nor did the shareholders specify the maximum amount of damages requested by each shareholder.

In response to the original petition, the defendants filed special exceptions4 on the ground that the shareholders failed to give fair notice to the defendants as to which of the alleged claims each defendant must defend. The defendants also excepted to the shareholders’ failure to allege specific acts of negligence or identify with particularity the statements made by each defendant. In addition, the defendants excepted to the shareholders’ failure to plead all elements of their stated causes of action and the shareholders’ failure to set forth their request for damages with particularity as required by rule 47 of the Texas Rules of Civil Procedure, to break down the amount of damages requested, or to plead the maximum amount of damages requested.

Amended Petitions

The shareholders filed an amended petition, and the defendants again filed special exceptions. The defendants reasserted their previous special exceptions and also excepted to the shareholders’ claims on the ground that the shareholders’ claims were derivative claims5 that belonged to the corporation and therefore the shareholders lacked standing. The shareholders filed a second amended petition alleging claims of negligent misrepresentation, common law fraud, statutory fraud, violations of the Texas Securities Act,6 and conspiracy. [141]*141The defendants again filed special exceptions re-urging the exceptions that the shareholders’ claims were derivative in nature because they were predicated on the decline in value of RAMP stock. The defendants further excepted to the shareholders’ claims on the ground that, even if they were derivative in nature, the shareholders had failed to plead with specificity the allegations supporting each cause of action by each shareholder against each defendant and that the shareholders had failed to specify the maximum damages requested by each shareholder. The defendants also excepted to the shareholders’ second amended petition on the grounds that the shareholders failed to allege any transaction in which they were “in privity” with the defendants — that is, the shareholders failed to allege that they purchased their shares of RAMP stock from the defendants — and therefore failed to allege a cognizable claim under the Texas Securities Act.

The trial court signed an order sustaining the defendants’ special exceptions and ordered the shareholders to replead within 45 days as follows:

It is ORDERED that Plaintiffs must replead specifically the allegations supporting each cause of action by each Plaintiff against each Defendant.
It is ORDERED that each Plaintiff must replead specifically identifying the maximum amount each Plaintiff seeks in damages.
It is ORDERED that each Plaintiff must replead specifically to identify any alleged harm, damage, or injury distinct from any injury to the corporation, if possible.

The trial court’s order further specified that if the shareholders failed to replead in accordance with the order granting special exceptions, their claims would be dismissed.

Although the shareholders filed a third amended petition in an attempt to comply with the trial court’s order, the defendants filed a motion to dismiss and enforce the trial court’s order sustaining special exceptions. After a hearing on the defendants’ motion, the trial court entered an order dismissing all of the shareholders’ claims with prejudice for failure to comply with the trial court’s order on special exceptions. In its order of dismissal, the trial court expressly found that the shareholders’ third amended petition “fail[ed] to re-plead specifically the allegations supporting each cause of action by each Plaintiff against each Defendant and ... fail[ed] to replead specifically to identify any alleged harm, damage or injury distinct from any injury to the Corporation.”

In their notice of appeal, the shareholders challenged only the trial court’s order of dismissal. Concluding that the shareholders failed to challenge the trial court’s order granting special exceptions, this Court held that the shareholders had waived any error in the trial court’s dismissal of their claims. See Perry v. Cohen, 272 S.W.3d 661, 665 (Tex.App.-Austin 2007), rev’d per curiam, 272 S.W.3d 585 (Tex.2008).

The shareholders petitioned for review in the Texas Supreme Court. The supreme court granted the shareholders’ petition for review, reversed this Court’s judgment, and remanded the cause for further proceedings. Perry, 272 S.W.3d at 588. Concluding that the shareholders had in fact challenged the trial court’s order granting special exceptions in their appellate briefing, the supreme court instructed this Court on remand to consider the merits of the shareholders’ challenge to the trial court’s order granting special exceptions. Id. The parties have filed supplemental [142]*142briefing for this Court to consider on remand.7

DISCUSSION

On remand, we consider whether the trial court erred in granting the defendants’ special exceptions and dismissing the shareholders’ claims with prejudice. The shareholders argue that the tidal court erred in dismissing then- claims against the defendants because the shareholders’ third amended petition satisfied the trial court’s order to replead.

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Cite This Page — Counsel Stack

Bluebook (online)
285 S.W.3d 137, 2009 Tex. App. LEXIS 2123, 2009 WL 790204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-cohen-texapp-2009.