The Baroque rules surrounding special-exception practice led to reversal in J.G. v. Jones, a claim by “J.G.” against the owner of the Dallas Cowboys alleging unwanted physical contact. In particular, the Fifth Court held:

  • Preservation. Where, as here, the plaintiff amended in response to a special-exceptions order, the plaintiff preserved error by, inter alia, opposing the defendants’ motion to dismiss. The Court distinguished a 1993 opinion in which the plaintiff did not amend in response to a similar order.
  • Merits. The Court noted that of six deficiencies identified in the special exceptions, only two were challenged in the motion to dismiss. As to the location of the alleged conduct, the court found that her revised description “was at least a good faith attempt” that could not support dismissal; as to the use of initials, the court noted that “[a]ppellees do not dispute that they were informed of appellant’s identify before the trial court ruled on their motion to dismiss.”

No. 05-22-00215-CV (Feb. 27, 2023) (mem. op.). The Dallas Morning News recently reported on the case.

Under McConnell v. Southside ISD, 858 S.W.2d 337 (Tex. 1993), a party may specially except to a summary judgment motion that is unclear about its grounds. Lemus v. Cookscreek 255 LLC provides a detailed application of McConnell as to eight different claims in a premises liability case, and also reminds: “The excepting party must obtain a ruling on the special exception to preserve the issue for appeal.” No. 05-17-01085-CV (Nov. 30, 2018) (mem. op.)

At least outside the Rule 91a context: “Texas follows a fair-notice pleading standard; the opposing party must be able to ascertain the nature and basic issues of the controversy and what testimony will be relevant from the pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 677 (Tex. App.—Dallas 2004, pet. denied). The purpose of fair-notice pleading is to provide a defendant with sufficient information to prepare a defense. Horizon/CMS Healthcare Corp., 34 S.W.3d at 897.” Cerna v. Smith, No. 05-17-00178-CV (Feb. 2, 2018) (mem. op.)

The opinion in a premises liability case has rejected a novel attempt to defeat summary judgment by invoking the special exceptions process. The plaintiff, a mother whose minor son was injured after tripping on an escalator at Amazing Jakes, argued that summary judgment should not be based on a pleading deficiency that could be cured by amendment, and that the proper procedure for doing so was to file special exceptions. The Court of Appeals disagreed, holding that Amazing Jakes had moved for traditional and no evidence summary judgment based on the facts, not on the basis that the plaintiff had failed to state a cause of action or any other pleading deficiency. The Court noted that a pleading deficiency would not be a proper basis for summary judgment unless the trial court has first given the plaintiff an opportunity to amend the pleading, except when the defect is of the type that could not be cured by amendment.

Williams v. Adventure Holdings LLC, No. 05-12-01610-CV