Attacking the Pleadings

AuthorScott Brister (Ret.)/Dan S. Boyd
Chapter 15
Definitions: Pleadings may be challenged by several devices before the case progresses to the merits. Special
exceptions are used to challenge defects in form or substance that appear on the face of a pleading. A plea to the
jurisdiction challenges the court’s authority to decide the subject matter of the case before it. A plea in abate-
ment is used to set forth facts outside the petition that do not challenge venue or jurisdiction, but that present a
reason to suspend or dismiss the case.
Scope of chapter: Rules and techniques applicable to using the various exceptions and pleas to challenge the
petition and other pleadings. Grounds for the various devices. Procedural requirements. Each device compared
with similar motions and pleas. Tactical considerations.
Strategies and tactics: Review the petition carefully to determine the appropriate devices to attack it. Decide
whether to raise challenges in the answer or a separate instrument. Prepare to have your exception or motion
heard before trial. Check local rules and the judge’s individual requirements for your plea or exception. Prepare
for hearing.
Statutes and rules: Special exceptions are governed by TRCP 90 and 91. Pleas to the jurisdiction and pleas in
abatement are authorized by TRCP 85.
Related topics: Summary Judgment, Ch 36; Motion Practice, Ch 16; Pleadings, Ch 14.
I. Special Exceptions
A. Nature and Purpose
§15:01 Used to Challenge Defects in Pleadings
§15:02 Types of Special Exceptions
§15:03 Purpose of Special Exceptions
§15:04 Avoids Waiver of Objection
§15:05 Time for Making Special Exceptions
§15:06 Does Not Extend Time to Answer
§15:07 Special Exceptions May Not Allege Facts
§15:08 When Exception Sustained, Leave to Amend Normally Granted
§15:09 Action May Be Dismissed if Defect Cannot Be Cured
B. Compared With Other Pretrial Pleadings
§15:14 General Demurrer Abolished
(Rev. 10, 4/13)
§15:15 Challenge Cause of Action by Special Exception
§15:16 Court Will Deny Special Exception Ruled to Be a General Demurrer
§15:17 Exception Must State the Reasons
§15:18 Analyze Your Defensive Contentions
§15:24 Motion to Dismiss, Loser Pays, and Anti-SLAPP
§15:25 Motion to Strike
§15:26 Motion for Summary Judgment
C. Tactical Considerations
§15:32 May Be Used to Challenge Many Types of Pleading Defects
§15:33 Consider the Long-Term Consequences
§15:34 Weigh the Benefits and Detriments
D. Advantages
§15:40 Narrows Scope of Controversy
§15:41 May Set Up Dismissal
§15:42 May Set Up Summary Judgment
§15:43 Avoids Waiver of Objection
§15:44 Avoids Surprise
§15:45 Narrows Interpretation of Allegations
§15:46 Often Pleases Defense Clients
§15:47 May Educate the Judge
E. Disadvantages
§15:52 Cumbersome; Require Court Intervention
§15:53 Discovery Often a Better Tool
§15:54 May Show Your Hand
F. Types of Pleading Defects Subject to Special Exceptions
§15:60 Failure to State a Cause of Action
§15:61 Vague Pleadings
§15:62 Failure to Specify Maximum Amount of Damages
§15:63 Lack of Verification or Improper Verification
§15:64 Failure to Give DTPA Notice
§15:65 Jurisdictional Defects on the Face of the Pleading
§15:66 Failure to Plead Statutory Basis for Attorney Fees
§15:67 Lack of Standing
§15:68 Lack of Justiciable Interest
§15:69 Improper Incorporation by Reference
§15:70 Affirmative Defenses
G. Effect of Failure to Challenge Pleading Defects
1. UNDER TRCP 90, 91
§15:76 Failure to File Special Exceptions Results in Waiver
§15:77 Ambiguous Pleading
§15:78 Omission of Element of a Cause of Action
§15:79 Effect of Failure to File Timely Special Exceptions
§15:80 Failure to Specially Except with Required Degree of Specificity
§15:86 TRCP 67 — Trial by Mutual Consent
(Rev. 1, 12/00)

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