Chapter 10-2 Necessity for Match Between Pleading and Proof of Damages

• Jurisdiction: United States

10-2 Necessity for Match Between Pleading and Proof of Damages

To understand the pleading requirements for damages, it is important to understand the distinction between the character of damages and the measure of damages.⁸

Damages are characterized as either general (direct) damages or as special (consequential) damages. Theoretically, general damages are not required to be specifically pleaded, since these are the damages which naturally and necessarily result from the kind of wrongful conduct alleged by the claimant (and can therefore be anticipated by the defendant without specific pleading).⁹ Special damages, on the other hand, are required by Tex. R. Civ. P. 56 to be specifically pleaded so as to provide fair notice to the defendant of each kind of damages being claimed.¹⁰ Sections 10-2, 10-3 and 10-4 of this Chapter discuss pleading general and special damages.

The measure of damages is the particular formula or method for calculating a specific kind of damages, although there may be more than one way to measure or calculate damages for a specific cause of action.

Generally, a plaintiff is not entitled to submit evidence or obtain recovery on a measure of damages that differs from the measure of damages actually pleaded (assuming a timely and specific objection by the defendant), because the variance between pleading and proof fails to provide the defendant with fair notice of the measure of damages actually relied upon.¹¹

Courts construe the pleading requirement liberally, however, finding adequate notice despite the lack of an accurate damages pleading. For example, a pleading seeking punitive damages which referred to the wrong statute did not invalidate the damages pleading since the error was apparent, and the defendant had fair notice of the intended claim for punitive damages.¹² A pleading which affirmatively states an erroneous measure of damages may still support recovery of the correct measure of damages when that correct measure can be ascertained from other language. Where the contract at issue in the pleadings specifies the correct measure of damages, the defendant was found to have notice.¹³ A vague reference to attorney fees sought in connection with enforcing a contractual right supports recovery of those contractual attorney fees even when the petition specifically alleged a claim of attorney's fees sought for violation of the DTPA, since "an attorney of reasonable competence with the pleadings before him" could ascertain that...