Chapter 10-3 Effect of Pleading General Damages

• Jurisdiction: United States

10-3 Effect of Pleading General Damages

Although a pleading which affirmatively misstates the measure of damages may bar submission of a different measure of damages,¹⁵ Texas pleading rules do not always require detail about what damages are sought. An allegation of the wrong committed by the defendant accompanied by a general prayer for relief and damages¹⁶ will support the recovery of "general damages."¹⁷

General damages are those damages which so usually flow from the kind of wrongdoing alleged in the petition that merely alleging the wrong provides sufficient notice of the damages.¹⁸ Assuming, however, that a particular form of damages—such as lost profits—uniformly will or will not be considered "general damages" and therefore need not pleaded is risky. Lost profits may take the form of direct damages (considered as general damages) in one case but take the form of consequential (special) damages in another case.¹⁹ Contract and business litigation damages often do not fall into the general damage category, so the safer course is to specifically plead special damages.

Itemizing damages carries its own risk since the proof must match the pleading.²⁰ Pleading with sufficient specificity, combined with thorough responses to requests for disclosure or expert designations, minimizes the likelihood a needed category of damages will be excluded on notice grounds.

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Notes:

^[15] See Chapter 10, Section 10-2.

^[16] A general prayer for relief may be phrased "for recovery of all damages and other legal and equitable relief to which plaintiff may show himself to be entitled," accompanied by a categorization of the amount of damages being sought as required by Tex. R. Civ. P. 47(c).

^[17] Pringle v. Nowlin, 629 S.W.2d 154, 157 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.) (general damages need not be specially pleaded and prayer for general relief will authorize judgment).

^[18] Sherrod v. Bailey, 580 S.W.2d 24, 28 (Tex. App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.).

^[19] Continental Holdings, Ltd. v. Leahy, 132 S.W.3d 471, 475 (Tex. App.—Eastland 2003, no pet.); see also Harper v. Wellbeing Genomics Pty Ltd., 03-17-00035-CV, 2018 WL 6318876, at *11 (Tex. App.—Austin Dec. 4, 2018, pet. denied).

^[20] Weingartens, Inc. v. Price, 461 S.W.2d 260, 263 (Tex...