Chapter 19-1 Necessity of Pleadings to Support the Charge

• Jurisdiction: United States

19-1 Necessity of Pleadings to Support the Charge

"Begin with the end in mind."¹ When representing the plaintiff, draft the anticipated jury charge for a case before drafting the pleadings. This will provide you with a clear picture of what you will need to prove to the jury, and by working backward from the charge, it will ensure that your pleadings provide the legal support to entitle you to the charge questions, definitions, and instructions you need.

The trial court is required to submit controlling factual issues to the jury when those issues have been raised in both the written pleadings and the evidence.² The court is not bound to the exact language of the pleadings in forming the questions and instructions to submit to the jury,³ but to support submission of a jury question, the pleadings must give the opposing party "fair notice" of the claim.⁴ (Standards governing the sufficiency of pleadings in Texas are discussed in Chapter 19, Sections 19-3, 19-4, and 19-5 below.) "In determining whether a cause of action was pleaded, plaintiff's pleadings must be adequate for the court to be able, from an examination of the plaintiff's pleadings alone, to ascertain with reasonable certainty and without resorting to outside information the elements of plaintiff's cause of action and the relief sought with sufficient information upon which to base a judgment."⁵ Although this basic rule is subject to exceptions based upon an opponent's failure to specially except to pleadings before trial,⁶ engagement in trial by consent,⁷ or failure to object to submission in the charge of an unpleaded matter,⁸ it serves as a good guide for drafting pleadings at the outset of the case.

* The authors thank Robyn Leatherwood for her assistance in the updating of this chapter.

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Notes:

^[1] Habit #2 from Stephen R. Covey, The Seven Habits of Highly Effective People New York: Free Press (1989).

^[2] Tex. R. Civ. P. 278; Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 823 (Tex. App.—Houston [1st Dist.] 1999, pet. denied), citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).

^[3] Porter v. Reaves, 728 S.W.2d 948, 950 (Tex. App.—Fort Worth 1987, no writ) (court not bound to use same language describing contractual breach as used in pleadings).

^[4] Tex. R. Civ. P. 45(b), 47(a); Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 823 (Tex. App.—Houston [1st Dist.] 1999, pet. denied), citing Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982).

^[5] Wright...