Chapter 28-2 Special Exceptions

• Jurisdiction: United States

28-2 Special Exceptions

Special exceptions are used to challenge defects in the pleadings. Rule 90 provides that "every defect, omission or fault in a pleading either of form or of substance" must be specifically pointed out in writing or it is waived. The special exception is the procedural device used to avoid waiver of the pleading defect.

A special exception must be in writing and point out "intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to."²⁵ The party specially excepting must obtain a ruling on the exception or the defect is waived.

The special exception has been used to challenge defects of form in the pleadings, such as where the pleading is vague or ambiguous, and to challenge the substance of the pleading, more along the lines of a motion to dismiss,²⁶ such as where the pleader has pled facts that show he can never recover²⁷ or where the pleading establishes the existence of an affirmative defense.²⁸

Normally, if the trial court sustains the special exception, the trial court must give the pleader an opportunity to replead, but the trial court need not provide this opportunity if the defect cannot be cured by amendment, such as where the pleader has demonstrated he can never recover or established an affirmative defense in his petition.²⁹

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Notes:

^[25] Comment to 2013 Change to Tex. R Civ. P. 91.

^[26] Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).

^[27] Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (pleading that written contract sued on was never delivered).

^[28] Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635-36 (Tex. 2007) (pleading demonstrated that claim on oral contract did not comply with the statute of frauds).

^[29] Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 634 (Tex. 2007).