law-failure-to-state-claim to be addressed with special exceptions and opportunity to amend, not motion
to strike pleadings
The motion to strike was an improper vehicle for dismissing Rodriguez’s
claims on the merits
We recognize USSA’s apparent frustration with Rodriguez’s amended pleading, and we cannot say that,
under these circumstances, its arguments are entirely without merit or persuasive effect. However,
Rodriguez is correct that the motion to strike is not authorized under the Texas Rules of Civil Procedure
as USSA used it here: to summarily dismiss Rodriguez’s substantive claims without an
opportunity to replead. See, e.g., Fort Bend County v. Wilson, 825 S.W.2d 251, 252–53 (Tex. App.—
Houston [14th Dist.] 1992, no writ); Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479,
482–83 (Tex. App.—Houston [14th Dist.] 1991, no writ); Susanoil, Inc. v. Cont’l Oil Co., 516 S.W.2d 260,
263–64 (Tex. App.—San Antonio 1973, no writ).
Moreover, as in Centennial, we find that Rodriguez has not waived this issue because the trial court’s use
of the unauthorized procedural mechanism was the type of error that cannot be waived. See
Centennial, 803 S.W.2d at 482 (holding that complaint that appellee used an unauthorized procedure to
obtain dismissal of appellant’s claims was not waived because the trial court lacked authority to enter the
order of dismissal).
As this court explained in Centennial, motions for summary judgment and special exceptions provide well-
settled procedural guidelines and protections, but motions to dismiss claims for failing to state a cause of
action do not. Centennial, 516 S.W.2d at 483. Under the Texas Rules of Civil Procedure, the proper
way for a defendant to urge that a plaintiff has failed to plead a cause of
action is by special exception. Id. Special exceptions may also be used to question the
sufficiency in law of a plaintiff’s petition. Id. And, when special exceptions are sustained, the pleader
must be given, as a matter of right, an opportunity to replead. Id.
Only after special exceptions have been sustained and a party has been given an opportunity to amend
its pleadings may a case be dismissed for failure to state a cause of action. Id.
The circumstances of this case illustrate the dangers of dismissing claims using an unauthorized
procedural vehicle like the motion to strike used here. First, the motion was not properly denominated in
accordance with the rules of civil procedure. Second, it triggered no specified timetables or protective
procedures. Third, it was granted without an opportunity for Rodriguez to amend his pleading before his
claims were stricken.
On appeal, the lack of any established procedures or guidelines presents us with additional difficulties. It
is not clear what standard of review we are to apply to the trial court’s action. In its brief, USSA mentions
the abuse-of-discretion standard, but at oral argument, it suggested de novo review was appropriate,
and admitted that it found no cases addressing the appropriate standard of review to apply. We also
have had difficulty interpreting the motion as a pleading that is authorized by the rules of civil procedure.
The motion to strike cannot be considered a motion for summary judgment, because it did not comply
with the specific procedures outlined in Texas Rule of Civil Procedure 166a. See Tex. R. Civ. P. 166a(c)
(specifying requirements of summary judgment motion and proceedings). Likewise, it cannot be
interpreted as special exceptions because it was not denominated as such, and neither the parties nor
the court treated the motion to strike as special exceptions.
Although USSA contends its attack on Rodriguez’s equitable estoppel and conspiracy claims could
reasonably be viewed as special exceptions because it alleged that Rodriguez failed to state a claim
under Texas law, we reject this claim as well as its secondary claim that repleading would not cure the ills
in Rodriguez’s action and so dismissal would be appropriate. These suggestions fail to cure the
fundamental problem with USAA’s motion to dismiss: the Texas Rules of Civil Procedure do not
recognize or sanction a substantive motion to dismiss. When the motion was filed, it failed to
notify Rodriguez what action he must take in response, for the simple reason that none is specified in the
rules. To penalize Rodriguez for not responding in a certain way to a fictional pleading and to reward
USAA for filing a fictitious pleading when the rules contain two very appropriate pleadings (motions for
summary judgment and special exceptions) with very specific responses for this situation would be
unwise. That would create confusion when the purpose of the rules is to do just the opposite. See Tex.
R. Civ. P. 1 (“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and
impartial adjudication of the rights of litigants under established principles of substantive law.”).
Therefore, we sustain Rodriguez’s first issue, and we reverse and remand his claims of fraud, negligent
misrepresentation, promissory estoppel, equitable estoppel, and conspiracy to the trial court for further
proceedings in accordance with this opinion. Because of our disposition of the first issue, we do not
reach Rodriguez’s second issue addressing the merits of the stricken claims. 14-03-00892-CV
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