law-pleading-sufficiency

law-pleading-sufficiency | s pecial exceptions | insufficient pleadings defective pleading | unpleaded claims | trial of
issues by consent

An original pleading must set forth the cause of action sufficient to provide fair notice of the claim involved and a
demand for judgment. Tex. R. Civ. P. 47(a) & (c). Pleadings give fair notice when "an opposing attorney of
reasonable competence, with the pleadings before him, can ascertain the nature and the basic issues of the
controversy and the testimony probably relevant." Tex. R. Civ. P. 45(b); Tex. R. Civ. P. 47(a); City of Houston v.
Howard, 786 S.W.2d 391, 393 (Tex. App.-Houston [14th Dist.] 1990, writ denied).

SUFFICIENCY OF PLEADINGS | NOTICE PLEADING | WAIVER OF DEFICIENCY IN
OPPONENT'S PLEADINGS

Sufficiency of pleading on the issue A trial court cannot enter judgment on a theory of recovery not
sufficiently set forth in the pleadings or otherwise tried by consent. Miller v. Towne Servs., Inc., 665 S.W.2d 143,
147 (Tex. App.-Houston [1st Dist.] 1983, no writ); see also TEX.R. CIV. P. 301 (providing that the "judgment of
the court shall conform to the pleadings"). There are, however, exceptions to rule 301. Unpleaded claims or
defenses that are tried by express or implied consent of the parties are treated as if they had been raised by the
pleadings. 780 See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). The party who allows
an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot
later raise the pleading deficiency for the first time on appeal. Id. Moreover, "[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings." TEX.R. CIV. P. 67. To determine whether an issue was tried by consent, we
examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Case Corp. v. Hi-
Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex.App.-Dallas 2005, pet. denied). A party's unpleaded
issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating
that both parties understood the issue was in the case, and the other party failed to make an appropriate
complaint. Id.
Harford Fire Ins. Co. v. C. Springs (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Radack)
(construction law, bondability, statute of fraud, suretyship, sufficiency of the pleadings)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00065-CV
Hartford Fire Insurance Company v. C. Springs 300, Ltd.
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble

Texas follows the “fair notice" standard for pleadings, which looks to whether the opposing party
can ascertain from the pleadings the nature and basic issues of the controversy and the type of evidence that
might be relevant to the controversy. Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); Horizon/CMS Healthcare
Corp. of Am. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). “'A petition is sufficient if it gives fair and adequate notice
of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party
information sufficient to enable him to prepare a defense.'" Horizon/CMS Healthcare, 34 S.W.3d at 897 (quoting
Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).
In Re Jacobs, MD (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(Brown)
(proper scope of net worth discovery when exemplary damages are sought for gross negligence)
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Brown
Before Justices Brown, Boyce and Sullivan
14-09-00123-CV In Re Mark A. Jacobs, M.D., and Debra C. Gunn, M.D., and Obstetrical and Gynecologist
Associates, P.A.    Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Concurring and Dissenting Opinion by Justice Sullivan in In Re Jacobs, MD
Under Texas' basic pleading requirements, the McCoys' live pleadings sufficiently allege specific facts supporting gross
negligence and invoke the objective and subjective standards as set forth in section 41.001(11).[7] See Tex. Civ. Prac. & Rem.
Code Ann. Therefore, we conclude the McCoys have pleaded facts sufficient for purposes of showing they are entitled to discovery
of net-worth information from the relators. See In re Garth, 214 S.W.3d at 192 (holding plaintiff's pleadings were sufficient to notify
defendants that she sought to hold them liable for punitive damages through conspiracy theory); In re W. Star Trucks US, Inc., 112
S.W.3d at 763-64 (holding allegations in petition that defendant had engaged in fraudulent and malicious conduct were sufficient
to permit discovery of net worth); Delgado, 793 S.W.2d at 333 (holding plaintiff's pleading alleging defendant was “consciously
indifferent" to safety of others was sufficient to entitle plaintiff to discovery of net worth information).[8]

A party's pleadings need only provide “a short statement of the cause of action sufficient
to give fair notice of the claim involved." Tex. R. Civ. P. 47; Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004). A court should uphold a plaintiff's petition
as to a cause of action that may be reasonably inferred from what is specifically stated.
Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). In the absence of special exceptions,
“a petition will be construed liberally in favor of the pleader." Roark v. Allen, 633 S.W.2d
804, 809 (Tex. 1982); Stone v. Layers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.
1977). Christus Health v. Kone, Inc. (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Brown)
(fraud and fraud-in-the-inducement claims relating to a contract for elevator-maintenance services,
one-satisfaction rule does not apply here, pleading sufficiency, special exceptions, affidavit found to be
conclusory)
AFFIRMED: Opinion by Justice Brown
Before Justices Anderson, Frost and Brown
14-07-00786-CV Christus Health and Christus Health Gulf Coast v. Kone, Inc
Appeal from 127th District Court of Harris County
Trial Court Judge: S harolyn P. Wood

Finally, Ritu contends that Rajiv’s pleadings were legally insufficient. To preserve a complaint regarding the
adequacy of pleadings in a non-jury case, an objection must be made in writing and presented to the trial court
before the judgment is signed.   Tex. R. Civ. P. 90; In re A.C.S., 157 S.W.3d 9, 18 (Tex. App.—Waco 2004, no
pet.). The record reveals that these complaints were not properly preserved at trial. Thus, they are waived on
appeal. See Tex. R. App. P. 33.1. Singh v. Singh (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Bland)
(divorce with children, conservatorship SAPCR, division of marital property, denial of Motion for Continuance and
motion for new trial)

Barrick v. CRT Disaster Services (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Hudson)
(check fraud, motion for new trial, unpleaded claim, pleading deficiencies)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00853-CV E.W. "Bill" Barrick Et Al v. CRT Disaster Services
Appeal from 281st District Court of Harris County (Hon. David J. Bernal)

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