X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Gary and Blinda Ford sued Performance Aircraft Services Inc. and its president, Robert Jones, alleging negligence, failure to warn and strict liability related to Performance’s use of chemicals to clean airplane parts in a hangar where Gary worked. The defendants filed special exceptions, alleging that the Fords’ petition failed to state the maximum amount of damages pleaded in accordance with Texas Rule of Civil Procedure 47; that it failed to give fair notice of the Fords’ claims against Jones because it did not allege any facts that would support imposing liability upon him in his individual capacity; and that it did not give the defendants fair notice of the products the Fords claimed were defective. The trial court granted the special exceptions and gave the Fords nine months to replead, adding that failure to meet the deadline would result in the case’s dismissal. Eleven days after the nine-month deadline, the Fords filed a motion to extend the time for repleading, claiming that they missed the deadline because their lawyer forgot to put the matter on his calendar. They filed an amended petition the next week and asked the trial court not to dismiss the case. At the hearing on the Fords’ motion, the Fords’ attorney confirmed that it was accident or mistake that led to the deadline being missed, adding that the underlying case was also the subject of an ongoing workers’ compensation claim in Louisiana. Though the defendants stipulated that the attorney’s explanation met the standard for mistake, they also reasserted their objections that the new petition was not in conformity with the order granting special exceptions. The trial court determined that the case had been automatically dismissed when the Fords failed to replead by the nine-month deadline. On appeal, the Fords complain both of the dismissal and of the trial court’s rulings on the special exceptions. HOLDING:Affirmed. The court goes over the special exceptions first. The defendants’ first special exception objected to the Fords’ failure to state the maximum amount of monetary damages sought in their petition, a proper special exception that the trial court properly sustained. The defendants’ second special exception objected to the lack of fair notice of the Fords’ claims against Jones. The only places where Jones is named in the original petition are the preamble, the paragraph providing his address for service, and the closing asking for a trial. Nothing indicates on what basis the Fords sought to impose liability on Jones in his individual capacity. Consequently, the trial court did not err in sustaining this special exception, the court concludes. The defendants’ third special exception objected to the lack of fair notice of the products the Fords were saying were defective. This objection was correctly sustained, too, as the defendants have no way of notifying the manufacturers of those products that a strict liability claim has been filed. Turning next to the dismissal, the court disagrees that the trial court abused its discretion by not imposing a lesser sanction before dismissing the case. First, the Fords’ amended petition, though filed before the trial court signed a dismissal order, was untimely pursuant to the trial court’s repleading order, which specifically stated that the case would be dismissed automatically if the Fords did not meet the deadline. Thus, the trial court had discretion whether to consider the late-filed amended petition. “In addition, we note that the Fords’ first amended petition omitted Jones as a party and did not include a maximum amount of damages claimed as to their strict products liability cause of action. Thus, their first amended petition was subject to further special exceptions and also evidenced an intent to non-suit the Fords’ claims against Jones individually.” The court then rejects the Fords’ argument that the dismissal violates the Texas Constitution’s open-courts provision. That provision applies to statutes that restrict access to courts, not dismissals based on the Fords’ own actions, the court holds. Nor does the dismissal violate the due-process clause of the state constitution, because, though the Fords were not denied notice or a hearing, they did not present any evidence to challenge the defendants’ special exceptions. OPINION:Livingston, J.; Livingston, Dauphinot and Holman, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.