MARTIN GREENSTEIN, Appellant v. CURTIS LEO BAGGETT d/b/a OPTIC MEASUREMENTS, INC. and BART BAGGETT d/b/a OPTIC MEASUREMENTS, INC., Appellees

REVERSE and REMAND; Opinion Filed October 21, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00640-CV
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MARTIN GREENSTEIN, Appellant
V.
CURTIS LEO BAGGETT d/b/a OPTIC MEASUREMENTS, INC. and BART BAGGETT d/b/a OPTIC MEASUREMENTS, INC., Appellees
 
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On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-05-7992-A
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
        Martin Greenstein appeals the trial court's orders dismissing his lawsuit for declaratory relief against Bart Baggett d/b/a Optic Measurements, Inc. and Curtis Leo Baggett d/b/a Optic Measurements, Inc.   See Footnote 1  In two issues, Greenstein contends the trial court erred in granting appellees' motions to dismiss that claimed appellant had not plead a cause of action. In two other issues, appellant contends the trial court erred in failing to grant motions to compel and for sanctions against appellee Curtis Baggett (“C. Baggett”), and a motion to compel against appellee Bart Baggett (“B. Baggett”). Appellant's first two issues are dispositive. Because we decide in Appellant's favor on those issues, we need not address the other two issues.
        We conclude the trial court erred when it dismissed Greenstein's lawsuit against C. Baggett and B. Baggett. We reverse and remand for further proceedings consistent with this opinion. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. Also, because the facts are well-known to the parties, we do not recite them in this opinion.
        Preliminarily, we note appellees appeared pro se in the trial court. A pro se litigant is held to the same standards as a licensed attorney, and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied).
        Now, we address the first two issues contending the trial court erred in granting appellees' motions to dismiss. In response to appellant's Third Amended Original Petition for Declaratory Relief and Request for Disclosure, C. Baggett filed an answer that included a motion to dismiss.   See Footnote 2  Appellee B. Baggett filed an original answer, a motion to dismiss, a motion for sanctions, and an objection to service. In each motion, appellees contended appellant had not asserted any causes of action under Texas law against them. C. Baggett's answer asserted, inter alia, that “[Appellant's] suit . . . violates Rule 13. TEX R. CIV PROC. in that it is groundless.” He also claimed the lawsuit was barred by res judicata. B. Baggett stated in his answer, inter alia, “[Appellant's] lawsuit against Bart Baggett dba Optic Measurements, Inc., has no cause of action.”
                                                                                   On March 6, 2009, the trial court heard appellees' motions to dismiss and granted them. No record was made of this hearing. The trial court signed two separate orders as to B. Baggett and C. Baggett on March 6th and March 20th, respectively. In each order the trial court concluded there was “no cause of action,” and dismissed appellant's suit against each appellee “with prejudice.” Appellant contends the trial court erred in granting the motion to dismiss and the motion to strike because those motions are not proper procedural tools for summary adjudication of an action. We agree.
        A pleading that asks the court to dismiss a suit for failing to state a cause of action is “the functional equivalent of a general demurrer” and is explicitly precluded by the Texas Rules of Civil Procedure. Centennial Ins. Co. v. Commercial Union Ins. Co., 803 S.W.2d 479, 481, 483 (Tex. App.-Houston [14th] 1991, no pet.) (citing Tex. Dep't. of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974)); see also Tex. R. Civ. P. 90 (“General demurrers shall not be used.”). In contrast to a Rule 12(b)(6) motion under the Federal Rules of Civil Procedure, under Texas law “the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exception.” Centennial, 803 S.W.2d at 483; Baca v. Sanchez, 172 S.W.3d 93, 96 (Tex. App.-El Paso 2005, no pet.); see generally Fed. R. Civ. P. 12(b)(6). Similarly, “a defendant [who] chooses to seek dismissal by filing a motion to dismiss based on an affirmative defense (such as the statute of limitations or res judicata)” must also first file special exceptions. Hunter v. Johnson, 25 S.W.3d 247, 250 (Tex. App.-El Paso 2000, no pet.). Then, if the trial court sustains a special exception, “the pleader must be given, as a matter of right, an opportunity to replead.” Centennial, 803 S.W.2d at 483; see Baca, 172 S.W.3d at 95-96; Hunter, 25 S.W.3d at 249-50. “When there is no action by the trial court sustaining special exceptions, an order granting a dismissal for the failure to state a cause of action must be reversed.” Centennial, 803 S.W.2d at 483; but cf. Baca, 172 S.W.3d at 96-98 (trial court's dismissal on the pleadings was affirmed where the appellant was given the opportunity to amend her pleadings, and did so at least twice.)
        In the instant case, on this record, we conclude “the trial court employed an unauthorized procedural mechanism to summarily dismiss [appellant's] action without giving [him] an opportunity to replead.” Centennial, 803 S.W.2d at 482. Although styled as motions to dismiss and to strike, appellees' motions were the functional equivalent of general demurrer and prohibited under the Texas Rules of Civil Procedure. See id.; Tex. R. Civ. P. 90. However, even if we were to treat these motions as special exceptions and to “characterize the court's action . . . as the sustaining of a special exception, the result is the same.” Centennial, 803 S.W.2d at 483; see also Hunter, 25 S.W.3d at 250. The trial erred by not giving appellant the opportunity to amend his petition. See Centennial, 803 S.W.2d at 483; see also Hunter, 25 S.W.3d at 250 (“Thus, because Appellee sought dismissal by filing a motion to dismiss for failure to state a cause of action, Appellant was entitled to an opportunity to amend his pleadings before the trial court could rule on the motion to dismiss.”).
        The trial court's two orders dismissing appellant's suit against appellees with prejudice were signed on March 6, 2009 and March 20, 2009. We reverse these orders and remand for further proceedings consistent with this opinion.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
090640F.P05                                
                                                                                  
 
Footnote 1 Appellant's motion for nonsuit of a third defendant, Optic Measurements, Inc., was granted by the trial court's order of March 17, 2009.
Footnote 2 C. Baggett's motion was styled a motion to strike, yet he actually asked the court for sanctions and to dismiss the suit with prejudice. Consequently, we treat this as a motion to dismiss. See Surgiteck, Bristo-Lyers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“we look to the substance of a motion to determine the relief sought, not merely to its title.”).