Dongsheng Li v. Formark Development, Inc.--Appeal from 55th District Court of Harris County

Affirmed and Memorandum Opinion filed April 28, 2005

Affirmed and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00161-CV

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DONGSHENG LI, Appellant

V.

FORMARK DEVELOPMENT, INC., Appellee

On Appeal from the 55th Judicial District Court

Harris County, Texas

Trial Court Cause No. 2003-47327

M E M O R A N D U M O P I N I O N

Appellant, Dongsheng Li, appeals from an order dismissing his case without prejudice.[1] In his sole point of error, appellant contends the trial court erred in striking his petition and dismissing his case because: (1) he properly filed a petition stating a cause of action; and (2) he was not given proper notice to amend any defects in the petition. We affirm.

The record reflects that on August 26, 2003, approximately one year after moving into his new house, appellant filed suit against the builder, Formark Development, Inc. (AFormark@). Appellant commenced his pro se suit by filing a document entitled AMotion: Requesting Compensation to Our House.@ The motion consisted of a two-sentence request for Acompensation@ for loss suffered due to Amisconduct@ in building the house. Attached to the motion were: (1) a letterCthat appellant had previously sent to FormarkClisting the specific building defects allegedly in need of repair;[2] (2) a copy of the earnest money contract; and (3) a plot map of the property on which the house was built.

Formark responded with a general denial and special exceptions, claiming that appellant=s Apetition@ was deficient in both form and substance. Specifically, Formark averred that appellant failed to: (1) properly plead a discovery level; (2) provide fair notice of his specific claims; (3) plead a cause of action or any of the elements necessary to support a cause; and (4) use the proper form in drafting a petition.[3] The trial court scheduled a hearing for October 13, 2003, to address Formark=s special exceptions. However, when appellant did not appear at this hearing, the court reset the hearing for October 28, 2003.[4]

At the October 28 hearing, the court sustained the special exceptions and ordered appellant to cure the pleading deficiencies by repleading within ten (10) days. Ten days passed and appellant failed to comply. Formark then filed a motion to strike the petition and dismiss the lawsuit. The trial court held a second hearing on November 7, 2003, and rather than dismissing appellant=s suit, ordered the parties to attend mediation.[5] After efforts to resolve the dispute through mediation proved futile, Formark filed a second motion to strike the petition and dismiss the lawsuit. The trial court again held a hearing, on February 6, 2004, and this time struck appellant=s petition and dismissed his suit without prejudice.

In his sole point of error, appellant argues the trial court erred in sustaining Formark=s special exceptions and dismissing his suit. Specifically, appellant claims his petition sufficiently met the requirements of the Texas Rules of Civil Procedure and that it properly stated a cause of action. Furthermore, he contends he was not provided written instructions from the judge regarding the need to cure his defective pleadings.

We review a trial court=s decision to sustain special exceptions under an abuse of discretion standard. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.CCorpus Christi 2002, pet. denied); LaRue v. GeneScreen, Inc., 957 S.W.2d 958, 961 (Tex. App.CBeaumont 1997, pet. denied). In considering special exceptions, the trial court is granted broad discretion. City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 783 (Tex. App.CDallas 1992, writ denied). We will not disturb that discretion unless the court acted Ain an arbitrary or unreasonable manner without reference to any guiding rules or principles.@ Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Elliot v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

Special exceptions are intended to Apoint out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations@ or otherwise require the adverse party to clarify his pleadings Awhen they are not clear or sufficiently specific.@ State ex rel. White v. Bradley, 956 S.W.2d 725, 744 (Tex. App.CFort Worth 1997), rev=d on other grounds, 990 S.W.2d 245 (Tex. 1999); Villarreal v. Martinez, 834 S.W.2d 450, 451 (Tex. App.CCorpus Christi 1992, no pet.); see also Tex. R. Civ. P. 91. Furthermore, the exceptions inform a party of the need to cure pleading defects, if possible, without immediately imposing the harsh sanction of dismissal. See Horizon v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).

Generally, if a trial court sustains a party=s special exceptions, the other party must be given an opportunity to amend the pleadings before the case is dismissed. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Mowbray, 76 S.W.3d at 677. AIf the pleader refuses to amend, or the amendment fails to [cure the defects], the trial court may dismiss the case.@ Mowbray, 76 S.W.3d at 677B78; see also Friesenhahn, 960 S.W.2d at 658; Melendez v. Exxon Corp., 998 S.W.2d 266, 272 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Therefore, Athe right to amend does not extend to the privilege of multiple opportunities to amend in the face of repeated grants of special exceptions.@ Mowbray, 76 S.W.3d at 677.

Here, appellant filed a petition entitled AMotion: Requesting Compensation to Our House.@ The motion was copied from a sample form used in small claims court for Justice of the Peace, Harris County Precinct Five. The motion itself consists of no more than a two sentence request for Acompensation@ for Athe loss we have due to [Formark=s] misconducting [sic] in building our house.@ It failed to plead a discovery level which, by itself, may be grounds for a special exception.[6] See Huddleston v. Western Nat=l Bank, 577 S.W.2d 778, 781 (Tex. App.CAmarillo 1979, writ ref=d n.r.e.); see also Tex. R. Civ. P. 190.1. Because Formark specially excepted in part on this basis, the court did not abuse its discretion in sustaining the special exceptions.[7]

Once Formark=s special exceptions were properly sustained, appellant was required to abide by the court=s order to cure the defect and replead within 10 days. See Huddleston, 577 S.W.2d at 781. In fact, he was required to do so or risk possible dismissal. See Mowbray, 76 S.W.3d at 677B78; see also Friesenhahn, 960 S.W.2d at 658; Melendez, 998 S.W.2d at 272. Because appellant failed to replead as instructed by the court, the court did not err in dismissing his lawsuit. See Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 604B05 (Tex. App.CCorpus Christi 1997, writ denied) (explaining that a trial court does not err when it dismisses a cause of action when it properly sustained special exceptions and the plaintiff failed to properly amend); see also Mowbray, 76 S.W.3d at 677B78; Friesenhahn, 960 S.W.2d at 658; Melendez, 998 S.W.2d at 272. Accordingly, we find that the trial court did not abuse its discretion in striking appellant=s pleadings and dismissing his suit.

We also disagree with appellant=s contention that he did not receive any notice from the trial judge of his need to cure the pleading defects. Appellant argues on appeal that the only instruction he received regarding the defects came from Formark=s attorney and that he never received a signed order from the judge requiring him to replead. However, the record suggests otherwise.

The trial judge signed an order at the October 28 hearing admonishing appellant that he needed to cure certain defects in his Apetition.@ The order listed the specific defects and explained that appellant must Areplead within ten (10) days from the date of this Order.@ The order further warned appellant that if he did not timely amend his petition, his pleadings might be struck and his cause of action dismissed. Appellant has not disputed that he was present at the October 28 hearing. Neither has he disputed that he represented himself at this hearing and had an opportunity to present his argument to the court regarding Formark=s special exceptions. Therefore, the record indicates that appellant was properly advised of the pleading defects and was ordered to replead in accordance with the court=s instructions. His failure, or refusal, to do so provided the court with a reasonable basis for dismissing his suit. See, e.g., Holt, 946 S.W.2d at 604B05. As such, we overrule appellant=s sole point of error.

The dangers of self-representation are well documented in criminal law. The danger is no less real in civil litigation. Unless the pro se litigant appears in a small claims court, he is granted no special consideration owing to his ignorance of technical rules of evidence and procedure.[8] Here, appellant has fervently sought the assistance of both this court and the court below to rectify perceived injustice. Appellant may well have legitimate grievances, and we are not insensitive to his alleged plight.[9] However, appellant sought relief in the court below apparently thinking he could informally apprise the judge of his complaints without the necessity of formal pleadings and evidence. On appeal, appellant has followed a similar course of conductCnot appreciating that our appellate record contains no formal evidence to support his allegations of deceptive trade practices, or even recognizing that the issue on appeal is limited solely to whether appellant=s Amotion@ met the essential requirements of a petition.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Justices Yates, Anderson, and Hudson. (Yates, J. and Anderson, J. concur without opinion in the judgment only.)

[1] We note that Mr. Li has attempted to style this cause as Dongsheng Li and Xueli Lei v. Rosemead Homes, Eldridge View/Formark Development, Inc., and President William Wang and Vice President Jim. However, Mr. Li is not an attorney and is acting pro se. Accordingly, he is not authorized to represent Ms. Lei and she did not file a notice of appeal in her own behalf. See, e.g., Tex. Gov=t Code Ann. ' 81.101B.102 (Vernon 2005) (defining unauthorized practice of law); Tex. Pen. Code Ann. ' 38.123 (Vernon 2003) (explaining that the unathorized practice of law is a Class A misdemeanor); Crain v. The Unauthorized Practice of Law Comm. of the Sup. Ct. of Tex., 11 S.W.3d 328, 332B334 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (explaining that a person who is not a licensed attorney may not represent other persons in legal matters). Thus, the only appellant before this court is Mr. Li.

Moreover, the only appellee properly before this court is Formark. Even though both appellant=s original petition and notice of appeal list additional partiesCnamely Rosemead Homes, President William Wang, and Vice President Jim [sic]Cthere is no evidence in our record that any of these other entities or individuals were properly served or otherwise made parties to the original suit. Formark is the only party listed in the trial court=s orders throughout the proceedings below. Therefore, we regard Formark as the only appellee in this cause.

[2] Appellant alleges serious defects and deficiencies in the construction of his home. For example, he alleges the foundation has cracked, one wall has cracked, the windows will not close properly causing the security system to malfunction, the roof gutters spill water into the house, human feces was left inside an air plenum, the garage door does not close properly, etc.

[3] Formark relied on the Texas Rules of Civil Procedure to support each of its contentions. See Tex. R. Civ. P. 190.1, 47(a), 45(b), and 45(a), respectively.

[4] Appellant alleges he was out of the country when the notice of hearing was delivered. It is not entirely clear from the record whether he had returned home at the time of the October 13 hearing and simply overlooked the notice. In any event, the trial court did not rule on Formark=s special exceptions at that time, but instead, rescheduled the hearing for October 28. Appellant appeared pro se on October 28 and was provided the opportunity at a hearing to present his argument regarding Formark=s special exceptions.

[5] Formark argues on appeal that the trial court again admonished appellant of the need to cure the pleading defects. However, the only indication in the record as to the court=s actions is that it took the special exceptions Aunder advisement@ and refused to rule on them at that time.

[6] Appellant argues on appeal that he sufficiently pled discovery level one because he requested $40,000 in damagesCan amount within the parameters of level one. See Tex. R. Civ. P. 190.2 (explaining that discovery level one applies to any suit where only monetary damages of $50,000 or less is requested). However, simply listing a desired damage amount is insufficient to properly plead a discovery level under the Rules of Civil Procedure. See Tex. R. Civ. P. 190.1 (AA plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule.@) (emphasis added).

[7] Formark also claimed in its special exceptions that the motion failed to provide fair notice of appellant=s specific claims. AFair notice@ is required of any original pleading and without such notice, a party is entitled to file special exceptions requesting the plaintiff to plead specifically. See Tex. R. Civ. P. 47(a); Subia v. Tex. Dept. of Human Servs., 750 S.W.2d 827, 829 (Tex. App.CEl Paso 1988, no writ). The letter attached to appellant=s motion provides some notice of the alleged defects in his home, however, appellant has not pled a cause of action by setting forth the elements of a cause of action.

[8] In a small claims court, no formal pleadings are required and the hearing of such claims is conducted informally. Tex. Gov=t Code Ann. ' 28.033 (Vernon 2004).

[9] Perceiving that consumers need the assistance of counsel to prosecute their claims, the legislature has provided that each Aconsumer who prevails [in a suit for deceptive trade practices] shall be awarded court costs and reasonable and necessary attorneys= fees.@ Tex. Bus. & Com. Code Ann. ' 17.50(d) (Vernon 2002). Here, the trial court dismissed appellant=s suit without prejudice. Thus, if appellant had a meritorious claim, counsel might well have salvaged some cause of action by refiling the suit after the trial court=s dismissal. Now, after a year long appeal, the prospect of a viable cause of action, if one ever existed, has undoubtedly diminished.