Paul A. Gittinger v. Progressive County Mutual Insurance Company--Appeal from 73rd Judicial District Court of Bexar County

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MEMORANDUM OPINION

No. 04-03-00252-CV

Paul A. GITTINGER,

Appellant

v.

PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY,

Appellee

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-15286

Honorable Solomon Cassel Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 29, 2003

AFFIRMED

Appellant, Paul Gittinger, raises two issues on appeal. He first asserts the trial court erred in sustaining appellee's, Progressive County Mutual Insurance Company, special exceptions. Second, he asserts the trial court erred in denying his motion for extension of time and dismissing his case. We affirm.

FACTUAL & PROCEDURAL BACKGROUND

In his original petition, Gittinger, while incarcerated and acting pro se, sued Progressive alleging negligence, breach of contract, and failure to settle a claim within policy limits. Progressive responded by filing a general denial and asserted that Gittinger had not complied with the terms and conditions of the insurance policy in question. In a single motion, Progressive specially excepted to Gittinger's petition on three grounds: (1) failure to plead a discovery level; (2) general and vague allegations; and (3) inadequate Declaration of Inability to Pay Costs. On January 4, 2003, Gittinger received notice that the trial court had set a hearing on Progressive's special exceptions for January 23, 2003. Because Gittinger thought he did not have an adequate law library at his current jail facility to respond to the special exceptions, he requested a transfer to a jail facility with a better law library. On January 17, 2003, Gittinger's request was granted and, according to him, he was "separated" from his personal property and legal work, and placed "in transit." Gittinger did not arrive at the new jail facility until January 23, 2003, the day of the hearing on the special exceptions, and therefore he did not attend the hearing. At the hearing, the trial court sustained Progressive's special exceptions and ordered Gittinger to amend his petition on or before February 7, 2003, or it would strike his petition. Gittinger received a copy of the trial court's order on February 1, 2003. On February 7, 2003, instead of filing an amended petition, Gittinger filed a motion for an extension of time requesting sixty days to amend his pleadings. On February 11, 2003, Progressive filed a motion to dismiss the case on the grounds that Gittinger did not amend his petition within the allotted time. On March 4, 2003, with both parties present, Gittinger via telephone, the trial court held a hearing on Progressive's motion to dismiss and Gittinger's motion for an extension of time. After hearing arguments from both sides, the trial court denied Gittinger's request for an extension of time, sustained Progressive's motion and dismissed Gittinger's case.

SPECIAL EXCEPTIONS

We review the trial court's ruling on the special exceptions and its dismissal under an abuse of discretion standard and we accept as true all material factual allegations and all factual statements that one can reasonably infer from the allegations set forth in the pleadings. Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.--San Antonio 2000, no pet.). An appellant who complains of the dismissal of his cause of action following the sustaining of special exceptions must first attack the trial court's decision to sustain the special exceptions and then attack the court's decision to dismiss the cause of action. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.--Corpus Christi 2002, pet. denied). If the trial court properly sustained the special exceptions, we then review the appropriateness of dismissing the case. See id. An appellant must specifically challenge both rulings or face waiver of the respective issue not challenged. Id. Gittinger has preserved both issues on appeal because the tenor of his brief indicates that he challenges both the trial court's sustaining of the special exceptions and dismissing his case. Therefore, we will review both of the trial court's rulings.

Special Exceptions One and Two

In Progressive's first two special exceptions, it excepted to Gittinger's original petition based on: (1) failure to plead a discovery level and (2) general and vague allegations.

An objecting party should use a special exception to require a party to plead a discovery level in his original petition. See Tex. R. Civ. P. 190.1 cmt. 1. The objecting party also should use a special exception to force a party to clarify pleadings that are not clear or sufficiently specific. See Villarreal v. Martinez, 834 S.W.2d 450, 451 (Tex. App.--Corpus Christi 1992, no writ). "The special exception shall point out the particular pleading excepted to and it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading." Tex R. Civ. P. 91. If the trial court sustains the special exceptions, the pleader may amend his petition to meet the exceptions or stand on his pleading and test the validity of the trial court's ruling on appeal. Muecke, 25 S.W.3d at 224.

First, Progressive properly used a special exception to require Gittinger to plead an appropriate discovery level required by Texas Rule of Civil Procedure 190.1. Second, Gittinger's claim in his original petition reads as follows:

Plaintiff contends that (PCM) owed a duty to defend and the duty to indemnify. (PCM) was negligent in their conduct act and omission within the scope of coverage of the policy limit, failing to settle the claim within policy limits and was obligated and had been adjudicated to be legally responsible. Plaintiff's settlement demand was not unreasonable.

Even viewing Gittinger's petition with liberality and patience, we conclude the petition did not give Progressive fair notice of the basic issues of the controversy. See Tex. R. Civ. P. 47(a). Gittinger's original petition does not inform Progressive: (1) to whom it owed a duty; (2) of its negligent conduct; (3) when it breached its contract of insurance for failing to settle the claim within policy limits; and (4) what contractual and/or extra-contractual duties it allegedly violated. Progressive properly used a special exception to require Gittinger to specify these points. We conclude the trial court did not err in sustaining Progressive's first two special exceptions.

Special Exception Three

Progressive's third special exception excepts to Gittinger's Declaration of Inability to Pay Costs under Civil Practice and Remedies Code section 14.004 because Gittinger did not attach a certified copy of his inmate trust account statement or an affidavit or declaration identifying previously filed lawsuits. In response to Progressive's special exceptions and before the hearing on the special exceptions, Gittinger filed a certified copy of his inmate trust account statement accompanied by an unsworn declaration that he had not filed any previous suits. Therefore, Gittinger satisfied the requirements of section 14.004. We conclude the trial court erred in sustaining Progressive's third special exception.

DISMISSAL

Gittinger asserts the trial court erred in refusing to grant his extension of time to amend his pleadings and dismissing his case. As grounds for an extension of time, Gittinger stated that his transfer to a new jail facility separated him from his legal work which prevented him from amending his petition. Gittinger alleged it would take approximately sixty days before his property and legal work "would catch up to him at his new address." Progressive did not controvert any of the facts alleged in Gittinger's motion.

When the trial court sustains special exceptions, it must give the party a chance to amend its pleadings by ordering the party to replead. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). The trial court should provide the amending party with a reasonable amount of time to amend the petition to conform to the ruling upon the special exceptions. See McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex. Civ. App.--Beaumont 1972, writ ref'd n.r.e.). The amount of time a trial court provides the party to amend his petition is a matter within the sound discretion of the trial court that we will not overturn except for an abuse of discretion. Id. Here, Gittinger complains the trial court should have granted him additional time beyond the original fourteen days granted in the trial court's order sustaining the special exceptions.

We review the ruling on a motion for an extension of time with an abuse of discretion standard. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (ruling on a motion for continuance). A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to guiding rules and principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). In determining whether the trial court abused its discretion in denying a continuance, we consider the entire record. Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.). Gittinger had thirty-one days from the date he received notice of the trial court's order on special exceptions to the date of the hearing on the dismissal. Although Gittinger filed other motions with the trial court during the thirty-one day period, he never filed an amended petition. Based on the record, we cannot say the trial court abused its discretion in refusing to grant Gittinger additional time to amend his pleadings and in dismissing the case.

CONCLUSION

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

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