Lora Yvonne Rasmussen v. Toan Duc Pho and Nguyen Pho d/b/a Pearl H. Associates--Appeal from 166th Judicial District Court of Bexar County

Lora Yvonne RASMUSSEN,

Appellant

v.

Toan Duc PHO and Nguyen Pho d/b/a/ Pearl H. Associates,

Appellees

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-CI-11058

Honorable Martha Tanner, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: June 13, 2007

AFFIRMED

This appeal arises from two orders, one dated August 30, 2005 granting Appellees' Motion for Special Exceptions, and one dated March 6, 2006 dismissing Rasmussen's case for failure to comply with the earlier order granting special exceptions. We affirm the judgment of the trial court.

Factual Background

Appellant Lora Rasmussen sued Appellees (the Phos) for conversion, criminal trespass, fraud, and breach of contract regarding a commercial lease. The Phos filed special exceptions with the trial court on August 12, 2005, excepting to all of Rasmussen's causes of action and alleged damages.

On August 30, 2005, the trial court conducted a hearing on the special exceptions. (1) Rasmussen claims she failed to attend because she did not receive actual notice of the hearing. (2) The trial court granted special exceptions and ordered Rasmussen to replead by October 20, 2005. Rasmussen failed to amend her pleadings, and the Phos filed a motion to dismiss based on her failure to replead in a timely manner. On March 6, 2006, the trial court dismissed Rasmussen's entire case.

On April 5, 2006, Rasmussen filed a motion for new trial, and in the alternative, a motion to set aside the special exceptions order on the grounds that her failure to appear at the hearing was not the result of conscious indifference, but rather a mistake or accident. The motion for new trial was overruled by operation of law on June 20, 2006.

Analysis When a party challenges the dismissal of their cause of action due to the trial court's sustaining of special exceptions, we must examine two rulings: (1) the granting of special exceptions; and (2) the decision to dismiss. Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 334 (Tex. App.--Fort Worth 2005, pet. denied); Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.--Dallas 1993, writ dism'd w.o.j.). We review the trial court's rulings on the special exceptions and dismissal under an abuse of discretion standard. Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.--San Antonio 2000, no pet.).

A. Special Exceptions

Parties may challenge the sufficiency of the opposition's pleading by requesting special exceptions. Tex. R. Civ. P. 91. The purpose of special exceptions is to "force clarification and specification in the pleadings, when they are not clear or sufficiently specific." Patillo v. City of San Antonio ex rel. San Antonio Water Sys., 161 S.W.3d 608, 611 (Tex. App.--San Antonio 2005, pet. denied) citing Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.--San Antonio 2003, pet. denied). When a trial court sustains special exceptions, the pleading party must either: (1) amend the pleading to meet the exceptions; or (2) refuse to amend, stand on the original pleading, and appeal the validity of the ruling. Muecke, 25 S.W.3d at 223-24.

A party appealing the dismissal of her cause of action following the sustaining of special exceptions must first attack the decision to sustain the special exceptions; only after such an attack may the party challenge the decision to dismiss. Cole, 864 S.W.2d at 566. A party's failure to challenge specifically the propriety of the grant of special exceptions constitutes waiver of error in the sustaining of special exceptions. Id.

Rasmussen fails to brief the merits of the trial court's order granting the special exceptions. Instead, she focuses on the dismissal of her case due to calendaring mistakes causing her to miss certain deadlines. By failing to attack the order granting the special exceptions, Rasmussen waived any error in the granting of the special exceptions by the trial court. Id. See also id. at 566 n.4 (stating "[i]f an appellant argues an inconsequential ground while overlooking error in the controlling issue in the case, the error in the controlling issue is waived"). As Rasmussen failed to preserve error for our review with regard to the special exceptions, we turn to the court's dismissal of her case.

In the order granting the special exceptions, the trial court ordered Rasmussen to replead within fifty days. When the pleader fails or refuses to amend the pleading, the trial court may dismiss the case. Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 604 (Tex. App.--Corpus Christi 1997, pet. denied); Cole, 864 S.W.2d at 566. If the remainder of the pleadings fail to state a cause of action, the trial court may properly dismiss the entire case. Ford, 336 S.W.3d at 336; Cole, 864 S.W.2d at 566.

Conclusion

Because Rasmussen fails to attack the special exceptions on appeal, we do not reach the merits of the trial court's decision to grant the special exceptions. Furthermore, we conclude the trial court did not abuse its discretion in granting the Phos' dismissal of the case. We therefore affirm the judgment of the trial court.

Rebecca Simmons, Justice

1. Throughout her briefing, Rasmussen refers to a special exceptions hearing on August 20, 2005 and one on August 20, 2006. We presume she is referring to the hearing on August 30, 2005, which is referenced in the order granting the Phos' special exceptions.

2. The Order on Defendants' Special Exceptions recites that "the Plaintiff [Rasmussen] appeared by and through her attorney of record."