Duke v. San Jacinto River Authority , 1989 Tex. App. LEXIS 2656 ( 1989 )

OPINION

BURGESS, Justice.

This is a summary judgment appeal involving an alleged wrongful job termination. John Thomas Duke filed suit against the San Jacinto River Authority, Courtney W. Curry and Ernest A. Crawford. Duke’s first amended petition alleges the San Jacinto River Authority wrongfully terminated his employment, and Curry and Crawford, through threats and intimidation, effectuated that termination. This petition asked specifically for back pay as damages, along with reinstatement. Three days before the hearing on the motion for summary judgment, Duke filed a second amended petition. There is nothing in the record to indicate leave was granted for this untimely filing. This second amended petition differs from the first in that it makes allegations that Curry and Crawford “made or caused or be make [sic] many other various and sundry threats and actions against Plaintiff.” The petition concluded: “That because of Defendants’ unlawful conduct towards Plaintiff and their unlawful termination of Plaintiffs employment....” Clearly the second amended petition was seeking damages other than for the alleged wrongful termination.

The motion for summary judgment was based on Duke’s pleading failing to state a cause of action because he did not plead nor was there any proof of the only exception to the Texas employment-at-will doctrine established by Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). This case, once again, points out the wisdom of the rule in Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex. 1983), and Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), that is, the proper method of attacking the sufficiency of pleadings is by special exception. The protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where a plaintiff’s pleadings fail to state a cause of action. If the trial court granted leave to file the second amended petition, the summary judgment must be reversed because it did not dispose of all the causes of action. Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (Tex.1983). If the trial court did not grant leave, then the summary judgment must be reversed since Duke was deprived of the opportunity to amend his pleadings to state a cause of action. In any event, the result is the same. The summary judgment is reversed.

REVERSED.