Bill Carey and Chantal Carey, Individually and as Trustee for the Smith Moore Williams Historical Trust v. Mosser Law PLLC ( 2024 )

AFFIRMED and Opinion Filed July 31, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00411-CV
BILL CAREY AND CHANTAL CAREY, INDIVIDUALLY AND AS
TRUSTEE FOR THE SMITH MOORE WILLIAMS HISTORICAL TRUST,
Appellants
V.
MOSSER LAW PLLC, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-02116-2021
MEMORANDUM OPINION
Before Justices Garcia, Breedlove, and Kennedy
Opinion by Justice Breedlove
This is an appeal of the trial court’s dismissal with prejudice of appellants Bill
and Chantal Carey’s1 claims against appellee Mosser Law PLLC following the
sustaining of special exceptions. The Careys argue that the trial judge erred by
dismissing their claims with prejudice because their pleadings provided fair notice
and they made a good faith effort to amend their pleadings to comply with the court’s
1
Bill and Chantal Carey brought this suit both individually and as trustees for the Smith Moore
Williams Historical Trust. However, for simplicity, we refer to them as “the Careys.”
order. We conclude that the trial court did not err in, first, requiring the Careys to
replead in accordance with the defects identified in its order and, second, in
dismissing the Careys’ claims after they failed to correct those defects. Accordingly,
we affirm the trial court’s judgment.
BACKGROUND
Mosser Law was hired to represent the Careys in a lawsuit brought against
them by the City of Bonham, Texas. After successfully defending the suit, Mosser
Law brought suit on a sworn account against the Careys in April 2021 for the
attorney’s fees the Careys incurred for services rendered in representing them in the
City of Bonham lawsuit.
The Careys filed an Original Answer and Counter-Claims alleging breach of
fiduciary duty, fraud, violations of the Deceptive Trade Practices Act, and
affirmative defenses including failure of consideration, fraud, estoppel, and
illegality. On December 6, 2022, Mosser Law filed 19 special exceptions to the
Careys’ affirmative defenses, damages allegations, and the breach of fiduciary duty
counterclaim.
On February 6, 2023, the trial court sustained all but one of Mosser Law’s
special exceptions.2 The trial court ordered the Careys to replead by February 27,
2
The trial court only denied special exception 16, Mosser Law’s request for the trial court to require
each of the named defendants to file separate affidavits.
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2023 and warned that a failure to cure would result in the court striking the defective
paragraphs.
On February 27, 2023, the Careys filed their First Amended Original Answer
and Counter-Claims. The next day, Mosser Law moved to strike all of the Careys’
pleadings that were not cured of their defects and asked the court to grant attorney’s
fees and damages. The same day, Mosser Law also filed a separate motion to strike
and motion for sanctions for failure to serve the filed documents according to Texas
Rule of Civil Procedure 21a(a)(1). In the second motion, Mosser Law re-alleged its
arguments from its prior motion to strike and added arguments to support its request
for sanctions against the Careys’ counsel, James Bo Brown, and for attorney’s fees
and damages.
By order dated March 6, 2023, the trial court struck paragraphs 4–9 and 19
from the Careys’ Original Answer and Counter-Claims, granted Mosser Law its
attorney’s fees, granted sanctions against Brown, and also dismissed the Careys’
Original Answer and Counter-Claims with Prejudice.3
The Careys filed a motion for reconsideration on March 13, 2023. Two days
later, and without leave of court, the Careys filed their Second Amended Original
Answer and Counter-Claims.
3
It is unclear why the trial court referred to the “Original Answer and Counter-Claims” when the
“Amended Answer and Counter-Claims" was the live pleading before the court at the time it issued its
order.
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On March 16, 2023, Mosser Law again moved to strike the Careys’ pleadings,
alleging that the Second Amended Answer and Counter-Claims repleads facts that
were struck by the trial court and re-urging the arguments made in its prior motions
to strike. In this new motion, however, in addition to asking the court to strike the
defective paragraphs in the Careys’ Second Amended Answer and Counter-Claims,
Mosser Law asked the court to strike the Careys’ Second Amended Answer in its
entirety, dismiss the case with prejudice, and award attorney’s fees and damages to
Mosser Law.
On April 13, 2023, the trial court signed an Amended Order on Plaintiff’s
Motion to Strike Defendants’ Pleadings and Sanctions. The order again struck
paragraphs 4–9 and 19, struck the amount of damages sought by the Careys, granted
Mosser Law its attorney’s fees, and ordered sanctions against the Careys. The trial
court also dismissed the Carey’s Original Answer and Counter-Claims with
prejudice.4
Later the same day, the trial court submitted a Supplemental Final Judgment.
The Supplemental Final Judgment included the following:
On 6 April 2023, the Court held a hearing for Plaintiff’s Motion to
Strike Defendants’ Second Amended Original Answer and
Counterclaims and for Defendants’ Motion to reconsider the Court’s 6
March 2023 Order striking Defendants’ Pleadings. The Court orally
GRANTED Plaintiff’s request to Strike Defendants’ Second Amended
4
It is unclear why the trial court again directed its order to the Original Answer and Counter-Claims
instead of the timely-filed Amended Answer and Counter-Claims, or, alternatively, the untimely filed
Second Amended Answer and Counter-Claims.
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Original Answer and Counterclaims and DENIED Defendants’ Motion
to Reconsider. Plaintiff has attached its attorney’s fees declaration and
evidence for the above numbered and captioned lawsuit as an unsworn
declaration signed by James C. Mosser, Attorney in Charge.
All matters in controversy, legal and factual, were submitted to the
Court for its determination. The Court heard the evidence and
arguments of counsel and announced its decision for Plaintiff. Plaintiff
now files a Final Judgment based on the Court’s decision.
The Court RENDERED judgment for Plaintiff on 6 April 2023. This
written judgment memorializes that rendition.
1. Accordingly, the Court orders that Plaintiff recover the following
from Defendants, jointly and severally:
a. Actual damages in the amount of $69,962.50, plus interest at
the rate of 5% per annum,
b. Reasonable and necessary attorney fees in the amount of
$60,934.00, for the prosecution of this case through this
judgment.
c. If this matter is taken to any intermediate appellate court
additional attorneys fees would reasonably be $60,000 if the
plaintiff prevails on appeal.
d. If this matter is taken to Texas Supreme Court additional
attorneys fees would reasonably be $120,000 if the plaintiff
prevails on appeal.
e. Court costs in the amount of $2,034.00.
f. Post judgment interest at the rate of 5% per annum,
compounded annually, from the date this judgment is
rendered until all amounts are paid in full.
2. This supplemental judgment finally disposes of all claims and all
parties and is appealable.
This appeal followed.
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STANDARD OF REVIEW
Review of a trial court’s dismissal of a case based on the grant of special
exceptions requires examination of two distinct rulings: (1) the decision to sustain
the special exceptions; and (2) the decision to dismiss the cause of action. Connolly
v. Gasmire, 257 S.W.3d 831, 836 (Tex. App.—Dallas 2008, no pet.) (citing Cole v.
Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ dism’d w.o.j.). First, an
appellate court reviews the propriety of the trial court’s decision to grant the special
exceptions. Id. Then, if the trial court’s decision to sustain the special exceptions
was proper, an appellate court reviews whether the decision to dismiss the case was
appropriate. Id.A trial court has broad discretion in ruling on special exceptions. Id. (citing
Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex. App.—Dallas
2005, no pet.). In reviewing a trial court’s grant of special exceptions, we accept as
true all the material factual allegations and all factual statements reasonably inferred
from the allegations set forth in the pleadings. Sorokolit v. Rhodes, 889 S.W.2d 239,
240 (Tex. 1994). A trial court’s ruling on special exceptions is reversed only if there
has been an abuse of discretion. Connolly, 257 S.W.3d at 838. A trial court abuses
its discretion if its action is arbitrary, unreasonable, and without reference to any
guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985), and Adams, 154 S.W.3d at 876).
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“If the trial court properly sustained the special exceptions and the party
refuses or fails to amend, the trial court does not err in dismissing the cause of
action.” Id. “If the remainder of the pleading does not state a cause of action, the trial
court does not err in dismissing the entire case.” Cole, 864 S.W.2d at 566; see also
Jackson v. City of Galveston, 837 S.W.2d 868, 869 (Tex. App.—Houston [14th
Dist.] 1992, writ denied) (dismissal of case is proper where trial court properly
sustains special exceptions, remainder of petition states no cause of action, and
pleader refuses to amend). We review de novo the trial court’s legal conclusions as
to whether the pleading adequately states a cause of action. See Boales v. Brighton
Builders, Inc., 29 S.W.3d 159, 163 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied).
DISCUSSION
A. Waiver of Challenge to the Dismissal Order
“Both the final order of dismissal and the interlocutory order granting special
exceptions must be challenged in order for the merits of the order granting special
exceptions to be reviewed.” Perry v. Cohen, 272 S.W.3d 585, 588 (Tex. 2008) (per
curiam); Cole, 864 S.W.2d at 563. Citing Cole, Mosser Law argues that the Careys
waived their challenge to the dismissal order by failing to challenge the trial court’s
ruling on the underlying special exceptions.
In Cole, the trial court sustained the defendant’s special exceptions to Cole’s
claims for tortious interference and breach of the duty of good faith and fair dealing.
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Id. at 565. After Cole failed to amend her pleading in response to the trial court’s
ruling, the court dismissed her suit for failure to state a cause of action. Id. On appeal,
Cole did not challenge the propriety of the trial court’s ruling on the special
exceptions or discuss the merits of the special exceptions at all. Id. at 567. Instead,
Cole “discusse[d] only the elements of tortious interference and why her pleading
contained each element.” Id. We concluded that Cole “waived any error by the trial
court in sustaining the special exceptions,” explaining that “[w]hen a trial court
properly sustains special exceptions and the plaintiff refuses to amend, the trial court
does not err in dismissing the cause of action.” Id.
Here, although the Careys’ brief lacks a specific statement of issues, they
argue that they amended their pleadings in response to Mosser Law’s special
exceptions to omit “all allegations . . . except those concerning fraud in the
inducement and attorney fees” and to “provide[ ] facts in the body of the
counterclaim which supported these allegations.” See Perry, 272 S.W.3d at 588
(appellants preserved error by challenging merits of special exceptions order in body
of their appellate brief). They also explain that they “made a good faith effort to
comply” with the trial court’s order in their amended pleading and “asked [the trial
court] for an opportunity to replead the petition” “if these changes were not
sufficient.” They contend that because they made “a good faith attempt to cure the
defect in an amended petition” and Mosser Law did not file special exceptions to the
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amendment, they should have been given another opportunity to amend before the
trial court dismissed their claims.
In Perry, the supreme court cautioned that “[a]ppellate briefs are to be
construed reasonably, yet liberally, so that the right to appellate review is not lost by
waiver.” Id. at 587. “Simply stated, appellate courts should reach the merits of an
appeal whenever reasonably possible.” Id. And in Perry, the supreme court held that
the appellants did not waive review of the special exceptions’ merits by failing to
present a separate appellate issue challenging the trial court’s special exceptions
order. Id. at 588. We conclude that in the body of their brief, the Careys sufficiently
challenged both the trial court’s order granting Mosser Law’s special exceptions and
the order dismissing their suit. See id. at 558 (issue challenging dismissal was
sufficient where supporting argument addressed merits of order sustaining special
exceptions). Accordingly, we consider the merits of the Careys’ challenges to the
trial court’s orders and judgment.
B. Challenge to the Trial Court’s Order Granting Special Exceptions
We must next consider whether the trial court abused its discretion in granting
the special exceptions. See Connolly, 257 S.W.3d at 836 (citing Cole, 864 S.W.2d
at 566. Special exceptions may be used to challenge the sufficiency of a pleading.
Gatten v. McCarley, 391 S.W.3d 669, 673 (Tex. App.—Dallas 2013, no pet.). The
purpose of a special exception is to compel clarification of pleadings when the
pleadings are not sufficiently specific or fail to plead a cause of action. Id. If a trial
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court grants special exceptions, the pleader may either amend her petition to cure the
defect or stand on the pleadings and test the decision on appeal. Doe v. Univ. of the
Incarnate Word, No. 04-19-00453-CV, 2020 WL 3260080, at *1 (Tex. App.—San
Antonio June 17, 2020, no pet.) (mem. op.).
The Careys contend that they were harmed when Mosser Law fraudulently
induced them into a contract for legal services and charged them fraudulent legal
fees. Mosser Law specially excepted to the following:
1. Plaintiff specially excepts to paragraph four (4) because Defendants’
pleading does not give fair notice of Defendants’ claim of Failure of
Consideration. The facts set out in Defendants’ Original Answer do not
specifically allege any facts to support this claim, and instead the claim
is generally stated without explanation.
2. Plaintiff specially excepts to paragraph five (5) because Defendants’
pleading does not give fair notice of Defendants’ claims of False
Pretenses, Duress, and Coercion. The facts presented by Defendants in
their Original Answer do not state with specificity any facts that support
these claims.
3. Plaintiff specially excepts to paragraph six (6) because Defendants’
pleading does not give fair notice of Defendants’ claims of Doctrine of
Estoppel and Unclean Hands. Defendants do not state any facts that
meet the elements of either claim, and instead only offer a general
statement of the claims and continue in their Original Answer.
4. Plaintiff specially excepts to paragraph seven (7) because
Defendants’ pleading does not give fair notice of Defendants’ claim of
fraud. Defendants do not state how Plaintiff allegedly committed fraud,
and only make this general accusation without explanation.
5. Plaintiff specially excepts to paragraph eight (8) because Defendants’
pleading does not give fair notice of Defendants’ claim of the Doctrine
of Illegality. Defendants once again provide only a general statement
of a claim without offering any surrounding facts to bolster their claim.
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6. Plaintiff specially excepts to paragraph four (4) because Defendants
did not plead enough facts for Plaintiff to ascertain what Defendants are
relying upon for their claim against Plaintiff of Failure of
Consideration….It is unclear in Defendants’ Original Answer if they
mean [the included] definition or some other definition.
7. Plaintiff specially excepts to paragraph five (5) because Defendants
did not plead enough facts for Plaintiff to ascertain what Defendants are
relying upon for their claim against Plaintiff of False
Pretenses…..Defendants have not offered enough facts in their Original
Answer to fully explain to Plaintiff which definition Defendants are
claiming against Plaintiff.
8. Plaintiff specially excepts to paragraph five (5) because Defendants
did not specify of their claim of Duress….Defendants did not list any
element of this claim…
9. Plaintiff specially excepts to paragraph four (4) because Defendants
did not plead enough facts for Plaintiff to ascertain what Defendants are
relying upon for their claim against Plaintiff of Coercion. There are
many definitions provided by Texas case law…. Defendants have not
specified which definition or set of elements they are relying upon for
this claim.
10. Plaintiff specially excepts to paragraph six (6) because Defendants
did not plead all elements of their claims for Doctrine of Estoppel.
Specifically Defendants did not list any element of Doctrine of
Estoppel…
11. Plaintiff specially excepts to paragraph six (6) because Defendants
did not plead all elements of their claim of Unclean Hands….
12. Plaintiff specially excepts to paragraph seven (7) because
Defendants did not plead all elements of their claim of Fraud….
13. Plaintiff specially excepts to paragraph eight (8) because
Defendants did not plead enough facts for Plaintiff to ascertain what
Defendants are relying upon for their claim against Plaintiff under the
Doctrine of Illegality. Defendants have not specified a distinct
definition of Doctrine of Illegality…The Doctrine of Illegality is too
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general of a term for Plaintiff to ascertain what exactly Defendants are
claiming against Plaintiff.
14. Plaintiff specially excepts to paragraph nine (9) because Defendants
did not provide enough facts of how Plaintiff did not keep Defendants
“reasonably informed.” This conclusive statement is too general, and
the facts provided do not give Plaintiff enough facts to understand what
Defendants are claiming. Defendants do not define what “reasonably
informed” means, nor do they state how Plaintiff missed the mark of
what Defendants would consider “reasonably informed.”
15. Plaintiff specially excepts to paragraph nine (9) regarding
Defendants’ claim that Plaintiff exaggerated, embellished and
overbilled his time. Plaintiff provided a Statement of Accounts as
Exhibit B, and a Transaction Listing as Exhibit C in their Original
Petition. Defendant did not refer to any listing or transaction that shows
exaggeration, embellishment, or overbilling. Instead, Defendants claim
general statement without any surrounding facts. Defendants are either
unable or unwilling to cite to Plaintiff’s offered Exhibits to make a
direct claim against Plaintiff. Defendants should state specific facts to
support their claim against Plaintiff…
16. Plaintiff specially excepts to Defendants’ pleading because
Defendants did not verify it properly. Defendants attach only one (1)
affidavit signed by Chantal Carey in her individual capacity. However,
there are four (4) Defendants in the above numbered and captioned
lawsuit. Each Defendant is represented individually as well as a Trustee
for the Smith Moore Williams Historical Trust. Therefore, all
Defendants must submit an affidavit according to the Texas Rules of
Civil Procedure.5
17. Plaintiff specially excepts to paragraph nineteen (19) regarding the
relief sought for consequential damages. Defendants request
consequential damages which are special damages according to Texas
case law….Plaintiff asks the Court to require Defendants to specify the
amount of special damages claimed against Plaintiff.
18. Plaintiff specially excepts to paragraph nineteen (19) regarding the
relief sought for exemplary damages. Defendants request exemplary
5
This special exception was the only one not sustained by the trial court.
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damages without specifically pleading and proving their claim for
exemplary damages….Plaintiff asks the Court to require Defendants to
specify the amount exemplary damages that Defendants are seeking
and claiming against Plaintiff…
19. Plaintiff also asks the Court to require Defendants to specify the
maximum amount that Defendants claim for their damages….
The trial court granted special exceptions on 18 of the 19 grounds requested
by Mosser Law and required the Careys to replead in order to cure the defects
identified by the 18 sustained special exceptions.
We review the pleadings to determine whether the trial court abused its
discretion in granting Mosser Law’s special exceptions. Cole, 864 S.W.2d at 566;
Muecke v. Hallstead, 25 S.W.3d, 221, 224 (Tex. App.—San Antonio 2000, reh’g
overruled); see also Holt v. Reprod. Servs. Inc., 946 S.W.2d 602, 604 (Tex. App.—
Corpus Christi-Edinburgh 1997, pet. denied). The Carey’s Original Answer and
Counter-Claims was the live pleading before the trial court when it granted special
exceptions. Upon review of the allegations in the original pleading, we conclude the
trial court did not abuse its discretion in granting Mosser Law’s special exceptions.
The Careys’ pleadings were not sufficiently specific or failed to plead facts or
elements to support their causes of action, and granting of the special exceptions was
therefore proper. See Perry, 285 S.W.3d at 144; Gatten, 391 S.W.3d at 673. We
further conclude that the trial court acted within its discretion to require the Careys
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to replead in compliance with the additional information sought by Mosser Law as
stated in the sustained exceptions. See Perry, 285 S.W.3d at 144.
We next consider whether the trial court erred in dismissing the Careys’
claims for failure to comply with the trial court’s order granting special exceptions.
C. Dismissal of the Careys’ Claims
The trial court granted Mosser Law’s Motion to Strike Defendants’ Pleadings
and Sanctions for failure to replead in accordance with its Order on Plaintiff’s
Special Exceptions, and struck paragraphs four through nine and nineteen of the
Careys’ amended answer, which included all of the Careys’ affirmative defenses and
one of its counter-claims, as well as the Careys’ entire claim for damages.
Mosser Law did not file special exceptions to the Careys’ amended pleading
before filing their motion to strike. We acknowledge that this Court has recently held
in J.G. v. Jones, 660 S.W.3d 786 (Tex. App.—Dallas 2023, pet. denied) that where
a party makes a good faith attempt to cure the defects outlined in granted special
exceptions, the excepting party must file special exceptions to the amended pleading
before dismissal is warranted. However, we conclude that this case is distinguishable
from Jones because, as discussed in detail below, the Careys did not make a good
faith attempt to correct the defects in their original pleading. See Perry, 285 S.W.3d
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at 137 (affirming dismissal despite a lack of new special exceptions to the amended
pleading).
When a trial court properly grants special exceptions and the party refuses to
amend in compliance with the trial court’s order, the trial court does not err in
dismissing the cause of action. Cole, 864 S.W.2d at 567 (citing Davis v. Quality Pest
Control, 641 S.W.2d 324, 328, 330 (Tex. Civ. App.—Houston [14th Dist.] 1982,
writ ref’d n.r.e.); Townsend v. Memorial Med. Ctr., 529 S.W.2d 264, 267 (Tex. Civ.
App.—Corpus Christi 1975, writ ref’d n.r.e.)). In determining whether the trial court
erred in dismissing the Careys’ claims, we consider whether the Careys’ amended
answer complied with the trial court’s order. We take all allegations, facts, and
inferences in the pleadings as true and view them in the light most favorable to the
Careys. See Boales, 29 S.W.3d at 163.
In their amended answer, paragraphs four through nine appear to be identical,
or nearly so, to that of the original answer. Paragraph 19 which includes the Careys’
damages allegations, has no changes except that the items were renumbered properly
in the amended answer. Comparing the allegations of damages or injury from the
original answer to the amended answer, it is clear that the Careys made no attempts
whatsoever to address the issues raised by Mosser Law or included the trial court’s
order. Further, the Careys provided no explanation for their failure to do so, arguing,
in essence, that dismissal was improper because their original answer was sufficient
and did not need to be amended to comply with fair notice pleading standards.
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Given that the Careys repeat almost verbatim the same allegations with
respect to the claims against and damages allegedly sustained as a result of Mosser
Law’s alleged misconduct in both the original and amended answers, the Careys did
not make a good faith attempt to comply with the trial court’s order. Accordingly,
we hold the trial court did not err in dismissing the Careys’ affirmative defenses and
counterclaims. See Cole, 864 S.W.2d at 566; Sanchez, 844 S.W.2d at 290–91.
D. Dismissal with Prejudice
To the extent the Careys’ brief can be construed to argue that the trial court
erred in granting dismissal “with prejudice,” we find this argument to be without
merit. Generally, if the special exceptions could have been cured by amendment,
dismissal should be without prejudice. Mossler v. Shields, 818 S.W.2d 752 (Tex.
1991). In the trial court’s order granting special exceptions, the trial court gave the
Careys 21 days to replead in compliance with its order. However, dismissal with
prejudice is proper when plaintiff fails to amend deficient pleadings after being given
opportunity to do so. See Lentworth v. Trahan, 981 S.W.2d 720, 722–23 (Tex.
App.—Houston [1st Dist.] 1998, no pet.); Hubler v. Cty. of Corpus Christi, 564
S.W.2d 816, 823 (Tex. Civ. App.—Corpus Christi 1978, pet. ref’d. n.r.e.).
The record reflects that, in addition to their Original Answer and Counter-
Claims, the Careys filed their Amended Answer and Counter-Claims prior to Mosser
Law’s motion to strike and prior to the trial court’s order of dismissal but chose not
to file their Second Amended Answer and Counter-Claims in response to Mosser
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Law’s renewed objections until after the trial court ruled on the motion to dismiss,
over a month after the trial court’s deadline to correct the errors identified in its
order. Further, the trial court waited to dismiss the claims for an additional eight
days after the Careys’ amendment was due and seven days after Mosser Law filed
its motion to strike, putting the Careys on notice that their Amended Answer and
Counter-Claims was still deficient. During that time, the Careys could have filed
their Second Amended Answer and Counter-Claims, along with a motion for leave,
to address the inadequacies included in the motion to strike. It was only after the
Careys filed a motion for continuance, without attempting to address any of Mosser
Law’s exceptions, that the trial court dismissed the claims.
The language on the last page of the court’s order requiring the Careys to
“replead and cure the defects identified by the special exceptions that were
sustained,” standing alone, may not have been sufficiently specific to inform the
Careys of what they needed to do to comply with the order. However, this statement
cannot be viewed in isolation; in the context of the entire order, as well as the motion
upon which the order was based, it is clear that the Careys were provided detailed
information with which to cure the defects in their pleadings. The Careys were
directed to specific paragraphs and provided an explanation of the defects therein
and yet chose to forgo making the changes identified in the first five pages of the
order and the motion upon which it was based. On this record, we cannot say that
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the trial court abused its discretion in dismissing the Careys’ claims with prejudice.
See Lentworth, 981 S.W.2d at 722–23; Hubler, 564 S.W.2d at 823.
Because we hold that the trial court did not err either in granting the special
exceptions or dismissing the Careys’ affirmative defenses and counterclaims with
prejudice after they failed to correct the defects identified in the trial court’s order,
we overrule the Careys’ sole issue.
CONCLUSION
We affirm the trial court’s judgment.
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
230411F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BILL CAREY AND CHANTAL On Appeal from the 429th Judicial
CAREY, INDIVIDUALLY AND AS District Court, Collin County, Texas
TRUSTEE FOR THE SMITH Trial Court Cause No. 429-02116-
MOORE WILLIAMS HISTORICAL 2021.
TRUST, Appellants Opinion delivered by Justice
Breedlove Justices Garcia and
No. 05-23-00411-CV V. Kennedy participating.
MOSSER LAW PLLC, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee MOSSER LAW PLLC recover its costs of
this appeal from appellants BILL CAREY AND CHANTAL CAREY,
INDIVIDUALLY AND AS TRUSTEE FOR THE SMITH MOORE WILLIAMS
HISTORICAL TRUST.
Judgment entered July 31, 2024.
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