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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, August 5, 2012

Special Exceptions Preservation of Error

Let's start at the beginning. In a Texas state civil case, what's a defendant to do when a plaintiff files a bogus lawsuit? A defendant would have many options. First, the petition should be examined for a missing or obscure element of something needful- a formal point or an element of the cause of action. Special exceptions to the petition would lie, or they would not. Also, if requested, the special exceptions might be granted, or might not be. That makes a matrix of four options:
  1. justified exceptions granted;
  2. justified exceptions not granted;
  3. unjustified exceptions granted; or
  4. unjustified exceptions not granted.
If justified exceptions were granted, generally, the petition would be struck. The striking order should give the plaintiff a chance to correct the problem. If the plaintiff does not, then there's no petition and the case should be dismissed. The plaintiff could appeal, but the appeal would fail.
If justified exceptions were not granted, the case would go on, but the exceptions would preserve appellate error for the defendant, giving a good basis for appeal.
If unjustified exceptions were granted, and repleading would not satisfy the court, the plaintiff should object to preserve error for appeal, and the plaintiff's appeal should be successful.
If unjustified exceptions are not granted, the trial goes on, and the defendant's appeal will not be successful.
Texas Rules of Civil Procedure

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