This morning, the Third Court of Appeals issued a memorandum opinion that is useful for practitioners who file, respond to or appeal Special Exceptions. The opinion, written by Justice Patterson, affirms a trial court decision (by Judge Davis) to dismiss Plaintiffs’ lawsuit with prejudice when they failed to re-plead within 45 days of the Special Exceptions having been sustained.
Significantly, the Third Court did not consider whether or not the Special Exceptions were sustained properly or not in the first place, Justice Patterson being of the opinion that the appealing Plaintiffs waived that issue by not briefing it. That being the case, according to the Court, the Plaintiffs could not challenge the dismissal other than by making a showing that they did in fact re-plead (which apparently they did not, according to the opinion). In other words, without challenging the actual act of sustaining the special exceptions, the Appellants could not meaningfully challenge on appeal the trial court’s subsequent decision to dismiss the lawsuit with prejudice. So, even though the opinion was not reported, it states a critical rule anytime a practitioner is in the business of appealing a case involving special exceptions: you must challenge not only the aftermath of the special exceptions, but the special exceptions themselves.
Perry, et al. v. Cohen, et al.