Rosemary R. Deleon v. Harlingen Family Dentistry, Inc.

NUMBER 13-03-221-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ROSEMARY R. DELEON, Appellant, v. HARLINGEN FAMILY DENTISTRY, INC., Appellee. On appeal from the 404th District Court of Cameron County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Castillo Memorandum Opinion by Justice Yañez Appellant, Rosemary De Leon (“De Leon”), appeals from the trial court’s dismissal of her claims of religious and disability discrimination and retaliation against appellee, Harlingen Family Dentistry, P.C. (“the Clinic”), following the trial court’s granting of the Clinic’s special exceptions. Fourteen of the special exceptions requested specificity with regard to De Leon’s petition, while the remaining two challenged the petition on the basis of limitations. By three issues, appellant contends the trial court erred in: (1) sustaining the special exceptions; (2) dismissing her case; and (3) denying her motion for new trial. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. “The controlling issue in a case where the trial court sustains special exceptions and dismisses the cause of action following the plaintiff’s failure to properly amend is the propriety of the trial court’s ruling sustaining the special exceptions.” Holt v. Reprod. Serv., Inc., 946 S.W.2d 602, 604 (Tex. App.–Corpus Christi 1997, writ denied). The trial court is clothed with a large degree of discretion when ruling on special exceptions; the trial court’s ruling will not be upset absent an abuse of discretion. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex. App.–Corpus Christi 1978, writ ref’d n.r.e.). The test for abuse of discretion is whether the trial court’s actions were arbitrary or unreasonable, or done without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1986). When the effect of the trial court sustaining special exceptions is to dismiss the case, the allegations of the plaintiff’s petition must be taken as true by the reviewing court. Id. The record from the hearing on the Clinic’s motion to compel and special exceptions reflects that the Clinic’s counsel informed the court that “[w]e have an agreement on essentially everything. . . . The agreement is defendant [sic] special exception first amended original answer filed on April the 20th, 2001 be granted. That’s the agreement.” De Leon’s counsel did not object to the agreement, either at the hearing or at any point thereafter. Therefore, we conclude that De Leon’s failure to object to the stated agreement, as represented to the trial court, waived any right to complain of the agreement on appeal. See Tex. R. App. P. 33.1. A special exception agreed to by the parties in open court is a waiver of any error and cannot be assigned as error on appeal. Counts v. Counts, 358 S.W.2d 192, 199 (Tex. Civ. App.–Austin 1962, writ dism’d w.o.j.). Moreover, even absent an agreement, we conclude that the trial court was within its discretion to sustain special exceptions one through fourteen. See Union Prod. Co. v. Allen, 297 S.W.2d 867, 869-70 (Tex. Civ. App.–Beaumont 1957, no writ) (finding special exceptions requesting specificity regarding allegations in the plaintiff’s pleading should have been sustained). We hold the trial court properly sustained the Clinic’s special exceptions one through fourteen, and the trial court therefore did not err in dismissing De Leon’s petition following her failure to properly amend her petitition. Holt, 946 S.W.2d at 604. Following the sustaining of special exceptions directed at a pleading, a party has two options. Hubler, 564 S.W.2d at 820. She “may amend to meet the exception,” or she may refuse to amend, stand on her pleadings, and test the validity of the trial court’s ruling on appeal. Id. The trial court may dismiss the case only after allowing the party an opportunity to amend her pleadings following sustained special exceptions. Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). The trial court does not err when it dismisses a cause of action when it has properly sustained special exceptions and the plaintiff has failed to properly amend, or when the plaintiff’s petition does not state a cause of action. Holt, 946 S.W.2d at 604-05. De Leon failed to amend her petition after the trial court sustained the Clinic’s special exceptions, despite having more than ninety days in which to do so. Having allowed De Leon an opportunity to amend, the trial court was within its discretion to dismiss her action for failure to do so. See Holt, 946 S.W.2d at 604. We overrule De Leon’s first two issues. In her third issue, De Leon complains that the trial court erred in denying her motion for new trial because the allegations took place within the applicable limitations period. She contends all the acts alleged in her petition took place within the applicable limitations period. We already have determined that the trial court did not abuse its discretion in dismissing De Leon’s claims following her failure to amend. Thus, we need not address her remaining issue. See Tex. R. App. P. 47.1. The judgment of the trial court is AFFIRMED. _______________________ LINDA R. YAÑEZ, Justice Memorandum opinion delivered and filed this the 5th day of August, 2004.