law-opportunity-to-amend | dismissal without opportunity to amend pleadings | special exceptions | plea to the
jurisdiction | pleading deficiency | failure-to-state-claim or viable cause of action upon which relief can be
granted by a Texas court to be addressed with special exceptions and opportunity to amend, not motion to
strike pleadings |
OPPORTUNITY TO AMEND TO AVOID DISMISSAL
“A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when
the pleadings do not state a cause of action upon which the trial court has jurisdiction.” Harris County v.
Sykes, 136 S.W.3d 635, 639 (Tex. 2004). Here, HS Tejas’s petition did not state a cause of action upon
which the trial court had jurisdiction. Therefore, the trial court erred in denying the City’s plea to the
jurisdiction. HS Tejas should be afforded the opportunity to amend its petition before its suit is dismissed with
prejudice.
City of Houston v. HS Tejas, Ltd. (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley)
(inverse condemnation, regulatory takings claim, plea to the jurisdiction proper, ripeness issue,
opportunity to amend)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00393-CV City of Houston v. HS Tejas, Ltd
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith
Opportunity to Cure Pleadings
In their second issue, appellants argue that they “were wrongfully denied an opportunity to replead” because
their “pleadings do not affirmatively demonstrate incurable defects in jurisdiction.” Appellants contend that
“before dismissing this case” the trial court “should have permitted [appellants] to amend their pleadings.”
If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, but do
not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiffs should be afforded the opportunity to amend. Tex. Dep’t of Parks & Wildlife, 133 S.W.3d at 226–27.
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff’s an opportunity to amend. Id. Although plaintiffs should generally be
allowed amend totheir pleadings while their case is pending before a trial court, they may forfeit this
opportunity through inaction. See Kassen v. Hatley, 887 S.W.2d 4, 13–14 n.10 (Tex. 1994) (stating that
plaintiffs waived complaint by not requesting opportunity to amend their pleadings after challenged by
opposing party); Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 347 (Tex. App.—Eastland, 2008, no pet.)
(same); Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 n.6 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
(noting that by not seeking leave to amend pleadings plaintiffs had arguably “waived the claim the trial court
erred in not allowing them time to amend”).
Cassidy v. TeamHealth, Inc. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings)(no standing to pursue
declaratory judgment claim, plea to the jurisdiction, opportunity to amend pleadings not exercised)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00324-CV Crystal Cassidy v. The American Academy of Emergency Medicine, The Texas Academy of
Emergency Medicine and Richard J. Ybarra v. TeamHealth, Inc., TeamHealth, P.A., Memorial Hermann
Healthcare System, ACS Primary Care Physcians Southwest, P.A., and Teamhealth West
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull
In April 2008, after the trial court had granted appellees’ pleas to the jurisdiction, appellants filed a motion for
new trial contending, in part, that the trial court “should have permitted [appellants] to amend their
pleadings.” However, nothing in the record indicates that appellants attempted to amend their pleadings or
requested that they be allowed to amend their pleadings. Nor does the record show that the trial court denied
appellants such an opportunity. Appellants did amend their petition in October 2007, adding Ybarra as a
plaintiff. In the following five months, before the trial court granted appellees’ pleas to the jurisdiction,
appellants did not amend or attempt to amend their pleadings. Additionally, although appellants complained
in their motion for new trial that they should be allowed to amend their pleadings, they did not present the trial
court with any proposed amendments. Likewise, on appeal, appellants have not described any proposed
amendments that would affect their standing. Accordingly, we hold that appellants have waived the
opportunity to amend their pleadings by not attempting to amend their pleadings at the trial court when they
had the opportunity to do so.
We overrule appellants’ second issue.
Texas A & M Univ. Sys. v. Koseoglu, No. 05-0321 (Tex. Sep. 7, 2007)(Green)
(public employment, government entities, sovereign immunity, breach of settlement agreement, ILA,
interlocutory appeal of ruling on plea to the jurisdiction/immunity defense, opportunity to amend)
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