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Questions regarding Special Exceptions and what is considered a special exception. What type of pleading would we use to oppose.

Business 4 views 4 answers
I am in attending a texas undergraduate college & my litigation class is holding mock trial. I have read rule tex civil rule 90 and from what I can tell special exceptions used when there is a defect in allegations? One of opposing teams has filed special exceptions for not using their proper name in body of our petition (ie "Defendant Macy's" not "Defendant Macy's, inc") in our facts and causes of action (caption is correct though). This is not an error as far as I can tell, much less a special exception. What type of pleading would we use to respond to this? A second group filed special exceptions as well because we used the wrong corporation name. Is this a legiti mate special exception or should they filed Motion for Abatement? We cant ask professor for guidance. Thank you

Attorney Answers

4
John Roper ·
You are correct that one files Rule 190 special exceptions when one asserts there is a defect, omission, or fault in the pleadings. To respond you would file a Response to Defendant's Special Exceptions. If you misnamed Macy's, a motion to abate would be the appropriate vehicle to raise the issue. Also look at Tex. R. Civ. P. 71. Have fun.
0 upvotes
Brian Crockett ·
I think your missing the spirit of the class. Generally to overcome a special exceptions you file - plaintiff's first amended original petition with the correct info. You could also file first amended and simply state Macy's inc. Incorrectly named Macy's corp. Etc.... If the right party answered then they have waived any objection to incorrect name.
0 upvotes
Constantine Buzunis ·
I agree with other counsel, you need to file a motion to abate.
0 upvotes
Konstantin Parkhomenko ·
Sounds like a fun class... Strategically, it's not always the best idea to fight the other side on every little detail. If this were a real case, I would probably simply amend the petition, thus fixing all of the alleged "defects" -- you don't even have to move the Court for leave to amend your pleadings unless you are trying to make that amendment during an actual trial. The second group should indeed have filed a plea in abatement; names are extremely important in litigation. If you really want to learn this material well, go out and read the O'Connor's "Texas Rules of Civil Trials" -- it's a great guide for this sort of thing. There's no substitute for doing this kind of research on your own.
0 upvotes

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