Texas Rules of Civil Procedure 45 and 47 appear innocuous and are listed under the general pleading requirements for pleadings in the district and county courts in Texas. Buried in Rule 45 is the requirement that “fair notice to the opponent” be given. Rule 45 states: “Pleadings in the district and county courts shall (a) be by petition and answer; (b) consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be grounds for an objection when fair notice to the opponent is given by the allegations as a whole; and (c) contain any other matter which may be required by any law or rule authorizing or regulating any particular action or defense.” The fair notice requirement applies both to the petition filed by plaintiff and the answer filed by defendant. Rule 45 is supplemented by its sister rule, Texas Rule of Civil Procedure 47, which provides more specific requirements for “claims for relief” whether that claim is via petition, counterclaim, cross-claim or third party petition.
Rule 47 states that “An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain: (a) a short statement of the cause of action sufficient to give fair notice of the claim involved; (b) a statement that the damages sought are within the jurisdictional limits of the court; (c) except in suits governed by the Family Code, a statement that the party seeks monetary relief in one of five levels; and (d) a demand for judgment for all the other relief to which the party deems himself entitled.
Rarely does the issue of fair notice come up when a Defendant answers because if the pleadings lack fair notice, the Defendant simply files a special exception and asks the court to order the opposing party to replead and provide more information. However, it comes up regularly when a no-answer default judgment is taken and the judgment is challenged after the fact but still while the court has jurisdiction. In Paz v. Fatima Construction & Cleaning Company, 2016 Tex. App. LEXIS 8018 (Tex. App.- Dallas 2016, mem. opin.) the Dallas Court of Appeals discussed fair notice in the context of a no-answer default judgment.
In Paz, Paz, a pro se defendant, had meet with Plaintiff’s counsel and had even received a proposed Rule 11 Agreement extending her answer date. However, she had not agreed or signed it or filed it and therefore, it was not enforceable under the Texas Rules of CIvil Procedure. Plaintiff went ahead and took a default judgment and Paz filed an unverified motion for new trial which was denied. She then filed an appeal arguing that the pleadings did not provide fair notice to support the Default Judgment that had been entered because of the lack of specific allegations concerning her.
In reversing the entry of the default judgment because of the lack of fair notice as to specific allegations against Paz, the Dallas Court of Appeals held that a default judgment must be supported by a petition that states a cause of action. Paz v. Fatima Construction & Cleaning Company, 2016 Tex. App. LEXIS 8018 (Tex. App.- Dallas 2016, mem. opin.), citing, Fairdale Ltd. v. Sellers, 651 S.W.2d 725 (Tex. 1982). The key in determining if a cause of action is plead and provides fair notice is whether the trial court is able to determine from the pleadings alone the elements of the cause of action and the relief sought with reasonable certainty and without resorting to other sources. Id. The purpose of this rule is to ensure that defendant had fair notice of the basis of plaintiff’s cause of action. Id.; Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979).
In determining fair notice, the pleadings must provide the defendant with sufficient information to enable him to determine the basis of the claims and must not disclose any invalidity in the claim on its face. Paz v. Fatima Construction & Cleaning Company, 2016 Tex. App. LEXIS 8018 (Tex. App.- Dallas 2016, mem. opin.), citing, Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988). Here, the petition alleging violations of the DTPA that was the basis of the default judgment did not specify that Paz made any misrepresentation or show that Paz was responsible for the actions of the other defendants. On the contrary, the petition alleged that Paz was an agent of one of the other defendants and did not plead any specific independent misrepresentations by Paz. Taking all the facts plead into consideration, the Dallas Court of Appeals could not find support for the DTPA claim against Paz and reversed the default judgment for the lack of fair notice.
There are a number of takeaways from this opinion. The main one is that, despite the low standard of fair notice compared to federal court pleading requirements, you should be as specific as possible when you plead. Texas rules are pretty lenient governing amending and supplementing pleadings so while you can clean up your pleadings later, it is better to spend a little time up front and do the best you can on your initial pleading. It will also enhance your credibility. I also recommend a checklist comparing what has been plead and the elements necessary to support your cause of action(s) versus what you are asking the court to do. While courts can give you a pass on specifically alleging each element of a cause of action if the cause of action can be reasonably inferred (see Westcliffe, Inc. v. Bear Creek Constr. Ltd., 105 S.W.3d 286, 292 (Tex. App.-Dallas 2003, no pet.), it is much easier to put it in the pleadings than explain why all the elements of a cause of action should be reasonably inferred to be present and fair notice given.
The opinions in this blog are solely the author’s and any comments or suggestions should be sent to john@jrjoneslaw.com. Happy New Year and on to 2017! Thank you for your support and encouragement.
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