Opinion
04-22-00617-CV
07-05-2023
Jeffrey Walker ETHERIDGE, Appellant v. Eileen Catherine SHOWS, Appellee
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2022CI08919 Honorable Rosie Alvarado, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
AFFIRMED
In the underlying proceeding, appellant, Jeffrey Walker Etheridge, filed a petition for divorce. Appellee, Eileen Catherine Shows, filed a combined answer, special exceptions, motion to strike Etheridge's pleadings and dismiss the case, plea in abatement, and motion for sanctions all premised on her allegation that there was no existing marriage. Following a hearing, the trial court found there was no formal or informal marriage of the parties, ordered Etheridge's pleadings stricken, denied Shows's motion for sanctions, and dismissed the case with prejudice. Etheridge appealed. We affirm.
Shows declined to file an appellee's brief.
THE PARTIES' PLEADINGS
Etheridge filed his original petition for divorce on May 12, 2022 and he alleged the parties were married on or about July 1, 2014 and stopped living together as spouses on or about June 9, 2021. About two months later, Shows filed her original motion in which, among other things, she specially excepted to the dates of marriage as alleged by Etheridge and she asked the trial court to strike Etheridge's pleading and dismiss the suit because "the parties were never married formally and [Etheridge] did not plead for informal marriage." Etheridge later amended his petition to allege an informal marriage beginning on or about April 15, 2017. Shows filed an amended motion in which she again specially excepted to the 2014 through 2021 dates alleged in Etheridge's original petition and to the 2017 date alleged in his amended petition. She again asked the trial court to strike Etheridge's pleading and dismiss the suit because "the parties were never married formally and [Etheridge] did not plead for informal marriage."
A hearing on Shows's motion was held on August 30, 2022 and several witnesses testified. At the end of the hearing, the trial court found there was no informal marriage, granted the motion to strike and dismiss the suit, and denied the request for sanctions. The trial court later signed a written order in which it granted the motion to strike, dismissed the case based on its finding that "no formal or informal marriage of the parties" existed, and denied the request for sanctions.
DISCUSSION
Several of Etheridge's arguments on appeal are based on his contention that the trial court failed to analyze and correctly apply the law. The Texas Rules of Appellate Procedure require that a brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). A failure to provide citations or argument and analysis for the contentions can result in waiver. RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018). Etheridge's pro se brief consists of several grievances; therefore, it has been challenging to discern his legal issues on appeal. However, in the interest of justice, we will liberally construe his brief and attempt to address his appellate complaints, which, from what we can determine, pertain to the trial court's granting the motion to strike his pleadings and dismiss the case based on a finding that there was no formal or informal marriage of the parties. To the extent Etheridge has attempted to raise issues in his brief other than those addressed in this opinion, we hold those issues have been waived as inadequately briefed, and we overrule them. See 2008 Lexus GX470 v. State, 660 S.W.3d 541, 543 (Tex. App.-San Antonio 2022, no pet.) (holding same).
A. General Demurrer
Etheridge contends the order of dismissal "is the grant of a general demurrer which was abolished effective September 1, 1941 by the adoption of Texas Rules of Civil Procedure, Rule 90." Rule 90 provides as follows:
General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered.TEX. R. CIV. P. 90.
"A demurrer is an assertion by the defendant that admits the allegations in the plaintiff's pleading are true but contends that they are insufficient for the plaintiff to proceed with his case or to oblige the defendant to answer." Lucas v. Union Pac. R.R. Co., No. 2-04-128-CV, 2005 WL 627788, at *1 (Tex. App.-Fort Worth Mar. 17, 2005, no pet.) (mem. op.). "A demurrer on the ground that the complaint sets forth no cause of action is a general demurrer." Id.; see also Mitchell v. Berry, No. 05-06-01328-CV, 2007 WL 4111923, at *4 n.3 (Tex. App.-Dallas Nov. 20, 2007, pet. denied) (mem. op.) ("Black's Law Dictionary states a general exception is 'also termed general demurrer,' and it defines 'general exception' as 'An objection pointing out a substantial defect in an opponent's pleading, such as the insufficiency of the claim or the court's lack of subject-matter jurisdiction; an objection to a pleading for want of substance.'") (citation omitted).
This argument appears to be based on Etheridge's contention that the trial court's order was based on Shows's excepting to the dates of the alleged marriage in Etheridge's petition. We do not agree that the trial court's order was based on the special exceptions for two reasons. First, during the hearing, Shows's attorney conceded Etheridge's amended pleadings corrected the special exceptions. Second, the trial court's order does not contain a ruling on the special exceptions.
B. Rule 91a Dismissal of Baseless Causes of Action
Etheridge asserts the trial court erred because his suit was brought pursuant to the Family Code and, therefore, cannot be dismissed pursuant to Texas Rule of Civil Procedure 91a, which provides, in pertinent part, as follows:
Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.TEX. R. CIV. P. 91a.1.
Rule 91a "authoriz[es] dismissal of a cause of action that has no basis in law or fact." City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (citing TEX. R. CIV. P. 91a). "This determination is made without considering evidence." Strickland v. iHeartMedia, Inc., 665 S.W.3d 739, 742 (Tex. App.-San Antonio 2023, pet. denied); see also TEX. R. CIV. P. 91a.6 ("Except as required by 91a.7 [award of costs and attorney fees], the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59."). Etheridge's argument lacks merit for two reasons. First, Shows did not move to dismiss the case on the grounds that Etheridge's petition for divorce had no basis in law or fact; therefore, this did not form a basis for the trial court's ruling. See TEX. R. CIV. P. 91a.1. Second, Shows moved to dismiss the case based on her argument that the parties were never married, and the trial court considered evidence on this question. See id. 91a.6.
C. Due Process of Law
Etheridge contends the trial court erred by considering evidence on the motion to strike his pleadings and dismiss the case because doing so "converted the proceeding into either a Summary Judgment proceeding or a trial on the merits without due process of law." Etheridge provides no authoritative support for this contention; therefore, this argument is waived as inadequately briefed.
D. Pleading Evidence
Etheridge asserts, with no argument, that Family Code section 6.402 and Texas Rules of Civil Procedure 45(b) and 47(a) "do not require a party to plead evidence." Family Code section 6.402, entitled "Pleadings," states, in pertinent part, as follows: "A petition in a suit for dissolution of a marriage is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute." TEX. FAM. CODE § 6.402(a). Rules of Civil Procedure 45 and 47 also pertain to the content of pleadings. Neither section 6.402(a) nor Rules 45 or 47 pertain to whether a party must present evidence at a hearing. Therefore, this argument lacks merit.
"Pleadings in the district and county courts shall . . . 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 ...." TEX. R. CIV. P. 45(b).
Stating the contents of "[a]n original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim ...." Id. at 47.
E. Plea in Abatement and Special Exception
Etheridge asserts the trial court's order of dismissal was "in effect . . . a grant of [Shows's] Plea in Abatement and Special Exception." He argues a plea in abatement may not be used to determine the merits of a cause of action and a motion for summary judgment should not be based on a pleading deficiency. Etheridge contends Shows's motion to strike the pleadings and dismiss the case was based on an alleged pleading defect and a lack of evidence. According to Etheridge, the proper remedy was to provide him the opportunity to amend his pleadings. As stated above, the trial court did not base its order on Shows's special exception. Her plea in abatement merely requested that the cause be abated until Etheridge "can prove that a valid ceremonial or informal marriage exists between the parties." At the hearing, both parties had the opportunity to present evidence on the existence of a marriage. Therefore, this argument is without merit.
CONCLUSION
We overrule Etheridge's issues on appeal and affirm the trial court's judgment.