law-fair-notice-pleading | sufficiency of pleading | judgment not supported by pleadings | judgment must
conform to pleadings | trial by consent |
Texas follows a "fair notice" standard for pleading, in which the question is whether the opposing
party can ascertain from the pleading the nature and basic issues of the controversy. Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.2000). "The purpose of this rule is to give the
opposing party information sufficient to enable him to prepare a defense." Roark v. Allen, 633 S.W.
2d 804, 810 (Tex.1982). The test of fair notice is whether an opposing attorney of reasonable
competence, on review of the pleadings, can ascertain the nature and the basic issues of the
controversy and the testimony probably relevant. Bowen v. Robinson, 227 S.W.3d 86, 91 (Tex.App.-
Houston [1st Dist.] 2006, pet. denied).
The "fair notice" standard for pleading looks to whether the opposing party can ascertain from the pleading
the nature and basic issues of the controversy and what testimony will be relevant. Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see also Tex. R. Civ. P. 47(a) (a pleading "shall contain . . . a
short statement of the cause of action sufficient to give fair notice of the claim involved"); James v. Comm'n
for Lawyer Discipline, 310 S.W.3d 598, 608 (Tex. App.-Dallas 2010, no pet.). The fair notice pleading
standard serves to give the opposing party information sufficient to enable him to prepare a defense. Auld,
34 S.W.3d at 897. However, it also relieves the pleader of the burden of pleading evidentiary matters with
meticulous particularity. James, 310 S.W.3d at 608; Bowen v. Robinson, 227 S.W.3d 86, 91 (Tex. App.-
Houston [1st Dist.] 2006, pet. denied). In determining whether a pleading is adequate, we examine whether
an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the nature and
the basic issues of the controversy. James, 310 S.W.3d at 608; Bowen, 227 S.W.3d at 91. When, as here, no
special exceptions are filed, we construe pleadings liberally in favor of the pleader. Auld, 34 S.W.3d at 897.
FAIR NOTICE STANDARDS APPLICABLE TO PLEADINGS
Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (“Texas follows a ‘fair notice’ standard for pleading, in which
courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the
pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.”).
The material parts of Linda's answer and counterclaim do not contain a claim for attorney's fees based on
this provision of the Agreement.
A judgment cannot grant relief that is not contained in a party's pleadings. Stoner v. Thompson, 578
S.W.2d 679, 682, 683-84 (Tex. 1979). Generally, pleadings are sufficient if they give "fair and adequate
notice" of the party's claim. Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex. 1979). The only
mention in Linda's pleading of attorney's fees is found in her prayer. A general prayer cannot "enlarge a
pleading to the extent that it embraces an entirely different cause of action[,]" but factual allegations
contained within a pleading, joined with a prayer, may sometimes suffice as "fair notice" of a claim. See
Stoner, 578 S.W.2d at 684; Moore v. City of Beaumont, 195 S.W.2d 968, 976 (Tex. Civ. App.-Beaumont
1946), aff'd, 146 Tex. 46, 202 S.W.2d 448 (1947); see generally Mitchell v. LaFlamme, 60 S.W.3d 123, 130
(Tex. App.-Houston [14th Dist.] 2000, no pet.) (finding that, despite party's failure to plead applicable statute
to recover attorney's fees, pleadings sufficient where the party pled facts that entitled it to the relief sought).
Linda filed counterclaims for conversion and loss of revenue. She pled facts specifically addressing those
two claims. Linda's only reference to attorney's fees is found in her prayer. Linda's trial pleadings do not
provide any notice of her intent to invoke the suit-to-set-aside provision of the Agreement as the basis of her
prayer for attorney's fees. On appeal, Linda's request for attorney's fees is based on the suit-to-set-aside
provision of the Agreement; her attorney's fee claim is not based on the claims raised by her pleadings for
conversion or on Lewis's breach of his obligations to perform services on the family farm. See Tex. Civ. Prac.
& Rem. Code Ann. § 38.001(8) (Vernon 1997); Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
Because Linda failed to plead facts that put Lewis on fair notice of her intent to rely on the suit-to-set-aside
provision of the Agreement, her mention of attorney's fees in her prayer without some connection in her
pleadings to the suit-to-set-aside provision is not sufficient notice of the basis of her claim for attorney's fees
that she now asserts on appeal. See Kissman, 587 S.W.2d at 677 ("Only the relief consistent with the
theory of the claim reflected in the petition may be granted under a general prayer."); Stoner, 578 S.
W.2d at 684 (holding that a general prayer cannot "enlarge a pleading" to include a different cause of action
"for which fair notice does not exist"). We find no error in the trial court's failure to grant Linda's request for
attorney's fees and overrule Linda's third issue.
LEWIS TURNER v. LINDA TURNER; from Montgomery County; 9th district (09-06-00570-CV, ___ SW3d ___,
06-26-08) We sustain issue one to the extent it challenges the trial court's award of rescission and reform the
judgment to delete paragraph six. We sustain issue two in part as it relates to the trial court's award to Lewis
for intentional infliction of emotional distress