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Ford v. Performance Aircraft Services9/8/2005
This case involves the propriety of the trial court's order dismissing appellants Gary and Blinda Ford's negligence, failure to warn, and strict liability claims against appellees Performance Aircraft Services, Inc. and Robert Jones for the Fords' failure to amend their pleadings within the time specified by the trial court. In four issues, the Fords contend that the trial court abused its discretion by sustaining appellees' special exceptions to the Fords' petition, dismissing the Fords' case without trying lesser sanctions first, and dismissing the Fords' case in light of their untimely first amended petition, which was filed before the trial court entered its dismissal order, and that it denied them due process. We affirm.
Background Facts
The Fords filed suit against appellees alleging negligence, failure to warn, and strict liability in connection with Performance Aircraft's use of chemicals to clean airplane parts in a hangar where Gary Ford worked. Appellees filed special exceptions to the Fords' petition, alleging that the petition failed to state the maximum amount of damages pled in accordance with Texas Rule of Civil Procedure 47; that it failed to give fair notice of the Fords' claims against Jones, the president of Performance Aircraft, because it did not allege any facts that would support imposing liability upon Jones in his individual capacity; and that it did not give appellees fair notice of the products the Fords claimed were defective. The trial court granted appellees' special exceptions and gave the Fords nine months to replead. The trial court's order stated that if the Fords failed to replead within nine months, the case would be dismissed automatically.
Eleven days after the nine-month deadline for repleading, on June 16, 2004, the Fords filed a motion to extend the time to amend the petition and to retain the case on the court's docket. In their motion, the Fords contended that they missed the deadline due to their counsel's inadvertence in failing to calendar the deadline. Thus, they acknowledged that they failed to timely replead but asked the court not to dismiss their case because their failure was due to accident or mistake. The Fords filed a first amended petition on June 23, 2004.
At the hearing on the Fords' motion, the Fords' attorney testified that during the nine-month period, the Fords and appellees were trying to work out discovery issues. In addition, he testified that this case was also the subject of an ongoing workers' compensation claim in Louisiana and that the Louisiana case had taken precedence over this case since the beginning of 2004. Counsel did not discover that the deadline had been missed until June 16, when he received a copy of a letter from opposing counsel to the trial court asking the court to sign a judgment of dismissal.
Appellees' counsel "stipulate mistake within the Craddock standard," but stated that " he only reason we are here today is they [the Fords] still have not pleaded in conformity with the order granting the special exceptions." Specifically, he contended that the untimely amended petition did not state the allegedly defective products with sufficient specificity and asked the court to, "at a minimum, dismiss . . . the claims as they relate to the product allegations."
The trial court determined that the case had been dismissed automatically on June 5, 2004 "due to [the Fords'] failure to replead their Petition" and signed an order dismissing the case without prejudice.
Analysis
In their first, second, and third issues, the Fords claim that the trial court abused its discretion in sustaining the special exceptions and in di
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