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Ryan v. Friesenhahn
198 A.D.2d 592, 603 N.Y.S.2d 237
N.Y.A.D.,1993.
198 A.D.2d 592603 N.Y.S.2d 237, 1993 WL 450866
Stephen G. RYAN and Sandra Ryan, Individually and As Natural Parents of Sabrina A. Ryan, a Minor, and Stephen G. Ryan, as Temporary Administrator of the Estate of Sabrina A. Ryan, Deceased, Appellants,
v.
Frederick FRIESENHAHN, Nancy Friesenhahn and Todd Friesenhahn, Appellees.
(October 18, 1993)
CITE TITLE AS: Matter of Ryan v. Friesenhahn
The 225th District Court, Bexar County, Carol R. Haberman, J., granted summary judgment for defendants, and plaintiffs appealed. The Court of Appeals, Rickhoff, J., held that plaintiffs' petition stated causes of action for negligence per se and common-law negligence.
Sandra and Stephen Ryan sued the Friesenhahns for wrongful death, negligence, and gross negligence of their daughter. On December 12, 1990, the Friesenhahns filed special exceptions to the Ryans' first amended petition, alleging that the Ryans failed to plead any facts on which liability could be assessed. On March 23, 1992, the trial court ordered and granted the special exception which had been filed on behalf of the daughter who but denied the cause of action filed for the parents. But the trial court permitted the Ryans’ to file a motion for leave to amend the cause of action. The order by the trial court also permitted the Friesenhahns to re-urge their special exceptions during the period mandated by the court.
The trial court heard the motion for summary judgment on October 14, 1992. On November 13, 1992, the trial court signed its order granting special exceptions, which had earlier been orally rendered in March. The court also denied the Ryans' request to abate for repleading and granted the summary judgment on all causes of action. This included the cause of action which has been filed for the minor and for her parents.
Special exceptions may be used to challenge the factual or legal sufficiency of a plaintiff's pleading. Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ); TEX.R.CIV.P. 91.
If the plaintiff refuses to amend or the amended pleading fails to state a cause of action, then summary judgment may be granted. Herring, 513 S.W.2d at 10; Cox v. Galena Park Indep. Sch. Dist., 895 S.W.2d 745, 749 (Tex.App.-Corpus Christi 1994, n.w.h.). Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Garza v. State, 878 S.W.2d 671, 674 (Tex.App.-Corpus Christ 1994, no writ).
In this case, the Ryans appealed that there were three errors that the trial court made which were granting the motion for summary judgment, granting the motion before they were allowed to replead the case and denying their request to abate the summary judgment hearing in order to replead their case.
When evaluating a summary judgment granted on the basis of deficient pleadings, we review the pleadings de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in the light most favorable to the pleader. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Garza, 878 S.W.2d at 674.
The Ryans contended that assuming a trial setting of November 13, 1992, it would not have been possible for them to comply with the order on special exceptions as of October 14, 1992, which was the date of the summary judgment hearing. It was found by the Court of appeals that the trial court erred by not giving the Ryans an opportunity to amend their petition, and the second and third points of error were sustained. In the first point, the Ryans contended that the trial court erred in granting summary judgment. In the court of appeals it was found beyond any doubt that there does exist a duty on the part of the adult to supervise minors in case of alcohol consumption since minors are not competent to understand the effects of alcohol. This was with reference to Beard v. Graff, 801 S.W.2d 158, 164-73 (Tex.App.-San Antonio 1990) (en banc), rev'd, 858 S.W.2d 918 (Tex.1993), in which it was deferred to the legislature or the Supreme Court to determine social policy regarding adult social hosts serving adult guests. In view of the legislature's determination sufficient legislative intent was found to support the Ryans’ petition and their first point of error was sustained.
Copr. (c) 2009, Secretary of State, State of New York
N.Y.A.D.,1993.
Matter of Ryan v. Friesenhahn
911 S.W.2d 113
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