Appellee’s Motion for Rehearing Overruled and Supplemental Opinion on Motion for Rehearing filed December 12, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-02-00173-CV
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WOLFGANG HIRCZY DE MIÑO, Appellant
V.
VERONICA ALVAREZ, Appellee
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On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 01-64436
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S U P P L E M E N T A L O P I N I O N
O N M O T I O N F O R R E H E A R I N G
Alvarez’s motion for rehearing is overruled, and the following opinion is issued in addition to that filed on November 14, 2002.
Our prior opinion reversed the trial court’s dismissal of De Miño’s suit for failure to state a claim because De Miño was not given notice of the deficiency(s) in his pleading and an opportunity to cure them by amendment. Alvarez’s motion for rehearing challenges our decision largely on the ground that De Miño’s claims against Alvarez were barred by quasi-judicial privilege, and, therefore, the failure to state a claim could not be cured by amendment. We disagree. A claim of privilege is an affirmative defense which, if applicable at all, is far better suited to a motion for summary judgment than a motion to dismiss for failure to state a claim. In any event, in this case, the quasi-judicial privilege asserted in Alvarez’s motion for rehearing in this court was not asserted in Alvarez’s motion to dismiss in the trial court and, thus, is not a proper ground on which to affirm the dismissal.
/s/ Richard H. Edelman
Justice
Supplemental Opinion filed December 12, 2002.
Panel consists of Justices Edelman, Seymore, and Guzman.
Do Not Publish — Tex. R. App. P. 47.3(b).