Sumerlin v. Houston Title Co.

*725OPINION

ROBERTSON, Justice.

This appeal is from two summary judgments granted in favor of appellees, defendants in the trial court. Through four points of error, appellant contests the propriety of each summary judgment. We reverse.

Appellant (Sumerlin) purchased a leasehold interest in a two-story office building in Houston. Houston Title was requested to handle the closing and, at the closing in August, 1981, a title policy was issued by Title Insurance Company of Minnesota. A 41% outstanding ownership in the leasehold in the name the Caredios was discovered, and it was included in Schedule C of the title commitment with the notation “secure and record said deed” [from the Caredios]. However, this defect in title was not cured until early 1985, and this outstanding leasehold interest was not excluded from the terms of the title policy.

In November, 1983, appellant filed suit against both the title company and the title insurance company. Appellant filed her fourth amended petition in early February, 1989, alleging breach of contract, insurance code violations (Tex.Ins.Code Ann. arts. 9.08, 9.57, and 21.21 (Vernon Supp.1991)), deceptive trade practices, negligence and negligent misrepresentation and breach of fiduciary duty — all arising from the outstanding leasehold interest referred to above, a mechanics lien affidavit shown as an encumbrance against the property and a notice of lis pendens which had been filed for record three days following the closing. Appellant alleged she had made demands that appellees correct the problems, and that while they did finally correct the problems, “any corrective action came too late to prevent the loss of the Property.” She further alleged that she had attempted unsuccessfully to sell the property and that she had finally lost it through foreclosure.

Appellees filed two special exceptions— one complaining of the allegations concerning violation of fiduciary duties and the other complaining of the erroneous measure of damages sought; the record however fails to show that the exceptions were ever ruled on by the court. Appellees then filed a motion for partial summary judgment on all alleged causes of action except breach of contract. Appellees’ motion for summary judgment alleged that “with the exception of Plaintiffs contract action, Defendants would show the court that all of Plaintiffs causes of action are either barred by limitations or are unavailable to Plaintiff as a matter of law.”

Concerning appellees limitations defense, they asserted that since more than two years elapsed between the closing and the time that appellant filed her suit, all causes of action (except breach of contract) were time barred. Concerning appellees argument that the remedies appellant sought were not available as a matter of law, they alleged that neither the insurance code nor the deceptive practices act provided a private cause of action as plead by appellant; therefore a cause of action was not stated. They further asserted that it owed no duty as a title company to examine title and, in the absence of such duty, they could not be guilty of negligence. The trial court granted the partial summary judgment on March 5,1990, when the parties appeared for trial. Having indicated how he would rule on the breach of contract claim, the trial court invited a motion for summary judgment to be filed as to that cause of action and, with the agreement of counsel, shortened the time for filing of such motion and answer.

Accordingly, appellees filed a supplemental motion for summary judgment on March 7, 1990, which the trial court granted on March 9, 1990. Appellees’ basis for this summary judgment was that: (1) there had been no damages suffered because appellants petition judicially admitted that the defects in title had been cured; and (2) appellant had not properly plead for recoverable damages. Appellant has perfected her appeal from the grant of both motions for summary judgment on all causes of action except negligence, negligent misrepresentation and breach of fiduciary duty. As to those causes of action, the judgment is final.

*726By brief and argument, appellees contend that the trial court properly granted both motions for summary judgment on appellant’s pleadings because she had plead herself out of court. We disagree. While appellant’s pleadings were admittedly general and an incorrect measure of damages may well have been plead, the proper method of contesting the adequacy of pleadings is by special exception — not a motion for summary judgment. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Paraphrasing the language of the supreme court in Swilley, this is not a case in which the facts alleged by a plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery. Of course, if a special exception is sustained and the plaintiff still fails to state a cause of action, the case may then be disposed of by summary judgment. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974). The trial court erred in granting summary judgment on the pleadings.

We reverse both summary judgments and remand this case to the trial court for further proceedings.