Defendants Harry A. Harrison (Harry Harrison) and Dottie Harrison file these Special Exceptions to Plaintiff’s First Amended Petition, requesting that the Court order plaintiff to replead, pursuant to Rule 91 of the Texas Rules of Civil Procedure, for the following reasons:
I.
Defendants specially except to paragraph 2 under “PARTIES” of Plaintiff’s First Amended Petition because “Mark Lynn Nichols, M.D., P.A.” is not recognized by the State of Texas as a professional association and therefore is not a legal entity entitled to pursue any course of action against defendants. An affidavit by defendants pursuant to Rule 52 of the Texas Rules of Civil Procedure, denying such professional association, is incorporated herein by reference.
II.
Defendants specially except the reference in paragraph 7 under “FACTS’ of Plaintiff’s First Amended Petition which references “Houston ENT Clinic, L.L.P.” Said entity is not recognized by the State of Texas as a limited liability corporation. An affidavit by defendants pursuant to Rule 52 of the Texas Rules of Civil Procedure, deny denying said limited liability corporation, is incorporated herein by reference.
III.
Defendants specially except to the statement in paragraph 7 under “FACTS” of Plaintiff’s First Amended Petition which alleges, “It is undisputed that the treatment and surgery were successful.” Defendants disagree with said allegation by plaintiffs. Plaintiffs fail to give fair notice of the facts supporting the allegation and, therefore, such allegation is merely conclusory.
IV.
Defendants specially except to the statement in paragraph 8 under “FACTS” of Plaintiff’s First Amended Petition that begins and specifies “During the spring of 2001…..” Neither defendant Dottie Harrison nor defendant Harry Harrison were aware until March of 2002 that the reason for denial of insurance for Mr. Harrison was Dr. Nichols’ records. Therefore, prior to March 2002, defendants had no reason to say or write anything at all about plaintiff Dr. Mark Nichols. Plaintiffs fail to give fair notice of the facts supporting the allegation and, therefore, such allegation is merely conclusory.
V.
Defendants
specially except to Plaintiff's First Amended Petition in paragraphs 6, 8, 10,
12, and 14 as being insufficient by failing to give defendants fair notice of
the claim involved. The action allegedly involves certain documents and/or
publications referred to in paragraphs 8, 10, 12, and 14 of the petition, but
because of plaintiffs’ failure to recite or exhibit such documents, defendants
have not had fair notice as is required by Rule 47 of the Texas Rules of Civil
Procedure.
VI.
Defendants specially except to paragraphs 8,
10, 12, 14, and 15 of Plaintiff’s First Amended Petition for the reason that
the paragraphs are so vague, general, indefinite, obscure, and ambiguous that
defendants are unable to determine the ground, or grounds, or theory, or
theories, under which plaintiffs seek recovery, nor do the paragraphs apprise
defendants of what plaintiffs expect to prove. In particular, the paragraphs are
vague in the following respects:
(a) Paragraph 8:
(1)
fails to specify with particularity the statements, oral, written, and
in electronic form, that plaintiffs allege were said or written by
defendants and which plaintiffs allege are untrue and defamatory; therefore,
such allegations are merely
conclusory;
(2)
fails to specify with particularity the statements by defendants that
plaintiffs allege were defamatory and allege were transmitted by defendants, and
by which manner said statements are alleged to have been transmitted; therefore,
such allegations are merely
conclusory;
(3)
fails to specify with particularity the remarks that plaintiffs allege
were disparaging and which were published over the internet by defendants; therefore,
such allegations are merely
conclusory;
(4)
fails to specify with particularity the professional organizations
referred to in this paragraph, on which Dr. Nichols alleges that he sits as a
board member; therefore,
such allegations are merely
conclusory;
(5)
fails to specify with particularity which of Dr. Nichols’ licensing
boards that plaintiffs refer to; therefore, such allegations
are merely conclusory.
(b)
Paragraph 10:
(1)
fails to specify with particularity which statements allegedly made by
defendants are considered by plaintiffs to constitute statutory libel, and therefore,
such allegations are merely
conclusory;
(2)
fails to specify with particularity in what manner plaintiffs claim to
have been injured by defendants; therefore, such allegations
are merely conclusory;
(3)
fails to give fair notice of the facts supporting the allegation of
libel, and therefore, such allegations
are merely conclusory.
(c)
Paragraph 12:
(1)
fails to specify with particularity which statements that plaintiffs
allege were spoken (orally) by defendants, and when, and to whom, that
plaintiffs allege are slander per se, therefore, such allegations
are merely conclusory;
(2)
fails to specify with particularity which statements that plaintiffs
allege were published on the internet by defendants; therefore, such
allegations are merely conclusory;
(3)
fails to give fair notice of the facts supporting the allegation of
slander and, therefore, such allegations
are merely conclusory.
(d)
Paragraph 14:
(1)
fails to specify with particularity any statements that plaintiffs allege
were made by defendants and that plaintiffs allege were false and misleading; therefore,
such allegations are merely
conclusory;
(2)
fails to specify with particularity what actual damages plaintiffs allege
to have sustained as a result of defendants’ alleged actions; therefore,
such allegations are merely
conclusory;
(3)
fails to specify with particularity which alleged actions of defendants
that plaintiffs claim to have caused them actual damages; therefore, such
allegations are merely conclusory;
(4)
fails to give fair notice of the facts supporting the allegation of
business disparagement and, therefore, such allegations are merely
conclusory.
(e)
Paragraph 15:
(1)
fails to specify with particularity the alleged statements of defendants
that plaintiffs claim are false and defamatory; therefore, such
allegations are merely conclusory;
(2)
fails to give fair notice of the facts supporting the allegation of
damages and, therefore, such allegations are merely conclusory.
VII.
Defendants specially except to certain statements in paragraphs 10 and 15
of Plaintiff’s First Amended Petition as follows, because said statements are
so vague, indefinite, and obscure, that defendants are unable to determine the
ground, or grounds, or theory, or theories, or causes of action, under which
plaintiff seeks recovery.
(a) Paragraph 10 alleges
that statements made by defendants “tend to” injure the reputation of Dr.
Nichols and his practice… and “tend to” expose them to public
hatred….and “tend to” expose them to financial injury….and “tend to”
impeach plaintiffs’ honesty, integrity….”
(1)
Plaintiffs’ “tend to” statements are speculative and ambiguous;
such as “maybe” their reputation will be injured, and maybe it won’t;
“maybe” they will be exposed to public hatred, and maybe they won’t;
“maybe” they will be exposed to financial injury, and maybe they won’t;
“maybe” their honesty (etc.) will be impeached, and maybe it won’t. Plaintiffs
fail to give fair notice of the facts supporting the allegations and, therefore,
such allegations are merely conclusory.
(b)
Paragraph 15 alleges that plaintiffs “will in the future” be
seriously injured in business reputation….” Such allegation is vague and
ambiguous, in that plaintiffs fail to state with particularity the actions they
allege will cause said future injury to them by defendants and in what manner
alleged future injury will occur. Plaintiffs fail to give fair notice of
the facts supporting the allegation and, therefore, such allegations are merely
conclusory.
VIII.
Defendants specially except to the statements in paragraphs 8, 10, 12,
and 14 of Plaintiff’s First Amended Petition with reference to alleged
statements having been made by defendants about Dr. Nichols’ “practice”
and/or Dr. Nichols’ “medical practice” and/or Dr. Nichols’
“professional practice.” Defendants aver that they have made no statements
whatsoever about Dr Nichols’ “practice,” “medical practice,” and/or
“professional practice.” Plaintiffs fail to give fair notice of the
facts supporting the allegations and, therefore, the allegations are merely
conclusory.
IX.
Defendants specially except to Plaintiff's First Amended Petition in that, although paragraphs 10, 14, and 15 allege that plaintiffs have been damaged, no facts are stated to allege in what manner plaintiffs claim to have been damaged. Such allegations of damage to plaintiffs are, in consequence, merely conclusions of the pleader, and do not give defendants fair notice of plaintiffs’ claim.
X.
Defendants specially except to the allegation in paragraphs 15 of
Plaintiff’s First Amended Petition because plaintiffs have alleged only that
they seek actual damages “within the jurisdictional limits of this Court.”
Pursuant to Rule 47 of the Texas Rules of Civil Procedure, defendants specially
except and request that the Court direct plaintiffs to plead more specifically
the damages and other remedies, if any, they seek.
Accordingly, defendants Harry and Dottie Harrison respectfully pray that this Court sustain their special exceptions and order plaintiffs to replead their case, or, in the alternative, strike Plaintiff’s First Amended Petition.
Respectfully submitted,
I
hereby certify that a true and correct copy of the above document has been
served in accordance with Rule 21a of the Texas Rules of Civil Procedure via
certified mail, return receipt requested, to
all known counsel of record as indicated below, on this 24th day of January,
2003.
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