In THE ESTATE OF BILLY WAYNE PHILLIPS v. the State of Texas

Supreme Court of Texas
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No. 24-0366
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In the Estate of Billy Wayne Phillips, Deceased

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On Petition for Review from the
Court of Appeals for the Sixth District of Texas
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PER CURIAM

When a trial court grants special exceptions and strikes claims
from a plaintiff’s petition, does the plaintiff waive her right to challenge
that ruling on appeal if she later files an amended petition that omits
the claims? We hold that the answer is no: the plaintiff preserved her
complaint by obtaining an adverse ruling, she was required to comply
with that ruling in continuing to litigate her case, and it was
unnecessary for her to make a formal exception to that ruling when she
filed her amended petition. See TEX. R. APP. P. 33.1(a), (c). Because the
court of appeals held otherwise, we reverse and remand for that court to
consider the merits of the appeal.

BACKGROUND

Billy Wayne Phillips devised his estate to his daughters Sheila
Smith and Billie Hudson, including a tract of land on which both
daughters lived. The trial court admitted his will to probate and
appointed Smith as independent executor. When Smith sought to sell
the tract, Hudson filed a petition in intervention seeking a partition in
kind under various theories, including claims under Chapters 23 and
23A of the Property Code. After the trial court dismissed the Chapter
23A claim under Texas Rule of Civil Procedure 91a, Hudson filed an
amended petition that repleaded both partition claims and alleged
additional facts.
Smith then filed special exceptions seeking to strike these two
partition claims, which the trial court granted. The trial court’s order
directed Hudson to file another amended petition that included only
other claims against Smith in her executor capacity. Hudson complied.
In her new amended petition, Hudson stated that she “do[es] not waive
or release any . . . causes of action” and she “reserve[s] the right to re-
assert / re-plead causes of action that have been dismissed by [the trial
court] without prejudice, and/or causes of action that a court of appeals
may determine were wrongly dismissed by the trial court.”
The trial court eventually signed an order authorizing Smith to
sell the property. Hudson appealed, challenging the sale order as well
as the order striking her partition claims. A divided court of appeals
affirmed, holding that Hudson abandoned the partition claims by
omitting them from her live amended petition, which superseded her
prior petitions. See ___ S.W.3d ___, 2024 WL 484779, at *2-3 (Tex.
App.—Texarkana Feb. 8, 2024). The court concluded that the
reservation language in her petition did not apply to the partition claims
because they were stricken with prejudice. See id. at *3. Hudson
petitioned for review.

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ANALYSIS

In Texas pleading practice, “amended pleadings and their
contents take the place of prior pleadings.” FKM P’ship, Ltd. v. Bd. of
Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008).1
Thus, as a general rule, “any claim not carried forward in an amended
pleading is deemed dismissed.” Bos v. Smith, 556 S.W.3d 293, 306 (Tex.
2018); see also Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830,
839 n.7 (Tex. 2022); FKM, 255 S.W.3d at 632.2
We have recognized possible exceptions to this rule. See FKM,
255 S.W.3d at 633. For example, when a plaintiff files an amended
petition omitting a claim that the trial court previously ruled against
but indicating an intent not to abandon the claim, the plaintiff does not
waive its ability to complain of that ruling on appeal. See id. (citing
Ortiz v. Collins, 203 S.W.3d 414, 421 n.4 (Tex. App.—Houston [14th
Dist.] 2006, no pet.). Several of our courts of appeals have applied this
exception.3

1 See TEX. R. CIV. P. 65 (providing that “the instrument for which it is

substituted shall no longer be regarded as a part of the pleading in the record
of the cause,” with certain exceptions); 7 William V. Dorsaneo III, TEXAS
LITIGATION GUIDE § 111.02[10] (2024).
2 Supplemental pleadings, in contrast, do not supersede prior pleadings.

See TEX. R. CIV. P. 69.
3 See, e.g., Spellmann v. Love, 534 S.W.3d 685, 690-91 (Tex. App.—
Corpus Christi–Edinburg 2017, pet. denied) (looking to the pleader’s intent to
determine whether amended pleading abandoned claim that trial court
previously ruled against); Sheerin v. Exxon Corp., 923 S.W.2d 52, 55 (Tex.
App.—Houston [1st Dist.] 1995, no writ) (same); In re Est. of Stegall, No. 02-
17-00410-CV, 2019 WL 6205244, at *9 (Tex. App.—Fort Worth Nov. 21, 2019,
no pet.) (same).

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Here, Hudson’s amended petition expressly reserved the right to
reassert “causes of action that a court of appeals may determine were
wrongly dismissed by the trial court.” The court of appeals majority
apparently overlooked this language in holding that the exception did
not apply; it focused on another part of Hudson’s reservation that
mentioned causes of action dismissed without prejudice and explained
that the partition claims were dismissed with prejudice. See 2024 WL
484779 at *3.
But there is an even more basic reason why Hudson did not waive
her complaint by omitting the two partition claims from her amended
petition: she did so in compliance with a contested order striking those
claims. The court of appeals majority viewed Hudson’s adherence to the
trial court’s order as a manifestation of intent to abandon the stricken
claims. See id. That was error.
As detailed above, Hudson opposed the special exceptions to her
partition claims and received an adverse ruling striking those claims,4
which preserved her complaint for appellate review. See TEX. R. APP.
P. 33.1(a). “From that point forward,” she was required to “adhere to
the trial court’s order . . . whether [she] agree[d] with the order or not.”
Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d
385, 396 n.22 (Tex. 2020). “[N]either our procedural rules nor this
Court’s decisions require a party that has obtained an adverse ruling
from the trial court to take the further step of objecting to that ruling to

4 In some cases, a trial court’s order granting special exceptions may

give the pleader an opportunity to amend to cure deficiencies. If the pleader
elects not to do so, our ruling today does not address whether any complaint
about the trial court’s special exceptions ruling would be preserved.

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preserve it for appellate review.” Browder v. Moree, 659 S.W.3d 421, 423
(Tex. 2022); see TEX. R. APP. P. 33.1(c) (providing that “a formal
exception to a trial court ruling” is not “required to preserve a complaint
for appeal”). “If simply adhering to an adverse order while continuing
to litigate waived review of that order on appeal from a final judgment,
there would be few orders left to review.” Bonsmara, 603 S.W.3d at 396
n.22.
Rule 65 instructs courts to apply these principles in the amended
pleadings context. After stating the general rule that prior pleadings
“shall no longer be regarded as part of the pleading,” it adds “unless
some error of the court in deciding upon the necessity of the amendment,
or otherwise in superseding it, be complained of.” TEX. R. CIV. P. 65.
That is precisely what Hudson complains of here: the trial court’s
asserted error in striking part of her pleading and deciding that
amendment was necessary. The court of appeals erred in failing to
address her complaint on the merits.

CONCLUSION

Accordingly, without hearing oral argument, we grant the
petition for review, reverse the court of appeals’ judgment, and remand
the case to the court of appeals for further proceedings. See TEX. R. APP.
P. 59.1.

OPINION DELIVERED: November 1, 2024

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