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Cox v. Union Oil Co.3/14/1996
Ira Weldon Cox, Mary Cox, Ernest Lamar Gregg, Nellie Gregg, Lois K. Lockridge (Individually and as personal representative of the Estate of Joe W. Lockridge), and Lois G. McLain, (Individually and as personal representative of the Estate of Billy B. McLain) ( Appellants") were plaintiffs in a personal injury suit filed in 1990 against Union Oil Company of California, Union Chemical Company, and Shell Oil Company. Appellants filed "Plaintiffs' First Amended Petition" on August 18, 1993. The preamble of the "First Amended Petition" complained of Goodyear Tire & Rubber Company and requested a bill of discovery against Goodyear. Paragraph I of this pleading stated " he Defendants, Union Oil Company of California, Union Chemical Company (a/k/a UNOCAL Chemical Co.,) and Shell Oil Company, have been served and are currently before the Court. Plaintiffs are further complaining of Goodyear Tire & Rubber Company . . . ." Paragraph II alleged that some of the defendants' products were defective, and " he purpose of this amendment is to determine the facts surrounding the involvement" of Goodyear with the defendants. The petition also stated that " laintiffs' amendment is for the purpose of an Equitable Bill of Discovery, pursuant to Rule 737 of the Texas Rules of Civil Procedure, to determine what transpired while the Plaintiffs' (sic) and their decedent's (sic) were employed at the Goodyear Tire & Rubber Company in Gadsden, Alabama. This amendment is for discovery purposes only."
Thirteen months later, on September 2, 1994, defendants-appellees filed a suggestion to the trial court that the omission of their names from the preamble of the first amended petition operated to non-suit defendants-appellees. The trial judge conducted a hearing, after which he dismissed these appellees from this suit. The court later dismissed the bill of discovery. This appeal ensued. The first of three points of error avers the trial court erred in dismissing appellants' case upon defendants'-appellees' suggestion of non-suit because appellees were named as defendants in the case and accused in the live pleadings.
Courts have continuously held that in the absence of any special exceptions, a petition shall be construed liberally in the favor of the pleader. See Sample v. Freeman, 873 S.W.2d 470, 474 (Tex. App.--Beaumont 1994, writ denied); Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); Cartwright v. MBank Corpus Christi, N.A., 865 S.W.2d 546, 551 (Tex. App.--Corpus Christi 1993, writ denied); Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). Additionally, the Texas Rules of Civil Procedure state that " ll pleadings shall be construed so as to do substantial justice." See Tex. R. Civ. P. 45. The rules of pleading in this state do not require any particular form. The petition shall state the names of the parties and their residences. Tex. R. Civ. P. 79. The petition shall contain "a short statement of the cause of action sufficient to give fair notice of the claim involved." Tex. R. Civ. P. 47. All averments of a claim shall be made in numbered paragraphs as required by Rule 50.
For a non-appearing entity to become a party to a lawsuit, it must be named as a defendant in the plaintiff's pleadings. Reynolds v. Haws, 741 S.W.2d 582, 588-589 (Tex. App.--Fort Worth 1987, writ denied). A form has developed from long custom and usage, but cases of some antiquity established that a pleading may take on any form that gives a party fair notice of the litigation. The petition as a whole must be considered in determining who is being sued. Hunt v. Employers Reinsurance Corp., 219 S.W.2d 483, 485 (Tex. Civ. App.--Fort Worth 1949, writ ref'd n.r.e.). Clark v. Haney, 62 Tex. 511 (1884), held the name on the
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