




Affirmed in Part, Reversed and Remanded in Part and Opinion filed
September 14, 2006







 
Affirmed
in Part, Reversed and Remanded in Part and Opinion filed September 14, 2006.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-05-00405-CV
____________
 
WILLIAM ROSS, Appellant
 
V.
 
SCOTT FARRELL GOLDSTEIN, AS
INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOHN DAVID GREEN, DECEASED, Appellee
 

 
On Appeal from the Probate
Court Number One
Harris County, Texas
Trial Court Cause No. 337,013-401
 

 
O P I N I O N




Scott Goldstein, as independent administrator of his father=s estate, brought
suit against William Ross to recover certain assets Goldstein believed were in
Ross=s possession, but
belonged in the decedent=s estate.  Ross counterclaimed raising
five causes of action: (1) conversion;  (2) request for declaratory judgment
that the assets were jointly acquired;  (3) breach of fiduciary duty;  (4)
request for a constructive trust;  and (5) request that the trial court adopt a
novel equitable remedy, the Amarriage-like relationship@ doctrine. 
Goldstein responded with three special exceptions to the claims of fiduciary
duty, constructive trust, and equitable remedy.  The trial court granted all
three special exceptions and allowed Ross the opportunity to replead.  Ross
refused to replead, deciding to stand on his pleadings.  The trial court then
dismissed the entire counterclaim, held a trial on plaintiff=s claims, and
awarded Ross some property, though not all to which he believed himself
entitled.  Ross appeals the trial court=s rulings on the
special exceptions, its decision to strike the entire pleading even though not
entirely specially excepted to, and urges this court to adopt the Amarriage-like
relationship@ doctrine.  We will affirm in part, and reverse and
remand in part.
Factual and Procedural Background
In 1995, William Ross met John Green.  At the time, Ross
was a hairdresser earning between five and ten thousand dollars a year.  The
two began a romantic relationship and eventually Ross moved into Green=s home.  Ross soon
ceased working as a hairdresser, and relied solely on income paid to Green. 
However, Ross contended that he and Green both worked together at a consignment
shop to earn money, and that it was shared money, even though paid only to
Green.
Ross testified that when he moved into Green=s home, Green had
little in the way of furnishings or decorations.  However, during their
relationship, the two accumulated furnishings and various items.  Also, Ross
sold his personal vehicle and the two used those proceeds, in addition to money
earned from the consignment shop, to purchase a 1998 Ford Mustang.  Although
the Mustang title was originally in Green=s name, he
authorized Ross to transfer title to Ross=s name as a Christmas
present.  Otherwise, Ross owned no property in his own name or purchased with
money from his separate bank accountCall bills were
paid and items purchased from Green=s separate bank
account.  Ross testified that he signed Green=s name on checks
and credit accounts throughout their relationship.




On December 10, 2002, Green was admitted to a facility
because he had Amisused prescription drugs, [and was]
making poor decisions, making off-the-wall decisions.@  Green had also
been diagnosed previously as bipolar and suffering from chemical dependency.  When
he was admitted, he asked one of the admitting nurses, who was also a notary,
to witness and notarize a quitclaim deed for property Green owned in Katy,
Texas.[1] 
The quitclaim deed purported to transfer ownership of the property, with a
taxable value of approximately $60,000, to Ross.  However, Green allegedly told
Ross not to file the deed unless Green died.  On December 16, Green was
released from the hospital.  Green subsequently died January 11, 2003.
Following Green=s death, Ross
filed the quitclaim deed, and continued to sign checks with Green=s name and utilize
Green=s charge
accounts.  He then called Green=s estranged son, Scott Goldstein.[2] 
Goldstein, who lives in Florida, flew to Texas and began to evaluate his father=s estate.  He told
Ross that Ross could remain in the dwelling while he wound up the estate,
though Ross evidently did not accept this offer.  Goldstein was appointed
independent administrator of his father=s estate. 
Following what Ross described Green=s wishes to be,
Goldstein arranged and paid for a memorial service, and Green=s cremation and
sprinkling of ashes over Biscayne Bay.  He then began to marshal the assets of
the estate.
One of Goldstein=s acts as
independent administrator was the filing of a lawsuit against Ross.  Goldstein
sought to retrieve various items such as furniture and paintings acquired with
Green=s money, but
allegedly held by Ross.  Ross counterclaimed, alleging that he and Green had a
marriage-like relationship, had embarked on a joint venture in the consignment
business, and thus had acquired the sought-after assets together and owned them
jointly.  




Goldstein specially excepted to three of Ross=s five
counterclaims.  The trial court allowed Ross time to replead, but Ross refused
to replead, and instead stood on his pleadings.  The trial court then dismissed
the entire counterclaim and held a bench trial on Goldstein=s petition alone. 
Following the bench trial, the trial court awarded the Mustang to Ross, but
granted the majority of relief Goldstein sought.[3] 
Ross appealed, alleging that the trial court erroneously granted the special
exceptions, and erred in striking the entire counterclaim, and asserting that
we should adopt the Amarriage-like relationship@ doctrine. 
Because  the trial court  erred by granting relief which was not requested, we
reverse and remand as to the declaratory judgment and conversion causes of
action.  However, we hold that the trial court correctly granted the other
special exceptions, including the refusal to recognize the Amarriage-like
relationship@ doctrine, and affirm those portions of the
judgment.   
Analysis
I.        Standard
of Review
Special exceptions are a means of questioning the legal
sufficiency of a plaintiff=s petition.  Melendez v. Exxon Corp.,
998 S.W.2d 266, 272 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  To
properly present a special exception, the party must identify the particular
pleading excepted to, and do so Aintelligibly and
with particularity.@  Tex.
R. Civ. P. 91.  General demurrers are not acceptable.  Tex. R. Civ. P. 90.  We review a trial
court=s ruling on
special exceptions for abuse of discretion.  Melendez, 998 S.W.2d at
272.  If the court has acted without reference to guiding rules and principles,
then it has abused its discretion.  Id. at 273.  On appeal, we accept as
true all material factual allegations and all factual statements reasonably
inferred from the allegations set forth in the excepted to pleadings.  Sorokolit
v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994).  We liberally construe
pleadings because special exceptions are only a challenge to determine if the Afair notice@ requirements of
pleadings have been met.  See Wortham v. Dow Chem. Co., 179
S.W.3d 189, 198B99 (Tex. App.CHouston [14th
Dist.] 2005, no pet.).  If by examining the plaintiff=s pleadings alone,
we may ascertain with reasonable certainty the elements of a cause of action
and the relief sought, the pleading is sufficient.  Id. at 198.




In addition to challenging the legal sufficiency of a
pleading, a special exception is also appropriate to challenge a pleading for
failing to allege a cause of action recognized in Texas.  See Trevino v.
Ortega, 969 S.W.2d 950, 951B52 (Tex. 1998) (upholding granted special
exception on basis that cause of action did not exist in Texas).  Therefore, if
the pleading was deficient in setting out the elements or relief sought, or the
cause of action asserted is not recognized in Texas, the trial court does not
abuse its discretion in granting the exception.  The party against whom
exceptions were granted must then be granted an opportunity to replead.  Cruz
v. Morris, 877 S.W.2d 45, 48 (Tex. App.CHouston [14th
Dist.] 1994, no writ).  A party may refuse to amend and appeal the exceptions. 
Melendez, 998 S.W.2d at 272.  If the remaining portions of the pleading
fail to state a cause of action, the trial court may dismiss the suit.  Cruz,
877 S.W.2d at 47.  Otherwise, the remaining causes of action may proceed.
II.       Surviving
Causes of Action
Goldstein requested certain relief below, namely, special
exceptions to three of five causes of action.  However, the trial court granted
relief in excess of that requested.  While a trial court may dismiss an entire
pleading on proper motion if, without the excepted portions, the pleading fails
to state a cause of action, such was not the case here.  Without the excepted
portions, Ross=s counterclaim stated two causes of action that had
not been excepted or challenged through some other procedural vehicle.  Whether
the claims are meritorious or not, the trial court was not presented with any
procedural vehicle with which to strike those causes of action.  Therefore, we
hold that the trial court could not dismiss the declaratory judgment and
conversion causes of action on its own motion.




To argue there is no harm, Goldstein contends that the
issues raised in the declaratory judgment and conversion causes of action were
tried through appellee=s suit.  His argument can be read to state
that, so long as the basic facts and arguments were made, there is no harm here
because the trial court heard all of Ross=s evidence on
shared assets when Ross presented defensive evidence against Goldstein=s suit.  We
disagree the issue is so easily answered.  Goldstein=s argument
requires considerable assumptions. Those assumptions are that Ross presented
his case as defendant exactly as he would have as a counterclaimant, and that
the trial court could and would have granted the requested relief, even though
there were no live pleadings requesting the relief Ross sought.  If we indulged
these assumptions, there would no longer be any viable rule requiring that
trial courts give only relief requested, and only when the proper procedural
vehicles are employed.  We reverse the trial court=s decision to
dismiss the entirety of Ross=s counterclaim, and remand for
consideration of his declaratory judgment and conversion claims.
III.      Special Exceptions
Properly Granted for Fiduciary and Confidential Relationship Claims
 
Ross raised two different, but related claimsCbreach of
fiduciary duty and a request for a constructive trust.  Goldstein filed special
exceptions arguing first that there were Ano allegations of
fact giving rise to any sort of relationship between Goldstein and Ross,@ and second that
there were no allegations of fraud necessary to receive the remedy of
constructive trust.  Ross responded with sufficient factual allegations of a
confidential relationship between Green and Ross, but none concerning Goldstein
and Ross.  Additionally, Ross explained that an informal confidential
relationship is a proper basis for the imposition of a constructive trust.  
Ross did not below, and does not on appeal, explain how his
confidential relationship with Green is imputed to Goldstein.  Therefore, his
pleading was insufficient.  Ross=s counterclaim was
against Goldstein, as independent administrator of Green=s estate.  Yet he
pled no facts of any confidential relationship that has ever existed between
himself and Goldstein.  Without any allegations of such facts in his petition,
or explanation of how Green=s relationship with Ross is somehow
imputed to Goldstein, Ross=s pleadings on both of these issues were,
and remain, legally insufficient.  Ross has not pled sufficient facts, even
liberally construed, to support his allegations.  We affirm the trial court as
to these two special exceptions.




IV.      Marriage-Like
Relationship Doctrine
In his final request for relief, Ross urges us to adopt the
Amarriage-like
relationship@ doctrine.  Arguing it is an equitable remedy not
against the public policy of the State, Ross contends this doctrine will aid
the courts in addressing the growing reality of same-sex relationships.  We
disagree with Ross=s position.  Texas has determined that
same-sex couples must address their particular desires through other legal
vehicles such as contracts or testamentary transfers.  See Tex. H.R.J.
Res. 6, '2, 79th Leg., R.S.
(2005) (AThis state
recognizes that through the designation of guardians, the appointment of
agents, and the use of private contracts, persons may adequately and properly
appoint guardians and arrange rights relating to hospital visitation, property,
and the entitlement to proceeds of life insurance policies without the
existence of any legal status identical or similar to marriage.@). 
Ross does not argue that he is constitutionally entitled to
the remedy he seeks.  He does argue, however, that his proposed equitable
remedy is proper to address a reality of life for same-sex couples, and that it
is not against this State=s public policy.  There are two
democratically approved statements of Texas=s public policy to
guide our course on this question.  The first is Texas Family Code section
6.204, which states that it is contrary to the State=s public policy to
recognize or give effect to a same-sex marriage or civil union.  Tex. Fam. Code ' 6.204.  The
second, and weightier, is Article 1, section 32 of the Texas Constitution,
which states that marriage is between one man and one woman only and no state
or political subdivision of this State may create or recognize any legal status
identical or similar to marriage.  Tex.
Const. art. I, ' 32.  Our State=s public policy is
unambiguous, clear, and controlling on the question of creating a new equitable
remedy akin to marriage: we may not create such a remedy.  
We affirm the trial court=s grant of a
special exception as to the request for the equitable remedy.




Conclusion
Having determined that the trial court erroneously
dismissed two causes of action to which Goldstein did not specially except, yet
also having determined that the trial court was otherwise correct in its
rulings on the special exceptions, we affirm in part and reverse and remand in
part.  We affirm the trial court=s rulings granting
special exceptions, but reverse and remand the ruling dismissing the
declaratory judgment and conversion causes of action.  Those were improperly
dismissed as Goldstein did not specially except to them or otherwise seek to
have them dismissed.
 
 
 
/s/      Wanda McKee Fowler
Justice
 
 
 
 
Judgment rendered
and Opinion filed September 14, 2006.
Panel consists of
Justices Hudson, Fowler, and Seymore.




[1]  The notary testified by affidavit that she could not
produce any records regarding this notarization because her records from that
period of time had been stolen from her car.  However, the deed produced did
have the appropriate signatures and seal.


[2]  Goldstein is one of Green=s three children.  Goldstein changed his last name to
that of his stepfather, but was never legally adopted.  Therefore, he is one of
Green=s intestate heirs.  


[3]  The trial court found that the quitclaim deed was
not valid because Green lacked testamentary capacity at the time of execution,
and there was lack of consideration.


