IV. DEFENDANT’S PLEADINGS Flashcards
A. Defendant’s Options
- Pre-Answer Pleadings
The defendant can file pre-answer pleadings known as dilatory pleas that delay or defeat an action without determining the merits of the action. Dilatory pleas include special appearances, motions to transfer venue, and other pleadings. - Answer
The defendant can file an answer raising matters known as pleas in bar that seek a determination on the merits of the action. These pleas include general denials, special denials, and affirmative defenses. - Consolidated Response
The defendant can file a single consolidated pleading raising both dilatory pleas and pleas in bar. Problems result when the defendant fails to follow the due order of pleading rule.
Example [July 1998 #5; July 1999 #8; July 2000 #3; February 2004 #2; February 2006 #1; July 2007 #4; February 2009 #1; July 2009 #5; February 2011 #1; July 2011 #2]:
Suppose LBK, Inc., a Delaware corporation with its principal office in Phoenix, Arizona, has a contract with Paul, a Texas resident. Paul believes that LBK breached its contract with him and files suit against LBK in Dallas County, Texas. How can LBK challenge the Texas court’s exercise of personal jurisdiction over it and at what stage of the case must it be asserted?
Example [July 2002 #7]: Suppose LBK sends written discovery to plaintiff with its special appearance. Plaintiff contends that, by participating in discovery, LBK has waived its objection to jurisdiction. Is plaintiff correct?
B. Special Appearance – Challenging Personal Jurisdiction
1. When It Must Be Filed – The Due Order of Pleading
The defendant should file a special appearance to challenge the court’s exercise of personal jurisdiction.
Under the due order of pleading, a special appearance must be filed before any other plea, pleading or motion by the defendant. If a defendant fails to comply with the due order of pleading, the defendant makes a general appearance, consents to jurisdiction, and waives all defects in service. In contrast, a “plea to the court’s jurisdiction” challenges the court’s subject matter jurisdiction which is a non- waivable defect.
no, While it is true that the defendant must file a special appearance before any other pleading or it is waived, making discovery, subpoenaing witnesses, and even appearing in person for the hearing on the special appearance may be done without waiving it.
- What it Must Assert – The Special Appearance Procedure
burden
Example [February 2001 #3; July 2002 #6; February 2004 #3; February 2006 #1; February 2009 #2]: What should LBK say in the special appearance? Should the special appearance be verified? What evidence will the court consider in deciding jurisdiction?
- What it Must Assert – The Special Appearance Procedure
In Texas, the burden is on the D. to negate the basis for personal jurisdiction.
• The pleading should assert that LBK is not amenable to service of process and deny the plaintiff’s allegations;
• the pleading must be verified (sworn); and
• the forms of evidence that may be presented to the court in deciding jurisdiction are all discovery, affidavits, and oral testimony.
The granting or denial of a special appearance is an interlocutory order that may be immediately appealed.
Example [July 2000 #2; July 2001 #8; July 2002 #4; July 2004 #3; February 2005 #4; February 2006 #5; July 2006 #4; February 2007 #2; July 2007 #1; February 2008 #4; February 2009 #5; July 2009 #1; February 2010 #3; July 2010 #2; February 2011 #3; July 2011 #3]:
Suppose Pam, a resident of Bowie County, Texas, was injured in a three-car automobile collision while she was driving her car in Travis County, Texas. The other two drivers were Dawn, a resident of Oklahoma, and Jim, a resident of Potter County, Texas. Under the general venue rule, in what county or counties can Pam bring her suit in state district court against Dawn and Jim?
C. Motion to Transfer – Challenging Venue
1. Substantive Law of Venue: The Rules
In Texas, there is a general rule of venue, mandatory venue exceptions, and permissive venue exceptions. The general rule and permissive exceptions are generally cumulative.
a. General Rule
Except as otherwise provided in sections dealing with mandatory exceptions or permissive exceptions, all lawsuits shall be brought:
• in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
• if the defendant is a natural person, in the county of the defendant’s residence at the time the cause of action accrued;
• if the defendant is not a natural person, in the county of the defendant’s principle office in the state; or
(A principal office is where the corporate’s decision makers are located within the state. The mere presence of an agency or representative, such as a retail convenience store, does not establish a principal office.)
—if none of the above applies, then in the county in which the plaintiff resided at the time of the accrual of the cause of action. (only if others dont apply)
• Travis County – where all the events giving rise to the claim occurred.
• Potter County – where Jim, a natural person, resided at the time the cause of action accrued.
***• In suits involving multiple defendants, if the plaintiff establishes proper venue against one defendant, it is proper as to all defendants in all claims arising out of the same transaction or series of transactions.
b. Mandatory and Permissive Venue
not important
A permissive venue rule for breach of warranty by a manufacturer of a consumer goods provides?
A permissive venue exception for suit on a written contract allows?
b. Mandatory and Permissive Venue
The venue statute contains mandatory and permissive exceptions to the general venue rule:
• mandatory rules: there are twelve exceptions in the venue statute that are mandatory, dictating that suits of certain types must be brought in certain counties (e.g., Actions involving land generally must be brought in the county where the land is located. Note that a suit for specific performance to enforce a contract to convey land is not covered by the mandatory rules).
• permissive rules: there are six exceptions in the venue statute that are permissive, providing that suits may be brought in certain counties.
A permissive venue rule for breach of warranty by a manufacturer of a consumer goods provides that suit is proper in the county of the plaintiff’s residence at the time the cause of action accrued. [February 2001 #7]
A permissive venue exception for suit on a written contract allows suit to be brought in the county in which the defendant is required to perform. [February 2003 #6; February 2007 #2; February 2008 #4]
- Venue Procedure: Motion to Transfer Venue
a. Step One: Plaintiff’s Venue Pleading
- Venue Procedure: Motion to Transfer Venue
a. Step One: Plaintiff’s Venue Pleading
In the petition, the plaintiff must plead the existence of a cause of action and should plead venue facts (e.g., “defendant failed to perform his contractual obligations in Hill County.”) that, if true, are sufficient to maintain the suit in the county where it is filed.
b. Step Two: Defendant’s Motion to Transfer Venue
When it Must Be Filed – The Due Order of Pleading … Again
Example [July 1999 #8; February 2002 #5; February 2004 #5; February 2005 #2; July 2005 #2; February 2006 #3; July 2006 #3; February 2007 #1; July 2007 #2; February 2008 #3; July 2008 #3; February 2009 #4; July 2009 #2; February 2010 #2; July 2010 #1; February 2011 #1]:
Plaintiff filed suit against defendant for breach of contract. Assume defendant wishes to challenge venue. The defendant first files a general denial. Immediately after filing the general denial, defendant files a motion to transfer venue. How should the court rule on the motion?
Example [February 2001 #6; July 2002 #8; February 2004 #6]: Suppose plaintiff sued two defendants, A and B. Defendant A filed an answer denying plaintiff’s allegations. Is it too late for defendant B to file a motion to transfer venue to another county?
Motion denied. Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance. The motion has been waived because it violates the due order of pleading rule.
no. In a suit in which two or more defendants are joined, any act or omission by one defendant in relation to venue, including a waiver, does not operate to impair or diminish the right of any other defendant to properly challenge venue.
b. Step Two: Defendant’s Motion to Transfer Venue
What it Must Assert
Example [February 2001 #5; July 2003 #1; February 2005 #3; July 2005 #2; February 2006 #3, #5; July 2006 #3; February 2007 #1; February 2008 #3; July 2008 #3]:
Recall that plaintiff alleged in her petition that “defendant failed to perform his contractual obligations in Hill County.” In fact, defendant resides in McLennan County and has no connection with Hill County. Defendant wants to have the case transferred to McLennan County. Describe the process that must be followed.
The defendant’s motion to transfer must:
• state that venue is not proper where suit is filed,
• deny any venue facts in plaintiff’s petition which defendant wishes to contest,
• name the county to which transfer is sought and plead venue facts that support the county of requested transfer as proper,
• identify the section of the venue statute making the requested county proper, and
• request a transfer to the specified county.
c. Step Three: Plaintiff’s Reply to Defendant’s MTV
Example [July 2002 #9; February 2006 #4; February 2007 #2; February 2008 #4; February 2009 #5]:
Suppose defendant files a motion to transfer venue and specifically denies the venue facts pleaded by plaintiff. What, if anything, must plaintiff file, and when will it be due?
Plaintiff must file a response at least 30 days days prior to the hearing on the motion to transfer venue. The response should present prima facie proof (affidavits and discovery materials) of matters specifically denied by defendant and specifically deny any of the defendant’s pleaded venue facts which plaintiff wishes to contest.
d. Other MTV Issues [July 2011 #4]
• Burden: _______________ will have the burden of proof.
• Verified: the motion to transfer venue _______________ _______________ need to be verified.
• Notice: except on leave of court, each party is entitled to _____ days notice of a hearing on the motion.
• Decision-maker: all venue challenges are decided by the ?
If not challenged?
D.
does not
45 days
decided by the court without the aid of the jury.
If not challenged, the objection to venue is deemed waived.
e. Appeal: General Rule [February 2011 #2]
interlocutory appeal ?
f. Appeal: Multiple Plaintiffs
When there are multiple plaintiffs in a suit, __________________ plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial court’s determination that a plaintiff did or did not independently establish proper venue.
- Motion to Change Venue [February 2003 #2]
what is it
No interlocutory appeal is allowed and a party must appeal the venue decision after a final judgment. The trial court’s decision will prevail unless the appellate court finds “reversible error”.
each
While the MTV asks whether the trial court is a proper venue, the motion to change venue asks if there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial.
Example: Bud Anderson was driving to work and crashed into the car driven by Mrs. Smith. After Mrs. Smith filed suit against Bud, a private process server attempted to serve Bud. A return was filed with a notation that Bud was served. In fact, the person served was Bud’s father, Jim Anderson. How can Bud raise these facts and obtain relief?
Example [July 1998 #4; July 1999 #8]: Suppose Bud wishes to challenge the sufficiency of service and files a timely motion to quash. Assume the motion to quash is granted. Is Mrs. Smith required to reissue citation?
D. Motion to Quash – Challenging Service
1. Availability
In a motion to quash, the defendant does not challenge the court’s power over the defendant. Instead, the defendant challenges the procedure used to serve the defendant. A defendant may challenge defective jurisdictional allegations in the petition or defects in service of process or in the citation with a motion to quash.
- Utility
no. If the motion to quash is granted, the defendant does not need to be re-served. The moving party is required to file an answer by 10:00 A.M. on the first Monday after the expiration of 20 days from the date that the service or citation is quashed.
E. Pleas in Abatement – Challenging the Suit [February 2002 #4; February 2007 #3; February 2008 #6; February 2010 #6; July 2010 #5]
Example [February 2010 #6; July 2010 #5]: Suppose Al was injured when he slipped and fell in a convenience store. Al files suit naming Ed’s Store as the defendant. In fact, the business is Ed’s Store, Inc., a Texas Corporation. How can Ed’s Store, Inc. assert its corporate capacity to protect its officers, directors, and shareholders from personal liability?
This plea challenges the plaintiff’s pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. A plea in abatement is based on either:
• a defect in the parties (e.g., capacity , non-joinder of a necessary party, improper party); or
• a defect in the petition’s allegation (e.g., pendency of another action involving the same parties or pendency of an administrative proceeding involving the same claim).
The plea identifies the impediment, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect.
File a verified denial because it is not liable in the capacity in which it has been sued. Then, Ed’s Store, Inc. should allege the same matters in a verified plea in abatement which raises the capacity issue and asks the court to take action on the alleged defects.
F. Special Exception – Challenging the Pleadings [July 2004 #4; February 2005 #6; February 2009 #6; February 2010 #5; July 2010 #3, #4; February 2011 #12]
An objection to plaintiff’s or defendant’s pleading is made by special exception. The special exception may be based on:
• defects of substance to the cause of action, defense, an element of damage, or relief which is not allowed by law; or
• defects of form typically related to vagueness, ambiguity, and the like.
A party specially excepting must object in writing, call for a hearing, and get a ruling on the exception on the record, otherwise it is waived.
If the exception is sustained, the ruling will allow the party to amend the pleadings to correct the defect, if possible. If the party elects to not amend the pleading, the opposing party can file a motion to dismiss or strike asking the court to dismiss or strike the defective allegation which the party refused to amend despite being given the opportunity to do so.
G. The Answer: Pleas in Bar
1. Time to Respond
Example [February 2000 #1; February 2002 #2; July 2006 #1; February 2008 #2; July 2008 #1; February 2009 #7]:
Suppose Jan retains you to defend her in a personal injury suit filed by Dean in District Court in Travis County, Texas. Process has been properly served on Jan. When is Jan’s answer due?
G. The Answer: Pleas in Bar
1. Time to Respond
The defendant must file an answer by 10:00 A.M. on the first Monday after the expiration of 20 days from the date the defendant was served with process. This rule applies to corporate as well as individual defendants.
