Texas Civil Procedure (DONE) Flashcards
What is required for a court to have subject matter jurisdiction?
1) The type of case or relief sought requires the case to be filed in a particular court or courts, and; 2) If the answer to the first question is “no”, the second question asks what is the AMOUNT IN CONTROVERSY in the suit.
How is the amount in controversy determined?
The amount must be prayed for in good faith by the plaintiff, and is determined with reference to the value of the thing or interests sought to be restrained.
What are the specific limits for the amount in controversy? (Justice Court, Constitutional County Court, County Courts at Law, District Courts)
Justice Court: Up to $10,000 Const. County Court: From $200.01 to $10,000 County Courts at Law: $200.01 to the maximum amount found in the statute that created the specific court. The max jur. amount in $200,000, unless changed for a specific court by statute. District Court: Jurisdiction when the AIC exceeds $500. There is no upper limit to the jurisdictional amount in District Court. (almost always in D.Ct. for the Bar)
What is the purpose of the original petition?
The original petition serves two purposes: 1) Gives fair notice to the parties of the facts and legal theories; and 2) Guides the trial judge for the purpose of admitting evidence and charging the jury.
What are the formal requirements for original petition?
The petition shall state: 1) The names of the parties and their residences; 2) The statement that damages sought are within the jurisdictional limit of the court; and a statement that the party seeks one of the following: — only monetary relief of $100,000 or less (i.e., no injunctive relief), including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; — monetary relief of $100,000 or less and nonmonetary relief — monetary relief over $100,000 but not more than $200,000 — monetary relief over $200,000 but not more than $1,000,000; or — monetary relief over $1,000,000 3) A demand for judgment for all other relief which the party deems himself titled. Must be signed by the party;
What must the petition state about the claim for damages sought by the petitioner?
For unliquidated damages, the petition may contain the statement that the damages sought are within the jurisdictional limit of the court, but the petition must also plead into one of the damages ranges required.
What option does the defendant have if the petitioner does not make a proper claim for damages?
The defendant may file a special exception seeking a specification of damages and asking the court to require the plaintiff to amend so as to specify the maximum amount claimed.
What is required of the prayer in a petition?
If the prayer or demand is only for damages already pleaded, it may simply state that generally. If however, some different or additional relief is sought such as injunction or recision, such relief must be specifically pleaded.
When must an amended pleading be filed?
Must be filed more than 7 days prior to trial. A motion seeking leave of court is required if the amended pleading is filed within 7 days prior to trial. This rule also applies to amendments adding affirmative defenses and counterclaims to defendant’s answer.
When will a motion for leave to file an amended pleading be denied by the court?
When the amendment adds a NEW cause of action or would cause surprise or prejudice to the defendant. Allowing new causes of action would require different evidence from the defendant, which might cause prejudice.
If the plaintiff seeks to offer evidence of an injury that isn’t supported by the trial pleadings, and the defendant objects successfully to the jury instruction regarding the evidence, what option does the plaintiff have?
The plaintiff should seek leave to file a trial amendment, especially if the defendant failed to object to the evidence being admitted during trial.
If the defendant does object after the evidence is admitted (outside of a petition’s claims), what are the plaintiff’s options?
The court should allow the trial amendment when presentation of the merits will be served and the objecting party fails to satisfy the court that the amendment would prejudice him in maintaining his action or defense.
If a trial amendment is granted and the defendant needs more time to address the new claim and evidence required, he can ask for ____________/
A continuance. Refusing an offer of continuance waives the right to complain on appeal.
What would a plaintiff use to respond to a defendant’s response to their petition with a defense?
A supplemental pleading, which is used to reply to a defendant’s defense. Made in response to the last previous pleading of the adverse party. It ADDS to but DOES NOT SUPERSEDE the last pleading.
What must a plaintiff due in order to bring a lawsuit against an overdue account?
P should file a VERIFIED pleading on a sworn account. The verified account may be relief on to establish a prima facie right of action. It must contain: 1) An itemized statement of the goods or services sold; 2) Reveal offsets to the account; and 3) Be supported by an affidavit stating that the claim is just and true and within the affiant’s knowledge.
What must a defendant do when a lawsuit against an overdue account is brought against him?
In order to dispute the facts of the overdue account, D must filed a written denial under oath. Failure to file a verified denial prevents the defendant from denying the claim and waives the right to dispute the ownership and the amount of the account.
What are the requirements for the exercise of personal jurisdiction in Texas?
Adequate grounds: Substantive due process requires that a state must have a constitutionally adequate basis for the exercise of personal jurisdiction. Constitutionally adequate grounds include: — physical PRESENCE of the D in the forum state. — the D is a DOMICILIARY of the forum state — the D CONSENTS to the state’s exercise of personal jurisdiction, or — the D has MINIMUM contacts with the forum state.
What are the requirements for the exercise of PJ over nonresident defendants in Texas?
Minimum Contacts Test 1) The non-resident D or foreign corporation must PURPOSEFULLY do some act or consummate some transaction in Texas 2) The cause of action must ARISE from, or be CONNECTED with, this act or transaction (specific jurisdiction) 3) The assumption of jurisdiction by Texas must not offend traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE.
Service requirements for personal service in Texas?
The defendant must be served with process (i.e., a copy of both the citation and the petition) to compel an answer. Service can be done either by PERSONAL DELIVERY or MAILING the citation and petition by registered or certified mail, return-receipt requested.
Service requirements for substitute service in Texas?
If the plaintiff is unsuccessful in attempting to serve the defendant EITHER In person or by mail: — the P may file a motion with an affidavit stating the usual place of abode or business of the D and asserting facts showing that service has been ATTEMPTED, but UNSUCCESSFUL. — the court then may authorize service by leaving a copy of the citation and petition with anyone over 16 years of age at the location specified in the affidavit, or by any manner that will reasonably give the D notice of the suit.
Service requirements for citation by publication in Texas?
When a party or his attorney swears that he is unable to locate the D or his residents and other means of service have failed, the clerk of court issues service by publication.
Service requirements for service on corporations?
Both domestic and foreign corporations doing business in Texas are required to designate an agent on whom service may be made. Process may be effectively served on: — the REGISTERED agents; — the president of the corporation; or — any vice-president of the corporation When a foreign corporation fails to appoint a registered agent, it may be served by serving the SECRETARY OF STATE for Texas, who then has the duty to notify the defendant by registered mail.
What are the requirements for out-of-state service under the Long-Arm Statute?
The P must serve the Texas Secretary of State under the long-arm statute, and the petition must allege that the Defendant: 1) Is a non-resident of Texas; 2) Has no regular place of business or person in charge in Texas 3) Has been doing business in Texas (i.e., entering into contract by mail or otherwise with a resident in Texas to be performed in whole or in part by either party in this state or committing any torn in whole or in party in this state).
When does the statute of limitations toll in Texas?
When a petition is filed, as long as the P exercised actual diligence in procuring both issuance and service of citations.
What are the D’s options when filing pleadings?
D can file Pre-answer pleadings, an Answer, or Consolidated Response
What are pre-answer pleadings (for D)?
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.
What is included in a D’s answer?
The D 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.
What is included in a D’s consolidated repsonse?
The D can file a single consolidated pleading raising both dilatory pleas and pleas in bar. Problems result when the D fails to follow the due order of pleading rule.
How can a D challenge personal jurisdiction?
By filing a special appearance to challenge to court’s exercise of personal jurisdiction. It must be filed BEFORE any other plea, pleading or motion by the D.
What happens if a D fails to file a special appearance before making a plea, pleading or motion in response to a petition?
He makes a GENERAL appearance, consents to jurisdiction, and waives all defects to personal jurisdiction in service.
Does a D waive his objections to jurisdiction by participating in discovery?
No, discovery, subpoenaing witnesses, and even appearing in person for the hearing on the special appearance may be done without waiving it.
Who has the burden of establishing or negating personal jurisdiction if D files a special appearance?
D has the burden to negate the basis for personal jurisdiction.
What must be said in a special appearance?
The pleading should assert that D is not AMENABLE to service of process and deny the P’s allegations. The pleading must be verified. The forms of evidence that may be presented to the court in deciding the jurisdictions are all discovery, affidavits, and oral testimony.
What type of order is the granting or denial of a special appearance?
An INTERLOCUTORY ORDER that may be immediately appealed.
What is the general rule for venue in Texas?
Lawsuits shall be brought: 1) In the county in which all or a substantial part of the events or omissions GIVING RISE at the time of the cause of action accrued. 2) If the D is a natural person, in the county of the D’s RESIDENCE at the time the cause of action accrued. 3) If the D is not a natural person, in the county of the D’s PRINCIPLE OFFICE in the state; or 4) If none of the above applied, then in the county in which the P RESIDED at the time the COA accrued.
What is the venue rule for breach of warranty by a manufacturer of a consumer good?
A PERMISSIVE venue rule that provides that the suit is proper in the county of the P’s residence at the time COA accrued.
What is the venue exception for suit on a written contract?
A permissive venue exception that allows suit to be brought in the county in which the D is required to perform.
What should be included in a P’s motion to transfer venue?
In the petition, the P must plead the existence of a cause of action and should plead venue facts that, if true, are sufficient to maintain the suit in the county where it is filed.
What should be included in a D’s motion to transfer venue?
Note: D must ALWAYS file this motion before filing anything else, otherwise it’s waived. D’s motion must: 1) State that venue is not proper where suit is filed. 2) Deny any venue facts in P’s petition which D wishes to contest. 3) Name the county to which transfer is sought and plead venue facts that support the county of requested transfer as proper. 4) Identify the section of the venue statute making the requested county proper, and 5) Request a transfer to the specified county.
When must P file a response to D’s motion to transfer venue, and what must it include?
P must file the response within 30 days prior to the hearing on the MTV. The response should present prima facie PROOF (affidavits and discovery material) of matters specifically denied by D and specifically deny any of the D’s pleaded venue facts which P wishes to contest.
Who has the burden in MTV issues?
Defendant
Does the MTV need to be verified?
No
How long is the notice requirement for a hearing on the MTV?
45 days
Who is the decision maker for MTV challenges?
All venue challenges are decided by the court without the aid of a jury.
What is the appeal procedure for MTV?
No interlocutory appeal is allowed and a party must appeal the venue decision after the final judgment. The trial court’s decision will prevail unless the appellate court finds “reversible error”.
What is the venue challenge procedure when multiple plaintiffs are involved?
EACH plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial court’s determination that a P did or did not independently establish proper venue.
What is the difference between a motion to TRANSFER venue and a motion to CHANGE venue?
The motion to change venue asks if there is such a prejudice against the D in the county of suit that the cannot obtain a FAIR and IMPARTIAL trial.
What is a plea in abatement?
This plea challenges the P’s pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. The plea identifies the impediment, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect.
What is a plea in abatement based on?
1) A defect in the parties (capacity, non-joinder of a necessary party, improperly party, etc); or 2) A defect in the petition’s allegations
How does a party challenge a pleading?
By filing a special exception. May be based on: 1) Defects of substance related to cause of action, defense, an element of damage, or relief which is not allowed by law; or 2) Defects of form, typically related to vagueness, ambiguity, etc. 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.
How does a party file a motion to dismiss?
Allowed under TRCP 91a. Allows challenging the cause of action as baseless. 1) No basis in law: Even assuming the allegations are true, the plaintiff would not be entitled to the relief sought. 2) No basis in fact: “No reasonable person would believe the facts pleaded”
What is the deadline for filing a motion to dismiss under TRCP 91a?
It must be filed within 60 days of service on the movant of the first pleading that contains the challenged cause of action, and the motion must be filed at least 21 days before the motion is heard.
What is the deadline for responding to a motion to dismiss?
The nonmoving must respond to the motion no later than 7 days before the date of the hearing or he may nonsuit the challenged cause of action at least 3 days before the hearing.
What is the deadline for the court to rule on the motion to dismiss?
The court must rule on the motion within 45 days of its filing unless: 1) the motion is withdrawn 2) the challenged cause of action is timely nonsuited, or 3) the parties agree the court need not rule on the motion.
What may the court consider when ruling on a motion to dismiss?
The court may only consider the pleadings and may not consider the evidence.
After being properly served, when must the Defendant file their answer?
The D must file an answer by 10am on the first Monday after the expiration of 20 days from the date the D was served with process.
What is the effect of a general denial?
A D may generally deny all of P’s allegation. The D’s general denial need only state: “D denies each and every allegation in P’s original petition” A general denial puts in issue all matters not required to be denied under oath or specially denied.
What order must pleadings be made (objections)?
1) Special appearance 2) Motion to transfer venue 3) any other pleadings (special exceptions, general denial, etc)
What is a special denial?
When there is a condition precedent to the D’s duties (e.g., conditions in an insurance policy or conditions to the duty to purchase a home), it is sufficient if the plaintiff generally alleges that the conditions precedent have been performed or have generally occurred. In order to challenge’s P’s allegations, D must specifically deny those conditions that the D maintains have not been met. Unless the D specifically denies the conditions precedent, the P need not prove the matters, as her allegations are taken as true.
How do you make a verified plea?
Verification consists of signing an affidavit under oath to the effect that the factual matters pleaded are true. The affidavit should be made by the party.
What are the affirmative defenses that must be verified?
Denials and abatements that must be pleaded under oath include: 1) P lacks legal capacity to sue or be sued 2) Denial of P’s properly filed sworn account action, and 3) That there is another suit pending in Texas between the same parties involving the same claim
What is an affirmative defense?
An affirmative defense is any matter that provides an independent reason that, if proved by the D, will totally or partially bar the P from recovering, even if P’s allegations are true.
Who has the burden of proof for affirmative defenses?
AD’s must be pleaded by the D as a ground of defenses, so D has the burden of proof on these matters and, if pleaded and evidence is produced, D is entitled to have ADs submitted as questions to the jury.
Joinder - What is a counterclaim?
A counterclaim is a claim by one party against an opposing party seeking some affirmative relief.
What is a compulsory counterclaim?
In order for a counterclaim to be compulsory, it must: 1) arise from the same T/O 2) be within the jurisdiction of the court 3) not be subject of a pending action 4) be a claim that the pleader has at the time of filing 5) not require the presence of third parties over whom the court cannot acquire jurisdiction
When must a compulsory counterclaim be asserted?
It must be asserted against the plaintiff in the pending action, or its subject matter will thereafter be barred.
What is a permissive counterclaim?
A permissive counterclaim may be brought in the same action or the D has the option of asserting it in a separate action.
What is a crossclaim?
A crossclaim is a claim by one party against a co-party. It must be out of the same T/O. These are generally permissive.
When may a third party claim be filed against a party that the D believes is liable for all or part of the damages against P?
The TPP need not obtain leave of service if he files the third party petition not later than 30 days after he serves his original answer. Otherwise, D must obtain leave on motion stating the claim, the basis, and the relationship to the primary claim. The D must give notice of the motion to all parties.
If a potentially liable third party is out of the reach of the court, how can a D address this problem?
By filing a motion for leave to designate the non-parties as responsible third parties. The motion must be filed on or before the 60th day before the trial date except for good cause. The D must plead sufficient facts to raise a genuine issue regarding the designated person’s responsibility for the harm.
Who would be a responsible third party?
Any person who is alleged to have caused or contributed to causing the harm for which recovery is sought. The terms includes a bankrupt, a criminal, a person belong the court’s jurisdiction, and an employer with worker’s compensation immunity.
What is the impact of designating a responsible third party?
The fact finder will determent he degree of responsibility for various persons. A person designated as a responsible third party is a person whose conduct is considered by the jury when allocating fault for the P’s injuries.
Does the designation procedure affect third party practice?
No. The designation procedure allows the jury to consider the fault of such a party without the necessity of joining a party.
What is discoverable in Texas?
A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action. It is NOT ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence.
Is a party required to disclose the names of potential witnesses?
Only for general witnesses. Impeachment and rebuttal witnesses need not be disclosed, because the necessity of their testimony cannot reasonably be anticipated before trial.
How can a party justify their refusal to disclose a witness before calling them at trial?
That party will have to show good cause for nondisclosure or that the party will suffer no prejudice or surprise.
What are the classifications of experts?
Testifying, consulting, and reviewed consulting experts.
What is a consulting expert?
Those who have been consulted, retained, or specially employed in anticipation of litigation or for trial, but who will not testify.
What is a reviewed consulting expert?
A consulting experts whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees with the opinions of the consulting expert.
What types of experts are discoverable?
The identity, mental impressions, and opinions of a purely consulting expert are not discoverable. A party may discover information concerning a testifying or a reviewed consulting expert witness.
When must a party designate their experts?
At least 60 days before the end of the discovery period. A party seeking affirmative relief must respond to the requests for disclosure at least 90 days before the end of the discovery period.
What happens when a party seeks affirmative relief regarding the designation of their experts?
Parties seeking affirmative relief must make their experts available for deposition reasonably promptly after the expert is designated unless a REPORT concerning the expert’s opinions and observations is provided upon designation. If a report is furnished, the designated expert need not be available for deposition until ALL other experts have been designated.
