Texas Civil Procedure Flashcards Preview

Texas Bar Subjects > Texas Civil Procedure > Flashcards

Flashcards in Texas Civil Procedure Deck (48)
Loading flashcards...
1

District Court jurisdiction:

 Courts of general jurisdiction
 Amount in controversy requirement must exceed $500.
 No upper limit on the amount in controversy

Editor's Note 1: The amount of the minimum limit is currently unclear.
Appellate Courts have split opinions

2

County Courts at Law jurisdiction:

Created by the legislature for certain counties
 Amount in controversy is between $200.01 and $200,000

3

Constitutional County Court jurisdiction:

Constitutional County Court
 Created by the Texas Constitution
 The county judge presides over the Constitutional County Court.
 Has civil jurisdiction between $200.01 and $10,000.

4

Justice of the Peace Court jurisdiction:

Civil jurisdiction over minor civil actions where the amount in controversy is not more
than $10,000

5

Amount in Controversy Rules:

a. Single Plaintiff, Multiple Claims
Aggregate multiple claims by a single plaintiff against a single defendant to get the amount in controversy.

b. Multiple Plaintiffs
 All claims by multiple plaintiffs against the same defendant are aggregated to determine the amount in controversy.

c. Multiple Defendants
 Separate, independent, and distinct claims against defendants are not aggregated.

6

Pleading the amount procedural points:

o A plaintiff may plead the specific amount of damages in the petition.

At a minimum, the plaintiff must state in the petition that the amount in controversy is within the jurisdictional limits of the court.

o If the plaintiff fails to plead the maximum amount claimed in damages, the defendant files a special exception, which requires the plaintiff to specify the maximum amount claimed.

 If the amount in controversy pleaded is outside the jurisdictional limits of the court, the defendant files a plea to jurisdiction, because the court does not have the authority to hear the case.

7

What do you file to get access to an Intermediate appellate court, and what must it have:

Notice of appeal, it must include:
o The trial court’s name and case’s trial court number and style;
o The date of the judgment or order appealed from;
o A statement that the party desires to appeal;
o The court to which the appeal is taken (e.g., Seventh Court of Appeals); and
o The name of each party filing the notice of appeal.

(Must arise from a county or district court where the judgment exceeds $100)

8

Does a Notice of Appeal suspend a judgment:

No. But can suspend by:
o Obtaining a written agreement with the judgment creditor;
o Filing with the trial court clerk a good and sufficient bond;
o Making a deposit with the clerk in lieu of a bond; or
o Providing alternate security as ordered by the court.

9

What must you file to get a case heard by the Texas Supreme Court:

Must file a Petition for Review.
The court has discretion to hear the appeal.

10

What are the general venue rules:

All lawsuits must be brought in the county where:
• All or a substantial part of the events that gave rise to the action took place;
• The defendant resides at the time of the event;
• The defendant’s principal office in the state, if the defendant is not a natural person; or
• If none of these situations apply, the county where the plaintiff resided at the time of the event.

11

What is a residence:

A fixed place of abode that one occupies or intends to occupy permanently.

12

What is a principal office:

The place where the decision makers for the organization within the company conduct the daily affairs of the organization.
• The place where the company has its headquarters
• May have more than one principal office

13

How and when to challenge venue:

File a Motion to Transfer Venue.

Four grounds:
1. Plaintiff’s choice of venue is improper;

2. The case should be transferred to another proper venue on convenience and justice grounds;

3. The parties consent to a transfer; or

4. A local prejudice makes it unfair for the case to be heard in the county of suit.

• The procedure to challenge venue when local prejudice exists is called a Motion to Change Venue.

14

Important procedural issues for challenging venue? Deadline:

Motion to Transfer Venue must be filed before any other pleading or motion

Due Order of Pleading Rule: Motion to Transfer Venue is filed prior to or concurrently with the filing of the answer.

A venue objection is waived if not timely filed.

15

Important procedural issues for challenging venue? Contents and plaintiff proof requirements:

b. Contents

 Deny plaintiff’s venue facts alleged in the petition;

Explain why the plaintiff’s choice of venue is improper;

Allege another proper county of venue with specific venue facts; and

 Request the court transfer the case to that county

c. Plaintiff’s Proof Requirement

 Once venue is challenged, the burden is on the plaintiff to establish by prima facie proof that venue is proper in the original county of suit.

 Prima facie proof may be established through affidavits,
discovery products, and other sources of information.

16

Important procedural issues for challenging venue? Hearing and submission of evidence:

 The Motion to Transfer Venue should be set for hearing by the defendant.

 Each party is entitled to a least 45 days notice of the hearing.

The plaintiff’s response and evidence must be filed at least 30 days before
the hearing date.

 Defendant must submit any additional reply and evidence at least 7 days before the hearing.

17

Service of process requirements? Basic principles:

Process = citation and petition together

Sheriffs, constables, clerks of court, and private process servers may serve process by hand delivery; certified mail with return receipt requested; and other means by court order.

The Procedure to Provide Defendant with Formal Notice of the Lawsuit
o File petition (Plaintiff)
o Citation is prepared (Clerk of Court)
o Person is authorized (Authorized person)
o File return of service (Process server)

18

Answer deadline and consequences:

After being served, the defendant must file an answer.

o Deadline: By 10AM on the Monday next following the expiration of 20 days after the date of service

o If no answer by the deadline, plaintiff may obtain a default against the defendant:
File a Motion for Default Judgment
Failure to file an answer means plaintiff is entitled to a liability finding
If plaintiff’s damages are unliquidated, will have to prove those damages in a hearing.

19

Serving process on a corporation or nonresident defendant:

Serving Process on a Corporation
o Made by serving:
- Its registered agent;
• Special agent whose identity is on file with Secretary of State
- The president or vice president.

Serving Process on the Texas Secretary of State – The Long-Arm Statute
o Statutory provisions where Secretary of State is defendant’s agent
o Secretary of State is served with process
o Secretary of State forwards process to the defendant
- Whitney certificate: The document that verifies that the Secretary of State forwarded the process to the defendant

o General Texas Long-Arm statute: Secretary of State may be served on behalf of a nonresident defendant if various conditions are satisfied. The plaintiff’s petition
must allege that:
(1) Secretary of State is the agent for service on the nonresident defendant;
(2) Non-resident defendant engaged in business in Texas;
(3) Nonresident defendant does not maintain a regular place of business in Texas;
(4) Nonresident defendant does not have a designated agent for service of process in Texas; and
(5) Lawsuit arises from the nonresident’s business in Texas.

20

Deadline to object to personal jurisdiction:

Must file for special appearance arguing that you are not amenable to process:

a. Deadline to File Special Appearance
- MUST file as first pleading
 - Must be filed BEFORE answer deadline
 If filed after answer, waives personal jurisdiction (considered a general appearance).

b. Form of the Special Appearance
 Must be made b sworn motion with evidence of affidavits filed by the parties; stipulations; pleadings; results of discovery processes; and oral testimony

c. Waiver
 Occurs when special appearance not timely filed
 Does NOT occur when other pleadings or motions are filed after special appearance
• IF documents do not acknowledge trial court’s jurisdiction
 A defendant does not waive its special appearance by utilizing discovery processes related to the special appearance.

21

Minimum contacts test:

A non-resident defendant must prove in its special appearance that:

(1) No purposeful availment. It did not purposefully avail itself of the benefits and
protections of Texas law.

(2) No specific jurisdiction. The plaintiff’s cause of action does not arise from or relate to the nonresident defendant’s contacts with Texas. Any contacts nonresident defendant has with Texas are not substantially connected to operative facts of litigation.

(3) No general jurisdiction. The non-resident defendant did not have continuous and systematic contacts with Texas.

(4) Violates Fair Play and Substantial Justice. The exercise of jurisdiction by the court would violate traditional notions of fair play and substantial justice.

22

Pleadings: What does plaintiff file and what is the Due Order of Pleadings Rule for defendant’s response?

Plaintiff files a petition that must give a short statement of the cause of action and be sufficient to give fair notice of the claims involved.

General appearance/answer can raise objections to:
- Court’s personal jurisdiction over the parties - done by special appearance
- Venue - done by motion to transfer venue, or
- Appropriateness of forum - done by motion to on forum non convenient grounds

Defendant pleading order: Special appearance filed first, followed by motion to transfer venue, and then the answer.

23

Pleading damages:

Original pleading must include a statement as to the amount of damages sought within the
following ranges (slotting damages):
 Only monetary relief $100,000 or less;
 Non-monetary relief and monetary relief of $100,000 or less;
 Monetary relief over $100,000, but not more than $200,000;
 Monetary relief over $200,000, but not more than $ 1 million; or
 Monetary relief over $1 million

o Expedited Action Process: Applies when plaintiff affirmatively pleads that he is seeking only
monetary relief aggregating $100,000 or less.
- Special limitations on discovery, trial settings, continuances, time limits for trial,
alternative dispute resolution, and expert testimony.

24

Defenses stated in the answer:

The answer must contain a general denial, specific denials, and affirmative defenses.

Every answer must include a general denial that denies all claims and positions the plaintiff with the burden of proof.

Must include specific denials for the following:
o Legal capacity of the parties to sue or be sued;
o A denial that a party is incorporated or is a partnership;
o That an absent party must be joined to the case;
o That the defendant or a person under the defendant’s authority executed a written instrument that is the subject of the suit;
o A denial of the genuineness of an endorsement of a written
instrument that is the subject of the suit;
o That the written instrument is without consideration; and
o A denial of a suit on an account.

Must include affirmative defenses, examples include:
o Contributory negligence;
o Duress;
o Estoppel;
o Laches;
o Release;
o Res Judicata;
o Statute of Frauds;
o Statute of Limitations; and
o Waiver.

25

Counterclaim pleadings:

A defendant should include in its answer any claims for affirmative relief it has against the
plaintiff.

A counterclaim is compulsory if:

(1) Within court’s jurisdictional limits;
(2) It is not subject of a pending action;
(3) The claim is mature and owned by the defendant at the time of the filing of the answer;
(4) It arose out of the same transaction or occurrence that is the subject matter of the opposing
party’s claim;
(5) It is against the opposing party in the same capacity; and
(6) It does not require the presence of third parties over whom the court cannot acquire jurisdiction.

26

Third-Party practices regarding an Answer:

• A defendant may join a non-party who may be liable for all or part of the damages by filing a Third-Party Petition (Third-party practice)

• A defendant may also designate a person as a responsible third party (RTP) without formally joining the party by filing a Motion for Leave to Designate a RTP.

27

Defendant’s Answer deadline:

Defendant must file written answer with clerk who issued the citation by on the Monday next following the expiration of 20 days after the date of service.

28

Challenging defects in pleadings:

File a Special Exception - Defects apparent on the face of the pleadings are challenged by special exception.

- Points out pleading defect with and explains how defect may be cured
- If trial court grants, opposing party must his pleadings
- If re-pleading does not cure defect, case may be dismissed.

File a Plea in Abatement - Defects that are not apparent from the face of the pleadings but that may be proven by evidence are challenged by a plea in abatement.

29

Amended pleadings:

Texas policy allows parties to liberally amend their pleadings to add new causes of action and defenses and to cure defects.

Matter of right: Before deadline in trial court's scheduling order: If no scheduling order controls the deadline: may amend at least 7 days before trial

 To amend during trial, file a Trial Amendment

 To challenge amended pleadings:
o Motion to strike amended pleadings
o A trial court should not permit the amendment of pleadings if the amendment would surprise or prejudice the opposing party, e.g., on the eve of trial or during trial that adds a new substantive cause of action.

30

Frivolous pleadings:

Pleadings that are groundless and brought in bad faith may result in sanctions:
 Paying opposing party’s attorney’s fees and expenses related to contesting the pleading;
 Excluding evidence;
 Striking pleadings;
 Ordering payment of a monetary penalty; and
 Ultimately, dismissing party and/or case.

Sanctions attorney or party depending on who was at fault.