Texas Civil Procedure

Question 1

District Court jurisdiction:

Answer 1

 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

Question 2

County Courts at Law jurisdiction:

Answer 2

Created by the legislature for certain counties

 Amount in controversy is between $200.01 and $200,000

Question 3

Constitutional County Court jurisdiction:

Answer 3

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.

Question 4

Justice of the Peace Court jurisdiction:

Answer 4

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

Question 5

Amount in Controversy Rules:

Answer 5

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.

Question 6

Pleading the amount procedural points:

Answer 6

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.

Question 7

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

Answer 7

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)

Question 8

Does a Notice of Appeal suspend a judgment:

Answer 8

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.

Question 9

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

Answer 9

Must file a Petition for Review.

The court has discretion to hear the appeal.

Question 10

What are the general venue rules:

Answer 10

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.

Question 11

What is a residence:

Answer 11

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

Question 12

What is a principal office:

Answer 12

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

Question 13

How and when to challenge venue:

Answer 13

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.

Question 14

Important procedural issues for challenging venue? Deadline:

Answer 14

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.

Question 15

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

Answer 15

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.

Question 16

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

Answer 16

 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.

Question 17

Service of process requirements? Basic principles:

Answer 17

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)

Question 18

Answer deadline and consequences:

Answer 18

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.

Question 19

Serving process on a corporation or nonresident defendant:

Answer 19

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.

Question 20

Deadline to object to personal jurisdiction:

Answer 20

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.

Question 21

Minimum contacts test:

Answer 21

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.

Question 22

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

Answer 22

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.

Question 23

Pleading damages:

Answer 23

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.

Question 24

Defenses stated in the answer:

Answer 24

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.

Question 25

Counterclaim pleadings:

Answer 25

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.

Question 26

Third-Party practices regarding an Answer:

Answer 26

* 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.

Question 27

Defendant’s Answer deadline:

Answer 27

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.

Question 28

Challenging defects in pleadings:

Answer 28

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.

Question 29

Amended pleadings:

Answer 29

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.

Question 30

Frivolous pleadings:

Answer 30

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.

Question 31

Baseless Cause of Action Rule:

Answer 31

May move to dismiss a cause of action on the ground that there is no basis in law or fact. • Motion must: - State that it is made pursuant to the specific baseless causes of action rule; identify each cause of action to which it applies; and state specifically the reasons the cause of action has no basis in law, fact, or both - Filed within 60 days after the first pleading containing the challenged cause of action is served on the movant - Court must grant or deny motion within 45 days after it is filed - Court must award prevailing party on the motion all costs and reasonable attorney’s fees incurred with respect to the challenged cause of action

Question 32

Joinder of claims: res judicata

Answer 32

Parties must assert all “same transaction” claims they have against each other in the initial lawsuit. o Any “same transaction” claims not brought in the initial lawsuit by the plaintiff will be barred on res judicata grounds if the initial suit proceeds to a final judgment. o Any “same transaction” counterclaims not asserted by the defendant in the initial lawsuit will be barred by the compulsory counterclaim rule if the initial suit goes to a final judgment.

Question 33

Severance

Answer 33

Claims improperly joined in a lawsuit o Remedy is severance. o Procedure: Motion for Severance o Three elements: (1) Controversy must involve more than one cause of action; (Multiple claims) (2) Severed causes must be ones that would be the proper subject of a lawsuit if independently asserted; (Proper lawsuits if separated) and (3) Severed causes must not be so intertwined as to involve the same identical facts and issues. (Not so intertwined)

Question 34

Motion for Separate Trials

Answer 34

Made when its unfair to a party to have properly joined claims tried in same trial

Question 35

Motion to Consolidate

Answer 35

Made when “same transaction” claims presented in separate lawsuits

Question 36

Joinder of Parties

Answer 36

Prospective plaintiff may file a Plea in Intervention.

Question 37

Non-suit

Answer 37

o Plaintiff voluntarily dismisses case at any time before introducing all evidence o Any time before plaintiff introduces all evidence (other than rebuttal evidence); the nonsuit may occur any time prior to a party resting its case in chief. o Plaintiffs have an absolute right to nonsuit their own claims. o Operates as a dismissal without prejudice.

Question 38

Joinder of Necessary Parties and Interpleader

Answer 38

When several parties claim monetary proceeds or other property, a disinterested stakeholder may file an interpleader action to bring all of the parties into the suit that have a possible claim to the proceeds. o Persons important to resolving a case so complete relief can be accorded should be joined by parties court order o If person cannot be joined, court must decide whether to go forward or dismiss case because the absent party is o Based on the equities: -  Possible prejudice to the present and absent parties; and -  Whether relief can be shaped to avoid or lessen prejudice o Unusual for a court to lack jurisdiction because a missing party is indispensable

Question 39

Discovery: Scope of Discovery

Answer 39

Based on relevance: Inadmissible information is within the scope of discovery if it appears reasonably calculated to lead to the discovery of admissible evidence.

Question 40

Discovery: Permissible Forms of Discovery

Answer 40

* Requests for disclosure * Requests for production and inspection of documents and tangible things * Requests and motions for entry upon and examination of real property * Interrogatories to a party * Requests for admission * Oral or written depositions * Motions for mental or physical examinations * Note: Discovery requests to nonparties must include the appropriate discovery request and a subpoena.

Question 41

Discovery Control Plan Levels: Level 1

Answer 41

Level 1: Plaintiff affirmatively pleads that he seeks $100,000 or less in damages. (Editor's Note 3: Level 1 discovery also pertains to divorces involving $50,000 or less.)  Oral depositions: Each party has no more than 6 hours in total to examine and cross-examine all witnesses  No more than 15 written interrogatories.  No more than 15 written requests for production.  No more than 15 written requests for admissions.  A party may request disclosure of all documents, electronic information, and tangible items in the possession, custody, or control of the disclosing party that it may use to support its claims or defenses.

Question 42

Discovery Level 2

Answer 42

The default level. Each side has no more than 50 hours in oral depositions to examine and cross-examine opposing parties, experts designated by opposing parties, and persons subject to those parties’ control  No more than 25 written interrogatories.

Question 43

Discovery Level 3

Answer 43

Tailored to the needs of the individual case.

Question 44

Discovery: Deadline to Respond to Written Discovery Requests

Answer 44

* The responding party must serve a written response on the requesting party within 30 days after service of the request. * Exception: A defendant served with a request before the defendant’s answer is due has 50 days after service of the request to respond.

Question 45

Discovery: Requests for Disclosure

Answer 45

The following items are discoverable through a Request for Disclosure: - Names of the parties to the lawsuit; - Names, addresses, and telephone numbers of potential parties; - Legal theories and factual bases of the opposing party’s claims and defenses; - Amount and method of calculating economic damages; - Name, address, and telephone number of persons that have knowledge of relevant facts and a brief statement of each person’s connection with the case; - Basic information regarding any testifying expert; - Any indemnity and insurance agreements; - Any settlement agreements; - Any witness statements; - In a suit for personal injury, medical records and bills reasonably related to the injury suffered, or an authorization permitting the disclosure of such records; and - Name, address, and telephone number of any responsible third parties

Question 46

Discovery: Requests for Admissions

Answer 46

If response not timely served, request is deemed admitted automatically. • A deemed admission conclusively admits to the matter in question, unless the court allows the party to withdraw or amend the admission. • To withdraw a deemed admission, the party must: - Move to withdraw the admission; - Show good cause for the withdrawal; - Show that opposing party will not be unduly prejudiced by permitting withdrawal.

Question 47

Motion to Compel

Answer 47

May be filed when failure to respond adequately to a written discovery request

Question 48

Failure to List a Witness as a Trial Witness

Answer 48

Party may not offer witness’ testimony at trial, unless the court finds: • Good cause for the failure to identify the witness; and • Failure to identify will not unfairly surprise or prejudice other parties