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37 Cards in this Set
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Procedures Involved in Selecting and Maintaining a Lawsuit in a Particular Count
General Venue Rule 71 |
Tex Civ Prac & Rem § 15.002
Venue is proper in: (1) county where all or a substantial part of the events or omissions giving rise to the claim occurred; (2) county of def's residence at the time of the cause of action accrued; (3) county def's principal office, if def is an entity (4) if 1, 2, or 3 DO NOT apply, then county where plf' resided at time of cause of action For convenience of parties/ witnesses and in the interest of justice, crt may transfer to a county of proper venue where crt finds: (1) county would work injustice to movant (2) interests of all parties favors another county (3) transfer would NOT BE injustice to other parties |
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Procedures Involved in Selecting and Maintaining a Lawsuit in a Particular Count
General Venue Rule - Residence 72 |
Def' may have more than one resident. Residence must (1)be a fixed place or adobe (payment of rent satisfies this one b/c some right of possession), (2) be occupied for a subst period of time (5 days a week for 2 years), (3) be permanent rather than temporary (matter of intent to be proven by declarations and acts).
A person can have only one domicile - presence of spouse is evidence of a residence. Students are residents of the county where they attend school. A principal office IS NOT an office subordinate to and controlled by another Texas office. |
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Procedures Involved in Selecting and Maintaining a Lawsuit in a Particular Count
Exceptions to General Venue - Mandatory Venue 73 |
Tex Civ Prac & Rem § 15.011-15.019
Def' in selected county of venue must be proper def' for the COA (Acker). There is very rarely an interlocutory appeal from a venue decision. The only remedy may be mandamus and error in venue on appeal is always harmful error and there is no appellate remedy. Exception: (1) where venue was mandatory; (2) where crt entered a void order on venue (ie - no SMJ); (3) if trial crt violated a mandatory notice procedure then mandamus will issue to force crt to follow these rules. THere are no interlocutory appeals from a venue decision but there is interlocutory appeal from joinder decisions. Mandamus is available for these decisions in limited circumstances (ie - abuse of discretion for mandatory venue or void orders). |
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Procedures Involved in Selecting and Maintaining a Lawsuit in a Particular Count
Exceptions to General Venue - Permissive Venue 75 |
Subchapter C of Tex. Civ. Prac. & Rem § 15
§ 15.035 Contract in writing - (a) If a person has contracted in writing to perform an obligation in a particular county, expressly naming hte county or a definite place in that county - suit on or by reason of the obligation may be brought against him either in that county or in the county in which the def' is domiciled (def' must agree at the time of execution of the k') (b)in action founded on a k obligation of the def' to pay money arising out of or based on a consumer trx for goods, suit may be brought in either (1) the county in which def' in fact signed the k or (2) the county in which the def' resides |
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Procedures Involved in Selecting and Maintaining a Lawsuit in a Particular Count
Other Ways to Establish Venue 76 |
1. Consent
2. Failure to Object 3. Voluntary Dismissal (NO LONGER) |
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The Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Procedural Aspects of Venue - Requisites for Motion to Transfer 77 |
1. Mtn must state reasons WHY venue should be transferred; either legal or factual reasons (NOT have to verify)
2. Mtn should state the venue improper b/c (1) county where action is pending is improper; or (2) there is mandatory venue in another venue. ALL venue facts are taken as true UNLESS specifically denied by Moving Party. THEREFORE, if a plf' establishes his venue facts for a permissive venue statute, then the def's only way to change venue is by mandatory venue statute or for the convenience of the parties (convenience of the parties decisions is final). |
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The Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Procedural Aspects of Venue - Response to Motion to Transfer 78 |
The non-moving party need not respond UNLESS the moving party specifically denies venue facts. The party asserting original venue must make prima facie proof of those venue facts specifically denied.
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The Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Venue Hearing 79 |
After a motion to transfer venue is filed, the initial burden of proof that venue is maintainable in the county of suit is on the plf. If the def' specifically denies the venue facts, the plf' must support his pleadings by prima facie proof of the venue facts.
If the plf' meets the burden, the TC must maintain the lawsuit in the county in which it was filed UNLESS a mandatory provision applies. If the plf' fails in his burden, the def' has the burden of showing that venue is maintainable in the county in which the transfer is sought under either a general, permissive, or mandatory venue rule. If the def' succeeds in that showing the cause will be transferred to the appropriate count. |
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The Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Review of Venue Decisions by Appellate Courts 80 |
Appellate Court is obligated to conduct an independent review of the entire record to determine whether venue is proper in the ultimate county of suit.
The purpose is to strike a balance b/n preserving the plf's right to select and maintain suit in county of proper venue and protecting the def' against "fraud or inaccuracy at the pleading stage." TC has no discretion to transfer venue on its own merit, even to a county of proper venue. Mandamus in "exceptional circumstances". |
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The Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Problems Associated w/an Impartial Trial 81 |
Tex. Civ. Proc. § 257 & 258
Rule 257 - elements required for impartial trial. Law unsettled regarding whether a trial judge should allow live testimony on an application to transfer venue (though does require judge to allow depo testimony) pursuant to Rule 258 |
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Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Problems Associated w/Multiple Parties - Multiple Plfs' 82 |
Tex. Prac. & Rem § 15.003 - Multiple Intervening Plfs'
(a) Each plf' must, independently of any other plf', establish proper venue. Any person who is unable to establish proper venue MAY NOT join to maintain venue for the suit UNLESS the person independently establishes that: (1) joinder/intervention is proper, (2) suit in county DOES NOT unfairly prejudice another party, (3) essential need to have plf's claim tried in county where suit is pending, AND (4) county where suit is pending is fair and convenient venue for both plfs' and defs' THIS IS A JOINDER STATUTE, not a venue statute. The statue allows interlocutory appeal for to contest the TC's decision to allow/deny joinder. The statute DOES NOT provide for an interlocutory appeal form the TC's determination that a person seeking intervention for joinder has independently established venue. |
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Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Problems Associated w/Multiple Parties - Plf's Proof 83 |
If a plf' can properly establish venue, then there is NO NEED to refer to the 4 elements.
If plf' is able to show prima facie evidence of 4 elements, then def' has burden to rebut |
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Procedures Involved in Selection and Maintaining a Lawsuit in a Particular County
Problems Associated w/Multiple Parties - Multiple Defs' 84 |
Tex. Civ. Prac. & Rem. § 15.005 - Multiple Defs'
If venue is established as tone def', then plf' can bring in other defs' if the claims arise from the same ACTS giving rise to the suit. Venue of main COA establishes venue for cross and counter claims. If def' joins a 3rd party def, then venue is proper if claim arises from SAME OCCURRENCE, transaction, or series of events. You don't get to the joinder decision if the plf' can properly establish venue (either under permissive, mandatory or general venue rules) |
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Pleadings of the Parties to a Suit
Interpleader 85 |
Tex Civ Proc Rule 43
Persons having claims agst the PLF may be joined as defs' and required to interplead when their claims are such that the plf' is or may be exposed to double or multiple liability. |
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Pleadings of the Parties to a Suit
Next Friend 86 |
Tex Civ Proc Rule 44
Minors, lunatics, idiots or persons non compos mentil who have no legal guardian may sue and be represented by "next friend" |
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Pleadings of the Parties to a Suit
Definition and System of Pleadings 87 |
Tex Civ Proc Rule 45
Pleadings in district and county courts shall be by petition and answer and must state in plain and concise language, the COA. |
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Pleadings of the Parties to a Suit
Plf's Pleadings: Pleading a COA 88 |
A judgment based on a pleading that DOES NOT state a COA AT ALL is void b/c the crt's SMJ IS NOT invoked. However, pleading that omits some elements of the COA does not render the later judgment void.
Special exceptions are filed by a def' that claims that the CoA is not completely stated (basically, the def' asks the plf' to clarify its pleadings) |
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Pleadings of the Parties to a Suit
Plf's Pleadings: Fair Notice Requirement of Petition 89 |
Post answer, no answer, and nihil dicit default judgments are all treated the same w/regard to pleading requirements.
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Pleadings of the Parties to a Suit
Plf's Pleadings: Scope of Pleadings 90 |
Throughout the duration of the trial, the scope must relate back to the pleadings.
Pleading (45) -> Trial Amendment (66 - evidence presented not within issues made my pleading, crt MAY allow the pleadings to be amended); OR Amendments to Conform to Issues Tried W/OUT Ojb (67 - issues not raised by the pleadings that are tried by express or implied consent are treated as if they had been raised in the pleadings) -> Questions presented to jury (278 - questions presented to jury must be w/in the scope of the issues plead) -> Judgment (301 - judgment shall conform to pleadings) |
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Pleadings of the Parties to a Suit
Plf's Pleadings: Alternative Claims 91 |
Tex Rules of Civ Proc 48
A plf' does not claim under conflicting theories but a plf' may plead alternative remedies and claim under one of the theories. |
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Pleadings of the Parties to a Suit
Plf's Pleadings: Pleading of Damages 92 |
Tex Rules of Civ Proc 56: Special Damages
Special damages must be specifically plead. A prayer of general relief will support any relief raised by the evidence and consistent w/allegations in the petition. |
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Pleadings of the Parties to a Suit
Plf's Pleadings: General vs. Specific Damages 93 |
General (direct) - those damages that are proximately caused and presumed to be foreseeable
Consequential (specific) - those damages that result naturally, but not necessarily from the facts complained on. Damages too remote or too uncertain are NOT recoverable. |
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Pleadings of the Parties to a Suit
Plf's Pleadings: Prayer 94 |
You can only put evidence that is based on the pleadings. Prayer must be consistent w/the facts stated as a basis for relief. Prayer CANNOT enlarge the scope of the pleadings beyond what was already stated.
Statutory interest MAY be supported by a general prayer for relief. ALWAYS include a prayer for interest, costs, and fees along w/general prayer. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Plea in Abatement 95 |
It is a pleading by the defendant, as a response to the plaintiff's claim, where the defendant does not object to the claims but objects to its form or time or place thereby having an excuse for which a judge should consider before proclaiming a sentence as that may affect the decision.
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Pleadings of the Parties to a Suit
Def's Pleadings: Counterclaim & Cross Claim 96 |
Tex Rule of Civ Proc 97
(a) any claim not subject of a pending action that arises out of the trx or occurrence that is the subject matter of the opposing party's claim does not require the presence of 3rd parties (and if not raised would be barred by res judicata in a subsequent suit) (b) Permissive Counterclaims - a pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the trx or occurrence that is the subject matter of the opposing party's claim. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Counterclaim Jurisdiction 97 |
When suit is proper in more than one county, the court where suit is filed first acquires dominant jurisdiction.
EXCEPTIONS: 1. Conduct by a party that estops him from asserting prior active jurisdiction; 2. Lack of persons to be joined if feasible, or power to bring them before the crt. 3. Lack of intent to prosecute the first lawsuit (must show due diligence) |
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Pleadings of the Parties to a Suit
Def's Pleadings: Special Exceptions 98 |
Tex Rules of Civ Proc 91
Special exceptions must specifically point out the objectionable part of petition and describe it intelligently and w/particularity. Purpose of special exception is to make the plf' clarify what he is asking for. Def' is NOT required to plead his facts (party can get this info in discovery). -- Can an atty of reasonably competence ascertain the COA from the pleadings? In prayer of special exceptions, request that the party amend their pleadings or have crt strike the pleadings. The party can the move to dismiss if court strikes pleadings b/c of COA will no longer exist. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Special Exceptions - Plf's Response 99 |
A plf has two options after special exceptions have been sustained:
(1) he may amend; or (2) he may stand behind his pleadings and test validity on appeal. A crt MUST give a party a chance to amend the defective pleading. HOWEVER - a long, unexplained delay in filing an amended pleading is a REFUSAL to amend. An order sustaining special exceptions are interlocutory and there is NO right to appeal. |
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Pleadings of the Parties to a Suit
Failure to State a COA vs. Pleading that Negates COA 100 |
Failure to state COA = Default Judgment IS NOT VOID
Pleading that Negates = Default Judgment is NOT VOID No Pleading = VOID Judgment |
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Pleadings of the Parties to a Suit
Def's Pleadings: General Denial 101 |
Tex Rules of Civ Proc 92
general denial places the burden of every element of a case on plf. W/a general denial, a def' may only introduce evidence to disprove facts alleged in plf's petition and to rebut evidence offered by plf. Def CANNOT introduce other evidence that tended to disprove plf' by new and independent evidence. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Verified Denial 102 |
Tex Rules of Civ Proc 93
When def' is required to deny allegations under oath - if not verified, then allegations are taken as true and def' cannot deny. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Affirmative Defenses 103 |
Tex Rules of Civ Proc 94
Negates a plfs COA entirely. 1. Accord & Satisfaction 2. Arbitration & award 3. Assumption of Risk 4. Contributory negl 5. Duress 6. Estoppel 7. Fraud, illegality 8. Res Judicata 9. Statute of Frauds/SOL Liquidated Damages are not enforceable if they are not a reasonable estimation (thus a penalty) - The defense of penalty is an affirmative defense. An affirmative defense must be plead or it is waived. EXCEPTION - The defense of penalty IS NOT waived by the failure to plead if it is apparent on the face of the petition and is established as a matter of law (enforcement of penalty would violate public policy). |
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Pleadings of the Parties to a Suit
Def's Pleadings: Special Pleas 104 |
Tex Rules Civ Proc 54 - Conditions Precedent
When pleadings include conditions precedent, it is sufficient to aver generally that the conditions precedent have been performed. When conditions have been plead, the plf' need only prove that the conditions THAT WERE SPECIFICALLY DENIED occurred. EX - A creditor in a deficiency suit must plead that disposition of the collateral was commercially reasonable. This may be pleaded specifically or by averring generally that all conditions precedent have been met. If pleaded generally, the creditor IS ONLY required to prove that the disposition of the collateral was reasonable IF the debtor specifically DENIES IT in the answer. |
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Pleadings of the Parties to a Suit
Def's Pleadings: Amendment of Pleadings 105 |
Tex Rules of Civ Proc 66
A TC does not abuse its discretion by allowing a POST-VERDICT amendment increasing the AMOUNT of damages in Plfs' pleadings to conform to the amount awarded by the jury WHEN DEF' PRESENTS NO EVIDENCE OF SURPRISE OR PREJUDICE. Under Rule 63 & 66 - a TC has NO discretion to refuse an amendment unless: 1. opposing party presents evidence of surprise or prejudice; or 2. the amendment asserts a new COA or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment |
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Pleadings of the Parties to a Suit
Def's Pleadings: Amendment of Pleadings - Burden of Showing Surprise or Prejudice 106 |
The burden rests on the party resisting the amendment. If the trial amendment is NOT mandatory, then the decision to permit or deny the amendment rests within the sound discretion of the trial court.
Tex Rule Civ Proc 4 - amendment must be made w/in 7 days before trial and the day the amendment is filed DOES NOT count as a day. If not filed by then, have to ask the court for leave to file amendment. |
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Pleadings of the Parties to a Suit
Special Pleading Forms 107 |
Tex Rules Civ Proc 185 - Suit on Account
Not a rule of substantive law, but is a rule of procedure w/regard to evidence necessary to establish a prima facie right of recovery. If not denied, the acct is received as prima facie evidence, and the def' may not dispute the receipt of the items or services, or the correctness of the stated charges, although the def' may defend on other grounds. A def's verified denial of the correctness of a plf's sworn account, in the form required by Rule 185, destroys the evidentiary effect of the itemized account attached to the petition and forces the plf' to put on proof of his claim. Affirmative defenses (such as failure of consideration or SOL), when properly pled, can be raised even in absence of a verified denial. |
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Pleadings of the Parties to a Suit
Supplemental Pleadings 107 |
DON’T DO – nothing but bad things can happen.
• If in the answer in def’ give general denial, but also raise affirmative denials. You could file supplemental pleadings stating that the SOL has not run b/c of the discovery rule. HOWEVER – don’t do it, b/c if the court determines it’s not worthy it’s thrown out. YOU SHOULD AMEND PLEADINGS – an amendment can add/subtract and is not considered a response. |
