Texas Civ Pro

Front 1

Jurisdiction and Venue, Defined

Back 1

1. SMJ—Court’s power to hear a specific case
2. PJ—Court’s power over a party to an action or a party’s property
3. Venue—Concerns the proper placement of a case within the judicial system

Front 2

Det SMJ of Texas Courts: 1st Q- Type of Case

Back 2

FIRST: Whether the type of case or relief sought requires the case to be filed in a particular court or courts
1. The type of case/relief sough may create exclusive jurisdiction in one court or concurrent jurisdiction in various courts
2. For Ex: the district court has exclusive jurisdiction over cases seeking a determination of title to land or enforcement of a lien on land

Front 3

Det of SMJ of Texas Courts: 2d Q- Amount in Controversy

Back 3

SECOND: If the answer to the first question is no, the second question asks what is the amount in controversy in the suit
1. Calculating the Amount in Controversy—Assuming the type of case doesn’t place the case within the jurisdiction of a specific court, the amount in controversy determines which court/s have juris over a lawsuit
a. The amount prayed for in good faith by the P determines the amount in controversy
b. IF there is a claim other than for $ damages (e.g., injunction or mandamus), the amount in controversy is usually determined with reference to the value of the thing or interests sought to be restrained.

Front 4

SMJ: Texas Courts

Amt in Controversy: Specific Limits

Back 4

Specific Limits
a. Justice Courts—Juris up to $10k
b. Con County Courts—Juris from $200.01 to $10k
c. County Courts at law—Juris from $200.01 to the maximum amount found in the statute that created the specific court. The maximum jurisdictional amount is $100k. unless changed for a specific court by statute [many have been upped]
d. District Courts—Juris when the amount in controversy exceeds $500. There is no upper limit to the juris amount in District Court [so here, there is a floor, not a ceiling]

Front 5

P's Pleadings: Original Petition

Purpose

Back 5

Serves 2 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 in charging the jury

Front 6

P's Pleadings: Original Petition

Damages and Prayer

Back 6

Damages: In all claims for liquidated damages, the petition should contain only the statement that the damages sought are within the juris limits of the court
1. The D may file a special exception seeking a specification of damages, and asking the court to require the P to amend so as to specify the maximum amount claimed.

Prayer: if the prayer/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.

Front 7

Amended Pleadings: Pretrial Amendments

Back 7

Pretrial Amendments—An amended pleading supercedes the prior pleading and must be complete in itself
1. Timing: An amendment may be made without leave of the court if it is made more than 7 days prior to trial. A motion seeking leave of court is required if the amended pleading is filed within 7 days of trial.
a. This rule also applies to amendments to add affirmative defenses and counterclaims to D’s answer
2. Leave to amend—Should be denied if it adds a new c/a or would cause surprise or hardship to the D.
a. E.g., where it would require new evidence from the D in order to properly defend against new allegations

Front 8

P's Pleadings: Original Petition

Formal Requirements #1

Back 8

Formal Requirements- Petition shall state:
1. The names of the parties and their residences;
2. A short statement of the cause of action sufficient to give fair notice of the claim involved;
3. In all claims for unliquidated damages, only the statement that damages sought are within the juris limit of the court, and
4. A demand for j/m for all other relief which the party deems himself entitled.

Front 9

P's Pleadings: Original Petition

Formal Requirements #2

Back 9

Pleadings must be signed by the party or his attorney; these sigs constitute a certificate by them that they have read the pleadings and that to the best of their knowledge and belief formed after reasonable inquiry, the pleadings are not groundless or brought in bad faith for harassment
1. If there is a finding of bad faith, the V can file a motion for sanctions against the party or the attorney who signed the pleading. Range of sanctions includes awarding costs and attorney’s fees

Front 10

P's Pleadings: Amended Pleadings

Trial Amendments

Back 10

Where, for example, P introduces new evidence at trial without having filed an amended petition:
1. And D doesn’t object until the close of the evidence, P should seek leave to file trial amendment
a. Court should allow the trial amendment b/c the D failed to object to the evidence offered at trial and the D will be found to have impliedly consented to trial of the issue
2. And D objected to the evidence during trial as not being supported by the pleadings. P should request leave to file a trial amendment
a. 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/defense

Front 11

P's Pleadings: Amended Pleadings

Continuance

Back 11

Continuance—If the trial court allows an amendment and the party opposing the amendment needs more time, that party should request a continuance to preserve error.
1. If the party refuses an offer of continuance, the party waives his right to complain on appeal

Front 12

P's Pleadings: Supplemental Pleadings

Back 12

1. A supplemental pleading is used to reply to D’s defense, and is made in response to the last previous pleading of the adverse party.
2. It adds to but does not supersede the last pleading

Front 13

D's Pleadings: Supplemental and Amended Pleadings

Back 13

The rules governing P's amended and supplemental pleadings control the D’s pleadings as well as the P’s pleadings

Front 14

P's Pleadings: Special Pleadings

Suit on an Account #1

Back 14

In order to bring a suit on an account; P should file a verified pleading on a sworn account. The verified account may be relied on to establish a prim facie right of action [diff than most pleadings, which are promises of proof]
The petition 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

Front 15

P's Pleadings: Special Pleadings

Suit on an Account #2

Back 15

If the D wants to preserve his right to present his D’s to P’s claim at trial:
1. Must file a written denial under oath.
2. Failure to file a cerified denial prevents the D from denying the claim and waived the right to dispute ownership and the amount of the account.

Front 16

P's Pleadings: Special Pleadings

Injunction

Back 16

In order to establish rights to an injunction, P must plead and prove:
1. Probable right to relief;
2. Probable injury;
3. Harm is imminent;
4. Without injunction, the harm will be irreparable; and
5. No adequate remedy at law.

Front 17

P's Pleadings: Special Pleadings

If D violates Injunction

Back 17

If the court grants an injunction, and that doesn’t stop the actions of the D, then, in order to halt D’s conduct, the P should:
1. File a motion for contempt.
a. There is no fixed time within which to file the motion, but it should be filed as soon as possible.
2. If the court grants the motion, it may impose a fine (not to exceed $500) or imprisonment.

Front 18

PJ and Notice to D: Adequate Grounds

Back 18

Adequate Grounds—SDP requires that a state must have Con adequate basis for personal jurisdiction. Con adequate grounds include:
1. Physical presence of the D in the forum state;
2. The D is a domiciliary of the forum state;
3. The D consents to the state’s exercise of personal jurisdiction, or
4. ** The D has minimum contacts with the forum state

Front 19

PJ and Notice to D: Adequate Grounds

Nonresident Ds and the Minimum Contacts Test

Back 19

In order to properly allege that a D has minimum contacts in Texas, P has to address 3 elements:
1. The non-resident or foreign corporation must purposefully do or consummate some transaction in Texas,
2. The c/a must arise from, or be connected with, this act or transaction (called specific jurisdiction), and
3. The assumption of jurisdiction by Texas must not offend traditional notions of fair play and substantial justice.

General jurisdiction—the second element above is useful when a D has few contacts with Texas, but is unnecessary when the D has substantial, systematic contacts with the forum (i.e., general jurisdiction)

Front 20

PJ and Notice to D: Service of Process

Requirements of In-State Service: Personal Service

Back 20

Personal Service—The D must be served with process; (i.e., copy of both citation and petition) to compel an answer.
1. Service can be done either by personal delivery or by mailing the citation and petition by certified or registered mail, return receipt requested.

Front 21

PJ and Notice to D: Service of Process

Requirements of In-State Service: Substitute Service

Back 21

Substitute Service—if the P is unsuccessful in attempting to serve the D either in person or by mail;
1. The P may file 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.
2. 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 D notice of the suit.

Front 22

PJ and Notice to D: Service of Process

Requirements of In-State Service: Citation by Publication

Back 22

Citation by Publication---When a party of his attorney swears that he is unable to locate the D or his residence and other means of service have failed, the clerk of the court issues service by publication.

Front 23

PJ and Notice to D: Service of Process

Requirements of In-State Service: Service on a Corporation

Back 23

Service on Corporations—Both domestic and foreign corporations doing business in Texas are required to designate an agent on whom service can be made.
1. Process may be effectively served on:
a. The registered agent;
b. The president of the corporation; or
c. Any VP of the corporation
2. When a foreign corporation fails to appoint a registered agent, it may be served by serving the SOS, who then has the duty to notify the D by registered mail.

Front 24

PJ and Notice to D: Service of Process

Requirements of Out of State Service: Texas Long Arm Statute (#1)

Requirements in Petition

Back 24

The petition must specifically allege that the D:
1. Is a nonresident of Texas;
2. Has no regular place of business or person in charge in Texas;
3. Has no registered agent for the service of process in Texas; and
4. **Has been doing business in Texas (i.e., entering into k by mail or otherwise with a Texas resident to be performed in whole or in part by either party in this state or committing any tort in whole or in part in this state)

Front 25

PJ and Notice to D: Service of Process

Requirements of Out of State Service: Texas Long Arm Statute (#2)

Establishing Service of Process

Back 25

Steps that P must take under Texas long arm statute to establish service of process:
1. P should obtain a certificate of service from the SOS showing:
a. the date it received process,
b. the date process was forwarded to the D, and
c. the date the SOS received the return receipt.
2. The certificate must be filed with the clerk of the court to support a default j/m

Front 26

PJ and Notice to D: Service of Process

Service of Process and SOL

Back 26

Filing a petition normally tolls the SOL, but P must exercise actual diligence in procuring both the issuance and service of citation.

If significant delays occur, preclusion may result

Front 27

PJ and Notice to D: Service of Process

Proof of Service

Back 27

Basic Requirement—if Service has been made by delivering process to the D in person, the Return must be endorsed on or attached to the citation.
1. It must state the time and manner of service and be signed by the server.
2. If the service is by mail, the return is the same, except that the return must also have the return-receipt signed by the addressee with it.

Out-of-State Service—Proof of service under the Texas long-arm statute has already been discussed above by means of obtaining a certificate of service from the SOS.

Front 28

D's Pleadings

Pre-answer Pleadings; Answer; and Consolidated Response

Back 28

1. Pre-answer Pleadings—The D 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 [don’t address the facts]
2. Answer- The D can file an answer raising matters known as pleas at bar that seek determination on the merits of the action. These pleas include general denials, special denials, and affirmative defenses.
3. Consolidated Response—The D can file a single consolidate pleasing raising both dilatory pleas and pleas in bar. BUT problems result when the D fails to follow the due order of pleading rule

Front 29

D's Pleadings: Special Appearance

When it must be filed

Back 29

When it must be filed—The DUE ORDER OF PLEADING—
1. Under the due order of pleading, a special appearance challenging personal jurisdiction must be filed before any other plea, pleading, or motion by D.
2. If D fails to comply with order of due pleading, the D makes a general appearance, consents to jurisdiction, and waives all defects in service
3. BUT, making discovery, subpoenaing witnesses, and even appearing in person for the hearing on the special appearance may be done without waiving it the defects in service

Front 30

D's Pleadings: Special Appearance

What it must assert

Back 30

1. In Texas, the burden is on the D to negate the basis for personal jurisdiction
2. The special appearance pleading:
a. The pleading should assert that the D is not amenable to service of process and deny the P’s allegations; and
b. The pleading must be verified;
3. Evidence the court will consider in deciding jurisdiction: The forms of evidence that may be presented to the ct in deciding jurisdiction are all discovery, affidavits, and oral testimony
4. The granting or denial of a special appearance is an interlocutory order that may be immediately appealed.

Front 31

D's Pleadings: Motion to Transfer Venue [MTV]

Substantive Laws of Venue: General Rule (#1)

Back 31

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 [means there are often multiple proper venues]

General Rule: Except as otherwise provided in sections dealing with mandatory exceptions or permissive exception, all lawsuits shall be brought:
1. In the county in which all or a substantial part of the event or omissions giving rise to the claim occurred;
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 principal office in the state;
a. Principal office—where the corporate decision-makers are located within the state. There mere presence of an agency or representative, such as a retail convenience store, doesn’t establish a principal office.

Front 32

D's Pleadings: MTV

Substantive Laws of Venue: General Rule (#2)

Back 32

General Rule of Venue contd....

4. [Fallback Measure] If none of the above applies, then in the county in which the P permanently resides at the time of the accrual of the c/a.

Note—in suits with multiple Ds, if the P established proper venue against one D, it is proper as to all Ds in claims arising out of the same transaction or series of transactions.

Front 33

D's Pleadings: MTV

Substantive Laws of Venue: Mandatory Rules

Back 33

Mandatory Venue- There are 12 exceptions in the venue statute that are mandatory, dictating that suits 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 k to convey land is not covered by the mandatory rules.

Front 34

D's Pleadings: MTV

Substantive Laws of Venue: Permissive Rules

Back 34

Permissive Rules—There are 6 exceptions in the venue statute that are permissive, providing that suits may be brought in certain counties
1. A permissive venue rule for breach of warranty by a manufacturer of a consumer good provides that the suit is proper in the county of the P’s residence at the time the cause of action accrued.
2. A permissive venue exception for suit on written k allows suit to be brought in the county in which the D is required to perform.

Front 35

D's Pleadings: MTV

Venue Procedure (# 1)

Back 35

Step One: P’s Venue Pleading—in petition, to demonstrate proper venue, P must plead the existence of a c/a and should plead venue facts (“”D failed to perform his k obligations in X County) that, if true, are sufficient to maintain suit in the county where filed

Front 36

D's Pleadings: MTV

Venue Procedure (# 2)

Back 36

Step Two: D’s MTV

When it must be filed—under the due order of pleading rule, a MTV must be filed before any other plea or pleading other than the Special Appearance. If not, the motion is waived.
1. In a suit in which 2 or more Ds are joined, any act or omission by one D in relation to venue, including waiver, does not operate to impair or diminish the right of any other D to properly challenge venue.

Front 37

D's Pleadings: MTV

Venue Procedure (# 2)

Back 37

Step Two: D's MTV

What it must assert: D’s MTV 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; name the county to which the transfer is sought and plead venue facts that support the county of the requested transfer as proper;
3. Identify the section of the venue statute making the requested county proper; and
4. Request a transfer to the specified county

Front 38

D's Pleadings: MTV

Venue Procedure (#4)

Back 38

iStep 3: P’s Reply to D’s MTV
1. P must file a response within at least 30 days prior to the hearng on the motion to transfer venue
2. The response should present prima facie proof (affidavits and discovery materials) of matters specifically denied by D and specifically deny any of the D’s pleaded venue facts which P wishes to contest

Other MTV issues
1. Burden on D
2. MTV doesn’t need to be verified
3. Except on leave of the court, each party is entitled to 45 days notice of a hearing on the MTV.

Front 39

D's Pleadings: MTV

Venue Procedure: Appeal

Back 39

Appeal: General Rule- No interlocutory appeal is allowed and a party must appeal the venue decision after a final judgment

Appeal: Multiple Ps—When there are multiple Ps in a suit, each P 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

Front 40

D's Pleadings: Motion to Change Venue

Back 40

Motion to Change Venue—While the MTV asks whether the TC is proper venue, the motion to change venue asks if there is such a prejudice against the D in the county of the suit that the D cannot obtain a fair and impartial trial.

Front 41

D's Pleadings: Motion to Quash [Challenging Service]

Back 41

Availability—in a motion to quash, the D is challenging the procedure used to serve D (not the court’s power over D). A D may challenge defective jurisdictional allegations in the petition or defects in service of process/citation with a motion to quash.

Utility—If a motion to quash is granted, the D doesn’t need to be reserved
1. The moving party is required to file an answer by 10AM on the first Monday after the expiration of 20 days from the date that the service/citation is quashed.

Front 42

D's Pleadings: Pleas in Abatement [Challenging the Suit]

Back 42

This plea challenges the P’s pleadings by alleging facts arising outside the petition that justify the suspension/dismissal of a case.

A plea in abatement is based on either:
1. A defect in the parties (e.g., *capacity, non-joinder of necessary party, improper party); or
2. A defect in the petition’s allegation (e.g., pendency of another action involving the same parties or pendency of an admin proceeding involving the same claim)

The plea identifies: The impediment, the effective cure, and asks the court to suspend the lawsuit until the P has corrected the defect.

Front 43

D's Pleadings: Special Exception

Back 43

A. An objection to a P’s or D’s pleading is made by special exception. The special exception may be based on:
1. Defects of substance related to the c/a, defense, an element of damage, or relief not allowed by law, or
2. Defects of form typically related to vagueness, ambiguity, and the like.
B. A party special excepting MUST:
1. Object in writing,
2. Call for a hearing, and
3. Get a ruling on the exception on the record, otherwise it is waived.
C. 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 not to amend the pleading, the opposing party can file a motion to strike the defective allegation which the party refused to amend despite being given the opportunity to do so.

Front 44

D's Pleadings: the Answer [Pleas at Bar]

Time to Respond

Back 44

Time to Respond—D must file answer by 10AM on the first Monday after the expiration of 20 days from the date the D was served with process. This rule applies to corporate as well as individual Ds

Front 45

D's Pleadings: the Answer [Pleas at Bar]

General Denial

Back 45

Availability—In Texas, D may generally deny all the P’s allegations. The D’s general denial need only state “”D denied each and every allegation in P’s original petition”

Effect—A general denial puts in issue all matters not required to be denied under oath or specially denied.

Due of Order of Pleading—Special appearance must be filed first, then a MTV, then any other pleadings.
1. Failure to follow this order of pleading waives the pleading that is out of order.
2. The D may file a consolidated response w/o waiving the special appearance or MTV

Front 46

D's Pleadings: the Answer [Pleas at Bar]

Special Denial

Back 46

When there is a condition precedent to the D’s duties, it is sufficient if the P generally alleges that all conditions precedent have been performed/have occurred.

In order to challenge P’s allegation, the 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

Front 47

D's Pleadings: the Answer [Pleas at Bar]

Verified Pleas (#1)

Back 47

How: 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.

* Affirmative defenses: 5 affirm. def. that must be verified are:
1. A contract is usurious,
2. No consideration,
3. Failure of consideration,
4. Denial of the execution of an instrument in writing, and
5. Denial of the genuineness of an assignment.

Front 48

D's Pleadings: the Answer [Pleas at Bar]

Verified Pleas (#2)

Back 48

iDenials and abatements that must be under oath include
1. That the P lacks legal capacity to sue or D lacks legal capacity to be sued.
2. A denial of P’s properly sworn account action
3. That there is another suit pending in Texas between the same parties involving the same claim

Front 49

D's Pleadings: the Answer [Pleas at Bar]

Affirmative Defenses (#1)

Back 49

Definition: Confession and Avoidance—an affirmative defense is any matter that provides an independent reason that, if proved by D, will totally or partially bar the P from recovering, even if P’s allegations are true.
1. Affirmative Defenses are distinct from denials which direcly negate and contest the allegations made by the P

Effect and Waiver—Affirm def must be pleaded by D as a ground of defense.
1. D has the BOP on these matters and, if pleaded and evidence is produced, D is entitled to have affirmative defenses submitted as questions to the jury
2. The failure to plead an affirmative defense waives the defense. However, an affirmative defense will be tried by consent if the opposing party fails to timely object to the evidence introduced supporting the defense.

Front 50

D's Pleadings: the Answer [Pleas at Bar]

Affirmative Defenses (#2)

Back 50

Arbitration—arbitration and award is an affirmative defense; but a contractual arbitration clause by itself provides a basis for filing a motion to compel arbitration.

Front 51

D's Pleadings: Removal to Federal Court

Back 51

Removal Generally

Standard for removal—a case may be removed to federal court if the case could have been originally filed in federal court

Unanimity—removal is available only to the D and, if there are multiple Ds, all Ds must join in the removal

Front 52

D's Pleadings: Removal to Federal Court

Diversity of Citizenship

Back 52

Elements—parties must be diverse and here must be sufficient amount in controversy
1. Each P must be diverse from each D who is properly named as D
2. The amount in controversy must exceed the sume of $75k

Citizenship
1. Individuals—citizenship is defined in terms of domicile. [special rule: alien admitted to US for permanent residence shall be deemed a citizen of the state in which the alien is domiciled]
2. Corporation—has “dual citizenship” b/c it is deemed to be citizen of any state by which it has been incorporated, and of any state where it has its principal place of business. Both citizenships “count” for purposes of determining diversity of citizenship jurisdiction. (PPB = nerve center of corp)

Limits on Removal: No D may be a resident of the forum state. A case may not be removed on the basis of diversity of citizenship juri more than one year after the commencement of the action

Front 53

D's Pleadings: Removal to Federal Court

Removal Procedure

Back 53

1. D must file a verified notice of removal in the federal district court
2. The notice must be signed under Rule 11 of FRCP
3. Notice shall contain a short statement of why the case can be removed
4. A notice of removal must be filed within 30 days after the D is served in state court
5. If the case stated by the initial pleading in state court is not removable, a notice of removal may be filed within 30 days after receipt by the D of an amended pleading or other paper from which it may be first ascertained that the case is one which is or has become removable, and
6. After filing the notice, the D must give written notice to all adverse parties and file a copy of the notice with the clerk of the state court

Front 54

D's Pleadings: Removal to Federal Court

After Removal

Back 54

If D didn’t fiile an answer in state court before filing its notice of removal in federal court, D must file its answer in federal ct:
1. Within 21 days after receipt of initial state court pleading, or
2. Within 7 days after filing notice of removal, whichever period is longer

Front 55

D's Pleadings: Removal to Federal Court

P's Challenge to Removal

Back 55

The P may challenge the D’s removal by filing a motion to remand the case to state court. P must allege remand is proper b/c:
1. [Substantive Challenge] The case could not have been originally brought in federal court, or
2. [Procedural Challenge] That there has been a defect in removal procedure

When the motion to remand is based on defect in removal procedure, it must be filed within 30 days after the filing of the notice of removal

If the challenge is lack of jurisdiction, it may be asserted at any time before the final j/m

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