Barbri Lecture Deck

Question 1

What are the purposes of surviving the original petition?

Answer 1

1. Give fair notice to the parties of the facts and legal theories
2. Guides the trial judge for the purpose of admitting evidence and in charge the jury

Question 2

What shall the petition state?

Answer 2

1. Names and addresses of parties
2. A short statement of cause of action sufficient to give fair notice of the claim involved
3. The statement that damages sought are within the jurisdictional limit of the court; and a statement that the party seeks certain amount of monetary relief
4. a demand for judgment on all other relief which the party deems himself entitled

Question 3

By signing pleadings, attorneys and parties certify what?

Answer 3

That they have read the pleading and that to the best of their knowledge and belief formed after a reasonable inquiry, the pleadings are not groundless or brought in bad faith for harassment. If there is a finding of bad faith, the victim can file a motion for sanctions against the party or the attorney who signed the pleading. The range of sanctions includes awarding costs and attorney fees.

Question 4

Suppose the plaintiff’s petition contains the following statement: “the unliquidated damages are within the jurisdictional limit of this court.” Is this an adequate allegation concerning damages and, if so, how can the defendant require the plaintiff to specify the maximum amount claimed?

Answer 4

No. In all claims 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.

Question 5

The defendant may file what to seek specification of damages and asking the court to require the plaintiff to amend so as to specify the maximum amount claimed.

Answer 5

A special exception

Question 6

Suppose plaintiff in injured in defendant’s store. Plaintiff files an original petition alleging injuries to his back and neck. Ten days before trial, plaintiff’s physician diagnoses injuries to plaintiff’s foot. Five days before trial, plaintiff files an emended petition seeking recovery of damages for injury to his foot. Defendant objects to the amendment. Should the court sustain the objection?

Answer 6

Yes. An amendment may be made without leave of 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.

Question 7

Suppose plaintiff seeks leave of court to amend his pleadings. Should the court grant the motion?

Answer 7

No. Leave to amend should be denied if it adds a new cause of action or would cause surprise or prejudice to the defendant.

Question 8

At trial, plaintiff offers evidence of his newly discovered injury without having filed an amended petition. Assume the evidence is admitted without objection. After close of the evidence, defendant objects to the charge to the jury claiming that the jury should not be allowed to consider evidence related to the injury to the foot because it is not supported by any pleading. What steps, if any, should plaintiff take to overcome the objection?

Answer 8

1. Seek leave to file a trial amendment
2. In this example, the court should allow the trial amendment because the defendant failed to object to the evidence offered at trial and the defendant will be found to have impliedly consented to trial of this issue.

Question 9

At trial, plaintiff offers evidence of his newly discovered injury without have filed an amended petition. Suppose the defendant objects to the evidence during the trial as not being supported by the pleadings. How should the plaintiff respond to the objection?

Answer 9

The plaintiff should request leave to file a trial amendment.

The court should allow a 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.

In this example, where entirely new injuries would be added to the litigation, the defendant would probably satisfy this burden and the court would deny the plaintiff’s motion for leave to file a trial amendment.

Question 10

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. If the party refuses an offer of continuance, the party what?

Answer 10

Waives his right to complain on appeal.

Question 11

Suppose plaintiff sues defendants for breach of contract. Defendants assert that their agent did not have authority to enter into a contract with plaintiff. If plaintiff wants to assert “ratification” as a reply to lack of authority, how can plaintiff introduce this theory into the case?

Answer 11

A supplemental petition is used to reply to a defendant’s defense.

Question 12

Suppose Paul’s petition properly complies with the requirements for filing a sworn account. David wants to dispute the quality and amount of materials supplied by Paul and the sums which Paul alleges he woes. What must David do in order to preserve his right to present his defenses to Paul’s claim at trial?

Answer 12

File a written denial under oath. Failure to file a verified denial prevents the defendant from denying the claim and waives the right to dispute ownership and the amount of the account.

Question 13

Substantive due process requires that a state must have a constitutionally adequate basis for the exercise of personal jurisdiction. Constitutionally adequate grounds include what?

Answer 13

1. Physical presence of the defendant in the forum state
2. The defendant consents to the state’s exercise of personal jurisdiction
3. The defendant has minimum contacts with the forum state.

Question 14

Suppose Bob, a resident of Florida, is driving to California to visit friends. While stopping for gas in the Dallas area, Bob’s car hits Jerry as he was crossing the street. After the police cleared the accident scene, Bob continued to his destination. Bob had never been to Texas and doesn’t plan on returning. Jerry filed suit against Bob in the proper state district court of Texas. What basis exists for the exercising jurisdiction over Bob in Texas?

Answer 14

Minimum contacts. In order to properly allege that the non-resident defendant has minimum-contacts with Texas, Jerry must address three elements:

(i) the nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in Texas
(ii) The cause of action must arise from, or be connected with, this act or transaction (called specific jurisdiction); and
(iii) The assumption of jurisdiction by Texas must not offend traditional notions of fair play and substantial justice

Question 15

Suppose Harry, a resident of Nieces County, travels to Florida for a vacation. While in Florida, Harry is injured in a BigCo store when a BigCo employee injures Harry while moving inventory in the store. BigCo, a Delaware corporation, has dozens of stores in Texas along with a regional distribution center. Is BigCo subject to jurisdiction is Texas?

Answer 15

BigCo is probably not subject to general jurisdiction in Texas. BigCo’s activities in Texas did not give rise to Harry’s claim nor are the activities connected with this incident. However, the second element of the minimum contacts test is useful in any case and necessary when the defendant has continuous and systematic contacts with the forum.

Question 16

What is contained in process?

Answer 16

Copy of both the citation and petition.

Question 17

Service can either be done how?

Answer 17

Personal delivery or by mail (registered and return-receipt)

Question 18

If the plaintiff is unsuccessful in attempting to serve the defendant either in person or by mail, what can the plaintiff do?

Answer 18

The plaintiff may file a motion with an affidavit stating the usual place of abode or business of the defendant 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 any over 16 years of age at the location specified in the affidavit, or by any manner that will reasonably give the defendant notice of the suit.

Question 19

When can a plaintiff serve a defendant by publication?

Answer 19

When a party swears that he is unable to locate the defendant or his residence and other means of service have failed, the clerk of court can issue service by publication.

Question 20

When a foreign corporation fails to appoint a registered agent, how can it be served?

Answer 20

By serving the Secretary of State, who then has the duty to notify the defendant by registered mail.

Question 21

Suppose John, a resident of Bell County, Texas, manufactures widgets for sale throughout the United States. Paul, a resident of Oklahoma, calls John and orders a large number of widgets. Later, Paul calls John and tells him that he no longer needs the widgets and repudiates the contract. John plans to sue Paul in Bell County, Texas, for breach of contract. In order to serve the defendant by serving the Texas Secretary of State under the Texas long-arm statute, what must John affirmatively allege in his petition?

Answer 21

The petition must specifically allege that the defendant:

1) is a nonresident of Texas
2) has no regular place of business or persons in charge in Texas
3) has no registered agent for service of process in Texas
4) has been “doing business” in Texas.

Question 22

Suppose John, a resident of Bell County, Texas, manufactures widgets for sale throughout the United States. Paul, a resident of Oklahoma, calls John and orders a large number of widgets. Later, Paul calls John and tells him that he no longer needs the widgets and repudiates the contract. John plans to sue Paul in Bell County, Texas, for breach of contract. Suppose John used the long-arm statute to serve process on Paul. What steps must John take under the Texas long-arm statute to establish service of process?

Answer 22

John should obtain a certificate of service from the Secretary of State showing the date it received process, the date process was forwarded to the defendant, and the date the secretary of state received the return receipt. This certificate must be filed with the clerk of the court to support a default judgment.

Question 23

Suppose Babe files a petition alleging that Lou negligently injured him in an automobile collision. Babe’s petition was filed 2 days before the expiration of the relevant limitation period. Babe is busy and delays getting citation issued for 3 months and having Lou served for 6 months. What defense may Lou assert in response to Babe’s petition?

Answer 23

Statute of limitations. While filing a petition generally tolls the statute of limitations, plaintiff must also exercise actual diligence in procuring both issuance and service of citation. Here, significant delays occurred and preclusion may result.

Question 24

If service has been made by delivering process to the defendant in person, the return must what?

Answer 24

The return must be endorsed on or attached to the citation. It must state the time and manner of service and be signed by the server. If 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.