Defendant's Pleadings

Question 1

What are dilatory pleas?

Answer 1

These are pre-answer pleadings that delay or defeat an action without determining the merits of the action. This includes: special appearances + motions to transfer venue.

Question 2

What does an answer do?

Answer 2

D can raise matters known as pleas in bar that seek a determination on the merits of the action. This includes: affirmative defenses and denials.

Question 3

Can D file a consolidated response?

Answer 3

Yes, D may file a single consolidated pleading raising both dilatory pleas and pleas in bar.

Question 4

How does D challenge court’s exercise of PJ?

Answer 4

D files a special appearance (otherwise D has consented). D MUST file a special appearance before any other plea, pleading, or motion.

Question 5

What is the role of the special appearance?

Answer 5

It must be filed before any other plea, pleading, or motion OTHERWISE D has consented to court’s PJ and waived all defects in service.

BUT making discovery, subpoenaing witnesses, and even appearing in person for the haring on the special appearance may be done without waiving special appearance.

Question 6

What must be in a special appearance?

Answer 6

1. D is not amenable to service of process + deny P’s allegations.
2. Must be verified (sworn)
3. Forms of evidence that may be presented to court in deciding jurisdiction like discovery, affidavits, and oral testimony

Question 7

What is the general rule regarding venue?

Answer 7

1. County in which all or substantial part of events or omissions giving rise to claim occurred;
2. If D is a human - residence at time of cause of action
3. If D is a corp, wherever is principal office in state
4. ONLY if none of the above: county where P resided at time of cause of action

Question 8

What is the rule for venue if there are multiple Ds?

Answer 8

If P establishes proper venue against one D, then it is proper to all Ds in claims arising out of the same transaction or series of transactions.

Question 9

How does P establish proper venue in petition to demonstrate proper venue?

Answer 9

P must plead the existence of a cause of action and should plead venue facts that are sufficient to maintain the suit in the county where it is filed.

If multiple Ps, each would have to independently establish proper venue if challenged.

Question 10

How does motion to transfer venue work for D?

Answer 10

D must:
1. File a special appearance.
2. File a motion to transfer venue.
(or both can be filed at same time, as long as no other plea or pleading is filed before these two)

Question 11

What must a motion to transfer venue contain?

Answer 11

It must assert:

1. Venue isn’t proper where suit is filed
2. Deny any venue facts in P’s petition
3. Name county to which transfer is sought + plead venue facts that support this transfer
4. Identify section of venue statute making the requested county proper
5. Request a transfer to a specific county

Question 12

What does the P do in response to D’s motion to transfer venue?

Answer 12

P must file a response at least 30 days before the hearing on the motion to transfer venue. This response should have prima facie proof (like affidavits and discovery materials) to specifically deny D’s pleaded venue facts.

Question 13

Who has the burden of the motion to transfer venue?

Answer 13

D

Question 14

Does the motion to transfer venue need to be sworn?

Answer 14

No, it does not need to be verified

Question 15

Who decides venue challenges?

Answer 15

Judge

Question 16

How can P appeal a venue decision?

Answer 16

No interlocutory appeal allowed - P has to wait until after a final judgment.

Question 17

What is a motion to quash?

Answer 17

D is challenging procedure used to serve D

Question 18

What happens when a motion to quash is granted?

Answer 18

Moving party has to file an answer after 20 days from date that service or citation is quashed. D doesn’t need to be re-served.

Question 19

What is a plea of abatement?

Answer 19

This challenges the suit itself - challenges P’s facts by referencing facts arising outside the petition that justify the suspension or dismissal of the case.

It is based on either: defect in the parties or defect in P’s allegation

Question 20

What does a plea of abatement contain?

Answer 20

It contains the impediment, the effective cure, + asks court to suspend the lawsuit until P has corrected the defect

Question 21

What is a special exception?

Answer 21

It is when an objection to a pleading based on defects of substance or defects of form. The party specially excepting must object in writing, call for a hearing, and get a ruling on the exception on record.

Question 22

What are the five affirmative defenses that must be verified?

Answer 22

1. 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

Question 23

What is an affirmative defense?

Answer 23

It is any matter that provides an independent reason that, if D proves, will totally or partially bar P from recovering

Question 24

What are denials?

Answer 24

These directly negate and contest P’s allegations

Question 25

What happens if D does not plead an affirmative defense?

Answer 25

D waives it.

Question 26

What does the P do if he disagrees with the court’s ruling on a special exception?

Answer 26

P may refuse to amend the pleadings, and court may strike those parts of the pleadings. If no cause of action still exists in the remainder of the pleadings, court can dismiss the case without prejudice.

Question 27

What is a third-party petition?

Answer 27

D may bring in a third-party D when either (i) the third party will be liable to him (the defendant) for all or part of the P’s recovery; or (ii) the third party is directly liable to the plaintiff. Unless the D asserts his third-party claim within 30 days after filing his answer, he must obtain court’s permission