P&E Flashcards
What are the counties in which
venue is proper?
The counties of proper venue are 1) where the
accident occurred, 2) the county of residence of the naturally born defendant, or 3) the county where the defendant corporation has its principal place of business.
At the beginning of trial, Plaintiff
calls the Defendant as a witness. The
defendant objects, stating that the Plaintiff
cannot call him as a witness because she has
the burden of proof. How should the court rule
on the objection?
The court should overrule the defendant’s objection. A plaintiff may call a defendant as a witness during her case-in-chief. The burden of proof does not prohibit the Plaintiff from calling the defendant as a witness at the beginning of trial.
Steps of a Civil Action
1)Decisions made before filing – jurisdiction, venue, etc. 3) Pre-trial motions 4) Discovery 5) Trial 6) Judgment 7) Appeal
Rule #1: Jurisdiction
Subject matter jurisdiction: Competence of
the court to hear a type of suit
-Diversity Jurisdiction: removing case to
federal district court is proper where plaintiff
and defendant are citizens of different states
+ amount in controversy exceeds $75,000
-Diversity Jurisdiction requires complete diversity.
Producer, a Texas corporation with its principal office in Bexar County, Texas, contracted Driller, an Oklahoma corporation, to drill an oil well on land owned by Producer in Zavala County, Texas. While Driller does not maintain an office in Texas, it routinely drills wells in Texas for Texas customers. The contract to drill Producer’s well was negotiated and signed in Driller’s offices in Oklahoma.
During the drilling of Producer’s well, a blowout occurred and the well was irreparably damaged. Producer terminated the contract with Driller and paid another company $1,000,000 to re-drill the well.
Producer files a breach of contract suit against Driller in 2016 in Bexar County District Court, and properly serves Driller with the lawsuit. The suit seeks “in excess of $200,000” in actual damages.
Driller is considering removing the case to federal court on the basis of diversity of citizenship.
Does Driller have a valid basis for removing the case to federal court based on diversity of citizenship? Explain your answer.
Driller has a valid basis to remove the case to
federal court based on diversity of citizenship,
because Producer (a Texas corporation with
principal place of business in same) and Driller
(an Oklahoma corporation) are citizens of
different states, plus the amount in controversy
(“in excess of $200,000”) exceeds $75,000.
Rule #1 Jurisdiction
Personal Jurisdiction: a court’s power over the person (defendant).
-A court has personal jurisdiction over a defendant if that defendant (1) has been served with process in the forum state, (2) has had minimum contacts
with the forum state (specific jurisdiction), or (3) is “at home” in the forum state (general jurisdiction).
Ability to contest personal jurisdiction waived if special appearance (made by sworn motion) is not filed before any other pleading (answer) or motion (including a motion to transfer venue).
Mary (a citizen of Texas) sues Dan (a citizen of Oklahoma) and Mark (a citizen of Texas) in a Texas court for compensatory damages.
Because he is a citizen of Oklahoma, Dan wants to
challenge the filing of the suit in Texas.
What pleading must Dan file to object to being sued in
Texas, and when must it be filed?
Dan should file a special appearance before any
other pleading or motion, or else his ability to
contest personal jurisdiction is waived.
Rule #2: Service of Process
FILE, REQUEST, SERVE
An action is commenced upon the filing of the original petition and civil case information sheet with the clerk of court.
Plaintiff must request the clerk issue a citation (official notice to other party of suit)
Plaintiff then must obtain service of process (i.e., citation and a copy of the petition) on the defendant)
Paul drove Fred to a bar in Paul’s car. After Fred and Paul each drank several beers at the bar, they decided to return to their college dormitory. Feeling somewhat impaired, Paul asked Fred to drive. Fred turned left on Avenue L in Lubbock, Lubbock County, Texas, and proceeded south. Avenue L is a one-way street, and Fred was driving the wrong way. Dan was driving
westbound on 15th Street, ran a stop sign, and collided with the car Fred was driving. Paul and Dan were both injured. Paul resided in Harris County, Texas. Fred resided in Travis County, Texas. Dan resided in Hockley County, Texas. Paul filed suit against Dan.
What steps must Paul take to file a civil suit for damages and require other parties to respond to his suit?
Paul has to file an original petition along with a
civil case information sheet with the clerk of the
court, request the clerk issue a citation, and
secure service of the petition and citation on
Dan.
Rule #2: Service of Process (Out of State)
Serving out-of-state defendants
Same manner of service as for in state defendants
Non-resident motorists: serve the Chairperson of the Texas Transportation Commission
Foreign (out-of-state) corporation with no principal place of business/registered agent: serve Secretary
of State
SOS will forward process to corporate headquarters
Dan parked his tractor-trailer rig perpendicular to Highway 100 in
Tarrant County, Texas, in order to open his back doors and unload the trailer. Ted and his co-worker Pal were in a traveling north on the same road. As it came around a curve, Ted’s vehicle collided with Dan’s trailer. Pal was severely injured and died two days later. Pal’s widow, Mary, has retained an attorney to prosecute a civil suit for compensation damages. Mary files suit against Dan. Dan is a citizen of Oklahoma and a resident of Lawton, Oklahoma.
What action must be taken to ensure that Dan is served properly,
affording him appropriate due process notice of the Texas civil suit?
Dan (a non-resident motorist) must be
served by serving the Chairperson of the
Texas Transportation Commission.
Rule #3: Venue
What is venue?
Proper in:
County in which all or a substantial part of the events or omissions
giving rise to the claim occurred.
If a natural person, county of defendant’s residence when action accrued
If not a natural person, Texas county of principal office when action accrued
If none of the above, county in which the plaintiff resided when the
cause of action accrued
Rule #3: Venue (MTV)
Court, on motion to transfer venue filed before or concurrent with any other pleading or motion (except special appearance), shall transfer venue to another county of proper venue if:
Improper county*
Impartial trial
Parties’ written consent
If court makes an erroneous venue ruling (i.e., keeps suit in improper
venue): (1) no interlocutory appeal available, (2) it’s reversible error, which means judgment reversed and case remanded for new trial
Rule #3: Venue (cont..)
Defendant can only obtain venue transfer from one proper venue of Plaintiff’s choosing (which normally controls) to another
proper venue of Defendant’s choosing when transfer would be “for the convenience of the parties and witnesses and in the
interest of justice.”
“Inconvenience” requires a balancing of interests far too fact-intensive to be tested
Only reason a defendant’s motion to transfer from one proper venue to another
proper venue: inconvenience
Plaintiff’s venue is proper, Defendant’s preferred venue is also proper, but there’s no indication of inconvenience*
Jon Snow was talking on his cell phone while shopping at CostCrow. He pushed his cart into a 10 foot high wine display, causing a bottle of White Walker Chardonnay to fall
from the highest shelf. The wine bottle struck Ygritte, who sustained a serious head injury. Jon is a resident of Hays County, and Ygritte is a resident of Bexar County. CostCrow is located in Travis County. Ygritte files suit against Jon in Travis
County, and Jon files a motion to transfer venue to Hays County.
How should the court rule on the motion to transfer venue?
The court should deny the motion to transfer. Venue is proper in Travis County (where all or a substantial part of the events or omissions giving rise to the claim occurred). Venue could also have been proper in Hays County (county of Jon’s residence), but there is no indication that venue should be transferred based on inconvenience.
Rule #4: Third-party Practice
Texas law provides two ways for a defendant to attribute some or all
liability to a third party:
Defendant can bring a third party into the action as a party by asserting a third party
claim against it; leave of court is required if third-party petition is filed outside 30 days after defendant filed original answer. Third party defendant must in some way be liable to defendant (indemnity) or the plaintiff (contribution) for all or part of plaintiff’s claim.
Contribution: asserting negligent acts/omissions of third party contributed to plaintiff’s
injuries*
Indemnity: indemnifier agrees to make good any loss/liability/damage incurred by
indemnitee (construction contracts, insurance coverage*)
Or, Defendant can move for leave to designate responsible third party (this does
not bring third party into litigation as a party, but it does get defendant a jury question on third-party liability).
Only used for contribution, not indemnity
Bill resided in Kleberg County, Texas. Bill requested that Extra Plumbing (“Extra”) send an employee to his residence to check a possible gas leak. Extra dispatched an employee, Ray, to Bill’s residence. Ray resides in Brooks County, Texas. Ray had been a plumber for one month. Ray discovered a gas valve leak inside Bill’s residence. Ray told Bill he could try to replace the valve, but that he was not certified to replace any type of leaking gas valve. Bill told Ray he did not care about any certification and that he wanted Ray to replace the valve. Ray installed a replacement valve manufactured by Plumber Parts, Inc. (“Parts”). Bill turned his gas back on at the gas meter without contacting the local gas utility. The next day, Bill’s house exploded and he sustained serious personal injuries. Bill hired a lawyer to sue Ray and Extra for his personal injuries sustained in the explosion and fire.
Extra wants to add Parts to the case as a party defendant, alleging negligence and product liability causes of action. What pleading must Extra file and when must it file the pleading to
add this party to the case? Explain fully.
Extra has to file a Third Party Petition in order to add Parts to the case; leave of court is required if the pleading is filed outside 30 days after Extra filed its original answer
Rule #5: Plea in Abatement
Alleges facts outside the pleadings to show the suit cannot go forward in its present condition – court will suspend lawsuit until defect is cured
Look for defects in allegations:
- Action w/ same parties/controversy already exists*
- Lack of notice
Also look for defects in parties:
- Party lacks capacity to sue or be sued
- Plaintiff is not a corporation as alleged
- The name of the defendant is incorrect
Two months after filing the first lawsuit against Bob (defendant), Susan (plaintiff) filed a second, identical lawsuit against Bob in the same county.
What pleading must Bob file to prevent the second lawsuit from proceeding?
Bob must file a plea of abatement in the
second court to prevent that case from proceeding.
Rule #6: The Answer
Answers are due at 10:00 a.m. on the first Monday after the expiration of 20 days from the date of service.
Rule #6: The Answer
Filing an answer prevents a default judgment
Default judgment is entered when a defendant was properly
served but does not file an answer in the prescribed time
period and the citation has been on file with the clerk for 10
days, exclusive of the day of filing and the day of judgment
HOWEVER A LATE ANSWER, FILED BEFORE JUDGMENT
ENTERED, CAN STILL PREVENT A DEFAULT JUDGMENT
Rule #7: Affirmative Defenses
Affirmative defenses that MUST be raised in the answer (or amended answer filed at least 7 days before trial) -Commonly tested: Statute of limitations Accord and satisfaction Assumption of risk Contributory negligence Duress Fraud Res judicata Statute of frauds Waiver Release
Dan and Mark believe that the applicable statute of
limitations has expired with regard to Mary’s
lawsuit. What must Dan and Mark file to properly
raise the statute of limitations issue?
Statute of limitations (an affirmative
defense) must be raised in defendants’
answer and can be amended without leave
of court at least 7 days before trial.
Rule #8: Special Exceptions
Defendant may file a special exception challenging the legal sufficiency of a pleading
Likely to see on P&E defects of substance:
-Inadequate allegations
-Failure to state a cause of action
-For unliquidated damages, failure to state the maximum amount of
damages
Purpose is to allow the other party to cure the defect
Defect in pleading is waived if not raised by a special exception
General demurrer not allowed – need to specifically point out each
defect or fault
