Pleadings

Question 1

What happens to the SOL when the Ptf files the petition?

Answer 1

The SOL is tolled, provided ptf exercises reasonable diligence in serving the dft.

Question 2

What is Necessary in the Caption of a Pleading?

Answer 2

File Number, Style, County in which suit is filed and the name of the court.

Question 3

What is Necessary in the Content of a petition?

Answer 3

a. Names of the parties
b. Allegations necessary for service of process, personal jurisdiction, and venue
c. A short statement of the COA sufficient to give “fair notice” of the claim
d. Demand for jury trial if necessary
e. Damages: Texas does not require the amount of damages to be pled; it most only be said that the amount of damages sought is within the JX of the ct.

Question 4

What are the 3 Basic Types of Pleading?

Answer 4

Issue Pleading (element)
Fact pleading
Notice Pleading (TX approach)

Question 5

What Does Notice Pleading Mean?

Answer 5

it must consist of a statement in plain and concise language of the π’s COA or the ∆’s grounds of defense. That an allegation is evidentiary or is a legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole

Question 6

What is the time limit for a Defendant to file an Answer?

Answer 6

Written answer must be filed on or before 10:00 a.m. on the Monday next after the expiration of 20 days after the date of service.

Question 7

What is a General Denial?

Answer 7

Rule 92: a negation of the ptf’s allegations; the Dft says that the allegation is not true and thereby puts the Ptf to its proof.

Question 8

What is a Special Denial?

Answer 8

a. Sometimes a general denial is not sufficient to put certain of π’s allegations in issue. These matters must be specifically denied. For ex: ∆ must specifically deny plaintiff’s allegation that all conditions precedent have been satisfied in order to put the satisfaction of those conditions in issue
b. Some special denials must also be verified by affidavit
c. If ∆ fails to specially deny matters that must be specially denied under the rules, ∆ will not be allowed to present evidence that contradicts π’s allegations on that issue

Question 9

What Effect does cross/counter claim have on General Denial?

Answer 9

a. When a counterclaim or cross-claim is served upon a party who has made an appearance in the action (e.g. the original π), the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim, but the party shall not be deemed to have waived any special appearance or motion to transfer venue.

Question 10

What is required when pleading affirmative defenses?

Answer 10

 Rule 94 requires Defendants to specifically plead all affirmative defenses upon which ∆ may attempt to rely.
 AD ‘s are a matter of “confession and avoidance”. They are different from denials in that they say “even if the π’s allegations are true, we still win b/c of xyz.”

Question 11

What effect does an amended pleading have and what is required?

Answer 11

A. An amended pleading takes the place of the previously filed pleading and must be complete within itself.

Question 12

What effect does a supplemental pleading have and what is required?

Answer 12

B. A supplemental pleading is not complete within itself, but only supplements a previously filed pleading. In this case, both the previously filed pleading and the supplemental pleading are active pleadings.

Question 13

When can you file new pleadings in Texas?

Answer 13

E. In TX, Parties may file new pleadings at any time so long “as not to operate as a surprise to the opposite party”
 Leave of court is required only if amendment is sought to be filed within 7 days of trial
 Court must grant leave to amend unless the opponent of the new pleading shows that it will operate as a “surprise”
 Even if the new pleading surprises the opponent, the court can allow the pleading and grant a continuance of the trial date to alleviate any surprise.

Question 14

What are the 3 types of fatal pleading defects?

Answer 14

 Pleading fails to give fair notice of the claim or defenses asserted
 Pleading presents a claim for relief that is legally invalid
 Pleading presents a claim that is outside the trial court’s subject matter jurisdiction

Question 15

What is a Special Exception?

Answer 15

A. Party may object to the opponent’s defective pleadings by “special exception” if the pleading does not give “fair notice” of any claim
B. Can also be used to object to an opponent’s failure to plead a claim properly (ex. element of a cause of action is left out)

Question 16

Trial Amendments to Cure Defects

Answer 16

A. Rule 66 requires trial judge to “freely” allow amendments to pleadings during trial “when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits”

Question 17

For the Court to have discretion to allow the amendment, there must be evidence of surprise and prejudice, what 3 factors is the determination based upon?

Answer 17

1. The time of the amendment
2. Type of amendment – procedural or substantive
    An amendment that adds a new COA or defense is a substantive amd, and the amd itself is sufficient evidence to show surprise or prejudice. No additional evidence is necessary to support a TCs decision not to allow the amd.
3. Implied consent
    If the party opposing the amendment has failed to object to matters that are not in the pleadings for some time, party may be said to have consented

Question 18

What is Trial by Consent?

Answer 18

• When evidence relating to a cause of action or facts are not pleaded are introduced without objection, a jury question is submitted to the jury without objection and the jury answers it affirmatively, the unpleaded matter is said to have been “tried by consent”
• π can recover on the matter, despite the lack of pleading
• ∆ has waived the failure to plead by not timely objecting
• The opposing party must have notice that an unpleaded theory is being tried in order to have trial by consent.

Question 19

What are General Damages?

Answer 19

o General damages – Damages that naturally and necessarily result from the harm alleged
 Plaintiff seeks to recover damages suffered as a result of defendant’s conduct
 A general prayer will allow plaintiff to recover general damages

Question 20

What are Special Damages?

Answer 20

o Special damages – those that proximately result from defendant’s wrongful conduct and vary with the circumstances; they require specific pleading
Example
 In a personal injury case, pretrial pain & suffering (which all injured persons endure) is recoverable under a general claim for damages. All other damages (medical expenses, future P & S, lost future wages based on a disability, etc.) must be specifically pleaded.
 In a K action, consequential damages must be specifically pleaded.

Question 21

In what two types of cases is the Order of Pleading the most important?

Answer 21

o Special appearance motion must be filed prior to any other plea, pleading, or motion
o Motion to transfer venue must be filed prior to any other plea, pleading, or motion, except the special appearance