Texas Civil Procedure Flashcards
What are the two levels of civil courts in Texas?
Trial and Appellate.
What are the trial courts in Texas civil courts?
1) District Court;
2) County Court at Law;
3) Constitutional County Court; AND
4) Justice of the Peace Court.
How do you know which Texas civil court has subject matter jurisdiction (power to hear a particular case)?
Determined by the amount in controversy.
1) District Courts - Courts of GENERAL JURISDICTION with an amount in controversy requirement of $500.01 (unclear on whether it could be 200.01) AND UP (no upper limit).
2) County Courts at Law - Created by the legislature for certain counties. AIC requirement is between $200.01 and $200,000.
3) Constitutional County Court - Created by Texas Constitution. The county judges presides over this court. Court has civil jurisdiction over claims with AIC between $200.01 and $10,000.
4) Justice of the Peace Court - Civil jurisdiction over minor civil actions where the amount in controversey is not more than $10,000.
Hypo: Bob asserts a claim against Jim for $80,000. Which Texas trial courts have SMJ over the case?
DC and the CCL.
How is the AIC determined?
1) Single Plaintiff / Single Defendant - Plaintiff can aggregate multiple claims against the defendant to meet the amount in controversy.
2) Multiple Plaintiffs / Single Defendant - All claims by multiple plaintiffs against the same defendant are aggregated to determine the AIC.
3) Multiple Defendants - Separate, independent, and distinct claims against multiple defendants are NOT aggregated.
Where does the plaintiff put his amount in controversy?
TRCP requires that a pleading MUST include a specific statement of the amount of monetary relief sought.
What happens if the plaintiff fails to plead the maximum amount claimed in damages?
The defendant files a SPECIAL EXCEPTION, which requires the plaintiff to specify the maximum amount claimed.
What if the AIC pleaded is outside the jurisdictional limits of the court?
The defendant files a PLEA TO THE JURISDICTION, because the court does not have the authority to hear the case (a challenge to the court’s subject matter jurisdiction).
What are some other grounds for challenges to the SMJ of a Texas court?
1) Governmental immunity from suit;
2) Justiciability; OR
3) Another texas trial court has exclusive jurisdiction.
Explain the Appellate courts and their jurisdiction in Texas.
There are 14 intermediate courts of appeals in Texas. They have intermediate appellate jurisdiction in civil cases appealed from the district and county courts when the amount in controversy or the judgment rendered EXCEEDS $100.
The jurisdiction of the intermediate courts of appeals over civil cases is MANDATORY.
How is an appeal initiated?
With a NOTICE OF APPEAL.
What must a notice of appeal include?
1) The trial court’s name and case’s trial court number and style;
2) The date of the judgment or order appealed from;
3) A statement that the party desires to appeal;
4) The court to which the appeal is taken; AND
5) The name of each party filing the notice of appeal.
When must a notice of appeal be filed?
WITHIN 30 DAYS OF THE DATE THE JUDGMENT WAS SIGNED.
What is the effect of a notice of appeal on the trial court’s judgment?
The filing of a notice of appeal DOES NOT SUSPEND ENFORCEMENT of the trial court’s judgment.
How may a judgment debtor party suspend enforcement of the judgment?
1) Obtaining a written agreement with the judgment creditor;
2) Filing with the trial court clerk a good and sufficient bond;
3) Making a deposit with the clerk in lieu of a bond; OR
4) Providing alternate security as ordered by the court.
What jurisdiction does the Texas Supreme Court have?
This is the highest CIVIL court in the state. Has APPELLATE JURISDICTION over cases decided by the intermediate courts of appeals in Texas.
Has DISCRETION to grant review of a decision by the intermediate appellate court.
An appeal is made to the Texas Supreme Court by filing a petition for review.
What is filed for the Texas Supreme Court on appeal?
A petition for review.
The defendant may challenge the plaintiff’s choice of venue if it is ______________.
Improper.
What does the Texas venue scheme look like?
1) Mandatory Venue Provisions;
2) Permissive Venue Provisions; AND
3) General Venue Rules
What is the General Venue Rule?
All lawsuits must be brought in the county where:
1) All or a substantial part of the events that gave rise to the action took place;
2) The defendant resides at the time of the event;
3) The defendant’s principal office in the state, if the defendant is not a natural person; OR
4) If none of these situations apply, the county where the plaintiff resided at the time of the event.
What is a residence?
A fixed place of abode that one occupies or intends to occupy permanently.
What is a principal office?
Place where the decision makers for the organization within the company conduct the daily affairs of the organization. The place where a company has its headquarters.
YOU MAY HAVE MORE THAN ONE PRINCIPAL OFFICE.
How is venue challenged?
Plaintiff has first choice to fix venue by filing the suit.
The Defendant challenges the plaintiff’s choice by filing a MOTION TO TRANSFER venue.
What grounds are bases for transferring venue?
1) Plaintiff’s choice of venue is improper under the rules;
2) The case should be transferred to another proper venue on convenience and justice grounds;
3) The parties consent to a transfer; OR
4) A local prejudice makes it unfair for the case to be heard in the county of suit.
What is the procedure to challenge venue when local prejudice exists?
Motion to Change Venue.
What is the deadline to file a motion to transfer? What is the penalty for untimely filing?
MUST be filed before any other pleading or motion. Motion to transfer venue is filed prior to or concurrently with the filing of the answer.
A venue objection is WAIVED if not timely filed.
What does a motion to transfer venue contain?
1) Denial of plaintiff’s venue facts alleged in the petition;
2) Explanation why venue is improper;
3) Allege another proper county of venue with specific venue facts; AND
4) Request the court transfer the case to that county.
What is the Plaintiff’s proof requirement once venue is challenged?
The burden is on the plaintiff to establish by PRIMA FACIE PROOF that venue is proper in the original county of suit.
Prima Facie proof may be established through affidavits, discovery products, and other sources of information.
What happens after submitting a motion to transfer?
The motion will be set for hearing by the defendant.
EACH party is entitled to at least 45 DAYS NOTICE OF THE HEARING.
The plaintiff’s response and evidence must be filed at least 30 DAYS before the hearing date.
Defendant must submit any additional reply and evidence at least 7 DAYS before the hearing.
How is personal jurisdiction established?
Defendant must be given formal NOTICE of the lawsuit through service of process and the defendant must have sufficient minimum contacts with Texas such that it is fair for the Texas court to exercise jurisdiction over the defendant.
Texas has a general LONG-ARM STATUTE that allows for PJ over nonresident defendants if they engage in activities in Texas that constitute “DOING BUSINESS.”
Stretches as far as Constitutional Due Process will allow.
What is service of process?
Process = CITATION AND PETITION TOGETHER
Who? - Sheriffs, clerks of the court, and private process servers may serve process.
Methods:
1) Hand delivery;
2) Certified mail with return receipt requested; AND
3) Other means by court order
What is the procedure for serving process?
1) Plaintiff files petition;
2) Clerk of Court prepares citation;
3) An authorized person serves process; AND
4) Process server returns verification of service.
What is the deadline for an answer to service of process?
AFTER being served, the defendant MUST file an answer.
DEADLINE: BY 10:00am ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF 20 DAYS AFTER THE DATE OF SERVICE.
IF no answer by the deadline, plaintiff may obtain a DEFAULT JUDGMENT against the defendant.
What must a plaintiff do if answer is not timely filed?
File a motion for Default Judgment;
IF plaintiff’s damages are unliquidated, he will have to prove those damage in a hearing.
How is process served on a corporation?
Made by serving:
1) Its registered agent (special agent whose identity is on file with the Secretary of State);
2) The President; OR
3) The Vice President.
Can process be served on the Secretary of State?
Yes if the Secretary of State is statutorily the defendant’s Agent. Secretary of State will forward the process to the defendant. This is called a “Whitney Certificate.” This verifies that the SOS forwarded the process to the defendant.
Can the Secretary of State be served on behalf of a nonresident?
Yes, under the Texas Long-Arm Statute if various conditions are satisfied.
Plaintiff’s petition must allege that:
1) SOS is the agent for service of the nonresident defendant;
2) Nonresident defendant is engaged in business in Texas;
3) Nonresident defendant does NOT maintain a regular place of business in Texas;
4) Nonresident does not have a designated agent for service of process in Texas; AND
5) Lawsuit arises from the nonresident’s business in Texas.
How does a nonresident defendant object to the court’s personal jurisdiction?
BY FILING A SPECIAL APPEARANCE.
Purpose: Objection to jurisdiction on the ground that the party is NOT AMENABLE TO PROCESS issued by the courts of this state.
What is the deadline to file a special appearance?
MUST FILE AS FIRST PLEADING BEFORE THE ANSWER DEADLINE.
IF filed AFTER the answer, that WAIVES personal jurisdiction because it is considered a general appearance.
How is a special appearance made?
Must be made by SWORN motion.
The evidence considered is:
1) Affidavits filed by the parties;
2) Stipulations;
3) Pleadings;
4) Results of discovery processes; AND
5) Oral testimony
What is a defendant allowed to do after timely filing a special appearance that will not waive the special appearances?
Special Appearance is NOT waived if other pleadings or motions are filed after special appearance AS LONG AS the documents do NOT acknowledge the trial court’s jurisdiction.
A defendant does not waive its special appearance by utilizing discovery processes related to the special appearance.
What must a defendant show in a special appearance to show that there are no minimum contacts with the state?
1) No purposeful availment (did not purposefully avail itself of the benefits and protections of Texas law);
2) No Specific Jurisdiction (the plaintiff’s cause of action does NOT arise from or relate to the nonresident defendant’s contacts with Texas (that any contact with the state is not substantially connected to operative facts of litigation);
3) No General Jurisdiction - The nonresident defendant did not have continuous and systematic contacts with Texas;
4) PJ would violate traditional notions of fair play and substantial justice. The exercise of jurisdiction by the court would violate traditional notions of fair play and substantial justice.
What are “pleadings” generally?
Written instruments that frame facts and underlying legal theories (causes of action and defenses) at issue.
Petition - Must contain a short statement of the causes of action sufficient to give fair notice of the claims involved.
Answer - Defendant makes a general appearance by filing an answer which may include challenges to:
1) Court’s PJ over the parties - done by special appearance;
2) Venue (done by motion to transfer); OR
3) Appropriateness of forum (motion to on forum non conveniens grounds).
What is the “Due Order of Pleading Rule?”
MUST BE FOLLOWED.
SPECIAL APPEARANCE MUST BE FILED FIRST, followed by motion to transfer venue, and then answer.
How does a plaintiff go about pleading damage?
Original pleading must include a statement as to the amount of damages sought within the following ranges:
1) Only monetary relief $100,000 or less;
2) Non-monetary relief and monetary relief of $100,000 or less;
3) Monetary relief over $100,000, but not more than $200,000;
4) Monetary relief over $200,000, but not more than $1,000,000; OR
5) Monetary relief OVER $1,000,000.
What is an expedited action process?
Applies when plaintiff affirmatively pleads that he is seeking only monetary damages aggregating $100,000 or less.
There are special limitations on discovery, trial settings, continuances, time limits for trial, alternative dispute resolution, and expert testimony.
What must an answer state?
EVERY ANSWER MUST INCLUDE A GENERAL DENIAL.
This Denies all of the allegations in the petition and puts plaintiff to its burden of proof on all of the causes of action alleged.
What are special denials?
For these defenses, a general denial is insufficient to put the plaintiff’s allegations at issue. Usually MUST be verified based on personal knowledge.
Examples of Special Denials:
1) Legal capacity of the parties to sue or be sued;
2) A denial that a party is incorporated or is a partnership;
3) That an absent party must be joined to the case;
4) That the defendant or a person under the defendant’s authority executed a written instrument that is the subject of the suit;
5) A denial of the genuineness of an endorsement of a written instrument that is the subject of the suit;
6) That the written instrument is without consideration; AND
7) A denial of a suit on an account.
What are affirmative defenses?
A defense as to the plaintiff should not recover on her cause of action. The defendant has the burden of proof at trial.
Examples include:
1) Contributory negligence;
2) Duress;
3) Estoppel;
4) Laches;
5) Release;
6) Res Judicata;
7) Statute of Frauds;
8) Statute of Limitations; AND
9) Waiver
What are compulsory counterclaims?
A defendant should include in its answer any claims for affirmative relief it has against the plaintiff. A counterclaim is COMPULSORY IF:
1) Within court’s jurisdictional limits;
2) It is not subject of a pending action;
3) The claim is mature and owned by the defendant at the time of the filing of the ANSWER;
4) It arose out of the SAME TRANSACTION OR OCCURRENCE that is the subject matter of the opposing party’s claim;
5) It is against the opposing party in the same capacity; AND
6) It does not require the presence of third-parties over whom the court cannot acquire jurisdiction.
What is a cross-claim?
A claim for affirmative relief against another co-party.
What is Third-Party Practice and Designation?
A defendant may join a non-party who may be liable for all or part of the damages by filing a Third-Party Petition (third-party practice).
A defendant may also DESIGNATE a person as a responsible third party (RTP) WITHOUT FORMALLY JOINING THE PARTY by filing a motion for leave to designate a RTP.
What again is the deadline for an answer?
Defendant MUST file a WRITTEN answer with the CLERK WHO ISSUED THE CITATION by 10:00 am on the Monday next following the expiration of 20 DAYS after the date of service.
How are defects in pleadings challenged?
1) SPECIAL EXCEPTION - Defects apparent on the FACE of the pleadings are challenged by special exception. Points out pleading defect with PARTICULARITY and explains how defect MAY BE CURED. If granted, opposing party must amend his pleadings. If re-pleading does not cure defect, CASE MAY BE DISMISSED.
2) Plea in Abatement - Defects that are NOT APPARENT FROM THE FACE OF THE PLEADINGS but that may be proven by extrinsic evidence are challenged by a plea in abatement (happens when another case on the same issue has already been filed in a different county).
How can parties amend their pleadings?
Texas policy allows the parties to LIBERALLY AMEND their pleadings to add new causes of action and defenses to cure defects.
1) AS A MATTER OF RIGHT - before deadline in trial court’s scheduling order;
2) If no scheduling order controls the deadline: may be amended at least 7 DAYS before trial;
3) DURING TRIAL - should file a trial amendment.
How does an opposing party challenge amended pleadings?
Motion to strike amended pleadings;
Trial court should not permit the amendment of pleadings if the amendment would SURPRISE OR PREJUDICE the opposing party (on the eve of trial or during trial that adds a new substantive cause of action).
