I. SMJ OF THE TX TRIAL COURTS
A. Structure and Amount in Controversy (AIC) – court only has
authority and jurisdiction to render a judgment in a case within a certain
dollar amount. A court that acts without
SMJ, then that judgment is void.
1. Justice
Courts ($.01 - $5,000.00)
a. more relaxed in procedure and evidence rules
b. judges not required to be lawyers (so don’t file a complex
case there)
c. not a court of record
d. if there is at least $20 on the table then you can appeal de
novo to the county court
e. no jurisdiction to
issue injunctions
f. cannot hear: suit on behalf of state to enforce
penalties, forfeitures and escheats, divorce, slander or defamation, title of
land or enforcement of liens on land.
g. original jurisdiction for criminal misdemeanor cases
punishable by fine only, exclusive jurisdiction for its AIC
h. forcible entry and detainer cases, and cases for liens on
personal property
2. Constitutional
County Courts ($200.01 - $5,000.00)
a. need not be lawyers either
b. they have limited probate jurisdiction
c. almost same “can’t”s as JP
d. may issue injunctions though
e. juvenile jurisdiction, appeals from JP, writs of attachment
and sequestration, concurrent with JP for its AIC
3. District
Courts ($500.00 – infinity)
a. given jurisdiction to all matter except those reserved for
other courts
b. it hears all the “can’t”s; like all real property cases
c. residual jurisdiction: if SMJ is not in any other court then the
only court that may hear it is the district court (ex.- $20 and injunction, b/c
there is no AIC for county court and JP cannot issue an injunction).
4. Legislative County Courts ($500.00 - $100,000.00) aka
County Courts at Law
a. created by legislature to heat specific type cases, must
look at the statute that creates it
b. they are created on an as needed basis
c. that is the general AIC, unless their empowering statute says
otherwise
5. Within
a county cases may be transferred and shared.
6. There is a small class of cases where SMJ is determined by
the type of suit and not the AIC:
a. eminent domain =
district court has concurrent jurisdiction with CCL if there is one in your
county; exception is in a county with 2 million or more then CCL has exclusive
jurisdiction.
b. probate = CCL if
there is one, smaller counties’ probate is in the constitutional county courts,
but contested matters transfer to the district courts.
c. divorce = family
law district courts.
7. Terms
for jurisdictions
a. exclusive – only
b. concurrent – overlap
c. general – all
d. limited – certain type only
e. original – trial
f. appellate – review
8. When the face of the pleading affirmatively shows lack of
jurisdiction then the only authority a trial court has is to dismiss, want of jurisdiction.
B. Cases for
title and forcible entry/detainer
1. Orange Laundry Co. v. Stark: P sued D in JP court for damages to land and
for possession of it. In D’s answer they
tried to raise title issues as a red herring.
JP trial court was correct to exclude the title issue b/c it has not
jurisdiction to hear that type of case – the title issue was raised
incidentally.
a. It was not necessary for the court to adjudicate title to
determine who had the superior right of possession.
b. JP has original jurisdiction for forcible entry/detainer.
c. When forcible entry and detainer is brought plus a sum for
damages, then the AIC determines the court.
2. Rodriguez v. Sullivan: in this case the court had to adjudicate
title to determine possession. One party
said he had a deed and buyer said he had paid enough to get title. So since the title issue was determinative of
possession the JP court had no jurisdiction = void judgment.
a. District
court has SMJ to enjoin execution of void lower court judgment.
C. Cases for
Probate Jurisdiction
1. Seay v. Hall: P
sued D for wrongful death and survival in district court and probate
court. Probate court dismissed the
action and TX Supreme Court agrees. This
case was not “incident to an estate” or “appertaining to an estate.”
a. wrongful death action is not included in the definition for
the settlement, partition and distribution of the estate – and the legislature
limited probate court jurisdiction to where this was the controlling issue.
b. “claims by or for an estate” refers to debt, not this
c. at the time of this case there was no express mandate for
this type of personal injury case for a probate court
i. this has been overruled – today wrongful death cases can be
brought in probate court along with settlement of adjudication of estate.
2. In Re Graham:
in this case the TX.S.Ct. says that a statutory probate court has the
authority to transfer to itself from the district court a divorce proceeding
when one spouse is a ward of the probate court.
This is incident to or appertaining to a guardianship estate.
a. asking for a divorce from an incompetent and asking for
child support is appertaining to an estate b/c it is like a debt; child custody
would be different and there would be no jurisdiction in a probate court.
D. The AIC
1. What the P can claim in good faith and unless excluded by
statute it includes actual damages, penalties, punitives, attorney fees, and
interest that is an element of the damages.
2. What is excluded by law = costs and interest in the name of
interest.
3. Peek v. Equipment & Service Co.: P file for wrongful death and failed to
allege any damages on the face of the pleading.
However, the from the nature of the claim it was absolutely apparent. When the face of a pleading affirmatively
negates SMJ, then only authority is to dismiss; but when the pleading simply
fails to allege AIC the court presumes jurisdiction.
a. the pleading was sufficient enough
b. D could
file special exceptions to require P to allege AIC
c. AIC is determined at the outset, amending damages does not
deprive court of jurisdiction
d. AIC is
not the same as the $ given for judgment
e. examples:
i. suit
for possession = fmv of property
ii. recover
debt = greater of lien amount or fmv
iii. can aggregate multiple P’s claims to get AIC, but you cannot
aggregate D’s or any of their counter/cross claims
4. Sears, Roebuck v. Big Bend Motor Inn: CCL in Tarrant county created by statute and
did not include in AIC treble damages or punitives for a DPTA claim. So the CCL had no jurisdiction.
5. Smith v. Clary Corp:
whether D’s counterclaims should be aggregated so as to raise AIC and
divest CCL of jurisdiction? There is a
statute to aggregate P’s claims, but nothing for D’s. Never have and never will aggregate D’s
claims to divest a court of jurisdiction b/c their joinder is not voluntary and
they have not chosen the forum.
6. Andel v. Eastman Kodak Co.: P sued D and had proper AIC, D then countered
for an amount less than AIC. P nonsuited
and claimed that court had no jurisdiction over D’s counterclaim. Court still has jurisdiction.
a. the
venue/SMJ/AIC is all set by P’s pleadings
b. if it is a transactionally related matter that is below the
court’s AIC then court may exercise its ancillary jurisdiction; and it is
compulsory b/c if you don’t being it you lose it
c. however, a court may not entertain and cross/counter claim
that goes above its AIC!
E. Justiciability
1. There is a prohibition against giving advisory
opinions. But declaratory judgments may
be rendered.
2. Mootness,
ripeness, standing, political question, primary juris.
3. Farmers TX County Mutual Ins. v. Griffin: this was a declaratoy judgment action to
determine if the insurer had a duty to indemnify the insured before any liability
had attached. The court determines that
this is a justiciable controversy b/c the TX DJA allows court to determine the
rights of the parties.
F. Consequences
for lacking jurisdiction
1. Only
authority is to dismiss.
2. CPRC
§16.064 is the “savings statute”
a. If you, in good faith, bring a case where a court lacks SMJ,
then the savings statute tolls (stops) the SOL all through the case and then 60
days after dismissal. It allows the
attorney to refile in the proper court within 60 days from dismissal.
b. Vale v. Ryan:
even if federal court declines to hear case b/c of lack of jurisdiction,
it is the same as if it was in TX and dismissing for w.o.j. p must file and use due diligence in serving
D in order to suspend SOL.
II. EMERGENCY AND INTERIM RELIEF
A. Temporary
Restraining Orders
1. Often issued ex parte,
without notice to other side or giving the other side a chance to be
heard. This is b/c of emergencies, etc.
2. TRCP 680 – says you need affidavit and verified complaint
(showing irreperable harm, verified facts, and bond).
a. court must state why no notice to other side
b. only lasts for 14 days, then set a hearing; may get one like
extension of 14 more day (so max is 28 days)
c. it tries to preserve the status quo
d. there is a lot of paperwork (petition, TRO, bond, filing
fee, contact clerk, judge, sheriff, get a hearing, contact bonding company)
(TRO app must be specific)
3. Charter Med. Corp. v. Miller: TRO was not in compliance b/c it had
conclusory statements. The order must also
be specific, if not then TRO is void.
Rule 683 says that if it is not then, abuse of discretion, void, TRO
dissolved. Need to customize the order
for your TRO in your case. Anyone can
appeal the granting or denial of TRO immediately.
B. Interim
Relief
1. Trying
to get protection before the judgment or before the merits
2. A secured creditor has 3 options: sue on the loan, self-help repossession but
cannot breach the peace, or interim relief.
3. Secured
(there is collateral)
a. writ of sequestration: CPRC §62.001, a writ to seize the
collateral. A party must have a
pre-existing property interest of specified property and place it in the
custody of the court pending final judgment.
Court holds it to preserve the property.
Can be issued ex parte, but
there are lots of procedures to follow.
The property must be in danger to issue this writ.
b. lis pendens
c. self-help repossession
4. Unsecured
a. attachment: CPRC §61.001, seize specified amount of
non-exempt property to bring it before the court to secure satisfaction of
potential judgment.
b. garnishment: CPRC §63.001, seek to have person’s property
seized that is in the hands of a third party to secure a potential
judgment. Can be a pre-judgment action
between the garnishor (creditor) and the garnishee (the third person in
possession of the debtor’s property).
i. obligation of garnishee to file an answer setting forth the
property it holds of the debtor (and cannot release property, only to sheriff)
ii. must possess property in TX sufficient to satisfy the debt
(there are not grounds for garnishment if the debtor has $)
iii. can also garnish after judgment, and don’t need a bond b/c
there has been a day in court (must have a valid judgment and the debtor has no
assets)
iv. Bank One TX v. Moody:
D must answer, and if not then there is a default judgment. They risk a default in the full amount of the
original judgment and not just the amount sought to be garnished. A garnishee could be OK for filing an
equitable motion for new trial.
5. Procedural
protections
a. a party seeking any of these must post bond, writ issued
after hearing, supported by verified affidavit, and must be advised in writ
itself of right to regain property by putting up a replevy bond, and also be
advised of his right to dissolve it.
b. burden of proof is on the party who obtained writ to show
its issuance was proper
c. a tort action lies if any writ is wrongfully obtained
d. must comply with TRCP and CPRC
6. Chandler: P
seeks damages for wrongful garnishment, default against P in original
suit. Tort action lies if the facts in
the affidavit are untrue. Here the
numbers in the affidavit for the $ did not correspond with actual judgment. A tort lies every time a party makes an
untrue statement in an affidavit o support a writ of garnishment.
7. Barfield: when
can party recover punitives in this tort?
Need to show more than just wrongful, also need to prove malice (bad
motive and reckless disregard for rights).
Good faith is a defense to punitives.
Any false affidavit creates a tort action.
III. PJ AND PROPERTY
A. The US
Supreme Court
1. A nonresident D must have certain minimum contacts with the
forum state, so that maintenance of the suit does not offend traditional
notions of fait play and substantial justice.
a. must purposefully avail itself of doing business in that
state
b. SOC
plus, or simply SOC for minimum contacts
c. general
jurisdiction in when the contacts are systematic and continuous; specific
jurisdiction is when the litigation arises out of or relates to the D’s minimum
contacts.
2. Two
part test:
a. minimum contacts = awareness of a product in the SOC is not
enough need some purposeful direction to the state (NOTE: presence in the state
is always enough for PJ)
b. tnfpsj (factors)
i. the burden on the D to litigate in
foreign place
ii. interests of the state in protecting
its citizens
iii. P’s interest of relief in the forum
state
iv. interstate judicial system’s interest
in efficiency
v. shared state interests in furthering
social policy
B. Texas
Long-Arm Statute (LAS)
1. CPRC
§17.041 – the general TX LAS
a. contract by mail or otherwise with TX resident, and the K is
to be performed in whole or in part in TX;
b. commits a tort action in TX, in whole or in part;
c. recruits TX residents, directly or indirectly, for
employment inside or outside the state.
d. Also
includes any other business…
2. U-Anchor Advertising v. Burt: the contract was signed in OK but part was to
be performed in TX, court says that just a D “doing business” in TX does not
automatically mean PJ; still need to do the USSCt due process analysis. Here the part of the contract that was to be
in TX was remitting payment and that is not purposeful availment = no PJ.
a. TX law is to meet its LAS and federal due process analysis
b. TRCP 108 is a valid alternative, it says to serve a
nonresident D just as though you would a TX resident, i.e. CMRRR.
3. Guardian Royal v. English China: D had an insurance policy for P, but P’s
subsidiary was to supplement that policy in TX, so they for US Fire. US Fire paid a wrongful death claim on behalf
of P and they want their contribution now from D. D says it was only a secondary insurer.
a. D was benefited from acting in TX (“doing business”) b/c
they wrote the insurance.
b. but the more efficient forum would be England, here it would
be unreasonable to exercise PJ b/c D’s burden, TX does not have a strong
interest in these 2 foreign corporations.
c. They met minimum contacts, but tnfpsj was offended!
4. CSR Ltd. v. Link:
D is an Australian corporation who first sold asbestos to a third party
who brought it to TX, that’s how P got injured.
Trial court said yes to PJ, now D sues mandmus for trial judge not to
find PJ. D gave up title when it sold the stuff FOB Australia in 1957, contacts
could even be “stale”? General
jurisdiction does not last forever.
a. even though D might have forseen it, that is just a factor;
D had no systematic or continuous contacts with TX = no purposeful availment,
no minimum contacts, no PJ.
b. an interlocutory appeal is an order that doesn’t dispose of
the entire case, and a ruling on PJ is such a thing that can be appealed
immediately.
5. CMMC v. Salinas:
in this case there was no PJ simply b/c D knew its allegedly defective
product would be shipped to TX. D
modified its product to be used in US, sold it to a distributor who it knew
worked with TX. But here the court
disregards the SOC theory b/c it says this was merely an “isolated occurrence.”
a. No
need to go through the analysis b/c the D’s only contact with TX was an
isolated occurrence so there is no PJ.
b. TX law is now the isolated
occurrence test
6. Jones v. Beech Aircraft: wrongful death plane crash and P sues D
parent and D subsidiary corporation.
Generally a parent is not subject to PJ where it has subsidiaries;
usually each separate legal entity must have minimum contacts. But when the parent exercises control and has
such a close relationship with its sub, then the acts of the sub will be imputed
to parent.
a. “pierce the corporate veil” = parent controls daily
operations, commonality between them, advertise as a single entity.
b. 3 tests for the Internet:
i. clearly passive website = no PJ
ii. interactive website where users can exchange information =
maybe PJ
iii. clearly active, like entering into K where there is knowing
a repeated transmissions of computer files = PJ.
7. C-LOC v. Hendrix:
P bought a defective product from D in Michigan, then only contact D had
was that it sent a guy whom P called a representative of D to TX to try to fix
the problem. No part of the K was ever
to be in TX, D does not advertise in TX, shipping paid by P. The “rep” was an isolated occurrence, so no
PJ.
C. Other LAS
in TX
1. TX
Business Corporation Act §8.10 – LAS for service of process on president, VP,
or registered agent; if none of these then serve the Secretary of State as
their agent.
2. TX Family Code – status determination does not require a
finding for PJ (ex. custody and visitation, marriage status); but for a money
judgment like child support then PJ must be met.
D. Service of
Process
1. Serve the D with a copy of the petition and citation (it is
required by due process to notify D and give a chance to be heard).
a. purpose
of copy of petition is to give D some notice of the claims against it; purpose
of citation is to let D know that the power of the state of TX is behind the
petition.
b. How? Hand delivery, CMRRR, leave it, publication
c. Due process only requires notice reasonably calculated under
the circumstances to apprise interested persons with notice and an opportunity
to be heard.
2. Rule 106(a) – need no court order to serve by person of
CMRRR provided that it is personal and done by sheriff, constable or mail by
clerk (if using a disinterested process server then you need a court order).
a. If you can do any of these in (a) then you can file a motion
supported by a verified affidavit for substituted service under 106(b).
3. Peralta v. Heights Med. Center: failure to give notice violates due process;
it was unconstitutional for TX to require a D to attack the judgment for
defective service and also have a meritorious defense. Al D has to do is show defective service.
4. TX
has strict compliance
a. Wilson v. Dunn:
for the district court to authorize substituted service without an
affidavit or evidence supporting it then it is defective service and court has
no authority to render default judgment.
Need a motion supported by affidavit with specifics. Actual receipt/notice does not suffice for
personal service.
5. Waiver
of Process (Rule 119)
a. there can be no judgment entered against a D unless service,
waiver, or appearance (Rule 124)
b. Deen v. Kirk:
H filed for suit, but before he did he got W to sign a waiver. TX says that after petition has been filed,
then and only then can the waiver be signed and filed with the court. Sign waiver after suit is brought. This is only a waiver to an official serving
the citation.
i. a D makes an appearance by filing an answer, going to
court, arguing any motion besides Rule 120a.
ii. if there is a void judgment then there is no time limit for
attacking it; however, if it is voidable, then you only have 30 days to ask
sour to fix problem (but a bill of review can be brought up to 4 years later
attacking defective service).
iii. if service is defective = voidable; if it is nonexsitent =
void.
iv. any cross/counter claim is governed by Rule 21a (that is
atty to atty communication = hand, fax, CMRRR).
6. Techniques
of Service
a. Rule 103 – sheriff, constable, any person authorized by law
b. alternative service (Rule 106(b))
i. Eichel v. Ullah:
to stop SOL P must timely file lawsuit and use due diligence in
attempting to have D served. Here P
served D 14 months after filing suit = too long. P’s atty must oversee, paper the file to
prove due diligence. Due diligence is
lacking as a matter of law when there are unexplained gaps of time.
c. proof of service (Rule 107) “the return”
i. when citation is served, date, time, and manner signed by
the officer verified – this proves the person was served.
ii. must show diligence in serving
iii. return of service must be on file 10 days before a default
judgment can be entered. Rule 99 says
that a D must file an answer on the Monday following the expiration of 20 days
from service. So to get a default, the
time foe D to answer must pass and return has been on file for 10 days.
iv. Bavarian Autohaus v. Holland: P requested service to be done thru one
person but return showed it was done thru another, so P filed an amended
return. So the original return was
defective b/c it failed to state that service was done thru D’s agent. Rule 118 says the court has discretion to
allow an amended return; and the amended return will relate back to the
original to make it valid. The only
claim D has to object to amended return is that it was prejudiced and that is
hard to prove.
v. the return must say who, like “VP f said corp” not just VP
(“D is served thru it’s VP, of said corp).
d. By publication
i. the weakest form of service
ii. must convince the court that the whereabouts of the D are
unknown, then the D is charged with reading the paper.
iii. this is only available upon a court order when D cannot be
found, and the disincentives are that it is weak, in TX the trial court
appoints an atty ad litem so P doesn’t get a default, and the D gets 2 years to
file a motion for new trial.
e. special request for substituted service under the LAS
i. must strictly comply with the general TX LAS to serve
secretary of state for a nonresident D.
ii. McKanna v. Edgar:
P served D thru the sec and got a default judgment. D appeals saying that P failed to meet all
the conditions of the LAS, and that to use §3 of the LAS to serve the sec, the P
must meet §§1 and 2 first: that D does
not reside in TX, has no ppb in TX, and has no registered agent in TX. Here §2 applies b/c D does business in TX so
the person in charge of that business was the person to serve, not the sec of
state.
iii. Paramount Pipe & Supply v. Muhr: P’s pleading must show why serve thru a
substitution b/c LAS requires pleadings to say why to give D notice (due
process). When a P fails to comply with
the statute = defective service
iv. Whitney v. L&L Realty: 2 copies of citation and petition sent CMRRR
to sec of state, SOL is tolled when sec is served; just b/c D never receives it
doesn’t invalidate service. Proof of
service under LAS requires a showing that sec was served and that he forwarded
it to D. Sec ought to serve D but it is
P’s responsibility to make sure it is done.
Due process requires that there must be some proof that sec did its job;
so get a certificate from sec saying that they sent it and file that as a proof
of return.
vi. OR instead of LAS use Rule 108 for a nonresident D. Rule says that the same methods may be used
for serving a TX resident – it is a procedural alternative to the LAS, and is
easier.
E. Challenges
to the jurisdiction by a nonresident D
1. The
special appearance (Rule 120a)
a. this sp app must be written, sworn and filed first!! A party who has made a sp app has not made a
general app, this is solely to contest PJ of the D to the entire proceeding or
any severable part.
b. it also must be heard first before any venue rulings, etc.
c. however, depos and discovery do not constitute a waiver of
sp app, the sp app is an evidentiary hearing that might require these and the
burden of proof is on the P.
d. Kawasaki Steel Corp. v. Middleton: Oilworld sued D, and D cross-claimed against
P (Japan corp.). P filed a sp app and
also in that instrument attacked the defect in service. Court found that P did have minimum contacts
= PJ. But sp app is meant to only object
to jurisdiction and defective service may not be argued. A Rule 122 motion to quash is the instrument
for that. So by filing this other motion
P has generally appeared.
i. ordinarily if there is a defect in service, let it go; b/c
you don’t get much (20 extra days to answer) if you win.
ii. if nonresident D shows up in TX to argue sp app hearing it
is not subject to service then
iii. a notice of removal to fed court is not a motion and it does
not waive the right to challenge PJ if fed sends it back.
e. Dawson-Austin v. Austin: whether a court has PJ over a wife in a
divorce proceeding and even whether it has jurisdiction to divide the marital
estate? H lives in TX and filed a
divorce here and says that when W responded she made a general app. W sent a sp app, motion to quash, plea in
abatement, and others.
i. she did not make a gen app when the sp app was not sworn
b/c Rule 120a allows a defect to be cured anytime before making a gen app, and
she cured it here.
ii. she did not make a gen app by filing the other motions with
the sp app b/c Rule 120a says they can all be filed at the same time and do not
need the words “subject to special appearance” on them. (could even file the answer with sp app –
wise thing to do just in case).
iii. she did not make a gen app when the H set the hearing on the
motions and she came and filed a motion for continuance; this does not avail
her of the court’s authority by ruling on this motion, mainly b/c H set the
hearing.
iv. she did not make a gen app by only filing a sp app for the
property division claim, b/c one can sp app to any severable part of a proceeding. Even though TX says that divorce and property
are non-severable, TX can adjudicate status – that is the divorce. TX has jurisdiction over her for divorce
(status) but not to divide the marital estate that lies outside of TX.
v. The court only has jurisdiction over the status divorce and
the property that is inside TX.
f. GFTA v. Varme:
D included in its sp app an objection to the method of service. It is improper to include it but sp app was
timely filed, so it is not waived by including motion to quash. Filing other papers with sp app will not
convert an otherwise valid sp app.
2. Post-judgment
challenges
a. ex. – when P gets a default, just b/c D has no answer on
file, then D may still file sp app b/c it is the first thing D filed.
3. Forum
non conveniens
a. it allows a court with PJ to decline jurisdiction b/c there
is another convenient forum to litigate; that the case should be tried in
another forum, not TX, burden of proof is on the movant to show the other is
more convenient.
b. Direct Color Service v. Eastman Kodak: P sues for tort and K, D says forum non
conveniens and trial court agrees and dismisses the suit. Upheld here b/c p is not in TX, D is not in
TX, no witnesses are in TX, no part of the K were in TX, basically TX has no
interest and there are other available forums.
Court here says this motion may be filed at any time before the trial;
but to day the rule is that is must be filed no later than 180 days after the
time required to file a motion to transfer venue.
i. is there an alternative forum available (where all the
parties are subject to jurisdiction) and also it must be adequate (convenient
and able to help).
ii. there are also public and private interests (like the state
interests in adjudicating the case and the availability of proof).
iii. would be a good idea to file alternatively the sp app and
the forum non conveniens.
iv. TX also has a rule that a court cannot compel a witness to
testify at trial when they are beyond 150 miles from the county (even a TX
resident can file forum non conveniens b/c of where the county is)
v. TX court can dismiss or abate.
c. Dow: in 1990
the court held that the TX leg could abolish this doctrine and that they
did. They said that general jurisdiction
allowed a P to sue D for a transaction that occurred somewhere else. But that law was changed in the next
legislative session b/c big business threatened to leave TX if that law
remained.
IV. PLEADINGS
A. In TX they are very important, they are fact pleadings (plead
a cause of action with enough facts to give D fair notice – and if they are
defective then any party may file a special exception and get a ruling; if this
is not done then it is waived)
1. P’s Original Petition
– lays out discovery level, jurisdiction, venue, names and addresses of the
parties, causes of action and supportive facts, and a prayer for relief.
2. P’s Supplemental Petition – a reply to
D’s answer.
3. P’s First Amended
Original Petition and P’s First
Amended Supplemental Petition
4. D’s Special Appearance Motion
5. D’s Motion to Transfer Venue
6. D’s Motion to Quash Citation
7. D’s Plea in Abatement
– the “catch-all” dismissal motion usually to raise other matters such as
pendency of another action or non-joinder.
8. D’s Plea to the Jurisdiction – an SMJ
challenge.
9. D’s Special Exceptions
– when D attacks the sufficiency of P’s pleadings, like for vagueness, failing
to state grounds for relief.
10. D’s General Denial/Answer
11. D’s Specific Denials and Denials Under Oath
12. D’s Affirmative Defenses
– a defense that does not operate by denying one of the P’s elements (raises
new facts).
B. The
Plaintiff’s Petition
1. first
paragraph must be the discovery level (1,2, or 3)
2. jurisdiction and venue (the basis for SMJ and PJ and the
propriety of the venue)
3. the correct names and addresses of the parties and any
assumed names
4. a short, plain, concise statement of the cause of action
sufficient to give fair notice of the claim involved
a. ex.- the P has a right, the D’s wrong violated that right,
and the consequent damages
b. the pleadings try to narrow the claim to lock in the issue
C. The Cause
of Action
1. “fair
notice” of the legal theory
a. Castleberry v. Goolsby Bldg. Corp.: P’s estate sued D for wrongful death of son,
P merely pleaded neg and gross neg in many ways, but they sued under the
Worker’s Comp Act (which only allows for a cause of action for intentional
injuries). D moved for SJ for failing to
state a cause of action = granted.
i. P says its pleadings are sufficient to show intent b/c they
use willful gross neg language.
ii. Not any kind of neg can imply an intentional act, so P’s
pleadings are insufficient in giving fair and adequate notice of an intentional
injury.
b. ex.- P pleads 2 specific acts of neg and says “and other
acts of neg”. Then at trial P tried to
use neg per se in the violation of a statute.
Court says that P must give D notice of this statute in the pleadings,
but D here did not specialy except so it waived the right to complain. Adding that type of lang to 2 specific acts
is mere “surplusage” and will be ignored.
But if there was just a plea of general neg it would be ok.
c. Darr Equipment v. Owens: P sued in imperfect language for a breach of
implied warranty, but here there were 2 possible ways to read the cause of
action, warranty or tort. D never
specially excepted but objected at trial – not allowed to object at trial
unless you have a special exception on file.
Rule 90 says that every pleading defect not specially excepted to in
writing before trial is waived. And
absent special exceptions the pleadings are construed most favorably to the
pleader.
i. Need to plead all the elements
ii. When D specially excepts, and objects at trial, it is in
the court’s discretion to allow P to amend its pleadings unless D is
prejudiced.
2. “fair
notice” of the factual theory
a. White v. Jackson:
P got a default judgment, D never answered and now is attacking the
pleadings on appeal. All P pled was
negligence, failed to allege any fact that D owed a duty or breached it =
defective and D may appeal a default judgment and attack the defect up to 6
months later if the record has a defect on its face. The pleading was defective and this cannot
support a default J. To give fair notice
P must plead the specific act of neg.
i. and cannot use a “general demurrer” = saying hey P your
pleading is defective; must use special exceptions.
ii. Rule 89 – must
file special exception, if not then it is waived. But for a default J the D may attack the
pleadings even though he never filed a special exception, Rule 90 (waiver does not apply to default J’s).
b. Willock v. Bui:
P her got a default J and now D appeals saying pleadings were inadequate
to give notice. Petition gave date and
time of auto accident and said D was “involved.” Here it was technical, but it is sufficient
to give D fair notice and it can support a default J. Therefore, pleadings do not have to be
“perfect.” As long as it contains a
short and concise statement to give the D fair notice.