TEXAS CIVIL PROCEDURE OUTLINE

 

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.

i.          if D attacks the default J on appeal b/c of defect, the only thing he wins is a new trial = really need to specially except!

                        3.         pleading damages

a.         Rule 47 – in all claims for unliquidated das only need to state that the AIC is within the court’s jurisdictional limits.  Don’t have to plead specific das, but is D specially excepts and says so, then do it.

b.         Rule 243 – in cases for unliquidated das and there is a default J, the court will hear ev of das; the D has defaulted only on liability, still need to prove up das (and the P must ask for a reporter).

c.         Rule 56 – when you have special das, they must be specifically pled.

i.          Weingartens v. Price:  P sued in neg for slip and fall in an unattended aisle.  Only actual das were pled, not loss of earning or income.  At trial P’s atty asked how much she lost b/c no work.  D objected as an unpled ground.  P should then seek to amend only is there is no prejudice to D.  These type of das are “special” and must be specifically pled.

-Special das = those that tend to vary from person to person.

-General das = those that naturally flow from the transaction.

d.         pleading $ damages (the prayer for relief)

i.          general prayer = any relief, legal or equitable, that the P may be entitled.

ii.          special prayer = for injunctions, etc. (pre-J interest, unless it is automatically given under a certain statute)

4.         alternative causes of action

a.         Birchfield v. Texarkana Mem. Hosp.:  P’s daughter was born premature and had problems, sued in neg and DTPA das were pled.  You can plead in the alternative but cannot double your recovery for the same injury.  Here P must either plead DTPA or neg punitives; and the P does not have to choose until the jury comes in with a verdict – and if the P doesn’t choose the court will choose the greater for the P and give a J.

b.         Rule 48 – claims can be separate, do not have to be consistent.

c.         election of remedies doctrine – when a party by their conduct has selected an inconsistent remedy then they are precluded from claiming another (ex. breach of K and rescission are inconsistent).

            D.        Sanctions for frivolous pleadings

                        1.         Rule 13 – frivolous and brought in bad faith = sanctions

2.         CPRC §10 – cannot be brought for improper purpose, must be warranted by existing law, has evidence to support it, must be reasonably based.  Signing a pleading or motion is a certificate that to your best knowledge, inference, belief, and formed after reasonable inquiry there is a cause of action.

a.         what sanctions = atty fees, costs of inconvenience, harassment, and any out of pocket expenses.

3.         Skepnek v. Mynatt:  Atty for D filed a false affidavit with the sp app, P says D knew it was false and in bad faith – b/c P did discovery to find this out.  There is no time limit on seeking sanctions.  Ct ordered sanctions on the atty.  CPRC §10 says that anything filed with the motion is incorporated by reference.

a.         here, look to the time of filing of the sanctionable pleading or motion – did D know it was false then?  So refiling the same falsity = bad faith.

4.         GTE v. Tanner:  P sued maker of telephone line that was used to nearly decapitate their child.  D answered and filed SJ saying that it didn’t make it, even had affidavits to support.  P then file Rule 13 sanctions against D for asserting that it had nothing to do with making the cord (and also sanctions for abuse of discovery).  Trial ct granted sanctions, reversed on appeal b/c it was abuse of discretion to sanction and strike pleadings.

                                    a.         a general denial is not a sanctionable pleading

b.         motion for SJ and affidavits were not groundless (to say in SJ that there are no genuine issues of material fact is not sanctionable)

c.         P had no evidence, only the testimony of some guy that was in no way associated with D to say that yes D made the cord.

d.         discovery sanctions were from a memo that was not produced, but P never knew about it, and D does not have a duty to go to a subsidiary and look for discovery (they are separate entities).

e.         the affidavits in this case were not made or signed by atty, so atty cannot be sanctioned, the party can though.

f.          death penalty sanction – giving $ and striking pleadings, trial court must look to use lesser sanctions first before striking the pleadings.

i.          if pleading is struck – the live pleading is the last amended original pleading and supplemental pleadings

E.         P’s petition = introduction, identity, factual theory, legal theory, special das, any other das, prayer for relief.

F.         The D’s Answer

1.         must file by 10:00 a.m. the Monday after the expiration of 20 days from the date of service.

2.         D’s pleadings must be in due order = sp app, motion to transfer venue / remove to fed court, motion to quash, sp exceptions, plea in abatement or jurisdiction attack, general denial, special denial, affirmative defenses, rebuttal defenses.

                        a.         Rule 86 – must file venue pleadings first or waived

                        b.         Rule 71 – if you misname it, ok, pleading speaks for itself

G.        Special Exceptions (any party can file these, P too)

1.         McCamey v. Kinnear:  P sued, D specially excepted, ct granted some; therefore, now P must choose to either amend or stand on his pleadings.  Ct. must allow a reas time to amend, here the P delayed 20 months and 3 trial settings – so on the DWOP, P amended.  This long delay amounted to a refusal to amend and stand on his pleadings.

a.         P’s remaining allegations, after sp ex granted fail to state a cause of action = dismissed.

b.         when D sp ex = ID P’s pleading, then specifically and intelligibly ID P’s allegations (no general demurrer for sp ex.)  If you need to put on ev then the correct tool is SJ no special exception.

c.         timing – court to rule before trial on special exceptions, then P must amend within a reas time – 30 days?

d.         use the special exception to attack the face of the pleadings, a SJ attacks the substance.  And when a P as a matter of law cannot recover (when a cause of action is not recognized) = motion for SJ, not special exception.

e.         if a special exception is sustained then that part of the pleading is striken.

H.        Plea in abatement (aksing the court to stop the lawsuit to fix some defect in the bringing of an action other than lack of juris, like defective citation, improper venue, or pleading defect on face of pleading)

            1.         Rule 85 – just mentions it as a catch-all

            2.         what to attack –

a.         capacity of the parties, need to join the proper parties, pendency of admin hrg, pendency of another suit with same parties and matter, or if an action is brought prematurely.

3.         Curtis v. Gibbs:  same case filed in 2 different places, one court cannot enjoin another from proceeding.  The one who files first wins the right of location.  Dad sued for modification of custody, then mom came and got kids and sued in her county.  Dad’s court issued a writ of attachment to order sheriff to bring kids back, mom’s court issued an order suspending that writ.  Dad files pleas in abatement in mom’s court, then goes to TX SCt.

a.         CL rule is that whoever files first establishes dominant jurisdiction, a race to the courthouse; but 3 exceptions –

i.          conduct by a party that estops him from asserting prior active jurisdiction

ii.          lack of persons to be joined or power to bring them in (court can bring people from 150 miles or less)

                                    iii.         lack of intent to prosecute the 1st lawsuit

b.         timing – filed within a reas time after grounds become apparent

                        c.         must be supported by affidavit

                        d.         here the court that issued the divorce decree has dom juris.

I.          The General Denial (all it does is put P to proof)

1.         Rule 92 – general denial goes to all P’s subsequent pleadings should the P amend; if the D counterclaims, then the P is presumed to generally deny – P doesn’t have to file an answer to a counterclaim (Rule 82).

a.         “the D generally denies each and every of P’s allegations and demand strict proof thereof”

b.         Bahr v. Kohr:  was D asserting a general denial or an affirmative defense, b/c it means it is in issue or not?  There was a J secured by land, D conveyed it to his wife to clear title and at trial tried to use ev that it was separate property (P sued for a fraudulent conveyance).

i.          separate property is not an affirmative defense and does not have to be specifically pled.  When P sues for fraudulent conveyance of property between a H and W, then he should know that the character of the title is in issue.

ii.          if the D’s defense simply rebuts an element of P’s claim then it is not an affirmative defense

iii.         if D is not sure if it is an aff defense, plead it any as one, there is no punishment for overpleading.

2.         it may not be enough if D wants to contest more, some things must be specifically pled:  a “special denial”

a.         Rule 94 – affirmative defenses must be specifically pled b/c they raise new facts and new areas of law (an independent reason at law that precludes recovery)

i.          Eckman v. Centennial Bank:  an aff defense is not part of the P’s proof.  Under DTPA there is a large business exception that says companies with $25 M or more cannot sue under DTPA = no standing to sue as a consumer.  D wants it to be P’s burden to prove that it doesn’t fit the exception.  P is not required to prove the inapplicability of this, it is an affirmative defense for D to plead (this is not an element of the claim).

b.         Rule 93 – verified specific denial of the listed things here (if not verified, and no one objects, then it was tried by consent and the other waives the right to complain)

i.          Bauer v. Valley Bank of El Paso:  Bank sued promissory note, D generally denied and pled aff defense of no reliance on guaranty.  P never put on any proof of the K at trial – never had to b/c D failed to follow Rule 93 – Rule 93(7) says if you want to attack lack of consideration then verify it.  Rule 93(9) says if you want to attack the execution then must verify it.  If D doesn’t swear to it and put it in issue then the P doesn’t have to prove it.

-examples – no authority to sign the K, no capacity to be sued – Rule 93(2).

ii.          Nootsie v. Williams Appraisal:  capacity means it has legal authority to act; standing refers to a person who is grieved, regardless of legal authority to act.  D failed to specifically verify the capacity issue as required in Rule 93.  And the P here as the agency granted power to enforce statutes has standing to sue.  (if not sure, plead both).

iii.         Echols v. Bloom:  D pled a matter in Rule 93 but didn’t verify it, P failed to except, is it in issue?  Under Rule 90, if a party fails to specially except they waive the right to object.  Failure of consideration was pled as an aff defense under Rule 94, but listed in Rule 93 to be verified.  Here it was sufficiently pled affirmatively so it is not defective; but it was tried by consent.

-when a party fails to plead something, then brings ev of it at trial, the other side fails to object, and it goes to the jury = tried by consent (must object to the jury charge – if you don’t then it is tried by consent) – if objection is sustained then move to amend pleadings, court will allow trial amendment unless the other side is prejudiced.

iv.         Rule 166 – is the trial amend rule (before trial it is a motion for leave to amend pleadings – if within 7 days need ct permission).  Trial amend is freely given unless opposing side can show prejudice = hard to prove (but claim no witnesses, no discovery, no defenses, and no notice).  Some court says that you must first move for continuance to test the sincerity of the trial amend.

-on remand one can amend any and all pleadings

-an amended pleading cannot incorporate by reference a prior pleading – it just adds to it

c.         Rule 54 – specific denial of each condition precedent (a general denial doesn’t put in issue the non-performance of a condition precedent)

i.          Dairyland Ins. v. Roman:  P pleads that it complied with all conditions precedent for recovery on an uninsured motorist claim.  D never complained – but P never met all the notice requirements.  D must specifically say what P did not do, not going to require P’s to plead every single condition precedent that they did.  So when D fails to file a special exception to the condition he has waived the right to object and the P’s assertion is taken as true – need to not be proved at trial.

-Rule 93(15) instead now applies to all auto ins cases, not Rule 54

-DTPA has a condition precedent of notice

-You waive pleading defects for not specially excepting if you are a party seeking reversal on that account.  Like if D improperly pleads by stapling a copy of policy to the answer and says that P didn’t meet conditions precedent, then P must specially except to this.  (Rule 90 says your objection is waived on appeal)

                        d.         Rule 95 – an accounting and the defense of payment

            J.          Amended Pleadings

1.         Burnett v. File:  one party attempts to amend and the other objects but must show prejudice.  P never alleged aggrevation of pre-existing injury caused by the accident but tried to show evidence of it at trial.  Trial court refused amend.  P sought to amend just before jury instructions.

a.         in petition P said original injuries, not aggrevated (D had experts on original injury to say accident could not have caused it)

                                    b.         trial court said D was prejudiced – no witness, discovery

                                    c.         Trial court did not abuse its discretion

d.         if it is a pure question of law the court shall freely allow a trial amend (b/c everyone should know the law so can’t be prejudiced)

2.         Greenhalgh v. Service Lloyds:  can you amend pleading after jury returns the verdict?  Yes.  Here jury awards more damages than asked for, so court should allow amend to conform to the award, then the court will enter the J.  This is not abuse of discretion b/c there is no surprise (D prepared the same for all types of punitives).  Amend between verdict and final J.

a.         Rule 190.2 – says that this holding doesn’t apply to level 1 discovery cases = < $50,000 and no custody, miniscule discovery.

K.        Supplemental Pleadings – a pleading to respond or reply to a preceding pleading (ex. P sues, D counters, P asserts an affirmative defense to that counter in a supplemental pleading).

                        1.         not used a lot today, usually they file amended pleadings

            L.         Specialized Pleadings

                        1.         sworn account petition

a.         Rule 185 – certain creditors can plead, D must specifically deny, and if not then the P’s pleadings are taken as true = dispositive of the case.

b.         any action founded upon an open account or other claim for goods, personal services rendered, labor done, labor furnished, material furnished (a systematic record must be kept and support pleadings with affidavit).

c.         D must file a specific, verified, sworn denial

d.         Airborne Freight Corp v. CRB Marketing:  P sues on an account and included invoices and affidavit; D answered in an unsworn general denial.  Since D never specifically verified a denial then it was not in issue = P’s pleadings are prima facie proof and ev and taken as true, no other evidence is needed.  If D tries to amend, then P objects, move for continuance and claim prejudice (then it is preserved for appeal).

2.         Trespass to try title – it’s a formal pleading and must use the language that the rules say to (Rule 783 – 809)

a.         an action to determine title to real property, D must plead “not guilty” – can disprove P’s title and prove D’s title (if D generally denies then he can only disprove P’s title and cannot prove his own)

b.         Hunt v. Heaton:  Rule 791 says that either party may demand an abstract from the other and Rule 792 says that if demanded it must be filed within 30 days.  Here Hunt took 5 years to file it – court would’ve granted additional time had he asked – but he did nothing.  He was relying on a statute that said to authenticate ancient documents they must be filed 3 days before trial.  Court says this case was involved in discovery not authenticating title.

i.          b/c he didn’t timely file his abstract he cannot rely on it at trial.  Rule 793 says what it should contain.

 

V.        VENUE

            A.        The basic venue scheme

                        1.         venue could be fixed in the county of D’s domicile

2.         after 1995 D can transfer to another county for convenience of parties, witnesses and in the interest of justice

                        3.         CPRC §15.002

                                    a.         in a county where all or subst part of event occurred

                                    b.         D’s county of residence at time action accured

                                    c.         D’s (non-natural) principal office

d.         if neither 1,2,3 then in county where P resided when cause of action accrued.

i.          old rule was that an adverse venue ruling could be appealed immediately, but not any more b/c it was too busy

                        4.         due pleadings – must file venue challenge first, before answer, etc.

5.         some statutes create their own causes of action and have their own venue provisions (general rule, mandatory, permissive)

                                    a.         “shall be brought” = mandatory

                                    b.         “may be brought” or “venue shall lie” = permissive

6.         if D fails to object to venue, it is waived unless D challenges that an impartial jury cannot be picked (Rule 257 it is not subject to due order – it is a separate basis for transfer).  P may use this one too.

                        7.         Where D resides –

a.         Mijares v. Paez:  this D claimed to have multiple residences, one home in El Paso and the other a dorm at TX Tech in Lubbock.  D moved to transfer to El Paso.  Nope – he was registered to vote in Lubbock, home address was his dorm #, etc.  How to make out a residence:

                                                i.          make a fixed place of abode

ii.          person occupies or intends to occupy consistently over a subst period of time

                                                iii.         which is permanent, not temporary or transitory

                        8.         Where D has principal office –

a.         where the decision-makers are of the corp within this state, where the conduct the daily affairs in TX.

b.         In Re Missouri Pacific Ry.:  did P sue in the proper venue where D had an office?  Could the D have more than one?  Statute says “a” principal office.  And there is mandatory venue in FELA – suit must be brought in the principal office.  So there could be more than one.

i.          nerve center test – the ppb where the business decisions are radiated to constituent parts, where officers direct, control and coordinate all activities.

            ii.          where are the decision-makers?

iii.         when P fails to establish a principal office, the burden shifts to D to prove venue in one county is proper.

iv.         so the county the D wants is “a” principal office that is mandatory under FELA

v.         mere agent or employee is not enough; P must show the decision-makers are there and that its office is not subordinate to another, the office must have more that low level daily activities.

            B.         Exceptions to the general rule

                        1.         Mandatory venue statutes (mandatory trumps)

                        2.         Permissive venue statutes (P’s choice controls)

                        3.         if D can transfer for convenience or impartial trial cannot be had

a.         weigh economic and personal hardship, as long as it won’t work an injustice on any party

                                    b.         forum non conveniens is for outside of TX

4.         TX Rule of Judicial Admin, 11 – allows the court to transfer cases to their court for pre-trial (to consolidate similar cases)

                        5.         time limits preclude a 2nd transfer of venue

6.         CPRC §15.035 – parties cannot K for venue (but when a K is executed in a certain place and performed there, it establishes venue)

                                    a.         CPRC §15.020 – if K is $1 M or more, then can K venue

            C.        Multiple Parties

1.         P sues multiple D’s – venue is proper to one then it is proper to all, only exception is if a co-D can assert mandatory venue provision

2.         Multiple P’s – CPRC §15.003, each P must separately establish proper venue; and if any P cannot then can’t join unless:

                                    a.         joinder is proper

                                    b.         won’t unfairly prejudice any party

                                    c.         there is an essential need

                                    d.         the county is a fair and convenient venue

i.          this is the only statute that allows an interlocutory appeal b/c not really appealing venue, it is appealing proper joinder (must appeal within 20 days of order and app court has 120 days to rule)

ii.          Surgitek Bristol-Myers v. Abel:  104 P’s tried to join this suit for breast implants.  D wanted to transfer them all to different courts – trial court transferred 103 to D’s principal office.  Can immediately appeal under §15.003 just like it says, to review de novo the venue hearing.  The P’s must meet the 4 tests and here they can’t meet the “essential needs” b/c it is not indespensibly necessary for the P’s to join in this particular county.

-trial court ruling on venue shall be reversible error

- see HANDOUT ON VENUE OBSERVATIONS

                        4.         Multiple claims

a.         if cause of action #1 is mandatory and #2 is permissive; if P sues in proper venue then venue is proper as to all claims that are transactionally related (but if there’s a mandatory then must go there, and if all permissive then P’s choice prevails).

                                    b.         counterclaims, cross-claims, and 3rd party claims

                                                i.          venue of main action establishes them all

ii.          if D joins a 3rd party, then P’s claim will be proper venue if same transaction or occurrence (common question of law and fact)

            D.        Venue Pleadings

1.         Rule 86 – motion to transfer venue filed with or before any other plea, pleading or motion (except sp app)

a.         must specify that it is improper, and why and where D wants to transfer to (may be supported by affidavit)

b.         it is a paper contest usually, no evidence or live testimony, just arguments of counsel

                                    c.         must give 45 days notice for the hearing

d.         any response or opposing affidavit must be filed 30 days before hearing (so get 15 days to respond to motion); then can reply to the response and must do it 7 days before hearing.

e.         burden of proof – P has the burden to show venue is proper, D has burden to show why transfer to another county

2.         Rule 87 – all facts at hearing will be taken as true if they are properly plead unless specifically denied (so must specifically deny the other parties venue facts).

                        3.         Venue rights

a.         Acker v. Denton Publishing:  this is a review of a venue hearing ruling.  P sued for libel and D sought to transfer to Denton County where he said it was mandatory.  P sued in Tarrant County b/c he said that one D resided there.  But come to find out that there was no cause of action against that D, so venue was not proper in Tarrant County.

i.          no longer need to prove your cause of action at the venue hearing; reviewing court will look at the entire record and if venue was improper then it shall be reversible error.

ii.          Rule 87(5) – no rehearing of venue at the trial level, unless a later added party can prove impartial trial cannot be had or that there is a mandatory venue that wasn’t available before.

iii.         if SJ entered for a D b/c there is no proof of a cause of action, the app court looking at entire record can reverse the ruling b/c venue was not proper in the first place if that D isn’t there.

b.         Ruiz v. Conoco:  the procedure that the leg created in allowing the app court to review is fundamentally flawed; but we have to follow it.

c.         must challenge venue before asking the court to rule on anything else; if the court does then the venue challenge is waived.

                                                i.          if one D waives that is not a waiver for the co-D

ii.          if P nonsuits after D moves to transfer venue and doesn’t put on his own venue facts, D’s venue facts are taken as true (so P must first deny D’s venue facts before it can nonsuit and file in another county).

d.         Wilson v. TX Parks and Wildlife:  P files in a permissive venue, D finds another permissive venue and moves to transfer.  P’s choice controls though.  But if the trial court transfers it then it is reversible error.  Can only transfer if it is brought in an improper venue.

i.          once P chooses venue, it is proper, unless there is a mandatory provision.

e.         In Re Masonite Corp:  hundreds of homeowners sued builders.  D’s moved to transfer and to sever cases.  Court denied this but then on its own motion transferred the cases to 16 places.  Usually each P must establish proper venue, but D never complained here so they waived the challenge.  D’s evidence that transfer to another venue was proper was sufficient.  D sought mandamus to make trial court transfer to where it wanted.

                                                i.          balance judicial economy and parties rights

                                                ii.          a trial court cannot transfer venue on its own motion

iii.         mandamus is not an appeal, it is an immediate review of a trial ruling, an original proceeding, that is proper here b/c there are exceptional circumstances.

f.          Geophysical Data v. Cruz:  some D’s contest venue, others don’t, so can the whole case be transferred?  If the case is severable, i.e. severable causes of action then can transfer part and keep part.  But if the cause of action is so interwoven, as here, that all the D’s are needed for P to obtain complete relief then transfer the entire cause.

i.          Rule 89 – trial court to determine if it is a joint cause of action or severable.  P does not have to bring all the claims he has in one case (but it is cheaper).  For Rule 51 permissive joinder of D’s the test is if they arise from same transaction and common question of law and fact.  For Rule 39 compulsory joinder of D’s is complete relief cannot be had among those already parties.

                        4.         Waiving venue rights

a.         Bristol-Myers Squibb v. Goldston:  agreement of old case told P’s if they opted out of settlement then they had to file in this case.  It was a K for venue that if suit was brought it would be proper venue.  Over time the law changed, but venue is fixed at the time the suit is filed.  Venue is not a right it is procedure.

                                                i.          usually cannot K for venue – against PP

ii.          no error here b/c the agreement made venue in a place that would’ve been proper anyway (at the time of the agreement).

            E.         Change of venue b/c impartial trial cannot be had – Rule 257

1.         b/c of prejudice in the community, etc; can be made at any time either party becomes aware (no due order); Rule 258 says if no response is filed contesting the motion, then it must be granted; motion needs 4 affidavits (movant and 3 credible persons in the county, with facts and reasons why no fair trial); there can be reasonable discovery.

2.         Union Carbide v. Moye:  do you get a live hearing or paper proof?  2000 P’s sued for exposure to toxic chemical.  There was reasonable discovery, and D wanted a full evidentiary hearing for venue hearing.  P moved the day before the hearing for only written submission and judge agreed.  The court here does not decide what type of hearing you get.

a.         D here moved for continuance b/c didn’t have time to prepare only a written brief, he had all the evidence for hearing.  It was abuse of discretion to deny the continuance.

b.         what proof to be presented? – affidavits, stipulation, fruits of discovery (depos, admissions, ROGS, production, disclosure, etc.)

c.         Rule 259 says you have to say where to go – to the county that is proper and adjoining, if none then any county of proper venue.

d.         no per se reversible error for Rule 257 motions, have to show it resulted in an improper judgment for harmless error.

                        3.         multi-district litigation

a.         Rule 11 of Judicial Admin says that courts can consolidate cases for pre-trial issues regardless of venue.

 

VI.       PARTIES (not required to join all persons interested – but they usually do)

A.        Rule 51 – as between one P and one D, there can be no misjoinder of claims.  Can bring all claims whether transactionally related or not.

1.         Jameson v. Zuehlke:  cow farmers cows went onto crops of neighbor, so he captured one and the cow farmer filed charges – but dropped.  Then crop farmer sues for malicious prosecution, they later got into a fight at a bar, so the crop farmer now wants to join an assault claim.  Rule 51 says may bring all claims, so ok.

                                    a.         but if there were multiple parties have to meet other rules

b.         proper joinder of claims = if they came from same transaction or series of transactions and there are common questions of law and fact.

c.         if you think there is a misjoinder, file to sever through a plea in abatement.

                                    d.         severance or separate trial?

i.          severance = Rule 41 says it is 2 different causes, there are no distinctive hearings.

ii.          separate trial = Rule 174(b) says in a separate trial there are distinctive hearings.

iii.         res judicata could affect it b/c they should’ve been litigated together b/c transactionally related.

                                                iv.         cannot split or sever a single cause of action

v.         only sever when there are multiple causes of action and watch out for res judicata (b/c it requires the litigant to try all transactionally related claims or be barred forever).

            B.         Joinder of Parties by P

1.         Rule 51(b) – prohibits joinder of insurance company for tort against a D b/c they are not directly liable (so cannot be named as a party).

a.         Russell v. Hartford Ins.:  neg for auto accident.  P sued driver and insurance.  Trial court severed cause into (1) between P and driver and (2) between P and insurance.  In #2 there was an SJ for insurance b/c they were not directly liable, it only has to indemnify the insured.  The 2 claims did not arise from the same transactions or occurrence.  No cause of action directly against insurance company b/c no privity.

                                                i.          arising out of same transaction or occurrence

                                                ii.          common question of law or fact

iii.         seeking jointly or severally or in the alternative (always have this one).

iv.         if P has a cause of action from same transaction must he bring them all?  If none are barred by SOL, then can later amen the petition; so don’t force the P to sue on all.  But if P never sues on the other causes and get a final judgment then res judicata bars it.

v.         counterclaims? – D must assert the transactionally related claims within 30 days after answer, even though they might be barred by SOL.

            C.        Joinder of Claims by the D

                        1.         when is it necessary for the D to join claims against the P?

2.         Rule 97 – compulsory counterclaims, if D’s claim arise from the same transaction or occurrence and it doesn’t require bringing in another person, then D must bring it.

a.         res judicata tells the P to bring all his claims, Rule 97 says same to D) b/c if not brought it can’t bring it later.

3.         Jack Brown v. Northwest Sign:  P sued D in Idaho and got a default judgment, now that D is the P in TX to sue b/c of contract.  There was a logical relationship between all the contracts.  So these claims arose out of the same transaction or occurrence.  A party doesn’t have the right to let a counterclaim go and get a default to reserve the counterclaim for his own place and time.

                                    a.         if you’re taking a default, then you are giving up all claims

                                    b.         court assumes that the rules are the same in Idaho.

c.         a party must assert against an opposing party all claims transactionally related within the juris of the court and that are not the subject of a pending lawsuit, and that do not require the joinder of persons outside the juris of the court.

                                    d.         Rule 97(e) cross claims are permissive

i.          cross claims can be compulsory counter claims and if so they must be brought

                                                ii.          and co-parties can sometimes be opposing parties

            D.        Permissive Joinder of Parties by the D

                        1.         3rd party actions: when D sues another not yet a party.

2.         Rule 38 – D may add another 3rd D if they are or may be liable to the D for part or all of the P’s claim (if a party doesn’t contest the improper joinder then it is waived).  A 3rd party claim is not compulsory.  Must file within 30 days from original answer or if after then leave of court is required.

a.         P can bring a 3rd claim against another from a counterclaim of a D.

3.         Heisey v. Booth:  P sued on a sworn account, D filed a sworn denial and then adds a 3rd party D b/c of agency.  Original P never sued the 3rd D, so there is no obligation of 3rd D to bring defenses, so 3rd D filed a general denial (that was enough b/c the claim against him was based on K not the sworn account).  Judgment entered on what P and D agreed, and 3rd was a no show.  The D/3rd P was required to put on proof of the agency to make the 3rd D liable – so the judgment against him was wrong.

a.         but 3rd D is estopped from denying the judgment entered between P and D, so third party is bound by that.

                                    b.         3rd D may assert the defenses that the original D forgets.

            E.         Intervention – voluntary joinder of new parties

1.         Rule 60 – a nonparty may file a petition in intervention to become a party; must be done timely; existing parties can move to strike the intervention (the intervenor must have a justiciable interest).

2.         Mulcahy v. Houston Steel Drum Co.:  the intervenor here wanted to join b/c he was an officer, s/h and director of the corp.  This was a quo warranto action – brought by the state to challenge corp existence.  The corp defense was bad books.  An intervenor must have been a proper party and he wasn’t here b/c no standing to bring a quo warranto = no justiciable interest.

a.         he has a remote interest, ostensibly to be protected by the AG, and even the intervenor must independently establish venue.

F.         Interpleader – when a stakeholder has conflicting claims to the property, chooses to tender property to the court and asks the court to adjudicate the rights.

                        1.         CL – only a disinterested person could bring it, but no atty fees

2.         Rule 43 – can be brought by interested or disinterested, and only disinterested may recover atty fees (interested may not).  The interpleader names the other claimants as D’s, the AIC is the value of the property.  And unrelatedness of the claims is not grounds for objecting.

3.         Downing v. Laws:  P interpleader is escrow agent and sues buyer and seller.  He was interested b/c he was to get a commission, but still allowed to bring an interpleader action.  He held the earnest money deposit, both buyer and seller claimed the $, he could’ve paid the wrong person – so he interpleads to let the court decide.

a.         purpose of the interpleader – permits an innocent stakeholder to let rival parties fight it out.

                                    b.         interpleader acquires dominant jurisdiction

            G.        Compulsory Joinder of Parties

                        1.         when are you required to join parties?

2.         res judicata doesn’t mean to being al claims transactionally related against all parties, but sometimes you are required.

3.         Yandell v. Tarrant State Bank:  Rules 30-32 about sureties – one who backs up the obligation of another (a guarantor, co-maker/signer, endorser, assignor).  Rule 30 says all these people are not primarily liable but may be sued alone or with principal.  Rule 31 says that no surety may be sued without the principal.  But CPRC §17.001(b) says that the back up guy may be sued without joining the principal obligor if principal obligor is a nonresident, unknown, dead, or insolvent.

a.         Rule 31 says that compulsory joinder of principal obligor if you are going to sue the surety (but the right to join the surety can be waived – and it was here b/c it said so in the K).

b.         D must file a sworn plea in abatement to say principal was a necessary party (and they never complained in the first lawsuit)

c.         “payment guaranteed” means that you can sue the surety first without the maker; “collection guaranteed” under the UCC means that the maker is sued first, then the surety.

4.         Cooper v. TX Gulf Industries:  Rule 39 governs when the joinder is not in the commercial context, as here.  Person shall be joined if complete relief cannot be granted b/c of their absence or if he claims an interest and his absence impedes his ability to protect that interest or leaves the other parties to substantial risk of double liability.  Trial court determines when it is feasible to continue without them.  This suit in this case was to rescind and cancel the K for sale of land by the husband against the grantor.

a.         that was suit #1, it was dismissed; now in suit #2 its exactly the same but he and his wife sue b/c they were granted the property jointly.

b.         the property was joint management control property, and so the wife was needed in the first suit.

c.         the husbands claims are barred by res judicata, but the wife’s claims have not been litigated

d.         husband did not virtually represent wife (family code abolished it) – but is still survives for trustees and class actions, etc.

e.         before this case any judgment was void if the proper parties were not joined, it was fundamental error (so serious like lack of SMJ that it can be raised for the first time on appeal)– not any more…

            f.          joinder of parties is not a jurisdictional question

5.         Pirtle v. Gregory:  TX S.Ct. is revisiting the fundamental error rule of compulsory joinder and says now there is no more fund error for misjoinder of parties.  A party must preserve the error for appeal.

a.         not a lot of things are fund error (only SMJ or if there is a strong public interest).

6.         Minga v. Perales:  App Ct. 2 years before said in this case there was fund error when by statute there was a requirement to join the heirs at law and they didn’t.  Since D died intestate his property passed to his heirs immediately.  P sued admin of estate b/c he said he owned it by adv poss.  A judgment cannot bind someone who is no represented.

            H.        Class Actions (trying to avoid compulsory joinder and multiplicity)

1.         Rule 42 – says the court must determine when a class is to be certified.

a.         numerosity – so numerous that joining them all would be impracticable.

b.         commonality – there are common questions of fact and law, but don’t have to be exact.

                                    c.         typicality – all the claims must be typical of the class

d.         adequacy – the named members must adequately and vigorously represent the class, must have adequate counsel and be able to finance the action.

                                                i.          must meet these 4 and also one in section (b)

                                                ii.          unnamed members can opt out, or even intervene

iii.         unnamed P don’t have to establish venue, they are virtually represented and bound by the judgment.

iv.         any proposed settlement must be approved by the court, notice given to class, and class is entitled to know how mush the atty is getting paid.

2.         Weatherly v. Deloitte and Touche:  these P’s sought certification of their class b/c they bought stock and lost money on their investment.  P’s met all the requirements here, so for the trial court to deny the class was an abuse of discretion.  Commonality, adequacy, typical, and numerosity.  And a class action certification ruling is immediately appealable.

            I.          Consolidation – Rule 174

1.         trial court has the authority to consolidate cases is there is a common question of law and fact.

2.         make a motion for consolidation if you think so; if not make a motion for severance (the inquiry is whether the joinder ruling will further convenience, avoid prejudice and promote the ends of justice).

VII.      RES JUDICATA

            A.        Introduction

1.         res judicata bars a party from relitigating a claim that has a final judgment or transactionally related and should’ve been brought.

2.         collateral estoppel bars relitigating of facts actually litigated and essential to the judgment.

                        3.         these are affirmative defenses and must be specifically plead

                                    a.         assert them in an SJ b/c no need to continue

            B.         Doctrine of merger and bar (claim preclusion)

1.         TX uses the transactional approach (ought to bring in one lawsuit transactionally related claims within the court’s jurisdiction)

                        2.         others

                                    a.         if substantially the same evidence would be used

b.         pragmatic = expectations of client – should they have been brought together

c.         procedural duty = can’t split a cause of action so look to see what a cause of action is.

3.         Barr v. RTC:  execution of a promissory note and personal guarantee on the note here.  P first sued on the not and that suit was dismissed.  It later amended petition to add a new D, this one.  Should the 2nd suit be dismissed b/c of res judicata?  TX now adopts the transactional approach (its like a compulsory counterclaim).

                                    a.         the note and the guarantee are in the same transaction

                                    b.         this is res judicata = D gets an SJ

                                    c.         policy – avoids vexatious litigation

                                    d.         P taking a non-suit is not a final judgement for res judicata

e.         also need a final judgment from a court with competent jurisdiction (void judgment is no basis for res judicata).

f.          CPRC §31.005 – judgment from a JP court cannot be a basis for res judicata.

g.         “transaction” = not a sequence of events, it is determined pragmaticially by facts in time, space, origin or motivation; whether these claims form a convenient trial unit that would conform to the parties’ expectations.

4.         Getty Oil v. INA:  P was sued and its insurance carrier settled with the other party.  Now P wants to sue its insurance carrier again and also the insurer’s insurers for more $ to cover the original judgment.  This action was all from the same accident and K = same transaction; but…

a.         P could not have joined the third party insurance co in the first suit so it is not precluded by res judicata against them (but for its own primary insurance carrier it is barred by res judicata – b/c it could’ve been a cross claim).

b.         “no action” K provision = cannot sue insurer until a final judgment has been entered against insured.

c.         a final judgment is res judicata despite the pendency of appeal (Scurlock Oil).

5.         Martin v. Martin, Martin & Richards:  first suit to declare a K between these partners void was dismissed with prejudice (declaratory judgment).  Now the P is suing for a subsequent breach of that K – res judicata?  No, the first suit was not res judicata of this one b/c the dismissal with prejudice doesn’t amount to the court saying the K is invalid so it won’t preclude actions for subsequent breaches.

                                    a.         with prejudice means cannot file it ever again

b.         if you have a dec action and then a cause of action accrues do you have to amend to add it?  No, it won’t be barred by res judicata.  This case stands for the rule that you can sue for subsequent breaches in a new cause of action.

6.         merger and bar = a final judgment will serve as a bar to relitigating a claim or transactionally related claim in a court with competent jurisdiction.

a.         if P wins suit #1, then all other claims by P are merged into that final judgment.

b.         if D wins suit #1, then all other claims by P are barred by the prior judgment.

            C.        Collateral estoppel (issue preclusion)

1.         this bars “facts” actually litigated and that were essential tot he judgment from being relitigated (different from res judicata).

2.         Rios v. Davis:  when is a fact finding “essential”?  Here the suit was based on a personal injury from an auto accident b/c of neg.  D claims res judicata.  Another party sued this same D for damages to its car in suit number 1, and D in that suit joined this P for contrib neg.  Court denied recovery all around.  The finding in that first suit was that this P was neg, and it was not essential to the judgment.

a.         test = take the fact determination, ignore it, then see if you’d get the same judgment (if you don’t get it then it is not essential).

b.         it is not res judicata in a subsequent action, where the finding not only was not essential to support the judgment, but was found in favor of the party against whom the judgment was rendered.

c.         collateral estoppel will not bar a party who couldn’t have appealed.

d.         now = same result a lot quicker in CPRC §31.004 = a judgment on a fact in a lower court is not res judicata and is not basis of estoppel in a district court.

e.         offensive use:  no TX S.Ct. case, but appellate courts says it is OK (like multiple P’s sue the same D and not have to prove their case?!)

            D.        Doctrine of Mutuality

                        1.         res judicata requires that the parties be the same

2.         collateral estoppel requires that the party against whom you are asserting it must have been in the previous suit (but the party asserting it doesn’t have to be).

3.         Hardy v. Fleming:  P previously lost a workers comp case b/c the court found he did not have an injury.  Now P sues his doctor in med mal.  That P suffered injury could be material/essential.  Fact finding in suit 1 was adverse = no injury?  D was not in suit 1 = for collateral estoppel there is no requirement of mutuality (it is not an element of collateral estoppel).

            E.         What parties are bound?

1.         Benson v. Wanda Petroleum:  the party and their “privy” are barred from re-litigating.  Here there was an auto accident with 3 involved.  In the first suit one driver sued this D and lost.  Now the other driver is suing the same D.  D claims that this P is barred b/c of the first lawsuit.

                                    a.         the 2 injured auto drivers were not in privity

b.         these P’s were not a party to the judgment (must be a party to the judgment to be barred from re-litigating).

                                    c.         this P is not bound by the neg fact issue in the other case

d.         due process = P was not represented in the other suit, did not control or take part, his interest was not adjudicated, everyone gets their day in court.

e.         a person who was not a party may be bound b/c of their privity

f.          also no virtual rep here b/c this P’s interests were not adequately represented in suit #1.

            F.         Election of remedies

                        1.         it is an affirmative defense = must be specifically plead

a.         it is when a party has two or more co-existent but inconsistent remedies ad they knowingly choose one in which event they are precluded from thereafter exercising the other remedy.

i.          can plead inconsistently, but your actions can preclude some kinds of recovery.

2.         Bocanegra v. Aetna Life Ins:  P had previously settled a workers comp case, now sues insurance company for the rest of the bill.  Settlement was of a general injury but didn’t cover medical expenses.  She and her doctors did not know if the injury was work-related or not.  So her first claim was not an informed decision.

a.         since P did not make an informed decision on her remedies, the D cannot now defend with the election of remedies.

b.         elements = one successfully exercises an informed choice between 2 or more remedies, rights or states of facts which are so inconsistent as to constitute manifest injustice.

c.         a settlement could bar relitigation by collateral estoppel if the court signed the settlement as a judgment or the parties agree it is final.

                                    d.         also, in this case there was no threat of double recovery.

3.         Hanks v. GAB:  business knowledge now; there was an alleged breach of K – D sold his business to P and agreed not to compete.  He later competed and the P decided not to make the last payment.  P sued for injunction (K was valid and we don’t want him to compete) and also to be excused from the last payment (rescission).

a.         breach of K and rescission are inconsistent remedies, and can only choose one or the other.

b.         P here would’ve gotten a double recovery if the election of remedies doctrine had not applied.

G.        Law of the case doctrine – in the same lawsuit, once a question of law has been decided that determination will be treated as correct through all subsequent stages of litigation unless (1) it was clearly erroneous or (2) the matter comes before an appellate court.

1.         like = trial à appeal à remand à app = still bound by question of law previously decided

                                    a.         even when different appellate court but same suit

2.         Hudson v. Wakefield:  here a bank refused to honor an earnest $ check for the sale of land.  The trial court said as a matter of law there was no K b/c of the bad check; then app court reversed and said it was a fact question.  On remand the trial court allowed D to make an amendment to add more defenses.

a.         usually the remand narrows the issues, but only when there is only questions of law and the trial has been had

                                    b.         in this case it was an SJ and they were fact questions

                                    c.         on remand parties are free to amend (justice says so)

 

VIII.     DISCOVERY

A.        Scope of discovery – find out everything possible, freeze testimony, put useful evidence in admissible form, harass?

1.         discover all matters that are relevant to the subject matter of the pending action (reasonably calculated to lead to admissible evidence)

2.         Rule 192.3 says that it is not grounds for objection that discovery could not be admissible at trial.

                        3.         court may put in place a protective order against bad discovery

                        4.         purpose = to avoid trial by ambush

B.         Strategy – begin with your side, the law, b/c law leads to what facts are needed and what form they need to be in.

1.         know your case first, informal discovery, don’t assume client is telling the truth, budget – determine the costs

            C.        Devices

1.         requests for disclosure, requests for production and inspection of documents, interrogatories, requests for admissions, depositions, and requests for physical and mental examinations.

            D.        Relevance

1.         trial = any tendency to make the existence of a fact more or less probable

                        2.         pleadings define the issues

3.         discovery = broader, any matter relevant to subject matter in the pending action

4.         Jampole v. Touchy:  usually discovery rules are not final judgments for appeals, but you can mandamus a judge on a discovery ruling.  Here P’s wife was killed in an auto accident b/c the gas tank in the rear exploded.  P alleged design defect and sought discovery for production that D knew of alternative designs.  Was the matter relevant for discovery?  Yes…

a.         knowledge of alternative designs of the product are relevant in this cause of action.

b.         doesn’t have to produce the exact model of car, can be any model of car with the same gas tank design

                                    c.         the time period was not overbroad

d.         there is no threat to trade secrets here b/c the P is not a competitor

i.          the trial court abused its discretion in not allowing the discovery in this matter

ii.          court must balance the burden of producing the discovery vs. the need/benefit it will bring to the case.

iii.         a party can move for a PO b/c a request may be unduly burdensome

5.         K-Mart v. Sanderson:  p was abducted and raped from parking lot and sues for neg and gross neg.  South discovery for “any criminal activity” for past 7 years at the store, or criminal activity on any other property the corp owned, and any other incidents.  These are overly broad and burdensome (although they might be relevant).

a.         discovery cannot be used to fish – this would require the D to produce ever single minor offense at every store

b.         relevance is a question of law; burdensome is a question of fact (do the proportionality inquiry)

6.         In Re American Optical:  court here says that the discovery requests need to be narrowly and reasonably tailored to relevant matters.  140 P’s sued for asbestos injuries, and the atty used discovery as a fishing expedition.  P requested every document related to any asbestos related product for 50 years.  Here mandamus is also proper.

a.         the requests here were not tied to a specific product used by an individual P for a specified time period (and no exception for mass tort litigation)

b.         see if burden or expense in production outweighs the need for production

7.         broadness – requests still fairly broad, but no fishing; Rule 192.4 says even marginally relevant evidence may not be discoverable if there’s burden.

8.         burdensome – retrieving info depends on the manner of storage

9.         Rule 192.3(f) – indemnity and insurance agreements are discoverable, policy limits are not relevant at trial, but it is used for settlement leverage.

10.       net worth of a D is relevant and discoverable if punitives are available.

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            E.         Privileged Material (exempt from discovery)

                        1.         There are no CL privileges in TX, must point to a statute or the                                      const.

                        2.         The discovery rules provide for some exemptions/privileges

                                    a.         Rule 192 - core work product is protected (including                                                   atty-client communications, but not witness statements).

                                    b.         Rule 194 - in the requests for disclosure no objection                                                   allowed for work product.

                                    c.         Rule 195 - a testifying expert witness’s info is discoverable                                           (but not a consulting expert).

                                                i.          So the privileges are:  work product, consulting                                                                         experts.

                        3.         Work product (Rule 192.5):  material prepared or communications                                           between party and representative made in anticipation of litigation.                                 Core work product, what the atty does, is not discoverable.  Any                                      other work product is discoverable only if opponent has substantial                                 need for it or can’t get it any other way.  The following is not work                                product:  testifying experts, witnesses, witness statements, trial                                       exhibits, people with knowledge of relevant facts, photos, anything                            created under crime fraud exception to the atty-client privilege.

                                    a.         NATCO v. Brotherton:  when does someone act in                                                                   anticipation on litigation so as to be protected work                                                                   product?  The day of the incident, the day the atty is hired,                                                             or the day you get sued?  Were the witness statements and                                                  investigative reports protected work product?  Flores gave                                                       a 2-prong test:  (1) whether a reasonable person under the                                                        circumstances then exisitng would’ve anticipated litigation,                                             and (2) the party invoking the privilege has a GF belief that                                                litigation will ensue.

                                                i.          Doesn’t have to be imminent litigation

                                                ii.          Need: objective inquiry (if under the circumstances                                                                    then existing surrounding the investigation                                                                                   would’ve indicated to a reasonable person that there                                                        was a substantial chance of litigation) and                                                                                     subjective (same as Flores).

                                                iii.         There is no bright line exception for investigations                                                                      that are in the ordinary course of business (a major                                                                    accident always leads to litigation).

                                                iv.         The dissent would require some notice from the P.

                                    b.         Core work product privilege is perpetual unless waived

                                    c.         Communications used to be case specific, now they all                                                  seem to be work product (but TX S Ct hasn’t said yet under                                         the new rules)

                                    d.         Protected = only atty or rep’s notes that reflect the mental                                                         processes and impressions/opinions of the atty.

                                    e.         Blanket request for a “file” is overly broad; an individual                                                            document is not privileged simply by being in the file.

                                    f.          There is a limited ability to pierce non-work product - ie if                                                         you cant’s get it any other way.

                                    g.         Witness statments are now discoverable (unless it is notes                                                          taken during a conversation and is not verbatim).

                                    h.         In Re Team Transport:  P sued for neg in dumping tires on                                                         his head.  Letter sent to D requesting all investigative                                                      reports, and D says it is protected work product.  P says it is                                         a witness statement and discoverable.  This letter was all                                                             the same witness statement, from the same person with                                                  relevant knowledge of the facts.  The D wanted the old                                                  rules to apply b/c suit was filed before Jan. 1, 1999 - NO.

                                                i.          Applying the new rules will not work a hardship or                                                                    prejudice the D.

                                                ii.          Parties have no vested right in rules of procedure,                                                                      and when they are amended they apply to all                                                                 pending actions.

                                    i.          In Re W&G Trucking:  written statement of D given to                                                  insurance investigator and P wants it.  Another neg suit.  D                                                         says the statement was protected b/c it was between the                                                    client and its rep.  There are no facts here to believe that                                                       the person who gave the statement was a client.  This                                                    witness statement is discoverable.

                                                i.          Witness statements are not automatically                                                                                   discoverable, they are subject to the same rules and                                                                   documents and other tangible things.

                        4.         Expert witnesses

                                    a.         Testifying experts - everything is discoverable (name,                                                     address, opinions, communications, papers, etc), there is                                                           extensive discovery allowed.  A testifying experts opinion                                                     is not protected unless made in anticiaption of litigation.

                                    b.         Lindsey v. O’Neill:  med mal suit, P made requests in                                                    depos of D’s expert.  No rule exists that exempts a                                                                   testifying experts opinions or mental impressions from                                                      discovery if they were not made in anticiaption of                                                                         litigation.  A consulting experts opinions are not                                                                         discvoerable.  When they are “dual capacity” then their                                                  opinions can be discovered if not made in anticipaiton of                                                        litigation.

                                                i.          Dual capacity experts are not considered consulting                                                                   experts for protection.

                                    c.         Axelson v. McIlhany:  consulting only experts opinions are                                                         protected, but not the underlying facts.  An employee may                                                         be a consulting expert, like if they are specially employed                                                          for anticipation of litigation.  If employee is working in a                                                      field that becomes the subject of litigation, then they can                                                             never be a consulting expert.

d.                   Scott v. McIlhany:  parties may redesignate and de-designate experts if time for designating experts has not run out (and as long as there are no employee problems).  A testifying expert may be re-designated as consulting - but if it b/c of payment and condition on settlement then it is against PP and not allowed.

5.         Constitutional privileges – privilege against self-incrimination; the right to decline to answer discovery or otherwise testify if response would establish a conviction or a link in criminal prosecution.  Only for criminal prosecution not heavy money damages.  Litigant may also decline to respond on the basis of freedom of association. 

6.         Public policy privileges – TX rules of evidence and the legislature establish the other privileges (atty/client – TX moved from control-group (the “higher up” persons in a corp) test to the subject-matter test (as long as employee is acting within scope of employment) – this one is absolute except for one crime/fraud exception; husband/wife; clergy; doctor; trade secrets; political vote).  They are either absolute or not absolute (qualified) = a further inquiry.

a.         In Re Continental General Tire:  when trade secret is protected, and what is a trade secret?  P was killed when tire of care blew out, b/c tread separated.  P requested production of a chemical formula for this rubber tread.  Rule 507 requires production of trade secrets only if necessary to prevent fraud or injustice (necessary for fair adjudication of requesting party’s claims).  Requesting party must establish more than mere relevance, it must be necessary and essential to the case and reasonable to conclude that it was.  Show reasonable necessity.  Court may issue a protective order if the trade secret is to be protected, b/c disclosure would be harmful.  P must show it is relevant and necessary to the case.  Here there was no showing that this trade secret was essential the P’s case, so trial court abused its discretion in requiring disclosure.  P can still request the chemical formula under the proper procedure.

i.          Trade secrets are broadly defined as proprietary, confidential information.  Trade secrets are not absolute, it is a balancing test (first opposing party must prove it is a trade secret, then the party requesting it must show disclosure is necessary).  What kind of proof?  Affidavits of experts that they are not able to obtain this info any other way.  This inspection of documents should be done in camera to determine disclosure.  Disclosure ordered subject to an appropriate PO – limiting the disclosure in some way (limit it to parties, attys, experts).

ii.          Rule 76(a) – says that court records are open and available to the public, except documents in camera or otherwise restricted by law.  No court order or opinion issued may be sealed, may only be sealed on a showing of all the following:  seriousness and substantial interest of openness provided it has no adverse affect on public health and safety.

iii.         Sealing documents – not allowed if they potentially affect the public safety or health.  But any party may request court to unseal.

iv.         Are they only non-discoverable between direct competitors (like in Jampole)?  No, it applies to anyone.

7.         Other statutory privileges – hospital committee privilege; medical peer review privilege (other judicial or administrative proceedings); individual/private medical and mental health records are not protected – regardless of privilege (when they are relevant to anyone’s claim or defense); public health and confidentiality requirements; lobbying activities; qualified reporter’s privilege; other public information disclosure - records for those in public office, etc.

8.         Offensive use/waiver of privileges are not allowed – Ginsburg case (can’t put something in issue then turn around and ask for it to be sealed b/c of privilege).  Republican Insurance v. Davis says to waive it the party must be seeking affirmative relief, must be believed that in all probability it will be outcome determinative, disclosure of the privileged info must be the only means by which the party can get it (very restrictive test for offensive use).

9.         Waiver of privileges – offensive use in limited instance, answering during discovery, inadvertently producing the privileged matter.

a.         Objecting during discovery?  Not now, not proper to object to discovery request on the basis of privilege.  Now simply withhold the privilege based on the privilege and inform the requesting party that they are doing so.  Must state the info that has been withheld, the request it relates to, and the privilege asserted.  It is called a withholding statement.

b.         If it is core work product, you don’t have to do anything to claim the privilege, just withhold.  Produce a privilege log.  Then court inspects in camera.  Court may appoint a discovery master though to do all this.

c.         If it is inadvertently disclosed, the party may get it back as long as you make a demand within 10 days after you realize you disclosed.  Used to be under Granada – too bad.

d.         First determine what is privileged.

e.         What about an improper/objectionable discovery request?  There are a variety of abjections:  overly broad, burdensome, not relevant, time or place improper.

f.          Must respond within 30 days from date of service of request.

g.         PO any time in the interest of justice to protect a person from broadness, burden, harm, etc.

h.         Once timely objection is made to a timely discovery response, who presents it to the judge to preserve error?  Rule 567 – a party making objection need not request a ruling, it is up to the requesting party to seek a ruling.

i.          A decision to use privileged info as evidence at trial also waives the privilege and must reveal it to the other party if they intend to use it.  If you withhold the info during discovery then can’t use it as evidence.

j.          Discovery rulings are not immediately appealable, but you can get review through mandamus.

i.          Walker v. Packer:  P sued in med mal, they sought discovery from the D and also from a nonparty.  After 2 years, they filed motion to compel b/c D never disclosed tapes.  There was nothing in the record about a statement of facts as to why the P’s need this.  So P failed to meet its burden.  But, for clear abuse of discretion you must show that trial court could’ve only reached one decision, unreasonably and arbitrarily.  Failure of the trial court to follow and analyze the law and the facts is an abuse of discretion.  No adequate remedy by appeal (appellate remedy is not inadequate just b/c of delay and expense).  No remedy by appeal when appellate court would not be able to cure the error, when ability to present a valid claim or defense is vitiated by the error, when trial court refuses request for discovery and refuses to make it part of the record.

F.         Individual discovery devices…(handout).  When, why, and how do you use them.  No real sequence, but usually start with requests for disclosure.

1.         Request for disclosure  - It is basic info that the parties should disclose – rare that there is an objection and no work product.  See Rule 194…((a) correct names of parties; (b) name, address, phone of any potential party; (c) legal theory and factual basis of claims and defenses; (d) amount and method of calculating economic damages; (e) names, addresses, phone of any person having knowledge of the relevant facts and a brief statement of that person’s connection to the case; (f) specific information about testifying experts; (g) any indemnity and insurance agreements; (h) any settlement agreements; (i) any witness statements; (j) for personal physical or mental injury suit and damages, then all medical bills or authorization permitting disclosure of them; (k) get back all medical bills obtained through authorization).  Can be made any time after discovery period begins.  Provided within 30 days from date of service, except for experts information.  Don’t have to disclose when it is not relevant.

2.         Interrogatories – used to get the Rule 194 info this way, don’t waste them though.  Supplement requests for disclosure with these to pinpoint factual issues of the case (first wave of discovery).  Don’t seek identity of experts with this tool.  Need to be sufficiently specific, not just relevant; don’t be too broad.  Don’t have to do the other sides research like for public records, etc.  Objections must be in writing and made in the time for the response; objections not timely made are waived.  Must be a “real” specific objection, or it is waived.  Ruling – not required to get it, the party requesting the info has the burden.  The 25 includes subparts.  There is a duty to supplement, too.  See handout…

3.         Request for production and inspection of documents and tangible things – next wave to see the documents you’re talking about.  Loftin v. Martin – P sought to obtain various documents and reports (everything related to the defense), which was not specific enough.  D objected as too broad.  A request must seek an actual document.  If the party has no such document, then it does not have to be created to be produced.  If it can be reduced to tangible form, then must do it b/c you are not creating it b/c it already exists.  Party not required to marshal proof, need more specificity.  Discovery is not a fishing expedition.  A party can make a request for all documents, but it must then be further restricted.  The party requesting picks the date and time; the responding party objects, offers privilege, responds in writing to say they will or will not produce at that time.  From non-parties, depo, subpoena duces tecum, etc.  See handout…

4.         Depositions  - next wave, b/c it can be expensive.  Don’t depose everyone.  Only those you determine after the first 3 waves.

a.         ability to do follow-up, don’t get the atty’s screened answer, assess the witness for trial, it seals the facts for impeachment, scope is that same as all other tools.  SEE HANDOUT…

b.         designating experts…SEE HANDOUT…  P designated first and must make them available first to depose.  May choose to produce an expert report and if timely then you defer the time to take your experts depo.

c.         no court approval needed to take a depo, except if you are trying to take it outside the discovery period unless opponent agrees.

d.         must give notice or oral deposition to opponent to all parties and counsel (name of deponent, time and place, obtain reporter, maybe even tangible things to be produced so include a description.  If it is an entity, then don’t need to know the name of the person you need to depose only a description of the matters you want to discover and the entity has the obligation to find the person with knowledge of that info.  Also must include all that will be in attendance; maybe move for PO if you don’t want them there (PO for anything in the interest of justice).

e.         P goes first, notice of depo…identify all that will be there…

f.          If you don’t want your opponents expert to be there then move for a protective order to exclude witnesses from depo who are not testifying.

g.         apex depositions – taking depo of the person at the top of the corp, but usually they have no knowledge of the facts of the case.

i.          Crown Central Petroleum v. Garcia: standard and procedures are: when a party seeks an apex depo, the other moves for PO, the party seeking depo should prove the person has unique or superior knowledge of discoverable info, if they cannot show this then the court should issue a PO and require the party seeking the depo to obtain the discovery through less intrusive methods.

ii.          In Re Alcatel USA: here the party seeking to depose said they had already done lower level depos and had a right to go up the chain.  But the party seeking the depo failed to show why they needed to depose the higher-ups, and they failed to show they used other discovery tools and failed.  They also did not prove that the higher-up had unique personal knowledge.

iii.         Taking depos outside of TX – might be a reciprocity statute in another state to trade out the notice and subpoena of TX for that state.

iv.         Outside the US – can schedule it the same way as in TX, but it doesn’t mean you have the authority to do it; be mindful of the law of the country you are in.

h.         Deposition on written questions instead or an oral depo…(see handout)…

i.          Motions for physical or mental examinations, by a qualified physician…

i.          Coates v. Whittington: whether a P who sues for personal injury is putting in issue mental anguish thereby allowing D to motion for mental examination.  D moved for this and wanted to prove that it was pre-existing, not b/c of the injury.  Movant must show (1) that the party’s mental condition is in controversy in order to move for examination, and (2) D must show good cause.  Moreover, for the first prong: emotional distress that accompanies a personal injury suit doesn’t put it in issue (her claim of embarrassment b/c of her burn does not amount to putting mental anguish in issue).  For the second prong of good cause: it must also be relevant to the issues in the case, nexus between the controversy and examination sought, or if the party moving for it cannot acquire the information through less intrusive means.  Court says D failed to prove both prongs.

ii.          If you refuse to submit it may be used at trial, but the party who did not submit may not talk about it.  This is one of the few discovery tools where you need a court order; and the only one that if you disobey you are not held in contempt.

5.         Request for admissions  - usually the last wave, to conclusively establish a fact issue to take it out of the case.  If party doesn’t admit when they should have, then they can be sanctioned if you have to prove it at trial.

a.         typically used at the end of discovery period, no need for court approval, only proper between parties.  Purpose is to simplify trial to prove something that is not really in controversy (if you can get opponent to admit, then you don’t have to prove it).  When using this tool, should file the requests and the responses with the court = b/c it is in essence a stipulation (need the admission in the record for the appeal).  If the person doesn’t respond it is deemed admitted.  SEE HANDOUT… 

b.         Stelly v. Papania:  P sued b/c he slipped on sidewalk while delivering pizza, sued city and owner of property.  Owner mistakenly admitted in a request that he owned the property, so P non-suited the city.  Then D found out he did not own the property and used that as his defense that the city actually owned it.  A party may withdraw or amend a deemed admission on showing good cause, the party relying upon the response will not unduly prejudice the party, and presentation of the merits of the action will be subserved.  There was good cause here b/c D cannot be liable for the property owned by the city, plus there is no prejudice b/c the P failed to provide notice anyway in order to sue the city.  Therefore, the trial court did not abuse discretion in allowing the withdrawal of the admission.

                                                i.          Deemed vs. express admissions.

ii.          The only party who can use the admissions as evidence against the answering party.

c.         Marshall v. Vise:  whether a party’s failure to object at trial to a deemed admission was a waiver of the effect and use of the admissions.  D never answered the P’s requests for admissions.  A party relying on the admission must object to any evidence offered that is contrary to the admission.  The binding effect of the admission is waived if you fail to object to it.  If you want to keep the admission conclusive then object to the evidence (this objection will not waive the binding effect of the admission).  If you want the jury to know about the admission, then ask the judge to instruct the jury about the admission.

d.         No quantitative limit on the number of requests for admissions (as well as production).  But don’t abuse the discovery process.

e.         If you miss the due date for admissions, then they are deemed admitted.  See Rule 4 for computation of time – the day of the triggering event is day zero and not included, count straight through the calendar, if the last day of the period is Saturday or Sunday or legal holiday then it is due on the next day that is not a Saturday or Sunday or legal holiday.  Rules now provide for mailing, if it is stamped by the due date it must be received 10 days within the due date.

G.        Limits on Discovery…Discovery control plans

1.         Level one = only monetary, $50,000 or less, only get 6 hours total deposition (for both parties, not 6 hours each), unless parties agree to 10, only 25 interrogatories.  This also means P is limited to $50,000 recovery, even if jury gives more.  If you want to change out of level one, cannot file amendment after 45 days before trial (need court approval if within the 45 days, which may be granted for good cause).  If amended, then discovery starts anew!

2.         Level two = the default level, each side gets 50 hours of depositions of parties, experts, and those under control of parties.  When one side designates extra experts each side gets an additional 6 hours, and the rules say that you do not need to use those 6 hours on that new expert.  Only 25 written interrogatories.

3.         Level three = any party can ask for this.  It is court-ordered discovery, whatever the court deems appropriate.  The court must promptly issue a trial date, the dates for discovery period, the limits on discovery, and deadlines for amending and experts.

4.         Can parties agree around these limits?  Sometimes, but there are limits on the agreements, too.  If in Level 1, then can agree to 10 hours depo time.  But there is nothing on whether or not they can agree to go beyond the 50 hours in Level 2.

            H.        The duty to amend your discovery responses

1.         Sanctions may be brought against a party who fails to respond or fails to supplement; cannot use that as evidence.

2.         Duty to supplement when the original response was not true or complete, or the original response is no longer true or complete.  No duty to supplement deposition testimony.  But there is an exception for experts, if they change their opinion then they must supplement their deposition.  It only applies to parties and written responses!

3.         Alvarado v. Farah Mfg. Co.:  worker’s comp case, could not go back to work b/c his job required him to sit for a long time.  He agree with employer to change position, waited, never gave him another job, and terminated him.  He sued.  P sought interrogatories for names, etc. of witnesses.  6 days before trial P subpoenaed 2 witnesses who were not previously identified – D moved to strike one of them b/c she was in the same position as P.  Should this witness have been allowed to testify, when they did not amend?  Duty to supplement to get complete responses unless trial court finds good cause to excuse it.

a.         Rule 193.6 says if party fails to respond or supplement when they had a duty to, may not use the evidence at trial; unless the party shows good cause (three types).  It is now easier to get into evidence at trial – other side cannot be surprised or prejudiced, and good cause excused it.  Can overcome the failure to disclose if you can show the other side is not surprised or prejudiced.

b.         Remedy is to exclude that witness that is not disclosed; and under Rule 215 the trial court has broad discretion to order a wide range of non-exhaustive sanctions.

c.         Rule 193.5(b) when you discover that you need to supplement you have a reasonably promptly time to do it, and if 30 days before trial then it is presumptively too late.

d.         The old rule was that a deposition as well as a live testimony must be excluded, but today you might have an argument that you should be able to use it b/c the other side is not surprised.

e.         Exclusion of information that are the smoking-gun documents is not the only remedy, trial court can enter any sanction that is just under the circumstances.  An inadvertent failure to produce or supplement, court still has authority to exclude.

f.          Excluding evidence does not survive a non-suit.  As a P non-suit and re-file, then those sanctions will not apply.

4.         Transamerican Natural Gas v. Powell:  trial court has authority to impose the “death penalty sanctions,” but when should it?  The parties could not agree on a date when they failed to complete discovery by the cut-off date.  Striking the pleadings is one option for the court when a party moves for sanctions.  There must be a relationship between the conduct and the sanction imposed, and they must not be too excessive.  Remedy by an appeal in this case is inadequate.  This type of sanction on this record is too severe.  Judge should vacate the order for sanctions.

a.         before a court may impose death penalty sanctions, they must try something less intrusive.

 

IX.       DISPOSITION WITHOUT TRIAL

A.        Default judgment – when the D fails to timely answer the complaint (or appear on answer day) and the return has been on file for 10 days.  Or if D files something other than an answer that is overruled, leaving the D without an answer – nihil dicit judgment.  Or if D files an answer but fails to show at trial – then P must prove his case at the hearing (liability and damages). 

1.         Rule 241 for liquidated damages and there is no evidence to be heard, Rule 243 for unliquidated damages then must prove them; so the default only goes to liability if there are unliquidated damages. 

2.         Morgan v. Compugraphic:  if you must put on evidence then have a court reporter there to make a record – if there is no record and the judgment is given for the P, that is an automatic new trial.  Is causation a part of damages – yes in the context of a default judgment (b/c causation is an element).  Must have pleadings for the grounds to support default judgment. 

a.         Prove: D’s time has passed, return of service is on record, what do you need to prove at the hearing. 

b.         A post-answer default (fails to appear at trial) waives the right to a jury. 

c.         Under Rule 239a there is no requirement that the D receive notice of a default judgment hearing!! 

d.         The trial court must send notice of the judgment, and the parties then get 30 days to respond – like a motion for new trial (trial court has the power to grant a new trial in equity).  The clerk has the duty to send notice of the judgment to the last known mailing address of the D (in the case of default judgments).  The 30-day time period begins at the signing of the judgment.  After the expiration of the 30 days the trial court’s power ends. 

i.          Or if service was by publication, then the D gets 2 years to respond. 

ii.          Or if the clerk fails to send out notice, or the D doesn’t know that the judgment is signed = Rule 306a(4) provides for additional time.  If the D can prove in the trial court, on sworn motion and notice, that they did not receive notice within 20 days from the signing of the judgment, then the 30-day period begins at the day they have notice or actual knowledge of it. 

3.         Memorial Hospital v. Gillis is an example of what happens if you don’t follow the rules = the judgment of the trial court is void b/c the power of the court ends at 30 days.  Here Gillis, the P, filed an unverified motion to reinstate on day 40 from the signing of the judgment.  Generally have to perfect an appeal within the 30 days.  P says that since she did not receive notice or knowledge then the 30 days did not begin yet.  Court says that P failed to establish that Rule 306a(4) applied b/c she failed to prove it in the trial court that she did not receive notice after 20 days from the signing of the judgment. 

a.         But it cannot begin after 90 days.

B.         Dismissed for want of prosecution – when P fails to timely act, appear, or diligently prosecute. 

1.         Rule 165a, and you must strictly comply with the rule.  When lawyer or party fails to appear for a hearing that they had knowledge/notice of (places case on DWOP); or failure of party to request a hearing or take action specified by trial court within 15 days of receipt of notice of DWOP.

a.         Rule 6 of the Judicial Rules of Administration: in 18 months a civil jury trial should be tried or disposed of, non-jury should be 12 months; this does not apply to criminal cases, and different time periods for family and juvenile cases.

b.         a party who has been given notice is required to request a hearing or take other action within 15 days from notice of DWOP (and show good cause)

            c.         clerk is to send notice, and same time as Rule 306a

d.         you must file a verified motion to reinstate (an unverified motion will not extend the trial court’s plenary power).  The trial court is required to hold a hearing if it is timely filed, proving “good cause” to reinstate.  It means that if it was not intentional or the result of conscious indifference, but was a mistake, accident, or the failure has been otherwise explained.

e.         if the motion is not signed within 75 days it is deemed overruled by operation of law.

f.          a dismissal for want of prosecution is without prejudice to refile the suit.  But there may be limitations.  OR restriced appeal, or equitable bill of review…

2.         Memorial Hospital v. Gillis:  the provisions of Rule 306a are jurisdictional prerequisites.  P filed a motion to reinstate at 40 days and did not prove it according to Rule 306a(4) and (5), so the trial court’s jurisdiction ended at 30 days.  Thus its ruling on reinstating the case and the subsequent judgment after jury verdict was void.

3.         Stromberg v. Central Welding:  it is a party seeking affirmative relief or their lawyer, or when the trial court tells you to do something and you don’t then = dismissal.  A third instance is that a trial court has inherent power to dismiss a case that is not prosecuted with due diligence regardless of the rules.  In this case there was a 4 year lag time; and Harris County had a 4 year DWOP notice.  P filed a timely and verified motion to reinstate, and without a hearing the trial court dismissed.  P appeals and says that the trial court must hold a hearing – wrong, based on local rules for DWOP the trial court was correct in dismissing without a hearing.

a.         there was no enforceable Rule 11 agreement – any agreement of counsel to be enforceable must be in writing, signed and filed with the court or made of record in open court.  So this was not “good cause”.

b.         if the court dismisses the case with prejudice, then need some post-judgment motion to modify the judgment.

C.        Settlement – vast majority of cases are disposed of by settlement without a trial.  It is a K, the rules of K govern.  Usually they involve money for the P and a release of any liability on the part of the D.  A release in TX only releases those specifically named or those specifically identified in the release.  Also must provide for how the case is going to go away: P will dismiss with prejudice (private), or agreed judgment (for the court to approve of and with the court’s power to enforce).

1.         there is no limit on the time period for the trial court to enforce the judgment.

2.         or also by the P taking a nonsuit…Rule 164: a party seeking affirmative relief can take a nonsuit without prejudice at any time the P has produced all evidence except for rebuttal evidence.  Once the D starts putting in proof it is too late to take a nonsuit without prejudice.

a.         a P taking a nonsuit does not prejudice the right of an adverse party (doesn’t make the counter-claim go away – or sanctions order!).

                        3.         Mary Carter agreements

a.         Elabor v. Smith:  certain kinds of these agreements are void as against public policy.  Under the typical agreement, the settling D pays and will stay in the case to testify and allow for a dollar for dollar reduction depending on the verdict (could get all money back).  Now it seems as though the D can change its position.  But now, these are no longer allowed b/c it skews the truthfulness of the parties and the trial process.  Any settlement agreement of these types are against PP and unenforceable.

D.        Summary Judgment – Rule 166a as a matter of law one party is entitled to judgment as against the other party, it is a final judgment on the merits – so it is subject to res judicata and collateral estoppel.  So the grounds are narrow…

1.         Standards for traditional SJ – movant bears burden of proof that they are entitled to judgment as a matter of law and that there are no genuine issues of material fact that warrant a trial.  Usually see SJ when there are affirmative defenses that preclude a P from recovering (ie SOL, SOF, etc.).  See handout…

a.         parties who move for SJ must give 21 days notice, b/c there is no oral testimony, only paper proof (if it via mail or fax then your opponent gets 3 more days!).  Motion filed with supporting affidavits.  Responding party must answer (response opposing the motion for SJ) no later than 7 days before the hearing with supporting proof – so you get 14 days to respond.  Movant can also reply to the response in opposition (and can serve it at the hearing!).

i.          SJ proof – menu of discovery that is on file, public records, stipulations, affidavits, etc.  Affidavits (Rule 166a(e)) must be based on personal knowledge of the affiant, that they are competent, be made in GF, and must set forth the facts that support the conclusion the affiant has personal knowledge.

                                                ii.          if you want to object to the proof, get a ruling.

iii.         trial court is not required to hold a hearing, it may allow a hearing (and then there is only argument of counsel).

iv.         Mathis v. Bocell:  Objections must be in writing and ruled upon before the motion is signed – only for defect in form.  But defect in substance can be raised first on appeal.

b.         City of Houston v. Clear Creek Basin Authority:  issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.  But a line of cases says that an affidavit on its face that has no personal knowledge is a defect in substance, and can be raised for the first time on appeal.

i.          but the rule says that you must object and get a ruling to preserve error for appeal.

ii.          the hearing may be continued if the nonmovant asks b/c has not had adequate time to gather proof.

iii.         need to make sure that if you are relying on fruits of discovery for SJ, make it part of the record by filing it with the court (it is enough to attach it as an exhibit).

iv.         pleadings are not SJ proof, but you must have the proper pleadings on file to define the grounds for SJ.

                                                v.         improper for court to grant SJ on its own motion.

                                                vi.         there may be a partial SJ, but it is rare.

vii.        SJ may be granted solely on the affidavit of an interested witness; rules allow it if their evidence is clear, positive and direct, credible and free from inconsistencies, and readily controverted.

                                                viii.       See handout…

c.         granted when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law.

i.          on appeal can only raise that movant did not meet burden of proof, or in some courts of appeal that there is a defect in substance.

                                                ii.          not limited to only one motion, but be careful…

iii.         as a general rule there is no appeal if the court overrules the SJ; but the granting is a final judgment to go up on appeal.

2.         “No evidence” motions – TX S.Ct. in Casso v. Brand said that the burden never shifts in SJ proceedings and there are no “no evidence” motions; but then later amended the rules to allow for no evidence motions.  It allows a party to shift the burden of proof to the nonmovant to prove their case.  See Rule 166a(i).  It is a directed verdict on the discovery.

a.         Moore v. K-Mart:  slip and fall case, D filed a “no evidence” SJ that P could not meet its burden.  This type of SJ is essentially a pre-trial directed verdict and use the same standards.  Look to see if the party with the burden of proof at trial has come forward with competent evidence to prove its case.  Competent evidence is that evidence admissible at trial.  Materiality of facts are those that might produce a different outcome.  This court said that the p had put on “no evidence” that was competent, so it granted D’s motion for SJ.

i.          it is proper only after the discovery period has ended.  Until there has been adequate time for discovery, a “no evidence” SJ motion should not be heard.  Some courts says that discovery should only be substantially completed.

ii.          nonmovant only needs to come back with some competent evidence in order to raise a genuine issue (no need to marshal all proof) and deny the no evidence SJ.

b.         Robinson v. Warner-Lambert & Old Corner Drug:  this type of motion places the burden on the nonmovant that he is entitled to trial.  The movant must state the specific element to which there is no evidence.  Conclusory motions are not proper.

i.          the down-side is that it causes the P to do something and prove something, and even gives the D a peek at the evidence.

ii.          there used to be sanctions against the D, that was its down-side.  If you are the nonmovant, then you can move for sanctions.                                       

iii.         can you move for a “no evidence” motion when you are the only one with that evidence for that element?