(1) Pre-Trial Matters

B. Computation of Time

1. Filing Documents

a) Filing is complete upon the date of mailing, upon hand delivery to the clerk, or upon receipt of fax by clerk

2. Serving Documents

a) All documents served on other party must be accompanied with certificate of service

b) Completed when delivered to party’s agent or atty of record, by certified mail upon deposit in the mail, and fax by receipt of fax unless rec’d after 5 pm, then considered served the next day

3. Responding to Filed/Served Docs

a) Calculated from the date of filing or date of service, but that date is not included in the calculation (commentary to rule says something else??)

b) Count holidays and weekends unless this is the last day, and then the date due is the next nonholiday or weekend

(1) don’t count intervening holiday/weekend if response time is 5 days or less

(2) do count intervening holidays/weekend for purposes of 3 day notice of hearing, and for 3 day enlargement of time for service by mail or fax

c) if document was served by mail or fax, add three days (including holidays/weekend) to time to respond

4. Motion to Enlarge Time

a) If a document is sent to the clerk by US mail and properly addressed and stamped, deposited in mail on date due or before, and received no more than ten days, shall be filed by the clerk and deemed timely filed

(1) Legible postmark is prima facie evidence of date of mailing

b) For cause shown the court can enlarge time before the expiration, or if after the expiration, permit the act to be done for good cause shown

II. Does the Court have SMJ?

A. type of case or amt in controversy

1. justice court

a) amt in controversy up to $5k

b) exclusive for <=$200

c) exclusive orig jurisd over FED (right of possession over premises, i.e. landlord-tenant dispute)

d) claim for unpaid rent cannot be heard if over amt in controversy

e) can foreclose mortgages/enforce liens on personal property

f) can issue writs of garnishment, sequestration, attachment if within jurids

g) cannot issue injunctions, mandamus, divorce, defamation, declaration of title to land, or hear suits on behalf of state for forfeitures, penalties, escheats

2. constl county court

a) $200.01 - $5000

b) appellate jurids over claims originating in justice/district ct (de novo review)

c) can grant injunctions, mandamus, certiorari

d) can’t hear divorce, defamation, eminent domain, forfeiture of corp charter, right to property valued =>$500 levied under writ of execution, for sequestration or attachment, recovery of land, liens on land, suits by state for escheat

3. district ct (court of genl jurisd)

a) residual jurisdiction – jurisdiction on all cases unless exclusive jurisdiction conferred on some other court

b) amt in controversy in excess of $200 and no upper limit

c) exclusive jurisdiction for divorce, title to land, contested probate matters

d) eminent domain if no county ct at law

4. muni ct

a) lowest ranking criminal court w/jurisdiction over crim misdemeanors punishable by fine only

b) exclusive jurisd over muni order violations

c) narrow jurisdiction over cases involving owners of dangerous dog

5. county court at law

a) amt in controversy over $500 but not to exceed $100k including interest, punis, atty fees and cost

b) worker’s compensation of any amt

c) and jurisdiction of constl county court (extending amt in controversy from $200.01 to 100k)

d) eminent domain unless involving a matter that it can’t adjudicate

6. probate court

a) counties with no probate court – handled in constl county court until it becomes contested, then handled in district court or assign a sitting probate judge

b) county with probate court: can be heard there or in constl county court until it becomes contested, then must be probate ct

c) probate ct ha power to hear any matter appertaining or incident to an estate pending in that court

B. calculating amt in controversy

1. claims of multiple π’s aggregated against single Δ

a) add

2. claims against multiple Δ’s not

3. include interest (except eo nominee), atty fees, punitive damages, but not costs of court

a) eo nominee- provided for parties in agmt or statute for interest

b) passage of time increasing das doesn’t deprive ct of jurisd

4. if Π assert single claim but multiple theories of recovery, jurisd det’d by one that would yield highest award

5. nonmonetary relief: if no amt in controversy, district court; when recovery or foreclosure sought on property in addition to monetary das, amt in controversy = greater of fmv of property or underlying debt

C. standing, ripeness, immunity

1. a court does not have smj if:

a) plaintiff lacks standing: a real controversy b/w the parties which will actually be det’d by the judicial declaration sought

b) suit is not ripe

(1) whether the case involves uncertain or contingent future events that may not occur as anticipated or indeed may not occur at all

c) Δ is immune from the suit

(1) Plaintiff must plead waiver from immunity under tort claims act or some other legislative consent to suit

D. How to Raise lack of SMJ

1. plea to jurisdiction

a) this is not a special appearance

b) dilatory plea to defeat cause of action w/o regard to merits

(1) challenge jurisdiction: ct may consider evidence outside pleadings and must do so when necessary to resolve jurisdictional issues raised

(2) challenge amt in controversy: π’s pleadings determinative unless Δ specifically alleges amt in controversy pleaded as sham to wrongfully obtain jurisd or Δ can readily establish das are insufficient

c) when granted, case is simply dismissed but can be refiled in proper court

2. appeal/mandamus

a) if tc determines no smj, Π can appeal resultant dismissal; if tc det’s erroneously that there is smj, Δ can only appeal after final judgment

b) mandamus is not available for review of tc det of smj before a trial on the merits

c) subject matter jurisdiction can never be waived, and can be raised for the first time on appeal

III. Is There Personal Jurisdiction over Δ?

A. Notice

1. service of process

a) who may serve: service may be made by a sheriff, constable or other person authorized by law

b) method of service: service by authorized person by delivering a true copy of the citation with the date of delivery endorsed with a copy of the petition OR, by certified or registered mail

(1) Δ must sign the certified mail card, or be served personally

(2) substituted service: show that return receipt refused or affidavit from constable that he tried to serve but was unsuccessful; then court orders a private person to serve who verifies service by oath

(3) after lawsuit filed, Δ can sign a notarized waiver of service; if files before lawsuit filed, judgment can be defaulted

c) who to serve

(1) the person if individual

(2) an agent or rep if entity

(a) who is an agent or rep?

(3) Nonresident

(a) Individual physically located in state may be served w/service of process like a resident

(b) Foreign corp that transacts business is required to appoint a resident agent that may be served; if no agent apptd, serve thru agent or clerk in entity’s TX office or place of business

(c) If non-resident Δ not physically located in TX and has no agent in TX, serve them outside of TX using TX methods or using long-arm statute

(i) Long arm statute: authorizes substituted service on Secy State who then mails copy of citation and petition to Δ by certified mail, return receipt

(a) Service complete when sec’y state is served and has given the certified mail notice regardless of whether the Δ gets it

2. consequences of failure to properly serve Δ

a) motion to quash citation

(1) proper procedural vehicle to challenge formal defects in petition’s allegations of jurisdiction (minimum contacts), form of service, or service of process

(2) does not defeat jurisdiction, merely delays Δ’s answer due date, turning back clock as if Δ served when order quashing service is signed

b) default judgment overturned

(1) bring a motion for new trial

(a) show legal error in the proceeding, or

(b) on equitable grounds, file w/in 30 days of judgment and show

(i) failure to answer was not int’l or result of conscious indifference but from mistake or accident

(ii) there is a meritorious defense to P’s claim and

(iii) π will not be delayed or otherwise injured if motion granted

(2) restricted appeal (formerly called writ of error)

(a) show error on face of the record

(b) file within 6 months of date judgment was signed

(c) may not have participated in the hearing that resulted in judgment or timely filed a post-judgment motion

(3) equitable bill of review (ltd to default judgments)

(a) a new lawsuit, filed w/in 4 years of the date judgment is signed

(b) and show

(i) judgment was acquired thru “extrinsic fraud” or “official mistake” (unless Δ had no notice of suit)

(ii) no negligence on part of Δ for any of the above

(iii) and a meritorious defense (unless Δ not given notice of the suit)

B. Basis

1. in personam jurisdiction

a) appearance

(1) filing an answer

b) presence

c) consent

d) express consent

(1) having agent for service

(2) being served in state

e) contract

(1) contracting away due process rights

2. in rem

a) relatively rare: brought against a thing, property to adjudicate title

(1) trespass to try title, condemnation, admiralty, probate

(2) property must be subject to jurisdiction of court

(3) no personal liability imposed on owner

(4) don’t have to have notice

(a) basis for jurisdiction of person living in TX is domicile

(b) for a nonresident: once Π has complied with the rules for obtaining service on nonresident Δ’s and it meets notice reqs, can state legitimately subject Δ to suit in TX? Yes. If have minimum contacts

(i) specific jurisdiction: min contacts test (purposeful availment + cause of action arises from trans/act) + fair play/substl

(a) purposeful availment: nonresident Δ must purposefully do some act or consummate some trans in TX

(b) cause of action must arise from or be connected with such act or trans

(i) burden on Δ

(ii) interests of forum state in adjudicating dispute

(iii) π’s interest in obtaining convenient and effective relief

(iv) interstate judicial sys’s interest in obtaining most effective resolution of controversies

(v) shared interest in several states in furthering fundamental substantive social policies

(ii) genl jurisdiction

(a) purposeful availment- do some purposeful act or consummate some trans in TX

(b) Δ’s contacts with state are continuous and systematic

3. quasi in rem

a) action b/w parties to reach and dispose of property owned by them ; adjudicates only interests of part persons parties to suit in property before court; must have notice; property must be subject to jurisdiction

(1) attachment, sequestration, garnishment

(2) property must be subject to jurisd of ct

(3) parties must have notice

C. How to Raise Lack of Personal Jurisdiction

1. Special Appearance

a) allows Δ immunity from the lawsuit for a reasonable amount of time to enter, testify, and exit the state

(1) made by sworn motion, usually verified based on personal knowledge

(2) must be filed prior to any other pleading or concurrent with any other pleading (motion to transfer venue, etc) or otherwise constitutes genl appearance

(a) genl appearance is when party invokes the judgment of ct on any other question than ct’s jurisdiction

(b) don’t have to say “subject to”

(3) must obtain a timely hearing on s.a. which must be heard and determined before any other matter, or it is waived

(a) can use affidavits as proof at hearing if filed at least 7 days before hearing

(b) Δ’s burden of proof to plead & prove not subject to ct’s jurisd

(c) even if π fails to allege basis of jurisdiction, Δ must still negate jurisdiction by simply proving not a resident thru affidavit, depo testimony, etc

(d) must negate all bases of jurisd that π has pled

(e) court can properly determine s.a. from pleadings, stipulations, affidavits & attachments, discovery products, and oral testimony

(4) if sa granted, acts as dismissal which is a final decision for appeal; if not granted, is interlocutory, and can’t be appealed til final judgment

2. Motion to Quash Citation

a) to contest defective service

3. Collateral Attack

a) doesn’t seek to set aside the judgment but to avoid the effect of it

b) used in a subsequent proceeding to avoid effect of prior proceeding

4. Forum Non Conveniens

a) a defendant who believes that there is a more convenient forum in which to bring the action may move for dismissal for fnc; governed by statute in personal injury and wrongful death actions

(1) movant shows by preponderance of evidence that

(a) alt forum exists in which claim or action may be tried

(b) alt forum provides adequate remedy

(c) maint of action in courts of this state would work a substl injustice to moving party

(d) alt forum can exercise jurisd over all Δ’s

(e) balance of private interests of parties and public interest of state predominate in favor of alt forum

(f) stay or dismissal would not result in unreasonable proliferation or duplication of lit

(i) private interests

(a) relative ease of access to sources of proof

(b) availability of compulsory process for attendance of unwilling witnesses and cost of obtaining their attendance

(d) all other practical probs that make trial of case easy, expeditious and inexpensive

(ii) public

(a) admin difficulties caused by lit not being handled at origin

(b) jury duty imposed on people in community that have no relation to it

(d) locatl interest in having localized controversies decided at home

(e) appropriateness of having trial in a diversity case in a foru that is familiarw/state law that must govern case

(2) Alfaro bill: personal injury actions and wrongful death actions can be dismissed on fnc grounds if

(a) file no later than 180 days after time req’d to file motion to xfer venue and request a hearing in a reasonable amt of time b4 commencement of trial no later than 30 days b4 trial

(b) it’s easier for courts to dismiss for fnc for nonresidents (legal resident is individual who intends for specified pol subd to be perm residence and intends to return there despite temp absences w.o regard to citizenship or natl origin

(c) US residents, must use FNC plus

(i) courts cannot dismiss a claim filed by TX resident or an action where claimant makes prima facie showing that act/omission that was proximate/producing cause of injury/death occurred in TX

(ii) and cannot dismiss action where death caused by airplane manuf. design, etc in TX, origin/destination TX

IV.Is Venue Proper?

A. General Rule

1. a lawsuit may properly be brought:

a) in the county in which all or a substl part of the events or omissions giving rise to the claim occurred

b) in county of Δ’s residence at time of action if Δ natural person

(1) fixed place of abode

(2) occupied or intended to be

(3) occupied consistently over a period of time

(4) permanently rather than temporarily

c) in county of Δ’s prin place of bus if not a natural person

(1) may be more than one prin office: where decision makers are at equal level and where decision makers for organization in state conduct daily affairs

d) or in county where π resided at time of accrual of cause of action

B. Transfer

1. a court may transfer action from county of proper venue to any other county of proper venue of court finds

a) maint of action is county of suit would work an injustice to movant, considering movant’s economic and personal hardship

b) balance of interests of all parties predominate in favor of the action being brought in the other county, and

c) transfer of action would not work an injustice to any other party

C. Mandatory Venue Exceptions

1. case must be xferred if Δ claims and meets burden of proving that the county of the requested xfer is one of the mandatory exceptions

a) nature of defendant

(1) state or dept heads- Travis County for mandamus

(2) county- in the county sued

b) cause of action

(1) land – where all/part of property located

(2) stay of proceedings: where suit is pending

(3) injunctions against execution of judgment: where judgment rendered

(4) libel, slander, invasion of privacy:

(a) where π resided at time coa accrued

(b) where Δ resided at time suit filed

(c) where any Δ resides

(d) where corporate Δ domiciled

(5) statutory causes of action: where venue made mandatory by statute

(6) landlord-tenant: where property located

(7) major transactions: where agmt provides

(8) fela and jones act: where all or substl part of events occurred, Δ prin office, or π resided

D. Permissive Venue

1. executors, administrators: to establish money demands, where estate administered; for negligence of person whose estate is represented, where it occurred

2. insurance co’s: where insured property located, life or accident: where co’s prin office is, where loss occurred, where policyholder or ben resided

3. breach of warranty- where all or substl part of event/omission occurred, cty where manuf has prin office, cty where π resided

4. K in writing: if K names a county where K to be performed, in that county or where Δ has domicile; ir action founded of obligation of Δ to pay $$ in consumer transaction, where Δ signed K or Δ resided

a) if K stipulates venue, that’s not major transaction not effective but can put it in there an hope no one raises venue

5. transient person: any cty where he can be found

E. Venue with Multiple Parties/Claims

1. every P must show venue is proper for himself

2. but if multiple Δ’s, if venue proper for one, proper for all

F. Challenging Venue

1. file a motion to transfer in due order

a) what county falls under genl rule

b) what counties are permissive

c) any mandatory venue

(1) if venue is proper under genl rule, but permissive venue, then plaintiff has choice

(2) if venue proper under genl rule, but another venue under mandatory, P still has choice

(a) if Δ doesn’t doesn’t file motion to transfer venue, then Δ waives the right to transfer

(b) if Δ files mttv to the mandatory venue, it must be xferred

2. procedure

a) π must plead venue facts in POP that if true are sufficient to maintain county in suit where it is filed

b) Δ’s motion to xfer must be filed concurrently or before any other responsive plea and at least 45 days before the venue hearing. must attack venue of county where filed, request the county to which xfer sought; designate statutory section making venue proper (permissive/mandatory); where existence of cause of action is essential for venue, that if a cause of action exists it arose in whole/in part in county to which xfer sought

(1) allege that county proceeding brought in is not proper under because genl rule or permissive exception or b/c mandatory venue prescribed in another county

(2) that transfer is sought to county that is proper under genl rule or some permissive exception or mandatory venue

(3) motion for continuance does not waive right for motion to xfer is motion for continuance not on the merits

(4) have to get motion for xfer heard within reasonable time b4 trial and get a ruling; failure to do so waives xfer

(5) discovery can proceed regardless and doesn’t constitute waiver

c) π responds at least 30 days b4 hearing, contain affidavits to prove matters specifically denied by Δ and specific denial of Δ’s venue facts

d) Δ reply 7 days b4 hearing, contain affidavits to prove matters specifically denied by P

(1) at venue hearing, tc considers motion and responses;if transfer sought b/c county of suit improper, looks at P’s proof and if P satisfies prima facie burden, no xfer; if Δ satisfies prima facie case for mandatory xfer, then xfer; if P makes no prima facie showing, case xferred provided that Δ satisfied burden of showing cty to which xfer sought is proper

G. Appellate Review

1. π must make prima facie case that venue is proper and not subject to disproof

2. on appeal, the appellate ct must look at the trial on the merits to determine if venue appropriate

a) if some evidence (more than a scintilla, any probative evidence), then affirm tc decision

b) if P picks county of proper venue, even if other county to which xferred is proper, reversible error unless it was mandatory

c) tc cannot xfer venue on own motion

d) transfer can be reviewed on mandamus in exceptional circumstances only

e) statutory mandamus: writ of mandamus with appellate court enforce mandatory venue provision must be filed 90 days b4 date of trial or 10th day after party receives notice of trial setting; don’t have to show that remedy on appeal is inadequate because Legislature has provided for mandamus on mandatory venue

f) statutory interlocutory appeal: joinder

(1) any person who is unable to establish proper venue may not join/maintain venue for the suit as a plaintiff unless they independently establish that

(a) joinder/intervention is proper

(b) maintaining venue in county of suit does not unfairly prejudice another party to suit and

(c) there is an essential need to have person’s claim tried in county in which suit is pending

(i) initial burden is prima facie, and if Δ doesn’t rebut then P is successful

(ii) conduct de novo review to determine if joinder proper; abuse of discretion to review party’s contention that it was denied oppy to present further proof

(2) interlocutory appeal is only if P cannot independently establish venue

(a) then on appeal, must meet the four part test

(i) so to get an interlocutory appeal, must get a ruling on the four part test

g) motion to change for unfair forum

(1) if motion to xfer is not made or denied, can move to xfer for unfair forum

(a) prejudice in county of suit

(b) influential persons in county have combined so that the party cannot expect a fair & impartial trial

(c) an impartial trial cannot be had in that county or

(d) other sufficient cause

(i) motion to change venue must be supported by affidavit of party & three credible persons who reside in county

(ii) opposing party may counter-attack with affidavit of credible person, which puts matter is issue and requires evidentiary hearing

(iii) trandfer made to county in same/adjoining district where venue is proper or to county of any proper venue

V. Are there pleading defects?

A. Plaintiff’s Pleadings

1. pleadings shall be by petition & answer, consisting of a statement ins plain & concise language of P’s cause of action or D’s grounds of defense, be in writing and signed by the party or his atty

2. original pleading which sets forth a claim for relief shall contain a short stmt of the cause of action sufficient to give fair notice of claim involved

B. Δ’s Pleadings

1. Δ must appear on or before appearance date or risk default judgment. original answer serves as appearance

a) all answers in TX must contain a general denial except for matters which require special denial; if doesn’t specially deny can’t present evidence that contradict P’s allegation

(1) general denial allows Δ to deny almost everything π asserts and put plaintiff to proof

(2) special denial when π pleads generally that all conditions precedent have been met, Δ must specially deny those he maintains have not been met

(3) verified denial: requires specific denial that are made under oath by affidavit or otherwise are taken as proven by the plaintiff

(a) π doesn’t have legal capacity to sue

(b) Δ doesn’t have legal capacity to be suie

(c) π not entitled to recover or Δ not liable in capacity in which sued

(d) another suit is pending in the suit involving the same parties/claim

(4) affirmative defenses: party shall set forth affirmatively any matter constituting avoidance or affirmative defense

(a) accord & satisfaction

(b) arbitration & award

(c) contrib. N

(d) estoppel duress ratification laches statute of lims res judicata etc

C. Amended/Supplemental Pleadings

1. amended pleading: a pleading which supercedes a previous pleading and must be complete within itself

2. supplemental: adds to a previous pleading and does not have to be complete within itself

a) TX rules allow for pleadings to be freely amended

(1) amendment seven days or more before trial, can file without leave of court

(a) clerk must accept the amended pleading

(b) opposing party can make a motion to strike and if judge overrules it, ask for a motion for continuance to preserve error

(2) six days or less requires leave of court

(a) must be granted unless it operates as a surprise

(b) opposing party can object to leave being granted

(3) trial amendment requires leave of court

(a) again opposing party objects to leave being granted

(b) when matters outside the pleadings are introduced without objection, unpled matter is said to have been tried by consent

(i) if bench trial, consent by moment you don’t object to unpled evidence

(ii) in jury trial, if don’t object to evidence AND jury trial

(c) trial amendments to cure defects: Rule 66 requires judge to freely allow amendments during trial when presentation of the merits of the action will be subserved thereby and objecting party fails to satisfy the court that allowance of such amendment would prejudice him in maintaining his action or defense upon the merits

(i) have to grant a trial amend unless Δ presents evidence that allowing it operates as a surprise or prejudice

(ii) or amendment asserts a new cause of action

D. Pleading Defects

1. failure to give fair notice

2. presents a claim for relief that is legally invalid

3. presents a claim outside the courts smj

a) file a plea to jurisdiction

4. gives fair notice but is too vague or omits one or elements of cause of action

a) if there is any way for the π to amend the petition to have a valid cause of action, then Δ should file a special exception [valid cause of action defectively pled]

(1) special exception used to make objections to fatal and nonfatal pleading defects

(a) make it in writing, file and serve on other party

(b) judge reviews sufficiency of pleading based on

(i) intent of rules to eliminate technicalities and simplify pleading

(ii) notice to other party

b) if there is no way to amend the pleading to have a valid cause of action, can dispose of by msj

c) if you don’t file an answer and get a default judgment against you, the judgment will be held erroneous only

(1) if the petition doesn’t attempt to state a cause of action within jurisd of ct

(2) doesn’t give fair notice, or

(3) petition affirmatively discloses invalidity of claim

5. Other pleading issues

a) damages

(1) general: all that necessarily & naturally result from harm alledg

(2) special: proximately result from Δ’s wrongful conduct and vary w/circumstances

(3) unliquidated – state the amt w/in jurisd of ct

(4) sworn acct – uses verified pleading to simplify recovery for goods & services sold on credit

b) misnomer

(1) allows a court to redesignate a pleading if mistakenly designated by a party

c) inferential rebuttal: like an affirmative defense: negates an element of opponent’s case

(1) unavoidable accident

(2) sole and proximate cause

(3) employment agreement, partnership agmt

d) counterclaim and cross-claim

(1) counterclaim arises out of the trans/occ that is the subject matter of the opposing party’s claim and does not require the presence of 3d parties not under court’s jurids for its adjudication

(a) must be brought in the same suit as P’s action or will be barred

(2) permissive – any claim that is not compulsory

e) plea in abatement

(1) the jurisdiction in which the first lawsuit was filed involving the same issue controls, unless

(a) conduct by a party estops him from asserting the prior dom jurisd

(b) lack of a person to be joined if feasible or lack of ct to bring him b/4 court

(c) lack of intent to prosecute first suit

(2) trial court has no discretion whether to grant a PIA in a second suit if there is an inherent interrelation of the subject matter

E. Frivolous Pleadings

1. the signature of an attorney constitutes a certificate that they have read the pleading/motion and that to their knowledge/belief and a reasonable inquiry the claims are not groundless and not brought in bad faith

a) Rule 13 sanctions

(1) can be compensatory, punitive, or deterrent

(a) secure compliance, punish or deter future misconduct

(b) under safe harbor rules, a party can correct a challenged pleading w/in 21 days of service of the motion

(c) state courts can retain jurisdiction to sanction lawyers for pre-removal conduct (removal to fed ct) so long as sanction doesn’t go to merits

(d) fed ct can apply state sanctions to pleading filed in state ct before removal

(e) sanctions can be awarded even in nonsuit

VI.Was there proper joinder of claims & parties

A. Claims

1. π may join all the causes of action he has against a single Δ in one lawsuit even if the causes of action are unrelated; when jurisd based on amt in controversy, sums of each coa is aggregated; if venue proper as to one claim, proper to all; must assert all relief arising out of a single trans or occurrence under res judicata

2. cross-claims against a fellow party on the same side of the lawsuit that arise out of the same trans or occ that is subject matter of original action or counterclaim may be brought

3. counterclaims

a) a subsequent suit will be barred if it arises out of the same subject matter of the previous suit and which thru exercise of diligence could have been litigated in prior suit

(1) compulsory cc

(a) within court’s jurisdiction

(b) has not been filed elsewhere

(c) is mature

(d) arises out of the same trans/occ

(e) doesn’t require presence of addtl parties outside of ct jurisd

(f) against opposing party

B. Parties

1. compulsory joinder

a) persons who have a joint interest in the subject matter of the lawsuit are necessary parties who must be joined if feasible (π can’t get complete relief without the party, Δ’s subjected to substl risk of incurring multiple liability, nonjoined parties have interest in subject of the action which may be affected without joinder)

(1) absent party is not bound by the court’s judgment

(2) if can’t join the party, court must make determination whether to proceed according to equity and good conscience” or abate the proceeding

(a) to what extent judgment rendered in person’s absence will be prejudicial to him

(b) extent to which prejudice can be lessened or avoided

(c) whether judgment rendered in person’s absence will be adequate

(d) whether π will have adequate remedy if action is dismissed for nonjoinder

(i) nonjoinder can be brought up the first time on appeal as fundamental error only for legislative joinder of heirs, enforcing board of blue laws

(ii) otherwise failure to bring up nonjoinder must be raised at trial or it is waived

(iii) to raise Rule 39 objection to absent parties – plea in abatement

2. permissive joinder

a) parties may be joined at π’s / Δ’s option

3. third party practice

a) Δ may bring in a third party Δ when either the third party will be liable to Δ for all or part of plaintiff’s recovery or third party is directly liable to π (impleader)

4. misjoinder: misjoinder is grounds for dismissal of an action; parties may be added, dropped, or suites filed separately may be consolidated or actions improperly joined may be severed by the court may be severed by court on its own motion or by motion of any party b4 submission to jury or if nonjury trial on such terms that are just

a) there is never misjoinder for a defendant – it’s applied to multiple parties

5. interpleader: allows a person that may be subject to multiple liability from competing claims to bring them into one lawsuit for resolution (stakeholder)

6. intervention – a nonparty may join the lawsuit as a matter of right (to protect his interest) or permissively (common question of law or fact) subject to a motion to strike

VII. Discovery

A. Methods

1. a party may obtain discovery regarding any matter that is not privileged and relevant to the subject matter of the pending action: requests for admissions, RFP, interrogs, depos, RFdisclosure, motion for entry upon & inspection of real property, mental & physical

a) request for disclosure

(1) correct names of parties

(2) names, addresses, tel #’s of potential parties

(3) legal theories & factual bases of responding party’s claim or defense

(4) amt and method of calculating damages

(5) identify persons with knowledge of relevant facts and connection to case

(6) any discoverable indemnity agmts or insurance

(7) discoverable witness stmts

(8) mdiecal records and bills related to injuries asserted in personal injury suit

b) request for admissions- if not answered timely, deemed admitted

(1) can withdraw if show good cause and ct finds party relying on the admissions won’t be unduly prejudiced

c) request for production

(1) documents and things from a party

(a) response – must either permit production or serve items with response, stating that after a diligent search no items have been found responsive to request

d) depos

(1) a party can take the testimony a witness under oath and have them produce documents/tangible things

(a) party seeking a depo must serve written notice an all other parties

(b) must give reasonable notice; if RFP attached, 30 days notice required

(i) notice must contain name of witness, time & place of dep. whether alternate means of conducting depo will be used, if production desired an RFP that complies with rules, and identify persons attending other than parties spouses, employees of counsel and officer taking depo

(ii) service of depo requires a party to attend, but need subpoena to compel nonparty witness

(a) reasonable time & place

(i) county of witness’ residence

(ii) county where witness employed/regularly transacts bus

(iii) county of suit if party

(iv) county where witness served or w/in 150 miles if transient/nonresident

(v) any other convenient place directed by court

(vi) depo can be taken by telephone or electronic means

(c) objections- any party may object to time, plac, manner or genl scop by filing motion for protective order or motion to quash

(i) if objection filed to time or place filed by third bus day after service of notice, stays depo til ct rules on it; other objections don’t stay the depo

(ii) can make objections as to leading, form of question, and nonresponsive, not to answer on grounds of privilege, or not to answer on other grounds (to comply with court order, protect witness from abusive questions)need to make objections at depo so can object to admissibility at trial otherwise waived

(iii)

(d) supplementation – no duty to supplement depo testimony

(e) variations:

(i) written depos- served 20 days before depo; within 10 days of service any party may object to direct questions and serve cross questions; within 5 days of cross questions party can object and serve addtl questions or objections

(ii) foreign depos: can take depo in another state or country for use in case filed in TX court

(iii) depo before suit filed – i.e. like testator about to die- get a court order and serve notice on all intererested parties

(iv) apex depos: if a party seeks to depose a high level corp official, and that official files a motion for protective order, court should determine

(a) whether party seeking depo has arguably shown that official has unique or superior knowledge of discoverable info, and if not, tc must grant prot order

(b) then if party makes good faith effort to obtain info by other means, may show that official’s depo is calculated to lead to disc of admissible evid and other less intrusive means have been unsatisfactory, insufficient, inadequate, and tc can modify or vacate prot order

e) Physical and Mental exams

(1) a party may no later than 30 days before the end of the applicable discovery period, move for an order compelling another party to submit to a mental or phys exam by qualified physician or psychologist

(a) only when physical or mental condition of party is in controversy and only for good cause shown

(i) routine allegation of mental anguish doesn’t place in controversy

(ii) good cause is exam is relevant to issues genuinely in controversy

(iii) reasonable nexus b/w condition in controversy and exam sought

(iv) not possible to obtain info thru less intrusive means

2. doesn’t need to be admissible at trial if reasonably calculated to lead to the discovery of admissible evidence

3. relevancy is the key

4. nonparties: can compel oral depo, written depo, and RFP

B. Discovery Control Plan

1. must allege in the petition in the first numbered paragraph what level of discovery applies

a) level 1 – less than $50k

(1) allows for 25 interrogs

(2) 6 hours total depo time each side

b) level 2

(1) 25 rogs

(2) 50 hours depo each side, 6 addtl each for experts

c) level 3

(1) custom discovery package ordered by ct on its motion or by motion of other party

C. Written Discovery Request

1. permissible forms can be combined in same doc; served by any method and not filed with the clerk

2. responses genlly due 30 days after service but if served before answer is due, 50 days after service

3. must timely respond and make complete responses, objections, supplement

a) if fail to timely respond or supplement, cannot introduce into evidence matter not timely disclosed unless court finds good cause or no unfair surprise/prejudice

(1) less than 30 days before trial presumed not reasonably promptly

D. Scope of Discovery

1. relevant

a) much broader than at trial

2. a party seeking review of a discovery order by mandamus must show that remedy offered by ordinary appeal is inadequate

a) appellate court is unable to cure discovery error

(1) disclosure of priv’d info

(2) production of patently irrelevant or duplicative docs

b) party’s ability to present viable claim or defense severely compromised by tc’s discovery error

c) disallows disc and it cannot be made part of appellate record

3. a specific request for discovery reasonably tailerd to indluce only matters relevant to the case is not overbroad merely because it may call for some info of doubtful relevance

E. Objecting to Scope of Discovery

1. a party must make an objection to discovery within the time required for the response; have to make a partial response anad comply with any part of request to which there is no objection and state the extent to which party is refusing to comply

2. party making the objection or asserting a privilege must present any evidence to support the objection or priv

3. a court may issue a protective order to protect a movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights

4. court may limit discovery pending resolution of threshold issues like venue, forum nonconveniens, pending class cert

F. Asserting Privileges

1. can obtain discovery of documents and tangible things, persons with knowledge of relevant facts, trial witnesses, testifying/consulting experts, indemnity and insurance agmts, statements of persons with knowledge of relevant facts

a) a witness stmt is a written stmt signed or otherwise adopted or approved by person making it

2. privileged matters

a) work product: material prepared or mental impressions developed in anticipation of litigation or for trial by a party or party’s representatives

b) communications made in anticipation of lit or for trial b/w party or among party’s reps

(1) core work product is mental impressions, opinions, conclusions, or legal theories - never discoverable

(2) other work product is discoverable upon a showing that the other party has a substl need and is unable to obtain substl equiv of matl by other means without undue hardship

(a) info about experts, trial witnesses, trial exhibits, potential parties/persons with knowledge of relevant facts are not work product

c) investigative docs are privileged if prepared in anticipation of litigation

(1) circumstances indicate to a reasonable person a substantial chance of litigation

(2) and party invoking privilege has a good faith belief substl chance litigation will ensue

(3) and circumstances indicate that investigation was in fact conducted to prepare for potential litigation, if done for both lit & nonlit purps must have been done primarily for lit purps

(a) TX uses scope of employment test to protect communication b/w atty and client rep

(4) document in atty’s files not protected just because there, have to demonstrate a part priv

(5) but atty’s selection and ordering of docs in anticipation of lit (trial notebook) is protected even if indiv docs not

G. Waiver of Privs

1. offensive use doctrine - using a privilege to protect relevant info (Fifth Amend);

a) can allow jury to make a negative inference based upon assertion of the priv

b) either elect to waive priv, or suffer a sanction

(1) offensive use; party is seeking affirmative relief, uses a privilege to protect outcome determinative info, and protected info not otherwise avail to Δ

(2) if offensive use found, what remedies?

(a) consider nature of questions asked and priv asserted

(b) weight of resulting unfairness to Δ if trial were to proceed without sought disc

(c) weigh options for delaying trial during pendency of criminal investigation/crim proc

(d) recognize that tc has options to impose remedies in future if any delay afforded π resulted in unanticipated/extraordinary hardship to Δ

2. voluntary disclosure

a) a party who produces info or matl inadvertently without intending to waive a claim doesn’t waive priv if w/in 10 days or shorter time after producing party discovers such production was made and amends response identifying matl or info produced and asserting priv

3. crime fraud exception

a) challenges a privilege by asserting a prima facie case of contemplated fraud and establishes a relationship b/w doc for which priv is challenged and prima facie proof offered

4. asserting privs

a) assert by withholding stmt, not objection:

(1) stmt that info/matl responsive to request has been withheld;

(2) identify req to which info/matl relate

(3) stmt of privs relied on

b) make stmt only when actually responding to disc; if there is an objection to a request, don’t have to assert priv at that time

c) after receiving w/h stmt party may ask withholding party to prepare a priv log describing withheld matl;

(1) log must be provided within 15 days after party requests it

(2) must assert a particular priv for each item or group of items and a sufficient description of matls to enable other party to determine applicability of priv

(3) then any party may request a hearing on claim of priv, party asserting priv must present any evidence necessary to support the priv [prima facie case] by live testimony or affidavit served at least 7 days before hearing

(4) then requesting party has burden of pointing out which docs it believes require in camera inspection

(5) privileged material that is obviously atty client communication or work product can be withheld without making any claim of priv thru wh stmt or priv log

(6) must be in document or communication form, must be priv’d and have lawyer involved

(7) or must be a document of lawyer or rep

(8) must be made or prepared from the point at which lawyer consults with client concerning representing client and must concern lit activity

H. Confidentiality

1. when a party seeks a protective order to restrict dissemination of unfiled discovery, and no party or intervenor contends that it is a court record, then tc need not conduct a hearing or render any findings on that issue, and should not allow intervenors access to records unless it determines that they are ct records

a) unfiled disc is a ct record if it has a probable adverse effect upon the genl public health or safety, the admin of a public office, operation of govt, except discovery in cases originally initated to preserve bona fide trade secrets or intangible property rights

(1) party wanting disc has burden to show that they are ct records

(2) then party resisting has burden to show that records can be sealed

2. if a party/intervenor claims that discovery is a court record, then ct must make a threshold determination on that issue before public notice is required

3. if ct determines unfiled disc is a court record, then party opposing disclosure can get records sealed if shows that a specific, serious, and substl interest clearly outweighs the presumption of openness and any probable adverse affect sealing will have on genl public health or safety

4. trade secrets: a party resisting discovery has to assert the trade secret privilege, and once has established a priv, then burden shifts to requesting party to establish that info is necessary for a fair adjudication of its claim or defense, and if meets this burden tc should compel discovery subject to protective order

I. Expert Witnesses

1. the identity, mental impressions, and opinions of a purely consulting expert are not discoverable (opinions have not been reviewed by a testifying expert)

2. consulting expert and testifying experts facts, mental impressions, and opinions are discoverable

a) an expert is a person with knowledge of relevant facts only if that knowledge was obtained first hand or not obtained in preparation of trial

(1) so if facts not obtained first hand, or if facts obtained in preparation of litigation, not a person with knowledge of relevant facts and don’t have to identify them (purely consulting)

(2) employee can be purely consulting if they are reassigned specifically to assist employer in anticipation of lit and was not employed in an area that becomes subject of lit

3. there are retained and nonretained experts

4. redesignation – nothing in rules disallowing it, but if it’s part of a stlmt agmt ct probably won’t allow; will probably allow if innocently designated as testifying incorrectly

5. duty to supplement: only have to supplement mental impressions and basis for them 30 days before trial; if failure to do so within 30 days may be allowed for good cause shown

J. Discovery Sanctions

1. choice of sanctions within discretion of court, but must be a direct rel b/w offensive conduct and sanction imposed

a) sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party

2. sanctions must not be excessive

a) punishment should fit the crime

b) imposition of severe sanctions, like death penalty, ltd by constl due process because it deprives a party of adjudication of its claims on the merits; death penalty best suited for a case with no merit

3. review of sanctions order

a) monetary sanctions genlly not reviewable by mandamus, but if payable prior to appeal could have preclusive effect on violating party’s access to the courts

b) sanction can be reviewed by mandamus if a severe sanction has effect of adjudicating a dispute

(1) did tc abuse discretion in ordering the sanction

VIII. Summary Judgment

A. a party seeking to recover may at any time after adverse party has appeared or answered move with or without affidavits for a summary judgment in his favor upon all or any part thereof; summary judgment may be rendered on issue of liability alone even if there is a genuine issue of matl fact on issue of damages

B. permits any party to obtain judgment w/o trial on patently unmeritorious claims and untenable defenses

1. must give 21 days of notice of any hearing on msj

2. can use anything written to support msj – pleadings, affidavits, interrogs

a) affidavit must be based on personal knowledge

3. can use uncontroverted testimonial evidence of interested witness or expert witness if evidence is clear, positive & direct, otherwise credible, and free from contradictions, and is of a kind that could be readily controverted

C. Traditional Summary Judgment

1. movant has the burden to establish entitlement on issues expressly presented to the trial court and usually attached sj evidence

2. must show conclusive proof of each element of a valid cause of action

a) P shows conclusive proof entitled to sj on claims

b) or D shows conclusive proof entitled to judgment based on aff’s d’s

3. respondent to sj seeks to show that sj is not the proper vehicle to dispose of cause of action, requires trial

a) show genuine issue of matl fact

b) assert aff d’s

c) attack movant’s entitlement to sj (hasn’t proved all elements of proper claim or defense

d) attack formality of proof

4. party without burden of proof moves for summary judgment

a) summary judgment can be based on inadequacy of pleadings if it fails to state a claim (no viable cause of action)

b) or that the pleadings negate the claim

(1) Δ uses pleading to obtain sj when pleadings affirmatively negate P’s claim

(a) zones of evidence

(i) zone 1 – no evidence or just a scintilla (speculation or conjecture)

(a) applicable to no evidence sj

(b) only the opponent of an issue will raise zone 1

(ii) zone 2- insufficient evidence evidence to support an affirmative answer to jury questions (“some evidence, more than a scintilla”)

(a) if ct apps found evidence did not go into Zone 3, must remand for new trial

(iii) zone 3- amount of probative evidence on which the factfinder can never be reversed; any point of error will be denied if appellate ct finds evidence in zone 3

(iv) zone 4- a negative answer to a proponent’s jury question was against the great weight and preponderance of the evidence; if appellate ct finds evidence is up to and including zone 3, deny this point of error; but if finds zone 4 sustain the point of error

(a) jury’s decision shocks the conscience of the court or clearly demonstrates bias

(v) zone 5- conclusive evidence

(a) proponent of issue raises zone 5

D. No Evidence SJ

1. allows party without the burden of proof to move for sj on grounds that other party lacks evidence to support an essential element of claim

a) asserts that after adequate time for discovery the other party has no evidence of elements of claim

b) shifts burden to other party to come forward with enough evidence to take case to trial (more than a scintilla

IX. Miscellaneous Matters

A. Recusal and Disqualification of Judges

1. Constl disqualification

a) judge can’t sit where parties are connected with him or where he was counsel,

(1) may not be related to a party within three degrees or to counsel within one degree

(2) any order involving judicial discretion by a judge that is constlly disqualified is absolutely void or a nullity, then mandamus is proper remedy

(3) can’t be waived

2. recusal

a) a judge who is biased or prejudiced concerning the subject matter or a party involved in proceeding is not constlly disqualified,

b) mandamus is not proper remedy for recusal because orders are not void but reviewable on appeal

3. statutory strike

a) used to disqualify visiting judge (judge assigned to hear matters filed in a court to which judge has not been elected or apptd

b) there is a one strike limit for a sitting or retired judge

(1) retired if vested before left last elected office

c) unlimited strike on visiting/former judge

(1) if judge overrules timely objection to his assignment, judge’s subsequent orders are void and subject to mandamus

B. Withdrawal of Counsel

1. to withdraw, must make a motion to the court and send a copy to the client, give notice of the motion being filed and being heard by court, notify of right to object to motion, client must consent, notice or delivery to party’s last known address of any addtl settings or guidelines

a) allow time to employ another atty

b) surrender papers of client

c) refund any advance payments

X. Appellate Review

A. appeal after final judgment

B. interlocutory appeal

1. immediate appeal of ruling without final judgment

C. mandamus

1. original proceeding filed in court of appeal seeking to compel a public official to refrain from acting contrary to law

a) originally just allowed to compel a judge to do a ministerial act for which it had no discretion

b) now allowed where there is an abuse of discretion plus no adequate remedy on appeal