TXPre Trialoutline

Texas Pre-Trial Procedure Outline Fall 08
Subject Matter Jurisdiction Court Justice Court County Courts Statutory County Courts Amount in Controversy ($) 0 - 10,000 200.01 - 10,000 200.01 - 100,000 (varies widely by county) 500.01 - infinity Special Subject Matter Jurisdiction Forcible Entry and Detainer. No injunctions Probate (varies by county) Eminent Domain; Workers Compensation appeals; Probate; Family Law (varies by county) Land Title; Defamation; Family Law; Eminent Domain; Probate (varies by county); Residual Jurisdiction
District Courts
To determine jurisdiction over a particular case, you must first look at the subject matter of the suit to see if there is exclusive or special shared jurisdiction vested in one or more of the courts When there is concurrent jurisdiction, Ps lawyer gets to chose where he wants to go. JP Courts o o o Can only hear forcible entry and detainer cases, litigate right to poseesion of the property Up to 10K in suit range Cannot hear ! ! ! ! ! ! ! Suit in behalf of the state to recover a penalty Divorce Slander Defamation Title to land Enforcement of a lein on land Cant do injunctions o Writ of mandamus
Not a court of record
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o -
Appeal to county court, and it is an appeal de novo
Small Claims Court o o o Limit of 10K Only claims for money heard Appeal from them stops at county court
Constitutional County Courts o o o o Exceed 200 up to 10K In some counties they have probate jurisdiction, and may get other powers like juvenile cases, or concurent jurisdiciton with small claims courts, or same as county courts at law, depending on the county Hears appeal from JP court, if over 250 Writ Power ! A county judge, in either term time or vacation, may grant the following writs that are necessary to the enforcement of the courts jurisdiction: o Excluded ! ! ! ! ! ! ! Slander or defamation Enforcement of lien Suit in behalf of the state for escheat Divorce Forfeiture of a corporate charter Trial of the right to property valued at 500 or more and levied on under a write of execution Sequestration Mandamus Injunction Sequestration Attachment Garnishment Certiorari Supersedeas All others necessary
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! ! -
Attachment Recovery of land
Statutory County Courts (County Courts at Law) o Exceed 200 up to 100K ! ! ! o o Excluding interst eonomine Statutory or punitive damages and penalties, And attorneys fees
Jurisidciton can be changed depending on statute Probate court example of this, if they have one, will have emininet jurisdiction ! ! Exclusivley handles probate matters Most counties dont have this (see below) If dont, contested parts of will will goe to district court from county court Or cn request an assignment to a statutory probate judge Overlap on PI cases between statutory probate and district courts.
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Generically based jurisidciton on the county court, unless statute gives them more Excluded ! ! ! ! ! ! ! ! Slander or defamation, Enfrorcetn of a lein on land Escheat Divorce Forfeiture of a corporate charter Trial of the right ot property valued at 500 or more and levied under a writ of execution Sequestration or attachment Suit for the recorvery of land
District Courts o o Art 5 Sect. 8 of Texas Con Exclusive, appellate, and original jurisdiction only where others dont have it
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o o o o -
So will have jurisdiciton unless someone else has exclusive jurisdiction Exceeding 500 (depdning on court and interpretation, some say 200, some down to 0), and no maximum Have residual jurisdiciton (see above) R330, allows judges of the same jurisdiciton to issue orders on each other cases
Calculating the Amount in Controversy o Generic Rule: amount claimed in good faith by the P ! o Requires that the p lead that the amount of damages are within the jurisdicitonal limits of the court
When case is filed and it is underneath the maximum, but by the time of trial then it is over the maximum: ! ! If due to just the passage of time, the court retains jurisdiciton (acccumlation of rent) But if amount asked for was always higher, then no jurisdiciton
Unaccured Future Claims ! ! If increase due to passage of time ok But if it is a present value of future payment or future value, then present value of those future losses will count when calculating the amount in controversy
Statutory County Courts ! ! Generally in most courts: statutory damages, punitive, attrneys fees, penalties, count (if law allows them) For Statutory courts Stattuory damages dont Punitives dont Attorneys fees dont Court costs dont
Interest ! Interst as Interest (eo nomine) doesnt count ! Statutory interest here (PI interest) Interest on K
Interest out of damages count
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Multiple Parties ! ! ! ! 1 p v. 1 d, and different claims, add them together Multiple P v. 1 d, aggregate 1 p v. multiple d, dont add, each stand on own Dont add counter claims of D of multiple Ds, but by themselves stand alone If small then allow to remain in same court due to efficiency But if very large, outside of normal limit, then wont have jurisdiction
Where P Doesnt Plead damages (Peek v. Equipment Service Co.) ! ! ! P never game a number nor said that it exceeded jurisdicitonal minimum Just a pleading issue taken care of by allowing to amend, or eif never raised, then as long as evidence at trial shows claim within jurisdiciton then ok But if shownt hat it shoudlnt be there, then no jurisdiciton
Probate o o o They are statutory probate courts, look to statute to se jurisdiciton Where both statutory and probate courts have jurisdiciton, probate court has dominant jurisdiciton Where there is no statutory probate court, but some kind of statutory court with probate jurisdiciton, those cases can be filed in both county and stat. courts ! o If something is contested then whole case goes to stat court
They have all maters incident to an estate ! ! Anything brought by or against personal representative of the estate This does include wrongful death and survival claims. ! Sevy v Hall was overruled by a recent addition to the Probate Code
This gives a probate court the power to pull down a case. HOWEVER only from the same county. If a pull down party believes that the probate court has overstepped its jurisdictional reach, mandamus relief is available with the court of appeals In re Swepi
Pendant and Ancillary jurisdiction (pull down jurisdiction) ! Taking claims that wouldnt themselves be in their jurisdiciton but are so relate to the ones that it is efficent to do so (survival claims)
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Allows them to yank cases from other courts where cause of action pertainint to or incident to an estate, or where estate is a party Still venue limitations here (Gonzalez v. Reliant Energy)
Concurrent Jurisdiction A statutory probate court has concurrent jurisdiction with the district court in all personal injury, survival, or wrongful death actions by or against a person in the person's capacity as a personal representative, in all actions by or against a trustee, in all actions involving an inter vivos trust, testamentary trust, or charitable trust, and in all actions involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate Appellate Jurisdiction of probate court orders All final orders of any court exercising original probate jurisdiction shall be ! appealable to the courts of appeals How to determine AMOUNT IN CONTROVERSY: ! Interest: Interest in the name of interest is excluded Interest as damages is included o Prejudgment interest is considered interest as damages ! If suit is not for damagespossession or personalty 1 is amount in controversy The fair market value of the personalty controls ! Foreclosure: amount of foreclosure or amount of debt, whichever is more ! Multiple Ps: aggregate amount of all their claims ! Multiple Ds: do not add, claims have to stand on their ownSmith v Clary Corp ! NOTE: if a court originally has jurisdiction, an increase or decrease in amount in controversy after suit filed does not oust the court of jurisdiction. (If it is an increase b/c of the passage of time, then it can stay) ! NOTE: failure to plead an amount in controversy will not amount to a lack of jurisdiction in a court Peek v. Equipment Service Co. ! NOTE: Unless otherwise provided by statute: Exemplary damages, attorneys fees, penalties, and like recoveries are counted as part of the amount in controversy, provided the claim for them is not invalid on its face. Bybee v. Firemans Fund Ins. Co., 331 S.W.2d 910, 913-914 (Tex. 1960). By statute, however, statutory county courts exercising civil jurisdiction must not include interest, statutory or punitive damages and penalties, and attorneys fees and costs, as alleged on the face of the petition in the amount in controversy calculation. Consequences of lack of jurisdiction over the subject matter ! CPRC 16.064 (TOLLING STATUTE): The statue of limitations can stop running if: (1) Trial court dismissed or set the judgment aside or annulled in a direct proceeding (for lack of jurisdiction) AND (2) Not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court w/ proper jurisdiction. o This time does not count o 60 days from final disposition (So when final appeal is final) ! No answer about discretionary appeals, but probably ok (b) This section does not apply if the adverse party has shown in abatement that the 1st filing was made with intentional disregard of proper jurisdiction (Burden on person opposing the extra time) !
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Movable assets (things, including animals) which are not real property, money or investments
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Ancillary Jurisdiction ! Counterclaims, cross-claims, and third party claims are normally judged on their own merits in determining whether they presents an amount in controversy that is within the courts jurisdiction. ! Under some circumstances, however, there may be a kind of ancillary jurisdiction over these claims. If the amount sought exceeds the courts monetary limit, the added claims belong in another court and should be dismissed. But when the amount sought in the added claim is below the courts jurisdictional minimum, the court will normally exercise ancillary jurisdiction to avoid a multiplicity of suits if the court has jurisdiction over the plaintiffs claims and the counterclaim grows out of the same subject matter as the original suit. ! In courts with a maximum jurisdictional limit, multiple counterclaims are not aggregated to defeat jurisdiction for multiple defendants each of whose counterclaims are properly joined. The aggregation statute, Government Code 24.009, requires aggregation only with respect to co-plaintiffs who originally join together to assert related claims against a common defendant, and was intended to allow such claims to be aggregated to reach the jurisdictional minimum. Smith v. Clary Corp., 917 S.W.2d 796, 798-799 (Tex. 1996). Multiple Parties ! When one plaintiff asserts multiple claims against only one defendant, the separate claims are added together to determine the amount in controversy. Be careful to distinguish between multiple claims [add them together] and the assertion of a single claim through alternative theories [do not add them together]. o In the latter case, jurisdiction is determined by looking to the theory that would yield the largest award. o If there are multiple plaintiffs, each making a good-faith claim against one defendant, the claims will be aggregated for purposes of determining the jurisdictional amount. Gov. C. 24.009. ! Claims against multiple defendants are not aggregated When one plaintiff asserts separate, independent, and distinct, though joinable, claims against multiple defendants, the claim against each defendant is judged on its own merits, and independently must meet the jurisdictional limit of the court. ! It is somewhat unsettled as to whether the claim of an intervening plaintiff should be aggregated with the claims of the persons (who) originally join in one suit. The commentators think that the intervention should not work an ouster of jurisdiction. See W. Dorsaneo, Texas Litigation Guide, Ch. 82, Intervention.
PERSONAL JURISDICTION
Whether D has enough contacts in a forum in order to sue him there PJ is the price Ds pay when they get benefits of commerce or protection of law in the state. PJ is D oriented PJ is based on the 14th AmendmentDue Process (defense to PJ) US CONSTITUTIONAL TEST: (International Shoe v. Washington) Whether the nonresident defendant has purposely established minimum contacts with the forum state; AND The sufficiency of the defendants purposeful contacts with the forum If so, whether the exercise of jurisdiction comports with fair play and substantial justice. The fairness of asserting jurisdiction over the defendant, taking into consideration the comparative burdens on the parties and the interests of the forum state in adjudicating the dispute
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4 Steps to the Jurisdiction Question Is there a Long Arm Statute? A state through the legislature has passed law in order for the state to exercise jurisdiction over other states TEXAS Long-Arm statute: Non resident (CPRC 17.041): Individual that is not a resident of this state A foreign corporation, joint-stock company, association or partnership. A courts constituting business in this state (CPRC 17.042) In addition to other a courts that may constitute doing business (this gives ct. discretion), a non resident does business if: Contracts by mail or otherwise w/ TX resident and either party is to perform the K in part or whole inside the state; or Commits a tort in part or whole in the state; or Recruits TX residents for employment inside or outside the state Non-Exhaustive listing Service of Process (CPRC 17.043) process may validly be served on person in charge of business Also see Service Requirement Section III Substitute service (CPRC 17.044) may be valid on Secretary of State if: (a)(1) Resident agent engages in business in the state, but has not designated a agent for process of services (a)(2) 2 failed attempts on different business days has been made (a)(3) Defendant becomes a nonresident between the time of the incident and the time of the service. (b) Defendant engages in business of state, but does not maintain a regular place of business (c) Defendant dies; SOS may be served as an agent for executor or administrator of the nonresidents estate (d) Defendant is incompetent; SOS may be served as an agent for the guardian or personal
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representative of the nonresident Notice to non-resident (CPRC 17.045) SOS has to send copy of service to non-residents home, place of business, corporate office or principle place of business. Copy of service has to be mailed through registered, certified with return receipt requested. The statue cannot exceed the limits of the due process clause. A court of the state may exercise jurisdiction on any basis not inconsistent with the Const Does the cause of action arise from contacts with the forum? If yes, then must use the Specific Jurisdiction TEST If no, then must use the General Jurisdiction TEST Automatic Personal Jurisdiction If D is physically served in the state where the suit is brought (corporation cannot be sued in transit only for individuals Pennoyer) If person shows up in the state court With D consent (forum clause on K Carnival) If Substantial portion of the transaction/occurrence of the claim took place. SPECIFIC JURISDICTION DEF of Specific Jurisdiction: Arising out of or from the contacts with the forum a). It is the contact of the forum that generates the lawsuit that is crucial to the minimum contact analysis. TEST: Purposeful Availment Minimum Contacts (International Shoe) minimal contact PURPOSEFUL contacts in order to gain something from the forum direct target at particular forum Whether the D intentionally directed its conduct toward the forum in a manner that implicates the forum states sovereign interests and insures that litigation within the forum state is not undue. In analyzing minimum contacts, it is not the number, but rather the quality and nature of the nonresident defendants contacts with the forum state that are important Texas uses OConnors Stream of Commerce Test from Asahi: just putting a product in the stream of commerce, without more action purposefully directed toward the forum state is not purposeful availment D must seek to serve:
EX: Agents, Ads, Customer advice centers, Product designed towards the forum
In Asahi case, OConnor said that it wasnt enough b/c the company didnt control subsequent flow of commerce/product. Actual awareness that the product is actually being marketed in the forum is enough (Brennan) This is fair b/c you benefit from the state and the states laws Foreseeability Required: Conduct and connection with the forum state are such that D such reasonably anticipate being hauled into court there. (WWV and Burger King)
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F.
SUBJECT to FAIRNESS factors (Courts. Will generally not make a company have national jurisdiction and defend themselves in EVERY state). EXAMPLE: WWV=NO, b/c the car was not targeted/intended to go to that state, they solicit no business there, no ads, no sales office Burger King=YES, b/c they had a long-term K, contemplated future consequences, term of the K Clader v. Jones=YES, intentionally causing effecourts in forum. No actual presence required for minimum contacts. For WEBSITES (ZIPPO): look at how interactive website is, courts. usually dont give general jurisdiction. Commerce MUST be specifically directed at forum. Can not offend the traditional notions of fair play and substantial justice Burden on D Forum states interest in adjudicating P interest in obtaining convenient and effective relief Judicial system efficient resolution Shared interest of the several states in furthering fundamental substantive social policies A.Could bolster a case where there are iffy contacts GENERAL JURISDICTION 1.Def: Gen Jurisdiction: Where D has contacts with forum state, but cause of action does not arise out of these contacts 2.Internet Transactions a. The medium employed to conduct transactions is not what is controlling, but rather the qualitative connection of the transactions themselves with the forum state. An interactive website, then, should not suffice for general jurisdiction unless the nonresident defendant uses the website to act comparably to a local forum business. 3.TEST: a. Continuous and systematic part of its general business i. It means lots of contacts, lots of ads, lots of salesgeneral place of doing business ii. EXAMPLES:
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b.
A.Perkins case = YES b/c they had continuous operations in the forum office, payroll, meetings, bank account, correspondence = deemed to be ongoing activity. B.Helicol case = NO b/c only had occational activities ie.training for employees; CEO flew and negotiate K, bought some helicopter equipment = deemed NOT systematic and continuous. The same fairness rules as in Specific jurisdiction apply here
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TEXAS Pre-Trial Outline Thornburg Fall 2006
Personal Jurisdiction Purposeful Availment Contacts Tests

Decreasin g Increasin
G
Extent of casual or Singl e continuous Continuous
no
Jurisdictiona l
no
no
specific
specific
general
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III. CHALLENGES TO JURISDICTION BY NONRESIDENTS A. RULES 120a, 122 B. The Special Appearance 1. P bears the initial burden of pleading allegations sufficient to bring nonresident defendants within the
provisions of the long-arm statute. a. This minimal pleading requirement is satisfied by an allegation that the nonresident defendants are doing business in Texas or that D has committed any act in Texas. Perna v. Hogan. 2. D has the burden to prove that he is not amenable to the courts personal jurisdiction C. Special Appearance: if you deviate then it is a general apperance and you accept jurisdiciton
D. R120a Special apperance 1. 2. 3. 4. 5.

Made by any party For the purpose of objecitng ot the jursidciton of the court On the ground that such a party is not amendable to process Made by sworn motion Filed prior to mot to transfer venue, or any plea, pleading or motin
E. Can do discovery on issue of jursidiciton without waiver F. Has to be filed and heard first by the court G. Court considers in its ruling IN THE HEARING 1. 2. 3. 4. 5. 6.
objection Oral testimony Pleadings Stipulations Affidavits Attachments to these affidavits Results from disvery
H. If motion is overruled, then you can specially or generally apper and it is not a wiver of jurisdiciton I.
Dawson Austin v. Austin
1. Sepcial apperance not sworn to, included some other stuff, and it didnt explicity say I am filing other stuff subject to a special apperance 2. 3.
Under old rule this would be a special apperance
Defects in special apperance can be cured, can be filed any time before th party has bmade a general apperance
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4. 5. 6.
no waiver No general apperance unless the party is envoking the courts jurisdiction
It is implied that things are subject ot your special apperance, but want to put special apperances first (due order rules), must be heard in due order as well Cant bring up other motions before special apperance for parrty, but if adverse party does it then
IV.Post Judgment Challenged by Non Residents A.

Motion for new trial, have 30 days to file after judgment
1. 2.
Say that clients failure to answer wasnt due to lack of dilligence, it was inadvertent Show that there is no prejudice on other side
B. make special apperance C. then argue motion for new trial D. if done in wrong order waiver of jurisdiction E. have to rule on special apperance before they rule on the new trial F. 1. Common Law (Gulf Oil Co. v. Gilbert, 330 U.S. 501 (1947)) a. Adequate alternative forum i. There must be some other place where it could be a better place to file ii. Must have jurisdiction over all parties (D, P, Counter Ds) iii. Doesnt mean that it has to be just like the United States b. Private factors i. The important private interests of litigants that a trial court may consider are:
Forum Non Conveniens
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A.1. Relative ease of access to sources of proof; B.2. Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; C.3. Possibility of view of premises, if view would be appropriate to the action; and D.4. All other practical problems that make trial of a case easy, expeditious and inexpensive. c. Public factors i. About the Courts interests, members of the community ii. The public interest concerns recognized by the Gilbert court include: A.1. Administrative difficulties caused by litigation not handled at its origin; B.2. Jury duty imposed upon people of a community which has no relation to the litigation; C.3. Inability of people whose affairs may be touched by litigation to learn of it other than by way of report if held in remote part of the country; D.4. Local interest in having localized controversies decided at home; and E.5. Appropriateness of having a trial in a diversity case in a forum that is familiar with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws and in law that is foreign. Standard of review is abuse of discretion No FNC in personal injury and wrongful death cases, if P is legal resident of Texas, no FNC
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o o o Governed by state in texas Sect 71.051 CPRC Court can set terms and conditions, if break then take case back. And if granted still bound by original states SoL, to prvent problem
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Service of Process - Due Process Requirements o In bill of review have to show ! ! ! ! ! o o Meritorious defense to the underlying cause of action Prevented from kaing the defense by fraud, accident, or wrongful act of opposing party Or official mistakte And that it is unmixed of any fault of my own Cant make them show meritiorious defense if they were never served, if never served bill of review works
Long Arm Statute limited by due process including notice Strict compliance with all notice is required, actual notice is not sbustitue for doing it right, if not done right and a default judgment, will get thrown out
Service R99 o D must answer 20 days from day they are servieced, by 10am on next monday
III. STATUTORY AND RULE-BASED SERVICE REQUIREMENTS FOR PERSONAL JURISDICTION F. Strict Compliance (RULES 103, 105, 106, 107) 2. In addition to the due process notice requirements, Texas has a series of quite specific rules governing
3. 4.
5.
G.
1.
service of process: a. Who can serve, who can be served, what they should be served with, and what kind of documentation must be maintained to prove the service. Further, Texas courts require strict compliance with these rules, absent which a default judgment based on that service will be set aside. Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him. Wilson v. Dunn a. We hold that a default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit b. Therefore, actual receipt will not cure defective service Corporations a. When a D is an entity rather than a human, the return must reflect that service was on the entity, be serving an appropriate person. Benefit Planners v. Rencare i. Even when a return establishes that the person served was an agent for service of process, the return is still defective if it does not establish that the corporation was served by reciting that the corporation was served by serving or through the agent. ii. For Example: A.If the citation is issued to Benefit Partners, LLP., Tom Cusick, Jr. (Registered Agent), the return must match perfectly. 1. In that case, Tom P. Cusick, Jr., Reg. Agent was defective service Techniques of Service Issuance and Service of Citation
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CPRC 17.027 allows the plaintiff to prepare the appropriate citation for the defendant as long as the citation is prepared in the form prescribed in RULE 99(b) and served in the manner prescribed by law. b. Although the clerk may charge for the issuance of a citation, the clerk may not charge for signing his/her name and affixing the seal to a citation that is prepared by the plaintiff or his/her attorney in accordance with 17.027. Serving Persons in Texas Basic Methods a. Method of Service i. By Person A.RULE 103 provides that citation may be served by any sheriff or constable, any person authorized by law or by written court order who is not less than 18 years of age, or by any person certified under order of the Supreme Court. B.The language of RULE 106 speaks in terms of service by any person authorized by RULE 103. Sheriffs and constables are not restricted to their counties for purposes of service of process. C.In addition, [t]he order authorizing a person to serve process may be made without written motion and no fee shall be imposed for issuance of such order. RULE 103. ii. By Mail A.Service by mail is authorized by any person authorized by RULE 103 by . . . mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto. RULE 106(a)(2). B.No court order is necessary to authorize service by certified mail under RULE 106(a)(2). b. The Person to Serve i. When the defendant is an entity rather than a person, service is ordinarily accomplished by the delivery of citation to one of its authorized agents. Hence, the addressee to whom delivery is restricted under RULE 106(a)(2) should be the defendant or an agent authorized to accept service of citation. A.Domestic Corporations. The president, vice-president, or registered agent for service are the appropriate service agents. Bus. Org. C. 5.201; 5.255. If a domestic corporation fails to appoint a registered agent, the secretary of state serves as the registered agent. B.Partnerships. Service should be made on a partner or local agent of the partnership in the county in which the local agent transacts business, in all suits or actions growing out of or connected with such business and brought in the county in which office, place of business or agency is located. C.P.R.C. 17.021, 17.022 (Citation served on one member of a partnership authorizes judgment against the partnership and the partner actually served). However, service on one partner is not sufficient for a personal judgment against other partners who have not been served. C.P.R.C. 31.003. C.Limited Liability Companies. Service agents are the managers, if any, and the registered agents for service of process. Bus. Org. C. 5.201; 5.255(3). D.Joint Stock Associations. Service agents are the president, vice-president, secretary, cashier, assistant cashier, or treasurer of the association, or the local agent of the association in the county in which suit will be filed. C.P.R.C. 17.023. E.Real Estate Investment Trusts. Service agents are any resident trust manager or any officer of trust. Bus. Org. C. 1.002(22), 5.255(4). F.Domestic Insurance Companies. Service agents are the president, active vice president, secretary, and attorney in fact. Ins. C. Ins. C. 804.101(b). G.Counties. Service agent is the county judge. C.P.R.C. 17.024(a). H.Municipalities. Service agents are mayor, clerk, secretary, or treasurer. C.P.R.C. 17.024(b). I. School Districts. Service agents are the president of school board or the superintendent. C.P.R.C. 17.024(c).
a.
2.
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J. State of Texas. The secretary of state is the service agent for the State of Texas. C.P.R.C. 101.102(c). Alternative Methods of Service i. When service has been attempted under either RULE 106(a)(1) or 106(a)(2) but has not been successful, the court, on motion, may authorize service in some other reasonably effective manner. RULE 106(b). Particular methods suggested by the rule are as follows: A.Leaving a true copy of the citation, with a copy of the petition attached with anyone over 16 years of age at the location of the defendants usual place of business or usual place of abode or other place where the defendant can probably be found; or B.Any other manner that is shown by affidavit or other evidence to be reasonably effective to give the defendant notice of the suit. ii. The party requesting alternate service must file a motion supported by an affidavit that sets forth the location of the defendants usual place of business, abode, or other place and that states service was attempted either in person or by certified mail and that this attempt failed. iii. The affidavit must specifically state factual propositions and not be conclusory. Sgitcovich v. Sgitcovich iv. A trial court should not sign an order authorizing alternate service without hearing and considering evidence to the effect that it was impractical to obtain personal service. v. A record of the hearing should be made. Kirkegaard v. First City Natl of Binghamton A.Affidavits will suffice. Smith v. Texas Discount Co. B.Failure to make a record may result in the reversal of a default judgment. Spencer v. Texas Factors, Inc. vi. It would also be wise to include in the order for alternate service the method for a proper return of service, as strict compliance is required in this area as well. Service of Process and the Statute of Limitations Sometimes failure to achieve prompt service on the defendant will cause a case to be dismissed based on the statute of limitations, even if the case was filed before the statute ran. To bring suit within the limitations period, plaintiff must not only file suit within the applicable limitations period, but also must use diligence in having the defendant served with process. a. For example, in Taylor v. Thompson i. The court explained, Because plaintiff failed to serve citations on defendants within the period of limitations, she had the burden to prove that she used due diligence in procuring the subsequent issuance and service of citation upon the defendants. . . . An unexplained delay in effecting service constitutes a lack of due diligence. ii. Because the plaintiff waited four months after filing, and until two days before limitations ran, to request a private firm to serve the defendants, the court found that she did not use due diligence. iii. The record did not reflect any efforts to serve the defendants earlier. The court held that as a matter of law there was no valid excuse and no due diligence. Proof of Service: The Return RULES 103, 105, 107, 109a, 124 Personal Service a. The person serving process must make a return of service that shows: i. The day and hour on which citation was received. RULE 105. ii. The day on which citation was served and the manner of service. RULE 107. BrownMcKee, Inc. v. J. F. Bryan & Associates Certified or Registered Mail Service a. If service is by registered or certified mail, the return must also contain the return receipt with the addressees signature. RULES 107, 109a. Returns for Alternative Service a. If service is made pursuant to court order, strict compliance with the court order is required. Broussard v. Davila
c.
H.
1.
I. J.
1. 2.
3. 4.
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When service is by disinterested person or in some other manner reasonably effective to give defendant notice of the suit (RULE 106(b)), proof of service must be made in the manner ordered by the court. RULE 107. Amending Flawed Returns a. RULES 107, 118 b. The amended return relates back and is regarded as filed when the original return was filed. Lafleaur v. Switzer c. This original return was fatally defective, but the appellee procured an amended return sometime prior to the day of the hearing. RULE 118, provides: i. At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. Citation by Publication RULES 109-117a, 244, 329 Generally a. The pejorative term constructive service is frequently employed to describe citation by publication. It also has been accurately described as a sham upon due process. Specific Uses a. Citation by publication is specifically authorized in the following circumstances: i. Partition. In an action to partition when some portion of the land described in the petition is owned by a person who is unknown to the plaintiff or whose residence is unknown to the plaintiff. RULE 758. ii. Defunct Corporations. In an action against unknown heirs or stockholders of a defunct corporation. RULE 111; C.P.R.C. 17.004. iii. Land. In an action against unknown owners or claimants of interests in land. RULE 112, 113; C.P.R.C. 17.005. iv. Marriage Dissolution. In an action for divorce or annulment of marriage in which the defendant cannot be notified by personal service or registered or certified mail. Fam. C. 3.521. v. Ad Valorem Taxes. In suits for the collection of delinquent ad valorem taxes. RULE 117a. vi. Whereabouts of Defendant Unknown. When the defendants residence is unknown and cannot be ascertained after reasonable diligence, or the defendant is a transient person whose whereabouts are unknown and cannot be ascertained, or the defendant is absent from or a nonresident of Texas and service under RULE 108 has been attempted unsuccessfully. RULE 109. b. Whenever citation by publication is authorized, the court may, on motion, prescribe a different method of service if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give the defendant actual notice. RULE 109a. See also RULE 329. Special Requirements for Service on the SOS Under the General Texas Long-Arm Statute Proof of Long-Arm Service: The Return a. If a defendant is served through the Secretary of State pursuant to the general Texas long-arm statute, the service is accomplished once the Secretary has been served. The nonresident defendants time to answer begins to run when the secretary is served, not when the defendant receives the certified mailing. Accordingly, the return will show that it was served on the secretary, the date and hour, etc. b. The general long-arm statute does not specify a particular method by which the return of citation must be made. c. Typically, when the secretary of state is served under the general long-arm statute, a return will be filed showing service on the Secretary of State. d. More importantly, the default judgment record must include proof of service in the form of a certificate from the secretary of state showing receipt of process on a particular date as agent for
b.
5.
K.
1. 2. 3.
L.
1.
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the nonresident defendant and the forwarding of the process to the nonresident defendant at a particular address by certified or register mail. Whitney v. L&L Realty Corp. The Texas Supreme Court has also held that, absent fraud or mistake, a certificate from the secretary of state is conclusive evidence that the secretary of state was served with process and forwarded the papers as required by statute. Capitol Brick, Inc. v. Fleming Mfg. Co. M. An Alternative way to Service Nonresident Defendants RULE 108 1. Rule 108 provides that service of process on a nonresident defendant or on any defendant who is absent from Texas may be made in the same manner as that provided for service of citation on residents under RULE 106. a. RULE 106 permits service of citation by delivery, in person, of a copy of the citation with a copy of the petition attached. 2. Service by registered or certified mail may, if requested, be made by the clerk of the court. 3. RULE 108 provides further that nonresident notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106. - Using the Sec of State for Service of Process
e.
o o
When it is proper, you have served D as if you have served their registred agent Have to plead facts to show that the method of service is proper, ! ! No Maintian a place of regular business in texas No registed agent
Same principle when pleading jurisdiciotn
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Venue System - If thre is a mandatory provision, then use that. If not, P can choose any proper county under the general rule or permissive exception. General Rule: (CPRC 15.002) all lawsuits shall be brought: o (1) In the county in which all or a substantial part of the events or omissions giving rise to the claims occurred; or o (2) In the county of defendants residence at the time the cause of action accrued (if defendant is a natural person); or o (3) In the county of the defendants principle office (if defendant is not a natural person); or ! means nerve center place where decisions makers conduct daily affairs of organization. In re Missouri Pacific o (4) if (1), (2) or (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action venue. o Defendants Residence (Natural Persons) ! When a dispute arises about a persons residence for venue purposes, the court must decide whether the person has sufficient ties to the county to say that he or she resides there. This is different from identifying a persons permanent home. o Defendants Principal Office (Legal Persons) ! C.P.R.C. 15.001. Definitions. In this chapter: (a) Principal office means a principal office of the corporation, unincorporated association, or partnership in this state in which the decision makers for the organization within this state conduct the daily affairs of the organization. The mere presence of an agency or representative does not establish a principal office. The legislative history supports our conclusion that: (1) a company may have more than one principal office, (2) the decision makers who conduct the daily affairs of the company are officials who run the company day to day, (3) a mere agent or representative is not a decision maker nor is a principal office one where only decisions typical of an agency or representative are made, and (4) a principal office is not an office clearly subordinate to and controlled by another Texas office. In re Missouri Pacific Railroad Company o County in which All or a Substantial Part of the Events or Omissions Giving Rise to the Claim Occurred ! In addition to residence and principal office, venue is proper under the general rule in any county where all or a substantial part of the events or omissions giving rise to the claim occurred. The language is modeled after the federal venue statute, 28 U.S.C. 1391. Under the federal statute, it is clear that there may be more than one district that meets the definition. Texas courts have begun to interpret this new language, trying to discern when events are sufficiently central to a claim to qualify as a substantial part. ! Tort Claims Place of damages or where injuries occur, even if another county would have been appropriate. It is reversible error to transfer venue from a proper venue even if the county of transfer would have been proper if originally chosen by the Plaintiff. If there is any probative evidence that supports venue in the county of suit the trial court must deny the transfer. Velasco v. Texas Kenworth Co. ! Contract Claims First, we note that a substantial part of the events or omissions giving rise to a claim may occur in more than one county. S. County Mut. Ins. Co. v. Ochoa.
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Plaintiffs are accorded the right to choose venue first as long as suit is initially filed in a county of proper venue. Wilson v. Tex. Parks & Wildlife Dept. When the county in which the plaintiff files suit is at least a permissive venue and when no mandatory provision applies, the plaintiffs venue choice cannot be disturbed. Chiriboga v. State Farm Mut. Auto. Ins. Co. If the parties dispute involves two counties of permissive venue, transferring the case is improper. Wilson. o The elements of a breach of contract claim are (1) existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages to the plaintiff resulting from the breach. ! So, in terms of the venue provision and Stephens claim for breach of contract, the evidence here connects at least two elements the existence of a contract and the defendants breach to Lamar County. ! We conclude events or omissions pertaining to two elements of Stephens & Sons breach of contract claim are sufficient to qualify as a substantial part of the plaintiffs claim and sufficiently connect the claim to Lamar County. We hold that these facts constitute probative evidence supporting venue in Lamar County. We, therefore, must not disturb the trial courts denial of Browns motion to transfer venue . . . KW Construction v. Stephens & Sons Concrete Contractors, Inc. - Ps choice of venue stands unless challenged by proper motion to transfer venue o o Once challenged P has burden to present prima facie proof by affidavit or other appropriate evidence that venue is maintainbable in the county of suit If doenst, then goes to D who must then prove that venue is proper in Ds chosen county
- Mandamus review available to provide immediate review, but must be a clear abuse of discretion - Transfer Based on Convenience o Convience of parties and witnesses and interest of justice, court must find ! ! ! o o o o Maintenance of the action in the county would work an injustice to the movant considering their economic and personal hardship Balance of iterests of all the parties perdominates in favor of the action being brought in the other county; and The transfer of the action would not work an injustice to any other party
Motion must be urded at very outset of the case filed and served concurrently with or beofre the filing of an asnwer Only D can seek tranfer based on convience Trial courts decision cant be reviewed Mandatory Venue: ! [If more than one mandatory provision applies the principal relief sought controls (CPRC 15.004)]
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Land (for TITLE of land) (CPRC 15.011) o Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located. Landlord-Tenant (under lease) (CPRC 15.0115) o (a) Except as provided by another statute prescribing mandatory venue, a suit between a landlord and a tenant arising under a lease shall be brought in the county in which all or a part of the real property is located. o (b) In this section, lease means any written or oral agreement between a landlord and a tenant that establishes or modifies the terms, conditions, or other provisions relating to the use and occupancy of the real property that is the subject of the agreement. Injunction against suit (CPRC 15.012) o Actions to stay proceedings in a suit shall be brought in the county in which the suit is pending. Injunction against execution of judgment (CPRC 15.013) o Actions to restrain execution of a judgment based on invalidity of the judgment or of the writ shall be brought in the county in which the judgment was rendered Mandamus against the State of TX (CPRC 15.014) o An action for mandamus against the head of a department of the state government shall be brought in Travis County Counties (CPRC 15.015) o An action against a county shall be brought in that county Certain Political Subdivisions (CPRC 15.0151) o (a) Except as provided by a law not contained in this chapter, an action against a political subdivision that is located in a county with a population of 100,000 or less shall be brought in the county in which the political subdivision is located. If the political subdivision is located in more than one county and the population of each county is 100,000 or less, the action shall be brought in any county in which the political subdivision is located. o (b) In this section, political subdivision means a governmental entity in this state, other than a county, that is not a state agency. The term includes a municipality, school or junior college district, hospital district, or any other special purpose district or authority Other mandatory venue (CPRC 15.016) o An action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute Libel, Slander, or Invasion of Privacy (CPRC 15.017) o A suit for damages for libel, slander, or invasion of privacy shall be brought and can only be maintained in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county in which the defendant resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff. Federal Employers Liability Act & Jones Act (CPRC 15.018) o (a) This section only applies to suits brought under the federal Employers Liability Act (45 U.S.C. Section 51 et seq.) or the Jones Act (46 U.S.C. Section 688). o (b) All suits brought under the federal Employers Liability Act or the Jones Act shall be brought: ! (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; ! (2) in the county where the defendants principal office in this state is located; or
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! (3) in the county where the plaintiff resided at the time the cause of action accrued. Inmate Litigation (CPRC 15.019) o (a) Except as provided by Section 15.014, an action that accrued while the plaintiff was housed in a facility operated by or under contract with the Texas Department of Criminal Justice shall be brought in the county in which the facility is located. o (b) An action brought by two or more plaintiffs that accrued while the plaintiffs were housed in a facility operated by or under contract with the Texas Department of Criminal Justice shall be brought in a county in which a facility that housed one of the plaintiffs is located. o (c) This section does not apply to an action brought under the Family Code Major Transactions venue specified in written agreement for aggregate value of $1M or more in value (not for personal or settlement of wrongful death or personal injury) (CPRC 15.020) o (a) In this section, major transaction means a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than $1 million. The term does not include a transaction entered into primarily for personal, family, or household purposes, or to settle a personal injury or wrongful death claim, without regard to the aggregate value. o (b) An action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county. o (c) Notwithstanding any other provision of this title, an action arising from a major transaction may not be brought in a county if: ! (1) the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction; or ! (2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another county of this state or in another jurisdiction, and the action may be brought in that other county, under this section or otherwise, or in that other jurisdiction. o (d) This section does not apply to an action if: ! (1) the agreement described by this section was unconscionable at the time that it was made; ! (2) the agreement regarding venue is voidable under section 35.52, Business & Commerce Code; or ! (3) venue is established under a statute of this state other than this title. o (e) This section does not affect venue and jurisdiction in an action arising from a transaction that is not a major transaction. Permissive Venue actions (these do not override the general rule they simply provide alternative venue choices for the plaintiff) ! Executor; Administrator; Guardian (against them) (CPRC 15.031) If the suit is against an executor, administrator, or guardian, as such, to establish a money demand against the estate which he represents, the suit may be brought in the county in which the estate is administered, or if the suit is against an executor, administrator, or guardian growing out of a negligent act or omission of the person whose estate the executor, administrator, or guardian represents, the suit may be brought in the county in which the negligent act or omission of the person whose estate the executor, administrator, or guardian represents occurred ! Insurance (against them) (CPRC 15.032)
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Suit against fire, marine, or inland insurance companies may also be commenced in any county in which the insured property was situated. A suit on a policy may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health, and accident insurance company in the county in which the companys principal office in this state is located or in the county in which the loss has occurred or in which the policyholder or beneficiary instituting the suit resided at the time the cause of action accrued ! Breach of Warranty by Manufacturer (CPRC 15.033) A suit for breach of warranty by a manufacturer of consumer goods may be brought in any county in which all or a substantial part of the events or omissions giving rise to the claim occurred, in the county in which the manufacturer has its principal office in this state, or in the county in which the plaintiff resided at the time the cause of action accrued ! Contracts in Writing (CPRC 15.035(a)) (a) Except as provided by Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place in that county by that writing, suit on or by reason of the obligation may be brought against him either in that county or in the county in which the defendant has his domicile. (b) In an action founded on a contractual obligation of the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use, suit by a creditor on or by reason of the obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract or in the county in which the defendant resides when the action is commenced. No term or statement contained in an obligation described in this section shall constitute a waiver of these provisions ! Other Permissive Venue (CPRC 15.038) An action governed by any other statute prescribing permissive venue may be brought in the county allowed by that statute ! Transient Person (CPRC 15.039) A transient person may be sued in any county in which he may be found Joinder ! RULES 37, 38, 39, 40 & 41 ! Generally When there are multiple plaintiffs or multiple defendants (or both), RULE 40 applies and Texas civil practice requires at least one common claim linking the plaintiffs or the defendants together. Persons may join as plaintiffs or be joined as defendants when the claims by or against them arise out of the same transaction, occurrence, or series of transactions or occurrences, and when they share a question of law or fact common to all parties joined. The traditional rule in Texas is that if venue is proper as to one of several claims made against the same defendant, other claims against that defendant that are properly joined can be litigated in the same venue. Middlebrook v. David Bradley Mfg. Co. o This rule is referred to as the Middlebrook doctrine, and it is intended to promote efficiency by avoiding a multiplicity of suits. o As to any one defendant, then, if there is one good claim against that defendant that makes venue proper in the county of suit, venue is also proper as to other claims by the same plaintiff against that defendant In contrast, C.P.R.C. 15.004 expressly provides that if one of the joined claims is subject to a mandatory venue exception, all of the claims arising from the same transaction or occurrence or series of transactions or occurrences must be brought in the county required by the mandatory venue provision ! TESTS: Whether claims will include significant evidence overlap AND
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Whether the claims are logically related in determining whether they arise out of the same transaction or occurrence Multiple Or Intervening Plaintiffs (CPRC 15.003) ! (a) If more than one plaintiff is joined, EACH plaintiff MUST INDEPENDENTLY establish proper venue or they cannot be joined to the suit, UNLESS: (1) Joinder is proper under TRCP; (2) Maintaining suit in that county does not unfairly prejudice another party; (3) There is an essential need to have the persons claim tried there; AND o Citing a legal dictionary definition of essential, Surgitek argues that an essential need is one that is indispensably necessary. Another dictionary likewise defines essential as necessary, such that one cannot do without it. We recognize that this burden is very high, but the language of the statute makes it so. Here, the plaintiffs did not establish that it was indispensably necessary to try their claims in Bexar County. Surgitek, Bristol-Myers Corp. v. Abel o Collateral estoppel ! The courts are split as to whether an essential need can be shown if the party seeking to join as a plaintiff would be bound by the results of the pending case under the doctrine of collateral estoppel. 2 (4) County is a fair and convenient venue for the person seeking to join. ! (b) Interlocutory appeal may be taken of a trial courts determination under (a) that: (1) Plaintiff did or did not independently establish proper venue; or (2) Plaintiff that did not independently establish proper venue did or did not establish the items prescribed in (a)(1-4). ! (c) An interlocutory appeal permitted by (b) must be take to Court of appeals district in which the trial court is located. The Court of appeals shall: (1) Determine whether the trial courts order is proper based on an independent determination from the record and not under abuse of discretion or substantial evidence standard; and (2) Render judgment not later than the 120th day after the date of the appeal is perfected. ! (d) An interlocutory appeal under subsection (b) has the effect of staying the commencement of trial in the trial court pending resolution of the appeal. Multiple Defendants (CPRC 15.005) ! If plaintiff establishes proper venue over ONE defendant, then Ct. has venue over ALL the defendants and ALL claims or actions arising out of the same transaction or occurrence. Counterclaims, Cross-Claims and Third-Party Claims ! Plaintiffs arent the only ones who can add claims to lawsuits. Defendants can do the same. Here are three types of claims filed primarily by defendants (although under certain circumstances plaintiffs may do so as well) Counterclaims are claims seeking relief against an opposing party. If they arise out of the same transaction or occurrence as the opposing partys claim, they are compulsory (in the sense of use them or lose them.) If not, they are permissive. RULE 97 (a) & (b). Cross-claims are claims made against co-parties, as, for example, claims for contribution or indemnity made between co-defendants. RULE 97(c). Third party Claims (also called impleader) are claims brought by a defendant against a person not a party to the action who is or may be liable to the defendant or to the plaintiff for all or part of the plaintiffs claim against the defendant. RULE 38. ! The Civil Practice and Remedies Code addresses the way in which these claims are treated for venue purposes.
o o
2 Compare Smith v. Adair, 96 S.W.3d 700, 707 (Tex. App. Texarkana 2003, pet. denied) (Court held essential need was also not shown even though the first to finish might cause collateral estoppel to apply) with National Union Fire Ins. Co. v. Valero Energy Corp., 143 S.W.3d 859 (Tex. App. Corpus Christi 2004, pet. denied) (the court held that essential need can be shown if the party seeking to join as a plaintiff would be bound by the results of the pending case under the doctrine of collateral estoppel).
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C.P.R.C. 15.062 - Counterclaims, Cross Claims, and Third-Party Claims o (a) Venue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute. o (b) If an original defendant properly joins a third-party defendant, venue shall be proper for a claim arising out of the same transaction, occurrence, or series of transactions or occurrences by the plaintiff against the third-party defendant if the claim arises out of the subject matter of the plaintiffs claim against the original defendant Litigating Venue Rights ! RULES 86, 87, 88, 89 ! Motion to Transfer: (based on convenience) (CPRC 15.002(b)) for the convenience of the parties or in the interest of justice, a Court may transfer from one proper venue to any other county with proper venue on motion of a defendant filed AND served concurrently with or before the filing of the answer, where the court finds: (a) Maintenance of the action in the county of suit would work an injustice to the movant considering the movants economic and personal hardship; (b) The balance of interests of all the parties predominates in favor of the action being brought in the other county; and (c) The transfer of the action would not work an injustice to any other party. (d) A courts ruling or decision to grant or deny a transfer under Subsection (b) is not grounds for appeal or mandamus and is NOT REVERSIBLE ERROR! ! Waiver of Venue: (CPRC 15.063) An objection to improper venue is waived if not made by written motion filed before or concurrently with any other plea, pleading or motion except a special appearance. ! Raising the Issue of Improper Venue The plaintiff has the first choice to fix venue in a proper county, which is done by filing suit in the county of choice, and is ordinarily bound by this choice. A defendant seeking a venue change should file a motion to transfer venue. o Generally, a motion to transfer venue on the basis that venue is improper must be made at the earliest opportunity. o Objections to improper venue are WAIVED UNLESS made by written motion filed before or concurrently with any other plea, pleading, or motion EXCEPT a special appearance motion. RULE 86(1). The primary basis for transfer (other than on grounds of inconvenience or inability to obtain a fair trial) is that venue is not proper in the county of suit and is proper in the county to which transfer is sought (or that venue is mandatory in a particular county despite the fact that venue would otherwise have been proper where the action was filed); o No response is necessary except as required by RULE 87(3)(a). A trial court has no discretion to transfer venue on its own motion, even to a county of proper venue. In re Masonite Corp ! Venue Hearings In all venue hearings, no factual proof concerning the merits of the case shall be required to establish venue. See C.P.R.C. 15.064(a); see also RULE 87(2)(b). Second, to eliminate mini-trials on venue issues altogether, the statute was amended to provide that [t]he court shall determine venue on the basis of the pleadings and affidavits. C.P.R.C. 15.064(a) Under RULE 86, a DEFENDANT who wants to challenge venue files a timely motion to transfer venue o The motion should name the county to which the defendant seeks transfer. RULE 86. o If the defendant has specifically denied the venue facts that plaintiff pleaded, then the plaintiff must make prima facie proof that venue is correct by supplying affidavits swearing to the venue facts.
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If plaintiff does so, the facts are sufficiently established. RULE 87 RULE 87 provides that a claimants prima facie proof that venue is proper will prevent a venue transfer the court will not look at a defending partys response unless the venue transfer motion is based on the grounds that an impartial trial cannot be held in the county of suit or on an established ground of mandatory venue as reflected in the movants prima facie proof. RULE 87(3) (a)-(c). o Because all venue facts, when properly pleaded, are taken as true UNLESS specifically denied by the adverse party, the motion must contain specific denials of the venue facts pleaded by the plaintiff in the petition. RULE 87(3)(a). ! This requires more than a statement that the defendant specifically denies those venue facts pleaded in Plaintiffs Original Petition that purport to establish venue. Maranatha Temple, Inc. v. Enterprise Products Co ! The motion must also request that the action be transferred to another specified county of proper venue, setting out the legal and factual basis supporting venue in the county to which transfer is sought RULE 86(3). ! Facts supporting venue in the county to which transfer is sought should be specific, as venue facts in a defendants motion to transfer are also taken as true unless specifically denied. RULE 87(3)(a). A PLAINTIFF wanting venue to remain in the county in which the suit was originally filed must respond to the motion and demonstrate that venue is proper. o Properly pleaded venue facts in the defendants motion to transfer and in the plaintiffs petition must be taken as true unless specifically denied. RULE 87(3) (a). ! Specific denial of the venue facts contained in the motion to transfer will compel the defendant to present prima facie proof of his or her venue allegations. RULE 87(3)(a). ! Similarly, when the defendants motion specifically denies venue facts contained in the petition, the plaintiff must make prima facie proof. Prima facie proof requires that venue facts be properly pleaded and that an affidavit and any relevant discovery products that set forth facts supporting the pleading be filed. RULE 87(3)(a); RULE 88 (discovery products may be considered by court in making venue determinations). ! Therefore, a plaintiffs response should be accompanied by affidavits and attached discovery products proving venue facts in the petition that were specifically denied in the motion to transfer venue. It is recommended that the response itself outline the venue facts that will be established by the affidavits and attachments. Appellate Review of Venue Rulings ! Venue on Appeal: CPRC 15.064(b) provides: o On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits. Ruiz .v Conoco established highly deferential standard of review only probative evidence to support trial court ruling (CPRC 15.064(b)) Wilson v. Texas Parks & Wildlife Dept court may not transfer venue if original venue chosen by P is proper, even if 2nd venue would have been proper if chosen by P. P has right to make first choice of venue. !
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In re Masonite Corp - trial court has no discretion to transfer venue on its own motion, even to a county of proper What happens if the trial court transfers a case when it should not have done so, but it transfers the case to a county in which venue would have been proper from the outset? Is it still automatically reversible error? Wilson v. Texas Parks and Wildlife Dept (1994) o Under the rule announced today, if Travis County, the venue chosen by Plaintiffs, was a county of proper venue, then Blanco County cannot be a county of proper venue as a matter of law. 3 o [The court then concludes that the record contained some probative evidence that venue was proper in Travis County.] o Because we find that Travis County, the venue chosen by Plaintiffs, was a county of proper venue, we hold that Blanco County was an improper venue as a matter of law. The trial of this lawsuit in Blanco County constitutes reversible error. See CPRC 15.064(b) Contracting for Venue ! Due to a 1999 venue statute amendment, forum selection clauses are enforceable if they arise out of certain transactions that qualify as major transactions. Generally, this refers to transactions involving an aggregated stated value of $1 million or more. Such agreements are binding unless unconscionable when made, and control over other provisions of Chapter 15. They do not, however, control over the venue provisions of statutes outside of CPRC Chapter 15 ! However, the statute explicitly does not affect venue or jurisdiction in an action arising from a transaction that is not a major transaction. C.P.R.C. 15.020(e). Although with the exception of major transactions the parties may not contract out of the basic venue scheme, a contract that provides for performance in a particular county of the obligation sought to be enforced may provide the basis for venue in the county of performance. In this sense, then, parties may indirectly choose venue. See C.P.R.C. 15.035 ! EXCEPTION: Parties may also contract with respect to venue after suit is filed. The court must transfer an action to another county if the parties file a written consent to transfer to that county. C.P.R.C. 15.063(3). Also, if a motion to transfer on the grounds of inability to obtain an impartial trial is granted, the parties may agree on the particular county to which venue will be transferred. RULE 259(d)(2). o A written agreement made in accordance with RULE 11 entered into before a case is transferred and filed with the transferee court, operates as an express waiver of the venue issue on appeal. Farris v. Ray. !
3The parties agree that Blanco County would have been a proper venue had the Plaintiffs originally filed suit there.
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Pleadings - Defects in Pleading o o o - Petition o o o o Filed to start the action Can be amended, and amended petition supercedes the previous petition Can supplement ptetition, to raise things that happened after the law suit, or to respond the Ds allegation Have to include ! ! ! ! ! ! Allegations of personal jurisdiciton over the D Subject matter jurisdiction Venue is proper Indnetify the parties Statement of facts Elements of cause of action Should be able to identify the Ps legal right, what duty that created in the D, and that the D breached the duty Requirement of Fair notice o Fair Notice of Legal Theory ! ! ! ! Purpose is to allow D to adequately prepare a defense So need factual sufficiency to inform them Also works if P trying to sue for soemthing that is not a cause of action or invalid cause of action D has to file special exception to give P oportunity to amend To Vague Omission of elements of a cause of action, or trying to allege something that isnt a cause of action Use special exception, to complain that it is too vague or legally incorrect
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! ! ! ! Apply pleading rules very liberally in favor of the pleader Ok if cause of action can be reasonably inferred from what is stated even if element is left out Example: pleading on negligence doesnt give fair notice of negligence per se D can waive these if they dont object Every defect or omission in pleading that is not pointed out by exception in writing, and having it brought to the attention of the judge, shall be deemed to have been wiaved (dont apply in default cases) Pg 286 chart
! o
Cant change legal theory of what you pleaded to what you are putting evidence on without amending
Fair Notice of Factual Theory ! ! ! Most strictly enforced with default judgment case Traditionally requred a lot of facts (White v. Jackson) Modern apprach (Willock v. BUI) ! Broaer jury instructions now Idenfied D A date, Time of Day Allegation that is personal injury Type of car driven Type of collsion But no way alledged how D was negligent Here notice enough of what he is getting sued for
Standrd of Sufficency: if an opposing attorney of reasonable competence could, with the pleading berofre them, ascertaint he nature and the basic issue of the
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controversy and the testimonyt hat will probably be relevant ! Roark v. Allen Med Mal case Didnt use word negligence Dont have to use magic word to give fair notice, had words jointly and severally, was enough since it refered to liablity
If D specially excepts, then have to plead more specifically and then will limits what you are allowed to prove up
Need elements of claim in petition (ex. Negligence) o Pleading Injuries and Damages ! R56: When items of special damages are claimed they shall be specifically stated Damages that vary from person to person o o o o o o ! ! Loss of income Future damages Consequential damages Past or future medical expenses Punative damages If defemation, personal physcial suffering
Dont have to plead specifically if general damages If dont plead damages that are special (Weigartens v. Price) can ask for trial amendment because it creates variance problems D has to show prejudice to stop it If not amendended, then cant get them
Measure of damages
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! Dont have to plead them as measure of legal forumlas But have to pead info thatcourt will use to calculate damages Can amend without petition up until trial
Can combine elements by stating what happened
Prayer for relief R47: in lat paragraph R47(b): in all claims for unliquidated damages, only have to state that damages are within jurisdiciton of the court, and all other relif that the party thinks they are entitled to D can specially except and ask for amount, and if jury goes over that then no pleadings to support, but P can ask for amendment With LD: can calculate them so have to state them General prayer v. Special Prayer o General prayer: P prays for all releif at law or equirty ! Sufficent to authorize judmgent for any releif that is consitent with cause of action that was pleaded, and allows for statutory prejudmgment interests 2 Exceptions General prayer is not enough to entitle P to recover non-montary releif (use special prayer for court order besides money)
Special Prayer: if court decides that the special prayer is inconsistent with releif sought under general prayer (recision) ! Tennesse Life ! Mentions post judmgent interest, and didnt say prejudgment interestinconsistent So needed to ask for both to get both
EXAMPLES Claims for injunctive relief, rescission, and removal of a cloud on the title to property are examples of when a specific prayer is needed Discovery Level Request (not required)
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o Pleading in the Alternative ! ! ! ! R48: can set forth 2 or more statements of a claim or defense latnernatively or hypothetically, regardless of consistency Can combine both requests for legal and equitable releif Can have both submitted to the jury Birchfield v. Texarkana Memorial o If jury finding support both alterntaive positions P has to chose which one to accept, after jury verdict, and formally wiave the findings you dont want If they dont make formal eleciton, court should enter judgment that allows greater recorver
R66: Amendments to the Pleadings ! ! ! Trial Amendments: if evidence is not within issues stated by pleading, the court may allow pleadings to be amnded, shall do so freely Objecting party has to show prejudice Takes care of variance problems
Petition construed in favor of pleader. Every fact will be supplied that can reasonably be inferred from what is specifically stated. ! A pleading will be upheld even if some element of a cause has not be specifically allege
Ds Pleadings: ! Answer (Rules 83, 84, 85): Sets forth Ds grounds of defense in plain and concise language. (Can include all of the motions below) Primary function is to avoid judgment by default. ! Special Appearance Motion (Rule 120a): Motion contesting a non-residents amenability to process is a Ds plea. Must be filed 1st. Must be sworn. Every appearance, prior to judgment on Special Appearance, must be filed subject to. A Special Appearance motion must be heard and determined before any other motion ! Motion to Transfer Venue (Rule 86): Motion claiming venue is not proper or is inconvenient. Must be filed prior to or concurrently with any other plea, EXCEPT a special exception, or Venue is Waived Must state that venue is either (1) Not Proper OR (2) Mandatory Venue governs
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NOTE: Written consent of the parties to transfer the case to another county may be filed with the court at any time Dilatory Motion to Quash Citation (Rule 122): D may attack the propriety of the service by this plea. Seldom used, b/c the only effect is to delay the appearance day. A motion to quash is a general appearance and should not be filed by a non-resident contesting personal jurisdiction. Plea in Abatement (mentioned in rule 85, and rule 93, but no specific rule): Method of raising a fundamental defect in the mode of bring the action, other than on personal jurisdiction, citation, or venue grounds. May need to be verified (Rule 93) depending on specific defect - but customarily sworn It is a catchall type of plea. Frequently used to raise matters such as the prior pendency of another action or the failure to join a person needed for just adjudication. EXAMPLE: Failure to join a party, Suit already somewhere else. Dilatory Wyatt v. Shaw Plumbing ! Wyatt files DTPA and Fraud claim in Duvall County. ! Shaw sues Wyatt in Nueces County and adds defendant Spear. Wyatt files plea in abatement - transfer Nuecese case to join Duvall case. SC says this is the same case and the claim in Nueces is compulsory counterclaim to DTPA claim. ! Court also lists exceptions to dominant jurisdiction: Estoppel because of bad behavior If there is someone in the second lawsuit who cannot be made a party in the first lawsuit First suit filed without any real intent to prosecute (overlaps with first exception) Plea to the Jurisdiction: Challenge to the courts exercise of jurisdiction of the subject matter of the action. Customarily the plea is sworn, although no rule of procedure requires it. Immunity under the Tort Claims Act o If the government defendant wouldnt be liable, they arent just immune from liability, they are immune from suit Subject Matter Jurisdiction Improper amount in controversy Popular for the government to use a plea to the jurisdiction Texas Dept. Of Parks v. Miranda o Recreational Use statute o Government Immunity o SC: plaintiff pleaded gross negligence (which was necessary to sue the government) Special Exception (Rule 91): Attacks the sufficiency of the opponents pleadings raising defects of either form or substance. Often used to complain that the opponents pleading is too vague. Waiver: Must object, if not, objection is waived. (Rule 90) Must point out intelligibly and w/ particularity the defector other insufficiency in the allegations. Does not need to be verified
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The special exception fulfills the function that the motion to dismiss for failure to state a claim and the motion for more definite statement fulfill in federal court This is much like the old demurrer Dilatory Pleas o Plea to the jurisdiction o Motion in abatement o Motion to transfer venue o These pleadings are usually sworn, might have some evidence, and are used to slow down the process Formal Defects o A general allegation of negligence has long been held to be subject to special exception. The usual reason for excepting to general pleadings is to obtain further information about and narrow the claims or defenses asserted by the adverse party. One who does not need such information to prepare for trial will probably permit the pleading to go unchallenged. o The same logic applies to other general allegations, e.g., breach, default, etc. o The special exception remains the proper tool to challenge a formal defect in the opponents pleading Substantive Defects o Failure to plead a component or constituent element of a cause of action is considered a substantive pleading defect. o As noted above, however, the defect can be waived. o Understand, though, that waiver of the pleading defect does not eliminate the requirement of proof of all component elements of a ground of recovery or defense at trial. o In short, waiver of the pleading defect merely waives the right to have the element pleaded it does not constitute an admission of an unpleaded element. RULE 301. If you want to complain about a defect in pleading, you must specially except. Special Denials R54: if P pleads that certain conditions precedents were met in order to recover specially, then if D doesnt speically deny each condition, then taken as true o Dairlyand Case ! ! ! Insurance, P saying they met all conditions precedent D pleads general, P has to speciallye excpet, if dont amend then D waives R90: waiving defects, deemed to have been wiaved by party seeking reversal on such a count (by party seeking reversal) Here P not seeking reversal so didnt matter
! !
Sworn Account Petition (Rule 185)
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A sworn account is a specialized kind of suit on a debt. Traditionally, if the plaintiff pleads it correctly, the defendant would be held to have admitted the account unless it was denied under oath and in exactly the right language. When any action or defense is founded upon an open account or other claim for goods, merchandise, or is for personal services rendered or labor or founded on business dealings between the parties on which a systematic record has been kept, AND is supported by the affidavit of the party (taken before an officer authorized to administer oaths) to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payment s and credits have been allowed, the same is taken as prima facie evidence, o UNLESS: the party resisting such claim shall file a SWORN, written denial of each and every item as untrue, or that some specific items are untrue otherwise, defendant will not be permitted to dispute receipt of the items or services or the correctness of the stated charges (this rule is strictly enforced). To allege a cause of action properly under Civil Procedure Rule 185, a petition should indicate that the claim is within the coverage of the rule and give fair notice of its content . . . No particularization or description of the nature of component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings Special exceptions not requried in response to a defective denial
Verified Denials (R93) Have to be made specifically and sworn to, if dont plead them then variance problem (doesnt shift the burden of proof, and is waivable at the pleading stage if dont specially except) o o 1. P lacks the legal capcity tos ue or that the ED lacks the legal capcity to be sued (Capacity) 2. The P is not entitled to recover in the capcity in which the P sued or that the D is not liable in the capcity in which the D was sued (Capicty) ! ! ! ! o o o Authority of person to bring claim or to have claim brougth against them If need to be sued in official capacity and sued in personal acapcity Executor on behalf of the state Must be raised early, must be timely to deny capcity
3. Plead in abatement 4. Defect of parties 5 + 6. Nautre of the entity
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o o o o o o o o o o 7. Denial of execution 8. Denial of genuiness of an ednorsement or assignment 9. Lack of consideration or failure of consideration 10. Denials of sworn accounty 11. Usuary 12. Notice and proof of loss or claim for damages 13. Workers comp cases 14. Not doing business under assumed name 15. Insured Motorists 16. Incoprate Statutes under this rule
Failrue to have sworn denial: if not sowrn to then those issues are not in front of court, and lose argument, all P has to do is introduce evidence of dument to prove up tiems
Affirmative Defenses R94 (list of traditional affmirmative defenses) Sets up an independent ground defeating Ps recovery, i.e., one that does not operate by denying elements of the claim. Affirmative defenses must be alleged affirmatively, as well as proved, by a defendant. A reason or excuse separate from the Plaintiffs case. A general denial is ineffective to raise them. o Accord and Satisfaction o Arbitration and Award o Assumption of risk o Contributory negligence o Discharge in bankruptcy o Duress o Estoppel o Failure of consideration o Fraud o Illegality o Injury by fellow servant o Laches o License o Payment o Release o Res judicata o Statue of frauds o Statute of limitations o Waiver Have to plead it specifically, and give fair notice to the P
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Echols v. Bloom o o o o Definition and System ! ! ! ! R45: like size of paper R47: Test for adequacy of petition R79: has to include ifno about P, like parties and their residence R50: requirements about paragraphing o Nubmered paragraphs Limited to statemetn of single set of circumstances Allowed to incorporate it by reference later in same pleadings and other motions Failure of consideration is an affirmative defense and has to be pleaded and verified under R93, D didnt do either P has to specially except if they want an appeal on issue Affirmative defense is one that doesnt increase Ps burden of proof
Certifications and Sanctions for Fivolous pleadings and Motions ! R13: certifing when you sign, that to the best of knowledge, after reasonable inquiry, the instrument is not groundless and brought in bad faith, or groundless and brougth for purpose of harasment Bad faith requries conscioulsy doing a wrong act for imporper purposes Presumpotin that pleadings are filed in good faith So that a reasonably prudent lawyer couldnt believe that what they were claiming was supported by the law or that it couldnt be extended to cover, then it is evidence of bad faith Incorporate sancitons that are contained in dicoveryr ules General denial does not violated R13, even if done without basis, neither does request of damages to specific number
Ch10 CPRC: in signing pleading, is not being presented for nay imporper notice, claims are waranted by existing law, or for nonfrivouls argument of extending it, allegations have evidentiary support, or will after reaonably opporuntiy for further investigation, and each denial is warranted on evidence or on lack of infomraiton
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! ! General denial does not violate it, nor do number on damages
Asking for Sanctions: make a mtoin descrbigin specific onduct, no safe harbour provision, or court can initate sanctions ont heir own motoin Award of Sanctions Recover costs and attorneys fees that arise out of sanciton motion itself (goes to whoever prevails on motin) If no due dilgence is sown, court can awar prevaling party for all costs incured or caused by the subject litgation Get hearing and a reasonable opporontiyt to repsond Sancitons limited to what is sufficent to dter the conduct Paying penalty to other party is at courts option Santion order has to describe conduct that violates the rule and explaint he basis for the saction that he court chose
! ! !
Ch9 CPRC: where laywer has repeatedly violated rules so refer to state bar disciplanary committee Court has inherent power to sanction, but not if it is governed under other rules Low v. Henry Ch 10 sanctions Allegations did not have evidentiary support and attny knew them to be untrue Even if plead in alternative, have to have same degree of supporitng in good faith SoR is abuse of discretion, has to act without reference to guind rules and priciples Factors to consider (ODL ABA Report) pg 312 bottom
Amended Pleadings ! Amended pleadings are liberally permitted to be filed at such times as not to operate as a surprise to the opposite party; provided, that any pleading, responses or pleas offered for filing within 7 days of the date of trial or thereafter shall be filed only after leave of the judge is obtained(Rule 63). Parties may amend their pleadings at such time as to not operate as a surprise to the opposing party and cannot be amended within 7 days of trial without leave of court by the judge. Completely supersedes its predecessor Defense to amendment (Rule 66) argue that the new matter constitutes surprise and that the allowance of such amendment would
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prejudice him in maintaining his action of defense upon the merits. This is done in the form of a motion to strike the amendment. Appeal of Ct. review is abuse of discretion. Rule 63 and 66 Ct. MUST allow an amendment unless: o The opposing party brings evidence of surprise or prejudice; OR o The amendment asserts a new cause of action or defense, and thus, is prejudice on its face and the opposing party objects to the amendment. Burden: of showing prejudice or surprise rests on the party resisting the amendment. Post Verdict Amendment: MUST be made when damages awarded by the jury exceed the amount alleged by the plaintiff (if not, the damages are constrained by the pleading). Trial court MUST allow this amendment unless the effect of such an allowance is prejudicial on its face. Any defect in pleading in form or substance will necessitate an amended pleading. If this is realized during trial then a court may allow leave to amend. The burden is on the party opposing the amendment. In order to preserve error that amendment shouldnt have been granted, you must object and you must move for a continuance (to get caught up with the new pleading). Burnet v. File At some point pleading problems are to late to be solved Here after P rested intended to file an unspecified trial amendment Abuse of discretion review In non jury cases: if party introduces evidence without objection that was not raised by pleadings then tried by consent and variance issue waived, has to be a clear variance Jury Trial: no trial by consent, you can wait till jury charge and object to variance by objecting to question
Greenhoff If jury comes back with more than pleaded Abuse of discretion review No prejudice here No discretion by trial judge to refuse unlesss o o Oposing party shows prejudice or surpise Or amendment asserts a new cause of action or defense, sot aht it is prejudicial on its face
Suplemental Petitions and Asnwers ! RULES 69, 78, 82, 83
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Function of a supplemental pleading or answer is only for responding to a new matter contained in the last preceding pleading of the adverse party. (Rule 69) o If the defense raises an affirmative defense, the plaintiff must file a supplemental plea in which the plaintiff intends to rely on as a defense to defendants assertion of affirmative defense. (Rule 94) ! Example: plaintiff files breach of K, defendant responses w/ ratification, P must file supplemental plea of ratification in order to be able to rely on this during the trial. ! An affirmative defense is one of avoidance rather than one of denial. An affirmative defense does not tend to rebut that factual proposition asserted, but rather seeks to establish an independent reason why the opposing party should not recover. Royal Typewriter o Files suit on breach of contract. Defendant files a general denial and also states that they never executed the contract. After the amendments, plaintiff filed for finding on ratification. They should have added to their pleading with a supplemental pleading, alleging the affirmative defense of ratification. Supplemental pleading supplements prior pleading. Amended pleading replaces prior pleading. Rule 82 provides an automatic denial of a special defense unless it is ! a defense that must be specially denied under rules 92, 93, or 94. Vagueness problems are waived pretrial ! Plaintiff sues defendant for fraud, but fails to plead the element of ! reliance No special exception P tries to introduce evidence of reliance Can D limit introduction of evidence based on variance? NO WAIVING VARIANCE PROBLEMS ! Some complaints about plaintiffs petition, then, are waived at the pleading stage. This includes errors that are clear from the face of the pleadings, such as vagueness. Complaints about variance between pleading and proof are not waived at the pleading stage (there is no variance yet to complain about), but can be waived at trial. o In a non-jury trial, the variance is waived when defendant fails to object to the introduction of evidence that is clearly outside the pleadings. o In a jury trial, waiver occurs when defendant fails to object to submitting unpleaded issues to the jury. o In either case, note that the plaintiff has the option of asking the court for a trial amendment to cure the variance problem
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WAIVER OF PLAINTIFFS PLEADING DEFECTS CHART Pretrial Stage Rule 90 Problem: 1) vague pleading 2) omission of element of cause of action If no special exception, opponent waives right to object to introduction of evidence due to vagueness or incompleteness of pleading. Does not waive opponents need for proof of each element of claim or defense. Trial Stage Rules 66-67 Problem: evidence offered that clearly relates solely to unpleaded issue Jury Instruction Stage Rule 274 Problem: jury charge requested on unpleaded issue on which evidence was received without objection
Jury Trial If no objection to charge based on lack of pleading, unpleaded matter is tried by If no objection to evidence No waiver from consent based on lack of pleading, failing to object tried by consent to evidence If evidence objected to, If charge objected to, court may allow trial court may allow trial amendment based on lack of surprise to amendment unless opponent who heard evidence without opposing party shows objection. prejudice If special exception overruled, Party objecting to opponents trial opponent also needs to object to amendment must also request a continuance introduction of evidence at trial in order to preserve complaint But waiver is only by the party seeking reversal on such account.
Bench Trial
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Discovery
V.
DISCOVERY A. Summary of Discovery Devices 1. Request for Disclosure Rule 194 a. Disclosure of basic info within 30 days of request b. Cannot object on basis of work product Rule 194.5 c. You have a duty to supplement d. Usually not subject to judgment because it is well-settled that parties are entitled 2.
1st Round
2nd Round
3rd Round
to this information Interrogatories Rule 197 a. Can only be directed to parties b. Answered under oath within 30 days of request c. No more than 25 questions without court approval (sub-parts count as questions) d. Can have problems with evasive answers and they do not allow you to follow up on an answer as could be done in deposition e. Attorney must sign all interrogatory responses and objections f. Practitioners note: good way to get non-controversial information 3. Requests for Admissions Rule 198 a. Once the information is admitted, the party is stuck with the answer b. Used for non-controversial things like admitting to the genuiujness of the signature 4. Request for Production and Inspection of Documents, Tangible Things, and Realty TRCP 196 a. For parties only b. This is a lot of work c. You can get in A LOT of trouble for not producing documents 5. Oral Depositions Rule 199 a. Opposing parties are present and may ask questions b. Can be used for parties and non-parties c. Limited to certain number of hours d. Under oath and usually conducted before a court reporter e. For parties, set up through a written notice f. For nonparties, set up through a subpoena 6. Depositions on Written Questions Rule 200 a. Not used very much b. Usually used to authenticate documents c. Information cannot be followed up in this device 7. Motions for Physical or Mental Examinations Rule 204 a. Must be approved by court b. Must show A LOT of cause because of the intrusive nature B. Examples 1. What discovery devices do you use to obtain each of the following info? a. Information related to medical expenses of P in suit for PI, including such matters as doctors consulted, amount of money paid and treatment patient underwent. You represent D. i. Requests for documents from a party
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Deposition of doctors Interrogatories of doctors Request for disclosure Bank statements or cancelled checks of P for the above expenditures. i. Requests for documents from a party ii. Subpoena duces tecum for documents held by non-party In action on K, the genuineness of copy of K in clients possession, which you want to establish for trial. i. Request for admission In suit over car accident, opposing partys version of underlying facourts. i. Deposition ii. Request for disclosure iii. Interrogatories (possibly) Records maintained by auto mechanic (not a party) concerning condition of car driven by opposing party. i. Subpoena duces tecum for documents held by non-party ii. Deposition
b. c. d.
ii. iii. iv.
e.
To try and learn everything you can bout the lawuit o o o o o Trying to get info that you need if the case goes to trial What helps and hurts you And usefull for evaluating settlement value of cases Freeze testimony of witnesses Puts infomraiton in admissible form ! ! ! If W cant testify at trial Authenticating documents Getting business records foundation laid
Scope of Discovery 192.3 o o o Same as fed court Information is discoverable if it is relevant but not privledged Relevance: Evidence is relevant for trial purposes if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. ! In discovery, it is not grounds for objection that the info sought will not be admissible in trial if the info sought appears reasonably calculated to lead to the discovery of admissible evidence. ! Overly Broad Request? A party may obtain discovery of the name, address, and telephone number of persons who have or may have knowledge of any discoverable matter. RULE 192.3(c). K Mart Corp v. Sanderson (Page 462). In Re CSX Corp (Page 463)
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o Overbroad can include unreasonably long time periods o Relevance should be weighed against burden Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the disputes resolution. Thus, discovery requests must be reasonably tailored to include only relevant matters. American Optical Discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad. See American Optical; Dillard; Texaco. o The Court explained, Requests for document production may not be used simply to explore. Dillard o This Court held the request was overbroad, because it was not merely an impermissible fishing expedition; it [was] an effort to dredge the lake in hopes of finding a fish. Texaco A central consideration in determining over breadth is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information. American Optical We have said that where a discovery order compels production of patently irrelevant or duplicative documents, there is no adequate remedy by appeal because the order imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party, thus this qualifies for mandamus relief. Walker Also, the Court determined that where the interrogatories lack reasonable limitations as to time and subject matter they will be determined to be overly broad. Texaco Documents and Tangible Things ! Party may obtain discovery of the existence, descrpition, nautre, custody, condition, location, and contents of documetns and tangible things that constitute or contain matters relevant to the subject matter of the action. o Requried to produce it if its within the persons possession, custody, or control
Persons with Knowledge of Relevant Facts ! Name address and telephone number of persons having knoweldge of relevant facts, and a brief statement of each identified persons connection with the case A person has knowledge of relevant facts when that person has or may have knoweldge of any knowledge of the facts Expert is a person with knowledge of relevants facts only if that knowledge obtianed first hand knowledge
Trial Witnesses ! ! Name, address, and telephone number of any person who is expected to be called to testify at trial. Does not apply to rebuttal or impeahcing witnesses
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! Expert Witnesses (Rule 192.3(e)): Consulting Expert: o Those who help litigants prepare the case o The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. Testifying Expert: o Those who act as a witness at trial o Any information that a testifying expert has reviewed is discoverable, including reports from a consulting expert (Rule 192.3(e)(6)) o Using a request for disclosure, the requesting party may discover the following information regarding a retained testifying expert: ! The experts name, address, and telephone number. ! The subject matter on which the expert will testify. ! The general substance of the experts mental impressions and opinions and a brief summary of the basis for them. ! All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the experts testimony. ! The experts current resume and bibliography. o Oral Depositions ! In addition to disclosure under RULE 194, a party may obtain discovery of the following information only by oral deposition of the expert and by a report prepared by the expert as provided in RULE 195.5. RULES 195.4, 191.1, 199.5(c) The subject matter on which the expert is expected to testify, The experts mental impressions and opinions, The facts known to the expert (regardless of when the factual information was acquired) that relate to or form the basis of the testifying experts mental impressions and opinions, and Other discoverable matters, including documents not produced in disclosure, or deposition, is limited to six hours unless the parties agree to, or the court orders, additional time. Dual Capacity Witness: o The factual knowledge and opinions acquired by an individual who is an expert and an active participant in the events material to the lawsuit are discoverable. This information is not shielded from discovery by merely changing the designation of a person with knowledge of relevant facts to a consulting-only expert. Axelson, Inc. v. McIlhany Timing Desingation of experts o 30 days after request is made
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o o If by party seeking the releif, 90 days before the end of the discovery period For party not seeking releif, 60 days before end of discovery period, or 30 days after request
Can depose expert and ask for a report o o o Expert is not avaialbe for deposition until after other experts have been designated if you want a report If no report requested, can be done right after designtion R194.3 R195.5, court may order a factual obseraviton, tests, supporting dta, phootos, or opinions in addition to deposition if never gives a report
Supplementing Expert Discovery Duty to update discvoery R195.6, if dont upate then run riskt hat you cant use them at trial If under contorl of the party, only supleent as to their mental impression, or opinions, and basis for them
! !
R195.7: cost of the experts depsistion will be paid by the party in control Dual Capcity Fact witness who is also an expert Cant designate them as consulting only, cant ask them about opinions, but can get facts known
Re-Designation Scot v. Machulhaney If redesignation is done late to prevent them from testifying, redesignation is not allwed, contrary to public policy and open discovery Sniff test here
Indemnity and Insuring Agreements ! ! Party can obtain the existence and content of any indemnity or insurance agreement that would satisfy part or all of a judgment Not admissible at trial
Settlement Agreements
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! ! o Can get any relevent portions of a settlement agreement Not admissible at trial
Statements of Persons with Knowledge of Relevant Facts ! ! Can get them, regarldes of when the statement was made A witness statement is: A written statement signed or adopted and approved in writing Stenographic or other type of recording of Ws oral statement Notes taken during a conversation or interview with a W are not their statement Any person can obtain on written request their own statement which is in possesion, custody or control of any party
Potential Parties ! Name, address, and telephone number of any potential parties
Contentions ! Can get any other partys legal contentions and the factual bases for those contentions
If proper discovery request is sent, and answered in awy that doesnt include something, and then that party tries to call that person or produce that document as evidence, court can sanction that it is not allowed In Re Dana ! ! ! Insuranc epolices still have relevancy limit So only for period invovlign the action at trial Same with settlements, dollar amounts may not be relevant depending on the case
Net Worth ! ! ! ! If claim of punative damages that is valid on its face (proper), the whole idea is punishment So how much their net worth is is relevant USSC downplays this and says to emphaiss agregiounsess of Ds conduct Dont get everythign, can do it through limited documents like audited financials
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o Information Sought Soley for Impeachment ! Russel v. Young ! Sought Doctors financial statements to show his bias as an expert TSC said not relevant, broad statements that can be read as informaiton for impeachemnt is not relevant for discovery, too burdensome
Ex Parte Sheperd Condemnation ase Attempted to discover other appraisers estimates to show bias and inconsistency Here relevant as distinguished from Russel
Rocker v. Packer Impeachment discovery is relevant when narrowly taylored and relevant to show bias, and had evidence that documents existed, so not fishing expedition
! Privledges o
R192.3(e)(5): allows disccovery of expert to show any informaiton about bias
Work Product ! ! ! R192.5: material prepred or mental impressions developed in anticipation of litigation or for trial or for a party or a partys represenatatives Or coummnication made in anticiaption of litigation or for trial between a party and a parties representtive Includes both tangible and intangible things ! Mental impression, material Can be between agents of the same aprty, if in anticiaptino of litigatoin
Core Work Product: work product of an attorney that contains the attorneys mental impression, opinions, conclusions, or legal theories Not discvoerable
Other Work Product Still not generally discoverable, but exception if the parties seeking discovery have substantial need of informaiton and is unable to get it through undue hardship or the substantial equivalaent
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o ! Comes from Federal Cases
National Tank Co v. Brothers 2 part test if it was done in anticiaption of litigation o Objective test: would a reasonable person have concluded from the totality of the circumstnaces that there was a substantial chance that litgation would ensue Subjective Test: party invoking the privledge must have had a good faith belief that litigation would ensue
Dual Purpose Investigations: not work product (other jurisdiction) Primary Motivation purpose test (Texas): if investigation might have been done anyways, but was done in anticiaptoin still work product o o If the reason for the document is business routine in the anticiaption of litigationt hen it is work product More of a policy decision
With treatment of Witnesses In Texas: no work product of witness statements
R192.5(1): Exceptions, even if made in anticipaiton of litgation 192.3, experts, trial Ws, witness statements, and contentions Trial exhibits ordered disclosed under R166 or R190.4 Name, adress, and telephone number of any potential party or any person with knowledge of relevant fats Any photograph or electronic image of underlying facts, or a photograph of any sort that a party intends to offer into evidence Any wordk product ceated under circumsntates within an excpetion to the attorney-client privledge
Team Transport W statement doesnt have to be eye witness statement, doesnt have to be based on personal knoweldge They are not work product, but may not be discoverable for toehr reasons like privledge
Work product is perpetual unless waived
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Waiving Work Product: if you produce a document or provide one to testifyig expert, then discoverable o ! ! o Oral statemetns to experts and told him some work porduct, also disvoerable
Asking for attorneys file is on its face work product, but can ask for a document in file that is discoverable Starts when lawyer is hired
Privilege against self-incrimination. ! Defendants The privilege against self-incrimination can affect civil cases. That privilege extends to testimonial communications that would sustain a conviction, and also to responses that would furnish a link in the chain of evidence needed to prosecute the person claiming the privilege. The privilege should be sustained unless it clearly appears that the person claiming it is mistaken. Hoffman v. United States, 341 U.S. 479, 486-487 (1951). On the other hand, the privilege does not bar the compelled production of a tangible thing, such as a document, that contains no self-incriminating testimonial declaration, unless the act of production itself constitutes an incriminating testimonial communication. Fisher v. United States, 425 U.S. 391, 409-411 (1976). ! Plaintiffs Although a person is never compelled to incriminate him or herself, a plaintiff who invokes this privilege during discovery may suffer sanctions. o In other words, the plaintiff has several options: ! (1) Bring the action and disclose self-incriminating matter; ! (2) Limit the action to such matters that, if possible, will not involve disclosure of incriminating material; ! (3) Refrain from suit; or ! (4) Face dismissal or stay on failure to make the required disclosure. o In considering the appropriate sanction for a plaintiff asserting privilege, the court must consider a number of factors and must tailor the sanction to the nature of the offensive conduct. Texas Dept of Public Safety Officers Assn v. Denton. ! On the basis that defendants do not have these options, it has been held that a defendant is not subject to sanctions for invoking the privilege. Duffy v. Currier. ! The defendant is not, however, the sole judge of the right to invoke the privilege against self-incrimination in a civil case. The judge must decide if the refusal to respond is based on good faith and is justified under the circumstances. Ex parte Butler; Warford v. Beard Note also that at trial in civil cases, both the judge and opposing counsel are allowed to comment on a partys claim of the privilege against selfincrimination and suggest that inferences may be drawn from the claim. TRE 513.
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o Lawyer Client ! ! Very broad Client: when not a human being, includes entities, under subject matter test, privledge with whome an attorney needs to communicate in order to render legal service regardless of their posisitonin the corporate hierachy Between client or representative of the client and clients lawyer or represntative of the lawyer If have matters of common interest can have it between employees if made for legal services to the client Crime Fraud Exception: if services of lawyer sought or obbatined to enable anyone or planeed to commit what the client knew or should have knowen would have been for fraud
! ! !
o o o
Husband Wife Policital Vote Trade Secrets ! 6 factor test (Evidence R 507 ! ! Extent to which the information is known outside of the busienss The extent tow hcih it is known by employees and others invovled in the business Extent of the measures taken by him to guard the secrecy o the information The value of the information to him and to his competitors The amount of effort or money expended by him in devleoping the information The ease or difficulty with which the information could be properly acquired or duplicated by others
R507: person has privledge to refuse to disclose trade secret if the allowance of the secret will not work to conceal fraud or produce injustice Continental Gen. Tire Set up procedural system of shifting burdens when trade secrets are an issue Initiated by request for discovery
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Party resisting has to prove the info is trade secret If proved, then burden shitfs to requesting party, to show that the info is necessary for a fair adjudication of the claim or defense, relevant and necessary Dont have to show that you would lose, but do have to do more than show relevance, has to demonstrate with specificity exactly how the lack of information will impair the presenation of the case o o o o o Unavialble from alternative sources Or needed to corss examine oposing W Your experts needs it to form an opinion Wont be allowed if just cumulative
Court will enter protective order
Mental Health/ Physician Patient ! EXCEPTIONS to the medical and mental health privileges apply when records sought to be discovered are relevant to a condition at issue relied on as part of any partys claim or defense. In this instance, the trial court, on request, is to perform an in camera inspection to assure the proper balancing of interest occurs before production is required. If a condition is part of a partys claim or defense, the patient records should be revealed only to the extent necessary to provide relevant evidence pertaining to the alleged condition. TEST to determine whether a party relies upon a medial or mental condition as part of the partys claim or defense for purpose of the litigation exception: R.K. v. Ramirez Communications and records should not be subject to discovery if the patients condition is merely an evidentiary or intermediate issue of fact, rather than an ultimate issue for a claim or defense, or if the condition is merely tangential to a claim rather than central to it. . . . As a general rule, a . . . condition will be a part of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself. Can be medical record of non-party Requires you give notice to non-party if their identity is going to be disclosed
o o
Informers Waiver ! Can waive privledge against self incrimination by bringing civil suit
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! Judge or oposing party is alloed to comment on somones envocation of their right not to self incriinate
Offensive Use 3 part tsts o o o Waiver only by party seeking affirmative releif Privledged information would be outcome determinative, central to the claim Disclosure of the privilidged communciation must be the only means by which the aggrived party may obtain the evidence
Inadvertent Production As long as you follwed proecedural requirements, no wiaver for inadvertent production R193.3(d): have to have intnet to waive the privledge o If within 10 days that you discovered that you produced the document, you can amend your response, idenfity the info you want back, and state privledge
! ! -
If you waive, you waive the privledge on any communication about that subject Can include party deals, where they agree that producing a document is not a waiver of privledge, and get judge to make this a rule
Subpoenas (Rule 176): o PURPOSE is either to (1) give testimony or (2) to produce documents in the possession, custody, or control of that person. o LIMITATIONS: ! Not for persons more than 150 miles away. HOWEVER, they may be compelled to go to a place near to them. ! No undue burden or expense. Modifying Discovery (Rule 191) o Parties have the ability by agreement and trial court orders to adapt discovery to different circumstances. Protective Order: By getting a protective order before the time of compliance of a discovery request, is a way for the party to refuse compliance with the request. Discovery Plans (Rule 190):
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COMPARISON OF LEVEL 1, LEVEL 2 AND LEVEL 3 DISCOVERY
Level 1 Applicability
Level 2
Level 3 When a court orders a discovery plan Parties can submit an Agreed Level 3 Discovery Plan for court approval When the court orders
Discovery Begins Discovery Ends
(i) Suits with an amount Whenever Level 1 or in controversy of less than Level 3 does not apply $50,000; (ii) Divorce actions not (CATCH ALL) involving children AND with a marital estate of less than $50,000 When Suit is filed When suit is filed 30 days before trial
Deposition Limits
Interrogatory Limits
(i) Family Code cases When the court orders 30 days before trial; (ii) Other cases earlier of 30 days before trial or nine months after first deposition or due date of the first written discovery response Six hours, but the parties 50 hours per side, but a Court sets limits can agree to 10 hours party receives an additional six hours per expert when his opponent names more than two experts 25, but the parties have an 25, but the parties have an Court sets limits unlimited number to unlimited number to authenticate specific authenticate specific documents documents
Level 1: All Ps affirmatively claim $50,000 or less, OR divorce cases where there are no kids and the estate is worth no more than $50,000. Discovery Period: Discovery begins when the suit is filed and continues until 30 days before the date set for trial. Depositions: 6 hours on both sides and up to 10 hours with party agreementno more w/ ct order. Interrogatories: 25 interrogatories The discovery level cannot be amended if the trial is w/in 45 days. Level 2: This is the default level Discovery Period: The discovery period end the earlier of: 1) 30 days before the date set for trial or 2) 9 months after the earlier of the 1st oral depo or the due date of the 1st response to written discovery. o For Family Law cases, the discovery period ends 30 days before the date set for trial.
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Depositions: Both sides get 50 hours o EXCEPTION: If one side designates more than 2 experts, the opposing side may have an additional 6 hours for each additional expert. 25 interrogatories ! Level 3: Ct ordered discovery The plan must include: date for trial/conference, a discovery period, appropriate discovery limits, and deadlines for the joining of additional parties, amending or supplementing pleadings, and the designation of experts. Written Discovery: requests for disclosures, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admissions. o Procedural Requirements (Rule 193) ! Objections (Rule 193.2): For written discovery, an objection must be in writing w/in the time allotted for the response. The objection must be in good faith and state specifically the legal or factual basis for the object. An objection that is not made w/in the time required is waived, UNLESS the ct excuses the waiver for good cause shown. ! Asserting a Privilege (Rule 193.3): A party may w/hold info that is privileged if they assert the privilege in the response or in a separate document. After a party receives a response indicating that a privilege has been asserted they may serve a written request asking for the information and material being withheld to be identified. Within 15 days the withholding party must: o Describe the info w/o revealing the privileged info.; AND o Assert a specific privilege for each item or groups of items w/ held. Do not waive the privilege if w/in 10 days after you discover you revealed something that was privileged, you amend the response. ! Amending or Supplementing Written Discovery (Rule 193.5): Triggered if original response is incorrect or incomplete when made OR you have learned new stuff, UNLESS the additional or corrective info has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses. Supplementation must be made less than 30 days before trial. Supplementation must be in the same form as the initial response, but failure to comply w/ this does not make the response untimely, UNLESS the party refuses to correct if pointed out. ! Failure to Supplement or Amend (Rule 193.6): If a party does not supplement in a timely manner, may not introduce that info into evidence, UNLESS the ct finds: There was good cause for the failure to timely supplement; OR The failure to timely supplement will not unfairly surprise or unfairly prejudice the other parties. FURTHERMORE, the court can grant a continuance in order to supplement. o Subpoena Requirement (Rule 205): A non-party cannot be compelled to produce discovery without a court order. o Request for Disclosure (Rule 194): ! Disclosures can be served no later than 30 days before the end of the discovery period. ! Disclosure is intended to provide basic discovery of these specific categories of information, not automatically in every case, but upon request, without
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preparation of a lengthy inquiry, and without objection or assertion of work product. Contents: (1) The correct names of the parties to the lawsuit. (2) The name, address, and telephone number of any potential parties. (3) The legal theories and, in general, the factual bases of the responding partys claims or defenses (although the responding party need not marshal all evidence that may be offered at trial). (4) The amount and any method of calculating economic damages. (5) The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified persons connection with the case. o EXAMPLES treating physician, or eyewitness (6) Specific information concerning testifying experts. o If there is no request to designate an expert by an opponent, the party does not have to designate. See RULE 195. (7) Any indemnity and insuring agreements described in Rule 192.3(f). (8) Any settlement agreements described in Rule 192.3(g). (9) Any witness statements described in Rule 192.3(h). (10) In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. (11) In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. ! Response: A response should be made within 30 days after service of the request. EXCEPTION: D served w/ a request before the Ds answer is due need not respond until 50 days after service of the request. A responding party may, however, assert applicable privileges other than work product. RULE 194, Comment 1. ! Production: Copies of documents and other tangible items ordinarily must be served with the response EXCEPTION: if the documents are voluminous, then the response must state a reasonable time and place for the production. Work production assertion is not allowed. Unlike answers to interrogatories, disclosure responses need not be verified, but they are subject to a general certification requirement contained in RULE 191.3 concerning the propriety, completeness, and accuracy of the response. Request for Production and Inspection to Parties (Rule 196): Request must be served no later than 30 days before the end of the discovery period. ! Contents: Request must specify the items to be produced either by individual item or by category AND describe w/ reasonable particularity each item and category. A request for all documents can be proper, as long as the request is further restricted to a particular type or class of docsLoftin v Martin ! Electronic documents RULE 196.4 is a separate rule for noticing information in electronic form. If you dont ask for it specifically, you wont get it ! Response: A response should be made within 30 days after service of the request. !
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EXCEPTION: D served w/ a request before the Ds answer is due need not respond until 50 days after service of the request. Organization: Responding party must either produce docs as they are kept in the usual course of business or organize and label them to correspond with the categories in the request. ! Nonparties The request procedure applies to parties only but is similar to the procedure for nonparties. Production of tangible items from nonparties involves the use of a notice and subpoena. Interrogatories (Rule 197): Request must be served no later than 30 days before the end of the discovery period. ! Content: An interrogatory may inquire whether a party makes a specific legal or factual contention, to describe the partys claims/defenses. Not to be used to marshal all evidence. Parties may serve on any other party no more than 25 written interrogatories (excluding interrogatories asking a party only to identify or authenticate specific documents) unless they get court permission. Interrogatories may be directed only to parties. ! Nonparties Written discovery from nonparty witnesses must be gotten by the similar but separate mechanism of the deposition on written questions. ! Response: A response should be made within 30 days after service of the request. EXCEPTION: D served w/ a request before the Ds answer is due need not respond until 50 days after service of the request. The answers must be under oath, EXCEPT when the answers are based on info obtained from other persons. Request for Admissions (Rule 198): Request must be served no later than 30 days before the end of the discovery period. ! Content: Admissions are written requests that the other party admit the truth of any matter w/in the scope of discovery, including statement of opinion or fact, or the genuineness of any documents. This kind of discovery is useful for elimination issues about which there is no real dispute. ! Response: A response should be made within 30 days after service of the request. EXCEPTION: D served w/ a request before the Ds answer is due need not respond until 50 days after service of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response, UNLESS responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the party to admit or deny. If a response is not timely served, the request is considered admitted w/o necessity of a court order. o An admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it. ! An admission may be withdrawal if it is shown to the court that: A party can establish good cause by showing that its failure to answer was accidental or the result of a mistake, rather than intentional or the result of conscious indifference, AND The parties relying upon the response will not be unduly prejudiced. !
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Oral And Other Non-Written Discovery: Depositions and motions for physical and mental examinations o Oral Examinations (Rule 199): A party may take the testimony of any person or entity by deposition on oral examination before any officer authorized by law to take depositions. ! A deposition does not have to be face-to-face. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. ! Notice: A notice of intent to take a depo must be served on the witness and all parties 20 days before the depo is to be taken. A depo can be taken outside the discovery period only by agreement. ! Time Limitations: No side may examine or cross-examine an individual witness for more than six hours. Breaks do not count. ! Conduct: Private conferences between the witness and the witnesss atty during the actual taking of the depo are not allowed, EXCEPT for the purpose of asserting a privilege. An atty must not ask a question solely to harass or mislead the witness, for any other improper purpose, or w/o good cause. ! Objections: Objections to questions during the oral depo are limited to LEADING and FORM. Objections to testimony during oral depo are limited to NONRESPONSIVE. Objections are waived if not stated during the depo. ! No Answer: An atty instructing the witness not to answer must give a concise, nonargumentative, nonsuggestive explanation of the grounds for the instruction if requested by the party who asked the question. o Depositions of Experts (Rule 195.4): ! Subject matter on which an expert is expected to testify that was not produced in disclosure may be obtained by oral deposition of the expert and by a report prepared by the expert. o Depositions of High Ranking Officials ! Test #1: Must show that the official has unique or superior personal knowledge of discoverable info. If ct is not convinced, then you have to you less intrusive discovery methods. ! Test #2: If less intrusive methods do not work, must show A reasonable indication that the officials depo is calculated to lead to the discovery of admissible evidence; AND That the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. o Use of Depositions (Rule 203.6): ! All or part of a depo may be used for any purpose in the same proceeding in which it was taken. Same proceeding includes a proceeding in a diff court but involving the same subject matter and the same parties or their representatives or successors in interest. Physical and Mental Examination (Rule 204): A party mayno later than 30 days before the end of any applicable discovery periodmove for an order compelling another party to submit to/produce a physical or mental examination. o The court may issue an order for examination only for good cause shown and only in he following circumstances: ! When the mental or physical conditions is in controversy; OR A routine allegation of mental anguish or emotional distress does not place the partys mental condition in controversy. The plaintiff must assert mental injury that exceeds the common emotional reaction to an injury or loss. Assuming it is shown that a party
60

has put his mental condition in controversy, good cause for the compelled examination must also be shown. o The good cause requirement of Rule 167a recognizes that competing interests come into play when a partys mental or physical condition is implicated in a lawsuit-the partys right of privacy and the movants right to a fair trial. o A balancing of the two interests is thus necessary to determine whether a compulsory examination may properly be ordered. ! When the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologists records for possible use at trial. o TEST FOR GOOD CAUSE: ! (1) That an examination is relevant to issues that are genuinely in controversy in the case; ! (2) Must show a reasonable nexus between the condition in controversy and the examination; AND ! (3) That it is not possible to obtain the desired info through means that are less intrusive. o In Family Law Cases: A court may, at its own initiative, order a mental examination of the children who are subject of the suit OR order paternity tests. o The order must be in writing. - Mandamus can be used to overrule discovery motions. o Mandamus is only available to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. o TEST: ! (1) There is no adequate relief available by appeal, AND ! (2) An appeal will not be an adequate remedy where the partys ability to present a viable claim at trial is vitiated or severely compromised by the trials courts discovery error. - Resisting Discovery o Objecting to request ! To broad, vague, not relevant, to burdensome compared to amount of relevance it might have ! Have 30 days to answer, so get objections in during this period Old Rule: waived if you missed deadline Now: waived unless court excuses waiver for good cause ! R193.3(a), Say we are withholding documents State the request to which the material relates Privilege or privileges asserted ! Have to list all correct reasons or waive them o Response to objection ! Quote the rule to identify the material withheld ! Then they have 15 days of request to serve respone ! In a privilege log What, who, and to, name of document And say privilege you are asserting o R193.3(c), Documents that were generated after the parties consults a lawyer to obtain professional legal services bringing or defending a specific claim, concerning the litigation can be withheld ! Dont have to state it on log ! And dont have to tell them that they exist - Amendment and Supplementation of Discovery Responses o RULES 193.5, 193.6 (written discovery) & 195.6 (testifying expert witness)
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Impact of 1999 Amendments. Since the Farah case was decided, the 1999 amendments have codified certain rules and changed others. Specifically: ! Amendments or supplementation of responses to written discovery is required reasonably promptly on learning that a prior response was incorrect or incomplete or is no longer correct or complete. The in substance misleading limit, which itself replaced the former knowing concealment standard, is eliminated. ! Formal supplementation of responses to written discovery is required for identification of fact witnesses, trial witnesses, or experts. ! Informal supplementation of responses to written discovery under a has been made known standard applies to other information. ! An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be verified by the party, but the failure to comply with this requirement does not make the amended or supplemental response untimely unless the party making the response refuses to correct the defect within a reasonable time after it is pointed out. ! Amendment or supplementation less than 30 days prior to trial is presumptively not made reasonably promptly. The Corpus Christi Court of Appeals rejected an argument that a reverse presumption also exists: that supplementation made more than 30 days before trial is timely. o Thus a delay of nine months after certain witness statements became discoverable demonstrated that the supplemental production was not reasonably timely. See Matagorda County Hosp. Dist. v. Burwell ! A duty exists to supplement the deposition or report of a retained expert, but only with regard to mental impressions and opinions and their basis. There is no general duty to supplement deposition testimony. ! A failure to make, amend, or supplement a discovery response in a timely manner precludes introduction of the evidence or testimony of the witness (other than a named party) who was not identified unless the party seeking to introduce the evidence or call the witness establishes good cause or the lack of unfair surprise or unfair prejudice. Regardless of whether such a showing is made, the court may grant a continuance or temporarily postpone the trial to allow a response and to allow opposing parties to conduct discovery. Discovery Sanctions (Rule 215): o Rule 215.2 is a non-exhaustive list of possible sanctions: ! Court can disallow any further discovery. ! Charge the expense of discovery or ct costs to the disobedient party or its atty. ! Can take certain facts as established. ! Can disallow a party from presenting evidence. ! Court can strike pleadings ! Court can dismiss the case w/ or w/o prejudice. Death Penalty: this would be ok, where a depo was missed 3 times w/o explanationDowner case ! A contempt charge. o Test For Sanctionsthey are w/in the discretion of the ct, but they must be just. Just is measured by 2 standards: ! A direct relation must exist between the offensive conduct and the sanction imposed (must be directed against the abuse and toward remedying the prejudice caused to the innocent party.) Have to look at who was the wrongdoerif it was the atty, the punishment should be limited to him. o
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! Summary Judgment - Because there is no fact issue or genunine issue of material fat, then P is not entitled to a trial - R166(a): differences between Texas and Federal Rule o In Texas: two separate types of summary judgment motions ! o Fixation on the format of summary judgment evidence Sanctions should not be excessive. Lesser sanctions should be considered first.
Fed Courts: do it all under 1 version ! Allowed to object for first time on appeal
- No Evidence Motion For Summary Judgment o o So little evidence, that no reasonable jury could find for the party with the burden Therefore, no fact issue and doesnt get to go to jury, and judge gets to decides ! o o Same standard as directed verdict
Party without burden: No Evidence Standard Party with the burden: As a matter of law Standard ! So that no reasonable jury could fail to find for the party with the burden
o o
In the middle there is a fact question Adopts Celotex approach from Fed Court ! Saying that P cant prove it
R166(a)(i) ! Have to have adequate time for discovery (Traditional can be filed at any time) After discovery period is ok
o o o
There is no evidence on one or more essential elements Motion needs to be fairly specific, supposed to identify what the element is Court Must grant motion unless ! ! ! The respondent presents evidence raising genuine issue of material fact by coming up with enough proper SJ evidence If circumstantial evidence, court determines if they are reasonable inferences to be drawn off of them Scintila of Evidence: mere scintilla is no evidence, have to be more than that
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- Traditional Motion for Summary Judgment o Procedure ! ! ! o o File motion for SJ File brief in support And file evidence with it
Can only get SJ on a ground that is in your motion, brief doesnt count Party with Burden of Proof ! ! Proves all elements of cause of action as a matter of law D proves all elements of affirmative defense as a matter of law
Party without burden of Proof ! ! ! D negates at least one element of Ps claim as a matter of law Can attach affidavit or medical records from expert saying standard of care etc. Doesnt have burden of showing any evidence at trial, but in order to pretrial ruling, they have to negate Ps evidence (unlike Fed where you just say the P cant prove it)
- Hybrid Motion o Combines them both in 1 motion with 2 separate parts
- Summary Judgment Evidence o R166(a) ! Affidavits Substituting for testimony at trial Held to same evidentiary requirements o o o o ! Made on personal knowledge Set for facts that would admissible as evidence Affiant is competent to testify Have to swear to it
Discovery Products Documents attached to affidavits
Problems with SJ Evidence ! If defect is of form, or formal defect, the party opposing it has to complain about it in the trial court or you waive the objection
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! Inadmissible evidence Affidavits didnt have documents attached (split) Vague Affidavits are not identified (split) Opinion Hearsay
If defect is substantive defect, then even if you dont complain about it in trial court, can be raised for first time on appeal (conclusory or narrative) Doesnt include some ground for recovery required
Expert Affidavits ! Can be basis for SJ if other side doesnt respond Has to be subject where only experts an provide the info Clear, positive, direct, no contradictions Could have been readily controverted
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Texas Pre-Trial Procedure Outline Fall 08

Not a court of record

Appeal to county court, and it is an appeal de novo

Attachment Recovery of land

Interest out of damages count

TEXAS Pre-Trial Outline Thornburg Fall 2006

Personal Jurisdiction Purposeful Availment Contacts Tests

TEXAS Pre-Trial Outline Thornburg Fall 2006

D. R120a Special apperance 1. 2. 3. 4. 5.

TEXAS Pre-Trial Outline Thornburg Fall 2006

IV.Post Judgment Challenged by Non Residents A.

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

Same principle when pleading jurisdiciotn

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

Can combine elements by stating what happened

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

Sworn Account Petition (Rule 185)

TEXAS Pre-Trial Outline Thornburg Fall 2006

3. Plead in abatement 4. Defect of parties 5 + 6. Nautre of the entity

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

Suplemental Petitions and Asnwers ! RULES 69, 78, 82, 83

TEXAS Pre-Trial Outline Thornburg Fall 2006

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ii. iii. iv.

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

R192.3(e)(5): allows disccovery of expert to show any informaiton about bias

TEXAS Pre-Trial Outline Thornburg Fall 2006

With treatment of Witnesses In Texas: no work product of witness statements

Work product is perpetual unless waived

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

TEXAS Pre-Trial Outline Thornburg Fall 2006

Court will enter protective order

TEXAS Pre-Trial Outline Thornburg Fall 2006