Texas Pretrial Full Course - Carlson

When are claims part of the same transaction or occurrence:

"the logical relationship test" Courts look at it logically: does this all arise out of "let's build the sign for the hotel." That connection is enough. Can be different contracts; still the same T/O or series of T/O.

NOTE 4: Pleading Requirements for Election of Remedies D can't raise the affirmative defense of election of remedies for the first time on appeals.

It's an affirmative defense and must be specifically alleged. The defense must be presented to the TCT and cannot be urged for the first time on appeal.

-Can't appeal from JPs directly to appeals courts because

JPs are NOT courts of record. No court reporter. The way you appeal a JP decision is by trying it over again in the county court, which are courts of record.

So what do you do at a live hearing on venue if there's no live testimony?

Just argument of counsel. Basically just rehashing your motions, response, reply.

Sec. 61.001. GENERAL GROUNDS. A writ of original attachment is available to a plaintiff in a suit if: (4)

(1) the defendant is justly indebted to the plaintiff; (2) the attachment is not sought for the purpose of injuring or harassing the defendant; (3) the plaintiff will probably lose his debt unless the writ of attachment is issued; and (4) specific grounds for the writ exist under Section 61.002.

*What is the legal test for determining a residence for venue purposes?* In the three element test to determine whether a second residence away from a domicile has been established, the proof must show that

(1) the defendant possesses a fixed place of abode, (2) occupied or intended to be occupied consistently over a substantial period of time, (3) which is permanent rather than temporary

General venue rule (basic):

(1) the defendant's residence (human) or principal office (entities); or (2) the place where important events or omissions occurred. (3) RARE - If the above do not apply [i.e., there is no county in Texas in which venue is proper under the general rule or exceptions], in the county in which the plaintiff resided at the time of the accrual of the cause of action. (rare)

What is a general demurrer?

(Abolished in 1940) Complaint without specificity as to defect.

What is a special demurrer?

(Special Exceptions - simply means that you have to state with particularity the defect in the pleading)

Settling tortfeasors have no liability for contribution.

(The settlement satisfies their obligation to pay damages caused by their tortious conduct) Therefore, impleading a party for contribution when that party has already settled is not proper.

When special exceptions addressed to a pleading are sustained, the party has two options available to him:

(a) he may amend to meet the exceptions and this he may do as a matter of right; or, (b) he may stand upon his pleadings, refuse to amend, and test the validity of the ruling upon appeal.

Third-Party claims -

(also called "impleader") are claims brought by a D against a person "not a party to the action who is or may be liable" to the D or P for all or part of the P's claim against the D.

Not required to marshal all of its available proof or all the proof the party intends to offer at trial

(just need a basic statement)

Presuit requirements to file malpractice cases against professional engineers, architects, registered landscape architect, registered land surveyor, etc. must file (3)

*1) complaint* *2) affidavit* - set forth specifically the negligence or other action, error, or omission of the D in providing advice, judgment, opinion, or a similar professional skill and the factual basis for each claim. *3) certificate of merit* - 3P licensed professional (in one of the above fields) along with the complaint alleging damages arises out of professional services. If you don't file a compliant, timely affidavit, certificate of merit the court MUST dismiss the case, but it has the discretion to do so with or without prejudice.

Expert Witnesses- In General Two Types of experts:

*1. Consulting only expert:* helps counsel prepare the case for discovery and trial (consulting experts), but don't intend to have them testify -May protect identity, mental impressions and opinions as long as a testifying expert does not review their impressions or opinions -This protection doesn't apply to facts personally known to the consulting only expert. ----In other words, you can't designate an eyewitness who happens to be an expert as a consulting-only expert as a means of hiding evidence. *2. Testifying expert*: May testify at trial to persuade the trier of fact. ---They ARE subject to extensive discovery.

To prevail on a forum non conveniens motion, Movant Must show: (Gulf Oil case)

*1. There is an adequate alternative forum available that can exercise PJ over Ds*; AND Means a functioning judiciary. Doesn't mean you get the same relief. EX: in El Salvador, two SCt justices gunned down; chaos, not functioning. *2. The balance of relevant private and public factors favors dismissal*

Level 2 Depo Time

*< 50 hours PER SIDE* (you are expected to get together with your co-D or co-P and figure it out) of oral depositions to examine and cross-examine (unless trial court modifies). *Limits apply ONLY to:* 1. Opposing parties 2. experts designated by those parties; and 3. persons who are subject to those parties' control (employees, family members, passengers in the car, etc.) *All other witnesses are not subject to 50 hr. Limit* - so it makes sense to take the non-limited depos first so you have as much info as you can get to narrow down what you need to ask these limited hours depo persons. UNLESS you are trying to "lock in" their testimony. Unwritten rule: don't take the same person's depo twice. If one "side" has > 2 experts opposing side afforded 6 more hrs. of depos.

Statutory County Courts (AKA County Courts at Law) - basic SMJ

*AIM: $200.01-$250K* (excluding interest, statutory or punitive damages and penalties, and attorney's fees) Jx Granted: All jurisdiction of constitutional county courts; appeal from justice courts; workers' comp appeals; probate; eminent domain; family law NO JX: -Slander or defamation; -enforcement of a lien on land; -escheat; -divorce; -forfeiture of a corporate charter; -trial of the right to property valued at $500 or more and levied on under a writ of execution, sequestration, or attachment; -suit for the recovery of land *These are all Defaults (but remember if the creating statute of a particular CCL can be different. EX: Dallas Cty CCL has concurrent jx with DCts)*

Depo time in Disco Level 1

*Cases Filed Prior to 2021:* < 6 hours of oral deposition time PER PARTY for ENTIRE SUIT (parties may agree to expand up to 10 hours, past that, need court order) *Cases After Jan 2021* -up to 20 hours post Jan 2021, with court able to modify so no side has unfair advantage. Query: May parties agree to a higher number of deposition hours? Carlson looked into this: she thinks that you can.

Which Texas courts cannot grant injunctions?

*JPs have no jx to grant injunctions* (TROs, temporary or permanent injunctions), so you'll never file in a JP. But you can file in district or county court

Protective Order - Carlson comments

*Sort of a catch all - it's what you would use as non-party for protection. The court has broad discretion to issue protection order.* *When you don't have a basis to object, and you don't have a privilege, this is where you go to seek protection of the court.* EX: someone schedules party depo (who lives in El Paso) in the county of suit (Houston). Person is recovering from heart surgery, and doctor doesn't want to travel. Lawyers can't agree where to go. El Paso party should move for PO: "I recognize this is a valid request, but this is unduly burdensome. Judge, can you please order this to take place in El Paso?" EX: Party keeps diary/journal. Some work-related, relevant to suit, some embarrassing personal. This PO could keep out the personal stuff.

Deceptive Trade Practices Act (DTPA) - presuit notice requirements

*consumer must give written notice (actual or oral notice ineffective) at least 60 days prior to filing under DTPA to D in reasonable detail of complaint and amount of damages for economic and mental anguish, expenses, attorney's fees*. Exceptions: 1) need to file prior to SOL expiration 2) consumer's claim is a counterclaim During the 60 day period between notice and filing, the D may make a written request to inspect the goods at issue If D doesn't receive required written notice, can file a plea in abatement not later than 30th day after filing original answer. Court must abate the suit if, after a hearing, it finds proper notice was not provided. Suit is automatically abated without court order if plea is verified and alleges that the person against whom the suit is pending did not receive the required written notice and if that affidavit is not controverted by an affidavit filed by the consumer before the 11th day after the date on which the plea in abatement is filed. Automatic abatement continues until the 60th day after the date that proper written notice is served. Party may file motion to compel mediation of DTPA claim. Must be filed within 90 days of the service of a pleading. Within 30 days of filing, the court must sign an order setting time and place of mediation; if the parties do not agree on mediator, the court will appoint one. Mediation must be held within 30 days after the order signed, unless parties agree otherwise or court determines more time is warranted (not to exceed 30 days) All parties must participate and pay fees of mediation. A party cannot compel mediation if damages claimed are less than $15k, unless the party pays for mediation. Offer of Settlement - DTPA Ds may limit their exposure to liability by making statutorily-sanctioned settlement offer within 60 days of receipt of notice of claim. If mediation is not compelled, the D may tender "offer of settlement" at any time during the period beginning on the date an original answer is filed and ending on the 90th day after that date. If a mediation IS compelled, a person against whom a DTPA claim is pending may tender an "offer of settlement" up to 20 days after mediation ends. Settlement offer must include offer to pay (1) amount of money or other consideration, reduced to it's cash value, as settlement of consumer's claim for damages; (2) attorney's fees Consumer must accept settlement offer within 30 days or it is rejected. Rejected settlement offer that is proper and rejected may be filed with court, accompanied by affidavit certifying offer's rejection. If court finds settlement offer amount for damages is the substantially the same as or more than actual damages found by trier of fact as of date of offer, the consumer may not recover as damages any amount in excess of the lessor (1) the settlement offer damages amount, or (2) amount of damages found by trier of fact If the Court makes the foregoing finding, it must determine reasonable and necessary attorney's fees to compensate the consumer for attorney's fees incurred before the date and time of the rejected settlement offer. If offer is substantially the same or more than actual attorney's fees as of date of offer, customer can't recover more than offer. In contrast, if the court finds that the offering party could not perform the offer or substantially misrepresented the value of the offer, the foregoing limitations on recovery do not apply. Offer of settlement is NOT an admission of engaging in an unlawful act, practice, or liability under DTPA. Offer or rejection of offer may not be used in evidence at trial except in connection with the DTPA settlement procedure Settlement offer that does not comply with DTPA standards may still affect the calculation of prejudgment interest, even though it will not limit the award of damages or attorney's fees. Under the Finance Code, prejudgment interest may be eliminated during the period that the settlement offer may be accepted, if the offer is for more than the ultimate judgment. Similar presuit notice, mediation, and settlement provisions are applicable to private causes of action brought under Ch 541 of Insurance Code.

*Policy:* of Discovery

-Decide case on facts revealed, not concealed. -Policy behind limits on discovery: prevents undue expense and delay

*Does it matter that the Defendant did not file special exceptions?*

-Special exceptions - a pleading that states, "my opponent's pleadings are defective, make them amend." -In the absence of special exceptions or other motion, defendant waives the right to complain of such a defect if plaintiff establishes the trial court's jurisdiction before resting its case.

Every county has at least the three constitutional courts:

1) JP 2) CCC 3) DCt

Requirements for the Original Petition:

1) Must say what *discovery level* you want (1, 2, or 3... more on in chapter 9) 2) Need statement stating damages sought are within the jurisdictional limits of the court. -Must state *range of damages.* (Except in family code cases): As to cases filed on or after Jan. 1, 2021* (1) only monetary relief of 250,000 or less, excluding interest, statutory or punitive damages, penalties, attorney's fees and costs; (2) monetary relief of $250,000 or less and non-monetary relief; (3) monetary relief over $250,000 but not more than $1,000,000; (4) monetary relief over $1,000,000 (5) only non-monetary relief (EX: injunction only); and A demand for judgment for all the other relief to which the party deems himself entitled. 3) *Names of the parties and residences*, if known. 4) Demonstrate a *basis for subject matter and personal jurisdiction, as well as proper venue* (no specific rule requires this) -Jurisdictional allegations concerning nonresidents must be drafted with care to plead sufficient PJ allegations under which the D is amenable to process and to support a default judgment against a direct attack 5) Must be *properly "indorsed" [signed and have a proper title*] (Proper title: i.e., whether it is the original petition, first/second/etc. amended petition, supplemental petition) 6) Must *set out claims/grounds* in numbered paragraphs, should be limited to a statement of a single set of circumstances -Statements in a pleading can be adopted by reference either later in the same pleading or in later pleadings or motions 7) Must have *signature of at least one attorney of record* (or pro-se claimant), including his/her State Bar ID number, address, telephone number, and fax number (if available) and email address. -Unless otherwise designated, the attorney whose signature first appears is the "attorney in charge" (that's the attorney that will be sanctioned if something goes wrong - don't necessarily want this title!)

Only three types of objections allowed during oral depo

1) Objection, leading. (objection to question) 2) Objection, form. (objection to question) 3) Objection, non-responsive. (objection to testimony) These are the only 3 objections that need to be made, unless counsel agrees otherwise. Other objections can be made at trial when evidence is admitted. Scope of disco broader than trial admissibilty.

If Plaintiff's proof supports proper venue, trial court will not consider Defendant's response unless ...

1) based on a mandatory venue provision or 2) convenience transfer or 3) a claim an impartial trial cannot be had in the county of proper venue. If it's permissive vs. permissive, the court will not even look at the D's proof.

Clauses prescribing venue in a location in ANOTHER state should be enforced unless the party opposing the clause clearly shows that enforcement would:

1) be unreasonable and unjust, or 2) the clause was invalid for such reasons as fraud or overreaching.

CHAPTER 8: PRECLUSION DOCTRINES: CLAIM PRECLUSION (RES JUDICATA) Applies in two scenarios:

1) claim already adjudicated to a final judgment; OR 2) a transactionally related claim to a previous suit that should have been brought.

Other unique facts regarding MTTV because impartial trial cannot be had:

1) there is no due order of pleading (because you may not be aware until you get into case) 2) can be asserted by a Plaintiff as well as a D (whereas a Rule 86 is only asserted by D) -Because Plaintiff can realize after they choose venue that they can't get a fair trial due to prejudice. If the other side doesn't respond, the court must transfer

Just because you file a case as a class action, doesn't mean it will be a class action. Have to get it certified. Class actions continued, Rule 42(b) - ONLY GOING TO TALK ABOUT (b)(3) In addition to the above factors, the Court must determine whether the class action can be maintained under one of the following categories listed in rule 42(b) (b)(3): (2 requirements)

1. common questions of law/fact predominate over questions affecting individual members and 2. class action is the most fair and efficient way to resolve (non-mandatory)

Ordinary Work Product generally NOT discoverable if: (2)

1. material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants . . . OR 2. a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives (including party's attorneys, consultants, sureties, indemnitors, insurers, employees, agents) Rationale: Excepted because we want to allow parties to be able to internally investigate and prepare for trial. Find out what happened, prep without fear that the other side will find out Counterargument - that's the smoking gun that shows everything the other side should know. Before 1999 caselaw disco rulings were very different. BE CAREFUL.

Guardians ad litem (GAL) are appointed for a minor or incompetent under TRCP 173 when:

1. the next friend or guardian appears to have a *conflict of interest*; or, 2. when the parties agree

TEXAS CIVIL TRIAL COURTS

1.District Courts 2.County Courts 3.Justice Courts 4.Statutory County Courts (County Courts at Law) 5. Other Courts created by the legislature •Statutory County Courts are created by the legislature. •All other courts are created by the Texas Constitution (i.e., constitutionally guaranteed access in each county).

A party that inadvertently discloses privileged material may still claim the privilege if the producing party amends the response within ____ days of when then learn of the inadvertent production, identifies the material produced, and states the privilege asserted then the other party has to give it back and the privilege remains intact. (Snap-back or claw-back) TRCP 193.3(d)

10 10 day time limit starts when inadvertent disclosure is discovered

Constitutional Privileges:

1st (freedom of association), 5th amendment (PASI) *Privilege against self incrimination*: A witness can assert this privilege if disclosure would furnish a link in the chain of evidence needed to criminally prosecute the person claiming the privilege -A defendant can't suffer sanctions by asserting PASI, but a P might be forced to disclose or face dismissal *Right of association*: may assert to prevent disclosure of associations EX: don't have to tell people what religion/church you attend. -These privileges (like other privileges) may be waived Mandamus relief available to prevent improper compelled disclosure.

The MSJ and supporting proof is to be filed and served no later than 21 days before the hearing. If service of the motion is by mail, the motion must be served no later than ____ days before the hearing.

24 A response in opposition and any supporting proof is to be filed and severed no later than 7 days before the hearing. Late filed proof will NOT be considered on appeal, unless leave of the TCT appears in the record or in a written agreement of counsel.

Waiver and the Onus of Proof - When the defective plea: 1) is a denial, and 2) if the denial were effective, it would impose additional proof requirements on P, then

3) a special exception is NOT required to preserve the right to complain about the effective denial. Instead, the P can preserve the right to complain about the defective denial by objecting at trial to evidence raising the denial.

Requests to use means other than stenographic recording require notice at least

5 days prior to the depo

Defendant may file a Reply to the P's Response to the MTTV no later than ___ days before the MTTV hearing to make Affidavit proof of any of D's venue facts denied by Plaintiff in its response.

7

County Court at Law Exercising Probate JRD.

A CCL exercising probate jurisdiction is NOT a statutory probate court unless the court is designated as one under Chapter 25, Government Code.

Specific denials and denials under oath -

A D maybe choose to deny given facts specifically even when a general denial is permitted. However, in some instances, a D is required to deny allegations specifically, and a general denial is ineffective to require the P to prove these allegations

Political Question Doctrine:

A case is a political question not properly before the court if it is a matter entrusted to the judgment of a different governmental branch. (i.e., not the judicial branch)

Waiver by Inadvertent Disclosure Old rule prior to 1999, inadvertent disclosure waives privilege. NOT the rule now. NEW RULE:

A claim of privilege is NOT defeated by a disclosure that was compelled erroneously; privilege is also not defeated if the disclosure was made without an opportunity to claim the privilege.

16.071. Notice Requirements

A contract stipulation that requires a claimant to give notice of a claim for damages as a condition precedent to the right to sue on a contract is not valid unless the stipulation is reasonable. A stipulation that requires notification within less than 90 days is void. If notice is required, the claimant may notify any convenient agent of the company that requires the notice. In a suit covered by this section of 16.070, it is presumed that any required notice has been given unless lack of notice is specifically pleaded under oath. This does not apply relating to sale or purchase of a business entity if a party pays or receives or is obligated to pay or receive consideration and the contract is worth not less than $500k.

Disclosures Must Be Made Before Other Discovery Is Due

A party cannot serve discovery until after the initial disclosures are due unless otherwise agreed to by the parties or ordered by the court.

16.070. Contractual Limitations Period

A person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the former to a period shorter than 2 years, or it is void. This does not apply relating to sale or purchase of a business entity if a party pays or receives or is obligated to pay or receive consideration and the contract is worth not less than $500k.

NOTE 5: Improper Refusals to Admit. Suppose a party denies a RFA and the matter constituting the subject matter of the request is established in a subsequent trial. Does the requesting party have any recourse?

A: Maybe, you could seek sanctions

Justice Courts - basic SMJ

AIM: $.01-20k (excluding interest) *Jx Granted: Forcible entry and detainer (FED); deed restrictions* *NO JX OVER*: -Suit on behalf of the state to recover a penalty etc; -divorce; -slander or defamation; -title to land; -enforcement of a lien on land; -*No injunctions*

Determining AIC: Multiple Parties MULTIPLE plaintiff's, each making a claim against ONE defendant?

Add claims together to get AIM

Determining AIC: Multiple Parties ONE plaintiff with multiple claims against ONE defendant?

Add claims together to get AIM (unless those claims are sought in the alternative, then highest claim controls) Alternative claims - suing for breach of K, and if there is not binding K found, then quantum meruit. The higher amount pled controls One satisfaction rule - can't recover for the same injury twice.

Required Joinder of Certain Govt Actors

Although the northglen court indicated it would be "rare indeed" if there were persons whose presence was so indispensable that their nonjoinder would deprive the court of jx to adjudicate between the parties already joined, such instances can still exist when a statute confers authority on particular govt units or officials. EX: In an action to declare a statute unconstitutional, the El Paso appeals court dismissed the case for want of jx due to failure to join the party responsible for enforcing the statute.

Should a non-movant served with a traditional motion for summary judgment file a response since the burden of proof is on the movant?

Always file response, OR his own motion for summary judgment. Rule 166a(c), "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as a ground for reversal [of a summary judgment]."

Difference between Bill of Review and Appeal:

Appeal just looks at trial record Bill of Review - at trial court level and you enter evidence.

CONSENT TO PERSONAL JX Consent - D may consent to jx in several ways. 3) WAIVER -

Appearing in court without filing a special appearance or files an Answer before filing a special appearance EX: D files an answer. They have impliedly waived PJ objections. Due order of pleadings: Must file special appearance FIRST if you're going to contest a lack of PJ. Can't "test drive" TX courts and then later file special appearance

SMJ is just what it sounds like, can the court hear this type of case. SMJ cannot be waived, which means....

At any time, even after judgment, SMJ can be raised. Any judgment by a court that lacks SMJ is VOID -then you're in malpractice land.

Wrongful Attachment Tort

Attachment is wrongful if the facts alleged in the affidavit supporting the writ of attachment are untrue (doesn't matter if creditor-plaintiff acted in good faith) Must prove: interference with debtor's property rights *Exemplary damages are available if* (1) the creditor has acted maliciously AND (2) without probable cause in procuring the writ Purpose of the bond requirement (same for all of these bonds) Attachment is ALSO wrongful if a bond was not posted -Bonds must be posted by the plaintiff in case the plaintiff does not win; bond will cover damages and cots that may be adjudged against the plaintiff for wrongful attachment.

Disco Level 1 Discovery period:

Begins when Suit is filed & continues until 180 days after 1st Request For Discovery is served. Very limited discovery: meant to keep down costs

Once a D files a declaration and makes an offer, the P can make a counteroffer.

Both sides can try to get their litigation costs awarded by the other side unreasonably turning down their settlement offer made under this rule, and hoping that the judgment for your opponent will be 20% less favorable. So there's a risk involved if you're the D in using this offer of settlement rule. Carlson doesn't think it is used much.

In view of P's ownership of the mower, why did he not have the right to its possession?

Brogdon had an artisan's lien. If you don't pay for the work, he can keep it as security for payment.

Information Sought Solely for Impeachment Older cases suggesting a complete bar to discovery of impeachment materials are incorrect. Rules about expert discovery make information relevant to the bias of an expert witness clearly discoverable.

But the TXSC prohibits the discovery of detailed financial and business info from testifying experts for impeachment purposes You can discover from nonparty experts this info that goes to bias under the Rules that became effective on Jan 1 this year.

In re Team Transp., Inc., 996 S.W.2d 256, 258 (Tex. App.—Houston [14th Dist.] 1999) Here: two different statements: 1) statement by employee that witnessed accident leading to lawsuit 2) statement by VP about company policy regarding accidents in general D: this is not a witness statement because VP didn't have personal knowledge.

COURT: rejects this argument. Carlson is not sure the TXSC would agree.

What do you win in a plea in abatement?

Case is abated until the defect fixed.

Lawsuit pending in Tarrant County against D Omnimart and the underlying COA arise in Tarrant County. O's CEO, Sam Omni lives in Arkansas. Ignoring the "apex" rule, where can Sam be deposed, Ft. Worth?

Cases under the old disco rules allowed depo in Fort Worth, finding it not inconvenient

Conclusory Statements: a statement that does not provide the underlying facts to support the conclusion. Form or substance error?

Chiefly an objection to the substance of the affidavit that can be raised for the first time on appeal, especially conclusory statements by experts are insufficient to support or defeat summary judgment.

Determining AIC: Multiple Parties Multiple DEFENDANTS?

Claims against multiple defendants are NOT added together for AIC purposes. Each claim against each D must meet the jurisdictional limits of the court

Conclusory Affidavits are Incompetent

Conclusory affidavits (states conclusion without supporting facts that lead to the conclusion) are incompetent summary judgment evidence.

Consider timing and sequence of depositions

Conduct other discovery necessary for use in the depositions before you schedule depo. But if trying to lock in testimony may wish to take depo earlier.

Cost of Court - included in AIC?

Costs - statutes defining the AIC for specific courts do not always exclude costs, even when they exclude interest. Must look at specific court.

CONSEQUENCES FOR LACK OF SUBJECT MATTER JURISDICTION?

Court has no authority to do anything other than dismiss the case

What is the incentive of a D in insisting on better pleadings?

D can better prepare; but also can lock P into a particular legal theory. If P goes outside of that theory at trial, can object that evidence is "outside the pleadings" If legal theory is not recognized in TX (EX: CL negligence in workers' comp case), D can move for summary judgment on that ground.

Offensive Use vs. Defensive Use of Collateral Estoppel (Issue Preclusion)

Defensive Use most common: D seeking to estop P from relitigating an issue. Offensive Use: Plaintiff seeks to estop a defendant from relitigating an issue or issues that the defendant previously litigated and lost in an earlier case.

Purpose of Deposition:

Discover facts, preserve testimony, freeze testimony, inability to compel witness to testify at trial (EX: beyond subpoena range), assess witnesses. Can use depo at trial, subject to the rules of evidence.

Why is that the person against whom collateral estoppel is asserted (the party to be bound) in suit 2, must have been a party (or in privity) in suit 1 and had the opportunity to litigate the issue?

Due Process concern. They have to have had their day in court.

Abstract of title:

Either party may request. Enables one party to inspect the other party's documents and prepare a more informed defense. Shows all the documentation that supports the chain of title and puts title in one party's name or the other.

EMERGENCY AND INTERIM RELIEF (SPECIAL REMEDIES)

Emergency judicial intervention involves procedural problems that must be considered in the context of the need to obtain interim relief before final adjudication. -As a general principle, interim relief is used to preserve the status quo pending a determination of the primary proceeding.

What is an overbroad request?

Even though the scope of discovery sounds broad, when we look at the case law, it is must be "reasonably tailored" - can't use discovery as a fishing expedition (give me everything you've got and I'll find something) As soon as you are served with discovery, you forward to the client, ask them to look at it and give an idea of what it would take to respond to it. Get a sense of how burdensome responding will be. HERE: KMart probably has many thousands of crimes: tons of shoplifting, etc. So you put on facts from the client to the court to show how burdensome it would be to the client. Show that it is not relevant to P's claim.

Prejudgment Garnishment

Garnishment is a type of attachment, but now the property to be seized is in the hands of a 3P, the garnishee. It's a suit within a suit First level: pending suit between the plaintiff-creditor v. defendant-debtor Second level: The garnishment action is between the P (garnishor) and the 3P garnishee. Garnishee has no relation to the original suit; they just happen to be holding nonexempt property of the debtor that the plaintiff is seeking to get seized and held in the custody of the court until the P proves the merits of his lawsuit.

RULE 90. WAIVER OF DEFECTS IN PLEADING - SPECIAL EXCEPTION RULE General demurrers shall not be used.

General demurrer NOT allowed (can't just say "your pleadings are defective, fix them") In Texas, we have "special exceptions" that must be specific. "Your pleadings are defective in that they fail to X"

Texas Public Information Act: certain information is exempt from the act.

Generally govt records are open and you have a right to access by request under PIA. There is a little bit of restriction, but not much: E.g., information held by law enforcement agencies and prosecutors relating to their criminal investigations is protected from a discovery request.

The guardian ad litem acts as an officer of the court, solely to advise the court as to whether a settlement proposal is in the party's best interest. "Ad litem" - for purposes of this suit. The GAL is Not supposed to be a full time lawyer;

Guardian ad litem is not to participate in discovery or trial unless under court orders. Rule 173 makes it clear that the guardian ad litem can only recover fees for the hearing in which the settlement offer is approved/disapproved by the court. The role of the GAL is to say "thumbs up/thumbs down" to the court on any settlement proposal.

Medical Malpractice SOL/SOR Special statute applies, 74.251 CPRC

Health care liability claim must be filed within 2 years of the breach or tort; when the injury happens or when the hospitalization ends. Minors under 12 shall have until 14th birthday. Applies to all regardless of minority or other disability. *Statute of repose.* - A claimant must bring a health care liability claim not later than 10 years after the act or omission that gives rise to the claim. Under 74.251(a) a suit must be brought within 2 years of the date of the occurrence, or within 2 years from the date the medical or health care is completed.

Formal supplementation of responses to written disco is required for

ID of fact Ws, trial Ws, or experts

A party may discover facts known to consulting only experts.

If a consulting expert's mental impressions or opinions have been reviewed by a testifying expert, the consulting expert is subject to the same scope of discovery as a testifying expert. For consulting experts who impressions and opinions have been reviewed by a testifying expert, discovery is accomplished through interrogatories, requests for production and depositions.

Punitive Damages - included in AIC?

If recoverable under applicable law, then they will be included in AIC for JP, CCC, and DCt EXCLUDED in SCC

Testimony of an Interested Witness: form or substance?

In order to support summary judgment, the testimony of an interested witness must be clear, positive, direct, credible, and free from contradiction. Additionally, courts require that the testimony must be of a readily controvertible nature, i.e., that the testimony can be controverted by opposing evidence. Testimony failing to meet this test is *regarded as formally defective and an objection must be made and a ruling obtained in the trial court to preserve the objecting party's complaint for appellate review*.

16.011. Surveyors

Injury or loss due to survey error by licensed surveyor. not later than 10 years after the date the survey is completed If claimant presents written claim for damages within 10 year limitations period, the period is extended for two years from the day the claim is presented.

Primary Jurisdiction Doctrine:

Invoked when a case is properly heard, at least initially, by an administrative agency created for resolution of the dispute. Doctrine is prudential in nature, meaning that it does not affect a court's SMJ. Some matters require that you first get an administrative determination before you can get into court

Generally you do NOT file disco between parties with the court.

Lawyers are repository for responses between parties. Make sure on appeal that you get any admissions on file with the court in the record But you DO file disco from non-parties with the court.

Interrogatory Limits

Level 1 = 15 interrogatories --Expedited trials. Today it is cases where only monetary relief is sought; not exceeding $250k (excluding punitive, penalties, interests, attorney's fees, costs). Level 2 = 25 --Above $250k; or seeking other than monetary relief Level 3 = set by the court These limits do NOT include interrogatories asking a party only to identify or authenticate specific documents

Number of Requests for Admissions allowed at different disco levels?

Level One Limit=15 RFA Level Two limit=NONE! Level Three = whatever court orders in custom plan

Time to Designate Experts: How soon after retaining a testifying expert must the expert be ID'd in response to a request for disclosure?

"Reasonably promptly"

Sequestration vs. replevy bond.

Sequestration is used by creditor to reclaim goods from debtor after default Replevy bond gets the property back from the creditor. Both are ways to guarantee payment to the other in case of they lose

What do you win if you file a plea in abatement that joinder is improper?

Severance is the remedy ordered when joinder is improper (not dismissal).

Motion To Dismiss Baseless Causes Of Action-TRCP 91a

Similar to federal 12(b)(6) motion to dismiss. Many courts analogize to federal rule and use federal precedent to interpret TXL passed 91a recently. Political motivation - popular belief that there is a lot of baseless claims. There already existed MSJ, sanctions for frivolous lawsuits, etc. TX courts reference the same standards as federal motion to dismiss TRCP 91a does not apply in cases brought under the Family Code or inmate litigation cases government by Ch14 of CPRC

Two types of jx that can be conferred under a LAS: ...

Specific vs. general

How much contact does the defendant need? USSCt- there's specific and general jx.

States can always afford MORE due process protections. So important to look at state long arm statute States set out the extent of PJ they choose to exercise in their "long arm statutes" In Texas, long-arm statute reaches as far as federal due process allows. So no additional due process protections here.

NOTE 2: Shows a federal pleading which is very general - federal courts don't require pleadings with the same level of specificity as Texas. What additional info is added by "negligently"? Tells you substantive legal theory Would NOT have satisfied in TX courts. Not sufficiently specific to identify HOW D was negligent. What was the problem? Running red light, impairment?

TX requires more specific pleading than federal requirements to provide fair notice.

Only personalty (tangible or intangible) can be "seized" by the service of the garnishment writ. Certain property is exempt from garnishment. 63.004

TXC Art 16, Section 28 provides: "No current wage for personal service shall ever be subject to garnishment, except for the enforcement of court-ordered (1) child support payments (2) spousal maintenance The TX Family Code provides details 8.101; 158.001 The rules of civil procedure also must be consulted on the subject of prejudgment garnishment.

Categorical Approach to Discovery Rule

TXSCt has adopted in effort to bring predictability and consistency to discovery rule. -Focuses on the types of injury not the causes of action and on whether a type of injury rather than a particular injury was discoverable -Thus cases involving traumatic injuries are not in the same category as latent onset injury or disease cases -Application of discovery rule categorical approach led Court to conclude that cases involving misappropriation of trade secrets did NOT allow for discovery rule

If a party is a Texas governmental body it is subject to the

Texas Open Meetings Act, which requires a mediation to be open to the public if it is likely to lead to a settlement or decision.

NOTE 2: federal law on res judicata is very similar to

Texas approach (applies transactional approach)

Stowers doctrine

Texas doctrine: if a P makes an offer to settle within policy limits, and the insurance company that insured the D driver turns it down *unreasonably*, then the P can recover against the insurance company BEYOND the contractual limits. P's offer is often called a "Stower offer"; described as "Stowerizing" the claim

The court may not award monetary sanctions against a represented party for a violation of Section 10.001(2). Why??

That means it's the lawyer's job to make sure 10.001 has been met. That's what you are certifying when you sign a pleading.

Adverse Consequences of Eliminating Mutuality -

The elimination of the mutuality doctrine can arguably lead to harsh results when the effect of the finding in the first case on subsequent litigation involving a different party is difficult to foresee. P lawyer needs to consider: If P brings a claim against X and has an adverse finding on a fact, P could be precluded from relitigating that fact in a transactionally-related claim against Y.

How do you set your case for Disco Level 1?

The first paragraph of the P's original petition is supposed to state the disco level the P wishes to proceed under. This election will be binding UNLESS the D seeks to take the case to level 3 (custom disco plan by the TCT on everything). Any party can "King's X" Disco 1 or 2 by requesting Level 3 in which TCT sets all the rules of disco.

Waiver Through Delay The Carlile court also relied on the D's delay in securing a ruling on his venue motion.

The movant may not sit on his rights indefinitely without incurring waiver for not diligently seeking a ruling.

What if the non-movant believes it can establish a material fact which would preclude summary judgment, but must conduct additional discovery?

The non-movant should seek a continuance of the summary judgment hearing supported by affidavit, stating reasons why it cannot present facts essential to this opposition to the motion for summary judgment. The court may: -Order a continuance to permit affidavits to be obtained; -Order a continuance to allow other discovery; and, -Make any order which is just.

Venue hearings are paper hearings based on the following proof:

The parties may conduct discovery regarding venue and the discovery responses may be considered by the trial court when they are attached to, or incorporated by reference in an affidavit.

Federal Tolling Provision - federal supplemental jx statute has its own tolling provision.

The period of limitations for any pendent state claim and for any other claim in the same action that is voluntarily dismissed at the same time or after the dismissal of the pendent state claim shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer period. *TX statute provides for 60 rather than 30 days to refile and thus is more generous than the federal provision*.

Expert Reports

The trial court has the discretion to order the preparation of an expert produced to other parties. For cases filed on or after January 1, 2021, a *draft* expert report or draft is protected from discovery, regardless of the form in which the draft is recorded. Don't have to produce something you don't have; don't have to create a document. But when it comes to expert reports, the court has the discretion to order the expert product a report.

Logical Relationship Test to determine if it is the same T/O

There is no logical relationship when none of the same facts are relevant to both claims. However, whenever the same facts, which may or may not be disputed, are significant and logically relevant to both claims, the "logical relationship" test is satisfied.

A party may also discover: Any other party's legal contentions and the factual bases for those contentions. How to request?

Through a request for disclosure or interrogatory

Venue Review

Venue relates to what county you can bring suit and is addressed primarily in Ch15 of the CPRC SMJ on the other hand is the power of the court to adjudicate the issue and can't be waived, whereas venue is the power of the court to adjudicate in a given county; CAN be waived. So you have to act quickly in your lawsuit to retain your venue rights.

Permissive joinder of CLAIMS

What claims MAY be joined, not must.

When are death penalty sanctions justified?

When party's behavior is in flagrant bad faith, conscious disregard, etc.

Ch15 of CPRC is the main venue statute; but there are many other statutes pertaining to venue.

When the TXL creates a statutory cause of action, they often accompany it with a specific venue statute

Specific Jx - ...

When you are trying to get PJ over a D because of the D's activities in TX that give rise to the lawsuit. Looking for a nexus between what the defendant did and Texas. When the COA gives rise to contacts that are the basis for PJ

Reconsideration of Prior Ruling What should a trial court do about venue after dismissing the claim against the D whose presence justifies venue?

Whole record review will show that the venue was incorrect and lead to reversal. The parties are no longer permitted to file a new motion to transfer.

TRCP 97(f) - If A, B, C are in collision and A sues B for damages, can B join C in connection with a counterclaim against A, seeking to recover B's damages in the collision?

YES, Rule 97(f) This would arise out of the same T/O as B's claim against A. Bringing in another party that may be responsible on the counterclaim.

NON-SUITS: READ TRCP 162 What happens if a party seeking affirmative relief (usually the plaintiff) does not wish, for some reason, to continue prosecuting a civil action?

YES. A party has an absolute right to non-suit its own claims.

Is a request for a pleading amendment POST-JUDGMENT too late?

YES. Can be after verdict, but must be BEFORE JUDGMENT.

Specialized pleadings: Trespass to Try Title Rules 783-813 (lots of rules) Very specialized. It's the ONLY action that involves "formal pleadings" -

YOU HAVE TO PLEAD EXACTLY WHAT THE RULE SAYS. Fair notice is NOT the test (like it is for every other COA). In TTTT, have to formally plead exactly what it should be. Must look at the rules. Trespass to try title (tttt) is the *method of determining title to land, improvements on land, or other real property* Purely statutory cause of action (Includes boundary disputes)

What happens if a plaintiff sued defendant and defendant filed a counterclaim against plaintiff. Thereafter, plaintiff takes a non-suit. May defendant continue to prosecute his counterclaim?

Yes, rule 162 expressly provides that the taking of a non-suit shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief. Nor may a party avoid a pending motion for sanctions by taking a non-suit. Unless otherwise provided by court order, court costs are assessed against the party seeking dismissal.

Is interpleader optional? (Declaratory J)

Yes. Don't have to use interpleader; could use declaratory judgment to the same thing; but you wouldn't get attorney's fees.

Surplusage? - Some cases state the principle that a general allegation that is accompanied by specific allegations should be considered as "mere surplusage" Taken literally, this means that

a general allegation is limited by the specific and cannot provide fair notice of any other claims that might have been encompassed by the more general allegation It also means that questions of whether the proof offered varies from the pleadings will be determined by the most specific allegations of the petition. In other words, pleadings can't have a list of specific allegations and then at the end say "and other acts of negligence" or "and other breaches of contract" etc. because every party would do that in every pleading.

Supplemental Pleadings -

additional pleading added on top of pleadings Rule created back when it was onerous to redo (because prior to computers) Our system for pleadings is Pretty antiquated. Set up before computers. It was thought too onerous to require amended pleading each time to respond, so you put them in a supplemental pleading. Carlson - she just put everything into amended pleadings, didn't use supplemental pleading because she only wants to use one pleading to keep simple by keeping it all in one place. Other side could technically specially except and argue that changes belonged in supplemental pleading, not an amended pleading. But it never happened. Carlson was never served with a supplemental pleading. So she was not the only one that felt that way. But supplemental pleadings are still on the books. NOT meant to allow parties to add a new claim on the brink of trial. If you try, courts will be hostile since discovery is usually complete. Do NOT wait until near deadlines. Best practice is to file as soon as possible, as soon as you become aware of issue that requires amended pleading.

A no evidence motion for summary judgment is not properly urged until

adequate time for discovery has been afforded. (Case specific)

Response to RFP Must include:

answers, any objections and any assertions of privilege

The judge is to set a hearing on the motion to reinstate ....

as soon as practicable and notify all parties or their attorneys of record of the date, time, and place of the hearing.

RFP response Items must be organized ....

as they were kept in the usual course of business OR corresponding with the categories in the request You can produce them on-site in the usual course of business - must discuss with client. How much is it? How hard is it to get together? Do we want to make files available, or copy them and serve? "all documents relevant to the lawsuit" -overly broad

Third party plaintiffs may implead a third party defendant ONLY if

asserting the third party defendant is liable to the third party plaintiff or to the original plaintiff for all or part of the claim. (Improper joinder may be waived if not timely raised by a plea in abatement)

For depos on written questions, the direct questions to be propounded to the witness must be

attached to the notice.

If you are an uninterested stakeholder, and use interpleader, you can get

attorney's fees. Win-win. Attorney's fees usually come out of the property interpled.

Motions to dismiss -

available to challenge COAs with no basis in law or fact.

Deemed admissions on whole case =

case determinative sanctions. To justify "death penalty" sanctions requires evidence party acted in flagrant bad faith or with callous disregard.

Plea in abatement -

catchall to raise certain procedural defects such as the prior pendency of another action or the non-joinder of a person needed for just adjudication.

Offers of Settlement Under Rule 167 Overview The Texas Legislature adopted an Offer of Settlement statute as a part of House Bill 4 Tort Reform (and as new Chapter 42 of the Civil Practices and Remedies Code), that may significantly affect settlement strategies and potentially the ultimate judgment rendered in Texas civil suits. It provides for shifting of

certain "litigation costs" when an offer to settle is made under the statute and Rule 167 but is rejected and the ultimate judgment is less favorable to the offeree by a 20 percent margin.

Plea to the jurisdiction -

challenge to the court's SMJ

First Amendment Religious or Ecclesiastical Matters -

civil courts are not to intrude into the church's governance of religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical govt, or the conformity of members to standards of morality. HOWEVER, Matters involving civil, contract, or property rights can be considered

TRCP 195.2 Have to disclose voluntarily the ...

compensation of an expert

If you don't think there's been enough disco time, file

continuance motion.

The "materiality" in MSJ determination rests on the substantive law, and only those facts identified by the substantive law to be

critical are considered material. Stated differently, "*only disputes over facts that might affect the outcome of the suit* under the governing law will properly preclude the entry of summary judgment."

Venue of 3P Actions - venue of the main action governs venue of

cross-claims, counterclaims, and 3P actions.

Special Damages -

damages that tend to vary from person to person. They must be specifically pleaded. EX: future pain and suffering and medical expenses. People have different pain tolerance. EX: medical expenses differ based on whether they are on medicare, PPO, etc. EX: lost wages - people made different amounts, mechanic vs. surgeon. When in doubt, plead special damages

Offer "Void" Upon Subsequent Joinder of Parties Chapter 42 (CPRC) mandates that "[i]f the offering party joins another party or designates a responsible third party after making the settlement offer, the party to whom the settlement offer was made may

declare the offer void." Because now we have someone else that might be responsible. Rule 167 requires a timely objection within 15 days after service of the offeror's pleading that joins another party or designation.

The plaintiff must also use ____ in amending his pleadings after an order sustaining exceptions

diligence

A party filing a venue motion has the burden to

diligently request a setting on the motion and obtain a ruling prior to a trial on the merits.

Motion to dismiss per 91a -

dismiss COAs that have no basis in law or fact on motion and without evidence equivalent of federal 12(b)(6)

Another motivation for moving for a medical exam is to

embarrass the P and put pressure on her to settle. Some will settle rather than submit to the invasive medical exam.

Arbitration agreements limiting discovery or shortening limitations have been upheld when

equally binding on all parties.

wrong

erase

The no-evidence MSJ movant does NOT bear the burden of proof to

establish that there is no genuine issue of material fact, as is the usual burden on a movant on a traditional summary judgment motion. A no-evidence summary judgment has been analogized to a pretrial directed verdict on discovery.

Issue Preclusion/Collateral Estoppel Because issue preclusion is based on whether a particular set of facts has been established in a prior proceeding, can it be used to prevent re-litigation of facts determined in a criminal proceeding?

estoppel applies when the facts necessarily found in the criminal action are identical to an issue in the civil proceeding (standards of proof beyond a reasonable doubt v. preponderance of the evidence) Can be used offensively by the P if: "the derivative claims of identical parties are based upon issues identical to those litigated in a prior suit."

A hearing on a plea in abatement is

evidentiary. There's facts questions to decide. EX: Is this person really an indispensable party? Does the P really lack capacity? etc. Unlike special exception hearing, the court DOES hear evidence in a plea in abatement hearing.

Depo of undisclosed W should be

excluded as well as live testimony Exclusion is a proper sanction for failure to supplement documents as well.

Drafting the MSJ - The grounds for a summary judgment must be

expressly set forth in the motion itself.

A party may also discover: Settlement agreements

from related cases that are relevant: their existence and contents

If limitations has run, and thus the P cannot join the RTP, then designating the RTP is

generally improper.

Interim relief -

getting relief in a case before the court has heard the merits. Trying to keep the D from becoming judgment proof

Courts may order an expert to produce a report but party is not otherwise required to

have their experts prepare written reports. A party may be subject to sanctions for failing to comply with a court order to produce a report.

Requests for "All Documents" Can be Proper - such a request does not itself violate the specificity requirement of Rule 196 that items be described with "reasonable particularity" as long as t

he request is further restricted to a particular type or class of documents. No fishing in any disco tool

If there is no examination requested, the witness can't tell the jury

he/she was willing to submit to an exam but was not asked. That's not allowed.

Specific v. General jurisdiction Specific: Jurisdiction

is asserted when the *P's claim arises out of, or is related to the non-resident defendants' forum contacts in Texas.* Here's what the D did in TX, and we're suing them based on those contacts Thus the basis of the suit typically is based in TX *Substantial Connection*. There must be a substantial connection between the nonresident D contacts in TX and the operative facts of the litigation. Basis of suit must have arisen in the state. Nonresident Ds activities must be purposefully directed to the forum ("purposeful availment")

Special exception -

is the vehicle for challenging either form (such as vagueness) or content (such as failure to state a cause of action) of the petition.

If you have an office that is subordinate,

it is NOT a principal office for venue. But you CAN have multiple principal offices in a state.

Want of consideration is both an affirmative defense (appears in Rule 94) and

it's also a matter that has to be denied under oath (Rule 93). One of the few things is in both of those rules.

Liability Insurance - Info concerning the existence of liability insurance and indemnity agreements (including the policy limits of the policies) is discoverable, but

its discoverability does not make it admissible.

A party can establish good cause by showing that

its failure to answer was accidental or the result of a mistake, not intentional/conscience indifference Makes good cause less onerous to make out

If the plaintiff doesn't specify which alternative measure of damages should be used, then

judgment should be entered on ground yielding the greatest recovery

collateral estoppel

known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that, "once a court has decided an issue of fact or law necessary to its judgment, that decision ... preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case".[1] The rationale behind issue preclusion is the prevention of legal harassment and the prevention of overuse or abuse of judicial resources

Like a directed verdict, the court applies the same ______ standard in reviewing a no-evidence summary judgment as is applied in reviewing a directed verdict.

legal sufficiency The court reviews the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences.

Note 5. Plaintiff may use affidavits rather than

live testimony to prove up unliquidated damages at a default judgment hearing.

Exception: Privileged documents provided to a testifying expert...

lose their status as work product and are discoverable even if inadvertently provided without the intent to waive privilege. (Although trial court may allow redesignation) Why? - can't unring the bell. They are now fair game.

Responding & Objecting To Written Discovery - TRCP 193 Responding to Written Discovery: When responding to written disco, a party must

make a complete, response, based on all info reasonably available to the responding party or attorney at the time the response is made.

The FAA governs contacts to arbitrate

maritime transactions and in contracts involving interstate commerce.

Special exceptions -

may be used to challenge defective pleadings or obtain correction of formal or substantive defects in an opponent's pleadings.

Drake v. Chase Bank - P pled no underlying facts that would support an award for harm to credit. TX doesn't recognize this COA (irreparable harm to credit). No basis in law. TCt didn't err in granting 91a motion to dismiss. P also pled IIED, that the D had misrepresented his liability, impairing his credit by giving incorrect info to credit bureau. Court:

must have been extreme and outrageous. Thus, 91a motion to dismiss granted as No reasonable person could believe that merely reporting credit is extreme and outrageous. Can be dismissed on 91a based on EITHER no basis in law or no basis in fact.

-*Timing of response* to RFP:

must respond within 30 days after service of the request. Any objections, privileges, etc. must be asserted within 30 days or they are WAIVED. If you assert privilege, must file a withholding statement with response. Better to move even faster to give yourself more wiggle room General global provision General rule that TCT can modify ANY of these time periods for good cause. If other side doesn't agree, can get court to order.

Requests for Production and Inspection of Documents and Tangible Things from Parties TRCP 196 A LOT of this is now covered by required disclosures (have to disclose basically everything you are going to use for claim or defense) Also governs requests for entry on land owned by a party or nonparty. Timing:

must serve a request no later than 30 days before the discovery period ends and must specify: -material to be produced/inspected by either item or by category, and describe with reasonable particularity

Rule 91a authorizes dismissal for pleadings with

no basis in law or fact

If differing inferences may reasonably be drawn from the summary judgment evidence, a summary judgment should

not be granted. The movant's own evidence may establish the existence of a genuine issue of material fact on the plaintiff's claim.

Appellate -

not trying, not hearing case, reviewing based on the record

Late filed Summary Judgment Response When the record is silent as to the trial court allowance of a motion to late file a summary judgment response, it is a

nullity. Must get a ruling or appellate court won't consider it.

Concurrent jx -

overlapping jx in several courts

Preclusive sanction:

party can't put on evidence that they didn't amend.

SMJ is challenged through a

plea to the jurisdiction

Even if a party substantially invokes the judicial process, the opposing party claiming waiver of arbitration, must establish

prejudice by those actions or the trial court should compel arbitration.

General Rule: The Plaintiff need not deny "any special matter or defense plead by Defendant, but the same shall be regarded as denied unless expressly admitted". A general denial is

presumed in response to a supplemental pleading.

Protection of pure consulting expert info remains

privileged.

Alternative/Substituted service:

proof of service must be made in the manner ordered by the court. Someone served on behalf of the D because couldn't get D served. EX: maybe their apartment manager or employer because we weren't able to have the D served in person or via the mail

Effect of M to Quash? Protective Order? If you file motion to quash/protective order by third business day after service of notice of deposition to quash oral depo, the depo is

quashed (won't go forward) until the court can address issue. TRCP 199.4 If you think depo notice is improper; insufficient, not a proper place for depo, or person can't attend. If you file by 3rd day after service of notice, that depo is off for the time being.

Affidavits of Experts: Ordinarily, the testimony of an expert witness does no more than

raise an issue to be determined by the trier of fact; it usually does not establish any fact as a matter of law. Moreover, a conclusory statement in an affidavit of an expert W is insufficient to create a question of fact to defeat summary judgment.

Requests for admission:

request an opponent admit or deny factual propositions submitted to the party, including the genuineness of documents Useful for: getting a party to commit to a particular version of facts; eliminating issues about which there is no real dispute. Can't use against a non-party. Once you get an admission it is established and party can't testify against it.

Discovery from Retained Testifying Experts Generally, discovery regarding testifying experts is accomplished through

requests for disclosure and depositions. A party may request that another party designate and disclose info concerning testifying expert who is retained by, employed by, or under the control of the responding party.

If the record contains NO probative evidence that venue was proper, the appellate court must

reverse the trial court's judgment & remand the case for trial. (Per se reversible error)

SERVICE THROUGH THE SECRETARY OF STATE Service may be made by certified mail, return receipt requested, by the clerk of the court or by the party or representative of the party on Texas Secretary of State's office. Must serve secretary two copies of process and provide requisite fees. Prepare and ask Secretary to return a Whitney certificate. *Whitney certificate* -

says "this is the SOS's office, and we've forwarded the citation and petition to the D's address." Whitney certificate is conclusive evidence of service. Like substituted service when you serve someone over 16 at place of work. You have strictly complied with rules and that is sufficient. It's called a Whitney certificate because it is not in rules, but is from Whitney case.

Counterclaims -

seek relief against opposing party. If they arose out of the same T/O as the opposing party's claim, they are "compulsory" (use them or lose them). If not, they are "permissive"

If the benefits are shown to outweigh the burdens of production and the trial court orders production of information that is not reasonably available,

sensitive information should be protected and the least intrusive means should be employed. Tex. R. Civ. P. 192.6(b). The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. Tex. R. Civ. P. 196.4.

Garnishment involves a

separate ancillary lawsuit between the garnishor and the garnishee (the third party; such as the D's employer, etc.). The garnishment action cannot be concluded with a judgment against the garnishee until the primary action for the debt between the P (garnishor) and the defendant (debtor) ends. The court dockets the case in the name of the P as P and of the garnishee as defendant. TRCP 659 The court must immediately issue a writ of garnishment if the application and the bond requirements are fulfilled. TRCP 659, 661 Under TRCP 659, the writ should command the garnishee to appear and answer under oath what, if anything, is owed to the defendant-debtor, and what the debt was the defendant-debtor at the time the writ was served. The garnishee must also reveal what property of the defendant is in her possession presently, and what property was possessed when the writ was served. Finally, the garnishee must reveal any other persons known who are indebted to the defendant-debtor, or have property belonging to that person.

Tex. R. Civ. P. 91 provides that a special exception shall not only point out the particular pleading excepted to, but

shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegation in the pleading excepted to. If not, the P should file a special exception to the special exception!

The case is not nonsuited just because the P files a nonsuit; the party taking a non-suit should have the trial court

sign an order of dismissal. The order of dismissal is the equivalent of a judgment ending the lawsuit.

PJ is challenged through a

special appearance motion

If the grounds for a MSJ are unclear or ambiguous, a party should

specially except to the motion to preserve that complaint for appellate review.

The affidavit of an interested expert who is also a party to the case can support summary judgment if it meets these requirements. However, an expert cannot merely

state that he knows the standard of care and conclude that it was met.

Trial court MAY NOT transfer venue

sua sponte (on the court's own order) = VOID ORDER

Permanent injunction -

survives the suit

Witness statements are NOT work product, even if

taken in anticipation of litigation

The Problem of Witness Statements Witness statements are NOT privileged, even if

taken in anticipation of litigation (change from the past rules where they were). Rule is intended to make statements signed or adopted by the W discoverable, but not to make attorneys' notes concerning W interests discoverable.

When reviewing a summary judgment, the appellate court

takes as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor.

Counter-defendants, cross-defendants When a counterclaim or cross-claim is served upon a party who has made an appearance in the action (by availing themselves of the court other than special appearance),

that party is deemed to have pled a general denial Rule 92 - presumption of a general denial. That party is not however deemed to have waived any special appearance or motion to transfer venue they may wish to assert.

interpleader SMJ -

the AIM controls Amount of properly interpled is the controlling AIM for SMJ

Sometimes FNC is the same as a practical MSJ because

the P can't go to the other forum. Sometimes, because of the practical difficulties in litigating a case in a distant forum (especially those in a foreign country), winning a FNC motion is the functional equivalent of dismissing the case because the P has no ability to afford pursuing a case in the new forum.

An agreement to arbitrate may be governed by

the Texas Arbitration Act or the Federal Arbitration Act.

Contractual agreements to determine disputes by binding arbitration are valid and enforceable, unless

the agreement is unconscionable.

If there is no probative evidence that venue was proper, the case should be transferred to ...

the defendant's choice of proper venue

The SOS is required to mail a copy of the process to ..

the nonresident, both by the long-arm statute and by the TBOC.

In contrast, complaints about ____ between pleading and proof are not waivable at the pleading stage, but such variances are waivable at trial.

variance.

It's against Public Policy to contract for

venue in TX, generally. Choice of law is okay, but NOT venue. So if venue choice is in contract, it is unenforceable. EXCEPTION: If the K indicates that performance takes place in a particular county, that provision can be enforced so that venue is proper there, UNLESS a consumer transaction. EX: sign up for CC, CC company can't force consumer to venue where payment is made; this cannot be waived in the CC contract. EX: Take or Pay Contract for Natural Gas: we agree to take this amount of gas, even if we don't take it, we'll pay anyway. D violates contract, doesn't pay, doesn't take. P sues in county where K says payment is to take place. However, K does not mention specific county, just says "Houston" which is in several counties. TXSC: can't enforce, must specify particular county. When you draft contracts, give particular county if you want to use 15.035(a) if you want to sue for nonperformance of that obligation in that county.

Motion to transfer venue -

waived if not filed prior to or concurrently with any other plea except a special appearance

Venue hearings A motion to transfer venue may be submitted for a hearing before the court or may be submitted on

written submission.

Getting Documents And Things From Nonparties By Subpoena Without Deposition Generally, parties are supposed to cooperate, don't need court orders. But with NON-parties, ....

you DO need court orders and subpoenas. Can either subpoena documents or take their depos.

NOTES AND QUESTIONS: Depositions Probably the most effective disco tool because

you get to ask the W in person themselves and get to ask follow ups. Unlike all the other disco tools that are typically prepared by counsel. Best counsel can do is to try to prep Ws, but that often doesn't happen with non-party Ws.

Most types of biz organizations that are doing enough biz in TX could be required under the TBOC to have an agent for service of process. If so, ...

you have to have two unsuccessful attempts to serve that agent before you can serve on SOS Note, therefore, that service on the SOS is not proper if the D maintains a regular place of biz in TX or a designated agent is available....

If the court orders disclosure of a trade secret, it should be subject to an appropriate protective order. What's a protective order?

Limits reveal of trade secret if movant wins to only necessary parties for the suit. Lawyers, consultants, experts, and other necessary persons. Each has to agree in writing to keep the trade secret confidential, and then return any documents at the end of the proceedings.

Spoliation: e-disco is more easily changed or deleted than hard copy documents.

Litigants must be particularly careful to avoid deletion after a disco request. Litigation hold letter - gives notice that suit is pending and the party should retain docs, ESI.

How do you determine the jx of a CCL?

Look at default CCL statute; then look at the statute creating the particular CCL, which can be quite different. EX: Dallas CCL have concurrent jx with DCts. The CCLs are gap-fillers that fulfill the particular judicial needs of that county; thus they can vary a great deal in SMJ.

Summary judgment IS A JUDGMENT ON THE

MERITS, AND IT IS RES JUDICATA. SUMMARY JUDGMENT IS NOT A DISMISSAL. It is a judgment on the merits. High stakes poker.

Difference between mandamus and original proceeding? Both go to appellate court.

Mandamus is an original proceeding before the appellate court seeking a writ on an isolated ruling. Have to show that the TCt's ruling was a clear abuse of discretion. Tough standard to meet.

MEDIATION A third party facilitator is used to encourage and assist the parties in reaching a settlement, without compelling a settlement.

Many mediators hold separate caucuses with each party followed by joint sessions in an attempt to independently assess the strengths and weaknesses in the case. The trial court has the power to direct organizational parties to send a representative with full settlement authority to attend the mediation.

What are death penalty sanctions?

Merit preclusive sanctions

Death penalty sanctions (striking pleadings, default judgment, dismissal with prejudice, etc.)

Merit preclusive sanctions. Deciding case based on sanctions, instead of merits. Sanctions so severe the case is decided on the sanctions and not the merits. Due process issue: party hasn't had their day in court if deciding on sanctions instead of merits.

Pretrial and Scheduling Orders

Modern practice also involves deadlines for the scheduling of deadlines for joining additional parties, amending or supplementing pleadings, conducting pretrial discovery, and the date(s) for preliminary pretrial or scheduling orders and final pretrial orders. *Civil Procedure Rule 166* provides that courts may direct attorneys to attend a pretrial conference to consider a wide variety of matters to assist in the disposition of the case, such as: -Pending pleas and motions -Amendments to pleadings -Discovery plan -Requiring written statements of the parties' contentions -Obtaining fact stipulations -Exchanging lists of facts and expert witnesses -Proposed jury instructions, questions, definitions, -Any matters that may aid in the disposition of the action However, most TX cases do not require pretrial conferences culminating in detailed orders; still it has become routine practice in many courts

Individualized Docket

Most courts use All motions are heard/tried by the court you file the case in Unless judge is voted out of office, retires, dies, or brings in a visiting judge

MTTV when an IMPARTIAL TRIAL CAN'T BE HAD in the county where P has filed suit Applicable procedures: TRCP 257-259 Procedure under Rule 257

Movant submits its affidavit + affidavit of 3 credible persons residents of the county setting forth facts supporting the conclusion that an impartial trial cannot be had in the county of suit. Transfer of venue is mandatory UNLESS adverse party submits an affidavit attacking creditability of the movant or the other affiants. In that situation, the Rule 257 motion to transfer will be "tried" by a judge. *Does that then allow for Live testimony?* Yes, we think so. There are earlier cases, but there's not a clear recent cases. But based upon Surgitech holding, which states that subjective factors like prejudice, etc. those kinds of things lend themselves to live testimony, so it seems like TCt would have discretion to hear live testimony.

Timing of 91a motion to dismiss

Must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant and filed at least 21 days before the motion is heard. Response must be filed < 7 days before the date of the hearing. Court must rule within 45 days of filing of motion DON'T WORRY ABOUT TIME FRAMES, JUST KNOW THIS IS AN UPFRONT MOTION.

Determining AIC: Multiple Parties Intervening plaintiffs?

Must independently satisfy AIC.

Waiver & Venue rights of multiple defendants: What happens if one D waives venue, does that waiver impute to the other Ds?

NO. Any omission by one D that results in waiver is not imputed to other defendants. CPRC 15.0641 (It is within the trial court's discretion to either move the whole case, or sever the claims and have two separate proceedings when 1 D waives venue.)

Do tax returns establish net worth?

NO. Tax returns only establish income and deductions. They don't show assets - liabilities (which equals net worth)

Preserving Complaints About Summary Judgment Evidence Procedures involved in moving for or opposing summary judgment are riddled with technical requirements with which the attorney must comply or risk losing the client's right to assert its arguments on appeal. TRCP 166a(c) makes it plain that "issues not expressly presented to the TCT by written motion, answer or other response shall

NOT be considered on appeal as grounds for reversal."

Kerlin v. Arias (Tex. 2008) Movant's affidavit asserting that all statements made in the affidavit are "true and correct to the best of my personal knowledge and belief" is

NOT competent summary judgment evidence. An affiant's belief about the facts is legally insufficient and cannot raise a fact issue. The movant must have personal knowledge of the fact and an affidavit must set forth facts that support how the affiant acquired personal knowledge of the facts. Be careful how you word affidavit. EX: "My name is Jane Doe, I oversee XYZ Corporation's _____, and in that capacity I have personal knowledge that ......[didn't delivery widgets on such and such date because (facts) ] and thus they breached contract" An affidavit showing no basis for personal knowledge is also legally insufficient and incompetent. Statements by an affiant that she heard testimony and reviewed documents are not admissible in evidence as they are out of court sources constituting hearsay and carry no weight over a hearsay objection. Can't just be conclusory; must set out facts.

Discovery begins and ends at particular times.

NOT for the life of the case.

No Evidence Summary Judgments- Rule 166a(i)

New on the scene in TX; been around for a while in federal. The party without the BOP can MSJ and require the party with the BOP to establish a challenged element. EX: medmal D doctor MSJ arguing that P cannot make out causation. P nonmovant then has to put on proof of that element. If no response filed by nonmovant, then they lose and D is granted SJ.

When is the deadline for the opposing party to respond?

No later than seven days prior to the date of the hearing. (Response in Opposition to X's Motion for Summary Judgment with any summary judgment proof) There is no time limit provided in Rule 166a for filing a Reply. New grounds for sj may not be raised in the reply. Some judges will not accept paper copies of anything. If you come in with a reply on the day of MSJ - they only accept electronically filed documents now. Won't take paper.

KNOW THAT IF IT IS A DEFECT OF FORM, YOU MUST

OBJECT OR YOU WAIVE.

Standing Orders

On top of local rules, each judge can have standing orders for how he/she wants things to run in his/her courtroom. Can be quite extensive. What does this judge require in particular? Again, shouldn't conflict with TRCP and local rules, should be in addition to EX: TRCP 253 - absence of counsel is not good cause to continue a case. Although the judge has discretion to grant a continuance. So you start out with the presumption that lawyers are fungible. But Judge Sanhill in Harris County has a rule that any lawyer within 90 days that has a new child can get a continuance.

Can the D who remains after the D who justified venue is eliminated by MSJ ask the court to rehear the original venue motion?

One appeals court held that TRCP 87(5) prohibits reconsideration and that mandamus is available to correct the "void" order Generally, once the court rules on the MTTV, it cannot consider any later MTTV, regardless of whether the movant was a party when the original motion was heard. TEX. R. CIV. P. 87(5) (only prohibits the court from considering a "further motion," not a motion for rehearing of an earlier venue ruling.) EX: P wins on a MTTV raised by D1. Later P adds D2 to proceeding. D2 can't reconsider MTTV by D2, UNLESS, D2's MTTV is based upon grounds that an impartial trial cannot be had, or the ground of mandatory venue (provided that claim was unavailable to the previous movant, D1) However, this rule does not bar a second MTTV made on grounds of mandatory venue by a later-added D, if the ground was not available to the earlier defendants, or on grounds of inability to obtain an impartial trial.

Why Worry About Long-Arm Statutes? -

One reason is for the proper method of service of process, especially in default judgment cases.

Oral or on written questions?

Oral depositions are more expensive, but can ask follow up questions.

Amended petitions -

P may amend existing pleadings to make additions, corrections or other changes. An amended pleading generally supersedes its predecessor in the pleading process.

What if P is in level 1, and doesn't like it because P discovers it could be a $1M?

P must timely amend the pleadings with the facts/amounts that take the out of level 1. Without leave of court, a party may not file a pleading that would take the case out of level 1 unless it is filed before the earlier of: 30 days after the discovery period ends or 30 days before the date the case is set for trial. Must show good cause. Moving the court to allow the amendment and treat your case as a Level 2.

General: Jurisdiction

P's claim not related to non-resident's D's contacts with the Texas forum, but Defendant's Texas contacts are enough that the D is basically "at home" in TX. [Even more than the old "continuous and systematic" standard] The inquiry for general jx is more difficult to meet than specific jx. -Significant contact with forum required -Very high bar to meet. "Essentially at home" - look at the totality of the D's contacts in the world. EX: D does a $1 billion in TX enough? Not necessarily. If D does $30 billion worldwide, then $1 billion in Texas isn't that much. D's forum contacts are comparable to a domestic enterprise or permanent resident. Paradigms of general jx are the corporation's PPB and state of incorporation.

Really IMPORTANT: On appeal from a trial on the merits, if venue was improper (and it has been preserved thru timely complaint, etc.) it is ...

PER SE REVERSIBLE ERROR. Why? Because remember that the P's prima facie case for venue is taken as true by the court and can't be rebutted by cross examination, etc. which gives a huge incentive for the P to lie in the affidavit, etc. By making it per se reversible error, it mitigates P's incentive to lie.

There's no live testimony in MTTV. All documents. Discovery products: depositions, interrogatories.

Paper trial on venue. Works well in most instances because it's a very objective sort of proof. (Where does D reside? Where did the accident take place?) But there are occasions where it is not sufficient. Surgitech Case

RFP overview:

Party - simple request Non-Party - subpoena, and then notice to all parties 10 days before subpoena is served.

Whose interested?

Party, paid expert, employees of a party.

Special Relevance Issues - things you CAN discover:

People with knowledge of relevant facts: A party may obtain discovery of the name, address, and telephone number of any person having knowledge of relevant facts. Entitled to a statement of each identified person's connection ("treating physician"; "eyewitness" "P's mom and eyewitness to accident")

Duration of protection of work product:

Perpetual unless waived by not claiming it

Effect of Disability

Person has a legal disability if under 18 (regardless of whether married) OR of unsound mind -The time of disability is not included in the limitations period if a person entitled to bring a claim has a disability -Cannot tack one legal disability to another to extend limitations period -A disability that arises after a limitations period starts does not suspend running of the period

What do you file if you think joinder is improper?

Plea in abatement

How should it be raised to the trial court?

Plea in abatement.

CONSENT TO PERSONAL JX Consent - D may consent to jx in several ways. 1) Contract signed before suit agreeing to submit to jurisdiction (forum selection clause)

Presumed to be valid absent fraud or overreaching Forum selection clauses are enforceable in TX; actually mandatory enforcement unless the opposing party clearly shows that enforcement would be unreasonable and unjust, or that the clause is invalid for reasons such as fraud or overreaching. TXSC: opposing party has "heavy burden" One issue: is the forum clause exclusive or an additional forum? Depends on the language of the clause and the court. If not explicitly exclusive, court could interpret to mean only that jx is allowed in the listed forum, not mandatory. SO MAKE SURE YOU EXPLICITLY SAY "EXCLUSIVE" JX. Texas also enforces choice of law (jx); but does NOT enforce venue

Parties may contract or agree where venue will lie AFTER suit is filed

Pretty rare that parties would agree, but it's possible. The court MUST transfer an action to another county if the parties file a written consent to transfer to that county Such an agreement, if made in accordance with Rule 11 before the case is transferred, operates as an express waiver of any venue issues on appeal.

Request for Production

Production and inspection of documents, electronic records, tangible things, and realty: Request for Production to a *party is by a reasonably tailored request*. TRCP 196 - none of these requests can be used for "fishing expedition" *Non-party use subpoena* per TRCP 176 & TRCP 205 Also a request to enter real property. EX: May need a surveyor to evaluate for boundary dispute.

Original petition

Provides D a "short statement of the COA sufficient to give fair notice of the claim involved" and relief requested. Unlike the federal system, the concept of a COA remains central in TX, and pleadings are traditionally more factually detailed than those in federal court. Service of petition is governed by rules specifying who can serve and be served, and they vary depending on whether the D is inside or outside of TX

IF IT IS A DEFECT IN SUBSTANCE, YOU CAN

RAISE FOR THE FIRST TIME ON APPEAL.

When you settle a case, you also prepare a "_____" because you want to make sure that the person (or any related entities) who you're settling with doesn't bring any related claims.

RELEASE

What do you do if there's a hearing on a motion for summary judgment while your MTTV is pending?

Request that the court rule on the MTTV first before making any arguments regarding the MSJ. If you proceed to MSJ arguments, you waive venue. That way you're preserving your appellate complaint on venue.

Requirements to File a Medical Malpractice Claim in TX (3)

Requirements: 1) Notice must be provided at least 60 days before filing suit. 2) Notice must be accompanied with authorized release of pertinent medical records. 3) Notice must also supply a compliant expert report. If P fails to do those things the trial court MUST on motion dismiss with prejudice which creates res judicata. Claim is forever barred. P might get a little forgiveness the first time, an opportunity to amend - look at rules. But after that, dismissed with prejudice. VERY draconian. Part of tort reform to reduce "frivolous lawsuits" Shifts all the costs to the front of the case (experts, etc.). Of course, most medmal cases would be taken on a contingency basis. That same act puts severe caps on damages. Thus, tort reform has made it extremely difficult to bring medmal case. Even if you have a valid case, it's hard to find a lawyer that will take it on a contingency.

NOTE 1: What's the effect of a properly sworn denial of execution?

Requires opponent who relies upon the agreement to prove execution. The denial increases the BOP that is placed on the pleader's opponent.

Service of process on an entity

Return must reflect that service of process was ON THE ENTITY by serving an appropriate person: "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 on or through the agent." MUST SAY IT WAS SERVED ON PARTICULAR ENTITY THRU AN AGENT. Corporations as Registered Agents for Service TX law allows a corporation to designate another corporation as it's registered agent for service of process Must designate the authority to receive service on behalf of corporation Benefit Planners - served agent, but didn't say on behalf of Benefit Planners. Invalid. EX: If a D's secretary signs return receipt is it defective? YES. Not strict compliance. Must be D.

If the D suffers a Default judgment in TX, P must demonstrate

STRICT compliance with service rules; otherwise the default judgment can be set aside by a timely attack.

NOTE 5 - Looks at the concept of comity. What happens when suits are filed in different states?

Same parties, came COAs. P files first in AR, the D files second in TX. Two state proceedings? Can AR enjoin the TX proceeding? NO. Under the USC, the states are co-equal sovereigns. And thus, they can't enjoin each other from proceedings So you end up with parallel proceedings, and there's a race to judgment to achieve res judicata & full faith and credit But, the states CAN exercise comity, and TX could defer to the AR court and abate the TX case.

What is a plea in abatement?

"Abate" - means STOP. Asks the court to stop the court to stop the proceeding until some procedural defect is cured. (other than venue [which uses MTTV], jurisdiction [special appearance - PJ, plea to the jx - SMJ] or pleading defect [special exceptions]) This is a "catch all" plea. Rules don't define what is covered by a plea in abatement; we look to the caselaw. Ex. Lack of capacity of the parties, another action with same parties is already pending elsewhere, non-joinder of parties, claim is premature (not all elements yet), administrative proceedings still going on, etc. Some procedural defect prevents the case from going forward until the defect is cured.

Discovery does not extend to privileged material:

"Any matter not privileged that is relevant to the subject matter of the case" is discoverable. Privileges come from: constitution, statutes, and rules. But any privilege can be waived if not timely claimed. If a court tries to force you to break privilege, you should seek mandamus relief.

INTERVENTION; VOLUNTARY JOINDER OF NEW PARTIES When can a person not a party to the lawsuit make themselves a party to the action?

"Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. " TRCP 60. So you can intervene as either as a P or a D. --VERY RARE for persons to intervene as D. It's a matter of right in TX to intervene. Different in federal court (has two categories: permissive/as a matter of right).

TX uses a "due order of pleadings" system that requires that the person that wishes to contest PJ, must do so first:

"Prior to or simultaneous" with any other pleading. Rule 120a. File a special appearance timely prior to or simultaneous with any other plea, pleading or motion. Very common to file with a special appearance, an answer, subject to the special appearance. Often will file an Answer along with the special appearance because the Answer is due on behalf of D approximately 20 days after D is served. Probably still conducting discovery while our Answer is due. We don't want to put the client in a default judgment situation. Also eliminates the separate filing fee in you put answer and special appearance together in one instrument

The standard of review on appeal for joinder

"The court of appeals shall . . . Determine whether the joinder or intervention is proper based on an independent determination from the record, and not under either an abuse of discretion or substantial evidence standard." De Novo review of the entire record on appeal for joinder determinations However, "the court of appeals should employ an abuse of discretion standard to review a party's contention that it was improperly denied the opportunity to present further proof."

When you go into a depo, sometimes you are faced with opposing counsel will ask if you want to take under the "usual agreement"

"Usual Agreement" - parties often begin depo by entering a series of stipulations to modify rules. DO NOT AGREE TO THIS. Better to take depo under the TRCP where there are only 3 objections. "Usual agreement" - varies regionally. Ask them to state on the record what it is. Some say that you make all evidentiary objections during depos (which then means you cannot at trial if you didn't do during depo because waiver) Some say you can't make any at all. Any time you hear "you've waived this" as a lawyer start thinking about malpractice!

A "defendant" that may file the declaration and put fee shifting in play includes

"a person from whom a claimant seeks recovery on a claim, including a counterdefendant, cross-defendant, or third party defendant." CPRC § 42.002(c) So anyone against whom a claim is sought is a defendant. Thus, a plaintiff, as a counterdefendant, for example, may file the declaration and invoke potential fee shifting as to their claim.

*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." *Can there be multiple principal Offices?* YES *What if one office is subordinate to another?* NOT a principal office. The term "principal" indicates some sort of primacy. It is unlikely that an office clearly subordinate to and controlled by another Texas office could be "a principal office." Finally, in context, "the daily affairs" of a company cannot mean relatively common, low-level managerial decisions. The mere presence of an agency or representative does NOT establish a principal office *What if there are no decision makers of the daily affairs of the entity at the Texas office?* Then NOT a principal office

The Scope of Discovery: Relevant Information, "Not Privileged" TRCP 192 Litigants may discover

"any matter that . . . Is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party." *Basic rule: anything relevant, that is not privileged.* Broader than relevance standard for evidence at trial Therefore, evidence inadmissible at trial may still be discoverable, but must appear to be "*reasonably calculated to lead to the discovery of admissible evidence*."

Affidavit of Interested Party A summary judgment may be based on the uncontroverted affidavit testimony of an interested witness, so long as the testimony is

"clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted but was not."

Experts are expensive. Court can limit the number of experts you are allowed to put on. Sometimes experts are super smart and helpful, but not very persuasive, not good communicators. Just use as

"consulting" experts - these are NOT discoverable. Testifying expert - everything is discoverable. So it turns into a dance. You are pretty guarded about what you tell testifying experts because everything is discoverable. Sometimes, a prospective testifying expert turns into a consulting expert if they turn out to be really negative about your case.

The Texas Supreme Court has held that non-signatories to a contract that contains an arbitration clause may be bound by the arbitration agreement under the

"direct benefits estoppel" theory and other theories. A party who seeks by his claim to derive a direct benefit from the contract containing the arbitration provision, may be equitably estopped from refusing arbitration.

NOTE 1: third requirement for joinder: relief asserted by or against the joined parties must be sought

"jointly, severally, or in the alternative." However, since this seems to encompass every method by which relief can be sought, it is not a meaningful limit on joinder. Since that will be present in every case (because there's no other way to recover), that's why it's narrowed down to two prongs

NOTE 5: Re judicata can affect a plaintiff who won as well as one who lost. If P fails to bring addition transactionally related claims in suit #1, they are

"merged" into the judgment and the P loses the chance to recover on those claims in a later case. EX: if a P sues a D for negligence and recovers a judgment for personal injuries, the P cannot later decide to sue for property damages arising out of the same COA. The property damages claim is "merged" into the first judgment.

NOTE: pre-1983 cases may refer to the process of challenging venue as a

"plea of privilege"

Production of Documents in depos: documents requested must be described with

"reasonable particularity" Parties must be given the normal time allowance for document production (at least 30 days to respond, or 50 if the request is served before the D's answer is due). Non-parties cannot be required to produce documents on notice alone.

Timeliness: amendments/supplements must be made

"reasonably promptly" after party became aware of new information. Rebuttable presumption: amendment or supplement not made reasonably promptly if made within 30 days of trial However, no presumption of timeliness just because the amendment/supplement is made more than 30 days before trial.

Person seeking mandamus is known as the

"relator" [RE - later]

The responding party must then produce any electronic information that is

"responsive to the request and ... reasonably available to the responding party in its ordinary course of business."

Special Exception Must be specific:

"so that the opposing party may be informed of the defect and amend his pleadings accordingly"

Lack of PJ CAN be waived (unlike SMJ). So D should contest PJ in a...

"special appearance" hearing right away or or PJ objection waived. However the trial court rules in the special appearance hearing, you have the right to an immediate interlocutory appeal. Only nonresidents can use a special appearance, because TX residents are subject to PJ Due order of pleadings: Must file special appearance first if you're going to contest a lack of PJ. Can't "test drive" TX courts and then later file special appearance

If a party seeks to amend a pleading within seven days or during the trial, the objecting party must make a complaint to the effect that the new matter constitutes a

"surprise" or otherwise "satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits." If the court denies the objection, the objecting party should request a continuance to preserve the complaint on appeal that the TCt erred in permitting the amendment.

What are the exceptions to its application? There are three exceptions to the rule that the court where suit is first filed acquires dominant jurisdiction:

(1) Conduct by a party that estops him from asserting prior active jurisdiction: EX: counsel lies to other party that they are trying to work out issues, but has actually filed secretly for declaratory judgment and not given notice. This fraudulent conduct should estop. (2) lack of persons to be joined if feasible, or the power to bring them before the court; and -Persons can't be brought before that court. RARE because if you're subject to PJ in one county, you're going to be subject to PJ in the other (unless there's some unusual statutory exception) (3) lack of intent to prosecute the first lawsuit. -If just filed to get dominant jx, but does nothing to forward lawsuit. -Is a hearing on a plea in abatement evidentiary-are there fact issues to be established?

*Election of Remedies Test from the Supreme Court:* (4)

(1) One successfully exercises an INFORMED choice; (2) between two or more remedies, rights or states of facts; (3) which are so inconsistent as to; and, (4) constitute a manifest injustice.

Preparing the TRO Papers: C. The Petition - the petition or complaint has five parts, many of which are common to any original petition: (5)

(1) The names of the parties and places where the D can be served with citation (2) the factual allegations giving rise to your right to relief. -EX: P owns the land and D is cutting the timber without right. P must further allege and show that irreparable harm will result if the TRO is not granted (the land will be ruined, money damages are inadequate, and D can't respond in money damages anyway) -These allegations must be specific, pleading conclusions is not sufficient (3) the prayer - should ask for not only a TRO but also that D be cited to appear and show cause why the TRO should not be converted into a temporary injunction. The prayer should further request that a permanent injunction upon final hearing on the merits. (4) the affidavit - the rules require verified pleading. TRCP 14 allows the applicant's attorney to make the affidavit, it is not sufficient that the affidavit be upon information and belief. -An affidavit made by the applicant's attorney must state his authority to do so (5) certificate of counsel: TRCP 680 provides that no TRO shall be granted without notice unless it clearly appears from specific facts shown by affidavit or the complaint that immediate and irreparable harm will result before notice can be served. The allegations made in your state court petition should satisfy this requirement.

Rule 167 governs all civil cases involving monetary claims filed after January 1, 2004, except it does not apply to: (6)

(1) a class action; (2) a shareholder's derivative action; (3) an action by or against a governmental unit (defined as "the state, a unit of state government or a political subdivision of the state"); (4) an action brought under the Family Code; (5) an action to collect workers' compensation benefits under Subtitle A, Title 5, Labor Code; or (6) an action filed in a justice of the peace court. Rule 167 does not apply to any offer to settle made in a mediation or arbitration proceeding.

How is a witness statement defined under TRCP 192.3(h)? A witness statement is (2)

(1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording.

Summary Judgment Proof - Neither a MSJ nor the response constitute summary judgment proof. TRCP 166a provides that Summary judgment proof may consist of: (4)

(1) affidavits - must be compliant with rule requirements (2) discovery (on file) - to the extent that it is admissible in evidence. (3) stipulations/admissions between the parties; and, (4) certified or authenticated public records. Rule 166a (c).

Carlile v. RLS Legal Solutions, Inc. FACTS: Order of events in this case: Plaintiff files Petition, Defendant filed Motion to Transfer Venue, Plaintiff moves for summary judgment and summary judgment is granted, Defendant files Motion for New Trial, Trial Court grants New Trial. Carlile takes a really long time to file; gets ruling on motion for new trial before MTTV. RULE: A party may waive venue rights if (3)

(1) by failing to timely file a written motion to transfer venue; (2) expressly by clear, overt acts evidencing an intent to waive venue; -Here, the D filed a motion for a new trial, which recognizes the authority of the court to act, which waives venue. Taking an action inconsistent with intent to contest venue. (3) impliedly by taking some action inconsistent with an intent to pursue the venue motion. -Not diligent. *When did Defendant waive venue and why?* -By invoking the judicial power of the trial court in his motion for a new trial, along with other motions seeking a ruling on the merits before a ruling on the venue issue. P filed a motion to transfer venue almost a year after suit was brought. Shows a LACK OF DILIGENCE. -D probably could have moved for a default judgment, but didn't here. -There's no exact date by which you have file a MTTV (as long as you give at least 45 days notice), but best practice is you do it quickly.

TRCP 193.3(c) Exemption to Privilege Log Requirement Without complying with (a) [filing a withholding statement and claiming privilege] and (b) [filing a requested privilege log], a party may withhold a privileged communication to or from a lawyer or lawyer's representative or a privileged document of a lawyer or lawyer's representative

(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested or required, and (2) concerning the litigation in which the discovery is requested or required. In other words, a party need not state in the response that such info or document has been withheld, and need not list the info or document in a privilege log. For this type of info, they can assert and rule on their own privilege claims and the opposing party will not even be informed it exists.

Preparing the TRO Papers: D. Temporary Restraining Order - The requirements of the order itself are set out in TRCP 680 and 683. The order should track the petition in: (7)

(1) defining the injury in specific factual terms (2) stating specifically why the injury is irreparable; mere conclusory statements will not suffice (3) stating why the order was granted without notice (4) providing for the posting of a bond as a prerequisite to the clerk's issuing writs of injunction (Note: the amount of the bond can be left blank to be filled in by the judge when the order is signed.) (5) specifically setting out the act or acts to be enjoined (6) specifically stating that the order is binding on the parties, their officers, agents, servants, employees, attorneys, and those persons in active concert with them who receive actual notice of the order by personal service or otherwise. TRCP 683. (7) setting a date, within 14 days, for a hearing on application for temporary injunction.

Sec. 61.022. AFFIDAVIT. - to obtain a writ of attachment, the P must make an affidavit and execute a bond. The affidavit must state three things:

(1) general grounds for issuance under Sections 61.001(1), (2), and (3); (2) the amount of the demand; and (3) specific grounds for issuance under Section 61.002.

LAW: The standards for withdrawing deemed admissions and for allowing a late summary-judgment response are the same. Either is proper upon a showing of (2)

(1) good cause, and (2) no undue prejudice, Tex. R. Civ. P. 166a(c), 198.3.

RULE: A trial court does not abuse its discretion in allowing express admissions to be withdrawn and amended admissions filed when the moving party shows:

(1) good cause; (2) that the party relying on the responses will not be unduly prejudiced; and (3) that the withdrawal will serve the purpose of legitimate discovery and the merits of the case.

An arbitrator may award attorneys fees to the successful party only if the fees are provided for (2)

(1) in the agreement to arbitrate, or (2) by law for a recovery in a civil action in the district court on a cause of action on which any part of the award is based.

Whenever you get to a question of when venue is proper, you should look at the venue statutes to see if

(1) is venue proper where the P sued, and (2) where else can we go? IMPORTANT: p278 - what is proper venue required by a mandatory provision? If there is no mandatory provision, what is the permissive provision?

It has long been the policy of the courts and the legislature of this state to avoid a multiplicity of lawsuits. The need for judicial economy has recently become more acute because the dockets of our trial courts are overburdened, and litigants must wait far too long for their cases to be heard. In keeping with the policy to avoid multiple lawsuits, Texas Rule of Civil Procedure 97(a) was promulgated. This rule regarding compulsory counterclaims dictates that a pleading shall assert a counterclaim if it meets six elements. *A counterclaim is compulsory if:* (6)

(1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the action is mature and owned by the pleader at the time of filing the answer; (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; (5) it is against an opposing party in the same capacity; and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. If a claim meets these elements, it must be asserted in the initial action. A defendant's failure to assert a compulsory counterclaim precludes its assertion in later actions.

Reference to Business Records When may the responding party may answer the interrogatory by specifying the records instead of producing? (2)

(1) the answer to an interrogatory may be derived or ascertained from public records, from the responding party's business records, or from a complication, abstract, or summary of the responding party's business records, AND (2) the burden of deriving or ascertaining the answer is substantially the same for the requesting party as for the responding party, Responding party can simply designate the records and make them available. EX: ask D about title records. They are public documents. D can just direct in response to county records document. Want to be careful about making client's records available to other party. They may have sensitive info.

Arbitration agreements are binding and an arbitration determination may be vacated only on limited statutory grounds. Very difficult to vacate. A court may vacate an award or decision only if: (5)

(1) the award was procured by fraud, corruption, or other undue means; (2) there was evident partiality, corruption, or willful misconduct by the arbitrator that prejudiced the rights of a party; (3) the arbitrator exceeded his power; (4) the arbitrator refused to postpone the hearing on good cause shown or refused to hear evidence; or (5) there was no valid arbitration agreement, and the issue was not adversely determined in proceedings to stay the arbitration and the complaining party did not participate in the arbitration without raising the objection. NOTE: none of these grounds include when the arbitration process gets the law wrong. Similar grounds exist to set aside an arbitration award governed by the Federal Arbitration Act. See 9 U.S.C. 10(a) (2003). Essentially, short of coercion, arbitration clauses will be enforceable.

CONTENT OF INITIAL DISCLOSURES (12)

(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 party's claims or defenses (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 person's connection with the case; (6) *a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment*; --NEW in 2021. BIG and BROAD - give me all the documents that support your case. (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 statement* 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; and, (12) the name, address, and telephone number of any person who may be designated as a *responsible third party.* A LOT OF INFO DISCLOSED VERY EARLY. Lawyers will have to change their mindset. Have to be a lot more proactive. This is modeled after federal rules.

Sec. 61.002. SPECIFIC GROUNDS. Attachment is available if: (9)

(1) the defendant is not a resident of this state or is a foreign corporation or is acting as such; (2) the defendant is about to move from this state permanently and has refused to pay or secure the debt due the plaintiff; (3) the defendant is in hiding so that ordinary process of law cannot be served on him; (4) the defendant has hidden or is about to hide his property for the purpose of defrauding his creditors; (5) the defendant is about to remove his property from this state without leaving an amount sufficient to pay his debts; (6) the defendant is about to remove all or part of his property from the county in which the suit is brought with the intent to defraud his creditors; (7) the defendant has disposed of or is about to dispose of all or part of his property with the intent to defraud his creditors; (8) the defendant is about to convert all or part of his property into money for the purpose of placing it beyond the reach of his creditors; or (9) the defendant owes the plaintiff for property obtained by the defendant under false pretenses.

Content of Expert disclosure: TRCP 195.5. Information that must be disclosed re testifying expert without awaiting a discovery request has been enlarged and now includes:

(1) the expert's name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) If the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) 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 expert's testimony; [essentially anything they've looked at] (B) the expert's current resume and bibliography; (C) the expert's qualifications, including a list of all publications authored in the previous 10 years; (New) Cases filed on or after 1-1-21 (D) Except when the expert is the responding party's attorney and is testifying to attorney fees, a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; (NEW) and, (E) a statement of the compensation to be paid for the expert's study and testimony in the case. (NEW) TRCP 195.5 ---Has an effect on the jury in terms of credibility. Once they hear you are paying them $1000/hr it looks suspect.

A party may discover the following information regarding a testifying expert OR regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert: (7)

(1) the expert's name, address, and telephone number; (2) the subject matter on which a testifying expert will testify; (3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired; (4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; (5) any bias of the witness; (6) 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 a testifying expert's testimony; (7) the expert's current resume and bibliography

PRE-TRIAL DISCLOSURES suits AFTER 1-1-21 NEW starting 2021 Parties are required to file without request (required disclosure) In addition to initial disclosures and testifying expert witness disclosures, parties are required to file pretrial disclosures (without the necessity of a request) about the evidence they may present at trial other than solely for impeachment. Specifically, a party must provide to other parties, without a request, and promptly file with the trial court at least 30 days before trial unless the court orders otherwise,

(1) the name and, if not previously provided, the address, and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises; --Want to err on the side of disclosing more than less. Because if you don't disclose something in disco, the TCT may keep it out at trial. (2) an identification of each document or other exhibits, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises. TRCP 194.4 --THUS, disclosures have changed quite a bit under the amended rules. A lot more to disclose.

(b) Protective Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property lights, the court may make any order in the interest of justice and may - among other things - order that:

(1) the requested discovery not be sought in whole or in part; (2) the extent or subject matter of discovery be limited; (3) the discovery not be undertaken at the time or place specified; (4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court; (5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

*Mandamus* - different from appeal; in order to get mandamus relief, must show (2)

(1) there's no adequate remedy by ordinary appeal and (2) that the trial court has clearly abused discretion. --Mandamus means "we order" --Typically issued by appeals judge against trial court judge. If you are seeking mandamus, you ask appeals court to stay/abate trial court's TRO and to issue the writ of mandamus after you go thru the procedural aspects of a mandamus proceeding

Prejudgment Garnishment is Available when (2)

(1) when an original attachment has issued; or (2) when suit is brought for a debt owed and an affidavit is made by the P to the effect that the debt is just, due and unpaid and that, "within the P's knowledge" the D does not possess property in TX subject to execution sufficient to satisfy the debt and the P is not seeking to injure or harass the D or the garnishee with garnishment.

Request for production of documents at the deposition. TRCP 199.2 Generally not a good idea to use this because

(1) you want these ahead of time to prep for depo; and (2) don't want to waste time reading docs in your limited depo hours. However, could be useful to request documents as a means to get on the record in the depo that there are no documents: EX: SOF defense: can get on the record that there was no writing as required by the SOF

Level 2 Disco Period: *For suits filed AFTER January 1, 2021:* All discovery must be conducted during the discovery period, which begins when initial disclosures are due and continues until:

(A) 30 days before the date set for trial, in cases under the Family Code; OR (B) in other cases, *the earlier of 30 days before the date set for trial, or 9 months after the first initial disclosures are due*.

Sec. 13.004. EFFECT OF RECORDING LIS PENDENS.

(a) A recorded lis pendens is notice to the world of its contents. The notice is effective from the time it is filed for record and indexed as provided by Section 12.007(c), regardless of whether service has been made on the parties to the proceeding. (b) A transfer or encumbrance of real property involved in a proceeding by a party to the proceeding to a third party who has paid a valuable consideration and who does not have actual or constructive notice of the proceeding is effective, even though the judgment is against the party transferring or encumbering the property, unless a notice of the pendency of the proceeding has been recorded and indexed under that party's name as provided by Section 12.007(c) in each county in which the property is located.

Sec. 12.007. LIS PENDENS.

(a) After the plaintiff's statement in an eminent domain proceeding is filed or during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located *a notice that the action is pending.* (b) The party filing a lis pendens or the party's agent or attorney shall sign the lis pendens, which must state: (1) the style and number, if any, of the proceeding; (2) the court in which the proceeding is pending; (3) the names of the parties; (4) the kind of proceeding; and (5) a description of the property affected. (c) The county clerk shall record the notice in a lis pendens record. The clerk shall index the record in a direct and reverse index under the name of each party to the proceeding. (d) Not later than the third day after the date a person files a notice for record under this section, the person must serve a copy of the notice on each party to the action who has an interest in the real property affected by the notice.

TRCP 47. CLAIMS FOR RELIEF (text of the statute) An original pleading which sets for a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain:

(a) a short statement of the cause of action sufficient to give fair notice of the claim involved; (b) a statement that the damages sought are within the jurisdictional limits of the court; c) except in suits governed by the Family Code, a statement that the party seeks [*an AIM range*]: •(1) only monetary relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney's fees and costs; or (2) monetary relief of $250,000 or less and non-monetary relief; or (3) monetary relief over $250,000 but not more than $1,000,000; or (4) monetary relief over $1,000,000; and (d) a demand for judgment for all the other relief to which the party deems himself entitled. Relief in the alternative or of several different types may be demanded; provided, further, that *upon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed*. *A party that fails to comply with (c) [state the range] may not conduct discovery until the party's pleading is amended to comply.* Comment to 2021 change: Rule 47 is amended to implement section 22.004(h-1) of the Texas Government Code. A suit in which the original petition contains the statement in paragraph (c)(1) is governed by the expedited actions process in Rule 169.

Waiver: TRCP 119 An effective waiver of issuance and service of citation must: Happens mostly in family law cases; divorce actions.

(a) expressly state that D waives service, (b) acknowledge that D received a copy of P's petition (c) be written (d) signed by D or its authorized agent or attorney (e) verified before someone other than an attorney in the case (f) signed after the suit was filed, and (g) be filed among the papers of the case In a divorce action, the waiver must also include respondent's mailing address *Why waive?* Litigants know they are getting divorced, don't want to deal with formalities of service, expense of process servers; have constable come to their house, etc.

The summary judgment sought shall be rendered forthwith if

(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, *except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law* on the issues expressly set out in the motion or in an answer or any other response.

Class Actions: Attorney's Fees Attorney's fees: must put of significant proof now since tort reform Lodestar method of proof =

(reasonable number of hours) x (reasonable hourly rate) Must describe in detail who did what and when, must be a reasonable hourly fee Fee award must be within 25 - 400% of the lodestar figure *When you've taken a case on contingency*, you've taken a risk that you would get 33% of nothing. You will expend a LOT on a class action. Especially on a class action; all the notices, etc. make it very expensive to litigate. So Rule 42 acknowledges that risk, says the attorneys fees can be within 25-400% of that lodestar figure because the attorney will have to turn down other business when they are focusing on a class action contingency case.

Rule 39 - COMPULSORY JOINDER: *Joinder of Persons Needed for Just Adjudication*, Tex. R. Civ. P. 39 (a) Persons to Be Joined If Feasible. A person who is subject to service of process (resident or nonresident with sufficient contacts) shall be joined as a party in the action if

*(1) in his absence complete relief cannot be accorded among those already parties*, OR --EX: seeking a partition of real property with 3 record title holders (3 kids inherited), and one wants to partition property and have it sold, but only joins 1 sibling but not the other. That's NOT sufficient. Without the 3rd title holder, complete can't be afforded. *(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may....* -(i) as a practical matter impair or impede his ability to protect that interest, OR -(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.

Barfield v. Brogdon, - wrongful sequestration case. FACTS: lawyer wrongfully sequesters lawnmower over $10 repair bill dispute from repairman who sues for wrongful sequestration *Issues: (1) Why is the sequestration wrongful?* Sequestration was wrongful because no affidavit; and P asserted that he had superior right to possession of the mower. -Repairman refused to return mower when customer (Barfield/lawyer) refused to pay. -In TX a repair person has a possessory artisan's lien by statute. So the repair person had the legally superior right to possession because the owner did not pay for the work done. -So P's statement that he had superior right to possession in the affidavit was a material fact that was not true. -Clearly a case of wrongful sequestration that will support actual damages.

*(2) Why does the appellate court uphold the award of punitive damages when the jury was erroneously asked if creditor "knew or should have known" instead of whether the creditor acted "without probable cause and maliciously" in seeking to obtain the writ?* (in other words, jury was given the wrong legal standard for finding exemplary damages) -Because P didn't object to the improper jury questions, even improper law that the jury is asked, he waived objection to punitive damages. -So the appellate court, in reviewing a case where the law was improperly instructed to the jury without objection, will apply review based on what the jury was actually asked. -HERE: do the facts support the argument that Barfield knew or should have known his acts were improper -Because of waiver, the punitive damages are upheld. -However, there are due process constitutional restrictions on the ability to recover punitive damages. -If punitive damages are not in proportion to actual damages, courts have a constitutional ability to reduce excessive damages. -USSCt: normally punitive damages should not exceed "a single multiplier" unless the party's actions are truly outrageous.

There's two basis for forum non conveniens: common law and there's statutory:

*1) CL covers everything but personal injury and wrongful death* *2) statutory: personal injury a wrongful death cases* Statute was passed during the 1980s, when there was a P-oriented TXSC, and much more liberal TXL. That statute stated that in personal injury and wrongful death cases, courts could not grant a plea of forum non conveniens. Became known as the "1-800" statute, because that's when law firms in TX would really go outside their boundaries to places like England/Scotland/South America in areas where there might be a lot of oil accidents, pick up cases of personal injury/wrongful death cases on oil rigs and try them in TX. Many of the oil companies had significant contacts in TX to warrant jx. But this was changed, much more conservative today. In 2003, as part of tort reform, that section was repealed so now today there is a much greater chance to get a dismissal or abatement as a result of a plea of FNC.

Two tests on how wide the privilege is with entities:

*1) Control group test*: only employees high in the corporate hierarchy can claim the privilege. Persons in a position to control or take a substantial part in a decision about any action which the corporation may take on the advice of the attorney *2) Subject matter test*: provides the privilege to any people within the entity with whom an attorney needs to communicate in order to render legal services, regardless of their position in the corporate hierarchy (*TEXAS law since 1988 - broader in scope*). Need to make it clear to employees that you are NOT their attorney; you are the entity's lawyer.

Designation of testifying experts for suits filed on or after January 1, 2021 Unless otherwise ordered by the court, a party must designate experts and furnish information described in TRCP 195.5(a) by the following dates:

*1) Experts testifying for party seeking affirmative relief*: 90 days before the end of the discovery period *2) All other experts* - 60 days before the end of the discovery period.

TRCP 195.3 When an expert must be available for deposition depends on whether a report is filed, and whether the designating party is seeking affirmative relief:

*1) If no expert report is produced:* after an expert has been designated, a party seeking affirmative relief must make their expert available for deposition "reasonably promptly" *2) If an expert report is produced:* expert of parties seeking affirmative relief need not be made available for deposition until all other experts have been designated -Then depositions of experts of parties not seeking affirmative relief may be taken.

CONSENT TO JX Consent - D may consent to jx in several ways.

*1) K signed before suit agreeing to submit to jurisdiction (forum selection)* -Presumed to be valid absent fraud or overreaching Texas also enforces choice of law (jx); but does NOT enforce venue *2) Registering to do business in a state* (potentially subject to jurisdiction) -Corporations may explicitly consent to jx when registering to do business in a state. But even if a D corporations has registered to transact business in the state and appointed a registered agent to accept service of process, a complete PJ analysis must be conducted. -There's a particularized long arm statute in TBOC. *3) WAIVER - Appearing in court without filing a special appearance or files an Answer before filing a special appearance* -EX: D files an answer. They have impliedly waived PJ objections. -Forum selection clauses are enforceable in TX; actually mandatory enforcement unless the opposing party clearly shows that enforcement would be unreasonable and unjust, or that the clause is invalid for reasons such as fraud or overreaching. -TXSC: opposing party has "heavy burden" -One issue: is the forum clause exclusive or an additional forum? Depends on the language of the clause and the court. If not explicitly exclusive, court could interpret to mean only that jx is allowed in the listed forum, not mandatory.

Does counsel adequately represent the class when advising class to abandon claims that could defeat certification predominance requirement as the claims involve many issues that are individualistic?

*1) What effect does that have on your ethical responsibilities to your client (FD to put their interest first)?* You must inform them that they have to bring the claims or they will be barred. They must make an informed choice; must make a knowing waiver. *2) If the class action proceeds to judgment, is res judicata a bar to later bringing those transactionally related individualistic claims?* - Yes. Transactionally related claims need to be tried together if within the jx of the court. - The client that stays in the class action, can't split out the individualistic transactionally-related claim and try it in an independent lawsuit. They will likely be barred from asserting in subsequent litigation.

*What 7 things must be included in the "Order" of a TRO?* (BRIEF)

*1) define the injury in specific factual terms* *2) state facts supporting specifically why the injury is irreparable;* mere conclusory statements will not suffice; *3) stating why the order was granted without notice* (if applicable) *4) providing for the posting of a bond as a prerequisite to the clerk's issuing writs of injunction* *5) specifically setting out the acts being enjoined and (a blank for) the duration of the TRO* *6) specifically stating that the order is binding on the parties and their agents* *7) TRO must set a date for a hearing on temporary injunction sought*

TRO STEP 1: Continued: Temporary Restraining Orders The order should track the petition. Because we're restraining someone's activities and because a D can be held in contempt for violating a TRO or temporary injunction, sufficient notice is required in the order: *What 7 things must be included in the "Order" of a TRO?* (LONG)

*1) define the injury in specific factual terms* *2) state facts supporting specifically why the injury is irreparable;* mere conclusory statements will not suffice; -Need to explain why money damages are insufficient. EX: can't replace the large trees on the land; not only a monetary interest, but why they wanted the property to begin with. *3) stating why the order was granted without notice* (if applicable) -Not all courts will grant without notice. Will ask you to get them on the phone. Some judges will insist that you give it a try. Court will often try during the hearing. *4) providing for the posting of a bond as a prerequisite to the clerk's issuing writs of injunction* -Note: the amount of the bond should be left blank to be filled in by the judge when the order is signed -Judge will decide the amount based on what seems to be the appropriate amount to protect the D in case the TRO is wrongfully issued. ---EX: Landeater case - damages for wrongful TRO would be costs of calling off crew, removing equipment, a day's work of pay for workers, etc. Court will do a rough calculation of these damages, wing it, and set a bond in that amount. *5) specifically setting out the acts being enjoined and (a blank for) the duration of the TRO* --EX: enjoined from cutting and removing trees from the property located at... --TROs have a short shelf life; meant only to stop until temporary injunction hearing. --Up to 14 days (judge's discretion), then one extension (requested in writing) for a like period of time (same duration as original TRO). --So up to 28 days max. --But could be only 2 days. --Parties can agree to a longer time. *6) specifically stating that the order is binding on the parties and their agents who receive actual notice of the order by personal service or otherwise.* *7) TRO must set a date for a hearing on temporary injunction sought* -Temporary injunction hearing, unlike the TRO hearing, is NOT an ex-parte hearing, it's on notice to all parties. -Will have the ability to cross examine and show some additional requirements when you seek a temporary injunction vs. a TRO -EX: to get a temporary injunction have to show there's no adequate remedy by law. Will have to show why money damages is inadequate. -EX: difference in the value of the land with trees vs. without is not enough because landowners bought land specifically because of the large trees aesthetic

Three types of service:

*1) personal service* - in hand service OR via mail (registered/certified return receipt requested) *2) substituted service* - serving someone besides D (like SOS) *3) constructive service* - D is served by publication (expecting D to read newspaper and public webpage to know they've been served) Very weak, least reliable form of service

Rule 40 - Permissive Joinder of Parties, Tex. R. Civ. P. 40 *(a)Permissive Joinder.* All persons MAY join in one action as PLAINTIFFS if

*1) they assert any right to relief jointly, severally, or in the alternative* in respect of OR *2) arising out of the same transaction, occurrence, or series of transactions or occurrences* AND if *3) any question of law or fact common to all of them will arise in the action*.

Recap: Substantive PJ - minimum contacts, consent, etc. fairness Procedural PJ - service of process that give notice and opportunity to be heard Service should include: original petition and citation. Methods of service?

*1) via the registered/certified mail*; return receipt requested. *2) personal service* (in hand): a) sheriff/constable - can cross county lines b) certified process server (approved by TXSC) c) anyone who is over 18, disinterested and authorized by court order (rare) d) service via the clerk's office (through the mail) [generally, the lawyer is NOT qualified to give service; have to one of the above disinterested parties] *3) If the above forms of service are not successful, then can seek a motion for substituted service.* Have someone served in substitution for the defendant such as: a) Person over 16 where the D resides or works Or in any manner authorized that is likely to give D notice. b) Motion for Substituted Service must be supported by an affidavit; executed by someone with personal knowledge that service was attempted and failed, and where D can be found. -Rules amended this year to provide for service via social media. -But have to prove that social media is really the person and that it is likely to be successful.

Counsel Needs to Contact for Availability: Line Up a Bunch of Folks to Make TRO Happen What 4 people do you need for a TRO?

*1. District clerk* (filing procedures) -To file the lawsuit and issue injunction if the court orders it *2. The judge* (hearing to prove up grounds and issue TRO if they approve it) *3. The sheriff or constable* (for service of petition and TRO), and ---Can use private process servers in TX, but for this type of relief you have to have a sheriff or constable. *4. Bondsperson* (procure bond in an amount set by the judge) -Must have a bond to support a TRO -Runs in favor of the D. If you are wrongfully obtaining TRO (lying, making a misstatement, or the law isn't on your side), the D can recover the damages they suffer as a result of the TRO against the bond. Can get a TRO 24/7, just have to find everyone

3 types of motions to transfer venue: [IMPORTANT]

*1. MTTV asserting venue improper based on general/mandatory provisions.* -The primary basis for transfer is that venue is not proper in the county of suit because no application of the general rule and no exception make the county of suit proper AND venue IS proper in the county to which transfer is sought or a mandatory exception makes mandatory despite the fact that the venue would otherwise have been proper. -Proper venue means: 1) venue required by mandatory provisions, OR 2) general rule or permissive exceptions *2. MTTV based on convenience.* Remember, this is UNREVIEWABLE; however the TCt holds, you can't get appellate review. Pretty powerful if you've got a judge that will go your way. *3. MTTV because impartial trial could not be had in county where P filed suit*.

Filing a case as a class action does not make it one, must get the trial court to certify the case as one appropriate to proceed as a class action. Certification hearing should take place "as soon as practical". If all elements are met, the court may, but is NOTrequired to certify the class. Elements: (5) (CANTA - have class actions in TX!)

*1. Numerosity:* so many people that joinder of all parties is impracticable *2. Commonality*: questions of law/fact common to the entire class *3. Typicality*: the claims/defenses of the representatives are typical of the claims of members of the class *4. Adequacy of representation*: Ps and lawyer representing class can do so adequately. They have the skills/resources to do so. [expensive: lots of notices to send out] *5. Adjudication through class action is preferable* for of one of the reasons listed in rule 42(b)

Forum non conveniens

*A nonresident D, even when a court has PJ over it, can suggest to the court that they dismiss the case because there's a more convenient, adequate forum elsewhere, that could have jx over all the Ds. Asserting Texas courts may have personal jurisdiction over the non-resident D, but there is a more convenient forum outside of Texas.* It's not unusual for a nonresident D to not be certain that can successfully challenge PJ. Might be a close call. You have some contacts, but you don't think they're enough. Not always clear. A D may choose to file a special appearance, and then in the alternate file a plea of forum non conveniens. "This court doesn't have PJ, but if it does, it shouldn't exercise it because there's a more convenient forum elsewhere." Under USSCt's two-part analysis of due process, the parties' relative convenience and the interests of the forum state are part of the basic decision about PJ. Nevertheless, there is a separate doctrine called "forum non conveniens" which gives the court some discretion to dismiss - even if the court has jx - if the forum is relatively inconvenient and another forum exists that is significantly more convenient. Not used among the federal courts today very often because 28 U.S.C. 1404(a) gives the federal courts power to transfer cases among themselves; but does not apply if the more convenient forum is another nation. State courts assert doctrine more often.

Issuance of the Writ of Garnishment The requirements of an application and issuance of writ of garnishment are essentially the same as the writ of attachment.

*A prejudgment bond is required*. TRCP 658a. -Bond must be sufficient to cover any potential damages for wrongful garnishment. TRCP 658 -The remedies for wrongful garnishment remain. - -Garnishment is wrongful if the prescribed allegations set forth in the garnishor's affidavit are untrue. -As in attachment, good faith is no defense. -Garnishee cannot obtain exemplary damages unless the garnishment was obtained maliciously and without PC -The parties whose property interests are wrongfully garnished as belongings to the garnishment debtor may also maintain an action against the erring creditor. -After the writ of garnishment is served on the garnishee, the garnishee must answer as in other civil actions. If the garnishee's uncontroverted answer reflects that he is indebted to the D or has possession of D's property, after due notice to the D, the court in which the garnishment is pending may, on hearing, reduce the required amount of the bond to double the sum of the garnishee's indebtedness to the D, plus the value of the property in his or her possession that belongs to the D. TRCP 658a

You cannot issue and serve the TRO yourself. You will need the cooperation of the district judge, the district clerk, and the county sheriff. Each has a role to play and must be available.

*A. Call the District Clerk*: a personal call to the clerk's office and a conversation with the deputy who will be handling the application for the TRO is a must. -Give the clerk an estimate of when the papers will be prepared and the application filed. -In counties with multiple judges, one judge may be designated the injunction judge. -The clerk can give you this info. Rule 685, TRCP provides for presentment of the application for TRO to the judge prior to filing the petition with the district clerk. -Therefore, especially on weekends and after hours, a hearing can be arranged with the judge prior to filing the pleadings with the clerk. -Since the clerk does not issue the citation and writ until after the order has been signed and bond posted, this procedure will require the clerk to make only one special trip to the courthouse. -The clerk can file the application when you meet at the clerk's office for preparation of the citations and writ. *B. Contact the Judge*: You should immediately contact the injunction judge to determine his or her availability. -Has he or she left for the weekend? Where can he or she be reached? Can another judge hear the matter? -If it is necessary to present the application to the court at home, arrangements should be made in advance. -The judge may want you to advise the D or his lawyer to be present. -Furthermore, an advance call to the judge emphasizes the urgency of the proceeding. -During this conference you may apprise the court of the circumstances of the case, thus minimizing the actual time required to present the matter to the court. -Also, the judge might be asked the amount of the bond he or she is inclined to set so you can have it prepared in advance. *C. Contact the Sheriff:* The TRO is worthless to the lawyer unless he or she can get it served on the D. -The lawyer must confer with the sheriff to schedule service of the restraining order after it is issued. -If after hours, do not ask the sheriff or marshall to meet you at the courthouse at the same time you have arranged to meet the clerk. -The filing of the petition, issuance of citation and preparation of copies of the order to be served may take some time, especially if there are many persons to be served, and the sheriff may not be needed for an hour or so.

TRO Hearing, Filing and Followup

*A. The Hearing* - You should appear wherever you have arranged to meet the judge with your client. The client should be prepared to testify to the matters set out in your pleadings. If the judge grants your TRO, the judge will (a) fill in the amount of the bond (b) set a date, within 14 days for hearing the application for temporary injunction; and (c) sign the order *B. Don't Forget the Filing Fee* Check cost schedules to determine the amount of the filing fee. In state court, you should give consideration to the number of citations to be served and include in the filing fee an among sufficient for service of enough citations to serve the D and any relevant employees. *C. Copies of Pleadings* (1) Copies of Petition: the lawyer will need sufficient copies of his original petition or complaint to serve on each named D. (2) Certified copies of TRO: you will need sufficient certified copies of the TRO for service upon all Ds. Further, if you contemplate serving unnamed employees (EX: D's timber workers), these are John Doe citations that will require additional copies of the TRO *D. Get the TRO served* The sheriff should be given any assistance necessary to find the Ds and have them served -The lawyer should usually go to the site of the activity. -Many times problems may come up at this stage which might thwart the restraining effort if the lawyer is not there to respond immediately. -In the rare instance where a party defies the order, the lawyer's presence is even more necessary. -He can prepare, on the spot, the affidavit which will support a citation for contempt. -The affidavit will set out what the offending D or person has done and is continuing to do in disregard of the court's order after service upon him. -The lawyer can obtain the officer's signature on the affidavit and present it to the court with an order requiring that the contemptuous person be brought into Court to show cause why he should not be held in contempt. *E. Prepare for the Temporary Injunction Hearing* Finally, the lawyer must prepare for the hearing on temporary injunction to be held at the date and time set out in the TRO.

Time for assessing contacts for purposes of general jurisdiction? - What is the relevant beginning and end points in considering the D's contacts with TX in general jx?

*Beginning point:* A "reasonable period of time" rather than a snapshot - EX: case with contacts going back 20 years that were substantial. But not much since that time; those contacts are too stale to support general jx. *Endpoint*: Contacts through the filing of the lawsuit.

Timing of a trial by consent is different in jury trial than bench.

*Bench Trial* - no jury charge, you don't ask the judge to answer questions before the judge pronounces judgment. -There's a trial by consent when the party fails to object at the evidence stage that the evidence is "outside the pleadings" *Jury Trial* - technically no trial by consent until the charge phase (after the close of the evidence when the judge holds a charge conference) -Charge - the questions that go to the jury; when the jury answers that becomes the verdict. Then the judge applies the law to jury's fact finding to create the judgment. -Trial by consent doesn't technically occur in jury trial until party fails to object to that unplead matter being submitted to the jury. D Should object - "outside the pleadings" If granted, the P will move for a trial amendment to include the unpled matter. Can do so up until the judgment is signed. D will argue that allowing a trial amendment will be prejudicial. But, the court will be inclined to say that "well, you didn't object when the evidence came in, you let the jury hear that. Rule 66 - TCt is to freely allow trial amendment unless the opponent to the amendment establishes prejudice. COURT: If you allow this matter come before the jury without objection, I don't think you're really prejudiced by the trial amendment; you gave in to trial by consent. Carlson - technically not correct, but most cases don't get appealed. Practical advice: know that you can still object at the charge phase of the trial to a matter being submitted to the jury not supported by the pleadings, and technically you will not have tried the matter by consent, but that the trial court may then grant your opponent leave to amend pleadings. Bottom line: object when the evidence that is outside the pleadings is first brought in. Because you don't want the jury to even hear this stuff, and the judge will be more inclined to allow leave to amend if the jury heard it. NOTE As a practical matter, if you work on the D side, don't rely on the P's original petition to state all the matters that might be at issue. They can amend; it can get worse. Look at the case; consider what other COAs/damages P could assert. Might advise client to consider settlement very early on, before the D realizes all the grounds/damages they could seek.

Disco Level 1 - Types of Cases

*Cases Filed Prior to Jan. 2021* 1. Ps only seek monetary relief < $100k 2. Divorce suits with NO kids AND $0 < marital estate < $50k *Suits filed on or AFTER January 1, 2021 are Level 1 cases if:* 1. The suit that is governed by the *expedited actions process in Rule 169* (A suit in which all claimants, other than counter-claimants, affirmatively plead that they seek ONLY monetary relief aggregating $250,000; BUT! Now says EXCLUDING INTEREST, PUNITIVES, ATTORNEY'S FEES AND COSTS. Could be a $400k case. 2. unless the parties agree that rule 190.3 [Level 2] should apply or the court orders a discovery control plan under Rule 190.4 [Level 3], *any suit for divorce not involving children* in which a party pleads that *the value of the marital estate is more than zero but not more than $250,000*. -So now including pretty big divorce cases in expedited proceedings.

Collateral Attack - A *direct attack* is made in the original court system that made the judgment. Go back to that trial court or the appellate court above that trial court. And directly attack within the timeframes the rules provides. *A COLLATERAL ATTACK ON THE OTHER HAND...*

*Collateral attack* - can be made anytime, any place, any manner. But to do so, must have VOID judgment EX: imagine if Peralta lived in AR. Default judgment entered in TX against Peralta. TX has to take that judgment to AR and "enroll" the judgment. Under the US Constitution, states are obliged to honor each other's judgments, unless they are void. So, AR has to give TX judgments full faith and credit under USC. An erroneous judgment is voidable; a judgment entered without any service is void. So, judgment creditors come after Peralt'a property in AR. Peralta can go to AR courts to enjoin the TX judgment. This is a "collateral attack" on TX court judgment because he's not going thru the court system that delivered the original judgment; but going through a different system. But because the judgment is void, there's No time limit. Doesn't have to be within the same court system. Very powerful. However, under full faith and credit, it is very limited when a judgment is void, so you usually don't have the option to collateral attack; can only directly attack because you have a voidable or correct judgment

United Services Automobile Association v. Brite, (Tex. 2007) FACTS: Age discrimination suit. -Suit filed in CCL (SCC). SMJ limit for this CCL in 2007 topped out at $100,000. --Today the default level for CCLs is $250,000. -P's initial pleadings silent as to amount of damages but stated damages sought for back pay, front pay, punitive damages and attorney's fees. -P later amends stating damages sought $1.6 million. -D files *plea to jurisdiction* and trial ct overruled. ----That's the pleading you file to assert the court lacks SMJ. -Jury for P and judgment entered in an amount greatly exceeding $100,000.

*Did TCt have SMJ? Why or why not?* No. Because the amount sought exceeded the SMJ of the court. *Can a lack of SMJ be waived?* NO. Can't be waived, can't be agreed to. The only option a court has when it lacks SMJ is to dismiss the case. Generally, can't even transfer the case to a court that would have jx because the court doesn't even have the power to do that. Just has to dismiss. *How is this holding distinguishable from next case (Peek)?* In Peek they proved in trial that damages were within jx through evidence. HERE, the P's original pleadings showed that the AIM exceeded the jx Also, HERE the D filed a plea to the jx rather than a special exception and, as in Peek, the P did not amend his petition to correctly allege SMJ

White v. Jackson, 358 S.W.2d 174, 175 (Tex. Civ. App.—Waco 1962) P files petition; D doesn't answer; P gets default judgment. This is an Appeal from default judgment. Issue: should the court set aside the default judgment because the pleadings failed to give fair notice of the factual theory upon which the P relied.

*Do the pleadings give fair notice of the cause of action?* NO. Not sufficient facts. Very conclusory. Basically just "D bad, P needs money." -Pleadings don't give any facts as to what happened. -The only clue as to what the P is pleading is the word "negligence" but there's no facts to support that conclusion. Court: there weren't any facts alleged, just a legal conclusion. No facts that connect D with legal duties. *Were special exceptions required to complain on appeal of the pleading defects?* See TRCP 90 NO. *What is the incentive of D to file special pleadings?* Prepare a defense But also it "locks" P into a specific legal theory/facts. Big incentive to lock P into, so that you can object to variance; also provides opportunity to move for MSJ. Also, if legal theory isn't recognized under TX law, you can move for MSJ *Why is the default judgment reversed?* Because there were no facts alleged, just a conclusion of "negligence." Remanded back to trial court.

Who to serve when the Defendant is an entity? When the D is an entity, service is usually accomplished by delivery of citation to authorized agents. TRCP 106(a)(2) [don't have to memorize these, just get general idea that you must serve on someone that is legally an agent]

*Domestic corporation* - President, VP, or registered agent -If a domestic corporation fails to appoint a registered agent, the SOS serves as registered agent *General Partnerships* - partner or local agent of the partnership in the count in which the local agent transacts biz; where the business or agency is located -However, service on one partner is not sufficient for a personal judgment against other partners who have not been served -Can serve any partner for partnership, but must serve partners individually to go after private assets *LLPs* - each GP; LPs required to have a registered agent for service *LLCs* - managers or registered agents *Joint Stock Associations* - prez, VP, secretary, cashier, assistant cashier, or treasurer, or local agent *Real Estate Investment Trusts* - trust manager or officer of trust *Domestic Insurance Companies* - Prez, VP, secretary, and attorney in fact *Counties* - county judge *Municipalities* - mayor, clerk, secretary, treasurer *School Districts* - president of school board or superintendent *State of Texas* - SOS

Residence v. Domicile

*Domicile*: only one (voluntarily fixed abode + intent to remain/return) Place where a person residences and has voluntarily fixed his abode, with an intention to remain and make a permanent home, and if he leaves, intends to return. *Residence*: can have more than one (but must be permanent rather than temporary; fixed place of abode, and occupied or intended to be occupied consistently over a substantial period of time) *Determined at the time the cause of action accrued rather than at the time suit was filed* *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."

Adjudicative Responsibility and Transfer in Cases Involving *Eminent Domain* CCL/SCC are integral part of jx scheme in eminent domain and probate cases.

*Eminent Domain* -DCt have concurrent jx with SCC in ED cases unless otherwise provided by law. -SCC have exclusive jx of ED cases in Harris County in cases less than $250k CCC do NOT have jx over ED cases -If SCC can't hear issue in ED case (ex: issue of title), then transfers to DCt -If multiple SCCs in a jx, can file with any of them.

Justice Courts SMJ

*Exclusive Jx when* Civil matter with AIC under $200 *Original JX when* AIC = .01-20k 1) *Unique jx*: Forcible entry and detainer (FED) (regardless of value of property) - fancy way of saying an eviction suit --Sole Issue: who has the superior right to possession of real property -Usually a landlord suing a tenant to evict for not paying rent -Whether it's a cheap apartment or multimillion dollar house. 2) Foreclosure of mortgage enforcement of liens on personal property (if within AIC limits), but NOT real property 3) Enforcement of deed restrictions (regardless of AIC) *NO jurisdiction over* Divorce, defamation, title to land cases, suit to enforce a lien on land (as opposed to personal property) *Cannot issue injunctions or writs of mandamus* However, they do have authority to enforce deed restrictions, but can't issue injunctions, which is kind of what you want. May issue writs of attachment, garnishment, and sequestration. There are special rules for JPs, special rules of procedures and special statutes that apply for FED under the Property Code Special rules of procedures are 500-510 (don't have to learn for this class) -Whatever is not in those rules, the standard rules of civil procedure apply -"Bench Bar Books" that show the rules for court. There's one for JPs

Discovery Timing Need to come up with a game plan and budget. Disco can be very expensive. "Waves" of discovery. Generally makes sense to go in this order:

*First: requests for disclosure (post 2021: required disclosures), interrogatories* --Good way to get background information --Identify: documents, witnesses, persons with knowledge of the facts of the case --Post-2021: required disclosures MUST come first. Can't use any other disco tools until required disclosures come back. *Second: Requests for production (or subpoena if non-party)* --Obtain documents necessary to take depositions, electronically stored information (ESI), tangible things. --Want to do this BEFORE depos. In the old days, you would just have them bring with them to depo, but with restricted hours, you want ahead of time. *Third: Depositions of witnesses or parties with knowledge* --Other waves may be repeated as depositions reveal documents that were not produced or additional questions that should be asked, or additional people who should be deposed --Depositions of experts comes late in the process, making it more likely that the experts have had access to all of the relevant facts and time to develop and document their opinions. *Fourth: Requests for admission* --Admission of undisputed matters E.g., authentication of documents for use at trial EX: breach of contract case. If no one is disputing that there is a contract, should get an admission of the validity of the contract. Don't have to prove valid contract at trial.

Timeliness of forum non conveniens motion: common law vs. statute

*For cases other than personal injury or wrongful death (common law)* TX Supreme Court: "the question must be raised at a time and in a manner that will give the parties an opportunity to present evidence regarding the circumstances that are relevant for a determination of whether jurisdiction should or should not be retained." (Common law) *For personal injury or wrongful death, the FNC statute controls* Plea of FNC must be filed "*not later than 180 days after the time required for filing a motion to transfer venue of the claim or action*." The statute does allow for an extension at the court's discretion Statute provides that if plaintiff is a Texan, then FNC dismissal is not appropriate.

McKanna v. Edgar, (Tex. 1965) FACTS: Edgar sued McKanna in Texas on a Note. Service was purportedly done through the SOS pursuant to the general TX LAS. Default judgment was rendered against McKanna, but there was NOT strict compliance with service requirements. COA: McKanna attacked the judgment on the ground that the record failed to show the conditions required by the general TX LAS. TXSC agreed and set aside the default judgment and reversed/remanded. ISSUE: What if you don't plead a method of service and you get a default judgment. Will that default judgment be upheld on appeal or not?

*HOLDING: If you're seeking service through the SOS office, you must plead why and how you are complying with the LAS.* -Such as: "The D has no agent or "person in charge" in TX" -P is supposed to plead the basis for the D's contacts and basis of service. -BOP in TX is on the D to disprove that they have sufficient contacts. HELD: Default judgment, did NOT have strict compliance with LAS. So judgment is set aside. The court held that service by way of the Secretary of State was only available after a showing that was not available. Though there is a presumption in favor of most judgments, that rule does not apply to default judgments or to jurisdictional allegations subjected to direct attack. *Requirements for service on SOS under LAS?* TX LAS contains intricate requirements that govern which nonresidents should be served by what method. Service on nonresident must also be consistent with the requirements of due process. Compliance with these requirements must be properly pleaded, or a default judgment will be vulnerable to challenge. *When the D is subject to a default judgment and contests it, have they consented to PJ?* -YES. If D is appealing, they know about the lawsuit, so it's not necessary to have them reserved.

Interest ee nomine (NOT included in AIM) vs. Interest as Damages (included in AIM)

*Interest eo nomine* is EXCLUDED from calculation of AIC : -Eo nomine - "by name" also called "interest as interest" and includes: -Conventional interest expressly provided for by K or promissory note, or allowed by specific statutory provisions, regardless of whether it has accrued at the time of suit. -Rate for prejudgment interest for breach of contract is (1) the rate in the K, or (2) if the K does not provide interest rate, the statutory rate of 6% a year on the principal amount of any credit extended, or (3) if the K is silent and the statute inapplicable, the rate used for postjudgment interest. *Interest as damages* is INCLUDED in AIC: -Used to compensate a P for their loss due to the time value of money (loss in waiting for their case to be resolved) -E.g., conversion case. A has converted B's property. AIC will include the loss to B due to not being able to use the property, measured by interest on the value of the item.

Chandler (Appellant) v. Cashway Building Materials, Inc. (Appellee), 584 S.W.2d 950 (Tex. Civ. App.—El Paso, 1979) - wrongful garnishment case This is a post-judgment garnishment. FACTS: The affidavit filed by the creditor stated the wrong amount of the judgment after some payments had been made on the judgment. So there was a fact stated in the affidavit to obtain the writ that was not true. This alone makes it wrongful.

*Is the garnishment wrongful?* Yes, material facts stated in the affidavit to obtain the writ were not true/correct -Get actual damages. -No punitive damages because it doesn't look like it was malicious *Is a wrongful garnishment proceeding a compulsory counterclaim in the garnishment action or may that claim be properly asserted in a later independent lawsuit?* NO. The debtor can bring a claim for wrongful garnishment (or sequestration/attachment) in a later lawsuit. NOT compulsory. The claim did not arise out of the same T/O that is the subject matter of the opposing party's claim, a case relating to debt for goods sold.

Choice Auto Brokers, Inc. v. Dawson, (Tex. App.—Houston [1st Dist.] 2008) FACTS - Dawson bought car from CAB through their eBay page, but there were problems. P's father took receipt of the car in FL, but on the way back to TX it broke down. P sued in TX under DTPA -CAB filed special appearance to challenge PJ in TX. -CAB stipulated that it used a website for the sale. But argued it did not do biz in TX, had no offices, employees, or facilities in TX. Doesn't advertise in TX. It only uses ads that don't target particular states. - -Unless otherwise requested, cars are delivered in FL; customers purchase thru ebay. CAB doesn't ship to TX, but will arrange for 3P to deliver to TX. Customers can request test drive thru website, but must occur in FL. CAB provides no warranties. PJ?

*LAW: Applies a "sliding scale" to look at whether internet website supports PJ.* -At one end of the sliding scale are websites clearly used for transacting business over the Internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. -On the other end of the spectrum are "passive" websites that are used only for advertising over the Internet and are not sufficient to establish minimum contacts even though they are accessible to residents of a particular state. -*In the middle are "interactive" websites* that allow the "exchange" of information between a potential customer and a host computer. Jurisdiction in cases involving interactive websites is determined by the degree of interaction. *HERE*: more than purely passive. Some interactivity: able to email thru website; schedule test drive, but did not allow a customer to enter into a contract or purchase, but instead routed thru eBay. So, doesn't fall to either extreme. *Specific jx?* No. No evidence that the COA arose from activity based in TX. *General jx?* Record shows CAB sold 43 cars to TX purchasers; arranged shipping for 19. -No indication CAB targeted TX customers, maintained physical presence in TX or otherwise engaged in TX activity. -TXSC has held that 18 year history of selling to TX where sales represented only 3.5% of total sales was not enough. *HELD*: Thus, the seller's activities did not establish a pattern of continuing and systematic activity sufficient to support the exercise of personal jurisdiction in Texas. *Important factor: the buyer contacted the seller.* The biz wasn't soliciting the biz from TX. Just because you know a product is going into a state, that's not enough. - -Has to be a "plus factor" that shows D targeted the state. -No stream here. Just a dribble. Just fortuitous that the company sold to a Texan. -P has to sue in Florida instead.

What is the difference between a lack of capacity and a lack of standing? Can be tricky because they both contend that the claimant is the wrong person bringing the action..

*Lack of standing* means that the court lacks SMJ, which CANNOT be waived. -Standing deals with the issue of whether the person bringing the claim has a justiciable interest -Lack of standing must be pled by a plea to the jx. *Lack of capacity* CAN be waived. If a party does not specifically deny lack of capacity by a verified denial, they waive lack of capacity. -Cases on this are muddled. Sometimes it is pretty easy to figure out lack of capacity (minor, dead person, non compus mentus - no capacity to sue or be sued). -But there's a different kind of a capacity: is the P permitted to recover in the capacity in which they are suing? EX: Whether a personal representative has standing to pursue a decedent's COA? Only certain people are given that authority. And if someone does not have that authority, then they lack capacity to bring that matter. Capacity - you don't have authority [can be waived] Standing - don't have a justiciable interest. [can't be waived] Lack of capacity must be specifically denied under oath

Ch15 CPRC: Mandatory Venue

*Land* - actions for recovery of real property, 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 part of the property is located. Just because the action involves land, does NOT mean venue is mandatory where the land is located. Just in those actions listed above *Landlord-Tenant* - in the county in which all or part of the real property is located *Injunction against suit* - county in which the suit is pending *Injunction Against Execution of Judgment* - in the county in which the judgment was rendered *Head of State Dept* - Travis county *Libel, Slander, Invasion of privacy* - county in which the P resided at the time of the accrual of the COA, or in the county in which the D resided at the time of filing suit, etc.

Doctrine of Merger and Bar

*Merger* - if a P recovered in the first action instituted on a particular COA, that COA is viewed as having MERGED into the judgment such that it cannot be reasserted. *Bar* - on the other hand, if the P lost in the first suit on the COA, the COA and all claims comprising are said to be BARRED by the judgment

Where Can a Depo Be Taken? Deposition Location: IMPORTANT

*Non-party*: county of residence, where employed, regularly conducts business in person, or other convenient location. (Limit 150 miles from where witness resides or is served) Cannot require a non-party to travel more than 150 miles from where they live or where served. *Party*=same + county of suit. Party: 150 mile rule doesn't apply. If rules are overly burdensome, court has discretion to change (EX: order Zoom depo)

National Tank Co. v. Brotherton (TEX. 1993) FACTS: Explosion at refinery. Estate of worked killed in explosion is suing D and seeks documents created by refinery investigating explosion. Company objects that this is work product. WORK PRODUCT: When is a party acting "in anticipation of litigation" as applied to the work product privilege?

*Objective v. subjective standards* If there's an objective and subjective belief that a party is likely to sue. Then a party is acting in anticipation of litigation Here, given a large explosion where people were hurt, there is obj/subj likelihood of suit. Substantial chance litigation would ensue? Good faith belief it would ensue. HERE: National Tank DID meet both prongs. If there's an explosion at a refinery where people are injured, it is reasonable to anticipate litigation. DOGGETT - DISSENT: He doesn't favor ordinary work product privilege. This work product exception for ordinary work product should be done away with, because that's when the parties are investigating; TCT should see the unvarnished truth without the coaching of the lawyer

Objectives of Discovery

*Objective:* -Develop the facts of the case, move closer to settlement, -"freeze" testimony of harmful witnesses (commit witnesses to a particular version of facts), -perhaps get evidence in an admissible form. -Discovery should not be used for improper reasons (e.g., harassment)

Constitutional County Courts SMJ [Don't confuse with county courts AT LAW, AKA statutory county courts]

*Original jx* Concurrent jx with Justice Court (exceed $200 < AIC < $20k) Concurrent jurisdiction with District Court (Exceed $500 < AIC < $20k) -Remember, in concurrent jx, it's up to P to choose Probate jx -Can hear probate matters, but only uncontested probate cases *Appellate jurisdiction* From justice courts, AIC/Judgment < $250 *No Jurisdiction*: Defamation, enforce a lien on land, suit for the recovery of land, divorce, etc. May issue writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas Courts of Record - (court reporter present) CCC are courts of record, so you can appeal from CCC to Court of Appeals

District Courts SMJ

*Original jx* - Any case with AIC $500+ *Residual jx* - If you can't find a case where jx is proper, then you go to DCt. -Cases with no AIC (EX: only seeking injunctive relief) or not assigned to another court are within the residual jx of the DCT Process of elimination, if no other court, then DCt DCt judges must be licensed attorney and have the power to issue any necessary writ. Currently judges have to have been practicing attorney for 10 years. Proposal to increase.

Permissive v. compulsory counter-claims

*Permissive*: if the counterclaim doesn't arise out of the same transaction or occurrence or the counterclaim is not mature (typically indemnity/contribution), the defendant may bring the action, OR wait and bring it later in a separate suit *Compulsory*: if the counterclaim arises out of the same transaction or occurrence as the plaintiff's claim, and otherwise complies with TRCP 97(a), a party must bring the counterclaim or lose the right to bring it later. Use or lose.

Under the common law, factors to consider (not all apply in every case; DO NOT HAVE TO MEMORIZE)

*Private factors* 1.Relative ease of access to sources of proof (evidence, witnesses); 2.Availability of compulsory process (subpoena) to obtain the attendance of unwilling witnesses 3.Cost of obtaining such attendance 4.Ability to view the premises (where relevant) 5.All other practical problems (e.g., inability to implead third party defendant) *Public factors* 1.Administrative difficulties (court congestion) 2.Burden on community (jury duty) 3.Inability of people who are concerned about the controversy to get news of the litigation 4.Local interest in having localized controversies decided at home 5.Preference for having a case tried in the jurisdiction whose law will apply

Adjudicative Responsibility and Transfer in Cases Involving *Probate* CCL/SCC are integral part of jx scheme in eminent domain and probate cases.

*Probate* -Several courts share probate jx; authority varies among counties -Courts involved include CCC, SCC, DCts. -11 counties have "statutory probate courts" (SPC) special court created by TXL -SPC have broad powers over probate matters -Counties without SPC, SCC, or other statutory court exercising probate jx, probate cases are filed in the county court. -If contested, county judge may request assignment of statutory probate judge or transfer to DCt *Counties with a statutory court with probate jx but no statutory probate court* -Probate cases are filed and heard in those courts and in the CCC rather than DC unless TXL provides otherwise -CCC judge may not determine contested matters, but may (and on motion must) transfer proceeding to SCC or other statutory court with probate jx *Counties with probate court* All probate matters must be filed there. Broad probate jx.

DEFENSES TO GARNISHMENT:

*Property exempt from garnishment*: No garnishment of wages in TX except to support court-ordered child support or spousal maintenance. *Replevy*: defendant-debtor may replevy (regain possession of their property by posting a replevy bond in an amount set by the court) at any time before judgment if the garnished property has not already been claimed or sold *Debtor may also move to have other property substituted for the garnished property* *Dissolution or modification of the writ*: Rule 664a Sometimes there are other creditors with interests in the property and they can intervene in the lawsuit. -Not going to get into that, just know it's a potentiality. If you have to deal with this, consult collection manual

*Scope of Discovery:*

*Relevance* -Much broader than admissibility of evidence at trial; it is investigatory. "Any matter not privileged that is relevant to the subject matter of the case" can be discovered.

Permissive Joinder Of *Parties* By The Defendant Defendants may want to bring additional parties into the lawsuit. Two rules govern the joinder of parties by the defendant:

*Rule 38: impleader*, adding a third party defendant ("impleading a party") -If the claims are derivative - the original D claims that the newly-added party (the 3P Defendant) is or may be liable to the D or to the P for all or part of the P's claim against the D. - P can use Rule 38 also when P is defending against a D's counterclaim *Rule 97(f)*: adding a new party to a counterclaim (if that claim arises out of the same transaction or occurrence as the original counterclaim) -An additional party can be named when a counterclaim is brought if that additional party claim arises out of the same T/O as the original counterclaim. -EX: P sues D, and then D asserts a counterclaim against P. P could actually bring in Z as a party, if P asserts that Z is responsible for all or part of D's counterclaim against P.

16.008. Architects, Engineers, Interior Designers, and Landscape Architects Furnishing Design, Planning, or Inspection of Construction of Improvements

*SOR* -Must bring suit against above *within 10 years of substantial completion of the improvement* or the beginning of operation of the equipment in an action arising out of defective or unsafe condition. -Applies to actions for injury, damage, loss to real or personal property; personal injury; wrongful death; contribution; or indemnity -If claimant presents written claim for damages, contribution, or indemnity to above persons within 10 year limitations period, the period is extended for two years from the day the claim is presented.

INTERIM RELIEF: Writs of Sequestration vs. Garnishment vs. Attachment What's the difference between sequestration vs. the other writs? Factually different scenarios.

*Sequestration writ* - secured creditor (thus, in the strongest position of the 3 writs). Have a pre-existing property interest in the property you're trying to have seized. -If you have a SI, and the D defaults, you can seek a writ of sequestration before a trial on the merits. -CAN be ex parte -Have that property sequestered by the sheriff/constable (they take custody of the property), and have it "brought before the court" (actually put it in a warehouse), with the potential of selling that property down the road to satisfy a judgment if you're successful -But to justify that seizure of property, you have to show some reason to support the seizure or you're in violation of the 14th amendment's procedural due process requirements (notice and opportunity to be heard) *Writ of Attachment* Creditor seeking the writ does not have pre-existing property interest in the property. -Typically an unsecured loan. -Asking the court to have seized nonexempt property of the debtor/defendant up to a certain value (whatever you're owed on the debt) and hold it in the custody of the court to satisfy a potential judgment, if and when you prove the merits of your case. *Writ of Garnishment* -When you would seek an attachment, but now the property is in hands of a 3P. EX: debtor/defendant has $500 in the bank. -3P is the garnishee. And NOT a party to the original lawsuit.

The LAS is both substantive and procedural

*Substantive* - is there some basis to support? Look at issues such as: - sufficiency of contacts; -Residency is a basis for PJ -Being served in the state -Most of the times looking at sufficiency of the contacts -Consent to PJ in advance of the litigation *Procedural* - did you give notice and opportunity to be heard? *Service of process* - having the D served with copy of *petition and citation* (Rule 99 tells you what the citation must include)

Waiver of service of process (4)

*Voluntary Appearance*: D who is legally competent may appear in open court and waive service of process in person, by an attorney, or by an authorized agent. Rule 119 ----Rare *Availment*: when the D avails himself of the court other than by special appearance. Rule 120 EX: instead of filing a special appearance, the D files a motion to transfer venue (this is the wrong court in TX) -Because they filed the motion to transfer venue before special appearance, they've waived PJ objections. -They've waived because they have recognized the power of the court to act, and asked the court to rule. -Have to file prior to or simultaneous with any other motion. -Even if the first thing is the D files is a motion to quash service because it's defective, that's recognizing the power of the court to act. *Filing an Answer*: Filing an answer constitutes an appearance of D. Rule 121 *Constructive Appearance* (Motion to Quash Service Granted) - Rule 122; RARE. -What you say in a motion to quash service is that service wasn't done correctly so make them do it right. -If you win, the D doesn't have to be served again since the D clearly knows about the lawsuit and has been heard -What you win is more time to file an answer.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 220 (Tex. 2004) FACTS: Park attendants injured by falling tree branch, sues D. Texas Torts Claims Act only waives sovereign immunity if gross negligence can be shown in pleadings.

*When is it appropriate to urge a plea to the jurisdiction?* To challenge SMJ. Here, the D filed, asserting sovereign immunity. There's a fact question on whether there is gross negligence, because only gross negligence is enough to overcome sovereign immunity. If not gross negligence, then sovereign immunity applies and the court is denied SMJ. *What's the BOP on the P here?* Just enough evidence to raise a fact question. Here, the P put up evidence on negligence, but NOT any to support gross negligence, which is required to overcome sovereign immunity. COURT: You can raise the issue of a lack of SMJ due to sovereign immunity using a plea to the jurisdiction. *Time frame?* No time limit, because can't waive SMJ. *Why does sovereign immunity implicate a lack of subject matter jurisdiction?* Court can't adjudicate that matter if sovereign immunity applies. Deprives court of SMJ. *When is it appropriate for the court to consider evidence in considering a plea to the jurisdiction?* -Generally, TCt does NOT consider evidence in a plea to the jx; looks at the face of the pleadings only. UNLESS there's a predicate factual question that is required to determine SMJ, which there is this case, because SMJ requires a showing of gross negligence to overcome sovereign immunity. *Why do the dissenting justices advocate special exceptions or summary judgment motions as the appropriate vehicles to determine a lack of subject matter jurisdiction due to sovereign immunity?* -There's procedures in place within the rules in MSJ on when the parties need to file, respond, get proof. -Dissenting justices like the procedural safeguards built into the rules for MSJ. -But we don't have any procedural rules regarding pleas to jurisdiction's mechanics on evidentiary considerations. Dissent: this is too "loosey goosey" -Dissent wants more procedural certainty, more certain time periods.

LAW: In summary, an investigation is conducted in anticipation of litigation for purposes of Rule 166b(3) when

*a) objective prong:* a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and *b) subjective prong* - the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation.

Factors in PJ regarding the second prong: Fair play and substantial justice? (second prong of the minimum contacts test)

*fairness and burden are the strongest factors* 1) Burden on D. 2) Interests of the forum state (TX) in adjudicating the dispute. -State Regulatory Interests. Does Texas have an interest in regulating the activity? E.g., toxic waste dumps Insurance. TX has a manifest interest in providing effective relief for its residents when their insurers refuse to pay claims. 3) P's interest in obtaining convenient and effective relief. 4) Unique burdens placed upon the D who must defend itself in a foreign legal system. Ultimately, the quality of the contacts is more important than the number of contacts

Rule 165a further provides that: "The court shall reinstate the case upon a finding, after a hearing, that the failure of the party or his attorney was not

*intentional or the result of conscious indifference but was due to an accident or mistake or the failure has been otherwise reasonably explained*." Burden to act promptly, it is not hard to get reinstated. You can be stupid, but you can't be intentional If a motion to reinstate is not decided by a signed written order within 75 days after the judgment was signed the motion is deemed overruled by operation of law. Note: A dismissal for want of prosecution results in a dismissal *without* prejudice to refile the same suit, but subject to the statute of limitations.

What is the interplay between the motion to transfer based on convenience and a plea of forum non conveniens?

*motion to transfer venue based on convenience*. Trying to move from one county in TX to a more convenient county in TX *forum non conveniens* - trying to get out of TX to a more convenient state or nation If the more convenient forum is outside TX, the forum non conveniens should be used.

Core Work Product

*never discoverable* work product of an ATTORNEY'S or atty rep. mental impressions, opinions, conclusions, or legal theories Rationale: we want the attorney to be free to analyze the case and prepare the case without fear the other side will be able to get that info. Attorneys have a lot of cases going on, keep tons of memos to keep track of progress. Internal memos. Cases can go on for years, even more than a decade sometimes. Have to keep notes. This is all protected by work product. NO exception for core work product. NEVER DISCOVERABLE.

In Nicastro (2011), there was no majority opinion, but a majority of the Court decided that a British manufacturer was not subject to jx in NJ because it did not

*purposely avail* itself of the privilege of conducting activities in or directed toward NJ, even though the British manufacturer's scrap metal machines were marketed in the US by an exclusive US distributor which ultimately sold one of the machines to a NJ company. Kennedy's plurality opinion reasoned that it is only the British manufacturer's "purposeful contacts with NJ, not the US, that are relevant." Since the the British company didn't have an office in NJ, owned no property there, and didn't advertise nor send any employees to NJ, the manufacturer did not purposefully avail itself of NJ Plurality opinion refers to the "stream of commerce" as a metaphor and substitutes a largely new analysis which makes the "principal inquiry in cases of this sort whether the D's activities manifest an intent to submit to the power of a sovereign" rather than the D's ability to anticipate a suit which renders the assertions of jx fair." According to the plurality: A rule based on general notions of fairness and foreseeability is inconsistent with the premises of lawful judicial power Jx is in the first instance a question of authority rather than fairness Furthermore, were general fairness considerations the touchstone of jx, a lack of purposeful availment might be excused where carefully crafted judicial procedures could otherwise protect the D's interests, or where the P would suffer substantial hardship if forced to litigate in a foreign forum. That such considerations may have not been deemed controlling is instructive. Breyer and Alito concurred separately and explained that the plurality went too far in eschewing International Shoe's fairness standard, but none of our precedents finds that a single isolated sale is sufficient. Ginsberg, Sotomayor, Kagan dissented, finding nothing unfair about requiring an intentional seller to defend at the place its products cause injury.

In determining whether venue was or was not proper, the appellate court shall consider the entire record including the trial on the merits. Why? Compare with the harmless error rule applied in other civil appeals?

--Harmless error rule: Did the error probably result in an improper judgment? If yes, reverse; if not, judgment stands. --Per se reversible error is very rare in Texas appellate procedure. Doesn't this direct the court of appeals to make a decision on a different basis and on different facts than the trial court? --Yes, it does. That is what is procedurally weird. --Ordinarily in fairness to trial judge, the appellate court will look at what was before the TCt in terms of proof/argument/ etc. when it made it's ruling. --But here, the TCt could have ruled correctly on the prima facie proof of the P on venue, yet get per se reversed by appellate court. --TXSC recognized that this is flawed, but that is what the TXL wrote, so that's what we're going to do: whole record review. Is a bit unfair to the TCt, but it's our standard. (Ruiz v. Conoco, p327)

*2) fair play and substantial justice (FPSJ)* - FACTORS - a lot of factors, but basically boils down to whether it is fair for TX to exercise PJ over nonresident. *Under Burger King, the factors are:*

-Burden on nonresident D litigating a distant forum -Interests of TX -P interest in convenient and effect relief -Interstate judicial system's interest in efficient resolution of controversies (rare) -Shared interest of states in further fundamental substantive social policy As a practical matter, when you are arguing PJ, it basically boils down to 1) does the D have enough contacts?, and 2) is it fair to require that nonresident D to litigant here? These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required." Burger King, 471 U.S. at 477, 105 S.Ct. at 2184. However, regardless of these factors, it must be established that the nonresident defendant purposely established minimum contacts with the forum state. HN11 Even if the nonresident defendant has purposely established minimum contacts with the forum state, the exercise of jurisdiction may not be fair and reasonable under the facts in a particular case

Rule 93 Lists a hodgepodge of stuff, from 1-16. 1-15 lists things you have to specifically deny under oath. 16: any other matter required by statute.

-Capacity -Dominant jurisdiction - there's already another case pending -Defect of parties -Denial of a partnership - -Denial of execution of an instrument you are being sued upon. -Denial of genuineness of your signature. -Etc. *Why do these things have to be specifically denied under oath and not others?* These are all things that are generally not in issue in most cases. So to put them in issue, that is to be entitled to present evidence on the issue over your opponent's objection, must specifically deny them.

Subpoenas to non-parties command that person to

-Give testimony at a deposition, hearing, or trial; and/OR -Produce and permit inspection and copying of documents or tangible things TRCP 176 and TRCP 205 -Range: can't be required to travel > 150 miles from where the person resides or is served to give deposition or produce documents/tangible things. -Timing for Production: no later than 30 days before the end of the discovery period (because responding party gets 30 days).

Notice Requirements for Party Deposition

-Identity of witness/organization to be deposed. Time and place. -Alternate Means of Conducting and Recording -Additional Attendees.

*Why did the court construe the pleadings favorably to the pleader? What if the pleadings affirmatively negated SMJ?*

-In any doubtful case the plaintiff's pleading will be in favor of the jurisdiction." -Unless it is clear from the pleadings that the court lacks jurisdiction of the amount in controversy, it should retain the case. -As one court recently said: "We must presume in favor of the jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition."

What takes place at the summary judgment hearing if you're not putting on evidence?

-Just the argument of counsel. -Need to be succinct. -Don't assume they've read the motions. -Good to have a hearing instead of just written submission because you can get a sense of the judge's thinking and what they are focused on. -Because no live testimony is allowed, an oral hearing on a summary judgment is not required and the trial court may advise it will consider the motion on written submission.

Moki Mac Revier Expeditions v. Drugg (TX 2007) - TXSCt rules that such national advertising with TX subscribers indicated an intent to serve TX market sufficient for specific jx, in connection with other efforts to solicit TX biz, such as:

-Knowingly sells trips to TX residents -Purposefully directs marketing efforts to TX to get biz -Regularly advertised in TX -Hired PR firms from TX -Direct mail campaigns to TX customers However, the TXSC found that the COA didn't arise out of these contacts sufficiently to invoke jx. Courts on advertising: just because you have a national ad campaign, if it's not specifically targeted to TX, that is not "purposeful availment" even if you know it will end up in TX.

*Examples of Types of substituted service trial court may order:*

-Leave copy of citation/petition with person over 16 at location D can likely be found (EX: where they likely work/reside) -in any other manner, including electronically by social media, email, or other technology, that the evidence before the court shows will be reasonably effective to give the defendant notice. (See 2020 amended Rule 106) -Must be able to show that this social media account is in fact the D's account; and supply evidence showing that it is likely to be effective (EX: they are regularly posting pictures/updates on account). -this is a Big change this year: substituted service can be made electronically, including by social media

NOTE 5: Other Examples of Lacking SMJ that are raised by Plea to the Jx:

-P failed to exhaust their administrative remedies. -Cannot be moot, -cannot address ecclesiastical matters, -political question (matter entrusted to another branch) EX: you don't like the governor's appointment. That's a matter entrusted to the executive. Can't bring a claim. No SMJ

*Court also looks at the increased burden when it is a non-US D. When international disputes are involved, also consider*

-Procedural and substantive policies of other nations whose interests are affected -Federal govt interests in foreign relations -Etc. A lot of times it is quite difficult to know how the court will rule on these factors -Fairness is in the eye of the beholder. -Look for cases that are factually similar to yours and argue. -But it is fluid and hard to know.

Typical claims that are particular good candidates for MSJ by establishing all elements:

-Suits on promissory notes -Claims based on open or stated accounts

Summary judgment evidence, whether by affidavit or depo, must meet all the requirements for admissibility under TRE, just like in trial. There are some admissibility requirements that frequently present problems in the summary judgment context:

-Summary judgment evidence must establish an expert W's qualifications as an expert on the particular issue made the subject of the controversy. -An expert's opinion must be based on a reliable foundation, amounting to more than an unsupported speculation or subjective belief. -An expert's conclusory statements will be ignored unless the facts supporting the conclusions are set out in the testimony. The expert's affidavit must set out the reasoned basis for the expert's conclusions. -An expert opinion as to a mixed question of law and fact is admissible so long as the opinion is based on proper legal concepts and a statement of the underlying facts used to support it. ---In this connection, it is not necessary for the expert to state the definitions of the legal terms used and sought to be proved, although that may be the better practice. --The testimony must describe conduct or circumstances that equate to the elements in the legal definition.

Differences between TRO and Temporary Injunction

-TRO is ex parte, TI is not -Duration of TRO is shorter -Burden of Proof - TI requires a showing that there is no adequate remedy by law. -Appealing a TRO: no time for regular appeal, have to do mandamus; TI goes through regular appeals process ***TRO is NOT a prerequisite to a TI. Only need TRO if an emergency.

The General Denial

-TX allows general denial, unlike federal rules. -D can generally deny the P's factual allegations, even if the D thinks they are true. -No party can be sanctioned for a general denial. -So even if there's a lot of stuff that the D would otherwise admit is true, the D can issue a general denial without consequence. EX of general denial: "Defendant generally denies everything the P has pled." General denial sufficient to put the other party's allegations at issue unless other rules require additional pleadings

Requests for Disclosure Requests for Disclosure (Required Disclosures for cases filed on or after January 1, 2021)

-Used to discover basic info. TRCP 194.2 -Identity of parties and potential parties -Legal theories and factual basis supporting -Damage calculations -Persons with knowledge of relevant facts. -Testifying experts -More (see rule)

*Was the District Court's Jurisdiction invoked by the filing of the original petition in that court which was silent as to jurisdictional allegations?*

-YES. The pleadings did not affirmatively negate SMJ, and P proved up in trial that the damages were within the DCt's SMJ. -The failure of a plaintiff to state a jurisdictional amount in controversy in its petition, without more, thus will not deprive the trial court of jurisdiction. -In Peek, unlike Brite, the pleadings are simply silent as the to AIM. Brite pled that back pay was this, front pay was that, and it was an amount clearly beyond the CCL's SMJ.

*Can P obtain attorney's fees later down the road if successful at trial?*

-Yes. This is a contract, and TX allows attorney's fees for breach of contract. -Can't recover attorney's fees in TX without a statutory basis. We don't have equitable attorney's fees. -But one of the largest areas for obtaining attorney's fees if you're successful is breach of contract. Here's there's a clear contract. -Most contracts for the sale of goods have an acceleration clause. -It's an expensive proposition getting a writ of sequestration: gotta put up a bond, hire an attorney, file the petition, get the writ, prove the merits of the case. But you can get attorney's fees.

CHAPTER ELEVEN & TWELVE: DISPOSITION WITHOUT TRIAL Overview Chapter 11 and Chapter 12 deal with the primary ways a case may be decided or disposed of without a full blown evidentiary trial on the merits. Examples include

-default judgments (D fails to answer), -dismissals for want of prosecution (P is not sufficiently pursuing claim), -non-suits (P quits), -summary judgments (one side shows they are entitled to judgment as a matter of law) and -settlements. -ADR methods and procedures are also discussed. Judgment by Default (Rules 239-243)

Two ways you can acquire title to property:

1) "Contract for Deed": you pay this much per month for a certain amount of time, you get the title of deed. But if you default along the way, you don't get title. - not as good, often happens when lawyers are not involved -this is what happened in "Dass" 2) mortgage or cash - Buyer gets title to property subject to a mortgage. A lot more legal protection much better alternative; avoids these kinds of problem.

Protection of work product. (1) Protection of non-core work product (AKA "ordinary" work product) Any other work product is discoverable only upon a showing that the party seeking discovery has (2)

1) *substantial need* of the materials in the preparation of the party's case and 2) that the party is unable without *undue hardship* to obtain the substantial equivalent of the material by other means.

Contesting Sequestration In contesting sequestration, D has a couple of options:

1) A D may file a written *motion for dissolution* with the court to stay the proceedings until the issue is determined -Court must conduct a hearing not later than the 10th day after the motion is filed. -BOP on party who secured issuance to prove facts alleged and rightful grounds for issuance of writ. 2) Defendant may bring a *tort for if wrongful sequestration to recover damages* *Consumer goods cap* -Lobbyists got TXL to put a cap on damages of wrongful sequestration of consumer goods -Often occurs in the context of a PMSI. Keep caps in mind as a lawyer; you may not be able to win as much as you think, so taking the case might not be worthwhile.

The Scope of the Sworn Account Applies to:

1) A claim founded on an open account, including liquidated damages based on a contract; EX: open accounts often used between manufacturers and retailers 2) A claim for personal services rendered; EX: attorney's fees 3) A claim for labor done; EX: plumber/electrician 4) A claim for labor furnished; OR, 5) A claim for material furnished

Prerequisite for issuance of pre-judgment garnishment:

1) An original attachment has issued and is not satisfied; OR 2) When suit is brought for a debt owed and an affidavit is made by the P saying the debt is past due and unpaid that "within the plaintiff's knowledge" the *defendant does not possess sufficient property in TX* that can be sold to satisfy the debt. In other words, if the debtor has sufficient assets, you're not entitled to get pre-judgment garnishment. Don't need it if they have sufficient assets in TX to satisfy the judgment. If they're a non-Texas debtor, there's a good chance they do not possess sufficient property in TX. Easier to get pre-judgment garnishment. Reason it is harder to get garnishment than attachment/sequestration is that we are bothering a 3P with a lawsuit they otherwise have no interest in.

Reporters Privilege: compulsory process may not be used to compel a journalist to testify or disclose:

1) Any information document, or item obtained or prepared while acting as a journalist; or 2) The source of that information Can overcome the privilege with: 1. a clear and specific showing that all reasonable efforts have been exhausted to get the info, and 2. the interest of the party subpoenaing the information outweighs the public interest in gathering and disseminating the news Tough privilege to overcome. Many states do not have this privilege.

Defendant moving to transfer based on permissive exception must prove:

1) Basis for plaintiff's venue choice is improper -Because if it's just permissive vs. permissive (P vs. D), both applicable, P's choice controls. 2) Venue is proper in the defendant's chosen county -But if D can show that P's choice is improper and where D wants to transfer venue is proper, then court should grant D's motion to transfer venue

Affidavits are technical documents. Affidavits must: (4)

1) Be based on personal knowledge (not hearsay or information and belief); 2) Set forth facts as would be admissible in evidence (not mere legal conclusions, etc.); 3) Show the affiant is competent to testify to the matters stated therein (competent: basis for affiant's personal knowledge); and 4) Be made in good faith. Good idea to get another person to check to make sure affidavit is compliant.

Personal delivery Rule 103 Citation may be served by: (3)

1) By a Sheriff / Constable; 2) Any person authorized by law or by written court order who is not less than 18 years of age; OR 3) By any person certified under order of the Texas Supreme Court or by order of the trial court (process server) Sheriffs and constables are NOT restricted to their counties for service of process. No motion or fee shall be imposed to serve process

Mootness: controversy existed at one time, but by the time of suit the requested relief would not redress the alleged wrong, the matter is "moot" and no SMJ. Exceptions: Won't test

1) Capable of repetition, yet evading review - the court will review a moot controversy so as to assure that the P has judicial review that would otherwise not be available to the P due to the circumstances of the controversy. EX: "extra hazardous" designation - usually resolved fairly quickly because of the severe penalties involved. If mootness were applied in such a situation to dismiss a P's claim, the P would never be able to obtain review 2) Collateral consequences - prevents dismissal when prejudicial events have occurred whose effects will continue to stigmatize helpless or hated individuals long after the moot judgment ceases to operate because such effects will not be resolved by the dismissal of the case as moot.

What do you win if your forum non conveniens (FNC) motion is granted?

1) Case is dismissed without prejudice, or 2) (more often) abated. *Abated* - suspended. Might come back if forum is rejected in other forum (due to lack of PJ over Ds, etc.). -The dismissal or abatement may be conditioned on D pleading FNC conceding the more convenient forum it is urging has JRD over Ds -The dismissal or abatement may be conditioned on D not arguing SOL defense

Movant is free to assert several grounds in MSJ, a common tactic especially in defense of personal injury cases (3)

1) D claims there is no duty owed to the P, 2) no evidence to support some key element of the P's case, and 3) the establishment of an affirmative defense as a matter of law.

Advantages to filing a declaratory judgment action over TTTT:

1) DJA procedures are less technical than tttt rules. 2) Usual discovery rules are at least as efficient, or even more so, than the process of obtaining an abstract of title 3) Award of injunctive relief might aid enforcement of a possessory right 4) The court may award atty's fees without a finding of adverse possession --Maybe you can't get under tttt, but can under declaratory judgment.

Discovery Rule May make the legal injury rule irrelevant. Defers accrual of COA until a P discovers or through reasonable diligence should have discovered the nature of his injury. As Justice Hecht's opinion in SV v. RV makes plain, the common law discovery rule is only applicable in a limited range of cases: (4)

1) Defamation 2) Fiduciaries, including legal and accounting malpractice actions 3) Maybe negligent misrepresentation 4) Exposure to latent disease and remained asymptomatic for an extended time beyond the SOL. Childs v. Haussecker, TXSCt held that new causes of action in an asbestos related or silica-related condition accrue when a P's symptoms manifest themselves to a degree that would put a reasonable person on notice that he suffers from some injury. CPRC enacted 16.0031 to add certainty. Reasonable diligence means that if the existence of harm is suspected, must investigate the suspected harm and file suit to obtain tolling of limitations

1.True Default Judgment.

1) Defendant fails to appear on Answer day (10:00 of the Monday next following the expiration of twenty days from the date of service), and 2) the return of service has been on file with the clerk for ten days exclusive of the date of filing and the date of judgment. (Rule 107). The default judgment will be a final judgment only if it disposes of all the issues and all the parties before the court (triggers day 0 to compute time to bring appeal). Big picture: we're talking about county/district court rules. JP courts have different rules/timing. Need to pull out 500 series of rules.

Attorney's Fees and Interpleader *Attorney's fees may be awarded to a disinterested stakeholder in interpleader* (those holding, but not claiming a share of the property) if establish:

1) Disinterested stakeholder; 2) With reasonable doubts as to the party entitled to the funds; 3) Who in good faith interpleads the fund, identifies the adverse claimants, and seeks a court determination who is entitled to the property interplead. Award of attorney's fees within discretion of trial court (considering factors such as delay in interpleading). Interested stakeholder who interpleads property is not entitled to attorney fees. EX: Real estate escrow was going to get paid $100 to hold money. Good idea to give that up and choose to be a disinterested stakeholder and get attorney's fees reimbursed since they will be a lot higher

The law of the case is meant to:

1) Ensure that lower courts comply with the rulings of higher courts. 2) Prevent re-litigation of settled issues. Questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages after remand. (Bars re-litigation of questions of law previously determined.) i.e., once there is a determination of a question of law in a case, that determination should be treated as correct throughout the case.

In our view, whether an imposition of sanctions is just is measured by two standards.

1) First, a direct relationship must exist between the offensive conduct and the sanction imposed. This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. It also means that the sanction should be visited upon the offender. The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both. This we recognize will not be an easy matter in many instances. On the one hand, a lawyer cannot shield his client from sanctions; a party must bear some responsibility for its counsel's discovery abuses when it is or should be aware of counsel's conduct and the violation of discovery rules. On the other hand, a party should not be punished for counsel's conduct in which it is not implicated apart from having entrusted to counsel its legal representation. The point is, the sanctions the trial court imposes must relate directly to the abuse found. 2) Second, just sanctions must not be excessive. The punishment should fit the crime. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. It follows that courts must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance.

The requirement of good cause for a compulsory mental examination may be satisfied only when the movant satisfies three elements.

1) First, that an examination is relevant to issues that are genuinely in controversy in the case. It must be shown that the requested examination will produce, or is likely to lead to, evidence of relevance to the case. 2) Second, a party must show a reasonable nexus between the condition in controversy and the examination sought. 3) Finally, a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination. --The movant must demonstrate that the information sought is required to obtain a fair trial and therefore necessitates intrusion upon the privacy of the person he seeks to have examined.

Under our rules of evidence, a party has a privilege to refuse to disclose its trade secrets "if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." We therefore hold that trial courts should apply Rule 507 as follows: (3 steps)

1) First, the party resisting discovery must establish that the information is a trade secret. 2) The burden then shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claims. 3) If the requesting party meets this burden, the trial court should ordinarily compel disclosure of the information, subject to an appropriate protective order. In each circumstance, the trial court must weigh the degree of the requesting party's need for the information with the potential harm of disclosure to the resisting party.

APPELLATE REVIEW OF VENUE RULINGS No factual proof concerning the merits is required in venue hearings No interlocutory appeals of venue ruling; can only appeal from a final judgment (with the possible exception of cases involving multiple plaintiffs/15.003 contest) Exceptions:

1) If it's a mandatory venue exception the TCt has ruled on, under Ch15 you can seek review by mandamus of whether the TCt's ruling on mandatory venue was correct. 2) 15.003 ruling on whether a co-P can independently establish venue - IS subject to interlocutory appeal

Serving SOS via General Long Arm Statute If nonresident D doesn't have a registered agent for service of process in the state, and they don't have a "person in charge" of their business in TX, then the P can do substituted service via SOS of TX. After the P serves the SOS, then the SOS office is supposed to forward the papers on to the nonresident D. This is quite a process too. (5 steps)

1) If representing P, have to get together copies together for SOS office, and a copy to forward to D. 2) Prepaid envelope with stamps on it. Indicating location where D can probably be found. 3) File letter with SOS requesting service 4) Service fee paid to SOS 5) Prepare an equivalent of return of service (Whitney certificate) for the SOS to send back verifying that the SOS has completed service as requested. A lot of steps. Not as complicated or expensive as service by publication, but certainly not as easy as paying a process server a fee. It's only proper to serve SOS if there's a registered agent in the state after 2 failed attempts on 2 different business days. Or if the D doesn't have a registered agent but does have a "person in charge" of their business, you must try to serve them first. *P's petition should also plead how D will be served and why this is a proper method.* EX: "Defendant X can be served by serving the SOS as defendant X is not required to have a registered agent in the TX and has no person in charge of their business in TX." Those pleadings are required, as demonstrated by the McKanna case.

When you look at a file, you look at the live pleadings:

1) Latest amended pleadings 2) Supplemental pleadings 3) Any Trial amendments

Capacity to sue or be sued is one of those matters that must be specifically pled. Two forms of capacity

1) Minors, dead persons, trusts, don't have capacity to sue or be sued -Considered under legal disability. 2) Sometimes the plaintiff is not permitted to recover in the capacity in which the plaintiff sued, or the Defendant is not liable in the capacity in which they are sued. -Tricky. -Deals with the authority of the party to assert or defend the particular action that is before the court. Example: whether a personal representative has the capacity to prosecute a decedent's cause of action

Assume that plaintiff and defendant enter into a settlement agreement which is executed by both parties. What happens next? After all, there is still a suit pending on the docket. The settlement agreement should provide for the disposition of the case. Two options:

1) P dismissed suit with prejudice 2) agreed judgment

What will be in P's file in default judgment case?

1) P's petition 2) Return of service 3) Default judgment itself that the P drafts 4) Any evidence of damages taken down by the court reporter; because when you take a default judgment P has to prove up damages

Service by publication is specifically authorized in the following situations (mostly in rem actions):

1) Partition: when the owner of a parcel of land is unknown or whose residence is unknown 2) Defunct corporations - not in business anymore; no entity left 3) Land: when the owners or claimants are unknown 4) Marriage dissolution: when D cannot be notified by personal service or registered or certified mail 5) Ad Valorem Taxes: in suits for the collection of unpaid taxes (operates against the land itself) 6) Whereabouts of D unknown and cannot be ascertained after reasonable diligence or the D is a transient person

Additionally, the "law of the case" doctrine typically does not apply to:

1) Questions of fact. 2) Dicta. 3) Clearly erroneous earlier holdings. 4) A later stage of litigation that presents different parties, issues, or facts. The application of the doctrine is within the court's discretion. Appellate courts have discretion to depart from the law of the case doctrine in exceptional circumstances.

Why RFA instead of ROGS if you can?

1) Remove issue from trial. Get it admitted so you don't have to prove up at trial. EX: admit valid contract 2) If a party doesn't respond to RFA timely, you get a DEEMED admission. Purpose: to identify facts that aren't disputed (responses must admit or deny; admissions treated as "conclusively established") Admissions may only be used in the present suit and against answering party. Timing: no later than 30 days before the end of the discovery period Response: within 30 days after service of the RFA.

If you see a pleading of opponent that has no basis you can: (3)

1) Specially except 2) MSJ 3) 91a It's your choice on how you want to respond.

When D Might Wish To contest venue

1) When Plaintiff relies upon any type of venue provision (permissive or mandatory) and defendant can establish that venue provision is inapplicable. 2) When Plaintiff relies on a permissive venue provision and defendant can trump it by establishing a mandatory venue exception applies. --If both Plaintiff and Defendant can establish different mandatory venue provisions apply, the trial court is to apply the one that reflects the "gravamen" of the lawsuit. --Exception: Impartial Trial/Convenience. 3) If both Plaintiff and defendant can establish different permissive venue provisions apply, Plaintiff's choice of venue controls unless: A) D can establish an impartial trial cannot be had in that county, OR B) Venue is convenient in another county where venue is also proper and D makes out other convenience factors.

Sanctions Must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated. May include:

1) a directive to the violator to perform, or refrain from performing an act; 2) an order to pay a penalty to the court; and 3) reasonable expenses and attorney's fees.

DETERMINING THE AMOUNT IN CONTROVERSY (AIC): WHICH ELEMENTS OF RECOVERY ARE INCLUDED? Generally, under the *common law* (TXC courts: DCts, CCC, JPs) all elements of recovery are included in the AIC, including: (4)

1) actual damages, 2) punitive damages allowed by law, 3) attorney's fees recoverable by law and 4) interest as damages. -----Do not include in the calculation court costs or interest eo nominee.

Exceptions when a general denial is not sufficient to put some matters in issue more particularized pleadings are required Used when the procedure rules require that something be specifically pled to put it at issue- cannot be raised by a general denial. These have to be SPECIFIC, CANNOT BE GENERAL DENIAL: (4)

1) affirmative defenses (Rule 94), 2) verified denials (must be denied under oath) (Rule 93), 3) conditions precedent to recovery has not been pled (Rule 54), 4) Payment was already made (Rule 95) If party seeks to introduce any of these things that they have no specifically pled, the opponent should object "outside the pleadings" and the court should sustain that objection. Then the party will try to amend if the court will allow. So be very careful to watch for those 4 things above and be aware that you must specifically plead them. Usually defendants, but NOT exclusively. The issue cannot be raised at trial if it is not correctly pleaded. P may waive the right to complain about defects in the D's denials.

If you are the party facing a special exception you can:

1) amend to cure the defect, OR 2) stand on the pleading and await the court judgment on whether to dismiss (very very rare) Carlson: better to add clarity than to risk dismissal, go through appeal, get back to trial court. Not a good strategy. Very expensive/time consuming. Just add another paragraph.

Cooper v. Circle Ten Council Boy Scouts of America (Tex. App.-Dallas 2008) Whether a non-movant has had adequate time for discovery is a case specific inquiry. EX: don't need much disco time if you are asserting res judicata. Just need judgment/pleadings from former case. Don't have to wait for disco to close for MSJ. Judge will ask specifically what you need to discover that requires more time. Better be ready to answer. The non-movant making this contention must file either

1) an affidavit explaining the need for additional discovery and their diligence OR 2) a verified motion for continuance. A no evidence summary judgment motion may be urged before the close of discovery in some cases. The trial court should consider the nature of the cause of action, the nature of the evidence necessary to controvert the motion, and the length of time the case has been active in the trial court.

Generally, the court doesn't hear live testimony at a MTTV hearing, however, for venue motions ____, ______, and ____, the court may hear live testimony

1) based on convenience 2) claim an impartial trial cannot be had 3) "the trial court has discretion to allow a broader range of proof [including live testimony] in considering a section 15.003(a) contest [joinder, unfair prejudice, essential need, or fairness and convenience] than it would in a venue hearing." Surgitek case. -These subjective factors don't lend themselves to written proof.

Affidavits - are not required but that is the most common proof submitted in a venue contest (because lawyer has control). Affidavits must

1) be based on personal knowledge of the affiant, 2) set forth facts that would be admissible in evidence, and 3) show affirmatively the affiant is competent to testify. --How is the affiant competent? EX: "My name is X, and I work as Y, which means I have the following responsibilities which give me personal knowledge of ___" and then state the facts

Rule 167.2 (b) directs that the offer:

1) be in writing; 2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice and Remedies Code; 3) identify the party or parties making the offer and the party or parties to whom the offer is made; 4) state the terms by which all monetary claims — including any attorney fees, interest, and costs that would be recoverable up to the time of the offer — between the offeror or offerors on the one hand and the offeree or offerees on the other may be settled; 5) state a deadline — no sooner than 14 days after the offer is served — by which the offer must be accepted; 6) be served on all parties to whom the offer is made.

The Offer of Settlement - [do NOT have to memorize] Rule 167 provides that an offer of settlement may NOT be made:

1) before a defendant's declaration is filed; 2) within 60 days after the appearance in the case of the offeror or offeree, whichever is later; 3) Within 14 days before the date the case is set for a conventional trial on the merits, except that an offer may be made within that period if it is in response to, and within seven days of a prior offer.

(Rule 82) So, presume generally denial of supplemental pleading allegations, EXCEPT: It is necessary to file a supplemental pleadings, as a general rule, if a party desires to:

1) challenge the sufficiency of Defendant's answer (Rule 90 - special exception) 2) plead a matter required to be specifically plead under Rule 93 (under oath) 3) assert an affirmative defense in response to Defendant's Answer (Rule 94) 4) respond to Ds counterclaim pleading that all condition precedents to recover have been met (Rule 54), or 5) respond to Ds counterclaim asserting payment (Rule 95) These are the 5 things that MUST be specifically pled, can't be covered by a general denial. If party doesn't specifically plead, then the opponent should object "outside the pleadings" to any evidence coming in on these matters

Service by publication (AKA "constructive service") - TRCP 116 & 117 Don't do it. It's expensive, leaves you open to attack for a long time. Constitutionally shaky. Least effective. Last resort if you just can't find D after reasonable efforts. Rules are written to discourage service by publication. If you know who D is, must try to find. EX: if homeless, you have to find them if you know generally where they are. When a defendant's identity is known, service by publication is generally inadequate. Because you are supposed to use reasonable efforts to find D. If you're going for an in personam judgment, must show that whereabouts of D are unknown. *Service by publication ("constructive" service) must be accomplished Two Ways: (this just started last year)*

1) citation in newspaper in county where the D will likely be found 2) clerk publishes citation on Public Information Internet Website Exceptions excuse newspaper publication. TRCP 116 (b)(2). See 2020 Amendments to TRCP 116 & 117. Traditionally service by publication was used for in rem or quasi in rem proceedings Under USSCt Hanover decision, service must be reasonably calculated to reach D. But in some circumstances, you don't know who the D, or the whereabouts are unknown, so service by publication might be all you can do.

To be enforceable as a written contract, the arbitration agreement must be evidenced by a writing. It does not have to be signed by either party, except in limited circumstances when signature is required by statute. The Texas Arbitration Act requires signatures in two circumstances:

1) contracts of less than $50,000 or 2) personal injury claims unless signed by parties and their attorneys.

The post-rejection litigation expenses recoverable include:

1) court costs; 2) reasonable fees for not more than two testifying expert witnesses; and 3) reasonable attorney fees. For cases filed after September 1, 2011, post-rejection deposition costs may also be shifted. The reasonableness of fees is determined by the trial court.

The affidavit attached to a request for more time to respond to a MSJ must

1) describe the evidence sought, 2) explain its materiality, and 3) set forth facts showing the due diligence used to obtain the evidence prior to the hearing. In considering whether the trial court abused its discretion, the appellate court considers such factors as the length of time the case had been on file before the hearing, the materiality of the discovery sought, whether the party seeking the continuance exercised due diligence in obtaining the discovery, and what the party expects to prove. Generally it is not an abuse of discretion to deny a motion for continuance when the party has received the 21 days' notice required by Tex. R. Civ. P. 166a(c).

Trial Courts - Texas has four primary types of trial courts:

1) district courts 2) county courts 3) justice courts 4) statutory county courts (AKA legislative county courts or country courts of law) The first three are established by the TXC, although the legislature has the power to vary the constitutional pattern. The TX legislature created the statutory county courts, often on a county-by-county basis. *The amount in controversy is the main factor that determines a court's SMJ.* However, jx over certain categories of cases is given to specific courts regardless of the amount in controversy. Notice the large areas in which the jx of two or more courts overlap. When this is the case, P may choose to file suit in any of the jurisdictionally proper courts.

Multiple claims and parties Joinder issue: 2 questions

1) do the multiple claims (or claims against multiple parties) arise out of the same T/O? 2) Do they have common questions of law or fact? If yes to both, the joinder of claims or parties proper Same T/O is construed in a very pragmatic basis in TX. If you're guessing, guess yes.

Rule 39 - COMPULSORY JOINDER: *(b) Determination by Court Whenever Joinder Not Feasible.* If a person as described in subdivision (a)(1)-(2) hereof CANNOT be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, because the absent person is regarded as indispensable. ---File a "plea in abatement" because there's an indispensable party (per section (a); and if the cannot be joined (maybe no PJ), the court must decide whether to go forward with case or dismiss (without prejudice) The factors to be considered by the court include: (4)

1) first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; 2) second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (to all parties; existing and party that can't be joined) 3) third, whether a judgment rendered in the person's absence will be adequate; 4) fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.

What can you raise by special exception?

1) formal defects 2) substantive defects

How post-judgment garnishment works:

1) have a sheriff/constable go out on a writ of execution post-judgment. 2) they return the writ unsatisfied, or only partially satisfied after property sold 3) if some portion of the judgment is still unpaid we can seek this post-judgment garnishment.

TRO Step 1: Preparation of Papers and Fees: requirements The Petition (similar to original petition) - What 5 things are included?

1) identification of parties, where D can be served; 2) specific factual allegations and legal grounds supporting issuance of TRO (including why there is no adequate remedy at law) 3) Prayer - what do we want? (likely a temporary injunction, but first a TRO) 4) supporting Affidavit 5) certification of counsel -When attorney for a party signs certifies that you contacted the other party's counsel and served them. With TRO it can be done ex parte, so we might not have this certificate on the initial pleading because we're able to show the court that there is no time before irreparable injury would result no TRO shall be granted without notice unless it clearly appears from specific facts shown by affidavit that immediate and irreparable harm will result before notice can be served.

The content of the notice for oral depos is specified in Rule 199.2, and includes:

1) identity of witness; organizations 2) time and place 3) alternative means of conducting and recording 4) additional attendees, and 5) request for production of documents.

Basic Compulsory Joinder Test Remember test for compulsory joinder of a party: (2)

1) if in their absence complete relief cannot be afforded among existing parties 2) or if their absence would subject parties to competing/inconsistent claims.

The general rule is that venue is proper: (4)

1) in the county where the D resides (if natural) 2) in county where D has principal office (if an entity) 3) where all or substantial part of events or omissions giving rise to COA occurred. 4) IF NONE OF THE ABOVE APPLY, where the P resides. (RARE) Because the TX judiciary is elected, venue is quite important. Which judge you get, character of jury pool, etc. can impact success of litigation.

Associational standing - may have standing to raise issues on behalf of their members if (3)

1) its members would otherwise have standing to sue in their own right, 2) if the interests the association seeks to protect are germane to its purpose, and 3) if neither the claim asserted nor the relief requested requires participation of association members.

Subject matter jurisdiction CANNOT be waived. It can reverse a judgment TX court system is ridiculously elaborate Texas allocates jx among the various courts in a combination of constitutional and statutory provisions that focus primarily on the subject matter of the case and the amount in controversy. The court's jx may be exclusive or concurrent; there are large areas in which jx overlaps. Chapter also discusses two particularly tricky issues involving overlapping jurisdiction:

1) land title 2) probate matters Ends with discussion of justiciability and examination of a statute that may help a party who has mistakenly filed a case in a court that lacks jx.

SUMMARY JUDGMENTS (Rule 166a) (f) *Form of Affidavits; Further Testimony*. Supporting and opposing affidavits shall be

1) made on personal knowledge, 2) shall set forth such facts as would be admissible in evidence, and 3) shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

Contesting a TRO Because of the short time of a TRO, there's no time for a traditional appeal. Must seek (2)

1) mandamus from appeals court, or 2) to dissolve the TRO through the trial court. Mandamus relief available if restraining order violates rule 680 If TRO issues and all requirements are not met, the D can seek relief via mandamus. *Mandamus* - different from appeal; in order to get mandamus relief, must show (1) there's no adequate remedy by ordinary appeal and (2) that the trial court has clearly abused discretion. --Mandamus means "we order" --Typically issued by appeals judge against trial court judge. If you are seeking mandamus, you ask appeals court to stay/abate trial court's TRO and to issue the writ of mandamus after you go thru the procedural aspects of a mandamus proceeding Or, defendant can move to dissolve the TRO at the trial court level.

Two scenarios of consolidation:

1) merger of actions into one action under one docket number 2) joint hearing or trial without merger Suits filed separately may be consolidated by order of the court on the motion of any party or on the court's own initiative at any stage of the action before submission to the jury (or to the court if the trial is without a jury) on terms that are just.

Interim Relief: Before Proving Merits; Constitutional Prerequisites to Issuance of Writ All of these requirements came out of USSCt cases listed on p.74 in order to not deprive debtor of due process. Procedural safeguards. Prior to these cases you didn't have to have a pending lawsuit or put up a bond, etc. But US SCt said these 6 procedural steps are essential to avoid depriving the defendant of due process in issuing one of these writs *MUST KNOW THESE SIX PROCEDURES TO GET A WRIT*

1) must *file pending lawsuit supported by affidavit proof* asserting proper grounds for writ 2) must have *evidentiary hearing* before a judicial officer 3) must *show proof at hearing* to establish grounds for issuance of writ of sequestration, attachment, or garnishment (may be ex parte) -EX: show that a Debt owed, Debtor's property about to be removed/destroyed/secreted. -In other words, the D is trying to make himself judgment proof, so we need immediate seizure of that property, BEFORE a hearing on the merits. 4) creditor must post *bond* for sequestration, attachment, or garnishment 5) *debtor advised of rights* on Writ including right to early hearing on a motion to dissolve with burden of proof (BOP) on creditor to establish issuance was proper -Typically in bold print, 12-point font 6) *tort action in TX for wrongful issuance of writ* actual damages -punitive damages (if malice)

Monroe v. Gen. Motors Acceptance Corp., 573 S.W.2d 591, 592 (Tex. Civ. App.—Waco 1978) Typical sequestration case. FACTS: GMAC obtained a writ of sequestration of Defendant Monroe's car -What were the grounds supporting issuance of the writ and what proof established those grounds? -D agreed to pay, but failed to do so -D said he didn't have the money to pay and that they couldn't get the car (sounds like he is secreting (hiding) the car from creditors. "An automobile is a rapid depreciation chattel, and in the hands of defendant who did not making his payments" -*A car in use is grounds enough to support writ of sequestration*. A car is a rapidly depreciating asset. It is "wasting" away the property. This alone is sufficient grounds to support a writ of sequestration. APPLY THE 6 STEPS OF INTERIM RELIEF: The plaintiff makes out the proof that supports the issue of the writ by showing:

1) must file pending lawsuit supported by affidavit proof asserting proper grounds for writ HERE: sold the car to D with PMSI, here's the terms of the payment, here's the default 2) must have evidentiary hearing before a judicial officer 3) must show proof at hearing to establish grounds for issuance of writ of sequestration, attachment, or garnishment (may be ex parte) HERE: a car is a wasting property in the hands of a D that is not paying for it. 4) creditor must post bond for sequestration, attachment, or garnishment yes 5) debtor advised or rights on Writ including right to early hearing on a motion to dissolve with burden of proof (BOP) on creditor to establish issuance was proper Yes 6) tort action in TX for wrongful issuance of writ HERE: no basis to argue that writ was wrongfully issued.

When can you maintain a lawsuit against a nonresident corporation in TX based on general jx?

1) nonresident D is "essentially at home" 2) if nonresident D has PPB in TX 3) domestic corporations: place of incorporation; of course, domestic residents (corporations and people) are subject to TX

It's up to another *party* to file a motion to strike an intervention. Grounds for motion to strike intervention: (2)

1) not timely (there's no time certain by which you have to intervene, but if you intervene so late in the case where discovery is done and parties are ready for trial, TCt is likely to grant motion to strike the intervention, because it will delay or prejudice the existing parties.) 2) Person doesn't have a justiciable interest (if the original action had never been commenced, could intervenor (Hall) have brought the suit to recover for the original P's (Moffet's) injuries?)

Rule 174 - Consolidation; Separate Trials, Tex. R. Civ. P. 174 (a)Consolidation. When actions involving a common question of law or fact are pending before the court, it may

1) order a joint hearing or trial of any or all the matters in issue in the actions; 2) it may order all the actions consolidated; and 3) it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b)Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

An original answer may include the following: (8)

1) special appearance motion 2) motion to transfer 3) special exception 4) plea in abatement or to the jurisdiction 5) general denial 6) special denials 7) any matter in avoidance or estoppel 8) inferential rebuttal defenses

TX state judges don't take up as many things on written submission as federal judges: Why? (3)

1) state courts don't get law clerks like federal courts (don't have the budget) 2) judiciary is totally elected, so judges want face-time with lawyers (lawyers support the judges campaigns; JP courts - get contributions from landlords). 3) there are a lot of motions that get filed that get worked out by lawyers between themselves. -TX courts are courts of general jx, their dockets tend to be much fuller than federal court dockets. -TX judges are taught that don't read everything unless you are sure that the parties need a ruling.

In what ways does the FNC statutory regime (covering wrongful death and personal injury cases) differ from the common law doctrine?

1) statute mandates that the court look at the factors that are in the statute; requires that the court dismiss if those factors are established in the D's favor. 2) the time period is different. In statutory cases, there's a time certain: FNC must be filed not later than 180 days after the time required for filing a motion to transfer venue of the claim or actions (thought the court has discretion to grant an extension). Under the common law, you can raise it in a reasonable amount of time. Sooner is better than later, but there's no time certain by which you would waive. 3) If a personal injury or wrongful death (and thus statutory) claim, and the plaintiff is a Texan (or there's a derivative; someone suing on behalf of a Texan), the court should NOT grant a plea of FNC. Recognition that Texans should be able to sue in Texas (assuming PJ is valid over nonresident D)

Can use any applicable long arm statute. But they all implicate both: ...

1) substantive due process = international shoe: does that have sufficient contacts and is it far? 2) procedural due process = how do you go about getting that nonresident D before the court? Service of process.

Traditional Summary judgment for a defendant is proper only when

1) the defendant negates at least one element of each of the plaintiff's theories of recovery, or 2) pleads and conclusively establishes each element of an affirmative defense.

Using a request for disclosure, the requesting party may discover the following info regarding a retained testifying expert:

1) the expert's name, address, and phone number 2) the subject matter on which the expert will testify 3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them 4) 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 expert's testimony 5) the expert's current resume and bibliography In additional, a party may obtain discovery concerning the subject matter on which the expert is expected to testify, the expert's mental impressions and opinions, the facts known to the expert that relate to or form the basis of the testifying expert's mental impressions and opinions, and other discoverable matters.

Motion for New Trial following Summary Judgment: TXSC reviewed the denial of a MNT following summary judgment in Carpenter. The nonmovant had notice of the hearing and discovered its failure to respond before the hearing. The Court held that under those circumstances, a motion to allow a late-filed summary judgment response should be granted when the litigant establishes good cause for failure to timely respond by showing: (2)

1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and 2) allowing the late response will not cause undue delay or otherwise injure the party seeking summary judgment. The TCT's ruling denying leave to file a late response was not held to be an abuse of discretion as the non-moving party offered no explanation for the failure to timely respond.

Under Tex. R. Civ. P. 63 and 66 a trial court has no discretion to refuse an amendment unless: (2)

1) the opposing party presents evidence of surprise or prejudice, or 2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. The burden of showing prejudice or surprise rests on the party resisting the amendment.

In determining what kind of sanction to apply under TRCP 215, the court should consider:

1) the severity of the violation, 2) its impact on the litigation 3) the degree of fault underlying the violation, and 4) the need to deter litigants from violating the disco rules Courts continually stress that disco sanctions must be supported by evidence showing why the dollar amount is appropriate. Community service was assigned by a court to one lawyer as a sanction, which the TXSC described as "creative"

Expert testimony, however, may establish a fact conclusively for summary judgment purposes if: (3)

1) the subject matter is such that the trier of fact must be guided solely by the opinion testimony of experts; I.e. a fact lay persons can't establish without expert assistance, such as standard of care for professionals 2) the testimony is clear, positive, and direct, free from contradictions and inconsistencies; and 3) the evidence is uncontroverted but could have been readily converted.

Rule 40 Permissive Joinder All persons may be joined in one action as DEFENDANTS if

1) there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences AND 2) if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Proper venue means: (2)

1) venue required by mandatory provisions, OR 2) general rule or permissive exceptions

OVERALL VENUE PRINCIPAL IN TEXAS: 15.001 "Proper Venue" means:

1) venue required by mandatory venue statutes, OR 2) if there is no mandatory venue provision, then the general rule or permissive provision

Pragmatic approach to res judicata:

1) what was adjudicated in the 1st suit? 2) is the COA in suit #2 transactionally related to Suit #1, applying the "logically related" test?

McCamey v. Kinnear, (Tex. Civ. App.—Beaumont 1972) FACTS: Plaintiff client appealed the judgment of dismissal of his suit to recover attorney fees and other expenses incurred by reason of the alleged inaction of defendant attorney. Didn't respond to special exception after 20 months and 3 trial settings. TRCP 91 Special exceptions must be written, identify the pleading you are excepting to and state with particularity and intelligibly the defect. Here, this was just a broadside attack that was not sufficiently specific. COURT:

1) you should have amended promptly, you didn't, therefore we're taking that as the same as a refusal to amend. The court could dismiss, but .... 2) the court shouldn't have dismissed because the special exceptions were defective. HELD: The court reversed and remanded. The court held that that the trial court erred when it sustained the special exceptions, and therefore erred when it dismissed the case. The court held that the special exceptions did not comply with Tex. R. Civ. P. 91 because even a cursory examination of the allegations attacked showed that in each instance the exception was without merit. The exception quoted was simply a broadside attack and did not point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to. Thus, the exceptions were a general demurrer in legal disguise that was forbidden by Tex. R. Civ. P. 90. The court held that plaintiff's original petition fairly and adequately advised defendant of the nature of the cause of action asserted against him, so it was error to dismiss the action. The court rebuked plaintiff for his inaction below.

Adequacy Of Class Counsel Representation Class counsel "must fairly and adequately represent the interest of the class." Factors looked at in the certification hearing to see if the attorney is adequate:

1)Time spent investigating claims, 2) experience with class actions/complex litigation, knowledge of the law, 3) resources counsel will commit to representation (EX: will likely require experts)

Remember that former testimony exception only applies if declarant is "unavailable" 5 grounds of "unavailability"

1. A privilege applies 2. Declarant refuses to testify despite court order 3. Declarant can't remember 4. Declarant is unable to testify because of death or illness 5. Declarant is absent and the proponent of the declarant's statement can't get declarant to attend ----Forfeiture by wrongdoing

Third party action for indemnity; can be based on

1. Agency relationship between the third-party plaintiff and third-party defendant; or 2. A statutory right to indemnity

Which court has subject matter jurisdiction? SMJ of Texas Courts is complicated because it's political. Courts like to have authority, which is what jx is all about - authority of the court to act. Factors: (3)

1. Amount in Controversy (excluding interest) 2. Subject of the Case (e.g., probate, family law, deed restrictions) 3. Applicable Statutes (County courts at law) If a CCL (SCC) must look at statutes.

Law of the Case Doctrine Exceptions:

1. Appellate court is free to reverse a lower court's improper legal conclusion. 2. Appellate court may treat its previous ruling (on appeal after remand) as not binding if it believes the determination is clearly erroneous. EX: between the first appeal to the appeals court, it goes up to the TXSC which decides that legal question differently, so now the TXSC view controls and the appeals court previous ruling is clearly erroneous Policy: intended to achieve uniformity by narrowing the issues in later stages of litigation

Defendant's Answer Primary functions of Answer (2)

1. Avoid default judgment; controvert the adverse party's allegations 2. Set forth the defendant's grounds of defense in plain and concise language (notice) Can include special exceptions in Answer or file special exceptions separately. Usually filed together: list special exceptions, then subject to the court's ruling on those, we generally deny.

Settling Class Actions 4 conditions must be met before settlement of a class action to protect unnamed class members from an unjust settlement

1. Court must approve any settlement 2. Notice given to all members of the material terms of the settlement together with an explanation of when and how members may elect to be excluded from the class. It must also include maximum amount of attorney's fees counsel seeks and method of calculation. 3. Court holds a hearing on any settlement that would bind class members 4. Court finds the settlement would be fair reasonable, and adequate (6 factors)

Trade Secrets-Qualified Privilege Qualified privilege - it can be pierced. Purpose: to protect proprietary info 6 factor test to determine whether information qualifies as a trade secret:

1. Extent to which info is known outside of that business 2. Extent to which it is known by employees and others involved in the business 3. Extent of the measures taken to guard the secrecy of the info 4. Value of the info to holder and their competitors 5. Amount of effort or money expended in developing the information 6. Ease or difficulty with which the info could be properly acquired or duplicated by others Parties will often stipulate something is a trade secret, then the question becomes should they have to reveal the privilege

Generally, there are three ways to waive a privilege:

1. Failing to timely claim the privilege 2. Offensive use; AND 3. Inadvertent disclosure Claim of privilege is NOT defeated by an erroneous disclosure, or if disclosure was made without an opportunity to claim the privilege .

Which county is case transferred to? Rule 259: The trial court, should it determine an impartial trial cannot be had in the county, must transfer to a county of proper venue if one is available (3)

1. First, court will look for an adjoining county with proper venue to transfer case. 2. If there is no adjoining county of proper venue, then transfer to any county of proper venue. 3. If the county where suit was brought was the only county where suit was proper (i.e., steps 1 and 2 do not apply), only then may the court transfer to an adjoining county even if it isn't proper under general venue rules. Rare in Harris County because we have a very large jury pool. You're never going to win a MTTV based on inability to get an impartial trial in Harris County. We can guarantee you 12 ignorant people that don't care about your case. This one only really happens in small counties.

Pleading a "cause of action" Basic requirements:

1. Identify the legal theories the suit is based on; and 2. Specifically allege facts corresponding to each element of that theory Must be "sufficient to give fair notice of the claim involved" Test: whether an opposing attorney of reasonable competence could look at the petition and ascertain the nature and basic issues of the controversy and the testimony which will probably be relevant A petition need not lay out all supporting evidence to be sufficient to support a default judgment. However, Rule 90 requiring special exceptions or waiver of pleading defects does not apply to default judgments. Petition shall contain a statement in plain and concise language of the P's COA and shall give fair notice of the claim involved. It must also appear from the face of a petition that a primary legal right rests in the P, that there is a primary legal duty connected with this right resting on the defendant, and that there has been a breach of this duty by the D.

Items Not Protected As Work Product (6)

1. Information discoverable under rule 192.3 and 192.5, 195.5 concerning expert witnesses, trial witnesses, witness statements, and contentions 2. Trial exhibits 3. The name, address, and telephone number of any potential party or any person with knowledge of relevant facts 4. Any photograph or electronic image of underlying facts or a photograph or electronic image of any sort that a party intends to offer into evidence 5. Any work product created under circumstances within an exception to the attorney-client privilege under the evidence rules (VERY limited, ex. Crime fraud exception) 6. Witness statements meeting definition in TRCP 192.3(h)

Required Disclosures Cases filed AFTER January 1, 2021 (TRCP 194, 195) *As to cases filed on or after January 1, 2021, requests for disclosures have been replaced with required disclosures that must be made by parties without the necessity of a request*. There are three different types of disclosures each having their own deadline for making the disclosure.

1. Initial Disclosures (TRCP 194.2) 2. Expert Disclosures (TRCP 194.3/ TRCP 195) 3. Pretrial Disclosures (TRCP 194.4)

HOWEVER, per Govt. Code 25.0003, *Statutory County Courts* (AKA CCL) DO NOT include the following in AIC calculations:

1. Interest sought 2. Statutory / punitive damages and penalties sought 3. Attorney's fees / costs sought *This is the general rule, it can be modified by the specific creating statute. Remember, expedited trial rules in TRCP 169 govern actions $250k or less. But since the above amounts are not included in the AIM, the actual value of the case could be well above $250k

Signature on a discovery notice, response, or objection is a certification to the court that "to the best of the signer's knowledge information and belief. . ." the item: (4)

1. Is consistent with the rules and warranted by existing law or a good faith argument for the change of existing law 2. Has a good faith factual basis 3. Is not interposed for any improper use, e.g., harassment 4. Is not unreasonable or unduly burdensome or expensive

Elements of the Compulsory Counterclaim, Rule 97 A counterclaim is compulsory under TRCP 97 if: (6)

1. It is within the subject matter jurisdiction of the court; 2. It is NOT the subject of a pending action at the time of filing the answer 3. The claim is mature and owned by the defendant at the time of filing of the answer 4. It arose out of the same transaction or occurrence that is the subject matter of the opposing party's claim 5. It is against an opposing party in the same capacity (EX: as agent or as individual, etc.); and 6. It does not require the presence of third parties over whom the court cannot acquire jurisdiction

Court must order pre-suit deposition if either

1. It may prevent a failure or delay of justice in an anticipated suit; OR 2. The likely benefit of allowing the deposition outweighs the burden or expense of the procedure Court may restrict or prohibit use to protect those without notice from unfair prejudice.

If after one plaintiff establishes venue, but other Ps can't independently establish venue, the other Ps can only stay in that lawsuit if they satisfy the 4 factor exception. If not, lawsuit will be severed 4 factor exception (15.003). Only applies when you've got multiple Ps, 1 plaintiff establishes venue, but the other plaintiff can't. To avoid severance, second Plaintiff must show: (4)

1. Joinder or intervention in the suit by that P is proper under TRCP; 2. Maintaining venue as to that P does not unfairly prejudice another party to the suit; 3. There is an *essential need* [i.e., indispensably necessary] to have that P's claim tried in the county where suit has been brought; AND 4. The county in which the suit is pending is a fair and convenient venue for that P and all persons against whom the suit is brought, #3 is the killer, because it is very difficult. Only one case Carlson knows of that succeeded. EX: Key witnesses wouldn't be subject to subpoena power in the other venue because more than 150 miles away from county of suit. County can't compel at trial. This shows an essential need

Transfer of venue based on convenience Relative new (2005): allows for a transfer of venue based on convenience. For convenience of the parties/witnesses. . . a court may transfer an action from a county of permissive venue to any other county of proper venue on motion of a DEFENDANT IF:

1. Keeping the action in the county works an injustice to the movant considering economic and personal hardship of the movant 2. Balance of interests of all parties predominates in favor of transfer; AND 3. Will not result in injustice to any other party How do you prove this? Looks at the balance of interest of all parties. Because the plaintiff can initially choose where to file suit, only the defendant can move for transfer based on convenience *different from federal version*

FORMAL Specialized pleading and proof requirements for P:

1. Names and residences 2. Description of the premises 3. The interest which the P claims in the premises 4. That P was in possession or entitled to possession 5. That D entered upon and dispossessed P of the premises 6. Facts showing rents/profits/damages 7. A prayer for relief *FOR D in TTTT: Plea of "not guilty" - very unusual on civil side*. D may file plea of not guilty: says D is not responsible for the injury complained of, BUT is an admission by the D that he/she was in possession of the premises sued for, or that the D claimed title at the time of commencing the action, Relieves the D of pleading affirmative defenses except for latent ambiguity and title by limitations (adverse possession) Very important to plead not guilty - requires P to plead the strength of their title, and if they don't then the court can move to D and consider whether D has the stronger title. *All Carlson wants you to remember in TTTT: D pleads not guilty (and now I have to look up the rule or find an expert on this specialized field of practice)*

To "pierce the corporate veil" (treat as the same company and impute contacts) for jurisdictional purposes:

1. Parent must control the internal business operations of the subsidiary. 2. degree of control must be greater than that normally associated with common ownership; 3. Should be treated as one company in the interests of justice .

Pleading requirements: sworn account petitions

1. Plead why the claim is within the coverage of the rule (prior slide) 2. Give fair notice of its content, i.e. specifics of the transaction 3. Allegation that a systematic record of sales, services, charges, credits, and description of item provided and the charges and payments made has been kept 4. Party must support with affidavit (or legal equivalent) "to the effect "the account is just true and owing, all just and lawful offsets, payments and credits have been allowed." D ANSWER: Effect of rule 185 is to place the burden of proof on the opposing party to deny the existence of the sworn account with specificity and under oath. Defendant admits to the existence of the account absent this sworn/verified denial. (The D is not prevented from raising an affirmative defense ) Once a P files a sworn account, if the D only files a general denial, then the P's pleading is taken as true regarding the sworn account. If the D makes a sworn/verified denial, then the sworn account is put in issue in the case. Page 452 - sample sworn account pleading

Process of obtaining a TRO is complex. Broadly involves Four Steps:

1. Preparing of papers and payment of fees (a bond fee) 2. Filing of pleading, application for TRO, TRO Order 3. Hearing (before the court) 4. Service on the Defendant (Petition, TRO Order), assuming court grants TRO

Elements of Interpleader: a party is discharged through interpleader if:

1. Reasonable grounds to anticipate rival claims to the same property 2. Has not unreasonably delayed filing the interpleader action and 3. Has unconditionally tendered the funds to the court and requested court to resolve dispute

Forms of discovery: (6)

1. Requests for disclosure (Required disclosures for cases filed on or after 1-1-2021) --Have to be careful as to when cases were filed. 2. Requests for production and inspection and for entry on land 3. Interrogatories to a party; 4. Requests for admission; 5. Oral or written depositions; and 6. Motions for mental or physical examinations

Elements of Res Judicata

1. Same parties (or in privity with a party) in both suits; 2. Final judgment in suit #1 (by a court of competent jurisdiction); and, 3. Same claim or transactionally related claim (logical relationship test) asserted suit 2

Contents Of A 91a Motion To Dismiss For Baseless Cause Of Action (3)

1. State the motion is made pursuant to Civil Procedure Rule 91a 2. Identify each cause of action to which it is addressed 3. State specifically the reasons the cause of action has no basis in law, no basis in fact, or both (only have to prove one, but can do both)

Motions for Physical or Mental Examination Discovery is usually done without court supervision, but this is an exception. But a physical/mental exam is very invasive, and thus requires a court order. This discovery tool requires a court order. Must show (2)

1. The *party's mental or physical condition is in controversy*, and ---Simply alleging mental anguish/emotional distress does not place their condition "in controversy" 2. There is *good cause shown*: a. Examination is relevant to issues genuinely in controversy b. Reasonable nexus between the condition and the examination c. Not possible to obtain information through less intrusive means Courts don't want to do this; usually parties will provide medical records when they are in controversy and examining doctor is brought to testify It is very unusual to have these exams ordered

Fair notice standard of pleading: must contain statement in plain and concise language of

1. The P's substantive cause of action; AND 2. Sufficient to give fair notice of the claim involved - TEST: whether an opposing attorney of reasonable competence could, looking at the pleading, ascertain the nature and basic issues of the controversy and the testimony that will probably be relevant.

Persons may join claims as multiple plaintiffs or bring claims against multiple defendants when : (2)

1. The claims arise out of the same transaction, occurrence, or series of transactions/occurrences 2. Common question of law or fact common to all parties joined Logical relationship test is used to determine whether a claim arises out of the same "transaction, occurrence, or series of transactions or occurrences."

Use of Depositions at Hearings or Trials, Same Proceeding Depositions may be used in the same proceeding in which it was taken Depositions are admissible against a party JOINED AFTER THE DEPOSITION IS TAKEN only if EITHER: (2)

1. The deposition is admissible under the former testimony exception to the hearsay rule, or 2. The party has had a reasonable opportunity to re-depose the witness and has failed to do so.

ISSUE PRECLUSION (COLLATERAL ESTOPPEL) Basic elements:

1. The facts sought to be litigated in the second action were fully and fairly litigated in the first action; 2. Those facts were essential to the judgment in the first action; 3. The parties were cast as adversaries in the first action, AND 4. The party against whom the doctrine is asserted was a party to the first action. If all of the above are met, the factual determination from Suit #1 will be binding on the party in Suit #2 Some of the same policy justifications apply as in res judicata

Elements: a party waives a privilege by offensive use if:

1. The party asserting the privilege seeks affirmative relief: 2. The privileged info, if believed, in all probability would be outcome determinative; AND, 3. Disclosure of the privileged information is the only means by which the aggrieved party may obtain the evidence. Privilege is a SHIELD not a SWORD: can't create a situation where the info is relevant, and then claim privilege

CHAPTER 10.001, CPRC: When a lawyer signs a pleading, they certify that to their "best knowledge, information, and belief, formed after reasonable inquiry" (4)

1. The pleading is not presented for an improper purpose, e.g., harassment, unnecessary delay 2. All allegations are warranted by existing law, OR by a nonfrivolous argument for a change in the law 3. each allegation of fact has, or is likely to have, evidentiary support; AND 4. Each denial of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief No intent requirement for lawyers to be sanctioned for frivolous pleadings "formed after reasonable inquiry" - what does this mean? Does this mean that have lawyers have to independently investigate the facts, or can you take client's word for it?

A party that doesn't timely amend/supplement is precluded from introducing that evidence at trial over objection, unless: (2)

1. There was good cause for the failure to do so; OR 2. The failure to timely amend/supplement will not unfairly surprise/prejudice the other parties EX: you told them about it, they knew about it, so they're not surprised this witness is testifying

Parties Bound by Prior Adjudication Sometimes a person not actually a party to lawsuit #1 can be bound because of the very close relationship to someone who was a party (i.e., they were "in privity") What counts as "in privity?" FACTORS TEST: The party to be bound:

1. Was able to control the lawsuit; 2. Had a beneficial interest in recovery in the lawsuit;. Or, 3. Was a successor in interest deriving their claim through a party to the prior action. Was Ms. Benson bound by Suit 1 as she originally filed in that suit but then took a non-suit? NO (no day in court) and not a party to the judgment. Nonsuit is without prejudice. Was Mrs. Benson in privity with Porter? Why or why not? None of the three factors applied.

Party's attorney must sign all discovery responses except:

1. When answers are based on info obtained from other persons, the party may so state; and 2. Interrogatories about persons with relevant knowledge can be signed by an agent If you don't impose your objections by the time your response is due, you waive them. Attorney's signature - you are certifying to court that it is a valid request, not overly burdensome, not for harassment, etc.

Generally can't appeal venue rule through an interlocutory appeal (AKA, immediate review of venue ruling not available). Must wait to appeal venue through normal appeal process if you lose. However, 15.003 issues ARE subject to immediate interlocutory review. Interlocutory appeals are permitted of 15.003 rulings to determine (2)

1. Whether a challenged plaintiff established proper venue; OR 2. Whether that plaintiff did or did not establish the 4 elements above

Substantial need/undue hardship: ordinary, non-core work product is subject to discovery IF the party seeking discovery shows:

1. a substantial need, and 2. Is unable without undue hardship to obtain the substantial equivalent by other means

The Privilege Log A party seeking discovery (who gets the withholding statement) may serve a written request that the withholding party identify the information and material withheld. TRCP 193.3(b) Within 15 days of that request, the withholding party must serve a response in the form of a privilege log that

1. describes the info or material withheld without revealing info itself; AND 2. asserts a specific privilege for each item withheld Note: This is not required for much of the attorney-client privilege (next slide)

JUSTICIABILITY & SUBJECT MATTER JURISDICTION There must be a justiciable "case or controversy"; otherwise the decision reached is an impermissible "advisory opinion." (barred on SOP grounds). Court MUST dismiss. What about declaratory judgments? Not advisory if:

1. if there is a real controversy between the parties; and 2. the controversy will actually be determined by the judicial declaration Then this is a "case or controversy" and the court may hear it. TXSC is also permitted to answer questions of law certified to it by any federal appellate court if that court is presented with determinative questions of Texas law on which there is no controlling TXSC precedent.

DECLARATORY JUDGMENT ALTERNATIVE TO TTTT You may be able to assert as alternative to tttt If you find yourself dealing with tttt, then look at declaratory judgment provisions, see if you prefer. Declaratory relief is available "in any proceeding

1. in which declaratory relief is sought; and 2. a judgment or decree will terminate the controversy or remove an uncertainty" Only available when sole issue is the determination of the boundary line

The "Minimum Contacts Doctrine" is the current test for Personal Jurisdiction; from International Shoe v. WA (1945) - in today's world it is not as burdensom as in Pennoyer Non-resident Defendant must have: (2)

1. minimum contacts 2. The exercise of jurisdiction over the non-resident defendant cannot offend notions of fair play and substantial justice D must purposely avail itself of the privilege of conducting activities within the forum state.

IF at least 3 ot the 5 members of the MDL panel agree in a written order that:

1. similar cases should be transferred to a MDL court, 2. that transfer will be for the convenience of the parties and witnesses and 3. will promote the just and efficient conduct of the related cases, Then the MDL panel may order transfer. Also applies to "tag a long" cases later filed. No further action in original trial court until pretrial court remands the case for trial. Cases assigned to the pretrial court, if they survive pre-trial/summary judgment, are transferred back to the court in the county where the case was originally filed for trial on the merits. Generally, the trial court cannot change rulings of the pre-trial judge without written approval. The MDL judge is hand-picked by the chief justice of the TXSC.

Withdrawing Admissions, Summary Judgment, and Waiver The court may permit the party to withdraw or amend the (express or deemed) admission if:

1. the party shows *good cause* for the withdrawal or amendment; and 2. the court finds that the parties relying upon the responses will *not be unduly prejudiced* and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.

Alternative Methods/Substituted Service-TRCP 106 (b) Tried to serve the D in person or via the mail but were unsuccessful, so we've got to go to court on a written motion. The Motion for Substituted Service MUST: (3)

1.Be sworn to before a notary or made under penalty of perjury 2.State usual location of business, home, or other place where D is likely to be found 3.State specific facts showing that service was properly attempted by personal service or mail but was unsuccessful --Someone with personal knowledge must swear in an affidavit that they tried to serve D via mail & in person, but couldn't because.....[list specific facts] --Also need affidavit of someone with personal knowledge who knows a location where the D can likely be found. Probably someone other than the process server. *Cases hold*: TCt should not sign an order authorizing alternate service without hearing and considering evidence that it was impractical to obtain personal service. A record of the hearing should be made

General Venue Rule: except as otherwise provided . . . All lawsuits shall be brought:

1.In the county where all/substantial part of the events or omissions giving rise to the claim occurred; 2.In the county of defendant's residence at the time the cause of action accrued if defendant is a natural person; 3.In the county of the defendant's principal office in this state, if the defendant is not a natural person (e.g. a corporation) 4.If the above do not apply [i.e., there is no county in Texas in which venue is proper under the general rule or exceptions], in the county in which the plaintiff resided at the time of the accrual of the cause of action. (rare)

Serving the SOS The SOS becomes a non-resident's agent for service if (4)

1.The Defendant was required to designate a registered agent for service but did not do so; or 2.The Defendant has appointed a registered agent for service in Texas and two attempts to serve that person on different business days have failed; or 3.The D becomes a nonresident after the cause of action accrues but before the suit is filed; or 4.The nonresident engages in business in Texas and is not required to maintain an agent for service of process and does not maintain a regular place of business with a person in charge ***Have to serve "person in charge" or agent before you try to serve SOS

One way by which cases are disposed of without a trial on the merits is when there is a judgment by default. There are three types of judgments similar to each other and to which the term "default judgment" has been applied by Texas courts:

1.True Default Judgment. 2. Nihil Dicit Judgment. 3. A failure to appear at trial

However you attempt service, Proof of service must be on file for ______ days before a default judgment can be granted (exclusive of the day of filing and the day default judgment signed)

10

The parties have ___ days after receipt of the notice that the case is being referred to ADR to file a written objection.

10 If the court finds a reasonable basis exists for an objection, the ADR referral may not be used (it usually does). If not, the parties must participate in the ADR procedure.

If seeking production from non-party without a deposition, must give notice to all parties at least ____ days before subpoena is served.

10 So effectively you've got to be 40 days out before the disco period ends to make request.

16.009. Persons Furnishing Construction or Repair of Improvements

10 years statute of repose (from completion of improvements) Applies to actions for injury, damage, loss to real or personal property; personal injury; wrongful death; contribution; or indemnity If claimant presents written claim for damages, contribution, or indemnity to above persons within 10 year limitations period, the period is extended for two years from the day the claim is presented. This section does not bar an action if 1) contract expressly provides for longer period 2) against a person in actual possession or control of the real property at the time that the damage, injury, or death occurs, or 3) based on wilful misconduct or fraudulent concealment

TRCP 99 - a D is required to file a written Answer in DCt and CC by

10am on the Monday next after 20 days from the day of service. EX: take day of service, go forward 20 days, if it lands on Tuesday, your Answer day is the next Monday by 10am.

interpleader Venue requirements -

15.005 applies to interpleader Ds. Issue would be whether the claims arose out of the same T/O, or series of T/Os. If you come in later as an interpleader D, Venue proper to one D is proper to all Ds.

Cannot require a non-party to travel more than

150 miles from where they reside, either to produce documents or get depos CAN go to where they live.

Objections to Other Irregularities Before Trial Time limits also apply to the right to challenge the accuracy of the depo transcript and other irregularities. The party waives the right to make changes to the transcript if she does not do so within

20 days of the date the transcript was provided to her attorney. A party may object to any errors and irregularities in the manner in which the testimony is transcribed, signed, delivered, etc. by filing a motion to suppress all or part of the depo; must do so before trial commences to preserve objections.

Most motions you need to give notice at 3 days, Harris County says 10 days. But for MSJ, you get at least ____ days because parties may have to do disco and need time to prepare responses.

21

SUMMARY JUDGMENTS (Rule 166a) (c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least ____ days before the time specified for hearing. Except on leave of court, the adverse party, not later than ______ days prior to the day of hearing may file and serve opposing affidavits or other written response. *No oral testimony shall be received at the hearing*.

21; 7

INITIAL DISCLOSURES TRCP 194.2 Initial disclosure must be made at or within _____ days after the filing of the first Answer unless a different time is set by the parties' agreement or court order.

30 *What if you are a latter-added party?* Within 30 days of being joined A party that is first served or otherwise joined after the filing of the first answer must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties' agreement or court order. The court can always enter an order to change up the time frames. Also parties can agree to change.

The RESPONSE, THE REPLY & THE RULING Defendant files the MTTV, P files a Response, then D has a chance to Reply. Plaintiff will want to file a Response In Opposition to Defendant's Motion to Transfer Venue. It must be filed no later than ___ days before the MTTV hearing.

30 In other words, the P has at least 15 days to respond (since the D must give 45 days notice, minus 30 days notice required for the P)

Time To File Declaration: Rule 167.2 (a) allows the declaration to be filed not later than ___ days before the case is set for a conventional trial on the merits.

45 Rule 167 affords the trial court discretion to amend this time limit on motion and for good cause.

Defendant must request a hearing and give each party at least ___ days notice (for rule 86 MTTV) of the hearing on the Motion to Transfer.

45 Usually a litigant has to give at least 3 days notice before they have hearing on a motion they file that is not in the context of a court proceeding (EX: continuance). But with MTTV, they must give 45 days notice. Why? Rule 86 provides for the parties to take discovery (depositions, interrogatories) to flesh out facts/proof on where venue is proper. So a D calls to the clerk and asks for a hearing (make sure you count your 45 days before you call the clerk), and requests hearing on a MTTV after a particular date.

Conduct During Oral Depositions TRCP 199.5 Each side cannot question any witness for more than

6 hours

Time limits on oral depositions

6 hours per side for each individual witness (subject to limit on total hours of depositions based on discovery level control plan. See TRCP 190)

Designation of an *unnamed* RTP must be made no later than

60 days after the filing of the D's answer.

Designation of a *named* RTP is to be made on or before the ____, although the trial judge has discretion to allow a later filing for good cause.

60th day before the trial date

State judges DO have to give notice of date by which judge decides MSJ on written submission. Has to give at least ___ days notice.

7

Amended pleadings A summary judgment is a trial, albeit a paper trial without live testimony. Can culminate in a judgment that is res judicata. Thus the rules requiring leave of court to amend pleadings filed within _____ days of trial (the summary judgment hearing) apply.

7 Must get permission of the court to file within 7 days.

What is the time frame to file amended pleadings?

7 days or earlier of trial. If amendment is not timely made, i.e., it is filed within 7 days (or whatever date set by scheduling order) of the trial or during the trial or at a later date than that imposed by the trial court by a pretrial scheduling order, then leave of court (permission) is needed. Scheduling order could require a much earlier date than 7 days.

Number of ROGS in Level 1:

< 15 each: interrogatories, requests for production, request for admissions (same after 2021)

Interrelated Entities: Substance vs. Procedure The substantive law regarding imputed contacts and "veil piercing" for *liabilities purposes is not identical to jx purposes.*

A corporation is only liable to extent of its assets unless you pierce corporate veil through an alter ego theory Entities are often formed for purposes of limiting liability. If you have one part of the biz that is doing something really risky, you don't want it to bring the whole company down, so you separate into different entities. Have to keep separate so the acts of one aren't imputed to the other.

Statutory Probate Court:

A court created by the legislature and designated as a statutory probate court under Chapter 25, Government Code. (These exist in 11 larger counties in Texas) Created and designated as a SPC under the Govt Code. We have them in Harris County (SPC). If you have SPC, it has exclusive jx to hear probate matters. Tend to exist in the larger counties.

USSCT: To say that a court "must" dismiss in the absence of an indispensable party and that it "cannot proceed" without him, puts the matter the wrong way around:

A court does not know whether a particular person is indispensable until it has examined the situation to determine whether it can proceed without him.

NOTE 2: Consequences of Successful Prosecution of Claim -

A number of workers' comp cases have held that the prosecution of a claim in proceeding before the Workers' Comp Commission (WCC) on one theory and resulting in an award of benefits accepted by the claimant constitutes an election of remedies that bars relitigation on a different theory or for a different measure of damages. Unlike Bocanegra, these cases went to judgment in suit 1 rather than settlement, so we don't have a final judgment in Bocanegra in suit 1; and it's the judgment that forms the basis for estoppel/res judicata. Can assert those doctrines.

Multi-District Litigation (MDL)

A panel of judges designated by the TXSC to determine what cases are appropriate to consolidate for pretrial purposes only-cases with common questions of fact. If so, the MDLF panel appoints a pre-trial court. If panel determines cases are appropriate for MDL, those cases are assigned to a pretrial court and are transferred from the courts they were original filed in. *MDL pretrial courts do not conduct the trial on the merits.* If a case survives pretrial (including a motion for summary judgment / other dispositive motion), it is transferred back to the original trial court that had jx and where venue is proper to conduct the trial. *Purpose*: if there are a lot of cases throughout the state that involve the same issue, why don't we consolidate them before one trial court to determine pretrial matters. EX: asbestos, breast-implants, silicosis. Anything that has common issues of fact and law Relatively new to TX (2003); but in federal courts for a long time. -In federal court, you have to choose among the plaintiffs who will be the representative. A little weird, work on a "team" basis. -As long as there's no COI, one trial lawyer representing one party takes the lead. -If there's a COI, the individual attorney can weigh in In Texas, didn't have MDL because people felt very strongly about which judge they wanted for their case. Could file a "plea of privilege" to have your case heard in a particular venue. So you couldn't consolidate; force litigants to move their cases to a new county if they didn't want to. -But in 2003 (the year of massive tort reform, HB 4), one of the things that came out of that was MDL Texas Rule of Judicial Administrative 6 -Want to check this if you ever get an MDL for particular procedures -Chief Justice of the TXSC can appoint 5 persons who are sitting judges to an MDL panel, whose job is to determine what cases are appropriate to consolidate for pretrial purposes. -MUST HAVE COMMON QUESTIONS OF FACT -A party or a court can ask for the MDL panel to assign it as an MDL; or the panel on its own can decide to give MDL treatment. -So you file your case in court with proper venue, and if there's an MDL order from the MDL panel all of your pretrial takes place in that MDL pretrial court. That MDL court might only hear MDL stuff. EX: Judge Davidson was forever hearing asbestos litigation. Whether you filed case in Beaumont, El Paso, wherever, they go to that particular court for pretrial proceedings. However, the cases are transferred back for trial (assuming they survive MSJ, etc.) to the court they were originally filed in.

Alternative claims

A party may plead inconsistent facts and seek alternative remedies (Ex. Contract formed suing for breach vs no contract seeking recovery in quantum meruitt)

WHEN may a party move for a traditional summary judgment?

A party seeking to recover on a claim (including a counterclaim, cross claim or third party claim) may at *any time after the adverse party has appeared or answered*, move for a traditional summary judgment. EX: res judicata defense - you want to do right of the gate. Don't want to waste time on disco, etc. So MSJs tend to happen early.

One satisfaction rule

A plaintiff is not permitted to recover twice where differing theories of recovery are alleged to have caused the same injury

Self-Help Repossession by Secured Party

A secured party, on default by the debtor on the underlying obligation, has the right to take possession of the collateral. -This may be done without judicial process if it can be done without breaching the peace. -If the SA provides, the D may be required to assemble collateral and make it available to the SP -SP also has the right, without removal, to render equipment unusable, and may dispose of collateral on the debtor's premises.

Client Counseling - assume that, in the context of a bitter dispute, your client is considering sequestration of goods sold to a consumer-debtor. Any cautionary advice?

A seller of goods should have retained a SI, so they have a right to self-help repo or sequestration upon default. Want to make sure they have the superior right to possession, so we don't have the artisan's lien problem. Tell client that this process is NOT free: have to post a bond, and thus pay a bond premium. Advise client that if sequestration is wrongful, debtor can get damages against the bond, and beyond if bond is insufficient. Might be subject to wrongful sequestration tort. So! Don't want to seek writ without thinking it through.

What Papers Do We Need for a TRO?

A. the petition B. the TRO itself C. retraining order bond D. filing fee

MSJs are Very common today. Wasn't common in the 1960s, but trials exploded, and summary judgment was one of the ways (along with _____ , ______, and ______ ) to try to deal with glut of cases.

ADR, expanded disco and expedited trials

NOTE 4: Plea to the jx CANNOT be used to force P to prove _____ at the beginning of the case.

AIC meets the SMJ of the court EX: You represent the D, the P has sued you and said that there's $20k in controversy, and you're in CCL. You don't think they really have $20 in damages. You would rather be in JP. Can you require thru a plea to the jx, the P to prove their damages at the beginning of the case? NO. Case law provides that the court takes the P's amount that is pled in good faith. For the D to defeat SMJ, they have to show that the P has fraudulently asserted an amount in controversy SOLELY to confer jx. Very difficult and rare for anyone to try to prove that.

County Constitutional Courts - basic SMJ.

AIM: $200.01-$20k (excluding interest) Jx Granted: Appeals from justice courts over $250; often probate (uncontested); all writs NO JX: -Slander or defamation; -enforcement of a lien on land; -escheat; -divorce; -forfeiture of a corporate charter; -trial of the right to property valued at $500 or more and levied on under a writ of execution, sequestration, or attachment; -suit for the recovery of land

District Courts - Basic SMJ

AIM: $500.01 and up (excluding interest) Jx Granted: Residual; see exclusions from other courts; specific grants N/A - residual, general jurisdiction

Rules of Construction in deciding MSJs:

All doubts as to the existence of a material fact are resolved against the movant, i.e., find fact questions which precludes summary judgment and would allow the evidentiary trial on the merits to proceed. Further, the evidence is to be viewed in the light most favorable to the non-movant in determining if there is a fact issue that precludes summary judgment.

When would you assert a privilege in response to a required disclosure?

All privileges can be asserted if applicable (except work product Significant change in 2021. Could have argued in the past some of this was work product.

Class Certification requires that you come up as a "trial plan" - need to supply the trial judge with a well-thought out plan that will pass muster at the appellate level. Why is a trial plan required?

Allows the appellate court to get a feel for whether trying the individual issues will take up most of the trial. Something new that came out of this case. Have to supply trial judge with a well-thought out trial plan that will past muster at appellate level. To make the huge number of claims and all the issues manageable.

Note 7: when do you need to disclose testifying experts?

Amended this year, Rule 195, 90 days before end of disco if seeking affirmative relief. If not seeking affirmative relief, 60 days before end of disco

16.065. Acknowledgment of Claim

An acknowledgment of the justness of a claim that appears to be barred by SOL is NOT admissible in evidence to defeat the SOL if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.

INTERPLEADER

An interpleader action allows a person who is merely holding property or funds subject to conflicting claims by adverse persons to deposit the property into the registry of the court and request the court determine who is entitled to the property, and then allow the interpleader to get out of the lawsuit. The purpose of the interpleader procedure is to relieve an innocent stakeholder of the vexation and expense of multiple litigation and the risk of multiple liability. Very valuable tool when you represent a client who has conflicting claims to funds (especially when the client doesn't have a claim themselves to the funds). EX: representing a Bank who has an account with divorced partners arguing over it, and judgment isn't clear EX: Earnest money downpayment. But there's a problem with the title. If there's bad title, buyer gets earnest money back; good title seller gets earnest money. Earnest money agent doesn't have a claim on money; but doesn't want to give it to the wrong person and suffer liability. Interpleader would be ideal for that. Earnest money holder can put money into the court, and then get out.

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, (Tex. 1991) FACTS: employee is killed working at Southern Clay plant in TX (TX entity), but the parent company of Southern Clay is English-China, which took out insurance with Guardian Royal to insure itself and all of its affiliates, including TX entity. Wrongful death case settles and another insurance company (US Fire) pays the settlement to the deceased employee's family in the wrongful death claim and then sues Guardian Royal Insurance (English company), arguing that Guardian Royal is the primary insurer, saying they should have paid. Guardian files a special appearance contesting PJ, arguing that there is not sufficient contacts with TX.

Analysis: *US Constitutional Requirements:* *1) minimum contacts* - The English insurance company had purposeful availment, did business for years with TX residents -Court says there are two factors that indicate what minimum contacts look like for insurance companies: 1) the insurer's awareness that it was responsible to cover the loss arising the in the forum state 2) the nature of the particular insurance contract and it's coverage HERE: clear that they purposefully availed themselves of TX by writing insurance contracts and collected premiums for years from TX subsidiary. Once you've established minimum contacts, must look at #2 *2) fair play and substantial justice (FPSJ)* - FACTORS - a lot of factors, but basically boils down to whether it is fair for TX to exercise PJ over nonresident. *Under Burger King, the factors are:* -Burden on nonresident D litigating a distant forum -Interests of TX -P interest in convenient and effect relief -Interstate judicial system's interest in efficient resolution of controversies (rare) -Shared interest of states in further fundamental substantive social policy As a practical matter, when you are arguing PJ, it basically boils down to 1) does the D have enough contacts?, and 2) is it fair to require that nonresident D to litigant here? *Court also looks at the increased burden when it is a non-US D. When international disputes are involved, also consider* -Procedural and substantive policies of other nations whose interests are affected -Federal govt interests in foreign relations -Etc. A lot of times it is quite difficult to know how the court will rule on these factors -Fairness is in the eye of the beholder. -Look for cases that are factually similar to yours and argue. -But it is fluid and hard to know. *HERE*: there are minimum contacts, but it could not comport with FPSJ to exercise PJ. -This is dispute between two non-TX insurance companies -No TX interest here, because the deceased TX resident's family has settled out. -So, NO PJ here. *Case stands for*: you have additional considerations of due process when trying to bring in a non-American D.

In re GE Co., 271 S.W.3d 681, 684 (Tex. 2008) FACTS: P sued 20 companies, 3 of which were TX-based, as a result of getting mesothelioma as a result of asbestos exposure at work (30 years as a mason handling pipe-covering insulation). Ds produced the asbestos. Ds moved for dismissal based on FNC. P sued in TX because he didn't want case to get removed to federal court; probably also got a good TX lawyer for asbestos cases. D arg: the suit had no connection to TX and that Maine was an adequate alternative forum P arg: trial court should deny motion because if transferred to Maine, it would be removed to federal MDL court and the process would take so long he would die before it was over (which he did)

Analysis: *Adequate Alternative Forum with Adequate Remedy?* Maine courts are alternate forum that provides adequate remedy. But P worried that likely to be diversity jx and removed to federal courts and transferred to MDL 875, where it won't get tried but settled years later -Court: comparative speed of trial is not appropriate consideration; and there is still an adequate remedy if goes to federal court *Substantial Injustice to Ds by Litigating in Texas?* Witnesses based in ME; expensive to depose Ws in ME for trial in TX -Court: Ws are outside subpoena power of TX courts; weighs in favor of D *Jx Over All Ds?* P claims not all Ds are subject to ME jx D stipulated they would submit to ME jx -Court: possibility that alternate forum may not accept jx does not overcome other factors when a court may condition its dismissal order on acceptance of jx in the alternate forum *Public and Private Interests* Public factors: administrative difficulties related to court congestion, burdening people with jury duty with they have no relation to the litigation, local interest in deciding local issues, etc. Private factors: ease of access to proof, availability of compulsory process, possibility of viewing the premises, etc. -Court: ME law applies to this case. ME has interest in protecting its citizens from asbestos. ME witnesses. Factors weigh in favor of ME *Unreasonable Duplication of Litigation* P: dismissal would result in 2 lawsuits - TX lawsuits of nonmoving Ds and ME lawsuit. Court: disagree. Statute doesn't say that a TCt can dismiss only the moving Ds claims. D moved to dismiss the entire case. Any duplication of litigation would be from P's actions, not courts. *HELD*: The court held that all of the factors in the forum non conveniens analysis favored maintaining the action in a forum outside Texas. -Everything took place over in ME, that's where the witnesses were, and there's no reason to burden TX courts and jurors with a case that didn't involve anything in TX. *Surprising*: court said that the whole case, all Ds, should go to ME. Even those Ds that did NOT move for FNC. This was a new thing. Before this decision, if all Ds didn't move for a plea of FNC, only those Ds that moved for the dismissal or abatement would be affected. Nonmovant Ds probably were surprised. Shows that if you are one of multiple Ds, and you don't want to go to the alternative forum, you should assert yourself and argue against FNC motion. *D did die before fed MDL could hear case. How is it an adequate forum if the docket is so backed up that D dies?* COURT: statute says not to consider administrative issues because it would unnecessarily complicate FNC motions. This is out of our hands because the TXL has amended the statute that applies to wrongful death and personal injury and mandates that the TCt SHALL consider certain factors; and if those factors weigh in favor of dismissal or abatement, they MUST grant the FNC. Statute used to say the TCt "may" now it states that the TCt "shall" consider these factors, and "shall" dismiss. The discretion of the TCt, when FNC is asserted under the statute, is not as discretionary as it might be under common law (cases that do not involve personal injury/wrongful death).

Fair Notice - Sample dispute in pleadings/answer starts pg 375 Shows a sample D's Answer that contains special exceptions. Why?

Answer due in 20 days, so need to get in quickly. Probably not going to get a ruling on your special exceptions before the Answer is due. Also, avoids a second filing fee. Up to whoever is specially excepting to get a hearing/ruling from the court. Most local rules require that if you file a motion with the court (like a special exception), you have to accompany motion with a draft order (state judges don't have secretaries) After all, a special exception is basically a motion to get the other side to amend pleadings. A special exception is NOT an evidentiary hearing; don't really need a hearing at all (court could take it on written submission) because it is a question of law looking at the face of the pleading to determine if defective, then ordering a repleading if they are. If there's not much money on the line, you can just call the other counsel, tell them what about the pleadings is deficient and ask them to amend pleadings. Can come to a Rule 11 agreement (agreement between counsel on anything - just getting it in writing, signed. If you want the court to enforce, you file with the court). Use common sense

Level 2 Disco, Number of ROGS

Any party can serve on any other party < 25 interrogatories Not including ID and authentication interrogatory questions. Used to have to send all interrogatories as a set. Now you can send out individually or in batches up to 25 questions.

What persons are eligible to be TPDs?

Any person who is not already a party who is or may be liable to the D or the P for all or part of the P's claim against the D. The rule provides for the bringing of such actions against a person not a party to the action who is or may be liable to him (D) or to the P for all or part of the P's claim against him (D).

General Scope of Disco Recap

Anything relevant to the subject matter of the lawsuit, even if it is inadmissible as evidence at trial, as long as it is reasonably calculated to lead to discovery of admissible evidence, as long as not privileged or exempt. *What's exempt under the rules?* Ordinary & core work product

TXC gives the legislature great power to create and change the jx of the TX courts.

Art 5, section 1 provides that "the judicial power of this state shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, County Courts, and Commissioners Courts (not really courts, but county legislative branches), Courts of Justices of the Peace, and such other courts as provided by law. Gives TX Legislature permission to establish other courts and their jx as necessary Thus, no need for constitutional amendment every time court jx changes. But it means you must check state statutes when deciding on SMJ TXC defines District Courts (primary courts of general jx) by process of elimination. District Courts have general jx except in cases where exclusive, appellate, or original jx is given to another body by legislature Because district courts are defined negatively, we'll look at the others first.

MINI-TRIAL Just what it sounds like; a truncated trial.

At a mini-trial, the parties and their counsel present their positions before selected representatives for each party or before an impartial third party who issues an advisory opinion. The mini-trial has been used most often in complex business litigation. The process is confidential and communications at the proceeding and any opinion issued may not be used in court or communicated to the judge in later litigation. After the presentation, you get the court's opinion. If the parties reach a settlement based on this opinion and execute a written settlement agreement, the agreement is enforceable.

Delivery by mail

Authorized by any person authorized by rule 103 by mailing to the D by registered or certified mail, return receipt requested, a true copy of the citation and petition. Delivery restricted to addressee (so secretary can't sign, has to be D)

Garnishment After Judgment Distinguished Post-judgment garnishment

Available to a judgment-creditor to satisfy a judgment from the judgment-debtor's nonexempt personal property in the possession of a 3P Just need to show that: 1) Valid judgment, and 2) The judgment-debtor doesn't have sufficient property in TX subject to execution to satisfy the judgment. Much easier to satisfy than pre-judgment garnishment. NOTE: NO BOND required as debtor has already had his day in court and lost. This statute has been found constitutional notwithstanding that post-judgment garnishment does not require that writ of execution be issued, or issued and returned unsatisfied. No bond is required for post-judgment garnishment.

Limitation Statutes and Contribution or Indemnity Claims - TRCP 38 and 97(e) allow contribution or indemnity claims to be asserted against a person "who is or may be liable" to the 3PP or the cross-claimant for contribution or indemnity. In other words,

BEFORE they accrue.

Discovery Level 2 (TRCP 190) - default "catch all" level Applies to: all cases that do not proceed under levels 1 or 3 Most common level of discovery; a lot more disco Discovery period (for suits filed BEFORE 2021)

BEGINS - When suit is filed ENDS - the earlier of: 30 days before trial date, 9 months after first oral deposition 9 months after due date of 1st response for written discovery Important as a trial lawyer that you and assistant schedule things; usually at least 2 years out. Set reminders far ahead so you know when disco is closing.

Purposeful Availment, Fair Play and Substantial Justice

Based on these long arm provisions and the due process cases, the TX courts have put their own spin on the requirements for minimum contacts and fairness. In the first case, the Justices of the TXSC explain the doctrine as they understand it, and apply it in the context of an international D. This is the case in which the TX courts began to articulate a personal jurisdiction analysis in a way that parallels the US SCt. Do they find sufficient contacts? Do they find that exercising jx over the D would be fair? Subsequent state and federal cases refine the jx analysis in stream of commerce cases.

TX venue statutes are extensive. More than federal or other states.

Because all TX judges are elected. Lawyers have very strong feelings about where they are comfortable trying lawsuits and where they think they will do well. Jury pools are different. EX: Injured worker case, you probably prefer a working class area. So motions to transfer venue are not unusual.

Why is mandamus relief appropriate?

Because disco orders are interlocutory orders (order entered by the court before a final judgment - can discover or not). There's no statute that grants interlocutory appeal, so mandamus is the alternative. What you have to show for mandamus: no adequate remedy by appeal; and clear abuse of discretion for failure to perform a ministerial duty. Can't "unring" the bell after you disclose certain things, like privileged info

Thus, it is important when you are pleading to pull out Rule of 93 and check if you need to specifically plead anything.

Because if you don't plead and verify something required under Rule 93, at trial your opponent can object and keep that evidence out since it is not covered by the general denial.

The only nonparty eyewitness to the accident lives and works in Dallas. Where can you take the depo?

Because non-parties must be subpoenaed, the places for those depos (absent agreement) are limited by the subpoena power. Rule 199 limits proper depo locations for non-parties to counties where the W lives, is employed, or regularly transacts business in person or some other "convenient" location. Rule 176 provides that a W may not be deposed in a county more than 150 miles from where the W resides or is served. You don't want to inconvenience W more than necessary (so they stay friendly), so find the best spot for W.

Severance of a compulsory counterclaim is improper under res judicata/collateral estoppel principles. Why?

Because res judicata requires that that transactionally-related claims within the jx of the court be tried together. So the P has an obligation when they file suit to assert all transactionally-related claims against the D that are within the jx of the court. The D, under the compulsory counterclaim rule, has to assert all transactionally-related counterclaims against opposing party that meet 97a elements or they are barred. Goes both ways: both P and D are supposed to bring all transactionally-related claims. To sever them out into distinct lawsuit is contrary to those principles.

A party with the burden of proof on an affirmative defense may not use a no-evidence motion for summary judgment against their opponent to establish that defense. Why not?

Because the D has the BOP, the D can't move for a no-evidence MSJ. The party without the BOP can move for no-evidence and require the party with the BOP to raise a fact issue.

Rule 166a talks about defects of form vs. substance, but does NOT define the terms. What if the motion for summary judgment is on the court's written submission docket?

Because there is no live testimony at SJ hearing, the court may choose to take motion on written submission (no argument of counsel). So it's really important, that you look at local rules (clerk's webpage) and see if there's any policy that address taking SJs on written submission. Then also look at individual webpage of judge. Written submission is more likely in federal court than state. Federal judges have law clerks. So state judges have a heavier docket (also as courts of general jx).

Multi-District Litigation Remember, this is where we have cases filed all over TX (EX: asbestos cases) MDL panel is petitioned by one of the TCts to consolidate all pre-trial aspects into one proceeding (more efficient) As long as there are common questions of fact, the MDL panel can pull all cases together for pre-trial purposes. If the cases survive, then they are transferred back to the original county where venue was proper.

Because they are sent back, that is why MDL does not violate venue statutes, because the venue statutes are interpreted to mean that is where parties get to try cases (MDL is just pre-trial stuff)

Prelitigation Work

Begins with client and lawyer's decision whether to take the case. -Attorney must be aware of ethical duties, negotiate and draft a fair contract of employment. -Must research law and facts of the case, making sure there is a good faith basis to bring suit. May require interviewing witnesses, looking at documents, consulting experts; legal research and analysis into elements of client's COA, preliminary procedural requirements, SOL. -Sometimes also requires ancillary proceedings to preserve the status quo pending the final adjudication of the main action, such as attachment, prejudgment garnishment, or sequestration proceedings, or proceedings for obtaining a temporary restraining order or injunction.

The intermediate court in Mathis held the failure of the expert witness to attach the medical records on which he relied and referred to in his affidavit was a defect of form.

But see, Lance v. Robinson, 543 S.W.3d 723, 732 (Tex. 2018) (The complete absence of evidence necessary to support a summary judgment constitutes a substantive error that may be raised for the first time on appeal. However, the evidence referred to in the summary judgment motion was admitted at a prior temporary injunction hearing and was on file with the trial court. Thus the records qualify as proper summary judgment evidence and the trial court did not error relying on them.)

Can assert all privileges against required disclosures EXCEPT work product. Why?

By making it a required disclosure, the TXSC is saying that these are by definition NOT work product.

General jx and websites -

CAB uses the test from Moki Mac, and concludes that internet ads are not sufficiently related to the P's claim to fall within specific jx. Websites alone are not sufficient to give general jx

NOTE 6: The TXSC in Citizens Insurance Co. held that claim preclusion applies in a class action context; that is, if a certified class raises only some claims and there are other transactionally-related claims that were not brought that were within the SMJ of the court, then the other members of the class ...

CANNOT individually seek those claims that they didn't seek in the class action

Rule 306a places upon the _____the responsibility of giving immediate notice to the parties or their attorneys of record by first-class mail that a judgment has been signed.

CLERK of the court

16.031. Asbestos or Silica-Related Injuries or Death

COA accrues on the earlier of the person's death or the claimant serves on a D a report complying with Section 90.004 or 90.010(f)

Attorney's notes: factual notes or notes that "reveal the attorney's thought process" are

CORE work product. BUT, Material that incidentally discloses by inference attorney mental processes is not protected as work product

Jack H. Brown & Co. v. Nw. Sign Co., 718 S.W.2d 397, 397 (Tex. App.—Dallas 1986) ISSUE: Whether the present suit is barred by a prior default judgment and the compulsory counterclaim rule. FACTS: Three different contracts involved in the underlying action that all relate to building a sign for Holiday Inn in Idaho Suit #1 (underlying suit) - Northwest Sign sues Brown in Idaho and there is no answer filed by D, resulting in default judgment. Suit #2: Then the Brown sues NW for nonpayment in a separate case. NW: that's a compulsory counterclaim, it's transactionally related. Brown: no, it's a different contract; also the compulsory counterclaim rule doesn't apply when you get a default judgment in Suit #1.

COURT: *Broadly construes the "logical relationship test"* and holds that this was all part of the same business transaction involving the building of a sign. Thus, this was a compulsory counterclaim; and thus it is barred and summary judgment is granted. Additional, the *compulsory counterclaim rule DOES apply to default judgments.* The compulsory counterclaim rule applies when the first action is disposed of by default judgment and the defendant failed to assert a transactionally related claim the defendant had against the opposing party plaintiff that met the requirements of TRCP 97a.

Hardy v. Fleming (Tex. App.-El Paso 1977) FACTS: Suit #1: P sues the D in district court. D was workers' comp carrier for P's employer. The judgment was P take nothing. P claims to have had a heart attack in 1971 and the fact finding was that P did NOT suffer a heart attack in the day in question. Suit #2: Same P sues the doctor in medmal, claiming the doctor's advice was malpractice. Doctor's lawyer files affirmative defense of collateral estoppel and MSJ, which is granted. P arg: Doctor was NOT a party to Suit #1 that collateral estoppel requires an identity of parties in Suit #1 and Suit #2.

COURT: Mutuality is not an element of collateral estoppel. Thus, a complete identity of parties is not required in suit 1 and in suit 2. Any party can assert collateral estoppel against any party who had a prior opportunity to litigate the fact to final judgment by a court of competent jx and the finding was essential to the judgment HERE: The P was a party to suit 1 and 2, he had a full and fair opportunity to litigate whether he had the heart attack in suit 1, and therefore he is precluded from relitigating that fact under the principles of collateral estoppel. And if he can't make out injury, then he has no medmal case.

Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex. 1990) FACTS: Huge well blowout. Storts was overseeing damage control, had first hand knowledge of what happens. D: argues that Storts is a consulting-only expert and so not discoverable.

COURT: No. Can't take a fact witness who also qualifies as an expert and hide their first hand knowledge by designating them as a consulting-only expert. LAW: 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."

FACTS in Cooper case: H sued Oil & Gas Co. (Texas Gulf) to set aside a sale of real property on the basis of fraud. Gulf is successful in the lawsuit that there was no fraud, gets SumJ that H take nothing. The property was jointly managed community property. No one raised nonjoinder W. W brings suit #2 asserting the same claim. Gulf asserts res judicata; W was virtually represented by H.

COURT: No. TX doesn't have virtual representation between spouses. W was not virtually represented. And you didn't object to her nonjoinder. W wins the second suit. Court: we're going to have to disregard so much of the judgment in Suit #1, pretty much completely ignore it, to give the wife relieve to which she's shown she is entitled to (set aside the deed). *So, the Ramifications of not joining parties needed for just adjudication can be serious. It can in effect set aside Judgment #1 if an indispensable party wasn't joined and no one objected to nonjoinder.* *So, what do you do today if one spouse is named in a lawsuit that involves community property that is jointly managed by spouses?* File a plea in abatement, or one spouse asks the other for power of attorney We still see virtual representation in a few situations: Class actions, trustee virtually represents interest of beneficiaries There are very few things that aren't waived when you don't bring to TCT's attention Exception: SMJ. Can waive just about everything else.

Insurance Policies and Settlement Agreements In re Dana Corp., 138 S.W.3d 298, 300 (Tex. 2004) FACTS: The trial court ordered the insured to produce duplicates of all commercial general liability insurance policies from 1930 to the present and to produce a knowledgeable witness for deposition to testify regarding such policies. Manufacturer brought mandamus challenge - we shouldn't have to produce any info about insurance until P shows that we are at fault (product defective and time period).

COURT: No. There's no reason why the Ps at the disco phase have to prove up the merit question. Disco request regarding insurance is relevant on its face Mechanics of this: Ps want to request that the D produce a W (employee) who had knowledge of the policy and whether there had been erosion. COURT: that is within the scope of disco; but your request is overly broad. The earliest reported exposure was in 1945, so requests going back before that to 1930 are not narrowly tailored, and so the court narrows. ISSUE: Whether you can discover how much the policy has been eroded? -CARLSON: Court doesn't address, but she thinks you can, just like you can discover policy limits.

Dawson-Austin v. Austin, (Tex. 1998) FACTS: Divorce case. *Only the W's Answer was made subject to the special appearance The other motions (to quash service, etc.) did NOT have the statement that they were subject to the special appearance.* W moves for a continuance. Does this avail herself of court?

COURT: No. W properly filed amended appearance first. Yes, it was defective, but she filed an amended special appearance before she made any kind of general appearance that complied with rules that was prior to or simultaneous with special appearance. -By moving for a continuance, she did NOT avail herself of the court -You don't have to say all your pleadings are "subject to" the special appearance; don't have to use the magic words of "subject to" the special appearance. It can all be in one instrument in Rule 120a [However, it is a good idea to say in all your motions that they are subject to the special appearance just to be on the safe side] Court: as far as the constitutionality of the court to exercise jx, the district court only had jx to grant the divorce as an in rem issue relating to status, but NOT the martial property which is in personam. -So TX courts have jx over the status of the marriage, but NOT PJ over the wife. Thus the court lacked jx to decide the issue of the value of the stock or to divide the estate. TX is only going to allow reimbursement for separate property that marital assets went to support during the marriage. But it's not going to give half current value of the stock to the wife. That's why she doesn't want TX to have jx; she wants a jx where she gets 50/50 because the value has gone up a lot

Case 1: the party is trying to amend pleadings with a trial amendment (during trial) to assert the SOL. The P objects (unfair surprise, or moves to strike), the BOP is on the party opposing the amendment to establish prejudice.

COURT: SOL is a defense in law to facts that are already established in the case, so you wouldn't prepare any differently. Carlson: that's true if the SOL doesn't have a discovery rule. There could be a fact question in cases where the discovery rule applies to a limitations, and we have to figure out when did the COA accrue. When there's an inherently undiscoverable injury (sponge), won't accrue until the P knew or should have known. But here, there's no discovery rule. So the D is allowed to amend pleadings and the P can't show prejudice because there's no factual issues to develop.

Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 205 (Tex. 1999) ISSUE: Whether an action that is filed in Suit #2, because it was a compulsory counterclaim in Suit #1 FACTS: Valero owns the chemical plant and Kellogg (general contractor) and Ingersoll-Rand (subcontractor) installed equipment that malfunctions and damages the plant. Valero sues contractor and subcontractor and they say, well you indemnified us, Valero, so you can't recover from us. *Why would Valero indemnify contractors and subcontractors?* Otherwise they would not want to perform work there. Plant gets worked on all the time; plants are highly volatile. Construction company won't do work unless indemnified. Contractor/subcontractor Ds win summary judgment that P take nothing on plant damage. That gets severed out and appealed. While that appeal is going on, the contractor/subcontractor file a claim for attorney's fees. Valero: you should have asserted that previously because that's a transactionally related compulsory counterclaim that you waived.

COURT: While it is a transactionally-related claim, it is NOT MATURE. One of the elements of a compulsory counter claim is that it must be mature at the time the D files their answer. *A claim for indemnity can only be brought once it becomes "fixed and certain" and that only happens when the first suit is resolved* (here, the rendition of summary judgment). Thus, this is not a compulsory counterclaim, and the contractor/subcontractor claim against Valero for attorney's fees may go forward.

Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex. 1988) FACTS: Dominant jx issue. First suit was filed in Duval Cty; the other party sues in Nueces Cty. The first party files a plea in abatement which argues that Duval County was first filed, that has dominant jx. ISSUE: Did second trial court err in not granting plea in abatement?

COURT: Yes. Abused its discretion. Looked at exceptions to this race to the courthouse. But DISSENT: Ps that filed first lawsuit didn't give proper notice under DTPA, which is why they were able to file first and fix venue. That should be seen as inequitable conduct that precludes the application of the doctrine of dominant jx.

Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 912 (Tex. 1992) [relates to former version of the rule regarding what it takes to avoid preclusive sanctions] FACTS: The employee alleges he was fired in retaliation for filing workers comp. *P subpoenas two Ws that were NOT identified in discovery. One of the Ws provided damaging testimony* D moves to exclude the testimony because she was not timely disclosed. The purpose of timely disclosure is to allow discovery in to prepare a defense. ISSUE: Did the TCT abuse discretion by refusing the motion to preclude the W's testimony?

COURT: Yes. The reason behind the need for disclosing Ws, is to encourage settlements and avoid unfair surprise. TCT erred in denying motion to preclude the testimony. The preclusive sanction should have been automatic since the W wasn't timely disclosed. Over the employer's objections, the trial court admitted testimony of two witnesses who had never been identified in the discovery requests. The employer appealed, and the court of appeals held that the admission of the testimony was reversible error under Tex. R. Civ. P. 215.5 and remanded the cause for a new trial. HELD: Rule 215.5 was mandatory and that its purpose was to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush. The court held that the exclusion of evidence should have been automatic, absent a showing of good cause to admit the testimony. The court found that the trial court had no good cause to admit the testimony. Accordingly, the court affirmed the court of appeals' judgment and denied the employee's motion for rehearing.

TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 914 (Tex. 1991) Decided before the development of law on "apex" depos. Apex - not supposed to notice the depo of the CEO because you're supposed to get info from lower level employees first. FACTS: D on counterclaim kept noticing P's higher level person Sheppard, who kept rescheduling. Eventually the D got fed up and moved for sanctions and the TCT struck the P's pleading and trial was only about the level of damages against the P. Relator corporation sought a writ of mandamus directed at respondent trial judge, who entered an order imposing sanctions against relator for discovery violations. ISSUE: Did the TCT abuse discretion in imposing death penalty sanctions?

COURT: there should be a relationship between the offensive conduct and the sanction; be directed against the abuser and not be excessive. HERE, these merit preclusive sanctions were excessive and an abuse of discretion. -Nothing here shows the TCT didn't try lesser sanctions, as they should have. -Court grants mandamus relief against Judge Powell. There's no adequate remedy; with death penalty sanctions you are precluded from putting forth the merits of your case. -Today what would happen with apex depos, is the party who's president is being subpoenaed would move for a protective order, arguing there's no unique information known by the CEO, and move to quash. The other party can respond that there is unique info known by CEO and court will have a hearing.

In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 487 (Tex. 2014) ISSUE: How much discovery can you do regarding parties that suffered the same wrong but are not parties to the lawsuit? FACTS: case involving allegations of underpaid insurance claims, after home damaged from storm. P requested discovery of all claim files from previous 6 years, and all files relating to 3 insurance adjustors. TCT narrowed, but D objected and sought mandamus. P's theory of the case: look at all this that other people got, and I didn't get as much.

COURT: you have to show if it was adequate to you, NOT others. Improper. Because the information plaintiff sought was not reasonably calculated to lead to the discovery of admissible evidence, the trial court's order compelling discovery of such information was overbroad under Tex. R. Civ. P. 192.3(a). HELD: The appellate court conditionally granted mandamus relief and directed the trial court to withdraw its order compelling discovery. *Why is the discovery request an impermissible "fishing expedition"?* "We fail to see how National Lloyds' overpayment, underpayment, or proper payment of the claims of unrelated third parties is probative of its conduct with respect to Ervings' undervaluation claims at issue in this case."

Apex Depositions Limits: depose a CEO or other high-ranking official. Someone at the top of a corporation or entity. EX: Every time Walmart was sued, Ps would schedule depo of Sam Walton, CEO. So there was perceived to be an abuse of depositions to try to force settlement. So this Apex Depo rule developed thru caselaw (not in the rules).

Can file for a motion for a protective order if they accompany with an affidavit denying knowledge of relevant facts. Burden then shifts to party seeking depo to show that he has unique and superior knowledge. If can't show, the depo request is quashed. If they can't get that info, they can try again. But have to show that less intrusive means were unsuccessful and that there's a reasonable likelihood that apex depo will lead to admissible relevant evidence. When seeking to depose a corporate president or other high corporate official and that official files a motion for protective order accompanied by an affidavit denying knowledge of the relevant facts, the TCT should determine whether the party seeking the depo has arguably shown that the official has any unique or superior personal knowledge of discoverable info. If not, the TCT should grant the protective order and require deposing party to use less intrusive methods (depos of lower employees, the corporation itself, ROGS, RFP) After making good faith effort to use less intrusive methods, the party seeking depo may attempt to show (1) there is a reasonable indication that the official's depo is calculated to lead to the discovery of admissible evidence, and (2) that less intrusive methods were insufficient. If the party seeking depo makes this showing the TCT should modify or vacate the PO

Whose "side" are you on? Can there be more than 2 sides? (YES)

Can have more than 2 sides if you have 3 parties where everyone is pointing the finger at the other. For purposes of the overall deposition time limit, the term "side" means all litigants with generally common interests in the litigation.

Objecting to Relevance of Disco request -

Can object to irrelevance on the face of the discovery request. EX: Court found that the non-relevance of the amount of settlement in a separate lawsuit could be determined from the face of the pleadings and existing disco YES. Sometimes court can find that on the face of the request it is overbroad/irrelevant. Sometimes it isn't obvious and you have to prove with facts.

When should you raise a plea to the jx?

Can't be waived, so you can raise at any time, but you want to raise Plea to the Jx ASAP. At the get go! It's probably considered malpractice if you don't recognize a lack of SMJ until after trial, judgment. Lawyer should have figured it out earlier. That's why we are torturing ourselves to learn all the rules about SMJ of courts.

NOTE 4: Admissions can never be used BY the party answering them. Only AGAINST that party.

Can't introduce before the jury your own admissions and denials, you can't use them. Can't say, "I denied it, here's proof." Can only be used against you.

NOTE 5: INTERVENTION AND VENUE: original P and person intervening as a P has to independently establish venue or the 4 factors of 15.005 if they are challenged ("essential need" to try in that county)

Can't use intervention to circumvent the venue rules.

11 requirements under Rule 107 to be included on the return.

Cause number & case name; court; description of what was served; the date and time the process was received for service; person/entity to be served; address to be served; the date of service or attempted service; manner of delivery of service Name of the person who served; if a process server under the TXSC, the ID number; any other info required by law.

The method of service Issuance and Service of Citation - Rule 99

Citation - an official notice to the D from a court officer that a suit has been filed against the D. Copy of petition must be included. Warns recipients that they must answer by a stated deadline or judgment by default may be rendered for the relief demanded in the petition. 17.027 of CPRC allows P to prepare the appropriate citation for the D as long as the citation is prepared in the form prescribed in TRCP 99(b) and served in the manner prescribed by law. The clerk can charge for the issuance of a citation, the clerk may not charge for signing her name and affixing the seal. Unless the citation otherwise directs, it may be serve by personal delivery or mail.

TRCP 165a The Supreme Court has set guidelines for getting a civil case set for trial:

Civil Jury Case: 18 months after appearance day (date for defendant to file an answer, on or before 10am on the monday next 20 days after the day of service) Civil Non Jury Case: 12 months after appearance day. (There are special deadlines for Family Law and Juvenile cases as well as expedited trials under TRCP 169.)

16.002. One Year Limitations Period

Claims for malicious prosecution, libel, slander, breach of marriage promise

When the "client" is an entity who is covered by the attorney client privilege?

Client is the entity, NOT the CEO or board to directors. FD is to entity.

Expert Communication Protected For cases filed AFTER 1-1-21:

Communications between the party's attorney and any testifying expert witness in the case are protected from discovery, regardless of the form of the communications, except to the extent that the communications: (1) relate to compensation for the expert's study or testimony; (2) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (3) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Allows for freer communication between attorneys and testifying experts. Remember, an expert can't be a witness to the events in question, and then also designate as an expert

PROBATE JURISDICTION, EXAMPLES Which court has original jurisdiction? 3.County with: no statutory probate court OR county court at law exercising probate jurisdiction? (Sparsely populated, so only has JP, CCC, DCt as guaranteed to all counties under TXC).

Constitutional county court has original jurisdiction HOWEVER, constitutional county courts do NOT have JRD over contested probate matters. IF such a case involves a contested probate issue, the court may (on its own motion) or shall (on the motion of a party) : 1.Request assignment of statutory probate judge to hear the case 2.Transfer the case to the District Court

Duty re Disclosure of Documents - TRCP 194.1(b)

Copies of documents and other tangible items ordinarily must be served with the disclosure response. However, if the responsive documents are voluminous, the response must state a reasonable time and place for the production of documents. The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect them. Today a lot gets produced electronically.

Interrelated Entities: When can you impute contacts between companies for jx purposes?

Corporations and other entities that have parent-subsidiary relationships and other patterns of dealing present difficult due process issues. Courts have struggled to decide when the relationship is strong enough so that the contacts of one entity will be attributed to the other for jx purposes Courts and commentators are generally hostile to imputed contacts between related business entities and between corporations/shareholders. Must be greater than normal control of parent over subsidiary so that the entities cease to be separate. The two entities operated as one. Very difficult to show that with a large business. More likely to show with small, mom & pop biz where there is commingling of assets. Most entities guided by counsel know that they have to treat their companies as separate. Can't commingle assets to be treated separate for jx

CONSENT TO PERSONAL JX Consent - D may consent to jx in several ways. 2) Registering to do business in a state (potentially subject to jurisdiction)

Corporations may explicitly consent to jx when registering to do business in a state. But even if a D corporation has registered to transact business in the state and appointed a registered agent to accept service of process, a complete PJ analysis must be conducted. There's a particularized long arm statute in TBOC.

1999 rules changes - supplementation needs to be made reasonably promptly You are supposed to supplement written disco formally. If it is a Ws, you file a written supplement in the initial response.

Court can preclude testimony of a W or the depo of the W, if the W is undisclosed or disclosed late. One change in 1999, (note 5) - you don't have to disclose that you are putting on testimony of a party.

The thought behind discovery rules was that they would be self-executing.

Court is supposed to be last result. Courts don't like to deal with it, especially when there are accusations back and forth about sanctions, etc. Sanctions are bad - your malpractice insurance will go up or not renew.

In personam jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

in personam jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

Hearing and Ruling on Objection or Claim of Privilege Any party may at any reasonable time request a hearing on an objection or claim of privilege. Burden of proof on party asserting the privilege (evidence through testimony or affidavit) Objecting party does not waive objection by failure to obtain ruling

Court must conduct an in camera inspection of documents to determine if privileged before compelling production. A trial court abuses its discretion by refusing to do so.

Discovery Level 3 plans (TRCP 190) Applies to:

Court ordered custom discovery plan. "The trial court must, on a party's motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit." Court may simply adopt level 1 or level 2 restrictions or change them; a lot of discretion Parties may agree and submit a discovery control plan, but court not required to adopt it Good lawyers tend to come together to agree on what the disco control plan will be. Decide on dates and get control of the calendar. Much better to have a collaborative disco than fight every little thing. Discovery period and Limits Determined by the parties and the court. Limits defined by the plan approved by the court.

In CSR Ltd v. Link (TX 1996) -

Court ruled that an Austrialian company was not subject to PJ, even though it sold raw asbestos fiber to a company knowing it had a plant in TX, when it did not advertise in TX, did not provide advice to TX buyers, and did not control, create, or employee distribution system that brought the asbestos into TX. No purposeful act directed toward TX

Standard of Review for FNC?

Court's ruling on FNC motion is reviewed for abuse of discretion.

Fair Notice and Negligence Per Se - In Murray v. O&A Express (TX 1982) - P alleged "acts of negligence" in pleading, but then at trial pursued a negligence per se theory based on violation of a statute. Nighttime collision of an auto with a parked truck. Driver and passenger are killed because they don't see truck sticking out at night. Pleadings accused driver of negligent parking, and failing to put out warning cones. At trial, Ps don't pursue common law negligence, but instead a negligence per se theory based on statutory requirements on parking. D appeal, alleging variance between pleadings and proof. Pleaded negligence, then proved negl per se.

Court: *yes, there was variance, but you failed to object at trial on that basis, so waived.* Should have objected "outside the pleadings" - pleadings were CL negligence, and this is negl per se. I prepared for CL; need experts for negl per se. Not fair notice. TCt should freely allow amendments to pleading unless opponent shows prejudice. What is prejudice here? Didn't have notice of statutory violation for negligence per se. So didn't get witnesses to deal with that. Didn't do any discovery on a statutory violation. TCt should sustain the objection and require the Ps to go forward on what they pled.

Lindsey v. O'Neill, 689 S.W.2d 400, 402-03 (Tex. 1985) FACTS: Party that was sued had a lot of EEs that were PhDs, physicians, etc. that would qualify as experts. P sends deposition request of EE. D: this is protected work product because these EEs are consulting-only experts

Court: NO it is not. It wasn't created in anticipation of litigation. RULE: Expert opinions are not protected from discovery unless they were made in anticipation of that litigation. If the "expert" is also a lay witness as an employee, it is discoverable. HELD: Because the trial court excluded from discovery all of the mental impressions and opinions of experts associated with Travenol without any showing that this information was acquired or developed in anticipation of litigation, we find a conflict between the trial court's order and the Texas Rules of Civil Procedure and, hence, an abuse of discretion on the part of the trial court.

Weingartens, Inc. v. Price, 461 S.W.2d 260, 261 (Tex. Civ. App.—Houston [14th Dist.] 1970) FACTS: Plaintiff wife tripped and fell while shopping in defendant supermarket's store and sued for injuries. Judgment was rendered in plaintiffs' favor. Defendant challenged the judgment, asserting that the trial court erred by admitting testimony concerning plaintiff wife's loss of earnings and loss of earning capacity, and by submitting to the jury the damage issue of loss earnings and loss of earning capacity. Special damages must be specifically plead. TRCP 56 *What was plead? How did that compare with the evidence offered at trial?* Pleads certain damages, but then at trial starts talking about lost earnings from sewing business, which were NOT plead. Should object: variance, outside the pleadings. Nothing stated about lost earnings. Aside: one of the things you should do at trial is pull out the live pleadings, familiarize yourself as to what the other side has pled so you can object "outside the pleading." Might be good to do a "speaking objection" so the jury doesn't think you're being obstructionist. Explain objection. "Plaintiff said nothing about lost earnings in pleading so we haven't had fair notice so we could do discovery on that, ask questions about that, etc." D does object here, but was overruled. Then evidence comes in about her lost earnings. D objects again to jury questions about loss of earnings. *Issue on appeal*: whether the pleadings included loss of earnings.

Court: NO. No special exceptions here, but they are not required. (Think about it, doesn't make sense to ask P "don't you want to also seek loss of earnings?") You have a right to assume in the absence of special pleadings that loss of earnings aren't being pled Because after all, imagine if it was the lost earnings of a 3-year-old surgeon. You'd want all kinds of discovery on tax returns, expert testimony on potential earnings, etc. Lots of discovery would be needed which won't happen unless you have fair notice that the other party intends to seek lost earnings damages. *Did defense counsel object when Plaintiff sought to introduce evidence on damages that were not supported by Plaintiff's pleadings?* Yes *Was objection made to including those damages in the jury charge?* Yes *Did Defendant try lost earning capacity by consent even though no pleadings?* No. They objected all the way, therefore they preserved their position. HELD: reversed and remanded the case. There were no pleadings to support the admission of the testimony and the inclusion in the damage issue of the elements of loss of earnings and loss of earning capacity. In their pleadings, plaintiffs did not make a general allegation of damages, but particularized their damages as past and future medical expenses, past and future physical pain and mental anguish, and loss of services as a wife. Loss of earnings and loss of earning capacity were items of *special damages which plaintiffs failed to plead specifically, and thus, they were not entitled to recover such damages.*

Campus Invs., Inc. v. Cullever, (Tex. 2004) FACTS: Whitney certificate was filed by the SOS, that they had received and forwarded the copy of the citation and petition by certified mail, but was returned "attempted not known." It was on file the requisite number of days before the default judgment was taken D argues he was never properly served:

Court: NOPE. D was served when SOS was served. Court upholds the default judgment even though the Whitney certificate says "attempted not known." Court: service on the SOS, IS SERVICE on the Defendant. The SOS is the D's agent for service. The number of days that the D has to answer runs from the date the SOS is served. HERE, the SOS forwarded service to last known address, but D had changed address and hadn't updated address with SOS. Court: it is the D's fault that D didn't update address with SOS. So court upholds denial of D a "bill of review" relief.

NOTE 3: D filed a specific denial, but didn't verify denial (didn't swear an oath before someone empowered to take an oath, like a notary; or didn't use the alternate unsworn declaration). So it's a defective pleading. Did give notice, but it wasn't sworn to. The D seeks to file a trial amendment to add the verification. P objects.

Court: by adding the verified denial, the D didn't change a substantive issue for trial. They already gave notice (defective b/c unverified)

Peralta v. Heights Medical Center (US 1988) Looking at whether TX rules when D is not served at all (no service whatsoever - thus a VOID judgment), does the D have to show, when they seek a new trial, that they have a meritorious defense.

Court: can't condition the D's due process rights on the showing of a meritorious defense. TX Procedures were invalid. Once the D shows there's no service, that's a void judgment, and sufficient constitutionally on its own to require a new trial (assuming D does so in a timely fashion) A requirement of due process in any proceeding is notice reasonably calculated to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.

Distinguishing Michiana While some cases have read Michiana broadly, others have distinguished it and found sufficient purposeful contacts with TX. Moncrief Oil v. OAO Gazprom - case dealt with a breach of fiduciary duty and trade secrets. Often in oil and gas deals, companies will come together to develop oil and gas properties, and one side shows the other side their proprietary information on where we think the oil is, do you want in? Here, it was a non-TX company that was accused of stealing these trade secret information and using it improperly.

Court: this is sufficient contacts with TX to support PJ.

In re DuPont de Nemours & Co., 136 S.W.3d 218, 221 (Tex. 2004) FACTS: Defendant Dupont produced over 55,000 documents but withheld 607 docs asserting atty/client privilege and work product privilege. Plaintiffs requested a ruling after they get privilege log. The burden of proof is on the party claiming the privilege to make prima facie proof. Dupont produced an affidavit of its paralegal and tendered the documents for an in camera inspection. Was the affidavit proof sufficient? Why or why not? The affidavit globally addresses the document by categories. 1) legal to legal communication - TCT held privileged, Court: agree 2) legal to non-legal - TCT held NOT privilege; Court: reverse, should have viewed in camera 3) non-legal to non-legal - TCT held non-privileged; Court: agree.

Court: this is sufficiently specific to establish prima facie proof (don't have to certify every document individually) *Was the trial court required to conduct an in camera inspection?* Once D makes prima facie case, the TCT should conduct an in camera review. Carlson: TCT judges do NOT like to go through tons of documents. They don't have clerks. Time consuming. With electronic documents, there are AI programs that can help by key terms.

Sometimes affirmative defenses are classified as such for policy reasons: Eckman case - dealt with DTPA claim. Claim can only be brought by a consumer whose assets were less than $25M. Question: is it part of the P's BOP in every case to prove they don't have $25M, or should we categorize this as an affirmative defense, that the D has to specifically plead that P can't recover because P has more than $25M in assets.

Court: we're going to categorize this as an affirmative defense because we don't think it's good policy for P to have to prove in every case that they have less than $25M in assets. 1) most P's don't have $25M in assets 2) we don't usually look at the wealth of the P 3) we think it's better in those rare instances where this exception might exclude a P from recovering, the D has the BOP to plead and establish that fact. So you have the list of Rule 94 affirmative defenses. But if you have a defense, and you can't determine if it's an affirmative defense, you might just plead it, and don't worry about whether it is or is not an affirmative defense. Plead it so it's on the table. If you don't plead it, your argument could be that for policy reasons this should/should not be considered an affirmative defense.

CLASS ACTIONS - TRCP 42

Created to advance judicial economy by trying similar claims together and to escape the rule that all persons materially interested in the subject matter of an action be joined as named parties. In a class action, a party brings or defends a suit on it's own behalf and on behalf of others similarly situated. TX really strictly limits the ability of Class Actions. Requires very detailed proof before you can get attorney's fees.

Two high courts that deal with civil vs. criminal

Criminal Side - TX Court of Criminal Appeals is highest court. Civil - TXSC - discretionary jx; they decide what cases they want to hear. Take up cases they think they need to develop TX law: "cases important to the jurisprudence of the state" The TXSC reviews questions of law, and has discretion regarding which cases to hear on appeal. It may deny review if it believes that the court of appeals' error, if any is not sufficiently important to the jurisprudence of the state. In a few situations the TXSC has discretion to hear an appeal directly from a trial court. The courts of appeal consider both factual and legal issues, and must rule on timely appeals from cases in which county or district courts have or assume original jx when the judgment or the amount in controversy exceeds $250.

Cross-claims

Cross-claim: a claim between two co-parties on the same side of the docket (e.g., D1 v. D2) *Texas does NOT have compulsory cross-claims*, BUT.... Sometimes, a cross-claim also qualifies as a counterclaim (against an opposing party on the same side of the docket) it may be compulsory (note 2)

Panditi v. Apostle, 180 S.W.3d 924, 925 (Tex. App.—Dallas 2006) FACTS: Plaintiff attorney sued the D, a former client, for past due attorney's fees and pled an action on a sworn account. Lawyers keep systematic records so that they can bring action on sworn account. It is not at all unusual when a lawyer sues client for fees, that the client retains counsel and counterclaims for malpractice. So you REALLY want retainers so you're always ahead of the game.

D did not specifically deny the account and the trial court granted summary judgment in P's favor based upon Plaintiff's pleadings.

In a non-jury (bench) trial, the variance is waived when

D fails to object to the introduction of evidence that is clearly outside the pleadings.

Today, under Rule 47 the P kicks off the suit by filing a lawsuit asserting that the damages they seek are within the jx limits of the court. Today you have state a range of DAS, and the range is set in Rule 47. So you have to start off the lawsuit at least requesting specify that it is within the AIM limits of the court. What can D do to get the specific amount of the claim? .

D has an opportunity to get more information on the specific damages sought by filing a "*special exception*" The the P has to come back and replead the specific amount sought

We know from International Shoe that state courts may exercise PJ over nonresident Ds if ...

D has sufficient contacts with forum and doesn't offend traditional notions of fair play and substantial justice. Far from a bright line. Current version of the general long-arm statute is located in Ch17 of the CPRC. It is one source of authority for what kinds of contacts are necessary for jx, and it also provides info about HOW nonresidents are served with process. There are other long arm statutes that are scattered through the code. EX: nonresident motorists that have an accident in TX EX: family code for nonresident spouse/parent EX: TBOC for business.

What if there is defective service, but D files an answer?

D has waived defective service due to making general appearance by filing an Answer. After all, if they file an Answer, that prevents a default judgment, so the requirement of strict compliance with rules is relaxed. But with a default judgment, the D is trying very hard to set aside what is probably an outrageous judgment in light of the actual damages. So they are going to take the time to look very carefully to see if there's any tiny problem with service.

*When is it available?* Complete list: 61.002 CPRC Grounds for attachment are always the same:

D is hiding, is about to move, is about to destroy the property so it cannot be sold to satisfy her debts, etc. The purpose of attachment is to impound and fix a lien on the nonexempt property of a debtor before judgment. Property of a debtor that is exempt from attachment, execution, or other seizure for the satisfaction of liabilities is set forth in Property Code 41.001-004. The remedy is structured primarily to prevent a debtor from making himself judgment proof during the pendency of the litigation. Attachment is in the nature of execution before judgment. When the writ of attachment is levied on the nonexempt property of the debtor, the creditor obtains a lien on the property. In other words, the general (unsecured) creditor becomes a judicial lien creditor from the date of levy. The type of suit that will normally support the issuance of the writ is a suit for a debt, which is defined as an obligation to pay a liquidated sum on an express or implied contract.

Motion to quash citation -

D may attack the propriety of the service by this plea. Seldom used, because even when citation is quashed, the only effect is to delay the appearance day. A motion to quash is a general appearance and should not be filed by a nonresident who contests PJ

Plaintiff has the burden to establish venue is proper in the county where P filed suit. Defendant has the burden of proof to establish venue is proper where

D seeks to transfer.

Who has the BOP in motion to transfer venue?

D, since D must move for transfer

Sometimes, a cross-claim also qualifies as a counterclaim (against an opposing party on the same side of the docket) it may be compulsory (note 2) Example from note 2: 1. P sues D1 and D2 in District Court. 2. D1 brings a cross-claim against D2 (permissive, not compulsory because there are no compulsory cross-claims in TX) 3. D2 also has a $10,000 claim against D1 that arose out of the same transaction.

D2's claim against D1 is now both a cross-claim AND a compulsory counterclaim because when D2 was sued by D1, D1 became an "opposing party." D2 must bring the claim or risk losing it. Must analyze D2's claim against D1 under 97a and see if it's compulsory. Since it arises out of the same T/O, and within jx of court, it looks compulsory.

SUMMARY JUDGMENT IS *NOT* A

DISMISSAL. IT IS A RULING ON THE MERITS AND RES JUDICATA.

Other Privileges-Medical Privilege Rule 510 protects from disclosure confidential medical communications between doctor and patient as well as medical records (includes mental health communications) EXCEPTION:

DOES NOT APPLY when the records are relevant to a condition at issue, and is relied on as a part of any party's claim or defense Exception seems to swallow the whole. Even if you're not a party to the litigation, if your condition is relevant to someone's claim/defense, it can be disclosed. But if you're going to order the disclosure of non-party medical records, then you should try to protect the identity of the patient non-parties. OR give notice to the patient who is not a party that their medical info is sought in the litigation. Terminates the privilege even though the patient has not placed the condition at issue and is not a party to the litigation

Service of Process after service of citation of subsequent plea, amended pleadings or motions

DON'T NEED TO SERVE ANOTHER CITATION AFTER THE FIRST ONE. Plea, pleadings or motions filed after the original petition are served party to party per Rule 21a. Service is on a party or their counsel electronically unless no email address on file for a pro se party.

16.062. Effect of Death

Death of D or P in a COA tolls SOL for 12 months after death. If executor or administrator of decedent's estate qualifies before expiration of 12 months, SOL starts running again on date of qualification

What is a replevy bond?

Debtor can recover property seized by a writ of sequestration, attachment, or garnishment by posting a replevy bond -"I'll see your sequestration/attachment/garnishment bond and raise you a replevy bond!" -Sometimes the property in question is important to running a business, so it's worth it to the debtor to get it back by paying the cost of a replevy bond.

Authentication: form or substance?

Defects in the authentication of attachments in support of a MSJ or response are *usually considered to be defects of form that are waived absent an objection.* *However, it has also been held that a complete lack of authentication is a defect in substance that is not waived by the failure to objection.* Thus, when a party made no attempt to authenticate loan documents, correspondence, and court records submitted in response to a MSJ, and the evidence was neither identified nor referenced in the party's affidavit, none of this evidence was properly before the TCT, and this objection could be urged for the first time on appeal. Statements deemed "conclusory" can also eliminate the proper authentication of summary judgment evidence.

Rule 86 MTTV procedure

Defendant must file the motion prior to or concurrently with any other pleadings or motions except a special appearance (if any). Defendant must allege venue is not proper where the plaintiff filed suit and identify county where venue is proper. Defendant should deny venue facts relied on by Plaintiff to put them in issue. Venue facts plead by Plaintiff are taken as true unless expressly denied. Once denied, Plaintiff must make prima facie proof of those facts. Defendant must assert the legal and factual basis in support of the transfer; and name a county they seek to transfer to and why it is legally/factually proper.

Effect of non-suit: Scenario: P sues D; D files a MTTV; P realizes "oh crap, that MTTV is going to be granted!" and decides to take a nonsuit so P can file somewhere else where venue is proper, but NOT where the D seeks to transfer (if there's a couple counties where venue is proper). Defendant objects to venue, and Plaintiff takes a nonsuit without specifically denying the venue facts alleged by the defendant. Effect?

Defendant's venue facts are taken as true (should the case be refiled). If P takes a nonsuit without specifically denying the venue facts alleged by D, the D venue facts are taken as true should the case be refiled. Because the nonsuit will be without prejudice to refile, subject to SOL. However, if you file nonsuit after the court has ruled on the issue, the nonsuit can be taken but venue is fixed under res judicata. (or estoppel)

Pleading Process: Defendants

Defendants can file various non-merits defenses or dilatory pleas, some of which must be filed before others or they are waived. Independent grounds for defeating P's recovery Affirmative defenses Challenges to PJ, SMJ, venue, etc.

Replevy

Definition: Replevy is to recover or take back goods that are being unlawfully withheld or withheld from their rightful owner. TRCP 599 provides that the D may replevy on the filing of the required bond. The amount of the bond required of the D is the amount of the P's claim, one year's accrued interest if allowed by law, and the estimated costs of court. At the election of the D, however, the bond may be set at the value of the property the D seeks to replevy. -Either party is entitled to judicial review of the amount of the bond, denial of bond, sufficiency of the sureties, and the estimated value of the property attached. -The D may move to have property of equal value substituted for the property attached.

Timing For Testifying Expert Discovery Big picture: when do you have to designate experts and when do you have to make available for depositions?

Depends on when the expert report is produced. Court has the discretion to order that an expert's opinion be reduced to a report. Or the party may want to do it because if you are the party seeking affirmative relief, if no expert report is produced, you have to first designate your experts before the D, and you have to make your expert available for deposition relatively promptly. The party seeking affirmative relief has to disclose their experts first

Notice and Formalities of Depositions How do you compel a person to appear for a depo?

Depends on whether the deponent is a party to the lawsuit. A deponent who is a party, or who is "retained by, employed by, or otherwise subject to the control of a party," can be compelled to attend merely by serving a notice of oral or written depositions on the party's attorney. Need subpoena AND notice for non-party Party - just notice Non-party - subpoena and notice.

Determining the amount in controversy. What do you include?

Depends whether you are under common law, expedited trial rule, or the statute, etc. The way you compute the AIC different; they include different things in the formulas they use to compute. Petition should contain allegations indicating a claim for an amount that is within the court's jx, and allegations that would sustain a recovery of that amount. Any part of the damages that exceed the jx of the court (such as attorney's fees) will be disregarded. Today, the P must plead a range of potential damages. Generally, under the common law, look to good faith allegation in the P's petition for AIC What have they alleged as the AIM, and take P at their word. If you think a P is fraudulently stating an AIM solely to confer jx to a court that otherwise would not have jx you should contest jx by filing a "plea to the jurisdiction" But it hard to show that P has this fraudulent motive and prove it.. -Rare. Most lawyers understand that the P complaint is just kicking things off the lawsuit. That there are claims in there that may or may not have validity. -Thus, you rarely see pleas to the jurisdiction because if the AIM controls, you only need to exceed $500 in the DCt, $200 in CCC & CCL, more than a penny in JPs. So you never see complaints today that the amount is so large it is only there to confer jx.

Discovery Level 1 (TRCP 190) - small cases

Designed for relatively small cases in which only monetary damages are sought (no equitable relief). Expedited trial rule - sets limits for disco (level 1) but also limits the amount of time you have for disco, to try the case, to argue, limits amount spent on ADR, etc. Procedures designed intentionally trying to make less expensive. Idea is that the cost of litigating small cases didn't warrant expense; priced out of the courthouse; everything is going to ADR. So the idea is that citizens in expedited trials can still afford to have right to access the courts. Hopefully this will help. Carlson likes it; having tried cases with limited disco, it's fun. She likes trial by ambush. Disco is boring and expensive.

WHEN TO FILE THE LAWSUIT: STATUTES OF LIMITATIONS AND STATUTES OF REPOSE

Different types of claims have different time periods in which they need to be filed. -Failure to observe time deadlines, including SOL, is a great source of attorney malpractice claims. Lawyers have multiple clients, and each claim has multiple deadlines. -Ch16 of the Civil Practice and Remedies Code (CPRC) has listing of SOL or statutes of repose (create absolute time limits on the right to sue certain kinds of defendants, even if the particular P's claim has not yet arisen) -You can have different claims in a single lawsuit with different SOL: -EX: contract and fraud case. SOL for contracts is 2 years; fraud is 4. -Have to be mindful of how much time you have to bring lawsuit before it is barred.

Reasonably tailored discovery request? Why or why not?

Discovery requests must be reasonably tailored to include only relevant matters. Discovery orders requiring production from an unreasonably long time period or from distant or unrelated locales are impermissibly overbroad.

Legal Malpractice

Discovery rule applies. Special tolling doctrine limitations period is suspended until all appeals are exhausted in the underlying action When an attorney commits malpractice, the prosecution or defense of a claim that results in litigation, the SOL on a malpractice claim against that attorney is tolled until all appeals on the underlying claim are exhausted or the litigation is otherwise concluded.

TRO STEP 2: Filing the Petition and Application for TRO with the Clerk

Discuss with district clerk appropriate court to contact: -What judge are we going to contact? Where is venue proper? -Where you file the TRO is in all likelihood where you will try the case. -Consider the judicial make up of that particular county. Then look at the local rules of that county. Is there anything in the local rules pertaining to this situation. Check with judge regarding availability for the TRO hearing --EX: Harris County's local rules are different from most counties because local rules provide for an ancillary docket to hear things like injunctive relief and TROs --Harris County's local rules - each district judge will sit for a week at time "ancillary" - like a doctor on call. Judge sitting ancillary is on call 24/7. --Can check the Harris County's district clerk's webpage to see which judge is sitting ancillary. Order of events: You prepare all this paperwork - you present your application for the TRO to the judge before filing the petition with the clerk and see if the judge is going to grant it. This may or may not be an in-person hearing. The Rules of Judicial Administration allow court to conduct hearings via the phone. So if it's 2am, you may have a phone hearing. Up to judge. Rule 685: must present application for TRO to the judge before filing the petition with the district clerk

What do you win in a plea to the jx?

Dismissal for lack of SMJ; the court has no authority to do anything, not even transfer case.

District Courts: Transfer Between Courts

District Court judges can "swap benches" or transfer cases with another District Court in their county EX: judge gets sick, or has some other obligation. DCt judges can bring in a "visiting judge" if that judge qualifies under the statute to sit in the judge's place. TRCP 330 provides further that any district judge may in her or her own courtroom try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other district court and hear and determine any case pending there. This only applies to district courts. Lower courts, with the consent of the District Court judge, may transfer a case to the District Court (e.g. a case with an especially complex issue of law). Unusual REQUIREMENTS: 1. Consent of District Court Judge 2. Must be within the jx of transferee court Other courts may transfer cases to and from the dockets of their respective courts, as long as the above two requirements are met. E.g. transfer from JP court to another JP court.

Expert Disclosure - suits AFTER 1-1-21

Doesn't come until later in disco process Information pertaining to testifying expert witnesses must be disclosed without awaiting a discovery request, but that designation is not required until later in the discovery process. TRCP 194.3 Party seeking relief discloses experts first. Experts testifying for a party seeking affirmative relief, disclosure must be made no later than 90 days before the end of the discovery period. If NOT seeking affirmative relief: disclose 60 days before end of disco With regard to other experts 60 days before the end of the discovery period. TRCP 195.2.

"Doing Business" in Texas under LAS

Doesn't mean commercial business. Means "taking action" in Texas.\ EX: driving a car and getting into an accident qualifies as "doing business" here. Gives examples, but they are not exclusive. Also, just because they do these acts, doesn't necessarily mean they meet PJ. Still have to do PJ analysis. So don't get hung up on "doing business" in TX

ELECTRONIC DISCOVERY

ESI (electronically stored info). AI programs are used in large ESI productions. Work with programmers to find key words. Allows you to look in a more targeted way. Emails, voicemails, digital documents, etc. You can discover not only the data, but what has been removed. Embedded data, and metadata. Not as extensive as federal court. In federal rules, you are supposed to get together with opposing counsel to figure out required ESI and format. In TEXAS, we don't have, but a good idea.

Failure to Plead vs. Failure to Prove Suppose a P never pleads an AIC, and does not allege that the amount is within the jx limit of the court. What happens?

EX: Damages proved to small - at trial in the CCL, the evidence shows less than $200 AIC. HELD: P has not established TCt's jx. EX: Damages proved to large - County court trial, evidence shows that AIM since filing is more than $500k. HELD: P has failed to establish TCt's jx before resting its case.

Unfortunately, the line between "form" and "substance" is unclear and appellate cases are inconsistent. Case law continues to develop concerning the point at which the defective nature of summary judgment proof is so integral to its probative value that the defect is deemed to be one of substance rather than form.

EX: a party's reliance on verified pleadings as summary judgment proof has been ruled a substantive proof problem, which required no TCT objection. Similarly the absence of a jurat on a summary judgment affidavit has been held to be a substantive defect, although the decisions are not uniform on this point. [A jurat is a clause at the foot of an affidavit showing when, where, and before whom the actual oath was sworn or affirmation was made.]

Other Discovery Privileges We don't have common law privilege in TX that aren't in statutory Rules of Evidence.

EX: no such privilege as parent-child that can be brought in through CL

Depos taken before an officer authorized by law to take depositions unless notice of non-stenographic deposition. TRCP 199.1(c)

EX: tape recorder, video, etc. you must give 5 days notice. Allows the other parter to request a court reporter. You do have a right to take depo without a court reporter present; court reporters are expensive. Problem with tape recording is there's no one there to keep people from talking over each other. Carlson would hesitate to use non-stenographic depo unless client doesn't have the means to pay.

Frivolous pleadings -

EX: when made primarily for the purpose of harassment or to maliciously injure someone; knowingly contains false statements. NOT frivolous simply because the facts have not been fully substantiated or because lawyer expects to develop during discovery NOT frivolous to take client's position even if counsel believes it will ultimately fail.

CCC Judges

Elected position - Judge Hidalgo in Harris County NOT required to be lawyers, and usually are not. County Judge presides over *commissioner's court* - -Made up of the elected County Judge and elected commissioners -really isn't a court but an administrative body that runs the county. -They're the ones that figure out how to respond to coronavirus, hurricane, toll roads, etc. Because larger counties (EX: Harris County) Judges have to do some much administratively, judges have traditionally chosen to transfer their dockets to the County Courts at Law (which by statute they are allowed to do) But in medium and smaller counties, the County judge does have a civil and criminal docket.

Class Actions & Choice of law:

Especially in cases with a potentially nation-wide class, can be difficult to assess and apply. Nonetheless, the trial court must conduct choice of law analysis before deciding whether the class should be certified. EX: 1000 members to a class; each overcharged by $1 by Visa. Bring a lawsuit. The consumer laws that govern CC charges are different from state to state. Very complicated. The TXSC has signaled that choice of law is something that the TCT should assess as a factor regarding whether the class should be certified or is it too cumbersome

Trial by consent:

Essentially a waiver of a right to complain (due to lack of a proper objection) that there's no pleadings to support the submission or evidence of this issue. when parties try an issue by consent because they were not raised by the pleadings and no timely objection on that basis. Treated as if the issue was raised in the pleadings

Sanctions as damages: in Lamaster, the court ordered a D who refused to produce a W for depo to pay a daily fine that doubled periodically.

Eventually the P waived all relief asked for in the petition and sought judgment for the accumulated sanctions, up to the amount originally sought. Court entered judgment for $65k and the court of appeals upheld.

16.051. Residual Limitations Period

Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than 4 years after the day the action accrues.

What if a party wishes documentary evidence to form a part of the summary judgment proof that is not on file with the court?

Example: Defendant files a motion for summary judgment based upon an affirmative defense of res judicata and must establish a prior final judgment on the merits adjudicating the same claim between the parties or a transactionally related claim that could have been litigated. A court may take judicial notice of its own records, but not records of other courts. So, best practice--attach to the motion for summary judgment certified copies of the court record of prior proceeding, i.e., the petition, the answer, and the judgment.

Extension of TRO

Extension requests must be in writing May only be extended once for a like period, absent an agreement to the contrary TRO is only for 14 days maximum; then extension for the same time period as original TRO. So if original TRO was for 4 days, then extension can only be 4 days.

Objecting to written discovery: (overly broad, irrelevant, etc.)

Failure to object properly to improper disco requests (or failure to timely assert privilege) may waive a party's right to assert an objection (or privilege); When you're served with disco request, get with client immediately and discuss. How extensive it is, how to respond, etc. Is it objectionable? Privileged? Generally have 30 day response time. By the time it is due, must interpose objection: overly broad, overly burdensome.

What to file if D recognizes AIC is not within jurisdictional limits?

File a "Plea to the Jurisdiction" -no time constraint as lack of SMJ can't be waived No time constraint for filing because SMJ can't be waived.

EX: You represent a party in a suit filed in Houston over a car accident that happened in Houston where you and your client live and works. You receive a notice from the opposition to take your client's oral depo in El Paso, where the opponent resides. What do you do?

File a motion for protective order or motion to quash the notice of depo. If the motion is served by the third business day after service of the notice, the depo is stayed until the motion can be ruled on. You would argue that El Paso is not one of the locations allowed by Rule 199: your client neither resides nor is employed there, it is not the location of the suit, and it is not a "convenient" location.

What does the process server do after service?

File a return of service. Almost always done electronically today. Rule 107 has a lot of requirement for what has to be included with return of service. If we need strict compliance with all 11 requirements if seeking a default judgment. If the D is not found, must file with court to show diligence in trying to serve Service on an entity is governed by Business Corporation Act makes the president, VP, and the registered agent of a corporation.

How do you procedurally raise misjoinder of claims or parties (here, if you represented the insurance company)?

File a verified plea in abatement, asking for severance, and then move for summary judgment

Cases Applying the Dawson-Austin General Appearance Standard Mere inclusion of a challenge to the method of serving citation in the same instrument as a special appearance motion does NOT waive jx challenge

Filing of Rule 11 Agreement that extends D's time to file a responsive pleading before filing a special appearance motion also does NOT violate Rule 120a's due order of pleading requirement and does not constitute a general appearance. Rule 120a(1)'s language concerning "the use of discovery processes" means that engaging in discovery and obtaining the trial court's rulings on discovery motions concerning discovery related to a special appearance "does not amount to a recognition that the action is properly pending or a request for affirmative relief inconsistent with the jx challenge.

The "Fair Notice" Concept

Following cases consider whether the petitions in question sufficiently inform the D of the P's COA by identifying the duty breached by the D under the substantive law. Notice the issue of waiver: if the P's petition is defective, the D must bring the defect to the TCT's attention in the correct way and at the correct time, or the defect may not be raised on appeal.

Ripeness:

For a justiciable controversy to exist, the claim must be "ripe." A claim is not ripe if a matter essential to the claim has not yet occurred or may never occur and thus no SMJ. Can't be an anticipatory; hypothetical case. EX: school might prohibit prayers before games. Hypothetical. Unless it's happened, no injury yet. Relates to the prohibition on advisory opinions

There is a cap on the litigation expenses that may be shifted that is tied to the Plaintiff's recovery.

For cases filed after September 1, 2011, the litigation costs awarded pursuant to Rule 167 may not be greater than the total amount that the claimant recovers or would recover before adding an award of litigation costs or subtracting as an offset an award of litigation costs in favor of the defendant. *In other words, Fee shifting can never be more than the recovery.* So, if a P gets a take nothing judgment, and they turned down an offer, they're not of pocket anything because the total the claimant is getting is zero.

The Pleading Process - Plaintiffs

For plaintiff's lawyers, the next step is to draft, file, and serve the initial pleading, which in TX is called an original petition.

Filing discovery with the court

General Rule-Discovery requests and responses *between parties are NOT filed with the court unless necessary to rule on motions* concerning the same or the court orders it filed or it needs to be included in the record for appeal. TRCP 191.4(a) The lawyers are obligated to keep that material during the pendency of the case and any related appellate proceedings, unless otherwise provided by the court TRCP 191.4(d). Discovery requests, depo notices & subpoenas served on *non-parties ARE filed with the trial court*. TRCP 191.4(b)

STANDING:

General Rule: a Court lacks SMJ on claims that the litigant lacks standing. A person has standing to sue only when they have personally suffered a "*concrete and particularized*" injury. (actual injury) The injury must also be "*Actual or Imminent*" (not hypothetical) If there's no standing, there's no SMJ. So any judgment without standing is void for lack SMJ. Other standing requirements may be required by statute for particular cases --Ex. Some DTPA claims require the claimant to be a consumer; must have "consumer standing" to bring suit under statute

Post-judgment discovery:

Generally the same rules as pre-trial discovery Used to discover assets to execute judgment, assuming it is unpaid. Judgment creditor may discover any matter relevant to collection of the judgment. TRCP 621a. Useful especially when a judgment debtor is less than forthright about their ability satisfy the judgment and trying to hide assets, etc. Judgment debtors that don't cooperate can be subject to sanctions for discovery abuse.

Due Order of Rulings

Generally we need the court to rule on the special appearance motion before deciding other issues. You can't file a special appearance challenging PJ then file some other motion availing yourself of the court -Can't test drive the court, see how it goes, don't like it, then want to win on the special appearance Be sure to insist that the judge hears your special appearance motion before deciding any other issue, otherwise, special appearance may be waived.

Net worth of a D, is it relevant?

Generally, the wealth of a D is NOT relevant. Jury doesn't need to know/shouldn't know. However, net work IS Relevant to the issue of punitive damages. Have to know how much they have to see if it is actually a punishment. Has been held not discoverable when no proper claim to punitive damages has been made U.S. Supreme Court: Wealth of a party doesn't in itself justify an excessive punitive damages award, the more important factor is the degree of reprehensibility of defendant's conduct. If it goes too far it becomes a deprivation without due process. Generally shouldn't exceed a single multiplier (up to x9). Once you get past that punitive are suspect as being excessive.

Can't recover more than level 1 limits [now $250k] (even if jury awards more). Why??

Greenhall decision doesn't apply - the blind baby hospital case. The P sought $100k in mental anguish; jury returned with $128k. P moved to amend pleadings. Q: did TCT properly allow amendment? TXSC: Yes, can amend pleadings after verdict/before judgment to match verdict. This principle does NOT apply to Disco 1; you are locked into limits on recovery. This Limit only applies to the ULTIMATE RECOVERY. Not what is pled or what goes to the jury. EX: If P recovers way above the limit, but then is reduced below the limit because of comparative fault, etc., the P can take everything because the ultimate recovery is below the limit.

Surgitek, Bristol-myers corp. v. Abel (Tex. 1999) FACTS: 106 Ps sue breast implant manufacturer. D argues that 104 Ps could not independently establish venue. P argues "essential need" to pool resources of common experts and issues.

HELD: A trial court may limit the scope of evidence on its section 15.003(a) determination to pleadings and affidavits, but it has the DISCRETION to consider a broader range of evidence including live testimony." Can hear more than just the "paper proof." Why? Looking at the four factor exception under 15.003, it is clear why the court may need to consider a broader range of evidence. Hard to show, except in a conclusory fashion, that maintaining venue doesn't unfairly prejudice another party. Or to show an essential need. This sort of evidence typically should be subject to cross examination. Because of the subjective nature of these 4 factor exceptions, the TXSC gave the TCt discretion to hear live testimony. There is an interlocutory appeal available to review a trial court's 15.003 ruling, what is the standard of review? (De Novo) A Plaintiff that cannot independently establish venue, and is challenged, must demonstrate the four factor exception, including "there is an essential need to have the person's claim tried in the county of suit where the suit is pending." *Here*, it is not enough to prove the need to pool resources against common experts and issues. Pooling resources for Ps is not enough. Court Agrees with D that the "essential need" element requires each P seeking joinder to demonstrate that there is an "essential need" for her claim to be tried in Bexar.

Coates v. Whittington, 758 S.W.2d 749, 750 (Tex. 1988) FACTS: Relator plaintiff sought damages for mental anguish in her products liability claim for burns she sustained from oven cleaner. Seeking various damages, including mental anguish. D: she's putting her mental state into controversy so she must submit to exam. TCT: granted defendant's motion to compel relator to under go a mental examination pursuant to Tex. R. Civ. P. 167a. Relator sought a writ of mandamus vacating respondent's order, which the court of appeals denied.

HELD: After review, the court concluded that respondent abused its discretion in ordering relator to undergo a mental examination. *Does a routine allegation of emotional distress in a products liability case put a party's mental condition in issue?* NO. A routine allegation of mental anguish arising out of an injury did not place a party's mental condition in controversy and concluded that there was not good cause for ordering the examination, as there was it would not be relevant to the issues in controversy, nor would it be likely to lead to relevant evidence, and the information was not necessary for defendant to obtain a fair trial, even though the defendant alleged contributory negligence and a pre-existing condition.

Getty Oil V. Ins. Co. of N. A. (Tex. 1992) Court looks at the history of TX approaches to res judicata and lands on the transactional approach, part of the Restatement of Judgment. FACTS: Suit #1= Plaintiff sued D NL and D Getty. Getty filed a cross claim against D NL. Judgment for P. Getty found to be 100% negligent, so Judgment for P and D Getty take nothing on its crossclaims. Suit #2= Getty v. NL on a slightly different theory, but the same T/O, same party they cross-claimed against in Suit #1. Getty also brings in NL's two insurers, INA and Youell as D2 and D3, asserting that they were contractually obligated to provide insurance that would cover the judgment against Getty in suit #1.

HELD: Getty seeks the same relief in suit 2 as it sought in suit 1 but on a different theory. It is a transactionally related claim that could have been litigated in Suit 1 so barred by res judicata as to NL in Suit 2. HOWEVER, Getty's claims against the two insurance companies, defendants INA & Youell derive from the same transaction litigated in suit 1, BUT they could not have been litigated in Suit 1 as they were based on a "no action" insurance policy, which does not give a 3P a right of action (i.e. Getty's claims) against the insurer does not arise until judgment is secured against the insured. (NL is the insured). Thus, those CLAIMS WERE NOT MATURE IN SUIT 1, so not barred by res judicata as to the insurers.

Wilson v. Texas Parks and Wildlife Dept., (Tex. 1994) FACTS: Ps sued Texas Parks and Wildlife Department in Travis County alleging the D's negligence caused the drowning deaths of relatives. D filed motion to transfer venue to Blanco County. After trial, a take-nothing judgment was entered in favor of D. Two counties are proper, both permissive: Blanco - where the events took place; Travis - PPB. Either one P could pick. Travis - is what the P started. But D files MTTV to Blanco that is granted. Turns out the P's choice WAS proper. Goes up on appeal. D: there's no per se reversible error here because the case ended up in a venue of proper venue. ISSUE: If the trial court transfers a case when it should not have done so as suit was filed in a proper county, but the county of transfer would have been proper from the outset, is this per se reversible error or harmless error?

HELD: If P files suit in a county of proper venue, it is reversible error to transfer venue, even if the county of transfer would have been proper if originally chosen by P. PER SE REVERSIBLE ERROR. A rule to the contrary would eviscerate the P's right to select venue. P has lost a right he neither wavied nor was rightfully divested of. Harmless error rule should not apply. When venue is improper it is per se reversible error. In determining whether venue was proper or not, the appellate court shall consider the entire record including the trial on the merits

In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003) ISSUE: In this mandamus proceeding, we decide a question of first impression regarding the proper interpretation and application under the Texas Rules of Civil Procedure of the phrase "possession, custody, or control." See TEX. R. CIV. P. 192.3(b), 192.7(b). If a party has access to documents, does that mean they are in that party's custody and control? FACTS: The respondent trial court, in an action filed against relator Hal Kuntz in his individual capacity in an underlying divorce suit settlement, ordered Kuntz to produce documents that he had access to at his place of employment. It was undisputed that Kuntz's employer had actual physical possession of the relevant documents, that the documents were owned by a client of Kuntz's employer, and that the client claimed the documents contained [**2] its privileged trade secrets.

HELD: In this Court, Kuntz asserts that his mere ability to access the documents does not constitute possession, custody, or control. We agree and, accordingly, conditionally grant the requested writ. TRCP 192.7(b). Must produce discoverable documents within a party's possession, custody or control. If a party has access to documents are they necessarily within that party's possession, custody or control? NO. Analogy: just because a bank teller has access to cash, doesn't mean she has right to possess it. What if alter ego is established? HOLDING: Hal's mere access to the relevant letters of recommendation does not constitute "physical possession" of the documents under the definition of "possession, custody, or control" set forth in Texas Rule of Civil Procedure

Martin v. Martin, Martin & Richards (Tex. 1998) ISSUE: Whether an agreed dismissal with prejudice of a suit seeking to declare a contract valid bars a subsequent action for a breach occurring after the dismissal?

HELD: It does not. "As a general matter, a judgment dismissing with prejudice a claim for a declaration that a contract is valid does not amount to a declaration the contract is invalid and does not preclude an action for subsequent breaches."

Michiana Easy Livin' Country, Inc. v. Holten, (Tex. 2005) FACTS: Similar to CMMC case. Texan wants a good deal on an RV, finds a better deal in Indiana. Goes to Michiana (borders on Michigan), TX buys, pays for it to be shipped to TX. RV has problems with it, Texan sues D, saying they misrepresented RV, sued under DTPA. D files a special appearance, argues that it doesn't do biz in TX, doesn't target it, no employees there. Not subject to PJ.

HELD: Just because a nonresident is a tortfeasor and could foresee that a TX resident could feel the brunt of its activity, that's not adequate to support PJ. It is an isolated sale, solicited by Texan, the D has never been in TX, doesn't target TX or do business here otherwise, etc. So it would not comport with due process for TX courts to exercise due process. Again, NO discussion of strong state interest in protecting its citizens. Really have to find purposeful availment. Targeting of TX market.

GONZALEZ V. RELIANT ENERGY, INC. (TEX. 2005) FACTS: The decedent was killed in an accident at the utility's power plant in Fort Bend County. The administrator/wife and her children lived in Hidalgo County, where the probate proceedings were filed; the utility's principle office was in Harris County. Petitioner administrator filed identical wrongful death suits against respondent utility in a Hidalgo County probate court and in a Harris County district court (D's PPB so venue is property). Wife wants to pull down the wrongful death case into Hidalgo, but venue is not proper there for the wrongful death suit. So can a Hidago County SPC "pull down" the Harris County case? ISSUE: May a statutory probate court exercise "pull down" jurisdiction of a case from another county where venue is proper when it relates to the pending probate matter but venue would NOT be proper for that matter in the county where the statutory probate court sits?

HELD: NO. SPC cannot exercise "pull down" jx to transfer a case to itself if venue is improper. There is no proper venue in Hidalgo county for wrongful death suit, so SPC cannot pull down case to a SPC if it sits in a county where venue is not proper.

Moore v. K-Mart Corp, (Tex. App.-San Antonio 1998) FACTS: Kmart trip and fall. A material fact is genuine if the evidence is such that a reasonable jury could find the fact in favor of the non-moving party.

HELD: Plaintiff put on no summary judgment proof that K-Mart had actual or constructive knowledge of a dangerous condition, a necessary element of the Plaintiff's premise liability claim, and thus the trial court properly granted a no evidence summary judgment against Plaintiff (Plaintiff take nothing)

Brooks v. Northglen Association (Tex. 2004) - *compulsory joinder case* FACTS: Declaratory judgment action involving 8 property owners' challenge to their homeowners association's (Northglen) attempt to increase & accumulate annual assessments & impose fees on homeowners in Sections 1-6. Northglenn Association sued for declaratory relief that its actions were valid exercises of its authority. The homeowners (Brooks) counterclaimed asserting no such authority in the deed restrictions and the deed restrictions in 3 of the 6 sections precluded accumulation. Following an adverse decision, Northglen asserted for the first time on appeal that the trial court lacked subject matter jurisdiction as homeowners (Brooks) did not join Northglen property owners from Sections 3 and 6. ISSUE: Were these homeowners in Sections 3 and 6 required to be joined in the lawsuit to have SMJ? Remember test for compulsory joinder of a party: 1) if in their absence would prevent complete relief among existing parties 2) or if their absence would subject parties to competing/inconsistent claims.

HELD: The Texas Supreme Court holds the judgment is binding on Northglen and the homeowners who were represented but not on those from Sections 3 and 6, who had no representation, are NOT bound. As a matter of due process, 3 & 6 weren't present; didn't have their day in court. *"[I]'t will be rare indeed when an appellate court properly determines that the trial court lacked subject matter jurisdiction to adjudicate a dispute when the nonjoining person's absence is raised for the first time on appeal by one of the parties in the trial court....."* *Northglen complains that it will be subjected to potentially inconsistent judgments*- COURT: that "is a product of its own inaction (WAIVER). Northglen could have sought relief at trial by urging the court, among other things, to abate the case, join absent homeowners or grant special exceptions." Since there was SMJ as between the existing parties, it does not deprive the court SMJ as to the parties before the court that there was nonjoinder of other parties. *Had Northglen raised the non-joinder of homeowners by a plea in abatement from Sections 3 and 6 at trial, would the trial court error in not ordering their joinder?* YES. Clearly are indispensable parties. Might have inconsistent judgments. *Are those homeowners in Section 3 and 6 bound by the judgment when they were not parties? Due process?* No. Would violate due process

In re Mo. Pac. R.R. Co., (Tex. 1999) ISSUE: Whether the P in the underlying lawsuit sued the corporate defendant in a county where it maintains a "principal office" as defined in the venue statutes FACTS: Consolidated mandamus proceedings. Plaintiffs sued defendant railroads under the Federal Employers' Liability Act (FELA). Ps alleged that the RR maintained a principal office in the counties of suit. RR denied and moved to transfer venue to Harris County where the RR had a principal office. FELA venue statutes provides for mandatory venue in 1) county giving rise to events; 2) county where D's principal office in the state is located, or 3) county where the P resided at the time the COA accrued. 1 and 3 don't apply because none of the Ps reside in the county of suit and none claim the COA arose there. TCt: denied defendants' motions to transfer the venue. Defendants filed petitions for writs of mandamus, contending improper venue because plaintiffs sued them in counties where they allegedly did not maintain a principal office, as required by the venue statute, Tex. Civ. Prac. & Rem. Code Ann. § 15.018(b).

HELD: The court conditionally granted the writs of mandamus. The court held that plaintiffs failed to establish that the counties in which plaintiffs sued were principal offices of defendants. The burden then shifted to defendants to prove that the county of their choice was a proper venue. The court held that defendants showed that the county of their choice (Harris) was a principal office, and therefore a proper venue under the FELA. The court held that the trial courts abused their discretion by not sustaining the motions to transfer. *Can there be multiple principal Offices?* a corporation can have more than one principal office. We are bound by the statutory definition of "principal office" as "a" principal office *What if one office is subordinate to another?* NOT a principal office. The term "principal" indicates some sort of primacy. It is unlikely that an office clearly subordinate to and controlled by another Texas office could be "a principal office." Finally, in context, "the daily affairs" of a company cannot mean relatively common, low-level managerial decisions. *The mere presence of an agency or representative does NOT establish a principal office* *What if there are no decision makers of the daily affairs of the entity at the Texas office?* Then NOT a principal office LAW (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.

Vale v. Ryan, (Tex. App.—Austin 1991) FACTS: P sues D in federal court, asserting federal claims and pendant state claims. D moves for MSJ on pendant state claims. Court grants, but doesn't sever, so they are not final judgment to appeal. (Generally can't appeal until you get final judgment; or statute gives you a right to interlocutory appeal) Federal court dismissed the state claims with prejudice Federal court does have discretion to hear pendant state claims. But if the federal court is not going to rule on the merits of a case, it should not have dismissed with prejudice. That bars ever refiling. P argues this, but court doesn't listen. P gets concerned about limitations, and files a state TX action of the pendant state claims. D moves MSJ again in state court based on limitations. Two years later, the appeal of the federal suit goes up to the 5th Cir. holds that TCt should not have dismissed the pendant state claims with prejudice. If weren't going to hear state claims, they should have dismissed without prejudice. ISSUE: When does the TX saving statute begin to run? Does it apply to bringing a case initially in federal court that is dismissed?

HELD: The court found that the federal court's refusal to hear all the issues was tantamount to a dismissal for lack of jurisdiction. The court determined that the saving statute applied to toll limitations period during the pendency of appellant's federal suit. *When does the 60 day period begin to run for P to refile under the facts of this case?* -Savings statute didn't start to run until there was a dismissal without prejudice. -Until September 6, 1989, when the Fifth Circuit ruled that the federal district court's dismissal of the pendent state claims should have been discretionary rather than on the merits, Vale did not have a cause to which the saving statute could apply. *Does the Texas savings statute apply when the dismissal for want of SMJ is by a federal court on pendent state claims and the claims are refiled in Texas state courts?* YES. HELD: a litigant who chooses the federal forum in good faith should not suffer a penalty merely for having made that selection.

Charter Med. Corp. v. Miller, 547 S.W.2d 77, 78 (Tex. Civ. App.—Dallas 1977) FACTS: The trial court entered a temporary injunction, enjoining defendant hospital and others and all others acting in concert with them, from attempting to enforce the provisions of the amended bylaws of defendant hospital. Defendants hospital challenged the temporary injunction as defective arguing that the TI did not set forth specific reasons for its issuance. Why is the temporary injunction order defective?

HELD: The court held the recital in the order did not comply with the requirement of Tex. R. Civ. P. 683 that every order granting an injunction set forth specific reasons for its issuance. Trial court's order is conclusory; does not have specific reasons. Should have specify the underlying facts that support the conclusion. All we have here is the conclusion. The recital of "irreparable damage herein and injury by virtue of defendants' conduct" lacked the specificity required by Rule 683 and by decisions. Accordingly, the court dissolved the temporary injunction. *Is the injunction order void or voidable?* Void order. *How does court dispose of the case?* -It dissolved the injunction. -The P could try again. Not limited to one try on a temporary injunction. Have to start from scratch. -The ramification of failing to comply with specificity requirements is that it will be void. Must make sure it is particularized for your case to withstand attack.

In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) FACTS: The employers complained that certain interrogatories served against them by the employee were overbroad and irrelevant. -First, the employers never employed the employee because they were subsidiaries of the principal, which also never directly employed the employee, but acquired the employee's former employer. -Second, the requested time period extended 25 years beyond the time the employee was employed the predecessor in interest.

HELD: The employee's request could have easily been narrowly tailored to obtain information pertinent to the time period which the employee was employed. The interrogatories lacked reasonable limitations as to time and subject matter. Accordingly, without hearing oral argument, relief was conditional upon the trial court vacating its order compelling answers to interrogatories 16, 17, and 18.

Southwestern Refining v. Bernal 22 S.W.3d 425, 428 (Tex. 2000) FACTS: Refinery explosion, over 900 plaintiffs alleged injuries resulting from the explosion of a refinery tank owned by defendant. ISSUE: Should this case be certified as a class action? Just because you file a case as a class action doesn't mean it will be certified as a class action.

HELD: The trial court's certification order was an abuse of discretion because common issues did not predominate over individual issues. The days of "certify now and worry later" are over - code for lower courts should be strict in applying class action certification standards. *Was the predominance factor met? Why or why not?* -No. Court argued that the injuries varied too much from person to person -The test for predominance is not whether common issues outnumber uncommon issues but, as one court stated, "whether common or individual issues will be the object of most of the efforts of the litigants and the court." -If, after common issues are resolved, presenting and resolving individual issues is likely to be an overwhelming or unmanageable task for a single jury, then common issues do not predominate.

Leal v. Cortez, (Tex. App.-Corpus Christi 1978, no writ). ISSUE: TCT altered the agreement of the parties before it entered an agreed judgment. Permissible?

HELD: Trial court had no power to alter the agreement of the parties to settle or supply additional terms, it only had the power to put the agreement as made by the parties themselves into judgment form. An agreed judgment cannot be rendered if consent of one of the parties is lacking. Although a party may revoke consent to settlement any time before the trial court renders an agreed judgment, liability may still result for breach of the agreement to settle.

In re Cont'l Gen. Tire, 979 S.W.2d 609, 613 (Tex. 1998) ISSUE: The issue is whether Rule 507 "trade secrets" privilege protects from discovery a tire manufacturer's chemical formula for its "skim stock," a rubber compound used in tire manufacturing.

HELD: We hold that, when a party resisting discovery establishes that the requested information is a trade secret under Rule 507, the burden shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claim or defense. Because relator established that the formula was a trade secret, and because the real party in interest did not meet its burden of establishing necessity, we conditionally grant mandamus relief.

Russell v. Hartford Casualty ins. Co. FACTS: Two car collision. Appellate (P) sues D driver for "Windland Farm Products." P is provided rental car by insurance company. Unhappy, so also sues car insurance company (Hartford). ISSUE: Improperly joined?

HELD: YES. Improper joinder. Appellants' allegations concerning violations of the Texas Insurance Code and the Texas Business and Commerce Code do not arise out of the truck-automobile collision, nor do the allegations present questions of law or fact common to those presented in the negligence suit. It follows that if there were a legal basis for appellants' suit for violations of the Texas Insurance Code and the Texas Business and Commerce Code against Hartford, still that would not be a basis for the joinder of Hartford in the negligence suit against Hartford's insured. *For there to be proper joinder, the claims against the car rental company and the insurance company have to (1) arise out of the same T/O and (2) have common questions of law and fact for all parties.* HERE, Fails both prongs: (1) claims against car rental company and insurer don't arise out of the accident, and (2) don't have the same questions of law or fact as accident. Thus, improper joinder.

City of Hous. v. Crabb, (Tex. App.—Houston [14th Dist.] 1995) FACTS: Appellant City of Houston demolished the (P) Crabb's house. Ps sue the City under the Takings Clause, but they don't specify that in the pleadings (don't mention Takings Clause). Issue: In the absence of a special exception, did the pleadings otherwise assert sufficient facts that the reasonable attorney, reading the pleadings, would be able to devine the substantive legal theory (even though Takings Clause is not mentioned)?

HELD: YES. The court held that appellees established the elements necessary for a recovery under the takings clause, and appellant had failed to prove that it validly exercised its police power. *RULE: Pleadings are to be liberally construed in favor of the pleader particularly when the complaining party has not filed any special exceptions.* Suing under takings clause, but don't specify that under the pleadings. Court: well, does the rest of the pleadings give sufficient notice of law/facts that the D can figure it out, especially when no special exceptions are filed? Court: YES If you have any doubts regarding the legal theory, file a special exception to require P to plead with more specificity.

In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008) - *intervention case.* FACTS: Original suit: Moffet sues Union Carbide for cancer that resulted from asbestos exposure. Hall's estate intervenes claiming that Hall died as a result of asbestos exposure as well from working in the same plant D filed a motion to strike the intervention, arguing that Hall didn't have a justiciable interest. *TEST for justiciable interest*: if the original action had never been commenced, could internor (Hall) have brought the suit to recover for the original P's (Moffet's) injuries? HERE: NO. So trial court shouldn't have granted intervention. Instead of ruling on that motion, the trial court (Texas) severed the intervenors' claims into a new suit that then remained pending in the same court. D sought mandamus relief, arguing that the motion to strike should have been ruled on instead of granting a severance. Problem for D: that leaves intervenor (Hall) in the same court. D doesn't like that because it is essentially a way to use intervention to forum shop for a friendly judge/court and get around the random assignment of cases.

HELD: YES. The trial court abused its discretion by failing to rule on relator's motion to strike before considering whether to sever the intervention. Relator was entitled to conditional mandamus relief, because it did not have an adequate remedy by appeal. The writ of mandamus was conditionally granted, and the trial court was directed to vacate its severance order and enter an order granting the motion to strike. *Strategically, why do you think the intervenor sought to be a party in this lawsuit?* -Forum shopping *Why does the Texas Supreme Court hold the trial court must first rule on the motion to strike the petition in intervention before ruling on the motion for severance?* Hint: Forum shopping -Preclude forum shopping. Public policy cannot allow intervenors to use intervention as a backdoor means to forum shop for a particular court. *Could the trial court properly strike the intervention sua sponte?* NO. See Guaranty Federal case in note 3. Trial court abuses intervention if it sua sponte strikes intervention. TRCP 60 says "on the motion of any party" TCT abuses its discretion when it strikes on its own motion

Goodyear - American soccer players from NC suffered fatal injuries in bus accident in France. Brought suit in NC against Goodyear subsidiaries located in Europe. Asserted general jx based on the sale in NC of thousands (out of millions) of Goodyear subsidiaries' tire sales.

HELD: created the "essentially at home" test for general jx: general jx is applicable ONLY when a corporation's affiliations with the forum state are so continuous and systematic as to render the D essentially at home in the forum state.

Daimler - Ps were seeking deep pocket and favorable forum brought suit against Daimler in CA based on liability claims arising under the Alien Tort Statute, and the Torture Victim Protection Act and CA state law claims based on conduct that committed in Argentina. Jx basis for the claim was that MBUSA, the principal subsidiary of Daimler in CA, was Daimler's agent in CA.

HELD: even if MBUSA was "at home" in CA, and assuming MBUSA's contacts were imputable to Daimler, there would still be no basis to subject Daimler to general jx in CA, for Daimler's slim contacts within the State hardly render it at home here. Abandons the the traditional "continuous and systematic" and "substantial" test for general jx. *Goodyear test of "so continuous and systematic to render it essentially at home in the forum state" must appraise the corporation's activities as a whole worldwide.*

Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 665 (Tex. 1981) FACTS: Employee was killed in an industrial accident at work. His father, as estate administrator brought wrongful death claims for exemplary damages. Pleading alleges that employer was grossly negligent.

HELD: petitioner's claims were insufficient under Tex. R. Civ. P. 45, 47, to give respondent's attorney fair notice that the suit was for an intentional injury and thus his suit was barred by the Act. *Why did these pleadings fail to assert a cause of action in TX?* It alleged negligence actions, which are *barred by the Worker's Comp statute's exclusive remedy bar*, and did not adequately allege intentional injuries, which are not barred. Usually summary judgements aren't granted on the basis of pleadings that are defective on their face, but this shows it can happen. Doesn't state a recognized COA in Texas thus it doesn't give fair notice of a substantive legal theory on which the P can recover.

K Mart Corp. v. Sanderson, 937 S.W.2d 429, 430 (Tex. 1996) Sanderson Defendants sought mandamus; alleged that plaintiff's disco requests were improper. Interrogatories requested any type of crime that happened at KMart in the last 7 years.

HELD: request was overbroad and outside the bounds of proper discovery Can't use discovery devises as a fishing expedition. The court rejected the notion that any discovery device could be used to as a fishing expedition. The order requiring defendants to answers such interrogatories exceeded the bounds of discovery permitted by the rules of procedure. The court found that defendants had no adequate remedy by appeal and was therefore entitled to relief by mandamus.

Wheeler v. Green (Tex. 2005) FACTS: Conservatorship proceeding. H's lawyer serves 64 RFA on wife who is proceeding pro se. She doesn't understand mailbox rule, sends back answers 2 days late. She also doesn't understand summary judgments. Case brings in sanction law: if a party doesn't comply with Death penalty sanction - kills the whole case. Has due process implications - you're not getting your day in court, there must be behavior that justifies merit preclusive sanctions. Must show the party acted in flagrant bad faith and callous disregard of disco process.

HERE: W didn't act in bad faith. She just didn't understand the technical rules of disco. TCT should have allowed the withdrawal of the deemed admissions and admitted the responses. Here, bad faith is important since these are "death penalty" sanctions. Wife did NOT act in bad faith, so set aside the summary judgment and have a trial on the merits. You often see with deemed admissions that the party requesting disco will immediately move for MSJ after getting the deemed admissions. Why? Because if everything is deemed, there are no fact issues to decide, becomes a matter of law. MSJ is a judgment on the merits; it is NOT a dismissal, it is a paper trial. Res judicata applies. Clients don't understand summary judgment. They think they have a right to a jury trial in all cases. But if there's no fact issues because everything is deemed, summary judgment is likely.

What is a dual capacity witness? Are they discoverable? Why or why not?

Has both first hand knowledge of the facts and expert opinions. Yes, discoverable. Can't hide what they know first hand by designating them as a consulting-only expert

What is the appropriate proof to make out the factors that the "convenience of the parties and witnesses and the interest of justice" support transfer? What about the other factors? How do you balance them?

Have someone testify listing the venue transfer factors in a conclusory fashion about how it's going to hurt us economically to maintain the suit in the county where P sued; would benefit all parties to transfer; we can get justice in that county.

What is proof of damages? Causation?

Have to prove up both. Damages, amount of damages and that the P's actions caused the injuries.

Clayton v. MONY Life Ins. Co. (Tex. 2009) FACTS: Husband purchased a $400,000 annuity contract from Mony Life shortly before his divorce requiring monthly payments to be made to Husband. The divorce decree signed June 27, 2003 awarded wife a 50% interest in the annuity. In July 2003 Mony stopped making payments to husband and deposited the payments in a non-interest bearing account. In February 2005 Husband sued Mony and ex-wife on contract and tort claims related to the annuity. Mony answered and later amended (more than 2 years after notice of the divorce) asserting a plea in interpleader and tendered the annuity payments into the registry of the court, and ask for attorney's fees. H contested Mony's entitlement to interpleader relief.

Held: (1) The interpleader tender was proper but did not discharge Mony from liability claims which arose prior to the interpleader which claims remain to be litigated. (2) Although Mony is a disinterested stakeholder it is not entitled to equitable award of its attorneys fees in light of the 2 year delay in filing its interpleader. They had the use of that money during that time. Claims against MONY are discharged; but no attorney's fees.

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 730 (Tex. 1984) FACTS: Petitioner sued a chemical manufacturer and respondent typesetter manufacturer, jointly and severally, for injuries she suffered from chemical fumes leaking from a typesetter that was recently installed near her desk at work. Defendant failed to timely answer and suffered a default judgment in a negligence and strict liability claim.

Held: Plaintiff is relieved of proving liability but is required to prove damages, including that the event sued upon caused the plaintiff's injuries. The default judgment admitted that respondent's conduct caused the release of the chemical fumes on which petitioner based her claim, and thus conclusively established respondent's liability. The court held that petitioner's testimony at the Tex. R. Civ. P.243 hearing on damages established a causal nexus between the release of the fumes and her injuries.

S.V. v. R.V. (TX 1996) *Issue*: Does the discovery rule toll the statute of limitations in cases involving fraud or when the resulting injury was inherently undiscoverable and evidence of the injury is objectively verifiable?

Holding: Yes. The discovery rule tolls the statute of limitations in cases involving fraud or when the resulting injury was inherently undiscoverable and evidence of the injury is objectively verifiable. Under the discovery rule, the statute of limitations begins to run when the plaintiff knows, or reasonably should know, that she has been injured and that her injury has been caused by another party's conduct. Typically, a claim accrues as soon as an individual has the right to bring suit. However, the discovery rule may toll the statute of limitations where a party, through no fault of her own, does not discover the injury until after the statute of limitations normally would have run. *Here*, the applicable statute of limitations governing personal-injury actions requires a plaintiff to bring suit not later than two years after the day the action accrues. -In Texas, an individual younger than 18 years of age has until her 20th birthday to bring suit if the injury accrued while the person was a minor. -Thus, R.V. was required to file suit against S.V. no later than her twentieth birthday. -Instead, she filed the action four months after her twentieth birthday. In Texas, the discovery rule tolls the statute of limitations (1) in matters involving fraud or fraudulent concealment and (2) in cases in which the injury is inherently undiscoverable and evidence of the injury is objectively verifiable. -Here, R.V. does not allege facts implicating fraud. Thus, for the discovery rule to apply, R.V.'s injury must have been inherently undiscoverable and objectively verifiable. -Given the special relationship between parent and child and the evidence that some traumas are impossible to recall for certain periods of time, R.V. likely can establish the inherent undiscoverability element. -More problematic is the objectively verifiable element. -There must be sufficient, objective evidence or verification of injury to warrant application of the discovery rule. -However, the literature on repression and recovered memory shows a lack of consensus by academics. -Divided expert opinions are evident with respect to psychological theories of the effect of repression on memory, the effect of screening devices in recall, and the effect of suggestibility. -Opinions in this area simply cannot meet the objective verifiability element for extending the discovery rule to R.V.'s claims. The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.

NOTE 4: Prudential Limits on Permissive Intervention: Divorce case. Two years after case started, deep into discovery, a putative wife intervenes. Motion to strike by one of the parties granted by TCT.

Houston ACt: TCT should grant, because there's no reason putative wife can't bring her own lawsuit. Interminable delay and confusion would result from intervention. TCT was within discretion to strike. Court has broad discertion in striking intervention

The "ESSENTIALLY AT HOME TEST" FOR GENERAL JURISDICTION It used to be that "continuous and systematic" contacts was sufficient for general jx.

However, the USSCt made it even harder to get, and said that these "continuous and systematic" contacts must be of such volume that they make the nonresident D "essentially at home" in the forum state.

Reliance on Deposition Excerpts: authentication is NOT required as a condition to the use of depo excerpts as summary judgment proof. The excerpts need not include a copy of the court reporter's certificate or an original affidavit of counsel certifying the accuracy of the copied depo testimony.

However, two courts of appeals have concluded that a litigant must present to the court depo testimony on which the motion for summary judgment relies. Thus, a prudent practitioner will attach copies of unfiled discovery products on which the MSJ relies.

Note 8. However, a Defendant is entitled to participate and to contest damages at the hearing.

If D finds out about the hearing, they CAN participate. But without being entitled to notice, they probably won't know about it.

16.069. Counterclaim or Cross Claim

If a D is sued, they can file a counter or crossclaim that is transactionally related to the plaintiff's claim, even though it would have been otherwise barred by SOL, if the D files within 30 days of the D filing its answer (AKA "appearance day") Policy: encourages parties to not file lawsuits if they don't want to, but can still assert as counterclaim if they are sued themselves. Don't want to encourage litigation. If this rule didn't exist, people would feel like they have to file a lawsuit to preserve their counterclaims if they are sued.

The following areas should be examined carefully for objectionable defects: Defects in the Motion Itself:

If a MSJ clearly presents certain grounds but not others, no objection is required. Similarly, if the grounds for summary judgment are not expressly presented in the MSJ, the motion is legally insufficient, even if the non-movant fails to object to the motion. But if the statement of grounds in the motion is unclear, vague, or ambiguous, an objection to the motion is required to ensure that the parties, as well as the TCT, are focused on the same grounds.

When must the pleader be given an opportunity to amend in response to a special exception?

If an amendment can cure the problem, the pleader MUST be given an opportunity to amend. EX: sometimes it is not a recognized COA in TX (like "impairment of credit") - can't amend that because it's not a real COA (unless there's other COAs you could allege instead) Generally though, we don't want to dismiss cases on pleading defects; we want to give parties an opportunity to amend. If the TCt fails to provide this opportunity to amend, the aggrieved party must prove that the opportunity to replead was requested and denied to preserve error for review.

What if the counterclaim is BELOW the trial court's minimum AIC?

If below the amount in controversy limit, the court may have *ancillary jurisdiction* (assuming other requirements for jurisdiction are met) and the case law indicates that *it is compulsory if it arises out of the same transaction as the main claim and otherwise meets TRCP 97a requirements.*

Scope of MDL: applies to civil cases with common question of fact or law filed in any court (except JP courts) after September 1, 2003. Purpose is efficiency. MDL Panel decides:

If cases with common questions of fact should be transferred to one court (the pretrial court") that will hear all pre-trial matters INCLUDING SUMMARY JUDGMENTS. Either party may make a motion, in writing, to transfer a case to a pretrial MDL trial court for pre-trial matters. A trial judge may also request the MDL panel (in writing) that cases on their docket be transferred to a pretrial court The MDL panel may issue an order to a party whose suit is eligible for transfer to a MDL court to show cause why related cases should not be transferred to a pretrial court.

Affiant's Competence to Testify: to qualify as a valid summary judgment evidence, an affidavit must state facts showing that the affiant is competent to testify to the matters stated in the affidavit.

If no objection is made to the affidavit's failure to show the affiant's competence to testify, the defect is waived.

Exceptions to the general venue rule

If no one objects to venue, it is waived, even if its mandatory venue. When P is considering venue, you look at the claims, and where is venue proper. Want to consider who can actually pay, so that may mean which are covered by insurance. JPs have their own venue provisions; here we're looking primarily at DCts and CCs.

NOTE 5: If there's a statutory notice requirement (EX: DTPA), that's a condition precedent.

If the D thinks that has not been met, they should specifically plead that that statutory condition precedent has not been met under oath (verification in Rule 93) If D doesn't raise it, they can waive notice.

16.072. Saturday, Sunday, or a Holiday.

If the last day of a limitations period under any SOL falls on a Saturday, Sunday, or Holiday, the period for filing suit is extended to include the next day that the county offices are open for business

One possibility is that the parties will agree that the defendant will dismiss the case, and should provide that the dismissal is with prejudice to refile the lawsuit again. If a case is dismissed without prejudice, that means without prejudice to refile the lawsuit subject to the statute of limitations.

If the plaintiff dismisses the suit with prejudice and the defendant thereafter defaults on the settlement agreement, plaintiff cannot refile that action. However, plaintiff may sue defendant for breach of the settlement agreement. Don't have the backing of the court to enforce, because there's no judgment. But D can be sued if breach settlement agreement. D would probably prefer because they might not want a public settlement agreement of record. This is a way to achieve confidentiality; add confidentiality clause with liquidated damages to go with it. (So P can't disclose the settlement amount)

Seeking to Serve the TX Market

If there's a targeting of a state through an intermediary/distributor, that CAN meet PJ requirements. *Spir Star case (2010)*. Hoses were sold by a distributor; ruptured and injured one of the workers of a TX company. The distributor and manufacturer are sued, and the TXSC upholds PJ. Hoses were specifically made for TX refineries and distributed to TX through a 3P distributor. This is sufficient for PJ

Why does the granting of a summary judgment not violate a litigant's constitutional right to a trial by jury?

If there's no genuine issue of material fact, there's no reason to go to the factfinder, the jury.

Intentional disregard of Jx - once an adverse party moves for relief under the statutory "intentional disregard" provision, the nonmovant must show that he did not intentionally disregard proper jx when filing the case. MUST FILE IN GOOD FAITH TO GET BENEFIT SAVINGS STATUTE!

If you are found to have intentionally disregarded jx requirements, your case will be dismissed, and this could take away a big win for your client. So pay attention to jx issues! As long as you file without intentional disregard for SMJ; if it's an honest mistake, then you can use savings statute. Remember case with "front pay"; it was clearly way beyond the AIM jx of the court. *USAA v. Brite case*. -P sought to refile in the proper court using the savings statute after that decision, but they were denied that right because the court held that the P acted with "intentional disregard" of the court's jx. Very clear that your damages were in excess of the AIM. -So you have to file your case in good faith. If you do, you have the 60 days savings clause. If you don't file in good faith, you don't.

What is a "writ of restitution"?

If you have received a writ of restitution, your landlord has a judgment for possession and you can be evicted. The writ of restitution tells the U.S. Marshals Service to schedule your eviction.

Garnishment and Financial Institutions

In 2005, the TX legislature passed a statute limiting the liability of financial institutions when they fail to respond to the writ of garnishment, resulting in a default judgment. The default judgment is only as to the issue of liability, not the amount of damages. This statute supersedes the effect of TRCP 667 and requires proof to support a default judgment against the garnishee.

Wilson v. Dunn, 800 S.W.2d 833, 833 (Tex. 1990) FACTS: The district court in this case authorized substitute service of suit papers upon defendant without an affidavit or other evidence justifying such service as required by Rule 106(b) Defendant nevertheless received citation and plaintiff's petition, but did not answer, and the trial court rendered default judgment against him. Judge 1 ordered substituted service to apartment manager since they couldn't find D. Judge orders substituted service based on a motion; you can only get substituted service if you can show the court that you have tried to serve the D by personal service or mail but you were unsuccessful. The motion for substituted service has to be sworn to and supported by affidavit or made under penalty of perjury It is supposed to state the location of where the location where the D is likely to be found. But here it was NOT sworn to. It was an unsworn service. No affidavit supporting motion. Not in strict compliance with service rules as required. Trial court can order any type of service effective to give the D notice. That's the standard the USSCt set in Hanover.

In TX, if D doesn't respond to the lawsuit, the D does NOT have to get notice of default judgment hearing. At the default judgment hearing, the D isn't there, and thus the P can introduce anything they want to prove damages and no one is there to object if the P violates evidence rules (introducing hearsay or whatever the P wants). Thus the damages amounts are really high. Here: original petition was $144 damages; default judgment - $475,000! *What about the fact that the D actually received service?* Court: does NOT cure improper service in default judgment. Actual receipt does NOT cure defective service in default judgment situation. *HELD: No strict compliance (not sworn affidavit) so default judgment is set aside.*

Punitive damages, bi-furcation of trial:

In a case seeking punitive damages, the trial court should bifurcate the trial when presented with a timely motion. Requires a unanimous jury verdict (if a jury trial). Discovery is not bifurcated. First, the court will see if there's liability. If so, then will have a second phase on punitive damages. Must have a unanimous jury in TX for punitives.

SUMMARY JURY TRIAL Actually have a short trial before a jury that are NOT binding.

In a summary jury trial, the parties and their counsel present their positions before a panel of jurors, usually six, who may issue a non-binding advisory opinion. The procedure allows the parties to make a reasonable prediction of the outcome of a full jury trial and is most useful when the case turns on factual disagreements. The summary jury trial is conducted by the court in generally the same manner as an ordinary trial, but is much briefer and less formal, generally taking less than one day. The jurors are not told that the verdict is advisory. Attorneys for the parties present the evidence in summary form and do not generally call witnesses. The attorneys are limited to representations based on evidence that will be admissible at trial. The court instructs the jury panel, who then delivers a verdict. After the summary trial, the parties and their attorneys continue with settlement negotiations. If the parties reach a settlement and execute a written settlement agreement, the agreement is enforceable.

In a case tried to a jury, an opposing party need not have objected to the introduction of testimony as a prerequisite to making a complaint concerning the absence of an "issue" from the opposing party's pleadings.

In other words, an issue is not tried by implied consent of the parties in a jury case merely because no objection to the admissibility of the testimony concerning the issue was made at the proper time. Trial by consent in a case tried to a jury requires a party's failure to object to the submission of a claim or defense to the jury. On the other hand, if no objection is made to the testimony at the proper time, the party who introduced it would ordinarily be entitled to a trial amendment pursuant to TRCP 66 because the "objecting party" would ordinarily be unable to "satisfy the court that the allowance of such amendment would prejudice him." Rule 67 also provides that written pleadings, before the time of submission, are necessary to the submission of jury questions. This means that written pleadings are necessary to support a party's right to the submission of jury questions on unpleaded issues even if they are tried by consent.

16.068. Amended and Supplemental Pleading

In other words, if the limitations period has run before you add new claims, as long as the original petition was filed before the limitations date, you can add the new claims later as long as the arise from the same T/O. There's a fairly liberal ability in Texas civil practice to continue to amend pleadings. Purpose: Plaintiff's don't feel like they have to "kitchen sink" their pleadings. Don't plead every possible COA you have as of this date. Pick the claim(s) you really want to bring, and if the facts develop that you want to change and add other COAs you could have brought on the day you filed the original petition, then you can. Can amend the pleadings, and you won't have limitations periods as a bar. HOWEVER, if the grounds for the new claim are based on a wholly distinct/new T/O, they ARE time barred if limitations has run.

Unliquidated Damages - it is not entirely clear what is meant by "unliquidated damages."

In the context of default judgment, a claim is liquidated only if the amount of damages can be calculated accurately by the court from the allegations contained in the petition and an instrument in writing on which the claim is based. Seek with an amount within the jx of the court.

CHAPTER 12: SETTLEMENT, NON-SUITS AND CONSENT JUDGMENTS The vast majority of civil cases filed are resolved by settlement prior to trial. Either with ADR or just between the party.

Indeed a prudent lawyer will from the commencement of litigation continuing through discovery and up to and during trial, assess the client's legal position and advise the client on settlement possibilities. *It is the client's decision to settle or proceed on a trial on the merits.*

Shifting burden of proof in PJ

Initial burden is on P to plead sufficient allegations to bring the nonresident D within the reach of TX's long-arm statute. Once a special appearance is filed the D must set forth why PJ is not proper in TX. EX: XYZ corporation does not do business there, does not advertise there, etc. Doesn't rise to level of general jx. E.g., if the P's pleadings only allege the D is a non-resident and doesn't allege the contacts of the D in Texas, the D need only show they are not a resident of TX However, once a special appearance is filed the non-resident D bears the burden to negate all plead bases of personal jurisdiction alleged by the P. D can do this: *Factually,* by presenting evidence of insufficient contacts, AND/OR *Legally,* by accepting P's facts but claiming they do not satisfy a legal standard (e.g., purposeful availment, fair play and substantial justice) *Alter Ego Cases* - When the basis for assertion of jx is D's relationship to a parent entity, burden is initially on the P to show improper control of internal business operations of he subsidiary.

Other examples; Internet contacts. When are internet contacts sufficient to give TX courts PJ over a nonresident D?

Internet contacts by non-resident D are evaluated on a "sliding scale" *Passive websites*: Sites that merely advertise over the internet. Insufficient to establish personal jurisdiction *Interactive websites*: Sites that allow for exchange of info between company and potential customers. -PJ is determined by the degree of interaction allowed, on a case by case basis *Business websites*: Sites used for transacting business over the internet. Customers are entering into contracts and are often engaged in sending their information to the company. PJ may be established

Purpose of Interpleader.

Interpleader permits a stakeholder to require rival claimants to fight it out. It supplements the other joinder devices. As the rule indicates, it may be asserted by way of crossclaim or counterclaim.

ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

Issue preclusion involves *factual determinations* actually litigated in Suit #1 that are material to the judgment in Suit #1 can be precluded from relitigation in Suit #2. Does NOT apply to factual matters that should have been but were not litigated. Policy: conserves judicial resources, protects D's from multiple lawsuits, and prevents inconsistent findings.

Res judicata doctrine applies to both Plaintiffs and Defendants.

It also applies to transactionally related claims between the parties that were actually litigated or could have been litigated, including in class action lawsuits.

Cashway's application was defective. In what respect? What does this have to do with outcome?

It makes the garnishment wrongful if the affidavit is inaccurate. The assertion to obtain the writ of garnishment in Cashway that there was an outstanding amount due was not true, it was actually a lower amount. The assertion of a material fact that was not true is alone grounds for wrongful garnishment (sequestration/attachment) case.

he District Court Land-Title Grant Collides with the Justice Court: Forcible Entry and Detainer.

J.P. courts have exclusive jurisdiction over forcible entry and detainer (FED-evictions) when sole issue is the superior right to possession of real property. FED is a special procedure designed to provide quick resolution of issues of right to possession of real property. However, JP lack subject matter jurisdiction to determine questions of title to real property. -remember, JPs are usually not lawyers, and title to real property issues can be complex. Attempts to evict a tenant in cases in which title is also in issue therefore present jx difficulties.

What is the incidental title doctrine exception?

JP can still hear FED if title issues are merely incidental to suit. When the JP doesn't have to resolve who owns title to determine who has possession. There's a title dispute, but it doesn't involve the tenant. Tenant isn't claiming title, just raising the issue that the L has clouded title. The Landlord has a title dispute with a 3P, but that doesn't need to be addressed to resolve the possession issue. Usually happens when the tenant who is under threat of eviction is not claiming any right to title for land. EX: if two Landlords can potentially assert title to property, but the tenant cannot claim title, the title dispute does not bar the JP's jx regarding the FED action against the tenant because the title dispute is merely incidental. It is not beyond the authority of the county court to determine title on this collateral matter.

Judges in Justice Court

JPs are NOT required to be lawyers. The vast majority are not. Like 90% are not. Might have to bring the judge along with his understanding of the law. Say things like "as the court knows, the law states that..." Some JP's hold court in really nice buildings (Harris) others are help in their own mobile homes. Permitted collect a fee for marrying people - can be a significant source of income. Governed by unique rules on procedure. TRCP 500-510. Written by JPs. Can tell they were written by non-lawyers Not a court of record (no court reporter) so appeal is by trial de novo in county court Trial do novo - retrial Justice courts share concurrent original jx with the county courts in civil cases in which the amount in controversy exceeds $200 but does not exceed $20k; and with district courts in which the AIC exceeds $500 but does not exceed $20k. Cannot appeal JC judgment directly to appeal, because JC are NOT courts of record. The way you appeal JC is trying it over again in a County Court.

Statutory Probate Courts have "Pull Down Jurisdiction" but CCLs do not.

Judges in SPCs can transfer cases pending in other courts to their own court on a motion by either party or a party interested in the estate if the matter is related to the pending probate proceeding or is a suit against the personal representative of the estate EX: divorce proceeding. Previous to that was the filing of an action in SPC to create guardianship over husband with capacity issue. Wife is appointed guardian of the husband, and then later files divorce action. SPC pulls down divorce action since they are already dealing with assets of the husband in guardianship proceeding. Divorce is incident to the probate. If the estate/assets of a ward/deceased are before SPC, then they need to decide all the issues together. Court upheld.

Why does Rule 51(b) say that you can't join an insurance company in a tort case against the insured unless the insurance company is directly liable to the P?

Jury would likely decide the case differently if they knew the D was insured. -This rule represents good lobbying by the insurance companies. -Insurance company is already contractually liable under the policy up to the policy limits

If you don't supplement when you should, that is sanctionable behavior.

Just like any abuse of discovery, you can get sanctions: if you do so to run up expenses, embarrass, harass, etc. The court can enter any sanction that is just.

NOTE 3: Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657-58 (Tex. 1990) FACTS: Defendant Bank was asked by customer (Petrolife) to send money to P, but then cancelled the payment. P sues Bank. Petrolife tries to intervene but trial court strikes intervention sua sponte.

LAW: Rule 60 of the Texas Rules of Civil Procedure provides that "[a]ny party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party. . . ." TEX. R. CIV. P. 60. An intervenor is not required to secure the court's permission to intervene; the party who opposed the intervention has the burden to challenge it by a motion to strike. Without a motion to strike, the trial court abused its discretion in striking Petrolife's plea in intervention. Furthermore, under Rule 60, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat recovery, or some part thereof. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest. Under the facts alleged in Petrolife's plea in intervention and counterclaim and University Savings' response to ICC's motions for partial summary judgment, Petrolife meets the above test. Furthermore, the intervention will not complicate the case by an excessive multiplication of the issues and is almost essential to effectively protect Petrolife's interests. Judicial economy requires that Petrolife intervene and participate in the trial in order to avoid a multiplicity of lengthy lawsuits. It is undisputed that Petrolife's rights and interests will be affected by the judgment in this case. Therefore, we hold that the trial court abused its discretion in striking Petrolife's plea in intervention.

KW Constr. v. Stephens & Sons Concrete Contractors, Inc., (Tex. App.—Texarkana 2005) FACTS: Breach of contract case. Some of the elements of the contract took place in Lamar; some of them took place in Rains. *Where did a substantial amount of the events or omissions giving rise to the breach of contract occur?* Both in Rains and Lamar *Elements of breach of contract:* (1) existence of contract, (2) performance or tendered performance by plaintiff, (3) breach of the contract by defendant, and, (4) damages to the plaintiff resulting from the breach.

Lamar county where elements (1) and (4) occurred=substantial amount of events giving rise to the claim... Some elements took place in Rains, some took place in Lamar. Enough took place in Lamar (that's where D called/discussed work with P; and that's where payment was to be made). Thus, that's enough for venue to be proper. *There CAN be more than one county where a substantial amount of the events giving rise to suit took place.* In that circumstance the court will honor the P's choice of venue

VENUE - COUNTY IN WHICH ALL OR SUBSTANTIAL PART OF THE EVENS OR OMISSIONS GIVING RISE TO THE CLAIM OCCURRED

Language modeled after federal statute, which makes it clear that more than one district may meet definition.

TRCP 97(e)Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Last sentence means that cross-claims can assert unmatured claims for contribution as provided in CPRC 33.015, which provides that if a D which is jointly and severally liable under 33.013 pays a percentage of the damages greater than his percentage of responsibility, that D has a right of contribution for the overpayment against each other liable D to the extent that the other liable D has not paid the percentage of responsibility.

Discovery

Lawyers spend a lot of time in discovery. Requests for disclosures, interrogatories, depositions, etc. Probably where you spend a majority of your time in court in district and county courts. (but not JP courts) Discovery plays an important part in the pretrial process in TX, and the discovery rules and concepts are similar to federal court, but there are differences. Discovery is proper to info that is relevant but not privileged. Involves a balance of the materiality and burden as well as concerns above privileges and confidential matters. Electronic discovery - rules in TX are different from federal Discovery devices are similar to federal: interrogatories, requests for production, depositions, physical and mental exams, requests for admission, but the TX system requires a request for disclosure - it is NOT automatic. Sanctions - exist in TX for misconduct during discovery.

Fraudulent Concealment & SOL Discovery Rule

Limitations can also be tolled if D fraudulently conceals facts. -Suspends the limitations period of a D makes fraudulent representations or conceals facts that would reveal the existence of a COA. -The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed COA. Elements: 1) existence of the underlying COA 2) D's knowledge of the COA 3) D's use of deception to conceal the COA; and 4) P's reasonable reliance on the deception to his detriment

Notice of Lis Pendens Another method of preserving the subject matter of the litigation pending final resolution is the notice of lis pendens. The procedure is controlled by the following sections of the Property Code One of the options you have (perhaps) instead of obtaining a writ of sequestration if what you're trying to sequester is real property (pre-existing interest in real property) is to file a notice of lis pendens. Simply a notice you file in the county clerk's real property records where the property is located stating that there's a dispute as to this property.

Lis pendens is notice to the world of litigation involving real property. "The ultimate effect of lis pendens is to prevent either party to certain litigation from alienating (selling) the property that is in dispute" Those interested in purchasing the land are put on notice (at least constructive notice) that the parcel is the subject of pending litigation. *Precludes BFP.* Much cheaper than going for a writ of sequestration. The notice of lis pendens is filed in the county where the property is located (that is the county where persons interested in purchasing the land will check on the legal status of the property. However, you want to be sure you have a good claim, because you can be sued for encumbering title, and to remove the cloud to title if the claim is not valid that you base your lis pendens on. There's no corresponding notice of lis pendens for personal property, ONLY real property.

FELA venue provisions are an example of mandatory venue statutes that supersede the general venue rule. Similar in many respects to the general venue rule, but the difference that the general rule is permissive, while the statute is mandatory. One of the things about mandatory venue provisions is that

MANDAMUS REVIEW IS AVAILABLE. Usually when you get a venue ruling, you don't get to appeal it, until you try the whole case. But if the court is ruling on a mandatory venue exception, and you don't like it, you can seek (because of the statute) immediate review through a mandamus proceeding. A mandamus proceeding is brought before a higher court (court of appeals), but it's not a typical appeal in that you are not seeking a review of the entire judgment, but instead you are seeking a review of an interlocutory ruling, a singular ruling. Arguing that the trial court has abused its discretion in how it has ruled. Here: appeals court - yes, the trial court abused its discretion; based on the record there was no principal office in those counties.

Trial Court Discretion To Deny Fee Shifting Is Very Limited Chapter 42 of the Civil Practice & Remedies Code makes the award of litigation costs

MANDATORY once a "significantly less favorable judgment is entered" as defined by the statute. (20% or more less favorable) The effect is a non-rebuttable presumption of unreasonableness where the party rejecting the settlement offer suffers a less favorable judgment by a 20 percent margin from the offer.

STATUTORY PROBATE COURT V. COUNTY COURT AT LAW EXERCISING PROBATE JURISDICTION Probate jx varies dramatically depending on the statutes for a particular county. In counties with statutory probate courts, additional complications arise. What's the difference??-

Main difference: SPC has "pull down" jurisdiction

_____ is available if the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no adequate remedy at law.

Mandamus relief A trial court abuses its discretion by making an arbitrary and unreasonable decision that amounts to a clear and prejudicial error of law.

Complete absence of service - is a ground for *Bill of Review* If Defendant has not been served with process and an adverse final default judgment is entered, consider filing a "bill of review."

May be filed up to 4 years after the date of judgment. Filed the Bill of Review in the trial court that rendered the judgment. There are very limited grounds for a Bill of Review, but not being served with process is one of those grounds and is sufficient to be entitled to bill of review relief. (Vacate the default judgment and new trial) Peralta did Bill of Review proceeding TX statute: up to 4 years after a judgment is entered can file a Bill of Review in the court that entered the judgment But grounds for getting a Bill of Review are very limited; however one of the grounds is no service of process. Remedy in Bill of Review: new trial. Do over. Often used as a last resort or when the D had no idea there was a judgment.

Court Administrative Act

Meant to increase efficiency. Creates 11 administrative/judicial "regions" in TX Local administrative judges in each county oversee the creation comprehensive plans for judicial administration (AKA "local rules) - assignment, docketing, transfer, and hearing of case. Local rules are "gap filler" rules - -EX: Can't have zoom-only trials because we have an "open courts provision" in the TXC That's why TXSC arguments are on youtube - open courts provisions Case must be within the jx of the transferee court Absent transfer of a case, DC and statutory county court judges may hear cases from other courts in their county, and sign a judgment or order

Depositions Taken Outside Texas: TRCP 201 vs. Letters Rogatory

Most states have a reciprocity statute. Can get Ohio court reporter. If outside the US, then you have to look at the law of that country to see what it allows. Some countries don't allow taking of depos; may need to use *Letters Rogatory* - letters that you send to a court in another country asking if they would conduct or allow depo under their authority. May or may not. Don't have to respond. Matter of comity. *Who can take outside of Texas?* Check the law of the local jx. May not be able to take court reporter. Probably would violate employment law. Might need a translator too. Rules apply to other states and foreign countries Party should first determine procedures in other jx; some civil law countries do not allow the taking of testimony by private attorneys without local judiciary involvement. Texas will enforce foreign writ in the same manner as a Texas proceeding Letters Rogatory - provides a mechanism to obtain assistance from courts or other appropriate authorities in sister states. TRCP allows a party to take the depo outside of TX in the same manner as if it was in Texas. May have to get additional local officials involved. But TX rules allow a TX notary public to take depo.

Serving the *Resident Agent* for Service of Process

Most types of business organizations formed under the governed by jxs other than TX must designate and maintain registered offices and agents in TX for service of process if they do enough business in Texas. Can go to SOS office to discover who has been designated as a registered agent. If the business is required to appoint an agent to receive service of process; the P must have two unsuccessful attempts on two different business days to serve that agent before the P can use the SOS as that entity's agent for service of process. TBOC 9.001 provides that virtually all LLCs must register to transact business in Texas and maintain the organization's registration while doing biz in TX. Foreign GPs and nonprofits are NOT required Ch5 of the TBOC requires that foreign filing entities must designate and continuously maintain a registered agent and registered office for service of process in TX. For foreign or domestic entity that did not designate or maintain a registered agent, the SOS becomes it's agent. TBOC 5.251 ... When you are serving an entity, you need to find out who the agent for service is; EX: domestic corporation: president, VP, etc. EX: partnership: can serve any GP

If litigation is filed in contravention of an arbitration clause, the party seeking to enforce arbitration should file a

Motion to Compel Arbitration with the trial court and seek a stay of the judicial proceeding. The trial court abuses its discretion if it delays its decision until after discovery on the merits has been completed. Similarly, a court may not defer a ruling on arbitration until after the parties mediate their dispute. If a party establishes a claim within the scope of the arbitration agreement, the trial court must compel arbitration and stay its own proceedings. The denial of a motion to compel arbitration or an order to stay arbitration is immediately appealable. TCT should grant. If it denies, then it is subject to an immediate interlocutory appeal.

Willock v. Bui, 734 S.W.2d 390, 391 (Tex. App.—Houston [1st Dist.] 1987) How do these pleadings compare with those in previous case (White v. Jackson)?

Much more specific pleadings. Not perfect, but gave a lot more facts. Identified D, residence. Where/when the accident took place, allegations of negligence, proximate causing P's injury, etc. COURT: Not good enough to prevail against special exception, BUT it is specific enough so that the default judgment will not be set aside. P doesn't have to plead all the evidence, but enough for notice to adequately inform the nature of the claim.

Determining AIC: Multiple Parties A Defending party can file a counterclaim, cross-claims, 3P claims

Multiple counterclaim, 3P claim, cross claim are NOT aggregated. Each claim must be within jx of the court. Not aggregated. Each claim is judged on its own merits. If AIC exceeds court's limit, that claim belongs in another court, and should be dismissed. Refile in proper court. If AIC is below court's AIC range, the court can exercise "ancillary jurisdiction" IF claim arises out of the same transaction / occurrence In courts with a maximum jurisdictional limit, multiple counter-claims properly joined are NOT aggregated to defeat jurisdiction

Assume A, B, C in traffic collision, all injured. A sues B. May B bring in a 3P action against C for B's own personal injuries?

NO, B isn't bringing in C as being responsible for all or part of A's claim against B, but instead for B's injuries which is improper. However, if you did bring them in, and no one filed a plea in abatement, the improper joinder would be waived and C is now in the lawsuit.

Is interpleader necessary when you don't have a disinterested stakeholder?

NO. Don't have to bring interpleader. Can just bring declaratory judgment action.

Postjudgment challenges by nonresidents Situation where P sues D, the D has not filed a timely answer, the P takes a default judgment. Then the light goes on in the D's head, and they file a special appearance arguing that D doesn't have enough contacts for PJ. Is it too late to file a special appearance after a trial court has entered a judgment?

NO. If that is the first the the D is filing, a special appearance, and they're doing it at a time the trial court can still act (because the TCt only has a limited amount of time after they sign a judgment to act and then they lose their plenary power over a case), then the court may consider the special appearance. Despite 120a(1) that a special appearance motion cannot be made after judgment, several cases have authorized post-judgment special appearance motions as long as they are filed in due order. After a default judgment, a nonresident D may file a special appearance within *30 days after judgment* as long as it is the D's first response in the lawsuit. (File special appearance first or simultaneously with any other plea, pleading or motion.)

EX: failed to respond to interrogatory. Would the TCT impose "death penalty sanctions"?

NO. Killing the case. Like striking pleadings, entering default judgment, or dismissing case with prejudice. Sanctions are supposed to be addressed to the wrongdoer: sometimes the lawyer, sometimes the client. Can lead to sticky situations regarding client: can't rat them out.

Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) ISSUE: Did the trial court abuse its discretion in allowing a POST-verdict pleading amendment increasing the amount of damages in Plaintiff's petition (from $100,000 to $128,000) to conform the amount of damages awarded by the jury for punitive damages?

NO. That was proper. And the TCt would have abused discretion if it denied the amendment. So it can get worse! Hard to argue that the difference between $100k and $128k is prejudice. There's probably some amount that shows prejudice, but $28k difference not enough. Must show such a big difference that you would prepare differently for trial. HELD: We hold that under Texas Rules of Civil Procedure 63 and 66, a trial court must allow a trial amendment that increases the amount of damages sought in the pleadings to that found by the jury unless the opposing party presents evidence of prejudice or surprise. If the Plaintiff had not sought the pleading amendment what would be the appropriate judgment for punitive damages? $100k. Because the judgment is supposed to be based on pleadings.

Burnett v. File, 552 S.W.2d 955, 956 (Tex. Civ. App.—Waco 1977) FACTS: P sues D for personal injuries from an automobile rear-end collision. P plead an original injury. At trial, P sought to amend its pleadings to assert the Ds negligence caused aggravation of a pre-existing injury. The trial court sustained the D's objection and refused P's request to file a trial amendment. Did the trial court abuse its discretion denying the trial amendment? Why or why not?

NO. The filing of a trial amendment is within the sound discretion of the trial court and unless the trial court clearly abuses that discretion no reversible error is shown. Had leave to amend been granted, it would have changed the entire nature and complexion of the lawsuit. Moreover, there was no explanation by the Plaintiff as to why he was not aware of the "aggravation" basis of his Trial Amendment sooner. In the language of our Supreme Court: "to require the trial court to permit amendments such as the one filed in this case would disrupt orderly procedure and lead to frequent interruptions and interminable delay in concluding expensive jury trials. D - "hey, we would have prepared differently if there was aggravation of a pre-existing injury. This prejudices the D." D would have needed to get expert witnesses to look at the issue of aggravation of injury, not just the original injury. HELD: the TCt did not abuse discretion in denying the trial amendment to add aggravation of injuries because the D would have been prejudiced by the late filing of this allegation. *Here, Did D try the matter by consent (as P argues)?* Here, they didn't object when the evidence was first introduced, but did object to the aggregation issue being included in the charge. -NO. The record clearly establishes the Defendant's objection to the Trial Amendment and requested instructions on aggravation as hereinabove set out. In Harkey v. Texas Employers Ins. Assn. (Tex. 1948) 146 Tex. 504, 208 S.W.2d 919, our Supreme Court held that HN2 although the Defendant did not object to the testimony [**7] relative to an issue but did object to its submission because it was not pleaded, it could not be held that the issue was tried by consent. In that case the Defendant offered no objection to testimony on an essential issue, but it did object to its submission because it was not pleaded. The Supreme Court held that the issue could not be presumed to have been tried by consent and that submission of such unpleaded essential issue over proper objection constituted reversible error. Also see Missouri-Kansas-Texas Railroad Co. v. Franks (Eastland CA 1964) 379 S.W.2d 415, NRE. In the case at bar, under the record before us, the rule enunciated in Harkey applies, and it cannot be said that the issue of aggravation was tried by implied consent.

Sometimes the next friend has a conflict of interest. EX: Car accident. Mom, dad, two kids in the car; the other driver at fault. The other driver, who becomes the D in the lawsuit, has policy limits of $250k. The mom, dad, kids claims exceed $250k. Do we just let the parents settle out $250k to the parents, and don't worry about the kids?

NO. There's a conflict of interest there. There's only so much pie to go around, so the court needs to appoint a *guardian ad litem*

Piercing the corporate veil - what happens you want to sue a corporation that has a subsidiary in Texas. Can you impute the subsidiary's contacts to the nonresident parent company? Is jurisdiction over a parent corporation sufficient to establish jurisdiction over its non-resident wholly owned subsidiary/sister corporation? Can you impute the contacts of one entity to another that is related?

NO. They are separate legal entities. And the court will treat as such as long as the parties treated them as separate entitles Often, one of the main reasons separate biz entities are set up is to separate liability. EX: company picks up hazardous waste as a trucking company; another part disposes of it. Might set up separate companies to isolate liability since disposal is so much more likely to be sued. Separate legal entities - if they operate separately, and listed as separate entity, the law treats separately.

Dairyland Cty. Mut. Ins. Co. v. Roman, 498 S.W.2d 154, 155 (Tex. 1973) FACTS: P suing D insurance company for breach of policy. Insurance company policy required WRITTEN notice, but P's mom just called and gave oral notice of accident. Insurance company asserts that P failed to comply with condition precedent of giving written notice. *What were the pleadings of the Plaintiff as to condition precedents (under the insurance policy) being met so that it should recover?* -Conditions precedent: If party alleges that all conditions precedent have been met and they should recover, the burden is on opposing party to plead the specific condition precedents it maintains have not been met (TRCP 54) Did Defendant specifically deny particular condition precedents had not been met?

NOPE. D just plead that P have has failed to comply with policy, then attached copy of insurance policy with its conditions. [Lots of condition precedents to recovery in insurance policies]. *Why didn't the P specially except, asking "which condition are you talking about?"* -Rule 90 - every defect in a pleading that not specially excepted to is waived by the party seeking reversal on that account. -P won, so they're not seeking reversal, so Rule 90 didn't apply. Not waived. *Court could have based its holding on the principle that a special exception is not required in response to a defective denial* -If your opponent's defective pleading would increase your BOP, you don't have to specially except. -So in this case, if the D had specifically pled this condition precedent has not been met (you didn't give written notice), then that would require P to prove that. - -Otherwise, when a P pleads that all condition precedents to recovery have been met, and the D doesn't specifically deny them. The P doesn't have to prove that the condition precedents have been met. -But if the D specifically denies them as required under Rule 93 under oath, then the BOP on the P increases; so they don't have to point out, "hey you don't have a specific denial of condition precedent that has not been met." So these are two weird tweaks on the general rule that if you don't specially except you waive.

Requests for Disclosure

NOT APPLICABLE TO CASES STARTED 2021 OR LATER Cases filed before 1-1-21 (just looking at AFTER on finals) A RFD is a written request to a party for specific categories of information listed in TRCP 194.2 Response must be filed within 30 days after service of the request (or 50 days after service if defendant is served before the answer is due) Responses don't need to be verified, certification is by signature (rule 191.3) Limits the use of interrogatories, requests for production for expert witnesses For experts not supposed to use ROGS or RFPs Cannot assert work product privilege in response to a RFD No need to designate experts if you have not received a RFD of experts. (Court may set time in pretrial/scheduling order). NOT TRUE ANYMORE. NOTES AND QUESTIONS Additional Disclosures in Expedited actions: may also request disclosure of all documents, electronic information and tangible items that the disclosing party has in its possession, custody or control and may use to support its claims or defenses. TRCP 190.2(b) NOW REQUIRED AT EVERY LEVEL POST 2021

Notes taken during a conversation or interview with a witness are

NOT a witness statement.

Absence of Jurat in Affidavit - [a jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer.] Unless an affidavit is sworn before an officer authorized to administer oaths, it is

NOT an affidavit. When a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the *opposing party must object* to this error, thereby giving the litigant a chance to correct the error.

If a change in the law creates a new cause of action that would have existed at the time the first case was decided, res judicata will

NOT bar that claim.

Waiver of an arbitration clause by bringing suit requires a party to substantially invoke the judicial process. TXSC: "substantially invoked the judicial process" is

NOT just filing suit and conducting some discovery. So you can be pretty deep in discovery and still be forced to abandon judicial process and go to arbitration if other party realizes the arbitration clause applies.

When must the motion and supporting summary judgment evidence be filed and served by movant?

No later than twenty-one days before the specified time for the summary judgment hearing. 21 day lead time by which you need to serve.

Effect of Lower Court judgments in District Court A "lower trial court" is a justice of the peace court, a county court, or a statutory county court. Issue: Do we want a fact finding determined by the JP court to be preclusive in a case that couldn't be brought in JP court but is transactionally related, and brought in District Court?

No preclusion from lower court: A judgment or determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for collateral estoppel in a proceeding in a district court However, a judgment rendered in a lower trial court is binding on the parties as to recovery or denial of recovery. So very narrow res judicata. Can't try the same claim again in District Court. EX: 3 car accident. P sues the D for property damage on a negligence theory in JP. P recovers $10k. P then sues D for $1.5M in medical expenses in District Court, and the P says to the D, you already had a full and fair opportunity to litigate whether you were negligent in suit #1, which was essential to the judgment of the JP, so you don't get to challenge that in this lawsuit. *NOPE*. D gets to relitigate that issue of negligence because it is a different claim (property damages in JP vs. future medical expenses in DCt)

What is the time frame for asserting a plea in abatement?

No specific time frame. Must be urged within a reasonable amount of time after the grounds become apparent The plea in abatement must be raised in a timely manner, however, or it is waived. there is no time frame in the rules for asserting plea in abatement; and there's no due order either. Just raise after a reasonable time when grounds become apparent.

Was the Plaintiff required to support its summary judgment motion with evidence as to the amount and reasonableness of its claim for attorney's fees? Why or why not?

No! No additional evidence is needed beyond the sworn account if the D doesn't respond appropriately with a sworn denial. The real benefit of the sworn account is that if the other side does not respond, you can move for summary judgment (paper trial), on the sworn account and get a judgment. And since the D didn't respond specifically, the P's allegations are taken as true if the D just files a general denial (which is insufficient), then the P gets the summary judgment since no facts are at issue and P is entitled to judgment as a matter of law.

May a prevailing Plaintiff under the Offer of Settlement rule double recover attorney fees incurred after the Defense rejects the offer when the Plaintiff obtains a more favorable judgment and an independent statutory basis exists to recover attorney fees?

No, Rule 167.4 prohibits double recovery of litigation costs: A party who is entitled to recover attorney fees and costs under another law may not recover those same attorney fees and costs as litigation costs under this rule. EX: Breach of contract case, statute exists already to allow recovery of attorney's fees in breach of K cases. Can't double recover.

Is a summary judgment appropriate for pleading defects?

No, as long as the petition states a recognized COA in TX If a party pleads a COA that has a basis in TX law, but pleads defectively, a summary judgment is NOT appropriate. File a special exception instead. When you have a special exception sustained and the party does not amend timely, the TCt can dismiss, but that dismissal is WITHOUT PREJUDICE to refile. But limitations could be an issue. So you don't want a dismissal based on pleading defects. Just amend your pleading.

Service of process and the statute of limitations What if suit is filed before limitations has run but service of process is not accomplished until after the limitations period has run? Is limitations a bar?

No, if Plaintiff demonstrates "diligence" used in attempting to have the defendant served with process. BOP on P. Very important that prompt attempts to serve process are made. If not successful, that will be shown by the return of service sheriff/constable or process server. When you have that in the file that shows you've been diligent. Tried via personal service, the promptly moved for substituted service, etc. P's counsel's job is to see that the D is served by an appropriate process server Make sure that you have unsuccessful return of service in the court file or you can't get default judgment/MSJ. This can be accomplished even if the D is not actually served within the limitations period. (The above rule is especially helpful for defendants who try to evade service.)

May a court enter summary judgment on its own motion?

No, it is improper for the trial court to grant a summary judgment sua sponte. A court of appeals commits reversible error if it raises sua sponte grounds to reverse a summary judgment that were not briefed or argued in the appeal.

Have you made out a case for general jurisdiction by showing the non-resident D has systematic, substantial and continuous contacts with Texas?

No, not enough. Must be of such volume that the D is "essentially at home." Court: we're not going to look at D's contacts with distant forum in isolation. EX: even if nonresident did a ton of biz, if it's only 2% overall biz, that's not enough. This really restricted finding general jx.

Can the Plaintiff serve the non-resident D with process when she is in the forum to testify at the special appearance hearing?

No, this would defeat the purpose of the special appearance. D's are exempt from service of process in the state when they are attending a special appearance hearing, even from unrelated proceedings or if in Texas to testify in a criminal proceeding

NOTE 6: What about the interests of the absent party? If A sues B for partition of Greenacre and neither A nor B raises at trial the absence of C (who also claims an interest in Greenacre), is the judgment o the trial court which divided the tract void?

No. *Can A or B attack it on appeal on the basis that they were prejudiced by C's absence?* No, they waived it by not bringing it up in TCT. *What about C's interest?* C when they bring a later suit on their own (or are sued) about their interest in the partitioning; the TCT will have to ignore Suit #1 to the extent C shows proves up the relief they are entitled to in Suit #2.

Stelly v. Papania, 927 S.W.2d 620, 621 (Tex. 1996) FACTS: Pizza guy slip and fall. Homeowner incorrectly & expressly admits he owns land; later survey shows he doesn't. Tries to withdraw and amend response to show City owned land instead. ISSUE: Did trial court abuse its discretion allowing express admissions to be withdrawn and amended admissions filed? Why or Why not?

No. RULE: A trial court does not abuse its discretion in allowing express admissions to be withdrawn and amended admissions filed when the moving party shows: (1) good cause; Here, the surveyor report (2) that the party relying on the responses will not be unduly prejudiced; and P likely couldn't win because didn't file against the City quick enough and the City created the hazard (3) that the withdrawal will serve the purpose of legitimate discovery and the merits of the case. Two factors are made out. The reason D admitted is that he made a mistake. That's good cause. Prejudice? Can't go back against the City since nonsuited with prejudice. However, P couldn't sue anyway, because P failed to give notice under the Texas Tort Claims Act, and thus the SMJ waiver doesn't apply and the City has sovereign immunity.

Dass, Inc. v. Smith, (Tex. App.—Dallas 2006) FACTS: Dispute over lease agreement. Landlord said that it was a month to month lease after main lease period ended. Tenant said he purchased the land. Dispute over evidence. L initiates FED/eviction action. ISSUE: What if the trial court must determine a question of title to figure out who has superior right to possession? Does JP have SMJ?

No. Because the court had to determine the question of title because the tenant was claiming he was actually a buyer. So there's a title dispute that must be resolved to determine who has the right to possession and thus the JP lacks SMJ.

Must depositions, requests for admissions and interrogatories be formally introduced at the summary judgment hearing to be considered by the court in its ruling on the motion for summary judgment?

No. But the opposing party should review all summary judgment evidence for evidentiary objections. Remember, disco responses are generally NOT filed with the court.

Is an Oral Hearing Required for MSJ?

No. MSJ is a paper trial. If a hearing happens, there is no live testimony at a MSJ hearing, only argument of counsel.

No appeal of denial of MSJ Can you appeal an order overruling a motion for summary judgment?

No. The denial of a MSJ just means there are genuine issues of material fact to be tried. And once you try the facts, the MSJ denial becomes moot.

May a party only file one motion for summary judgment?

No. There is no limit to the number of summary judgment motions filed although it would be unusual to file more than one.

At the summary judgment "hearing," do the parties have an opportunity to present testimony or other evidence?

No. There is no live testimony or evidence presented at a summary judgment hearing. The court looks at the previous timely filed motion, response, and summary judgment proof. This would include affidavits, discovery on file, any stipulations and authenticated or certified public records.

Responses to interrogatories and requests for admissions (on file) constitute summary judgment evidence. Can they be utilized by a party who answered them?

No. These discovery tools can only be used against the answering party.

Waiver of Pleading Defects Complaints about formal and substantive defects are waived at the pleading stage absent challenge by special exceptions and a ruling. E.g., vagueness, failure to plead each element, not verified (when required) [WAIVER DOES NOT APPLY TO DEFAULT J] Complaints about variance between pleading and proof not waived at pleading stage

Non-jury trial: waiver when D fails to object to evidence outside the pleadings Jury trial: Waiver occurs when D fails to object to unpled issues included in the jury charge "Fair Notice" of Factual Claims

Effect of Nonsuit (P), Withdrawal of Motion (D) If you are met with a 91a motion and worried about having to pay attorneys fees. Options?

Non-movant Plaintiff can avoid ruling on motion to dismiss for baseless cause of action by "nonsuiting" at least 3 days before the date of the hearing on the dismissal motion. If a party non-suits, they may refile later if within SOL period Moving party may avoid ruling (and an adverse award of costs and fees) by filing a withdrawal at least 3 days before the date of the hearing. Court will not consider amendment not filed at least 3 days before hearing.

Examples of contacts with another forum Stream of Commerce

Non-resident D placing a single product in the stream is not sufficient for PJ. Need a "regular and anticipated flow of products." -Not sufficient if D merely anticipates that its products will end up in the forum. -Asahi case - plurality decision (thus not binding) *Texas follows O'Connor's decision.* Stream of commerce NOT enough. Has to be some plus factor that shows a "purposeful availment" of the forum, a "plus factor" EX: Advertising - Nonresident manufacturers may be subject to specific JRD when they target Texas as a marketplace for its products. -Using a distributor or intermediary will not deprive court of jurisdiction if non-resident D is targeting Texans in its advertising.

INTERIM RELIEF FOR THE GENERAL (UNSECURED) CREDITOR Attachment

Not asking sheriff to seize particular property; asking the court to have seized unspecified nonexempt property of the D up to the dollar amount and hold until judgment. -Typically an unsecured creditor *All the same requirements for sequestration apply to attachment as well:* -Requires a supporting affidavit and bond set by the court -Purpose: to impound and fix a lien on the nonexempt property of a debtor before judgment. Hold the property subject to a lien so that the debtor cannot sell it or otherwise dispose of it before a judgment is entered on the underlying obligation.

Amended Pleadings

Not at all unusual in TX. Supersedes and replaces/kills previous pleading. Can recognize: if pleading is titled "Plaintiff's First (or Second, etc.) Amended Petition" or "Second Amended Answer" Purpose: either to correct something in a previously pleading, add/withdraw something from a previous pleading, or plead a new matter Supersedes the previous pleading (SO DON'T INCORPORATE BY REFERENCE a prior pleading that was superseded. It's dead.). May need leave (permission) to amend from the judge

NOTE 3: Interaction with summary judgment practice: In both cases, parties were allowed to amend or withdraw their admissions.

Note that admissions MAY form the basis for all or part of a summary judgment order. Summary judgment: admission may form the basis for all or part of a summary judgment (No genuine issue of material fact as to matters admitted)

Objections and privilege assertions in response to interrogatories -

Objections must be in writing and must be made within the time for response or it is waived (unless court excuses for good cause shown). Must state legal or factual basis for objection and extent to which party is refusing to comply. If you make numerous unfounded objections, you can waive your valid objections. Don't kitchen sink. Any party can set another party's objection for a ruling by the court. If no one does, the objection is NOT waived.

A claim that isn't mature (hasn't yet accrued) is NOT going to be barred by res judicata when a transactionally-related claim is tried in suit #1 and then a second lawsuit is brought in Suit #2 when the claim matures. Maturity of Claims Example P sues a D on a promissory note; D was supposed to pay P so much per month; note doesn't have an acceleration clause. P sues for the past due payments, after P files suit, as time goes by, more and more payments are missed. As they are missed, they become overdue and mature claims. P has the option to amend pleadings and incorporate those claims, OR bring them in a later lawsuit.

Of course, a client would prefer everything in one lawsuit (and an acceleration clause). Don't have to amend and bring claims that have matured after filing a lawsuit, but you may, as long as within the SMJ of the court.

What if more than one mandatory provision applies?

Older cases: Venue is based on "principal relief sought" Recent appellate courts suggest the more specific venue statute controls rather than Chapter 15 general venue statute. 15.016 - an action governed by any other statute proscribing mandatory venue shall be brought in the county required by that statute Courts that have looked at this are considering TXL intent. If mandatory vs. mandatory, look at Wren's article or go look at case law; TXL intent will control

Consider a situation in which the DCt dismissed a case for want of jx, and the court of appeals affirms the dismissal. When do you think the deadline to refile should begin to run?

On the date the TCt dismissed without prejudice for lack of SMJ. That's the trigger date for the 60 day savings statute.

Choice of Forum

Once it is clear suit will be filed, lawyer must determine which courts have subject matter jurisdiction (SMJ) - the power to hear cases of this type. This will be based on the amount in controversy or the nature of the case.

Permissive joinder of PARTIES by the plaintiff

Once you have multiple parties, no longer can bring any and all claims. Only proper if arise out of the same T/O. Because now, if you bring an unrelated claim against D1 and you represent D2, you have to read everything that has nothing to do with it. Unnecessary attorney's fees. D2 should file a "plea in abatement" and seek severance.

CHAPTER 9: DISCOVERY: PURPOSES, SCOPE, AND USES JP courts - not a lot of discovery because you need permission of JP court County/District courts - there is a LOT of discovery. This chapter applies to these cases. In the 1950s-70s - limited disco; then trial by ambush beyond that. The amount of civil litigation rose enormously with the rise in population The TXL couldn't afford to keep creating new courts. Expensive. TXL wanted to expedite.

One answer is to have more discovery because people would find out more about their cases and are more likely to settle once they figure out they can't win. Then things went to wide open discovery; and with the advent of the internet there's a LOT of communication. People say really stupid things in their social media posts; it's become very fertile ground for discovery. So discovery became TOO long/expensive, etc. Bringing in experts for metadata; etc. TXSC - in the 1990s got a lot of complaints from lawyers that they are getting priced out of the system. Things are moving to ADR because litigation is so expensive compared to stakes. Need to make some changes to the costs of litigating. *TXSC tasks Rules Committee with a solution* One solution: having a one-size-fits-all discovery system isn't great. Some cases don't require much disco; other cases are so unique that the judge should tailor a customized plan for discovery. So the TXSC adopts 3 levels. *Disco 3 Levels: the 3 bears* 1) Baby bear - small case 2) Moma bear - standard 3) Papa bear - unique, judge tailored

16.005 Five Year Limitations Period

Personal injury as a result of: -Sexual assault of child; sexual trafficking of a child; compelled prostitution of a child; indecency with a child. -Sexual assault; trafficking of persons; compelled prostitution. -Action accrues on death of individual if person dies as a result -Limitations period tolled on the filing of a petition alleging that the identity of the D in the suit is unknown; designated John or Jane Doe. Person filing petition will proceed with due diligence in discovering identity of D and will substitute D's name within 30 days of discovery of D's identity. Limitations period begins running when petition is amended with D's name.

Multiple claims. What if venue was determined to be proper based on a claim that was later eliminated by summary judgment? EX: Suppose that venue in a county is based on the residence of one of multiple defendants or one of multiple claims. What happens if the claim on which venue is based is eliminated by summary judgment for not having a basis in law? If the D files a timely MTTV, will the elimination of the in-county claim destroy the basis for venue?

Pines of Westbury case: Appellate court is required to conduct do novo review of the entire record. If summary judgment was properly granted then the record would contain no probative evidence to support the court's venue determination. This was held to constitute per se reversible error. Appeals court reversed and remanded with directions to transfer the case as requested by Ds.

Single Action Rule

Plaintiff has only one COA for injuries, losses, damages arising from a single breach of duty that caused any legal harm. Limitations clock begins running when the first legal injury is suffered, notwithstanding the fact that the injured party did not immediately know the extent of his injuries and even though not all of the resulting damages had yet occurred. If the discovery rule applies to the legal injury, application of the single injury rule would date from the time when the legal injury should have been discovered in the exercise of ordinary care TXSCt has held that neither single action rule or SOL applies in asbestosis cases.

The special appearance hearing: Counsel for D must make sure the Court holds a hearing and rules on the special appearance before any other plea or pleading. Court may consider:

Pleadings, stipulations, timely filed affidavits, discovery products, and live testimony. Affidavit testimony is preferable over live testimony because you as the lawyer can control what is in the affidavit. Once you put the client on the stand they are subject to cross. The other side can "cross" the affidavit, but the way you do that is by conducting discovery. So you often conduct discovery, and not considered waiver of PJ if discovery relates to special appearance Probably can't force a nonresident defendant to testify before PJ established. We're probably going to still be conducting discovery when answer is due.

Each plaintiff must independently establish venue. Why?

Political. The Ds felt like they were getting "hometowned." Getting creamed in certain counties. Became high profile political cause for businesses, who got the TXL to pass this statute. Not efficient, but business likes it. So 15.003 is passed by the TXL and requires that each plaintiff, whether original or intervening, must independently establish venue if contested.

Contracting for Venue in Advance of Suit in the Event of Litigation Forum Selection Clauses:

Presumed to be valid in TX: contracting for forum and/or choice of law However, you cannot contract for venue in Texas as it is against public policy. *Major Transactions Exception*: Venue selection clauses arising out of "major transactions" (major > $1million) are enforceable, unless unconscionable. *County of Performance in Noncommerical Cases Exception* - If the place of performance is specified in the K by naming the county or a definite place therein, venue may be proper in the county of performance IF suing on that obligation. CPRC 15.035 (Except in consumer cases)

16.012. Products Liability

Products liability action means any action against a manufacturer or seller for recovery of damages or other relief for harm alleged caused by a defective product, regardless of the legal theory, including suit for injury to real or personal property; personal injury; wrongful death; economic loss; or declaratory, injunctive, or other equitable relief. Must start action before the end of 15 years after date of sale of product If a manufacturer expressly warrants in writing that the product has a useful safe life of longer than 15 years, then that time period serves as the limitations period The above does not apply if the claimant alleges that 1) was exposed to product before 15 years after product was first sold 2) claimant's disease that is basis of action was caused by exposure, AND 3) symptoms of disease did not manifest that would put reasonable person on notice of injury until after 15 year period This section only applies to sale, not lease of product

Accounting Malpractice

Professional liability in areas such as accounting or law may require application of the discovery rule, which delays the accrual of a COA until the earliest date when the P should be aware of a legal injury through exercise of reasonable diligence. SCt has held that a person suffers legal injury from faulty professional advice, but also that a lay person may have difficulty recognizing the faulty advice so the discovery rule applies

There is a tort action in TX for wrongful garnishment//sequestration/attachment if any material fact in the affidavit used to obtain the writ is not true. Regardless of good faith. You can get actual damages. RULE: exemplary damages for wrongful sequestration/garnishment/attachment only with showing of

Punitive requires a showing of malice AND absence of PC

Moki Mac River Expeditions v. Drugg - 221 S.W.3d 569 (Tex. 2007) FACTS: The parents' son was fatally injured after a fall while in the Grand Canyon on a river-rafting trip in Arizona that was set up by the outfitter. The parents filed a wrongful death suit against the outfitter in Texas, where they lived. The appellate court held that the parents' misrepresentation claim arose from, and related to, the outfitter's purposeful contacts with Texas. P asserts both specific and general jx. Argue that D targeted TX. Specific: Made misrepresentations over phone to TX residents regarding difficulty of hike, quality of their guides; D advertised in TX Alternatively: we can assert general jx because they have targeted TX for years. Mail campaigns, etc. Court of appeals found specific jx based on misrepresentations directed at TX, so didn't reach general jx issue.

RULE: The Supreme Court of Texas believes that for a nonresident defendant's forum contacts to support an exercise of specific jurisdiction, there must be a *substantial connection* between those contacts and the operative facts of the litigation. TXSC HELD: well, really the USSCt hasn't been clear about whether or not there's a sufficient nexus between the D's conduct in TX and the gravamen of the lawsuit (what gave rise to the lawsuit), so we're going to look at other states are doing on this issue to see the degree of relatedness constitutionally required between D's contacts with TX with the TX litigation based on specific jx. Court: supports "substantial connection" - must find a nexus between D's contacts with the forum and the subject of the lawsuit. Requires a "substantial connection" between D's contacts with TX and the operative facts of the lawsuit. Notes that USSCt has not addressed at that time (but since has taken the substantial connection approach) TXSC HELD: not a sufficient nexus/relatedness between contacts in TX and the operative facts of the litigation. The operative facts of the litigation here is the fall to the death and the negligence (or not) of the expedition guides happened in AZ, NOT TX. The lawsuit really isn't about misrepresentations made to TX, it's about the wrongful death that occurred in AZ. TX contacts are too attenuated to support the exercise of specific jx. Reverses and remands to appeals court to look at whether there are sufficient contacts to support general jx. [appeals found there was not]

Depo on Written Question procedures. See TRCP 200

Really are limited in their use because you can't ask follow ups. Formulate Qs in advance. Serve them on deponent and all parties. Other parties have opportunity to ask cross in writing. Notary/court reporter reads the question and takes down the answer Typically limited to situations where you want to prove up business records exception to hearsay. Don't want to take orally because of the limits on oral depos; there's no limit on depos on written questions. However, you can't use written depos to evade oral depo limits.

Updates to TRCP

Really important you keep up with them. When the TXSC modifies the TRCP, they publish them as a proposal in the bar journal (which every lawyer has to subscribe to as members of a mandatory bar in TX). Eventually sign an order approving/not approving them. Which may or may not be the same as the original proposal. Have to follow through when you know there's a proposal that can affect your practice. On TXSC webpage under "rules advisory". lot of rules dealing with discovery/expedited trial that have been changed recently.

Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 364 (Tex. 1987) FACTS: Petitioners, parents of newborn premature infant, brought a medical malpractice action and DTPA action against respondents, hospital and physicians, as a result of the blindness of petitioners' premature newborn infant. Jury finds D liable on both medmal and DTPA grounds. The D elects their remedy after the jury comes back. ISSUE: Is it appropriate for P to elect remedy after jury comes back or should the D have to elect remedy before question goes to the jury?

Remember: One satisfaction rule requires party to elect between alternate remedies for the same wrongful act. *Must an election of remedies be made before the jury assigns damages?* -In TX you do NOT have to elect your remedy before the jury decision. You can wait until the jury comes back, and then elect. *What if no election of remedies is made by the successful party before judgment?* -If you don't elect, the TCt may presume the remedy that gives you the most recovery for the P. *When would a party strategically elect a remedy that provides for lesser damages than another alternate remedy?* If you thought case would go up on appeal, and one ground is really solid on the law/evidence, and the other wasn't. Might elect the lesser amount if it was bulletproof on appeal.

Successive Offers Rule 167 allows for successive offers. An offeror faced with an unaccepted offer, may want to improve its chances of recovery of its costs and attorneys' fees by improving the offer.

Rule 167 provides, "A party may make an offer after having made or rejected a prior offer. A rejection of an offer is subject to imposition of litigation expenses under this rule only if the offer is more favorable to the offeree than any prior offer.

TRO Step 3: The Hearing Possible to have ex parte TRO hearing: When can you get a TRO ex parte?

Rule 680: No TRO shall be granted without notice to the adverse party UNLESS it clearly appears from specific facts shown by affidavit or a verified complaint (accompanying TRO) that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing conducted. EX: can't replace mature 50-year-old trees with trees of a like kind. Must have proof to support assertions. Be sure your client is prepared to testify to matters set out in your pleading If granted, judge will -1) fill in the amount of the bond required in favor of the D -2) set a date for the temporary injunction hearing -3) sign the order indicating the duration of the TRO (not more than 14 days) Then we go over to the clerk's office with the TRO order and get a bond in the amount set by the court. -Once the bond is posted, the clerk will issue a citation for the original petition, notice of TRO injunction, and writ of injunction. -Later, will have a hearing on the temporary injunction - The lawyer must prepare for the hearing on temporary injunction to be held at the date and time set out in the TRO Writ of injunction requirements are listed in TRCP 687

How do you raise non-joinder by opponent?

Rule 93: Plea in Abatement; specific denial. You didn't join this person/claim that should be joined. Asking to abate the lawsuit. Stop the lawsuit until this procedural defect can be cured (claims/parties joined).

Citation must include

Rule 99 lists a lot of things: Seal of Texas, Name and location of the court Date of filing of the petition; date of issuance of citation file number names of the parties name and addresses of plaintiff's counsel time within which D must file an Answer address of the clerk Notify the D that if they fail to answer that a default judgment can be rendered against them

Discovery and Ethical Obligations

Rules provide that Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. Based on the idea that the whole disco process can happen without the court's supervision; self-regulated disco unless there's a disagreement *If you don't sign a disco request, the other party doesn't have to take any action.* No need to respond, object, etc. Must certify that the disco request is in good faith; not to delay, harass, increase cost of litigation, etc. If it turns out that your disco requests were in bad faith; that the were for delay, harassment or to increase cost of litigation, then you are subject to SANCTIONS. Will go against the party in charge. So it's not just a good idea morally to be ethical; you will have exposure under that rule to sanctions.

Sanctions For Failure To Provide Discovery

Sanctions must be "just." i.e., not excessive, and requires a direct relationship between the offensive conduct and the sanction imposed; should be directed against the abuse and toward remedying the prejudice caused on an innocent party. Not excessive: no more severe than necessary to deter conduct in the future Rule 215 provides a menu of sanctions; but judges are NOT limited. They can impose any sanctions that are "just" under the circumstances; no more severe than necessary to deter the conduct.

IMPORTANT! What if the Statute of Limitations runs in the time between initial filing and a court finding it lacks SMJ?

Savings Statute - IMPORTANT Under the savings statute, should a litigant, in good faith, bring a suit in a court that lacks SMJ, the limitations statute is tolled for up to 60 days after dismissal of the suit, as long as the case is then brought in a proper court. Saves the lawsuit. Saves lawyers from malpractice. Savings Statute: CPRC 16.064 (a) the period between the date of filing an action in a trial court and the date of a second filing of the same action in a different but proper trial court suspends the running of the applicable statute of limitation for the period if: 1) the case was dismissed for lack of SMJ; and (2) the case is commenced in a proper court "not later than the 60th day after the date of dismissal." Protects those who in good faith filed their lawsuit in the wrong court. Next case looks at tricky issues of which cases fall under the statute and when timing starts for 60 day clock.

Rule 108: An Alternative to the Long-Arm Statute TRCP 108 also has a provision on service to non residents.

Says you can serve a nonresident the same way you serve a resident. EX: one of the ways you can serve a resident is by certified mail, return receipt requested. It might be much easier to use Rule 108 than the LAS Might be much easier to use 108 than to use the LAS It allows service on nonresidents in the same manner as on residents, and then states "a defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with citation within this State to the full extent that he may be required to appear and answer under the USConstitution in an action either in rem or in personam. While it was argued only the TXL had the authority to create a long-arm provision, the TXSC upheld Rule 108 Just because you meet the procedural requirements to give service, that doesn't mean that you mean the substantive requirements (doesn't mean it is fair) to get PJ

ISSUANCE of Writ of Sequestration

Sec. 62.021. WHO MAY ISSUE. A district or county court judge or a justice of the peace may issue writs of sequestration returnable to his court. Sec. 62.022. APPLICATION. The application for a writ of sequestration must be made under oath and must set forth: (1) the specific facts stating the nature of the plaintiff's claim; (2) the amount in controversy, if any; and (3) the facts justifying issuance of the writ. Sec. 62.023. REQUIRED STATEMENT OF RIGHTS. (a) A writ of sequestration must prominently display the following statement on the face of the writ: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT. (b) The statement must be printed in 10-point type and in a manner intended to advise a reasonably attentive person of its contents.

DISSOLUTION AND REPLEVY

Sec. 62.041. MOTION FOR DISSOLUTION; STAY. (a) The defendant may seek dissolution of an issued writ of sequestration by filing a written motion with the court. (b) The right to seek dissolution is cumulative of the right of replevy. (c) The filing of a motion to dissolve stays proceedings under the writ until the issue is determined. Sec. 62.042. HEARING ON MOTION. Unless the parties agree to an extension, the court shall conduct a hearing on the motion and determine the issue not later than the 10th day after the motion is filed. Sec. 62.043. DISSOLUTION. (a) Following the hearing, the writ must be dissolved unless the party who secured its issuance proves the specific facts alleged and the grounds relied on for issuance. (b) If the writ is dissolved, the action proceeds as if the writ had not been issued. Sec. 62.044. COMPULSORY COUNTERCLAIM FOR WRONGFUL SEQUESTRATION. (a) If a writ is dissolved, any action for damages for wrongful sequestration must be brought as a compulsory counterclaim. (b) In addition to damages, the party who sought dissolution of the writ may recover reasonable attorney's fees incurred in dissolution of the writ. Sec. 62.045. WRONGFUL SEQUESTRATION OF CONSUMER GOODS. (a) If a writ that sought to sequester consumer goods is dissolved, the defendant or party in possession of the goods is entitled to reasonable attorney's fees and to damages equal to the greater of: (1) $100; (2) the finance charge contracted for; or (3) actual damages. (b) Damages may not be awarded for the failure of the plaintiff to prove by a preponderance of the evidence the specific facts alleged if the failure is the result of a bona fide error. For a bona fide error to be available as a defense, the plaintiff must prove the use of reasonable procedures to avoid the error. (c) In this section, "consumer goods" has the meaning assigned by the Business & Commerce Code. Sec. 62.046. LIABILITY FOR FRUIT OF REPLEVIED PROPERTY. (a) In a suit for enforcement of a mortgage or lien on property, a defendant who replevies the property is not required to account for the fruits, hire, revenue, or rent of the property. (b) This section does not apply to a plaintiff who replevies the property.

Rule 67's "Proviso." TRCP 67 states that even if issues not raised by the pleadings are tried by consent and even though failure to amend "shall not affect the trial of these issues, written pleadings, before the time of submission, shall be necessary to the submission of jury questions, as is provided in Rules 277, 278.

Seems contradictory. FT Worth Appeals Ct ruled that it requires written pleadings to support a party's right to the submission of jury questions even when unpleaded issue are tried by consent.

SEQUESTRATION

Sequestration is a purely ancillary statutory procedure. The purpose of the procedure is to take specified property, in which the claimant asserts a preexisting property interest, out of the possession of a party to a suit and place it in the custody of the court pending final judgment on the issue of who is entitled to the property. Must strictly comply with code. Sequestration: asking the court to issue a writ for sheriff/constable to seize designated property/funds in which the P claims a preexisting interest (EX: secured creditor) Must have a pending suit. Requires a sequestration bond. *Purpose*: Preserves property until a final determination is made. E.g. value of car would decrease if it remained in possession of the debtor while case is pending. When the sequestration remedy is available (don't have to memorize this) 1. Suit for title or possession of personal property / foreclosure 2. Suit for title / possession of real property + immediate danger that D or the party in possession will injury/waste the property/goods 3. Suit for title/possession of property from which the P has been injected by force or violence 4. Suit for title to real property, action to remove a cloud from title, to foreclose a lien on real property ***If you ever need to do this, check the state bar's collection manual

Statute of Repose

Sets a specific period of time within which an action may be commenced. Begin to run on the ascertainable date such as the date of the act or omission that gives rise to health care liability of the D. *imposes a drop dead date after which you cannot sue*. - -*Whether or not you knew about the claim is irrelevant. -Discovery rule does NOT apply*. -Drop dead date is *10 years for medmal claims and professional engineers*, etc.. --EX: sponge claim. If you find out in year 11, it's too late because SOR is 10 years. --EX: if bridge falls in year 11, statute of repose bars claims. -Purpose of SOR is to protect D for having unlimited liability going forward. -There's no SOR for lawyers, and discovery rule does apply. Typically protect against claims brought for defects or wrongful acts that do not manifest for many years Purpose is to provide absolute protection for certain parties from the burden of indefinite liability. TXSCt held in 2010 that Ch74 statutes of repose do not violate open courts provisions of TXC.

_____ is the remedy ordered when joinder is improper (not dismissal).

Severance

If it's improper joinder, and you file a proper plea in abatement, what do you win?

Severance. They're not supposed to be joined together. Can improper joinder be waived? YES if party doesn't timely assert improper joinder.

Don't confuse separate trials with severance:

Severed lawsuits culminate in distinct judgments for each severed lawsuit; separate trials come back together in a single judgment.

Fair Notice and Special Exceptions - How should the City of Houston have raised the defects in the P's pleading in the Crabb case?

Should have specially excepted

When are death penalty sanctions permitted?

Should only be used when the court finds that the sanctioned party's conduct justifies a presumption that its claims or defenses lack merit and that it would be unjust to permit the party to present the substance of that position before the court. Conduct must show Flagrant bad faith or callous disregard for discovery obligations. Must impose lesser sanctions first.

Joinder

Similar to federal procedure Free joinder of claims when the suit involves only a single plaintiff and defendant Once multiple parties are joined, the rules require that the joined claims arise out of the same transaction, occurrence, or series of transactions or occurrences and share common questions of law or fact. Joinder is a little more restrictive than federal court Joinder rules generally permit but do not require the addition of various claims. Rules of preclusion may mean that a claim that was not brought was lost forever Thus, litigators must be mindful of issue preclusion (res judicata) and claim preclusion (collateral estoppel).

Transient Jurisdiction

Simply being served with process in the forum state is sufficient for a court to exercise personal jurisdiction Transient jx - in-state service on the D. Under Pennoyer's territoriality principles, being served with process within a jx was sufficient to get PM because at the time of service, the D was "present" there. If owning property in the forum alone is insufficient to invoke personal jurisdiction, is being located in a forum enough for a court to have personal jurisdiction over a defendant? YES, residency is a basis for personal jurisdiction. States are permitted to refrain from exercising the full extent of their constitutionally allowed jurisdiction. (i.e. A state may afford a non-resident D with more due process than provided for in the the U. S. constitution.)

Case 2: P sought a trial amendment to include prejudgment interest. And the D moved to strike on the grounds it was unfair prejudice. The recovery of prejudgment interest doesn't require any evidentiary proof. It's a mechanical calculation.

So again, the court would abuse discretion if it didn't allow that trial amendment. Important to let client know: this is the damages number sought as of now, and can go up or down. Probably up.

TXL provides that there is an interlocutory appeal available on a denial of plea to the jx

So the govt preferred that vehicle because they can get immediate review if the TCt denied their plea to the jx. We don't have immediate review from a MSJ or special exception ruling. That's why the state preferred the plea to the jx: the immediate interlocutory review

BOP is on the D to prove a lack of sufficient contacts to warrant PJ

So, typically, the D contesting PJ will file an affidavit laying out that the PPB is not in TX, it's in some other state, has no employees in TX, no agents, don't do business there, etc. Or that the contacts are not sufficient to warrant PJ.

Texas has a "structured settlement statute."

Some cases settle in a manner akin to an annuity, you pay X dollars, and the insurance/annuity company agrees to pay to a certain amount per year - AKA "structured settlement." Make sure if you have a structured settlement that you comply with the terms of the statute.

Verified Denials (Denials under oath)

Some denials must be specifically pled to be put at issue (see TRCP 93 list) If party required to specifically plead and does not do so, those issues are not before the court and no evidence on those issues over objection.

TX statutes contain a number of "exceptions" to the general rule.

Some of the exceptions overlap significantly with general rules. Some exceptions are based on the substantive nature of the P's COA: tort, contract, real property, etc. Other exceptions are based on the type of defendant: counties, insurance companies, manufacturers of consumer goods, transient persons. Many venue provisions are in other statutes

WHEN TO FILE THE LAWSUIT: COMPLIANCE WITH PRELIMINARY PROCEDURAL REQUIREMENTS IMPOSED BY STATUTE

Some statutes require presuit notice requirements and/or the filing of expert affidavits. Many claims require Ps to fulfill prefiling or prelitigation requirements as a prerequisite to suit, and in some cases as a prerequisite to liability. EX: Most TX municipalities have enacted charter provisions stating that the city will not be liable for any damages unless proper and timely notice if given prior to the filing of any suit against the city. 621 S.W.2d 588 There's a growing number of these presuit notice requirements. Suing under EEOC; ADA; DTPA; etc. require presuit notice. Sometimes notices are jurisdictional, sometimes are not. Health care liability claims are the most extensive. Have to follow legislative sessions to see what new changes are made to rules of civil procedure. After legislative sessions there's always CLEs that deal with the changes. Some lawyers take it upon themselves to post updates online *Don't have to memorize these statutes,* just here to give impression that you have got to know your claims so you know how to satisfy procedures. Becoming more and more common. More statutes passed with prefiling requirements.

Sometimes, whether the court has subject matter jurisdiction should not be decided until there is a fuller factual development of the merits of the case. (ex. Predicate fact must be established. In that case, trial ct. has discretion as to when this should be decided.)

Sometimes a factual determination is required (such as sovereign immunity)

Knowing the number of years is only part of the problem for calculating the deadline for filing suit. It is also tricky to determine the time at which the SOL starts to run.

Sometimes limitations will begin to run whether or not the P knows of her injury; other times it will not begin to run until the injury is or should be discovered.

A non-resident Defendant who wishes to challenge the court's personal jurisdiction over that Defendant must timely file a

Special appearance - what a nonresident D files to challenge TX court's PJ over them.

What to file if Pleading silent on AIC?

Special exceptions. Does not automatically defeat jurisdiction (JRD still must be proved at trial) If the other matters pled affirmatively negates SMJ, then the court lacks jx. But otherwise, the court's jx is invoked, subject to the P either repleading and stating the amount, OR proving up at trial an amount within the jx of the court.

16.004. Four Year Limitations Period

Specific performance of a conveyance of real property Penalty or damages on the penal clause of a bond to convey real property Debt; fraud; or breach of fiduciary duty Suit on the bond of an executor, administrator, or guardian within four years of death, resignation, removal, or discharge Settlement of partnership account; trade of merchandise between merchants. Action accrues on day parties cease dealings

Motion for Sanctions

Statutory Language Regarding Sanctions - Ch10 contains several discussions of sanctions, some of which reflect a goal of compensating the offended party and others aimed at deterrence. May be made by either party or sua sponte (on the court's own motion) The court may direct the alleged violator to "show cause" why the conduct has not violated section 10.001 If not satisfied with the response to its "show cause order," the court may award reasonable expenses and attorney's fees incurred in presenting or opposing the motion, and if no due diligence is shown . . "all costs for inconvenience, harassment, and out-of-pocket expenses" The court must provide the party that is the subject of the motion notice and a reasonable opportunity to respond. EX: You sue doctor in medmal. But the court thinks you haven't investigated enough, and it turns out there's not a basis in fact for the claim. Is there attorney on the hook for the "convenience, harassment," etc.? Very vague. Are you liable for everything the doctor has lost? Important for lawyers. Sanctions really hurt lawyers in terms of malpractice insurance rates, etc.

PROBATE JURISDICTION, EXAMPLES Which court has original jurisdiction? 2.County with: county court at law with probate jurisdiction but NO statutory probate court?

Statutory county court (CCL) exercising probate jurisdiction has original jurisdiction and constitutional county court if probate matter uncontested `

PROBATE JURISDICTION, EXAMPLES Which court has original jurisdiction? 1.County with: statutory probate court AND County court at law exercising probate jurisdiction?

Statutory probate court has original jurisdiction

Settlement Agreements - TRCP 192.3(g) also makes the existence and contents of any settlement agreement discoverable (but not necessarily admissible).

Still has to be relevant.

NOTE 5: Waiver and Winning at Trial - the existence (or not) of waiver may depend on which party won at trial. Rule 90 provides that waiver is only by the party seeking reversal on such account.

Strange rule 90. If you don't specially except and get a ruling, you waive pleading defects, if you're the party complaining on appeal on that ground.

Other Provisions Regarding Who to Serve When we're suing an entity, like a corporation, you need to find out who is the agent for service of process for the entity.

Subchapter B of Ch17 of the CPRC has misc provisions concerning service on noncorporate business agents. Other codes, like the Family Code, have specific jx statutes that override the general statutes

Relationship of special exceptions to summary judgment practice

Summary judgment can be rendered (but is not required) on the pleadings when the petition does not state a legal claim or COA.

Other Rules and Statutes Requiring Joinder - various rules and statutes require the joinder of persons who are primarily liable in actions against sureties, guarantors, and other persons who have secondary liability. Rule 30 - Parties to Suits, Tex. R. Civ. P. 30 "Assignors, endorsers and other parties not primarily liable upon any instruments named in the chapter of the Business and Commerce Code, dealing with commercial paper, may be jointly sued with their principal obligors, or may be sued alone in the cases provided for by statute." Rule 31 - Surety Not to be Sued Alone, Tex. R. Civ. P. 31 "No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules." Rule 32 - May Have Question of Suretyship Tried, Tex. R. Civ. P. 32 When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the other, the surety may cause the question of suretyship to be tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the plaintiff . *What parties are indispensable under TRCP 30-32?*

Sureties. If you're the backup person on an obligation (surety/guarantor) you have a right to be sued along with the person first in line (the primary obligor). You would raise via a plea in abatement. However, this can be waived by contract and usually is.

16.063. Temporary Absence from State

Suspends running of SOL for the period of the person's absence TXSCt held that if a nonresident is amenable to service of process under the long-arm statute and has contacts with the state that are sufficient to support PJ, this statute does not toll the SOL.

Bauer v. Valley Bank of El Paso, 560 S.W.2d 520, 521 (Tex. Civ. App.—El Paso 1977) FACTS: D plead a general denial and alleged misrepresentation by the P Bank that no reliance would be placed on the guaranty D signed. D argued that he was told that while he signed as a guaranty, he would never actually have to guarantee the loan. [Weird, since that's the whole purpose of a guarantor.] P sought to recover from D on a promissory note and the guaranty agreement. Issue that went to jury: whether or not the bank represented to the D guarantor that he would not have to be a guarantor. What didn't go to jury was the questions of whether or not there was a binding agreement between P and D, or if there was consideration to support the guaranty agreement.

TCT enters judgment for the Bank on the note. On appeal, the D appellate lawyer argues that the case should be reversed, because the elements of a breach of a promissory note case, which includes binding agreement, consideration, etc. COURT: No. Rule 93 requires a verified denial if you want to assert that there's a lack of consideration, or if you wish to assert that there was a lack of execution of an agreement. D filed a general denial, so you didn't put those things in issue. Thus, P's pleadings as to those matters are taken as true in which there's not a specific denial. Proof: Promissory note and guaranty admitted into evidence and testimony supported payment was not made when due. Only issue to jury found against D on its misrepresentation claim. Why was P not required to get jury findings on whether D executed the note and whether there was consideration to support the contract? How should D have pled to put those matters in issue? VERIFIED DENIALS. (TRCP 93) COURT: Rule 93 requires a verified denial if you want to assert lack of consideration or lack of execution of agreement. D filed a general denial, so P's pleadings are taken as true regarding those matters that were not specifically pled (but were required to be), so they are deemed in the P's favor. Don't get to go to jury on those issues. LAW: Without a sworn plea under Rules 93(7) and (9), Tex.R.Civ.P., those issues were not before the trial Court. Since execution of the guaranty agreement was not an issue, it was only necessary that the agreement be introduced into evidence to prove up its terms In the absence of a verified denial of the execution by defendants or by their authority of the written instruments upon which the pleading is founded, under Rule 93(h), Texas Rules of Civil Procedure, the instruments were received in evidence as fully proved. HELD: The agreement as received into evidence fully proved the indemnity obligation of Mr. Bauer. There being no issue raised on execution, consideration, or ambiguity, there was no issue to present to the jury, other than the defensive issue of misrepresentation and that issue was decided adversely to [**4] Appellant. The first three points of error are overruled

Scheduling Orders

TRCP 166 - allows for scheduling orders (AKA pretrial orders, pretrial conference orders) - when a trial judge decides he is going to actively manage case. Will set out timeline for everything. When pleadings are due, when answer is due, when you have to designate experts, here's the day by which you have to make your dispositive motions (MSJ, etc.) Discovery date, trial date, etc. If you have these "customized" scheduling orders, it prevails over state rules. Not required like federal court, but routinely used in larger cities.

Issuance of the Writ of Attachment

TRCP 592 establishes specific procedures governing the Ps application for, and the court's issuance of, a writ of attachment. It was designed to meet the constitutional demands of due process. -The specificity requirements are similar to the requirements for the application for the writ of sequestration. -592a requires that the P file an attachment bond before the writ will be issued and provides for judicial review, if requested by either party, of the amount of the bond or the sufficiency of the sureties.

Dissolution or Modification of the Writ of Attachment

TRCP 608 governs dissolution and modification of the writ of attachment. It provides for a prompt hearing at which the burden of persuasion is on the attaching creditors.

Local Rules

TRCP can't cover everything; can't make all rules universal across all 254 counties of Texas, wouldn't work. So we leave some things to local decision. Local rules can be passed on a regional basis; the state is divided into districts. They complement the TRCP; act as gap-fillers Can't conflict with state rules of procedure; however, in reality they often do Ostensibly approved by TXSC. But they are just too numerous. Typically get stamp of approval until they're contested. EX: Rule 21 - unless another rule gives another date, must give opponent at least 3 days notice unless emergency motion like TRP. Harris County rules say 10 days' notice. Could technically attack on the grounds that 10 days conflicts with 3 days. But no one does because lawyers don't like 3 day deadline. Also, doesn't endear you to judge to attack local rules as unconstitutional. So not a lot of contest to local rules. TXSC website has all the rules. Can also see local rules for every county as they have approved them. In the old days, local rules didn't have to be in writing. Made it extremely difficult for lawyers based outside of the county to try a case. Made it almost mandatory to hire local counsel. Otherwise, you're gonna get "hometowned" Today, they have to be in writing.

Sources of Civil Procedure

TRCP; TX Civil Practices and Remedies Code - code of statutes passed by legislatures that deal with procedural subjects like SOL Rules of Appellate Procedure Local Rules Standing Orders Scheduling Orders

Proportionality Rule -

TX adopted a rule modeled on federal disco provisions that authorizes the court to balance benefit and burden. Carlson: gives the court the most amount of discretion: weighing burden/benefit

The TXSC adopted O'Connor's approach

TX adopts: just putting into stream of commerce knowing they may end up in a forum state is insufficient purposeful availment; foreseeability not enough. Must be a "plus factor" - some way to show that the nonresident D was actually targeting the TX. *TXSC - TV Azteca (2016)* Issue: whether the D Mexican broadcast station and news anchor in a border town were subject to TX PJ in a defamation action by TX. Broadcast originated in Mexico, but was picked up in TX. Is that enough? P put on evidence that D intentionally targeted TX markets, got revenue from TX biz for advertising time, had a business office in TX. Made substantial efforts to distribute programs to TX. *HELD*: this IS sufficient to warrant PJ over nonresident Ds. Not enough that it was picked up in TX, but it was clearly targeting TX listeners

General denial -

TX allows general denial of all P's claims, regardless of whether the D has a factual basis for the denial. There are certain kinds of denials that must be made specifically or under oath.

General denial -

TX allows the D to deny the petition generally, putting the P to proof on most issues. The general denial is NOT subject to the requirement that pleadings be made only with a good faith belief in their factual and legal propriety

Innocent stakeholder & attorney's fees -

TX follows the rule that a disinterested stakeholder who has reasonable doubts as to the party entitled to the funds or property in his or her possession and who in good faith interpleads the claimants, is entitled to attorney's fees, usually from the "fund" in controversy (have to act equitably though). *However, it is perfectly proper for a stakeholder who claims a share to use interpleader.*

The strict compliance requirement to support a default judgment: Strict Compliance Standard -

TX has a series of specific rules governing service of process: who can serve, who can be served, what they should be served with, and what kind of documentation must be maintained to prove service. If you don't strictly comply with these service rules, a default judgment based on lack of that service will be set aside. If you have a default judgment, you can attack based on lack of strict compliance with service of process rules. This means you have to dot your "i's" and cross your "t's" and get every detail 100% right to support a default judgment.

Venue -

TX has its own system that determines which counties in TX are counties of proper venue. Generally includes at least the D's county of residence (or principal office if entity) and the county in which a substantial part of the acts or omissions giving rise to the claim occurred. But there are numerous exceptions to the rule; in some situations venue is mandatory rather than permissive.

County Courts at Law (AKA "Statutory County Courts") - SMJ

TXC gives TXL power to created statutory courts one at a time on an as-needed basis. -Each court has a separate creating statute. -There's default rules, but check to see if creating statute says otherwise. -ALWAYS look at creating statute. If the statute doesn't provide otherwise, then you go to the default jx. -Can issue injunctions, writes of S/A/G, certiorari, supersedeas -Courts of Record (court reporter present); appeals to court of appeals -Some counties have none because they don't need them, others like Harris County have a ton of SCCs because of the volume of litigation we have. -JUDGES ARE REQUIRED TO BE LAWYERS -Legislature may alter the jx of these court's jx depends on statute creating that particular county court - so must consult statute creating each CCL Default jx = $200.01 < AIC < $250k excluding interest, punitive DAS, penalties, and attorney's fees (unless creating statute says otherwise) *Concurrent jx* Same SMJ exclusions apply as CCC, subject to a contrary provision in statute Default concurrent jx with District Court in: Civil cases that exceed $500 < AIC < $250,000 Appeals from workers' compensation decisions (no AIC requirement) Same probate jx as CCC (subject to contrary provision in creating statute) Some counties don't have them because they don't need them. Some have CCL only for particular areas like probate. It's what is needed at that county at that time. Thus, as the needs of the county change, the SCC will change. Harris County also has statutorily created district courts as well with exclusive jx over family law.

Open Courts Provision

TXC has open courts provisions Art 1, Section 13, which provides that "all courts shall be open, and every person for a an injury done him, in his lands, goods, person or reputation shall have a remedy by due course of law." -Precludes legislature from making a remedy contingent on an impossible condition, such as requiring suit to be brought when the nature of the injury could not have been discovered before limitations ran -Because it is constitutional, it is not abrogated by Section 74.251. Thus, a claimant who could not reasonably have discovered his or her injury within the relevant two year period has a reasonable time after discovery to bring suit. -P does have to exercise reasonable diligence to discover her injuries and file suit to avoid the bar of limitations. This reasonable time runs once the P becomes aware of both the injury and the facts giving rise to the COA, even if the P does not yet know the precise extent of the consequences of the alleged malpractice. -TXSCt has determined that delays of 4 months constituted lack of due diligence as a matter of law. -Significantly, the Court holds that a guardian's lack of due diligence may bar a legally incompetent's person's open courts challenge and a minor's open courts challenge. -*The open courts provision ONLY applies to common law COA.* Thus, the protection provided by the open courts provision does NOT apply to wrongful death and survival actions based on medmal, because they are statutory. -The tolling provision for minors does not apply to a wrongful death action brought by an adult based on the death of a child. Nor does the open courts provision apply to a minor's wrongful death action based on allegedly negligent treatment of a parent. -If the decedent did not file a timely claim for medmal that claim would have been barred by the medmal statute of limitations at the time of death, no wrongful death action accrues. -On the other hand, if the decedent dies after a malpractice action was timely filed, the petition may be amended to assert a wrongful death COA arising out of the same T/O. The wrongful death action will relate back to the time the malpractice suit was filed.

Certification and Sanctions for Frivolous pleadings and motions Backstory: a lot of business concern over "frivolous lawsuits"; TXL directed TXSC to enact TRCP 13 TRCP 13 - potential sanctions for frivolous proceedings, but originally gave attorney 10 day period after frivolous determination to amend pleadings, and then no sanctions.

TXL was outraged by that loophole. So passed Ch10. Stated that the TXSC cannot amend Ch10. Ultimately, the balance of powers prevailed, and the TXSC decided that because the TXL funds the courts, it would be good to avoid fight on this. So, Rule 13 was amended to correspond to Ch10 of CPRC, which gives TCt authority to impose sanctions under below conditions.

Hudson v. Wakefield (TX 1986) LAW OF THE CASE DOCTRINE FACTS: P Purchaser sues seller for specific performance of a contract to sell real property. D Seller successfully moves for summary judgment on the basis there is no binding option contract as the check for earnest money was returned for insufficient funds. An option contract must be supported by consideration to be enforceable. Arguing that since the check bounced there was no consideration. TXSC finds a contract (the bounced check just violated a covenant within an existing contract) and remands to trial court to determine whether the return of the earnest money check was such a material breach of the contract as to warrant the sellers' repudiation. Trial court, on remand, allows Seller to amend pleadings and add fraud in the inducement, a different defense to specific performance, if established. Purchaser asserts this is error as the law of the case establishes there is a valid contract.

TXSC HELD: Law of case doctrine is not a bar. "Breach of contract may have been the only theory which sellers believed they could conclusively establish" by summary judgment. Also, appellate court merely held summary judgment was improper as the term of the contract was a covenant and did not preclude sellers from asserting other defensive theories, including those attacking the validity of the contract, at a subsequent trial on the merits. Fraud involves factual issues inappropriate for summary judgment, so not appropriate to bar this theory when the summary judgment was reversed and the case got remanded for retrial.

CMMC v. Salinas, 929 S.W.2d 435, 436 (Tex. 1996) FACTS: TX winemaker (Hill County Sellers). One of their employees, Salinas, is injured from a wine press. Worker brings suit against Hill Country Sellers, KLR machines (NY distributor of wine press), and CMMC (French manufacturer of wine press) CMMC knows it is being shipped to TX. Changes wiring to US system. ISSUE: Manufacturer of goods knowing it is going to TX, person is injured in TX. Is that sufficient to support PJ?

TXSC HELD: No. This is an isolated translation. Not a stream of commerce, not even a dribble. Doesn't comport with due process. CMMC didn't solicit biz, doesn't advertise in TX, no other contacts with TX. Thus, it would violate due process for TX to exercise PJ based on isolated transaction that was not solicited. TXSC: Salinas should go to France to litigate dispute. [UNLIKELY that wine press worker is going to France to litigate. But due process focuses on fairness to the defendant.] Interesting that there is nothing in the opinion that mentions the state interest in protecting its citizens. Court is getting more conservative. Protecting business.

Peek v. Equip. Serv. Co., (Tex. 1989) - failure of P to state jurisdictional AIM does NOT necessarily deprive TCt of jx FACTS: The original petition in wrongful death suit and an amended pleading made no plea for a specific amount of damages. -In her second amended pleading, filed two years after the first, petitioner finally made a specific claim for damages. District Court: held that its jx was not invoked by a pleading that fails to allege specific damages or jx minimum AIM. Since P did not file pleading with proper DAS until after SOL had run, dismissed case. DCt held that limitation was a bar. Issue: whether a P seeking damages under the wrongful death and survival statutes invokes the jx of a DCt by filing a petition which fails to allege either a specific amount of damages or that the damages sustain exceed the court's minimum jx limits.

TXSC REVERSES. Supreme Ct notes Plaintiff's proved up damages at trial within district court SMJ HELD: We reverse and remand because the omission of any allegation regarding the amount in controversy from petitioner's pleadings, did not deprive the court of jurisdiction and was instead a defect in pleading subject to special exception and amendment.

NOTE 3: Vitality of the Election Doctrine The TXSC in Bocanegra found that Ms. B didn't have the requisite knowledge regarding the nature of her injury to bind her to an informed election between inconsistent theories and remedies. What if this had been a business dispute/contracts case?

TXSC applied the doctrine of election of remedies in a business dispute finding that the party knowingly elected a remedy and it would be unjust to allow that party to knowingly elect an inconsistent remedy. It would be unjust to allow the party to proceed on both. Don't confuse this with the ability to bring multiple claims, theories, remedies in a single pleading of a single lawsuit. EX: DTPA, negligence, strict liability, etc. You can bring all those in your pleading and try to prove at trial. But if the jury finds in your favor on multiple theories of recovery, you have to elect one. You can't double recover for the same injury under the one satisfaction rule.

Acquisition of Property Interests Retamco Operating v. Republic Drilling Co. -

TXSC found that a CA company that knowingly took an assignment of Texas oil and gas interests "reached out and created a continuing relationship in TX." Court: this ties you to TX. Land's not going anywhere! This ownership also allows Republic to enjoy the benefits and protections of TX laws. Unlike personal property, Republic's real property will always be in TX, which leaves no doubt of the continuing relationship that theis ownership creates. Thus, TX courts have PJ over Republic in a case alleging that the assignment constituted a fraudulent transfer.

ARBITRATION An arbitration clause in a contractual agreement can foreclose the possibility of judicially trying the case.

TXSC has said that arbitration clauses are favored and they enforce them almost without exception. You don't have to have a signed written agreement to arbitrate, but that is the norm. EX: case where employee worked for a company for some time and they didn't have any requirement that if an employee sued a company they had to go thru arbitration. But then they adopted an employee manual/policy that required arbitration and sent it out to employees and said it was binding on all employees. That was held to be sufficient.

Class action Ps attorneys wanted to use statistical models to estimate damages in place of traditional method.

TXSC rejects. We don't base damages on models. Have to actually prove up for each P.

What is the difference between Chapter 10 CPRC vs TRCP 13?

TXSC tried to write it in a way where TRCP 13 doesn't conflict with CPRC Ch10. Rule 13 - presumes that courts shall presume the pleadings, motions, and other papers are filed in good faith. Ch10 does NOT have that presumption When you sign any pleadings, etc. you are affirming to the court that what you are filing is not groundless and is in good faith. However, courts are hesitant to impose sanctions. Judges are all elected officials. They don't want to impose sanctions. 13 and 10 are cumulative.

Benson v. Wanda Petroleum (TX 1971) FACTS: 2 vehicle collision between Benson's car (driven by Porter) and Wanda Petroleum truck Suit 1= Porter v. Wanda Petroleum. Porter (driver of Benson's car) sues Wanda. Wanda counterclaims against Porter. Jury Findings = Porter was contributorily negligent (at that time a complete bar to recovery) and Wanda Petroleum was NOT negligent. Judgment Porter take nothing. Suit 2= Benson (Owner of car Porter was driving) v. Wanda Petroleum. Wanda Petroleum moves for summary judgment on the theory that findings in Suit 1 (Porter negligent and Wanda Petroleum not) collaterally estops Benson from proceeding in suit 2. Wanda tries to argue that Benson was in privity with Porter because Porter was her driver, and thus should be bound to fact findings in which she was not a party.

TXSC: No, Benson not in privity with Porter. Due Process requires that the rule of collateral estoppel operate only against persons who had their day in court.

How can you craft RFP that are sufficiently specific?

Talk to your client that are in that business; talk to your experts (figure out what is helpful); also use ROGS to figure what your opponent uses to do X, might ask for them afterwards.

Personal Jurisdiction, generally Procedural due process deals with fairness and burden in the litigation process. It is a fluid concept as what is fair or burdensome may change over time. When it is it fair and not overly burdensome for a nonresident D to have to appear in court in another jx.?

Texas residents are subject to the personal jurisdiction exercised by Texas courts. -Without personal jurisdiction, the the due process rights of the defendant are threatened. -Historically, the court only had personal jurisdiction over persons and property present in the state. -Pennoyer v. Neff - Not fair, overly burdensome to require non-resident D to travel beyond its state given the time, cost and danger of travel at this time 1866. -This worked when people were relatively fixed in location, but as society developed it was no longer sufficient. What was "fair" expanded as technological innovations (car, telephone, internet) made interactions between different states more common. Also, the domination of commerce by large corporations that could contract or commit torts across great distances. Today, it is much easier to travel, so what is burdensome has changed.

What happens if the judge doesn't make rulings on objections during written submission on MSJ?

That party needs to ask immediately for express rulings on the objection. Don't rely on Implicit Rulings on summary judgment objections "While movant objected to nonmovant's summary judgment evidence, it could not be inferred that the trial court sustained movant's objections merely by granting summary judgment." Thus, the complaint is waived. Get an express ruling on objections to summary judgment proof. NEVER rely on implicit ruling, because cases very rarely find implicit rulings granting summary judgment objections. You don't have to, you can try to rely on an implicit ruling; but there's a good chance the appellate court won't find an implicit ruling.

Court Administrative Act - textbook

The CAA requires counties to create comprehensive plans for judicial administration. State is divided into 9 regions and governor appoints presiding judge (with advice and consent of Senate) Each county has local administrative judge that assigns, dockets, transfers, and hears cases. Act authorizes district and SCC judges to adopt local rules to provide for assignment, docketing, transfer, and hearing cases subject to jx limits -Even without transfer the Act provides that district and SCC judges may hear and determine a matter pending in any district or SCC in the county and may sign a judgment regardless of whether the case is transferred. 74.094(a) allows a SCC judge to hear, determine, and sign a judgment in a matter pending in a DCt outside his court's jx without transferring the case. -Ch74 contains transfer provisions that govern other TX TCts. -SCC judges may transfer a case to the DCt docket, as long as DCt judge agrees and is within jx. -CCC, SCC, JC courts in a county may transfer cases to and from the dockets of their respective courts, as long as the transferee judge consents and is within jx. -Complete understanding requires a look at Rules of Judicial Administration adopted by TXSC. Rule 3 creates council of presiding judges composed of Chief Justice of TXSC and nine regional presiding judges. Oversees dockets and case loads and to promote as much uniformity in local rules as possible. Rule 4 creates a "council of judges" within each administrative region, which is composed of the presiding judge and all qualified district and statutory county court judges for the region, including retired and former judges.

Rule 39 - COMPULSORY JOINDER: *(c) Pleading Reasons for Nonjoinder.* A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.

The P is required to assert if persons they know that have this type of interest in their pleadings and why they are not joined. EX: "We have not joined the 3rd sibling X because they have no contacts with TX" *(d) Exception of Class Actions. This rule is subject to the provisions of Rule 42.*

Supplemental pleadings -

The P's reply to the D's Answer. It may include special exceptions and denials or avoidances of pleas included in the answer. does not supersede the original petition.

Barr v. Resolution Trust (Tex. 1992) Texas adopts the transactional approach to res judicata.

The Restatement of Judgments also takes the transactional approach to claims preclusion. It provides that a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose.

CCC (textbook)

The TXC provides that the County Court has jx as provided by law. -This constitutional provision has been implemented by statutes contained in the Code. -These courts usually have jx in cases in which the amount in controversy is $200 to $20k. Unless a cause is specifically assigned to another court because of it's subject matter, a constitutional county court has concurrent jx: 1. With JC in civil cases in which the AIC exceeds $200 but not $20k, and 2. With the DCt in civil cases in which the AIC exceeds $500 but does not exceed $5k CCC has civil appellate jx over cases arising in the JC when the judgment rendered exceeds $250. Review is by a trial de novo CCC have limited probate jx in many counties, but ordinarily these courts do not have the authority to resolve contested probate matters. CCC may issues writs of injunction, mandamus, certiorari, and all other necessary writs to enforce its jx Statutes governing CCCs also contain a list of cases over which they do *NOT* have jx. (1) a suit to recover damages for slander or defamation of character; (2) a suit for the enforcement of a lien on land; (3) a suit in behalf of the state for escheat; (4) a suit for divorce; (5) a suit for the forfeiture of a corporate charter; (6) a suit for the trial of the right to property valued at $500 or more and levied on under a writ of execution, sequestration, or attachment; (7) an eminent domain case; or (8) a suit for the recovery of land. Once again, this withholding of jx becomes a grant of jx to the DCTs TX Leg on a county-by-county basis, has also added to or subtracted from the jx of the courts in particular counties. EX: see above Despite the adoption of the forgoing legislation concerning the jx of the CCCs, in 2013, cases were filed in 210 of 254 CCCs. The other 44 court judges either had no judicial functions or assisted on an as-needed basis for cases filed in JCs or statutory county courts. In the more populous counties, the "County Judge" devotes her full attention to the administration of county government. Of the 254 judges, 11% have law licenses.

Southwestern Bell v. Garza (TX 2004) - Garza, a 20-year employee of Southwestern Bell brought an action for damages against it for violation of the Anti-Retaliation law. Garza's pleading did not use the statutory word "discrimination" but did allege that "in retaliation for filing" a compensation claim, he was "ordered to find a non-driving position" and was thereby "effectively disqualified form his job" and terminated when he couldn't find one. Bell argued P only pleading unlawful discharge, not discrimination.

The TXSC rejected this, saying while P didn't use the word "discrimination" the pleading was sufficient to put the D on notice to be able to prepare a defense. If the D had doubts, it could have sought clarification through a special exception.

BOCANEGRA V. AETNA LIFE (TX 1980) FACTS: Ms. B worked in a book-binding company and injured her back. Doctor couldn't say whether it was her job or other activities that caused the injury. Two types of insurance that employers carry: workers' comp, and group medical insurance that covers employees medical expenses for health issues that are NOT on-the-job injuries. *Suit 1: Mrs. Bocanegra v. Employer.* She claims her back injuries are the result of an "on the job" injury. Ms. B sues employer in workers comp, which requires a showing that she suffered the injury on the job that resulted in some incapacity. Suit is settled. --Settlement expressly provides damages are for lost wages and impaired earnings NOT for medical expenses. *Suit 2: Mrs Bocanegra v D Group Medical Insr. Co. provided by Employer.* Mrs. Bocanegra now claims her back injuries are a "NON-occupational injury" and seeks to recover her medical expenses. *D asserts "election of remedies" doctrine as a bar to the remedy* Court of Appeals says suit 2 barred by election of remedies doctrine.

The Texas Supreme Court reverses. *Election of Remedies Test from the Supreme Court:* (1) One successfully exercises an INFORMED choice; (2) between two or more remedies, rights or states of facts; (3) which are so inconsistent as to; and, (4) constitute a manifest injustice. *Was Mrs. Bocanegra barred by an election of remedies? Why not?* NO. Ms. B did not make an informed choice between preceding between the workers' comp claim and the claim against the group medical care insurance provider. She's not gaming the system, not going to double recover anything. Why wasn't the first action res judicata or collateral estoppel to #2? Strange to allow recovery under one theory and then another under a contradictory theory (workers comp and medical expenses against medical insurer) The damages between the two recoveries were very different. TXSC held that Ms. B asserted inconsistent theories honestly; she didn't know whether it was an on-the-job injury or not; so it wouldn't be inequitable to allow her to proceed. She's not trying to game the system. No violation of the "one satisfaction rule"

Website info: Service by publication

The Texas legislature mandated the creation of a website for publishing citation and directed the Texas Supreme Court to establish implementing procedures. Effective July 1, 2020, service by publication must be made on the Public Information Internet Website, as well as by publishing the citation in a newspaper. However, the citation need not be published in a newspaper if the party requesting citation is 1) indigent and files a Statement of Inability to Afford Payment of Court Costs under Rule 145, OR, 2) the total cost of the required publication exceeds $200 each week or an amount set by the Supreme Court, whichever is greater; or, ---Sometimes ads are expensive. 3) the county in which the publication is required does not have any newspaper published, printed, or generally circulated in the county. (this is more and more common. Local papers dying as general public is getting news online.) In suits that do not involve the title to land or the partition of real estate, the citation must be published in a newspaper in the county where the suit is pending. In suits that involve the title to land or the partition of real estate, the citation must be published in a newspaper in the county where the land, or a portion thereof, is located. Service of citation by newspaper may be accomplished by any sheriff or constable or by the clerk of the court in which the case is pending by publishing a compliant citation once each week for 4 consecutive weeks, and the first publication must be at least 28 days before the return is filed. The return must state how the citation was published, specify the dates of publication, be signed by the officer who served the citation, and be accompanied by an image of the publication. Service of citation by the Public Information Internet Website Publication must be served by the clerk of the court in which the case is pending by publishing a compliant citation for at least 28 days before the return is filed. The return must specify the dates of publication and must be generated by the Office of Court Administration. Lawyers don't have access to load service by publication onto the website; only the county clerk. *Service by publication is COMPLICATED.* *IMPORTANT: Not a great way to serve a defendant for a lot of reasons, but one of the most important reasons to avoid is because if you serve by publication, that D instead of having 30 days from the day of judgment to file a motion for a new trial, now has two years* Also, *state appoints attorney ad litem to represent the absent D, and the cost of that ad litem will be taxed against the P's judgment, so the P will get less.* Rules are written to discourage service by publication because it is recognized that the D is unlikely to see it, unlikely to appear, so it's kept open for a long period of time. Much better of doing service in a different manner than by publication.

Wrongful Pre-Judgment Garnishment

The bond set is similar to attachment and sequestration. The bond must cover the cost of any potential damages for wrongful garnishment. Wrongful if allegations in the affidavit are untrue Good faith mistakes are not a defense to wrongful garnishment *However, cannot get exemplary damages without proving:* 1) malice AND 2) no probable cause for seeking the writ 3Ps whose property interests are wrongfully garnished may also maintain an action against the erring creditor.

What is the purpose of the citation?

The citation contains the seal of the court; lets D know this lawsuit is for real; the power of the State of Texas is behind it. If you don't answer, you risk a default judgment against you. Otherwise, the D doesn't know if it is a real lawsuit. Only usually have a citation issued along with the original petition. Thereafter, you don't need a citation when serving additional pleadings on D once you've served the initial citation. Typically just served party to party (lawyer to lawyer). Often done electronically. Same rule applies to counterclaim/cross claims

Notice of hearing Each party is entitled to at least 14 days notice of the hearing on the motion to dismiss

The court may conduct an oral hearing but motion must be determined based on face of the pleadings. Doesn't hear evidence as to whether there is a basis in law or fact, just looks at the pleadings. However, the trial court may hear evidence only as to attorney fees and costs. Court has the discretion (as of 2020 amendment) to award the prevailing party all costs and attorney fees incurred EXs of 91a: Wooley v. Shafter (14th court of appeals) - held that a de novo standard of review applied in reviewing 91a motion.

Permissive Joinder Rule 40(b) (b)Separate Trials.

The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of *a party against whom he asserts no claim and who asserts no claim against him*, and may order separate trials or make other orders to prevent delay or prejudice.

What is the "Entire Record"?

The court's opinion in Ruiz states that if there is any probative evidence in the entire record, including trial on the merits, that venue was proper, the court must uphold the trial court's determination But what if the P's prima facie proof is later negated at trial? Some appeals courts have held that "conclusive evidence to the contrary can 'destroy' such probative evidence."

Former testimony exception to the hearsay rule. Deposition can be used if:

The declarant is unavailable as a witness, and The opposing party, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination FINAL EXAM: only need to know that depos are freely admissible subject to rules of evidence. The rest of this is just bonus info

*Election of Remedies* The act of choosing between inconsistent remedies allowed by law on the same set of facts, and its purpose is to prevent double recovery for a single wrong.

The election of remedies doctrine is a doctrine of estoppel that provides a party who has two co-existing but inconsistent remedies and elects to pursue one remedy to a conclusion may not sue on the other remedy. Ordinarily this doctrine *applies only when a party has elected to pursue one remedy to its conclusion* and then attempts to pursue a subsequent claim on a second inconsistent theory. Plaintiffs have the right to plead alternative theories of recovery, but at some point a litigant may take an action that constitutes a choice to pursue one remedy and forgo the other. Cannot have more than one recovery for the same wrong: "*one satisfaction rule*" When this happens, the D would urge the "election of remedies" affirmative defense would preclude the P from seeking another or a different remedy. Election of remedies is an affirmative defense that must plead and proven

Insurance is generally not admissible Relevance of Insurance Policy Limits -

The existence of liability insurance and the policy limits are important to determine settlement and litigation strategy. In addition, liability insurance policies impose a duty of defense on the insurer, so the D's lawyer is likely furnished by the insurer. A P would want to see the policy because TX law, like the law of other states, imposes excess liability on an insurer if it fails to settle within policy limits under certain circumstances (Stowers). A P's settlement leverage may be increased if the P can create the potential for Stowers-based liability.

Hybrid MSJs A request for a no-evidence summary judgment may be combined in a single motion with a request for a traditional summary judgment.

The fact that evidence may be attached with respect to the traditional summary judgment does not foreclose a party from also asserting there is no evidence with regard to a particular element. When the two types of MSJs are combined, care should be taken to include headings that clearly delineate and segregate the portions seeking a traditional MSJ from those seeking a no-evidence MSJ. This is make it easier for the court to apply the appropriate standards for each. Carlson: suggests you don't do this. Very confusing. But if you do, the appellate court is supposed to take up the no-evidence first.

May a trial court properly enter summary judgment based on pleadings alone?

The general rule is no. Pleadings merely outline and define the issues and are not summary judgment evidence. However, there must be pleadings of the grounds (of recovery or defense) urged to support a summary judgment. EX: D moves for SJ based on res judicata (another affirmative defense). Have to plead that affirmative defense to put on table, then move for SJ based on res judicata. The pleadings are NOT SJ evidence. Should attach a certified copy of the judgment from the previous lawsuit, and that will establish res judicata.

Sec. 61.021. WHO MAY ISSUE.

The judge or clerk of a district or county court or a justice of the peace may issue a writ of original attachment returnable to his court.

Bahr v. Kohr, 980 S.W.2d 723, 725 (Tex. App.—San Antonio 1998) FACTS: Action by P to set aside a fraudulent conveyance by D debtor. D asserts property conveyed was not his but rather was his wife's separate property. Is this an affirmative defense that Defendant had to plead to be entitled to present this proof OR did this defense go to rebut an element of Plaintiff's claim so a general denial is sufficient to put it in issue?

The latter! So general denial covered this defense. Remember, have to specifically plead an affirmative defense. *A general denial covers putting on evidence generally to refute the elements of a P's claim.* *But an affirmative defense is an independent reason in law why the P shouldn't recover.* -Even if what P says is true, D still wins for an independent legal reason. -Rule 94 lists a lot of affirmative defenses, and "any other matter..." -EX: SOL, SOF, discharge in bankruptcy, accord and satisfaction (you've already agreed in writing to accept something in satisfaction) Here, an element of the ground of P's recovery based on "fraudulent conveyance) is to show that it was the D's property. NOT assuming what P says is true. Putting an element of fraudulent conveyance COA in controversy. Thus, NOT an affirmative defense.

Consequences of Rejection of Offer - Triggering the Fee Shifting Event Shifting of certain litigation expenses is mandated when an offeree rejects a settlement offer made under Rule 167 and the judgment rendered is significantly less favorable than the rejected offer. A judgment is significantly less favorable to the rejecting party than is the settlement offer when:

The offeree (offer recipient) is a claimant & the judgment would be less than 80% of the offer; or The offeree (offer recipient) is a defendant & the judgment would be more than 120% of the offer.

Telephonic Depositions TRCP 199.1(b)

The officer taking the depo may be located with the party noticing the depo instead of with the W if the W is placed under oath by a person who is present with the W and authorized to administer oaths in that jx.

Fair Notice of the Claim Involved - The Castleberry case takes a strict elemental view of the pleading standard that focuses on the COA asserted against the D apparently without much regard for the facts alleged in the P's original petition. What if the original petition contained factual allegations that would support a reasonable inference that the intentional liability standard could or would be met at trial rather than the willful, gross negligence?

The petition might have been held to provide fair notice of a recognized claim in TX

LAW OF THE CASE DOCTRINE

The principle that an appellate court's decision on a legal issue is binding on both the trial court on remand and an appellate court on a subsequent appeal in the same case and with substantially the same facts. EX: Interlocutory appeal will be binding when the TCT's ultimate ruling is appealed That is, under the law of the case doctrine, questions of law decided on appeal to a court of last resort usually govern the case throughout its later phases.

In re Weekley Homes, L.P. (Tex. 2009) Electronic Discovery TRCP 196.4 What are procedures for obtaining electronic discovery? (summary below) Who bears the expense of production?

The producing party; except that the requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

Why do we not require the P to re-serve the D precisely in accordance with the rules, when the D files a motion to quash citation and wins the motion?

The purpose of citation and service is to make sure the D knows about the lawsuit, and is given an opportunity to appear (notice and opportunity to be heard). So if the D is filing a motion to quash citation, they know all about the lawsuit. Thus, it would be ridiculous to have the D reserved precisely in accordance with the rules.

Failure to Attach Sworn or Certified Copies of Papers Referred to in Affidavit TRCP 166a(f) requires that sworn or certified copies of all papers or parts of papers referred to in an affidavit must be attached and served with the affidavit.

The safest practice is to object to the opponent's failure to attach materials referenced in an affidavit, because there appears to be a conflict on whether this is a defect of substance or form

What must the MSJ contain?

The specific grounds which support the summary judgment, which may or may not be supported with affidavits.

Contents of the Writ of Attachment and Service on Defendant

The writ of attachment must be directed to a sheriff or any constable within the state. The instructions to the sheriff or constable direct the officer to attach property "of a reasonable value in approximately the amount fixed by the court." TRCP 593. The levy of the writ fixes a lien on personalty. A lien on real estate is affixed by an "office levy." -This procedure involves endorsement of the writ with a description of the realty and recordation of the writ and the return in the county in which the realty is located. The writ of attachment must inform the D of the right to replevy and regain possession by filing a motion to dissolve the writ.

What is the time frame to amend after a special exception?

There is no specific time; just reasonable. But this case shows you should proceed to have a hearing promptly. Be diligent. Here, the was a 20 month time frame with 3 trial settings. Definitely does NOT qualify. But in the order you are required to include with any motion (per local rules), you want to include, as the party moving for special exception, a specific time that is reasonable so you can move to dismiss if they don't amend by that time. So put 30 days (or whatever is reasonable) into order, which enables you to calendar that. It is better practice for the order granting the special exception to set a specific date; eliminates the trickier issue of when a long delay becomes a refusal to amend. If P doesn't amend timely, trial court can dismiss, but it will be without prejudice (but might implicate SOL)

Rule 51 - Joinder of Claims and Remedies, Tex. R. Civ. P. 51 *(a) Joinder of Claims*. The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party.

There may be a like joinder of claims when there are multiple parties if the requirements of Rules 39, 40, and 43 are satisfied. There may be a like joinder of cross claims or third-party claims if the requirements of Rules 38 and 97, respectively, are satisfied.

Before a relatively recent amendment, GALs appointments were often lawyers that had recently supported a judge in a recent campaign, and would participate in ALL facets of the litigation like a 3rd lawyer; and would run up hundreds of thousands in fees to be paid out of the D's insurance policy, leaving less for recovery.

There were so many abuses like this, that the TXSC to amend the rule to make it clear that GALs have the very limited role of advising the court on whether the settlement is in the minor/incompetent's best interest. That's it. Most judges today appoint GALs on a random basis and potential appointees have to be qualified (must take courses on being a GAL).

Would evidence that the event was the result of an "Act of God" or an "unavoidable accident" be admissible under a general denial? EX: 22 inches of rain washed out tracks

These are IRD - inconsistent factual theories that go to refute proximate cause element of your opponent's claim. So NOT an affirmative defense. Unclear whether these are sufficient under a general denial. But there's no specific rule that says you have to specifically plead IRDs. Good idea to err on the side of pleading it. Sometimes you overplead. Most pleadings do NOT have to be sworn to. Thus, sometimes pleadings are like "Christmas lists" - just what the party is hoping for.

Discovery Rule

These time limits may or may not be subject to the discovery rule - when the P discovered or should have discovered they had the claim. If your SOL is subject to discovery rule, then limitations period won't begin until lawsuit accrues. *Lawsuit accrues when a reasonable person would know they have a claim.* Some injuries are not easily discovered. For those types of claims, discovery rule will apply; SOL will not apply until accrual date. EX: sponge case, doctor left sponge in body after surgery. SOL won't start until discovery of sponge

ALTERNATE DISPUTE RESOLUTION Created during a period of skyrocketing numbers of cases. Lots of cases were backlogged. Costs of creating new courts is high. So TXL incorporated a lot of ADR methods into statute. Most popular is mediation. The trial court may refer a pending dispute to an ADR procedure and appoint a neutral third party to preside.

They do this routinely. TCTs often ask attorneys for the parties to agree on a mediator.

There are companies that do this for a living. Commercial registered agents for service of process. Function is to receive service of process by corporations that have hired them.

They make sure entity gets notice of lawsuit, so that the service doesn't get lost and company will know.

Sham Affidavit

This rule, which has long been applied in federal courts, allows judges to disregard an affidavit offered in opposition to a motion for summary judgment when the affidavit conflicts with the affiant's prior sworn testimony and "does not provide a sufficient explanation for the conflict." When a summary judgment affidavit is executed after a witness's deposition and there is a clear contradiction (variance) on a material point without an explanation for the change, the affidavit merely creates a sham fact issue and should be objected to. At variance with W's testimony in deposition. Clear contradiction with a material fact without explanation for the change. You should object and ask court to disregard. Is it just variance on a theme, or is it clear contradiction on a material point without explanation? If the later it should be disregarded on objection.

Why these three objections?

Those are the types of situations where a lawyer can ask the question a different way and cure the problem. Or (non-responsive), insist that the deponent respond to the question Form: misleading, assumes a fact in controversy Must be made during depo or waived. If you make speaking objections that are coaching W, you can waive your valid objections.

NOTE 1: Christy case -

Those pleadings are insufficient because everything you've described is something they have the right to do in a lessor/lessee oil and gas agreement. They have the right to use the surface as a reasonable operator would in developing the wells. No breach of duty asserted in the pleadings, and thus no COA. Defective.

So if a D pleads SOF, they have to establish that there was no writing by the party sought to be charged. How?

Through discovery (Chapter 9)

Concurrent Jx of Disputes about Possession - FED action is NOT an exclusive remedy and does not preclude concurrent actions for trespass, damage, waste, rent or profits.

Thus, FED relating to eviction/possession and a lawsuit for back rent can be brought in separate lawsuits, even though the arise from the same T/O. These actions regarding title and possession brought in district court are cumulative remedies. Thus, FED in JPs may be brought and prosecuted concurrently with suits to try title in a title dispute. DCts have concurrent jx with JPs in trying possession rights to land. It may also be proper for the DCts to hear title disputes at the same time JPs are using FED procedures to determine the immediate right to possession.

Timing of a MTTV for lack of impartial trial

Timing: unclear whether a MTTV based on inability to obtain a fair trial must be filed and served concurrently or before filing the answer. Older case law says yes; which makes sense because the conditions that make a fair trial impossible may arise after the trial begins (EX: prejudicial publicity) Often, you don't realize that there's a lot of prejudice until you've started discovery. Wouldn't make sense to require a MTTV based on prejudice right away if you can't know that prejudice exists yet.

Compulsory Joinder Issue that often comes up when someone isn't joined that is indispensable, is does that deprive the court of SMJ when there's a failure to join persons needed for just adjudication, when no one raises that party's non-joinder to the trial court?

Today the answer is that it would be "rare indeed" that the trial court for the court to lack SMJ as to the existing parties for lack of joinder of another party.

Appeals from County Court to Court of Appeals

Today you can bring an appeal to the county court of the validity of the JP's judgment in a FED case. Appeal is trial de novo. And then from there to the appeals' court.

Prior Judgment Binds Party and Those in Privity When can we say that a person is in privity with a party so that they are bound by that party's adjudication of an issue?

Traditionally, for collateral estoppel to apply, the party against whom collateral estoppel was urged must have been a party to the judgment in the first proceeding, this was known as "*mutuality*" Today, mutuality is NOT required. A party in "privity" can be bound as well. Any party can assert collateral estoppel against any party who had a prior opportunity to litigate the fact to final judgment by a court of competent jx and the finding was essential to the judgment

16.003. Two Year Limitations Period

Trespass for injury to the estate or property of another; conversion of personal property, taking or detaining the personal property of another Personal injury, forcible entry and detainer Injury resulting in death (COA accrues on the death of the injured person)

What is dominant jurisdiction?

Two lawsuits filed with same COA and same parties. Race to the courthouse as to which case has dominant jx It is well settled that when suit would be proper in more than one county, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts. As long as the forum is a proper one, it is the plaintiff's privilege to choose the forum. Defendants are simply not at liberty to decline to do battle in the forum chosen by the plaintiff.

Due Process requires that interested parties in a pending action be notified of the action, i.e., served with process, so that a default judgment will not be entered against them without having had an opportunity to defend.

USSCt: due process requires notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections

Equitable Title and Equitable Rights -

Under TX law, a purchaser under a contract for the conveyance of land acquires equitable title once the purchaser has performed its contractual obligations. Haithe court (cited by Dass) distinguished between "equitable title" and "equitable right to possession" under a contract for deed. Because the D in the JP was held to have not "equitable title" the JP had jx to determine the question of possession. Until he has fully performed his obligations under the contract for deed, he possesses only equitable rights, not equitable title. Disputes over equitable title, however, may not be brought in the justice courts.

"Essential Need" requirement -

Under TXSC's analysis most courts of appeals have generally held that Ps cannot satisfy it. NOT ESSENTIAL NEED -Pooling P resources, -experts having to duplicate work, -efficiencies in discovery These are not enough. Burden on lawyers to litigate in additional counties not enough Only found once, in Corpus Christi ACt when essential witness was only available to testify in the desired county.

Multiple grounds: what if a motion to transfer venue is based on BOTH the ground that venue is improper in the county of suit AND inconvenient there, and the court's venue transfer order does not specify on which of the two grounds the motion was granted?

Unreviewable ruling. Thus, as a trial lawyer, you want to assert both a venue statute AND a transfer based on convenience because if it's in the order, and the trial court grants the venue transfer, because the convenience ground is in there, it's completely unreviewable venue ruling. Carlson: leaves room for some mischief. Movant normally drafts the order; judges don't typically draft orders. Parties always want orders that grant the relief requested as general as possible so you have running room on appeal: "it could be based on this or that" so if the appeals court overrules they have to undo it on all grounds. In this case, if you've got convenience in the mix, it's an unreviewable order according to the TXSC in Garza. TXSC upheld, noting in transfer orders based on convenience, it appears to be the intent of the TXL to make venue orders immune from review Thus, there is little caselaw on the matter. Questions remain:

PLEA TO THE JURISDICTION

Used when D asserts that the court doesn't have subject matter jurisdiction, that is the power to hear the case. Eg., Immunity from suit, standing, amount in controversy. Remedy if sustain the plea? Dismissal. Subject matter jurisdiction is not waivable Can assert on appeal Any judgments that lack SMJ are void. Usually easy to determine SMJ, but sometimes more difficult if involves sovereign immunity. If a state has sovereign immunity, the court lacks SMJ.

Taking Oral Depositions Must be taken before an officer authorized by law to take depos.

Usually means an officer certified as a shorthand reporter by the TXSC. Officer must administer the oath to the W and record the testimony, objections, and other statements during the depo at the time they are given or made. After the depo, the officer must prepare and certify a transcript or other recording of the depo, serve it on all parties, and file it with the court.

Must a plea in abatement be verified?

Usually required to be supported by affidavit, verification, or legal equivalent.

What are the due process implications of granting case determinative sanctions?

Violates due process if behavior isn't in flagrant bad faith, conscious disregard, etc.

Velasco v. Tex. Kenworth Co., (Tex. App.—Dallas 2004) FACTS: Wrongful death case. Some events took place in Dallas Cty, some took places in Johnson Cty. Bid for tractor, Accident and death took place in Johnson Cty; Principal Office was in Dallas Cty. D filed motion to transfer venue to Dallas County because that is where D's PPB is located. P responded that Johnson County was proper because that is where a substantial part of the events or omissions giving rise to his claims occurred. TCt: granted D's venue transfer motion. In Dallas, the TCt granted D's no evidence MSJ. P appeals arguing that MTTV should NOT have been granted because a substantial part of the claim arose there.

WHERE DID A SUBSTANTIAL AMOUNT OF THE EVENTS OR OMISSIONS GIVING RISE TO THE TORT (wrongful death) Action OCCUR? Johnson *Can there be more than one county where a substantial amount of the events or omissions giving rise to the claim occurred?* Yes. In which case, it is the P's choice. HELD: court agreed with appellant that the transfer order was improper, because venue had been proper in Johnson County under the statute. The factual basis for maintaining venue in the Johnson County included that it was the county where the accident occurred, where plaintiff's wife died, and where the bid for the allegedly defective semi-tractor was submitted. *Burden was on D to establish that venue was NOT proper in Johnson Cty by showing none of the events giving rise to the suit took place there*. •"To succeed on its motion to transfer, [Defendant] had to establish that no substantial part of the events giving rise to [Plaintiff's] claims occurred in Johnson County.' They failed to do that. They look at the TOTC regarding the events that gave rise to the suit; it CAN be more than one county where venue's proper. But if so, it is the plaintiff's choice. Reversed and remanded with instructions to send back to Johnson Cty. otice, this case was already tried on the merits in Dallas Cty. So, when you get up on appeal, if a party can show that the venue ruling was wrong in light of the record, it's per se reversible error. If the trial court ruled improperly on venue, then it is per se reversible error on appeal, regardless of the merits

Verified Denials Rule 93 requires a long list of denials to be specially made under oath. What are the consequences of failing to do so?

Waiver. You don't put those questions into issue. If party required to specifically plead and does not do so, those issues are not before the court and no evidence on those issues over objection. Rule 93. Certain Pleas To Be Verified A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit. a. That the suit is *not commenced in the proper county*. b. That the plaintiff has *not legal capacity* to sue, or that the defendant has not legal capacity to be sued. c. That the plaintiff is *not entitled to recover in the capacity in which he sues*, or that the defendant is not liable in the capacity in which he is sued. d. That there is *another suit pending* in this State between the same parties involving the same claim. e. That there is a *defect of parties, plaintiff or defendant.* f. A *denial of partnership* as alleged in any pleading as to any party to the suit. g. That any party alleged in any pleading to be a corporation is *not incorporated as alleged*. h. *Denial of the execution* by himself or by his authority *of any instrument in writing*, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved. i. A *denial of the genuineness of the indorsement or assignment of a written instrument* upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief. j. That a written instrument upon which a pleading is founded is *without consideration*, or that the consideration of the same has failed in whole or in part. k. That *an account* which is the foundation of the plaintiff's action, and supported by an affidavit, *is not just*; and, in such case, the answer shall set forth the items and particulars which are unjust. l. That a contract sued upon is *usury*. Unless such plea is filed, no evidence of usurious interest as a defense shall be received. m. That *notice and proof of loss or claim for damage has not been given*, as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity. n. In the trial of any case appealed to the court from the *Industrial Accident Board* the following, if plead, shall be presumed to be true as plead and have been done and filed in legal time and manner, unless denied by verified pleadings: (1) Notice of injury. (2) Claim for compensation. (3) Award of the Board. (4) Notice of intention not to abide by the award of the Board. (5) Filing of suit to set aside the award. o. Any other matter required by statute to be plead under oath.

Same SOL exception applies to counterclaims urged by defendants BUT the claims must be filed within 30 days of the D's answer date. Why?

We don't want to require a D to bring a claim that would otherwise wouldn't bring a claim for fear they might lose it. Maybe they aren't litigious types. But once the P sues them, they're in court anyway, so you might as well assert the claims you have. Shouldn't be barred by SOL. Shows the need to explore with your clients all the potential claims they may have, and all the potential claims the other side may have against them. EX: May never have heard of the DTPA.

Magic Words Not Required - Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) Nowhere did the pleadings expressly state that the D was negligent, but the facts pled lead to the reasonable inference that negligence is the substantive legal theory "The Roarks alleged that Dr. Matthews delivered the child and, as a result of the delivery, the child sustained a fractured skull; the fractures caused the child intense physical pain and mental anguish and caused the parents to incur additional medical expense.

We hold this was sufficient to give Dr. Matthews fair notice that he would have to defend against a claim involving the manner in which he delivered the child. We do not consider it fatal that the Roarks did not use the word "negligent" in connection with the delivery or otherwise specifically indicate that Dr. Matthews failed to exercise ordinary care. This can be inferred both from the petition as a whole and from the following specific language: "As a result of the delivery, or attempts at delivery, by the Defendants, jointly and severally, the infant sustained bilateral depressed skull fractures." (Emphasis added). The phrase "jointly and severally" usually refers to liability; if two defendants are jointly and severally liable, the plaintiff may sue one or the other or both of them for the entire amount of the damages. See: Black's Law Dictionary 972 (4th ed. 1957). Such legal terminology, although used vaguely, was sufficient to alert Dr. Matthews that the Roarks intended to hold him liable for some act connected with his delivery of the child. If Dr. Matthews considered the petition obscure, he should have specially excepted to it and he has waived any defect by his failure to do so. Tex.R.Civ.Pro. 90 and 91."

Venue asks:

What county or counties in texas are proper to litigate a civil suit? If you're arguing venue, you're assuming TX courts have PJ. A lack of venue CAN be waived (like PJ).

CHAPTER 7: PARTIES Really important chapter: joinder of parties and claims.

What parties & claims may be properly joined in texas civil lawsuits? What parties & claims must be joined?

Waiver of Privilege by Offensive Use

When a party asserts a privilege, but they put it in issue in a case, then they are offensively using that info and have in effect waive the privilege. EX: P suing doctor in medmal; can't claim that communications with that doctor are privileged. That goes to the very claim you are suing on. You are trying to use the privilege as a sword instead of a shield.

Mandatory v. permissive venue provisions:

When an exception provides that an action "shall be brought" in a particular county, the requirement is mandatory and controls over permissive exceptions and the general rule. When an action "may" be brought, the exceptions are permissive. -Permissive exceptions don't override the general rule. -They provide alternative venue choices for plaintiffs.

2. Nihil Dicit Judgment.

When defendant has appeared by filing something other than an answer (usually filing a dilatory plea or motion; EX: plea in abatement) but the defendant's plea or motion not dealing with the merits is overruled, leaving the defendant with no answer on file after the answer date. EX: you file a special appearance, but don't have an Answer on file in time. You have a nihil dicit judgment. This is why you always file Answer "subject to" special appearance, MTTV, pleas in abatement

TRO Step 4: Service of TRO on the Defendant

When the petition, order and bond are filed, the clerk shall issue the TRO and deliver it to a TX sheriff or constable for service of process and enforcement A D that disobeys a TRO may be held in contempt of court. Lawyer requesting TRO may request permission to go to site of activity to ensure compliance When you're asking for any of the writs in this chapter, you can ask for permission to go with or meet at the site while the sheriff or constable services the writ. The officer receiving a writ of injunction will indorse the date of the receipt and will deliver and copy of the injunction to the party enjoined; the original shall be return to the court along with a return of service (indicates who made service on what person in what manner on what date/time. Attests to the validity of the service.)

Assuming there has been adequate time to develop the case through discovery, when should the court grant a traditional motion for summary judgment?

When the pleadings, and summary judgment proof (depositions, answers to interrogatories, admissions and affidavits, stipulations, and authenticated or certified public records), if any on file at the time of hearing, (or filed thereafter and before judgment with the permission of the court), *show that except as to the amount of damages, there is no genuine issue of a material fact and the movant is entitled to judgment as a matter of law*. [MUST KNOW THIS!!!!!!!] Nothing to go to the jury on this. EX: SOL is your defense, and it has run. There's no genuine issue of material fact because the P is precluded from proceeding on the claim due to the SOL. D is entitled to SJ as a matter of law. Affirmative defenses are a fertile ground for MSJs.

When to assert "law of the case doctrine"?

When you're in remand, and you think a higher court has already decided the legal issue. Of course, the TCT might still say that the legal decision was "clearly erroneous" so it's not an airtight defense.

Multiple defendants; venue General rule:

Where the Plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction/occurrence. CPRC 15.005 DIFFERENT FROM MULTIPLE PLAINTIFFS RULE

Preparing the TRO Papers: B. Prepare the Facts -

Who and where are the parties? The P must supply you with basic info concerning the D, including some address where the sheriff or marshal can find the the D (or the D's management if a company) in order to serve the TRO. -Get a good factual summary of the events giving rise to your case. EX: Hard, specific facts are needed to demonstrate that the P owns the property in question, that the D has been cutting timber without permission, and that P will suffer irreparable harm for which there is no adequate remedy at law. -Remember, you or your client must swear to the factual allegations and an affidavit based only on info and belief is not sufficient. TRCP 682.

Carlson: this last year, almost all depos have been over Zoom.

Will likely lead to changes to TRCP to allow for more remote depos. It has become apparent that this can lead to significant time and money savings. Not everything has to be in person.

Withholding Privileged Information TRCP 193.3 To assert information requested is privileged:

Withhold the privileged information or materials, and Inform the requesting party in writing that responsive information have been withheld. (Withholding statement) TRCP 193.3 (a) YOU DON'T OBJECT WITH A PRIVILEGE, YOU WITHHOLD In addition to withholding, the party must state: 1. That info or material responsive to the request has been withheld 2. The request [or required disclosure] to which the info relates, and 3. The privilege or privileges asserted

16.010. Misappropriation of Trade Secrets

Within 10 years of discovery of misappropriation or by the exercise of reasonable diligence should have been discovered. Misappropriation that continues over time is a single case; limitations period begins running without regard to whether the misappropriation is a single or continuing act.

Recap on Work Product

Work product is not discoverable. Defined as "ordinary" or "core" *Core - never discoverable* Attorney's mental impression, opinions, conclusions, or legal theories (to allow the lawyer to do the best they can in preparing for trial) *Ordinary* - - material prepared/communication made in anticipation of litigation ---might be pierced on a showing of *substantial need* and no ability to get from other methods without *undue hardship* *EXCEPTIONS that are NOT Work Product and are thus ALWAYS discoverable:* -trial exhibits; any photo or electronic image of underlying facts (EX: if lawyer takes photos of the scene of the accident, etc.); witness info. -Witness statements - before 1999 thought to be work product; but 1999 it changed, now it is discoverable.

Interrogatories TRCP 197 Didn't change in 2021

Written questions served on PARTIES to the lawsuit to ask about matters within the scope of discovery. Relevant, even if inadmissible Reasonably calculated to lead to admissible evidence Not privileged Response must be served within 30 days after service of request. Must include: answers, any objections and any assertions of privilege

Of what relevance is the applicants good faith?

Wrongful A/G/S Tort is still available regardless of good faith. But if can show malice and a lack of PC, can get punitive damages

Bavarian Autohaus, Inc. v. Holland, (Tex. Civ. App.—Houston [1st Dist.] 1978) On review of default judgment, appellants, a car dealer and a car manufacturer, contended that they were not properly served. *Original return was defective. Why?* The original officer's return did not state that Bavarian Autohaus was served by serving "Clint Hughes V. Pres." DOES NOT MENTION BAVARIAN as principal of this agent. It did not recite, as it must, that process was delivered to the defendant, Bavarian Autohaus, through its named agent. -NO STRICT COMPLIANCE, in a default judgment scenario. So what can the P do to assure they get a bulletproof default judgment? -This original return was fatally defective, but the appellee procured an amended return sometime prior to the day of the hearing to indicate the agency. Rule: in order to get a default judgment, the return of service has to be on file for 10 days (plus day issued and day return was filed: really 12 days). Here, the amended return was only on file for 6 days, but did the amended return *relate back?* Why is that important?

YES! An amended return relates back and is regarded as filed when the original return was filed. -Important because that's how we get strict compliance with the rule requirement. HELD: The court held that the lower court did not err in allowing the already-amended return to be filed or in not requiring that notice of the amendment be given to appellants. Rule 118, Texas Rules of Civil Procedure, provides: "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." When you are a plaintiff going for a default judgment, you want to make sure it can withstand attack. When you take a default judgment, unless DAS are liquidated, the D defaults on liability, so you don't have to prove up liability, but you still have to prove up damages to get default judgment.

Are any counterclaims prohibited?

YES! Prohibited counterclaims: *if the claim is above the max. jurisdictional amount in controversy limit*, the claim is not compulsory because the court doesn't have subject matter jurisdiction You can never have a compulsory counterclaim when the court doesn't have SMJ to hear the counterclaim.

So, How specific do special exceptions need to be? Is it appropriate to specially except to special exceptions?

YES! Which is what could have happened here as the special exception was defective. Just a broadside attack.

Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558-59 (Tex. 1990) FACTS: Several Ds sued. One D will settle on condition that experts will be designated consulting experts only. D is trying to sell their expert witnesses as part of the settlement. Keep them from testifying before the factfinder at trial. Issue: Why did re-designation of expert witnesses in this case offend public policy?

YES. "The primary policy behind discovery is to seek truth so that disputes may be decided by facts that are revealed not concealed." HELD: We hold that, as a matter of law, the redesignation of experts under the facts of this case violates the policy underlying the rules of discovery and is therefore ineffective. See Gutierrez, 729 S.W.2d at 693; Jampole, 673 S.W.2d at 573. "If we were to hold otherwise, [**12] nothing would preclude a party in a multi-party case from in effect auctioning off a witness' testimony to the highest bidder." Because the redesignation of experts under the facts of this case violates the clear purpose and policy underlying the rules of discovery, the trial court abused its discretion in granting the protective order as to these six experts.

Royal Typewriter Co. v. Vestal FACTS: Plaintiff sued Defendant for breach of contract. D responded with pleadings asserting a general denial and a specific sworn denial of execution of the contract. After the close of evidence in a bench trial, P requested a finding of fact that D ratified the contract. The trial court refused the finding and a take nothing judgment was entered. Is a Plaintiff required to plead affirmative defenses it relies on?

YES. *Is ratification an affirmative defense? Why or why not?* YES. It is independent reason in law why the other side can't prevail. Even if there was no contract, if you ratified it, you are still liable. -As an affirmative defense, ratification must specifically plead. Should have asserted ratification in a supplemental pleading, but did not. *So then, is ratification in issue?* In a bench trial, the judge doesn't answer like jury questions. Instead, the judge hears the evidence and closing arguments, then at some point the court announces its judgment. -Afterwards, the losing party can ask for findings of fact. -Here, the court said no, ratification wasn't in issue. Only going to address issues in pleadings and proof. You don't have pleadings on ratification. *Was ratification tried by consent?* No. In a bench trial you trial by consent when evidence comes in without objection. *What pleading should P have filed to raise ratification?* (Supplemental petition)

When a defense is properly verified (specific denial under oath) does it force the P to prove something that the P would not otherwise have to prove?

YES. It increases the opponent's BOP. Is the failure to verify waivable at the pleading stage? It was here because it was a bench trial. As soon the evidence came in without objection, it was a "trial by consent."

Echols v. Bloom FACTS: P sues D for specific performance of an option contract for the purchase of land. D filed an Answer with a specific assertion the contract was not binding due to the lack of consideration at the time D revoked the offer. An option contract must be supported by consideration. BUT Ds pleading of "lack of consideration" was not verified as required by TRCP 93. So, specifically pled, but didn't "pinky swear" (verify) lack of consideration under oath. However, P did not specially except to the lack of verification nor did P object to the introduction of evidence regarding the lack of consideration and the P lost. Was lack of consideration tried by consent?

YES. It was a bench trial - if you don't object to the lack of pleadings AT THE TIME EVIDENCE COMES IN, you try have a trial by consent . What is trial by consent? -You impliedly consent to trying it without the pleadings to support it. Could apply the rule that the other side doesn't have to specially except to the lack of verification because it would increase their burden of proof -But the court did not go there. Since the P lost, they are complaining on appeal of the defective pleading, and therefore they did have to specially except. Here, the D's pleadings gave notice of a lack of consideration, but they were defective for a lack of verification. BUT, D waived any complaint under Rule 94 by failing to object. COURT: the lack of verification was waived as soon as it came in without objection. Affirmed, P loses.

Is car insurance company likely to be involved in a collision case?

YES. Most insurance policies for automobile accidents put a duty to defend on the insurance company. So if you have been in a car accident, you contact your insurance company, usually have to give notice in writing with a certain period of time, the insurance co. has a right to inspect damages, and they have a duty to provide you with legal defense.

Can compulsory joinder of parties be waived?

YES. Normal principles of waiver apply because compulsory joinder typically can't be raised for the first time on appeal.

Could the contractor/subcontractor have brought the unmatured claim as a counterclaim in the original suit?

YES. Permissive, not compulsory. But it would have led to a bifurcated trial; wouldn't proceed to unmature indemnity issue unless and until first issue resolved (at which point the indemnity issue matures, or is moot). The court won't waste its time on the indemnity/contribution/attorney's issue if liability hasn't been established.

Mijares v. Paez, 534 S.W.2d 435, 436 (Tex. Civ. App.—Amarillo 1976) FACTS: In plaintiff mother's paternity suit against father in Lubbock County. D sought to have venue transferred to El Paso County and contended that the TCt erred in finding D resided in Lubbock County for venue purposes. D was attending Texas Tech in Lubbock County; registered to vote there listing his dorm as his permanent residence. Was served with citation there. D said he was only in Lubbock County for school, but didn't like it there. Venue is proper under the general rule in the county where a natural Defendant resides. Can a defendant have multiple residences in different Texas counties?

YES. While you can have only one "domicile", you can have more than one residence for venue purposes. Even a rented room may qualify; intent to make a permanent home is NOT necessary *If so, is it Plaintiff's choice if the residences are in different counties?* Yes *What is the legal test for determining a residence?* In the three element test to determine whether a second residence away from a domicile has been established, the proof must show that (1) the defendant possesses a fixed place of abode, (2) occupied or intended to be occupied consistently over a substantial period of time, (3) which is permanent rather than temporary HELD: the court affirmed, where although defendant returned to his home county during school breaks, he was not a minor, he had been enrolled in college in the trial court's county for three semesters and intended to complete a bachelor's degree there, he was registered to vote there, maintained an apartment there, was served there, etc., although he testified he did not like that county and that it would never be his home. The court stated that defendant could be a resident of the trial court's county even if his domicile were elsewhere, based on having a fixed place of abode occupied or intended to be occupied consistently over a substantial period of time which was permanent rather than temporary.

Can anything happen before the special appearance and not be a waiver?

Yes, there are a couple things that can happen. *1) Notices of removal to federal court* before a special appearance, and if that case gets bounced back to state court you can still file special appearance Note: it is a NOTICE of removal, NOT a motion, because if you meet the requirements for removal to federal court, (if it concerns a federal question, or complete diversity + $75k) you have a right to do so. *2) correspondence with the court* *3) Rule 11 agreements* - agreement between counsel on anything that's not against public policy. Enforceable if it is in writing, signed and filed with the court. Or made of record in open court. EX: a Rule 11 agreement extending to file an Answer. That's not a waiver of special appearance. You're not availing yourself of the court by agreeing with counsel. *4) A hearing and ruling may be had on a TRCP 91a Motion to Dismiss.* Kind of like a 12(b)(6) motion, but there's a different standard: motion to dismiss because there's no basis in law or fact. Supposed to be filed upfront in the litigation and disposed of very quickly under Rule 91a. Chances are the 91a motion will be ruled on before special appearance. You still have to follow a "due order of pleadings" that has the special appearance filed prior to or simultaneous with any other pleadings. But you can get a ruling on the 91a motion before the special appearance motion. Special jeopardy question: When can you get a ruling on the merits before a special appearance? 91a motion to dismiss

What if the inadvertent disclosure is by a *Non-party*, can they snap-back?

Yes. A non-party can snap back privilege as well Snap Back of Inadvertently Produced Privileged Material or Information TRCP193.3 (D) Upon a timely request and the amendment by the producing party of their discovery response to assert a privilege, any party who has obtained the material or information must promptly return it and any copies pending any ruling by the court denying the privilege

Can you accompany a MTTV with an Answer?

Yes. But make it "subject to the MTTV." The reason you do that is that your MTTV is probably not going to be decided by the time your Answer is due. You might be subject to default judgment. So, like a special appearance, it's a good idea to accompany those initial pleadings or motions with an Answer subject to the motion to transfer venue.

Can misjoinder be waived?

Yes. Have to raise misjoinder by a plea in abatement in a reasonable time (there's no time certain to file).

Can you appeal the ruling whether to certify as a class action?

Yes. Interlocutory appeal. Very important ruling that implicates a lot of resources and potentially binds a lot of people in the judgment, so you can seek immediate review. Class certification rulings are subject to immediate interlocutory review with jurisdiction in both the court of appeals and the Texas Supreme Court. Very common that class certification is immediately appealed. Will affect a lot of people because of "virtual representation"

*Does TRCP 47 require a specific amount of damages be plead?*

Yes. It says "shall contain" a statement that a statement that the damages sought are within the jurisdictional limits of the court; *BUT court states:* The failure of a plaintiff to state a jurisdictional amount in controversy in its petition, without more, thus will not deprive the trial court of jurisdiction. -Even if the jurisdictional amount is never established by pleading, in fact, a plaintiff may recover if jurisdiction is proved at trial. -This result is consistent with our holdings in cases when a plaintiff has failed to plead facts which state a cause of action. -Unless the petition affirmatively demonstrates that no cause of action exists or that plaintiff's recovery is barred, we require the trial court to give the plaintiff an opportunity to amend before granting a motion to dismiss or a motion for summary judgment.

Must a motion for summary judgment be in writing?

Yes. Rule 166a expressly requires a written motion.

May a court enter a partial summary judgment?

Yes. Rule 166a(d) provides, that the court shall ascertain what material facts exist without controversy (if any) and state those facts in its order relieving the parties of the necessity of proving those matters at trial. Often a party can move for SJ on liability, then there's a fact issue on damages that goes to trial.

May a defending party utilize the offer of settlement scheme to attempt to cut off the plaintiff's right to recover statutory or contractual attorney's fees from the date of refusal to the date of judgment?

Yes. Rule 167.4 (f) expressly provides: A party against whom litigation costs are awarded may not recover attorney fees and costs under another law incurred after the date the party [unreasonably] rejected the settlement offer made the basis of the award. Might make sense to use this fee shifting rule here, but only in cases where you feel like you have a really good handle on the amount of damages in the case. Here we're assuming the D made an offer to the P, the P turned it down, P gets a judgment 20% or more less favorable, but the D by doing this can cut off the P from double recovering attorneys' fees

EX: You represent a party in a suit filed in Houston over a car accident that happened in Houston where you and your client live and work. You notice your opponent for depo in your Houston office. He doesn't want to appear there. Is that a proper place for the depo?

Yes. Under 199.2(b)(2), the county of suit is one of the locations permitted for depo. Nonetheless, your opponent may object to having the depo taken in your office and request another "convenient" place for the depo.

EX: Construction worker rents out hotel room for length of construction (about a year). He was sued there. Is venue proper?

Yes. can have more than one (but must be permanent rather than temporary; fixed place of abode, and occupied or intended to be occupied consistently over a substantial period of time)

What is the policy behind protecting consulting only experts from discovery?

You CAN de-designate an expert if you do it timely and for proper purposes; but it's the motive that matters. Can't do just to shield from discovery.

You often click "I Agree" online, what you are agreeing to often, is an arbitration clause and waive judicial remedies, and arbitration will happen in the forum of X.

You are bound by that. Arguments that bargaining power was unequal has not held weight.

Pleading Injuries and Special Damages Rule 56 - says that special damages must be specifically stated. Many kinds of losses are said to be "special damages." What is the consequence of failing to plead for the recovery of an item that falls in that category? Consequence of not specially pleading when required?

You are not eligible to recover those damages.

FED rules are written in a way to try to expeditiously dispose of a case.

You can get a FED eviction notice ("writ of possession" - what you win if you win a FED) in a matter of day. Written in a way so that a landlord can quickly get a writ and dispossess; sheriff/constable will walk the tenant to the curb under the writ. Regardless of whether it is a residence or multimillion dollar lease, JPs have this authority. Unlike most cases, where you have to try all T/O-related claims or res judicata; that does NOT apply in FED claims. EX: $30k/month rent for downtown Houston office building. The landlord could seek FED if the tenant is in default and get a writ of possession and then sue separately for that rent that's owing and in default in a court that can hear a $30k case in a district court (NOT a JP or CCC because of AIM - $30k).

If you think you have a Pines situation, you have per se reversible error. What do you do as a D?

You might ask court to reconsider MTTV in light of the MSJ that eliminated the basis for venue. OR, you can just see how it goes and if you lose you can use your per se reversible error to negotiate settlement with P.

If you have a situation where the P asserts 2 COAs, 1 is specially excepted to as not a recognized COA in TX, the other COA has a basis in TX law, if the court sustains the special exceptions it will dismiss as to the one claim, but not the other.

You still proceed to trial on the other, but then can take up to appeal on both.

How would you conduct a witness interview to avoid disclosure of witness communications made to you or a member of your staff?

You want to take notes, but you DO NOT want to give to the witness and give them sign it. Do NOT want to record it or get an exact transcription. Notes taken are not a witness statement; but transcriptions, recordings, statements verified by W, etc. ARE witness statements that are then discoverable. You still have to disclose the W's info. If they're very positive for you, you might want to schedule a deposition for them. If they're very negative you definitely do not. Hope you never hear from them again.

Sliding Scale -

Zippo Case - USSCourt analyzes website-based contacts using a sliding scale that turns on the nature of the website. Area is still in flux

If A, B, C are in collision and A sues B for damages; If B successfully joins C as a party to the counterclaim against A, must C assert a claim against A for C's damages even though A has not asserted a claim against C?

[No, A and C are not opposing parties because A has not filed a claim against C; this would be a cross-claim, and cross-claims are not compulsory] Is A an opposing party to C? [Not at this point; A has not filed a claim against C]

Suppose A, B, and C are in a 3-car accident. A sues B and C claiming personal injury damages from them on a theory of negligence; are B and C opposing parties (as between each other)?

[No, co-defendants B and C are not seeking any relief against each other; at least not yet]. What if B made a claim for B's own damages against C? ---YES, they are opposing parties. C would be required to make claim for C's own damages against B, or lose it (as it is a compulsory counterclaim). However, if it was a contribution claim, it CANNOT be compulsory in the action whose judgment is the subjection of the contribution suit because it is not yet mature. It is permissive: it could be brought, but does not have to be.

Assume A, B, C in traffic collision, all injured. A sues B. May B bring a contribution claim against C for A's claims against B?

[YES, but would be a bifurcated trial]

If A, B, C are in collision and A sues B for damages; If C chooses to bring a claim against A, must A then bring A's claim against C for his damages in this collision or lose it forever?

[YES. Once C has brought a claim against A for C's damages in the collision, they are opposing parties and A must bring any compulsory counterclaims or lose the right to bring them later. A's claims for A's damages in this accident arise out of the same T/O as C's claims for C's damages in this accident, and so A's counterclaim would be compulsory].

Initial Disclosures TRCP 194.2(c) (con't) Additional initial disclosures are required in certain suits under the Family Code. In a suit for divorce or annulment, a party must, without awaiting a discovery request, provide to the other party a copy of the following for the past two years or since the date of marriage, whichever is less:

[don't have to memorize, just know there's more you have to include] All deed and lien information on any real property owned and all lease information on any real property leased; all documents pertaining to any pension, retirement, profit-sharing, or other employee benefit plan,and any retirement plan; all documents or policies for each current life, casualty, liability, and health insurance; and all statement pertaining to any account at a financial institution, including banks, savings and loans institutions, credit unions, and brokerage firms. In a suit in which child or spousal support is at issue, a party must, without awaiting a discovery request, provide to the other party: Information regarding all policies, statements, and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child or the spouse; the party's income tax returns for the previous two years or, if no return has been filed, the party's Form W-2, Form 1099, and Schedule K-1 for such years; and the party's two most recent payroll check stubs.

What pleading do you file to assert the court lacks SMJ?

a *plea to the jurisdiction*

Legal Injury Rule -

a COA accrues when all facts come into existence that authorize a claimant to seek a judicial remedy, even if all damages have not yet occurred or become apparent. Accrual does not depend on when the P learns of the injury (except in cases in which the discovery rule applies) Thus, when the D's act is a legal injury in itself, the cause of action accrues at the time of the act. -But if a D's act is not a legal injury in itself, the COA accrues later, when actual injury is sustained or possibly when the P became or should have become aware in the exercise of reasonable diligence that there is some concrete and specific risk of harm to the plaintiff's legally protected interest. -It is not always easy to determine when the complainant has suffered a legal injury. EX: accounting malpractice - latest possible date from which statute could begin to run was date P received IRS deficiency notice. COA for breach of contract commences at the time of breach.

TRO and Injunctions Purpose of TRO -

a TRO is used during an emergency to preserve the status quo pending determination of the primary proceeding and the temporary injunction sought. TRO has a short shelf life Can be obtain ex parte - without notice to the other side. to preserve the status quo until you have a full hearing on the relief sought (which is typically a temporary injunction). Usually no suit pending at the time you seek a TRO

Taking Written Depos A deposition on written questions of a witness who is alleged to reside or located in TX may be taken by

a TX notary public as well as a clerk of a district or county court and a judge of a county court. A subpoena may be issued by an officer authorized to take depos in this state. Thus, a TX notary public may both issue a subpoena and take a depo on written questions. Attorney can't take a written depo because not impartial between parties.

Counterclaim:

a claim against an "opposing party: anyone seeking relief against your client is an opposing party.

D may designate RTPs, on motion in a timely, without joining the RTP, although

a claimant may seek joinder of that party as a D.

Subpoena may be issued by

a court clerk, a licensed attorney, or an officer authorized to take depositions in Texas Most commonly you have someone you like to work with that is a court reporter. Schedule depo and have them send out a notice

Third party plaintiff is

a defendant in the original action who attempts to bring a new party into the action.

Joint (or centralized) docket -

a few counties don't use a individualized docket. Joint (or centralized) docket instead of individualized docket EX: San Antonio (Bexar County)/Austin (Travis). When you file and it gets placed into a court, every time you go in you might get a different judge. The clerk will tell you which judge is available. So when you go argue a motion, you don't necessarily get the same judge. However, you do know who is going to try the case at the end of the day.

Specialized pleadings: The sworn account petition A "sworn account' is

a kind of suit on a debt and has specialized pleading requirements. If the creditor/P pleads it correctly pursuant to TRCP 185, D should file a sworn denial or the Plaintiff's pleadings re the account will be taken as true and D "may not deny the claim or any item thereof". Very different than what we're used to in pleadings. The creditor/plaintiff pleads in conformity with 185, the D must file a specific sworn denial or the P's pleadings are taken as true (unusual). Why do we have this rule? -Carlson: there are a lot of instances in a capitalist society where people buy things on a sworn account (not a CC), and they can't pay for them. Nor can they get a lawyer, nor are they going to respond. This rule makes it very easy for a creditor to get a judgment.

Another means by which a case may be disposed of at the pretrial stage and without the necessity of a trial on the merits is by the granting of a summary judgment. It is a judgment and serves as a basis for res judicata and collateral estoppel. A motion for summary judgment is made when

a litigant maintains that there are no genuine issues of a material fact and the movant is entitled to judgment as a matter of law. You can use by P to show conclusive proof of elements of claim. It can be partial, just some elements Most often used by Ds. To prove affirmative defense or "no evidence" on element of P's claim.

Stream of Commerce Cases A stream of commerce case is one in which

a manufacturer of a product delivers it into the normal channels of commercial distribution, and the product makes its way to the forum state. US SCT has split on the issue of the requirements for purposeful minimum contacts in this context. In *Asahi*, O'Connor (writing for 4 plurality - nonbinding precedent, so up to states to figure out) said "a D's awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed at the forum state." Instead, some evidence of "plus factors" showing that the D was "seeking to serve" the forum market is necessary. *These factors include:* 1) designing the product for the forum market 2) advertising in the forum state 3) establishing channels for providing regular service to customers in the forum state 4) marketing the product through a distributor who agreed to act as a sales agent in the forum state. *Brennan* (also for 4 judges) argued that actual awareness that defendant's products are being marketed in the forum was sufficient. 24 years after Asahi, the SCt has not resolved the division.

Note 6. Plaintiff is not required to give notice of the default hearing to

a non-answering defendant before the trial court renders default judgment. Carlson: seems that due process should require. But caselaw says that if D can't be bothered to file an Answer, they don't get notice of default judgment hearing. The citation does warn that a failure to Answer could result in default judgment.

Note 2: Actual vs. Deemed Admissions:

a party who responds by actually admitting the requests, as was the case in Stelly (pizza guy case), is bound by those admissions unless the court allows an amendment. Similarly, if the party who receipts RFAs does NOT respond in a timely way, as in Wheeler (custody case), the requests are "deemed admitted" and the admitting party must ask the court for permission to amend the responses. No court order is required to created "deemed admissions

When an inherent interrelation of the subject matter exists in two pending lawsuits,

a plea in abatement in the second action must be granted. It is not required that the exact issues and all the parties be included in the first action before the second is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues. S In determining whether an inherent interrelationship exists, courts should be guided by the rule governing persons to be joined if feasible and the compulsory counterclaim rule. Abatement of a lawsuit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues.

A party defending a claim may obtain a summary judgment by conclusively establishing all the elements of

a pleaded affirmative defense. Must prove there are no disputed issues of fact. Typical affirmative defense EXs: res judicata, sovereign/qualified immunity

Rare Indeed - Northglen affirms it would be very rare to allow a party to raise a compulsory joinder issue for the first time on appeal, even if

a statute states that some other person must be made parties.

Mandamus relief is appropriate only if

a trial court abuses its discretion, and there is no adequate appellate remedy. The burden of establishing an abuse of discretion and an inadequate appellate remedy is on the party resisting discovery, and this burden is a heavy one.

Effect of Amendment of Petition - if the respondent amends the challenged COA at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file

a withdrawal of the motion or an amended motion directed to the amended COA.

Appellate review of Summary Judgments When a party moves for summary judgment on both no-evidence and traditional grounds (i.e. a hybrid motion), an appellate court will

address the no-evidence grounds first.

Adequate Time for Discovery A no evidence summary judgment motion is not proper until

adequate time for disco has been afforded. Whether a non-movant has had adequate time for disco is a case specific inquiry. A non-movant asserting it has not had sufficient time for disco, must before summary judgment hearing, file either an affidavit explaining the need for further disco or a verified motion for continuance.

TRCP 192 provides, "A party may obtain discovery of the existence and contents of any settlement agreement. Information concerning the settlement is not by reason of disclosure, admissible in evidence at trial." Can obtain settlement agreements thru disco that are related to the lawsuit, but that doesn't make it

admissible.

In the true default judgment & nihil dicit judgment cases, the defendant, by failing to answer,

admits liability but not damages unless the damages are liquidated or proven by an instrument in writing. (T.R.C.P. 243) Most damages are unliquidated. Will need a hearing to prove damages. So, generally the Plaintiff must present evidence at the default judgment hearing on damages. In other words, a defendant by failing to timely file an answer defaults (admits) as to liability, but not as to damages, unless the damages are liquidated and proven by an instrument in writing.

Strict Compliance Required - TRCP 93(7) requires a sworn denial of an allegation that an instrument was signed by the authority of the party who is being sued on that instrument. If a party fails to file a proper sworn denial, he

admits that the contract was signed by him, or with his authority. This is true even if the name on the contract is not that of the party being sued.

Persons Who Lack Legal Capacity To Sue Or Be Sued Minors and persons who are incompetent lack capacity to directly sue or be sued (non compos mentis) need someone to safeguard their interests. The trial court may appoint a "*next friend*"term-766 (Normally the parent.) The role of the next friend (or ad litem) is SOLELY to

advise the court of whether or not a settlement is in the best interest of the minor or incompetent. Next friends have power to bind represented persons, but the judge must approve the settlement

Tex. R. Civ. P. 166a requires that certified or sworn copies of all records or papers referred to in a supporting or opposing affidavit be attached to the

affidavit.

Ratification is a plea in avoidance and thus is an

affirmative defense which, in the absence of trial by consent, is waived if not affirmatively pled under Tex. R. Civ. P. 94. Rule 94 requires that in pleading to a preceding pleading, a party shall set forth affirmatively any matter constituting an avoidance or affirmative defense. The rule itself is not limited to defendants but applies to all parties. When a plaintiff desires to rely on an affirmative matter in avoidance of a defense pled in the defendant's answer, he must allege it in a supplemental petition, unless it is already put in issue by the petition. The rule imposes on the plaintiff the requirement that he plead any matter in avoidance on which he intends to rely.

Contribution claims are not mature (compulsory) until

after liability is fixed, because whether there is a contribution claim at all depends on the outcome of the current litigation permissive NOT compulsory because not mature.

Indemnification claims against liability do not accrue until

all of the potential liabilities of the indemnitee become fixed and certain, such as by a judgment. permissive NOT compulsory because not mature.

IF separate trials are ordered, judgment not final until

all separate trials have concluded and culminate in a single judgment.

A party may also discover: Insurance coverage -

allowed because of the Stowers doctrine (if a offer to settle the case is made to an insurance company within policy limits and the insurance co. unreasonably turns down offer to settle, even though the insured would like to take it; and we end up with judgment with insured that exceeds policy limits, then the insurance company will have to pay full judgment beyond limits) - need to know if there's an insurance agreement and what the policy limits are. Some insurance agreements are "eroding policies" - the insurance co will insure you for so many dollars, but every time we pay a claim, you subtract that amount from your policy per year.

Responsible 3Ps -

allows a D to designate another 3P to bring that person into the lawsuit for the sole purpose of putting that 3P's percentage of fault before the jury. Available for tort and DTPA cases. A defendant that is more than 50% is j/s liable, and then they have to seek contribution for others that might be repsonsible. So parties bring in RTPs to bring down their share of responsibility so they won't be j/s liable. RTP is NOT responsible for the judgment; and they are NOT parties to the lawsuit So, typically when you designate a RTP (as opposed to impleading them as another D) they probably WILL NOT be represented because they can't be held responsible and the judgment is not collateral estoppel or res judicata as to them for future proceedings. RTP sometimes known as the "empty chair." If they don't have assets you probably rather they be an RTP because they won't have counsel, and can't pay anyway. Easier to try a case against someone that isn't in the courtroom and blame them. But if they CAN pay, you can choose to implead them under Rule 38 - do that by bringing a 3P action against the 3PD (which WILL BE A PARTY TO THE LAWSUIT). Typically, this decision is made early on. Implead the "deep pocket" that can pay; but typically do not bring in someone that can't (the driver, etc.).

Rule 166a provides an alternate method of obtaining summary judgment known as a "no-evidence summary judgment." It is designed to allow a party WITHOUT the burden of proof at trial (typically the defendant) to move for summary judgment and require the party with the burden of proof at trial to

also bear the burden of proof at the summary judgment stage. Tex. R. Civ. P. 166a(i). The movant for summary judgment will assert that the party with the burden of proof on an issue at trial has no competent evidence with which to raise triable fact issues as to a designated element of a ground they rely upon. Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce summary judgment proof on that challenged element sufficient to raise a fact issue. If no response is filed, the msj will be granted.

res judicata

also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties.

Amendment and Supplementation of Discovery Responses Generally, you have a duty to supplement written responses, but not oral responses. If a party learns their written response is incorrect/incomplete, even if correct when made, the party has a duty to

amend or supplement the response. If it becomes incorrect or incomplete you have a duty to supplement. Need to do it reasonably promptly after you become aware of new info

SUMMARY JUDGMENTS (Rule 166a) Rule 166a - Summary Judgment, Tex. R. Civ. P. 166a (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to

amount of damages. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

Condition precedent definition -

an act or event occurring after the making of contract that must occur before there is a right of performance.

A clear abuse of discretion occurs when

an action is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law."

Bill of review -

an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. *Usually have to prove:* 1) meritorious defense to the underlying COA 2) which plaintiffs were prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, 3) unmixed with any fault or negligence on their own part. *Bill of review Ps claiming non-service*, are relieved of having to show two of three elements #1 and #2. -Just have to prove #3: no fault/negligence on their own part. -individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered. -Thus, Proof of non-service, will conclusively establish the third and only element that bill of review Ps are required to prove when asserting lack of service of process as their only defense. -Discovery rule probably does not apply to equitable bills of review, although fraud may tolls the running of the SOL until the fraud was discovered or should have been discovered.

Attorney's "litigation file": A discovery request for an attorney's entire litigation file, without being more specific, is

an improper invasion of the work produce exemption on its face. Overly broad. Has to be a "reasonably tailored" request for discovery. Obviously, individual documents are not exempt from discovery simply because they are located in a folder marked "litigation file" You can't take a document and put it in your file and expect it will be shielded by work product if it is otherwise discoverable.

Affirmative defense -

an independent reason in law why the P shouldn't recover. Even if we assume P can prove all elements of P's COA, P still loses because of affirmative defense precludes you: SOF, SOL, discharge in bankruptcy, accord and satisfaction. Must be pleaded to be raised. For a partial list of affirmative defenses, see TRCP 94. Sometimes they are also required to be verified under TRCP 93 The party pleading an affirmative defense also has the burden of production and persuasion.

Statements of Opinion: Form or Substance error?

an objection that an affidavit contains a statement of opinion must be made in the trial court because the defect is formal rather than substantive. Sometimes hard to tell a statement of opinion from a conclusory statement. Some courts regard both as substantive.

Disco responses generally Must include:

answers, any objections and any assertions of privilege Objections that are not made by the time disco is due are WAIVED! Very important to calendar all this as a litigator. Responses should be filed with the court if need on appeal

INTERIM RELIEF FOR SECURED CREDITORS AND OTHER CLAIMANTS Writ - Why do we need a "writ," why can't we just have the order?

antiquated in practice. Historically, in English law, writ was simply a revenue producing aspect. Had to pay for writ to get the order. So we could do away with writs. Under the Rules Enabling Act, the TXSC can change procedure, but NOT enlarge, abridge or modify any substantive rights, which is the legislature's role. So it's the legislature's responsibility to define the substantive's rights of the citizens. It's the SCt's job to enforce the rights. In order to do away with writs and just have orders, the TXL would have to amend a lot of code. Since the legislature included writs in the statutes, it takes the legislature to get rid of the writs. There's no real need for both writs and order. So you have to have both: writs and order of court.

Any officer authorized to take a depo in TX may also issue subpoenas, and must do so immediately on a request accompanied by a notice to take the depo Subpoenas may also be issued by an attorney authorized to practice in Texas. A subpoena may be served at any place in Texas by

any Texas sheriff or constable, or any person not a party 18+.

Rule 90 continued Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed, shall be deemed to have been WAIVED by the party seeking reversal on such account; provided that this rule shall NOT apply as to ....

any party against whom *default judgment* is rendered. In other words: A party may attack a default judgment on the grounds that the pleadings are defective, even though there is no special exception. So, you must be very careful when you plead a default judgment: do the pleadings have enough facts, is substantive legal theory solid, was service of process perfect? Remember, courts strictly construe service requirements in default judgment. Default judgment will be set aside if service isn't perfect or pleadings are insufficient.

An Responsible third parties (RTP) is

any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought D's can designate RTPs in tort and deceptive trade practice cases, present evidence of their conduct, and submit their percentage of responsibility to the factfinder (hopefully reducing the D's percentage). D is trying to get another party to have a percentage of responsibility to reduce the D's percentage.

Our procedural rules define the general scope of discovery as

any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is "reasonably calculated to lead to the discovery of admissible evidence." Also, a party may obtain discovery of the name, address, and telephone number of persons who have or may have knowledge of any discoverable matter. Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute's resolution. Thus, discovery requests must be "reasonably tailored" to include only relevant matters.

Due order of pleadings: Have to assert motion to transfer venue before

anything else (other than a special appearance). Can't test drive the court, see how they rule, then move to transfer venue if you don't like it.

Pro se litigants are not exempt from the rules of procedure. Having two sets of rules -- a strict set for attorneys and a lenient set for pro se parties -- might encourage litigants to discard their valuable right to the advice and assistance of counsel. But when a rule itself turns on an actor's state of mind,

application may require a different result when the actor is not a lawyer.

General and Special Damages General Damages -

are damages that "naturally and necessarily" attend a particular injury. EX: pretrial pain and suffering, which is presumed to accompany a serious injury

PJ Substantive due process issues -

are there minimum contacts?; is it fair, burdensome?

Consolidation: Texas has a general policy against the multiplicity of suits for claims that are sufficiently related so that they comprise one convenient unit for trial. TRCP gives TCts broad discretion to

arrange for one suit to replace two or more actions when appropriate to achieve a fair and efficient resolution.

How Strict does compliance with service rules have to be in a default judgment scenario?

as Wilson indicates, TX courts require strict compliance with service requirements in the default judgment context. Actual receipt will NOT cure defective service (unlike many jx) EX: overturned default judgment because the clerk didn't show hour of receipt. If you've got a default judgment on the line, MUST make sure it perfectly follows the rules. Harry Brown Jr., but the return left out the "Jr."? defective.

A judgment taken by default on an unliquidated claim admits all allegations of fact set out in the petition, except the amount of damages. The causal nexus between the event sued upon and the plaintiff's injuries is strictly referable to the damages portion of the plaintiff's cause of action. Even if the defendant's liability has been established, proof of this causal nexus is necessary to ....

ascertain the amount of damages to which the plaintiff is entitled. This is true because the plaintiff is entitled to recover damages only for those injuries caused by the event made the basis of suit; that the defendant has defaulted does not give the plaintiff the right to recover for damages which did not arise from his or her cause of action. To hold that a defaulting defendant does not admit that the event sued upon caused any of plaintiff's alleged injuries is entirely consistent with the rule that a judgment taken by default admits all allegations of fact set out in the petition, except for the amount of damages. Proving that the event sued upon caused the plaintiff's alleged injuries is part and parcel of proving the amount of damages to which the plaintiff is entitled. The causal nexus between the event sued upon and the plaintiff's injuries must be shown by competent evidence. The court concludes that the mandate of Tex. R. Civ. P. 243 that the court hear evidence as to damages makes it incumbent upon a party who obtains a default judgment in a personal injury action to present competent evidence of a causal nexus between the event sued upon and the party's alleged injuries.

The TXSC amended the summary judgment rule in 1997 to embrace the federal approach to motions that are based on challenges to a ground of recovery or defense on which the nonmovant would have the burden of proof at trial. Formerly, in order for a defendant to be entitled to summary judgment, the defendant was required, by competent proof, to disprove as a matter of law at least one of the essential elements of the P's COA, or establish one or more affirmative defenses as a matter of law. By this amendment, the TX rules adopted the approach taken by the USSCT in Celotex, where summary judgment can be granted to a defendant without conclusively negating an element of the P's COA. Rather than attempting to negate the claimant's case, the movant can

assert that there is no evidence to support one or more of the specific elements of the claim and put the burden on the claimant to present summary judgment evidence to raise an issue of fact. As a practical matter, the party opposing a no-evidence motion ordinarily will produce evidence the same as when the movant attempts to negate a key element of the opponent's claim or defense. *The key difference*, however, is that the opposing party will be required to produce evidence in response to the no-evidence motion even though the movant's evidence does not conclusively establish the nonexistence of the element.

Affirmative defenses -

asserts an independent reason in law why P can't prevail. EX: SOF - P sues for sale of goods over $500, but there's no writing. EX: Discharge in bankruptcy. While we owe you money, a federal court has discharged the debt, so too bad EX: accord in satisfaction - you've agreed to take this in satisfaction. Don't wait to assert these at trial. You are arguing they can't recover as a matter of law. You should assert in a MSJ.

Timing of Answer Rule 99 requires the citation to command the D to appear by filing a written answer to the P's petition

at or before 10am on the Monday next after the expiration of 20 days after the date of service of the petition and citation. A general denial of matters pleaded by the adverse party that are not required to be denied under oath is sufficient to put the adverse party's allegations in controversy.

SUMMARY JUDGMENTS (Rule 166a)(e) *Case Not Fully Adjudicated on Motion.* If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may

at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.

Pleadings are the blue print for the trial. This concept is tied to evidence:

at trial you are able to get into evidence admissible evidence that is raised by the pleadings. EX: P pleads generally a negligence case. The D should "specially except" so that D can know what specifically is being charged. Exactly how was the D negligent in operating a vehicle, etc? If P responds that D was negligent due to "speeding," then at trial, if P tries to argue that D failed to yield to a red light, or some kind of negligence other than speeding, that's objectionable. The D can object that this is "outside the pleadings." Proof must match pleadings. A big function of pleadings is to box in parties to their specific pleadings/evidence so that each party knows what it needs to prepare for. Don't look at scope of discovery to see what is admissible; always look to pleadings.

Special exceptions -

attacks the sufficiency of the opponent's pleadings, raising defects of either form or substance. In other words, if the pleading is vague, contains improper matter or fails to state grounds on which relief can legally be granted, the special exception is the proper vehicle for raising these defects. 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.

What is a speaking demurrer?

attempt to bring up something outside of the pleading at issue in order to establish the defect -Improper in Texas practice. not proper in special exception if it is a speaking demurrer. It means that you have to put on evidence to establish defect. EX: Fidelity bond. - defense of the D was that there was no coverage for the act being sued on, thus no COA. D had to put on evidence in order to establish that fact. If you have to put on evidence in relation to a special exception, you are using the wrong procedure; there's NO EVIDENCE ALLOWED IN SPECIAL EXCEPTION HEARING. It's a question of law based on pleading defects evident from the face of the pleadings. Here, should have filed MSJ. Because that includes paper proof.

It appears the trial court has no authority to direct a non-party, such as an insurer, to

attend mediation.

Crime/fraud exception:

attorney-client privilege doesn't apply if services of the lawyer were sought or obtained . . . to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

NOTE 2: if you are dealing with a document, such as a promissory note, you must

authenticate it and establish that it's been denied execution or signature (evidence issue) by verified denial. What is the usual way for authenticating a document? Easiest way is through request for admission. If they admit, you're good. If not, then you have to produce evidence.

In 1999 this proportionality rule was incorporated to reflect the federal rules. The proportionality rule (192.4):

authorizes the court to limit discovery if the burden or expense of the proposed discovery outweighs its likely benefit. Burden vs. usefulness - if you're seeking something marginally relevant, and the burden on the other side is great, they can move to quash/strike Generally party-to-party discovery requests/responses are not filed with the court. Lawyers keep it until there's no further time for appeal - ethical obligation to keep it as counsel However, discovery filed with NON-parties is filed with the court TXL: courts can keep these records electronically

Defendant may designate a RTP even if the "responsible" person is

bankrupt, a criminal, a person beyond the court's jurisdiction, or an employer with workers' compensation immunity.). D can designate an unknown person who has committed a criminal act that was a cause of the loss or injury the subject of the lawsuit. EX: case where a person was raped in a K-Mart parking lot and sued K-Mart for not keeping up safety of the parking lot. K-Mart designated the unknown rapist as a RTP who got away.

Claim Preclusion (AKA "Res Judicata") Generally, a dismissal "with prejudice, even if erroneous,

bars a later suit on the same claim.

Rule 162 provides that a non-suit may be taken "at any time...

before plaintiff has introduced all of his evidence other than rebuttal evidence," that is up to the time the plaintiff has introduced all his direct evidence and before his rebuttal evidence." A plaintiff is not allowed to wait and see how good the defendant's evidence is before deciding to take a non-suit.

Objections to defects of form Objections to defects of form in affidavits or other summary judgment evidence (discovery responses on file, stipulations of the parties, authenticated or certified public records) must be made

before the court rules on the summary judgment; otherwise they do not form a basis for reversal on appeal. Very important that you impose objections to SJ proof of opponent. Any objections are WAIVED if they are defects of FORM.

A party may also discover: Witness statements:

brief statement of the party's connection with the case (not work product) IF it meets the definition in TRCP 192.3(h) Written statement signed or otherwise adopted or approved in writing by the person making it or a stenographic, mechanical, electrical or other type of recording of a W's oral statement, or a transcript Prior to 1999 couldn't obtain witness statements/list of people expected to testify

NOTE 2: Trial court has _____ in ordering severance, consolidation, or separate trials.

broad discretion

In a non-jury case, because there is no submission of jury questions, it appears that "trial by implied consent" may occur merely

by virtue of the failure to object at the time the testimony, not otherwise raised by the pleadings of the offering party, introduced without objection.

Limited jx -

can only hear certain issues: EXAMPLES: Federal - federal question, diversity jx Family Law District Court - can only hear family case Statutory Probate Course - only probate, estate issues

When a claim was adjudicated and resolved by final judgment, that claim, as well as any transactionally related claims that should have been raised in an earlier suit, ...

cannot be litigated in a later suit. Same principle also applies to compulsory counter claims. Chapter 6: must litigate all "transactionally related" claims that meet the requirements of TRCP 97a and within the SMJ of the court. Policies: promote judicial economy, prevent double recovery, vexatious litigation and inconsistent results Claim preclusion (res judicata) is an affirmative defense (must affirmatively pled & establish)

Sovereign immunity: general rule -

cannot sue govt without govt's approval, deprives the courts of SMJ. Waiver of sovereign immunity has to be done by legislature. Must be clear (cannot be implied waiver of SMJ). State and local govts can both assert sovereign immunity which denies SMJ. Local - can waive SMJ - EX: local govt enters into a contract, they have generally waived SMJ (but that is NOT true of the state). We won't get into details of sovereign immunity - just know exists and relates to SMJ. Still alive and well throughout the US. Why? Protect govt coffers. Govt needs money to be able to function. Thus, no suits unless express waiver. One of the waivers we have is the Texas Torts Claims Act. Can sue govt agency under TCA, but only for gross negligence. So regular negligence is not adequate to overcome sovereign immunity of the state under the TCA

When a trial court does not specify the grounds upon which it granted summary judgment (assuming there are multiple grounds), an appealing party must

challenge all possible grounds on which the motion could have been granted because the reviewing court must affirm the ruling if any of the independent grounds are meritorious. EX: Party moves for SJ on ground A and B, TCT doesn't state whether it is A or B they are granting SJ on. Don't have to. Party moving for SJ shouldn't specify (strategically) because now the party appealing the granting a SJ has to brief all of them because if a court reverses on just one ground (A), then the judgment can still stand on ground B.

A party may expressly waive venue rights by ...

clear, overt acts evidencing an intent to waive, or impliedly, by taking some action inconsistent with an intent to pursue the venue motion. Generally, these actions invoke the judicial power of the courts.

While a counterclaim is brought against an opposing party, a cross-claim is brought against a

co-party. Same side of the "V" D1 against D2

Because a RTP is not responsible for their percentage of fault (not responsible to pay the judgment) and the finding of their fault is NOT _____, the sole purpose is to get the jury to consider whether that person might also have a percentage of fault.

collateral estoppel or res judicata Designation as a RTP and an assignment of fault does not impose liability on RTP and cannot be the basis for liability in subsequent litigation based on res judicata or collateral estoppel.

OVERVIEW OF TEXAS PLEADINGS Original petition -

commences the action; the "blue print for trial." Should contain: Short statement of the COA(s), and plead facts sufficient to give fair notice of the claim and the relief requested. certain formal elements, such as allegations of jx, venue, the pertinent discovery level, and the names of the parties and their residences. File with the clerk of the appropriate court (county clerk, or district clerk)

Public health statutes prevent disclosure of persons with (2)

communicable diseases (we want people to get diagnosed and treated), and the identity of blood donors (we want people to give blood)

The attachment bond required of the P is designed to ...

compensate the D adequately in the event the P fails to prosecute the suit to effect and to compensate the D sufficiently for all damage and costs that may be adjudged against the P for wrongfully suing out the writ of attachment. -The attachment bond requirement is almost identical to the bond required by the rules of sequestration.

A routine allegation of mental anguish or emotional distress does not place the party's 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 has put his mental condition in controversy, good cause for the compelled examination must also be shown. The "good cause" requirement of Rule 167a recognizes that

competing interests come into play when a party's mental or physical condition is implicated in a lawsuit -- the party's right of privacy and the movant's right to a fair trial. A balancing of the two interests is thus necessary to determine whether a compulsory examination may properly be ordered.

Motion to transfer venue for convenience must be filed and served

concurrently with or before the answer

The party who seeks to limit discovery by asserting a privilege has the burden of proof. However, if a party asserting privilege makes a prima facie showing of privilege and tenders documents to the trial court, the trial court must

conduct an in camera inspection of those documents before deciding to compel production. Generally, a trial court conducts an in camera inspection to determine if a document is in fact privileged. If it is not privileged, then it may become evidence that the factfinder may consider. If the document is privileged, it is not subject to discovery and may not be considered by the factfinder, even when the factfinder is the trial court The trial court abuses its discretion in refusing to conduct an in camera inspection when such review is critical to the evaluation of a privilege claim

Rule 167.5 (b) provides that when litigation costs are to be awarded against a party (due to the 20% rule), that party, on motion and for good cause shown, may be allowed to

conduct discovery in relation to the reasonableness of those costs. However, if the court determines that the litigation costs are reasonable, "it must order the party requesting discovery to pay all attorney's fees and expenses incurred by other parties in responding to such discovery."

"Bad Faith" under Rule 13 means

conscious doing of a wrong for a dishonest, discriminatory, or malicious purpose

Issues not expressly presented to the trial court in MSJ by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.

The scope of waiver. Waiver by one defendant does not

constitute waiver by other defendants.

If service is by registered or certified mail under Rule 106, the return must also

contain the return receipt with the addressee's signature Need to match: who was named as the addressee, and who signed the return card.

Whether a given dispute falls within the scope of an arbitration clause is a matter of

contract interpretation. A court may not enforce an agreement to arbitrate if the court finds the agreement was unconscionable at the time the agreement was made.

SUMMARY JUDGMENTS (Rule 166a) (d) *Appendices, References and Other Use of Discovery Not Otherwise on File*. Discovery products not on file with the clerk may be used as summary judgment evidence if

copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least 21 days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least 7 days before the hearing if such proofs are to be used to oppose the summary judgment.

Persons To Attend Depo: Notice must state if anyone other than

counsel, deponent, party and their spouses, and depo officer. TRCP 199.5(a)(3) TXSC was getting complaints about people that were bringing to depo. TXSC didn't create limits other than to say notice was required and if someone objects, the court can deal with it.

Venue of the main action controls venue of a properly joined

counterclaim, cross-claim, or third-party claim. P's main claim controls Venue of the main action controls venue of a claim by a plaintiff against a third-party defendant arising from the same transaction/occurrence. This is something two consider when you have two parties with claims against each other. One of the benefits of being the P, is that your choice of venue controls. If there are claims on both sides, P's venue claim controls over D's counterclaims. This makes a difference in terms of your choice whether to go first and thus become the P.

General jx

court has authority to hear anything that walks in the door within certain dollar amount

Failure to timely respond to Request for Admissions =

deemed admitted (automatic without the need for a court order)

When the SOS is the proper agent for service of process, service on the SOS is service on the ...

defendant.

Undue prejudice depends on whether withdrawing an admission or filing a late response will ...

delay trial or significantly hamper the opposing party's ability to prepare for it. Trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding rules or principles.

EFFECT OF SERVICE (a) After service of a writ of garnishment, the garnishee may not ...

deliver any effects or pay any debt to the defendant. If the garnishee is a corporation or joint-stock company, the garnishee may not permit or recognize a sale or transfer of shares or an interest alleged to be owned by the defendant. (b) A payment, delivery, sale, or transfer made in violation of Subsection (a) is void as to the amount of the debt, effects, shares, or interest necessary to satisfy the plaintiff's demand.

In MTTV Reply, Plaintiff should

deny any of the defendant's venue facts Plaintiff wishes to put in issue. If denied, the defendant must provide prima facie proof of those facts. Plaintiff will also want to file its own proof: affidavits and attachments.

Deposition on written question:

deponent receives written questions ahead of depo and appears before a person authorized to administer a written deposition to provide answers. No oral questions. Weak form of discovery because can't ask follow-up questions or revise questions. Can be used on non-parties Used often to get business records from a 3P under the hearsay exception. Opponent can formulate cross questions if they wish.

If depo. on written questions, must attach

deposition questions. TRCP 200.3

Discovery motions (motion to quash disco, etc.) are to contain a *certificate of conference*:

designed to show that a reasonable effort has been made by counsel to resolve the dispute without the necessity of court intervention and the effort failed. Discovery: "an island of cooperation in a sea of adversariness" 191.2 Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. Tex. Disciplinary Rules of Professional Conduct provide guidelines for proper conduct during disco

Temporary injunction -

different burden of proof than TRO can be for a longer period of time, can be until the end of a suit in which you seek a permanent injunction

3. A failure to appear at trial -

different from both of the foregoing in that the only "default" is a failure to appear at trial in response to a proper trial setting. post-Answer default judgment. D files a Answer but fails to appear at trial. But by filing an answer, the D puts P to his proof. So not a true default judgment. But things go much quicker at trial when the D doesn't show. EX: unobjected to hearsay comes in.

A no-evidence summary judgment is essentially a pretrial

directed verdict,

4) Limiting disclosure of mental processes. If a court orders discovery of work product, the court must--insofar as possible--protect against

disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable.

The way our current rules are written, is you get info on experts thru (which 2 disco devices?)

disclosures and depositions. You don't use requests for productions or interrogatories.

Finally, when determining the means by which the sources should be searched and information produced, direct access to another party's electronic storage devices is

discouraged, and courts should be extremely cautious to guard against undue intrusion.

No conference between witness and attorney during deposition unless to

discuss asserting a privilege Counsel may only give instructions not to answer if: 1) asserting a privilege, 2) complying with a court order or these rules, 3) protecting a witness from an abusive question or one for which any answer would be misleading, or 4) to secure a ruling

Rule 165a requires the clerk to send to each attorney of record, (and to each party not represented by counsel and whose address is shown on the docket or in the papers filed with the court), notice of the trial court's intention to

dismiss for want of prosecution. (The intermediate appellate courts are not in agreement as to whether notice may be imputed by a local rule)

Both the dismissal with prejudice and the agreed judgment will be final judgments if they

dispose of all the parties and issues before the case. Both will serve as the basis for asserting the doctrine of res judicata should a subsequent lawsuit be filed between the same parties involving the same cause of action or a transactionally related claim that could have been brought in the first lawsuit.

Although exceptions should be urged in the TCT if the grounds for summary judgment are only expressed in an accompanying brief, failure to except

does NOT result in waiver. Summary judgment evidence need not be referenced in the motion itself.

***Remember, Amended Pleadings supersede and KILL previous pleading, so

don't try to incorporate by reference anything from previous pleadings****

special exceptions: Substantive defects:

e.g., failure to plead a component or constituent element of a cause of action. This defect may be waived, but the pleading party is still required to prove every element of its ground Waiver of the pleading defect merely waives the right to have the element pleaded, it is NOT an admission of an unpleaded element.

Special exceptions: Formal defects:

e.g., general allegations of negligence. May specially except to a formal defect to obtain further info and narrow the claims/defenses asserted by the adverse party EX: Pleading too generally: "D was negligent in operating vehicle." Not sufficiently specific in TX to give fair notice. How exactly was D negligent? Speeding, running red light, etc.

Sales Solely thru EBay -

eBay falls into middle category of sliding scale, characterized as an "interactive website." While car sellers that use eBay have to list and register the cars, they have no control over the bidding process. Many courts have held that selling goods thru internet auction sites does not subject a D to PJ Transaction is solicited by KS resident, TX car dealer did not target the KS forum in any way. No "plus factor" Sliding scale test comes from the Zippo case. Law of the sufficiency of internet contacts is in its infancy.

If the parties reach a settlement and execute a written settlement agreement, the agreement is

enforceable.

Another option available to settling litigants is to provide in their settlement agreement that the case will be disposed of by an *agreed judgment.* When the parties agree to all the terms, provisions, and conditions of an agreed settlement, the trial court may

enter an agreed judgment reflecting that agreement. The party's consent must exist at the very moment that the trial court signs the agreed judgment.

Courts of Appeal (14 of them) -

error correcting courts. Hear both civil and criminal cases They have obligatory jurisdiction - they must take cases within their jx with AIM over $250. Appeals from county and district courts, NOT Justice Courts (JPs) Appellate courts do not hear new evidence, they decide cases based on what was before trial courts. 1st and 14th both in Houston. 1st used to be in Galveston (because of the shipping industry, Galveston was biggest early in TX history), but 14th couldn't handle Houston alone so 1st was switched to Houston as well. There have been several suggestions to combine these two courts for efficiency. But the courts want their own authority, each one wants its own chief justice.

Daubert -

expert has to be qualified in the very field they are testifying. Also, there has to be "connectivity" between opinions/facts and conclusions. Makes the court a gatekeeper on expert testimony. Can't offer testimony of podiatrist on the standard of care for heart surgeons.

Inferential rebuttal defenses

factual allegations that indirectly negate some element of the P's COA.

When a party stands firm on his pleadings, the trial court may dismiss the cause if the remaining allegations

fail to state a cause of action.

Rule 173 does NOT apply to cases where guardian ad litem issues are governed by statute, such as ...

family law and probate cases. That's a different kind of GAL.

TRCP 13 - an attorney or party may be held in contempt for bringing a

fictitious suit as an experiment to get an opinion of the court, for filing any fictitious pleading in a cause for the purpose of securing an advisory opinion, or for making statements in a pleading that the attorney knows to be groundless and false if made for the purposes of securing a delay of the trial in the cause.

A party whose case has been dismissed for want of prosecution may,

file a *verified motion to reinstate* filed with the trial court *within 30 days* after order of dismissal is signed.

What do you do if you represent a D and the P files for an injunction and no damages in JP?

file a plea to the jurisdiction stating that this court lacks SMJ. Get the case dismissed for lack of SMJ

More time to respond: Rule 166a provides that a party faced with a MSJ may

file an affidavit explaining the reasons she news additional time to gather affidavits or do disco in order to oppose the motion. This additional time is not a matter of right, however; the non-movant must justify the request.

Dominant jx is in the court where the interpleader is

filed. Even if it is the later filed suit - VERY UNUSUAL for a subsequent action to get dominant jx. Would then file a motion to abate the previous proceedings.

SUMMARY JUDGMENTS (Rule 166a) (h) *Affidavits Made in Bad Faith.* Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

LAW: Under Rules 45 and 47, pleadings are sufficient if they give the opposing attorney fair notice of the claim involved. The object and purpose of pleading is to

give fair and adequate notice to the party being sued of the nature of the cause of action asserted against him so he may adequately prepare his defense.

If the trial court dismisses the case for want of prosecution, notice of the signing of the order of dismissal is to be

given immediately by the clerk to the parties or their attorneys of record by first class mail. (Rule 306a(3)). All licensed attorneys in TX are required to register an email for service/notice

Interpreting the Statute - There are a number of ways in which the language of the long-arm statute could be read to differ from the jx permitted by the Constitution. However, TXSC has consistently held that the long-arm statute ...

goes as far as due process permits despite the statutory language and without following normal methods of statutory construction. Texas opens the courthouse doors as wide as due process allows This stems in part from the "doing business" language in the statute. It gives examples, but then says it is not exhaustive.

To avoid preclusive effect of failure to identify a lay witness who will testify when requested, party must establish

good cause OR the lack of unfair surprise/unfair prejudice to other side.

A party may withdraw a deemed admission upon a showing of

good cause for such withdrawal if the court finds that the parties relying upon the responses will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby. Tex. R. Civ. P. 169(2). 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. A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. An appellate court should set aside the trial court's ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion. An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably.

Attorney must NOT object to a question at oral depo, instruct W not to answer, or suspend the depo unless there is a

good faith factual and legal basis for doing so. You cannot instruct a W not to answer a question in a depo, unless asserting privilege, complying with court order, or protect from abuse. Very limited as the person presenting W. Can't tell them what to say; can't coach them or make speaking objection. No attorney can ask a question without a good faith legal basis.

There is a presumption under Rule 13 that papers are filed in

good faith; burden on party filing motion for sanctions to overcome

Privileges: Lobbyists:

gov't code prohibits public disclosure of a written or otherwise recorded communication from a citizen of Texas to a member of the legislature unless either party authorizes disclosure

Rule 243 reads as follows: If the cause of action is unliquidated or be not proved by an instrument in writing, the court SHALL

hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, and the cause entered on the jury docket.

"Core functions of the judiciary" include:

hearing evidence, deciding issues of fact raised by the pleadings, deciding questions of law, entering final judgment and enforcing that judgment. EX: Attorneys filed the same case multiple times until they got the judge they liked as a scheme to circumvent random assignment of cases.

Use of Depositions at Hearings or Trials, Another Proceeding Deposition from another proceeding generally would be

hearsay

Interpleader - interpleading party has to unconditionally give up funds to the property. Why is it Favored -

helps innocent stakeholders by reducing litigation costs; and avoids multiplicity of lawsuit by getting everyone in the same suit that has a claim to the property.

PERSONAL JURISDICTION IN TEXAS The General Long-Arm Statute Answers the question of ...

how far to open the courthouse doors to suits against nonresidents.

Burdensomeness Issues - burden of retrieving info depends in part on

how it is stored.

NOTE 2: Mechanics of plea in abatement - should be specific. Should not only state the specific grounds, but

how it should have been brought, should state facts, not just conclusions, When a plea is sustained, the suit should not be dismissed until the P has been given a reasonable opportunity to amend, if possible. If dismissed on a plea in abatement, it can be revived if the obstacle which prevented the case's further prosecution is removed.

If P got possession, would D have a right to sequestration himself?

if Barfield had peacefully regained possession of the lawnmower, Brogdon probably wouldn't have a right to sequestration. EX: left out in repairyard, Barfield picks it up peacefully. Why? Artisan's lien is possessory; once you lose possession the lien goes away. So repairman does not have right. The repairman had a possessory partisan lien.

Summary Judgment -

if after discovery it appears there is no need for trial because there is no genuine issue of material fact. TX has a two-track MSJ: 1) traditional motion - requires the movant to prove his or her right to judgment as a matter of law. More like pre-Celotex federal practice, and defendant must disprove some element of the P's claim. 2) no-evidence summary judgment - Ds can file a motion like FRCP. TX also has an extensive body of law about what kinds of materials are proper MSJ evidence, and when a party needs to object to the inadequacies of an opponent's evidence or risk waiver In TX as well as federal courts, many more cases settle than are brought to trial. Can involve direct negotiation or some kind of alternative dispute resolution (ADR) procedure.

Possible Due Process Limits on interpleader -

if one of the claimants is a nonresident D with insufficient contacts; PJ cannot be obtained over interpleader D, court cannot have jx, even if the property or fund is present in the state.

While HB 4 is silent as to its admissibility, Rule 167 expressly provides that the offer of settlement is inadmissible except

if the offer is accepted but only for purposes of enforcing a settlement agreement or obtaining litigation costs.

*TEST for justiciable interest* to justify intervention:

if the original action had never been commenced, could intervenor (Hall) have brought the suit to recover for the original P's (Moffet's) injuries?

Middlebrook Doctrine

if there are multiple claims against a D, and venue is proper as to one of them, it is proper to all other claims properly joined, regardless of their relatedness. Prevents multiplicity of suits However, mandatory provision controls over related claims and the Middlebrook doctrine: -If one of the joined claims is subject to a mandatory venue exception, all of the claims arising from the same transaction/occurrence must be brought based on the mandatory provision

Tort Claims Act -

if you are suing a local govt entity, must give presuit notice. -must give notice of the claim not 6 months after the incident giving rise to tort claim occurred. Must describe the damage or injury claimed, the time and place of the incident and the incident itself. TCPRC 101.101(a). Failure to do so bars the tort claim absent govt's actual notice. -Chances are govt has sovereign immunity; but the act takes out certain claims from immunity where you can sue the state. -If you are thinking about suing a govt entity, think twice because they have a lot of immunity from suit. -EX: state universities have immunity

A discovery order requiring document production from an unreasonably long time period or from distant and unrelated locales is

impermissibly overbroad and may be subject to mandamus relief A threshold showing of applicability must be made before a party can be ordered to produce multiple decades of insurance policies; only those insurance policies under which any person may be liable to satisfy part or all of a judgment are subject to discovery Tex. R. Civ. P. 192.3(f) does not foreclose discovery of insurance information beyond that identified in the rule; however, the plain language of R. 192.3(f), by itself, does not provide a sufficient basis to order discovery beyond the production of the "existence and contents" of the policies. A party may discover information beyond an insurance agreement's existence and contents only if the information is otherwise discoverable under the scope-of-discovery rule: "In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party."

Generally, the scope of discovery is within the trial court's discretion. However, the trial court must make an effort to

impose reasonable discovery limits. The trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure.

Form vs. Substance: In addition, one of the trickiest MSJ rules requires that objections to the *form* of summary judgment evidence must be made ...

in a timely way in the trial court, while defects in the *substance* made be made for the first time on appeal.

Tort reform: "If any portion of the benefits recovered for the class are in the form of coupons or other noncash common benefits, the attorney fees awarded in the action must be

in cash and noncash amounts in the same proportion as the recovery for the class." TRCP 42 There were cases where the P would sue for defective product (EX: allegedly defective seat belts); and they sued and their clients got a coupon for another product. Lawyers got millions of dollars in fees. That's where this came from. If you think you're benefiting your client by getting coupons, then you get coupons too.

The party relying upon discovery should make sure the discovery responses are

in fact on file with the court and should consider excerpting the parts relied upon for the court. (Note: Rule 166a(d) provides an alternate method of utilizing unfiled discovery responses.) Carlson: you should excerpt any disco responses in appendix you want the TCT to consider, so the court doesn't have to fumble around with a lot of paper. Don't send a judge on a search to hunt thru an entire depo for one line is unrealistic. Make it easy for them.

Serving the Person in Charge with Process -

in some cases, the nonresident may actually have a presence in TX complete with a "person in charge." If so, 17.043 requires service on this person if the nonresident is not required to designate or maintain a resident agent for service of process. Failure to make the proper allegations and serve the proper person could result in the loss of a default judgment.

Alternate Way to Serve Nonresident Defendants - Rule 108 Rule 108 provides that service of process on a nonresident D or on any D who is absent from TX may be made

in the same manner as that provided for service of citation on residents under Rule 106. Rule 106 permits service of citation by delivery, in person, of a copy of the citation with a copy of the petition attached. Service by registered or certified mail may, if requested, be made by the clerk of the court. 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. Since 108 allows service of process on a nonresident D by any method authorized by 106, mail service is also proper via certified or registered mail, return receipt requested.

Indemnity against liability allows the

indemnitee to recover when the liability becomes fixed and certain, as by rendition of a judgment, and is not mature until judgment is rendered.

Severance creates

independent lawsuits as to claims between two parties is proper where the controversy involves more than one cause of action or multiple parties. Split into independent lawsuits and given separate docket numbers and go their separate ways. Most clerks when they have severed claims, add "A" and "B" at the end of the original docket number

Cost of Producing E-Disco:

info that is reasonably available to the responding party in the ordinary course of business must be produced, but that the responding party may object if it cannot through reasonable efforts retrieve the data in the form requested. If the court still orders production the cost of extraordinary efforts to produce e-disco falls on the requesting party. Parties should discuss and work out the format of production of ESI.

In addition, the trial court has ____ to dismiss a case that is not prosecuted with due diligence.

inherent power (Example Plaintiff files a case but takes no action for an extensive period of time, court can put it on DWOP docket under its inherent authority)

Amended/Supplemental response must be in the same form as

initial response; must be verified if original required to verified. But failure to do these will not render untimely an otherwise timely response if corrected quickly

As a general rule parties may only appeal from a final judgment. An order overruling a motion for summary judgment is

interlocutory as it does not dispose of the parties and issues before the trial court. (A few statutory exceptions allow an appeal of a denial of summary judgments, but they are very limited. - 1st amendment media case).

Extreme caution must be taken in adding any additional conditions to the offer to settle/release as some conditions will

invalidate the opportunity for fee shifting. The rule admonishes: "An offer may be made subject to reasonable conditions, including the execution of appropriate releases, indemnities, and other documents. An offeree may object to a condition by written notice served on the offeror before the deadline stated in the offer. A condition to which no such objection is made is presumed to have been reasonable. Rejection of an offer made subject to a condition determined by the trial court to have been unreasonable cannot be the basis for an award of litigation costs under this rule." *In other words, including unreasonable conditions can void the offer.*

When one party has objection to discovery, they can try to work it out, or ask for hearing. If party disagrees with the ruling they can seek mandamus. Mandamus -

is an original preceding. Go up to review of a single order (in a regular appeal your appealing the entire judgment that you preserved, limited to the record). In a mandamus proceeding, the parties actually gather the record, not the court reporter. After the court grants the mandamus relief, you go back to the same judge. That's one of the things you do think about; you're going back to the same judge after you have reversed his order. Don't take this step lightly. Usually asking the trial judge to stay/abate ruling so you can seek mandamus ruling so the court isn't blindsided.

Similarly, provisions limiting remedies or prohibiting punitive damages in arbitration agreements are generally enforceable as long as

it applies to both sides.

The "Essential to the judgment" element of collateral estoppel. Issue: What if there are alternative grounds? Restatement: if a judgment of a trial court is based on determination of two fact issues, either of which could support the judgment standing alone,

it cannot be said that either of them were essential to the judgment (collateral estoppel would NOT apply) *Texas disagrees with the RS: Collateral estoppel WOULD apply.* TXSC might be open to changing this

Res Judicata is an AFFIRMATIVE DEFENSE that must be pled or

it is WAIVED.

Appealing the Granting of a MSJ An order granting a complete summary judgment is appealable at that juncture if

it is a final judgment, i.e., disposes of all the parties and issues before the court. If it completely disposes of one of several parties, on motion, the trial court may grant a severance. If a partial MSJ, then you need to wait until a final.

Predominance test is not whether you count up the number of common issues and individual issues and see which is the longer list; but instead it is.....

it is an analysis of how the issues will be tried and *whether most of the TCT's time be taken up by individual issues.* When you make proof for 900 Ps that can take a long time. The question of causation and damages is unique to the individuals. Here, the individual issues will take more of the time: some might have been asthematic and very sensitive; some were suing for pets or landscaping injuries, some were suing for lost wages, others weren't. The costs of medical varies (some get free thru VA, some have to pay, etc.)

P can move to strike the designation of an RTP if

it is improper or not timely. If limitations has run against the RTP so the P cannot join the RTP as a D and recover their percentage of fault, the designation is improper.

SPECIAL DENIALS When the procedure rules require that something be denied specifically (and sometimes under oath - verified), the issue cannot be raised at trial if

it is not correctly pleaded. Rules 54 and 93 are the most common sources of specific denial requirements. There are also waiver rules at work: sometimes the P may waive the right to complain about defects in the D's denials.

Permissive joinder of claims by the plaintiff: IMPORTANT As a general rule, P has to assert all claims (and file them) before limitations has run. Sections 16.068-69 of the CPRC allow, under limited circumstances, all parties to amend and add additional grounds of recovery/defense that otherwise might have been time-barred. Exception to statute of limitations precluding the bringing of claims: CPRC 16.068-16.069. If a plaintiff's later-added claim could have been asserted at the time that the original action was filed, it is not time-barred if added in an amended pleading unless....

it is wholly based on a new, distinct or different transaction or occurrence. Allows P to add claims later in the lawsuit that could have been asserted at the original time of filing the suit, even if they are now past the SOL. UNLESS those claims are wholly based on a new, distinct or different transaction or occurrence. *WHY?* Because if we didn't have this statute, a P's lawyer would kitchen-sink every original petition. Every possible claim in the world would be included. -This exception means that P doesn't have to do that. They can add claims later as the lawsuit develops, so long as they are transactionally related.

"On written submission" -

just means no oral argument. Just motion, response, reply and written proof (affidavits, etc.) Court has to tell you the date of written submission, so you can compute the 45 day (to make MTTV), 30 day periods (for response), 7 (for D's fact affidavits, etc.). Look at local rules; or the clerk will tell you "oh, the judge usually takes that up on written submission." Court only considers paper proof. Merits of the case are not considered in venue rulings.

Emergency relief -

just what it sounds like. We have an emergency, need the court to intervene. Typically will be seeking a TRO. -To get a TRO, there's a lot of time pressure. And a lot of moving parts. Good idea to get the help of someone who's done it before when you try to get a TRO for the first time. TRCP 680 - a rule you need to know in detail. The rest of the Chapter 2 rules you can just know the overview.

The Demand For Relief; Prayer Dollar Amount Claimed: TRCP 47 requires Ps to provide that an original petition seeking unliquidated damages are within

jx limits of court Ds who want a specific amount pleaded may specially except to the damages pleading and Ps will be ordered to plead an amount for damages.

Personal jurisdiction -

lawyer must check that all prospective Ds have enough contact with TX so they are subject to jx of TX courts. Involves consideration of TX long-arm statutes and TX cases interpreting the requirements of due process of law.

Because the general rule is that Ds are liable only for the percentage assigned to them, and that a D is not jointly and severally liable unless it has been assigned more than 50% of the responsibility with respect to a COA, designation of RTP is done in an attempt to

lower the percentage of responsibility assigned to any one D and thereby avoid joint and several liability.

Cross-claims -

made against co-parties.

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.

TRCP 239a places the responsibility on the party taking the default judgment to certify to the court clerk, the last known

mailing address of the party against whom a default judgment is rendered.

A discovery order that compels production beyond the rules of procedure is an abuse of discretion for which ______ is the proper remedy.

mandamus TRCP provides for discovery of any matter that is not privileged and is relevant to the subject matter of the pending action. The phrase "relevant to the subject matter" is to be broadly construed. It is no ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). However, even these liberal bounds have limits, and discovery requests must not be overbroad A discovery request is not overbroad merely because it may call for some information of doubtful relevance so long as it is reasonably tailored to include only matters relevant to the case. Whether a request for discovery is overbroad is distinct from whether it is burdensome or harassing. Overbroad requests for irrelevant information are improper whether they are burdensome or not. Discovery must be reasonably limited in time and geographic scope.

General venue rule is subject to

mandatory and permissive exceptions (p299-303) Not going to try to memorize them all. Just look at those that come up most frequently. If you have access to Vernon's in hard volume, look at index under venue. Actually better than digital resource. *Venue can depend on COA.* Property-based, sue in the county where the property is located. *Venue can depend on type of party:* EX: if you are suing a county, venue is mandatory in that county *Outside statute (p303)* TBOC - DTPA: general venue, or where D has authorized agent of the D solicited the transactions

MODERATED SETTLEMENT CONFERENCE At the conference, the parties and their counsel present their positions before a panel of impartial third parties, who

may issue a nonbinding advisory opinion. Three attorneys, agreed to by the parties, make up the panel and they would listen to truncated evidence, and they give a non-binding advisory opinion that the parties may or may not accept and could become a settlement. The conference is usually a brief procedure of less than one day. The panel commonly consists of three attorneys agreed to by the parties who may have special expertise in the area of the dispute. The panel is provided summaries of the case by each party, but does not review the case file. At the conference, each party or the party's attorney will make a short presentation with time allowed for questions by the other panel and the panel and for rebuttal. If the parties reach a settlement and execute a written settlement agreement, the agreement is enforceable.

Statements made in the ADR process as well as the results are confidential and

may not be put before the fact finder should the case not settle and proceed to trial. So if ADR is unsuccessful, you can't call the mediator to testify at trial.

Duty to amend or supplement *depositions* only applies when

mental impressions and opinions of retained experts are materially changed. "material alterations" do not include minor calculation changes or an expansion of an already disclosed subject.

Summary judgments ARE a judgment on the

merits AND trigger res judicata. So you have to take them VERY seriously.

Absent flagrant bad faith or callous disregard for the rules, due process bars

merits-preclusive sanctions. When requests for admissions are used as intended -- addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents -- deeming admissions by default is unlikely to compromise presentation of the merits. But when a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due-process concerns arise.

Plea in abatement -

method of raising a fundamental defect in the mode of bringing the action, other than on PJ, citation, or venue grounds. It is thus a "catchall" type of plea. Its most frequent use is to raise such matters as the prior pendency of another action or the nonjoinder of a person needed for just adjudication

Even if you have just one P and one D, the Trial court still has discretion to order separate trials as to parties or claims(TRCP 41) or sever multiple claims or parties (TRCP 174(b)) to

minimize embarrassment, delay, undue expense. So if you're the D, you probably don't want the same jury hearing the assault claim along with the DTPA claim. You could ask for a severance of these transactionally unrelated claims. Have separate trials.

If a party wants to amend inside 7 days, during trial, or at a later date than that imposed by the trial court by a pretrial scheduling order, then should make a motion....

motion for leave to amend.

Enforcement of Arbitration awards A party wishing to enforce an arbitration decision may file a

motion to confirm the award with the trial court. An arbitration award may be enforced by the court in the same manner as a Texas civil judgment. The award (under the TAA) earns post-judgment interest in the same manner as a civil judgment.

Appropriate motion for D in response to motion to amend:

motion to strike.

Venue is challenged with

motion to transfer venue

Once you finish discovery, then get into a lot of ....

motions, like MSJ. MSJ: we don't need a full blown trial before a jury, because there's no genuine issue of fact to be tried. EX: if you had a limitations defense, there's no need to go to merits, just file MSJ If you're correct, then the P can't prevail as a matter of law, so no reason for trial. EX: SOF. If the P is suing on a sale of goods over $500, you have to have a writing signed by the party sought to be charged under the UCC. If the P is suing on a sale of goods over $500, and you take a deposition and find out there's no documents/agreement, then move for summary judgment because as a matter of law P can't prevail.

Motions to Quash Citation -

movant is arguing there was technical problems with service. EX: P mailed service through regular mail instead of certified/registered (return receipt requested) -If that's all you file with the court, you are availing yourself and it counts as a general appearance So, when should you file it? -as the judge notes in the colloquy quoted in Dawson-Austin, the motion to quash, been if granted, is relatively pointless because a D who prevails on the motion is not entitled to be served correctly. -Rather, the order quashing service acts as service on the D and merely extends the period to answer by 20 additional days (give or take a few). -The time you spend drafting the motion, filing it, paying the fee, then arguing the motion doesn't make a lot of sense (especially in terms of spending the client's money on all this) just to say 20 days later "we deny everything." -So you don't see a lot of motions to quash citation because it really isn't worthwhile. -But sometimes you have clients with more money than sense who want to fight everything, so it's there in case you want to delay a few weeks to file an answer.

Traditional MSJ -

movant must conclusively establish all elements of its COA as a matter of law, except damages.

Organizations: May designate an entity as deponent, but

must describe matters on which examination is requested. TRCP 176.6 Entity must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization. EX: Harris County, XYZ Corporation.

Prejudgment interest and prayer:

must specifically plead if common law claim Don't need to specifically plead you're seeking prejudgment interest if based on contract or statute (but still must plead that the damages are liquidated) Interest damages based on contract or statute can be supported by a general prayer for relief Warning about prejudgment interest: TX law on when you can recover is NOT consistent and decisions are not well-written. There's statutory prejudgment interest under the Finance Code, and there's common law, and the parties might have in their contracts. Bob Pemberton - excellent law review article on the recovery of prejudgment interest; he incorporated into Austin ACt. Check for your particular court of appeals, because there are not many TXSC on this.

In Texas, a release only operates in favor of parties ...

named in the release or parties otherwise specifically identified in the release. EX: if a plaintiff brings a lawsuit against D1, the driver of a truck, alleging negligence and also sues D2, the employer of D1 under the doctrine of respondeat superior, and D1, the employee settles with plaintiff and a release if executed in favor of D1, the release does NOT operate in favor of the employer D2, who was neither specifically named in the release nor otherwise specifically identified in the release.

A party defending can also obtain summary judgment by

negating an element of each of P's claims. Justifies a "take nothing" judgment as a matter of law by negating at least one of element of each of P's claims. EX: negating the existence of a duty in a tort claim

No provision exists in the Texas Rules of Civil Procedure exempting the mental impressions and opinions of experts from discovery when these mental impressions and opinions were

neither acquired nor developed in anticipation of litigation. Before the trial court may hold an entire category of expert opinion evidence exempt from discovery, there must be proof before it that all such evidence was either acquired or developed in anticipation of litigation.

"Groundless" means

no basis in law or fact for the pleading, and is not warranted by a good-faith argument for change in law TRCP 13 should only be used in egregious situations where the worst of the bar uses the system for ill motives However, creative and innovative uses of law should not be discouraged. But an action that is clearly barred by existing law may be considered groundless and brought in bad faith if the existing law is well settled and no reasonably prudent lawyer could believe that a change in the law would be acceptable.

A cause of action has no basis in FACT if

no reasonable person could believe the facts pled EX: neighbors are listening to us thru their microwave Less clear than "no basis in law" standard; court general takes all allegations as true at this stage unless they are fantastic or incredible. However, conclusory recitation of legal elements is insufficient

Must Make Record of Damage Evidence presented at default hearing A defendant who has suffered a default judgment is entitled to reversal on appeal when

no reporter's record is available of the evidence presented by plaintiff pertaining to unliquidated damages. Note: if you are moving for a default judgment and are required to prove damages, be sure to request that a court reporter be present and create a record. You are entitled to have a court reporter present any time you are presenting evidence. Make sure the court reporter's hands are moving! It's your job as a trial lawyer that the record is protected for appellate purposes.

Class Actions & Virtual representation -

normally people don't represent other people's claims and bind their interests in our judicial system because of standing issues; but they do so in a class action. The named class members bind and represent the unnamed class members. In a B3 class action case, the class members have to be notified that they are members of the class and served, and they have the option of opting out. If they opt out, they are not virtually represented and can bring their own action. But typically, each individual class member doesn't have enough on the line to bring an independent lawsuit. Wouldn't make economic sense to do as an individual Appeal of a class action certification can go all the way up to the TXSC TX courts are conservative and reluctant to certify class actions. Bernal requires a rigorous analysis as to whether a case should be certified as a class action.

Contract: venue is in place of contract formation is one factor, but

not controlling necessarily. If all other acts occur elsewhere, then the county where the contract was made is not a "county in which all/substantial part of the events or omission giving rise to the claim occurred."

TRCP 192.3(e) Testifying and consulting experts. 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.

The Federal Arbitration Act does not preempt the Texas Arbitration Act when Texas law is

not inconsistent with the Federal Act. Thus, both the Federal and Texas Arbitration Act may apply to a contract involving interstate commerce.

Due order: Filing Requirements An objection to improper venue is waived if

not made by written motion filed prior to or concurrently with any other plead, pleading or motion except a special appearance.

A claim against an opposing party is not compulsory if it is ....

not mature. (ex: indemnity/contribution claim) A claim is mature when it accrues.

Mathis v. Bocell, (Tex. App.-Houston [1st Dist.] 1998, no pet.) Defects in summary judgment evidence that are defects of form are waived if

not objected to and ruled upon by the trial court. Rule 166a(f). Houston appeals court case that recognizes that there is conflicting authority concerning the difference between a defect of substance (that may be raised for the first time on appeal) and a defect in form in summary judgment proof.

Texas Rule of Civil Procedure 192.3 is entitled "Scope of Discovery." Rule 192.3(a) provides: "In general, a party may obtain discovery regarding any matter that is

not privileged and is relevant to the subject matter of the pending action... ."TEX. R CIV. P. 192.3(a).

The TCT would err in granting SJ on a ground

not specified. Due process issue - no notice to other side.

Amended pleadings are liberally permitted to be filed "at such times as

not to operate as a surprise to the opposite party; must be offered for filing prior to *seven* days of the trial date or get leave of the court. [Remember a scheduling order (AKA "docket control" order) can set a much longer date by which you must file for an amendment]

Nonparty witnesses retained by, employed by or otherwise subject to control of a party may be compelled to appear by

notice of oral depo served upon party attorney. Need a subpoena and notice TRCP 176, TRCP 205.)

Given the inconsistency of the case law on the difference between a formal and substantive defect in summary judgment proof, the safest course is generally to

object and obtain a ruling at the trial level. The risk of tipping the opponent to a possibility of a defect in time for its correction must be balanced against the likelihood of waiving the argument if there is an appeal. Counsel should also consider that the chance of success before the trial judge may be improved by pointed objections to hearsay, improper conclusions, or other inadmissible evidence in an affidavit, whether or not an objection is necessary to preserve the issue for appeal.

If "the responding party cannot—through reasonable efforts—retrieve the data or information requested or produce it in the form requested," the responding party must

object on those grounds. They should object that it is too burdensome: too expensive The parties should make reasonable efforts to resolve the dispute without court intervention (true for all disco). Tex. R. Civ. P. 191.2. If the parties are unable to resolve the dispute, either party may request a hearing on the objection, Tex. R. Civ. P. 193.4(a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost. Tex. R. Civ. P. 192.4(b).

To complain about formal defects on appeal, a complaining party must not only object to the form, but must also

obtain a ruling at or prior to the summary judgment hearing.

If the claimant is responsible for litigation costs in an amount less than the claimant's recovery, "those litigation costs shall be awarded to the defendant in the judgment as an

offset against the claimant's recovery from that defendant." Presumably, if the defendant is responsible for litigation costs, the recovery of those costs becomes a part of the judgment.

Concurrent jurisdiction -

often in TX more than one court will have jx. Thus, decision to file will be strategic as well as technical.

New limits on net worth discovery- CPRC 41.0115 Effective 9-1-2015 Discovery of net worth must be

on motion and hearing. Trial court may authorize that discovery if the claimant demonstrates (by affidavit proof or discovery response) a substantial likelihood of success of the merits of its exemplary damage claim. Ct may only authorize the least burdensome method to obtain net worth evidence. EX: If publicly traded corporation files with SEC, that filing will be adequate.

The Rule of Pleadings - In generally, summary judgment is NOT usually granted ...

on the pleadings. They may, however, form the basis for a summary judgment by defining the issues to which the summary judgment evidence is relevant, as when the summary judgment is granted for a D when the P states no cause of action other than those that are defeated by the D's summary judgment materials.

A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall

on these grounds alone. ("The motion for summary judgment shall state the specific grounds therefor."). In other words, in determining whether grounds are expressly presented, we may not rely on briefs or summary judgment evidence. Trial court may not grant summary judgment on a ground not specified in the summary judgment motion. EX: If you move for summary judgment based on res judicata, you can't get summary judgment on SOF.

Exclusive -

only in one court regardless of AIM EX: statutory probate courts

Res Judicata applies even if a claim is voluntarily withdrawn/non-suited when

other transactionally related claims are litigated to final judgment.

When there are multiple Ps or multiple Ds (or both), Rule 40 applies. Persons may join as Ps or be joined as Ds when the claims by or against them arise

out of the same T/O or series of T/Os, and when they share a question of law or fact common to all parties joined. Courts use tests such as whether claims will include significant evidence overlap and whether the claims are 'logically related" in determining whether they arise out of the same T/O.

Note that an offer to settle may be made under Rule 167, with potential "fee shifting" consequences OR

outside the rule with no fee shifting potential.

You DO NOT HAVE to make a fee shifting offer, you can make your offers to settle

outside this Rule and statute, and there will be no fee shifting, unless it is part of your settlement.

Post-verdict amendments:

parties may be allowed to amend pleadings after the verdict but before judgment to conform the amount of damages requested to match what the jury awarded For discovery level 1 cases, plaintiff may NOT amend to increase damages over the level one maximum. (See TRCP 169 & TRCP 192.2) Burden of proof: the BOP is on the party resisting amendment to demonstrate prejudice by the allowance of the amendment.

Deemed admissions without the necessity of a court order if

party fails to timely file a response to RFA. Matter is conclusively established. If you find yourself in this position, you want to seek to amend or withdraw the admissions (as in the next 2 cases) When should the trial court allow admissions to be amended or withdrawn? (NEXT CASE)

Notes & Questions: Electronically stored information Requesting E-Disco:

party must specifically ask for it, and specify the form in which the requesting party wants it produced. Before the request, the lawyer should become familiar with the nature of the client's data as well as its capacity to read various types of data. Be careful in producing e-disco that it doesn't have privileged info embedded. Now required disclosure of any info (including ESI) that will be part of claim/defense.

Multiple defendants, same result: If trial court dismisses a claim against the defendant whose presence justified venue in that county, then on appeal the trial court's venue determination will not hold up (because that defendant is no longer in the case) so

per se reversible error. EX: P chooses venue based upon the residence of D1. D1 gets summary judgment P take nothing based on limitations. D1 is out of the case. The court on appeal, assuming there was a venue determination, is going to find per se reversible error, looking at the entire trial record.

Comparative Analysis - Federal Rules The drafters of the FRCP rejected the idea that detailed factual allegations are required to give fair notice of the claim involved. The intent of the federal rules is to

permit the complaint to be stated in general terms; the rules are designed to discourage battles over mere form of statement and to sweep away the needless controversies because of mistakes in statement.

Summary judgment affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein

To have probative value, an affiant must swear that the facts presented in the affidavit reflect his

personal knowledge. An affiant's belief about the facts is legally insufficient. An affidavit showing no basis for personal knowledge is legally insufficient. Once the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence sufficient to raise a fact issue

EX: If P files for an injunction in a JP court (which can't hear injunctions), then D should file (or the court sua sponte) a

plea to the jurisdiction.

SMJ contest - file a...

plea to the jx No time frame to raise plea to the jx. Cannot waive lack of SMJ Even if party doesn't raise at all at trial court level. If the court lacked SMJ, it is void. And subject to collateral attack (can be challenged anytime, anyplace)

General v. Special prayer Pleadings end with a prayer regarding what it is you are seeking to recover. General:

pleader requests all relief to which the pleader may be entitled (legal remedies) Usually sufficient to authorize a judgment for any relief, consistent with the COA pleaded, that is within the jx of the court.

Waiving Pleading Defects and Variance Problems. Complaints about P's petition are waived at the ____ stage.

pleading This includes formal defects, such as vagueness, or defects of substance, such as the failure to plead all of the elements of a COA.

When the party asserting a privilege has made a prima facie case for its claim, the requesting party has the burden to

point out to the court which specific documents or groups of documents it believes require inspection. Otherwise, trial judges will be required to inspect untold numbers of documents. The requesting party should be in a position to do so based upon (1) the contents of the privilege log, (2) other discovery and documents, (3) discovery specifically designated to test the claim of privilege, and (4) the evidence at the hearing

Jx refers to the

power of the court.

A "transaction" under the Restatement is not equivalent to a sequence of events, however; the determination is to be made

pragmatically, "giving weight to such considerations as to whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage." In other words, what a business person would likely call a single "deal." So one of the things you need to discuss with your clients is whether there might be any other claims that could arise out of this "deal." T/O. They may not know, but listen carefully to the facts, and try to figure out the claims that should be asserted or might be barred.

Documents not properly produced in response to discovery requests may be

precluded. If the other party objects, just like a W's testimony that wasn't disclosed.

NOTE 8: Filing a special exception without taking a ruling doesn't

preserve anything. The burden is on the movant to get a ruling on the special exception. How do you do that as a lawyer in real life? TRCP 21 - default notice time: have to give opponent at least 3 days notice before you have a hearing on a motion unless the rules of procedure provide otherwise (EX: MTTV - 45 days). Harris County local rules say 10 days notice (probably not a valid notice since it varies with the statewide rule, but no one complains about having extra time) Call the clerk, make sure you figure out dates before you call. Clerk will tell you when the judge hears that kind of thing; give notice to the other side of the hearing. Might be that judge only takes those motions on written submission (no hearings). If so, give notice of that to other side.

What happens if there's conflicting proof? EX: P says D resides in X county, and D says "no I reside in Y county!" Rule 87: prima facie proof by the P that venue is proper will usually

prevent a venue transfer. The P's prima facie proof will control at this point. Prima facie proof of venue facts is not subject to rebuttal, cross or impeachment.

The following excerpt from King v. Tubb sets out the purpose and effect of the notice of lis pendens: The ultimate effect of lis pendens is to ...

prevent either party to certain litigation from alienating the property that is in dispute. It is a well settled rule of law in this State that a purchaser of land pendente lite stands in no better attitude than his vendor. Pendente lite is a Latin term meaning "awaiting the litigation" or "pending the litigation" which applies to court orders which are in effect while a matter is pending. In divorce a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead The very purpose of the statutory lis pendens notice is to put those interested in the land on inquiry as to the status of the land.

The Discovery Rule Privileges Can discover anything that is NOT privileged. Some relevant info is not discoverable: (2)

privileged info and work product.

Generally, the party doesn't serve process directly to the other party. Typically use a ...

process server that's approved in Rule 106

Proof of service The return of service is ...

proof to the court that a defendant was served with process

Parties are required to attend a deposition with a

proper notice served on their attorney. Don't need a subpoena, just proper notice of a deposition. P.692-4 discusses what notice should look like.

Health Insr. Portability & Accountability Act The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to...

protect sensitive patient health information from being disclosed without the patient's consent or knowledge. "HIPPA": covered entities may disclose health information *Gives you limited protection: your health info is private, but a covered an entity can disclose:* 1. In response to a court order; OR 2. If the requester provides "satisfactory assurance" that: a. The individual whose protected health info is in issue has been notified of the report b. The party has made reasonable efforts to secure a proper qualified protective order HIPPA federal law pre-empts Texas state law when applicable. Gives more protection than TX law, but it is not absolute either.

NOTE 6: Waiver of right to rely on admissions: admissions conclusively bind in a way that interrogatories and other forms of disco are not. An admission once admitted, deemed, or otherwise, is a judicial admission. As such, a party may not introduce evidence contrary to the admission. Nevertheless, a party relying on a judicial admission must

protect the record by objecting to the introduction of controverting evidence. Otherwise the right to rely on the admission is waived. A party that obtains an omission can waive if don't object when evidence contrary is introduced. Waiver of right to rely on admission: party relying on an admission must protect the record by objecting to the introduction of controverting evidence.

Preparing the TRO Papers: A. The Bond -

protects a defendant against loss in case the court decides that a temporary restraining order was unnecessary or should not have been granted. A Temporary Restraining Order Bond guarantees that if the court fails to hold a hearing or decides the injunction should not have been granted, the plaintiff will pay any damages, taxable costs, and fees sustained by the defendant. it's the last instrument you need, but the first you need to prepare. The rules require posting of a bond in almost all cases before issuance of a restraining order. TRCP 684 If you intend to post a corporate surety bond, you should contact the bonding or insurance agent immediately before it closes. -The clerk will probably honor your own personal or firm check for the bond, but it is preferable that if your client intends to post cash, he should make arrangements to have the cash available or to have the district clerk approve his personal check.

EVIDENCE RULE 503. Attorney-client privilege:

protects confidential communications between lawyer and client made for the purpose of receiving legal advice. Privilege extends to any person who makes or receives a confidential communication while acting in the scope of employment for the client. Make sure as an attorney that we keep things confidential we want to stay confidential. EX: don't let supportive sibling sit in during communications because that will break the privilege Broad privilege that belongs to client; basically covers anything you communicate to client

Hospital committee privilege:

protects only documents created by or at the direction of the committee for committee purposes Waiver: only a committee may execute a waiver, and the waiver must be in writing. Waiver must be made with an intent to disclose or waive. EX: P sued hospital for negligent credentialing (should have known that doctor was incompetent based on history of complaints against him). Hospital: that was handled by credentialing committee, and those communications are privileged. Went to TXSC: too bad, that's what the TXL created, privileged. Purpose behind peer review committees is to allow hospitals to review what went wrong. But it's hard to see how it helps public policy to protect committees this broadly.

Under this rule, a consulting-only expert must be informally consulted or retained or specially employed in anticipation of litigation. An employee who was employed in an area that becomes the subject of litigation can never

qualify as a consulting-only expert because the employment was not in anticipation of litigation. On the other hand, an employee who was not employed in an area that becomes the subject of litigation and is reassigned specifically to assist the employer in anticipation of litigation arising out of the incident or in preparation for trial may qualify as a "consulting-only" expert. In any event, a party may discover facts known by an employee acting as a "consulting-only" expert.

Depositions are introduced at trial on a

question and answer basis. This affords other parties an opportunity to make any evidentiary objections they might have and obtain a ruling. Typically, counsel will read the question and have a "reader" in the witness box to read the answer. Could also video depo and play back for the jury. If you know you can't get the testimony of someone, then you might think about taking electronically by video because most jurors prefer to see video than have it read to them. Improper to try to admit entire transcript; just introduce by Q&A basis.

Oral & Written Depositions Oral Depositions:

questions asked of a witness under oath before trial in the presence of a court reporter, with opposing parties having the right to be present and ask questions as well. (need subpoena for non-party witnesses Oral depositions are usually the most effective means for obtaining useful info from adverse witnesses because the examiner may ask follow-up questions in the event of evasive, incomplete, or unexpected answers. Scope of depositions is broader than evidence rules. Can be used in trial regardless of W availability (as long as meets other TRE rule)

Trial by Consent -

really just waiver. If there are no pleadings on a ground, recovery, or defense, and it comes into evidence without objection, and then it goes to the jury without objection, you've impliedly consented to trying that ground, despite the lack of pleadings. Would be better to just say party has waived right to object to evidence being outside pleadings. Occurs at different times for jury vs. bench trials

Rule 45 of the Texas Rules of Civil Procedure requires that pleadings give fair notice of the claim asserted. The purpose of the fair notice requirement is to provide the opposing party with enough information to enable him to prepare a defense. A petition is sufficient if a cause of action may be

reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged.

Required disclosures are part of effort to

reduce cost of litigation, open courthouse back to smaller claims - can't fight over these things anymore, so it is cheaper. Limits on depo time, etc.

the purpose of compelling counterclaims is to

reduce the volume of litigation and promote the just, speedy, and inexpensive determination of controversies by barring relitigation of the same set of facts Harsh, but balanced out by public policy of judicial efficiency

If a party files in the wrong court, they have a certain period of time allowed to

refile and limitations will be tolled. 60 days.

Unless a non-suit otherwise specifies, it is without prejudice to

refile the same suit subject to the statute of limitations.

SUMMARY JUDGMENTS (Rule 166a) (g) *When Affidavits Are Unavailable*. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may

refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Rejection of Offer of Settlement An offer that is not withdrawn or timely accepted is

rejected.

Release of original tortfeasor did not automatically

release the subsequent tortfeasors as well. A release operates in favor of parties named in the release or otherwise specifically identified in the release.

Only if there is no probative evidence that venue was proper in either the county or suit or in the county to which transfer was sought by the D should the appellate court

remand the case to the TCt to conduct futher proceedings on the issue of venue. This is the one instance where remand cannot be avoided.

The function of a *supplemental pleading* is to

reply to a preceding pleading of an opponent. (Rule 69) Rationale - it is too hard to replead everything. Today, there's not a lot of supplemental pleadings, because you can just copy and paste everything and create a new amended pleading with whatever new stuff you want to add. Carlson: I just did amended pleadings for convenience. Just wanted it all in one document.

Civil Rights Act of 1964 and ADA and other discrimination lawsuit presuit requirements:

require the exhaustion of Title VII's administrative remedies as jurisdictional prerequisites to suit. TX Commission on Human Rights Act requires claimant to exhaust comparable administrative remedies before the Texas Workforce Commission before pursuing private right of action. Filing a complaint with the EEOC or TX Commission on Civil Rights within 180 days after the date of the alleged unlawful employment practice occurred is mandatory and jurisdictional. Suit must be filed within 60 days after receipt of a right to sue notice from commission. Another statute provides absolute outer limit of 2 years from which the complaint was filed for filing a civil action in court. TX Whistleblower Act - before suit can be filed under this act, an employee must at least invoke the employer's grievance procedures within 90 days after alleged violation occurred. If final decision is not rendered within 60 days, employee may either exhaust procedures or bring suit. Other statutes have even more elaborate prefiling or prelitigation requirements designed to facilitate the resolution of particular kinds of disputes and screen out certain claims because they are unmeritorious.

Special Prayer:

required when the relief sought is equitable/non-monetary, e.g., injunction, rescission, specific performance, etc. Pleader must take care that the special prayer is not inconsistent with the relief sought in the general prayer, in the sense that the specific pleading can nullify the effect of the more general one.

It is NOT proper to sever out transactionally related claims, required by ____ to be tried together.

res judicata If you don't, the judgment of one claim will be res judicata to a later suit on the related claim.

Generally do not have to supplement oral depos However, there is one instance where there is an obligation to supplement:

retained experts whose opinions have materially changed since they gave their deposition testimony. Must supplement and reveal to the other side these changes, if material. (Minor changes don't need to disclose - but better to err on side of disclosure)

RFA Response: must (1) admit or (2) deny or (3) state unable to admit/deny explaining why. If you wrongfully deny something, but they have to prove it at trial, they can move for

sanctions since you should have admitted it. Get the costs of proving it If lack of information or knowledge is the reason the party is unable to admit/deny, the party must also state a reasonable inquiry was made but the information known or easily obtainable is insufficient to enable the responding party to admit/deny.

The primary policy behind discovery is to seek truth so that disputes may be decided by facts that are revealed rather than concealed. The policy behind the consulting expert privilege is to encourage parties to

seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts and diligence. But the protection afforded by the consulting expert privilege is intended to be only "a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects" of discovery.

When an entity rather than a person is the deponent, each person designated by an organization under Rule 199.2(b)(1) is a

separate witness

Since the TPD is just coming into the lawsuit, it is necessary for the D (TPP) to make sure that the TPD is

served with process under due process principles, because the the D, as the TPP, has the job of a P in promptly making sure that the TPD gets served with citation and petition. The petition filed by a D against a TPD, is known as a "Third Party Petition"; impleading the TPD into the lawsuit.

More often than not, the party moving for summary judgment, "the movant," will support the motion with affidavits. This is done because the affidavit will

set forth facts in support of the motion, which, if not controverted, will establish the movant's right to summary judgment as a matter of law.

Affirmative defenses -

sets up an independent ground defeating the P's recovery. I.e. one that does not operate by denying elements of the claim. Must be alleged affirmatively, as well as proved by the D. A general denial is ineffective to raise them.

Impleader of persons who have settled with the P to obtain contribution is not permitted, because

settling tortfeasors have no liability for contribution. 3P Practice under TRCP: Derivative Claims vs.

Purpose of work product doctrine:

shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area in which the lawyer can analyze and prepare the case.

The rule in Texas is that the petition must adequately allege a cause of action before it can support a default judgment. The rules authorize the taking of a judgment by default. In order to support such a judgment, it is essential that the petition

show a good cause of action upon which a default judgment can be entered, and the parties seeking such judgment must comply with the requirements of the rules regarding same. Tex. R. Civ. P. 90 expressly excepts default judgments from its operation. Rule 45 provides in part that pleadings shall: consist of a statement in plain and concise language of the plaintiff's cause of action . That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole. Rule 47 provides in part: A pleading which sets forth a claim for relief shall contain: (a) A short statement of the cause of action sufficient to give fair notice of the claim involved, and (b) A demand for judgment for the relief to which the party deems himself entitled The declaration, complaint, or petition must show the existence of a legal duty on the part of the defendant to exercise care as to the person or property injured, at the time and place of the injury; it must allege facts showing a duty owing by defendant to the person injured to do or not to do the thing complained of as the proximate cause of the injury. It is insufficient to allege merely that the defendant negligently performed or failed to perform certain acts, whereby the injury was caused without an allegation showing the defendant's duty in the matter. A mere general allegation of the existence of such duty without a statement of facts from which the duty arises is insufficient as being merely a statement of a legal conclusion

The return must be signed and filed with the court. If signed by someone other than a sheriff, constable, or clerk of the court, the return must be

signed under penalty of perjury.

An expert's deposition, like any other deposition, is limited to

six hours unless the parties agree to, or the court orders, additional time

A reasonable time should be allowed a party desiring to amend to conform to the ruling upon the special exceptions; but this is a matter within the

sound discretion of the court not to be overthrown except for an abuse of discretion.

DUE ORDER OF PLEADINGS AND VENUE:

special appearance first (but if you are representing a Texan, not relevant), then venue next. If you don't bring venue first, then you waive your right to complain about venue. Why do we have due order of pleadings? -We want the parties to tell the parties out of the gate whether or not the court should hear the case. -Again, you don't get to "test drive" Also has to be decided in due order as well. -It is the job of the D to make sure that everything is timely filed and that the motion to transfer venue is heard.

Special Exception And Due Order Of Pleading Any time you think another party's pleadings are defective, you can file a

special exception. A party wishing to challenge pleadings without risking the imposition of an award of costs and attorney's fees under a Rule 91a motion to dismiss may do so by special exception pursuant to TRCP 90.

If a party wants to plead that a condition precedent hasn't been fulfilled, must

specifically plead.

Defects in the form of affidavits or attachments will not be grounds for reversal unless

specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

The last sentence of Tex. R. Civ. P. 166a(f) provides that defects in the form of affidavits or attachments will not be grounds for reversal unless

specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

Procedures To Utilize When Seeking Or Resisting Production Of Electronic Disco The party seeking to discover electronic information must make a specific request for that information and

specify the form of production. Tex. R. Civ. P. 196.4. --That's true if it's ESI that falls outside required disclosures --If it's required disclosures, it is not clear the format. Discuss with client. Must be in a readable manner so it can be searchable.

Objections must be asserted in writing and

state specifically the legal/factual basis for the objection and the extent to which the party is refusing to comply with the request. Objections must be made within the time to respond or they are waived. (Chapter 10) Untimely objections are waived as are objections obscured by "numerous unfounded objections" TRCP 193.2(e) Only put forth objections you really think have validity. When you take oral depos, you have to object orally; but if disco is in writing, you need to object in writing.

Due process rights are implicated when the court summarily enters judgment and Rule 166a that governs motions for summary judgment in Texas must be

strictly complied with. Grounds not set out in a brief attached to and filed with the motion will not be considered.

If P want to move for default jx, P must

strictly comply with service of process rules Strict compliance with substituted service of process requirements is required: E.g., Substituted service requires a supporting affidavit; if service is on an entity, the return must reflect that service was on the entity by serving an appropriate person When a default judgment is entered in violation of constitutional notice requirements, the judgment may be collaterally attacked.

Responsible third parties (RTP): Misleading name because they are not responsible and they are not parties! In 2003, HB4 was passed (tort reform) and it created this concept of being able to designate RTPs Ch33 of the CPRC allows a D to designate a RTP in tort and DTPA claims for purposes of

submitting their percentage of responsibility to the factfinder and determining the appropriate judgment.

Any officer authorized by law to take depositions can also issue

subpoenas as may counsel, or any non-party who is > 18 yrs. Typically you use the court reporter. No subpoena necessary for party, persons retained, employed by party or subject to control of party.

If a witness's testimony is excluded as a sanction, it is not excluded in a

subsequent suit (i.e., the sanction doesn't survive non-suit by P).

Rule 51(b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion (EX: indemnity), the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. *This rule shall not be applied in tort cases so as to permit the joinder of a liability or indemnity insurance company, unless*

such company is by statute or contract directly liable to the person injured or damaged.

How does TRCP 51(b) limit joinder under TRCP 40? In Texas, and in most states, the liability insurance company, in absence of a statute or an express provision of the insurance contract, cannot be ...

sued directly in a tort suit with or without the joinder of the insured. That rule is expressed in Tex. R. Civ. P. 51(b) and other rules. Rule 51(b) prohibits the joinder of a liability or indemnity insurance company in a tort case unless the insurance company is . . . by statute or contract directly liable to the person injured or damaged Rule 51(b) should be read in conjunction with Rule 40. Rule 40 limits the joinder of defendants to situations in which the right to relief asserted against the defendants arises out of the same transaction or occurrence or series of occurrences and if any question of law or fact common to all of them will arise in the action

PJ Procedural due process issues -

sufficient notice/opportunity to be heard?

General Jx-

suing nonresident D because of an act that did NOT take place in TX (took place outside of TX), but the D has so many TX contacts that they are "essentially at home" in TX. Nonresident Must have volume and quality of contacts so that D is like a resident. Of course, all TX residents are subject to being in sued in Texas because they are TX residents. Some state long arm statutes only allow specific jx; but TX allows general jx. States can limit because a state can confer MORE due process But states cannot confer LESS due process.

Due Order: Presenting Other Pleas or Motions Counsel must be very careful before

taking other actions that could be construed as being inconsistent with the venue challenge, as Carlile (filed a motion for new trial) and other cases demonstrate. EX: in Nacol (1977) - the D was held to have waived venue for presenting a motion AFTER the venue challenge.

TXSCT following O'Connor in Asahi, has held that a nonresident manufacturer is subject to specific jx in TX when it

targets TX as a marketplace, even though the manufacturer uses a distributor-intermediary to serve the TX market But in CMMC, the TXSC seems to reject advertising in magazines with national circulation as sufficient evidence that the D has purposefully done business with TX, even if the magazine solicit biz from TX residents among others.

Multiple plaintiffs & venue When venue is proper to one D, it is proper to all Ds, but

that is NOT TRUE with Ps.

Serving Agent Not Enough to Provide Jx Just because you've successfully served a D with process doesn't mean

that it is fair to extend the state's PJ over the nonresident D. You've satisfied the procedural side of due process through service, but the nonresident can still contest via a special appearance arguing there are not sufficient contacts to warrant PJ over them

The same rule applies for counter-claims and cross-claims. No new citation is required if ...

that party has already entered an appearance. As long as party has made an appearance in the case already, don't need an additional citation. Just party to party (lawyer to lawyer) service of counterclaim or cross-claim: -no citation required. -If someone is represented by counsel, you must make service on counsel -You are required as an attorney to have an email on file with the state bar.

Sufficiency of No Evidence Motions The motion must be specific in challenging the evidentiary support for an element of a claim or defense; conclusory motions or general no-evidence challenges are not appropriate. The rule requires a motion to be specific in alleging a lack of evidence on an essential element of the P's COA, but it does NOT require

that the motion specifically attack the evidentiary components that may prove an element of the COA. The specificity requirement is designed to avoid conclusory no-evidence challenges to an opponent's COA. The rule requires a specific challenge to the evidentiary support for an element of a claim or defense. EX: Causation is a specific element of tort liability.

A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things.., that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession, custody, or control. "Possession, custody, or control of an item means

that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item." Under Texas Rule of Civil Procedure 196.1, a party may request that another party to the pending action produce a document or tangible thing. Texas Rule of. Civil Procedure 205 governs discovery from nonparties, including a request for production of a document or tangible thing.

The movant on a traditional MSJ has the burden of proof to establish

that there are no genuine issues of a material fact and is entitled to judgment as a matter of law. Thus, a plaintiff moving for summary judgment must establish by summary judgment proof each element of the cause of action (except damages). A defendant moving for summary judgment assumes the burden of showing as a matter of law, plaintiff has no cause of action OR establishing by summary judgment proof all elements of his affirmative defense.

Putting Fee Shifting in Play-The Defendant's Declaration While the offer of settlement statute is a "two way" provision that allows both Plaintiffs and Defendants to shift litigation costs when an offer is "unreasonably" rejected, before the offer of settlement rule is operative a "defendant" must file a written declaration that

the "settlement procedure [fee shifting] allowed by this chapter is available in the action." In a multi-defendant case, the declaration by one defendant does not inure to the benefit of the other: "If there is more than one defendant, the settlement procedure allowed by this chapter is available only in relation to the defendant that filed the declaration and to the parties that make or receive offers of settlement in relation to that defendant." *Each D that wants to make a fee shifting offer has to file their own declaration that it is under Rule 167*

The date of rejection is important because if fee shifting is warranted, the date of rejection is

the "starting" date for computing the fees to be shifted. Rejection date is Day 0 for computing post-litigation expenses that may be shifted if the party offeree gets a judgment that is 20% less favorable than the offer

PLEADING AMOUNT IN CONTROVERSY Texas Rule of Civil Procedure 47: in a claim for unliquidated damages, the petition need only contain a statement that ...

the AIC is "within the jurisdictional limits of the court." NOTE: Most cases deal with unliquidated damages (because liquidate damages are those specifically stated by contract or those that can be calculated looking at the face on an instrument.) *Upon special exception, the court shall require the pleader to amend so as to specify the maximum amount claimed.* -The specified amount is not a cap on recovery if the evidence supports more, the P can do things to get that higher amount in the judgment.

P gets initial choice of venue, if it's not a proper choice of venue,

the D can move for transfer of venue.

In a jury trial, waiver occurs when

the D fails to object to the TCt's submission of issues to the jury. If such an objection is made ("outside the pleadings"), the P has the option of asking the court for a trial amendment to cure the variance problem. The D should argue that allowing the amendment would lead to unfair prejudice as the D didn't have fair notice from the pleadings to prepare for trial.

Typically, an RTP is not in the courtroom; an "empty chair." If an RTP went to a lawyer, the lawyer should just tell them they aren't responsible; however,

the P has the option after an RTP is designated to amend their pleadings and name the the RTP as a co-D.

An amended motion filed in accordance with Rule 91a.5(b) restarts

the Rule 91a.3 time periods. Court will not consider amendment not filed at least 3 days before hearing.

When service is properly made on the SOS, a Non-resident's time to answer begins when

the SOS is served, NOT when the defendant receives the certified mailing. (Service on the SOS is service on the D) Accordingly, the return will show that it was served on the SOS, the date/hour/etc. If a default judgment is to be entered, the default judgment record must include 1. Proof of service in the form of a certificate from the secretary of state showing receipt of process on a particular date; AND 2.The forwarding to the nonresident defendant at its last known address

But if a litigant's summary judgment proof is substantively defective,

the TCT is not required to provide an opportunity to correct the defect.

Sequestration -

the action of taking legal possession of assets until a debt has been paid or other claims have been met.

Agreements of Counsel to Modify Discovery Procedures TRCP 191.1 Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to disco may be modified in any suit by

the agreement of the parties or by court order for good cause. Broad power but not unbounded. Parties can agree to enlarge or shorten depo time and to change the manner in which a deposition is conducted, but can't agree to abuse a W. Can have a standing agreement that you won't have depo on anything less than 10 days notice (rules say "reasonable notice.") Most good lawyers try to work out timing to make sure Ws are available.

A cause of action has no basis in LAW if

the allegations, even if true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought

When the summary judgment record on appeal is silent as to the trial court allowance of a pleading amendment within seven days of the hearing, it is presumed

the amended pleading was considered by the court and may raise a fact issue precluding summary judgment. Presumption cuts the other way now; presume that is WAS considered.

It would seem that discovery would be timely once..

the amount of the monetary award is determined, as that award will determine whether fees are to be shifted.

NOTE 1 - IMPORTANT!: A final judgment has res judicata effect despite the pendency of an appeal unless

the appeal is by trial de novo. Trial de novo only occurs when there's an appeal from JP to county court. All other appeals are NOT trials de novo; they go up with a record. So, even though you're appealing a case, that final judgment can serve as a basis for res judicata/collateral estoppel.

Defendant moving to transfer venue under a mandatory exception only needs to establish

the applicability of the mandatory exception. If a mandatory provision applies, venue is not proper elsewhere, assuming that the D challenges the P's choice of venue by a proper motion to transfer venue based on the mandatory provision.

Rule 244 requires _____ for the absent defendant IF the defendant was served by publication.

the appointment of an attorney ad litem

TRCP 13 - signature of attorney or party constitutes a certificate that

the attorney has read the pleading, motion, or other paper and that, to the best of the lawyer's knowledge, information, and belief formed after reasonable inquiry, the instrument is neither (1) groundless and brought in bad faith, nor (2) groundless and brought for the purpose of harassment

If the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that

the benefits of production outweigh the burdens imposed, again subject to Rule 192.4's discovery limitations.

Conditions precedent: If party alleges that all conditions precedent have been met and they should recover,...

the burden is on opposing party to plead the specific condition precedents it maintains have not been met (TRCP 54)

The general statute allows for serving the TX SOS office in lieu of service on D. Important because

the caselaw states that service on the SOS is service on the D even though the SOS has the burden to forward the papers on to the D. The time for the D to answer runs from the moment the P serves the TX SOS, NOT from the time that the nonresident D receives service from TXSOS SOS is required to file a Whitney certificate stating that the SOS has complied with it's obligation to forward service to D This Whitney certificate is valuable because you can't get a judgment in TX unless you have valid service of process.

There is no misjoinder of claims between a single plaintiff and defendant, notwithstanding the claims are unrelated, so long as

the claims are within the court's subject matter jurisdiction. They don't have to be transactionally related. Could assert an assault and a DTPA that have nothing to do with each other. The idea is that no one else is harmed by the fact that unrelated claims are going to be litigated together

Sanctions Under the Court's Inherent Power TX Courts have the inherent power to sanction litigants or attorneys whose abuse conduct affects

the core functions of the judiciary even when the conduct is not specifically proscribed by rule or statute.

A final judgment has res judicata effect despite the pendency of an appeal, UNLESS

the court is reviewing the case de novo

"Conditionally" issue the writ of mandamus -

the court issues an opinion but doesn't actually serve a writ on the judge unless the judge refuses.

A Rule 167 offer of settlement is served by the offeror upon the offeree. It is not filed with...

the court.

The way you count days in TX, is ...

the day you file something is day ZERO, the next day is day 1. Then count through weekends and holidays, and then land on your due date that is not a Saturday, Sunday, or legal holiday (make sure it is a holiday recognized by TX). So for a venue motion, day you file is day Zero, count 45 days, then hearing can be any time after that.

When a defendant fails to file a sworn denial, a court of appeals is limited in what it can consider to set aside a summary judgment on a sworn account because

the defendant will not be permitted to dispute the plaintiff's claim. However, it is within the province of the court of appeals to determine, as a matter of law, whether the pleadings are sufficient on their face to constitute a sworn account.

Attorney's fees - included in AIM?

the definition of a TCt's monetary jx may exclude attorney's fees from the AIC. However, if they are recoverable in the case, *attorney's fees are normally part of the AIC* regardless of whether or not the right to the fees is fixed in a contract or arises by statute.

Use of Deposition at Trial in Same Case Deposition testimony may be proffered at trial even if

the deponent is available to testify. Can always put on depo testimony at trial, subject to evidence objections. Scope of discovery is potentially broader than the scope of admissibility at trial (example hearsay not a basis to object to discovery but it is objectionable at trial).

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if

the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

Less than a scintilla of evidence exists when

the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.

A material fact issue is *genuine* if

the evidence is such that a reasonable jury could find the fact in favor of the non-moving party. If the evidence simply shows that some metaphysical doubt as to the fact exists, or if the evidence is not significantly probative, the material fact issue is not "genuine."

More than a scintilla of evidence exists when

the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.

After International Shoe, states were left with the question of "how far do we want to open our door to nonresidents" Adopted "long arm statutes" which define...

the extent to which courthouse doors are open to nonresident defendants; and the procedures regarding notice/opportunity to be heard (service of process)

The consulting expert exemption protects the identity, mental impressions and opinions of consulting-only experts; but not

the facts. The rule we announce today, however, "should not extend to consulting [only] experts . . . whose only source of factual information was the consultation." In other words, persons who gain factual information by virtue of their involvement relating to the incident or transaction giving rise to the litigation do not qualify as consulting-only experts because the consultation is not their only source of information.

Good cause for withdrawing deemed admissions is established by showing

the failure involved was an accident or mistake, not intentional or the result of conscious indifference.

Affidavit Not Based on Personal Knowledge of Affiant: most court opinions have held that

the failure to state that the affiant has personal knowledge of he facts stated in the affidavit is a defect of form that requires an objection to preserve the complaint.

Amended pleadings -

the function is to add something to or withdraw something from what had previously pleaded to correct what had been incorrectly stated by the party making the amendment, or to plead new matter than constitutes an additional claim or defense permissible to the action. An amended pleading supersedes its predecessor.

Texas recognizes a qualified privilege to not disclose trade secrets unless the requesting party establishes that

the information is necessary for a fair adjudication of its claim or defense. The court should conduct a balancing test in which it must weigh the right the holder of the trade secret has in that property right against whether there can be a fair adjudication of the matter without disclosure of the trade secret to determine if trade secret must be disclosed. Movant must show that they need to know the trade secret to establish element(s) of claim.

Rule 38 specifically limits the joinder of liability or indemnity insurers in tort cases, unless

the insurer is, by statute or contract, liable to the person injured or damaged.

Live pleading -

the last plead answer, petition and any supplemental pleadings Any superseded pleading is KILLED. Can't incorporate by reference.

When a case includes multiple claims, some covered by mandatory and some covered by permissive venue provisions, all of the claims arising from the same transaction or occurrence must be brought in

the mandatory venue. Mandatory venue will control for all claims

The prima facie standard for privileged documents requires only

the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. The documents themselves may constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege There is no presumption that documents are privileged, and there is no presumption that a party listed on the privilege log is an authorized person under the rule governing the privilege

A movant may urge a preliminary motion without waiving venue objections, provided

the motion does not involve a hearing on the merits. filing a motion for new trial can be an action inconsistent with an intent to continue to assert an objection to improper venue, thus waiving the venue motion by invoking the authority of the court

Witnesses: A party may obtain discovery of:

the name, address, and telephone number of any person who is expected to be called to testify at trial (including rebuttal/impeachment witnesses IF anticipated)

In determining whether a witness's affidavit creates a sham fact issue, courts examine

the nature and extent of the differences of the facts asserted in the deposition and the affidavit. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment, and not a vitiation of the later filed document. If, on the other hand, the subsequent affidavit clearly contradicts the witness's earlier testimony involving the suit's material points, without explanation, the affidavit must be disregarded and will not defeat the motion for summary judgment. In making this determination, courts consider the allegations in the petition, the deposition, and the affidavit.

Tex. R. Civ. P. 185 provides that when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless

the party resisting the claim files a written denial under oath. Also, a plaintiff's suit on a sworn account must "reveal" any offsets made to the account. Tex. R. Civ. P. 185. The account must show with reasonable certainty the name, date, and charge for each item, and provide specifics or details as to how the figures were arrived at. Also, a suit on a sworn account must be accompanied by the affidavit of the plaintiff, his agent, or his attorney taken before an officer authorized to administer oaths. Tex. R. Civ. P. 185. The affidavit must state the following: (1) the claim is within the knowledge of the affiant; (2) the claim is just and true; (3) the account is due; and (4) all just and lawful offsets, payments, and credits have been allowed. Tex. R. Civ. P. 185. If there is a deficiency in the plaintiff's sworn account, the account will not constitute prima facie evidence of the debt.

Third party defendant =

the person brought into the suit by the third party plaintiff filing a third party petition and having it served (along with citation) on the third party D. EX: P sues D, D wants to bring in X. Theoretically, D can only bring in X if they are saying that X is responsible for all or part of the P's claim against D. As opposed to bringing in X because X is responsible to the D. If the D tries to bring in X because X is directly responsible to the D, but NOT for all or part of the P's claim against the D, it is improper, and the P should file a plea in abatement and seek a severance. Remember, improper joinder can be waived as long as the court has SMJ.

Who has the BOP on the affirmative defense?

the pleader of the affirmative defense

The litigation expenses to be shifted and imposed on the party who "unreasonably" rejected an offer (even though they may win the case), include

the post- rejection costs, post-rejection depos, reasonable attorney's fees, and fees of up to two expert witnesses retained.

Personal Jurisdiction is

the power of the court to adjudicate as to the parties named in the litigation A state may compel a person to appear in court in its jx only if the D or his conduct has sufficient contact with the state.

Hearsay: form or substance?

the prohibition against hearsay in affidavits is not absolute. Under TRE 802, inadmissible evidence admitted without objection is not denied probative value merely because it is hearsay. In the absence of an objection hearsay in an affidavit is competent summary judgment proof. Some court of appeals cases hold that an objection that an affidavit contains hearsay is an objection to the form of the affidavit and must be made in the TCT.

If a party requests net worth discovery, the court shall presume that

the requesting party has had adequate time for discovery allowing the court to consider (no evidence) summary judgment sought by the resisting party on the requesting party's claim for exemplary damages. CPRC 41.0115

A no-evidence summary judgment is improperly granted if

the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i).

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless

the state consents to suit The Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 - .109, provides a limited waiver of sovereign immunity Sovereign immunity includes two distinct principles, immunity from suit and immunity from liablity. Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. The Tort Claims Act creates a unique statutory scheme in which the two immunities are co-extensive:

Late filed Summary Judgment Proof If the movant late files summary judgment evidence and no order appears in the record granting leave to file that evidence, an appellate court will presume

the trial court did not consider the evidence regardless of whether the non-movant failed to object to the evidence or objected and failed to obtain a ruling. Tex. R. Civ. P. 166a(c). You've got to get the court to rule on the record if you are filing late evidence or the appellate court will NOT review it. Won't be considered.

Timing of the Trial Court's Decision on SMJ - the issue of whether a determination of SMJ can be made at a preliminary hearing or should await a fuller development of the merits of the case is left to

the trial court's discretion. In exercising this discretion, the TCt must be mindful of the policy that this determination be made as soon as practicable. When the SMJ challenge implicates the merits of the P's COA and the plea to the jx includes evidence, the TCt reviews the relevant evidence to determine if a fact issue exists. If so, the TCt cannot grant the plea to the jx and the fact issue will be resolved by the fact finder. In a plea to the jx, a D must produce evidence that the TCt lacks jx before the P has the burden to present evidence establishing a fact question.

EX: If P sends the D RFA and they admit everything required to meet P's elements, the P moves for MSJ. No full blown evidentiary trial is required as

there are no material facts to be determined. I.E. the court should summarily enter judgment in the movant's favor. Often used by Defendants to assert affirmative defenses. MSJs are very useful and can result in avoiding an expensive trial when the plaintiff has no valid claim or the defendant has no defenses. A summary judgment may dispose of the whole case or may be partial disposing of some, but not all issues in the case.

If attachment is wrongful,

there are remedies available to the D. If none of the grounds stated in the P's affidavit for issuance of the writ is true, then the attachment is wrongful. *This is true notwithstanding the P's good faith.* -The party whose property was wrongfully attached must prove interference with his property rights to be entitled to more than nominal damages. -When, however the attachment creditor has acted maliciously and without PC, exemplary damages may be available.

Joinder in a case involving only one P and one D,

there can be no misjoinder of claims, because the claims need not arise from the same T/O When you have one P and one D, they don't have to be transactionally related. But when you have multiple Ds or multiple Ps, then the claims have to arise out of the same T/O.

SUMMARY JUDGMENTS (Rule 166a)(i) *No-Evidence Motion*. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that

there is no evidence of one or more essential elements of a claim or affirmative defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

You can only recover attorneys fees in Texas if

there's a statutory basis. There's no common law attorney's fees in TX. TXSC just made it a lot more difficult to prove up attorney's fees. Need to keep awesome records.

No requirement that the TCt hold a hearing on a special exception, because

there's nothing to say except what is in the pleadings relating to special exception. So court can take under "written submission" - means that the court decides in chambers without hearing based on the filed papers because it's a question of law on which there is no evidence.

Production of Documents or Tangible Things at Oral Deposition. A person must produce documents as

they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. Not usually advised to se up limited deposition hours on this

Court CAN impose sanctions sua sponte;

they have a duty protect the judicial process. Without a pre-trial ruling on discovery dispute existing before the trial, a party has waived any claim for sanctions based on that conduct.

D, when they implead a third party defendant (TPD, "X" in example above), D becomes known as the

third party plaintiff (TPP)

Litigation Expenses Shifted The litigation costs that may be recovered by the offering party are limited to

those litigation costs "actually made and the obligations actually incurred-directly in relation to the claims covered by a settlement under this rule" by the offering party after the date the rejecting party rejected the settlement offer and run "from the time the offer was rejected to the time of judgment."

Rule 40: "Same transactions or occurrence or series of transactions or occurrences - terms does not require identity of

time and place, but rather a situation in which a significant overlap in evidence will create efficiencies at trial, or one in which there is a logical relationship among the defendants.

Later-added parties who are barred from having a MTTV considered under TEX. R. CIV. P. 87(5) may preserve error by

timely filing a MTTV so it can be raised on appeal. Bizarre rule. You have to raise a MTTV anyway, put up your paper proof, but you don't get a hearing. But at least you've preserved your complaint that venue was improper.

Pre-Suit and Post-Judgment Discovery Purpose of deposition before suit

to perpetuate or obtain testimony or investigate a potential claim. TRCP 202 EX: will contest, aging person who wants to preserve testimony about their will, lucidity, no duress, etc. Can uses TRCP 202 depo. Court has discretion to allow. Courts are hesitant to allow if you are trying to get around depo hour limits. (202 depos don't count against that limit). Court is very aware of this tactic and will decide with this in mind.

Plaintiff's petition Primary function:

to provide the defendant/s "a short statement of the cause of action sufficient to give fair notice of the claim involved" & the relief requested Substantive legal theory (EX: negligence) Sufficient facts to give fair notice of the claim. Must plead with enough particularity enough so that D knows how you claim the COA/injury occurred. Model original petition starting pg 355

Can't join the insurance company in a

tort case against the insured.

There are three types of summary judgments:

traditional, hybrid, & no evidence. Until 2000, there was only a traditional; but now we have "no evidence" too. Carlson: don't do hybrid, it is a hot mess.

Challenging venue Plaintiff has choice to file case in any county of "proper" venue. Proper venue is the county where venue is mandatory, if none, than county where venue is permissive. CPRC 15.001(b). Defendant challenges this choice with a motion to

transfer venue A MTTV on the basis that venue is improper must be made at the earliest opportunity.

In reviewing a summary judgment, an appellate court must take all evidence favorable to the nonmovant as

true and grant every reasonable inference in favor of the nonmoving party.

Original jx -

trying the case; hearing evidence

Note 7: If you claim a privilege during discovery, you can't

turn around at trial, waive the privilege, and then produce it to your advantage.

The defendant who is served by publication has up to ____ from the date of default judgment to move for new trial. (TRCP 329)

two years If a D is served by publication (newspaper, public website) then that type of a D who doesn't file an Answer will get an attorney ad litem present. So not a true default judgment present to represent D. Why? Because there's a really good chance that D that was served by publication doesn't know about the case.

TRADITIONAL SETTLEMENT AGREEMENTS (Not made under Rule 167) This is how MOST settlements happen Settlement offers may be made without invoking the fee shifting potential incorporated in Rule 167. A settlement agreement is a

type of contract and the law of contracts including principles of offer, acceptance, and consideration are applicable. Frequently settlement agreements contain releases, releasing designated persons from any liability as part of the settlement.

Even if amended pleading filed at a time when leave of court is not required, other parties may still object if the new matter constitutes an

unfair "surprise." EX: discovery window closed, then other side tries to add a COA. Probably see a motion to strike. Court are hostile to this because discovery has likely already been completed. A hearing will be held on whether new pleadings amount to "unfair surprise."

The Texas Supreme Court promulgated Rule 167 of the Texas Rules of Civil Procedure to implement this fee shifting mechanism. It applies to Suits Filed After January 1, 2004 Involving *Monetary Claims.* EX: P was offered $135k to settle, and the P went to trial and only got $100k. That's less favorable by more than 20%. So the P is going to have to pay the D's POST-REJECTION litigation expenses, because they are deemed to have

unreasonably rejected the offer. include post-rejection costs, reasonable attorney's fees, and fees of up to two expert witnesses retained, depositions

Venue Convenience rulings are completely

unreviewable on appeal (that's what the statute says) If motion based on improper venue AND convenience, but the court doesn't state the basis for its decision, then it is assumed the court decided venue on convenience grounds (unreviewable) Garza v. Garcia (Tex. 2004) *Is that constitutional?* Open courts provision states that the courts shall be open. Can you really cut off the right of appellate review? *TXSC HELD*: Yes. This is just a venue ruling, not a trial on the merits, so it's okay.

Appellate review of venue, probative evidence? Deference given to the trial court: If the record contains any probative evidence that venue was proper, the appellate court must

uphold the trial court's venue determination.

Special exceptions:

used to complain that the opponent's pleading are defective, for ex. Vague, ambiguous, fail to allege all elements of a ground, etc. opposing party may amend their pleadings to be more specific, or refuse to amend and test the pleading by waiting for a ruling If the court rules the pleading is too vague, then it may dismiss that ground if the party doesn't amend remaining allegations fail to state a cause of action Leave to amend: If there is no reasonable probability that further amendment would disclose facts legally sufficient to sustain a cause of action, the trial court may refuse further leave to amend

If a reviewing court concludes that a trial court's discovery order is overbroad, the trial court has abused its discretion, and the order must be

vacated if there is no adequate remedy on appeal.

A defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a

verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges. Tex. R. Civ. P. 93(10), 185. A defendant's sworn denial must be written and verified by an affidavit. Tex. R. Civ. P. 185, 93(10). However, a defendant is not required to file a sworn denial if the plaintiff's suit on a sworn account was not properly pleaded.

If there's no valid service of process, generally any judgment would be ...

void against the D because of the lack of due process.

TCt cannot transfer venue on its own motion; has to be on motion of a party. If it does so, that's a

void order.

The due order of pleading rules remain in effect for 91a, but a party does not

waive a special appearance or a motion to transfer venue by filing and obtaining a ruling on a 91a motion to dismiss. This is an exception to due order of rulings: You still file special appearance first, the motion to transfer venue, then 91a. But you can get a ruling on 91a FIRST without waiving special appearance or MTTV In other words, a motion for dismissal of baseless COAs made and determined under TRCP 91a is NOT a general appearance and does NOT waive a subsequent motion to transfer venue.

TRCP 192.6 - Protective Orders (a) Motion. A person from whom discovery is sought (party or non-party), and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion (for protective order) does not

waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.

If a movant objecting to improper venue does not file a written motion to transfer prior to or concurrently with any other plea, pleading or motion, the objection is

waived.

if nobody complains about improper joinder, it is

waived.

Waiver A party filing a venue motion has the burden to diligently request a setting on the motion and obtain a ruling within a reasonable time or risk

waiver of their venue claim.

Note 2. Notwithstanding a prior demand for a jury trial, a party who commits a post-answer default by failing to appear at trial ...

waives the right to a jury trial.

Scope of Waiver A D may subpoena witnesses and use pretrial discovery devices without

waiving a venue challenge. Conducting Discovery does NOT result in a waiver of a MTTV

Lay witnesses can testify about

what they personally perceived. But if beyond the understanding of the average lay person, can't testify. EX: standard of care during heart surgery. Need an expert.

Certificate of Service -

what you fill out to certify to the court that you served the other party the pleading electronically. Required to give an email address for service if you are an attorney in TX.

Dismissals for want of prosecution (DWOP) -

when P is not proceeding diligently enough in the case.

Nonsuits -

when P wants to quit lawsuit

Default judgment -

when a D fails to file an Answer in a timely manner and the P moves for a default judgment),requirements

AIM & Unmatured Claims -

when a court originally acquires jx, changes that arise merely from the passage of time do NOT divest the court of jx. These *passage of time* increases generally accrue as unmatured claims mature. Party is not required to bring unmatured claims into AIM. AIM is just a snapshot in time when you file the lawsuit asserted in good faith. *Purpose*: it avoids having to relitigate the AIM every time the parties appear in court. -EX: note payments that were not yet due at the time the suit was filed (say $15k in CCC), but are due by the time of trial, will justify a judgment in excess of the court's jx max (say, $25k). The trial court still maintains jx. *Also, court is NOT limited to awarding damages at their jx max.* Judgment entered should comport with the pleadings and evidence. EX: If two claims are brought to DCt with total AIM of $1000, but one claim settles leaving only $300 AIM, does the DCt still have jx (even tho its AIM minimum is $500)? Yes. Same reasoning. Decrease was due to events after case was filed. SMJ is not lost in this circumstance; it is within the ancillary jx of the court.

Opposing parties:

when one party seeks relief from the other. Any time you have a party seeking relief against your client, you must ask whether you have claims against that part in response, or you may lose them. (whether you are P or D, or they are P or D).

Default judgment -

when the D fails to answer

One exception to the general rule that a trial court cannot enter summary judgment based on pleadings alone:

when the face of the pleadings show that no COA exists. EX: Pleading states that there's an oral contract for goods over $500, and D has a moral responsibility. This is showing that there's no recovery as a matter of law. EX: DTPA claim that shows that the P is not a consumer. Can't recover as a matter of law.

An important difference, however, between a dismissal with prejudice and an agreed judgment, is that

when the latter is used the litigants have a judgment of the court, which if disobeyed, the trial court may enforce, including by an order of contempt. An agreed judgment is a public document and therefore the terms of the settlement as expressed in the judgment is available for public review.

Tort: venue is proper in county where the act that caused the injury occurred, NOT

where the consequences of the injury were suffered Example: Doctor treats Plaintiff in Grayson County, Plaintiff sues in Harris County claiming she suffered her damages in Harris County. Court: venue in Grayson Co. not Harris Co. It's where the bad treatment took place, NOT where you continued to suffer the ill effects of bad treatment

TEST whether a party or non-party for disco purposes:

whether the proposed deponent is subject to the party's control.

A central consideration in determining overbreadth is

whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information.

DISMISSAL FOR WANT OF PROSECUTION (Rules 165a, 329b) Another way a case may be disposed of without a trial is when a party seeking affirmative relief (generally the plaintiff), fails to diligently prosecute the suit so the trial court dismisses the case. DWOP docket. Unlike a default judgment, which is on the merits and res judicata, DWOP is

without prejudice to that party to refile, subject to the statute of limitations.

If they don't produce documents, the subpoena may be enforced via

writ of attachment Seize the person and bring them before the court for failure to comply with order of the court (subpoena). Commanded to appear, produce, or both.

Transfer of venue can also occur by

written consent of the parties; and if the court finds that an impartial trial cannot be had in the county

Withdrawal of Offer An offer may be withdrawn before it is accepted. Withdrawal is effective when

written notice of the withdrawal is served on the offeree. Once an unaccepted offer has been withdrawn, it cannot be accepted or be the basis for imposing litigation expenses under this rule.

Acceptance of Offer of Settlement Rule 167 provides, "An offer that has not been withdrawn can be accepted only by

written notice served on the offeror by the deadline stated in the offer. When an offer is accepted, the offeror or offeree may file the offer and acceptance and may move the court to enforce the settlement." The acceptance must substantially mirror the offer and must not materially change material terms.

Interrogatories:

written questions directed by one party to another, to be answered under oath Effective way to get basic background information not covered by disclosures. Only proper to direct to PARTIES in the litigation Can't use against a non-party

Request for Admissions-TRCP 198 RFA are

written requests that the other party admit the truth of a matter within the scope of discovery or admit genuineness of docs. Party to party, NOT to non-party.

COMPULSORY JOINDER OF PARTIES TRCP 39 -

you must bring these parties into the lawsuit because they're needed for just adjudication

Rule 165a provides in part, that a case may be dismissed for want of prosecution on the failure of a party seeking affirmative relief or his attorney to:

— Appear for any hearing or trial of which the party or his attorney had notice; or — The failure to request a hearing or take other action specified by the trial court within 15 days after the mailing of the court's intention to dismiss the case for want of prosecution. EX: court says "Dear P, I intend to DWOP your case unless you do X" — The failure to set the case for trial within the time periods provided by the Texas Supreme Court. -Not moving case along fast enough. -Look at deadlines below (18 months for jury trial, 12 months for civil)