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									Chapter 3 - The Subject Matter Jurisdiction of the Texas Trial Court

Definitions:

Original Jurisdiction – You can start the case in that Ct.

Exclusive Jurisdiction – Only that Ct. can handle that kind of case

           I.        An Overview of the Texas Trial Courts
                     A. Justice Courts - § 27.031
                              1. Amount in Controversy
                                     a) Original Lower Limit – 0
                                     b) Upper Limit - $5,000
                                     c) Exclusive – Less than $200
                              2. Justice Ct.s share concurrent original jurisdiction with county Ct.s in civil cases where amount in
                                  controversy is b/w $200 and $5,000.
                              3. Original jurisdiction over forcible entry and detainer cases. (jurisdiction exists regardless of value
                                  of land) – eviction is the most common example (does not raise a title issue – what you are
                                  seeking is possession)
                                     a) Special Subject Matter Jurisdiction
                              4. May issue writs of attachment, garnishment, and sequestration, but no authority to issue writs of
                                  mandamus or injunctions (§ 27.032)
                              5. Expressly denied suits on behalf of the state to recover penalties, forfeitures, and escheats, suits for
                                  divorce, suits to recover damages for slander or defamation of character, suits for trial of title of
                                  land and suits for the enforcement of liens on land - § 27.031(b)
                     B. Constitutional County Ct.s - § 26.042
                              1. The Texas Constitution provides that “The County Ct. jurisdiction as provided by law.” (Tex.
                                  Const. Art. 5, § 16).
                              2. The amount in controversy is $200.01 through $5000 (concurrent with Justice Ct.s).
                              3. Unless a cause is specifically assigned to another Ct. b/c of its subject matter, a constitutional Ct.
                                  has concurrent jurisdiction with justice Ct.s in civil cases and district Ct.s for $200 - $5,000
                              4. Has civil appellate jurisdiction over cases arising in justice Ct.s or small claims Ct. when the
                                  judgment rendered is >$20 (Review is by a trial de novo)
                                     a) Special SMJ – probate, juvenile, and appeals if more than $20
                              5. May issue writs of injunction, mandamus, cert., and all other writs
                              6. Many of these Ct.s are granted additional jurisdiction by statutory provisions which apply only to
                                  those Ct.s
                              7. Constitutional Ct.s have no jurisdiction in:
                                     a) A suit to recover damages for slander or defamation
                                     b) Suit for enforcing a lien on land
                                     c) Suit in behalf of the state for escheat
                                     d) Suit for Divorce
                                     e) Suit for forfeiture of a corporate charter
                                     f) Suit for trial for property values at $500 or more and levied on under a writ of execution,
                                         sequestration, or attachment
                                     g) An eminent domain case
                                     h) Suit to recover land

                     C. District Courts - § 24.007
                               1. The Primary Texas Trial Ct.s – Constitutional Ct.s of General Jurisdiction
                               2. Article 5, § 8 – District Ct.s of juris. over all except those reserved exclusively to other states
                                    a) Jurisdiction consist of exclusive, appellate, and original juris. Except where another Ct. has
                                          that
                               3. Amount in Controversy is more than $500
                                    a) District Ct.s have concurrent amount is controversy juris. With justice Ct.s, constitutional
                                          county Ct.s, and statutory Ct.s in cases in which the a.i.c. exceeds $500, up to the Ct.‟s max.
                                          juris. Limits
                                    b) Gov‟t code doesn‟t specify the lower limit (some Ct.s say $200, but there are arguments for
                                          both ways).
                                    c) When no a.i.c. go here
                               4. Residual Jurisdiction - The District Ct.‟s juris. is ascertainable by the process of elimination
                                                                      1
                          a) § 24.007 – Exclusive jurisdiction over what is not given to anybody else
                          b) original jurisdiction as long as there is exclusive jurisdiction to someone else

        D. Legislative Ct.s - § 25.003 (default provision) (statutory or county at law)
                 1. Legislative Ct.s Exercising District Jurisdiction
                        a) The leg. may not restrict the juris. of a district ct., but the leg. can change a statutory ct. into
                             a constitutional district ct. by increasing its jurisdiction to constitutional proportions
                 2. Legislative County Ct.s
                        a) The basis jurisdictional provision is contained in the Gov‟t Code Section 25.0003
                        b) A statutory county Ct. has jurisdiction over all causes and proceedings, civil and criminal,
                             original and appellate, prescribed by law for county Ct.s
                        c) A statutory Ct. does not have jurisdiction over
                                   Roads, bridges, highways
                                   General administration of county business w/in the juris. of the commissioners of
                                       each county
                                   This differs from county to county and the special provisions trump § 25.0003
                        d) A statutory ct. exercising civil juris. concurrent w/ the constitutional juris. of the county ct.
                             has concurrent juris. w/ the district ct. in:
                                   Civil cases where a.i.c. is b/w $500 and $100,000
                                   Appeals of final rulings and decisions of the Tx. Worker‟s Comp
                                   Has, concurrent w/ the const. county ct. in probate matters unless the leg. has
                                       created a statutory probate Ct.
                                   In a county that has a statutory probate ct., a statutory probate ct. is the only county
                                       ct. created by statute w/ probate juris.
                        e) Amount in Controversy
                                   Lower Limit – 200.01
                                   Upper Limit - 5,000 (excludes interest and attorney‟s fees)

        E. Shared Jurisdiction and Jurisdiction Varying From County to County: Effects on Filing and Transfer
                 1. Adjudicative Responsibility & Transfer B/w District Ct.s and Leg. Cts. Exercising Concurrent
                      Juris. w/ District Ct.s (Tex. R. Civ. P. 330(e)).
                        a) The district ct. judges may exchange benches or districts and may transfer proceedings
                        b) Ct. Administrative Act
                                   State is divided into 9 administrative judicial regions and is governed by local
                                       rules
                        c) Rules of Judicial Administration
                                   Rule 3 – Creates a “council of presiding judges” to oversee dockets and case loads
                                       to promote uniformity
                                   Rule 4 – Creates a “council of judges” to monitor case loads
                                   Rile 6 – Establishes the standards for the disposition of various categories of cases
                                       (i.e. civil jury cases should be finalized w/in 18 months)
                 2. Adjudicative Responsibility and Transfer in Cases Involving Eminent domain, Probate, and
                      Divorce
                        a) District cts. have juris. concurrent w/ the county cts at law in eminent domain cases
                        b) Constitutional county cts do not have jurisdiction
                        c) Probate Jurisdiction can be heard in a 1) const. county Ct., 2) statutory probate ct., or 3)
                             district Ct. (p. 125) (depends on particular county)
                                   county ct. at law must transfer case if district ct. has a case specific to it
                        d) All district cts. and some statutory Ct.s have smj to litigate divorce cases and related
                             matters
                        e) § 21.001 of property ct. – Eminent Domain Cases – county ct. at law has concurrent
                             jurisdiction with the district Ct.
        F. Other Ct.s
                 1. There are provision creating municipal cts., some of which are cts of record
                 2. “Small claims” juris. allows justice cts. to use simplified procedures when a.i.c. is less than $5,000
                 3. Family District Ct.s

II.   Appellate Cases Concerning Trial Ct. Jurisdiction
      A. Competing Jurisdictional Grants
              1. Orange Laundry Co. v. Stark (1944)
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                         a) Facts: Stark instituted this suit against Orange for forcible detainer and damages in a Justice
                             Ct.. It was appealed from the justice Ct. to county Ct.. Appellants written lease was not
                             renewed when it expired, but they stayed on the property anyway, never paying rent. Stark
                             only wanted restitution of the premises, damages, and cost of suit.
                         b) Rule of Law – In a forcible detainer suit the merits of the title to land shall not be inquired
                             into. If a sale made by the bank to appellee is to be attacked as being invalid, it must be done
                             in a suit filed in the district Ct. for that purpose and such is not permissible is a suit for
                             forcible detainer.
                                   Not necessarily an issue of title here – In a f.e.d. action, title is not an issue
                                   If they wanted to attack title – go to district Ct.

                2. Rodriguez v. Sullivan (1972)
                        a) Facts: The District Ct. denied a temporary injunction against the Sheriff to prevent him from
                            executing a writ of possession in a Forcible Entry and Detainer Case
                        b) Rule of Law – Forcible entry suit and detainer is an action for possession and the question of
                            right of possession is the only issue for a Justice Ct.. Justice Ct.s have no jurisdiction of suits
                            of title, and hence have no jurisdiction to try a case in forcible detainer, which necessarily
                            involves trial of title to land, or to render judgment therein.
                                   This case necessarily involved titles to property, therefore, justice Ct. can‟t hear it
                                       (Test – Does it necessarily involve title to property?)

III.   Amount in Controversy
       A.     Definitions
              1) A.I.C. – Unless otherwise provided by statute, exemplary damages, attorney‟s fees, penalties, and like
                  recoveries are counted as part of the a.i.c.
                       a) By statute, statutory county Ct.s exercising civil jurisdiction must not include “interest,
                            statutory or punitive damages and penalties, and attorney‟s fees and costs”
              2) Interest eo nominee – Includes conventional interest provided by agreement as well as certain kinds
                  fixed by statute. This is the kind of interest that is given under a written kx, get interest based on
                  statute that covers this. This is excluded from a.i.c.
              3) Interest as damages – Exists when the dollar value of the loss is fixed by the conditions as of the time
                  of the injury giving rise to the cause of action
              4) Pre-Judgment Interest – Wrongful Death, Personal Injury, and property damage actions filed or
                  retried after September 1, 1987 must include statutory prejudgment interest
                       a) Common Law Prejudgment Interest – is part of damages
       B. Cases:
              1) Peek v. Equipment Service (1989)
                       a) Facts: P seeking damages under a wrongful death and survival action suit in district Ct.. P.
                            filed a petition that failed to specify amount of damages:
                       b) Rule of Law – Unless it is clear from the pleadings that the ct. lacks jurisdiction of the a.i.c., it
                            should retain the case and give a chance for amendment. The failure for the P. to state a.i.c.
                            will not deprive jurisdiction b/c it is a special exception.
                                  Claims not for a monetary amount can be converted to an amount
                                  Even if pldg is never clarified, ct. will maintain it by special exception

                2) Sears v. Big Bend Motor Inn (1991)
                        a) Facts: Sears appealed to a Ct. at Law stating that the a.i.c. exceeded the jurisdiction of the trial
                             Ct. b/c Big Bend‟s requested attorney‟s fees and treble damages would take Big Bend beyond
                             the Ct.‟s max. jurisdiction.
                        b) Rule of Law – B/c treble damages are punitive/penalty in nature, they are excluded from the
                             a.i.c.

                3) Smith v. Clary Corp. (1996) – Tex. Gov‟t Code § 24.009 (allows you to aggregate)
                        a) Facts: Smith contracted with Clary and Clary sued Smith in County Ct.. The Smiths
                             counterclaimed alleging damages in excess. Clary appealed the judgment alleging that the
                             aggregate amount of the counterclaims exceeded the jurisdictional limit.
                        b) Rule of Law – “The Ct.s have not and should not apply aggregation to divest a Ct. of
                             jurisdiction on counterclaims asserted by multiple D.s, whose joinder normally is not
                             voluntary, and who have not chosen the forum.”
                                   § 24.009 – P/‟s voluntarily come together, therefore it is not intended to defeat juris.

                                                         3
                                    Worried about forum shopping b/c D. shouldn‟t pick $
                                    D. can counterclaim for less than the jurisdictional amt.

              4) Andel v. Eastman Kodak Co (1966)
                      a) Facts: Appellants sued for their children to recover damages for a car accident. Suit was w/in
                           amount for the District Ct., but appellee counterclaimed and appellant took a nonsuit.
                      b) Rule of Law - “Once the Ct. has obtained jurisdiction over the controversy b/w the parties by
                           the filing of a counter-claim, dismissal of P.‟s cases does not deprive the Ct. of jurisdiction of
                           the counterclaim.”
                                 Counterclaim was too small, but ct. will continue to hear the claim – they are trying
                                     not to oust cases once the ct. has been granted jurisdiction

              5) Barnes v. U.S. Fidelity (1955)
                      a) Facts: Fidelity furnished a bond to Barnes‟ former employee and Barnes was required to
                           indemnify it for the bond amount plus 6% interest. (This was not conventional interest)
                      b) Rule of Law – The 6% in not really interest, it is recovery for damages under an indemnity
                           agreement. B/c of that, it is part of the a.i.c.
                                Look at top of page 142 (this is prejudgment interest)

              6) Flynt v. Garcia (1979)
                       a) Facts: Flynt sued Garcia for less than $5,000, but then alleged additional delinquent amounts
                           accrued under the terms of the settlement agreement.
                       b) Rule of Law – “Once a Ct.‟s jurisdiction has been properly acquired, no subsequent fact
                           developed over the passage of time serves to defeat that jurisdiction.

              7) Continental Coffee Products v. Cazarez (1996)
                      a) Rule of Law – If a P.‟s original petition is properly brought in a particular Ct., but an
                          amendment increases that a.i.c. above the ct.‟s jurisdictional limits, the Ct. will continue to
                          have jurisdiction if the additional damages accrued b/c of the passage of time.


IV.   Declaratory Judgments
      A. Code – C.P.R.C. § 37.003 – Power of Ct.s to Render Judgment; Form and Effect
      B. Cases:
              1. Farmers Texas County Mutual Ins. v. Griffin
                     a) Facts:
                           Farmers sought a declaration that it had no duty to defend or indemnify Royal III in a suit
                               brought by Griffin.
                           Royal III drove a car in which gun shots were fired and hit and injured Griffin. Royal
                               invoked Farmer‟s duty to defend him
                     b) P.H. – The trial ct. granted the Farmers summary judgment and the Ct. of appeals reversed
                     c) Issue:
                           Is the duty to indemnify Griffin properly justiciable by declaratory judgment before the
                               rendition of a judgment?
                     d) Held: 1) Farmers had no duty to defend Royal, 2) Farmers‟ duty to indemnify Royal
                          constituted a justiciable controversy
                     e) Reasoning
                           For the most part, you can‟t indemnify before a judgment has been reached

              2. Tex. Ass’n of Business v. Air Control Bd.
                       a) Facts: TAB brought a declaratory judgment action, on behalf of its members, seeking a
                           ruling that statutes authorizing administrative agencies to assess fines for violations of
                           environment laws violate the Tex. Const.
                       b) Reasoning:
                            Hunt Test – An association may sue if its members would otherwise have standing to
                                sue in their own right, if the interests the associations seeks to protect are germane to its
                                purpose

V.    Residual Limitations Period


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                  A. C.P.R.C. § 16.064 – “The period b/w the date of filing an action in a trial ct. and the date of a second filing of
                     the same action in a different ct. suspends the running of the applicable s.o.l. for the period if 1) b/c of lack of
                     juris. And 2) Not later than the 60th day after the date the dismissal b/c‟s final
                        Doesn‟t apply if there was an intentional disregard for juris.


                 B. Cases
                          1. Vale v. Ryan (1991) – Residual Limitations Period – C.P.R.C. § 16.064
                                    a) Facts: Vale sued Ryan. While the federal cause was still in the federal appellate system, Vale
                                        began to seek relief in state ct.
                                    b) Issues: 1) Does a fed. ct.‟s refusal to exercise jurisdiction over pendent state claims constitute
                                        a dismissal for lack of juris. Under the Tex. “saving statute” and 2) Was the dismissal in the
                                        trial ct final for purposes of the same statute on the date of the federal district Ct.‟s dismissal
                                        order
                                    c) Held:
                                         Once the P. has asserted the applicability of a tolling provision, the moving D. bears the
                                              burden of showing its applicability as a matter of law
                                         When state and federal claims arise from a common nucleus of operative facts, a federal
                                              Ct. may hear and determine the state claims as well as the federal ones by exercising its
                                              pendent jurisdiction
Does not always have to be for a technical lack of jurisdiction – it can be discretionaryChapter 4 - Jurisdictions of Persons and
Property

         VI.      Jurisdiction of Persons and Property: - Chapter 4
                  A. Definitions:
                           1. In rem – A ct‟s power to adjudicate the rights to a given piece of property including the power to seize
                               and hold it
                           2. In personam – A ct‟s power to bring a person into it‟s adjudicative process; juris. Over a person‟s
                               personal rights over merely a property interest
                           3. General jurisdiction – Nonresident‟s contacts are continuous and systematic. The activity must be
                               substantial and the right type. This is the state‟s exercise of personal jurisdiction “in a suit not arising
                               out of or related to the D.‟s contacts with the forum.”
                                     Allows a state to bring in D. that does not arise from D.‟s actions w/in a State – U.S. Const.
                                         allows for this
                           4. Specific jurisdiction – Requires the litigation to “arise out of or relate to” D.‟s minimum contacts in
                               the forum state – D. must purposely avail himself

                  B. Cases:
                         1. Ashi Metal Industry Co. v. Superior Ct. (1987) – Plurality Opinion
                                 a) Facts: Zurcher was injured on his motorcycle. He sued Cheng Shin in California Superior Ct..
                                     Cheng Shim sought indemnification from Asahi Metal Industry Co, the manufacturer.
                                 b) Issue. – Is the mere awareness of a foreign D. that components it manufactured and sold
                                     outside the U.S. would reach the forum State in the steam of commerce enough to constitute
                                     “minimum contacts” b/w the D. and the forum state and the exercise of this jurisdiction does
                                     not offend traditional notions of fair play and substantial justice?
                                 c) Reasoning: (S. Ct. is trying to bring some order to these cases – production is always
                                     changing)
                                 Minimum Contacts Issue
                                        World-Wide Volkswagen rejected the assertion that a consumer‟s unilateral act of
                                           bringing the D.‟s product into the forum state was a sufficient constitutional basis for
                                           personal jurisdiction over the D.
                                        Must look to the foreseeable unilateral actions of the consumer, but the Due Process
                                           Clause requires more than that the D. was aware of its product‟s entry into the forum
                                           State through the steam of commerce
                                        The placement of a product into the stream of commerce, w/o more, is not an act of the
                                           D. – must find that the D. purposely availed himself
                                        The Ct. is looking for more than distribution like: advertising, a marketing program, or
                                           a sales agent
                                        The justices disagree on whether it is enough to place a product into the stream of
                                           commerce to hale you into Ct.

                                                                     5
         Fair Play Issue
              B/c the P. is not a California resident, California‟s interests in the dispute have
                 considerably diminished
              Factors to consider: Burden on D., Interests on Forum State, P. interest in obtaining relief

         d) Concurrences:
         Brennan, Marshall, Blackman
              D. did purposely avail himself – As long as a participant in this process is aware that the
                final product is being marketed in the forum state, the possibility of a lawsuit there can‟t
                come as a surprise. As long as D. knows it is ending up in Cal. that is enough, therefore
                still disagreement on what is needed to bring foreign D. into ct
              Asahi was aware of the distribution system‟s operation, and it knew that it would benefit
                economically from the sale in California, but this jurisdiction does not conform to fair-
                play and substantial justice

3. Burnham v. Superior Ct. (1990)
        a) Facts: Burnham was served with a divorce petition while in Cal. to conduct business and visit
            his children.
        b) Held: Temporary presence in the forum state, even if unrelated to the suit, suffices for the
            forum state‟s exercise of personal jurisdiction. “States have jurisdiction over nonresidents
            who are physically present in the State… no matter how fleeting the visit.”

4. Shaffer v. Heitner (1990)
         a) Held: There must be a relationship b/w the D., the forum, and the litigation in quasi in rem
              actions, based on attachment or seizure of the D.‟s property w/in the State, as well as in
              personam actions.

5. U-Anchor Advertising, Inc. v. Burt (1977) – Tex. SC Case (This was before Helicoptus)
       a) Facts: This suit was instituted in District Ct. by U against Burt. U is a Texas corp and Burt is
            a resident of OK. Citation was served upon the Secretary of State.
             Written kx was executed in Ok for advertising
             Kx called for U to advertise for Burt in Ok and kx signed in OK
             Burt mailed checks to Texas
       b) P.H. – Trial Ct. sustained Burt‟s Motion to the Juris., the Ct. of Civil Appeals affirmed and the
            Tex. S.Ct. affirms
       c) Reasoning:
             The kx obligated Burt to perform payment in Tex. And even though this is “doing
                 business” in Tex, it is not enough, Article 2031(b) reaches as far as the fed. constitutional
                 requirements that due process will permit. Thus, the question b/c‟s one of due process.
             D. didn‟t anticipate being haled into Texas
             B/c the kx was negotiated and executed in OK and Burt did not avail himself of the
                 privilege of doing business in Texas; rather, he was merely a passive customer of a Tex.
                 Corporation who had only one single contact with Tex.

6. Guardian Royal Exch. v. English China (1991)
       a) Facts:
             Guardian Royal is an English insurance Co. and was sued by English China and others.
                 English China is an English co. with American subsidiaries.
             Royal issued an insurance policy including several endorsements to English China
                 providing coverage for 3rd party liability occurring any where in the world English China
                 and its subsidiaries do business
             Southern Clay got liability coverage from U.S. Fire Insurance Co.
             An employee of Southern clay was killed on the job, and English China settled the
                 wrongful death lawsuits and U.S. contributed to the settlement
             Asserting that the policy covered English China and its subsidiaries only for liability in
                 excess of the coverage provided by American insurers, Guardian Royal declined to
                 participate in the settlement and English China argues that Royal should “reimburse”
                 U.S. Fire. Really U.s. Fire is seeking “reimbursement”
       b) Issue: Is it consistent with the requirements of due process of law under the U.S. Constitution
            for Texas Ct.s to assert in personam jurisdiction over Guardian Royal?
                                        6
        c) P. H. – Trial ct. granted Royal‟s special appearance and dismissed the cause and the ct of
            appeals reversed (The Special Appearance pldg must be done before anything else – 120a)
        d) Reasoning:
             The Tex. Long-arm statute authorizes the exercise of jurisdiction over nonresidents
                 “doing business” in Texas.
             The exercise of personal jurisdiction is proper when the kxs proximately result from
                 actions of the nonresident D. which create a substantial connection with the forum state.
                 Foreseeability is also important.
             The Ct. lays out the O‟Brien Test:
                      o D. must purposely do some act
                      o Cause of action must arise from such act or transaction
                      o Fair Play and Substantial Justice
             Once it has been established that the D. purposely established min. contacts, the contact
                 are evaluated in light of fair play and substantial justice considering:
                      o The burden on the D.
                      o The interests of the forum state in adjudicating this case
                      o The P.‟s interests in obtaining convenient and effective relief
                      o The interstate judicial system‟s interest in obtaining the most efficient resolution
                          of controversies
                      o The shared interest of the several States in furthering fundamental substantive
                          social policies
                      o Must look at foreign policies and unique burdens on foreign contries
             Texas has a particular interest in regulating insurance matters and Royal did purposefully
                 established minimum contacts with Texas.
             Requiring Royal, an English insurer unaffiliated with American companies, to submit its
                 dispute with its English insured to a foreign nation‟s judicial system is burdensome. This
                 dispute is b/w 2 insurers as subrogee to the rights of the English China entities
             B/c U.S. Fire and Royal are neither Tex. Consumers nor insureds, Tex.‟s interest is
                 diminished
        e) Significance:
             Special Appearance – This must be done before anything else – Rule 120(a)
             Ct. is reaffirming that Tex. will recognize general juris. even though the long arm statute
                 has limited worded
             This case is really not a gen. Juris. Case, but the Ct. wanted to clarify gen. jurisdiction


7. CSR LTD. v. Link (1996) – Tex. S.Ct
        a) Facts: CSR has its P.P.B. in Australia. CSR used to be the agent of raw asbestos. The Johns-
            Manvillle Corp. purchased this and resold it in the U.S. The P.‟s allege that they were injured
            b/c of the product.
        b) P.H.: CRS filed a special appearance and the judge overruled the motion. The Ct. of appeals
            denied CRS leave to file its petition for writ of mandamus. CRS now seeks mandamus relief.
            – Mandamus – ask an appellate ct in an orig. proceeding to require the trial ct. to do
            something
        c) Reasoning:
                  Title to the asbestos passed to Johns-Manville in Australia and there is no evidence
                      that CRS controlled or participated in the decision to ship the fiber to TX.
                  Foreseeability isn‟t enough – CRS didn‟t advertise in Tx, CRS didn‟t have any
                      agents in TX and there is no direct evidence that CRS knew that Johns-Manville
                      would distribute its fiber in Tex.
                  Ct. goes with the Asahi opinion - no evidence that CSR purposely directed product
                      to Texas
                  Just putting into stream of commerce is not sufficient

8. CMMC v. Salinas (1996)
      a) Facts:
                Cellars, Tx winery, ordered a winepress from KLR (NY Corp) which, in turn, got the
                    product from CMMC, a French manufacturer
                An employee of Cellars injured his arm on the press.
                This is a specific jurisdiction case, b/c not enough contacts for gen,
                                       7
                        b) Issue: Does the Fourteenth amendment permit a state Ct. to take personal jurisdiction over a
                            foreign manufacturer merely b/c it knew its allegedly defective product would be shipped to
                            that state?
                        c) P.H.: The district Ct. sustained CMMC‟s special appearance and dismissed the case for want
                            of personal jurisdiction. The Ct. of appeals reversed
                        d) Reasoning:
                                  Citing heavily from Asahi and World Wide Web – “Asahi‟s mere awareness that its
                                      product might end up in Cal. was not enough to show that it purposely availed itself
                                      to Cal.”
                                  Neither CMMC nor KLR made any effort to market CMMC‟s equipment in Texas,
                                      other than by advertisements in magazines with national circulation
                                  Cellar‟s purchase was an isolated event – A manufacturer cannot fairly be expected
                                      to litigate in every part of the world where its products end up.
                                  Ct. says that they are not taking sides from the Asahi case
                                  Distinction b/w this and Asahi:
                                            o Asahi – many motorcycles
                                            o Here – 1 isolated incident

               9. Reul v. Sahara Hotel (1974)
                        a) Facts: Tex. Husband and wife sued in Tex. After they were injured in Nevada by a chlorine
                            Tank explosion. The tank was furnished to the hotel by a Cal. corp., which was a wholly
                            owned subsidiary of a NY corp.
                        b) Held:
                                 The 5 subsidiary corps. Are not autonomous units, but constitute completely
                                    integrates subsidiaries which exist for the conveyance of the parent corp.
                                 Even though the CA corp did not commit a tort in TX or enter a kx in Tx, the
                                    relationship with the subsidiary constituted doing business

               10. Product Promotions, Inc. v. Cousteau (1974)
                       a) Facts: Product Promotions entered into a kx with CEMA. CEMA was described as a spin-off
                           from Jacques Cousteau‟s oceanic exploits. Promotions brought suit in Texas and attempted to
                           join Coustea and related entities on the theory that they were “doing business” in Texas
                           through CEMA as their agent.
                       b) Held:
                                 No evidence that CEMA was a subsidiary of Cousteau Group Entities.
                                 This dealt with the insufficiency of the allegations (need to have discovery on this)
                                 One corp. has to control the actions of another that they have lost its identity

               11. National Indus. Sand Ass’n v. Gibson (1995)
                       a) Facts: NISA was sued in Texas in P.‟s silicosis suit. P.‟s alleged that NISA was engaged in a
                            conspiracy with the Tx. Mining Company to suppress information on the dangers of silica.
                       b) Held: The Tx. S. Ct. declined to recognize the assertion of personal jurisdiction over a
                            nonresident D. based solely upon the effects or consequences of an alleged conspiracy with a
                            resident from a forum state. – This was a mandamus case

VII.   Service of Process - § 4.04
       A. Due Process Requirements:
               1. Peralta v. Heights Medical Ctr, Inc. (1988)
                        a) Facts: Peralta sought relief in Tex. Ct. to set aside a default judgment and void a subsequent
                             sale of property. He alleged that b/c the original service of process showed it was defective
                             and that he never was personally served, the judgment was void. This was a bill of review
                             procedure
                        b) Held: The Supreme Ct. held that judgment entered w/o notice or service is constitutionally
                             infirm. D. doesn’t need a meritorious defense if you are setting aside a default judgment
                             with notice.

               2. Wilson v. Dunn (1990)
                       a) Facts:



                                                       8
                                Wilson sued Dunn for damages resulting from Dunn‟s negligent operation of a car.
                                 Wilson alleged that Dunn could be served with a citation at his apartment, efforts to
                                 serve Dunn were unsuccessful.
                                Consequently, Wilson‟s attorney filed a motion to substitute service under R. 106b.
                                 Contrary to the explicit requirement under the rule, Wilson‟s motion was not verified
                                 or supported by affidavit or other evidence.
                                Ct. granted the motion and ordered a citation be served on Dunn with a noted
                                 attached to the docket sheet explaining that no default judgment was to be taken.
                                Dunn gave a sworn statement that he received the papers and Dunn‟s insurer called
                                 Wilson‟s attorney, but the insurer transferred the case to another insurer
                                Wilson‟s attorney went to the Ct. to obtain a default judgment and had to get it from
                                 a different judge
                  b) Issue:    Can the default judgment stand when service was defective?
                  c) Held:
                       Yes – Even though the D has “notice”, knowledge of the lawsuit is not enough
                       Failure to affirmatively show strict compliance with the Rules renders the attempted
                          service of process invalid
                       Substitute service is not authorized under Rule 106(b) w/o an affidavit which meets the
                          requirements of the rule demonstrating the necessity for other than personal service.
                       The distinction b/w actual receipt and proper service is the issue

B. Waiver of Process – Read Tex. R. Civ. P. 119, 329b
       1. Deen v. Kirk (1974)
               a) Facts: Betty instituted the original mandamus proceeding against Edgar and Judge Kirk to
                    require the Judge to expunge an order purporting to set aside a divorce judgment previously
                    rendered by him. Originally, Edgar filed for divorce and filed a waiver of citation previously
                    executed by Betty. Betty filed a petition for the judgment to be set aside. A few days later
                    Better was served with a citation in the original divorce case.
               b) Held: Tex statute prohibits the waiver of process by an instrument executed prior to the
                    institution of suit. The waiver executed by Betty prior to the institution of the divorce suit in
                    Wichita County did not subject her to the jurisdiction of the Ct.. Betty correctly filed a bill or
                    review and the judge shouldn‟t have set aside the verdict

C. The Technique of Service
       1. Issuance and Service of Citation
               a) Read Tex. R. Civ. P. 99
       2. Serving Persons in Texas
               a) Tex. R. Civ. P. 103, 106, 107
               b) Unless the citation otherwise directs, it may be served by either of
                       2 alternate methods
               c) Person who May be Serve Citation
                        R. 103 provides that citations may be served by any sheriff or constable, any person
                            authorized by law, and any person authorized by written Ct. order who is not less
                            than 18 years of age
               b) Basic Methods of Service
                        R. 106(a)(2) – by mail
                        Service on a corp. is usually accomplished by the delivery of citation to one of its
                            authorized agents
               c) Alternate Service in Texas
                        When “service has been attempted” under either R. 106(a)(1) or 106(a)(2), but has
                            not been successful, the Ct., on motion, may authorize in some other reasonably
                            effective method

         3. Eichel v. Ullah (1992) - § 16.003
                 a) Facts: This is a personal injury stemming from an automobile accident that occurred May 26,
                       1985. On May 22, 1987, P.‟s filed suit against the D. The D. was not served with process
                       until Aug. 12, 1988.
                 b) Issue: Is the failure to serve process upon D. for 14 months after the sol expired establish a
                       lack of sue process?
                 c) Held:

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                     To bring a suit w/in the 2 year limitations period, P. must not only file the suit w/in
                      the applicable limitations period, but also use diligence in having the D. served with
                      process. Due diligence is required for efficiency
                     The date of service relates back to the date of filing only if the P. exercises due
                      diligence in effecting service
                     To obtain summary judgment on the grounds that an action was not served w/in the
                      applicable limitations period, the movant must show that, as a matter of law,
                      diligence was not used to effectuate services
                     The 2 controlling factors which decide due diligence are:
                           o Whether P.‟s acted as ordinary prudent persons would act under the same
                               circumstance and
                           o Whether P.‟s acted diligently up until the time D. was actually served
                     Due diligence wasn‟t a matter of fact, it was a matter of law

4. Proof of Service – Tex. R. Civ. P. 102,103,105, 107, 109a, 124
        a) Personal Service
        b) Certified or Registered Mail
                  “If service is by registered mail, the return must also contain the return receipt with
                      the addressee‟s signature (R. 107, 109a)
        c) Alternative Service

5. Bavarian Autohaus, Inc. v. Holland (1978)
        a) Facts: Read R. 107 and 118
                 Bavarian and BMW appeal from a default judgment in favor of Holland, who
                    claimed unliquidated damages under the Deceptive Trade Practices as a result of the
                    D,‟s alleged misrepresentations concerning the quality of their automobiles and their
                    repair service.
                 Bavarian argues that the default judgment should be set aside b/c the record does not
                    affirmatively show that citation was properly served upon it. It mentioned the name
                    of a person, but service should have said the name of the corp.
                 The citation recited that it was to be issued to Bavarian by serving its agent Charles
                    Vann. The original sheriff‟s return states that it was delivered to Clint Hughes
        b) Held:
             The ct. 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.
             The Ct. held that the return in this case fairly states the manner of service as required by
                R. 107
             You are allowed to amend at any time – R. 118

6. Citation by Publication – R. 109-117(a), 224, 329, 111, 112, 113
         a) Generally
              The pejorative term “constructive service” is frequently employed to describe citation by
                 publication
              Must make a diligent effort to try and serve before publication
         b) Specific Uses
              Partition
              Defunct Corporations – In an action against unknown heirs or stockholders of a defunct
                 corporation
              Land – In an action against unknown owners or claimants of interests in land
              Marriage Dissolution – In an action for divorce or annulment
              Ad Valorem Taxes – In suits for the collection of delinquent ad valorem taxes
              Whereabouts of D. Unknown – When the D.‟s residence is unknown and cannot be
                 ascertained after reasonable diligence

7. McKanna v. Edgar (1965)
       a) Facts: Edgar sued McKenna on a promissory note payable by its terms in Austin. Service was
           purportedly done through the secretary of state.


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                                    b) Procedural History: A default judgment was rendered against McKanna, which the ct of
                                        appeals affirmed. McKanna attacked the judgment on appeal on the ground that the record
                                        failed to show the conditions required by the general Texas long-arm statute.
                                    c) Held:
                                         If the D. had a regular place of business or a designated agent in Texas, we doubt that it
                                             could be successfully contended that service of process could be made on the Secretary of
                                             State.
                                         Need to plead enough to justify service on the secretary of state
                                         B/c there is no presumption on a default judgment – record must show strict compliance
                                             on its face.

Notes from class 9/16/02

                           8. Paramount Pipe & Supply Co. v. Murh (Tex. 1988)
                                  a) Facts:
                                       P. allege that the D.‟s engaged in business in Tex and were connected with the purposeful
                                           acts committed by D. Western International Petroleum Corp.
                                       Petitions allege that Western made and breached kxs in Texas as Muhr‟s agent and on his
                                           behalf

                                    b) Held:
                                                So long as the allegations confronting D. were sufficient to satisfy due process
                                                 requirements, the trial Ct. had jurisdiction to render judgment by default against him
                                                      o Rule 108
                                                The allegations against Western, which by default were acting for Muhr) are
                                                 sufficient to satisfy due process

                           9. Method of Service
                                  a) The Mechanics of Service on the Secretary of State
                                            § 17.026 - Service may be made by certified mail, return receipt requested, by the
                                               clerk of the Ct. in which the case in pending or by the party or the rep. of the party
                                            Send 2 copies of petition and citation
                                            The secretary of state‟s office will send on copy of the petition and citation to the D.
                                               by certified mail
                                            When the secretary of state‟s office receives the “return receipt”, it will send the P.‟s
                                               counsel a certificate that D. was served
                                  b) Must show on the record – must have proof
                                      o Must show proper jurisdictional allegations
                                      o Must show proof that the service was accomplished as required by the statute
                                                Secretary must have forwarded it
                                                The Secretary will send a certificate that they forwarded it
                                                If it is returned to the Sec. unclaimed, it still counts and actual receipt is not
                                                    requires
                                            Calculate the answer date by the date of service when it is received by the Secretary

                           10. Proof of Long-Arm Service
                                   a) If a D. is served pursuant to the general Tex. long-arm statute, the service is actually on the
                                        secretary of state
                                   b) The nonresident D.‟s time to answer begins to run when the secretary is served, not when the
                                        D. received the certified mailing

                           11. Whitney v. L & L Reality Corp. (Tex. 1973)
                                   a) Facts:
                                             Landlord filed suit to collect rent from former tenants
                                             P. leased apartments to the D.‟s for 1 year terms. D.‟s moved out of the state,
                                                abandoned the apartments, and ceased payments
                                             P. took default judgments against them after serving process on the Secretary of
                                                State as authorized by 2031b
                                             Nothing in the record indicates that the Secretary of State forwarded a copy of the
                                                process to either D.
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                 b) Issue: Does the long-arm statute involved require not only service upon the Secretary of State
                     but also a showing in the record that he forwarded the service to the D? – Yes
                 c) Held:
                           A record showing of jurisdiction necessary to support a default judgment upon
                              substituted service must meet two requirements
                                   o Pldgs must allege facts that would make the D. responsible to answer (R.
                                        120a – the facts must contain allegations making the D. “amenable to
                                        process”
                                   o There must be proof in the record that the D. was served in the manner
                                        required by the statute
                           D.‟s meet part one
                           The statute is ambiguous – but the Ct. believed that the leg must forward the service
                              – The Secretary of State is to be deemed the D.‟s agent if, or provided, he forwards
                              the service as required by the statute
                 d) Read R. 108 – Notice to Nonresidents

        12. Butler v. Butler (1978) – p. 232
                a) Facts:
                            Husband left wife, took child, moved to Louisiana and filed for divorce
                            Wife regained custody and filed for divorce in Tex.
                            Wife served using the requirements of R. 106b and got substitute service on the
                                husband‟s attorney
                            At the hearing for the special appearance, husband introduced evidence and attached
                                service – He challenged that there is no jurisdiction b/c the substitute service was
                                improper
                            The Ct. has jurisdiction under the family code
                b) Procedural History:
                            The trial Ct. ruled that by arguing defective service, the husband‟s counsel waived
                                the special appearance and converted it into general appearance
                            Case went to trial and wide was granted a divorce
                c) Held:
                            The fact that appellant turned his special appearance into a general appearance in this
                                case does not afford appellant additional time w/in which to file an answer
                            R. 108 – When the D. is outside the State, they can be served the same way as R 106
                            Can‟t use a special appearance to attack defective service – it does constitute a
                                general appearance
                            D. hadn‟t answered and the ct. entered a default judgment on D.
                d) Significance - If you want a special appearance – you don‟t assert anything else. Even if you
                      do that, always follow with an answer of some kind, so you do not receive a default judgment.
                      It can be a 1 sentence answer. Make sure that it is in the same document with the special
                      appearance.

D. § 4.05 – Challenges to Jurisdiction by Nonresidents
        1) The Special Appearance – Read R. 120a, 122
                a) York v. State
                          York made a special appearance and the Ct. held that every defense pleading was
                             part of an answer, and by statute was a general appearance
                          Rule 120a – abolished this holding and allowed for special appearances
                b) R. 120a – Special Appearance
                     Strict Compliance
                     This must be filed before any other pldg or motion
                     It needs to be sworn
                     It can be amended
                     Can do it discovery in connection with it
                     Any appearance not in strict compliance with this rule will constitute a general
                         appearance
                     Ct is supposed to hear this motion before anything else
                     It is the D.‟s burden to negate all notice and theories of juris.


                                               1
                                               2
                You can file other things along with the special appearance, but the special appearance
                 must be determined first
             What type of this will the ct. look at? – not just pldgs
                      o Affidavits (Rules require that they must be served at least 7 days before the
                           hearing) –
                                 Can request a continuance to come up with more facts
                      o Can conduct discovery
                      o Attached stipulations
             If you lose the special appearance, you can participate fully, and still have the right to
                 appeal (but you don‟t have to wait to appeal anymore)
        c) R. 121 – Answer is appearance
             An answer is an appearance
        d) R. 122 – Constructive Appearance
             Motion to quash is the way to contest defective service
             The most you can get from this is an extension of time
             Even if the ct. agrees that service was defective, you are then deemed to be served the
                 day that the ct. said that service was improper
        e) R. 124 – No judgment w/o Service
             No judgment w/o service, unless there was acceptance, appearance, or waiver of service
        f) R. 14 – Affidavit by agent
             “Whenever it may necessary or proper for any party to a civil suit or proceeding to make
                 an affidavit, it may be made by either the party or his agent or his attorney”
             Be very thoughtful before you sign anything, unless you know for a fact that it is true

2. Kawasaki Steel Corp. v. Middletown (Tex. 1985 – Before Asahi in time) – p.237
       a) Facts:
                 Oilworld sued Middletown for payment for oil well casing Middletown bought.
                 Middletown filed a counterclaim against Oilworld and third-party claims against
                     Kawasaki, the manufacturer, for defective casing
                 Kawasaki filed a special appearance alleging no minimum contacts, Middleton has
                     not alleged the facts required for service of process, and that Middleton did not
                     properly effect service of process in a special appearance
       b) Held:
              Kawasaki has minimum contacts – maintained an office in Houston, sells over 40 billion
                 dollars worth to Texas (D. should reasonably expect to be haled into ct.)
              It is a general appearance if the D. argues anything else but special appearance
              R. 122 – A nonresident D. may move to quash the citation for defects in process, but his
                 only relief is additional time to answer rather than a dismissal of the cause.
              R. 120a was changed to allow D.‟s to amend a special appearance to cure defects
              Defective jurisdictional allegations in the petition, defective service of process, and
                 defects in the citation must be challenged by a motion to quash, not a special appearance
       c) Notes from class:
             Can a nonresident use a special appearance to challenge the jurisdictional facts? – No –
                You can challenge the validity of jurisdiction – only
             McKanna case was a default judgment case, and that differs from the one at hand

3. Dawson-Austin v. Austin (Tex. 1998)
       a) Facts:
            Austin has been the pres, chief exec. officer, sole director, and sole stockholder of
                Starkey Laboratories – a Minnesota corp.
            Austin met Dawson in Oregon and persuaded her to work in Minn.
            On a business trip to China in 1980, they recited marriage vows and two years later they
                received a marriage certificate in Minn. Throughout the marriage the couple‟s principal
                residence was in Minn.
            When they separated, Dawson was living in Cal. and Austin moved to Texas.
            Dawson filed for divorce in Cal. on April 10, but did not serve him until Oct. 16 and
                Austin filed for divorce in Tex. on Sept. 10 and served Dawson 4 days later
            Dawson filed a special appearance and an amended special appearance– which were
                denied by the district Ct. and the Ct. applied Texas Law

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                                       3
b) Held:
Did Dawson make a general appearance by filing an unsworn special appearance or by amending
it only after it was overruled? - No
      Dawson filed a special appearance, a motion to quash service of citation, a plea to the
          jurisdiction of the Ct., a plea in abatement, and an original answer
      An unsworn special appearance does not comply with Rule 120a – but according to Rule
          120a – this may be amended as long as it is before you do something that constitutes a
          general appearance (a party invokes the judgment of the ct. on anything other than
          jurisdiction = gen. juris.)
      The rule does not require that an amendment be filed before the ruling on the special
          appearance. An unverified special appearance neither acknowledges the Ct.‟s jurisdiction
          nor seeks affirmative action

c) Did Dawson make a special appearance by filing a motion to quash service, a plea to the
jurisdiction, and a plea in abatement, all in the same instrument with the special appearance –
These other things filed did not have the “subject to the special appearance” lang.? No
      Rule 120a states, “ a motion to transfer venue and any other plea, pleading, or motion,
          may be contained in the same instrument or filed subsequent thereto w/o waiver of such
          special appearance.”
      Can file all in the same instrument and it won‟t be considered gen. appearance, even w/o
          the “subject to” lang.

d) What about the hearing on Dawson‟s special appearance and the motion for continuance?
    The hearing on Dawson‟s special appearance, motion to quash service of process, plea to
       the jurisdiction, and plea in abatement was requested by Austin, not Dawson
    Dawson filed a motion for continuance the day of the hearing b/c counsel was just hired
       to make a special appearance
    The motion of continuance was filed subsequent to her special appearance and was not a
       general appearance
    Dissent’s problem with this argument – She didn‟t seek a continuance to cure the
       special appearance/ juris. issue, she wanted this on the motion to quash

e) Did the special appearance to a non-severable portion of the proceeding constitute a general
appearance? No
     Dawson specifically appeared only with respect to the division of marital estate and not
         for the divorce claim
              o A marital estate claim is not severable from the divorce claim
     If the ct. could sustain the special appearance as to only one claim and not the other,
         directing the special appearance only to the claim for which it could be sustained could
         not be a general appearance
     She just wants the property interests to be decided using Minn. Law and the ct. found that
         the 2 issues are severable jurisdictionally even though they are not severable under Tex.
         law (this law has since changed)

f) Did asserting a motion to quash service of process at the conclusion of the hearing constitute a
general appearance?
     Austin, not Dawson requested the hearing on the motion to quash

g) Did the District Ct. err in overruling Dawson‟s amended special appearance? Yes
     Dawson has no minimum contacts to Texas, therefore Texas had no in personam
         jurisdiction – Must look at the D.‟s activities and not the P.‟s
     Additionally, the location in Texas of property that is claimed to be part of the marital
         estate does not supply the minimum contacts required for the Ct. to exercise jurisdiction

h) Significance
     The S.CT is giving some leeway. Don‟t have to use “magic words.” – But still try and do
        it right the first time.
     Dissent – must cure your defects before arguing any other matters

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                               4
        4. GFTA v. Varme (1999)
               a) Issue: whether D consented to personal juris by including in its special appearance a challenge
                    to the method of serving citation
               b) PH: Tr ct sustained special appearance; Ct App rev‟d holding that the challenge to the
                    method of service converted its special appearance into a general appearance
               c) Held: TX SC held that GFTA‟s pleadings did not invoke the juris of the tr ct
               d) Distinction form Kawasoki
                    o Trying to back off from some of their strict construction of the rules
                    o Distinction here is that u can‟t use special appearance just to raise stuff regarding service
                         of process, but if file special appearance for juris‟al purposes & also include other things
                         that‟s OK
                    o Trying to keep a D from unintentionally waiving a special appearance
                    o Probably haven‟t gone as far to say that u can include anything & everything along w/
                         special appearance

        5. Koch Graphics, Inc. v. Avantech, Inc. 1991
                a) Facts:
                    o Filed special appearance w/o affidavits; file motion to quash & motion for new tr subject
                        to special appearance
                    o Default judgment was partial b/c a couple of things were not dealt w/ in the pleadings –
                        did not deal w/ punitives
                    o Amended special appearance filed w/ affidavits & exhibits
                    o P‟s attorney‟s amend the petition dropping the punitives, which makes the default
                        judgment final
                b) PH: tr ct said that the case is thru so we won‟t reach merit of special appearance… its‟ over
                c) Issues:
                    o Did the tr ct have the pwr to hear the special appearance?
                               After final judgment rendered, ct has plenary pwr for 30 days afterwards, which
                                  includes ability to hear special appearance
                    o Waiver – K filed motions along w/ special appearance; still con‟td to participate after
                        special appearance denied
                               The mere filing of other things does not mean that it is so inconsistent to special
                                  appearance motion as to make it a general appearance
                               Once special appearance is denied can participate fully & still be able to
                                  challenge the ruling on the special appearance [can be appealed immediately so
                                  won‟t hear these cases as often anymore]
                    o Merits of special appearance – Personal Juris
                               Could rule here b/c the tr ct had all the evid in the record; otherwise, would have
                                  just remanded for special appearance hearing
                               Not min contacts such that would justify juris

E. Amendments to Cure Defects, Note (1), pg 254
      1. “After Dawson-Austin… „unless amended‟”
              a. Can amend until there is a general appearance
          b. Could have more than one chance to amend

F. Doctrine of forum non conveniens
    1. Even though ct has juris, should be dismissed b/c another ct can better handle the case
    2. File a motion to dismiss on basis of doctrine of forum non conveniens
    3. Direct Color Services, Inc. v. Eastman Kodak Co. 1996
                 a. Facts:
                      o Underlying transaction occurred in TX so there was juris
                      o To support this motion, party must prove:
                      o (General rule is that the D bears this burden [makes sense])
                      o Is there an alternative forum that exists?
                 b) Held:
                      o Alternative forum must be “available” & “adequate”
                                Available – another state/ct can bring in all these parties
                                         If proved then P must prove that that forum is inadequate
                                Adequate – parties will not be deprived of all remedies or treated unfairly
                                                1
                                                5
                                                         Not going to give me the relief to which I‟m entitled
                                                         “Unfairly” – wiggle room; opens arg that it‟s not adequate
                                    o Private & Public Int Factors
                                                Fact specific
                                                Private – ints of these particular parties
                                                         Are the witnesses available
                                                         If has to do w/ prop can they look at it there
                                                         Access to experts, etc
                                                         Subpoena range of ct – radius of 150 miles from ct [ex: Dallas can‟t
                                                             subpoena people in Lubbock]
                                                                  o Just means u have to use a deposition for that tr
                                                Public – burdens on general populace of TX in taking this case
                                                         Made big deal about jury duty, inability of those people in county to get
                                                             access to cts
                                                         This must be a very big case & not many cts to choose from
                                                         7 states laws that could potentially have an impact on this issue & none
                                                             of these states was TX
                                                Ct held that case should be dismissed
                        4. Mass Tort litigation case against Bridgestone Firestone by non-nationals
                                a) Only connection to Texas is that at least one party is saying that the tires were inspected in
                                    Texas.
                                b) Firestone filed a motion to dismiss
                                c) This issue is unresolved at this time
Chapter 5 - Pleadings

       VIII. PLEADINGS
               A. Overview
                   1. In beginning pretty simple & straightforward
                   2. Over time replaced w/ technicalities
                   3. Mvmt on fed reform – avoid all the pitfalls that had occurred over the yrs; attached forms that showed
                       simplified pleading process
                   4. TX followed its own reforms in 1941 but consciously didn‟t follow fed system
                       a) Special issue practice – the way TX submits Q‟s to jury; asked very specific things/small picky Q‟s that
                            when taken together get the final answer
                       b) Pleadings should reflect the fact that u are going to ask specific Q‟s & fed short-form pleading wouldn‟t
                            work for that
                       c) TX allows a one-sent pleading for an answer – basically tells P, I      t‟s up to u to prove it
                       d) Tx basically reqs a little more specific pleading of P & little less on D than the fed system
               B. Relationship of pleadings to trial process
                   1. Supposed to be a close rela btwn pleadings, tr, & jury Q‟s [btwn the facts pleaded & those presented at tr]
                   2. D wants as narrow & specific pleadings as he can get; otherwise, it would allow for any kind of negligence,
                       for ex, at tr
                       a) This is why we allow special exceptions
                   3. Pleadings must support the args; however, in the real wld it‟s messier than that
               C. Pleading defects, such as vagueness, [all of these probs] can be waived
               D. Basic Pleadings
                   1. Rd Rules 22, 45, 47, 190, 79, 50, 58 (?)
                   2. P‟s pleadings
                       a) Start lawsuit by filing petition… commences the action
                             Show juris, venue [why proper in particular county], list parties & their residence [residence for
                                 citation purposes], state elements of cause of action
                   3. Can amend
                       a) Amendment supercedes the petition altogether, as opposed to a supplemental petition
                       b) Look at sample amended answer on p. 272
                       c) A damage claim can go up
                             Pldg was support damages for lost income if you are making a claim for lost damages – Must give
                                 the other side fair notice of what you will be claiming
                       d) In Texas, Ct.s will usually allow amendments around 1 week before trial
                   4. Supplemental petition responds to something raised in D‟s answer or can add info not included in original
                       petition

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    5. Must give name and address of D. for citation purposes
    6. R. 47 – It is improper to state how much in damages – You just state that the amount is w/in jurisdictional
        amt, unless you are seeking discovery level 1 (meaning that you are not seeking no more than $50,000) – P.
        wants D. to be limited on how much discovery he is allowed
              D. can ask through a special exception to find out how much in damages
    7. Must have a certificate of service – Must be there to prove to the Ct. that you have delivered the doc. to
        opposing counsel
    8. You might include a Letter of Giving Notice of Setting – p. 271
    9. Purpose of pldgs is to give parameters – You don‟t usually get “plead out of Ct.” – You don‟t really get rid
        of claims by the pldgs

E. D’s pleadings [order filed must be the same as the order a ct needs to hear it]
    1. Special Appearance
    2. Motion to transfer venue – An objection to improper or inconvenient venue is waived if the motion to
        transfer is not filed prior to or concurrently with any other plea except a special appearance motion
    3. Motion to Quash Citation – A D. may attack the propriety of the service by this plea, but the only effect is to
        delay the appearance day.
    4. Plea in abatement – This is the method of raising a fundamental defect in the mode of bringing the action,
        other than on personal jurisdiction, citation, or venue grounds.
    5. Plea to the Jurisdiction – Customarily, the pldg is sworn, but no rule requires that
    6. Special Exceptions – This plea attacks the sufficiency of the opponent‟s pldg, raising defects of either form
        or substance (i.e.- if the pldg is vague, contains improper matter or fails to state grounds on which relief can
        be legally granted)
             a) Form or substance
             b) Subject to complete defense
             c) Some judges are amenable to this – and some or not
             d) Can be filed to find out exactly how much P. is wanting in damages
             e) Must point out exactly what you think is vague and outline what info. you want
    7. General Denial - Texas allows the D. to deny the petition generally, putting the P. to proof on most issue
                  a) Rule 92 – Really short and sweet
                  b) It does not subject you to R. 13
                  c) Always safe to file it – Therefore, default judgment should never occur
                  d) This does not raise affirmative defenses and it doesn‟t allow you to raise things under R. 93
                  e) Not denying everything
    8. Specific Denials and Denials under Oath – A D. may deny given facts specifically even when a general
        denial is permitted
                  a) R. 93 – Certain pleas to be verified
                  b) Compare R. 93 to R. 94
                       o Lack of consideration is on both - R. 93 and 94
    9. Affirmative Defenses – An affirmative defense is one that sets up an independent ground defeating P.‟s
        recovery (i.e., one that does not operate by denying elements of the claim
                  a) Read R. 94 – but this is not an exclusive defense
    10. Inferential Rebuttal
                  a) p. 270 Paragraph IV
                  b) You can‟t ask the jury a question

F. Plaintiff’s Petition
    1. Read – Rules 22, 28, 45, 47, 48, 50, 58, 79, 190
    2. Rule 56 - Function of a petition – To commence a civil action and provide the D. a “short statement of the
        cause of action sufficient to give fair notice of the claim involved”
              a) Although no specific rule require sit, the petition should contain allegations that demonstrate the
                  basis for the ct‟s subject matter jurisdiction, jurisdiction over the person or property of the D.‟s,
                  and the propriety of the venue
    3. Basic Pldg. Requirements: Defining a “Cause of Action”
              a) The declaration must state distinctly and with certainty every fact that is essential to the P.‟s prima
                  facia case” – the principal pts necessary to be shown in the statement of a cause of action are:
                       o The P.‟s rights;
                       o The D.‟s wrongful act violating that right;
                       o The consequent damages
    4. Rule 45 – Definition of pleadings – formal requirements, even down to the size of the papers
    5. Rule 47 – Claims of relief
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    6. Rule 50 – About paragraphing
    7. Rule 58 - allowed to reference back to other paragraphs from your petition

G. Defining a cause of action
   1. Definition given from the Christy case on page 278
   2. You can fix things by amending
   3. Pldg defects can be waived
            a) Waived the right to make you pldg specifically – they haven‟t waived the right to make you prove
   4. Like negligence – you plead each element (duty, breach, cause, harm) and facts to support each element

H. “Fair Notice” of the Substantive Legal Theory and Factual Theory
    1. Castleberry v. Goolsby Bldg. Corp (Tex. 1981)
             a) Facts: Castleberry was employed by Goolsby and was killed in the course of employment. The
                 Administrator sued the City and Goolsby alleging gross and willful negligence. Goolsby alleged
                 in its motion for summary judgment that the Administrator failed to state a cause of action for
                 intentional injuries under the Worker‟s Compensation Act.
             b) Held: An allegation of willful negligence or willful gross negligence is an allegation based upon
                 negligence and is insufficient to allege and “intentional injury.” The Administrator‟s allegations
                 are insufficient to give the opposing attorney fair notice that this cause of action was for an
                 “intentional injury” meet
             c) Other examples of this problem – the Murray case – p. 281
                  Negligence per se claim was raise on trial, but this was not plead. Statute also needs to be
                       pinpointed – Must identify the statute and put the d. on notice so that D. can prepare an
                       adequate defense
                  This was allowed to be plead b/c D. waived by not filing a special exception (but this wasn‟t a
                       matter of vagueness, it was a matter of omission) – there was also no objection to the opening
                       statement, jury charge, or evidence
                            o P. will just try and have a trial amendment
                            o A D. will try to block amendment by alleging surprise
                            o P. said in his pldg, “Other acts of negligence” – Ct. doesn‟t think that this is fair
                                notice and also specific language controls the general lang. - But most lawyers will
                                throw that in anyway.

    2. Darr Equipment Co. v. Owens (1966) – p. 282
            a) Facts: D. falsely represented to P that he was Darr‟s agent and had complete authority from Darr
                to kx on behalf of the company. Darr now believes that Owens is trying to plead deceit which is a
                tort action even though Owens is suing for breach of an implied warranty of agency.
                           P. says that he is not labeling the cause of action deceit – he is labeling it a breach of
                              warranty
            b) Held: Darr did not object to the imperfect pleadings and failure to object constituted a waiver
                under Rule 90 and consent to a trial of the bench of implied warranty of agency action.
                           Even if you miss one element – every fact will be reasonably inferred in your favor
                              in the absence of an objection – Try to read it in the favor of the pleader
                           The fact that had to be reasonable inferred was that Baillio was an agent

                  c) Preserving Error
                           Won‟t bring something up on an appeal that you did not give the trial judge a way to
                              try and fix it
                           Can‟t raise an error on appeal if it hasn‟t been on appeal
                           Must object to the testimony when it comes in – Just filing a special exception is not
                              enough
                  d) Vagueness or Omissions
                           If you don‟t file a special exception, that is waived
                           Now is something is so poorly drafted, you might say that you didn‟t object b/c you
                              interpreted it differently

    3. White v. Jackson, 1962
            a) Facts: Jackson filed suit against White and caused citation to be issued and served on White, but
                 he failed to answer. White asserts that Jackson‟s petition failed to allege any facts or
                 circumstances from which it could be found that White breached any duty.

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                                                 8
                               The P. filed a pldg w/o saying what the injuries were – we know what the legal
                                theory was (negligence) but we need more facts.
                            Failed to sure any facts that there was a duty, breach, cause, or harm
             b) Held: B/c the petition did not give appellant notice as to the nature if the appellee‟s claim and the
                 relief sought, the judgment was erroneous. The ct. felt that appellee alleged no more than a legal
                 conclusion to the effect that appellant was liable to him as a result of negligence.
                      o “It is a general rule of pleadings that fair notice is a guide for determining whether or not
                           a petition contains sufficient allegations on which to base an award of damages in any
                           amt.
                      o Must allege the nature of the damages – like are the damages to person or to property.
                           Need facts to supply the ct. with a measure of damages
                      o If you don‟t allege the facts needed (i.e. the pleading are insufficient) – you must try this
                           case again
             c) Significance: These type of cases are usually in a default type of case. There can be no waiver in a
                 default judgment case. Don‟t have to say what fact you are basing your claim on when it is not
                 within your knowledge. P. 285 – where P. is not expected to know the exact facts
                            Example where you don‟t know all facts – products liability; medical malpractice
                            In Texas we are going from a narrow jury submission to a broad jury submission -
                                The Pldg. Rules have not changed in light of that

    4. Willock v. Bui, 1987 p. 286
            a) Facts: Appellant contends that a default judgment should be set aside b/c the pldg‟s were
                  inadequate to support a default judgment. Appellant never furnished any facts, but appellee‟s
                  petition read that Bui sustained injuries when his truck was struck by Willock‟s car.
                             Did not state the specific act that the D. did to constitute negligence, but it stated the
                                 facts of the car accident
            b) Held: The petition informs the appellant of the time and place of the automobile collision, that
                  appellee sustained personal injuries, and the injuries were proximately caused by appellant‟s
                  negligence.
                       o “Pldg‟s are sufficient if they give the opposing party fair notice of the claim involved.”
                       o Despite the fact that the P. did not state the exact act of negligence – the ct. found that
                            this was sufficient.
            c) How is this case compared to the White case?
                        This case had more facts, but the two cases do appear in consistent. The P. just needs to
                            give notice. The Ct. trend is more toward allowing more general pldg‟s.
                                      o Best was to handle this uncertainty is to include all you need to, but then
                                           amend if need be
                                      o Rule 63 – Amendments and Responsive Pldg‟s
                                                 Parties may amend their pldg‟s as long as it does not surprise the
                                                    opposing counsel and 7 days before trial – if after that time period
                                                    – need the ct‟s permission

I. Pleading Injuries and Damages and Alternative or Hypothetical Claims – R. 56 (When items are claimed,
    they shall be specifically stated) and Rule 48
      1. Weingartens, Inc. v. Price (1970)
             a) Facts: P. went to the supermarket and tripped and fell over the end of an unattended dolly which
                  was protruding into the aisle was. At trial, Price testified that she could no longer work after the
                  accident. Specific objection was then interposed by counsel for the D. b/c loss of income had not
                  been pled by the P.‟s.
                             The pldg‟s alleged a dollar amt. for general and special relief w/o listing loss of
                                 earnings and capacity as the special damages
             b) Held: Loss of earnings and loss of earning capacity are items of “special damages.” They are not
                  implied from the itemization of other dissimilar “special damages.” Appellant‟s points of error
                  must be sustained.
                             D. objected to this at trial with testimony and objected to P.‟s pldg‟s – D. did not
                                 specially accept and the P. did not amend
                             Special damages are different from person to person and you must specially plead
                                 those.
                             Here there is no general injury to let her argue that these damages flowed naturally
                                 from them

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                                                  9
             c) Other Special Damages

                   Future pain and mental anguish in a kx case
                   Future medical expenses
                   Consequential damages in a kx claim like loss profits
                   In personal injuries, must say that the person will endure future pain and suffering and mental
                    anguish
                 In defamation claim – must plead physical damages
                 Loss profits
             d) What did the P. attorneys do wrong
                 Pled some, but not all special damages
                 Try for a trial amendment
                 (D. did not specially except b/c nothing was vague – there was something that just was not
                    plead at all)
                 Best way to plead – catch all phrase for general damages and list all special damages you
                    might be asking for

      2. Yowell v. Piper Aircraft Corp. p. 291 note 2
            a) Held: P. gave fair notice that they were seeking pecuniary benefits which includes lost inheritance

      3. Rule 48 – You can plead alternative and inconsistent claims. Then you can have all of the alternate
          theories submitted to the jury. Can‟t get a judgment based on inconsistent theories. Before judgment –
          you must pick on or the other.

      4. Birchfield v. Texarkana Memorial Hosp. (Tex. 1987)
            a) Facts: P‟s child was born prematurely with a congenitally functionless right eye and was
                 diagnosed with having RLF and is now totally blind. As a premature infant, Kellie was
                 administered 400 hours of supplemental oxygen w/o adequate monitoring of arterial blood
                 systems. Wadley violated the D.T.P.A. by telling P.‟s that the hospital was adequately equipped
                 to handle premature babies when it was not.
            b) Issue: Did the trial ct. err by failing to award both exemplary damages and treble damages under
                 the D.T.P.A.?
            c) Held: The P,‟s special issues on damages merely requested the jury to fix a sum of money which
                 would compensate Kellie and her parents. The P.‟s never chose between the two alternatives.
                 Hence, where a prevailing party fails to elect b/w alternative measure of damages, the ct. should
                 utilize the findings affording the greater recovery and render judgment accordingly.
                            If the party doesn‟t elect, then the judge will elect for you b/w alternative measures
                                of damages. The ct. should utilize the findings affording the greater recovery and
                                render judgment accordingly.

J. Damages
     1. R. 47 – Prayer for relief
            a) Unless the other side specially accepts, you will say they the amt. in damages in w/in the
                 jurisdictional amt. of the ct.
            b) There is a diff. b/w liquidates and non-liquidated damages. – Don‟t have to have a hearing on
                 liquidated damages
            c) If it is unliquidated, the ct. must have a hearing on evidence of damages

K. Sanctions
     1. Chapter 10 of the Civ. Prac. & Rem. Code and R. 13 TRPC
           a) Look to the intent of signing frivolous pldgs.
           b) Must have good faith – Do allow non-frivolous argmt‟s for extensions of existing law.
           c) Every time you sign your name to a pldg – you are saying all these things to a judge
           d) Alleging that each fact has evidentiary support or is likely to have evidentiary support when you get
               to trial
           e) Opposing counsel can file a motion to sanction an get attorney‟s fees
           f) Sanctions can be imposed on he attorney or the party, or in certain circumstances, except for legal
               decisions you, as an attorney, decide.
           g) Can‟t do something in bad faith – Presumption that you file things in good faith – None of this goes
               to a general denial

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           h) Rule 13 – Your signature is your guarantee.
      2. GTE Communications v. Tanner (Tex. 1993) p. 297
           a) Facts: A payphone cord was unraveled killing a boy on a bike
               i. Parents sued first 1) ATS and then 2) GTE ending up with 3) GCSC
               ii. Pleadings done – Motion for Summary Judgment
           b) Held: Sanctions – Alleging that all 4 amended motions for summary judgment were filed in bad
               faith
               i. Death Penalty Sanctions – They dismissed D.‟s pleadings and w/o and pleadings, they get a
                  default judgment
                     There was a GTE memo that said that this handset cord had been uncoiled – P. said that
                         D. should have produced the memo
                              Rule 166b(2)(b) – “A person is not required to produced a document tangible
                                  thing unless it is w/in the person‟s possession, custody, or control.” – No
                                  evidence that D. had possession of the memo
                              Sanctions can‟t be excessive – We need to consider the availability of lesser
                                  sanctions.
               ii. Rule 13 is only for pleadings signed by the attorney – The affidavit was not signed by the
                    attorney
               ii. You can be sanctioned if your motions are groundless. (P.‟s are trying to argue that you
                    shouldn‟t even try for a summary judgment if you know that the other side could dispute the
                    facts you raise. – Many lawyers do that – but the Ct. said that that is not groundless even if
                    you anticipate that opposing counsel might raise an objection)

            3) Skepnek v. Mynatt (El Paso 1999) Supp. 31
                a) Facts: Skepnek, attorney, filed a false affidavit attached to a special appearance. After the
                    affidavit was taken, it was discovered that Texas had jurisdiction over corp. Appellant filed
                    another special appearance contained the exact same false affidavit.
                b) Held:
                         o Appellee didn‟t wait too long to bring sanctions b/c there is no time limit and
                              appellee filed sanction 2 days after attorney filed the false affidavit the second time
                         o Appellant is arguing that he didn‟t sign the affidavit, but the affidavit was not the
                              basis for sanctions – the special appearance was improper b/c it relied on the false
                              affidavit
                c) Distinguish this case from GTE:
                         o This ct. isn‟t getting him for the affidavit, the ct. is getting him for the special
                              appearance. The attorney is incorporating the affidavit by reference. (Rule 59)
                         o The ct. expanded R. 13 b/c a motion must state the evidence based on x (affidavit
                              and testimony) – and you are now making that evidence your own and you are
                              certifying to the ct. that all this evidence is true.
                                    Remember, though, the attorney knew that the affidavit was false
                                    Petition denied – S.Ct is saying that it is not reversible error

            3) Defendant’s Answer – pg. 306
                a) In a negligence case, D. disputes P.‟s claim as to how the accident happen: General denial
                    (Does not allow affirmative defense)
                b) In a neg. action, D. wants to assert the defense of contributory negligence as a total or partial
                    bar – Affirmative Defense
                c) Special Exception
                d) Special Denial
                e) Motion to transfer venue
                f) Special Appearance
                g) Rule 85 (There really is no rule that for a plea in abatement) Plea in abatement (By custom, this
                    is verified) A plea in abatement is just asking for the case to be put on hold – You hold off on
                    the case to wait for something else to happen
                h) Motion to state a claim by a special exception
                         o When a person does not file a special exception, it has waived the right to get a more
                              specific pleading – You have not waived the proof, you have waived your right to
                              specific pleadings

L. Special Exceptions, Plea in Abatements, General Denials, Special Denials, Affirmative Defenses
            1. McCamey v. Kinnear – Special Exceptions
                                                2
                                                1
    a) Facts: Trial set 3 diff. times b/c D. keeps on getting continuances. When you have an order
        requiring a party to refile – you can either 1) refuse to replead b/c pleadings are sufficient or
        2) You can re-plead
    b) Held: Best was to do this is to have a deadline in the order. An explained delay is taken as a
        refusal to amend. You can only require someone to amend when your special exceptions are
        plead correctly. In this case, held that specific special exceptions must be specific. Original
        petition gave fair notice

2. Substantive defects – Read Rule 90
        a) Failure to plead something material
        b) Can waive your rights to get specificity on that element – It does not waive P.‟s burden to
        prove every element of the claim
        c) When would you choose to bring up a missing element (i.e. lodge a special exception)?
                  You want to limit the P. and make them to plead something specific or you want
                      more information
                  Try to get a claim dismissed – Hope that the other side can‟t prove an element –
                      maybe P. doesn‟t even know that they need to prove this missing thing – maybe
                      P. will be more willing to settle
                  Many lawyers will just let special exceptions go and some judges don‟t like
                      special exceptions
        d) Can you move for summary judgment on the basis of failure to state a claim?
                  General Rule (Castleberry) – Don‟t use summary judgment when a special
                      exception is available to you, but The Herring case – summary judgment was
                      claimed – Exception to the general case - if it is something that P. has pled
                      himself out of ct., then summary judgment is appropriate.
        e) What is the flaw with summary judgment?
                  You need 21 days for a hearing for a motion for summary judgment – This gives
                      P. enough time to get a fact issue.
        f) Improper use of a special exceptions
                  Sets up an extrinsic fact, separate from P.‟s challenge grounds for recovery
                  Special Exceptions is not the place to debate what proper facts are
                  A demur is way to avoid an answer “Pleadings are insufficient”
                  Travelers Indem v. Holt (p. 311) – Speaking demurrer
                            D. has never before raised this particular reason for coverage – This is
                                an outside extrinsic fact and is not allowed to be done in this manner.
                                You can‟t raise extrinsic facts in special exceptions, but you can
                                challenge that issue in a motion for summary judgment or in a plea in
                                abatement
            g) Example – When you raise a special exception – you must take the pleadings as true.
            You can raise some facts in your answer, in a summary judgment matter
            h) File a summery judgment saying “I never got the widgets” and P. files a counter-
            affidavit saying “Yes you did” At this stage, is there any way to get rid of the case – No,
            not at this stage. A jury needs to decide who is telling the truth
            i) Looking at the example of D.‟s Original Answer on pg. 312
                  You don‟t need to plead present, existing facts
                  P. II is probably sufficient to give notice
                  P. III – raises new extrinsic facts and is thus a speaking demurrer

3. Pleas in Abatement – seeking to dismiss cause of action or suspend it. It doesn‟t go to the merits
         of the case – no real rule for this – Need to plead facts – Usually sworn to; much have a
         hearing to present evidence; P. need to be given a chance to amend w/in a reasonable time
         Example:
         Pendancy of another action
         It is a method to object the way a person is suing (maybe capacity)
         You don‟t raise this, it is waived
         It will raise prematurity
         Non-joinder
         Pendancy of administrative hearings
         Can be used to raise agreed upon arbitration matter

4. Curtis v. Gibbs (Tex. 1974) – Plea in abatement p. 314
                                   2
                                   2
    a) Facts:
         This is a jurisdictional conflict b/w Bowie and Dallas County
         Father and mother were divorced in Bowie County and mother got custody of children as
            long as she did not take them out of Bowie County w/o permission
         In 1973, mother remarried, moved to Dallas, and left the children with the father
         On Jan 18, 1974, father filed a petition to obtain custody
         On Feb 12, the mother moved the children to Dallas w/o permission
         Father procured a citation to the mother in Bowie Ct. and on Feb 14 Judge Jones issued a
            writ of attachment commending the return of the children
            On Feb. 15, the moved filed a new suit in Dallas County asking for unrestricted custody
            and Judge Gibbs issued a temporary restraining order forbidding the father to take the
            children
         On Feb 22, the father appeared in the Dallas Ct. and filed a Motion to Transfer, A Motion
            to change Venue and a Motion to Dismiss (it was not sworn to as required by R. 93)
         Judge Gibbs suspended Judge Jones‟ writ of attachment
         On March 12 Judge Jones issued another writ of attachment and Judge McCain
            suspended it
         On March 18, the father filed a proper plea in abatement in the Dallas Ct. and on March
            15, he filed his petition for writs of prohibition and mandamus to the Tex. S. Ct.
         Judge Gibbs overruled the plea in abatement
b) Held:
         The general common law rule in Tex. is that the Ct. in which suit is first filed acquires
            dominant jurisdiction. Any subsequent suit involving the same parties and the same
            controversy must be dismissed if a party to the suit calls the second Ct.‟s attention to the
            pendancy of the prior suit by a plea in abatement
                      o Exception to first come rule – 1) inequitable conduct i.e. excessive delay
                           or when you string a party along with settlement talk or 2) no bonofide
                           intent to sue or 3) original juris. can‟t accommodate all parties
         Mother tried to show that father exhibited bad faith by waiting 26 days b/w filing suit in
            Bowie County and procuring issuance of citation – But ct disagrees with mother‟s arg. –
            Mother didn‟t even sue until after the 26 days
         Mother argues that father waived his plea in abatement by filing motions in the Dallas Ct.
                      o A plea contesting the venue did not waive a subsequent plea of prior action
                           i.e. the plea in abatement
             Rule 93(3) – Need a verified pldg
             A plea in abatement gives you a hearing in which you will need witnesses and a ct.
                 reporter

5. Wyatt v. Shaw Plumbing (Tex. 1988) pg. 318
    a) Facts: Wyatt sued Shaw alleging fraud and violation of the DTPA in Duval County. Shaw
        then sued Wyatt in Nueces County and added Spear, Wyatt‟s agent, as a D. The Nueces suit
        was tried first, even though Wyatt filed 2 pleas in abatement.
    b) Held: The pleas in abatement must be granted. When an inherent interrelation of the subject
        matter exists in 2 pending lawsuits, a plea in abatement in the second action must be granted.
        When a suit is proper in more than one county, the Ct. in which suit is first filed acquires
        dominant juris. to the exclusion of all other cts. The other Ct. should grant that stay. There
        must be an inherent interrelation between to the cases.
    c) Dissent: The first ct. lacks the power to bring in all the parties and there is proof of inequitable
        conduct b/c Wyatt did not give the 30 notice needed under the DTPA.

6. Bahr v. Kohr – The General Denial pg. 321
    a) Facts:
         In 1987, the Bahrs obtained a judgment against Mr. Kohr for $200,000 (Mrs. Kohr was
             not a party to the suit) – The agreed judgment provided for payments and was secured by
             a ranch in Montana
         In 1988, the Kohrs purchased property in Gillespie County with money from Mrs. Kohr‟s
             separate money market account
         In 1994, the Bahrs recorded the Maryland judgment with Kerr County
         In 1994, Mr. Kohr conveyed 68 acres of the Gillespie property to Mrs. Kohr
         The Bahrs filed suit against the Kohrs under the Uniform Fraudulent Transfer Act.
                                    2
                                    3
    b) Issue:
         Did the trial Ct. err in admitting parol evidence and evidence regarding separate property
            when only a general denial was filed instead of an affirmative defense?
         Was the conveyance to Mrs. Kohr fraudulent b/c Mr. Kohr had no other assets to satisfy
            the Maryland judgment?
    c) Held:
         R. 94 does not set out that separate property and separate funds should be considered an
            affirmative defense
         An affirmative defense does not tend to rebut factual propositions asserted, but seeks to
            establish an independent reason why P. should not recover
         W/o proving that Mr. Kohr owns the property, the Bahrs can‟t prevail on the claim – the
            Kohrs‟ general denial properly raised the issue of ownership of the Gillespie County
            property
    d) Significance – Class Notes
         If P. amends their pldg, you don‟t need a new general denial
         With a counterclaim, no need for a new general denial
         Purpose of this – allows D. to bring in anything and able to disprove P.‟s facts
         Example pg. 323
                 o A – B (claiming B has guaranteed C‟s notes to A) If B files a general denial, will
                     B be able to introduce evidence that:
                           The guaranty is w/o consideration – no
                           B did not sign the guaranty – must be verified under 93(7), thus no
                           C had paid the note – This falls under 94 and 95
                           Assertion that this was an “act of G-d” – That is an inferential rebuttal
                              – this is available under a general denial b/c you are disputing on of the
                              facts P. claims
                                    Rule 54 (when P. pleads generally, all conditions precedent
                                         have been met; P only needs to prove those conditions
                                         specifically denied by D), 90, R. 93(12) – notice and proof of
                                         loss or claims for damages has not been made


7. Dairyland County Mutual Ins. Co. of Texas v. Roman – Special Denials (Tex. 1973) – pg. 323
    a) Facts:
         Roman brought this suit against his insurer, Dairyland to recover for personal injuries
         On. July 4, 1970, P. stopped on the side of a highway to fix a dragging muffler when his
            car was hit by Odoms, an uninsured motorist. Hayes‟ car was then hit, either by Odoms‟
            car or debris.
         At the time of the accident, P. was 19 and was the named insured. The policy asked for
            written notice of the accident, but P.‟s mother called the insurance agent and notified
            them of the accident, but the insurance policy asked for notice to be given in writing
         Neither D. nor any of the agents received written notice of the accident until Aug. 5,
            1970, when D. was served with the citation
    b) Held:
         D. did not specifically deny performance by P. of any condition precedent, but stated that
            P “failed to comply with the conditions of said policy.”
                 o Sherman v. Provident – The Shermans introduced no evidence to negate the
                      exclusions, b/c they thought the company had the burden of proving that the loss
                      fell w/in one of the exceptions
        o There is no pldg specifically raising the written notice condition as required by Rule 54
            (Conditions Precedent)
        o Rule 90 – Waiver of Defects in Pleadings
        o Rule 54 – If P. says that all pre-conditions have been met, that is the end of story, unless
            the D. objects to that in a pleading
                            D. didn‟t specifically state what condition of the policy wasn‟t met –
                                They just attached the policy
         P. did not specially accept the denial – P. did submit evidence of notice – D. did not
            narrow it to “was there written notice” and the jury found that there was notice
    c) Procedural History – D. moved for an instructed verdict – w/o written notice P. can‟t win –
        arguing that a condition precedent was not met. (Now this presupposes that issue of notice
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                                   4
        was put before the Ct. by proper denial under R. 54. The trial ct. found for the P. what is
        raised on the appeal was the denial. The ct. said that D. did not raise specifically written
        notice.
    d) Why didn‟t P. waive the right to complain though a special exception
              Rule 90 – Losers waive defects, winners do not – This is odd
              If P. had lost, the ct. would have found that P. waived the defects and therefore, P.
                 would now have to prove written notice.
              Avoid a waiver by specially accepting when you get a chance
    e) Significance – Class Notes
        Davis case. P. 326
              Denial of the sworn account must be verified and in Davis, it was not sufficiently
                 denied – R. 185 – No special exception here, P. probably saw that Davis‟ denial was
                 improper and said nothing and P. offered no evidence b/c he said that b/c there was
                 no denial
              On appeal, D. said that P. waived the defective denial – Ct. ruled that winners do not
                 waive pleading defects. B/c P won, he didn‟t waive the defect. Therefore, the
                 answer was improper and P. wins

        Heusinger case
            When the defective plea is a denial and if the denial had been proper it would impose
                an additional burden on the opponent, then a special exception is nor required to
                preserve the error – P. is not required to educate the D. about pleading mistakes in a
                way that would make P‟s job harder.
            D. can ask and beg for a Trial Amendment saying that P. can‟t really be surprised

             Hypos:
             P. sues claiming breach of kx, D. says I didn‟t sign that kx – How do you properly raise
             that defense?
             - a verified denial

             Same, except D. does not verify and there is no special exception and kx is admitted into
             evidence – there is s judgment for P. D. says that P. failed execution of the kx. P. says I
             did not need to proved execution b/c it wasn‟t verified
             - R. 90 – There is no waiver for P. b/c winners don‟t waiver defects

             Same, except D. wins
             -On appeal, P. waived the defect and you treat it as if it had been properly pled
             - Under Heusinger - If P. had objected to a defective denial, then there is no waiver b/c he
             properly presented the error

8. Bauer v. Valley Bank of El Paso – Special Denials (Verified Denials R. 93), pg. 327
    a) Facts: Valley Bank brought suit upon a promissory note of Gateway and a written guaranty
        agreement signed by Freed and Bauer. Bauer appealed. He pled a general denial alleging
        that the Pres. of the Bank represented that no reliance would be placed on the guaranty
        agreement.
    b) Held:
         Bauer didn‟t deny the execution of the agmt and he didn‟t assert that the agmt was w/o
             consideration. W/o a sworn plea under rules 93(h) and (j), those issues were not before
             the trial ct.
         In the absence of a verified denial of the execution by D.‟s under R. 93h, the instruments
             were received in evidence as fully proved
         Bauer also asserted that b/c only a defensive issue was submitted to the jury, the trial ct.
             placed the burden of proof for the entire case on Bauer – this is incorrect
         Certain kinds of defenses need to be made specifically and under oath – Like affirmative
             defenses
        c) Rule 93 – Check to see what you need to specifically deny (capacity needs to be
             specifically denied)

9. Nootsie v. Williamson County Appraisal (Tex. 1996) pg. 330
    a) Facts:

                                   2
                                   5
                                          In 1978, the voters added that the Leg. is to “promote the preservation of open-space
                                           land” – Open spaced land was defined as land used as an ecological lab. by a college.
                                           Noostie owns land that falls under the meaning as open-space land
                                         In 1990, Williamson county appraisal district denied Nootsie‟s application for
                                           qualification as an eco lab. The district sought a declaratory judgment that the
                                           amendment violates the Constitution.
                                    b) Held:
                                         A P. has standing when it is personally aggrieved. Regardless of whether it is acting w/
                                           legal authority, a party has capacity when it has the legal authority to act, regardless of
                                           whether it has a justiciable interest in the controversy
                                         Standing may be raised on appeal for the first time b/c standing implicates the trial ct‟s
                                           s.m.j. – It is one of the very few things that you can bring up an appeal
                                                     o Fundamental error does not need to brought up on the trial Ct.
                                         The district has standing b/c it is charged with implementing a statute that it believes
                                           violates the Tex. Constitution
                                         Capacity, though, can be waived. Parties who do not follow Rule 93‟s mandate waives
                                           any right to complain about the matter on appeal
                                                     o Implied consent is something you raise READ RULE 66 – 67 – Usually
                                                           used a last resort -
                                                     o When a jury trial, and you have testimony that has not been raised by the
                                                           pleading, you still haven‟t consented as long you object at the time the jury
                                                           is given the instructions. Therefore, implied consent is not waived until
                                                           after jury instructions – The other side can get a trial amendment whenever
                                                           you object. Smart thing to do – object the minute the testimony comes in
                                                     o Why do you want a trial amendment – need support for your jury
                                                           instructions. Can‟t ask the jury something that hasn‟t been raised in the
                                                           pleadings.
                                                     o In a non-jury trial, the implied consent occurs when you fail to object to the
                                                           testimony b/c there is no jury submission.

                                10. Eckman v. Centennial Sav. Bank – Affirmative Defenses (Tex. 1990) pg. 332
                                    a) Facts:
                                         Centennial filed special exceptions asserting that Eckman failed to plead that they were
                                             consumers w/in the meaning of the DTPA. In their amended pleadings, Eckman alleged
                                             that they were consumers. According to the DTPA, a consumer can‟t have assets of 25
                                             million or more.
                                    b) Held:
                                         Treating the 25 million dollar exception as an affirmative defense promotes efficiency in
                                             DTPA litigation
                                         Requiring the D. to plead and prove the $25 million exception as an affirmative defense
                                             is consistent with the statutory mandate “to provide efficient and economical procedures”
                                             to protect consumers.
                                         Don‟t want to prejudice the jury by showing how much someone is worth
                                    c) Definition of A.D. - Affirmative defenses are listed in R. 94 - This states that even if P. is
                                        right, I still win. You are not rebutting P.‟s evidence you are showing an independent ground
                                        on way P. can‟t win

Review – P. sues, D. files an answer that includes a specific denial, D can specially except to P.‟s pldg. P. has option to specially
accept to D‟s pleading. Special D. is something that a D. usually brings up with a petition. P. may bring up a special denial in an
answer to a counterclaim.

                                11. Echols v. Bloom, pg. 334
                                    a) Facts:
                                         Echols brought the suit for specific performance of an alleged earnest money kx for the
                                             sale of a tract of land.
                                         There was an option in a kx, and trial Ct. held that the option did not have consideration
                                         D. had alluded to the consideration in his answer, but did not specifically plead it.
                                         D. was trying to raise failure to consideration and under 93(9), this must be verified –
                                             This was tried by implied consent. P. had waived the right to object to the verification.
                                             P. should had filed a special exception.
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                                                                    6
                 b) Held:
                      If no consideration is given, the option giver had the power of revocation. The
                        instrument was signed on July 11 and money was not given until July 25 th. Therefore,
                        there was no consideration b/w those two dates.
                      Appellant argues that appellees failed to file a verified plea of failure of consideration
                        according to rule 93j, but appellant failed to except to the non-verification of appellee‟s
                        pleadings and this waived his objection in accordance to rule 90
                      Under R. 94, Failure of consideration must be affirmatively plead, but appellee‟s first
                        amended answer probably contains a sufficient plea of failure of consideration.
                                  Under 94 and 93 – need verification
                                  Burden of proof is the person relying on the affirmative defense
                      Ct. found P. waived his right to object b/c he failed to raise failure of verification of
                        consideration through a special exception – This is an example of implied consent
                        (Losers waive)

L. Amended and Supplemental Pleadings (Rs. 62-67)
      1) Amended pleadings take the place of the prior pleadings
      2) R. 63 – When can you amend – Such times as not to operate as a surprise, however if 7 days before the
          trial, you need leave or Ct.. When should the Ct. grant leave? – The ct. shall grant it, unless there is a
          showing that there will be surprise (seek a continuance to help prove that you are surprised – The
          rule doesn’t say to do this, but case law dictates this)
      3) Are you safe if you want to amend 10 days or even 1 month before trial – No, you still need to get
          around this surprise issue.
      4) If P. files an amended petition 13 days before trial, D. should allege surprise through a motion to strike
          and explain, and in the alternative, D motion for continuance – This should be in the same document)
      5) R. 66 – Now at the trial stage, 2 problems can arrive – 1) Variance b/w pldg and proof; 2) defective pldg
          – Ct. can allow an amendment unless it would serve to prejudice the other side
      6) R. 67 – This talks about Implied Consent – Treated as if they had been raise been raised in the pldg –
          You will want to amend the pldg. To reflect what the other side implicitly consented to. Clean up the
          pldgs.
                o When is something tried by implied consent?
                          When there is no objection up until the submission to the jury – can‟t totally rely on
                             that b/c some cts will still grant implied consent – Remember, at the appellate level,
                             we look at whether there was implied consent seen in the trial ct
      7) R. 277 to 279 – Submission to the Jury – The written pldg. Must be made before the ct. can submit a
          special issue to the jury

        8. Burnett v. File (Waco 1977) p. 337
                a) Facts: Burnett sued File for personal injuries. The trial by jury concluded that P. was not
                      injured as a result to the conclusion. None of P.‟s pleadings ever alleged an aggravation of a
                      pre-existing condition. After P. rested his case and near the end of the trial, P. “served
                      notice” that he intended to file a Trial Amendment alleging that P. suffered from pre-existing
                      condition after both parties rested, but before submission to the jury. D. objected to the
                      amendment and the trial Ct. denied the amendment.
                b) Held:
                       Rule 66 – The filing of a trial amendment is w/in the sound discretion of the trial Ct. and
                           unless the trial Ct. clearly abuses that discretion, no reversible error is shown
                       P. urged that the issue of “aggravation” was tried by “implied consent” on the part of the
                           D. under Rule 67 – this is not correct, the D. clearly objected to the submission to the
                           jury.
                                o B/c there is no implied consent, you could not submit a def. of injury that
                                    included this pre-existing injury
                c) Significance – Class Notes - If a trial amendment doesn‟t really change the facts and the
                      evidence, in a jury trial, it is w/in the ct‟s discretion to allow this. In a non-jury trial, a trial
                      amendment based on the same facts a ct should probably allow it.

             2. Greenhalgh v. Service Lloyds Ins. Co. (Tex. 1990) pg. 340
                 a) Facts: Greenhalgh and Service Lloyd agreed to a settlement of P.‟s workers‟ compensation
                     claim, but Service Lloyd refused to pay the medical expenses as required by the settlement.
                     The jury awarded $28,000 more in punitive damages that was pled. Thus, P. requested leave

                                                  2
                                                  7
                       to amend his pleadings to conform the amt of damages to that found by the jury and supported
                       by evidence.
                  b) Issue: Did the trial Ct. abuse its discretion by allowing a post-verdict amendment increasing
                       the amount of damages in P.‟s pleadings to conform the amt by the jury when D. presents no
                       evidence of surprise or prejudice?
                  c) Held:
                        Under Rules 63 and 66, a trial ct. has no discretion to refuse an amendment unless: 1) the
                            opposing party presents evidence of surprise or prejudice or 2) the amendment asserts a
                            new cause of action or defense
                        The lang. of 63 makes it clear that w/o a showing of surprise the trial ct. must grant leave
                            for a party to file the amendment when requested w/in 7 days of trial
                        Rule 66 “directs that the ct. shall freely allow an amendment” when it subserves the
                            merits of the case and the opposing party fails to show prejudice.
                        A change in the amt. of damages doesn‟t automatically operate as a surprise
                  d) Significance - Class Notes – It is never prejudicial or surprising to ask for pre-judgment
                  interest as long as it is offered before submission.
                  R. 190 – The new discovery rules that talk about levels of discovery
                        190.2 – If asking for $50,000 or less, must allege this in the plsg – Limit the amount of
                            discovery according to amt. alleged.
                                 o Comment 2 – Prob. with R. 47 – Response to this – The relief awarded cannot
                                      exceed the limitations of Level 1 … read on page R-276. If you are tried and
                                      allege $50,000, you will not be allowed to amend if the jury awards you more.

M. Supplemental Pleading –
    Are used only to respond to new matter contained in the last amended pldg
    R 82 – Assume a general denial – READ THIS
          1. Royal Typewriter Co v. Vestal (Houston 1978) p. 343
              a) Facts: A kx was executed by Royal with U.S. Land for the rental of a copying machine. The
                   kx was signed by Julian Holsten. Royal sued Vestal and U.S. Land alleging that D. executed
                   a kx and payments were due. D. filed a general denial and pled that they did not execute the
                   kx. P. filed no additional pleadings. Royal requested additional findings of fact and
                   conclusions of law on the issue of ratification.
              b) Held: Ratifications are pleas in avoidance and thus are affirmative defenses, which in the
                   absence of trial by consent, is waived if not affirmatively pled under R. 94 – A supplemental
                   petition should have been filed. Once the D.‟s pled that they did not execute the kx, it then
                   b/c incumbent upon Royal to file a supplemental pldg asserting ratification if it intended to
                   rely upon that as a defense to D.‟s denial of the kx.
              c) Notes after Royal.
                        1) A sues on a note; B files a general deniel and alleges that A executed. Generally, a P.
                        does not need to deny a general defense. But when you deny signing something, it is not
                        raised under a general denial. Thus, P. must file a supp. pldg
                        2) Kx. Was without consideration – Must be verified under R. 93
                        3) Fraud – Must be verified b/c it is an affirmative defense under R. 94

N. Specialized Pleading forms
       1. R. 185 – A Sworn Account – applies to a huge amt. of different cases – These are claims about in
            which a systematic record has been kept. If you do the pldg. In the right way, it gets specialized
            treatment and must be filed with an affidavit, but it b/c‟s prima facie evidence of the claim. If D. is
            faced with this type of pldg, the D. must file a denial under oath. W/o a denial, the pldg with the
            affidavit is prima facia – P. doesn‟t have to itemize the account unless the ct. grants a special exception
            asking for this. Two big problems with the rule 1) Scope, 2) Technical Requirements

         2. Airborne Freight Corp. v. CRB Marketing Inc. (Tex. 1978) pg. 345
                 a) Facts:
                      Airborne filed suit against CRB and attached a sworn affidavit that named CRB as the
                          party billed for the services and CRB answered with an unsworn denial .
                 b) P.H.:
                      After a nonjury hearing, the county ct. at law rendered judgment in favor of Airborne.
                      Upon CRB‟s appeal, the Ct. of civil appeals reversed
                 c) Held:

                                                 2
                                                 8
                                            If a D. fails to file a written denial under oath and in the form provided, he will not be
                                             permitted to dispute receipt of the items or services or the correctness of the stated
                                             charges
                                          The answer filed by CRB did not plead any affirmative defenses or raise the issue that
                                             CRB was not a party to the transaction. It merely stated the CRB had no record of
                                             contracting for the services and demanded strict proof that it had authorized such
                                             services.
                                          CRB‟s unsworn account constituted prima facie evidence of the debt
                                     d) Sworn Account Significance – A way to present a claim upon which there is a regular course
                                         of dealings. Usually involves invoices. The rule‟s purpose is to have a sworn petition. If you
                                         don‟t timely file a sworn denial, you won‟t be allowed to deny the claim at all.
                                          This must be b/w the original parties involved. A stranger could do a general denial.
                                          This doesn‟t apply to leases
                                          The sworn denial has been amended a bit

                            3.    Hunt v. Heaton (Tex. 1983) pg. 352 (This is only one way to litigate title to land)
                                      a) Facts:
                                            This suit was brought as a trespass to try title action.
                                            Heaton answered Hunt‟s petition by pleading “not guilty” and demanded that Hunt
                                               furnish an abstract of the title
                                            Hunt did not request an extension of time, but waited 5 years before filing the abstract. 5
                                               days later, Hunt filed a document.
                                            The trial ct. refused to allow Hunt‟s evidence of title b/c R. 792 states that if no abstract is
                                               filed w/in time period, “no evidence of the claim or title shall be given” This rule
                                               provides that abstracts shall be filed w/in 20 days of demand.
                                      b) Held:
                                            1st arg – R. 792 should be liberally construed – Ct. won‟t disregard a rule of procedure
                                            2nd arg – The title docs were admissible under art. 3726 despite his failure with
                                               complying with R. 792– The purpose of art. 3762 is to authenticate a document w/o the
                                               necessity of proving its execution. R. 792 compels discovery
                                            3rd arg – the case was tried by consent as a boundary suit, rather than a trespass to try title
                                               – Boundary disputes may be tried by a statutory trespass to try title action
                                            When a D. requests an abstract, i.e. - a list of all the instruments you are relying on to
                                               prove your title, they want to see how to defend. D. may demand an abstract and it must
                                               be filed w/in 30 days of request.
                                            How has this rule changed?
                                                          o Now you have 30 days and a notice of hearing is given. The rule is
                                                              loosened up a bit.
                                      c) Dissent:
                                            B/c this was a boundary dispute, Hunt‟s failure to timely file the requested abstract of
                                               title did not foreclose his right to establish proper boundary
                                            B/c Hunt‟s title was not in dispute, the delay in filing the abstract could not have
                                               prejudiced Heaton in any manner
                                      d) Significance:
                                            Abstract of title puts a burden on the P. and P. must prove their title. If you lose, title
                                               passes to the D.
                                            The D. is the party in possession
                                            A petition must contain (R. 783) – Used when a landlord seeks to vacate a tenant;
                                               landlord wants to cancel a lease; 2 people are claiming possession to the same piece of
                                               property; used for boundary disputes
                                            R. 785 – P. may join w/ the D. any person who claims title to the premises
D.‟s plea is “not guilty” and is serves the same function as a general denial. The D. can give evidence, except limitations must be
specially pled. Chapter 6 - Venue

IX.               Venue
                  A. The Basic Venue Scheme
                             1. Mijares v. Paez (Amarillo 1976) pg. 368
                                 a) Facts: Paez brought a paternity suit against Mijares in Lubbock and D. sought to have the
                                     venue transferred to El Paso.

                                                                     2
                                                                     9
                  b) Held: At the time of the hearing, D. was maintaining an apartment in Lubbock and he
                      registered to vote in Lubbock.
                  c) Test for Residence for Venue – 3 steps – 1) D. must possess 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

             2. Notes from class
                 a) Which county is appropriate for the lawsuit?
                 b) P. does get to choose originally and her choice usually goes, unless she make a mistake
                 c) We will look at substantive and procedure. But you don‟t want the venue to turn into a mini
                      trial
                 d) General Rule – Mandatory exception – you are limited to the counties allowed by that
                      exception; Permissive Exception – Usually adds more choices. CPRC § 15.002
                       Except as otherwise provided, all lawsuits shall be brought in the county in which all or
                            substantial amount of events gave rise to the claim
                       In a county of D.‟s residence at the time the cause of action accrued
                       If D. is a corp., in county of D.‟s principle office.
                       You can pick your own residence, but only if 1, 2, and 3 do not apply – (Out of state
                            corp)
                 e) It gets a bit tricky when you are talking about entities.
                             Pg. 370 – Try to make it where there are fewer spots where an entity can be sued.
                             Principle Office – Where the decision makers for the organizations with this states
                                conducts the daily affairs of the organization

             3. In re Missouri Pacific R. Co. (Supp)
                 a) Facts: This is a venue case involving a mandamus proceeding (no adequate remedy by appeal)
                 b) Issue – Where is the principle office of the railroad?
                 c) Held:
                           A party may file for writ of mandamus under the new rules
                           Looking at leg. intent – mandamus is available
                           Did the trial ct. abuse its discretion holding that there was venue – Yes (P‟s choice
                               stands, unless the D. files a motion to transfer venue. At that point, P. has burden to
                               prove prime facia that where he chose venue is proper
                           What is the meaning of principle office?
                                    o §15.001 - You can have more than 1 principle office and a decision maker
                                         must mean more than having an agent. We are not talking about low level
                                         managerial decisions. P. must prove what the corporate structure is
                                         compared to other corporate structures and officers in the state.
                           P. just didn‟t meet their burden of proof – They didn‟t compare to other officers in
                               the state. This is pretty hard going on the P.
                           Since P. did not meet burden of proof, D. has his chance to show why their motion to
                               transfer is proper

             4. The county in which all or a substantial amt of the events occurred. It used to be clear that in a tort
                 action, venue was proper where injury occurred and where D.‟s conduct breached the standard of
                 care. Assume that this is still the rule. This part of the general statute says “in the county.” Does
                 that mean that there is only 1 county? Ct.s differ on this answer – Note 1 and 2 pg. 371

B.   Exceptions to the General Rule:
             1) Ask
                 a) Do any of the mandatory provisions apply?
                 b) Then ask – Do I fall back on general rule or rely on the permissive exceptions
                 c) If a statute has specific venue provision, it takes precedence over General Rule in CRPC
             2. Mandatory controls over permissive and general rule – pg. 377
                 a) Land - Action to recover real property; quiet title – This shall be brought where the land is –
                      Doesn‟t apply just b/c land is somehow involved in the lawsuit (breach of an oil and gas lease
                      is not covered)
                 b) Landlord tenant
                 c) Injunction against suit
                 d) Action against a county will be brought in that county

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                                                 0
                 e) §15.016
             3. Permissive
                 a) Some of this adds choices to the general rule
                 b) P.‟s residence – Breach of warranty by manufacturer (doesn‟t apply to retailers) may be
                      brought in any county… pg. 375
                 c) § 15.035 – Kx in Writing – If a consumer kx, where kx was signed or where D. resides.
                 d) DTPA provision – pg. 377 - General venue provision is not the only place where you can find
                      where venue is proper. READ THIS PARAGRAPH
                 e) Major transactions over 1 million -- §15.020 – pg. 48 of the Supp.
                 f) § 15.002b – Venue changed b/c of convenience – Even if P.‟s choice is proper – D. can still
                      move to change venue. This is only available to the D. You can raise this before or w/ the
                      answer
                           You are allowed to transfer to any other county that is proper.
                           The transfer must not work as an injustice

C. Multiple Claims and Parties
            1. Middlebrock Doctrine – Venue is proper as to one of several claims against the same D. Other
                 claims that have been properly joined can be tried in the same county. Venue for one of those
                 claims, brings in venue for the other claims
            2. § 15.004 – arising out of the same transaction or occurrence where one of the claims is subject to a
                 mandatory provision – Case must be brought in the county that is mandatory.
            3. Joinder rule – If you have 1 P. and 1D – there is no joinder problem – You can sue that D. for
                 unrelated claims. When you add more parties, then you add the same transaction or occurrence
                 requirement. If P. sues 2 D.‟s both arises out of the same car accident that is proper joinder.
                     o You can also add another claim based on a note
                     o But, no D. should sit through 1 claim that is totally unrelated to a claim against him.
            4. If you have several D.‟s then you bring into play - § 15.005 – If it is proper venue against 1 D., then
                 you can bring in other D.‟s for claims under the same transaction and occurrence. You don‟t want
                 multiplicity of suits
            5. § 15.046(1) – Waiver by 1 D. does not prevent the others from filing a motion to transfer venue.

             6. Problems – First ask:Is this claim controlled by a venue provision?

                    Problems pg 380
             1) Accident in Dallas, P. lives in Harris, Driver lives in Travis County, owner of truck has PPB in
             Collin County.
             If the P. sues the driver and the employer, where would it be proper to bring the suit?
             - Is there any mandatory provision that limits our choices? – No
             - Back to general rule – Are there any permissive exceptions?
             - Under general rule, we can sue where the claim occurred (Dallas) and the D.‟s resident (Travis
             county) or in the PPB (Collin County)
             - Thus, P sues in one of those counties and then brings in the other D. under § 15.005

             1a) Have a car accident with 3 different cars and the owner of the third car is Harris County. Want to
             sue same parties with now a new D.
             - Does this hypo change our choices – Yes – Now we have a mandatory venue provision. Can only
             sue in Harris County. You could bring this under the torts claim act, (101.102) – this provides a
             mandatory venue provision that states that a suit is to be brought were the action accrued. If you bring
             this suit under this act, you (§ 15.016) must bring this suit where the other acts specify.

             1b) We have driver, owner, and P, but we are now bringing in the manufacturer whose office is in
             Harris.
             - Under General Rule, we can sue in Collin (PPB) and Travis (D.‟s resident) and Harris (PPB) and
             Dallas (b/c car wreck was there)

             1c) § 15.033 – Sue now for breach of the warranty – Wouldn‟t change anything, except we now have
             P.‟s residence as a choice b/c it is a breach of warranty. (p. 375) – It is a permissive claim.

             1d) Same wreck but another D. who was neg. driving the vehicle (claimed spouse was neg. driving
             the car he was in )

                                                 3
                                                 1
- What is P. also sue his wife for emotional distress (an unrelated claim with the D.‟s) Thus, P. can‟t
sue wife in same suit as other D.‟s b/c the claims weren‟t properly joined and should be severed.
- For claims nor properly joined, needs own basis for proper venue
- Sever the wife‟s claim, leaves you no basis for having the claim in Harris county

7. What about multiple P.’s – There was a case with 2,700 P‟s and only one person had ties to
    Maverick county. In response to that - § 15.003 applies to people who were originally joined as
    P.‟s and to intervening P.‟s. The leg. tried to avoid the sit. seen in Maverick county, Thus each P.
    must independently establish venue, but even if they can‟t independently establish venue, they can
    stay in the lawsuit is they can show that 1) maintaining venue doesn‟t prejudice another party; 2)
    Essential Need; 3) Fair and convenient


8. Surgitek, Bristol-Myers Corp. v. Abel (Tex. 1999) – Supp. Pg. 49
    a) Facts:
          106 P.‟s sued Surgitek for injuries allegedly sustained from defective breast implants
          Surgitek moved to transfer venue for 104 of these P.‟s claims asserting that none could
              establish proper venue in Bexar County and none could establish that they were entitled
              to join the Bexar County suit under § 15.003
          While this action was pending, 45 P.‟s ceased being parties to the appeal, Thus only 59 of
              the P.‟s remain.
    b) Held:
          Did the Ct. of appeals have jurisdiction under § 15.003(c), given that the order appealed
              was a venue transfer order following a motion to transfer venue?
                   o § 15.003(c) contemplates that either party – P. or D. – may take an
                        interlocutory appeal (one while the case is pending, the ct. appeals here the
                        case – it is an appeal before the case is over) of a § 15.003(a) joinder decision
                   o When a trial ct. necessarily determines the propriety of a P.‟s joinder under §
                        15.003(a), § 15.003(c) plainly allows for either party to “contest that decision by
                        taking an interlocutory appeal.”
                   o D. argues that the trial ct. dealt with a joinder problem, and thus, you don‟t get
                        this appeal. The ct. said that the transfer order determines that joinder issue. Ct.
                        says that this is a venue decision based on joinder.
          Who has the burden of proof?
                   o Must use venue proof standards – if the P. offers prima facie proof through
                        pldgs and affidavits that venue is proper, the inquiry is over.
                   o When the P. can‟t establish proper venue, § 15.003(a) places the burden on the
                        P. to “establish” 4 elements before she can join venue (unfair prejudice, essential
                        need, fairness, and convenience)
                   o Ct. is trying to get away from turning this part of the trial into a mini-trial
          Standard and Scope
                   o The ct. of appeals should conduct a de novo review of the entire record. No
                        deference is given to the trial ct.‟s decision at all. This is based on the entire
                        record.
                              We are dealing with the propriety of the trial‟s ct‟s decision
                              We are also dealing with a review of what the trial ct. allowed in to see
                                  if there is an abuse of discretion.
                   o P. must put on prima facia proof for each element, but D. must be allowed to
                        bring in more evidence to rebut the prima facia proof
                   o The trial ct. can resolve disputes
                   o “From the record” indicates that the ct. of appeals is not constrained solely to
                        review the pldg‟s and affidavits and should consider the entire record, including
                        any evidence presented at the hearing.
          Analysis:
                   o The P.‟s offered Sugitek‟s witness list to demonstrate that these witnesses were
                        located all over the county, thus showing that no matter where the cases are tried
                        the witnesses will have to travel.
                   o But, P.‟s failed to establish that there was an “essential need” to have the suit
                        tried in Bexar County. Evidence that I have to pool my resources is not
                        evidence that I have to have my case tried here.

                                    3
                                    2
                          Significance – We are not going to be swayed just b/c this county is much more
                           convenient.

             9. Teco-Wetsinghouse Motor Co. v. Gonzalez (Corpus, 2001) Supp p 55
                 a) Facts:
                          Appellees filed suit in Cameron County alleging retaliation in violation of the
                             TCHRA and intentional infliction of emotional distress.
                          Gonzalez (P1), a resident of Cameron County, alleges that venue is proper in
                             Cameron County b/c he received a telephone call in Cameron County from the
                             TWMC rep., who offered him employment in Williamson County (basis for the
                             fraud claim).
                          Pasciak (P2) is a resident of Williamson County and he contends that venue is proper
                             in Cameron County pursuant to § 15.003 regarding multi-P. lawsuits – He contends
                             that he established the 4 elements necessary for joinder set out in § 15.003(a) (P2
                             must establish independently that venue is proper, and if he can‟t do that, then under
                             § 15.002(b), he can try to establish all 4 elements)
                          Standard of review from the trial ct‟s decision – de novo review
                          In a usual appeal, you have pldg‟s and affidavits and that is it – but on review here,
                             the ct. of appeals can review the entire record
                 b) Held:
                          Venue is Proper
                          No Unfair Prejudice to the D:
                                  o Pasciak‟s affidavit states that if the suit were to proceed to Travis or
                                       Williamson counties, the cost would be too high for him to pursue
                                  o The affidavit also states that Gonzalez has established proper venue in
                                       Cameron County, and b/c Pasiak‟s claims are identical to those of Gonzalez
                                       and requires the same witnesses, TWMC would not be prejudiced.
                                  o This evidence came from affidavit.
                                  o Ct. of appeals didn‟t buy the arg. that the Corp. was located there and had
                                       resources b/c those reasons came from an affidavit from P.
                          Essential Need for trying the case in that particular county
                                  o Gonzalez is Pasciak‟s main witness and he would be unable to testify for
                                       Pasciak if the suit was transferred
                                  o Pasciack has been unable to find an attorney willing to take his case in
                                       Williamson county
                                  o Must make this arg. sound diff from the pooling of resources b/c pooling of
                                       resources is not an essential need (Usually when a witness can‟t come to
                                       your county, you do a deposition – but ct. said that they aren‟t sure that a
                                       jury would give the same weight to a video depo. as they would with a live
                                       depo)
                                             Cross said that the depo. arg. isn‟t a good legal arg.
                          Fair and Convenient
                                  o The ct has held that evidence establishing the absence of unfair prejudice
                                       will generally establish fairness and convenience.
                                  o We shouldn‟t have 2 lawsuits if they can be done once (judicial resource
                                       arg) – be careful with this arg

D. Litigating Venue Rights - Dealing with CPRC and Rules of Civil Procedure
            1. First have a Motion to Transfer Venue by the D. – can argue this by saying
                a) Impartial trial can‟t be had (limited and rarely used)
                b) Mandatory venue provision governed
                c) P.‟s choice is improper
                d) Inconvenience – P.‟s choice is proper – it is just inconvenient
                e) This motion does not need to be sworn to, but you do need to state why it is improper
                f) Venue Facts are taken as true, unless D. specifically denied. If those facts are specifically
                      denied, then other side must give prima facie case. It is made by having proper pldgs. and
                      affidavits based in personal knowledge
                g) Once this is done properly, the facts presented in the affidavit are taken as established – the cr.
                      Does not decide disputed facts at this time to avoid a mini-trial
                h) There is a hearing on a motion to transfer – no live testimony or jury at the hearing

                                                 3
                                                 3
         i) P.‟s choice is kept unless based on mandatory venue provision or unfair trial
               If based on mand. – mover must establisg prima facie proof that it‟s proper and that this
                   id the approp. One
               Trial ct. can only use affidavits, use appellate ct. can use the entire record to establish
                   venue
               Once app. Ct. decided that there is improper proper venue – must remand – it is NEVER
                   harmless error
               You can have a re-trial, even though it has nothing to do w/ evidence presented at trial
                   (this might seem like a terrible waste of judicial resources)
                         This prevents forum shopping
                         This is an incentive to make prima facie proof on truthful things – This prevents
                            fraud at the venue stage

2. R. 86 – Tells you what to file
         a) Motion to transfer before everything else except a special appearance – this can be waived, but
             one D.‟s waiver does not affect another D.‟s waiver
         b) Does need to name county to be transfered
3. R. 87 – Must have this settled early. Movant has the duty to get the hearing set. P. must prove venue is
    proper in county chosen and D. needs to prove that venue is proper were to transfer.
         a) R. 87(3) – Need affidavits and proper pldgs setting out the venue facts clearly
         b) Once P. makes prima facie proof – Don‟t get a transfer unless prove that another county is
         mandatory. (These rules do not take into consideration convenience)
4. R. 88 – Can do discovery here – but don‟t get live testimony at a hearing
5. Hypos:
         a) Car wreck and P. pleads accident occurred in Dallas and D. reside in Tarrent, but P. files
             lawsuit in Collin County. D. files a motion to transfer venue to Tarrent county. D. doesn‟t
             need to file any special denials b/c the petition on its face is improper. D. wins and Ct will
             order transfer of case.
         b) Same facts, except, P. files suit in Dallas. D. files a motion to transfer and specifically denials
             that accident occurred in Dallas and that accident occurred in Tarrent. P. has to now make a
             prima facie case. If P. does not file a response, the case is transferred.
               P. will file a response and file an affidavit that accident occurred in Dallas
               We now have an affidavit from both parties so, D.‟s motion is set for hearing.
               The judge now needs to assume that P.‟s affidavits are prima facie case and case stays in
                   Dallas. The ct. does not weigh the evidence.
               If we get to trial and then find out that D. was correct, the appellate ct. must look at all
                   the evidence and reverse and retry this again.
         c) When will the D. need an affidavit, instead of raising venue.
              Even if P. made prima facie proof, if D. is relying on mandatory provision and P denies
                  D.‟s venue facts in his motion to transfer, then D. must have affidavit to make prima facie
                  showing that the venue he chose is proper

    6. Cts try to get around this b/c they don‟t want to send this back.
        a) The trial judge‟s decision gets the benefit of the doubt

    7. Acker v. Denton Pub Co. p. 388
        a) Facts:
                  Acker appeals the summary judgment of a district ct. in Denton for a cause of action
                     asserting defamation and invasion if privacy
                  D. filed a motion to transfer alleging that there is a mandatory venue provision
                     saying that venue is proper where D. resides. But 1 D. resides in Denton and 1
                     resides on Tarrent
        b) Held:
                  Was venue erroneously transferred from Tarrant county to Denton County?
                          o Denton Publishing Co. is domiciled in Denton County, where its registered
                              office and registered agents are located.
                          o All D.‟s, except Tom Bateman, reside in Tarrant County
                          o § 15.017 states that suit concerning libel will be maintained in the county
                              where P. resided at the time of the cause of action or the county were D.‟s
                              reside (this is a mandatory provision)

                                        3
                                        4
                       o  P. did not offer proof to support venue in Tarrant County – when a D.
                          pleads a venue fact and the P. fails to specifically deny it, the trial Ct. is
                          required to consider that venue fact true.
                      o Mr. Acker‟s basis for claiming venue in Tarrant County was that he had
                          joined Tom Batemen, a Tarrant County resident, as a D. – Mr. Bateman was
                          not a proper D., though. This doesn‟t matter b/c P. didn‟t raise any
                          objection.
             c) Notes from class – Trial ct. transferred case to Denton County. The appellate ct. can
                 now consider the entire case and P.‟s petition does not allege that Tarrant County D.
                 committed any wrongs. The affidavit from the D. said that he did nothing, and this
                 was not controverted by P., thus, it is taken as true. The prima facie proof made by
                 P. was misleading and in view of entire record, the trial ct. was right.
             d) Significance – Appellate ct. must look at entire record. The trial ct. might have made
             a mistake, but in light of the entire record, it might have done the right thing.

    8. Class Notes – Once there is a mistake w/ venue – not reversible error
             a) Basic Scheme for Venue Pleadings – Read through Chapter 61.010 in the Dorsaneo
                 litigation guide
                      o D. files a motion to transfer venue (b/c venue isn‟t proper or there is a
                           mandatory venue)
                                 D. then says where venue is proper
                                 If D. says that is should be transferred b/c of mandatory venue
                                     provisions . D.‟s assertions are taken as true unless P. disputes
                                     them
                      o P. must assert in pldg. that D.‟s facts are not accurate. If P. wants the case
                           not transferred, P. must then present prima facie proof of his venue facts by
                           affidavits. P. can also put at issue D‟s venue facts if P. feels that that is
                           necessary
                      o If P. makes prima facie proof, P.‟s choice wins
                      o the ct. does not weigh the evidence – if P.‟s prima facie proof is in order –
                           we go w/ that. Ct. wants to make sure that there is not a mini-trial.
                      o If there is an appeal, ct. can look at all of the record

9. Ruiz v. Conoco, Inc. (Tex. 1993) p. 392
    a) Facts:
              Ruiz, a resident of Hidalgo, suffered head injuries in Webb County while working
                 for Cameron Inn Works, on a well owned by Conoco.
              Ruiz sued Conoco in Starr County claiming that venue was proper under a former
                 permissive venue exception that was repealed in 1995 allowing a foreign corp. to be
                 sued in a county in which the comp. Has a rep.
              Conoco sought to have the case transferred to Harris County b/c Conoco had no rep.
                 in Starr County
    b) Held: -
              CPRC § 15.064(b) – “On appeal from the trial ct. on the merits, if venue was
                 improper it shall in no event be harmless error and shall be reversible error.”
              If there is any probative evidence in the entire record, including trial on the merits,
                 that venue was proper in the county where judgment was rendered, the appellate ct.
                 must uphold the trial ct.‟s determination.”
              Only if there is no probative evidence that venue was proper either in the county of
                 the suit or in the county to which transfer was sought should the appellate ct. remand
                 the case to the trial ct. to conduct further proceedings. 1 exception to that rule:
                      o TRCP 87(3)(d) – Additional proof may be ordered in connection w/ a
                           motion to transfer if neither party makes the required showing at first
              Ct. of appeals usually review lower ct.‟s on sufficiency of the evidence, but that is
                 NOT how they are going to review these kinds of decisions.
              “The procedure mandated is fundamentally flawed.” We are not going to look at the
                 sufficiency of the evidence – if there is any probative evidence that P. is correct, you
                 affirm, even if the preponderance of the evidence is to the contrary.
              They are trying not to waste time b/c venue does not have anything to do with the
                 merits of the case

                                    3
                                    5
                 They are trying to avoid another hearing. So if there is no probative evidence to
                  support trial ct‟s ruling, remand to the trial ct. If there is any probative evidence that
                  D.‟s venue was proper – you remand and order the trial ct to transfer venue w/o a
                  hearing. If there is no evidence that P or D.‟s choice was correct, then you remand it
                  to the trial ct. “for further proceedings.” (That is rarely going to happen).
                       o If you find yourself in that position – settle; agree w/ D; dismiss your
                            lawsuit and try this again; D. might file another motion to transfer venue

10. Wilson v. Texas Parks and Wildlife Dept. (Tex. 1994) pg. 394
    o Under ‟95 provisions can now use – 15.063 – P,‟s choice is improper
    o 15.002(b) – convenience
    o Wilson only dealt with 15.063(1)
    a) Facts:
         P.‟s sued the “Department” in district Ct. in Travis County (location where some of the
             negligent decisions were made), alleging that the Department‟s negligence caused 2
             people to drown.
         The Department filed a motion to transfer venue to Blanco County (which is where the
             park is located) and the motion was granted
    b) Issue: Did the trial ct. commit reversible error by transferring a civil lawsuit filed in a Tx.
        County that qualified as proper venue to another county that originally might have been
        considered proper venue? - Yes
    c) Held:
         The burden is on the P. to prove that venue is maintainable in the county of suit
         R. 87-3(c) and § 15.063(1) require that a lawsuit pleaded and proved to be filed in a
             county of proper venue may not be transferred.
         D. is incorrect to argue that reversible error exists only if the county of trial was one
             where permissive or mandatory venue could never have been sustained
         CPRC §15.064(b) – If venue was improper it shall in no event be harmless error
                  o Standard of Review – Independent review of entire record
         The P.‟s sued a gov‟t entity; thus, venue is governed by §101.102 CPRC which provides
             that “a suit under this chapter shall be brought in state Ct. in the county in which the
             cause of action or part of the action accrued.” (This was Travis County)
         Under 15.063(1) – If P. chooses a proper venue, you can not transfer – even if D. is
             transferring it to a venue of proper venue)
                  o P.‟s choice is NOT proper only in cases involving mandatory provisions,
                       inconvenience, and improper venue
    d) Significance – P. gets to choose venue and that is not disrupted often

11. American Home Products Corp. v. Clark (Tex. 2000) Supp. Pg 62 – Look at CPRC 15.002 and
    15.003
    a) Facts:
         11 P.‟s sued 10 D.‟s in Johnson County claiming injuries resulting from FenPhen. 9. P.‟s
             live outside of Texas, 1 lives in Gregg County and 1 lives in Johnson county.
         American Home filed a Motion to Transfer Venue, Objection to Attempted Joinder, and a
             Motion to Strike or Sever P.‟s.
    b) PH:
         The trial Ct. conducted a non-evidentiary hearing and denied all American Home‟s
             Motions w/o specifying the grounds
         American Home filed an interlocutory appeal. The Ct. of appeals did not determine
             whether it had jurisdiction over American Home‟s appeal
         The trial Ct. signed a revised order stating that P.‟s had juris. in Johnson County and the
             ct. of appeals held that b/c American Home‟s motions was under § 15.002, it had no
             interlocutory-appeal juris. Trial Ct. signed an order that all parties have established juris.
             independently.
    c) Issue: Does § 15.003(c) grant a ct. of appeals interlocutory appellate jurisdiction over all
        venue decisions that relate to intervention or joinder?
        Interlocutory appeals are only appropriate under §15.003(c) on joinder decision
    d) Held: Affirmed
         § 15.003(c) does not provide for an interlocutory appeal from the trial ct‟s determination
             that a person seeking intervention or joinder has independently established proper venue
                                    3
                                    6
           If a trial ct, even erroneously, decides that venue is proper under § 15.002, an
            interlocutory appeal under § 15.003(c) is unavailable
         The lang. of the leg. indicates its intent to limit interlocutory appellate review of a trial
            Ct.‟s decision to whether certain P.‟s may intervene or join in the suit.
                       o It doesn‟t matter that the trial Ct.‟s decision was totally wrong.
                       o Interlocutory appeals only apply when the P.‟s have not independently
                             established venue
    e) Concur:
         Does not understand why the trial ct. signed an order concluding that venue was
            established independently as to each P. when only 1 P. had a claim against 1 D. in
            Johnson County
         The law is correct, but this is subject to abuse
    f) Dissent:
         § 15.003 was designed to end forum shopping
         The trial ct. didn‟t have a basis to find venue established independently for each P.
         In a multi-P. suit, appellate Ct.s are to determine in an interlocutory appeal whether each
            P. has established venue independently of any other P. as required by § 15.003
         Says that the trial will likely be a waste of time b/c improper venue is reversible error

12. In Re Masonite Corp (Tex. 1999) Supp page 69
    a) Facts:
         100‟s of homeowners filed suit in Jim Hogg County against Masonite Corp., Abitibi-
            Price Corp., and MG Building Materials alleging that the D.‟s used defective building
            materials.
         100‟s more P.‟s filed a similar suit in Duval County
         D.‟s filed motions to transfer venue of the non-resident homeowner‟s claims to Dallas
            County, PPB.
         In response, the homeowners filed amended petitions and motions to sever.
         Mandamus – a request for a higher ct. to order a lower ct. to do or not do something
            (Walker case – But show a clear abuse of discretion and appeal would not be an adequate
            remedy).
         The non-resident P. admitted that venue was not proper


    b) PH:
           The trial ct. denied both the motions to transfer venue and the motion to sever, but then
             “on its own motion,” severed the claims of the non-resident owners and transferred them
             to the counties of their respective residents. None of these counties was the county
             selected by Masonite. 2 suits have now been divided into 16 different counties.
           The ct. of appeals denied D.‟s writ of mandamus (D. is saying that the trial ct.‟s order
             was void. There is benefit in proving that the order is void b/c a void order says that
             there is not an adequate remedy on appeal)
           Ct. of appeals said that the order was not void
    c) Held: Writ is granted
         B/c the P.‟s conceded that venue was not proper for the non-residents, all D.‟s had to do
            was offer prima facie proof that Dallas County was proper – and they did this
        
            The trial ct. had no discretion to grant the P.‟s transfer of venue; the P.‟s have the 1 st
            choice for venue, not the 2nd
         D.‟s case presents exceptional circumstances that make an appeal an inadequate remedy
            and that is why mandamus is granted (the exceptional circumstances is burdening 14
            other counties)
    d) Dissent
         The trial ct. did abuse its discretion, but that doesn‟t warrant mandamus relief
         Venue determinations aren‟t reviewable by mandamus
         The leg, and the ct. has determined that no interlocutory appeal lies from the trial ct.‟s
            determination of a motion to transfer.

13. Geographical Data Processing Center v. Cruz p. 398
    a) Facts:

                                   3
                                   7
                          P.‟s cause of action is based on fraud in connection with a Software Licensing
                           Agreement. Based on the agmt, appellant, a wholly owned subsidiary of Whitehall, was
                           to pay $15,000 for a temporary license for 180 days for the use of a system.
                          Cruz sued Webster, Whitehall and GDPC
                          Webster was in absolute control of Whitehall and appellant during this time
                          Appellant refused to pay the balance due for the license and retained the system
                          P. alleges that appellant represented to the geophysical industry that it had an exclusive
                           system and P.‟s system was diminished
                          Suit against 3 diff. D.‟s and trial ct. basically transferred the entire case
                  b) Ph:
                       Whitehall and Webster filed a plea of privilege to be sued in Dallas, but GDPC did not
                          file one
                       The trial ct. held that the actions were not severable and transferred the suit to Dallas
                       GDPC urges that the actions are severable
                  c) Held: AFFIRMED
                       Pleadings concerning the express direction of the actions of the corporate D.‟s by
                          Webster and the allegation of the alter-ego status of Whitehall and appellant require the
                          presence of each and all the D.‟s for an adequate judgment
                       CPRC § 15.0641 – In a suit in which two or more D.‟s are joined, any action or omission
                          by one D in relation to venue, including waiver of venue by one D., does not operate to
                          impair or diminish the right of any other D. to properly challenge venue
                       Looking to the idea of indispensable parties
                       Relief sought against all 3 D.‟s were interwoven and indispensable, therefore it was
                          proper to transfer the entire case

E. Waiver of Venue Rights
           1. Bristol-Myers Squibb Co. v. Goldston pg. 401
               a) Facts:
                     A settlement agreement contained an opt-out procedure that allowed class members to
                        withdraw from the class and pursue their own lawsuits.
                     Goldstein filed suit in Wichita County and other P.‟s joined under § 15.003
                     Appellants filed a motion to transfer venue to Dallas challenging the joinder of P.‟s
                     The joining P.‟s asserted that pre-1995 venue law applied b/c of the lang. of the opt-out
                        agmt.
               b) PH: This is an interlocutory appeal from the trial Ct.‟s denying appellants challenge to venue
                    based on joinder of multiple P.‟s
               c) Held:
                     If pre-1995 rules apply, this ct. has no juris., but if post 1995 rules apply, then “any party
                        who is dissatisfied with the trial Ct. ruling on intervention or joinder can file an
                        interlocutory appeal.”
                     Venue is a procedural right and not a substantive right. Thus, venue would not be
                        included under the settlement agmt‟s rights lang. Venue is not a right; it is a procedural
                        rule.
                     B/c venue is fixed by law, any agmt or kx whereby the parties try to extend or restrict
                        venue is against public policy
                              o Exceptions to this:
                                       15.020 – Transactions over 1 Million dollars
                                       Where you set performance in a specific place by kx
               d) Class Notes
                     New rules make it harder for joinder

F. Change of Venue B/c Impartial Trial Cannot be Had – Rules 257; 258; 259
           1. Union Carbide Corp. v. Moye pg. 405
               a) Facts:
                    Over 2 thousand P.‟s are alleging harm from exposure to toxic chemicals .
                    Union Carbide filed in the trial ct. a motion to transfer venue on the ground that an
                        impartial trial could not be had in Morris County
                    The trial ct. conducted a hearing based on written record only and refused to allow live
                        testimony and overruled the motion to transfer and continuance.

                                                 3
                                                 8
                                         Union Carbide contends that under TRCP 258, it was entitled to a full evidentiary hearing
                                          with live testimony or a continuance
                                      On the day the venue hearing was scheduled, P.‟s filed a motion opposing oral testimony
                                          and that was sustained.
                                      Appellants are trying to mandamus the ct. to require the trial judge to either allow live
                                          testimony or set aside the hearing and give them a chance to abide.
                                      S.ct must determine if the trial ct. abused its discretion in denying its continuance
                               b)   Held:
                                      The trial ct. abused its discretion in denying a continuance.
                                      The trial ct. misled the parties to believe that they were allowed live testimony.
                                      Trial ct. must now give them a chance to supplement the live testimony
                                      Footnote – Not deciding if R. 258 requires that a trial judge allows live testimony
                               c)   Hecht Concurring – Does not believe that live testimony is necessary whenever the
                                     availability of an impartial trial in the forum is disputed. We are not talking about impartial
                                     facts.
                               d)   Gonzalez Concurring – The trial judge is at a disadvantage to evaluate the credibility of the
                                     witness from reading the testimony. The parties have a right to an oral hearing under TRCP
                                     258. You can‟t judge credibility from documentation. Wants to always require live
                                     testimony
                               e)   Class Notes
                                      By implication, they ruled that live testimony is not always required and you want to
                                          avoid mini-trials

                           2. Rule 257 – Requires a motion by either party and an affidavit of 3 credible witnesses living in a
                               county – Need to show – 1) prejudice against the movant; 2) Combination by influential people
                               that there is a conspiracy
                           3. R. 258 – Procedurally, shall be granted unless credibility of those 3 people are attacked. Must file
                               an affidavit and this is then tried by the judge. You can do discovery. Generally trying to move
                               this to an adjoining county of proper venue. If you don‟t have a joining county, then any proper
                               venue. If no other proper venue, then you go to an adjoining county where an impartial trial can
                               be had.

             G. Multi-district Litigation – pg. 409Chapter 9 and 10 Discovery

X.   Discovery – Overview – 190; 191; 192
     1. An Introduction to the Purposes and Scope of Discovery
             A. Purposes of a lawsuit
                     1. 1st purpose – Find out facts of the lawsuit (favorable and unfavorable facts)
                     2. Freeze testimony of the opposing witnesses – Try to get witnesses, under oath, to get a story. Need to
                         ask some specific questions.
                     3. Trying to put some evidence in admissible form (just in case a witness can‟t come to trial)
             B. Class Notes - You can discover anything that is relevant to the dispute. You can discover things that are
                 considered inadmissible.
                     1. Test – Reasonably calculated to lead to admissible evidence. Other side can argue that this is not
                         reasonable and won‟t lead to admissible evidence. Can‟t use discovery to harass. Spirit of the rules is
                         trying to keep discovery from being abused. Ct. balances how relevant is what you are asking to if it is
                         burdensome to the other side.
                     2. In order to do proper discovery, you need to know what the law and the cause of action is.
                     3. When you are dealing with an industry – you need to learn about that industry – You need to know that
                         process and know what documents are usually generated.
             C. R. 192 exempts some things from discovery (this is not a question of relevancy):
                     1. An attorney‟s work product
                     2. The identity, mental impressions, and opinions of a consulting expert who will not testify at trial.
                     3. Any matter protected from disclosure by privilege
             D. The Discovery Devices Provided by the Rules: You can do these in any order that you want, but you
             normally want docs before you have a depo.
                     1. Request for Disclosure – R. 194.2 – You ask generally for information. This is the basic information.
                         Name, Address for potential parties, names are people have knowledge of relevant facts and testifying
                         experts. Not allowed to argue the relevance of this info.


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       2. Oral Deposition – Ask questions of a witness under order w/ a ct. reporter before a trial. Opposing
           party is present. They must have notice and chose to ask questions. New rules limit what type of
           objections you can make. Can take depos of party and non-party witnesses. If non-party witness, you
           need to subpoena them to require them to show up. This is one of the most effective methods of
           discovery. You must be efficient b/c of the new time limits. (Look at the time limits for this) – 6hrs
           for $50,000 or less
       3. Depositions on Written Questions – Send a set of written questions and the ct. reporter reads the
           questions. Can‟t follow up with questions. Use this for records custodians to see if this is the type of
           records you keep. Used fairly rarely
       4. Interrogatories – Written questions submitted to parties only and answered under oath. Have 30 days
           to answer this. Problem with this – get vague answers. Must be very careful in how you ask the
           question. Can have a definitional section at the beginning of the interrogatory. It is a better was to get
           non-controversial info. like dates. Under old rule, could have many questions to respond to – Under
           the new rules can only have 25 interrogatories and this counts subparts. These limitations can be
           changed by Ct. order. (as an attorney, never sign this – the client should)
       5. Requests for Admissions – Please admit or deny the following facts. “You were driving the car of this
           date.” Once these statements are admitted, they are set. There are time limits
       6. Production and Inspection of Documents Tangible Things, and Realty – For parties only. If you
           want to get non-parties, you must subpoena them. It can be a category of documents – it doesn‟t have
           to be a piece of paper unparticular. The docs must be given in the order In which it was requested.
       7. Motions for Physical or Mental Examinations – Fairly intrusive. Need a showing of good cause for
           this.
E. Examples pg. 520
       1. Info regarding to medical expenses
                 a) Interrogatories or Request for Production
       2. The bank statements or cancelled checks of the P. for these expenditures.
                 a) Request for Production (if P. doesn‟t keep these records, can make P. get the docs from the
                 bank)
       3. The genuineness of a kx
                 a) Request for admission
       4. The opposing party‟s version of facts
                 a) Depo or maybe interrogatories
       5. Records from a non-party
                 a) Subpoena the non-party for a depo and ask to bring certain docs.

F. The Relevance Test Generally
        1. Jampole v. Touchy (Tex. 1984) pg. 521
               a) Facts:
                     Jampole asks this ct. to direct Judge Touchy through mandamus to vacate an order
                         denying certain pre-trial discovery.
                     Jampole brought a products liability suit to recover damages for the death of his wife.
                         (She dies from injuries when her car caught fire – i.e. post-collision fuel fire)
                     P. alleges that the car was defectively designed and made a claim for punitive damages
                         that GMC knew that the car was defectively designed
                     Jampole filed interrogatories to determine GMC‟s pre-accident knowledge of alternative
                         designs. The trial ct. limited discovery to knowledge and info. based on records
                         pertaining to 1971-1977 Vegas and Astres
               b) Held: - Takes each request separately
                     Must first show a clear abuse of discretion
                                   o The ultimate purpose of discovery is to seek the truth
                     Whether a product is defectively designed must be determined in relation to safer
                         alternatives
                     Jampole complains of the trial Ct.‟s action in denying discovery of assembly diagrams
                         and instructions
                                   o Comparing GMC‟s assembly instructions and diagrams with the fuel system
                                       of the Vega as it was manufactured is a proper aid. P must prove that GMC
                                       knew of other designs - this is needed for gross negligence – need to show
                                       a conscious indifference.
                                   o GMC argued that this diagrams were competivley sensitive, but Jampole is
                                       not GMC‟s business competitor – Discovery can‟t be denied b/c of an

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                              asserted propriety interest when a protective order would preserve that
                              interest. (Ct. did not say that that was an irrelevant point)
                 Jampole‟s remaining complaints fail to establish abuse of ct‟s discretion
                          o Denied discovery for 2 proposed fed. motor safety standards – GMC
                              promised to search and produce all doc‟s responsive to Jampole‟s request
                          o Denied certain master crash test indices – the trial ct. ordered GMC to
                              produce a listing of all crash tests that GMC was already required to
                              produce.
         c) Significance - Scope of Discovery
              It is very broad with a relevancy test. You are able to ask for things that a trial ct.
                 wouldn‟t allow. 192.3 – Can discover anything relevant to the subject matter. Is it
                 reasonably calculated to lead to admissible things. Cts. are allowed to do a balancing test
                 b/w burden on D to produce and relevancy to the P. The stronger the relevancy, the more
                 likely you can proceed.

2. K Mart Corp. v. Sanderson (Tex. 1996) pg. 525
       a) Facts:
             Thompson sued K Mart after she was abducted and raped for negligently failing to make
                 adequate provisions for her safety
             Thompson served 3 interrogatories to K Mart.
       b) Held:
             Interrogatory 10 asks for all criminal conduct in the K Mart stores for the last 7 years –
                 this would include shoplifting, which has no connection to Thompson‟s cause of action.
             Interrogatory 15 asked for all criminal activity at all property during part 7 years
             Interrogatory 16 - any incident at K Mart at nationwide dealing with abduction – This is
                 very burdensome and something happening in El Paso is not relevant
             Discovery can‟t be used to fish.
             These interrogatories were overly broad and burdensome.
       c) Significance – Other questions she could have asked:
             What type of security have they implemented?

3. In Re American Optical Corporation (Tex. 1998) pg. 527
         a) Facts:
              This is an original mandamus case in which 140 P.‟s seek damages for asbestos-related
                  injuries.
         b) PH: In response to P.‟s doc. requests, the trial ct. ordered relator to produce virtually every
             doc. ever generated relating to its products, w/o tying the discovery to the particular products
             the P.‟s claimed to have used.
         c) Held:
              The trial ct. must make an effort to impose reasonable discovery limits b/c discovery may
                  not be used as a fishing expedition.
              P.‟s have access to pictures of D.‟s products that would allow them to identify the
                  respirators used. Preliminary investigation of background facts could limit the scope of
                  the doc. production.
              If request is not tailored, trial ct. is obligated to impose limits
              Ct. did not consider the arg. that P.‟s in this case allege only asbestos related injuries and
                  any docs. relating to silica are not relevant b/c D. did not raise this specific objection in
                  trial ct.

4. New rules require disclosure – Any person with knowledge of relevant fact (192.3); experts can be a
    person with knowledge of relevant facts and didn‟t require all of their knowledge in preparation of
    trial. Hard to make an expert a witness.
          a) Witness statements are relevant and discoverable. It does not cover notes taken by an attorney
              during an interview.
          b) Allowed to get names of people testifying
          c) 192.3(j)
          d) Info about settlement agmts and docs used solely to impeach a witness (pg. 530 and 540)
               192.3(f) – existence of insurance is discoverable and want to know this b/c insurance
                   comp. Can be stuck with liability.
               Just b/c something is discoverable does not mean that it is admissible.
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         5. In Re: Frank A. Smith Sales, Inc. (Corpus, 2000) pg. 95 Supp.
                  a) Facts:
                       Smith brings a petition for writ of mandamus seeking discovery of a settlement agmt that
                           Smith alleges will entitle it to a settlement credit in pending litigation
                       Pena alleged that Smith‟s auto dealership appropriated his credit information that led to
                           substantial debts.
                       Pena brought suit in fed. ct. against credit reporting agencies, which settled.
                       Smith relies on the “one satisfaction rule” which provides that, where a claimant seeks
                           recovery for the same injuries from multiple parties, the claimant is entitled to only one
                           recovery on those injuries.
                  b) Held:
                       Settlement agmts., including the amt. of the settlement, are discoverable where they are
                           shown to be relevant. The party resisting discovery has the burden to plead and prove the
                           basis of its objection.
                       Pena sought recovery for the same set of injuries on both suits
                       The burden is proof is on the party resisting discovery in this situation. They have the
                           burden to prove that the credit comp. did not compensate for the same claims.
                  c) Net worth – Think about how much potential for blackmail in getting someone‟s net worth.
                      (Punitive damages is an example where you need to know net worth. Bifurcate the trial to
                      avoid the harshness of discovering net worth. Sears case – wanted the annual reports and tax
                      returns - the ct. said that the annual reports aren‟t burdensome, but just b/c you are entitled to
                      net worth doesn‟t mean that you will get tax returns.

G. Discovery Solely for Impeachment = p. 532
        1. Russell v Young (Tex. 1970)
                a) Facts: Trying to figure out bias. That information (witness‟ financial records) is not
                      discoverable.
        2. Ex Parte Shephard (Tex. 1974)
                a) Facts: Owner wanted appraisal reports in order to examine witness on inconsistencies. This
                      was discovery solely for impeachment.
                b) Held: Russell was about getting private records. Here, the records are not private. Thus, they
                      were discoverable solely for impeachment. Also, this discovery was not primarily to show
                      bias. Info. is discoverable if it relevant to the subject matter
        3. Walker v. Packer (pg. 566)
                a) Facts: Had docs from a non-party witness and they were questioning Dr. about guidelines in
                      order to show bias. Dr. said that he was unaware about his ability to testify. P. wanted to get
                      hospital docs about the limits to testify. Another Dr. said that the hospital passed out info.
                      saying that Dr.‟s must get hospital consent before giving a depo.
                b) Held: The credibility of the witness is at issue. This is also specific evidence of bias and this
                      is not a global discovery request like in Russell and this is directly related to bias and bias is
                      relevant b/c this is a non-party witness. This is reasonably calculated to led to discoverable
                      info, even though this discovery was asked for only for impeachment.

H. The Discovery Rule Privileges – R. 192, 194, 195, 192.3(e), 192.3(6), 193.5, 194.5
       1. National Tank Co. v. Brotherton (Tex. 1993) pg. 534
               a) Facts: - This is under old Rule 166
                     An explosion occurred at Wichita Falls manufacturing facility operated by NATCO
                        killing Rex Willson.
                     NATCO learned of the explosion the day it happened and dispatched someone to
                        investigate
                     Willson‟s wife requested that NATCO produce the reports prepared in connection w/ the
                        accident investigation. NATCO objected, asserting the attorney-client, work-product,
                        witness, statement privileges.
               b) Held: Case is remanded back
                     Work product, according to R. 166(3)(a), are docs. prepared and assembled in actual
                        anticipation of litigation or for trial.
                     TRCP 166b(3)(c) protects from discovery witnesses statements “made subsequent to the
                        occurrence or transaction upon which the suit is based and in connection w/ the


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                prosecution, investigation, or defense of the particular suit, or in anticipation of the
                prosecution of defense of the claims made a part of the pending litigation.”
              2 prong test to see if the investigation is conducted in anticipation of litigation
                     o The ct. is required to determine whether a reasonable person, based on the
                          circumstances existing at the time of the investigation, would have anticipated
                          litigation (substantial chance of litigation)
                                This prong may be met even if P. has not shown an intent to sue
                                Need to consider the totality of circumstances to see if a reasonable
                                    person would believe there is a substantial chance of litigation
                                    (litigation does not have to be imminent and it doesn‟t have to be in
                                    response of P.‟s actions)
                                The fact that an accident doesn‟t, by itself trigger “in anticipation of
                                    litigation,” but it can aid to having a substantial likelihood of litigation
                                This is the objective prong
                     o The party invoking the privilege must have had a “good faith belief that
                          litigation would endure.”
                                Need to decide if a “routine” investigation is conducted in anticipation
                                    of litigation. If routine -
                                           The ct. should determine the primary motivating purpose for
                                               the investigation
         c) Concur/Dissent
              The majority is approving concealment in the investigation
              Unless there is an abuse of discretion, the trial ct‟s ruling should not be disturbed
         d) Would this case have been decided differently under the new rules?
             o Under the new rule, there is a substantial need exception under work product

2. Privileges:
         a) Evid. R. 503
         b) R. 192 - Work Product – This rule has changed b/c the rule now gives a def. of work product.
              Witness Statements are now discoverable, but you can now say that something is attorney-
              client privilege.
               Why do we have this?
                        o Encourage attorney‟s to explore the case
                        o Example:
                                 Legal strategies – Here are my thoughts and mental impressions – this
                                     is the most protected work product and is called “core work product”
                                     which means that it receives absolute protection
               Ordinary work Product – Subject to discovery is substantial need and undue hardship is
                   proved
               TRCP 192.3(h) – Witness Statements - “Notes taken during a conversation or interview
                   w/ a witness are not a witness statement”

3. In Re Team Transport (Houston 1999) Supp. Pg. 99
         a) Facts: Martinez was hit by a person at the Michelin . Martinez wants a letter from an
             employee at the plant to a company‟s officer. The letter described the accident and comments
             about the procedure in dealing with things like this.
         b) Issue: Was there an attorney-client privilege here? Was this, in fact, a witness statement?
         c) Held:
             o Can‟t really decide this b/c D. didn‟t reach the burden of proof
             o The first part of the letter, parties concede is a witness statement.
             o The second part of the letter pertains to the accident, therefore it is not protected and it is
                  discoverable as a witness statement. It doesn‟t matter that the vice-pres. wasn‟t at the
                  scene.
             o Rule – “A person with knowledge of relevant facts need not have personal knowledge of
                  the facts”
             o This was taken in anticipation of litigation, but that is irrelevant when in comes to witness
                  statements
             o R. 192.3(c) – A witness statement is signed or proved in writing or is a recording of a
                  witness‟ oral statement. This is referenced again in (h). A person with knowledge does


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                  not need to have personal knowledge. If the info. is obtained solely in anticipation of
                  litigation, this person does not have knowledge of relevant facts.
             o    R. 192.3(a) – Allows discovery of all relevant info. that is not privileged. A fact is not
                  privileged. A compilation done in anticipation of litigation can be privileged.

4. In re W & G Trucking, Inc. (1999) Supp. 102
         a) Facts: D.‟s are owners of a logging truck that collided with a car driven by Meyers. P. wants
             to produce a written statement by the D. given to an insurance investigator before the suit was
             filed. An insurance investigator obtained Jamison‟s statement at the request of W & G. This
             report is taken before the new rules came into force. The investigator was sent after Grissom,
             the vice-president, learned that an attorney went to the home of Meyer‟s mother
         b) Held:
                   The statement did not involve a client under Rule 503 and the application of the new
                       discovery rules did not violate TRCP 1 or cause the D.‟s undue prejudice. Jamison
                       was not a “client.” No evidence that the insurance person was an agent.
                   D.‟s argue that Jamison believed that his statements would remain privileged under
                       former R. 166(3)(c), thus, R. 192 should not be applied to this “transition case”
                            o This arg. is unpersuasive R.166b would not have helped in his case b/c
                                 exceptions could be disregarded upon a showing of a substantial need and
                                 undue hardship.
                   Have they lost due process rights with the new rules? – No – the new rules do not
                       hinder substantive rights b/c these are all procedural rules You do not have a vested
                       right in presuming that the rule will be the same

5. In Re Weeks Marine, Inc. (2000) Supp 104
         a) Facts: Martinez sued Weeks Marine under the Jones Act claiming that he was injured when
             the vessel struck a stationary object. Martinez wanted to discover 1) Ott‟s investigative report
             containing a summary of statements by witnesses – this is an opinion, 2) a surveillance report,
             3) and a surveillance video, all which Weeks Marine claim are privileged. Weeks marine
             claims that the docs. are protected by work product and attorney-client privilege
          b) Held:
                   Otto‟s total report is privileged as work product, b/c the report was created in
                      anticipation of litigation and b/c it is an opinion. It lists inconsistencies and
                      evaluated the witnesses. (A redacted portion of the report might be discoverable)
                   The surveillance report does not reveal any info. about the accident or address
                      Martinez‟s injury. This is also done in anticipation of litigation
                           o Rules exempt from work product photos and videos (but videos are not
                                snapshots) that are images as underlying facts and photos that will come in
                                as evidence (Remember request for disclosure – R. 192)
                   Upon learning that an employee complained of an injury and hired an attorney, a
                      reasonable D. would believe a substantial chance of litigation existed
                   Martinez may have been able to discover the docs in federal ct., but he subjected
                      himself to R. 192.5 by choosing to sue in state ct.

6. Duration of Work Product. The Ownes Corning Case – Work product is not limited to docs prepared
    in a particular case in which docs were sought. If docs were work product in a prior case, these docs
    continue to be protected (R. 192.5) subject to substantial need. Ct. in Nat. Co. (footnote 10) continuing
    work product is consistent with in anticipation of litigation.

7. Other Discovery Privileges:
    a) Distinction b/w consulting (whose opinion is not subject to discovery and their thoughts should not
        be exposed to the testifying experts) and testifying experts (whose opinions should not have relied
        at all on the consulting experts).
    b) R. 192.3 – With a testifying expert – that is not work product. 194.5 - Testifying experts must
        provide anything they review and look at in formulating their opinions and that material is not
        work product.
               What is said to an expert can be discoverable under R. 192.3
    c) You can‟t get the litigation file – you can get docs in it, but not the file
    d) Some of these rules allow the substantial need exception, but we really don‟t know what that means
        (failing memory of witnesses can be a why to get it)

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8. Lindsey v. O’Neil (Tex. 1985) pg. 545
        a) Facts: P.‟s brought this lawsuit against several D.‟s based upon medical malpractice and
             products liability theories. The P.‟s served their 2 nd Amended Notice of Depo. on Travenol
             Labs, Inc. (this is a corp; therefore you list the areas you want info. and the corp. must come
             up with someone who can answer the questions on those areas) This depo. requested
             Travenol to produce individuals for depo. on 39 subject areas.
        b) Held:
                  No provision exists in the TRCP exempting the mental impressions and opinions of
                      experts from discovery when these mental impressions were not developed in
                      anticipation of litigation
                  Can strike those areas that are irrelevant are obtained in anticipation of litigation
        c) Significance – Expert opinion is privileged ONLY if formulated in anticipation of litigation.
             The party seeking to prevent disclosure must prove that it is in anticipation of litigation.

9. Axelson, Inc. v. McIlhany (Tex. 1990) pg. 546
        a) Facts: The suit involves the largest gas well blowout in the U.S.. P.‟s are mineral interest
             holders. Several potential witnesses maintain “dual capacity” – they possess first hand
             knowledge and serve as consulting-only experts for Apache and El Paso. P. seeks to discover
             all facts and mental impression known by Storts, a consulting expert.
        b) Held:
               The facts and opinions acquired by an expert and an active participant in the events is
                   discoverable. This info. is not shielded from discovery by changing the designation of a
                   person to consulting-only expert.
               An employee who was employed in an area that b/c‟s the subject of litigation can never
                   qualify as a consulting-only expert b/c the employment and his knowledge was not in
                   anticipation of litigation. If an employee is working in one area of the co. and after the
                   accident, is assigned to another area in anticipation of litigation – then they can possibly
                   be used as a consulting expert b/c they acquire their knowledge in anticipation of
                   litigation. Facts known before are discoverable, thus there are risks involved with
                   moving someone.

10. Tom L. Scott v. McIlhany (Tex. 1990) pg. 549
       a) Facts: Initial P.‟s designated 6 experts, but the day these experts were scheduled to testify, the
            parties settled. Following the settlement, the D.‟s gained control of the P.‟s experts and
            designated them as consulting-only experts
       b) Held:
             Discovery‟s goal is to seek the truth and the protection afforded by the consulting expert
                 privilege is intended as a shield to prevent a litigant from taking undue advantage of his
                 adversary‟s industry and effort
             The redesignation of the experts in this case violates public policy.

11. Discovery Rules:
        a) TRCP 191.1 – Modification of Procedures
        b) TRCP 191.3 – Signing of Disclosures, Discovery Requests, Notices, Responses and Objections
        c) R. 194 – Requests for Disclosure – 194.1 – schedule for designating experts.
        d) TRCP 195 – Discovery Regarding Testifying Experts (doesn‟t deal with consulting experts)
             This limits discovery to uses request for disclosure which is how you designate an expert
             (192(f)). Parties seeking affirmative relief must designate experts w/in 90 days – Other
             experts must be identified w/in 60 days; 195.3 talks about scheduling depos. Distinction b/w
             an expert who comes in w/ a report and experts who comes in w/o an expert
              No report – must have him ready for a depo pretty quickly
              If there is a report – don‟t need to make that expert available until other experts have
                  been designated
        D. designates their experts 60 days and tenders them reasonably promptly. D.‟s experts usually
        get to see P.‟s expert‟s depo before D.‟s expo gives his depo

12. Discovery Privileges: pg. 560-562
    a) Constitutional Pvlg –


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                                  Pvlg against self-incrimination – P. – either bring this cause of action and disclose or face
                                   dismissal. D. doesn‟t have that choice. D.‟s aren‟t subject to sanctions for invoking the 5 th
                                   amend, but the P. can comment on the fact that D. is invoking this amend. Judge will decide
                                   if refusal to testify is in good faith
                           b) Attorney-client pvlg –
                                Lawyers want to shield witness statements. Just b/c a witness statement is discoverable,
                                   doesn‟t mean that you can‟t try to invoke attorney-client pvlg. This trumps witness statement
                                   disclosures. This is governed by r. of Ev. 503. It covers confidential communications that
                                   furthers rendition of legal services. It must be b/w an attorney and client or b/w their
                                   representatives.
                                   The new rule adopted the subject matter test to decide who is a rep. of the client. It used to
                                   be that you define it by the control group, but Texas now goes to the subject matter rule.
                                   503(a)(2)(b) – It can be a lower level employee for purposes of effectuating legal
                                   representation
                                If covered by attorney-client pvlg – this can‟t be discovered unless it is somehow waived (ex.
                                   Waiving it by not asserting it)
                                Exceptions – R. 503 Services in furtherance of a crime are not privileged; It the attorney
                                   represents 2 clients – can‟t shield the infor b/w the two; the lawyer breached a duty
                           c) Husband/Wife – Disclosures made while married and these disclosures must be made in
                               confidence. Exceptions – Crime; Commitment proceedings
                           d) Physician/Patient – Exception – No privilege when party‟s condition is part of a claim or defense.

                       13. In re Continental Tire, Inc. (Tex. 1998) pg. 553
                                a) Facts: Fisher was driving his truck when his tire blew out causing him to lose control of his
                                    car. This accident killed two people. The heirs filed this lawsuit and P.‟s are seeking to
                                    discover the Continental‟s chemical formula for the skim stock used on this tire. Continental
                                    objected claiming that the formula is a trade secret under Tex. R. of Evid. 507.
                                b) Held: - P did not meet the burden that this info was necessary
                                          In trade secret, it is not enough to show info. is relevant. The party seeking the trade
                                              secret has the burden to make a prima facie case that the info. sought is relevant and
                                              necessary to prove or defend a material element and the info sought is essential to a
                                              fair resolution of the lawsuit.
                                          This is a balancing test in which the trial ct must weigh all pertinent facts (weigh the
                                              need of the info to he potential harm of giving up the trade secret).
                                          The trade secret privilege 1) Recognizes that trade secret are an important property
                                              interest, 2) It recognizes the importance we place on fair adjudication of lawsuits.
                                          Just b/c Continental was willing to produce certain info. under a protective order
                                              does not mean that Continental has waived its right to assert R. 507
                                c) Continental’s 3 arguments:
                                          A protective order can never adequately protect a trade secret b/c there is always a
                                              risk of disclosure of info.
                                                    o R. 507 requires production if necessary
                                                    o Ct. can issue a protective order
                                          TRCP 76a may render a protective order ineffective
                                                    o Not all trade secrets will b/c “Ct. records” b/c this info. remains sealed
                                          Automatic Drilling states that trade secrets should only be disclosed upon a finding
                                              of necessity
                                d) RULE - Trial cts should apply R. 507 by: 1) The party resisting discovery must establish that
                                    the info. is a trade secret; 2) The burden then shifts to the requesting party to establish that the
                                    info. is necessary for a fair adjudication of its claims

DID NOT SIGN In On 11/1 (I know have not signed in 2 times)

                       14. Memorial Hospital-The Woodlands v. McCown (Tex. 1996) Supp pg. 107
                              a) Facts:
                                   Dr. Leipzig sued CBS for libel and CBS aired a 48 Hours program titled “Bad Medicine.”
                                   In the course of the action, CBS served subpoenas duces tecum on several Tex. hospitals
                                      in which Leipzip previously worked at. The subpoenas asked for all docs in their
                                      administrative and credentialing files concerning the Dr.
                                   The hospitals claimed that the information was privileged
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         b) Issue: Are docs. and files generated for and by a hospital credentialing committee in its
             investigation and review of a physician‟s initial application for staff privileges protected from
             discovery?
         c) Held:
              A medical peer review committee is a committee of a healthcare entity operating
                 pursuant to approved, written bylaws. There was disagreement over whether this group
                 was a medical peer review committee – The ct. looks to the lang. of the statute.
              The leg. amended § 161.032 to add § 5.06 of article 4495b to say that the privilege does
                 not apply to the ordinary course of business
              Must look to the leg. intent to find that article 4495b is clear that initial credentialing of
                 doctors is viewed as part of the critical peer review process.
              What was the problem with Barnes?
                           o Barnes stated that these docs were routine
                           o Ct. said that we have routine matters v. docs in the deliberate process,
                               which are not routine
                  In Jordan, p. 115
                           o Distinguishing these docs from docs created w/o committee impetus or
                               purpose – Cross said that this is a shaky distinction
                  R. 161.032 now reference back
              D. hospital wants to protect the documents
              What about the due process arg – CBS says that their due process right has been
                 abrogated – Ct. said that they really didn‟t have the right to those docs
         d) Why do we want to protect these kinds of documents?
              Want to make this process as complete as possible to allow hospitals to honestly evaluate
                 a doctor. In order to get a honest review, the process must be protected
              Protect the docs even if it is at CBS‟s detriment
              It is probable more relevant to know what CBS knew about the Dr. at the time CBS put
                 on the program
         e) When Medical Records are relevant to a condition and that condition is at issue, those docs.
             become discoverable
                  Rk v. Rameriez – Patient sued dr. and hospital for malpractice. Hospital knew Dr.
                      had a drinking problems. The privilege is terminated b/c patient‟s condition is at
                      issue. Condition is a part of a claim or defense. Thus, those medical records are
                      discoverable. When any party makes the patients‟ condition relevant, the medical
                      records are not privileged.
                  The medical records still have to be relevant to the condition

15 Waivers of privilege: pg. 561
       a) Making offensive use of privilege material
            Ginsbger case – Widow sued claiming that her signature on a deed was fraudulent, but
                therapist‟s records reveal that she knew she sold the building. Widow must make these
                records available.
            3 part test to see if you must produce the documents (If you are putting something at
                issue)
                     o Waive if you are the party seeking affirmative relief
                     o The info. is essential
                     o Disclosure is the only way to get this evidence
       b) Failing to assert it
            Distinction – Objecting and then withholding info
                     o Object of discovery b/c it was overbroad, harassing, burdensome, or expensive
                     o If you are claiming a privilege – You don‟t do it by objecting, you do it by
                         withholding and tell when you are withholding.
                     o You can withhold and not say anything to docs that are attorney-client privilege
                         – That makes that lawyer judge and jury
                     o Procedure for asserting this privilege
                                I get a request for production that is work product and I don‟t want to
                                   give the docs up
                                1st, I respond to the request for disclosure by asserting this privilege (I
                                   don‟t object)
                                How much info do I need to give?
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                                        General, at first
                                 2nd - If other side opposes this, they request that I give more infor
                                 3rd – (R. 193.3) In response to that I generate a privilege log in which I
                                  state the doc with identifying features. The party has 15 days to file a
                                  privilege log. I must give enough info. so that the requesting party can
                                  decided if they think it is privileged and whether or not requesting party
                                  wants to pursue this and ask for a hearing. (Discovery fights take up a
                                  huge amt. of time and money)
                               Either party can request a hearing (pg. 564) and you don‟t need a ruling
                                  to preserve your objections. You don‟t need a hearing to preserve the
                                  rejection
        c) Inadvertent disclosure of the material
             Comes up in massive doc. requests and inadvertently release a privileged doc.
             R. 193.3(d) – if disclosure is w/o intent, then there is no waiver if party amends the
                response w/in 10 days of discovering that this doc is gone and other side is supposed to
                give the doc back.
             Making a communication in furtherance of the crime
             Voluntary disclosure to a 3rd party.

16. In re Monsanto Co. (Waco 1999) Supp pg. 119
         a) Facts:
              The Monsanto Co. and other entitles seek a writ of mandamus requiring the Judge to
                 vacate an order denying claims of privilege as to almost 400 docs. These documents
                 were claimed to be work product and attorney-client privilege
              P.‟s had sued D.‟s alleging fraud
         b) Held:
              Was the info. Relators furnished at the hearing so extensive as to waive the privileges? –
                 No – the info. given was not a disclosure of a significant part
              Documents in question:
                          o PR-RS (affidavit by Jon Beusen)(attorney-client)
                          o PR-DS (affidavit David Snively)(attorney-client)
                          o PR-INV(affidavit Brett Begemann)(wk-product)
                          o PR-AS (affidavit by Ann Shackelford)(wk-product)
              For attorney/client privilege:
                          o Docs must be a communication, but attorney does not need to be involved
                               b/w client and employees of my client
                          o Employees of a party claiming the privilege are “representatives” w/in the
                               Rule if they have authority to obtain professional legal service
                          o B/c communications “b/w representatives of a client” are protected, a
                               lawyer need not be involved as an author or a recipient
                  What proof do we need to show a crime-fraud violation?
                          o Only when the communications were obtained in order to commit a crime
                          o Attorney must know that they are pursuing an illegal claim
                  I can ask the ct. to look at the docs in camera, but I need to tell them which docs
                      from the privilege log I want reviewed
         c) Lesson: -
               Put all docs in the privileged log that you want to be privileged
               The docs need to match up to the affidavits.
               Most docs that were disclosure showed no recipient and who wrote the document.
               Waiver occurs when a significant portion is disclosed
               Need to get the affidavits into evidence
               The attorneys objected to the affidavits and said that it was not based on personal
                  knowledge (generally have to show how you obtained the personal knowledge). The
                  objecting party did not get a ruling from the Ct., and thus this usually means that they
                  waived their objection for appeal

17. Walker v. Packer (Tex. 1992) pg. 566
        a) Facts: This is a medical malpractice suit. There were 2 pretrial requests. 1) Docs requested
            from the D, 2) Docs requested from a nonparty for impeachment purposes. They were

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                                        looking for references from a tape recorded statement of a nurse. 2 years after this request
                                        was made and responded to, P. filed a motion to compel production
                                    b) PH:
                                         The trial judge appointed a special master who found that P.‟s were only entitled to the
                                            docs sought from the party.
                                         The trial Ct. refused to compel D. and non-party to produce
                                         The master‟s in camera inspection
                                    c) Held: Mandamus procedure in discovery matters:
                                         The P.‟s had the burden of proving the Ct. w/ a sufficient record to establish their right to
                                            mandamus relief.
                                                      o The trial ct must have exhibited a clear abuse of discretion (i.e. – the ct.
                                                          could only have made one decision and they made the wrong decision.
                                                          Also need to see if the trial ct. abused their power to find facts. On applying
                                                          the law to the facts – the trial ct. gets much less deference)
                                                      o They must not have an adequate remedy of appeal (i.e just b/c appeal is
                                                          more expensive or is a delay, doesn‟t mean that appeal isn‟t adequate) – Ct.
                                                          puts examples of when appeal isn‟t adequate:
                                                                Appellate ct. can‟t cure the error – (maybe discovery was allowed
                                                                   that shouldn‟t have been – the cat is already out of the bag)
                                                                Party‟s ability to supply a claim or defense is compromised (party
                                                                   wasn‟t able to develop merits of the case – sometimes trial judges
                                                                   will strike pldgs and this affects a party‟s ability to present a
                                                                   claim).
                                                                Where the trial ct disallows evidence and the missing evidence
                                                                   can‟t b/c part of the record. No way of proving what a witness
                                                                   would have said if a depo was not allowed.
                                         Ct. is trying to control mandamus

Review of Privileges and Limitations:
       a) Work Product – R. 192 (especially .5) – when does this privilege first apply? In anticipation of litigation – Natco case
            defines what anticipation of litigation means. Litigation doesn‟t have to be imminent. This is by or for a party‟s
            representative (this means attorneys and agents) or it can be communications b/w or among representatives. The
            attorney doesn‟t have to be involved. Core work product is usually never discovery. Other wk. product is not subject to
            discovery unless other side shows undue hardship. They might show that this is the only source of information. R. 192.3
            show what items are not wk. product.
             A witness statement is NEVER work product. It can be redacted, and you can still raise other privileges like
                 attorney-client. Trying to protect the factual information should not be at the whim of whichever party gets to that
                 witness first. Plus, they were worried about witness‟s choice to give his statement to one side of the lawsuit and not
                 the other.
             Photographs to be used in Evidence is not wk. product
             Trial Exhibits is not wk. product
             The names of fact witnesses and those with knowledge of relevant facts are not protected
       b) R. 503 – Attorney – client - Covers confidential communications b/w lawyer and client. A third party being present can,
            but not allows, waive this privilege. It can be b/w representatives of the client.
                  Requesting legal info. in the furtherance of legal rep.
                  W/ a corporate client – Rules adopt a subject matter test and the purpose for which the communication was
                      made.
       c) Witness Statements – Timing is a red hearing. The time of when it was received is irrelevant. This doesn‟t have to be in
            anticipation of litigation

Discussion Problems on page 573
        a) #3 – Immediately after the A‟s fall, C. made a list of the names and addresses and telephone numbers of all the customers
             in the produce dept. at the time of the fall.
                   Can we get those names? – Yes – Through a request for disclosure b/c they are persons with knowledge and
                       their identities are always discoverable. Even the people that didn‟t witness the accident might have knowledge
                       – R. 192
                   Can A. discover the contents of the list? Yes, under R. 192.3(c), the names, numbers and addresses can be
                       obtained. One arg. that can be made is that it is work product, but H. must prove that the list was made in
                       anticipation of litigation.


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b) #4 – Insurer tape-recorded a conversation from C.
          A witness can always get his own statement and C. could get it
          A. can get this statement b/c it is probably a witness statement
          The witness statement need not have admissible info. or personal knowledge of the facts. Once something is a
             witness statement, there is no longer a work product privilege available.
          Must still ask if any other privileges apply even though this is a witness statement. C might argue that this was
             an attorney-client privilege. Need to prove that the statement was given for the purposes of legal services.

c) #5 – The store contacted G, a math teacher who witnesses the fall and taped the statement. Can A discover the statement?
    Can G. discover the statement?
          This is discoverable b/c it is a witness statement
          The witness can always get their own statement

d) #6 – A hires a lawyer and the store hires a lawyer. The store‟s lawyer interviews people and makes notes.
         Can A. discover the attorney‟s notes? – This is core work product.
         What about witness statements? It depends if it is core work product or ordinary work product. Rule states that
             notes taken during an interview ARE NOT witness statements
         Notes showing that what attorney learned – 1 arg. - any time an attorney writes down something, the attorney
             thought it was important and this is core work product. (hard to prove)
         Can A. discover the memo about the interviews?
                  o Probably not – this is core work product
         Can. A. dispose the defense counsel? – No (what they know factually is probably covered by attorney-client
             priv)

e) #7 – Can A. discover the store‟s architects who designs the stores?
         This is a person with relevant facts and he can‟t be shielded as a consulting expert b/c he was hired before this
            accident.
         If he was employed after the accident, he could be considered a consulting expert
         Can A. discover reports from the architects?
                 o Yes –you can take their depo and ask for the reports

XI.     Discovery - Methodology of the Individual Devices
        A. Written Discovery (this discovery period is a moving time – it is the earlier of 1) 30 days before date of trial; or
            2) R. 190.3(b)(1)(b) 9 months after the earlier of the 1 st oral depo. or the due date for the 1st response to written
            discovery requests)
                1. Requests for Disclosure – R. 194.1
                         a) Disclosure responses need not be verified
                         b) R. 191- All discovery motions must contain a certificate that you tried to settle with other side
                              (READ THIS RULE)
                         c) R. 191.4 – Filing of Discovery Materials
                         d) 194.1 – This is the lang. you MUST use – Don‟t be creative here
                         e) 194.2 – All the information you are allowed to ask for (read this over and over b/c you will ask
                              for all of this) – This can take the place of interrogatories which is good b/c you are limited to
                              25.
                         f) 194.3 – Response – D. should divulge defenses of their case (ex: deny speeding – P. was
                              speeding and contentions to damages) – Give them your contentions, but not your proof
                              (don‟t need to marshal your evidence) If response is inadequate, other side can file a motion
                              to compel
                         g) 30 day deadlines does not (R. 195) apply to expert witnesses (but you should update and this
                              can involve problems – about a month before trial, update everything and supplement your
                              info.)
                2. Interrogatories to Parties – R. 197
                         a) The responding party must serve a written response w/in 30 days after service of interrogatories
                              (except that a D. served with interrogatories before the D.‟s answer is due need not respond
                              until 50 days after the service of interrogatories) R. 197.2(b) - you may object to questions in
                              writing
                                    R. 197.2(b) – The answers need to be verified and under oath unless the info. is
                                        obtained from other people or an answer about legal matters that a client shouldn‟t
                                        have to swear to.


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                                                 Objections to interrogatories are served at the same time you serve the answer. If
                                                  there are objections, either party can request a hearing on the objection and you must
                                                  state a reason for the objection, but you still have to answer the rest of the questions
                                  b) A party‟s attorney must sign all discovery responses, including interrogatory response and
                                       objections
                                  c) The responding party must sign the answers under oath except when the info. is based 1) on
                                       info obtained from other parties, or 2) interrogatories about persons w/ knowledge of relevant
                                       facts, trial witnesses, and legal contentions
                                  d) R. 191.2 and 3 – You can ask 25 questions
                                  e) If the answer can be derived by the requesting party, then the answer can just say where the
                                       answer can be derived – your answer needs to specify where the requesting party can inspect
                                       the documents
                                  f) All of these dates can be decreased to get answers faster
                          3. Request for Production - Production and Inspection of Documents and Tangible Things From
                              Parties – R. 196
                                  a) The discovering party must serve a request no later than 30 days before the end of the
                                       discovery period
                                  b) This usually starts off with a definition of the word document
                                  c) It is from a party to another party
                                  d) It designates the place and time for production. R. 196 is usually used for categories of docs.
                                       (all medical records dealing with X)
                                  e) You can ask for inadmissible docs as long as the request is reasonable
                                  f) To assert a privilege - You withhold the document and you assert the privilege. You provide a
                                       privilege log
                                  h) R. 196.2 – Response to Request for Production and Inspection (If you don‟t like the time or
                                       place of production, you can object, but then you must state a time or place that is acceptable
                                       to you.) You can also say that you made a diligent search and you don‟t have any of the
                                       documents being requested. If you don‟t object, you may waive your right. You don‟t have
                                       to tell that you are withholding docs b/c of the attorney-client privilege.
                                   i) There are rules about computer technology (R. 196.4) – need to tell how you want intangibles
                                       to be produced
                                  j) Party having to produce bears the cost of production. Requesting party has burden for the cost
                                       of coping.

R. 215 – Abuse of discovery Process – Deal with this with sanctions. Ct. can impose fines, charge them for the extra time and effort.

                          4. Loftin v. Martin (Tex. 1989) pg. 580
                                   a) Facts: Lumbermens filed suit to set aside an award of the Tex. Industrial Accident Board
                                        granted to Loftin. Loftin (D) then brought a counterclaim for an affirmative award of total
                                        and permanent incapacity and requested Lumbermens to produce certain docs. Lumbermens
                                        (P) filed objections to 3 particular requests for production. At the Feb. discovery hearing
                                        Lofkin failed to appear and Judge signed an order sustaining Lumbermen‟s objections to the 3
                                        requests for discovery. We are in the S.Ct. by mandamus.
                                   b) Held:
                                         Lumbermen‟s objection to #2
                                                  o Reports by all experts you anticipate calling
                                                  o Loftin requested that reports be made by experts and it was Loftin‟s
                                                      responsibility to obtain an order from the ct. mandating the creation and
                                                      production of reports – no order was sought - You can require (R. 195 nudges
                                                      experts to prepare a doc. ) an expert to prepare a report, if a ct. orders it.
                                                  o Loftin‟s request for production was pre-mature b/c no experts have been
                                                      designated
                                                  o You can‟t ask us for docs that don‟t exist
                                         Lumbermen‟s objection to #4
                                                  o All notes, records, and memos
                                                  o Lumbermens objected claiming that the request was too vague
                                                  o The request does not identify any particular class or type of doc.
                                                  o Request for production is not a fishing expedition

                          5. In re Shipman (Tex. App. –2001) pg. 135 Supp

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        a) Facts: After a car accident, Shipmon filed a suit against Jeffreys. Shipmon objected to
            requests for production b, g, j, k, m, i, u, v, w, x. Shipmon contends that the trial ct. abused its
            discretion by ordering the creation of docs. which did not previously exist
        b) Held:
             Medical Records:
                     o D. is asking for P. to sign and immediately return to counsel for D. medical
                          authorization
                     o Under R. 194.2, a party may obtain discovery of medical records. Ct. held that a
                          party can obtain authorization from another party. You can request such an
                          authorization from another party
                     o D. is asking the P. to create the authorization
             Employment Records
                     o Shipmon did not object to the production of employment records on the grounds
                          of relevancy – Instead, Shipmon asserted that the request was overly broad
                     o In the absence of an objection on the ground of relevance or a privilege, the
                          records are subject to discovery under R.192.3(b)
             Overlybroad Requests
                     o Requests for B, g, l, m, o, u did not have a time limitation and there was not a
                          limit as to the place of employment
             Work Product
                     o Objected to j,v, and w on grounds of work product privilege
                     o This privilege was not brought before the respondent and remain subject to
                          presentation. You assert the privilege, you don‟t object to it. This wasn‟t
                          presented properly to the trial ct.

6. Getting Documents and Things From Nonparties by Subpoena w/o the Deposition – R. 176
        a) A subpoena may be used to command a person to whom it is directed to do either or both of the
            following:
             Attend or give testimony at a depo., hearing or trial
             Produce and permit inspection and copying of designated documents or tangible things in
                 the possession, custody, or control of that person
             Can be issued to a party or a non-party
             Pre-trial subpoenas can be used to just get documents
             176.3 – Can‟t make someone show up that lives more than 150 miles away
             Can be served by a sheriff
             You can object to the scope of the subpoena and file a protective order
        b) R. 205 – Can the person a reasonable time to respond. R 205.2 – A subpoena for a non-party
            must have copies of the notice served to all parties 10 days before the subpoena is served.
            This way, the non-party can get a 10 days notice before being served.

7. Requests for Admissions – R. 198
       a) Unless the responding party states an objection or asserts a privilege, the responding party must
            specifically admit or deny the request or explain in detail the reasons why the responding
            party cannot admit or deny the request.
       b) This hasn‟t changed much since the old rules – It is another form of discovery asking to see if
            something was true or false
       c) Scope – Anything that relates to the dispute. The questions are addressed to parties.
       d) You must respond w/in 30 days and if you don‟t respond, the questions is assumed to be
            answered in the affirmative
       e) If you deny, you must give a specific reason. Denial must meet the substance of the request.
            You can‟t try and change the question.
       f) Lack of info. or knowledge is not enough, you must state the a reasonable effort was made to
            discover the answer
       g) A deemed admission can‟t be used on behalf of the party answering it.
       h) An express or deemed admission is conclusively established, unless it is withdrawn or
            amended. Ct. should allow withdraw of the admission if there is good cause and that the party
            relying on the admission won‟t be unduly prejudiced. Good Cause is a showing that a failure
            to respond wasn‟t intentional or a conscious disregard of your obligations. Even if you miss
            the deadline, still serve an answer and seek a ct. order to withdraw your admissions.


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        8. Stelly v. Papania (Tex. 1996) pg. 586
                 a) Facts: After delivering a pizza to Stelly‟s house, P. fell and broke his leg. Papania sued Stelly
                      and the City of Port Neches. Papania sent requests for Admission to both the City and Stelly.
                      Stelly, mistakenly admitted that he owned the premises in which Papania fell on. Papania
                      non-suited the city and Stelly moved to withdraw and amend his previous admissions and he
                      also moved for summary judgment.
                 b) Issue: Did the trial ct. err by allowing a party to withdraw and amend its express original
                      answers to a request for admission?
                 c) Held:
                       Papania‟s claim against the city was barred b/c he did not give timely notice under the
                           Texas Torts Claims Act
                       Even if Papania had relied on Stelly‟s original admission, Stelly‟s ownership could not
                           absolve the City of responsibility for creating a hazard
                       A party may withdraw a deemed admission upon a showing of good cause and if the
                           party relying upon the responses is not unduly prejudices and the withdrawal will serve
                           the purpose of legitimate discovery and the merits of the case
                       Good cause – Failure to answer was a mistake and not a conscious indifference.
                       The ct. took into account that as soon as Stelly found out that his admission was mistake,
                           he tried to correct the mistake.

        9. Steffan v. Steffan (Tex. App 2000) pg. 140 Supp.
                 a) Facts: Steffan asserts 3 issues: 1) Requests for admission served on him as a non-answering
                      party could not be deemed admitted by operation of law; 2) The trial ct. should have allowed
                      the admissions to be withdrawn; 3) Asther was judicially estopped from receiving at retrial
                      more property than that which she testified on a default basis was just and right.
                       Asther filed for divorce and Richard did not file a formal answer to the lawsuit and he
                           failed to respond to the requests for admissions as a result, he was unable to offer
                           contradictory evidence.
                 b) Held:
                       Richard argues that R. 21a does not provide for service of request for admission in a non-
                           serving party. The petition is the only thing that needs to be served by citation.
                       Suit is commenced by filing the suit, not by answering
                       Ct. held that nothing in R. 169 and R. 21a require that the party being served must first
                           file a responsive pleading with the ct
                       The plain lang. of R. 21a provides that any notice, pldg, or other form of request may be
                           served
                       D. is trying to say that he was a pro se D. and wants to withdraw his admissions b/c he
                           didn‟t know the law. This ct. did not give him the benefit of the doubt.

    10. Marshall v. Vise (Tex. 1989) pg. 588
                a) Facts: In the course of discovery, Vise submitted a request for admissions to Marshall that
                     were never answered. The deemed admissions established the essential elements for Vise‟s
                     claim. During Vice‟s direct examination of Marshall, testimony was elicited which directly
                     contradicted the deemed admission, but Vise never objected
                b) Held:
                      A party relying upon an opponent‟s pleadings as judicial admissions of fact must protect
                          the record by objecting to the introduction of controverting evidence and to the
                          submission of any issue bearing on the facts admitted.
                      Vice failed to object and thus has waived his right to rely on those admissions
                      He even elicited testimony the circumvented the deemed admissions.

B. Depositions – This is the bulk of the discovery
      1. What are depositions - Q and A with a witness. Notice had been sent out to all parties. A Ct. reporter
           is there. These are taken under oath. It comes out in a written form and a witness can make
           corrections. You must have a reason to do this
      2. Why do you take depositions?
            You want to preserve the witness‟ testimony.
            You might want to use it for impeachment
            This might be used to take away certain theories and defenses

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3. R. 199.5 – There are a certain # of hours you have to take depositions depending on certain levels.
    Also, you can‟t cross for more than 6 hours, even though, under level 2 you get 50 hours of depo. per
    side. Neutral witnesses are not covered by the 50 hours, but they are covered by the 6 hours.
4. Where can a depo. be taken 199.(2)(b)(2)
     The county of witness‟ residence, where they are employed, or where they do a lot of business, or
         the county at suit (if the witness is a party or a person designated by a party under R. 199.2(b)(1).
         If party is part of lawsuit
     Look at page 594, Note 8 for examples
               o If D wants depo to be taken at improper place, you file a motion for protective order.
                   You can recommend where to take it. (county of witness‟ residence or where much
                   business occurs)
                         If you file a motion for protective order – granting the order is discretionary
               o You can have a depo where the county of suit is, even if person doesn‟t reside there – but
                   this is discretionary
5. Both parties must know when you are giving depos. Must give reasonable notice of time and place of
    depo. If you request production of docs with a depo, you must still give that person the 30 days to
    produce the docs. If party receiving the notice wants to object, you file a motion for a protective order
    or a motion to quash. If motion for protective order is filed 3 business days after getting the notice,
    then it stays the depo. Otherwise, the depo. goes on the schedule.
6. Conduct during the deposition:
     You can save most objections until trial, but certain ones you can make during a depo – Like
         “object leading” “object to the form” “object to the nonresponsiveness of the answer” – all of
         those objections can be fixed at the time of the questioning
     Rules are trying to avoid long discussions about objections
     Can‟t have private conversations during depo, unless it is to discuss the applicability of a
         privilege. Can instruct witness not to answer to 1) To preserve a privilege; 2) To not answer b/c of
         a ct. order; 3) To protect them from abuse of questions; or 4) To keep them from answering
         questions which call for a misleading answer
     Read Comment 4 to R. 199

7. Apex Depositions – Deposing the highest person in the business. Ct.‟s fear is that you are taking these
    people depositions b/c the other side doesn‟t want to make them available for deposition.
     Other employees will sacrifice themselves so the apex people won‟t have to be deposed
     Ct. is worried that apex depositions are used to harass
     17 SW3d 634 – In re Daisy case – Discovering party must make a reasonable effort to get info.
        from less intrusive means. Ct. gives more protection to the apex person. Ct. seems to be moving
        toward more protection than to less protection

8. Crown Central Petroleum Corp. v. Garcia (Tex. 1995)
    a) Facts: Suing due to an employee dying of lung cancer. P. says that they need the deposition of the
        CEO.
    b) Guidelines for taking this depo : 1) Have significant and unique knowledge or 2) Show that
        deposing the apex person would lead to relevant discovery AND made effort to get the info. from
        less intrusive mean

9. In re Alcatel USA (Tex. 2000) Supp. 143
    a) Facts: This is a mandamus proceeding in which
    b) Issue: Did the trial ct. abuse its discretion by allowing DSC Communications to take the apex
         depositions of two-high level Samsung executives?
    c) Held:
          What does unique and superior knowledge mean?
                   o It needs to be knowledge that no other person will have
                   o The Ct. said that it not enough that these 2 men had high- level knowledge. It is not
                        unique for these 2 men to have the final say on this matter.
                   o Ct. is protecting them
                   o Knowledge that is relevant is insufficient
                   o To show that knowledge is unique, you need to show that the person possesses
                        knowledge that is greater than anyone else. Must know more in quality and quantity
          If you can‟t show that certain knowledge is unique, you must show that less intrusive means
              re not effective.

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                  o   DSC never issued any interrogatories or requests for admissions
                  o   Should show that DSC asked this info. from x many people and no one knew the
                      answers.
    d) Dissent:
         You are forcing people to chose the least effective way to get information. You are giving
            these people special protection
         Why have to go through 10 people when 1 person knows all the answers

10. Other Info. about Depositions
      a) General Info
         R. 201 – You can get depositions outside of Tex.
         Conduct during depos. – certain objections are waived if not made at the time. Read pg. 598
         R. 203.6 – Depos are either taken in the same case or those taken in different proceedings
                 o If the depo. is taken in the same case, it is admissible regardless of the availability of
                      the witness. It can be used against any party who was present or who has reasonable
                      notice that the depo. would be taken.
                 o People who b/c a party to the lawsuit after the depo – can use the depo 1) if the new
                      party had a reasonable opporutinty to redepose the witness and failed to do so, 2) If
                      the testimony is admissible under the R. oif Evid. As former testimony then it can be
                      used against the party.
                 o It can be b/w the same parties and subject matter is a different procedding
                            (b) – Same proceeding – can be in a different ct. as long as it was the same
                                 parties are same subject matter.
                 o What if depo is taken in a different proceeding – Depo can be used if (R. 804(b)(1)
                      of the R. of evidence) it is found to be Former Testimny
                            Former Testimony is not excluded as hearsay if 1) the witness is
                                 unavailable. AND 2) if the party against whom you are offering the
                                 testimony or a party with a similar interest had the opportunity to develop
                                 that testimony (was able to cross-examine, read the infor…)
                            Pg. 601 – Lists what it means for a witness to be unavailable
                                       Witness refuses to testimony
                                       Absent and can‟t be made to come
                                       Doesn‟t remember
      b) Hypotheticals:
         Personal injury and Dr. doesn‟t want to come to trial, but he is in town that day – Can you use
            that dr‟s depo at that trial
                 o Yes – Under 203.6 – Same proceeding – Witness doesn‟t have to be unavailable
         What if at time of depo the only other D. was the driver, but since you have added GM as a D.
            Can you use the depo. against GM?
                 o Same proceedings – Yes, as long as Gm has a reasonable opportunity to depose the
                      Dr. (It is hard when a depo is read against D1 and it can‟t be used against D2).
         Brought personal injury, and the driver is dismissed fro lack of smj and you are not in state ct.
            Can you use dr‟s depo if the dr. is in town?
                 o It is still the same proceeding, even if it is in a different ct.
         In another suit against GM with the same car, GM took a depo. of GM;s outside expert and
            expert lives in Dallas. Can you use that depo. instead of making her come to the ct. house.
                 o If it is a diff. proceeding, you can‟t use the depo. if the witness is available.
                 o If the witness lived in Detroit instead of Dallas – witness is still available b/c you van
                      go to Detroit to take the depo. and then you the Detroit depo. You can‟t use the
                      Dallas depo
                 o Meet the requirements of R. 3021(b)

11. Coates v. Whittington (Tex. 1988) pg. 602
    a) Rules Background - Under R. 204 – can get the other party to remit to a physical examine, but
        you need to get a ct. order. The person wanting it must file a motion and show good cause on why
        it is necessary and this should show that the condition of the party is in controversy and the party
        to be examined has designated a psychologist to be an expert witness.
    b) Facts: P. burned herself and brings a suit for many things including mental anguish. The evidence
        showed that before P. was injured, she was depressed. D. wants her to submit to a mental
        examination.

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             c) Held: D. made a claim of contributory negligence in that her mental condition was relevant to way
                 she spayed herself with the oven cleaner. Ct. held that just b/c you claim mental anguish damages
                 doesn‟t mean that you open yourself up for psychological testing. (Slippery Slope arg). Ct.
                 reminds what good cause is that examination is relevant:
                           Need to show less intrusive manners
                           CHECK THIS OUT
         12. In Re Caballero (Supp p. 153)
             a) Held – Didn‟t show that they couldn‟t get the info. from less intrusive means and didn‟t prove that
                 the examination now would have told anything about her medical situation then.

C. Limiting the Amount of Discovery: Discovery Control Plans R. 190
       1. Levels are new to the 1999 rules. Even before that, lots of discovery was controlled by a Ct.-ordered
            control plan.
       2. There are 3 levels of discovery
       3. Level 1- $50,000 or less – can‟t ask for more and can‟t receive more even if the jury awards more (must
            state this level in my original pldg) – This is for divorce with no custody and an estate less that 50,000.
            Get a total of 6 hours for depo. Can raise it to 10 by agmt of the parties – any more than 10 hours,
            must be approved by ct. Date of discovery is from the date of suit to 30 days before the trial date.
            Most things that require 30 days to respond – you must request it 60 days before trial. All discovery
            must be completed 30 days before trial. You can‟t amend you pldg‟s to move from a Level 1 w/in 45
            days from trial unless you prove good cause.
       4. Level 2 – Where most cases are intended to fall. The limits are: 1) each side (whoever has an interest
            in the suit) gets no more than 50 hours of depo. some witnesses (those not experts or parties or persons
            in a party‟s control) are not subject to this 50 hr. rule 2) If one side designates more than 2 experts,
            than the other side gets 6 more hours of depo per expert; 3) Discovery period is floating. It is from
            time suit is filled from the earlier of 30 days before trial; or 9 months from the 1 st depo. is taken; or 9
            months after the 1st response to written discovery is due. (latest it could be is 30 days before trial) (for
            family law – it is from when suit is filed to 30 days before trial)
       5. Level 3 – Allows any ct. order plan. The ct. can adopt level 1 or 2 – It can restrict the 2 levels. It can be
            an agreed order. The ct. must render a level 3 order, if requested.

D. Amendment and Supplementation of Discovery Responses
      1. R. 193.5 and.6 and 195.6 are the applicable rules
      2. Alvarado v. Farah MFG (Tex. 1992)
              a) Facts: P. wanted a witness very late in the proceedings. The trial ct. allowed the 2 new
                   witnesses to testify even though D. objected.
              b) Held: The trial Ct. was not allowed to let the new witnesses testify b/c P failed to amend. The
                   rule 215(5) is mandatory. Good cause is the inability to anticipate the need for a witness; or
                   you were unable to locate the witness despite good effort. This witness had previously filed
                   the same type of suit before and the D. had deposed the witness before in a diff. case – but
                   that doesn‟t show good cause. Now, the ct. also determined that it was harmful error b/c this
                   testimony could have affected the jury
              c) Significance – Ct. wishes the rule wasn‟t mandatory, but it is up to the leg. to fix it, but there is
                   a way around this b/c the trial ct. has the option to postpone the trial to allow the P to amend.
                   and supp.
              d) Relevant New Rules – R. 193.5 (under the new rules, P. might have won b/c under 193.6(a)(2)
                   – P could have shown that the failure to amend will not unfairly surprise or unfairly prejudice
                   the D.

E. Sanctions for Failure to Provide Discovery
       1. TRCP. 215 – What do we do if parties refuse to answer discovery? What do you do when people are
            intentionally making discovery difficult. For parties, you can ask for sanctions where the actions are
            pending or the county where the depo. is taken. If it is a non-party, it is in the county where the depo is
            taken.
             A motion for sanctions is appropriate under the list given in § 215.1(b)(2)
             Relief – Can ask for an order compelling compliance or just ask for sanctions immediately. The
                 ct. can couple that with a protective order
             Evasive Answer = Failure to answer
             § 215.1(d) – If a ct. grants a motion, it should give expenses incurred, unless the ct. finds that the
                 opposition to the motion was justified or there was another reason making the fees unjust.

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                §215.2(b) – Ct. can do anything to remedy the abuse. (striking pldgs to death penalty sanctions)

        2. Transamerican Natural Gas v. Powell (Tex. 1991) pg. 616
                a) Facts: P. tried to get a depo set and deponent kept on not showing up for depo and attorney
                    made a motion fro sanctions and the trial ct. struck the pldgs, and gave a judgment with
                    prejudice.
                b) Held: Rules to decide sanctions
                         Direct relationship b/w offensive conduct and sanctions. Must ask:
                                  o Sanction has to be visted upon the offender – was it the counsels fault?
                                       Parties? Both? – this can create a conflict of interest
                                  o The ct. asks if the sanctions are directed against the abuse
                                  o Is the sanction directed to remedy whatever happened to the innocent party?
                         Just sanctions must not be excessive. Goals – 1) Encourage compliance; and 2)
                             Punish and deter.
                                  o Must also ask if the ct. has considered lesser sanctions.
                         This raised some due process concerns with death penalty sanctions.
                                  o Must ask – Does the party‟s hindrance of discovery justify a presumption
                                       that their claims and defenses lack merit?
                                  o Has the party shown a flagrant bad faith.
                         The need for and the availability for mandamus:
                                  o Whenever the trial ct. imposes sanctions that adjudicate the dispute, then an
                                       appeal is not adequate, unless the sanctions are part of the final judgment.
                                  o The sanctions imposed here were too sever. The ct. could have fixed the
                                       problem w/o striking the pldgs.
                                  o Findings of fact through the trial ct. would be helpful for the appeals

        3. In re Dynamic Health, Inc. pg. 155 Supplement Rd. R. 306, 239, 230
                 a) Facts: Suit by a doctor. Dr. sued DH for fraud. The basis for the discovery dispute was b/c
                     Dr. is trying to find out what was taken from the office and where the property was placed.
                     DH responded to the request by not giving anything. The hospital still never complies and
                     destroyed evidence. The trial ct. orders a hearing on damages.
                 b) Held:
                           Is mandamus appropriate?
                                    o Partial summary judgment is not reviewable by mandamus b/c there is an
                                         adequate remedy
                                    o Monetary Sanction are not reviewed. These sanctions are not even due until
                                         the final judgment and therefore, no immediate irreparable harm
                                    o Death Penalty Factor
                                               direct relationship b/w the offensive conduct and the sanction
                                                   imposed
                                               the sanction must be just and not excessive
                                               The trial ct. should 1st impose lesser sanctions
                                               The sanctioned conduct justifies a presumption that the party‟s
                                                   claim or defense lacks merit
                                                         DH didn‟t give a reason for failing to produce
                           Trial ct. wasn‟t arbitrary or unreasonable
                 c) Reoccurring issues
                           Punish the wrongdoer – but this develops a conflict b/w attorney and client (warn
                               your client if you take risky steps) May even tell the client to get separate
                               representation
                           Whether the ct. can impose the sanctions sua sponte, on its own – R. 215 – This r.
                               talks in terms of a motion and a ct. won‟t file its own motion
                           If ct. applies presumption that I have no claim or defense, can it be rebutted? You
                               need to get to the merits of the case to rebut this. We are not to look at the merits of
                               the case – we are only to look to the actions for discovery (There is an obvious
                               tension) – It is up in the air on whether I can rebut that presumption

F. Abatement of Discovery
       1. In re Van Waters & Rodgers, Inc. (Tex. 2001) Supp. Pg 163


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                                   a) Facts: 400 P.‟s and 55 D.‟s; There was expose to toxic chemicals. Relators seek relief from
                                        the trial ct‟s order abating almost all discovery and allowing the P.‟s counsel to pick which
                                        P.‟s claims will be tried first. The trial ct. does nothing for a year. The S.Ct is going to
                                        decide the merits of the abatement.
                                   b) Held:
                                              The trial ct. did abuse its discretion b/c it ignored the S.Ct‟s factors on which groups
                                                   should go first – p. 166
                                              Appellate ct. saw this case first
                                              You can abate discovery – but not for 7 years b/c people forget things and people
                                                   loose records – The more time you wait, the harder it will to get discovery
                                              The ct. permitted the discovery. What is a reasonable way to proceed?
                                                        o The D. will have to answer that request, but we still don‟t know what to do
                                                             with the lost memory – Make sure people answer the interrogatories
                         2. In re R.R. (Dallas 2000) pg. 167 Supp
                                   a) Facts: Mother seeks to modify visitation in civil ct. and there is a criminal case going on with
                                        the husband for sexual abuse. Husband is trying to get all the information he can to defend
                                        himself against the modification. Trial ct. said that no discovery (abate discovery) pending
                                        resolution of the criminal matter.
                                   b) Held:
                                         Mandamus is appropriate b/c the trial ct‟s actions went to the heart of the father‟s ability
                                             to defend himself
                                         Father argues that the delay is harmful b/c it precludes him from having contact with his
                                             daughter. Delay is almost = to a denial b/c the delay can cause harm
                                         Standard of Review:
                                                   o A trial ct.‟s wrong decision, even in an area unsettled by law, is an abuse of
                                                        discretion (This standard is going further than usual)
                                         Merits of the case:
                                                   o There is no public policy arg for not proceeding in a civil case while a criminal
                                                        case is pending (Discovery is criminal cases is almost non-existent, so you get
                                                        the info. through the civil case.)
No presumption that discovery for a civil case is to develop info. for a criminal case.Chapter 11 – Disposition Without Trial

XII. Disposition w/o trial
        A. Default judgment – Rule 239 – 243
                 1. Generally
                          a) Answer date has to have passed and citation has to be on file for 10 days
                          b) R. 239(a) – You must file a certificate with the clerk for the last known address – this must be noted on
                              the docket sheet (the clerk makes note on what is happening with the case). The failure to comply does
                              not affect the validity or the finality of the judgment
                          c) R. 240 – You get an interlocutory default judgment against d.‟s that have not answered
                            d) What do we do about damages:
                                    liquidated (the amt can be calculated by the ct. with factual allegations and an instrument) and
                                        proved by a written instrument – then damages can be assessed and incorporated in the
                                        judgment unless D. has requested a jury demand
                                    If damages are unliquidated and there is not a written instrument, then you need to have a
                                        hearing.
                 2. Morgan v. Compugraphic
                          a) Facts: This is a no answer default case.
                          b) Issue: Does the party who has the default judgment have to present evidence to the cause of action
                          c) Held: Usually P. has to prove the nexus b/w the conduct and the event and there is a nexus b/w event
                              and that injuries occurred (This event caused the injuries) When there is a DJ, 1) nexus b/w conduct
                              and event is admitted, But. R. 243, you need to prove nexus b/w event and injuries. The fact that D.
                              has defaulted does not give P. a right to damages - D. admitted that neg. caused the event, but not that
                              the event caused the injuries.

         B. Dismissal for Want of Prosecution – R. 165(a) and 306(a)
                1. Generally:
                          a) Failure to show up at any hearing or trial that you have notice of could subject you for dismissal for
                              wasn‟t of prosecution.
                          b) Ct. shall dismiss, unless good cause is shown

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                  c) Ct. shall render a pre-trial motion if good cause is shown.
                  d) Ct. will be harder on granting continuance

C. Motion to Reinstate
       1. Generally
               a) File a motion which sets forth the grounds needs to be verified
               b) Copies need to be sent to all parties
               c) 30 days from the order dismissing and at that hearing, the ct. should reinstate if the failure to show up
                    was an accident or there is a reasonable explanation
               d) the longest period of time the motion can be hanging out there is 75 days from the date the judgment is
                    signed
       2. R. 306(a) – These time periods get moved around.
               a) If a party adversely affected does not get notice or knowledge w/in 20 days of the date the judgment of
                    dismissal is signed, it is as if you got it the first day. The 30 th day after judgment is signed, you have
                    30 days to file your judgment (the outside limit on all of this is 90 days – if you find out on the 91st
                    day, you cant file a motion to reinstate!!!)
               b) You must prove the date that you got notice or knowledge (this was the problem w/ Memorial –
                    Compliance with the time periods is jurisdictional).
               c) Need to have an oral hearing on the motion to reinstate
       3) Hypo
               a) Find out about dismissal on the 80th day from judgment
               b) You have 30 days to file the motion to reinstate
               c) When is it overruled by operation of law? 75 days after you find out, regardless of when you file the
                    motion
               d) How many days does the ct. have after it is overruled, expressly or by operation of law (just means that
                    ct. has done nothing with it)? 30 days
               e) If you find out w/in the 90 days, everything happens after you have found out

         4. Stromberg Carlson v. Central Welding pg. 658
                 a. Facts: Dismissal for failure to prosecute. For over 3 years nothing happened. Filed a motion to retain
                     – Don‟t dismiss and we‟ll do discovery. Motion to retain was denied w/o a hearing
                 b Held: They need to show either good cause or request a trial date (R. 165a).
                 c Significance – There are local rules that change things around – From how you dress to how you deal
                     with motions. Local Rules said that you have to pick a date and party didn‟t do that. Thus, trial ct.
                     didn‟t abuse discretion

D. Summary Judgment – 166a
      1. Traditional Summary judgment - Generally
              a) Generally
                   either party can move for summary judgment
                   you can move w/ or w/o affidavits
                   Can do it any time after the answer
                   This is based on 2 grounds 1)material facts are undisputed (no genuine issue of material fact); 2)
                      under those facts I am entitled to SJ as a matter of law
                   Need to create a fact issue or argue the law
                   R. 166a – need a motion that states the specific grounds that you are relying on (all the evidence
                      upon which I‟m relying – list thins in the motion and attach to the motion that is not filed with the
                      ct.) It must be served w/ affidavit 21 days before hearing and the hearing can be on the 21st day.
                      Will have a fiat. Other side must file a countervailing affidavit 7 days before the hearing. No oral
                      testimony at the hearing – it is base solely on paper work.
                   Can move for SJ on liability only saving damages for hearing
                   Issues not expressly presented in writing to the trial ct. can‟t be considered on appeal
                   Can be based on a D‟s or P‟s affidavit if the testimony is clear, positive, direct, and free of
                      contradiction and If the interested witness‟ testimony could have been readily controvertered
                      (motive and intent could not be controverted by affidavit – that is way SJ is not usually based on
                      claims dealing with state of mind).
                   SJ can be based on experts‟ affidavits and if it is a subject in which the ct. needs to be guided by
                      expert testimony
                   Ct. can make a finding at the hearing that certain facts are deemed established


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                 The form of the affidavits must be based on personal knowledge and set forth facts, not legal
                  conclusions – It must show the basis for the knowledge – Must reflect how and why you know
                  these things. – You must get all the little piece in place. Defects of form or attachments to the
                  affidavit must be pointed out expressly or else they are waived. If opponent can‟t get
                  contravening testimony – they can ask for more time

         b) P. files a motion for SJ:
                   Must introduce evidence for every element for your cause of action. The evidence must be
                       sufficient on its face to establish every element.
                   You do not need to negate D.‟s affirmative defenses.

         c) D files a motion for SJ
                   P. doesn‟t have a cause of action
                   Disprove, as a matter of law, 1 of P‟s elements for the cause of action
                   Can also move on D‟s affirmative defenses – I win on my AD. I act like a P., which means
                       that I must prove conclusively every element of my defense.

         d) Hypo:
                     Suit on the lease, – (lease executed, I performed, D. breached, and damages)
                     If P. files a motion that sets forth proof on each of these elements
                     D. can then present evidence to create a material fact issue
                     D. must file a response to my motion – the response can create a material fact issue (leasee
                      can say – but I paid).
                     If a fact issue is created, then the motion is going to lose.
                     D can argue the law or D. can dispute the sufficiency of P.‟s proof (P. hasn‟t proved there
                      elements b/c there is hearsay or b/c …)
                     If D. files no response, P does NOT automatically get SJ – D. can raise insufficiency of P.‟s
                      proof for the first time on appeal - even if it wasn‟t raised in the trial ct (only thing D. can do
                      w/o filing something in the trial ct.)
                     Hypo continued:
                       D. files AD
                       P. does not have any other burden b/c P. does not need to negate D‟s AD
                       Does D. need to do more? Yes – Must files a response raising issues on P.‟s proof and
                            proof on their AD
                             What about Usury? – P. can argue the usury doesn‟t apply to lease – and that
                                 evidence b/c irrelevant.

2. What SJ evidence is available? –
       a) Things that would be admissible at trial – affidavits and deemed admission (can‟t rely on your own
           admissions), answers to interrog. can only be used against the person answering the interrog., and
           depo. excerpts – PLDG‟s are NOT SJ proof – even if it is a verified pldg – they are not proof – the
           only exception to that is if the pldg has an admission. Docs referring to an affidavit must be attached
           to the affidavit.

3. SJ on the PLDG’s
        a) The only time this happens is when the pldg contains facts that preclude recovery (accident occurred 6
             years ago) If pldg fails to state a cause or claim – that can‟t be resolved by SJ – It would be resolved
             with a special exception.

4. City of Houston v. Clear Creek Basin Authority (Tex. 1979)
         a) Facts: Clear Creek sued the City alleging unlawful discharge of waste. City files a SJ of 3 grounds.
             CC files a response and take the position that there is only 1 issue – Can a downstream victim can sue
             for waste that occurred elsewhere.
         b) First Question to ask: Did CC expressly present an issue?
                     Sufficiency of movants evidence is the only thing you can attack on appeal w/o first raising
                    them w/ the trial ct.
         c) Held: R. 166a(c) – if you don‟t bring up a problem in your written response or answer to the motion for
             SJ, you have waived that. CC waived this arg. about violation w/in its territory b/c it did not bring it
             up in response to the motion for SJ. CC argues that they said it in their pldg. Ct. said that they are
             going to look at the response for SJ – the pldg is not enough to stop SJ and they can‟t bring it up on
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             appeal b/c they did not bring it up properly at the trial ct. level. If you want to raise an issue – it must
             be brought up in the response to SJ. Pldg do not constitute SJ proof. The issues involved in a SJ
             motion is contained in the response and in nothing else. These things must be in writing before the
             trial ct.
         d) R. 11 - After you bring up everything you need to in your response, and if the parties, by agmt, want to
             restrict the issues, must be in writing, signed and filed or entered in open ct and entered in the record
             (i.e. described in the judgment). There was an oral agmt entered into in open ct. The agmt was done
             properly – They properly limited the issue to #2. Even if it was limited to point #2, were they entitle to
             SJ?
                         Look at sufficiency of the motion
                             Look at the law
                         Held – CC did not have the authority to sue for acts outside their jurisdiction, thus SJ was
                             proper.
         e) Significance: Even w/o any response, the movant must entitle that they are entitled to SJ by proving all
             of their points of the cause of action. Matters that are in avoidance must be presented in the trial ct. w/
             SJ proof.
         f) Hypo – What should you do if you are an opponent to SJ?
                         File a response
                         Defects to all formal defects in SJ proof b/c if those are not raised, they are waived
                         Show movant did not establish every cause of action w/ evidence
                         R. 93 and R.94 and that can be on an unpled affirmative defense as long as other side
                             doesn‟t object or file a special exception.
                         Present any evidence that creates a fact issue by presenting opposing evidence
                         Point out any hole in movant‟s proof

5. No-evidence SJ – R. 166a(i) – After adequate time for discovery, can move for SJ on the basis that the other side
    has no evidence. The ct. must grant that motion unless the opponent produces some evidence raising issues of
    material fact. One of the few times that you can move for SJ w/o any evidence and then the nonmoving party
    must come forward with some evidence. The comments that are after this rule have the force of law b/c lawyers
    need some guidance.
        a) Moore v. K-Mart
                  i. Facts: P. tripped and fell. K. filed a no-evidence SJ saying that there was no evidence of a
                       harmful area and if there was, K did not know. P. presented depos in response.
                  ii. Held: It is not just enough that P. can forward w/ something. Standard of review is the same
                       as a directed review – Review the evidence in the light most favorable to the non-movant.
                       Give them the benefit of the doubt. No evidence also can mean evidence that is so weak that it
                       only raises a suspension. It is more than a scintilla when fair minded people can differ on
                       what the evidence proves. The ct. looks at whether K know or should have known of this
                       condition. No evidence presented that they should have had constructive knowledge of this
                       deficiency.
        b) Robinson v. Warner (Supp. 174)
                  i. Facts: Cause of action was products liability b/c she was given a false positive for a blood test
                       after getting a flu vaccine. D. claims that there is no evidence of causation.
                  ii. P’s arg - P. relies on her affidavit and she says that a nurse told her that the vaccine causes a
                       false positive. The trial ct. excluded it b/c of hearsay. P.‟s 1 st arg. is that the affidavit doesn‟t
                       speak to the facts, but the ct. says that this won‟t block SJ. P‟s 2 nd arg is that she did much of
                       her own research, but the ct. states that this research can‟t be relied upon b/c she is not an
                       expert. P.‟s 3rd arg is that the ABA article is exempt from hearsay, but the Ct. states that the
                       article is not a public record and thus, is not exempt from the hearsay rule. She did not prove
                       that the article is trustworthy
                  iii. Significance - You don‟t have to marshal your evidence – You don‟t have to put forward
                       every piece of evidence you have.
        c) Notes after the case – Evidence submitted in the No Evidence SJ motion must be in admissible form.

6. Procedure and Evidence:
        a) Mathis v. Bocell (pg. 675)
                i. Facts: Complications with knee and P. is suing Dr‟s for medical malpractice.
                ii. Issue: Can the D. use his own affidavit?
                iii. What were the requirements of the affidavit?


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                                                   B/c he has an interest in the case, the affidavit to support SJ must show procedurally
                                                    (166(a)) 1) Interested uncontroverted testimony, 2) direct, 3) Free from
                                                    inconsistencies
                                     iv. P. needed to create a fact issue and did this with an affidavit from another expert. This
                                          affidavit referred to medical records, but the records were not attached to the affidavit.
                                     v. Formal (can go to trial) v. substantive defect (no evidence worthy to go to trial)
                                                The distinction is imp. to see if you can raise something on appeal. Sub. Defects
                                                    may be raised for the first time on appeal. Formal defects must be objected to and
                                                    ruled upon by the trial ct. (The defect to attach medical records to the affidavit was
                                                    waived b/c the D. raised it BUT did not get a ruling.)
                                                This ct. decided that a defect is formal if the evidence is competent, but inadmissible.
                                                    A defect is substantive if the defect is incompetent. If the person was not competent
                                                    to testify at trial, then this defect is substantive.
                                     vi. Held – SJ is inappropriate b/c the experts testimony conflicts and raises a fact issue.

KNOW BURDENS FOR SJ (if you are the nonmovent – create a fact issue for traditional SJ)

          E. Settlement, Nonsuits, and Consent Judgments
                   1. Effects of the Settlement
                           a) McMillin v. Klingensmith (pg. 687)
                                i. Issue: Does the release of the tortfeaser release subsequent tortfeasers.
                                ii. Facts: Car accident where P. released driver, but not the doctors.
                                iii. Common law – Release 1 person, you release the rest (unity of release rule)
                                iv. Held: The unity of release rule is against public policy. The ct. adopts a new rule – A release of a
                                     party named or otherwise specifically identified fully releases only the parties names or identifies,
                                     but no others.
                                          In Duncan case – “otherwise specifically identified means” – “sufficiently particular so that a
                                          stranger to the release could readily identify the released party even though the party‟s name
                                          is lacking. – Can‟t say “all corporations”
                                          You can release one party w/o releasing the party vicariously liable. You can release an
                                          employee and still sue the employer.
                   2. The Consent Judgment/Enforcement of the Settlement
                           a) Leal v. Cortez (pg. 694)
                                i. Facts: Case went to trial. The case was settled and the trial judge saw that the agmt had a dispute
                                     and the judge holds a hearing and enters a judgment on what he thought the agmt stated.
                                ii. Held: The trial ct. doesn‟t have the authority to supply the terms. Consent must exist the moment
                                     the trial ct. enters the agmt into the judgment. The trial ct. failed to follow that. A valid consent
                                     judgment can‟t be entered when a valid consent is missing. If the agmt is not entered in properly,
                                     the case must be remanded for a totally new trial (on the assumption that the agmt will be done
                                     right).
iii. R. 11 – Consent judgment is enforced by Ct. as opposed to a settlement agmt where you can sue for a breach of that agmt. READ
THIS RULEChapter 7 – Parties

XIII. Permissive Joinder of Claims
        A. R. 51 – When you have 1 P and 1 D, you can have any claims joined, even if there do not rise out of the same transaction.
            This allows, but does not require joinder of claims. But, under res judicata, you might be required to raise the claim.
            1. Permissive joinder by the P. R. 40 – P. can join additional parties if: 1) relief arising out of the same transaction and
                 2) There is a question of law or fact common to all of them.
                 a) Hypos – A sues B for assault and battery and malicious prosecution
                     i. A can sue B for bother claim
                     ii. A can‟t sue B and C there is a claim against B for assault and C for malicious
                     iii. What if A has a cause of action against B and C on a note and against B, C, D on an unrelated note – Is the
                          joinder proper – No. As to D, there is no common question of law and fact dealing with note1. If the
                          claims are unrelated, ask yourself, is the D. required to sit through a claim that is unrelated to the claim that
                          is against him now.
                          *** If there is an improper joinder, ct should sever the claims, not dismiss them
                     iv. If A is suing B and C on the same contract claim and B and C on a liable claim, (the liable claim is unrelated
                          to the kx claim), ask your self: 1) Are the claims properly joined? 2) Are the parties properly joined? –
                          This would be proper. (The joinder of claims would be permissive, not mandatory)
                     v. Under Tex. rules A could not bring a suit against B and C for the kx and B for the liable. (Each claim
                          against B must be related to each claim against C)
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        b) R. 97(g) – Exception to R. 51(b)
    2. Russell v. Hartford Casualty Ins. Co. (p. 415)
        a) Facts: There was an accident. P. first sued the people involved in the accident and then they wanted to sue the
            rental car comp and insurance company. for unfair settlement practices. Is this a proper joinder of these parties
        b) Held: P. thinks it is appropriate under R. 51. Under R. 51(b) you can join insurance co. if there is some statute
            making the co. is directly liable, then they could be joined. Under R. 40, need the same transaction of
            occurrence. The claims so not arise out of the same question of fact or law.

B. Joinder of Claims by the Defendant
    1. Counterclaims – R. 97(a) and (b)
        a) 97(a) – Compulsory counterclaim, If you don‟t bring it, you have lost it, Elements:
            *** If it is w/in the jurisdiction of the ct
           **** Not subject to impending claim.
           **** You assert a counterclaim against someone who has already made a claim against you.
           ***** It arises out of the same transaction or occurrence -
           ***** It doesn‟t require the presece of 3rd parties that ct can‟t get juris over
                   - If a sues B and C, C cant counterclaim against C
            **** If A sues B and C and the B files a crossclaim against C, C could then file a counterclaim against B
        b) 97(b) – Permissive counterclaim
          **** Doesn‟t have to be related
         **** Opposing party is someone who has made a claim for relief against you

    2. Jack H. Brown v. Northwest Sign Co. (p. 420)
        a) Facts: Suit 1 in Idaho is N suing B for installing the pipe. N obtains a default judgment. Suit 2 is in Tex. and B
             is suing N for installing the pipe.
        b) Issue: Was this a compulsory counterclaim?
        c) Held: NW files a SJ asserting that this suit is compulsory and thus barded. Did the claims arise out of the same
             transaction and occurrence. The ct. adopts a logical relationship test. Whenever the same facts are significant
             and logically relevant to both claims, it is arising out of the same transaction. The two claims do arise out of the
             same transaction and there is no exception in default cases.
    3. Ingersoll-Rand Co. v. Valero Energy Corp. (Tex. 1999). Sup. Pg. 75
        a) Facts: Valero sued IR. Trial ct. granted SJ for D. based on this indemnity agmt. The P. is usually indemnitored.
             D. is now seeking attorney costs. Should this claim have been raised as a compulsory counterclaim earlier?
        b) Held: Look at the requirements for a compulsory counterclaim. It can‟t be a compulsory counterclaim until it
             has matured. This agmt accrues when the liability b.c‟s fixed and certain usually by a judgment. This was an
             indemitoy against liability and this accrued when SJ was entered and that was the first time that D. could assert
             the claim for attorneys fees.
        c) Significance – Attorneys fees are usually compulsory b/c this claim accrues when the work starts, but under this
             agmt, they weren‟t open for attorney fees until the liability accrued out of judgment. BUT most cases attorney
             fees are compulsory
    4. SOL - What is P. files a cause of action the day before Sol arose and by D has been served, the counterclaim has been
        barred. CPRC -16.068 – the Sol is tolled until the 30th day after the Party filed the claim is required to answer. You
        can always raise the claim and drop it later. CPRC 16.068 – Claims that are added or amended by supp. pleadings
        will go relate back to the original SOL period unless the new pldg is wholly based on a new action or occurrence.
    5. You can file a counterclaim that is less than the jurisdictional amt. if it arises out of the same occurrence, but you
        can‟t file it if it is more than the max.
    6. Cross-claims are permissive and no juris if less than the min and ct. considered it independent of main suit.
    7. page 426 - 427

C. Permissive Joinder of Parties by the D
    1. R. 38 – When the D can bring in a 3rd party. The D. is now a 3rd party P. D can bring in a 3rd party D if he is or may
        be liable to the D or P. for all or part of P.‟s claims against the D. Once 3rd party is joined, he can make any
        defenses applicable. 3rd party may file an answer to D‟s claim and may file against the P. arising out of the same
        transaction. P can sue 3rd party if the claim arises out of the same occurrence. If P does file a cause of action against
        3rd party, 3rd party must assert all defenses. 3rd party is now just like an original D. If A sues C, C‟s response is now
        compulsory b/c they are now opposing parties.
    2. Hypos:
        a) A, B, and C are in a car accident. A sues just B. Can B bring a 3rd party action against C for B‟s personal
             injuries?
                  i. No – b/c under the rule, the 3rd party is or may be liable for P.‟s claim
        b) Can B bring a 3rd party action against C for contribution and indemnity?
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                   i. Yes – C is now liable for P.‟ claim against B
                   ii. If C is brought in, can C bring a counterclaim against A for C‟s damages in the wreck? – Yes, but he
                        doesn‟t have to unless A asserts a claim against C.
          c) Can B bring a counterclaim against A for B‟s damages– Yes
                   i. Can B then join C in that counterclaim seeking damages? – Yes (R. 97f)
    3.   Heisey v. Booth
          a) Facts: Reece initially sued Booth on a sworn account and Booth wanted to bring in Heisey as a 3 rd party D.
              claiming that he should reimburse for the fees (indemnity and contribution). Heisey filed a general denial as
              opposed to a sworn denial which is the usual response. Heisey doesn‟t show up for trial. The original P and D
              settled and the trial ct. entered a judgment against Booth and Heisey based on the agmt b/w the original P and
              D. Heisey appeals.
          b) Held: Booth argues that it was proper to include a judgment against Heisey b/c he didn‟t file a sworn account.
              Ct. said that this doesn‟t work b/c Heisey is a stranger to the transaction, he doesn‟t have to swear under oath.
          c) Significance – The 3rd party doesn‟t need to file a sworn denial. D. must still prove his action to get Heisey into
              this judgment.
    4.   Contribution D.’s – pg. 430
          a) Joinder of Contribution D.‟s allows D‟s to assert claims and get judgments against these parties joinded. They
              will share in the judgments.
    5.   Responsible 3rd Parties – pg. 430
          a) Include all responsible parties to share in the judgment
    6.   Venue and Joinder
          a) 15.062 (pg. 387) – Venue of the main action governs venue of cross-claims and counterclaims, if the original D
              properly joins the 3rd party D.

D. Intervention; Voluntary Joinder of New Parties
    1. Rule 60
        a) Improper Intervention – Motion to Strike
    2. Mulcahy v. Houston Steel Drum Company (Austin 1966)
        a) Facts: This was a bill or review (It is a suit in equity asking for a reexamination of the judgment by someone
            who was not a party) to reinstate the charter. Mulcahy says that this bill of review was a reflection of his work
            and thus he is entitled to intervene.
        b) Rule: To determine if it was a proper intervention, an intervener must have the interest of a sole P. to intervene
            and it can‟t unduly complicate the proceedings. They must have the standing so that they could have originally
            filed the suit themselves. You can intervene w/o getting permission to intervene. You can be stricken if you
            have no interest or b/c you overly complicate the case.
        c) Held: Only the state can make the claim In questioning the existence of a corp. charter. Thus, Mulcahy did not
            have standing and the intervention was not proper
        d) Quo warranto Proceeding - Writ against someone who has claimed office and it questions by what authority
            that person claimed the office or what authority do you claim to set out a franchise.
    3. W/o a motion to strike, the ct. can‟t get rid of the intervener.
    4. Roberson v. Roberson – pg.
        a) Facts: Putative Wife – A supposed wife, but not officially married under the law. Putative wife is trying to
            intervene in the divorce and wants some division of the assets
        b) Held - This is not a proper intervention b/c it would overly complicate the case. She to protect her interests.

E. Interpleader p. 435
    1. R. 43 – Persons having claims against the P can be joined against the D when 1) P is going to claim that she is or may
        be exposed to multiple liability based on fund or property in their possession.
        a) Example – Bank who has a trust fund and various heirs claim that money or and escrow agent and money and
             they is a dispute on who owns the money or a bailee has possession of property and many people are claiming
             to own the property.
        b) These claims don‟t have to be of common origin but they all have to be claims to the same property or funds.
        c) P. can deny all or part liability to the D.‟s. P. can have an interest, but most of the time the P. is a disinterested
             party
    2. 15.005 – Venue w/ interpleader. Jurisdiction is determined by the value of the fund I am holding, but you also need
        personal jurisdiction
    3. Downing v. Laws
        a) Held: You don‟t have to be disinterested to file an interpleader, but you must have conflicting claims with the
             D.‟s. .

F. Compulsory Joinder of Parties – R. 30 – 32 and R. 39
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             1. Yandell v. Tarrant State Bank
                 a) Facts: Bank sued guarantor of the note w/o joining maker of the note. Bank claimed that maker was insolvent
                     based on Article 1986 and 1987 b/c guarantor waived right to insolvency.
                 b) Held: Bank did not present enough evidence that the maker was insolvent. This is a way to get around joining a
                     party. Notice of bankruptcy was not enough to prove insolvency. CPRC 17.001 (p. 443). Rule that you must
                     bring in a maker is for the guarantor‟s benefit and that can be waived by the guarantor and that is what
                     happened it the stipulation in the note. 17.001 says when you need to bring in the endorser and there are 4 times
                     when you don‟t.
                 c) Note Case – You don‟t need to join the original maker.
             2. Generally:
                 a) R. 39 – Is there is a situation in which the ct. lacks the juris. to proceed if a party is unnamed? Very rarely will
                     the absence of a party make a ct. lack juris. It calls for a 2 step approach 1) 39(a) – If it is feasible to do so and
                     it has to be someone who is subject to service of process. If in there absence complete relief can‟t be granted in
                     their absence or The missing party claims an interest and their interest puts them in the position that will impair
                     their interest. A missing party can‟t protect their interest. 2) 39(b) – If you can‟t join the people, then the ct.
                     must determine if he action should proceed or be dismissed in the absence of these parties. (look at prejudice,
                     shaping the judgment, whether judgment would grant the relief, or whether the P. would have adequate remedy
                     if the case is dismissed.
                 b) Problems – Non-joinder issues are usually not raised until appeal. Under old rules, this was fundamental error.
                     The new approach – waiver principle applies. This fundamental error is extremely rare. Non-joinder issues are
                     rarely jurisdictional in nature.


        G. Chapter 17 – Parties; Citation; Long-Arm Jurisdiction
           1. Generally
           2. Cooper v. Texas Gulf Industries, Inc. pg. 443
               a) Facts: C and his wife sued D. C says that the first suit was dismissed with prejudiced and wife was not a party
                    to the suit. C. argues that the ct. could not a judgment b/c wife should be joined.
               b) Held: Under the Family code, the husband can‟t represent the wife. The husband didn‟t represent the wife in
                    the first lawsuit. Thus, wife is not bound by the 1st lawsuit. But, wife was not so indispensable to the first
                    lawsuit that the judgment should be thrown out. Ct. is getting away from the fundamental error language. The
                    judgment of the 1st lawsuit is binding on the husband and it is not res judicata on the wife. It is res judicata to
                    the husband except to the extent that it fails to give the wife all the relief she is entitled to.
                       i. The relief the wife wants is to have the kx of sale rescinded. In practicable terms, this can‟t be split b/w the
                            wife and the husband.
                       ii. The judgment can‟t be binding on H and not on W. Thus, the judgment is not really binding on H.
                       iii. Any time you are suing husband or wife concerning community property, you better get both parties in
                            there.
           3. When the Ct. has found fundamental error
               a) Ct. lacks SM juris or there is some public interest and that is effected by this missing party (Austin was an
                    indispensable party in a suit to determine the validity of a zoning ordinance and Ct. found that there was no
                    juris. to challenge the blue book law unless the enforcing board was present.
           4. How to bring up that a necessary party is missing?
               a) Plea in abatement is how you bring this up b/c you are asking for the proceedings to be suspended until the
                    parties are joined. If they can‟t be joined, then you can dismiss.
           5. Pirtle v. Gregory pg. 449
               a) Facts:
               b) Held:
           6. Minga v. Perales pg. 452
               a) Facts:
               b) Held:


9:30 – 11:00 Tues, Thurs and on the 16th
Responsible for up to p. 454




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