Shared Flashcard Set


TX Civ Pro I
St. Mary's Law - Professor Kauffman

Additional Law Flashcards




Preserving Error

1. Make trial court aware of your complaint (by timely filing motions or objections).


2. State the underlying grounds with specificity (we object, on what grounds, and why).


3. State the relief you request.


4. Have to get a ruling.


5. Ruling has to be in the record.

Subject Matter Jurisdiction

- 2 basics: (1) amount in controversy & (2) proper subject matter (divorce only in district court or family court.


- File a plea to the jurisdiction to dispute (or a special exception).


- SMJ can be brought up at any time! (Trial, appeal, etc.)



- 3 types:

1. Permissive

2. Mandatory

3. Improper


- Venue determinations can't be appealed until after final jgmt, though joinder/intervention can have an interlocutory appeal.  Also may seek mandamus to compel transfer to a mandatory venue.


- On appeal from trial on the merits, improper venue shall in no event be harmless error.  The app. ct. shall consider the entire record.

Mandatory Venue

- Mandatory venue is compulsory only if a D properly objects by filing a motion to transfer venue.


- If there is mandatory venue P should file there.


- Venue can be waived if D doesn't object.

Permissive Venue

General Venue hierarchy:

1. In the county in which all or a substantial part of the events of ormissions giving rise to the claim occurred.

2. In the county of D's residence at the time the c/a accrued if D is a natural person.

3. In the county of D's principal office in this state, if D is not a natural person.

4. If none of the above apply, then in the county where P resided when the c/a accrued.

- For the convenience of the parties & witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C to any other county of proper venue on motion of a Δ filed & served concurrently with or before the filing of the answer, where the court finds: (this does not apply if mandatory venue supersedes, this only under permissive venue).

§         (1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant’s economic & personal hardship

§         (2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and

§         (3) the transfer of the action would not work an injustice to any other party

(c) A court’s ruling or decision to grant or deny a transfer under Subsection (b) is not grounds for appeal or mandamus and is not reversible error.

Challening Venue

- A motion to transfer venue must be filed before any other plea, pleading, motion, etc. (except a special appearance).


- An agreement b/t parties to transfer venue can be filed at any time.


- Burden is on the D to prove that the initial co. is not proper & what county is proper.

- Then burden shifts to P to show that D acted in some way to trigger mandatory venue, otherwise D will get motion to transfer.


- Waiver of venue by one D does not prevent other D's from appropriately challenging venue.


- A trial ct. has no discretion to transfer venue on its own motion, even to a county of proper venue.


- Fair Notice: Parties must be given fair notice of the facts, claims, affirmative defenses, etc.


- A defect in a pleading is waived if you don't raise it by special exception. (trial by consent)


Special Exception: a special excception shall not only point out the particular pleading excepted, but it shall also point out intelligibly and with particularity the defect, ommission, generality, etc. in the allegations in the pleading exccepted to.


- Judge must grant leave to amend pleadings unless (1) opposing party presents evidence of a surprise or prejudice, or (2) the amendment asserts a new c/a or defense and is thus prejudicial on its face and other party objects.


- You can plead generally that all conditions precedent have been met.  Unless D specifically objects, then P must prove a conditions precedent.


Default Judgment held errroneous only if:

1) the petition (or other pleading of the non-defaulting party that seeks affirmative relief) does not attempt to state a cause of action that is within the the jurisdiction of the court.


2) The petition (or pleading for affirmative relief) does not give fair notice to the defendant of the claim asserted.


3) The petition affirmatively discloses the invalidity of such claim (pleading yourself out of court).

Default Judgments

- In general, with a default judgment everything in the petition is treated as true if D defaults.


- Unliquidated damages must still be proven up.

Dismissal or Non-Suit

- At any time before the P has introduced all of his evidence other than rebuttal evidence, the P may dismiss a case, or take a non-suit, which shall be entered in the minutes.


- Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief...


- A dismissal under this rule shall have no effect on any motions for sanctions, atty's fees or otherr costs...

Elements of Proper Severance

1. Controversy must involve more than one cause of action


2. Severed cause must be one that is the proper subject of a lawsuit independently asserted., and


3. Severed cause must not be so intertwined as to involve identical facts and issues.

Forms of Discovery

- requests for disclosure: no objection or assertion of work product is permitted to a request under this rule.


- requests for production and inspection of documents and tangible things


- requests and motions for entry upon and examination of real property


- interrogatories to a party


- requests for admission


- oral or written depositions


- motions for mental of physical examinations

Scope of Discovery

In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party.


It is not ground for objection that the information sought will be inadmissable at trial (hearsay) if the information sought appears reasonably calculated to lead to the discovery of admissable evidence

Limitations on Discovery

- Work Product


- Protective Orders

Scope Issues

- Scope - overly broad


- Time


- Place


- Reasonably tailored to the issues of the case.

Work Product
- Core work product is not discoverable
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