You can see in TRCP 53, their own rules admit there are this State, ('corporate venue' Government code, Texas) and the Republic of Texas ('Bill of Rights' Common Law venue).
You have to know who you are and be in your Court not theirs!
TRCP 257 and 258 allow you to change venue but they have closed your court so it can not be done.
Learn how to evercome this fact via 'Copyright'...
see the Video listed in Contact area
PART 1 GENERAL RULES
TRCP 1 OBJECTIVE OF RULES
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
Stelly v. Papania, 927 S.W.2d 620,622 (Tex.l996).
"The purpose of the rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the litigants' rights under established principles of substantive law. ... The discovery rules were not designed as traps for the unwary, nor should we construe them to prevent a litigant from presenting the truth."
TRCP 2 SCOPE OF RULES
These rules shall govern the procedure in the justice, county, and district courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated. Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these Rules, and not included in the "List of Repealed Statutes," such statute shall apply; and where any statute in effect immediately prior to September 1,1941, and not included in the "List of Repealed Statutes," prescribed a rule of procedure in any special statutory proceeding differing from these rules, such statute shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in bond or recognizance forfeitures in criminal cases are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply; provided, however, that Rule 117a shall control with respect to citation in tax suits.
TRCP 3 CONSTRUCTION OF RULES
Unless otherwise expressly provided, the past, present or future tense shall each include the other; the masculine, feminine, or neuter gender shall each include the other; and the singular and plural number shall each include the other.
TRCP 4 COMPUTATION OF TIME
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays and legal holidays shall be counted for purposes of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by registered or certified mail or by telephonic document transfer, and for purposes of the five-day periods provided for under Rules 748,749,749a, 749b, and 749c.
Sosa v. Central Power & Light, 909 S.W.2d 893, 894 (Tex.l995). "[T]he Sosas filed their second amended original petition {7 days before the hearing on the motion for summary judgment]. At 895: When [TRCP 4] is applied, the day on which the Sosas Filed their amendment is not counted but the seventh day after it was filed is counted. ... As we held in Lewis, the last day counted from the date of the filing may be the date of the hearing. Therefore, the Sosas timely filed their second amended original petition."
Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.l994). TRCP 4 "applies to any period of time prescribed by the rules of procedure.... Applying [TRCP] 4 to [TRCP] 166a(c), the ... hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or the 24th day if the motion is served by mail."
Peacock v. Humble, 933 S.W.2d 341, 342-43 (Tex. App.-Austin 1996, no writ). "The Code Construction Act and [TRCP] 4 ... are not consistent in the manner in which they address Saturdays, Sundays, and legal holidays when computing time periods of 5 days or less. [ If ) When a rule of procedure conflicts with a statute, the rule yields to the legislative enactment. ... Because the 3-day filing period in the present case is statutory, the Code Construction Act's method for computing time applies rather than the method contained in [TRCP] 4."
TRCP 5 ENLARGEMENT OF TIME
When by these rules or by a notice given there under or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act. The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.
If any document is sent to the proper clerk by first class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.
Ector Cty. ISD v. Adkins, 989 S.W.2d 363, 363 (Tex.l999). TRCP 5 "applies to Texas Labor Code Section 410.253 filings with the Texas Workers' Compensation Commission."
Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267,268 (Tex.l996). "(W]e hold that mailing the document to the proper court address is conditionally effective as mailing it to the proper court clerk's address. [11] The clerk still must receive the document within 10 days to perfect the filing."
Miller Brewing Co. v. Villarreal, 829 S.W.2d 770, 771-72 (Tex.l992). "Under our current rules, a party who finds the courthouse closed on the last day that a document must be filed ... may mail the document that day, and if it is received by the clerk not more than ten days later it is timely filed. ... He may also locate the clerk or judge of the court and file the document with them.... In some circumstances a party may also move for an enlargement of time."
Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708,718 n.7 (Tex. App.-Corpus Christi 1998, pet. denied). "Although the rules of procedure view postmarks as prima facie evidence of the date of mailing for purposes of filing documents with the court, postmarks are not conclusive evidence of the date an item was mailed in other contexts."
Milam v. Miller, 891 S.W.2d 1,2 (Tex.App.-Amarillo 1994, writ refd). "[O]nce the provision of [TRCP] 5 are met, the post office becomes a branch of the district clerk's office for purposes of filing pleadings."
TRCP 6 SUITS COMMENCED ON SUNDAY
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings; provided that citation by publication published on Sunday shall be valid.
Nichols v. Nichols, 857 S.W.2d 657, 659 (Tex. App.-Houston [1st Dist.] 1993, orig. proceeding). "The plain language of [TRCP] 6 prohibits service of process on Sunday. Ms. Nichols [who was served on Sunday] was not served in strict compliance with the law. Service was invalid and the trial court's order was improper." Court reversed default judgment.
TRCP 7 MAY APPEAR BY ATTORNEY
Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.
Kanstoplast v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. l996). "Generally a corporation may be represented only by a licensed attorney .... We hold, however, that ... a non lawyer [is not precluded] from performing the specific ministerial task of depositing cash with a clerk in lieu of a cost bond."
Ayres v. Canales, 790 S.W.2d 554,557 (Tex.l990). "Ordering a party to be represented by counsel violates [TRCP] 7."
Computize, Inc. v. NHS Comm. Group, Inc., 992 S.W.2d 608, 612 (Tex-App.- Texarkana 1999, n.p.h.). "[A] response to a motion for summary judgment by a corporation must be made through an attorney."
TRCP 8 ATTORNEY IN CHARGE
On the occasion of a party's First appearance through counsel, the attorney whose signature First appears on the initial pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party.
All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.
Gem Vending, Inc. v. Walker, 918 S.W.2d 656,658 (Tex.App- Fort Worth 1996, orig. proceeding). "Notice to an attorney is notice to a party, [0]nce an attorney has entered an appearance in a case, all communications must be sent to that attorney."
Reichhold Chem., Inc. v. Purernco Mfg., 854 S.W.2d 240, 246 (Tex.App-Waco 1993, writ denied). Service of discovery answers on the co-counsel of the attorney in charge did not comply with rules.
Palmer v. Cantrell, 747 S.W.2d 39,41 (Tex.App- Houston [1st Dist.] 1988, no writ). "Where a single adverse party is represented by two attorneys who are not associated in a firm, we believe that it is sufficient to serve the attorney who is designated as lead counsel because he has 'control in the management of the cause...."'
TRCP 9 NUMBER OF COUNSEL HEARD
Not more than two counsel on each side shall be heard on any question or on the trial, except in important cases, and upon special leave of the court.
TRCP 10 WITHDRAWAL OF ATTORNEY
An attorney may withdraw from representing a part) only upon written motion for good cause shown. II another attorney is to be substituted as attorney for the party, the motion shall state: the name, address, telephone number, telecopier number, if any, and State Bar of Texas identification number of the substitute attorney; that the party approves the substitution; and that the withdrawal is not sought for delay only. If another attorney is not to be substituted as attorney for the party, the motion shall state: that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines. If the motion is granted, the withdrawing attorney shall immediately notify the party in writing of any additional settings or deadlines of which the attorney has knowledge at the time of the withdrawal and has not already notified the party. The Court may impose further conditions upon granting leave to withdraw. Notice or delivery to a party shall be either made to the party in person or mailed to the party's last known address by both certified and regular first class mail. If the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule 21 a.
Rogers v. Clinton, 794 S.W.2d 9, 10 n.l (Tex.l990. "Although a client may discharge his attorney at an time even without cause ... an attorney may withdraw from representation of a client only if he satisfies the requirements of [TRCP] 10."
In re News Am. Pub'g, Inc., 974 S.W.2d 97, 10 (Tex.App.-San Antonio 1998, orig. proceeding " IT] his rule requires that the attorney of record have actual knowledge that his client has terminated the professional relationship, '[I]f retained counsel has entered an appearance in a matter, whether civil or criminal, and remains counsel of record, with corresponding responsibilities, the communicating lawyer may not communicate with the person until the lawyer has withdrawn her appearance.'"
Moss v. Malone, 880 S.W.2d 45, 50 (Tex.App.- Tyier 1994, writ denied). "The rules governing withdrawal contain provisions which are obviously place there to protect the client's interests. [ ] We hold ... the court erred in allowing Appellant's then trial counsel to withdraw with a deficient motion to withdraw without taking steps to protect this party litigant's valuable right."
TRCP 11 AGREEMENTS TO BE IN WRITING
Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and Filed with the papers as part of the record, or unless it be made in open court and entered of record.
Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex 1995). "Although [TRCP] II requires the writing to be filed in the court record, it does not say when it must be filed. The purpose of the rule-to avoid disputes over the terms of oral settlement agreements-is not furthered by requiring the writing to be Filed before con sent is withdrawn. ... The purpose of the filing requirement... is satisfied so long as the agreement is filed before it is sought to be enforced."
London Mkt. Cos. v. Schattman, 811 S.W.2d 550 552 (Tex.l991). TRCP II "requires agreements between attorneys or parties concerning a pending suit to be in writing, signed and Filed in the record of the cause to be enforceable. Once the existence of such an agreement becomes disputed, it is unenforceable unless it comports with these requirements."
CherCo Props., Inc. v. Law, Snakard & Gambill P.C, 985 S.W.2d 262,265 Tex.App- Fort Worth 1999 n.p.h.). A TRCP II "settlement agreement is no enforceable unless it is complete within itself as to every material detail and contains all the essential elements of the agreement so the contract can be ascertained from the writing, without resort to oral testimony."
Tindall v. Bishop, Peterson & Sharp, 961 S.W.2d 248, 249-51 (Tex. App.-Houston [1st Dist.] 1997, no writ). Settlement agreement, dictated during deposition, transcribed, filed, and signed by court reporter (not by parties or lawyers), was not enforceable under TRCP 11. Contra Kosowska v. Khan, 929 S.W.2d 505 507 (Tex.App.-San Antonio 1996, writ denied) (essentially same facts, settlement agreement dictated to court reporter was enforceable under TRCP 11).
Southwestern Bell Tel. Co. v. Perez, 904 S.W.2d 8, 821 (Tex. App.-San Antonio 1995, orig. proceeding. "[C]ounsel may agree to extend discovery deadlines. However, ... an oral agreement ... is unenforceable unless it is made in open court and entered of record."
TRCP 12 ATTORNEY TO SHOW AUTHORITY
A partly in a suit or proceeding pending in a court of this state may, by sworn written motion staling that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion. At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears. The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.
Coleson v. Bethan, 931 S.W.2d 706, 712 (Tex. App.-Fort Worth 1996, no writ). "Under [TRCP] 12, any party may file a sworn motion challenging the attorney's authority to act on behalf of the client. Ten day notice to the 'challenged' attorney must be given before the hearing date. This type of challenge would be appropriate where perhaps the attorney ad litem's duties had been fulfilled but the attorney ad litem continued to act and failed to seek his or her discharge, as would be the normal scenario."
TRCP 13 EFFECT OF SIGNING OF PLEADINGS MOTIONS and OTHER PAPERS ; SANCTIONS
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.
Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.
Scott & White Mem. Hasp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.l996). "[A] trial court's plenary power to act in a case does not expire until 30 days after the court has signed the judgment. A trial court's power to decide a motion for sanctions pertaining to matters occurring before judgment is no different than its power to decide any other motion during its plenary jurisdiction. (T]he time during which the trial court has authority to impose sanctions on such a motion is limited to when it retains plenary jurisdiction...."
GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex-1993). TRCP 13 "prescribes that courts presume that papers are Filed in good faith. Thus, the burden is on the party moving for sanctions to overcome this presumption."
In re Cobb, __ S.W.3d __, __ (Tex.App- Dallas 1999, n.p.h.) (No. 05-98-01965-CV; 9-7-99). "If a trial court determines that affidavits filed in support of, or in opposition to, a special appearance are presented in violation of [TRCP] 13, the trial court 'shall impose sanctions in accordance with that rule.' Consequently, we conclude the trial court has jurisdiction over [D's representative] for the purpose of [TRCP] 13 sanctions."
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125,130 (Tex.App.-Houston [14th Dist.] 1999, n.p.h.). "Because [the paralegal for plaintiffs attorney] was not an attorney and did not sign any document in the case, the trial court did not have authority under [TRCP] 13 or any other rule to sanction him for alleged misrepresentations made to the court."
Aldine ISD v. Baty, 999 S.W.2d 113, 116-17 (Tex. App- Houston [ 14th Dist.] 1999, n.p.h.). "A trial court may not base [TRCP] 13 sanctions on the legal merit of a pleading or motion."
Murphy v. FriendswoodDev. Co., 965 S.W.2d 708, 709 (Tex.App.-Houston [1st Dist.] 1998, no pet.). "Rule 13 is clear-the particulars of good cause must be stated in the sanctions order. At 710: [Because the] order here did not recite the particular reasons supporting good cause to issue the sanctions and did not include findings of fact and conclusions of law supporting good cause ... we hold that the sanction order does not comply with Rule 13."
Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.-Fort Worth 1995, orig. proceeding). TRCP 13 "requires the trial court to hold an evidentiary hearing.... Without hearing evidence on the circumstances surrounding the filing of the pleading signer's credibility and motives, a trial court has no evidence to determine that a pleading was filed in bad faith or to harass."
TRCP 14 AFFIDAVIT BY AGENT
Whenever it may be 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.
Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116 (Tex.App.-Corpus Christi 1995, writ denied). "A party's attorney may verify the pleading where he has knowledge of the facts, but does not have authority to verify based merely on his status as counsel. ... Here, counsel does not show any basis in the pleading or in her affidavit for her personal knowledge of relevant facts."
TRCP 14a REPEALED
TRCP 14b RETURN OR OTHER DISPOSITION OF EXHIBITS
The clerk of the court in which the exhibits are Filed shall retain and dispose of the same as directed by the Supreme Court.
Perez v. Bagous, 833 S.W.2d 671, 674 (Tex.App- Corpus Christi 1992, no writ). "Once an exhibit has been admitted into evidence, ... if a party wishes to use it in some fashion, that party must give notice to opposing counsel and to the court, particularly when the admitted exhibit is used to create a new exhibit...."
SUPREME COURT ORDER RELATING TO RETENTION AND DISPOSITION OF EXHIBITS
In compliance with the provisions of Rule 14b, the Supreme Court hereby directs that exhibits offered or admitted into evidence shall be retained and disposed of by the clerk of the court in which the exhibits are filed upon the following basis.
This order shall apply only to: (J) those cases in which judgment has been rendered on service of process by publication and in which no motion for new trial was filed within two years after judgment was signed; and, (2) all other cases in which judgment has been signed for one year and in which no appeal was perfected or in which a perfected appeal was dismissed or concluded by a final judgment as to all parties and the issuance of the appellate court's mandate such that the case is no longer pending on appeal or in the trial court.
After first giving all attorneys of record thirty days written notice that they have an opportunity to claim and withdraw the trial exhibits, the clerk, unless otherwise directed by the court, may dispose of the exhibits. If any such exhibit is desired by more than one attorney, the clerk shall make the necessary copies and prorate the cost among all the attorneys desiring the exhibit.
If the exhibit is not a document or otherwise capable of reproduction, the party who offered the exhibit shall be entitled to claim same; provided, however, that the party claiming the exhibit shall provide a photograph of said exhibit to any other party upon request and payment of the reasonable cost thereof by the other party.
TRCP 14C DEPOSIT IN LIEU OF SURETY BOND
Wherever these rules provide for the filing of a surety bond, the party may in lieu of filing the bond deposit cash or other negotiable obligation of the government of the United States of America or any agency thereof, or with leave of court, deposit a negotiable obligation of any bank or savings and loan association chartered by the government of the United States of America or any state thereof that is insured by the government of the United States of America or any agency thereof, in the amount Fixed for the surety bond, conditioned in the same manner as would be a surety bond for the protection of other parties. Any interest thereon shall constitute a part of the deposit.
Southwestern States Gen. Corp. v. McKenzie, 658 S.W.2d 850, 852 (Tex.App- Dallas 1983, writ dism'd). "Because we read [TRCP] 14c as requiring no more than that the issuing bank will be one whose deposits are insured by an agency of the U.S. government, and because we can take judicial notice that Mercantile Bank at Dallas is so insured, we hold [the debtor]'s complaints about the adequacy of insurance to be without merit."
PART II RULES OF PRACTICE IN DISTRICT and COUNTY COURTS
Section 1 General Rules
TRCP 15 WRITS and PROCESS
The style of all writs and process shall be "The State of Texas'," and unless otherwise specially provided by law or these rules every such writ and process shall be directed to any sheriff or any constable within the State of Texas, shall be made returnable on the Monday next after expiration of twenty days from the date of service thereof, and shall be dated and attested by the clerk with the seal of the court impressed thereon; and the date of issuance shall be noted thereon.
Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App- Houston [1st Dist.] 1999, n.p.h.). TRCP 15 "seems to conflict with [TRCP] 99(b), which states the citation shall (1) be styled The State of Texas, and (8) be directedto the defendant.... [11] The citation ... in this case is a preprinted form addressed to the sheriff or any constable of Texas, as well as to the defendant. The requirements of rules 15 and 99(b) can be harmonized by allowing the citations to be directed to both the sheriff or constable, as the officer serving it, and the defendant, as the person being served." (Internal quotations omitted.)
TRCP 16 SHALL ENDORSE ALL PROCESS
Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.
Merritt v. Harris Cty., 775 S.W.2d 17, 23 (Tex. App.-Houston (HthDist.] 1989, writ denied). "A constable is charged with the execution of all process, warrants, and precepts which are directed to him...."
TRCP 17 OFFICER TO EXECUTE PROCESS
Except where otherwise expressly provided by law or these rules, the officer receiving any process to be executed shall not be entitled in any case to demand his fee for executing the same in advance of such execution, but his fee shall be taxed and collected as other costs in the case.
Rodeheaver p. Alridge, 601 S.W.2d 51, 54 (Tex. App.-Houston [1st Dist.] 1980, writ refd n.r.e.). " [T] here is no statutory authorization for the constable to require an advance deposit of fees for service of citation."
TRCP 18 WHEN JUDGE DIES DURING TERM RESIGNS OR IS DISABLED
If the judge dies, resigns, or becomes unable to hold court during the session of court duly convened for the term, and the time provided by law for the holding of said court has not expired, such death, resignation, or inability on the part of the judge shall not operate to adjourn said court for the term, but such court shall be deemed to continue in session. If a successor to such judge shall qualify and assume office during the term, or if a judge be transferred to said district from some other judicial district, he may continue to hold said court for the term provided, and all motions undisposed of shall be heard and determined by him, and statements of facts and bills of exception shall be approved by him. If the time for holding such court expires before a successor shall qualify, and before a judge can be transferred to said district from some other judicial district, then all motions pending, including those for new trial, shall stand as continued in force until such successor has qualified and assumed office, or a judge has been transferred to said district who can hold said court, and thereupon such judge shall have power to act thereon at the succeeding term, or on an earlier day in vacation, on notice to all parties to the motion, and such orders shall have the same effect as if rendered in term time. The time for allowing statement off acts and bills of exception from such orders shall date from the time the motion was decided.
W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 786 (Tex.App- Houston [1st Dist.] 1990, no writ). While TRCP 18 "specifically allows the successor judge to rule on motions pending, it does not allow rendition of judgment by a judge who has heard no evidence."
TRCP 18a RECUSAL OR DISQUALIFICATION OF JUDGES
(a) At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may File with the clerk of the court a motion staling grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.
(b) On the day the motion is filed, copies shall be served on all other parties or their counsel of record, together with a notice that movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge. Any other party may File with the clerk an opposing or concurring statement at any time before the motion is heard.
(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If the judge recuses himself, he shall enter an order of recusal and request the presiding judge of the administrative judicial district to assign another judge to sit, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken.
(d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district, in either original form or certified copy, an order of referral, the motion, and all opposing and concurring statements. Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and shall take no further action in the case after filing of the motion and prior to a hearing on the motion. The presiding judge of the administrative judicial district shall immediately set a hearing before himself or some other judge designated by him, shall cause notice of such hearing to be given to all parties or their counsel, and shall make such other orders including orders on interim or ancillary relief in the pending cause as justice may require.
(e) If within ten days of the date set for trial or other hearing a judge is assigned to a case, the motion shall be filed at the earliest practicable time prior to the commencement of the trial or other hearing.
(f) If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment. If the motion is granted, the order shall not be reviewable, and the presiding judge shall assign another judge to sit in the case.
(g) The Chief Justice of the Supreme Court may also appoint and assign judges in conformity with this rule and pursuant to statute.
(h) If a party files a motion to recuse under this rule and it is determined by the presiding judge or the judge designated by him at the hearing and on motion of the opposite party, that the motion to recuse is brought solely for the purpose of delay and without sufficient cause, the judge hearing the motion may, in the interest of justice, impose any sanction authorized by Rule 215(2)(b).
In re Union Pac. Resources Co., 969 S.W.2d 427, 428 (Tex.l998). "Judges may be removed from a particular case either because they are constitutionally disqualified ... or because they are recused under rules promulgated by this Court. ... [A]ny orders or judgments rendered by a judge who is constitutionally disqualified are void and without effect."
Fagin v. Duke-Keller Outdoor Advertising, Inc., __ S.W.3d __, __ (Tex.App- San Antonio 1999, n.p.h.) (No. 04-97-01020-CV; 7-30-99). TRCP 18a(a) "requires a motion to recuse to be filed at least ten days before the date set for trial or other hearing.' This time limit, however, does not apply if the movant does not receive ten days notice of the hearing from which he seeks to recuse the judge."
In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex.App- Corpus Christi 1999, n.p.h.). TRCP 18a(d) and (f) and Gov't Code Section 74.059(c)(3) "clearly contemplate a hearing will be held on a motion to recuse. A hearing affords the movants an opportunity to develop a record regarding the motions to recuse. "
Bourgeois v. Collier, 959 S.W.2d 241, 246 (Tex. App- Dallas 1997, no writ). TRCP 18a "requires the motion to be filed 'at least 10 days before the date set for trial or other hearing.' Although [D's] motion was filed after entry of final order, it was filed timely in relation to[D's] motion for rehearing."
Blanchard v. Kraeger, 916 S.W.2d 15, 18-19 (Tex. App.-Houston [1st Dist.] 1995, orig. proceeding). "Judge Blackstock's disqualification was mandatory when he took the extraordinary step of filing a general denial and became a party to the underlying [child custody] suit. ... The interest that disqualifies a judge is an interest, however small, which rests on a direct pecuniary or personal interest in the result of the case. [11] By his petition he secured a pecuniary interest in the suit in the amount of as an award of attorney fees from the Mother."
Garcia v. Employers Ins., 856 S.W.2d 507, 508-09 (Tex.App.-Houston [1st Dist.] 1993, writ denied). "[O]nce a party files a timely objection to the assignment of a judge under Section 74.053 of the [Gov't Code], the disqualification of the judge is mandatory. ... This statute has been held to apply to active judges sitting elsewhere in the district, as well as retired and former judges."
TRCP 18b GROUNDS FOR DISQUALIFICATION and RECUSAL OF JUDGES
(1) Disqualification. Judges shall disqualify themselves in all proceedings in which:
(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or
(b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy; or
(c) either of the parties may be related to them by affinity or consanguinity within the third degree.
(2) Recusal. A judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(c) he or a lawyer with whom he previously practiced law has been a material witness concerning it;
(d) he participated as counsel, adviser or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;
(e) he knows that he, individually or as a Fiduciary, or his spouse or minor child residing in his household, has a Financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(f) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party,
(ii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iii) is to the judge's knowledge likely to be a material witness in the proceeding.
(g) he or his spouse, or a person within the First degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.
(3) A judge should inform himself about his personal and Fiduciary Financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(4) In this rule:
(a) "proceeding" includes pretrial, trial, or other stages of litigation;
(b) the degree of relationship is calculated according to the civil law system;
(c) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(d) "Financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization;
(iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;
(v) an interest as a taxpayer or utility ratepayer, or any similar interest, is not a "financial interest" unless the outcome of the proceeding could substantially affect the liability of the judge or a person related to him within the third degree more than other judges.
(5) The parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record.
(6) If a judge does not discover that he is recused under subparagraphs (2)(e) or (2)(f)(iii) until after he has devoted substantial time to the matter, he is not required to recuse himself if he or the person related to him divests himself of the interest that would otherwise require recusal.
Pena v. Pena, 986 S.W.2d 696,700 (Tex.App- CorpusChristi 1998,nopet.). "[T]heinterestofajudge,in order that he may be disqualified, must, in general, be a direct pecuniary or properly interest in the subject matter of litigation. [ If ] [W] e conclude that the trial judge's attorney-client relationship with opposing counsel does not amount to a constitutional disqualification."
Ladlow v. Deberry, 959 S.W.2d 265, 271 (Tex. App- Houston [14th Dist.] 1997, no writ), "[O]pin- ions formed by the judge on the basis of facts introduced or events occurring during proceedings do not constitute a basis for a recusal motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. ... [J Judicial remarks during the course of a trial that are critical or disapproving or even hostile to counsel, parties, or their cases, ordinarily do not support recusal. Such remarks may do so if they reveal an opinion deriving from an extrajudicial source and such remarks will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible."
Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 558 (Tex.App.-Beaumont 1993, writ denied). "Fairness may be an issue on recusal but is of no consideration on the question of disqualification." Judge, whose wife was employee of one of parties and owned stock in corporation, was disqualified to hear case.
TRCP 18c RECORDING and BROADCASTING OF COURT PROCEEDINGS
A trial court may permit broadcasting, televising, recording, or photographing of proceedings in the courtroom only in the following circumstances:
(a) in accordance with guidelines promulgated by the Supreme Court for civil cases, or
(b) when broadcasting, televising, recording, or photographing will not unduly distract participants or impair the dignity of the proceedings and the parties have consented, and consent to being depicted or recorded is obtained from each witness whose testimony will be broadcast, televised, or photographed, or
(c) the broadcasting, televising, recording, or photographing of investiture, or ceremonial proceedings.
TRCP 19 NON ADJOURNMENT OF TERM
Every term of court shall commence and convene by operation of law at the time Fixed by statute without any act, order, or formal opening by a judge or other official thereof, and shall continue to be open at all times until and including the last day of the term unless sooner adjourned by the judge thereof.
TRCP 20 MINUTES READ and SIGNED
On the last day of the session, the minutes shall be read, corrected and signed in open court by the judge. Each special judge shall sign the minutes of such proceedings as were had by him.
TRCP 21 FILING and SERVING PLEADINGS and MOTIONS
Every pleading, plea, motion or application to the court for an order, whether in the form of a motion, plea or other form of request, unless presented during a hearing or trial, shall be Filed with the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order sought, and at the same time a true copy shall be served on all other parties, and shall be noted on the docket.
An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.
If there is more than one other party represented by different attorneys, one copy of such pleading shall be delivered or mailed to each attorney in charge.
The party or attorney of record, shall certify to the court compliance with this rule in writing over signature on the filed pleading, plea, motion or application.
After one copy is served on a party that party may obtain another copy of the same pleading upon tendering reasonable payment for copying and delivering.
Tate v. E.I. du Font de Nemours & Co., 934 S.W.2d 83, 84 (Tex. l996). "(T]he filing [of plaintiffs motion for new trial] became complete when she later paid the filing fee (after the motion was overruled by operation of law, but within the trial court's plenary jurisdiction]. At n. 1: However, we express no opinion about whether a motion for new trial extends the appellate timetable if the filing fee is not paid within the period of the trial court's plenary jurisdiction [or] about whether a motion for new trial ... properly preserves error for appeal if, as in this case, the Filing fee is not paid until after the motion is overruled by operation of law."
Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993). "[T]he date of Filing is when the document is first tendered to the clerk [even though no Filing fee was paid]. The Filing was completed ... when Jamar paid the Filing fee. Atn.3: If a litigant with notice of the deficiency fails to pay the Filing fee within a reasonable time ... the court ... should strike the document. At n.3: The Filing is not completed until the fee is paid, and absent emergency or other rare circumstances, the court should not consider it before then."
Bumato v. Mercy Hosp., __ S.W.3d __, __ (Tex. App- San Antonio 1999, n.p.h.) (No. 04-98-00638-CV; 6-23-99). TRCP 21 "requires that all parties shall be served with a motion and notice of any hearing on the motion at least 3 days prior to the hearing. Rule 21a extends that notice period by 3 days when service of notice is accomplished by fax. [B]ecause notice of the amended joint motion to compel was faxed to the [P's] attorney, he was entitled to 6 days notice. [] [Although P received less than 6 days notice,] Rule 21 authorizes the court to shorten the notice requirement Accordingly, a trial court's action in conducting a hearing on a motion before the Rule 21 notice period has expired will not be disturbed on appeal absent a showing of abuse of discretion."
TRCP 21a METHODS OF SERVICE
Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party's last known address, or by telephonic document transfer to the recipient's current telecopier number, or by such other manner as the court in its discretion may direct. Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed served on the following day. Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon by mail or by telephonic document transfer, three days shall be added to the prescribed period. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other person competent to testify. The party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument. A certificate by a party or an attorney of record, or the return of an officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any party from offering proof that the notice or instrument was not received, or, if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the court may extend the time for taking the action required of such party or grant such other relief as it deems just. The provisions hereof relating to the method of service of notice are cumulative of all other methods of service prescribed by these rules.
Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. l994). "When a letter, properly addressed and postage prepaid, is mailed, there exists a presumption that the notice was duly received by the addressee. ... This presumption may be rebutted by an offer of proof of nonreceipt. ... In the absence of any proof to the contrary, the presumption has the force of a rule of law. [11] [P] presented verified proof that the letter had been mailed and thereby raised the presumption of receipt. [If] [D] failed to bring forward any verified proof that he did not receive [Ps'] designation of experts. At 239: [D] therefore, failed to rebut the presumption that the document was received."
Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994). TRCP 2 la "extends that minimum notice by 3 days when the motion is served by mail. At 316: [ The ] hearing on a motion for summary judgment may be set as early as the 21st day after the motion is served, or the 24th day if the motion is served by mail."
Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 102 (Tex.App.-Beaumont 1993, writ denied). "[W]here it is shown, as here, that a party has fully complied with the notice requirements set forth in TRCP 21a..., yet fails to establish actual receipt of notice upon opposing party or counsel, such notice shall be sufficient constructive notice where it is shown that the intended recipient engaged in instances of selective acceptance/refusal of certified mail relating to the case."
TRCP 21b SANCTIONS FOR FAILURE TO SERVE OR DELIVER COPY OF PLEADINGS and MOTIONS
If any party fails to serve on or deliver to the other parties a copy of any pleading, plea, motion, or other application to the court for an order in accordance with Rules 21 and 21a, the court may in its discretion, after notice and hearing, impose an appropriate sanction available under Rule 215-2b.
Union City Body Co. v. Ramirez, 911 S.W.2d 196, 200 (Tex.App.-San Antonio 1995, orig. proceeding). "[I]f a party does not serve or deliver to other parties copies of pleadings, motions, or other papers as required by [TRCP] 21 and 21 a, the court can impose sanctions. At 201: [A] complaint of inadequate notice under [TRCP] 21 or 21a is waived absent a timely and specific objection."
TRCP 21c REPEALED
Section 2 Institution of Suit
TRCP 22 COMMENCED BY PETITION
A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.
Billings v. Concordia Heritage Ass'n, 960 S.W.2d 688,690 n.4 (Tex.App- El Paso 1997, pet. denied). "In Texas an action is commenced in the district or county court by Filing a petition in the office of the clerk. Judicial action without jurisdiction is void."
Diaz P. Attorney Gen., 827 S.W.2d 19,22 (Tex. App.-Corpus Christi 1992, no writ). TRCP 22 "requires that a pleading must be on file for a suit to be 'commenced.' The record shows there was no pleading on file at the time the Assistant Attorney General appeared and presented evidence. Thus, the Attorney General had not 'commenced' a suit, and was not properly before the Court at the hearing where judgment was rendered."
TRCP 23 SUITS TO BE NUMBERED CONSECUTIVELY
It shall be the duty of the clerk to designate the suits by regular consecutive numbers, called file numbers, and he shall mark on each paper in every case the file number of the cause.
TRCP 24 DUTY OF CLERK
When a petition is filed with the clerk he shall indorse thereon the file number, the day on which it was filed and the time of filing, and sign his name officially thereto.
Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143, 144 (Tex.l990). "An instrument is deemed in law filed at the time it is delivered to the clerk, regardless of whether the instrument is filemarked."
TRCP 25 CLERK'S FILE DOCKET
Each clerk shall keep a file docket which shall show in convenient form the number of the suit, the names of the attorneys, the names of the parties to the suit, and the nature thereof, and, in brief form, the officer's return on the process, and all subsequent proceedings had in the case with the dates thereof.
TRCP 26 CLERK'S COURT DOCKET
Each clerk shall also keep a court docket in a permanent record that shall include the number of the case and the names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the ruling of the court as made.
First Nat'1 Life Ins. Co. v. Herring, 318 S.W.2d 119, 123 (Tex-App.-Waco 1958, no writ). "The making of entries on the docket sheet is primarily the duty of the clerk."
TRCP 27 ORDER OF CASES
The cases shall be placed on the docket as they are filed.
Section 3 Parties to Suits
TRCP 28 SUITS IN ASSUMED NAME
Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the true name may be substituted.
Chilkewitz v. Hyson, __ S.W.3d __, __ (Tex. 1999) (No. 98-0363; 10-21-99). TRCS art. 4590i, Section 10.01 "establishes a two-year statute of limitations for medical malpractice actions, which applies 'notwithstanding any other law.' The question in this case is whether [TRCP] 28, which permits a party to sue or be sued in an assumed name, constitutes 'any other law' within the meaning of Section 10.01. [W]e conclude that Rule 28 is not a telling provision and does not extend limitations beyond the period prescribed by Section 10.01...."
Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex-1995). TRCP 28 "allows Texas courts to toll a statute of limitations when the plaintiff's efforts to name the correct party are hampered by the defendant's laying behind the log' of an assumed name. At 760: 'Rule 28 ends the practice of shell companies filing a general denial and then waiting until the statute had run before disclaiming responsibility and pointing a Finger at the corporation actually responsible.' [T]he plaintiff must join the proper party doing business under the assumed name and demonstrate that the party had knowledge of the suit."
Cox v. Thee Evergreen Ch" 836 S.W.2d 167, 171 (Tex-1992). TRCP 28 "treats unincorporated associations as legal entities. ... (TRCP] 28 generally does not affect substantive rights."
Holberg & Co. v. Citizens Nat'1 Assur. Co., 856 S.W.2d 515, 517 (Tex-App- Houston [1st Dist] 1993, order). "When an individual is doing business under an assumed name, a judgment rendered against the unincorporated association is binding on the individual. At 518: Under [TRCP] 28, the trial court had the authority to substitute [the proprietor] for the [unincorporated sole proprietorship] on a motion by the plaintiff or on its own motion...."
TRCP 29 SUIT ON CLAIM AGAINST DISSOLVED CORPORATION
When no receiver has been appointed for a corporation which has dissolved, suit may be instituted on any claim against said corporation as though the same had not been dissolved, and service of process may be obtained on the president, directors, general manager, trustee, assignee, or other person in charge of the affairs of the corporation at the time it was dissolved, and judgment may be rendered as though the corporation had not been dissolved.
TRCP 30 PARTIES TO SUITS
Assignors, endorsers and other parties not primarily liable upon any instruments named in the chapter of the Business and Commerce Code, dealing with commercial paper, may be jointly sued with their principal obligors, or may be sued alone in the cases provided for by statute.
Reed v. Buck, 370 S.W.2d 867,872 (Tex.l963). "We hold that when a party signs a note in the capacity of a maker, the payee (or one standing in the shoes of a payee) may sue such maker singly and proceed to judgment upon the note without joining in the suit another or others who may also appear upon the note as co-makers."
TRCP 31 SURETY NOT TO BE SUED ALONE
No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.
McGrath v. Bank of the West, 786 S.W.2d 754,757 (Tex. App- Houston [1st Dist.] 1990, no writ). "[T]he Bank acquired and perfected a valid and enforceable security interest in the certificate of deposit as security for Armstrong's debt.... As such, the Bank was not required, under [TRCP] 31, to join Armstrong and attempt collection prior to exercising its rights in the collateral."
Hart v. First Fed. S.&L. Ass'n, 727 S.W.2d 723,726 (Tex-App.-Austin 1987, no writ). "[T]he necessity of joining the principal debtor in the creditor's suit against the guarantor is subject to an exception for cases where the debtor is 'hopelessly insolvent.' At n. 1: [TRCP] 31 incorporates, in effect, the provisions of (CPRC] Section 17.001."
TRCP 32 MAY HAVE QUESTION OF SURETYSHIP TRIED
When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the other, the surety may cause the question of suretyship to be tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the plaintiff.
Musey v. Dickinson Social Club, 466 S.W.2d 84,86 (Tex.App- Houston [IstDist.) 1971, no writ). "The appellants argue ... they had a right ... under [TRCP] 32 to a determination of the principal-surety relationship they asserted between themselves and Rancho Alegre Corp. At 87: It is well settled that an accommodation maker is bound on the instrument without any resort to his principal. [ 11 ] Since the payee or holder may proceed to judgment against a maker without joining other co-makers, he should be able to proceed to judgment following severance of the suit against a comaker."
TRCP 33 SUITS BY OR AGAINST COUNTIES
Suits by or against a county or incorporated city, town or village shall be in its corporate name.
Scott v. Graham, 292 S.W.2d 324,327 (Tex.l956). TRCP 33 "provides that suits by or against a county shall be in its corporate name. A county is not made a party to a suit by joining the commissioners and other officials of the county as parties."
TRCP 34 AGAINST SHERIFF, ETC.
Whenever a sheriff, constable, or a deputy or either has been sued for damages for any act done in his official character, and has taken an indemnifying bond for the acts upon which the suit is based, he may make the principal and surety on such bond parties defendant in such suit, and the cause may be continued to obtain service on such parties.
Agricultural Bond & Credit Corp. v. Shepherd, 69 S.W.2d 213,215 (Tex.App--Amarillo 1934, no writ). Under what is now TRCP 34, the sheriff has "a right to bring in the principal and surety on the indemnity bond given him."
TRCP 35 ON OFFICIAL BONDS
In suits brought by the State or any county, city, independent school district, irrigation district, or other political subdivision of the State, against any officer who has held an office for more than one term, or against any depository which has been such depository for more than one term, or has given more than one official bond, the sureties on each and all such bonds may be joined as defendants in the same suit whenever it is difficult to determine when the default sued for occurred and which set of sureties on such bonds is liable therefor.
Aetna Cas. & Sur. Co. v. State, 86 S.W.2d 826,828 (Tex.App- Fort Worth 1935, writ dism'd). "It is elementary that a surety bond given by a public official does not cover defaults which occurred prior to the date when it became effective, or defaults occurring after expiration of the term covered by the bond."
TRCP 36 DIFFERENT OFFICIALS and BONDSMEN
In suits by the State upon the official bond of a State officer, any subordinate officer who has given bond, payable either to the State or such superior officer, to cover all or part of the default sued for, together with the sureties on his official bond, may be joined as defendants with such superior officer and his bondsmen whenever it is alleged in the petition that both of such officers are liable for the money sued for.
TRCP 37 ADDITIONAL PARTIES
Before a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the case.
Gornez v. Kestermeier, 924 S.W.2d 210, 212 (Tex. App.-Eastland 1996, writ denied). "Appellants urge ... that the trial court erred by rendering judgment without the joinder of... the grantors. ... Appellants raised this issue in their motion for new trial and in their [motion for JNOV]. Even though they did raise the issue at trial, appellants did not preserve the issue for review because ... they made no effort themselves to join [the grantors] as parties."
TRCP 38 THIRD PARTY PRACTICE
(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiffs claim against him. The third-party plaintiff need not obtain leave to make the service if he Files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiffs claim under the rules applicable to the defendant, and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 97. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses and his counterclaims and cross-claims. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or who may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.
(c) This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged.
(d) This rule shall not be applied so as to violate any venue statute, as venue would exist absent this rule.
Smith v. Clary Corp., 917 S.W.2d 796, 797 (Tex. 1996). "[T]he legislature enacted Gov't Code Section 24.009, the aggregating statute, to allow multiple plaintiffs to aggregate their claims to achieve the minimum jurisdictional amount for a court, not to defeat jurisdiction for multiple defendants each of whose counterclaims is within the jurisdictional limit."
Getty Oil Co. v. Insurance Co., 845 S.W.2d 794,801 (Tex. 1992). Getty's claims against INA and Youell, the primary and excess carriers of a cross-defendant in the first suit, were not barred by res judicata in a second suit. "[TRCP] 38(c) prohibited Getty from joining INA and Youell in the [ first] suit. [ If ] Rule 38(c) has been held to prohibit the joinder of insurers in situations resembling this case [in a tort suit]. [II] Since Getty could not have asserted its present claims against INA or Youell in the [first] suit, it is not now precluded by res judicata from bringing these claims."
TRCP 39 JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or other wise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: First, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(l)-(2) hereof who are not joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the provisions of Rule 42.
Smith v. Clary Corp., 917 S.W.2d 796, 799 (Tex. 1996). "The courts have not and should not apply aggregation [in Gov't Code Section 24.009] to divest a court of jurisdiction on counterclaims asserted by multiple defendants, whose joinder normally is not voluntary, and who have not chosen the forum."
Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex.l974). "Under the provisions of our present [TRCP] 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined."
Barraza v. Smith & Gopin, 918 S.W.2d 608, 611 (Tex. App.-El Paso 1996, no writ). "A party is necessary to litigation when, in his or her absence, complete relief cannot be accorded among those already parties. [ If ] A party also may be necessary to litigation when the party claims an interest in the subject of the action and the party's absence either impedes his or her ability to protect his or her interest, or leaves any of the persons already parties subject to substantial risk of incurring multiple or otherwise inconsistent obligations to the absent party."
TRCP 40 PERMISSIVE JOINDER OF PARTIES
(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.
Unders v. East Tex. Salt Water Disposal Co., 248 S.W.2d 731,734 (Tex-1952). "Where the tortious acts of 2 or more wrongdoers join to produce an indivisible injury ... all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit. If fewer than the whole number of wrongdoers are joined as defendants..., those joined may by proper cross action ... bring in those omitted."
TRCP 41 MISJOINDER and NON JOINDER OF PARTIES
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added, or suits filed separately may be consolidated, or actions which have been improperly joined may be severed and each ground of recovery improperly joined may be docketed as a separate suit between the same parties, by order of the court on motion of any party or on its own initiative at any stage of the action, before the time of submission to the jury or to the court if trial is without a jury, on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Liberty Nat'1 Fire Ins. Co. v. Akin, 927 S.W.2d 627 630 (Tex. 1996). "A severance may ... be necessary in some bad faith cases. A trial court will undoubtedly confront instances in which evidence admissible only on the bad faith claim would prejudice the insurer to such an extent that a fair trial on the contract claim would become unlikely. One example would be when the insurer has made a settlement offer on the disputed contract claim. ... In the absence of a settlement offer on the entire contract claim, or other compelling circumstances, severance [of the contract claim from the bad faith claim] is not required."
State Dept. of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818,819 (Tex.l993). TRCP 41 "does no 'permit a trial court to sever a case after it has been submitted to the trier of fact.' [ If ] A partial new trial may be ordered notwithstanding the prohibition in Rule 41 against post-submission severances. [TRCP] 320 is thus an exception to [TRCP] 41."
Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex-1990). "A claim is properly severable if (1) the controversy invokes more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues."
In re C.P., 998 S.W.2d 703, 710 (Tex.App-Waco 1999, n.p.h.). "When all the facts and circumstances of the case require separate trials in order to prevent manifest injustice, when there is no fact or circumstance that supports or tends to support a contrary conclusion, and when the legal rights of the parties will not be prejudiced thereby, then there is no room for the exercise of discretion. The rule then imposes upon the court a duty to order a separate trial."
TRCP 42 CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Derivative Suit. In a derivative suit brought pursuant to Article 5.14 of the Texas Business Corporation Act, the petition shall contain the allegations (1) that the plaintiff was a record or beneficial owner of shares, or of an interest in a voting trust for shares at the time of the transaction of which he complains, or his shares or interest thereafter devolved upon him by operation of law from a person who was the owner at that time, and (2) with particularity, the efforts of the plaintiff to have suit brought for the corporation by the board of directors, or the reasons for not making any such efforts. The derivative suit may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders similarly situated in enforcing the right of the corporation. The suit shall not be dismissed or compromised without the approval of the court, and notice in the manner directed by the court of the proposed dismissal or compromise shall be given to shareholders.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisFied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) where the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
(4) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall, after hearing, determine by order whether it is to be so maintained. This determination may be altered, amended, or withdrawn at any time before final judgment. The court may order the naming of additional parties in order to insure the adequacy of representation.
(2) After the court has determined that a class action may be maintained it shall order the party claiming the class action to direct to the members of the class the best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort. In all class actions maintained under subdivisions (b)(l), (b)(2), and (b)(3), this notice shall advise the members of the class (A) the nature of the suit, (B) the binding effect of the judgment, whether favorable or not, and (C) the right of any member to appear before the court and challenge the court's determinations as to the class and its representatives. In all class actions maintained under subdivision (b)(4) this notice shall advise each member of the class (A) the nature of the suit; (B) that the court will exclude him from the class if he so requests by a specified date; (C) that the judgment, whether favorable or not, will include and bind all members who do not request exclusion by the specified date; and (D) that any member who does not request exclusion may if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under subdivisions (b)(l), (b)(2), and (b)(3), whether or not favorable to the class, shall include, describe, and be binding upon all those whom the court finds to be members of the class and who received notice as provided in subdivision (c)(2). The judgment in an action maintained as a class action under subdivision (b)(4), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(d) Actions Conducted Partially as Class Actions. When appropriate (1) an action may be brought or maintained as a class action with respect to particular issues, or (2) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.
(e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
(f) Discovery. Unnamed members of a class action are not to be considered as parties for purposes of discovery.
(g) Effective Date. This rule shall be effective only with respect to actions commenced on or after September 1, 1977.
Story v. DeBord, 967 S.W.2d 352, 353 (Tex.l998). "An order striking a derivative claim is no kin to an order certifying or refusing to certify a class."
Deloitte & Touche, LLP v. 14th Ct. of Appeals, 951 S.W.2d 394,400 (Tex.1997). Although the Supreme Court denied mandamus review of a class action order in this case, by its opinion it said it has the power by mandamus to review an interlocutory class certification order, over which it has no appellate jurisdiction.
De Los Santas v. Occidental Chem. Corp., 933 S.W.2d 493,495 (Tex.l997). CPRC Section 51.014(3) permits an interlocutory appeal to the court of appeals from an order that changes a class from opt-out to mandatory. "Changing a class from opt-out to mandatory does not simply enlarge its membership; it alters the fundamental nature of the class."
GM. Corp. v. Bloyed, 916 S.W.2d 949, 953 (Tex. 1996). "One of the foremost objectives of [TRCP] 42 is to protect the interests of absent class members. At 955: Under [TRCP] 42(e), the trial court is charged with the responsibility of determining that the settlement is fair, adequate, and reasonable. [If] [T]he trial court must examine both the substantive and procedural aspects of the settlement: (1) whether the terms of the settlement are fair, adequate, and reasonable; and (2) whether the settlement was the product of honest negotiations or of collusion."
Eye Site, Inc. v. Blackburn, 796 S.W.2d 160,162-63 n.4 (Tex. l990). TRCP 42(a) "does not define 'similarly situated' as referring to any specific group of shareholders, e.g., all minority shareholders. ... As interpreted by state and federal courts, however, 'similarly situated' generally refers to a minority or other definable group of shareholders with interests similar to those of the plaintiff."
Spera v. Fleming, Hovenkamp & Gray son, P.C., __ S.W.3d __, __ (Tex.App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-98-01272-CV; 8-31-99). "[W]hen the trial court makes a decision of class status at an early stage of the proceeding before supporting facts are fully developed, it should err in favor of, and not against, maintenance of the class action. "
Entex P. City of Pearland, 990 S.W.2d 904, 910 (Tex.App.-Houston [14th Dist.] 1999, n.p.h.). "Factors relevant to assessing the superiority of a class action [over other available methods] include: (1) the interests of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action."
Rainbow Group, Ltd. v. Johnson, 990 S.W.2d 351, 360 (Tex.App.-Austin 1999, pet. dism'd). "The test for the courts in evaluating the predominance issue [ under TRCP 42(b)(4) ] is... whether common or individual issues will be the object of most of the efforts of the litigants and the court. [11] [l]n cases in which it appears that common issues may predominate over individual issues, the most efficient approach for the trial court is to certify the class, and, if necessary after the case has developed, to dissolve or modify the class if common questions do not predominate at trial."
Union Pac. Resources Co. v. Chilek, 966 S.W.2d 117, 120 (Tex.App-Austin 1998, pet. dism'd). "At the initial certiFication stage, the trial court is not required to try the merits of the cause of action, and the class proponents are not required to prove a prima facie case in order to be certified. The class proponents bear the burden of proving to the trial court that a class action can be maintained under [TRCP] 42. To obtain certification, a party must satisfy the four requirements of Rule 42(a) as well as one of the requirements of Rule 42(b).
TRCP 43 INTERPLEADER
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in any other rules.
Great Am. Reserve Ins. Co. v. Sanders, 525 S.W.2d 956,958 (Tex. l975). The insurance company "was entitled to maintain an interpleader suit if there existed a reasonable doubt, either of fact or law, as to which of the rival claimants was entitled to the proceeds of the policy."
Serna v. Webster, 908 S.W.2d 487,491 (Tex.App- San Antonio 1995, no writ). "A petitioner in interpleader must prove: (1) that he is subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) that he has not unreasonably delayed in filing the interpleader action; and (3) that he has unconditionally tendered the funds into the court."
TRCP 44 MAY APPEAR BY NEXT FRIEND
Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by "next friend" under the following rules:
(1) Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.
(2) Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff
in such suit.
American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 492-93 (Tex.l995). A "court should evaluate whether the minor's interests have been properly protected and whether a deficiency in notice or due process has been shown to determine whether a trial court has obtained personal jurisdiction over a minor. [TRCP] 44. In this case, the answer of [the mother] in her capacity as [the minor's] next friend was sufficient indication that [the minor's] legal representative knew about the proceedings and could therefore defend against them."
Urbish v. 127th Judicial Dist. Ct" 708 S.W.2d 429, 432 (Tex.l986). "[T]rial courts are authorized to replace next friends and attorneys when it appears to the court that either has an interest adverse to the minor."
Gracia v. RC Cola-7-Up Bettling Co., 667 S.W.2d 517,519 (Tex.l 984). "In a suit by a 'next friend,' the real party plaintiff is the child and not the next friend."
Section 4 Pleading
A General
TRCP 45 DEFINITION and SYSTEM
Pleadings in the district and county courts shall
(a) be by petition and answer;
(b) consist of a statement in plain and concise language of the plaintiffs cause of action or the defendant's grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole;
(c) contain any other matter which may be required by any law or rule authorizing or regulating any particular action or defense;
(d) be in writing, on paper measuring approximately 81/2 inches by II inches, and signed by the party or his attorney, and either the signed original together with any verification or a copy of said original and copy of any such verification shall be filed with the court. The use of recycled paper is strongly encouraged.
When a copy of the signed original is tendered for filing, the party or his attorney filing such copy is required to maintain the signed original for inspection by the court or any party incident to the suit, should a question be raised as to its authenticity.
All pleadings shall be construed so as to do substantial justice.
Perez v. Briercrott Serv. Corp., 809 S.W.2d 216, 218 (Tex.l991). "[T]he purpose of pleading is to give the adversary parties notice of each [party's] claims and defenses, as well as notice of the relief sought."
Paramount Pipe & Sup. Co. v. Muhr, 749 S.W.2d 491,494-95 (Tex.l988). "The purpose of the fair notice requirement is to provide the opposing party with sufficient information to enable him to prepare a defense. [If] [TRCP] 45 does not require that the plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action."
Pennington v. Gurkoff, 899 S.W.2d 767,771 (Tex. App.-Fort Worth 1995, writ denied). "As a general rule, trial amendments must be in writing and signed by the party or his attorney. ... However, in limited instances, an oral trial amendment is allowed if dictated into the record to the court reporter."
TRCP 46 PETITION and ANSWER; EACH ONE INSTRUMENT OF WRITING
The original petition, first supplemental petition, second supplemental petition, and every other, shall each be contained in one instrument of writing, and so with the original answer and each of the supplemental answers.
TRCP 47 CLAIMS FOR RELIEF
An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain (a) a short statement of the cause of action sufficient to give fair notice of the claim involved, (b) in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court, and (c) a demand for judgment for all the other relief to which the party deems himself entitled. Relief in the alternative or of several different types may be demanded; provided, further, that upon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed.
Boyles v. Keir, 855 S.W.2d 593, 601 (Tex.l993). "A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of a cause of action is not specifically alleged."
Roark v. Alien, 633 S.W.2d 804,810 (Tex.l982). "A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense."
Pav alore v. Commission for Lawyer Discipline, __ S.W.3d __, __ (Tex.App- Dallas 1999, n.p.h.) (No. 05-96-01627-CV; 9-10-99). "A petition is sufficient if a cause of action or defense may be reasonably inferred from what is specifically stated."
TRCP 48 ALTERNATIVE CLAIMS FOR RELIEF
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or both.
Regency Advantage L.P. v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.l996). "[0]ur rules expressly permit parties to proceed on alternative theories of relief."
Birch field v. Texarkana Mem. Hosp., 747 S.W.2d 361,367 (Tex.l 987). " [W] here the prevailing party fails to elect between alternative measures of damages, the court should utilize the Findings affording the greater recovery and render judgment accordingly."
Household Credit Serv., Inc. v. Driscol, 989 S.W.2d 72, 80 (Tex.App- El Paso 1998, no pet.). "If a plaintiff pleads alternate theories of liability under ITRCP] 48, a judgment that awards damages based upon more than one theory does not amount to a double recovery if the theories of liability arise from two separate and distinct injuries, and there has been a separate and distinct finding of damages on both theories of liability."
TRCP 49 WHERE SEVERAL COUNTS
Where there are several counts in the petition, and entire damages are given, the verdict or judgment, as the case may be, shall be good, notwithstanding one or more of such counts may be defective.
TRCP 50 PARAGRAPHS SEPARATE STATEMENTS
All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings, so long as the pleading containing such paragraph has not been superseded by an amendment as provided by Rule 65. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
TRCP 51 JOINDER OF CLAIMS and REMEDIES
(a) Joinder of Claims. The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims when there are multiple parties if the requirements of Rules 39,40, and 43 are satisfied. There may be a like joinder of cross claims or third-party claims if the requirements of Rules 38 and 97, respectively, are satisfied.
(b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. This rule shall not be applied in tort cases so as to permit the joinder of a liability or indemnity insurance company, unless such
company is by statute or contract directly liable to the person injured or damaged.
Allison v. Arkansas La. Gas Co., 624 S.W.2d 566, 568 (Tex.l981). "Under [TRCP] 51(a), a plaintiff or defendant is permitted to join in the same proceeding 'as many claims either legal or equitable or both as he may have against an opposing party."'
TRCP 52 ALLEGING A CORPORATION
An allegation that a corporation is incorporated shall be taken as true, unless denied by the affidavit of the adverse party, his agent or attorney, whether such corporation is a public or private corporation and however created.
Dr. Pepper Co. v. Crow, 621 S.W.2d 464,465 (Tex App.-Waco 1981, no writ). "Plaintiff plead defendant was a corporation. Defendant did not deny by verified pleading pursuant to [TRCP] 52 and 93 ... that it was not a corporation; thus, such fact was established."
TRCP 53 SPECIAL ACT OR LAW
A pleading founded wholly or in part on any private or special act or law of this State or of the Republic of Texas need only recite the title thereof, the date of its approval, and set out in substance so much of such act or laws as may be pertinent to the cause of action or defense.
TRCP 54 CONDITIONS PRECEDENT
In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the opposite party.
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 283 n.6 (Tex.l998). "Where a party avers generally that all conditions precedent have been performed or have occurred, he or she need only prove those that are specifically denied by the opposite party. This pleading rule, however, does not shift the burden of proof on those conditions which the opposite party denies."
Greathouse v. Charter Nat'1 Bank-SW., 851 S.W.2d 173, 177 (Tex.l992). "(C]harter met its burden of pleading [that disposition of the collateral was commercially reasonable] by its general allegation that all conditions precedent had been performed. In answer, Greathouse did not specifically deny that Charter's disposition of the collateral was commercially unreasonable. Consequently, Charter was not required to prove commercial reasonableness at trial."
TRCP 55 JUDGMENT
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it shall be sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
Don Docksteader Motors, Ltd. v. Fatal Enter.,Ltd., 794 S.W.2d 760,761 (Tex. l990). The Uniform Foreign Country Money-Judgment Recognition Act is constitutional because it "necessarily allows for the bringing of a common-law suit [to enforce the foreign judgment] and thereby allows for notice and hearing."
TRCP 56 SPECIAL DAMAGE
When items of special damage are claimed, they shall be specifically stated.
Arthur Andersen & Co. v. Perry Equip. Corp. ,945 S.W.2d 812, 816 (Tex.l997). Special damages are also known as consequential damages. "Consequential damages ... result naturally, but not necessarily, from the defendant's wrongful acts."
TRCP 57 SIGNING OF PLEADINGS
Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, with his State Bar of Texas identification number, address, telephone number, and, if available, telecopier number. A party not represented by an attorney shall sign his pleadings, state his address, telephone number, and, if available, telecopier number.
W.C. Turnbow Pet. Corp. v. Fulton, 194 S.W.2d 256,257 (Tex.l946). "Counsel should sign their names to motions and pleadings 'to make themselves responsible for what is stated in them, and so as to leave no doubt as to the parties for whom they appear.'... But... the signature to a pleading is a formal requisite and ... failure to comply with the requirement is not fatal to the pleading."
TRCP 58 ADOPTION BY REFERENCE
Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion, so long as the pleading containing such statements has not been superseded by an amendment as provided by Rule 65.
Texas Gas Utils. Co. v. Barrett, 460 S.W.2d 409,
416 (Tex.l970). Because "[t]he original petition had been superseded by petitioner's First Amended Original Petition... statements in the former were not subject to adoption by reference in the supplemental petitions."
TRCP 59 EXHIBITS and PLEADING
Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a part of the pleadings by copies thereof, or the originals, being attached or Filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to said instruments and shall be deemed a part thereof for all purposes. Such pleadings shall not be deemed defective because of the lack of any allegations which can be supplied from said exhibit. No other instrument of writing shall be made an exhibit in the pleading.
Johnson v. Smith, 697 S.W.2d 625, 632 (Tex. App- Houston [14th Dist.] 1985, no writ). "[T]he pleadings will not be considered defective if any missing allegations can be supplied from any attached exhibits."
Street v. Cunningham, 156 S.W.2d 541, 542 (Tex. App.-Fort Worth 1941, no writ). "If [a document] was intended by plaintiff as an exhibit or to be a part of the pleading, it was necessary for him to so identify it by an appropriate reference thereto."
TRCP 60 INTERVENOR'S PLEADINGS
Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.
Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,657 (Tex.l990). "An intervenor is not required to secure the court's permission to intervene; the party who opposed the intervention has the burden to challenge it by a motion to strike. {11] [l]t is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets [the requirements of the rule], (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest."
In re Estate of York, 951 S.W.2d 122, 125 (Tex. App.-Corpus Christi 1997, no writ). "[A] petition in intervention is [not] subject to the requirements of [TRCP] 63 concerning amendments and responses to pleadings. ... Accordingly, unlike an amendment or responsive pleading made by a party who is already before the trial court, a motion to intervene by a new party attempting to enter the lawsuit may generally be filed at any time before judgment is rendered."
TRCP 61 TRIAL INTERVENORS RULES APPLY TO ALL PARTIES
These rules of pleading shall apply equally, so far as it may be practicable to intervenors and to parties, when more than one, who may plead separately.
TRCP 62 AMENDMENT DEFINED
The object of an amendment, as contra-distinguished from a supplemental petition or answer, is to add something to, or withdraw something from, that which has been previously pleaded so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the party making the amendment, or to plead new matter, additional to that formerly pleaded by the amending party, which constitutes an additional claim or defense permissible to the suit.
J.M. Haber Corp. v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842, 844 (Tex.App-Houston (14th Dist] 1994, no writ). "An amended petition ... adds or withdraws from that which was previously pleaded for correction or to plead new matter. ... An amended petition also supersedes all prior petitions and operates to dismiss parties and causes of action to the extent they are omitted from the amended pleading."
TRCP 63 AMENDMENTS and RESPONSIVE PLEADINGS
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.l995). The plaintiffs "filed their second amended original petition exactly one week before a scheduled summary judgment hearing." Under TRCP 4 "the day on which the [Ps] filed their amendment [petition] is not counted but the seventh day after it was filed is counted. ... [T] he last day counted from the date of the filing may be the date of the hearing. ... Therefore, the [Ps] timely filed their second amended original petition."
Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.l992). '"Under [TRCP] 63 and 66 a trial court 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, and thus is prejudicial on its face....' [W]e conclude that the trial court's refusal to allow Chapin to verify its denial [less than 7 days before trial] was an abuse of discretion."
Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938,940 (Tex.l990). "(A] party's right to amend under [TRCP] 63 is subject only to the opposing party's right to show surprise."
Goswami v. Metropolitan S.&L. Ass'n, 751 S.W.2d 487, 490 (Tex.l988). "[l]n the absence of a sufficient showing of surprise by the opposing party, the failure to obtain leave of court when filing a late pleading may be cured by the trial court's action in considering the amended pleading. [If] A summary judgment proceeding is a trial within the meaning of [TRCP] 63."
TRCP 64 AMENDED INSTRUMENT
The party amending shall point out the instrument amended, as "original petition," or "plaintiffs first supplemental petition," or as "original answer," or "defendant's first supplemental answer" or other instrument filed by the party and shall amend by filing a substitute therefor, entire and complete in itself, indorsed "amended original petition," or "amended first supplemental petition," or "amended original answer," or "amended first supplemental answer," accordingly as said instruments of pleading are designated.
TRCP 65 SUBSTITUTED INSTRUMENT TAKES PLACE OF ORIGINAL
Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.
Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex. 1980). "Finley contends that Drake's original petition in intervention contained a judicial admission .... Drake, however ...amended [its] petition.... The original petition of Drake was thus superceded by the amended petitions and no longer constituted a pleading in the case. Having been superceded, it was no longer a judicial admission, but must be introduced into evidence as any other admission before it may be considered as evidence."
TRCP 66 TRIAL AMENDMENT
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.
State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). "A court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its
face. ... The burden of showing surprise or prejudice rests on the party resisting the amendment."
Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.l992). "IT] he trial court's refusal to allow Chapin to verily its denial [less than 7 days before trial] was an abuse of discretion."
Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 941 (Tex.l990). "We hold that in the absence of a showing of surprise or prejudice by an opposing party, a trial court must grant leave to a party to amend his or her pleadings to conform the amount of damages requested to that awarded by the jury."
Weynand v. Weynand, 990 S.W.2d 843, 847 (Tex. App.-Dallas 1999, pet. denied). "An amendment that is prejudicial on its face has three defining characteristics. First, the pleading must assert new substantive matter that reshapes the nature of the trial itself. [If] Second, the new matter asserted must be such that it could not have been anticipated by the opposing party in light of the development of the case. [11] Finally, allowance of the amendment must not detrimentally affect the opposing party's case."
Smith Detective Agency & Nightwatch Sen., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743,748 (TexApp.-Dallas 1996, writ denied). "Under [TRCP] 66, three conditions must First occur before a trial court has any discretion to deny a requested trial amendment. First, the party seeking the amendment must ask the trial court's permission to file the proposed amendment and tender it for filing. [T]he proposed amendment [must] be reduced to writing. Second, the party opposing the amendment must timely object to the amendment's filing. ... Third, the party opposing the amendment must ... show by evidence adduced that it would be prejudiced by the filing of the amendment."
TRCP 67 AMENDMENTS TO CONFORM TO ISSUES TRIED WITHOUT OBJECTION
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made by leave of court upon motion of any party at any time up to the submission of the case to the Court or jury, but failure so to amend shall not affect the result of the trial of these issues; provided that written pleadings, before the time of submission, shall be necessary to the submission of questions, as is provided in Rules 277 and 279.
Bedgood v. Madalin, 600 S.W.2d 773,775-76 (Tex. 1980). TRCP 67 "requires that written pleadings, before the time of submission, shall be necessary to the submission of special issues even where issues are tried by implied consent. Since there were no proper pleadings, the trial court erred in overruling petitioners' objections to the introduction of evidence and the submission of special issues regarding damages sustained by respondents as a result of the death of their minor child."
Dickerson v. DeBarbieris, 964 S.W.2d 680, 689 (Tex.App- Houston [14th Dist.] 1998, no pet.. "As to the lack of a pleading for such damages, ... the trial court found that before it announced its decision in favor of the (P], [D] did not object at trial or in post-trial materials to the evidence introduced on civil damages. It concluded that the issue of civil damages was tried by consent."
RE/MAX, Inc. v. Katar Corp., 961 S.W.2d 324,328 (Tex.App- Houston [1st Dist.] 1997, no writ). TRCP 67 "provides for trial by consent. Evidence relevant to other pled causes of action does not amount to trial by consent of a newly requested cause of action even when raised by a trial amendment. Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unplead issue."
TRCP 68 COURT MAY ORDER REPLEADER
The court, when deemed necessary in any case, may order a repleader on the part of one or both of the parties, in order to make their pleadings substantially conform to the rules.
Miller v. Kossey, 802 S.W.2d 873, 877 (Tex.App-Amarillo 1991, writ denied). "[W]hen Miller failed to comply with the court's ... order to send a new notice establishing a necessary element of her cause of action, the court was authorized to dismiss her DTPA action. Consequently, the court did not err in dismissing the action."
TRCP 69 SUPPLEMENTAL PETITION OR ANSWER
Each supplemental petition or answer, made by either party, shall be a response to the last preceding pleading by the other party, and shall not repeat allegations formerly pleaded further than is necessary as an introduction to that which is stated in the pleading then being drawn up. These instruments, to wit, the original petition and its several supplements, and the original answer and its several supplements, shall respectively, constitute separate and distinct parts of the pleadings of each party, and the position and identity, by number and name, with the indorsement of each instrument, shall be preserved throughout the pleadings of either party.
J.M. Huber Corp. v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842, 844 (Tex.App- Houston [14th Dist.] 1994, no writ). "A supplemental petition is a response to the last preceding pleading by the other party and does not repeat allegations previously pleaded unless such repetition is necessary."
TRCP 70 PLEADING SURPRISE COST
When either a supplemental or amended pleading is of such character and is presented at such time as to take the opposite party by surprise, the court may charge the continuance of the cause, if granted, to the party causing the surprise if the other party satisfactorily shows that he is not ready for trial because of the allowance of the filing of such supplemental or amended pleading, and the court may, in such event, in its discretion require the party filing such pleading to pay to the surprised party the amount of reasonable costs and expenses incurred by the other party as a result of the continuance, including attorney fees, or make such other order with respect thereto as may be just.
TRCP 71 MISNOMER OF PLEADING
When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated. Pleadings shall be docketed as originally designated and shall remain identified as designated, unless the court orders redesignation. Upon court order filed with the clerk, the clerk shall modify the docket and all other clerk records to reflect redesignation.
State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980). "We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it."
Wilson v. Kutler, 971 S.W.2d 557,559 (Tex.App- Dallas 1998, no pet.). "It is true that the court must look to the content of a filing rather than its title to determine its nature .... Nothing in the body of appellants' request for a hearing suggests that it was intended to function as a motion for new trial."
Bell v. State Dept. of Highways & Pub. Transp., 945 S.W.2d 292, 294 (Tex.App-Houston [1st Dist.] 1997, writ denied). "We hold that the trial court was correct in determining that [P's] suit was, 'in effect,' a trespass to try title action, although styled a declaratory judgment action. It is the substance, not the form, of pleadings that controls the determination of a lawsuit."
TRCP 72 73 REPEALED
TRCP 74 FILING WITH THE COURT DEFINED
The Filing of pleadings, other papers and exhibits as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the Filing date and time and forthwith transmit them to the office of the clerk.
Miller Brewing Co. v. Villarreal, 829 S.W.2d 770, 771 (Tex-1992). "Under our current rules, a party who finds the courthouse closed on the last day that a document must be filed ... may also locate the clerk or judge of the court and file the document with them."
Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex.l979). "The rule is traditionally stated to be that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing."
TRCP 75 FILED PLEADINGS WITHDRAWAL
All filed pleadings shall remain at all times in the clerk's office or in the court or in custody of the clerk, except that the court may by order entered on the minutes allow a filed pleading to be withdrawn for a limited time whenever necessary, on leaving a certified copy on file. The party withdrawing such pleading shall pay the costs of such order and certified copy.
Trinity Indus., Inc. v. Rivera, 745 S.W.2d 525,526 (Tex.App.-Corpus Christi 1988, no writ). A party cannot terminate a suit by withdrawing its pleadings. "Under our rules of civil procedure, a Final order terminating a lawsuit may be accomplished by a judgment on the merits, a dismissal or a non-suit."
TRCP 75a FILING EXHIBITS COURT REPORTER TO FILE WITH CLERK
The court reporter or stenographer shall file with the clerk of the court all exhibits which were admitted in evidence or tendered on bill of exception during the course of any hearing, proceeding, or trial.
TRCP 75b FILED EXHIBITS WITHDRAWAL
All filed exhibits admitted in evidence or tendered on bill of exception shall, until returned or otherwise disposed of as authorized by Rule 14b, remain at all times in the clerk's office or in the court or in the custody of the clerk except as follows:
(a) The court may by order entered on the minutes allow a filed exhibit to be withdrawn by any party only upon such party's leaving on file a certified, photo, or other reproduced copy of such exhibit. The party withdrawing such exhibit shall pay the costs of such order and copy.
(b) The court reporter or stenographer of the court conducting the hearing, proceedings, or trial in which exhibits are admitted or offered in evidence, shall have the right to withdraw filed exhibits, upon giving the clerk proper receipt therefor, whenever necessary for the court reporter or stenographer to transmit such original exhibits to an appellate court under the provisions of Rule 379 or to otherwise discharge the duties
imposed by law upon said court reporter or stenographer.
Perez v. Bagous, 833 S.W.2d 671, 674 (Tex.App- Corpus Christi 1992, no writ). "Once a party has admitted an exhibit into evidence at trial, the exhibit may not be retrieved and used to create another during a jury recess without notifying opposing counsel or the court. It is wholly outside the scope of the rule to then enter this newly created exhibit into evidence without informing opposing counsel of the use of the entered exhibit."
TRCP 76 MAY INSPECT PAPERS
Each attorney at law practicing in any court shall be allowed at all reasonable times to inspect the papers and records relating to any suit or other matter in which he may be interested.
U.S. v. Marks, 949 S.W.2d 320, 325 (Tex.l997). Plaintiff "argues that sealing the transcript [of the ex parte hearing between the judge and federal prosecutor] violated [TRCP] 76. ... This general rule is not absolute. Although not stated in the rule, there are exceptions, such as documents submitted in camera under a claim of privilege, documents subject to a protective order, or materials sealed under [TRCP] 76a. Rule 76 does not give [P] an absolute right to the transcript of the in camera hearing. At 327: However, the district court's order was overly broad in sealing the entire record rather than those portions that pertained to the grand jury proceeding."
Davenport v. Garcia, 834 S.W.2d 4,23 (Tex.l992). "[A]ccess to [court records] is separately guaranteed to ' [e]ach attorney at law practicing in any court ... at all reasonable times to inspect.' ... A court may not escape the strict obligations of [TRCP 76 and 76a] by tacitly closing the record through an unwritten order."
TRCP 76a SEALING COURT RECORDS
1. Standard for Sealing Court Records. Court records may not be removed from court files except as permitted by statute or rule. No court order or opinion issued in the adjudication of a case may be sealed. Other court records, as defined in this rule, are presumed to be open to the general public and may be sealed only upon a showing of all of the following:
(a) a specific, serious and substantial interest which clearly outweighs:
(1) this presumption of openness;
(2) any probable adverse effect that sealing will have upon the general public health or safety;
(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.
2. Court Records. For purposes of this rule, court records means:
(a) all documents of any nature filed in connection with any matter before any civil court, except:
(1) documents Filed with a court in camera, solely for the purpose of obtaining a ruling on the discoverability of such documents;
(2) documents in court files to which access is otherwise restricted by law;
(3) documents filed in an action originally a rising under the Family Code.
(b) settlement agreements not filed of record, excluding all reference to any monetary consideration, that seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.
(c) discovery, not filed of record, concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government, except discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights.
3. Notice. Court records may be sealed only upon a party's written motion, which shall be open to public inspection. The movant shall post a public notice at the place where notices for meetings of county governmental bodies are required to be posted, staling: that a hearing will be held in open court on a motion to seal court records in the specific case; that any person may intervene and be heard concerning the sealing of court records; the specific time and place of the hearing; the style and number of the case; a brief but specific description of both the nature of the case and the records which are sought to be sealed; and the identity of the movant. Immediately after posting such notice, the movant shall file a verified copy of the posted notice with the clerk of the court in which the case is pending and with the Clerk of the Supreme Court of Texas.
4. Hearing. A hearing, open to the public, on a motion to seal court records shall be held in open court as soon as practicable, but not less than fourteen days after the motion is filed and notice is posted. Any party may participate in the hearing. Non-parties may intervene as a matter of right for the limited purpose of participating in the proceedings, upon payment of the fee required for Filing a plea in intervention. The court may inspect records in camera when necessary. The court may determine a motion relating to sealing or unsealing court records in accordance with the procedures prescribed by Rule 120a.
5. Temporary Sealing Order. A temporary sealing order may issue upon motion and notice to any parties who have answered in the case pursuant to Rules 21 and 21a upon a showing of compelling need from specific facts shown by affidavit or by verified petition that immediate and irreparable injury will result to a specific interest of the applicant before notice can be posted and a hearing held as otherwise provided herein. The temporary order shall set the time for the hearing required by paragraph 4 and shall direct that the movant immediately give the public notice required by paragraph 3. The court may modify or withdraw any temporary order upon motion by any party or intervenor, notice to the parties, and hearing conducted as soon as practicable. Issuance of a temporary order shall not reduce in anyway the burden of proof of a party requesting sealing at the hearing required by paragraph 4.
6. Order on Motion to Seal Court Records. A motion relating to sealing or unsealing court records shall be decided by written order, open to the public, which shall state: the style and number of the case; the specific reasons for Finding and concluding whether the showing required by paragraph I has been made; the specific portions of court records which are to be sealed; and the time period for which the sealed portions of the court records are to be sealed. The order shall not be included in any judgment or other order but shall be a separate document in the case; however, the failure to comply with this requirement shall not affect its appeal ability.
7. Continuing Jurisdiction. Any person may intervene as a matter of right at any time before or after judgment to seal or unseal court records. A court that issues a sealing order retains continuing jurisdiction to enforce, alter, or vacate that order. An order sealing or unsealing court records shall not be reconsidered on motion of any party or intervenor who had actual notice of the hearing preceding issuance of the order, without First showing changed circumstances materially affecting the order. Such circumstances need not be related to the case in which the order was issued. However, the burden of making the showing required by paragraph I shall always be on the party seeking to seal records.
8. Appeal. Any order (or portion of an order or judgment) relating to sealing or unsealing court records shall be deemed to be severed from the case and a Final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order. The appellate court may abate the appeal and order the trial court to direct that further public notice be given, or to hold further hearings, or to make additional Findings.
9. Application. Access to documents in court Files not defined as court records by this rule remains governed by existing law. This rule does not apply to any court records sealed in an action in which a Final judgment has been entered before its effective date. This rule applies to cases already pending on its effective date only with regard to:
(a) all court records filed or exchanged after the effective date;
(b) any motion to alter or vacate an order restricting access to court records, issued before the effective date.
In re Continental Gen. Tire, Inc., 979 S.W.2d 609, 614 (Tex.l998). "We disagree with [petitioner's] premise that all discoverable trade secrets will likely constitute 'court records' under [TRCP] 76a. Moreover, even if a trade secret produced under a protective order
is later determined to be a court record, this does not necessarily mean that the information must be made public. Rule 76a allows the information to remain sealed upon a showing that it meets the criteria specified in Rule 76a(l). That a document contains trade secret information is a factor to be considered in applying this sealing standard."
General Tire, Inc. v. Kepple, 970 S.W.2d 520,525 (Tex.l998). "[W]e hold that when a party seeks a protective order under [TRCP] 166b(5)(c) [now 192.6] to restrict the dissemination of unfiled discovery, and no party or intervenor contends that the discovery is a 'court record,' a trial court need not conduct a hearing or render any Findings on that issue. If a party or intervenor opposing a protective order claims that the discovery is a 'court record,' the court must make a threshold determination on that issue. However, public notice and a [TRCP] 76a hearing are mandated only if the court finds that the documents are court records."
U.S. v. Marks, 949 S.W.2d 320,322 (Tex.l997). "The issue is whether a judge may ever allow a government prosecutor's disclosure of legally confidential, grand jury-related information offered in support of the government's position in a judicial proceeding to be made in camera and ex parte and order the record sealed. At 324-25: To the extent the sealed record contained information protected by [FRCrP] 6(e), it is not a 'court record' under ITRCP] 76a(2)(a)(2), and thus sealing of those portions of the record does not violate [TRCP] 76a. ... The record [also] contains statements that are clearly not protected by [FRCrP] 6(e). The district court should have determined what statements were confidential before it sealed the record ... instead of simply sealing the entire transcription."
State Bar v. Jefferson, 942 S.W.2d 575, 576 (Tex.l997). "[T]he Bar requests that all papers filed in the district court case be unsealed. The district court ordered the papers temporarily sealed under [TRCP] 76a(5).... The order provides for further proceedings as required by Rule 76a. The Bar may yet obtain from the district court the relief it seeks, and if it does not, it may appeal under Rule 76a(8). Mandamus is therefore unavailable."
R.K. r. Ramirez, 887 S.W.2d 836, 844 (Tex.l994). "Trial courts must use great care when permitting discovery of... sensitive information, and should redact or delete those portions of medical and mental health records that concern matters beyond the scope of the exception. Consistent with the standards set out in [TRCP] 76a and 166b(5) [now 192.6], trial courts should use their authority to prevent the unwarranted invasion of personal, constitutional, or property rights."
Dallas Morning News v. 5th Ct. of Appeals, 842 S.W.2d 655, 657 (Tex.l992). "The press and the public have a right to be present at all proceedings in the trial of the underlying case, and to report all that they observe."
Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.l992). "[T]he trial court abused its discretion by refusing to conduct a hearing and render decision on the motion in compliance with [TRCP] 76a."
TRCP 77 LOST RECORDS & PAPERS
When any papers or records are lost or destroyed during the pendency of a suit, the parties may, with the approval of the judge, agree in writing on a brief statement of the matters contained therein; or either party may supply such lost records or papers as follows:
a. After three days' notice to the adverse party or his attorney, make written sworn motion before the court staling the loss or destruction of such record or papers, accompanied by certified copies of the originals if obtainable, or by substantial copies thereof.
b. If, upon hearing, the court be satisfied that they are substantial copies of the original, an order shall be made substituting such copies or brief statement for the originals.
c. Such substituted copies or brief statement shall be filed with the clerk, constitute a part of the cause, and have the force and effect of the originals.
Coke v. Coke, 802 S.W.2d 270,275 (Tex.App.-Dallas 1990, writ denied). The court overruled a party's objection to the trial court's reconstruction of the lost File from the other party's documents. The party "testified that as far as he could tell, the copies were true
duplicates of the originals."
B Pleadings of Plaintiff
TRCP 78 PETITION ORIGINAL and SUPPLEMENTAL INDORSEMENT
The pleading of plaintiff shall consist of an original petition, and such supplemental petitions as may be necessary in the course of pleading by the parties to the suit. The original petition and the supplemental petitions shall be indorsed, so as to show their respective positions in the process of pleading, as "original petition," "plaintiffs first supplemental petition," "plaintiffs second supplemental petition," and so on, to be
successively numbered, named, and indorsed.
TRCP 79 THE PETITION
The petition shall state the names of the parties and their residences, if known, together with the contents prescribed in Rule 47 above.
Enserch Corp. v. Parker, 794 S.W.2d 2,4-5 (Tex. 1990). "If the plaintiff merely misnames the correct defendant (misnomer), limitations is tolled and a subsequent amendment ... relates back to the date of the original petition. If, however, the plaintiff is mistaken as to which of two defendants is the correct one and there is ... a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled."
TRCP 80 PLAINTIFFS SUPPLEMENTAL PETITION
The plaintiffs supplemental petitions may contain special exceptions, general denials, and the allegations of new matter not before alleged by him, in reply to those which have been alleged by the defendant.
Moody-Rambin Interests v. Moore, 722 S.W.2d 790, 792 (Tex.App- Houston [14th Dist.] 1987, no writ). The proper way to bring new parties into a suit is by an amended pleading, not a supplemental pleading. "An exception to this rule exists if the necessity for adding a new party arises from facts pled in the defendant's answer."
TRCP 81 DEFENSIVE MATTERS
When the defendant sets up a counter claim, the plaintiff may plead thereto under rules prescribed for pleadings of defensive matter by the defendant, so far as applicable. Whenever the defendant is required to plead any matter of defense under oath, the plaintiff shall be required to plead such matters under oath when relied on by him.
Greater Ft. Worth v. Mims, 627 S.W.2d 149, 152 (Tex.l982). "If the plaintiff contesting the counterclaim does not intend to urge any defensive theory which must be verified or any affirmative defense under [TRCP] 94, he is not required to answer the defendant's counterclaim."
TRCP 82 SPECIAL. DEFENSES
The plaintiff need not deny any special matter of defense pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted.
Sanchez v. Matthews, 636 S.W.2d 455, 460 (Tex. App.-San Antonio 1982, writ reFd n.r.e.). Under TRCP 82 the plaintiff was not required to plead a special denial to the affirmative defense of release.
C Pleadings of Defendant
TRCP 83 ANSWER ORIGINAL and SUPPLEMENTAL INDORSEMENT
The answer of defendant shall consist of an original answer, and such supplemental answers as may be necessary, in the course of pleading by the parties to the suit. The original answer and the supplemental answers shall be indorsed, so as to show their respective positions in the process of pleading, as "original answer," "defendant's first supplemental answer," "defendant's second supplemental answer," and so on, to be successively numbered, named and indorsed.
Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992). " [A] defendant, who timely Files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case."
TRCP 84 ANSWER MAY INCLUDE SEVERAL MATTERS
The defendant in his answer may plead as many several matters, whether of law or fact, as he may think necessary for his defense, and which may be pertinent to the cause, and such matters shall be heard in such order as may be directed by the court, special appearance and motion to transfer venue, and the practice there under being excepted herefrom.
Glover v. Moser, 930 S.W.2d 940, 944 (Tex.App- Beaumont 1996, writ denied). "We believe the clear intent of [TRCP] 84 was to prevent exactly what occurred in (this] case, i.e., the trial court proceeding on meritorious matters prior to its determination of whether venue is properly before it."
TRCP 85 ORIGINAL ANSWER CONTENTS
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory pleas; of special exceptions, of general denial, and any defense byway of avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to be formed on them.
Mines v. Hash, 843 S.W.2d 464,469 (Tex.l992). "To be timely, the [D's] request for an abatement [under the DTPA] must be made while the purpose of notice-settlement and avoidance of litigation expense-remains viable. Thus, defendant must request an abatement with the Filing of an answer or very soon thereafter. If the trial court determines that plaintiff has failed to give notice as required by the [DTPA] statute, the action must be abated."
TRCP 86 MOTION TO TRANSFER VENUE
1. Time to File. An objection to improper venue is waived if not made by written motion Filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be Filed with the clerk of the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions of Rule 257.
2. How to File. The motion objecting to improper venue may be contained in a separate instrument Filed concurrently with or prior to the filing of the movant's first responsive pleading or the motion may be combined with other objections and defenses and included in the movant's first responsive pleading.
3. Requisites of Motion. The motion, and any amendments to it, shall state that the action should be transferred to another specified county of proper venue because:
(a) The county where the action is pending is not a proper county, or
(b) Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated. The motion shall state the legal and factual basis for the transfer of the action and request transfer of the action to a specific county of mandatory or proper venue. Verification of the motion is not required. The motion may be accompanied by supporting affidavits as provided in Rule 87.
4. Response and Reply. Except as provided in paragraph 3 (a) of Rule 87, a response to the motion to transfer is not required. Verification of a response is not required.
5. Service. A copy of any instrument filed pursuant to Rule 86 shall be served in accordance with Rule 21a.
GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex.l998). "[U]nder the current venue statutes, the plaintiff has the 'First choice' of venue. However, the statutes do not say that the plaintiff may choose venue only once...."
Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996). "A defendant raises the question of proper venue by objecting to a plaintiffs venue choice through a motion to transfer venue. ... The fact that mandatory venue lies in another county provides one ground for a motion to transfer venue. ... If the plaintiffs chosen venue rests on a permissive venue statute and the defendant Files a meritorious motion to transfer based on a mandatory venue provision, the trial court must grant the motion. ... A trial court's erroneous denial of a motion to transfer venue requires reversal of the judgment and remand for a new trial. See [CPRC] Section 15.064(b)."
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). "When the suit is dismissed for want of prosecution while the motion to transfer venue is pending, it is not effective to fix venue in the county named in the motion to transfer venue."
Wallpapers To Go, Inc. v. Brennan, __ S.W.Sd __, __ (Tex.App- Houston [ 14th Dist.] 1999, n.p.h.) (No. 14-98-00482-CV; 9-30-99). "Since [TRCP] 86 does not govern a contractual forum selection clause, but, instead, pertains to legislatively mandated venue provisions, the due order of pleadings set out in rule 86 does not apply to contractual forum selection clauses."
TRCP 87 DETERMINATION OF MOTION TO TRANSFER
1. Consideration of Motion. The determination of a motion to transfer venue shall be made promptly by the court and such determination must be made in a reasonable time prior to commencement of the trial on the merits. The movant has the duty to request a setting on the motion to transfer. Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer. Except on leave of court, any response or opposing affidavits shall be Filed at least 30 days prior to the hearing of the motion to transfer. The movant is not required to File a reply to the response but any reply and any additional affidavits supporting the motion to transfer must, except on leave of court, be Filed not later than 7 days prior to the hearing date.
2. Burden of Establishing Venue.
(a) In General. A party who seeks to maintain venue of the action in a particular county in reliance upon Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory Venue), Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062 (Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the county of suit. A party who seeks to transfer venue of the action to another specified county under Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory Venue), Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062 (Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the county to which transfer is sought. A party who seeks to transfer venue of the action to another specified county under Sections 15.011-15.017, Civil Practice and Remedies Code on the basis that a mandatory venue provision is applicable and controlling has the burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the county to which transfer is sought by virtue of one or more mandatory venue exceptions.
(b) Cause of Action. It shall not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause of action, when pleaded properly, shall be taken as established as alleged by the pleadings. When the defendant specifically denies the venue allegations, the claimant is required, by prima facie proof as provided in paragraph 3 of this rule, to support such pleading that the cause of action taken as established by the pleadings, or a part of such cause of action, accrued in the county of suit. If a defendant seeks transfer to a county where the cause of action or a part thereof accrued, it shall be sufficient for the defendant to plead that if a cause of action exists, then the cause of action or part thereof accrued in the specific county to which transfer is sought, and such allegation shall not constitute an admission that a cause of action in fact exists. But the defendant shall be required to support his pleading by prima facie proof as provided in paragraph 3 of this rule, that, if a cause of action exists, it or a part thereof accrued in the county to which transfer is sought.
(c) Other Rules. A motion to transfer venue based on the written consent of the parties shall be determined in accordance with Rule 255. A motion to transfer venue on the basis that an impartial trial cannot be had in the courts where the action is pending shall be determined in accordance with Rules 258 and 259.
3. Proof.
(a) affidavits and Attachments. All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party. When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact; provided, however, that no party shall ever be required for venue purposes to support by prima facie proof the existence of a cause of action or part thereof, and at the hearing the pleadings of the parties shall be taken as conclusive on the issues of existence of a cause of action. Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading. Affidavits shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.
(b) The Hearing. The court shall determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties and such affidavits and attachments as may be filed by the parties in accordance with the preceding subdivision of this paragraph 3 or of Rule 88.
(c) If a claimant has adequately pleaded and made prima facie proof that venue is proper in the county of suit as provided in subdivision (a) of paragraph 3, then the cause shall not be transferred but shall be retained in the county of suit, unless the motion to transfer is based on the grounds that an impartial trial cannot be had in the county where the action is pending as provided in Rules 257-259 or on an established ground of mandatory venue. A ground of mandatory venue is established when the party relying upon a mandatory exception to the general rule makes prima facie proof as provided in subdivision (a) of paragraph 3 of this rule.
(d) In the event that the parties shall fail to make prima facie proof that the county of suit or the specific county to which transfer is sought is a county of proper venue, then the court may direct the parties to make further proof.
4. No Jury. All venue challenges shall be determined by the court without the aid of a jury.
5. Motion for Rehearing. If venue has been sustained as against a motion to transfer, or if an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered regardless of whether the movant was a party to the prior proceedings or was added as a party subsequent to the venue proceedings, unless the motion to transfer is based on the grounds that an impartial trial cannot be had under Rules 257-259 or on the ground of mandatory venue, provided that such claim was not available to the other movant or movants. Parties who are added subsequently to an action and are precluded by this rule from having a motion to transfer considered may raise the propriety of venue on appeal, provided that the party has timely Filed a motion to transfer.
6. There shall be no interlocutory appeals from such determination.
HCA Health Servs., Inc. v. Salinas, 838 S.W.2d 246,247-48 (Tex.l992). "[l]t is an abuse of discretion, correctable by mandamus, for a trial court to rule on a motion to transfer venue without giving the parties the notice required by [TRCP 87(1)]."
Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 71 (Tex.App- Houston list Dist.] 1998, no pet). "[S]tatements such as 'Defendant specifically denies those venue facts pleaded in Plaintiffs Petition' do not constitute a 'specific denial' as required by [TRCP] 87. Thus, [D] did not specifically deny [P's] allegations that he was a resident of Bexar County or that his injury occurred in Bexar County."
Bleekerv. Villarreal, 941 S.W.2d 163, 168 (Tex. App.-Corpus Christi 1997, writ dism'd). "The plaintiffs' response to the motion to transfer venue did not comply with [TRCP] 87: neither an affidavit setting forth venue facts nor any duly proved attachments accompanied the response."
TRCP 88 DISCOVERY and VENUE
Discovery shall not be abated or otherwise affected by pendency of a motion to transfer venue. Issuing process for witnesses and taking depositions shall not constitute a waiver of a motion to transfer venue, but depositions taken in such case may be read in evidence in any subsequent suit between the same parties concerning the same subject matter in like manner as if taken in such subsequent suit. Deposition transcripts, responses to requests for admission, answers to interrogatories and other discovery products containing information relevant to a determination of proper venue may be considered by the court in making the venue determination when they are attached to, or incorporated by reference in, an affidavit of a party, a witness or an attorney who has knowledge of such discovery.
Montalvo v. 4th Ct. of Appeals, 917 S.W.2d 1, 2 (Tex.l995). "[T]he trial court set a shortened schedule for completing discovery related to venue, filing the plaintiffs' response to the motions to transfer, and the hearing. [The plaintiffs] offered no argument or evidence that the limitation on discovery or the abbreviated schedule deprived them of any ability to develop evidence pertinent to the venue issue. Without a showing of such harm, the record is wholly insufficient to establish that the plaintiffs lacked an adequate remedy by appeal."
Safety-Keen Corp. v. Garcia, 945 S.W.2d 268,270 (Tex.App.-San Antonio 1997, orig. proceeding) "Despite Judge Garcia's misgivings, he is the elected official assigned to hear this cause, and neither the case law previously cited nor the Texas Code of Judicial Conduct give Judge Garcia the discretion to refuse to hear or rule on (P) motion [to compel discovery] within a reasonable period of time. [P's] right to discovery cannot be abated or otherwise affected by the pendency of a motion to transfer venue."
TRCP 89 TRANSFERRED IF MOTION IS SUSTAINED
If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is Filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed. Provided, however, if the cause be severable as to parties defendant and shall be ordered transferred as to one or more defendants but not as to all, the clerk, instead of sending the original papers, shall make certified copies of such Filed papers as directed by the court and forward the same to the clerk of the court to which the venue has been changed. After the cause has been transferred, as above provided for the clerk of the court to which the cause has been transferred shall mail notification to the plaintiff or his attorney that transfer of the cause has been completed, that the Filing fee in the proper court is due and payable within thirty days from the mailing of such notification, and that the case may be dismissed if the filing fee is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the expiration of thirty days after the mailing of notification to the parties or their attorneys by the clerk that the papers have been filed in the court to which the cause has been transferred; and if the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned, upon its own motion or the motion of a party, may dismiss the cause without prejudice to the refiling of same.
WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 71 (Tex.App.-Dallas 1995, no writ). "Where a cause of action is against several defendants jointly and severally, the trial court shall transfer the action as to those defendants whose motions are sustained. Comakers on a note are jointly and severally liable. Accordingly, because venue was proper in Dallas County, the trial court did not abuse its discretion in severing appellee's cause of action and transferring it to Dallas County."
TRCP 90 WAIVER OF DEFECTS IN PLEADING
General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered.
Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). "Special exceptions maybe used to challenge the sufficiency of a pleading. When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading. If a party refuses to amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted. Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment."
Shoemake v. Fogel, Ltd.,m S.W.2d 933,937 (Tex. 1992). The defendant "filed no special exceptions to clarify [the plaintiffs claim]. Thus, [D] cannot now complain that [P's] pleading was insufficiently specific."
Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 476 (Tex.l988). "If [P] considered the pleading obscure or non-specific, [P] had the right to file special exceptions to clarify [D's] counterclaims. ... By failing to file special exceptions, [P] waived any defect in
[D's] pleadings, and the pleadings must be construed in favor of the pleader."
TRCP 91 SPECIAL EXCEPTIONS
A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.
Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). "If [after special exceptions are sustained] a party refuses to amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted. Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. At 659: Before a court may grant a 'no cause of action' summary judgment ... it must give the parties an adequate opportunity to plead a viable cause of action."
Peek v. Equip. Serv. Co., 779 S.W.2d 802,805 (Tex. 1989). "[T]he omission of any allegation regarding the amount in controversy from plaintiffs petition did not deprive the court of jurisdiction, but was instead a defect in pleading subject to special exception and amendment."
Roark v. Alien, 633 S.W.2d 804, 809 (Tex.l982). "When there are no special exceptions, a petition will be construed liberally in favor of the pleader."
Humphreys v. Meadows, 938 S.W.2d 750,753 (Tex. App.-Fort Worth 1996, writ denied). "No provision in the [TRCPs ] permits a trial court to dismiss a plaintiffs case because of insufficient pleadings. [If ] A trial court may not dismiss a plaintiffs case for pleading defects unless an opportunity is first afforded to amend and cure the defect."
Villarreal v. Martinez, 834 S.W.2d 450,451 (Tex. App.-Corpus Christi 1992, no writ). "The purpose of special exceptions is to furnish the adverse party a medium by which to force clarification of pleadings when they are not clear or sufficiently specific."
TRCP 92 GENERAL DENIAL
A general denial of matters pleaded by the adverse party which are not required to be denied under oath, shall be sufficient to put the same in issue. When the defendant has pleaded a general denial, and the plaintiff shall afterward amend his pleading, such original denial shall be presumed to extend to all matters subsequently set up by the plaintiff.
When a counterclaim or cross-claim is served upon a party who has made an appearance in the action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim, but the party shall not be deemed to have waived any special appearance or motion to transfer venue. In all other respects the rules prescribed for pleadings of defensive matter are applicable to answers to counterclaims and cross-claims.
Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex.l973). " {A] general denial puts the plaintiff... on proof of every fact essential to his case and issue is joined on all material facts asserted by plaintiff ... except those which are required to be denied under oath."
Texas DPS v. Moran, 949 S.W.2d 523, 526 (Tex. App.-San Antonio 1997, no writ). Plaintiff "contends he met his burden by Filing a verified petition. Because the [D.A.] filed a general denial and appeared at the hearing, we disagree. ... Because a general denial was filed, the allegations in [P's] petition were not evidence; instead, the allegations were put into issue and [P] was required to prove he met the statutory conditions."
TRCP 93 CERTAIN PLEAS TO BE VERIFIED
A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
1. That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.
2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.
3. That there is another suit pending in this State between the same parties involving the same claim.
4. That there is a defect of parties, plaintiff or defendant.
5. A denial of partnership as alleged in any pleading as to any party to the suit.
6. That any party alleged in any pleading to be a corporation is not incorporated as alleged.
7. Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it states that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.
8. A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief.
9. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.
10. A denial of an account which is the foundation of the plaintiffs action, and supported by affidavit.
11. That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.
12. That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.
13. In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:
(a) Notice of injury.
(b) Claim for compensation.
(c) Award of the Board.
(d) Notice of intention not to abide by the award of the Board.
(e) Filing of suit to set aside the award.
(f) That the insurance company alleged to have been the carrier of the workers' compensation insurance at the time of the alleged injury was in fact the carrier thereof.
(g) That there was good cause for not filing claim with the Industrial Accident Board within the one year period provided by statute.
(h) Wage rate.
A denial of any of the matters set forth in subdivisions (a) or (g) of paragraph 13 may be made on information and belief.
Any such denial may be made in original or amended pleadings; but if in amended pleadings the same must be filed not less than seven days before the case proceeds to trial. In case of such denial the things so denied shall not be presumed to be true, and if essential to the case of the party alleging them, must be proved.
14. That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.
15. In the trial of any case brought against an automobile insurance company by an insured under the provisions of an insurance policy in force providing protection against uninsured motorists, an allegation that the insured has complied with all the terms of the policy as a condition precedent to bringing the suit shall be presumed to be true unless denied by verified pleadings which may be upon information and belief.
16. Any other matter required by statute to be pleaded under oath.
Nootsie, Ltd. p. Williamson Cty. Appr. Dist, 925 S.W.2d 659, 662 (Tex.l996). TRCP 93(1) "requires a party to file a verified pleading if it argues that 'the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.' We have not hesitated in previous cases to hold that parties who do not follow rule 93's mandate waive any right to complain about the matter on appeal."
Wernerv. Colwell, 909 S.W.2d 866,870 (Tex.l995). "The failure to File [a verified] denial does waive any complaint of a judgment rendered in the capacity in which the party was sued. ... However, it does not allow the court to render judgment against the party in a capacity in which she was not sued. ... Unless waived by a general appearance a court cannot confer a capacity on the party that has not been pleaded."
National Un. Fire Ins. Co. v. Reyna, 897 S.W.2d 777, 779 (Tex.l995). "We hold that subsection (g) of [TRCP] 93(13) alone governs an employer's or its insurer's denial of a compensation claim based on the employee's failure to file his claim within one year of injury and his lack of good cause for filing the claim late. Rule 93(13)(g) allows such a pleading in denial to be verified by a party's affidavit made on information and belief."
Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492,494 (Tex.l991). "[W]hen the defense is based on a claim enumerated in [TRCP] 93, [the party] must verify the pleading by affidavit."
Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988). "When capacity [to sue] is contested, [TRCP] 93(2) requires that a veriFied plea be Filed anytime the record does not affirmatively demonstrate the plaintiffs or defendant's right to bring suit or be sued in whatever capacity he is suing."
Allison v. National Un. Fire Ins. Co., 703 S.W.2d 637, 638 (Tex.l986). "A proper challenge to a defect of parties is byway of verified plea."
TRCP 94 AFFIRMATIVE DEFENSES
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.
Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.l996). "[A]n affirmative defense ... is one of confession and avoidance. ... An affirmative defense does not seek to defend by merely denying the plaintiffs claims, but rather seeks to establish 'an independent reason why the plaintiff should not recover."'
Dresser Indus, v. Page Pet., Inc., 853 S.W.2d 505, 508 (Tex.l993). "[A] release surrenders legal rights or obligations between the parties to an agreement. ... It operates to extinguish the claim or cause of action as effectively as would a prior judgment between the parties and is an absolute bar to any right of action on the released matter. ... For these reasons, a release is expressly designated as an affirmative defense."
Shoemake v. Fogel, Ltd., 826 S.W.2d 933,937 (Tex. 1992). "Rule 94's requirement of pleading is not absolute. [If] [T]he defense of [parental] immunity ... is not waived by the failure to specifically plead it if it is apparent on the face of the petition and established as a matter of law."
Davis v. City of San Antonio, 752 S.W.2d 518,519 (Tex. 1988). Governmental immunity is an affirmative defense that is waived if not pleaded.
Land Title Co. v. Stigler Inc., 609 S.W.2d 754,756 (Tex.l980). "Stigler contends that ratification was not pleaded properly and should not have been submitted to the jury. [TRCP] 94 ... requires that all matters constituting an avoidance or affirmative defense must be pleaded. Ratification is a plea in avoidance and thus an affirmative defense which, absent trial by consent, is waived unless affirmatively pleaded."
Gohlke Farms Inc., v. Roywell Sens., Inc., __ S.W.3d __, __ (Tex.App.-Corpus Christi 1999, n.p.h.) (No. 13-97-488-CV; 8-31-99). P "maintains that impossibility of performance is an affirmative defense and, therefore, [D] had the burden to prove it.Atn.3: [P's] characterization of impossibility of performance is correct."
Doyle R. Murphree Family Trust v. Keenan, __ S.W.3d__,__(Tex.App.-Houston [HthDist] 1999, n.p.h.) (No. 14-98-000404-CV; 8-12-99). "Accord and satisfaction constitutes a bar to any action on the original contract. The defense of payment differs from accord and satisfaction. Payment requires proof of performance of the original obligation according to its terms."
TRCP 95 PLEAS OF PAYMENT
When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.
Sage St. Assoc. v. Northdale Constr. Co., 863 S.W.2d 438,443 (Tex.l993). Defendant "contends that [it paid plaintiff] over million [and] paid approximately $1.2 million directly to [P's] subcontractors.... [D] argues that because [P] owed these subcontractors this amount, it should have these sums credited against its recovery. [D] waived this argument by failing both to plead or submit it to the jury, as required by [TRCP] 95...."
Southwestern Fire & Cas. Co. v. Larue, 367 S.W.2d 162, 163 (Tex.l963). "Under [TRCP] 94 and [TRCP] 95, payment is ... an affirmative defense on which the defendant has the burden of proof, which must be specially pleaded, and may not be shown under a general denial."
TRCP 96 NO DISCONTINUANCE
Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counterclaim.
BHPPet. Co. v. Millard, 800 S.W.2d 838,840 (Tex. 1990). "The plaintiffs right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief."
TRCP 97 COUNTERCLAIM and CROSS CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of Filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; provided, however, that a judgment based upon a settlement or compromise of a claim of one party to the transaction or occurrence prior to a disposition on the merits shall not operate as a bar to the continuation or assertion of the claims of any other party to the transaction or occurrence unless the latter has consented in writing that said judgment shall operate as a bar.
(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party, so long as the subject matter is within the jurisdiction of the court.
(d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after filing his pleading may be presented as a counterclaim by amended pleading.
(e) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
(f) Additional Parties. Persons other than those made parties to the original action may be made parties to a third party action, counterclaim or cross-claim in accordance with the provisions of Rules 38,39 and 40.
(g) Tort shall not be the subject of set-off or counterclaim against a contractual demand nor a contractual demand against tort unless it arises out of or is incident to or is connected with same.
(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 174, judgment on a counterclaim or cross-claim may be rendered when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
Ingersoll-Rand Comp. v. Valero Energy Corp., 997 S.W.2d 203,207 (Tex.l999). "But a counterclaim is compulsory only if: (1) it is within the jurisdiction of the court; (2) it is not at the time of Filing the answer the subject of a pending action; (3) the claim is mature and owned by the defendant at the time of Filing the answer; (4) it arose out of the same transaction or occurrence that is the subject matter of the opposing party's claim; (5) it is against an opposing party in the same capacity; and (6) it does not require the presence of third parties over whom the court cannot acquire jurisdiction. A claim having all of these elements must be asserted in the initial action and cannot be asserted in later actions."
Klein v. Dooley, 949 S.W.2d 307, 307 (Tex.l997). "When DTPA plaintiffs take a voluntary nonsuit and the trial court later rules that the defendants are not entitled to costs and fees under [the DTPA], does the trial court's judgment preclude the plaintiffs from filing their claims in a second suit, under [TRCP] 97(a) governing compulsory counterclaims? We hold ... the trial court's judgment in the First suit does not preclude the plaintiffs' claims in a second suit."
Getty Oil Co. v. Insurance Co., 845 S.W.2d 794,800 (Tex.l992). "We do not hold that a defendant must assert a cross-claim against a co-defendant simply because it arises from the same subject matter as plaintiffs claim. [TRCP] 97(e) clearly makes such a cross claim permissive; the defendant may assert it, but is not required to."
Bard v. Charles R. Myers Ins. Agency, 839 S.W.2d 791,796 (Tex.l992). The compulsory counterclaim rule is "designed to avoid piecemeal or duplicative litigation. Its purpose is to provide that a potential counter claimant with a justifiable interest arising out of the same transaction or occurrence at issue in the opposing party's claim bring the counterclaim in the same proceeding or it will be deemed waived. ... The 'compelling interest' underlying the compulsory counterclaim rule is solely in judicial economy; its purpose it to prevent multiple suits arising out of the same transactions or occurrences."
TRCP 98 SUPPLEMENTAL ANSWERS
The defendant's supplemental answers may contain special exceptions, general denial, and the allegations of new matter not before alleged by him, in reply to that which has been alleged by the plaintiff.
State ex rel. Grimes Cty. Taxpayers Ass'n v. Texas Man. Power Agency, 565 S.W.2d 258,277 (Tex. App.-Houston [1st Dist.] 1978, writ dism'd). "A supplemental answer is properly filed in response to any pleading of the plaintiff, regardless of whether it is an amended petition or a supplemental petition."
Section 5 Citation
TRCP 99 ISSUANCE and FORM OF CITATION
a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be issued by the clerk.
b. Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show File number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (II) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to File a written answer to the plaintiffs petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule.
c. Notice. The citation shall include the following notice to the defendant: "You have been sued. You may employ an attorney. If you or your attorney do not File a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you."
d. Copies. The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex.l994). "It is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished. ... This responsibility extends to seeing that service is properly reflected in the record."
Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App- Houston {1st Dist.] 1999, n.p.h.). TRCP 15 "seems to conflict with rule 99(b), which states the citation shall (1) be styled The State of Texas, and (8) be directed to the defendant.... [ If ] The citation we are reviewing in this case is a preprinted form addressed to the sheriff or any constable of Texas, as well as to the defendant. The requirements of rules 15 and 99(b) can be harmonized by allowing the citations to be directed to both the sheriff or constable, as the officer serving it, and the defendant, as the person being served." (Internal quotations omitted.)
TRCP 100 102 REPEALED
TRCP 103 WHO MAY SERVE
Citation and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of a suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested, be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without written motion and no fee shall be imposed for issuance of such order.
Mayfield v. Dean Witter Fin.Servs., Inc., 894 S.W.2d 502,505 (Tex. App.---Austin 1995. writ denied. "(S)ervice of process by a private process server in Texas ... requires authorization by law or a written order of the court. At 506: The parties do not dispute that pursuant to [TRCP] 103, a standing court order authorized ... the private process server ... to serve citation and other notices in any lawsuit filed in the district court of Travis County in which he was not an interested party."
TRCP 104 REPEALED
TRCP 105 DUTY OF OFFICER OR PERSON RECEIVING
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.
Melendez r. John R. Schatzman, Inc., 685 S.W.2d 137, 138 (Tex.App- El Paso 1985, no writ). Service by certified mail "was attempted in the case before us; however, it does not appear that the officer receiving delivery of the process for service endorsed thereon the day and hour of receipt, nor was the return completed showing the execution by certified mail, all as required by Rule 105...."
TRCP 106 METHOD OF SERVICE
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit staling the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and staling specifically the facts showing that service has been attempted under either (a)(l) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably ..effective to give the defendant notice of the suit.
State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298,298-99 (Tex.l993). "Under [TRCP] 106(b) a court may authorize substituted service only after a plaintiff has unsuccessfully tried to effect personal service or service by mail, return receipt requested, as required by Rule 106(a). ... Thus, to require proof of actual notice upon substituted service would frustrate Rule 106(b)'s purpose of providing alternate methods [of service]."
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.l990). "[S]ubstitute service is not authorized under [TRCP] 106(b) without an affidavit which meets the requirements of the rule demonstrating the necessity for other than personal service."
Uvalde Country Club v. Martin Linen Sup. Co., 690 S.W.2d 884, 885 (Tex.l985). "There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment. ... Moreover, failure to affirmatively
show strict compliance with the [TRCPs] renders the attempted service of process invalid and of no effect."
TRCP 107 RETURN OF SERVICE
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified.
When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain. Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court. No default judgment shall be granted in any cause until the citation, or process under Rules 108 or 108a, with proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed under Rule 106, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex.l994). "The officer's return does not cease to be prima facie evidence of the facts of service simply because the facts are recited in a form rather than filled in by the officer.... If the facts as recited in the sheriffs return, pre-printed or otherwise, are incorrect and do not show proper service, the one requesting service must amend the return prior to judgment."
Onyx TV v. TV Strategy Group, LLC, 990 S.W.2d 427, 431 (Tex-App- Texarkana 1999, n.p.h.). "The Secretary of State's certificate of process, [showing proof of service under the long-arm statute,] does not place on File the information [required under TRCP 99 and] contained in the citation sent to Onyx. We hold that the filing of the Secretary of State's certificate does not comply with the requirement of [TRCP] 107 that the citation be on file."
Seib v. Bekker, 964 S.W.2d 25,28 (Tex.App-Tyier 1997, no writ). "[A] return of service of citation by a private process server must contain the fact of service, the time of service, and manner of service, and shall be sworn to by the private process server before a notary public and filed with the papers in the cause."
Fowler v. Quintan ISD, 963 S.W.2d 941, 944 (Tex. App.-Texarkana 1998, no pet.). "[T]he return does not have attached to it the return receipt with the addressee's signature as is required by the mandatory language of Rule 107 if service is effected by mail. [ 11 ] The return does not constitute 'strict' compliance with the Rule."
Maddison Dual Fuels, Inc. v. Southern Un. Co. 944 S.W.2d 735, 738 (Tex.App.-Corpus Christi 1997, no writ). "When a citation has been returned unserved, the officer's return must show the diligence used by the officer to execute the citation and the cause of his failure to execute it."
TRCP 108 DEFENDANT WITHOUT STATE
Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant; and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof. The return of service in such cases shall be endorsed on or attached to the original notice, and shall be in the form provided in Rule 107, and be signed and sworn to by the party making such service before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer. A defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with a citation within this State to the full extent that he may be required to appear and answer under the Constitution of the United States in an action either in rem or in personam.
Paramount Pipe & Sup. Co. v. Muhr, 749 S.W.2d 491,495-96 (Tex.l988). TRCP 108 "is a valid procedural alternative to service under the long-arm statute. ... So long as the allegations confronting [D] were sufficient to satisfy due process requirements, the trial court had jurisdiction to render judgment by default against him. The only question ... is whether the jurisdictional allegations in the petitions were sufficient, under the Constitution of the U.S., to require [D] to answer."
World Distribs., Inc. v. Knox, 968 S.W.2d 474,479 (Tex-App.-El Paso 1998, no pet.). "We have ... found no authority for the Secretary of State to serve process. (N)umerous statutes require the Secretary of State to act as agent for service, but no statute authorizes him to serve process. [11) We fail to perceive how the Secretary of State may act as the defendant's agent for service and at the same time still qualify as a 'disinterested person."'
TRCP 108a SERVICE OF PROCESS IN FOREIGN COUNTRIES
(1) Manner. Service of process may be effected upon a party in a foreign country if service of the citation and petition is made: (a) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (b) as directed by the foreign authority in response to a letter rogatory or a letter of request; or (c) in the manner provided by Rule 106; or (d) pursuant to the terms and provisions of any applicable treaty or convention; or (e) by diplomatic or consular officials when authorized by the United States Department of State; or (f) by any other means directed by the court that is not prohibited by the law of the country where service is to be made. The method for service of process in a foreign country must be reasonably calculated, under all of the circumstances, to give actual notice of the proceedings to the defendant in time to answer and defend. A defendant served with process under this rule shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with citation within this state to the full extent that he may be required to appear and answer under the Constitution of the United States or under any applicable convention or treaty in an action either in rem or in personam.
(2) Return. Proof of service may be made as prescribed by the law of the foreign country, by order of the court, by Rule 107, or by a method provided in any applicable treaty or convention.
Commission of Contracts v. Arriba, Ltd., 882 S.W.2d 576, 584 (Tex.App- Houston [1st Dist.] 1994, no writ). " [T]he appellants argue that service on a resident of a foreign country under the long-arm statute... is improper, and that a resident of a foreign country can only be served according to the methods of service prescribed in [TRCP] 108a. At 585: We Find a party in a foreign country may be served under the long-arm statute."
TRCP 109 CITATION BY PUBLICATION
When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue citation for such defendant for service by publication. In such cases it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.
Wood v. Brown, 819 S.W.2d 799, 800 (Tex.l991). "In his affidavit, Brown's counsel stated that ... Wood had moved from his last known address in Oklahoma and that neighbors thought that Wood had moved to Florida. The affidavit, however, does not state that Wood's residence was unknown to Brown's attorney, that Wood was a transient person, that Wood was absent from Texas or that Wood did not reside in Texas. Therefore, the affidavit sworn by Brown's attorney did not meet any of the requirements for service by publication under [TRCP] 109."
TRCP 109a OTHER SUBSTITUTED SERVICE
Whenever citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give defendant actual notice. When such method of substituted service is authorized, the return of the officer executing the citation shall state particularly the manner in which service is accomplished, and shall attach any return receipt, returned mail, or other evidence showing the result of such service. Failure of defendant to respond to such citation shall not render the service invalid. When such substituted service has been obtained and the defendant has not appeared, the provisions of Rules 244 and 329 shall apply as if citation had been served by publication.
Howell v. Homecraft Land Dec., Inc., 749 S.W.2d 103, 112 (Tex.App- Dallas 1987, no writ). "The rules require a strict showing of the need for substituted service, and the trial court must order the substituted service."
TRCP 110 EFFECT OF RULES ON OTHER STATUTES
Where by statute or these rules citation by publication is authorized and the statute or rules do not specie the requisites of such citation or the method of service thereof, or where they direct that such citation be issued or served as in other civil actions, the provisions of these rules shall govern. Where, however, the statute authorizing citation by publication provides expressly for requisites of such citation or service thereof, or both, differing from the provisions of Rules 114, 115, and 116, these rules shall not govern, but the special statutory procedure shall continue in force; provided, however, that Rule 117a shall control with respect to citation in tax suits.
TRCP 111 CITATION BY PUBLICATION IN ACTION AGAINST UNKNOWN HEIRS OR STOCKHOLDERS OF DEFUNCT CORPORATIONS
If the plaintiff, his agent, or attorney, shall make oath that the names of the heirs or stockholders against whom an action is authorized by Section 17.004, Civil Practice and Remedies Code, are unknown to the affiant, the clerk shall issue a citation for service by publication. Such citation shall be addressed to the defendants by a concise description of their classification, as "the Unknown Heirs of A.B., deceased," or "Unknown Stockholders of _________ Corporation," as the case may be, and shall contain the other requisites prescribed in Rules 114 and 115 and shall be served as provided by Rule 116.
TRCP 112 PARTIES TO ACTIONS AGAINST UNKNOWN OWNERS OR CLAIMANTS OF INTEREST IN LAND
In suits authorized by Section 17.005, Civil Practice and Remedies Code, all persons claiming under such conveyance whose names are known to plaintiff shall be made parties by name and cited to appear, in the manner now provided by law as in other suits; all other persons claiming any interest in such land under such conveyance may be made parties to the suit and cited by publication under the designation "all persons claiming any title or interest in land under deed heretofore given to ___________ of _______________ as grantee" (inserting in the blanks the name and residence of grantee as given in such conveyance). It shall be permissible to join in one suit all persons claiming under two or more conveyances affecting title to the same tract of land.
TRCP 113 CITATION BY PUBLICATION IN ACTIONS AGAINST UNKNOWN OWNERS OR CLAIMANTS OF INTEREST IN LAND
In suits authorized by Section 17.005, Civil Practice and Remedies Code, plaintiff, his agent or attorney shall make and File with the clerk of the court an affidavit, staling (a) the name of the grantee as set out in the conveyance constituting source of title of defendants, and (b) slating that affiant does not know the names of any persons claiming title or interest under such conveyance other than as stated in plaintiffs petition and (c) if the conveyance is to a company or association name as grantee, further staling whether grantee is incorporated or unincorporated, if such fact is known, and if such fact is unknown, so staling. Said clerk shall thereupon issue a citation for service upon all persons claiming any title or interest in such land under such conveyance. The citation in such cases shall contain the requisites and be served in the manner provided by Rules 114,115 and 116.
Quarles v. Champion Infl Corp., 760 S.W.2d 792, 794 (Tex.App.-Beaumont 1988, writ denied). Service of citation by publication on a known party is improper, "[a]nd this notice requirement to a known party is of due process dimension."
TRCP 114 CITATION BY PUBLICATION; REQUISITES
Where citation by publication is authorized by these rules, the citation shall contain the requisites prescribed by Rules 15 and 99, in so far as they are not inconsistent herewith, provided that no copy of the plaintiffs petition shall accompany this citation, and the citation shall be styled "The State of Texas" and shall be directed to the defendant or defendants by name, if their names are known, or to the defendant or defendants as designated in the petition, if unknown, or such other classification as may be fixed by any statute or by these rules. Where there are two or more defendants or classes of defendants to be served by publication, the citation may be directed to all of them by name and classification, so that service may be completed by publication of the one citation for the required number of times. The citation shall contain the names of the parties, a brief statement of the nature of the suit (which need not contain the details and particulars of the claim) a description of any property involved and of the interest of the named or unknown defendant or defendants, and, where the suit involves land, the requisites of Rule 115. If issued from the district or county court, the citation shall command such parties to appear and answer at or before 10 o'clock a.m. of the first Monday after the expiration of 42 days from the date of issuance thereof, specifying the day of the week, the day of the month, and the time of day the defendant is required to answer. If issued from the justice of the peace court, such citation shall command such parties to appear and answer on or before the first day of the first term of court which convenes after the expiration of 42 days from the date of issue thereof, specifying the day of the week, and the day of the month, that such term will meet.
Wiebusch v. Wiebasch, 636 S.W.2d 540, 541-42 (Tex.App.-San Antonio 1982, no writ). The rule "mandates that... the citation by publication shall contain 'a brief statement of the nature of the suit.' Thus, notice of the nature of the suit is essential to a valid citation by publication."
TRCP 115 FORM OF PUBLISHED CITATION IN ACTIONS INVOLVING LAND
In citations by publication involving land, it shall be sufficient in making the brief statement of the claim in such citation to state the kind of suit, the number of acres of land involved in the suit, or the number of the lot and block, or any other plat description that may be of record if the land is situated in a city or town, the survey on which and the county in which the land is situated, and any special pleas which are relied upon in such suit.
TRCP 116 SERVICE OF CITATION BY PUBLICATION
The citation, when issued, shall be served by the sheriff or any constable of any county of the State of Texas or by the clerk of the court in which the case is pending, by having the same published once each week for four (4) consecutive weeks, the First publication to be at least twenty-eight (28) days before the return day of the citation. In all suits which do not involve the title to land or the partition of real estate, such publication shall be made in the county where the suit is pending, if there be a newspaper published in said county, but if not, then in an adjoining county where a newspaper is published. In all suits which involve the title to land or partition of real estate, such publication shall be made in the county where the land, or a portion thereof, is situated, if there be a newspaper in such county, but if not, then in an adjoining county to the county where the land or a part thereof is situated, where a newspaper is published.
Fleming v. Hernden, 564 S.W.2d 157, 159 (Tex. App- El Paso 1978, writ refd n.r.e.). Citation by publication in San Antonio newspapers affecting title to land in Willacy County did not comply with TRCP 116.
TRCP 117 RETURN OF CITATION BY PUBLICATION
The return of the officer executing such citation shall be indorsed or attached to the same, and show how and when the citation was executed, specifying the dates of such publication, be signed by him officially and shall be accompanied by a printed copy of such publication.
TRCP 117a CITATION IN SUITS FOR DELINQUENT AD VALOREM TAXES
In all suits for collection of delinquent ad valorem taxes, the rules of civil procedure governing issuance and service of citation shall control the issuance and service of citation therein, except as herein otherwise specially provided.
1. Personal Service: Owner and Residence Known, Within State. Where any defendant in a tax suit is a resident of the State of Texas and is not subject to citation by publication under subdivision 3 below, the process shall conform substantially to the form hereinafter set out for personal service and shall contain the essential elements and be served and returned and otherwise regulated by the provisions of Rules 99 to 107, inclusive.
2. Personal Service: Owner and Residence Known, Out of State. Where any such defendant is absent from the State or is a nonresident of the State and is not subject to citation by publication under subdivision 3 below, the process shall conform substantially to the form hereinafter set out for personal service and shall contain the essential elements and be served and returned and otherwise regulated by the provisions of Rule 108.
3. Service by Publication: Nonresident, Absent from State, Transient, Name Unknown, Residence Unknown, Owner Unknown, Heirs Unknown, Corporate Officers, Trustees, Receivers or Stockholders Unknown, Any Other Unknown Persons Owing or Claiming or Having an Interest. Where any defendant in a tax suit is a nonresident of the State, or is absent from the State, or is a transient person, or the name or the residence of any owner of any interest in any property upon which a tax lien is sought to be foreclosed, is unknown to the attorney requesting the issuance of process or filing the suit for the taxing unit, and such attorney shall make affidavit that such defendant is a nonresident of the State, or is absent from the State, or is a transient person, or that the name or residence of such owner is unknown and cannot be ascertained after diligent inquiry, each such person in every such class above mentioned, together with any and all other persons, including adverse claimants, owning or claiming or having any legal or equitable interest in or lien upon such property, may be cited by publication. All unknown owners of any interest in any property upon which any taxing unit seeks to foreclose a lien for taxes, including stockholders of corporations-defunct or otherwise-their successors, heirs, and assigns, may be joined in such suit under the designation of "unknown owners" and citation be had upon them as such; provided, however, that record owners of such property or of any apparent interest therein, including, without limitation, record lien holders, shall not be included in the designation of "unknown owners"; and provided further that where any record owner has rendered the property involved within five years before the tax suit is filed, citation on such record owner may not be had by publication or posting unless citation for personal service has been issued as to such record owner, with a notation thereon setting forth the same address as is contained on the rendition sheet made within such five years, and the sheriff or other person to whom citation has been delivered makes his return thereon that he is unable to locate the defendant. Where any attorney filing a tax suit for a taxing unit, or requesting the issuance of process in such suit, shall make affidavit that a corporation is the record owner of any interest in any property upon which a tax lien is sought to be foreclosed, and that he does not know, and after diligent inquiry has been unable to ascertain, the location of the place of business, if any, of such corporation, or the name or place of residence of any officer of such corporation upon whom personal service may be had, such corporation may be cited by publication as herein provided. All defendants of the classes enumerated above may be joined in the same citation by publication.
An affidavit which complies with the foregoing requirements therefor shall be sufficient basis for the citation above mentioned in connection with it but shall be held to be made upon the criminal responsibility of affiant.
Such citation by publication shall be directed to the defendants by names or by designation as hereinabove provided, and shall be issued and signed by the clerk of the court in which such tax suit is pending. It shall be sufficient if it states the file number and style of the case, the date of the Filing of the petition, the names of all parties by name or by designation as hereinabove provided, and the court in which the suit is pending; shall command such parties to appear and defend such suit at or before 10 o'clock a.m. of the first Monday after the expiration of forty-two days from the date of the issuance thereof, specifying such date when such parties are required to answer; shall state the place of holding the court, the nature of the suit, and the date of the issuance of the citation; and shall be signed and sealed by the clerk.
The citation shall be published in the English language one time a week for two weeks in some newspaper published in the county in which the property is located, which newspaper must have been in general circulation for at least one year immediately prior to the first publication and shall in every respect answer the requirements of the law applicable to newspapers which are employed for such a purpose, the first publication to be not less than twenty-eight days prior to the return day Fixed in the citation; and the affidavit of the editor or publisher of the newspaper giving the date of publication, together with a printed copy of the citation as published, shall constitute sufficient proof of due publication when returned and Filed in court. If there is no newspaper published in the county, then the publication may be made in a newspaper in an adjoining county, which newspaper shall in every respect answer the requirements of the law applicable to newspapers which are employed for such a purpose. The maximum fee for publishing the citation shall be the lowest published word or line rate of that newspaper for classified advertising. If the publication of the citation cannot be had for this fee, chargeable as costs and payable upon sale of the property, as provided by law, and this fact is supported by the affidavit of the attorney for the plaintiff or the attorney requesting the issuance of the process, then service of the citation may be made by posting a copy at the courthouse door of the county in which the suit is pending, the citation to be posted at least twenty-eight days prior to the return day Fixed in the citation. Proof of the posting of the citation shall be made by affidavit of the attorney for the plaintiff, or of the person posting it. When citation is served as here provided it shall be sufficient, and no other form of citation or notice to the named defendants therein shall be necessary.
4. Citation in Tax Suits: General Provisions. Any process authorized by this rule may issue jointly in behalf of all taxing units who are plaintiffs or intervenors in any tax suit. The statement of the nature of the suit, to be set out in the citation, shall be sufficient if it contains a brief general description of the property upon which the taxes are due and the amount of such taxes, exclusive of interest, penalties, and costs, and shall state, in substance, that in such suit the plaintiff and all other taxing units who may set up their claims therein seek recovery of the delinquent ad valorem taxes due on said property, and the (establishment and foreclosure) of liens, if any, securing the payment of same, as provided by law; that in addition to the taxes all interest, penalties, and costs allowed by law up to and including the day of judgment are included in the suit; and that all parties to the suit, including plaintiff, defendants, and intervenors, shall take notice that claims for any taxes on said property becoming delinquent subsequent to the Filing of the suit and up to the day of judgment, together with all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered therein without further citation or notice to any parties thereto. Such citation need not be accompanied by a copy of plaintiffs petition and no such copy need be served. Such citation shall also show the names of all taxing units which assess and collect taxes on said property not made parties to such suit, and shall contain, in substance, a recitation that each party to such suit shall take notice of, and plead and answer to, all claims and pleadings then on File or thereafter filed in said cause by all other parties therein, or who may intervene therein and set up their respective tax claims against said property. After citation or notice has been given on behalf of any plaintiff or intervenor taxing unit, the court shall have jurisdiction to hear and determine the tax claims of all taxing units who are parties plaintiff, intervenor or defendant at the time such process is issued and of all taxing units intervening after such process is issued, not only for the taxes, interest, penalties, and costs which may be due on said property at the time the suit is filed, but those becoming delinquent thereon at any time thereafter up to and including the day of judgment, without the necessity of further citation or notice to any party to said suit; and any taxing unit having a tax claim against said property may, by answer or intervention, set up and have determined its tax claim without the necessity of further citation or notice to any parties to such suit.
5. Form of Citation by Publication or Posting.
The form of citation by publication or posting shall be sufficient if it is in substantially the following form, with proper changes to make the same applicable to personal property, where necessary, and if the suit includes or is for the recovery of taxes assessed on personal property, a general description of such personal property shall be sufficient:
THE STATE OF TEXAS Section
COUNTY OF
In the name and by the authority of the State of Texas
Notice is hereby given as follows:
To____________________________________ and any and all other persons, including adverse claimants, owning or having or claiming any legal or equitable interest in or lien upon the following described property delinquent to Plaintiff herein, for taxes, to-wit: _______________________________
Which said property is delinquent to Plaintiff for taxes in the following amounts:
, exclusive of interest, penalties, and costs, and there is included in this suit in addition to the taxes all said interest, penalties, and costs thereon, allowed by law up to and including the day of judgment herein. You are hereby notified that suit has been brought by _____ as Plaintiffs, against ______ as Defendants, by petition filed on the __ day of____, 19__, in a certain suit styled _________ v. _________ for collection of the taxes on said property and that said suit is now pending in the District Court of _____ County, Texas, ___ Judicial District, and the file number of said suit is ___, that the names of all taxing units which assess and collect taxes on the property hereinabove described, not made parties to this suit, are _____________. Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest, penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the establishment and foreclosure of liens, if any, securing the payment of same, as provided by law.
All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims not only for any taxes which were delinquent on said property at the time this suit was filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein without further citation or notice to any parties herein, and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in said cause by all other parties herein, and all of those taxing units above named who may intervene herein and set up their respective tax claims against said property.
You are hereby commanded to appear and defend such suit on the first Monday after the expiration of forty-two (42) days from and after the date of issuance hereof, the same being the __ day of 19___ ,A.D., (which is the return day of such citation), before the honorable District Court of _________ County, Texas, to be held at the courthouse thereof, then and there to show cause why judgment shall not be rendered for such taxes, penalties, interest, and costs, and condemning said property and ordering foreclosure of the constitutional and statutory tax liens thereon for taxes due the plaintiff and the taxing units parties hereto, and those who may intervene herein, together with all interest, penalties, and costs allowed by law up to and including the day of judgment herein, and all costs of this suit.
Issued and given under my hand and seal of said court in the City of ________, ______ County, Texas, this __ day of________, A.D., 19__.
Clerk of the District Court
__________ County, Texas,
Judicial District.
6. Form of Citation by Personal Service in or out of State. The form of citation for personal service shall be sufficient if it is in substantially the following form, with proper changes to make the same applicable to personal property, where necessary, and if the suit includes or is for the recovery of taxes assessed on personal property, a general description of such personal property shall be sufficient:
THE STATE OF TEXAS
To Defendant,
GREETING:
YOU ARE HEREBY COMMANDED to appear and answer before the Honorable District Court, _____ Judicial District, ____________ County, Texas, at the Courthouse of said county in or before 10 o'clock a.m. of the Monday next after the expiration of 20 days from the date of service of this citation, then and there to answer the petition of ___________, Plaintiff, filed in said Court on the __ day of ____, A.D., 19_, against ________, Defendant, said suit being number on the docket of said Court, the nature of which demand is a suit to collect delinquent ad valorem taxes on the property hereinafter described.
The amount of taxes due Plaintiff, exclusive of interest, penalties, and costs, is the sum of $ _________, said property being described as follows, to-wit:
The names of all taxing units which assess and collect taxes on said property, not made parties to this suit, are:____________________________________
Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest, penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the establishment and foreclosure of liens securing the payment of same, as provided by law.
All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims not only for any taxes which were delinquent on said property at the time this suit was Filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein without further citation or notice to any parties herein, and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in this cause by all other parties hereto, and by all of those taxing units above named, who may intervene herein and set up their respective tax claims against said property.
If this citation is not served within 90 days after the date of its issuance, it shall be returned unserved.
The officer executing this return shall promptly serve the same according to the requirements of law and the mandates hereof and make due return as the law directs.
Issued and given under my hand and seal of said Court at ____, Texas, this the __ day of____, A.D., 19 .
Clerk of the District Court
__________ County, Texas,
By___, Deputy
Andersen v. Collum, 514 S.W.2d 230, 231 (Tex. 1974). "[T]he failure to comply with [TRCP 117a] and the admitted lack of diligence to locate the defendants renders the service by publication ineffective."
TRCP 118 AMENDMENT
At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Higginbotham v. General Life & Ace. Ins. Co., 796 S.W.2d 695,697 (Tex.l990). Because a trial court's order holding that service was proper was "tantamount to formal amendment of the return of citation, the record was sufficient to show valid service."
TRCP 119 ACCEPTANCE OF SERVICE
The defendant may accept service of process, or waive the issuance or service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn to before a proper officer other than an attorney in the case, and filed among the papers of the cause, and such waiver or acceptance shall have the same force and effect as if the citation had been issued and served as provided by law. The party signing such memorandum shall be delivered a copy of plaintiffs petition, and the receipt of the same shall be acknowledged in such memorandum. In every divorce action such memorandum shall also include the defendant's mailing address.
Been v. Kirk, 508 S.W.2d 70,71 (Tex.l974). "Under the provisions of [ TRCP ] 119... a defendant may waive the issuance and service of citation by filing among the papers of the cause a verified written memorandum 'signed by him, or by his duly authorized agent or attorney, after suit is brought.' Article 2224 [now CPRC Section 30.001 ] prohibits the waiver of process by an instrument executed prior to institution of suit."
Tidwell v. Tidwell, 604 S.W.2d 540, 541 (Tex. App- Texarkana 1980, no writ). TRCP 119 makes "it absolutely clear that a waiver of service of process must be executed after suit is brought."
TRCP 119a COPY OF DECREE
The district clerk shall forthwith mail a certified copy of the Final divorce decree or order of dismissal to the party signing a memorandum waiving issuance or service of process. Such divorce decree or order of dismissal shall be mailed to the signer of the memorandum at the address stated in such memorandum or to the office of his attorney of record.
TRCP 120 ENTERING APPEARANCE
The defendant may, in person, or by attorney, or by his duly authorized agent, enter an appearance in open court. Such appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if the citation had been duly issued and served as provided by law.
Mays v. Perkins, 927 S.W.2d 222,225 (Tex.App- Houston [1st Dist.] 1996, no writ). "A defendant's appearance before a court generally indicates a submission to the court's jurisdiction. However, the mere presence in court by an attorney, retained as counsel by a person formerly a party to the lawsuit, does not constitute a general appearance, unless the attorney seeks a judgment or an adjudication on some question."
Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 589 (Tex.App.-Corpus Christi 1994, no writ). "A defendant's appearance in open court shall have the same force and effect as if the citation had been duly issued and served as provided by law."
TRCP 120a SPECIAL APPEARANCE
1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. A special appearance may be made as to an entire proceeding or as to any severable claim involved therein. Such special appearance shall be made by sworn motion Filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or Filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects. The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. Every appearance, prior to judgment, not in compliance with this rule is a general appearance.
2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard. No determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof.
3. The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be Filed by the parties, the results of discovery processes, and any oral testimony. The affidavits, if any, shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Should it appear to the satisfaction of the court at any time that any of such affidavits are presented in violation of Rule 13, the court shall impose sanctions in accordance with that rule.
4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.
GFTA Trendanalysen B.G.A. Herrdum GMBH & Co. v. Vanne, 991 S.W.2d 785,786 (Tex.l999). "[T]he court of appeals held that by challenging the method of service within the special appearance, [D] converted its special appearance into a general appearance and thereby consented to jurisdiction. [If] [A] party [does not] waive[] a due process challenge for want of minimum contacts by challenging the method of service in the special appearance."
Dawson-Aastin v. Austin, 968 S.W.2d 319, 323 (Tex.l998). "[T]he motion for continuance did not request affirmative relief inconsistent with (D's] assertion that the district court lacked jurisdiction, which, as we have noted, is the test for a general appearance. Rather, the motion asked the court to defer action on all matters."
CMMC v. Salinas, 929 S.W.2d 435,437 (Tex.l996). " [A] state court can take personal jurisdiction over a defendant only if it has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. At 439: CMMC's mere knowledge that its winepress was to be sold and used in Texas and its wiring the machine for use in the U.S. were not sufficient to subject CMMC to the jurisdiction of Texas courts. At 440: A manufacturer cannot fairly be expected to litigate in every part of the world where its products may end up; its contacts with the forum must be more purposeful ... before it can constitutionally be subjected to personal jurisdiction."
CSR Ltd. v. Link, 925 S.W.2d 591, 595-96 (Tex. 1996). "A defendant should not be subject to the jurisdiction of a foreign court based upon 'random,' 'fortuitous,' or 'attenuated' contacts. Minimum contacts are particularly important when the defendant is from a different country because of the unique and onerous burden placed on a party called upon to defend a suit in a foreign legal system. [If] (T]he record contains no evidence that CSR [an Australian company] took any act purposefully directed toward selling or distributing the raw asbestos fiber in Texas."
Guardian Royal Exch. Assar., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.l991). "Under the minimum contacts analysis, we must determine whether the nonresident defendant has purposefully availed itself of the privileges of conducting activities within the forum state, thus invoking the benefits and protections of its laws."
Schlobohm v. Schapiro, 784 S.W.2d 355,358 (Tex. 1990). The Texas standard for jurisdiction over a nonresident defendant requires: "(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state.... (2) The cause of action must arise from, or be connected with, such act or transaction.... [Or] the defendant's contacts with Texas are continuing and systematic.... (3) The assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice."
TRCP 121 ANSWER IS APPEARANCE
An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.
Burrows v. Arce, 997 S.W.2d 229,246 (Tex.l999). "The filing of an answer dispenses with the necessity of service of citation."
Moody Nat'1 Bank v. Riebschlager, 946 S.W.2d 521, 524 (Tex.App- Houston [14th Dist.] 1997, writ denied). "In order for an act of the garnishee to constitute an appearance, it must seek a judgment or adjudication by the court on some issue. ... When a garnishee appears for the purpose of Filing a motion to quash the garnishment, such an appearance does not confer jurisdiction on the court for all purposes, and does not operate as a waiver of an objection as to jurisdiction."
TRCP 122 CONSTRUCTIVE APPEARANCE
If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him.
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199,202 (Tex.l985). "[A] non-resident defendant, like any other defendant, may move to quash the citation for defects in the process, but his only relief is additional time to answer rather than dismissal of the cause."
Moody Nat'1 Bank v. Riebschlager, 946 S.W.2d 521, 524 (Tex.App- Houston [14th Dist.] 1997, writ denied). "[F]iling a motion to quash in garnishment proceedings is not comparable to filing a motion to quash citation in ordinary suits.... Because the Filing of a motion to quash in a garnishment proceeding does not constitute an appearance as in other civil proceedings, rule 122 is wholly inapplicable to this case...."
TRCP 123 REVERSAL OF JUDGMENT
Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed.
Gates v. Pon, 663 S.W.2d 99, 102 (Tex-App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.). "[A]ppellant by appealing this case has submitted himself to the jurisdiction of the district court and no new service is necessary."
TRCP 124 NO JUDGMENT WITHOUT SERVICE
In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules. When a party asserts a counterclaim or a cross-claim against another party who has entered an appearance, the claim may be served in any manner prescribed for service of citation or as provided in Rule 2 la.
Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995). "Judgment shall not be rendered against one who was neither named nor served as a party defendant. ... An exception exist when a person waives service by making a general appearance before the court. ... [W] e have never held and decline to hold today, that merely appearing as a witness in a cause serves as a general appearance, subjecting one to the jurisdiction of the court."
Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ). "Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void."
