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or any other probate proceedings in the county court differing from these Rules, and not included in the "List of Repealed Statutes," such statute shall apply; and where any statute in effect immediately prior to September 1,1941, and not included in the "List of Repealed Statutes," prescribed a rule of procedure in any special statutory proceeding differing from these rules, such statute shall apply.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 c
