I. Chapter 2: Emergency & Interim Relief (Special Remedies)
A. Temporary restraining orders & Injunctions
a) “Interim relief” is used to preserve the status quo pending a determination of the primary proceeding.
2) Temporary Restraining Orders (TRO)
a) Dfn. A short-term, stop-gap injunction issued pending a hearing, where the court that states that a person is to refrain from particular acts and to stay away from particular places.
b) TRO’s are usually given under ex parte (w/o notice to the other party), and because of this they are difficult to get.
c) Thus, technical compliance with the TRO is required because procedural due process protects the absent party.
d) A TRO’s life span is 14 days, the party seeking must THEN seek a temporary injunction (“TI”).
e) A judge will always be available to grant TRO’s, not just 9-5.
f) Need a district clerk, judge, bondsman, or sheriff to issue, execute and serve the TRO.
3) TRO Requirements:
a) Petition – file law suit with a verified petition supported by affidavit.
b) Application for the TRO – Must give notice unless it clearly appears from the specific facts shown in the affidavit/complaint that immediate & irreparable harm will suffer w/o the TRO.
c) Restraining order bond – Amount is determined by potential damage to D if TRO is invalid.
d) Filing fee
e) TRO (the order) must state the specific facts, define the injury, and why it is irreparable harm to support why the order was granted.
f) 14 day duration max, may be extended once for a like duration, can be extended subsequently if extensions are unopposed.
g) Note: Justice Courts lack SMJD for injunction, must go to district or county court.
4) TRO v. Temporary Injunctions
a) TRO lasts only 14 days – a TI can last as long as the court says, but can NEVER be ordered ex parte.
5) Rule 680: Standard to Grant Ex Parte
a) TRO may not be granted w/o notice to the other side (i.e. ex parte) UNLESS:
b) Petitioner shows by verified petition or affidavit that;
i) Immediate and irreparable injury will result if forced to notify other side; and
ii) Every order granted w/o notice to other side must be signed, dated, and to the hour, filed in clerks office, and define the injury and state why irreparable, and the facts showing injury.
c) Should include duration not exceeding 14 days – Ct. can extend this period once (must be in writing and give reason for extension).
d) Motion for dissolution (to dissolve the TRO) should be heard as soon as practicable.
6) After TRO is Filed
a) A party against whom the TRO operates can file a “motion to dissolve” the TRO.
b) The hearing receives preferential scheduling and is adversarial.
c) The party who sought the TRO must prove why TRO is necessary.
d) The party seeking a TRO must follow up by seeking a TI after notice and a hearing.
7) Temporary Injunctions
a) Dfn. A court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action
b) Rule: When TI is issued which doesn’t conform with requirements of the rule, it necessarily constitutes an abuse of the trial court’s discretion and requires reversal.
c) Charter Medical Corp. v. Miller à TI limiting right to practice podiatry in a hospital was invalid because it didn’t set out reasons for its issuance.
B. Interim Relief for Secured Creditors & Other Claimants
1) Writ of Sequestration
a) Purpose: to take specified property, in which the claimant assets a pre-existing property interest (e.g. security interest in collateral), out of the possession of a party to a suit and place it in the custody of the court pending a final judgment on the issue of who is entitled to the prop.
i) Ex. A sells B a car, secured by promissory note. B signs note promising $300/mo. for 5 yrs. & car is collateral (A takes SI in B’s car). B stops making payment. A can sue for breach of K but it may be a year until trial. Buyer may have accident meanwhile, sell it, ill-treat it, depreciates rapidly. So they will get writ of sequestration.
b) Only available when provided for by statute, and strict compliance with the statute and applicable rules are required.
i) Typically available in a suit for personal property, fixtures, foreclosures, real property, possession of property that P has been ejected by force, suit to try title or remove cloud from real property, or to foreclose a lien on real property.
c) D has a right to regain possession by filing a replevy or a motion to dissolve the writ.
d) If motion to dissolve is granted, then reasonable attny fees and damages can be awarded.
e) Replevy requires D to provide a bond with sufficient sureties.
2) Writ of Attachment
a) Purpose: to seize non-exempt property up to a certain dollar amount and impound and fix a lien on nonexempt property to prevent debtor from making themselves judgment proof.
3) Writ of Garnishment
a) Purpose: Commands a third party (the garnishee, i.e. D’s bank) to hold the property due to the D on behalf of the garnishee b/c D does not have sufficient non-exempt property within the state. Garnishee must not release the prop. To D while the suit is pending.
b) Available when:
i) An original attachment has been issued, but not satisfied; OR
ii) Suit is brought for a debt owed and an affidavit is made by the P to the effect that the debt is just, due, and unpaid; AND
iii) D does not possess enough property in TX which could satisfy the debt.
4) Requirements of All Writs
a) Party seeking writ must post bond against damages in case the writ is wrongfully attained.
b) Tort action by D for “wrongful obtaining of writ” w/ potential for punitive if malicious conduct is shown.
c) A judge, not a clerk, may issue writ ONLY after an evidentiary hearing (may be ex party)
d) There must be a pending lawsuit (a verified petition).
e) D must be advised in large print that he has a right to move to dissolve the writ immediately and he has a right to get his property back if he puts up his own bond.
5) Notice of Lis Pendens (latin “suit pending”)
a) Dfn. A notice that refers to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded.
b) Puts notice on the recording office, so anyone who deals with the land will have notice.
c) Purpose is to prevent either party from alienating the property in dispute.
6) Post-Judgment Remedies
a) Creditor may enforce the judgment by execution on D’s non-exempt property and garnishment.
b) No bond is required in post-judgment phase.
7) Wrongful Use of Special Remedies
a) If there are untrue statements made by the creditor in order to obtain the writ, the creditor has committed the tort. It has been historically easy to prove up wrongful sequestration, to where you can at least get actual damages.
b) Can get punitive damages if debtor can prove malice (but good faith is a defense).
c) Rule: If creditor obtains the writ by alleging untrue facts in an affidavit to support the application of the writ, the tort of wrongful writ has been committed.
d) Exception: If creditor states facts falsely, and it is a bona fide error, damages may not be awarded.
e) MonroeàIf P can show the property will be wasted by continuing to allow the D to keep or use the property, that is sufficient grounds to support issuance of a writ of sequestration.
f) Chandler v. Cashwayà A garnishment is wrongful if the facts set forth in the affidavit are untrue. This provides a basis for a valid cause of action for wrongful garnishment.
g) Barfield v. Brogdonà Wrongful sequestration can support punitive damages, if the issuance was wrongful and was procured without probable cause and maliciously (bad motives or reckless disregard for the rights of the D).
h) CPRC 62.045 – Places cap on punitive damages for wrongful sequestration of consumer goods.
i) If the writ is dissolved, actual damages are the cap or $100 if th
cribed by law for the CCCs.
ii) Appeals from JC
iii) Workers compensation appeals
v) Family Law
vi) Eminent Domain
i) County business of the commissioners court
ii) Those matters excluded from jurisdiction of the CCCs.
iii) All others as provided by the legislator.
7) District Courts (“DC”)
a) These courts are the primary trial courts of Texas & are in every county.
b) Const. gives DCs exclusive, appellate, and original jurisdiction over all actions unless jurisdiction is conferred on some other court.
c) AIC Requirement: $500 and above. (Exam)
i) Although some courts of appeals say $200.01 and above.
i) “Residual” jurisdiction – Anything that any other court does not cover.
ii) Eminent domain
iv) Defamation, slander.
8) Types of Jurisdiction
a) Exclusive jurisdiction – Only one court is authorized to hear a type of matter.
b) Concurrent jurisdiction – More than one court is authorized to hear a type of matter.
c) General jurisdiction – Court can hear cases of all kinds, i.e. civil and criminal, that meet the AIC requirements.
d) Limited jurisdiction – regardless of the AIC, the court can only hear certain matters.
i) E.g. a statutory probate court has exclusive and limited jurisdiction to hear probate matters and the AIC is irrelevant.
ii) Federal courts are also limited jurisdiction. Require federal question or diversity w/ AIC.
e) Residual jurisdiction – A court that has jurisdiction over any case that any other court cannot hear has residual jurisdiction. This is what the DC have. It is a “catch all” – If you cannot find jurisdiction in one of the other courts, the DC will have jurisdiction.
9) Transfer of Cases
a) Ability to “Exchange Benches” – An ability for a judge to send a case to another bench w/ the consent of the transferee judge.
b) Multi-district litigation (MDL) – (as of 2003) – When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.
i) Allows similar cases from different counties to be pulled together into one county for pretrial motions even though venue may not be proper in that county. (judicial efficiency basis) After prêt-trial motions are heared, the MDL judge sends the cases back to their proper venues where lawsuit was filed for trial.
ii) A five justice (appointed by supreme) panel makes the decision to consolidate.
iii) MDL court hears pre-trial motions, but do not try the case – A Summary judgment is a pretrial.
iv) Federal courts conform to this practice to consolidate cases across states.
10) Specialized SMJ:
a) Eminent Domain – power of government to condemn private property for public use.
i) AIC is irrelevant, and only the type of case is concerned.
ii) DC and CCL have concurrent jurisdiction for these cases. CCC does NOT have Jurisdic.
iii) If a case for eminent domain is pending in a CCC and it cannot be fully adjudicated in that court, it must be transferred to DC.
11) Probate Court Issues
Statutory probate courts (“SPC”) – a special kind of court created by the