Law Blog

Plea to the Jurisdiction – The proper direct attack for want of subject matter jurisdiction is a “plea to the jurisdiction,” not a “motion to dismiss” as in federal court.  A motion for summary judgment may also be used to raise a lack of subject matter jurisdiction.  Plaintiff can appeal from a trial court’s determination of lack of subject matter jurisdiction and the resultant dismissal and, if successful, the appellate court will remand for a full trial.  If however, the tiral court erroneously asserts jurisdiction, defendant’s only remedy is an appeal after final judgment.

No waiver – Subject matter jurisdiction cannot be waived.  It can be raised on the first time in appeal.  A court without jurisdiction may not transfer the case, but can only dismiss so that the case can be refiled.  Subject matter jurisdiction is not limited to the amount in controversy.  A court lacks SMJ when the plaintiff lacks standing, when the suit is not yet rip for decision, and when the defendant is immune from suit.

Texas civil procedure law features 5 zones of evidence. Zone 1 is no evidence or only a scintilla of evidence while zone 5 is conclusive evidence. Both enable a court to issue summary judgment.

Zone 1 – No evidence. Did the movant in a sj that the person with BOP has no evidence or no duty? Generally, this means there will be a judgment for the non-movant. Ex P has burden and sues but trial court has no evidence, judgment for D

Zone 5 – Conclusive evidence. P comes in with conclusive evidence and if trial court agrees they enter in a judgment for the person with the burden

Zone 2 – Insufficient evidence – some evidence but not enough to support a judgment for the person with the bop. Remedy here is new trial if there was actually some evidence on appeal. 2 or above so it gets to go to jury. If jury finds for the P. Then the other side comes in and says there was insufficient evidence to support a judgment for P. If judge agrees, grants a new trial.

Zone 3 – Jury will not be reversed.

Zone 4 – Great weight of preponderance. The jury finds against the person with the BOP. Really what they’re saying is there is no or insufficient evidence. P argues that this case is really a 4 or 5. You have to ignore jury’s verdict, you have to enter a judgment for me. If judge finds the verdict is against weight of evidence, then can order a new trial.