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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89139
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I just got served papers for a civil suit filed against me

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I just got served papers for a civil suit filed against me by an ex-girlfriend for stillbirth medical bills. I questioned whether I was the father due to some discrepancies in her pregnancy timeline. I was named the father in paperwork, but have never signed anything myself. The stillbirth was two years ago, and she has suddenly asked me for money maybe once every six months, claiming she would take me to court and now she actually filed the suit. I live in Texas.
I am thinking about countersuing for harassment, libel and/or slander. One incident occurred when her and her father were down the street spying on our house when we weren't there and a neighbor called the cops. I am sure there is a police report. Also, she has showed up at my work twice suddenly demanding money and telling them to fire me. Further, if she doesn't have paternity proof or it is proved not my child, can I win a countersuit for her claiming I am the father in the obits, social media, word of mouth, for libel/slander for knowing that I am not the father and claiming that anyway?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. This is very unusual. Can you please tell me - looking through the petition - what cause of action is she claiming?

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state.

Is she alleging negligence? Breach of contract? Something else?

OR, is this in family court (what does the petition say)?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

I have looked through it again and I am not sure. The title says it is a "Small Claim Citation" in the state of Texas, so I do not believe it is in family court. I do not see any cause of action listing, but she did write a long paragraph herself, is that what you are looking for? Another question, my name is XXXXX XXXXX the paperwork. My middle initial is incorrect, can I do something to delay or nullify the suit because of that? On the petition, it says "is justly indebted to the Plaintiff in the sum of 4135" (or half of the total bills). She says in the paragraph that I agreed to pay exactly half, but I don't see any of the buzz words you listed such as breach of contract or negligence. Also, about 2,000 of the 4135 is due to funeral expenses as she gave it a funeral.

Expert:  Ely replied 1 year ago.
J,

Ah, okay. We are getting closer. Just a few more questions:

1) Look at the last few pages (if there is more than one page). Did she file this herself, or, did an attorney file this for her?

2) Do you see the words JUSTICE OF THE PEACE anywhere on the paperwork?
Customer: replied 1 year ago.

Yes, Justice of the Peace is listed under the judge's name and the court information. She is listed as the plaintiff in multiple places but I do not think there is a lawyer listed anywhere. A notary is listed and signed and stamped the paperwork, might that also be her lawyer? She filed this petition on May 16. I believe that is the exact day that she showed up again, saying if I didn't repay her in thirty days she would take it to court. She got married in March, but her maiden name is XXXXX XXXXX everywhere even though she started all this paperwork after she was married, can I do anything about this? Due to the couple name discrepancies and some typos in her statement, I am assuming she filed all this herself.

Expert:  Ely replied 1 year ago.
J,

I think I know what is going on now. I am going to type out the answer - please allow me one second to do so, so I can address multiple issues here.
Expert:  Ely replied 1 year ago.
J,

As stated before, to sue in a court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. This is also true of the Justice of the Peace Court (small claims court in Texas).

However, many people do not realize this, and they simply put whatever they want into the petition, and send it off, hoping that the Judge will see whatever it wrong and find in their favor at the hearing.

And this is true, because the Judge can "develop" a small claims court case, i.e. put it into a legal perspective.

Now having said all that, let us delve into your matter.

Filing an Answer
Someone in your situation needs to file an ANSWER to as not to default. If you need a sample answer, please REPLY and let me know. This has to be sent to the Court (mail or drop off), and to the other party (certified mail), within a certain amount of time so as not to default.

What is Going On?
The issue here with her petition is multiple:

1) She does not state any cause of action. This in itself is grounds for dismissal;
2) Even if she did have a cause of action, it would not hold up. There has been no agreement by you to pay for the stillbirth medical costs, so no "breach of contract." Tex. Family Code does not obligate you to do so, and even if it did, she'd need to file in District Family Court, and not JP Court.

Ergo, this matter is likely to be dismissed at hearing.

Counter-sue
You may counter-sue for costs and possibly damages, but Justice Courts do not have jurisdiction of suits to recover damages for defamation.

I hope this helps and clarifies. Let me know if you need to see a sample answer and demand for costs.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89139
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 6 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks for your information, that is very encouraging. I do have some more questions.


I have to file an answer by the end of next week. Can you give a few of the samples that you mentioned? Will they give me some options when I file an answer, such as "contest" or something like that, or do I just basically need to show up to acknowledge that I am being sued?


To dismiss the case, is there anything I can do to avoid a hearing due to the two reasons you mentioned? In other words, is it possible to dismiss this case as soon as possible or before the hearing? Or will we both have to actually appear in court to get a decision?


Can you give me some of the code numbers where you found this information for future reference? If possible, one each for...1) you have to state a cause of action 2) Texas family code says I do not have to pay stillbirth expenses 3) this has to be filed in District Family Court.


If this gets dismissed, can she file somewhere else or is that not possible? Is there anything I can do about the name discrepancies I mentioned? Her maiden name is listed and my middle initial on the petition is incorrect.


Can you give any more information on the matter of paternity? I have never given my DNA and also, I believe that she does not have DNA from the baby, or else she probably would have sued me a long time ago.


Can you give me a little more information on the countersuit matters? Are they legitimate? What court do I file them? Are they winnable? How much money should I ask for? Any other advice, such as your "cause of action" tidbit? I realize that slander and lible are pretty unlikely for me to win, but I feel that a harassment suit is very winnable, since I can find a police report of the incident and find some old threatening emails or phone messages. In reality, I probably would not take them all the way to court, but I am just thinking about threatening her with a countersuit to make her drop the suit against me.


Thank you so much for your help!

Expert:  Ely replied 1 year ago.
J,

To dismiss the case, is there anything I can do to avoid a hearing due to the two reasons you mentioned? In other words, is it possible to dismiss this case as soon as possible or before the hearing? Or will we both have to actually appear in court to get a decision?

One has the option of filing for a Motion for Summary Judgment, but honestly, it is best to simply wait to the hearing and have it dismissed there - less trouble.

If this gets dismissed, can she file somewhere else or is that not possible?

Not really possible.

Is there anything I can do about the name discrepancies I mentioned? Her maiden name is listed and my middle initial on the petition is incorrect.

These minor issues do not affect the overall matter.

Can you give any more information on the matter of paternity? I have never given my DNA and also, I believe that she does not have DNA from the baby, or else she probably would have sued me a long time ago.

This can be addressed in the sample answer.

Can you give me a little more information on the countersuit matters? Are they legitimate? What court do I file them? Are they winnable? How much money should I ask for? Any other advice, such as your "cause of action" tidbit? I realize that slander and lible are pretty unlikely for me to win, but I feel that a harassment suit is very winnable, since I can find a police report of the incident and find some old threatening emails or phone messages. In reality, I probably would not take them all the way to court, but I am just thinking about threatening her with a countersuit to make her drop the suit against me.

This can be addressed in the sample answer.

I have to file an answer by the end of next week. Can you give a few of the samples that you mentioned? Will they give me some options when I file an answer, such as "contest" or something like that, or do I just basically need to show up to acknowledge that I am being sued?

See below.

CAPTION & PARTY NAMES (simply copy her heading)

DEFENDANT'S ORIGINAL ANSWER

NOW COMES Defendant, ____________, named Defendant in the above-entitled and numbered cause, and files this Defendant’s Original Answer, and shows the Court:

FACTS

1. (your version of the events, also mentioning that you have never been adjudicated as the father of the child formally or via ANY DNA test).

GENERAL DENIAL

5. Defendant pleads general denial and demands strict proof of Plaintiff’s allegations as afforded to Defendant under the Texas Rules of Civil Procedure.

LACK OF CAUSE OF ACTION

6. Plaintiff’s petition does not state a specific cause of action. Defendant seeks general dismissal of the matter under Texas Rules of Civil Procedure 90 and Martin v. Hunter, 233 S.W.2d 354, 355 (Tex. App. – San Antonio 1950, writ ref’d n.r.e.).

MOTION FOR SANCTIONS

7. Defendant argues that Plaintiff’s filing of this matter is improper and not “warranted under existing law” and frivolous as described under §10.001(1) of the Texas Civil Practice & Remedies Code; and “groundless” as described in §9.001 of the Texas Civil Practice & Remedies Code. Defendant asks this Honorable Court to impose sanctions unto Plaintiff for which this Honorable Court has inherent power to do so under the Texas Civil Practice & Remedies Code and the Texas Rules of Civil Procedure, including but not limited to attorney fees and reasonable expenses.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nothing herein, that Defendant be awarded the relief prayed for hereinabove, and for such other and further relief, special or general, legal or equitable, as may be shown that Defendant is justly entitled to receive.

Respectfully submitted,

Signature

Name


Again, this is just a sample!
Customer: replied 1 year ago.

Thanks again, I believe I may have replied with the same questions again, but don't worry about that. Have a good weekend.

Expert:  Ely replied 1 year ago.
Hello friend,

That is okay - no worries. Let me know if you need anything else.
Customer: replied 1 year ago.

What court should I go to countersue? Is the cause of action just harassment? You said I can't get any damages in Justice Court for defaming, but can I still sue for harassment in the same Justice Court where she has sued me?

Expert:  Ely replied 1 year ago.
J,

What court should I go to countersue?

Here, your best bet is to simply ask for damages in your answer (see example) and have it settled at the hearing. But if you wishes to counter sue, see below.

Is the cause of action just harassment? You said I can't get any damages in Justice Court for defaming, but can I still sue for harassment in the same Justice Court where she has sued me?

If you really wanted to, you may COUNTERSUE in the SAME matter, via the Answer, and have the Answer entitled Defendant's Original Answer and Counter-Suit.

The action may be for abuse of process. In order for a person to recover for abuse of process, he must plead and prove three essential elements: 1) that the defendant made an illegal, improper, or perverted use of the process, a use neither warranted nor authorized by the process; 2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and 3) that damage resulted to the plaintiff as a result of such irregular act. J. C. Penney Co. v. Gilford, 422 S.W.2d 25, 31 (Tex.Civ. App.—Houston [1st Dist.] 1967, writ ref'd n. r. e.).

This is the closest fitting action. "Harassment" is not an action in civil court.

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