012 Civpro Essays

Front 1

W statements made to a lawyer subject to discovery?

Back 1

Statements of interviews with potential W's are attorney work product and cannot be discovered

UNLESS

opposing counsel can show SUBSTANTIAL NEED and UNDUE HARDSHIP in getting information by other means

Front 2

motion to amend--π

Back 2

If the π sues the wrong ∆, π should within 120 days of commencement amend the compl.; add and serve the correct ∆.

-service will conclusively establish that ∆ had notice of mistake within the timeframe.

-if SOL has expired, the amendment relates back to the date the original compl. was filed.


π may add a ∆ after the SOL has run if the new ∆ had actual knowledge of the initial commencement of the lawsuit and knew, or should have known, but for the mistake of the plaintiff that ∆ would have been named an original party.

--freely granted
-if a claim in amendment arose out of the occurrence in the original compl. the amendment relates back to the date of the original compl.

Front 3

comp. fault savings statute

Back 3

if ∆ names or identifies a comparative tortfeasor in the answer, π can amend within 90 days to add tortfeasor,

even though SOL has run.

Front 4

wrongful death

Back 4

state-owned facilty-->TN claims commision

private ∆--circuit court where ∆ resides or where the action arose

Front 5

UCC sales

Back 5

chancery court has jurisdiction to hear cases requesting relief in law and in equity

Front 6

venue--tort

Back 6

filed in county where ∆ resides or cause of action arose

Front 7

Summary Judgment**

Back 7

no genuine issue of material fact and ∆ is entitled to judgment as a matter of law.
1. ∆ affirmatively negates a π's claim
or
2. ∆ shows π cannot prove an essential element of claim at trial.

-must be filed 30 days before the hearing
-nonmoving party must respond in 5 days.

Front 8

detainer actions

Back 8

used to collect unpaid rent
-∆ has 30 days to answer

Front 9

eviction

Back 9

landlord must give notice
-civil warrant for eviction are filed in general sessions or circuit court

Front 10

General Sessions court jurisdiction

Back 10

claims up to 25,000 including punitive claims, plus attys fees

-can hear case to replevin personal property up to $25,000

Front 11

appeals--general sessions/circuit court

Back 11

heard de novo

appeals from general sessions court are heard in circuit court

Front 12

zoning board decisions

Back 12

appealed to chancery court

-court should overturn the board's decision only if there is no evidence to support it or the board acted illegally

constitutional challenges can be filed in circuit, chancery, or fed. district court

delclaratory judgment actions usually used to challenge constitutionality of statutes

Front 13

judgment lien

Back 13

procured by recording a certified copy in the lien book at the register's office where the land is located.
-enforced by directing sheriff to seize judgment debtor's property.

-executions on liens should be obtained from the court in which the judgment was entered.

perfected for a maximum of 10 years from judgment entry.

if judgment is extended lien is also extended.

Front 14

How many peremptory strikes is each side entitled to in a jury trial?

Back 14

Generally, in a jury trial in Tennessee, the prosecution and the defense are each allowed four peremptory strikes per party with a maximum of eight strikes for anyone side. If the case involves a charge punishable by imprisonment for more than one year (a felony), each side is entitled to eight peremptory challenges per defendant.

Front 15

When may a jury verdict be set aside on appeal?

Back 15

Only ifthere is no material evidence to support the verdict.

Front 16

In what court is a divorce and custody action** properly fIled?

Back 16

Either the circuit or chancery COUIt in the county where the defendant resides or where the plaintiff and defendant resided at the time ofseparation. The same court that grants the divorce may determine custody.

Front 17

How does a defendant recover from a third party who has not been sued by the plaintiff but from whom the defendant has a right of contribution?

Back 17

he defendant files a third-party complaint to bring the third party into the action filed by the plaintiff. The defendant does not need court permission to do this if she files the third-party complaint within 10 days after she files her original answer.

Front 18

Can a plaintiff dismiss her case under the Tenn Rules of Civil Procedure? If so, how would that be accomplished?

Back 18

Nonsuit is not available as ofright in class actions, receiverships, stockholders' derivative actions, will contests, or any case while the defendant'smotionforsummaryjudgmentispending. Iftherightexists, the right ends only when the court acts on a motion for directed verdict or when the jury retires to consider its verdict. A third nonsuit is now a bar to relitigation.
Under TN RuIe 4 I, a nonsuit before trial is accomplished when the plaintiff files a written notice of dismissal, but during trial, it is accomplished by an oral notice in open court. In any event, an order of dismissal must be entered by the court.

Front 19

If plaintiff's lawyer intentionally causes delay of prompt service of a summons, what should defendant's attorney do?

Back 19

Defendant's attomey should file a motion to dismiss for insufficiency ofservice ofprocess coupled with a motion for summary judgment raising the statute of limitations as a defense, if the statute has run. If process is not issued within 90 days of filing, or if it is not served within 90 days ofissuance, the plaintiffcannot rely on the original commencement date to toll the statute unless she "continues" the action by obtaining new process within one year from the issuance of the previous process or, ifthere was no previous process, within one year ofthe filing ofthe complaint and summons. The Federal RuIes generally allow 120 days for service.

Front 20

What is the limitations period for tortuous inducement of breach of contract?

Back 20

The applicable limitations period for an economic loss lawsuit is three years.

Front 21

When a contract claim and a tort are sued upon, does it matter whether the claim is filed in circuit court or chancery court?

Back 21

Yes. Although the contract claim is within the subject matter jurisdiction of the chancery court, the tort claim cannot be adjudicated in chanceryovertheobjectionoftheadverseparty. Ifobjectionismadeto subject matter jurisdiction by motion or answer, the chancellor need not dismiss the action, however. TIle chancellor may simply transfer the suit to the proper court should that become necessary.

Front 22

What land of diversity is required for a defendant to remove a matter to federal court?

Back 22

Complete diversity between all plaintiffs and all defendants is required. Even if complete diversity existed, the removal statute provides that removal is impossible if one defendant is a citizen of the forum state.

Front 23

With requests for production of documents and interrogatories, which party has the burden and what if the request is for voluminous records?

Back 23

TIle burden on each party is equal concerning the interrogatory response. When answering an interrogatory requires a party to inspect its business records and the burden of inspecting the records would be no greater for the other party to inspect, the party served may merely allow the other party to inspect its business records.

Front 24

Are expert reports discoverable in Tennessee?

Back 24

Expert reports are not discoverable i f the expert is a consultant who will not testify at trial. lfthe expert is to be a witness at trial, written reports are not necessarily discoverable. Discovery of experts to be called at trial is available only by interrogatory (not production of documents) or deposition.

Front 25

Are trial preparation materials discoverable?

Back 25

Trial preparation materials are discoverable on a showing of substantial need for preparation and an inability to obtain equivalent material without undue hardship.

Front 26

where would suit be tiled when the claim falls under the Governmental T ort Liability Act?

Back 26

there is a statutory right to a jury where a city or county is sued as a comparative tortfeasor (so circuit); otherwise, GTLA suits tried before Claims Commission

Front 27

SOL-6 months

Back 27

slander

Front 28

SOL 1 year

Back 28

personal injury,
wrongful death,
worker's comp
professional malpractice
libel
malicious prosecution
consumer protection act
false imprisonment
breach of fiduciary duty
Tn civil rights
malicious prosecution

Front 29

SOL 3 years

Back 29

property damage, economic loss (from fraud, neglect, misrep), conversion

Front 30

SOL 6 years

Back 30

services or realty
forcible entry & detainer
promissory note from due date

Front 31

venue for actions against state and its officers

Back 31

the official residence of the officer

Front 32

venue for governer and ag

Back 32

davidson county

Front 33

court for filing actions against gov

Back 33

circuit or chancery

Front 34

URLTA

Back 34

general sessions or circuit court where the property is located

Front 35

TN long arm statute

Back 35

PJ can be obtained over a ∆ outside the state by serving summons and complaint on the TN Sec. of State.

PJ is proper if the ∆ purposefully transacted business in TN and cause of action arose out of business transacted

venue typically the county where π resides but can be any county.

includes tort committed outside tn that caused injury in tn.

TN can obtain jurisdiction on any other basis consistent with DP

Front 36

removal to federal court

Back 36

diversity of citizenship and value of case in controversy exceeds $75,000

Front 37

Venue

Back 37

where accident occurred, ∆ lives or where ∆ can be found/served.

∆ must object in its first answer or motion or the objection will be waived.

Front 38

Service of process

Back 38

summons and compl. must be received within 90 days of issuance.

if not served, π cannot rely on original commencment to toll SOL
UNLESS
π continues action by obtaining issuance of new process within 1 year from issuance of previous process or, if no process, within 1 year of filing the complaint.

Front 39

∆ evading service

Back 39

service can be effectuated by any person of suitable age and discretion residing in ∆'s dwelling house.

must fill out person's name on the return. persns 13 and up can be served

Front 40

unliquidated damages

Back 40

no jurisdiction for chancery court

Front 41

specific performance

Back 41

in the circuit court of county where the land is located.

Front 42

venue-worker's comp

Back 42

where employee resided or where the injury occurred.

Front 43

jury demand chancery court

Back 43

jury trial is available in chancery court if timely made

use of jury is limited to a fact of material dispute

jury must return a special verdict and the verdict is binding

Front 44

In most civil actions, j is concurrent

Back 44

suits filed in the wrong court will be transferred, not dismissed

Front 45

SOL 2 years

Back 45

will contest must be filed within 2 years from entry of Order admitting will to probate

Front 46

SOL 4 years

Back 46

action for breach of K of goods (UCC) within 4 years from initial sale
OR
within 4 years from breach of an express warranty for future performance

Front 47

STATUTES OF REPOSE
(extinguish COA altogether and discovery rule inapplicable)

Back 47

Consumer Protection Act claims expire in 5 years

PL COA expire in 10 years (exceptions: asbestos and silicone breast implants)

Front 48

Statute of Repose 3 years:

Back 48

medical malpractice
breach of corporate fiduciary duty

Front 49

"Safe Harbor" provision regarding challenged certification of complaint by atty

Back 49

offending L must be sent notice w/out court involvement and if challenged paper not withdrawn or amended within 21 days, motion for sanctions filed (which are discretionary)

Front 50

JOINDER

Back 50

Discretionary: if claims for relief involve BOTH (1) same transaction/ occurence and (2) comon Qs of law or fact

Front 51

CLASS ACTIONS
numerosity, commonality, technicality, adequacy (to rep class)
**no class action in Consumer Protection Act**

Back 51

taxpayers (sep suits may result in inconsistent results)
civil rights (injunctive/ declaratory relief sought)
R.23(b)(3)--common Qs of law or fact, "fair and efficient", potential mbrs given ability to opt out

Front 52

INTERPLEADER

Back 52

stakeholder (life insurance co), pays benefist into court and is discharged--leaving competing Cs to fight it out

Front 53

INTERVENTION

Back 53

statutorily mandated if property rt may be impaired

permissive in common Q of law/ fact

if constitutionality is at issue, notice to state AG required

Front 54

MOTION TO DISMISS

(absent waiver of service: 30 days from service)

Back 54

Grounds:
1. lack of SMJ
2. lack of PJ
3. improper venue
4. insufficiency of process
5. insufficiency of service
6. failure to state a claim upon which relief can be granted (R.7.02)

**if motion served before Anser, inclue all possible gounds, otherwise waived, except SMJ or failure to state**

Front 55

MSJ

**serve 30 days before motion hearing day**

Back 55

movant serves affidavits as exhibits with motion; must show affiant is a competent witness having personal knowledge of facts admissible into evidence--citations in Motion to correspond with "issue of material fact"

Front 56

MSJ standard

Back 56

SJ granted if (1) no genuine issue of matieral fact and (2) moving party entitled to judgment as a matter of law

Front 57

MSJ standard changes effective July 1, 2011 (legislative overruling of Hanaan)

Back 57

moving party shall prevail if either:
submits affirmative ev that negates an essential element of P's claim
OR
demonstrates to the court that P's ev is insufficient to establish an element of P's claim

Front 58

MSJ in Employment Discrim/ Retaliatory Discharge
(overrules TNSC in Tractor Supply case)

Back 58

if D produces nondiscriminatory evidence, the presumption of discrim/ retaliation is rebutted, and burden shifts back to P

Front 59

Conforming to Evidence

Back 59

if immaterial ev admitted without objection, pleadings treated as amended EXCEPT verdict in TN cannot exceed amount sued for

Front 60

If D names or identifies a comparative tortfeasor in its Answer

Back 60

P acn amend within 90 days to add that tortfeasor even if SOL has expired

Front 61

COUNTERCLAIMS

**compulsory (same transaction/ occurrence as Complaint

Back 61

Compulsory (same transaction/ occurrence as Complaint)--must be pleaded in Answer or waived

Front 62

CROSS-CLAIMS

Back 62

Co-Ds can sue one another on claims related to P's Complaint

Front 63

IMPLEADER
(i.e., Third-Party Claims)

Back 63

D can implead a 3P who has contarcted to indemnify D

Front 64

Rule 26 Disclosures (pertaining to expert witness)

Back 64

1. identity
2. sm of testimony
3. opinions
4. grounds for opinions
5. qualifications
6. publications
7. other testimony
8. compensation

Front 65

Expert Witnesses

*TN does not distinguish experts who are not subject to trial subpoena. An expert's depo taken for "discovery" cannot be used as substantive proof at trial under former testimony hearsay exception

Back 65

Depos can be used to discover info from opposing experts expected to testify at trial

consulting experts not expected to testify need not be identified

Front 66

Rqsts for Admission

failure results in conclusive admission of requested fact

Back 66

TN requires discovering party to call to court's attention pretrial in order to use this rule

Front 67

Objections in Depos

Back 67

only objections to form fo Qs or conduct of parties must be made at depo; others may be raised for the first time at trial

Front 68

Use of Depos at Trial

Back 68

1. former testimony exception if deponent unavailable (including 100+ miles from courthouse)
2. admissions exception if deponent is party
3. impeachment by inconsistent stmt if deponent testifies

Front 69

Sanctions for Failure to Answer Interrogs or Produce Docs

Back 69

dismissal of Complaint with Prejudice OR Default Judgment (or can exclude evidence or take facts as established)

Front 70

NONSUIT (crucial in TN, as can be taken last minute)

Back 70

Fed Court: before Answer or SJ Motion served
TN: before jury retires/ judge starts dictating opinion from bench; must have judge's permission if sj is pending

Front 71

Nonsuit in relation to Saving Statute

Back 71

may commence within one year.

**P can use 1 year saving statute only one time!!**

Front 72

Sequestration of Witnesses

*request before opening stmts*

Back 72

Can Remain:
1. parties (including person designated as "party" for corporate or gvt entity)
2. experts (discretionary)
3. rebuttal witnessse MUST be sequestered unless surprise

Front 73

MOTION FOR DIRECTED VERDICT
(jury trials)

*court construes in P's favor all evidence*

(necessary in order to then file for JNOV)

Back 73

At cloase of P's proof and, if overruled, renew at close of all proof

granted if reasonable minds could not differ as to conclusion to be drawn from evidence

Front 74

Interest on Judgments

Back 74

10% from date jury returns verdict or judge announces decision

Front 75

Motion for a New Trial

30 days from judgment

Back 75

condition precedent to appeal and must contain ALL grounds for appeal

Front 76

Service of Process in TN

Back 76

requires service by personal delivery or, alternately, to an authorized agent

Front 77

Interlocutory Appeal

purpose: to prevent needless, expensive, and protracted litigation

Back 77

appeals from interlocutory orders via joint permission of the Circuit Court and the TN Ct of Appeals

Front 78

tortious interference with K

Back 78

treble damages COA in TN

Front 79

TN has a comprehensive long arm statute that has been liberally construed to extend as far as due process allows

Back 79

1. per case law, if tortious action in TN or causes injury in TN
2. nonresident does business in TN

*BUT, if party's r'shp with TN is so slight as to offend traditional notions of fair play and substantial justice, no pj

Front 80

Objection to Venue

Back 80

waived if not raised in Answer or pre-Answer motion

Front 81

Compulsory Counterclaims

in TN, cc is not compulsory if based in tort

Back 81

1. arises out of same tran/ occ
2. does not rqe presence of 3P

Front 82

Choice of Law for Torts

Back 82

TN follows 2nd Rstmt: law with most significant rship to occurrence and parties

Front 83

Choice of law for Contracts

Back 83

validity in question = law of place of making of k

performance issue = law of place of performance

Front 84

Diversity Citizenship (for purposes of removing/ filing in federal court)

Back 84

must exist AT COMMENCEMENT

*"Plaintiff" in a med mal WD lawsuit is SS*

Front 85

TRCP on process

Back 85

if counsel for P intentionally causes delay of prompt issuance or service, filing of the complaint is ineffective

Front 86

Unless evading service, delivery must be personal

Back 86

If evading service, may leave a copy of summons and complaint at D's home or usual place of abode with an identified resident (place of business/ secretary insufficient)

Front 87

NONSUIT requirements

Back 87

must send to all Ds:
1. notice
2. order of dismissal
3. copy of complaint

Front 88

Procedure for Seeking Punitives:

D moves for bifurcated trial

Back 88

1. first phase = jury verdict as to liability of D, amt of compensatory dams, whether punitives proper (C&C as stdrd of proof)
2. proof as to punitive amt (PoE as stdrd of proof)

Front 89

Criteria to be considered in second phase of trial seeking punitives (per TNSC):

Back 89

D's wealth, effect of D's conduct on your interests, D's awareness, D's profit, D's attempts to settle or mitigate

Front 90

Procedure in moving for SUMMARY JUDGMENT
(*TNSC recently overruled Hannan and TN now requires P to "put up or shut up"...easier for D*)

Back 90

The new statute will allow the Defendant to prevail on a Motion for Summary Judgment if he:
1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or (2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim (Hannan added "at trial")

Front 91

effect of new SJ standard:

Back 91

under the new statute, if a Defendant can show after discovery that the Plaintiff does not have sufficient evidence to establish one of the elements of their claim, the burden will shift to the Plaintiff to “put up” the proof or summary judgment will be granted. Therefore, the new standard will hopefully weed out frivolous claims prior to the trial phase of litigation and deter the filing of the more difficult cases to prove.

Front 92

Ownership of personal property in TN will not, by itself, establish min contacts with TN for a coa unrelated to ownership of the property)

Back 92

a tort with regard to that property, however, will

Front 93

Common County Rule

Back 93

venue proper when a P and a D reside in same county.

Front 94

Supplemental Jurisdiction

Back 94

fed court allowed to decide claims of Ps who are seeking less than 75k (when joined with Ps seeking more) as long as their presence would not destroy complete diversity

Front 95

TN Long Arm Statute

encompasses a tortious act committed in a foreign state that results in injury in TN

Back 95

i.e., exposure to mold in CA but illness occurs in TN

Front 96

in establishing minimum contacts for PJ purposes:

Back 96

presence coupled with relationship of contact with rise to coa (close connection bt contact and coa)

also, transacting business within the state = purposefully availing self to benefits and protections of TN law

Front 97

Ownership of personal property in TN will not, by itself, establish min contacts with TN for a coa unrelated to ownership of the property)

Back 97

a tort with regard to that property, however, will

Front 98

Common County Rule

Back 98

venue proper when a P and a D reside in same county.

Front 99

Supplemental Jurisdiction

Back 99

fed court allowed to decide claims of Ps who are seeking less than 75k (when joined with Ps seeking more) as long as their presence would not destroy complete diversity

Front 100

TN Long Arm Statute

encompasses a tortious act committed in a foreign state that results in injury in TN

Back 100

i.e., exposure to mold in CA but illness occurs in TN

Front 101

in establishing minimum contacts for PJ purposes:

Back 101

presence coupled with relationship of contact with rise to coa (close connection bt contact and coa)

also, transacting business within the state = purposefully availing self to benefits and protections of TN law

Front 102

ERIE DOCTRINE

Back 102

in diversity cases, fed cts required to apply substantive law of state in which they sit (including that state's choice of law rules)

Front 103

Choice of Law as to SOL:

Back 103

forum always applies its own procedural law

Front 104

Choice of Law as to Substantive Law:

Back 104

TNSC held that in PI claims, subst law of the state having the most significant relationship to the occurrence AND the parties

Front 105

In COL questions, explain procedural v. substantive distinction, then

Back 105

argue each point under both theories according to party's interests (factual analysis for "most sig rshp")

Front 106

Procedural Laws:

Back 106

purpose is to promote the fair, efficient and reliable conduct of litigation

Front 107

Substantive Laws:

Back 107

concerned with issues such as the extent of a party's liability

Front 108

"most significant relationship" for CoL purposes =

Back 108

TNSC has held that, as a general rule, state where injury occurred is the state of the most sig relationship to occurrence and parties