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103 Cards in this Set

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Civil Procedure: Out of State Service
General Long arm statute
Must allege: D is Non resident
has NO regular place of biz or person in charge
has NO registered agent
has been "doing business" in TX
Civil Procedure: Successful service of process on out of state D requires:
certificate of service from Sec of State showing date received, date process forwarded, and date recieved the return receipt, filed with clerk of court to support default jdugemnt
Civil Procedure: Suit on sworn account requirements
erified pleading
itemized statement of goods/service sold
reveal offset payments
be suported by affidavit that claim is just and true and within affiant's knowledge
Civil Procedure: Protest to suit on sworn account
verified denial required (failure to file = NO denyuing claim)
Civil Procedure: Injunction pleading requirements
probable right ot relief
probable injury
harm is imminent
without injunction, harm is irreparable
no adequate remedy at law
Civil Procedure: Personal J/d
adequate grounds
physcial prsence in state,
d is a domiciliary
D consents
Certain minimum contacts
Civil Procedure: Certain mimimum contacts test: 3 elements
non resident D must PURPOSEFULLY do som act in TX
Cause of action must srise from the transactoin
AND not offend traditional notions of FP and Sub justice
Specific j/d
But general j/d if there are SUBSTANTIAL AND SYSTEMATIC contacts with TX.
Civil Procedure: Service of process: methods in order of perference
Personal deliovery or mail- with return
Substitute: if can't by mail or in person, motion for service on someone at home
last: publication
Civil Procedure: service on corp's
service on registered agent; president; any VP or Sec of State if no registered agent.
Civil Procedure: Defendnat's Pleadings:
Time to respond
answer filed by 10am of first MONDAY after 20 days from date D served with process
Civil Procedure: contents of effective service
citation and petition
Civil Procedure: Defendnat's Pleadings:
Order of pleadings: First thing potentially filed
Special Appearance MUST be filed first or D submits to court j/d
Civil Procedure: Defendnat's Pleadings:
Waht can D do before filing a Special appearance?
make discovery, subpeona witnesses, and appear for the special appearance hearing
Civil Procedure: Defendnat's Pleadings:
assertions in speacial appearance
NOT amenable to suit in TX and deny allegations
PLEADING must be VERIFIED
Civil Procedure: Defendnat's Pleadings:
venue protest: venue is proper in:
county where events give rise to claim occured
if D is natural person, in D's residence county
If not natural person, in county of principal office in state
IF NONE of these, where P resided at time of accural of action
Civil Procedure: Defendnat's Pleadings:
Mandatory Venue
actions on land in hte county where land is
Civil Procedure: Defendnat's Pleadings:
Motion to Transfer Venue
Order of pleading..
After Special appearance, before anything else. Failure waives venue protest.
Civil Procedure: Defendnat's Pleadings:
Motion to Transfer Venue contents:
1. venue is NOT proper where suit filed;
2. deny any venue facts in P's petition which D wishes to contest
3. name proper county of venue with facts supporting
4. id section of venue statute relied on
5. request transfer to that county.
Civil Procedure: Defendnat's Pleadings:
MOtion to Transfer Venue:
Burden
Verified?
Timing on a hearing
Burden on D protesting
NOT verified
45 days notice prior to hearing
Civil Procedure: Defendnat's Pleadings:
Motion to Quash
purpose
portest invalid service
If successful, gets you the 20 days + Monday 10a as you are now served...
Civil Procedure: Defendnat's Pleadings:
Pleas in Abatement
purpose
Challenges defect in party (capacity - nonjoinder) OR
defect in allegagtion ( pendancy in another court with same parties)
Civil Procedure: Defendnat's Pleadings:
Special Exception
Challenges the PLEADINGS - No such cuase of action
Vagueness, ambiguity
Must be in writing, call for hearing and get a ruling on record.
Civil Procedure: Defendnat's Pleadings:
General Denials
Purpose and effect
available
Puts the P to proof in all matters denied. P must prove facts alleged in petition AND D may introduce evidence tending to rebut facts offered
Civil Procedure: Defendnat's Pleadings:
Order of all filoings
Special Appearance
Motion to Transfer Venue
Special Exception
General Denials
A consolidated filing is permitted, if these things correctly appear in this order in consolidcation
Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court
REquriements for D
Must could have origianlly brought there: Federal Q or Diversity (complete and AIC is > $75k - removing D can't be TX resident)
Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court
Residency determination
INdividial: domicile
Corporation: place of incorp + principal place of Biz (nerve center or primary place of activity)
Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court
Time issues
Must be done within 30 days of petition (or of becoming later permitted). Can't be done if more than 1 year into the case.
Civil Procedure: Defendnat's Pleadings:
Removal to Federal Court
Procedure
Verfied NOTICE in federal Dsitrcti court
signed
short statement of why can be removed
filed within 30 days of state court petition (or when first becomes removable)
Notice given to all adverse parties
file notice with state court
ALL D's must consent to removal
Civil Procedure: Defendnat's Pleadings:
Remand from Federal Court
P must challenge within 5 days of receiving notice
allege NO federal j/d OR defect in removal procedure
Civil Procedure: Joinder
Compulsory Counterclaim
in j/d of court
arises out of same transaction/occurrence or series
not subject of pending action
doesnt require TP over whom no court j/d
Civil Procedure: Joinder
Permissive counterclaims
Anything a D could have brought against hte P in a separate action.
Civil Procedure: Joinder
Permissive joinder of parties
all joined if is asserted jointly, severally, or in the alternative
arose from same transaction, occurence or series
common questions of law and fact
Civil Procedure: Joinder
IMPLEADER and TPP
Allows a D to act as a TP Plaintiff and bring in a party they feel will indemnfy them
TPP must serve citation and petition on TP D.
Civil Procedure: Joinder
INTERPLEADER
Purpose
Allows stakeholder to bring competing claims to court and resolve their claims against stakeholder
Civil Procedure: Joinder
Multi District Litigation
suits in many different venues. Requesting Party moves to transfer all cases to PRetrial court.
Need common questions of fact- transferred for convenience of parties and witnesses
Filing motion doesnt suspend TC j/d.
Grant of motion suspends TC action.
Civil Procedure: Joinder
Multi District Litigation
results
If there is a pretrial judgment (MSJ), htere is NO remand to TC. If not, remand when pretrial proceedings complete.
Civil Procedure: Joinder
REsponsible Third Parties
Purpose
allows parties to ensure non-joinable parties (not subj to j/d or bankrupt) are considered when allocating liability.
Civil Procedure: Joinder
Responsible Third Party
Designation procedure
Move to Designate RTP on or before 60th day prior to trial.
If they are alleged to contribute or cause harm on which recovrey is sought.
Jury may consider when allocating liability.
Civil Procedure: Discovery
Witnesses discoverable
Trial witnesses, testifying experts, REviewed consulting experts;
NOT simple consulting experts or Impeachment or Rebuttal only witnesses
Civil Procedure: Discovery
Witnesses: failure to disclose when sought
D must show GOOD CAUSE for non-disclosure OR
opposing party will suffer no prejudice or surprise
Civil Procedure: Discovery
Documents: What - which
any document or tangible thing within person's possession, control or custody
Civil Procedure: Discovery
Experts Disgnation timeframe
must designate at least 90 days prior to end of discovery period (see Discovery Control Plan) - If include a Report of expert's opinions, don't have to make avaialbe for deposition untill all opponent's experts are designated.
Civil Procedure: Discovery
Work Product protected
anything prepared in anticipation of litigation. CORE work product includes atty mental impressions, opinions, or conclusions
Civil Procedure: Discovery
Protective Order re discovery
Secret Sauce: court may limit discovery to protect moving party (submitting protective order) from undue burden, harassment, or annoyance.
Civil Procedure: Written Discovery
Timing for response
30 days from reciept OR 50 for defendnat if received requests and Answer to petition is NOT YET DUE.
Civil Procedure: Written Discovery
Asserting Privilege to written discovery
Procedure
1. Withholding Statement saying you are withholding and ID request to which material relate AND name privilege
2. Opposing files response requesting ID of info witheld
3. Withholder produces Privilege Log listing item ("letter of 6/6") and privilege
Civil Procedure: Written Discovery
Inadvertent Disclosures
Party can amend response to "claw back" the improperly disclosed item, thus retaining privilege over item, SO LONG AS AMENDEMENT WITHIN 10 DAYS OF DISCOVERY of error.
Civil Procedure: Written Discovery
Objections to Written Discovery
Must be in writing within response timeframe 30/30/50 with stated basis for objection.
hearing held with burden on objecting party to prove privilege or validty of objection
Civil Procedure: Written Discovery
Supplementing Discovery
If party knows discovery is Incomplete OR has become incorrect/imcomplete must supplement.
Must be done at least 30 days before trial.
Admit new evidence at trial only if show good cause and NO unfair surprise or prejudice
Civil Procedure: Written Discovery
Discovery Control Plans 1- 3
Must plead which plan in first paragraph of petition.
Failure to do so = Level 2 default
Civil Procedure: Written Discovery
Discovery Control Plan 1
Good for cases up to $50k and divorces to 50k with NO kids.
Starts on filing goes to 30 days before trial
6 hours of depo on each side
25 interrogatories
Civil Procedure: Written Discovery
Discovery Control Plan Level 2
Default level good for all
Starts on filing goes to 30 days before trial OR 9 months from date of first oral depo or written response deadline
50 hours of depo - additional if 2 exprets
25 interrogatories
Civil Procedure: Written Discovery
Discovery Control Plan Level 3
Whatever the parties agree to...
Civil Procedure: Written Discovery
Name the Forms available (6)
requests for disclosure
requests for production and inspection
Interrogatories
Requests for admissions
oral or written depos
motions for phsycial examinations
Civil Procedure: Written Discovery
Requests for Disclosure
Correct types of items sought
correct names of parties
names address of POTENTIAL parties
names addresses of POSSIBLE RESPONSIBLE THRID parties
amount/method of caluculating damages
name of person with relevant facts (ajnd what their connection is)
Any indementy/insurance
Any witness statements
Authorization to obtain medical records
ID and content of testifying experts
Civil Procedure: Written Discovery
REquests for Disclosure
Time frame
30 30 50
Civil Procedure: Written Discovery
REquest for Production Inspection
What?
If on Non-party?
Medical records how?
Any tangible item.
If on nonparty, must be with court order or subpoena
Med records: either with Authorization (from request for disclosure) OR Court order OR Subpoena physicians
Civil Procedure: Written Discovery
Request for production - effect on produced documents:
authenticates them (unless party protests within 10 days "I had it, but I didn't write it")
Civil Procedure: Written Discovery
Request for Production
Destruction for testing
NOT permitted without court approval
Civil Procedure: Written Discovery
Interrogatories answer form
Must be signed under oath
Consists of 1) Answers 2) Objections or 3) Assertions of privilege.
30 30 50
Civil Procedure: Written Discovery
Requests for admissions
Response form and
Effect
NO limit to number
Unless objecting or asserting privilege, Party must ADMIT or DENY each request or explain why you can't
NOT timely denied = admittted!!!
Admitted = Conclusively established! on both actual and DEEMED admissions
Civil Procedure: Discovery
Depositions
Notice required
Where permitted
What to Object to depositon?
REaosnable notice
Can be either in resident county, where deponent employed OR where served. Deponent neednt come over 150 miles from home or place or service
Motion for PROTECTIVE ORDER used to object to time/place
Civil Procedure: Discovery
Depositions
Compelling Attendance
Time limits
Party must attend on NOTICE
non-party needs notice and SUBPOENA
Civil Procedure: Discovery
Depositon Length
6 hours a day. Separate cumulative (50 hours) limits can exist
Civil Procedure: Discovery
Deposition Objections permitted
Objection Form
Objection Leading
Objection Non Responsive
Other objections subject maker to sanction especially if suggestive.
Civil Procedure: Discovery
Deposition communication
only permitted to perserve a privilege
Civil Procedure: Discovery
Deposition Before suit
permitted ON VERIFIED petition served on all interested parties alleging
anticipates instittuion of suit
subject matter or action and petitioner's interest
AND names of adverse parties anticipated
Civil Procedure: Discovery
Expert witness fees for Depo
Paid by the party hiring the expert NOT the party taking the deposition
Civil Procedure: Discovery
Motion to Compel Medical Exam
Must be made at least 30 days prior to end of discovery period and SHOW GOOD CAUSE for exam and that physical condition is in controversy. Serve all parties and party to be examined.
Civil Procedure: Disposing of Case without Trial
Default judgments
If court has SMJ
Service of process was proper
P must seek default judgment alleging a cause of aciton
D has not answered
time to answer expired
return of citation on file for 10 days.
Civil Procedure: Disposing of Case without Trial
Default judgment
Notice of judgment
Provided to D at mailing address with Notice
Civil Procedure: Disposing of Case without Trial
Setting aside a No Answer Default judgment
3 ways
Motin for new trial
REstricted appeal to COA
Equitable Bill of review
Civil Procedure: Disposing of Case without Trial
Motion for New Trial requirements
filed within 30 days
if no legal reason to set aisde,
Must demonstrate:
failure to answer not intentional or result of conscious indfference but was a mistake
set up a meritorious defense
AND that there is NO delay or injury to P
Civil Procedure: Disposing of Case without Trial
Restricted Appeal to COA
must be made within 6 month
Must demonstate that D did not participate in trial below
AND that there is error on face of judgment (No evidence of service in the file)
Civil Procedure: Disposing of Case without Trial
Equitable Bill of review
Time: within 4 years from date of judgment.
Demostrate 1) meritorious defense 2) prevented from asserting b/c of fraud, accident or wrongful act of P 3) UNmixed with any negligence of the D
If based on total lack of service of process - only have to prove lack of process b/c DP requires other elements to be excused.
Civil Procedure: Disposing of Case without Trial
Nonsuit
P may seek non-suit and can file again without prejudice
Oppsoing party could continue with a counter claim.
Civil Procedure: Disposing of Case without Trial
Summary Judgment Standard
No genuine issue of material fact and Party is entitled to judgment as a matter of law. OR no Evidence sj - Party did not present evidence of all elements of claim or lacked element on affirmative defense
Civil Procedure: Disposing of Case without Trial
Summary Judgment Burden
Burden on moving party to show that they are entitled to judmgnet as matter of law.. Once met, nonmoving party must raise a fact issue
Civil Procedure: Disposing of Case without Trial
Summary Judgment - No Evidence Motion
After adequate time for discovery, party may mnove for SJ on ground that there is NO evidence on an esstential element of a claim or defense which the non moving party would bear the burden on at trial. Must specifically STATE the elements where there is no evidence.
Civil Procedure: Disposing of Case without Trial
Summary Judgment Timing
21 days from MOtion to hearing. Nonmovant must respond no later than 7 days befoer hearing
Civil Procedure: Disposing of Case without Trial
Summary Judgment hearing procedure
No oral testimony
Affidavits and other forms of admissible discovery
Discovery and depositons used MUST BE FILED at time Motion (21) or Response (7) filed.
Civil Procedure: Disposing of Case without Trial
Summary Judgment
Appeal
Can appeal granting of SJ
NO appeal for denial of SJ as it is a non appealable interlocutory action
Civil Procedure: Disposing of Case without Trial
Declaration of Settlement procedure
Waht is it?
If the D files a Declaration no later than 45 days before trial, any party can attempt settlement.
Civil Procedure: Disposing of Case without Trial
Qualifying settlement Offer
requirements
in writing
refers to Cod
states a deadline
identifies parties to which offer made
Is served on all parties
Civil Procedure: Disposing of Case without Trial
Qualifying Settlement Offer
Effect
Awards litigation costs to the offering party from the party that didn't accept the offer and substantially didnt prevail in similar amount at trial.
Cost limited to date of offer and afterwards - includes court costs and attorney costs and expert fees for 2 experts
Civil Procedure: Pretrial Matters
Jury Trial request
Trial notice
made at least 30 days prior to trial
45 days notice prior to trial
Civil Procedure: Pretrial Matters
Continuance for missing witness
Allege
Affidavit
Testimony is material
diligence in securing testimony
cause of problem
that testimony is NO avilalbe from another source
name address of witness and substnace of testimony
continuance NOT sought for delay, but justice
Civil Procedure: Pretrial Matters
Motion in Limine purpose effect
orders opposing counsel not to mention or ask questions abourt a matter without first approaching judge for final ruling on issue's admissibility.
Civil Procedure: Pretrial Matters
Voir Dire Challenges for cause
juror interested
juror will be witness
juror has bias or prejudice
is related to party in case
Civil Procedure: Pretrial Matters
Voir Dire Preemptory challenges Number
6 in district court and 3 in county court
NO premeptory challenges based on prohibited classifications
Civil Procedure: Trial
PErsons exempt from The Rule
Party or spouse
designated corp officer
Person essential to presentation of cause of action (including experts)
Civil Procedure: Trial
Grounds for Directed Verdict
Plaintiff
P can move if P conclusively proven all elements of one ground of recovery AND D has failed to produce ANY evidence on one element of each ground of defense
Civil Procedure: Trial
Grounds for Directed Verdict
Defendant
D can move (upon resting or clsoing of evidence) on showing D has conclusively proven all elements of at least ONE ground of defense AND P failed to present ANY evidence on at least ONE elemnt of each ground of recovery
Civil Procedure: Trial
Jury Charge
Questions
Seeks a Special Verdict - jury answer to question - includes questions, instructions and definitions
Broad form questions used puts all elements into one question
Good for affirmative defenses as well.
Civil Procedure: Trial
Jury Charge
Instructions and Definintions
Insturctions are Rules of Law
Definition is Interpretation of word or phrase used in charge.
Civil Procedure: Trial
Jury Charge
Types of Complaints and Timing
Omissions & Defects
Must be complained of before submission to jury
Civil Procedure: Trial
Jury Charge
Omission protest
request to submit
Tender conforming question, instruction, or defniintion
obtain a ruling
Civil Procedure: Trial
Jury Charge
Defect protest
Object to specific portion of charge IN writing or dictated to court reporter
state basis for objection
Obtain a ruling
Civil Procedure: Verdict
Number of jurors needed for verdict
10 jurors needed
5 in county court
unanomous needed for exemplary damages
Civil Procedure: Motion for New Trial
Why?
prerequisite for appeal on matters:
complaint of inadequate or excessiveness of damages found by jury
complaint on which evidence must be heard (jury misconduct- new evidence)
Civil Procedure: Motion for New Trial
Timing
Must be within 30 days of final judgment entered
Civil Procedure: Motion for New Trial
Impact of denial
extends court's plenary power (as much as 75 days if no ruling)
Civil Procedure: Appealable Interlocutory Orders
Grant or denial of temporary injunction
grant or denial of a special appearance
certification of a class in class action