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41 Cards in this Set
- Front
- Back
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what must a P do to get suit started? |
(1) file a petition (2) serve a citation on D (must request for citation from district clerk) |
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if D is an out-of-state corporation without a registered agent, how may it be served? |
P may serve the Secretary of State, who will then serve the nonresident defendant |
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where is venue proper?
VERY IMPORTANT |
generally lawsuit can be filed where
(1) "all or a substantial part" of the events giving rise to the claim occurred
(2) where D's residence WAS when the COA accrued, IF D is a natural person
(3) where D's principal TX office is, if D ISN'T a natural person
(4) if NONE of the above, where P resides |
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how does a D challenge venue? |
D files a motion to transfer venue--must state suit isn't proper in current county and request transfer to a specific county
MUST be filed BEFORE anything else EXCEPT special appearances (due order of pleading rule)
MAY be contained in a separate document filed before or CONCURRENTLY w/D's answer, OR it can be included in D's first responsive pleading
if not--WAIVED |
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when is an order on venue appealable? |
generally NOT reviewable until AFTER final judgment--IF TC OMITTED it, it's REVERSIBLE ERROR
two exceptions-- (1) rulings on mandatory venue provisions (reviewable by mandamus) (2) cases involving multiple P's (P who got knocked out can get interloc appeal) |
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how does a D contest a court's assertion of jurisdiction over it? |
verified special appearance--BEFORE anything else!
may be a part of a separate document OR part of a combined pleading
if not--it's WAIVED |
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when must a D file its answer to avoid default? |
"on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service" |
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what penalty does D face for failing to file an answer by the answer deadline? |
NOTHING, IF he files an answer before the entry of default judgment! |
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how are affirmative defenses raised? |
in D's ANSWER
MUST be pled AT LEAST 7 days before trial
IF LESS: must get court's leave, "should be granted" unless other party shows SURPRISE |
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how does a party find out more about another party's claim or defense because of ambiguous or unclear pleading (e.g., didn't plead a $ amount)? |
file a SPECIAL EXCEPTION
requires the other party to RE-PLEAD to cure the insufficiency of its pleading
IF P REFUSES (?): D can move to dismiss |
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list 5 forms of discovery |
Interrogatories
Depositions Entry upon land Admissions (Requests for) Disclosure (Requests for) |
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when are responses for requests for admissions due? |
generally due 30 days after service, 50 days if served before D's answer is due |
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what is the result if D doesn't respond to requests for admissions by their due date? |
they are AUTOMATICALLY deemed admitted, no court order required |
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may a party strike deemed admissions? |
YES, by showing (1) good cause (2) lack of undue prejudice to the party relying on the deemed admission |
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what does a no-evidence motion for summary judgment do? |
it asserts that the opponent CAN'T prove a necessary element of its case
it contains NO EVIDENCE--asserts the opponent has no evidence |
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when may a no-evidence motion for summary judgment be filed? |
AFTER "an adequate time for discovery" |
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how do you defeat a no-evidence motion for summary judgment? |
raising a genuine issue of material fact |
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what offer of proof would a party make for a traditional summary judgment motion? |
"no genuine issue as to any material fact and moving party is entitled to judgment as a matter of law
NOT saying "no evidence;" saying NO ISSUE OF FACT!
MUST THEREFORE include such evidence and its lack of issue (affidavits, disclosures, etc.) |
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what does a motion in limine do? |
allows a party to preclude an opponent from mentioning or raising some irrelevant but prejudicial issue at trial |
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when must a motion in limine be filed, and what must it contain? |
BEFORE trial--party must explain that its opponent will attempt to inject inadmissible evidence at trial |
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what is the effect of a granted motion in limine? |
the opponent is required to approach the bench before offering that evidence--
--at which point in time there will be a ruling on admissibility |
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what should a party do to challenge/complain about the jury verdict? |
file a motion for new trial
w/in 30 days of the date the judgment is signed |
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what are the affirmative defenses (that must be pled in D's answer)? |
FADE FAR WISP BARN
failure of consideration accord and satisfaction duress estoppel
fraud assumption of risk release
waiver illegality statute of frauds payment
bankruptcy arbitration award res judicata negligence (contrib) |
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what are the verified denials?
IMPORTANT |
SAUCED CNN PIGS
satisfaction of conditions precedent (denial of) another suit in TX w/same parties and claims is pending usurious K consideration denial execution of written instrument denial defect of the parties exists
capacity denial name denial notice and proof of loss or claim for dam denial parternship/corporation denial IAB appeals denial genuineness of indorsement/assignment of written instrument denial sworn account (debt) denial |
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how does D bring another D into the suit? when must it do this? |
files a PETITION against the D and SERVES him with a CITATION
if w/in 30 days of answer--NO LEAVE if w/out 30 days of answer--ask for leave |
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are insurance policies discoverable? |
YES, expressly within the scope of discovery
disclosure interrogatories production |
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are medical records discoverable? |
YES, a party may request "an authorization permitting the disclosure of such medical records and bills" that are "reasonably related to the injuries and asserted" by P
usually disposes of P's objection |
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is the number of interrogatories limited by the rules? |
YES--
Discovery L1--15 Discovery L2--25 |
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if the parties can't agree on the location for a deposition, where is it held? |
county of suit |
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what objections may be made during depositions? |
to a question--leading, form
to an answer--nonresponsive |
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when may a witness's credibility be impeached by a prior conviction? |
if a felony of crime of moral turpitude AND the court decides that the probative value of the prior conviction outweighs its prejudicial effect
CANNOT be 10+ years from date/conviction OR witness's release, unless court determines "in the interest of justice" |
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will late payment of jury fees cause a case to be dismissed? |
NO!
no jury trial will be had UNLESS a written reqeust is filed "a reasonable time before the date set for the non-jury trial AND the fee is paid w/in the time for making the request
BUT--
late payment WON'T prevent a jury trial
UNLESS
it would interfere with the court's docket or delay the trial or injure P |
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may one party withdraw the case if a jury trial date has been set? |
NO--if 1 party has requested a jury trial and paid the fee, the suit CANNOT be withdrawn from trial unless ALL parties consent |
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how many peremptory strikes does each PARTY get? |
SIX! |
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when may a party move to equalize strikes? |
in multiple party cases, a party must do so BEFORE using any peremptory challenges! |
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what is hearsay (generally)? |
an out-of-court statement offered for the truth of the matter asserted |
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popular hearsay objections
IMPORTANT |
statement against interest |
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when can a party move for a directed/instructed verdict? |
after both sides rests and both sides close |
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how many jurors are eeded to proceed with trial? |
case CAN proceed with less than 12 IF "no more than 3 die or become disabled" |
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how many jurors' agreement is needed to dispose of an issue in a verdict? |
10 or more
CAN be less than 9 IF removed by death or disability |
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if D thinks there's no evidence to support the verdict, what should he file? |
a judgment notwithstanding the verdict |
