Pciii -Trial Settings & Right To Jury Trial

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TRIAL SETTINGS

How does the court set a trial date?

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i. Judge may set a case for trial on written request or the court’s own motion.

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How much notice do you have a right to?

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ii. Must receive notice a “reasonable” time before trial
1. At least 45 days before trial for the first trial setting
2. Only with “reasonable” advance notice for subsequent trial settings.

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i. Notice of trial setting need not appear on the record

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1. Thus, it is not error apparent on the face of the record when it is missing (so no restricted appeal on this basis)

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If you do not get notie of the trial setting and therfore don't show what happens?

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i. If you don’t get notice and therefore don’t show:
1. If you’re π, dismissed for failure to appear
2. If you’re Δ, π gets a post-answer default

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o If you don’t get reasonable notice of trial setting→

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complain in MNT

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If you get no notice of trial setting?

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, you have a constitutional right to a new trial
1. If the Judge signs the judgment, there is a presumption of proper notice
2. You must put on proof to rebut the presumption in your MNT

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iii. Manner of Notice:
1. Common Practices: varies from county to county

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a. Redundant settings – they make 2, just in case the first is messed up for some reason
b. Preferential settings – some certainty it’ll go to trial; protection from being “bumped” by another case
c. “Carry over” setting – if it doesn’t go on when planned, goes on to the end of the docket for next week
d. “Vacation Letter” Practice – you can file a letter w/ the clerk telling the court when you’re planning to go on vacation, so they will try not to set your trial for those dates
e. etc.

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How is notice sent?

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1. Most Commonly, from the clerk by fax via Rule 21a
2. Electronic notice/online docket updates
3. Scheduling order, perhaps after scheduling conference
4. Obtained from opposing counsel via Rule 21a
5. Sometimes letter requesting trial setting is all the notice you get – know local customs!

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v. Rule 246 – Request Notice from Clerk:

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1. If you provide clerk w/ a request for notice, and a stamped, self-addressed envelope
2. You must request to receive it by mail
3. Failure of him to properly notify you = grounds for continuance or new trial,
a. If you prove that it caused you to be unable to properly present your case)
4. It only works for the next trial setting notification in that case
a. If the case is dropped from docket and re-scheduled, must request again.

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Motion for Continuance - What are you seeking?

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f. Motion for Continuance: asking the court to postpone the trial for some period of time
i. Rule 253 – you’re not entitled to a continuance based on absence of counsel – it’s discretionary for good cause shown

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What must you do to show good cause for a continuance?

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1. So allege all facts that show good cause
a. Who is the lead attorney; why he is not available; why you can’t handle the case
i. If lead atty is in another trial, give court and cause #
b. If it’s the first motion for continuance, style it “[PARTY]’s First Motion for Continuance”
i. (Generally you get one freebe, but even if not, he’s more likely to grant the first)
c. The client would be unfairly disadvantaged
d. MUST STATE: “This continuance is not sought for delay only, but that justice may be done.”

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Why is it important to name your motion, Party's FIRST Motion for new trial?

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Because you usually get one freebie.

2. MOTION MUST BE SUPPORTEDBY AFFIDAVIT – either yours or that of the lead attorney that couldn’t be there

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What language must you put in a MNT?

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MUST STATE: “This continuance is not sought for delay only, but that justice may be done.”

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Can you get a continuance if one of your witnesses is available? What are the requirements?

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1. VERY specific pleading requirements
2. Due diligence must be alleged in detail

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How do you show that you exercised due diligence?

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2. Due diligence must be alleged in detail:

a. What did you do to secure their attendance?
b. If he’s w/in 100 miles, generally you don’t have to depose him to be duly diligent
i. Exceptions: by age, infirmity, etc. you should have known he’d be gone by trial time
c. If he’s > 100 miles away, must have tried to get his depo (& generally you’ll have succeeded)
i. (And if you have the depo, you generally can’t get the continuance)
d. The reason for the witnesses absence
e. If it’s 2nd or later motion, must allege/prove that the witness is THE ONLY SOURCE of that testimony
f. Give the name/residence of the witness
g. State that it’s “not sought for delay only, but that justice may be done.”
3. Must be in writing
4. Must be filed before you announce ready

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What is a legislative continuance?

Rule 254

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1. If an attorney has to appear at legislative session b/c he’s a legislator or legislator-elect, and needs a continuance:
2. Continuance is mandatory, unless he was retained < 30 days before the date set for trial—then it’s discretionary
3. Legislator must also sign an affidavit saying how he’s assisting in the trial and that it isn’t just to get the continuance
4. Legislators are politicians, and thus great at voir dire – so that’s a very reasonable way he could assist in good faith

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How do you attack a legislative continuance?

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To attack it: attack the circumstances of his retention, the timing, his lack of true participating, etc.

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When is the Texas Legislature in Session?

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In the Spring of every odd numbered year.

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Texas Civ. Prac. 30.003

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Superceds 254?

Provides that for a civil case, if atty hired on or after the 30th day before the date set for trial, continuance is discretionary.

Provides that in a criminal case the continuance is discretionary if attt is hired on or after the15th day before the day set for trial.

**note in 254 it says that discretionary if hired within 10 days of trial.

Also requires atty to file a copy of the application for continuance with the Texas Ethics commission.

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RIGHT TO JURY TRIAL in civil cases

FEDERAL RIGHT TO JURY TRIAL

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Beacon Theater

Court says we will not gong to llow a trial judge to put the proceedings in an order that allows you to preclude a jury trial.

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But.. what is one situation where..

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Park Lane case says hat if there has already been a deermination by a federal judge of a fact q then in a susequent preceeding the parties may use CE to preclude litigation of an issue in a subsequent hearing. says the right to jury trial does not override in that situation. ??????

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TEXAS RIGHT TO JURY TRIAL

What is special about the Texas right to jury trial

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it is the only constitution where there is more than one mention of the right to jury trial.

TX CONST

Art 1 sec 15 - right to jury trial shall remain inviolate

Art 5 sec 10 - right to jury trial shall exist for any cause

"casue" at time of const. was defined the way it is in the spanish law - erased any distinction between law and equity.

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What about equitable relief? Doesn't a judge grant equitable relief?

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Yes, the judge will fashion the remedy, but any fact questions tha are needed in fashioning an equitable relief will be up to the jury.

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Historically, TX courts hae made a history of invalidating any law that curtails the right to jury trial....except

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Art3 section 66 allowes legislature to place limits on what a jury can decide. leg decides whetehr a law is infringement on jury trial. Leg can place limits on the amount of recovery - medical damage caps.

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PRE SUIT WAIVER OF JURY TRIAL

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One of the biggest reasons the right to jury trial is vanishing is compulsory arbitration. Another is contractual arbitration (pre-suit waiver).

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Can a party contract away the right to a jury trial?

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If there is a conspicuous provision, the party who sighted is persumed to have made a knowing and voluntary waiver. - in comformity to what we have learned about arbitration cluases.

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Texas Post Suit Waiver of right to jury trial

what are the requirements?

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iii. Two Requirements: Make Demand and Pay Fee

You must do both in order to have a valid demand

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Fee Requirement:

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a. Modified in § 51.604 – raised fee (includes R. 216 fee)
b. Must be paid at least 10 days before scheduled date for trial.

$30 in District Court, $22 in county court

c. If nobody (incl. the court) would be prejudiced by having a jury trial, it’s error for the judge to put you to a bench trial if both party’s want the jury trial, and the fee eventually gets paid (even the day OF trial)

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Demand Requirement:

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a. Must be made a reasonable time before the date set for trial – generally at least 30 days before trial
b. Thirty days is the presumption-switching threshold:
i. Request >= 30 days from trial setting, presumed rzbl time
1. Opponent must prove that it’s really unrzbl to avoid jury trial
ii. Request < 30 days from trial setting, presumed unrzbl time
1. Proponent must prove that it’s really rzbl or he gets a bench trial

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Factors to determine if it’s really rzbl/unrzbl

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1. Whether granting it would injure the opponent – does client need the money now?
2. Whether granting it would disrupt court’s docket – ripple effect on other business
3. Whether granting it would impede the court’s scheduling of other cases
4. How long has the case been pending? Would change whether 30 days is rzbl
a. (like, if the case has been pending for 5 years, why just demand now?)

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What happens if a case is continued such that the demand is not made more than 30 days or more before trial?

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iv. Note: If case is continued such that trial date moves 30 days or more from demand date, it becomes as though the request was made at least 30 days before trial – burden on opponent.

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What is the form of the demand?

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c. Must be in writing
d. Must be Filed w/ Clerk (can include it in the caption of your initial pleading – petition or answer)

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Rule 220

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if demand is made and all fees are paid, all parties are allowed to depend on it. It can only be withdrawn bu the agreement of all parties.

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Hypo: What if hometown boy withdraws his request for jury trial, never paid (so 220 doesn’t apply), and I want a jury trial?

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Request + Pay Fee
2. File a Motion to Retain the case on the jury docket
3. In the motion, allege the elements that make a < 30 days advance jury demand rzbl
a. No prejudice to opponent (he surely was expecting a jury trial – he requested it!)
b. No disruption to court (b/c it was expecting a jury trial, too!)
4. Request a hearing so you can present evidence of the above.

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Two opposite cases

GM v Gayle

Hobbs

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A tieal court may not start a trial jsut to avoid making a jury demand timely - GM v Gayle

Hobbs - where there is suspected witness tampering there is a legit reason for the court to start a trial on the date set.

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How do you preserve error to show that a trial court has errored in denying your request for a jury trial?

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you do it with a bill of exception. The same way you would do it for showing refusal to strike a juror for cuase... your honor you denied my demand for a jury....

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Federal Post Suit Waiver

In federal court how do you demand a jury trial?

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by serving he other partie swith a written demand (which may be included in the pleadings) no later than 14 days after the last pleading directed to the issue is served.

When no demand is made issues are to be tried by the court But the court ma on motion order a jjry trial on any issue for which a jury trial might have been demanded.

Also removed cases that made a state demand or that were not required to make a state demand do not need to make one in fed court.

But if all pleading are filed before removal, a pery must be given a jury trial if it files a demand within 14 days after

it files a notice of removal or 'it is served with a notive of removal by another party.

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What in fed court constitutes the last pleading toward an issue?

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1. adding a new party is not a new issue

2. adding a new theory is not a new issue.

It's ambiguous but the above two things are not neessarily a new issue

Wren believes a new issue is a NEW SET OF FACTUA QUESTIONS (NOT NECESSARILY A WHOLLY NEW TRANSACTION OR OCCURANCE)

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If you miss opportunity under 38...

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Try Under 39b 5 factors (court may order jury trial when no demand has been made on motion)

(2-4 are the same as in Texas)

1. Whether the case involves issues which are best tried to a jury

2. Whether granting the motion would result ina disruption of the court's schedule or that of an adverse party.

3. the degree of prejudice to the adverse party

4. the length of the delay i having requested a jry trial and

5. the reason for the movant's tardiness in requesting a jury trial.

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Waiver of Trial - Involuntary Dismissal

Dismissal for Want of Prosecution – Three Varieties

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1. Rule 165a(1) – failure to appear

2. Rule 165a(2) – Noncompliance with time standards

3. True DWOP – based on the court’s INHERENT POWER to control the docket

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ALSO reason under 330(d)

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if a case has been set and called twice a court may dismiss.

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Rule 165a(1) – failure to appear

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1. Failure to appear at any hearing or trial of which he had notice
a. (If you’re the one seeking affirmative relief from the court)
b. What kinds of hearings?
i. Trial on the merits
ii. Dispositive hearings
iii. Non-dispositive hearings in which they are notified that non-appearance → dismissal
2. Each party is to get notice of the dismissal hearing

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3. At the hearing, the court will dismiss, unless absentee party shows good cause for the case to remain on docket

a. What’s the standard for “good cause”?

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b. Probably the inverse of the reinstatement standard of Rule 165a(3)! Craddock.
i. The failure to appear was not intentional or the result of conscious indifference

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ii. Rule 165a(2) – Noncompliance with time standards

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1. Any case not disposed of w/in the time standards promulgated by the TXSC can be put on the dismissal docket
2. TXSC puts down the guidelines
a. 18 mos. from first appearance for jury trials in civil cases
b. 12 mos. for non-jury civil cases
c. Some contested family law cases are set on a faster timetable

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iii. True DWOP – based on the court’s inherent power to control the docket

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1. Court grants it for failure of π to prosecute the case with reasonable diligence
2. You’re entitled to notice if it’s going to be dism’d on this basis, & opportunity to be heard:
a. Date
b. Place (of hearing)
c. Rzn for dismissal
d. Hearing where you can oppose it

3. General Procedure:
a. Notice of Intent to Dismiss WOP
b. Hearing on DWOP
c. DISMISSAL
d. Notice of Dismissal
e. Motion to Reinstate
f. Hearing to Reinstate

4. What if π doesn’t get the notice of intent to DWOP? No notice? No problem!
a. Post-dismissal notice and hearing are sufficient to satisfy due process

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Is the dismissal standard different from the reinstatement standard?

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No. They’re both the Craddock v. Sunshine Bus Lines standard. This makes sense!!!

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What is the standard for dismissal under TRCP 165a (2)?

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Is this a case that should, so far as reasonably possible, be disposed of within the time period?

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What is the dismissal standard under the court’s inherent power?

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Has the case been prosecuted with reasonable diligence? If no, it can be dismissed.

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Three bases for dismissal based on “want of prosecution”:

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1. Failure to appear (TRCP 165a (1))
2. Failure to use reasonable diligence in prosecuting the case (court’s inherent authority) 330(d)
3. 165a (2) Noncompliance with time standards promulgated by the Supreme Court under its Administrative Rules

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Under what circumstances (at what type of hearings) can a court dismiss for failure to appear?

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Any hearing in which notice is provided that says, “If you don’t show up, your case is subject to dismissal” warrants dismissal for failure to appear.

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Are there any hearings which do not give the above notice that warrant dismissal for failure to appear?

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Yes—trial, always. Additionally, hearings that are dispositive of the case, such as SJ, do not require notice.

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What if a notice says we could dismiss if you don't show up?

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Party is entitled to notice and an opportunity to be heard on the question of dismissal. In one case the court ruled simply saying dismissal may happen is not enough. you need to say you will be dismissed if you don't show up.

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What if notice says all you have to do is show up and you won't be dismissed?

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If notice says that what you have to do and you do it and then dimsisses on some other ground, then it is dismissal by ambush.

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What if you don't get proper notice, but then are heard at ahearing to reinstate?

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The dismissal will be upheld because due process isupheld when you have an opportunity to be heard on why your case should go forward. Even if at a later date.

Don't just blindly rely on the fact that no notice was given, you hvae to persue it. with a motion to reinstate?

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Can a court dismiss you for failure to attend a scheduling hearing?

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Yes. if you are given notice that if you don't appear at a scheduling hearing your case will be dismissed, then the hearingis your opp for due process.

You are not entiteld to a seperate notice for failure to attend - no the scheduling heraing notice can serve as notice of intent to dismiss.

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Proving lack of notice -- what is the problem with filing a resticted appeal?

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in a restricted appeal, you are not allowed to use extrinsic evidence. and the clerk is not required to indicate they sent the notice on the record.

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Is the clerk required to shoe the fact that he mailed notices on the docket?

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No. the duty to send notice is seperate and apart from the duty note the sending of the notice.

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SO if you believe that there is a failur of the clerk to send notice or if you want to demonstrate that you didn't get notice...

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you should file a Motion for New Trial or a Motion for Reinstatment (and don't rely n restricted appeal or bill of review)

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b. Standard for Reinstatement – Rule 165a(3)

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i. SAME REINSTATEMENT STANDARD FOR ANY DWOP DISMISSAL - Craddock
ii. To justify reinstatement, the dismissal must NOT have been intentional or the result of conscious indifference
iii. Negligent failure to appear, e.g., should be reinstated
iv. Odd, since inherent power DWOPs can be made when π failed to prosecute his claim with “reasonable diligence”
v. So, although they sound very different, they must be the same, or the same court would dismiss, then reinstate, any time π failed to prosecute his claim w/ rzbl diligence but it was not intentional nor the result of conscious indifference.

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vi. DWOP is not a dismissal on the merits; so, why would we want reinstatement instead?

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1. If statute of limitations has run, we can’t re-file
2. We’d have to pay two sets of court costs
3. We’d be reset at the bottom of the docket – maybe a long time til we can get another trial date

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c. Reinstatement Timetable – same for 165a(1), 165a(2), or inherent power

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Within 30 days after the order of dismissal signed.

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What must a motion to reinstate have?

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Must state the grounds for reinstatement and must be verified by the party or their attorney.

THe court shall reinsate if it finds after a hearing that the failur was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure had been otherwise reasonabely expained.

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What if there is an oral reinstatment?

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Not good enough. If you have a written order of dismissal you better get a written order or reinstatement.

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What if everyone agrees that the dismisal was erroneous?

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if there is no signed order of reinstatement, before the end of the court' splenary power the court had no power to reinstate.

In the event that a motion for reinstatement is not decided by written order within 75 days the motion shall be deemed overruled. and then the court has plenary power after it is overruled for 30 days.

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NON SUIT - Voluntary Dismissal

What is a nonsuit?

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a. Typically, a dismissal w/o prejudice
b. Don’t non-suit after SoL runs, or you’re SOL – and it’s malpractice

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c. If you make a timely motion to nonsuit, the court’s signing the order

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is a ministerial act – mandamusable. No discretion.
i. (BUT – court can stall on signing it – it’s a ministerial duty, but the court doesn’t have to do it right away!)

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d. Purpose - Why might you non-suit a case?

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i. To make other judgments (like defaults or summary judgments) final
1. The other option would be to request severance of the default/summary judgments to make’em final
ii. Settlement situation (though these tend to be with prejudice)
iii. Start over b/c something went wrong
iv. You weren’t ready for trial – forgot to designate witnesses or experts timely, or judge is going to grant judgment against you, etc.

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Timing of a non-suit

When can a Plaintiff take a non-suit?

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i. Trial Context: can non-suit any time up until π rests his case. (Until he’s put forth all his evidence except rebuttal evidence)

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Can you non-suit after a party has made a motion for summary judgment?

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ii. Summary Judgment Context: can non-suit any time prior to rendition of the summary judgment order
1. (Rendition fixes the rights, liabilities, and statuses of the parties)

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What if a Defendant counterclaims and then the Plaintiff chooses to non-suit, what is the status of the counterclaim?

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i. Rule 162, 2nd paragraph: shall not prejudice the rights of an adverse party to be heard on a pending claim for affirmative relief.
1. π can non-suit his own claims, but not Δ’s counterclaims
2. If a counterclaim is purely defensive, though, it’s not the kind that precludes non-suit
3. Δ must do more than merely resist π’s right to recovery – he must seek affirmative relief

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If a defendant has filed motions for sanctions and the plaintiff non-suits do the sanctions survive?

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g. Sanctions against π– when do they survive non-suit – three possible time periods

1. When plaintiff moves for nonsuit after the sanctionable conduct, but before the defendant moves for sanctions.

2. When the plaintiff moves for nonsuit after the defendant moves for sanctions but before the court grants them.

3. When the plaintiff moves for non-suit after the court grants sanctions in the hope of escaping them.

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π moves for non-suit after the sanctionable conduct, but before Δ moves for sanctions

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1. As long as the court still has plenary power when Δ moves for sanctions, it can grant them
2. It can even grant sanctions after removal to federal court if they don’t affect the merits of the case.
3. NOTE: CP&RC § 10.004 – statutory sanction provision
a. Court can’t grant sua sponte sanctions unless it first issues a show cause order before non-suit

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π moves for non-suit after Δ moves for sanctions, but before the court grants them

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1. Rule 162, paragraph 2: dismissals under this rule have no effect on pending motions for sanctions; court can grant
2. Also, motion for sanctions is seeking affirmative relief, so non-suit can’t affect that motion
3. Court can grant sanctions as long as it still has plenary jdx

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π moves for non-suit after the court grants sanctions, in hopes of escaping them

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1. The effect is probably felt when the case is re-filed, depending on the type of sanction and its purpose
a. e.g. sanction is striking of expert, in the subsequent-filed case the court can keep the expert out again

2. If the purpose of the sanction is punitive—to punish, deter, or compensate Δ, it probably survives
a. e.g. monetary sanctions or sanctions for affirmative misconduct
3. If the purpose of the sanction is to protect Δ from prejudice or trial by ambush, and non-suit satisfies concern, it probably doesn’t
a. e.g. sanctions for failure to timely designate witness/expert or timely respond to discovery

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How do you take a non-suit?

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h. Procedure – Ways to Take a Non-Suit
i. In open court, on the record, make the announcement
ii. Motion to Non-Suit
iii. Notice of Non-Suit
iv. Amend Petition to Omit Δ from Lawsuit

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What effect does a non suit have on venue?

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i. If π non-suits after a motion to transfer venue is granted for Δ, that fixes venue in the county transferred to
ii. If π non-suits before the order, but after the motion to transfer is filed, venue is only fixed if the venue facts are uncontroverted
iii. If all pled venue facts are controverted, π can re-file wherever (I guess)

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Examples of the effect of non-suit on venue

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1. π files in county 1, alleging venue is proper
2. Δ files a motion to transfer venue, denying county venue, alleging venue in county 2 is proper
a. If π non-suits now, he’s conceded that venue is NOT proper in county 1
b. Thus, the only possible county to re-file is county 2
3. π files a response, providing proof that county 1 is proper and denying county 2 is proper
a. If π non-suits now, venue is not fixed – propriety of all proposed venues is controverted.

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Reinstatement After non-suit?

Is there an absolute righ to reinstatement, like there is to a non-suit?

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No. A reinstatement after non-suit is withing the court's discretion.

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When is a non-suit effective?

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a non-suit is effective the moment a plaintiff makes a motion for non-suit. The rights of the parties become fixed.

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But when does the appelate clock start ticking with regard to the non-suit? When does the court lose it's plenary power?

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The appelate clock doesn't start ticking until the signing of the final order, even though it is a ministerial act.

The trial court loses it's plenary power 30 days after it signs the order granting non suit (assuming no motion for new trial is made) or 75 days after it signs the order granting the non-suit (if a motion for new trial is filed).

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Hypo - a party takes a non suit on April 12, and then before an oder has been signed, files a motion to reinstate on May 7. on may 25 the court signs an order allowing the reinstatement. Is the order allowing reinstatment effective even though it was granted more than 30 days after the plaintiff took a non-suit?

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Yes because the timetable on the court's plenary power does not begin to run until the signing of the order, not upon the filing of the motion for non-suit.

ONLY AFTER THE TRIAL COURT RESOLVES THE ISSUE OF DISMISSAL BY A WRITTEN ORDER DO BOTH PARTIES HAVE A FINAL ORDER FROM WHICH THEY MAY APPEAL.

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HYPO - Plaintiff sues for negligence and contract claim. Defendant wins Partical SJ on contract claim. Plaintiff supplements her petition and abandons the negligence claim, essentially leaving no COA. When did the appellate timetable begin to run, at the filing of the supplemental petition?

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No. the appellate timetable runs from the the signing of a judgment or order disposing of those claims or parties purpoting to dispose of all claims or parties. All other orders (partial sj, supplemental petitions, etc.) are interlocutory and don't begin to tick the clock for the purposes of determining whether or not the court retains plenary power.

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Does a partial summary judgment survive a non-suit?

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Yes, a partial summary judgement is a decision on the merits.

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What if you have an order of nonsuit that is written that is written in a way that states it is only a non suit of certain itme.

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If an order of non-suit is written so that it does not dispose of all claims and all partis then it is not a final appealable order.

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What effect does non-suit have on atty fees?

The american rules says we pay for our own litigation. However, atty fees may be awarded to a "prevailing party" by statute or contract. How do we determine who is a prevailing party?

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1. We look to the definitions in the statute for what prevailing party means in the context of the statute.

2. Look to the contract to find the intent of the party.

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What if a non-suit or dismissal is filed with prejudice?

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Then the defendant definitely won the war because the COA cannot be re-filed. He is a prevailing party.

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What if the case is non-suited without prejudice?

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Court suggests that there should be only one final victory therefore you shouldn't have more than one prevailing party.

Remember that just for filing a non-suit you might be on the hook for costs.

P argues that the d is not prevaiing party becasue battle isn't over

D argues that this is a loss for the P because he has taken a nonsuit just to avoid defeat.