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43 Cards in this Set
- Front
- Back
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Disposition Without Trial
Default Judgment: 3 Types 28 |
1. True default
2. Nihil dicit 3. Post Answer Judgment |
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Disposition Without Trial
Default Judgment: True Default 29 |
When the def' fails to appear on "answer day".
Available Damages: Plf must prove unliquidated damages, and in PI cases, a causal nexus b/n the injury and e |
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Disposition Without Trial
Default Judgment: Nihil Dicit 30 |
Def has appeared but only pleas or moves on something not dealing w/the merits of the case and is overruled leaving D w/no answer.
Example: Special Appearance |
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Disposition Without Trial
Default Judgment: Post-Answer Judgment 31 |
Failure to appear (or an impossibility of appearance).
No admission of liability and the plf' must prove both liability and damages. |
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Disposition Without Trial
Default Judgment: 3 Types 28 |
1. True Default
2. Nihil Dicit 3. Post Answer |
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Disposition Without Trial
Default Judgment: True Default 29 |
Def' fails to appear on "answer date".
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Disposition Without Trial
Default Judgment: Nihil Dicit 30 |
Def' has apepared but has had a plea or motion not dealing w/the merits of the case overruled leaving Def w/no answer (eg - Special Appearnce)
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Disposition Without Trial
Default Judgment: Post Answer Judgment 31 |
Failure to appear on an impossibility of appearance.
No admission of liability and the Plf' must prove both liablity and damages |
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Disposition Without Trial
Default Judgment: In General 32 |
A default judgment can only be rendered when the citation has been on file w/the clerk for at least 10 days, excluding filed and day of judgment.
To obtain damanges plf' must prove unliquidated damages (more than scintilla of evidence), and, at least in personal injury cases, a causal nexus between the injury and the event sued upon. Rule 243 If no evid presented - crt should render take nothing judgment. A person who obtains a default judgment must file a certificate of def' last known address so clerk may send notice of default judgment to def. Failure to comply with req DOES NOT affect the finality of judgment. |
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Disposition Without Trial
Dismissal for Want of Prosecution 33 |
Rule 165a - Test is whether the case was prosecuted to judgment w/reasonable diligence and the crt has the inherent power to dismiss if plf' failed to do so.
A case may be dismissed for failure to appear at any hearing (dismissal hearing) or trial of which party had notice. Clerk must send notice of intent to dismiss to all parties. Party must show good cause to maintain case on docket. If crt accepts, then set for trial. After dismissal is had, notice of dismissal must be sent to parties but failure to mail notice DOES NOT affect judgment (Rule 306a) |
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Disposition Without Trial
Dismissal for Want of Prosecution - Reinstatement 34 |
Must be done by verified motion within 30 days of order of dismissal or w/in time allowed under Rule 306a.
Crt will reinstate case after hearing and finding that failure of party was: (1) not intentional (2) not the result of conscious indifference (3) but was due to accident/ mistake; or (4) that failure has otherwise been reasonably explained If not ruled on w/in 75 days then overruled by law or w/in time allowed by Rule 306a |
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IMPORTANT RULE:
RULE 306a. Period to Run from Signing Judgment: 1 |
Beginning of Periods:
The date of judgment or order is signed as shown of record determines the BEGINNING of the period for the courts PLENARY power to grant: (1) new trial, (2) vacate, modify , correct or reform a judgment or order, AND (3) for filing in the TC the various docs that these rules authorize a party to file w/in these dates including: (a) motions for new trial, (b) motions to modify judgments, (c) motions to reinstate a case dismissed for want of persecution, (d) motions to vacate judgment (e) request for findings of fact and conclusions of law |
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IMPORTANT RULE:
RULE 306a. Period to Run from Signing Judgment: 2 |
Date to Be Shown
Judges, attys and clerks should use best efforts to get all jdgmts, decisions OF ANY KIND to be reduced to writing and signed by trial judge w/the DATE of singing stated therein. If the date is not recited, it may be showing in the record by a certificate by the judge, but the lack of a date DOES NOT invalidate a judgment or order. |
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IMPORTANT RULE:
Rule 306a: Periods to Run From Signing of Judgment: 3 |
Notice of Judgment
When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attys of record by first-class mail advising that the jdgmt or order was signed. Failure to comply with these provisions of this rule do no affect the periods mentioned paragraph (1) of this rule, except as provided in paragraph (4). |
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IMPORTANT RULE:
Rule 306a: Periods to Run From Signing of Judgment: 4 |
No Notice of Judgment
If w/in 20 days after the judgment or other appealable order is signed, a party adversely affected by it or his atty has neither rec'd the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned paragraph (1) shall begin on teh date that shuch party or his atty recid' such notice or acquired ACTUAL knowledge of the signing, whichever occurred first, but in no event shall such periods begin MORE THAN 90 days after the org judgment or other appealable order was signed. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 5 |
Motion, Notice and Hearing.
In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to PROVE in the TC, on sworn motion and notice, the date on which the party or his atty first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than 20 days after the judgment was signed. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 6 |
Nunc Pro Tunc Order.
When a collected judgment has been signed after expiration of the court's PLENARY power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment w/respect to any complaint that would not be applicable to the org document. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 7 |
When Process Served by Publication.
With respect to a motion for a new trial filed more than 30 days after the jdgmt was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion. |
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IMPORTANT RULE:
Rule 316 |
Correction of Clerical Mistakes in Judgment Record.
Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended. |
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Disposition Without Trial
Dismissal for Lack of Prosecution - TC Power and Appellative Review 35 |
The TC has authority to dismiss for want of prosecution under Rule 165a and Ct's INHERENT POWER.
The determinative date for dismissal and resinstatemetn proceedings is the date the order is SIGNED. Where there is a time limit relating to dismissal, the order must be done in writing and filed w/the court. A crt only retains jurisdiction over a matter that has been dismissed for want of prosecution for 30 days after the date the order is signed. After that date, all orders entered by the court ARE VOID. Entered means filing by clerk w/crt's file. The Appellate Standard of Review is abuse of discretion. |
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Disposition Without Trial
Nonsuit and Other Dismissals - Nonsuit 36 |
Nonsuit is a voluntary discontinuance of a pending action against a party (may be taken at any time before the plf' has introduced all evidence other than rebuttal evidence).
When a partial SJ has been had and the party then nonsuits - the nonsuit results in a dismissal WITH prejudice and the matter cannot be relitigated. Basically, orders on the merits of the case survive nonsuit. Sanctions do not survive nonsuit. EXCEPTION - Crt retains jurisdiction post nonsuit to sanction lawyers so long as the sanction does not go to the merits of the case. |
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Disposition Without Trial
Consent Judgment 37 |
Consent must be in writing except if the assertion is made during open court.
The consent must exist at the time the judgment is entered. If consent is withdrawn prior to entry of the judgment, it is a procedural error which must be attacked DIRECTLY! EXCEPTION: Although a crt cannot render a valid agreed judgmt w/out consent at teh time it is rendered, this does not preclude teh crt, after proper notice and hearing, from enforcing a settlement agrmt complying w/Rule 11 even though one side NO LONGER CONSENTS to the settlement. The judgment in th latter case is not an agreed judgment, but rather a judgment enforcing a binding contract. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 5 |
Motion, Notice and Hearing.
In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to PROVE in the TC, on sworn motion and notice, the date on which the party or his atty first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than 20 days after the judgment was signed. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 6 |
Nunc Pro Tunc Order.
When a collected judgment has been signed after expiration of the court's PLENARY power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment w/respect to any complaint that would not be applicable to the org document. |
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IMPORTANT RULE:
Rule 306a - Periods to Rune From Signing of Judgment - 7 |
When Process Served by Publication.
With respect to a motion for a new trial filed more than 30 days after the jdgmt was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion. |
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IMPORTANT RULE:
Rule 316 |
Correction of Clerical Mistakes in Judgment Record.
Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended. |
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Disposition Without Trial
Dismissal for Lack of Prosecution - TC Power and Appellative Review 38 |
The TC has authority to dismiss for want of prosecution under Rule 165a and Ct's INHERENT POWER.
The determinative date for dismissal and resinstatemetn proceedings is the date the order is SIGNED. Where there is a time limit relating to dismissal, the order must be done in writing and filed w/the court. A crt only retains jurisdiction over a matter that has been dismissed for want of prosecution for 30 days after the date the order is signed. After that date, all orders entered by the court ARE VOID. Entered means filing by clerk w/crt's file. The Appellate Standard of Review is abuse of discretion. |
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Disposition Without Trial
Nonsuit and Other Dismissals - Nonsuit 39 |
Nonsuit is a voluntary discontinuance of a pending action against a party (may be taken at any time before the plf' has introduced all evidence other than rebuttal evidence).
When a partial SJ has been had and the party then nonsuits - the nonsuit results in a dismissal WITH prejudice and the matter cannot be relitigated. Basically, orders on the merits of the case survive nonsuit. Sanctions do not survive nonsuit. EXCEPTION - Crt retains jurisdiction post nonsuit to sanction lawyers so long as the sanction does not go to the merits of the case. |
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Disposition Without Trial
Consent Judgment 40 |
Consent must be in writing except if the assertion is made during open court.
The consent must exist at the time the judgment is entered. If consent is withdrawn prior to entry of the judgment, it is a procedural error which must be attacked DIRECTLY! EXCEPTION: Although a crt cannot render a valid agreed judgmt w/out consent at teh time it is rendered, this does not preclude teh crt, after proper notice and hearing, from enforcing a settlement agrmt complying w/Rule 11 even though one side NO LONGER CONSENTS to the settlement. The judgment in th latter case is not an agreed judgment, but rather a judgment enforcing a binding contract. |
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Finality of Judgments and the TC's Plenary Power
Final Judgment 40 |
One that determines the rights of all parties and disposes of all the issues so that no further action by the trial court is necessary in order to SETTLE and DETERMINE the ENTIRE CONTROVERSY. Tex Civ. Prac. & Rem. § 51.012
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Finality of Judgments and the TC's Plenary Power
Interlocutory Appeal 41 |
Interlocutory (during course of legal action) Orders are not appealable except as provided by Tex Civ. Prac. & Rem. § 51.014
Appeal stays the commencement of a trial in the trial crt pending resolution of the appeal. |
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Finality of Judgments and the TC's Plenary Power
Interlocutory Appeal: Tex Civ Prac & Rem 42 |
§ 51.014 - May appeal an order from District Crt, County Crt at Law, County Crt:
1. Order appoints a trustee 2. Overrules a mtn to vacate an order that appts a trustee 3. Refuses to certify a class action 4. Grants/refuses to a temporary injunction 5. Summary judgment based on IMMUNITY 6. Summary judgment based on 1st AMENDMENT 7. Grants/denies special appearance (except under Family Code) 8. Grants/denies a plea to jurisdiction by gov'tal unit. |
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Finality of Judgments and the TC's Plenary Power
Interlocutory Appeal: Supreme Court Jurisdiction 43 |
The Tex Supreme Court has limited jurisdiction over interlocutory appeals and can only review app. ct. decision when there is a dissent or a conflict of opinions among the crt of appeals.
TEST: Whether one decision will operate to overrule the other decision if the two decisions were rendered by the same crt. |
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Finality of Judgments and the TC's Plenary Power
Interlocutory Appeal: How to Obtain Temporary Injunction 44 |
B/c you can take an interlocutory appeal from a temporary injunction, it's good to know how to get one in the first place:
Applicant must prove and plead 3 elements: (1) a COA agast teh def' (2) a probable right to the relief sought; (3) a probable imminent and irreparable injury (irreparable = if the injured party cannot be adequately compensated by any certain pecuniary standard) |
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Finality of Judgments and the TC's Plenary Power
Refinement of the Concept of Finality 45 |
When a jdgmt, not intrinsically interlocutory in character (not interlocutory on its face), is rendered and entered in a case regularly set for a conventional trial (no SJ), it will be PRESUMED for appeal purposes that the Crt intended to and did dispose of all parties legally before it and of all issues made by the pleadings between such parties.
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Finality of Judgment and the TC's Plenary Power
The TC's Plenary Power 46 |
Rule 329b(a)-(f)
A judgment becomes final 30 days AFTER it is SIGNED and plenary power ends on the 30th day UNLESS a motion (allowable post-verdict motion) is filed w/in 30 days. If a motion is timely filed, the court has 75 days from the date of the judgment was signed, to act on the motion. The TC's plenary power extend for ANOTHER 30 days after the motion is overruled (ie - the TC's plenary power ends 30 days after the motion is overruled). Basically - plenary power exists once a suit is filed and continues until 30 days ater the judgment becomes final. After plenary power has expired, the only way to reactivate is through Bill of review (aka - appellate review) |
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Finality of Judgment and the TC's Plenary Power
The TC's Plenary Power - Motion for New Trial 47 |
Rule 329b(c)
In the event an original or amended motion or motion to modify, correct or reform judgment is not determined by written order signed w/in 75 days after the original judgment was rendered, it shall be consider overruled by operation at law. An order granting a new trial in an unappelable interlocutory order and plenary power starts all over. |
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Finality of Judgment and the TC's Plenary Power
The TC's Plenary Power - Motion to Modify, Correct or Reform Judgment 48 |
Rule 329b(g)
Any change, whether material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date of the motion is signed. If court modifies judgment in any respect during the time of the plenary power, the court's modified judgment changes the appellate timetable. However, a motion to modify ... a judgment will only change the appellate time table if the requested change is "substantive". |
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Finality of Judgment and the TC's Plenary Power
The TC's Plenary Power - Date of Filing 49 |
A motion is conditionally "filed" when it is tendered to the clerk and is completely filed when the fee is paid. The date of tendering becomes the date of filing when the fee is paid. The fee must be paid w/105 days from the date of judgment. But if the fee is paid after the 75th day, then the retroactively filed Motion for New Trial is automatically overruled by operation of law and the timetable is extended. Movant must nonetheless comply w/th 90 days from judgment to file.
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Finality of Judgment and the TC's Plenary Power
Nunc Pro Tunc Orders 50 |
Rule 306a
When a corrected judgment has been signed AFTER the expiration of the court's plenary power, PERIODS TO MAKE MOTIONS w/in the 30 days after the final judgment shall run from the date the nunc pro tunc order was signed - to any complaint that would be applicable to the original document (aka - motion for nonsuit). Judicial Error - occurs when the "rendering" of the judgment is error Clerical Error - occurs when the "entering" of a judgment is erroneously written such that it contradicts the court's rendering |
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Finality of Judgment and the TC's Plenary Power
Motions to Reinstate (Reinstating a dismissal for D-WOP) 51 |
Rule 155a(3)
Must be filed w/in 30 days of final judgment. The shall reinstate the case upon finding after a hearing that the failure of the party or his atty WAS NOT intentional or the result of CONSCIOUS indifference but was do to ACCIDENT or MISTAKE. When a TC erroneously reinstates a case after the expiration of their plenary power, a mandamus will issue. |
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Finality of Judgment and the TC's Plenary Power
Motions to Reinstate - No Notice Given of Dismissal 52 |
If NO notice given, motions are governed by Rule 306a(4)
If party does NOT receive notice or acquire actual knowledge of the dismissal w/in 20 days after the signing of the order. All periods begin when the date of such party or his attorney received notice or acquired knowledge of the signing (whichever occurred first). BUT IN NO EVENT shall the period begin more than 90 days after the original judgment was signed. So basically the party gets an extra 30 days, if no notice w/in 20 days. |
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Finality of Judgment and the TC's Plenary Power
Motions for Sanctions 53 |
Motion for sanctions qualifies as a Motion to Amend, Correct or Reform Judgment under Rule 329b(g), thus extending the trial court's plenary power to change its judgment beyond the initial 30 day period (as per normal extension of rules).
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