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105 Cards in this Set
- Front
- Back
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What cases do district courts have exclusive jurisdiction over?
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1. suits for slander or defamation
2. adjudicate title 3. enforce liens on land 4. election contests 5. disbar 6. residual suits (no amt in controversy and no other court has jur) |
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What cases do district courts share jurisidiction with legislative courts?
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1. ouster of D from property
2. eminent domain 3. probate 4. family law |
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What courts have jurisdiction according to amount in controversy?
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1. $200 to $10k: Justice courts (exc. when < $200)
2. $200 to $10k: const. county courts 3. $200 to $100k: county courts at law 4. $500+: district courts and family courts |
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When are multiple plaintiffs claim amounts added together to get an amount in controversy?
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In district court ONLY
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If a counterclaim exceeds the amount in controversy limit of a court, where must it be brought?
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In acourt that can handle that amount
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Are class action claim amounts added up to get amount in controversy?
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Yes, but only for plaintiffs
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Are multiple claims by one P against one D added together for amt in controversy?
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Yes, unless P pleads alternatively.
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How must a minor sue or be sued?
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In the name of his guardian or "next friend"
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What should the facts in the original pleading show?
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1. a right in P and a corresponding duty in D
2. breach of right by D 3. P's injury as a result of D's breach 4. remedy w/in power of the courts |
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What are the formal requirements for a pleading?
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* in writing
* signed by party or attorney original petition must: * identify parties and include last 3 digits of DL and SS# * state capacity of non-ind parties * state residences of parties to establish venue * establish jur. of court |
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Do damages need to be specifically pleaded?
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No
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When can a pleading be amended w/o leave of the court?
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1. More than 7 days before trial.
2. If does not cause "surprise" |
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When is leave of the court required to amend a pleading?
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1. w/in 7 days of trial
2. after court has ordered all pleadings amended 3. more than 7 days before trial if other party claims surprise |
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What should a party file to prevent an amendment to pleadings?
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Motion to strike the pleading or make a motion in open court. Must allege:
1. surprise 2. prejudice or 3. lack of diligence |
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When should a trial amendment be allowed?
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When evidence is not supported by the pleadings and
1. presentation of merits will be served 2. obj. party is not prejudiced |
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What must an opposing party do to preserve error for appeal after an allowed pretrial amendment?
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Request a continuance
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What is required for waiver of service?
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1. written memo
2. signed by D after suit brought 3. verified 4. ack'd receipt of P's petition 5. filed with the court |
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Who to serve?
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1. Individual: obvious
2. Corp: designated agent or pres/VP 3. Pship: any GP 4. TX: SoS or AG 5. County: county judge 6. City: mayor, town clerk, secretary or treasurer |
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What type of appearance causes D to waive objections to jursidiction and defects in service?
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A general appearance
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When can a non-TX resident present in TX not be served?
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1. fraudulently enticed into state by P for purpose of service
2. comes for purpose of serving as criminal witness 3. making a special appearance in the case |
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What is 3 pronged due process test for jur. over a non-resident?
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1. must do some act or txn in TX
2. cause of action must arise from act or txn (not necessary if D has substantial contacts within TX) 3. jur. must not offend traditional notions of fair play and subst. justice. |
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What are the requirements of TX long arm statute?
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1. allows service on any entity "doing business" in TX
2. D is served by serving SoS 3. Petition must allege non-resident D 4. Service on any non-res motorist is on TXDOT |
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What must be alleged in a petition to reach a non-resident D under the long arm statute?
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1. non-resident of TX
2. no regular place of business or no person in charge in TX 3. no agent for service, or 2 attempts to serve have been unsuccessful 4. has been doing biz in TX |
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What must be contained in proof of service?
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1. when process served
2. sig of server 3. if failed, must show diligence used and cause of failure 4. if server can ascertain where D can be found, must state so |
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What is a dilatory plea?
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Plea in answer delaying or defeating actions w/o determining facts:
1. special appearance 2. motion to transfer venue 3. motion to quash 4. special exception |
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What is a plea in bar?
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Seeks to determine facts:
1. general denial 2. special denial 3. verified denial 4. affrimative defense |
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What must be filed to make a special appearance challenging personal jurisdiction?
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1. must file prior to or simultaneous with anything else
2. must allege that party is not amenable to jur - Burden of proof is on D - if any of these filing requirements fail, the appearance is general |
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What is the due order of pleadings?
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1. special appearances
2. transfers of venue 3. anything else * if you don't follow this order, you waive the out of order pleading |
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What is the general rule for venue?
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Lawsuit may properly be brought:
1) in the county in which all or a subst. part of the events giving rise to claim occurred 2) county of D's residence at time CoA accrued 3) county of D's principal office in TX 4) if none of these applies, county in which P resided at accrual of CoA |
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When can a court transfer venue?
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1) suit in county would work an injustice on movant, considering eco and pers hardship
2) balance of interests of all parties in favor of other county AND 3) transfer would not work injustice on any other party transfer permissive unless mandatory venue exception applies |
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What is a mandatory venue exception according to the nature of the defendant?
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Case must be transferred if D proves one of these exceptions:
Nature of D: 1) state or department heads: Travis county in mandamus 2) any county: in that sued |
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What is a mandatory venue exception according to the type of the cause of action?
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1. Land: venue proper in county where all or part of land located
2. Stay of proceedings: where suit is pending 3. Injuntions against judgment exec: where J is pending 4. Libel, slander, etc: where P resided, where D resided, where any D resides or where corp D domiciled 5. statutory cause of action: where venue in mand by statute 6. Landlord-tenant: where all or part of prop is located |
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What are the permissive venue exceptions for nature of defendant?
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Nature of defendant:
1. Executors/admins: to est. money demand=where estate admin'd, for negligence of T=where neg. occurred 2. Insurance cos: fire, marine or inland=ins prop located; life, health, accident=principal office, where loss occurred, where P resided. 3. Railroads: venue not proper where RR tracks maintained 4. Transient person: county where found |
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What are the permissive venue exceptions for nature of cause of action?
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1. breach of warranty by manufacturer of consumer goods: where events occurred, principal office, where P resided
2. Written K requiring perf. in county: in that county or D's domicile 3. Consumer K: where D signed K or resided 4. Statutory CoA w/ permissive venue: where statute says |
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Is transfer proper where party cannot receive an impartial trial?
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Yes
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What is the difference between jurisdiction and venue?
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* Venue: geographic location of a court that may hear a case
* Jurisdiction: power of a court to hear a particular case |
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What must a D's motion to transfer venue contain?
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1. attack the venue in which suit filed
2. request transfer to a specific county 3. designate statutory section making county proper or mand 4. when CoA essential, plead that "if" the cause accrued, it did so in transfer county 5. must file 45 days before venue hearing |
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Who has the burden of proof in a venue hearing?
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1. P shows venue is proper or mand where filed
2. If mand, court must deny motion 3. If permissive, court may grant transfer if D proves other county is mand 4. If P doesn't prove venue, court may transfer if D proves perm. or mand. 5. If neither party meets burden, no transfer, but can require additional proof to make decision |
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When can a party appeal venue?
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* After final judgment
* Can seek writ of mandamus unless venue based on convenience of parties or witnesses |
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What must be contained in a motion to change venue due to local prejudice?
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1. prejudice in the county
2. influential persons have combined so that party cannot expect a fair trial 3. impartial trial can't be had OR 4. other sufficient cause * Due order of pleadings does not apply, as prejudice may become known after answer |
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What is a motion to quash?
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* Challenge to defective service
* If granted, D doesn't have to be re-served * Motion constitutes a general appearance |
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When can a plea to jurisdiction challenging subject matter jur be made?
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At any time
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What do pleas in abatement challenge?
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1. Defects in the parties
2. Defects in the allegation |
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What are the different types of denials?
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1. General denial: shifts burden to P
2. Special denial: denial of conditions precedent 3. Verified denials: under oath |
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What are the rules of joinder?
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1. P may join all actions against a single D even if causes of action unrelated if court has jur over all claims
2. P must join all actions arising of single txn or be barred by res judicata |
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What is a cross-claim and are they permitted?
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* Cross claim is a claim against a party on the same side of a lawsuit (P suing another P)
* Generally premitted |
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When is a counterclaim compulsory?
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1. within courts jur
2. not subject of pending action 3. against opp. party in same capacity 4. arise out of same txn 5. not require 3rd parties over which court doesn't have jur AND 6. arise from a mature claim |
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When is a counterclaim permissive?
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When it is not compulsory
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When is joinder of a party compulsory?
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When party has a joint interest in the subject matter of the lawsuit and joinder is feasible
* Derivative suit must join corp * Suit to declare state statute unconst must join attorney general |
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How may a plaintiff join a new party?
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By amending his petition and serving the new party
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How may a defendant join a new party?
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1. 3P will be liable to D for all or part of P's recovery OR
2. 3P is directly liable to P * Must assert within 30 days of answer or get leave of court and give P notice (P can oppose) |
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What is an intervention by an unjoined party?
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* nonparty joins lawsuit as a matter of right (to protect interest) or permissively.
* subject to a motion to strike * denied if not timely, but no specific cutoff time (even allowed after final J in some cases) |
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What is interpleader?
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When a P pleads to require other parties to prove something
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What is necessary for a class action?
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1. risk of inconsistent results, ind. members recovery harms non-members, ind. recovery impairs ability of others to protect interests
2. party opposing class acted on ground generally applicable to class 3. common questions of law or fact dominate, making class action superior |
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What matters are generally discoverable?
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* Anything relevant to subject matter, including inadmissable matters that are reasonably calculated to lead to admissable matters
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What matters are specifically discoverable?
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1. Names, addresses, tel #s of potential parties
2. Persons having knowledge of relevant facts 3. Any persons expected to be called to testify at trial, other than unant. rebuttal or impeachment Ws |
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What type of experts and thei work product are subject to discovery?
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Testifying experts only, not consulting experts, unless consulting expert's work has been reviewed by testifying expert.
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What can be discovered from a testifying expert?
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1. name address tel #
2. subject matter on which will testify 3. mental impressions and opinions and methods used to derive them 4. facts that relate to or form the basis of opinions 5. documents prepared in anticipation of expert's testimony 6. evidence of bias of W |
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What items are not subejct to the work product privilege?
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1. info re: experts, trial Ws, W statements, and contentions
2. Trial exhibits that trial court orders disclosed 3. Identity of pot. parties or persons w/ relevant facts 4. Photos of underlying facts, or that party intends to offer into evidence 5. Work product created under exception to atty-client priv. |
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When is attorney work product discoverable?
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Only on a showing that:
1. party seeking disc. has a special need and 2. and is unable to obtain substantial equiv w/o undue hardship |
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What must a party do to assert privilege?
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Must file withholding statement or state in response that info withheld and privilege asserted. (not necessary for priv comm or doc in ant of lit)
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What must a party do if it inadvertantly produces a privileged doc?
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* must amend response within 10 days of discovering problem and state privilege asserted
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When does a party have a duty to supplement discovery?
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1. knows that response was incomplete or incorrect when made or
2. although correct when made, no longer is AND 1. disc sought relevant facts, trial or expert Ws or 2. other info not made known to parties previously |
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How soon must a party supplement discovery?
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Reasonable promptly after learning of the need
* If < 30 days before trial, presumed to be not reasonably prompt |
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What happens if you fail to timely respond to discovery?
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May not introduce into evidence or offer testimony not disclosed timely unless:
1. good cause 2. no unfair surprise to other party |
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What are the different levels of discovery control plans?
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Level 1: $50k or less
Level 2: all suits not governed by levels 1 or 3 Level 3: court ordered plan tailored to circumstances of suit |
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What are the characteristics of a level 1 discovery plan?
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* Discovery begins: when suit is filed
* Discovery ends: 30 days before trial * Depo limit: 6 hours, but parties can agree to 10 * Rog limit: 25, but unlimited # to auth specific docs |
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What are the characteristics of a level 2 discovery plan?
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* Discovery begins: when suit is filed
* Discovery ends: 30 days before trial (family code); 30 days or 9 months after first depo (other cases) * Depo limit: 50 hours, add 6 hours per expert when opp names 2+ experts * Rog limit: 25, but unlimited # to auth specific docs |
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What are the characteristics of a level 3 discovery plan?
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* Discovery begins: when court orders
* Discovery ends: when court orders * Depo limit: court sets limit * Rog limit: court sets limit |
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What are time limits for individual discovery requests and responses?
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* All requests due within 30 days of end of discovery period
* All responses due within 30 days of request |
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What are the specific discovery methods?
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1. requests for disclosure
2. request for production of documents and things 3. rogs 4. requests for admissions 5. oral depositions 6. written depos 7. signing, cert and use of depo at trial 8. depos in foreign countries |
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When is a default judgment proper?
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* any time after the answer is due and D has not filed one
* and the citation w/ the officer's return on it has been on file for 10 days, not counting the day of filing or judgment * clerk must mail notice to D |
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When can plaintiff dismiss or take nonsuit and what effect?
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* anytime before P has rested his case
* nonsuit dismissed case w/o prejudice to refile |
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When is summary judgment proper?
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1. when there is no genuine disputed issue of material fact AND
2. moving party is entitled to judgment as a matter of law |
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What are the exceptions to a right to a jury trial?
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1. civil contempt
2. election contest 3. writs of habeas corpus 4. venue contests |
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Is the right to a jury trial automatic?
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NO. MUST demand
* right is not automatic * waived if not demanded w/in a reasonable of time of docket setting * not less than 30 days |
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What is a motion for continuance?
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* motion to rest case for a later date
* mandatory if: 1. party or atty is a TX legislator and 2. proposed date is 30 days before, during, or 30 days after leg. session 3. unless leg-atty employed w/in 10 days of trial, in which case discretionary (keeps parties from hiring atty only to get continuance) If opp shows irreparable harm, no continuance even if mand. |
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What is a motion in limine?
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Motion before voir dire seeking to have opposing counsel not mention an issue in the presence of the jury.
* if violated and serious enough, can lead to mistrial |
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What is voir dire?
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Basically jury selection
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What is the qualification to be a jury?
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1. 18 years old
2. qualified to vote 3. read and write English 4. citizen of state / county 5. not a felon 6. sound mind 7. good moral character 8. not served 6 days w/in preceding 6 months (district) or w/in 3 months (county) |
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What are exemptions to jury service?
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1. over 70
2. custody of child under age 10 3. students |
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What is a challenge to the array?
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Challenge to manner of selecting the entire jury panel
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What is a challenge for cause?
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1. interested in subejct matter of case
2. witness in case 3. related to party w/in 3 rd degree 4. member of previous jury which has tried same case 5. prejudiced in favor or against one party |
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What is a peremptory challenge?
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Challenge without a cause
* cannot exercise based on race or gender |
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Are witness excluded from the court room?
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Yes, so that testimony of other witnesses won't influence them.
* Exceptions: 1. party who is natural person or his spouse 2. designated reps of non-natural parties 3. any other person essential to pres of case-in-chief (e.g. an expert) |
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When are leading questions proper?
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Only on cross
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Who is allowed rebuttal testimony?
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Plaintiff. If P rebuts, D gets a chance to as well.
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When is reopening permitted after closing statements?
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If necessary for justice
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What must a plaintiff show for a directed verdict?
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1. he has conclusively proven all elements of at least one ground of recovery and
2. D has failed to produce any evidence on at least one element of each ground of defense |
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What must a defendant show for a directed verdict?
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1. he has conclusively all elements of at least one defense or
2. P has failed to produce any evidence on at least one element of each ground of recovery |
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What is a special verdict?
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Asks the jury not who wins, but facts questions which guide the judge in deciding who won or lost
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When a denied instruction reversible error?
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Only if it was "necessary" to enable the jury to render a verdict
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When must complaints re: jury charge be submitted?
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Before charge is read and without jury present
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What happens when a jury returns conflicting answers?
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* judge tries to resolve the conflict
* if cannot be done, decides if fatal * if fatal, mistrial |
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When is a non-unanimous jury verdict allowed?
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* Civil case
* 5 of 6, or 10 of 12 jurors agree to all answers |
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When may a judge disregard the jury's findings?
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Only where there is no evidence to support a finding
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What is the requirement for a JNOV?
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Same as a directed verdict
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What are the elements of res judicata?
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1. previous final judgment on the merits by court of competent jurisdiction
2. actually ruling on and disposing of an issue identical to the one in present action 3. ruling was material to rendition of previous judgment 4. party to be bound was a party or in privity to a party in previous case |
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What is the law of the case doctrine?
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A determination of a question of law is treated as correct for entire case, except when clearly erroneous
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What cases does the Texas Supreme Court have jurisdiction over?
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Civil matters only
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When is a motion for a new trial a prereq for appeal?
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Where there is a(n):
1. complaint on which evidence must be heard 2. complaint of factual insufficiency to support a jury finding 3. complaint that jury finding is against great weight and preponderance of the evidence 4. inadequacy or excessiveness of damages 5. incurable jury argument filed w/in 30 days of judgment |
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What are the applicable statutes of limiations?
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One year: malicious pros, slander, breach of promise to marry
Two years: most common tort claims Four years: actions based on Ks or sworn accounts Cause does not accrue until discovered in fraud, except medical malpractice (2 years from date of injury or last treatment by HCP) |
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When must a notice of removal be filed?
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Within 30 days of receipt of initial pleading
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When may a case be removed to federal court?
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1. federal question
2. complete diversity of citizenship w/ req. amt in cont. 3. no D is a citizen of the state where the action is brought |
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May the TX supreme court issue advisory opinions to Fed Circuit courts and US Supreme Court?
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Yes
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