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56 Cards in this Set

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1. D wants to object to JDX of court on ground he is not amenable to process. What must D file and when must it file it?
1. File a special appearance
2. Under the due order of pleading rule, it must be filed before (or with) any other pleadings or documents to avoid waiver
2. Assume D properly presents its objection to the Court's JDX. What may the Court consider in ruling on the objection? How should the court rule on the objection?
1. Pleadings, depos, affidavits, oral testimony
2. Ct should deny objection b/c min contacts w/Texas by advertising and sales in Texas
4. Assume D is considering removing the case to federal court on the basis of diversity of citizenship, given it is a Delaware Corp. Does D have a valid basis for removing the case on diversity grounds?
No, because no complete diversity. Except D, all remaining D's and the P are from TX
3. D2 does not want the case to proceed against him in Nueces Cou. because he does not live in the cty. What pleading must D2 file to present his obj to the case proceeding in Nueces Cty. and when must D2 file the pleading?
D2 must file a motion to transfer venue, which, under the due order of pleading rule, must be filed before (or with) any other pleading except for the special appearance.
5. Assume D2 properly files his obj. to the case proceeding against him in Nueces Cty. How should Paul respond, and how should the Court rule?
P should present evidence denying D2's pleaded venue facts.
The Court should deny the motion, b/c under the general venue rule, venue is proper in Nueces Cty. as all or at least a substantial amount events leading to this case happened here as well as Cty of D.
P sued D and D2 in a state district court in Nueces Cty. D and D2 were properly served with citations and a copy of P's original petition. When must D and D2 file answers to avoid a default judgment? Explain fully.
By 10 am on the first Monday following the 20th day after service upon them.
P is a resident of Nueces Cty. P was hit by a car in Wells Cty while crossing the street by D1 who is from Brooks Cty. The owner of the car was D2, D1s employer, whose PPB is Bexar Cty.
Does P have a proper basis for filing suit in Nueces Cty?
No, under the general venue rule the cty of P's residence is only proper if no other provision of the rule applies. Here, venue is proper in Wells Cty b/c where all events leading to action occurred; in Bexar Cty; where D2's PPB is located; or in Brooks Cty where D1 resides.
D1 and D2 want to object to being sued in Nueces Cty. How and when must they make this objection?
Motion to transfer venue
Motion must be filed before (or with) any other pleading except a special appearance
Assume D1 and D2 timely respond to P's Original Petition. The parties proceed with written discovery. List 5 items the parties may request from each other in Requests for Disclosure
1. The correct names of the parties
2. The name(s), addresses, and phone #'s of any potential witnesses
3. The amount and method of calculating economic damages
4. The name, address, phone # of persons knowing relevant facts & a brief statement connection to case
5. The name(s) of any testifying expert
6. The name, address, phone # of any potential responsible third party
7. Any insurance or indemnity agreements
8. Any witness statements
9. Request for authorization for disclosure of medical records, if relevant, in personal injury cases
P sent the following Request for Admission to D1: "Admit that your negligence in failing to keep a proper lookout was the cause of the collision and of the injuries P sustained in the accident. 45 days later D1 atty filed a response denying the request. What is the effect of the response filed by D1's atty?
It is deemed admitted, b/c D1 failed to respond within 30 days after service.
What pleading must D1's atty file to avoid this effect of the response to the req. for admission?
Motion to withdraw deemed admission, granted for showing of good cause, if withdrawal not prejudicial to opposing party
D2 served P with a request for production asking for all medical records related to P's treatment. P objected to the request claiming the records contain personal info. How can D2 bring the matter to the attention of the Court and how should the Court rule?
File a motion to compel production with the court, requesting a hearing on P's objection. Court will grant D2's motion if info relevant and not privileged.
D2 knows the identity of the doctors to treated P for his injuries. How can D2 obtain the pertinent med. records direct from the treating doctors?
Serve physicians and all parties with a subpoena compelling production. If this fails obtain a court order after hearing regarding production
P's atty served a notice to take D1's depo w/o conferring first with D1's atty. The notice provides the depo will be taken in P's attorney's office. D1's atty will be out of town on the date specified. Assuming P's atty is unwilling to reschedule what can D1's atty do to prevent depo from going forward on that date?
File a motion for a protective order or motion to quash notice of deposition within time permitted for response, stating reasonable time and place for depo to occur.
The parties scheduled P's depo by agreement. During the depo, P's atty repeatedly objected to questions on the ground that "the question assumes facts not in evidence" or that the question seeks "irrelevant information." P's atty also made statements suggesting answers to various questions. What basis, if any, does D1's atty have for complaining about the conduct of P's atty? What steps should D1's atty take to bring the matter to the Court's attention?
Objections at depos are limited to "form," "leading," and "non-responsive." Suggestive statements are not permitted. D1's atty may suspend the repo to obtain a ruling from the t/c that the objections and suggestive statements are improper, and impose costs or sanctions.
After completion of discovery, D2 wants to be dismissed from the case, on the belief that at the time of the collision, D1 was not acting within the scope of his job. How can D2 raise the issue with the Court and what must D2 show to obtain a dismissal.
File a motion for summary judgment, showing that there are no genuine issues of material fact and the only question(s) to be decided are matters of law. D2 must prove by preponderance.
Assume that D1 testified in his depo that at the time of the collision he was still carrying out his daily duties for D2. How can P rely on and present this testimony to prevent D2 from being dismissed for the case?
P should attach an excerpt of the depo to his response to the MSJ, serve it on all parties within 7 days of the hearing, and file a transcript of the depo with the court. This will allow the depo to be before the court as SJ evidence.
One week before the scheduled trial, D2's atty learns that the officer who investigated the collision would not be available to testify. D2's atty had not deposed the officer, b/c the officer had said he would testify at the trial if needed. What must D2 do and show to avoid going to trial?
File a motion for continuance, showing good cause, supported by an affidavit explaining materiality of the testimony and that the witness is unavailable.
Assume the case proceeds to a JT and that D1 and D2 are still defendants in the case. Assume that D2 plans to contend during the trial that D1 was not acting w/in the scope of his employment at time of collision. How should Court allocate preemptory strikes between P and the two D's?
Generally each side gets six strikes, so D1 and D2 should share. However, if cannot agree may ask Court for additional strikes. P will also likely ask for additional for balance between the sides, which will likely be granted.
Assume that weeks after the collision, a person who claimed to have witnessed the accident told P that D1 was at fault because D1 had failed to yield right of way. While P is testifying, his atty asks him to repeat the statement that was made by the purported witness. What objection, if any, should D1's atty make? How should the Court rule on such objection?
Objection, hearsay. Court should sustain the objection because it calls for the recitation of an out-of-court statement being offered for the truth of the matter asserted, that D1 was at fault. No exception applies.
D2's insurance carrier had paid P's medical and hospital expenses related to injuries sustained by P in the collision. During the trial P's atty offers into evidence a document showing those payments. What objection, if any, should D2's atty make? How should the Court rule?
Objection, evidence regarding offers to pay medical expenses may not be admitted to show liability or negligence.
The Court should sustain the objection.
D1's driving record showed that two years before the collision, he had received two misdemeanor convictions for speeding. P offers into evidence the record of these convictions to impeach D1's credibility. What objection, if any, should D1's atty make? How should the Court rule?
Objection, this is impermissible character evidence offered only to show propensity.
The court should sustain the objection.
After the first day of the trial, the Judge recesses the trial and orders the parties to mediation. The mediation is unsuccessful. The trial resumes. P's atty calls the mediator as a witness, because he wants the mediator to tell the jury that D2 did not act in GF during the mediation. What objection, if any, should D2's atty make to prevent the mediator from testifying?
Objection on the grounds that the mediation communication is privileged and protected from disclosure by statute. Mediations are confidential and mediators may not be compelled to testify.
Assume the case was tried on the theory that P, D1, and D2 were each independently responsible for the collision. Further assume that the Court wants to submit the following question to the jury:
Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer "yes" or "no" for each of the following:
a. P___________
b. D___________
What objections if any, should the attys make to the proposed question and when and how should the objections be made
P and D1's attys should object to the failure to include D2 in the question., before the jury charge is delivered to the Court, outside of the presence of the jury, and in writing or on the record in open court. Counsel must tender a correctly worded version of the question and requesting a ruling.
After deliberating, the jury returns a verdict in favor of P. However, D1 and D2 believe that the amount the jury awarded for future medical expenses has no support in the evidence. What motion, if any, can D1 and D2 file to raise the issue with the Court?
Motion for Judgment not withstanding the verdict
D would like access to P's medical records--how can he obtain them?
Request for disclosure seeking all medical records and bills reasonably related to the injuries, or, alternatively, D may request P's written authorization so that D may seek disclosure from the provider.
CASE LAW provides that the party requesting the disclosure has the option regarding which method, and their choice controls.
What is Subject Matter JDX?
SMJ is the court's power to hear a specific case

SMJ may never be waived
What is Personal JDX?
PJDX is the court's power over a party to the action or over a party's property

PJDX may be waived
What is venue?
Venue concerns the proper placement of a case within a judicial system
What determines if a court has SMJ?
Two things:
1. Whether the type of case or relief sought requires the case to be filed in a particular court or courts.
2. If the answer is no, what is the amount in controversy?
What type of cases would require filing in a particular court?
Probate, cases seeking a determination of title to land or enforcement of a lien on land (dist. ct. has exclusive JDX)
What determines the amount in controversy?
If the type of case does not require filing in a particular court, the amount prayed for in good faith by the P determines AIC.
How is the amount in controversy determined if there is a claim for something other than money damages? (i.e. mandamus or an injunction)
With reference to the value of the thing or interests sought to be restrained.
What are the specific AIC limits of Texas Courts?
Justice--Up to $10k
Constitutional Cty Ct.--Between $200.01 and $10k
Cty. Ct. @ Law--Begins at $200.01 and goes to maximum amount found in the statute creating the specific court. The max amt. is $200k, unless changed by statute for that court.
District Court--Anything over $500.00
What are the purposes of the P's original petition? (2)
1. Give fair notice to the parties of the facts and legal theories; and
2. Guide the trial judge in admitting evidence and charging the jury
What is required to be in the P's orig. pet.?
1. names and addresses of parties
2. short statement of the COA sufficient to give fair notice of the claim involved
3. in all claims for UNLIQUIDATED damages--P must state "damages sought are w/in the jdx limit of the court; and
4. a demand for judgment for all other relief which the party deems himself entitled.
5. P's signature
What does P's signature on the pleading indicate?
The signature of P or P's attorney is a certification that they have read the pleadings, and that to the best of their knowledge and belief, formed after a reasonable inquiry, the pleadings are not groundless or brought in bad faith for the purpose of harassment.
What happens if the P's petition is found to be brought in bad faith?
The victim D can file a motion for sanctions against the party or the attorney who signed the pleading. Sanctions may include costs and attorney fees.
P's petition states "the unliquidated damages are within the jurisdictional limit of the court." Is this an adequate allegation concerning damages, and if so, how can the D require the P to specify the maximum amount claimed?
Yes, this is adequate for unliquidated damages. The D should file a special exception asking court to amend so as to specify the maximum amount claimed.
(In fact, P MUST state exactly this if claiming unliquidated damages.)
What happens to the original petition if P files an amendment?
The original petition is superseded. Therefore, the amended pleading must be complete in itself.
P is injured in D's store. P files an original petition alleging injuries to his back and neck. 10 days before trial P's doctor diagnoses injuries to P's foot. 5 days before trial P files an amended petition seeking recovery of damages for the injury to his foot. D objects to the amendment. Should the court sustain the objection?
Yes, an amendment may be made w/o leave of court if filed more than 7 days before trial. If w/in 7 days, the P must seek leave of court to amend.
(This rule also applies to add affirmative defenses and counterclaims to the D's answer)
Suppose plaintiff seeks leave of court to amend his pleadings. Should the court grant the motion?
No. Leave should be denied it it adds a new COA or would cause surprise or hardship to the D.
At trial P offers evidence of injury to his foot w/o having filed an amended petition. Assume the evidence is admitted w/o objection. After the close of evidence, D objects to the charge to the jury, claiming that the jury should not be allowed to consider evidence related to the injury to the foot b/c it is not supported by any pleading. What steps, if any, should P take to overcome the objection?
Seek leave to file a trial amendment. Ct. should allow b/c D failed to object, and therefore, impliedly consented to trial of this issue.
Suppose D had objected to the evidence during trial as not being supported by the pleadings. How should P respond to the objection? How will the court likely rule?
Request leave to file trial amendment. Ct. should allow when presentation of merits will be served AND the objecting party is unable to show that amendment would prejudice him. Here, D would probably be able to show prejudice, and the court would deny P's motion for leave and sustain D's objection.
Suppose the court allows the amendment. How does the D preserve his right to complain on appeal?
If t/c allows and party opposing amendment needs more time, that party should request a continuance. If the party refuses and offer of continuance, the party waives his right to complain on appeal.
Suppose P sues D's for breach of k. D's assert that their agent did not have authority to enter into a k with P. If P wants to assert "ratification" as a reply to lack of authority, how can P introduce this theory into the case?
File a supplemental petition

(Supplemental petitions are used to reply to a D's defense)
What is the effect of a supplemental pleading?
A supplemental pleading is made in response to the last previous pleading of the adverse party. It adds to, but does not replace the last pleading.
Suppose that Paul and David have a k under which Paul agreed to supply materials and merchandise to David on account. David is overdue in paying the last 6 months' accounts. What must Paul plead in order to bring a suit on the account?
File a verified pleading on sworn account. This must contain: (1) an itemized statement of the goods or services sold; (2) reveal credits to the account; and (3) must be supported by an affidavit stating that the claim is just and true and w/in the affiants knowledge.
Suppose Paul's petition properly complies with the requirements for filing a sworn account. David wants to dispute the quality and quantity of materials supplied by Paul and the sums which Paul alleges he owes. What must David do in order to preserve his right to present his defenses to Paul's claim at trial?
File a written denial under oath.

(Failure to file a verified (sworn) denial prevents the D from denying the claim and waives the right to dispute ownership of or the amount of the account).
What are the grounds for exercising PJDX over a D?
1. physical presence in the forum state
2. D is domiciled in the forum state
3. D consents to State's JDX expressly or impliedly
4. D has MC with forum state
Suppose Sandy, a resident of Florida is driving to California to see friends. While in Dallas, Sandy's car hits Bubba as he crossed the street. Sandy continued to CA. Sandy had never been in TX before and plans to never return. Bubba filed suit in the proper state district court in TX. What basis exists for exercising JDX over Sandy in TX?
Minimum contacts
What must Bubba show to properly allege that Sandy has MC with Texas? (3)
1. the non-resident D or foreign corp. purposefully acted, or consummated some transaction, in TX
2. the cause of action arises from, or is in connection with, this act or transaction (spec. jdx)
3. the assumption of JDX by TX does not offend trad. not. of fair play and subst. justice
Suppose Harry C. Gull, a resident of Nueces County, travels to Florida for vacation. While in Florida, Harris is injured in a Bigco store, by an employee moving inventory. Bigco, a DE corp., has dozens of stores in TX along with a regional distribution center. Is Bigco subject to JDX in TX?
Yes, Bigco is subject to general JDX b/c Bigco's contacts with TX are substantial and systematic.
What are the requirements for In-state service of process?
1. Personal Service: D is served with process (citation and petition) by either personal delivery or mailing by registered or certified mail, return receipt requested
What if the P is unsuccessful in attempting to serve the D either in person or through the mail?
1. P can file motion and affidavit stating usual place of abode or business and asserting facts to show service attempted but unsuccessful
2. Court can authorized service by leaving copy of citation and pet. with anyone over 16 y.o. at the location specified in the aff. OR by any manner that will reasonably give notice to the D.
What can P do if he is unable to locate the D or his residence and other means of service have failed?
Request citation by publication, which will be issued by the clerk of the court.