Texas Civil Procedure

Front 1

What are the four trial courts in Texas and their amount in controversy requirements?

Back 1

District Court: +$500
County Courts at Law: +$200-$200,000
Constitutional County Courts: +$200-$10,000
Justice of the Peace Court: <$10,000

Front 2

When can certain amounts be aggregated to meet a court's subject matter jurisdiction?

Back 2

Single Plaintiff, Multiple Claims
Multiple Plaintiffs, Sam Defendant

Front 3

When and how must a party plead the amount in controversy?

Back 3

The P may plead the amount in controversy in his petition but at least must state in his petition that the damages are within the jurisdictional limits of the court.

Front 4

What happens if the Plaintiff doesn't plead damages?

Back 4

SPECIAL EXCEPTION: If the P fails to plead the maximum amount claimed in damages, the D files a special exception, which requires the P to specify the maximum amount claimed.

Front 5

What happens if the amount in controversy is outside the jurisdictional limits?

Back 5

PLEA TO THE JURISDICTION: If the amount in controversy pleaded is outside the jurisdictional limits of the court, the D files a plea to the jurisdiction because the court does not have the authority to hear the case.

Front 6

What is the procedure that initiates the appeal?

Back 6

Notice of Appeal

Front 7

What must the notice of appeal include?

Back 7

1)The trial court's name and case's trial court number and style;
2)The date of the judgment or order appealed from;
3)A statement that the party desires to appeal;
4)The court to which the appeal is taken; and
5)The name of each party filing the notice of appeal

Front 8

Does the filing of a notice suspend the enforcement of the trial court's judgement?

Back 8

NO, A party may suspend enforcement of the judgement by:
1)Written agreement with the judgment creditor;
2)Filing with the trial court clerk a good and sufficient bond;
3)Making a deposit with the clerk in lieu of a bond; or
4)Providing alternate security as ordered by the court

Front 9

What is filed with the S.Ct. of Texas for review?

Back 9

Petition for Review

Front 10

What is the General Venue Rule?

Back 10

All lawsuits must be brought in the county where:
All or a substantial part of the events that gave rise to the action took place;
The D resided at the time of the event;
The D's principal office in the state, if the D is not a natural person; or
IF none of these situations apply, the county where the P resided at the time of the event.

Front 11

What is a residence?

Back 11

A fixed abode/domicile that one occupies or intends to occupy permanently.

Front 12

What is a principal office?

Back 12

The place where the decision makers for the organization within the company conduct the daily affairs of the organization.

Front 13

How does a defendant challenge the plaintiff's choice of venue?

Back 13

The D files a MOTION TO TRANSFER VENUE

Front 14

What are the four grounds for challenging plaintiff's choice of venue?

Back 14

P's choice of venue is improper under the applicable venue rule;
The case should be transferred to another county of proper venue on convenience and justice grounds;
The parties consent to a venue transfer; or
A local prejudice makes it unfair for the case to be heard in the county of suit.
*The procedure to challenge venue when local prejudice exists is called a MOTION TO CHANGE VENUE

Front 15

What is the deadline regarding the Motion to Transfer Venue?

Back 15

- The motion to transfer venue must be filed before any other pleading or motion is filed in the case (except for the special appearance)
- Under the due-order of pleading rule, this means that the motion to transfer venue is filed prior to or concurrently with the filing of the answer.
- A venue objection is waived if not timely filed.

Front 16

What is included in a motion to transfer venue?

Back 16

One that is based on improper venue should deny P's venue facts alleged in the petition, if appropriate, explain why the P's choice of venue is improper, allege another proper county of venue with specific venue facts to bolster the assertion, and request that the court transfer the case to that county.

Front 17

Who bears the burden when venue is challenged?

Back 17

The burden is on the P to establish by prima facie proof that venue is proper in the original count of suit.

- Prima facie proof may be established through affidavits, discovery documents, and any other sources of information.

Front 18

When must notice be given for a venue hearing and when must responses and evidence be filed?

Back 18

Each party is entitled to at least 45 DAYS notice of the hearing.
The P's response and evidence must be filed at least 30 DAYS before the hearing date.
Any additional reply and evidence must be submitted by the D at least 7 DAYS before the venue hearing.

Front 19

What must a Texas court need in order to exercise personal jurisdiction?

Back 19

The D must be given formal notice of the lawsuit through SERVICE OF PROCESS and the D must have sufficient MINIMUM CONTACTS. with Texas such that it is fair for the Texas court to exercise JD over the D.

Front 20

How may a service of process be made?

Back 20

It can be made on a D through hand delivery, certified mail, return receipt requested, and other means by court order.

Front 21

What is the answer deadline?

Back 21

The defendant MUST file a written answer with the clerk who issued the citation by 10am on the Monday next following the expiration of 20 days after the date of service.

Front 22

What happens if the Defendant fails to file an answer prior to the deadline?

Back 22

The P may obtain a default judgement against the D.
The P should file a MOTION TO DEFAULT JUDGEMENT. This entitles the P to a liability finding, if those damages are unliquidated, it will have to prove up those damages in a subsequent hearing.

Front 23

To whom is a service of process made on a corporation?

Back 23

Service of process if made on a corporation by serving registered agent, president, or vice president.

Front 24

What must a plaintiff's petition allege in support of the long-arm service?

Back 24

1)The secretary of state is the agent for service on the nonresident defendant;
2)The non-resident D engaged in business in Texas;
3)The non-resident D does not maintain a regular place of business in Texas;
4)The non-resident D does not have a designated agent for service of process in Texas; and
5)The lawsuit arises from the nonresident's business in Texas.

Front 25

How does a non-resident D object to a court's personal jurisdiction?

Back 25

By filing a SPECIAL APPEARANCE.

Front 26

What is the deadline for a Special Appearance?

Back 26

The defendant MUST file the Special Appearance as the first pleading in the case under the due-order-of pleading rule and it must be filed BEFORE the answer deadline.
*A special appearance filed after the filing of the answer waives personal jurisdiction because it is considered a general appearance.

Front 27

What is the evidence considered for a special appearance?

Back 27

The court makes its ruling on the special appearance by considering affidavits, stipulations, pleadings, the results of discovery processes, and through oral testimony.

Front 28

When does a waiver of personal jurisdiction over a non-resident occur?

Back 28

When the special appearance is not timely filed.
* Waiver does NOT occur just because other pleadings or motions are filed after the special appearance so long as the documents do not acknowledge the trial court's jurisdiction.
* A defendant does not waive its special appearance by utilizing discovery processes related to the special appearance.

Front 29

What must a non-resident defendant prove in its special appearance? (Minimal Contacts Test)

Back 29

1) No purposeful availment. It did not purposefully avail itself of the benefits and protections of Texas law.
2) Specific Jurisdiction. The P's cause of action does not arise from or relate to the non-resident D's contacts with Texas. (the contacts are not substantially connected to the operative facts of the litigation)
3) No general jurisdiction. The non-resident defendant did not have continuous and systematic contacts with Texas.
4) Fair play and Substantial justice. The exercise of jurisdiction by the court would violate traditional notions of fair play and substantial justice.

Front 30

How does a lawsuit begin?

Back 30

The P commences the case in state court by filing a PETITION. The petition MUST contain a short statement of the cause(s) of action sufficient to give FAIR NOTICE of the claim(s) involved.
The D makes a general appearance in the case by filing an ANSWER.

Front 31

What are the defenses state in the answer?

Back 31

General Denials: Every answer filed in state court MUST include a general denial.
Special Denial: one that a genearl denial is insufficient to put the P's allegations at issue. They usually have to be verified by affidavit based on personal knowledge.
Examples: See pg. 12

Front 32

What is an affirmative defense?

Back 32

It is a defense as to why the P should not recover on his cause of action. The D has the burden at trial and must specifically plead all affirmative D's in its answer.
Examples: Contributory negligence, duress, estoppel, laches, release, res judicator, statute of frauds, statute of limitations, and waiver.

Front 33

When is a counter claim compulsory?

Back 33

A D should include in its answer any claims for affirmative relief that it has against the P.
A counterclaim is compulsory if:
1) It is within the jurisdictional limits of the court;
2) it is not at the time of the filing of the answer the subject of a pending action;
3) The claim is mature and owned by the defendant at the time of the filing of the answer;
4) It arose out of the same transaction or occurrence that is the subject matter of the opposing party's claim;
5) It is against the opposing party in the same capacity; and
6) It does not require the presence of third parties over whom the court cannot acquire jurisdiction.

Front 34

When can a D assert a cross-claim?

Back 34

A co-defendant may assert a claim for affirmative relief against another co-defendant by filing a cross-claim.

Front 35

How does a party challenge defects in the pleadings?

Back 35

SPECIAL EXCEPTION:
Defects that are apparent on the face of the pleadings are challenged by special exception.
- Points out the pleading defect with particularity and explains how the pleading defect may be cured. If granted, the opposing party must amend his pleadings to cure the defect.
PLEA IN ABATEMENT:
Defects that are not apparent from the face of the pleadings but that may be proven through extrinsic evidence are challenged by a plea in abatement. See. Ex. 13 pg. 14 (same suit in two different courts)

Front 36

When can a party amend their pleadings?

Back 36

Parties may amend their pleadings as a matter of right prior to the deadlines established by the trial court's schedule order.
- If no scheduling order controls the amended pleadings deadline, the parties may amend their pleadings at least 7 days prior to trial.
*A trial court should not permit the amendment of pleadings if the amendment would surprise or prejudice the opposing party.
TRIAL AMENDMENT: A party that wants to amend their pleadings during trial should file a trial amendment.
MOTION TO STRIKE: The procedure to challenge a party's filing of amended pleadings is a motion to strike.

Front 37

What are frivolous pleadings?

Back 37

Pleadings that are groundless and brought in bad faith or harassment purposes are frivolous.
Pleadings that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation and discovery are also frivolous.

Front 38

What are some of the possible sanctions for a frivolous pleading?

Back 38

paying the opposing party's attorney's fees and expenses.
excluding evidence
striking the pleadings
ordering the payment of a monetary penalty into court; and
dismissing the party(could be attorney) and/or case

Front 39

What is res judicata?

Back 39

Texas law requires that parties to a lawsuit assert all "same transaction" claims that they have against each other in the initial lawsuit.
Any "same transaction" claims that are not brought in the initial lawsuit by the P will be later barred on res judicata grounds if the initial suit proceeds to a final judgement.

Front 40

What is the compulsory counterclaim rule?

Back 40

Any "same transaction" counterclaims that are not asserted by the defendant in the initial lawsuit will be later barred by the compulsory counterclaim rule if the initial suit goes to a final judgement.

Front 41

What is the remedy for when claims are improperly joined in a lawsuit?

Back 41

The remedy is SEVERANCE.
The procedural device to separate the claims into 2 different suits is a MOTION FOR SEVERANCE.

Front 42

What are the 3 elements of a Motion for Severance?

Back 42

1) The controversy MUST involve more than one cause of action;
2) The severed causes MUST be one that would be the proper subject of a lawsuit if independently asserted; and
3) The severed causes MUST not be so intertwined as to involve the same identical facts and issues.

Front 43

What is the procedure to have claims tried in separate trials?

Back 43

MOTION FOR SEPARATE TRIALS: The procedure to have claims tried in separate trials within the same lawsuit is the motion for separate trials.

Front 44

What may a court do when there are "same transaction" claims in separate lawsuits?

Back 44

A trial court may consolidate those claims into one case before the court.
The party seeking to consolidate separate suits files a MOTION TO CONSOLIDATE.

Front 45

What must a person do if they wish to join a lawsuit?

Back 45

A person who desires to join an on-going lawsuit of his or her own accord files a PETITION TO INTERVENTION.

Front 46

How may a plaintiff voluntarily dismiss a case?

Back 46

NON-SUIT: At any time before the P has introduced his evidence other than rebuttal evidence, the P may voluntarily dismiss the case.
*The non-suit and accompanying dismissal order from the trial court operates as a dismissal without prejudice as to the suit.

Front 47

How may a defendant bring in a third party?

Back 47

A D may bring in a third-party to the case on the ground that the third-party is actually responsible for the P's injuries by filing a THIRD-PARTY PETITION.

Front 48

What is an interpleader?

Back 48

When monetary proceeds or other property are claimed by several parties, a disinterested stakeholder may file an interpleader action to bring all of the parties into the suit that have a possible claim to the proceeds.

Front 49

What are the permissible forms of Discovery?

Back 49

Requests for Disclosure
Requests for Production
Requests for Inspection of Documents and Tangible Things
Interrogatories to a Party
Requests for Admission
Oral or Written Depositions
Motions for Mental or Physical Examinations
*Discovery requests to NONPARTIES must include the appropriate discovery request and supena.

Front 50

What is the deadline to respond to written discovery requests?

Back 50

The responding party must serve a written response on the requesting party within 30 DAYS after service of the request.
Exception: A defendant served with a request before the defendant's answer is due must respond within 50 days after service of the request.

Front 51

What is discoverable through a Request for Disclosure?

Back 51

Names of the parties to the lawsuit
Names, addresses, and telephone numbers of potential parties
Legal theories and factual bases of the opposing party's claims and defenses
Amount and method of calculating economic damages
Name, address, and telephone number of persons having knowledge of relevant facts and a brief statement of each person's connection with the case
Basic information regarding any testifying expert
Any indemnity and insuring agreements
Any witness statements
In a suit for personal injury, medical records and bills reasonably related to the injury suffered, or, in lieu of the records, an authorization permitting the disclosure of such records.
Name, address, and telephone number of any responsible third parties.

Front 52

What happens if a Request for Admission is not timely served?

Back 52

The request is considered admitted without the need for a court order.
This is called a deemed admission and conclusively admits to the matter in question unless the Court allows the party to withdraw or amend the admission.

Front 53

How may a party have the deemed admission withdrawn?

Back 53

To obtain the withdrawal of deemed admissions, the party must move to withdraw the admissions and must show good cause for the withdrawal and that the opposing party will not be unduly prejudiced by permitting withdrawal.

Front 54

What can a party do when the other party fails to respond adequately to written discovery request?

Back 54

MOTION TO COMPEL: If a party does not adequately respond to a written discovery request like a request for production or interrogatory, the party requesting discovery may file a motion to compel.

Front 55

What happens when a party fails to list a witness as a trial witness?

Back 55

A party who fails to timely list a witness as a potential trial witness may not offer that witness' testimony at trial unless the court finds that there was good cause for the failure to identify the witness and the failure to timely identify will not unfairly surprise or prejudice the other parties in the case.

Front 56

How may a party serve another for an oral deposition?

Back 56

NOTICE OF DEPOSITION: A party may take the oral deposition of an opposing party by serving a notice of deposition on the opposing party.
A party may take the oral deposition of a witness by serving on that witness a notice of deposition and a subpoena.

Front 57

What is the time frame for a notice of deposition?

Back 57

Must be served on the witness a reasonable time before the deposition is taken. 10 days advance notice of the deposition of a party without any request for documents probably meets this standard.

Front 58

What are the contents of a notice of deposition?

Back 58

Name of witness
- If organization, the organization must designate a corporate representative to testify on its behalf regarding the matters on which examination is requested.
Time and Place of deposition
Any alternative methods
Any additional attendees besides the witness, parties, spouses of parties, counsel, and the deposition officer.

Front 59

Who may a party or witness object to the time and/or place of deposition?

Back 59

MOTION TO QUASH: A party or witness may object to the time and place for an oral deposition by filing a motion to quash or a motion for protective order.

Front 60

Can a party claim a privilege after providing the information to the requesting party?

Back 60

Yes.
SNAP-BACK PROVISION: A party who produces material or information without intending to waive a claim of privilege does not waive the privilege claim if the producing party identifies the material produced and claims the privilege within 10 days that the production was made.

Front 61

How must a party assert a privilege?

Back 61

WITHHOLDING STATEMENT: If written discovery is served on a party and privileged information is responsive to such request, the party asserting the privilege should file a withholding statement.

Front 62

After the filing of a withholding statement, what is the procedure?

Back 62

The requesting party may then request that the withholding party more specifically identify the information and material withheld by preparing and serving a privilege log.
After the privilege log is prepared and served, the requesting party should have sufficient information as to whether to challenge the claim of privilege in court.
The court may hold a hearing to resolve disputes regarding a claim of privilege in response to a written discovery request.

Front 63

How does an expert become a testifying expert?

Back 63

An expert becomes a testifying expert at the point in which the party formally designates the expert as a testifying expert witness.
- A party seeking affirmative relief designates its testifying experts at least 90 days before the end of the discovery period.
- All other testifying experts are designated at least 60 days before the end of the discovery period.

Front 64

What are the 3 permissible ways to obtain discovery from a testifying expert witness?

Back 64

Request for disclosure
Deposing an expert/ oral deposition of expert
Expert Witness Report

Front 65

How does one challenge the expert witness testimony?

Back 65

Dobert Robinson Motion to Exclude the Expert Witness' Testimony: A party may move before or during trial to exclude the expert witness's testimony on admissibility grounds.

Front 66

What are the possible grounds for challenging the expert witness testimony?

Back 66

Lacks the qualifications to testify as an expert in the particular field at issue.
Testimony not reliable because it is based on flawed reasoning or an invalid methodology; or
Testimony is irrelevant

Front 67

What will courts consider when determining whether a scientific methodology or specialized knowledge methodology is reliable?

Back 67

The extent to which the theory can be tested
the technique's potential rate of error
whether the theory has been or could be subjected to peer review or publication
Whether the underlying theory or techniques has been generally accepted as valid by the relevant scientific community
The extent to which the technique relies upon the expert's subjective interpretation; and
Non judicial uses of the theorer's technique

Front 68

How must one make a proper request for a jury trial?

Back 68

A party must do two things at least 30 days before the date the trial is set:
1) Make a written request for a jury trial, also known as a JURY DEMAND; and
2) Pay the jury fee.

Front 69

What can an opposing party file to prevent a jury trial?

Back 69

MOTION TO STRIKE THE JURY DEMAND: If a jury demand is untimely or there is no right to a jury trial in the case, the opposing party may file a motion to strike the jury demand.

Front 70

What is the time frame for notice of a trial setting?

Back 70

45 days notice

Front 71

How may a party postpone a trial date?

Back 71

MOTION FOR CONTINUANCE: Once the case is set for trial on a certain date, a party may move to postpone the trial date by filing a motion for continuance.

Front 72

What are the possible grounds on which a party may base a motion of continuance?

Back 72

The attorney has a conflicting trial in another court on the same date;
The attorney representing a party recently withdrew as counsel of record in the case;
A material witness is unavailable to testify at trial,
perhaps due to health reasons;
** Testimony of missing witness is material and not available form another source, proof of due diligence to procure missing witness's testimony, what witness is expected to prove, continuance sought not for delay but for justice.
A supoena powers material witness failed to appear for trial;
The party or an attorney is serving as a Texas Legislator at the time of the trial setting
* The continuance must:
be in writing, supported by affidavit, sufficient cause, notice to other side.

Front 73

What must a party file to have a particular piece of evidence inadmissible?

Back 73

MOTION IN LIMINE: An eve of trial motion that attempts to get a preliminary ruling from the judge that a piece of evidence is not admissible.

Front 74

What are the two types of summary judgement motions?

Back 74

Motion for Summary Judgement (Traditional): The movant must introduce competent summary judgement evidence to conclusively establish that there is no genuine issue of material fact and that it is entitled to judgement as a matter of law.
- The movant does produce evidence.
"No Evidence" Motion for Summary Judgement: The movant moves for summary judgement on the ground that there is "no evidence" of one or more essential elements of a claim or defense on which the other party has the burden of proof at trial.
- The movant does not produce evidence.

Front 75

What are the summary judgement requirements?

Back 75

Summary judgement evidence must be in admissible form;
A summary judgement motion must be set for hearing;
The summary judgement motion and any supporting evidence must be filed and served on opposing counsel at least 21 days before the hearing date; and
A summary judgement response and any controverting evidence must be filed and served not later than 7 days before the hearing date.

Front 76

How may one challenge the procedure in which jurors are summoned?

Back 76

MOTION TO CHALLENGE THE ARRAY: Any challenges to the procedure in which potential jurors are summoned to report to the general jury panel are made through a motion to challenge the array.

Front 77

What are the grounds for challenging a panelist for cause?

Back 77

The panel member is a witness in the case
The panel member has an interest in the case
The panel member is related to a party within the 3rd degree
The panel member has served as a juror in an earlier trial of the same case
The panel member has a bias or prejudice regarding the case.

Front 78

What must a party that loses a challenge for cause do to preserve error for purposes of a later appeal?

Back 78

Challenge the panelist for cause and get adverse ruling;
Before giving strikes to the clerk, inform the court that due to the court's refusal to strike the for-cause panelist, the party will exhaust its peremptory challenges before striking an objectionable panelist;
Identity the specific objectionable panelist who will remain on the jury list once the party uses its last peremptory strike;
Request the trial court to compensate for the erroneous ruling on the for-cause challenge by reversing the ruling or granting the party an additional peremptory strike;
Give the clerk the list of peremptory strikes; and
The objectionable panelist must actually serve on the jury for there to be error.

Front 79

How many peremptory challenges do the parties have?

Back 79

In a two party case, each party is entitled to 6 strikes in a District Ct. and 3 strikes in a county court at law.
*In a multiple party case, each side gets the same number of strikes unless there is antagonism among parties on the same side vis-a-vis each other.

Front 80

What must a party file to have the court equalize (or add) the number of strikes?

Back 80

MOTION TO EQUALIZE: The party that wants additional strikes may file a motion to equalize.

Front 81

What is the restriction on the peremptory challenge right?

Back 81

BATSON CHALLENGE: If a party believes that another party used a peremptory challenge on a panelist because of his or her protected characteristic, the challenging party may make a batson challenge before the court impanels the jury and dismisses the excluded panelist.

Front 82

What is the procedure of a Batson Challenge in court?

Back 82

The batson challenger must introduce evidence to show that the true reason for the strike was the protected characteristic.
The challenger should make a record of the objection, which includes the racial composition of the panel and identify the panelist(s) excluded.
The initial burden is on the challenger to make a prima facie case of discrimination.
- if this burden is satisfied, the batson respondent must produce a legitimate non-discriminatory reason for its decision to strike the juror in question.

Front 83

What is the purpose of invoking the RULE?

Back 83

Prevent witnesses form having their testimony influenced by listening to the testimony of other witnesses.
Exemptions: The classes of prospective witnesses exempt from THE RULE are:
- the party and his spouse if the party is a natural person;
- If the party is a corporation or entity, the corporation's designated representative; and
- A person whose presence is essential to the presentation of the case (expert witness).
Remedies: If THE RULE is violated, the judge may decide to exclude the witness from testifying or hold the witness in contempt.
Example: "Invoke the Rule" - Swearing them in and then instructing them not to converse with other witnesses about the case, not to be in the courtroom while testimony in the case is going on, and not to read any report or comment about the case.

Front 84

How must a party object to a jury charge?

Back 84

Unless expressly waived by the parties, the trial court delivers a written charge to the jury. Prior to the jury charge, a party may object to the charge. The objection must be in writing. Either party may present to the court written questions, definitions, and instructions to be given to the jury. Such requests must be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties for examination. The court may choose to give all, none, or part of the submitted instructions to the jury. A party objecting to an instruction must point out the objectionable matter and the grounds of the objection. All objections to the charge or instructions are deemed waived if not presented.

Front 85

How may a party allege jury misconduct? and may a juror testify about the formal jury deliberations?

Back 85

MOTION FOR NEW TRIAL: A party alleging jury misconduct may do so by filing a motion for new trial based on jury misconduct.
A juror may not testify about any statements made or matters discussed during the formal jury deliberation or about the effect of anything on a juror's mental processes.
The exception is that a juror may testify about whether an outside influence was brought to bear upon the jury during formal deliberations.

Front 86

What may a court do if the jury says they are deadlocked?

Back 86

DYNAMITE CHARGE: If the jurors have not been deliberating for a lengthy amount of time, it is appropriate for the Court to provide a supplemental instruction to the Jury known as a dynamite charge.
- The instruction urges the jury to reach a verdict if at all possible but also tells individual jurors not to surrender their conscientious views found on the evidence unless they are convinced otherwise.

Front 87

What is polling the jury?

Back 87

After the verdict is read in open court, any party has the right to have each juror asked individually whether this is truly his or her verdict.
The court reads each jury question and the corresponding answer, calls the name of each juror, and asks if that is the verdict of that juror.

Front 88

How may a party challenge the legal sufficiency of the evidence?

Back 88

Summary judgement
Motion for Directed Verdict
Objection to the Submission of a Jury Question in the Jury Charge
Motion for Judgement Notwithstanding the Verdict
Motion to Disregard Jury Findings
Motion for New trial

Front 89

How may a party challenge the factual sufficiency of the evidence?

Back 89

Motion for New Trial
Motion for Remittitur

Front 90

What is the scope of legal sufficiency review?

Back 90

The judge should consider the evidence in the light most favorable to the nonmovant or the jury's findings

Front 91

What are the complaints that must be made in a motion for new trial?

Back 91

1) Complaint on which evidence must be heard such as one for jury misconduct, or newly discovered evidence or failure to set aside a judgment by default;
2) A complaint of factual insufficiency of the evidence to support a jury finding;
3) A complaint that a jury finding is against the overwhelming weight of the evidence;
4) A complaint of inadequacy or excessiveness found by the jury [a remittitur request]; or
5) Incurable jury argument if not otherwise ruled on by the trial court.

Front 92

What is a request for a remittitur?

Back 92

A request for a remittitur claims that the damages amount awarded by the jury is excessive.
- Asks the winning party to remit the part of the damages award that is excessive so that the damages is one that is supported by the evidence.

Front 93

What is the length of time a trial court has plenary power over a judgement?

Back 93

No Motion for New Trial Filed: the trial court has 30 days from the date that the judgement is signed to grant a new trial or vacate, modify, or reform the judgment.
Motion for New Trial Overruled: The trial court's plenary power extends an additional 30 days from the date that the motion is overruled.
Motion for New Trial Granted: the trial court has ongoing plenary power over the case until the original judgment is reinstated or a new judgment is signed.

Front 94

What interlocutory appeals are a matter of right?

Back 94

Orders appointing a receiver or trustee
class action certification orders
orders granting or denying temporary injunction relief
denial of official-immunity summary judgement
denial of free-speech summary judgement
an order that grants or denies the special appearance of a defendant
an order that grants or denies a plea to the jurisdiction by a governmental unit
interlocutory orders related to expert witness reports in health care liability claims
an order that denies a motion to dismiss an asbestos or silica-related claim.

Front 95

What is Mandamus?

Back 95

Interlocutory rulings in which there is no statutory right to interlocutory appeal might be able to be challenged by seeking a writ of mandamus.
- The test for mandamus relief is whether the relator demonstrates that the lower court's ruling is
1) a clear abuse of discretion and
2) there is no adequate appellate remedy

Front 96

What are the deadlines for a regular appeal?

Back 96

The deadline to file a notice of appeal is within 30 days from the date the judgment is signed if the appeal is from a final judgement.

If a motion for new trial or motion to modify judgement is filed after the judgement, the deadline to file the notice of appeal is 90 days from the date the judgement is signed.

Front 97

What is the deadline for an interlocutory appeal?

Back 97

The deadline to file notice of appeal is within 20 days after the order is signed.

Front 98

What is the deadline for a restricted appeal?

Back 98

Notice of appeal must be filed within 6 months after the judgment or order is signed.