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155 Cards in this Set
- Front
- Back
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Two basic questions used to determine which courts have SMJ
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1. Whether type of case/relief requires the case to be filed in a particular court.
2. If no, what is the amount in controversy? |
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Calculating the amount in controversy
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- Amt prayed for in good faith
- if there is a claim for other than $ damages, the amt in controversy is determined w/ reference to value of thing/interest sought to be restrained |
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Specific Limits to amount in controversy
- Justice Courts - Constitutional County Courts - County Courts at Law - District Courts |
- Justice Courts = max $10k
- Constitutional County Courts = $200.01 to $10k - County Courts at Law = $200.01 to $100k or amt in statute - District Courts = when the amt exceeds $500, no max |
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Formal requirements to Plantiff’s Original Petition
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1. names and residences of parties
2. short statement of COA to give fair notice of claim 3. for unliquidated damages, that damages are w/in jurisdictional limits 4. demand for judgment for all other relief which party deems himself entitled 5. signed by party or atty. If by atty = cert that there was reasonable inquiry and not groundless or in bad faith |
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When may amendments to pleadings be made prior to trial?
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W/o leave of court, more than 7 days before trial
W/in 7 days require leave of court - deny if adds new COA or causes surprise or hardship |
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When may amendments to pleadings be made at trial
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- P must seek leave to file
- Should be allowed unless D can prove surprise or prejudice - If D fails to object to evidence, D found to impliedly consented to issue - If D objects to evidence, and P requests leave, ct should allow amendment when presentation of merits will be served and D fails to show ct that amendment would prejudice him |
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Special Pleadings
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1. Suit on an Account
2. Injunction 3. Temporary Restraining Order |
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What must P plead to bring suit on an account?
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*Special Pleading
- probable right to relief - probable injury - harm is imminent - w/o injunction, harm is irreparable - no adequate remedy at law |
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What must P plead to get an injunction?
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*Special Pleading
- verified pleading on sworn acct - itemized statement of goods/services offsets to acct - affidavit stating that claim is just and true and w/in affiant’s knowledge |
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What should P do if D violates injunction?
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File motion for contempt (no fixed time). D will get fine up to $500 or imprisonment
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Temporary Restraining Order
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- Application must be verified
- P must post bond in favor of adverse party - Extraordinary circumstances = court can grant ex parte |
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Basis for Personal Jurisdiction
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- physical presence in forum state
- D = domiciliary - D consents to state’s exercise of PJ - D has minimum contacts |
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3 Elements of Minimum Contacts
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1. D must purposefully do some act or consummate some transaction in Tx
2. COA must arise from or be connected with this act/transaction (“specific jurisdiction”) *** unnecessary when D has substantial systematic contacts *** 3. Assumption of jurisdiction must not offend traditional notions of “fair play and substantial justice” In Tx, burden on D to negate PJ In fed ct, burden on P to establish PJ |
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Requirements of Citation
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1. signed by the clerk under seal
2. time, place, court in which suit filed 3. commands D to file written answer 4. informs D that if he fails to file, default judgment may be taken against him |
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Substitute Service
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1. P files motion with affidavit stating usual place of abode or business of the D and asserting facts showing that service was attempted and unsuccessful
2. Ct authorizes leaving copy of citation and petition with anyone over 16 at location specified or by any manner that will reasonably give D notice of suit |
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Petition to Serve D through Long-Arm Statute
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Serve Sec of State with petition stating
1 - D is nonresident of Texas 2 - D has no regular place of business or person in charge in Texas 3 – D has no registered agent for service of process in TX 4 – D has been doing business in Tx P should obtain certificate of service from Sec of State and file it with clerk of ct to support default judgment |
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Does filing a petition toll the statute of limitations?
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Yes but P must also exercise actual diligence in procuring both issuance and service of citation. P may be precluded.
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Proof of Service
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1 - If served in person, “Return” must be endorsed on or attached to citation. Return must state time and manner of service and be signed by server
2 – If served by mail, same as above but Return must also have return-receipt signed by addressee 3 – Out of state service by long-arm statute, obtain cert of service from Sec of State |
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How much time does D have to file his answer to P’s petition?
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STATE: 10 a.m. on the first Monday after 20 days from date D was served
FED: 20 days after service of process |
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Are separate answers required for each D in a multi-D case?
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No. They may answer and appear in a single document.
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Citation by Publication
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P or Atty swears cannot locate D or residence, clerk of court issues service by publication
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Service on Corporation
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Process is effectively served on
1 – registered agent 2 – president of the corporation 3 – any Vice President of the corp If no registered agent, serve the Sec of State who has the duty to notify the D by registered mail |
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Due Order of Pleading
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1. Special Appearance (failure = general appearance and subjects D to TX jurisdx)
2. Motion to Transfer Venue 3. anything else |
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What should D plead in special appearance?
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1. D should assert he is not amenable to service of process and deny P’s allegations
2. pleading must be verified 3. forms of evidence that may be presented are discovery, affidavits, oral testimony |
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General rule of venue
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Lawsuits shall be brought
1 – in county in which all or substantial part of events/omissions giving rise to claim occurred 2 – D = natural person, county of D’s residence at time of action 3 – D = corp/biz, county of D’s principal office (“decision-makers”) 4 - if none of the above, county in which P permanently resided at time of events |
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Mandatory and Permissive Exceptions to General Venue Rule
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Mandatory
1 – Land- county where land is located 2 – Against a County- that county Permissive 1 – Breach of Warranty by Manufacturer – county of P’s residence at time of action 2 – Written Contract – county in which D is to perform |
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In a suit involving more than one D, if one D files an answer, is another D precluded from filing an MTV?
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No, any act or omission by one D in relation to venue, including waiver, does not impair/diminish right of any other D to challenge venue
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Contents of MTV
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1 – the action should be transferred to another specified county of proper venue
2 – the county in which the action is pending is not proper OR transfer is proper b/c venue is more convenient in other county 3 – legal and factual basis for transfer 4 – request transfer to specific county |
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What evidence is allowed for an MTV?
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- Affidavits, pleadings, stipulations, any discovery, NO ORAL TESTIMONY
- motion must be accompanied by affidavits - D = burden of proof - does not need to be verified |
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How much notice are parties entitled to on hearing for MTV?
How long does P have to respond? |
45 days notice
P must file response at least 30 days prior to hearing. Response must include affidavits, specific denial of facts P wishes to contest |
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In a multi-P case where venue is challenged, if one P established proper venue, is it established to all Ps?
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No, each P must establish proper venue, unless ct decides it is “fair and just” for P to stay in case.
Interlocutory appeal may be taken |
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What can D do if he feels he cannot obtain a fair trial in the county of venue?
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1 - File Motion to CHANGE Venue
2 – Support motion with D’s affidavit and affidavit of at least 3 credible persons who are residents of county of suit 3 – in affidavits, assert that there is such prejudice against D in county of suit and D cannot obtain fair and impartial trial Note: not subject to due order of pleading because prejudice may become known after answer is due. |
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When is motion to quash service available?
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1 - Defective jurisdictional allegations in petition , OR
2 – defects in serivce of process, OR 3 – defects in the citation |
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If P’s service is quashed, does P have to reissue citation?
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No. D must file answer by 10 a.m. on first Monday after 20 days from date that service is quashed.
If D does not file answer, P can seek default judgment. |
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What are pleas in abatement?
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Pleas in abatement challenge P’s pleadings by alleging facts arising outside of petition that justify suspension or dismissal of case. Based on either
1 – defect in parties (capacity, non-joinder, improper party) OR 2 – defect in petition’s allegation (pendency of another action or administrative proceeding) |
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Does plea in abatement need to be verified?
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No unless another rule of civil procedure requires it.
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What are Special Exceptions?
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Objections to pleadings based on
1 – defects of substance re: COA, defense, damages, or relief not allowed by law 2 – defects of form re: vagueness, ambiguity, etc. |
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What must party to for special exception?
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1 - Party must object in writing
2 – call for hearing 3 – get a ruling Otherwise, it is waived Judge must issue written order or make docket sheet notation to preserve it for review |
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May D generally deny P’s allegations or must he admit/deny each allegation?
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D may generally deny. May say “D denies each and every allegation in P’s original petition.”
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What is effect of general denial?
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Puts in issue all matters not required to be denied under oath or specifically denied.
- P is required to prove facts alleged - D may introduce evidence which tends to rebut P’s evidence |
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May D consolidate an MTV, special exception, and general denial into one reply?
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Yes, but D must raise the MTV first or he waives the MTV.
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What is verification?
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An affidavit signed under oath to the effect that the factual matters pleaded are true. Should be made by party, not atty.
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What five affirmative defenses must be verified?
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1 – contract is usurious
2 – no consideration 3 – failure of consideration 4 – denial of the execution of an instrument in writing and 5 – denial of the genuineness of an assignment |
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What four denials and pleas in abatements must be verified?
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Denials
1 – denial that D is a partnership 2 – denial that D is corporation Pleas in Abatement 1 – there is another suit pending in TX between the parties on the same claim 2 – there is a defect of parties, either P or D |
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Where are the common affirmative defenses listed and what are some of them?
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TRCP 94
- accord and satisfaction - arbitration and award - duress or fraud - contributory negligence - release - stat of limitations - SOF |
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What form does D’s allegation of affirmative defense take?
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“Even if P proves the allegations in its petition, D is not liable because …”
D can also plead in the alternative by asserting a general denial and then plead specific affirmative defense. |
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If D fails to plead an affirmative offense, is there any way it can still be tried?
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The affirmative defense will be tried by consent if the opposing party fails to timely object to evidence introduced to support the defense.
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What are the two elements of diversity of citizenship?
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1 – Complete diversity of Ps from Ds
2 – Amt in controversy must exceed sum of 75k |
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How is citizenship defined for diversity purposes?
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For individuals = domicile
Corporation = both any state in which it is incorporated and state where has principle place of business (“nerve center” or primary place of activity) |
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What are the two limits on removal based on diversity of citizenship?
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1 – even if complete diversity exists, no D may be a resident of the forum state
2 – Cannot be removed based on diversity more than 1 year after action commences |
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What is the procedure for removal to federal court?
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1 – D must file verified Notice of Removal in fed dist court
2 – notice must be signed under Rule 11 of FRCP 3 – notice contains short statement of why case can be removed 4 – notice filed w/in 30 days after D is served or when case becomes removable 5 – D gives written notice to all adverse parties and files copy of notice with clerk of state court |
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When must D file answer if case was removed before he filed answer?
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- Within 20 days after receipt of initial state court pleading OR
- within 5 days after filing notice of removal, whichever period is longer |
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How can P challenge D’s removal?
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File motion to Remand alleging
- case could not have originally be brought in fed court (may assert at any time) OR - there has been defect in removal procedure (if filing on defect, must file w/in 30 days after filing of notice of removal) |
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Compulsory Counterclaims must:
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1 – be w/in jurisdiction of the court
2 – not the subject of a pending action at the time the counterclaim filed 3 – arise out of the same T/O that is subj matter of principal action 4 – be a claim that the pleader has at the time of filing 5 – be a claim that the pleader has at the time of filing 6- not require presence of third parties over whom ct cannot acquire jurisdiction |
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When is serverance proper?
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When the controversy involves multiple claims, on of which could be asserted in a separate suit and which does not involve the same facts and issues involved in the other claims in the controversy
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If D claims privilege, what procedure must be followed to obtain answers to interrogatories?
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1 – P files rogs
2 – D files withholding statement (info/material is withheld, the request to which they related, the privilege asserted) 3 – P requests identification of the info 4 – D files Privilege Log w/in 15 days |
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Does party waive privilege if it inadvertently discloses info?
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Party does not waive privilege if w/in 10 days of discovering the inadvertent production, party amends response identifying material and stating privilege. Other party must return materials and copies.
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When may a court issue a protective order against discovery?
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When discovery should be limited in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance.
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P’s Duty to Supplement Discovery
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- identify new injury, include experts expected to testify about new injury
- supplement discovery reasonably promptly but not less than 30 days before trial - less than 30 days- presumed not reasonably prompt - must show good cause and no unfair surprise or prejudice to D |
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Pleading requirement for Discovery Control Plan
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1 – P must allege in First Paragraph of original petition whether discovery is under Level 1, 2, 3
2 – “Plantiff intends that his suit be covered by Level ___, Discovery Control Plan, pursuant to Rule 190.2/.3/.4, Tx RCP 3 – failure to plead = default to Level 2 |
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When is a bifurcated trial proper?
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Because distinct and complex issues might confuse the jury.
Often occurs when P has sued for both actual and punitive damages 1st trial – jury determines negligence and actual damages 2nd trial – jury determines punitive damages |
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A common example of compulsory joinder
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Persons with joint interest in the subject matter of the lawsuit (eg, property)
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Specifically discoverable matters
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1- name, address, phone of each person having knowledge of relevant facts
2 - name, address, phone of expected testifying witnesses (not rebuttal, impeaching) 3 – existence/contents of indemnity or insurance agreement 4 – existence of settlement agrmnt 5 – witness statement 6 - name, address, phone of potential parties 7 – legal contentions and factual basis |
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When is person required to produce a tangible documents
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When its within the person’s possession, custody, or control
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Classifications of experts
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Testifying
Consulting Reviewed Consultant |
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Which experts’ identity, mental impressions, opinion are not discoverable?
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Purely consulting experts are not discoverable.
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When must parties designate experts and reply to requests for disclosures?
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P must respond to requests at least 90 days before the end of discovery
Ds must identify experts at least 60 days before the end of discovery |
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Define work product
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Any material prepared or mental impressions developed in anticipation of litigation or for trial by/for party/party’s rep
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Define core work product
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Core work product of atty includes atty’s mental impressions, opinions, conclusions. ABSOLUTELY PRIVILEGED
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When “other” (non-“core”) work product discoverable?
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Seeking Party has substantial need of the materials and is unable w/out undue hardship to obtain the substantial equivalent
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Can a party assert work product or object to a Request for Disclosure?
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No
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What types of info may be obtained using a Request for Disclosure?
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1 – correct name of parties or potential parties, any person who may be designated as a responsible third party, witnesses
2 – legal theories 3 – amount of economic damages, med records and bill if personal injury 4 – indemnity or insurance agreements, settlement agreements 5- witness statements 6 – testifying expert witness: opinions, docs reviewed |
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How long does a party have to respond to a Request for Disclosure or Request for Production and Inspection or Motion for Entry Upon Property?
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P has 30 days after service
D has 30 days after service but 50 days if served before answer due |
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What is a Request for Production and Inspection?
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A request to inspect, sample, test, photograph, and copy docs w/in scope of discovery
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Can you serve a Request for Production and Inspection on a nonparty?
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Yes, but only by court order by serving a subpoena.
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Application and Limits of Discovery Control Plan Level 1
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Application:
- only monetary relief > $50k and any divorce not involving kids in which marital estate > $50k Limits: - discovery duration = until 30 days before trial Depos = no more than 6 hrs/party, but can agree up to 10 hrs Rogs = no more than 25 rogs, excluding rogs asking to identify/authenticate docs |
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Application and Limits of Discovery Control Plan Level 2
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Application:
- exceeds reqs for L1 and no order for L3 Limits: - discovery duration = until earlier of 30 days before trial OR 9 mo after first oral depo or due date of first written response - depos = no more than 50 hrs/”side” - more than 2 experts = additional 6 hrs - limit does not apply to depos of non-party fact witnesses not in party’s control (eg eyewitnesses) - rogs = no more than 25 rogs excluding rogs asking to identify/authenticate docs |
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Application and Limits of Discovery Control Plan Level 3
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Application:
- only when court orders, pursuant to party’s motion or own initiate Limits: - start with L2 guidelines, modify by ct order |
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How do you authenticate documents produced in response to a Request for Production and Inspection?
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Documents are self-authenticated for use against the party if produced in response to a Request for Production and Inspection UNLESS w/in 10 days the producing party has actual notice and objects to the authenticity.
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Can you conduct tests on items obtained through a Request for Production and Inspection?
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Yes but the tests may not destroy or materially alter the item unless previously authorized by the court.
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How can a party gain access to property to examine it?
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File a Request or Motion for Entry Upon Property. Party may inspect, measure, survey, photograph, sample. Request must state time, place, manner, conditions, scope of the inspection.
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What is the limit on the number of Requests for Admissions served on other parties?
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No limit.
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Requirements for Responses to Requests for Admissions
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1 – Responding party must specifically admit or deny the request and explain why cannot be admitted or denied
2 – due date = 30/50 3 – if response is not timely served, request is DEEMED ADMITTED |
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What is the effect of admissions?
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Matter admitted is conclusively admitted as to the party making the admission. Court can allow withdrawl of admission if party shows good cause and the parties won’t be unduly prejudiced.
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Name 3 ways to get medical docs
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1 – Disclosure
2 – production 3 – depos or written Qs |
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If there is no legal reason (ie, trial ct error) to set aside judgment, D must demonstrate what to set aside a No-Answer Default Judgment via Motion for New Trial?
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1 – failure to answer law suit was not intentional or the result of conscious indifference, but mistake or accident
2 – set up meritorious defense 3 – that there is no delay or injury to P by granting new trial |
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When must a restricted appeal to the court of appeals be filed?
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Within 6 months of day judgment was signed
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In order to set aside a no answer default judgment, what must D demonstrate in a restricted appeal to the court of appeals?
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1 – D did not participate in trial ct and did not file any post-judgment motions (like m for new trial)
2 – there is error on the face of the record (eg, no evidence that D was served) |
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What can D do to set aside a No Answer Default Judgment?
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1 – Motion for New Trial
2 – Restricted Appeal to Court of Appeals 3- Equitable Bill of Review |
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When must an equitable bill of review be filed?
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Must be filed w/in 4 years of date judgment signed
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What must D demonstrate in an equitable bill of review
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1 – a meritorious defense
2 – which D was prevented from asserting by fraud, accident, wrongful act of P, or official mistake, and 3 – unmixed with any negligence of D - if based on lack of service, need only prove lack of service (due process) |
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General Standard for Summary Judgment
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Moving party is entitled to judgment as matter of law, either on
- no genuine issue of material fact or - no evidence |
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A no genuine issue of material fact summary judgment may be sought by
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1 – P on its prima facie case
2 - P on basis of denial of an element of D’s affirmative defense 3 – D on affirmative defense 4 – D on basis of denial of an element of P’s prima facie case |
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What evidence may be permitted in support of a motion for summary judgment?
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Affidavits and all type of discovery. No oral testimony.
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What must be included in a qualifying settlement offer?
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1 – must be in writing
2 – refer to Rule 167 and Ch 42 of Tx Civ Practice & Remedies Code 3 – State a deadline by which the offer must be accepted (at least 14 days after service) 4 – Identify party making offer and party to whom offer is made 5 – be served on all parties to whom offer is made |
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What is the general standard for awarding litigation costs?
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If a settlement offer is made and rejected and the judgment is significantly less favorable to the rejecting party, the offering party recovers litigation costs from the rejecting party.
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What are the limits on litigation costs?
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Limited to costs incurred after the date the offer was rejected and includes court costs, reasonable atty fees, and fees for not more than 2 testifying expert witnesses
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How can parties obtain a jury trial in state court?How can parties obtain a jury trial in state court?
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Must file written request w/ clerk w/in reasonable time before the date set for trial, but not less than 30 days before the trial date
- Must also pay jury fee |
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How much notice is required for depo?
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“reasonable time” before it is to be taken
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Is a notice to depo an *organization* defective because it fails to identify a particular witness to be interrogated?
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No. Notice must describe reasonable particularities of matters on which exam is requested. Org must respond with designation of one or more individuals to testify on its behalf.
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Where may a non-party depo be taken?
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1 – county of deponent’s residence
2 – county where deponent is employed 3 – county where deponent was served |
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Where may a party depo be taken?
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1 – county of deponent’s residence
2 – county where deponent is employed 3 – county where deponent was served 4 – county of suit |
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Limit on distance deponent must travel for a depo
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No more than 150 miles from where the person resides or is served
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How do you compel attendance of a witness?
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If wit = party, or under control of a party, service of notice on party’s atty has same effect as subpoena.
If wit = nonparty, must issue both notice and subpoena. |
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What must a deponent do if he wants to object to a request to produce tangible things?
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File a Motion to Quash or a motion for a protective order w/in 30 days of service of subpoena.
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Time limit for depo
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No side may examine individual witness for more than 6 hrs, or depo may be suspended.
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Alternative means for a depo
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With reasonable notice, party may be taken by telephone or other remote electronic means
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The only proper objections at an oral deposition
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1 – Leading
2 – Form (calls for speculation, vague, confusing, ambiguous) 3 – Nonresponsive Any thing else may be grounds for suspension/termination of depo. Ct can award costs and atty fees with Motion for Sanction. |
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Instructions to witness during a deposition
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- Atty may not confer with witness during depo except to identify privilege to be protected.
- can instruct not to answer only if doing so is necessary to preserve privilege or to protect from abusive/misleading q |
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Deposition Before Suit
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File Petition for a Deposition Before Suit
- must be verified and served on all persons sought to be deposed Must allege: 1 – P anticipates institution of a suit 2 – subject matter of anticipated action and P’s interest 3 – names of person P expects to have interest adverse to P and address and phone |
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Availability of Default Judgments
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P must show
1 – ct has subject matter jurisdiction 2 – jurisdiction over D by proper service of process 3 – allege a COA 4 – D has not filed answer 5 – time to answer has expired 6- return of citation has been of file 10 days |
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D’s time to answer has expired but P has not filed for Default Judgment
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D may still file an answer
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When must a Motion for a New Trial be filed?
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Must be filed w/in 30 days from day judgment *signed*
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How may a party request a jury trial in federal court?
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Any party may demand a jury trial by serving a written demand upon the other party any time after commencement of the action and not later than 10 days after service of the last pleading directed to a triable issue
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What is the general standard for granting a motion for continuance?
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Must be in writing, under oath, and show “sufficient cause” supported by affidavit, unless all parties agree.
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What must party assert to obtain continuance if witness is unavailable?
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Should submit an affidavit asserting
1 – the testimony is material 2 – diligence was exercised to secure the testimony 3 – the cause of the problem 4 – the testimony is not available from another source 5 – the name, address of the wit and the substance of the testimony 6 – the continuance is not sought for delay but justice |
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What should party do to preserve error when opposing party violates motion in limine?
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To properly preserve error, party must
1 – object at the time opposing party makes statement 2 – obtain a ruling by the ct disallowing the evidence 3 – have the ct instruct the jury to disregard the statement. If party doesn’t object, they waive any complaint. |
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How many challenges for cause for jurors may a party have?
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There are unlimited challenges for cause.
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When may a party challenge a juror for cause?
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1 – juror is interested directly or indirectly in the case
2 – is a witness 3 – has a bias or prejudice for/against a party (if bias is equivocal, not granted until rehabilitation fails) 4 – is related w/in 3 degrees of affinity or consanguinity to a party |
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How can party preserve error when ct denies challenge for cause of a juror?
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Prior to using preemptory challenges, party must state that it will exhaust all its preempt challenges and that the specific objectionable juror will remain on the list despite the exercise of all preemptory challenges
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How many preemptory challenges does each party have?
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- In case with only one party per side, each party gets 6 strikes in district ct and 3 in county ct
- in case with co-parties, co-parties share 6 strikes unless they are antagonistic on any issue (eg, crossclaim), then they get 6 each. Other parties can move to equalize. |
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What is a Baston challenge?
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Objection that a jury panelist was excluded because of some prohibited classification.
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How to make a Baston challenge?
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1 – must make timely objection before ct empanels jury and dismisses excluded panel members
2 – must make a record that illustrates other party violated excluded juror’s con rights 3 – burden shifts to other party to come forward with neutral reason 4 – burden shifts back to challenger to prove by preponderance of evidence that reason is pretext |
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“The Rule”
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At request of any party or by ct sua sponte, witnesses can be removed from ctroom so they can’t hear other testimony.
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Exemptions to “The Rule”
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1 – a party who is a natural person or their spouse
2 – officer or employee of a party that is not a natural person and who is designated representative by its atty 3 – person whose presence is shown by a party to be essential to presentation (expert witness) |
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When may someone make a motion for a directed verdict?
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When there is no controverted fact issues for the jury’s determination. Move when:
1 – an opponent rests 2 – an opponenet closes 3 – all parties close |
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When does plantiff have grounds for directed verdict?
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P has conclusively proven all elements of one ground of recovery AND
D has failed to produce any evidence on one element of ground of defense |
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When does defendant have grounds for directed verdict?
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D has conclusively proven all elements of at least one ground of defense OR
P has failed to produce any evidence on at least one element of each ground for recovery |
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Two basic requirements for properly preserving errors to complaints to the charge
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1 – all complaints must be made before charge is read to jury and outside their presence
2 – all complaints must be ruled on by the judge |
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Two types of complaints to the jury charge
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1 – Omissions - required questions, instructions or definitions have been omitted from the charge
2 – Submitted but Defective – charge contains material mistakes |
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If a question, instruction, or definition has been omitted from the jury charge, what should atty do?
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1- object to omission
2 – request a submission 3 – tender in writing a substantially correctly worded question, instruction, definition and 4 – obtain a ruling |
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If there is a material mistake in a question, instruction or definition in the jury charge, what must an atty do?
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1 – object to the specified portion of the charge
2 – state the basis for the objection and 3 – obtain a ruling |
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What is the minimum number of jurors that must agree in state district ct, state county ct, state justice of the peace ct?
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State dist ct = 10 out of 12
State county ct = 5 out of 6 State justice of the peace ct = 5 out of 6 |
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When may exemplary damages be awarded?
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Only if the jury is unanimous in finding liability AND amount of exemplary damages
- Instruction MUST be submitted to jury that they must be unanimous |
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What should atty do when a verdict is returned for your client?
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Move to receive and accept the verdict.
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What should atty do when a verdict is returned for the opposing party?
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Seek a jury poll. Purpose = make sure that no juror was coerced
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When may a judge disregard a jury’s findings?
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Only when there is no evidence to support a finding or where the contrary evidence is conclusive
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Rendering Judgment
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Court’s official announcement in writing or orally in open court of its decision upon any and all issues submitted for determination
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Signing the Judgment
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The event that triggers commencement of appellate deadlines
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Entry of Judgment
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The clerical or ministerial act of entering the judgment in the minutes of the court
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A motion for judgment notwithstanding the verdict should be used
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1 – to challenge the legal sufficiency of the evidence
2 – to assert that the evidence conclusively establishes a fact opposite to the jury’s finding |
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What is the impact of a granted motion for new trial?
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The original proceeding is set aside and cause is reinstated on the docket as though it had never been tried
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What is the impact of a denied motion for a new trial?
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Extends ct’s plenary power for 30 days from date denied.
B/c motion for new trial deemed overruled 75th day after ct signs judgment, plenary power expires at latest 105th day judgment signed |
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What interlocutory orders are appealable?
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1 – certification or refusal to certify class
2 – grant/denial of tempory injunction 3 – grant/denial of D’s special appearance, except under Family Code 4 – appointment of receiver or trustee |
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When is an appeal perfected?
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When a written Notice of Appeal is filed with the trial court clerk
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What info must a Notice of Appeal contain?
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1 – identification of the trial ct, case’s number and style
2 – date of judgment or order 3 – statement that party desires appeal 4 – identify court to which the appeal is taken 5 – statement of name or each party filing the notice |
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Times limits to file a Notice of Appeal
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- When no motion for new trial, w/in 30 days date judgment signed
- When motion for new trial filed, w/in 90 days from date judgment signed |
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Does perfecting an appeal suspend enforcement of the judgment pending?
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No. Appellant must file bond to prevent execution of the judgment.
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What motions can a party file when it believes the other party has presented no evidence on an element?
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1 – no evidence summary judgment motion
2 – motion for directed verdict 3 – motion JNOV |
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Can the ct impose sanctions for refusing to settle a claim in negotiations?
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No, but can impose sanctions for refusal to participate in negotiations
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Can ct enter a consent judgment upon proof of signed settlement agreement that one party now wants to renege?
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No. All parties must consent to the judgment.
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Can a party call its mediator as a witness to testify to statements made during negotiations?
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No, by statute.
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When is a motion for a new trial a prerequisite for an appeal?
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1 –inadequacy or excessiveness of damages found by jury
2 –factual insufficiency to support jury finding 3 –jury’s finding are against great weight & preponderance of evidence 4 – incurable jury argument 5 – evidence must be heard |
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When should original or amended motions for new trial be filed?
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Within 30 days after judgment is signed
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How long does the court hold plenary power to set aside, modify, or amend the judgment?
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For 30 days following the signing of final judgment
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