Tx Civil Procedure: Disposing Of Case W/o Trial

Front 1

P may take a default judgment by showing:

1) Court has SMJ
2) Juris over D by proper service of process
3) Allege a CoA
4) D hasn't filed answer
5) Time to answer expired
6) Return of citation has been on file 10 days exclusive of day of filing citation and day of default judgment

Back 1

P must affirmatively seek entry of default judgment. If not affirmatively sought, D may file an answer even if answer is beyond the time provided for in the rules.

Defaulting D admits all liability issues, but P required to assert evidence of unliquidated damages. When liquidated damages and proved by written instrument, no evidence beyond this is required.

Front 2

At or immediately before the time the default judgment is rendered, the party or his attorney must certify to the clerk, in writing, the last known mailing address of the party against whom the judgment is taken.

Back 2

Immediately after judgment's signed, clerk must mail notice of default judgment to D.

Front 3

Motion for new trial must be filed w/in 30 days of the date the judgment is signed.

If no legal reason (i.e., error by trial court) to set aside the judgment, D must demonstrate equitable grounds to trial court to obtain relief.

Back 3

Grounds:
- Failure to answer not intentional, result of conscious indifference, but due to mistake/accident;
- Set up a meritorious defense; and
- No delay/injury to P by granting a new trial

Front 4

Restricted Appeal to Court of Appeals

Must be filed w/in 6 months of the date the judgment was signed.

Back 4

To set aside default judgment, D must demonstrate:

1) D did not participate in trial court below and did not file any post-judgment motion, such as a motion for new trial; and

2) There is error on the face of the record

Front 5

Equitable Bill of Review

Filed w/in 4years of date the judgment is signed. It's a new lawsuit filed in the court in which the old lawsuit was filed and judgment rendered. Movant demonstrates:

- meritorious defense;
- which D prevented from asserting by fraud, accident, or wrongful act of P or official mistake; and
- unmixed with any D's negligence

Back 5

If bill of review's based on a total lack of service of process, D need only prove a lack of service bc due process requires that traditional requirements be excused

Front 6

Nonsuit

At anytime before P has introduced all of his evidence, other than rebuttal evidence, P may file a motion seeking an order allowing the P to take a nonsuit. A nonsuit dismisses the case w/o prejudice to refile. Order granting nonsuit should recite that motion is granted and case is dismissed w/o prejudice to refiling.

Back 6

Nonsuit doesn't prejudice right of an adverse party to be heard on a pending claim for afffirmative relief or excuse th payment of all costs.

Front 7

Summary Judgment: Moving party is entitled to judgment as a matter of law. A party may move for SJ using: no GIMF or no evidence.

No GIMF
- may be sought by P or D
- File motion for SJ alleging no GIMF as to any material facts concerning issues expressly set out in motion
- burden of proof moving party to show sufficient conclusive facts to entitle it to JMOL

Back 7

No Evidence:

Available if after adequate time for discovery, no evid of one or more essential elements of a claim or defense on which the nonmoving party would have the burden of proof at trial. Motion must specifically state the elements as to which there is no evidence.

Motion need not contains SJ info (affidavits, transcripts, etc.). Motion granted unless non-moving party produces SJ evidence raising GIMF.

Front 8

** Generally

* -except on leave of court, the motion and any supporting affidavits must be filed and served at least 21 days before time specified for hearing
*- adverse party, not later than 7 days prior to the hearing may file and serve opposing affidavits or other written response to the motion

Back 8

- no oral testimony @hearing
- evidence limited to affidavits and all discovery devices
- discovery material such as depos not on file w/clerk may be used as SJ evidence if discovery material is filed/served on all other parties w/statement of intent to use the material as SJ proof. Materials must be filed and served 21 days (supporting motion) or 7 days (opposing motion) before the hearing.

Front 9

Affidavits

- Must be made on personal knowledge of the affiant;
- Affirmatively show that affiant would be competent to testify; and
- State facts that would be admissible in evidence

Back 9

SJ that disposes of all issues/parties is a final judgment which may be appealed.

If trial court denies motion for SJ, this order may not be appealed. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

Front 10

Parties may settle claims presented in a pending lawsuit. Parties may settle claims by executing a settlement agreement.

Declaration that settlement procedure is available for an action; must be filed no later than 45 days before date the case is set for trial.

Once D files a declaration, any party may use offer of settlement procedure. Parties may make settlement offers that don't comply w/provisions, but settlement offers will not entitle the offering party to recover litigation costs

Back 10

If settlement involves a minor, court must approve settlement terms. If appears to be conflict between minor and minor's next friend/guardian, court will grant an guardian ad litem to determine if a conflict actually exists and, if so, protect the minor's interest. Role of the guardian ad litem's limited unless unless expanded by court order.

Front 11

Settlement offer must:

- be in writing
- refer to rule 167 and Ch. 42 of TX Civ Practice and Remedies Code
- state a deadline by which offer must be accepted which must be at least 14 days after offer served
...

Back 11

- identify party or parties making offer and party/parties to whom offer made;
- be served on all parties to whom the offer is made

Front 12

Awarding Litigation Costs

If settlement offer made/rejected and judgment is significantly less favorable to the rejecting party than the settlement offer, the offering party recovers litigation costs from the rejecting party.

Standard applies to qualifying offers made by either P or D which are rejected where resulting judgment is "significantly less favorable" to the rejecting party.

Back 12

(untested)
If P's rejecting, sig less fav means p's judgment <80% rejected offer. if D's rejecting, sig less means P's judgment is >120% of rejected offer.

Front 13

Litigation costs recovered are limited to costs incurred after the date the offer was rejected and include court costs, reasonable attorneys' fees, and fees for not more than 2 testifying expert witnesses.

Back 13

Litigation costs that may be awarded under this rule are limited by a cap. if costs are shifted against the plaintiff, the plaintiff is entitled to recover at least 50% of economic damages.