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103 Cards in this Set
- Front
- Back
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Civil Procedure: Out of State Service
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General Long arm statute
Must allege: D is Non resident has NO regular place of biz or person in charge has NO registered agent has been "doing business" in TX |
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Civil Procedure: Successful service of process on out of state D requires:
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certificate of service from Sec of State showing date received, date process forwarded, and date recieved the return receipt, filed with clerk of court to support default jdugemnt
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Civil Procedure: Suit on sworn account requirements
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erified pleading
itemized statement of goods/service sold reveal offset payments be suported by affidavit that claim is just and true and within affiant's knowledge |
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Civil Procedure: Protest to suit on sworn account
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verified denial required (failure to file = NO denyuing claim)
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Civil Procedure: Injunction pleading requirements
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probable right ot relief
probable injury harm is imminent without injunction, harm is irreparable no adequate remedy at law |
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Civil Procedure: Personal J/d
adequate grounds |
physcial prsence in state,
d is a domiciliary D consents Certain minimum contacts |
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Civil Procedure: Certain mimimum contacts test: 3 elements
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non resident D must PURPOSEFULLY do som act in TX
Cause of action must srise from the transactoin AND not offend traditional notions of FP and Sub justice Specific j/d But general j/d if there are SUBSTANTIAL AND SYSTEMATIC contacts with TX. |
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Civil Procedure: Service of process: methods in order of perference
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Personal deliovery or mail- with return
Substitute: if can't by mail or in person, motion for service on someone at home last: publication |
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Civil Procedure: service on corp's
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service on registered agent; president; any VP or Sec of State if no registered agent.
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Civil Procedure: Defendnat's Pleadings:
Time to respond |
answer filed by 10am of first MONDAY after 20 days from date D served with process
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Civil Procedure: contents of effective service
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citation and petition
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Civil Procedure: Defendnat's Pleadings:
Order of pleadings: First thing potentially filed |
Special Appearance MUST be filed first or D submits to court j/d
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Civil Procedure: Defendnat's Pleadings:
Waht can D do before filing a Special appearance? |
make discovery, subpeona witnesses, and appear for the special appearance hearing
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Civil Procedure: Defendnat's Pleadings:
assertions in speacial appearance |
NOT amenable to suit in TX and deny allegations
PLEADING must be VERIFIED |
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Civil Procedure: Defendnat's Pleadings:
venue protest: venue is proper in: |
county where events give rise to claim occured
if D is natural person, in D's residence county If not natural person, in county of principal office in state IF NONE of these, where P resided at time of accural of action |
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Civil Procedure: Defendnat's Pleadings:
Mandatory Venue |
actions on land in hte county where land is
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Civil Procedure: Defendnat's Pleadings:
Motion to Transfer Venue Order of pleading.. |
After Special appearance, before anything else. Failure waives venue protest.
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Civil Procedure: Defendnat's Pleadings:
Motion to Transfer Venue contents: |
1. venue is NOT proper where suit filed;
2. deny any venue facts in P's petition which D wishes to contest 3. name proper county of venue with facts supporting 4. id section of venue statute relied on 5. request transfer to that county. |
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Civil Procedure: Defendnat's Pleadings:
MOtion to Transfer Venue: Burden Verified? Timing on a hearing |
Burden on D protesting
NOT verified 45 days notice prior to hearing |
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Civil Procedure: Defendnat's Pleadings:
Motion to Quash purpose |
portest invalid service
If successful, gets you the 20 days + Monday 10a as you are now served... |
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Civil Procedure: Defendnat's Pleadings:
Pleas in Abatement purpose |
Challenges defect in party (capacity - nonjoinder) OR
defect in allegagtion ( pendancy in another court with same parties) |
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Civil Procedure: Defendnat's Pleadings:
Special Exception |
Challenges the PLEADINGS - No such cuase of action
Vagueness, ambiguity Must be in writing, call for hearing and get a ruling on record. |
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Civil Procedure: Defendnat's Pleadings:
General Denials Purpose and effect |
available
Puts the P to proof in all matters denied. P must prove facts alleged in petition AND D may introduce evidence tending to rebut facts offered |
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Civil Procedure: Defendnat's Pleadings:
Order of all filoings |
Special Appearance
Motion to Transfer Venue Special Exception General Denials A consolidated filing is permitted, if these things correctly appear in this order in consolidcation |
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Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court REquriements for D |
Must could have origianlly brought there: Federal Q or Diversity (complete and AIC is > $75k - removing D can't be TX resident)
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Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court Residency determination |
INdividial: domicile
Corporation: place of incorp + principal place of Biz (nerve center or primary place of activity) |
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Civil Procedure: Defendnat's Pleadings:
REmoval to Federal Court Time issues |
Must be done within 30 days of petition (or of becoming later permitted). Can't be done if more than 1 year into the case.
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Civil Procedure: Defendnat's Pleadings:
Removal to Federal Court Procedure |
Verfied NOTICE in federal Dsitrcti court
signed short statement of why can be removed filed within 30 days of state court petition (or when first becomes removable) Notice given to all adverse parties file notice with state court ALL D's must consent to removal |
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Civil Procedure: Defendnat's Pleadings:
Remand from Federal Court |
P must challenge within 5 days of receiving notice
allege NO federal j/d OR defect in removal procedure |
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Civil Procedure: Joinder
Compulsory Counterclaim |
in j/d of court
arises out of same transaction/occurrence or series not subject of pending action doesnt require TP over whom no court j/d |
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Civil Procedure: Joinder
Permissive counterclaims |
Anything a D could have brought against hte P in a separate action.
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Civil Procedure: Joinder
Permissive joinder of parties |
all joined if is asserted jointly, severally, or in the alternative
arose from same transaction, occurence or series common questions of law and fact |
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Civil Procedure: Joinder
IMPLEADER and TPP |
Allows a D to act as a TP Plaintiff and bring in a party they feel will indemnfy them
TPP must serve citation and petition on TP D. |
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Civil Procedure: Joinder
INTERPLEADER Purpose |
Allows stakeholder to bring competing claims to court and resolve their claims against stakeholder
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Civil Procedure: Joinder
Multi District Litigation |
suits in many different venues. Requesting Party moves to transfer all cases to PRetrial court.
Need common questions of fact- transferred for convenience of parties and witnesses Filing motion doesnt suspend TC j/d. Grant of motion suspends TC action. |
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Civil Procedure: Joinder
Multi District Litigation results |
If there is a pretrial judgment (MSJ), htere is NO remand to TC. If not, remand when pretrial proceedings complete.
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Civil Procedure: Joinder
REsponsible Third Parties Purpose |
allows parties to ensure non-joinable parties (not subj to j/d or bankrupt) are considered when allocating liability.
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Civil Procedure: Joinder
Responsible Third Party Designation procedure |
Move to Designate RTP on or before 60th day prior to trial.
If they are alleged to contribute or cause harm on which recovrey is sought. Jury may consider when allocating liability. |
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Civil Procedure: Discovery
Witnesses discoverable |
Trial witnesses, testifying experts, REviewed consulting experts;
NOT simple consulting experts or Impeachment or Rebuttal only witnesses |
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Civil Procedure: Discovery
Witnesses: failure to disclose when sought |
D must show GOOD CAUSE for non-disclosure OR
opposing party will suffer no prejudice or surprise |
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Civil Procedure: Discovery
Documents: What - which |
any document or tangible thing within person's possession, control or custody
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Civil Procedure: Discovery
Experts Disgnation timeframe |
must designate at least 90 days prior to end of discovery period (see Discovery Control Plan) - If include a Report of expert's opinions, don't have to make avaialbe for deposition untill all opponent's experts are designated.
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Civil Procedure: Discovery
Work Product protected |
anything prepared in anticipation of litigation. CORE work product includes atty mental impressions, opinions, or conclusions
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Civil Procedure: Discovery
Protective Order re discovery |
Secret Sauce: court may limit discovery to protect moving party (submitting protective order) from undue burden, harassment, or annoyance.
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Civil Procedure: Written Discovery
Timing for response |
30 days from reciept OR 50 for defendnat if received requests and Answer to petition is NOT YET DUE.
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Civil Procedure: Written Discovery
Asserting Privilege to written discovery Procedure |
1. Withholding Statement saying you are withholding and ID request to which material relate AND name privilege
2. Opposing files response requesting ID of info witheld 3. Withholder produces Privilege Log listing item ("letter of 6/6") and privilege |
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Civil Procedure: Written Discovery
Inadvertent Disclosures |
Party can amend response to "claw back" the improperly disclosed item, thus retaining privilege over item, SO LONG AS AMENDEMENT WITHIN 10 DAYS OF DISCOVERY of error.
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Civil Procedure: Written Discovery
Objections to Written Discovery |
Must be in writing within response timeframe 30/30/50 with stated basis for objection.
hearing held with burden on objecting party to prove privilege or validty of objection |
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Civil Procedure: Written Discovery
Supplementing Discovery |
If party knows discovery is Incomplete OR has become incorrect/imcomplete must supplement.
Must be done at least 30 days before trial. Admit new evidence at trial only if show good cause and NO unfair surprise or prejudice |
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Civil Procedure: Written Discovery
Discovery Control Plans 1- 3 |
Must plead which plan in first paragraph of petition.
Failure to do so = Level 2 default |
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Civil Procedure: Written Discovery
Discovery Control Plan 1 |
Good for cases up to $50k and divorces to 50k with NO kids.
Starts on filing goes to 30 days before trial 6 hours of depo on each side 25 interrogatories |
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Civil Procedure: Written Discovery
Discovery Control Plan Level 2 |
Default level good for all
Starts on filing goes to 30 days before trial OR 9 months from date of first oral depo or written response deadline 50 hours of depo - additional if 2 exprets 25 interrogatories |
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Civil Procedure: Written Discovery
Discovery Control Plan Level 3 |
Whatever the parties agree to...
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Civil Procedure: Written Discovery
Name the Forms available (6) |
requests for disclosure
requests for production and inspection Interrogatories Requests for admissions oral or written depos motions for phsycial examinations |
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Civil Procedure: Written Discovery
Requests for Disclosure Correct types of items sought |
correct names of parties
names address of POTENTIAL parties names addresses of POSSIBLE RESPONSIBLE THRID parties amount/method of caluculating damages name of person with relevant facts (ajnd what their connection is) Any indementy/insurance Any witness statements Authorization to obtain medical records ID and content of testifying experts |
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Civil Procedure: Written Discovery
REquests for Disclosure Time frame |
30 30 50
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Civil Procedure: Written Discovery
REquest for Production Inspection What? If on Non-party? Medical records how? |
Any tangible item.
If on nonparty, must be with court order or subpoena Med records: either with Authorization (from request for disclosure) OR Court order OR Subpoena physicians |
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Civil Procedure: Written Discovery
Request for production - effect on produced documents: |
authenticates them (unless party protests within 10 days "I had it, but I didn't write it")
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Civil Procedure: Written Discovery
Request for Production Destruction for testing |
NOT permitted without court approval
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Civil Procedure: Written Discovery
Interrogatories answer form |
Must be signed under oath
Consists of 1) Answers 2) Objections or 3) Assertions of privilege. 30 30 50 |
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Civil Procedure: Written Discovery
Requests for admissions Response form and Effect |
NO limit to number
Unless objecting or asserting privilege, Party must ADMIT or DENY each request or explain why you can't NOT timely denied = admittted!!! Admitted = Conclusively established! on both actual and DEEMED admissions |
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Civil Procedure: Discovery
Depositions Notice required Where permitted What to Object to depositon? |
REaosnable notice
Can be either in resident county, where deponent employed OR where served. Deponent neednt come over 150 miles from home or place or service Motion for PROTECTIVE ORDER used to object to time/place |
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Civil Procedure: Discovery
Depositions Compelling Attendance Time limits |
Party must attend on NOTICE
non-party needs notice and SUBPOENA |
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Civil Procedure: Discovery
Depositon Length |
6 hours a day. Separate cumulative (50 hours) limits can exist
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Civil Procedure: Discovery
Deposition Objections permitted |
Objection Form
Objection Leading Objection Non Responsive Other objections subject maker to sanction especially if suggestive. |
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Civil Procedure: Discovery
Deposition communication |
only permitted to perserve a privilege
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Civil Procedure: Discovery
Deposition Before suit |
permitted ON VERIFIED petition served on all interested parties alleging
anticipates instittuion of suit subject matter or action and petitioner's interest AND names of adverse parties anticipated |
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Civil Procedure: Discovery
Expert witness fees for Depo |
Paid by the party hiring the expert NOT the party taking the deposition
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Civil Procedure: Discovery
Motion to Compel Medical Exam |
Must be made at least 30 days prior to end of discovery period and SHOW GOOD CAUSE for exam and that physical condition is in controversy. Serve all parties and party to be examined.
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Civil Procedure: Disposing of Case without Trial
Default judgments |
If court has SMJ
Service of process was proper P must seek default judgment alleging a cause of aciton D has not answered time to answer expired return of citation on file for 10 days. |
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Civil Procedure: Disposing of Case without Trial
Default judgment Notice of judgment |
Provided to D at mailing address with Notice
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Civil Procedure: Disposing of Case without Trial
Setting aside a No Answer Default judgment 3 ways |
Motin for new trial
REstricted appeal to COA Equitable Bill of review |
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Civil Procedure: Disposing of Case without Trial
Motion for New Trial requirements |
filed within 30 days
if no legal reason to set aisde, Must demonstrate: failure to answer not intentional or result of conscious indfference but was a mistake set up a meritorious defense AND that there is NO delay or injury to P |
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Civil Procedure: Disposing of Case without Trial
Restricted Appeal to COA |
must be made within 6 month
Must demonstate that D did not participate in trial below AND that there is error on face of judgment (No evidence of service in the file) |
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Civil Procedure: Disposing of Case without Trial
Equitable Bill of review |
Time: within 4 years from date of judgment.
Demostrate 1) meritorious defense 2) prevented from asserting b/c of fraud, accident or wrongful act of P 3) UNmixed with any negligence of the D If based on total lack of service of process - only have to prove lack of process b/c DP requires other elements to be excused. |
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Civil Procedure: Disposing of Case without Trial
Nonsuit |
P may seek non-suit and can file again without prejudice
Oppsoing party could continue with a counter claim. |
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Civil Procedure: Disposing of Case without Trial
Summary Judgment Standard |
No genuine issue of material fact and Party is entitled to judgment as a matter of law. OR no Evidence sj - Party did not present evidence of all elements of claim or lacked element on affirmative defense
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Civil Procedure: Disposing of Case without Trial
Summary Judgment Burden |
Burden on moving party to show that they are entitled to judmgnet as matter of law.. Once met, nonmoving party must raise a fact issue
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Civil Procedure: Disposing of Case without Trial
Summary Judgment - No Evidence Motion |
After adequate time for discovery, party may mnove for SJ on ground that there is NO evidence on an esstential element of a claim or defense which the non moving party would bear the burden on at trial. Must specifically STATE the elements where there is no evidence.
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Civil Procedure: Disposing of Case without Trial
Summary Judgment Timing |
21 days from MOtion to hearing. Nonmovant must respond no later than 7 days befoer hearing
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Civil Procedure: Disposing of Case without Trial
Summary Judgment hearing procedure |
No oral testimony
Affidavits and other forms of admissible discovery Discovery and depositons used MUST BE FILED at time Motion (21) or Response (7) filed. |
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Civil Procedure: Disposing of Case without Trial
Summary Judgment Appeal |
Can appeal granting of SJ
NO appeal for denial of SJ as it is a non appealable interlocutory action |
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Civil Procedure: Disposing of Case without Trial
Declaration of Settlement procedure Waht is it? |
If the D files a Declaration no later than 45 days before trial, any party can attempt settlement.
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Civil Procedure: Disposing of Case without Trial
Qualifying settlement Offer requirements |
in writing
refers to Cod states a deadline identifies parties to which offer made Is served on all parties |
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Civil Procedure: Disposing of Case without Trial
Qualifying Settlement Offer Effect |
Awards litigation costs to the offering party from the party that didn't accept the offer and substantially didnt prevail in similar amount at trial.
Cost limited to date of offer and afterwards - includes court costs and attorney costs and expert fees for 2 experts |
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Civil Procedure: Pretrial Matters
Jury Trial request Trial notice |
made at least 30 days prior to trial
45 days notice prior to trial |
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Civil Procedure: Pretrial Matters
Continuance for missing witness Allege |
Affidavit
Testimony is material diligence in securing testimony cause of problem that testimony is NO avilalbe from another source name address of witness and substnace of testimony continuance NOT sought for delay, but justice |
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Civil Procedure: Pretrial Matters
Motion in Limine purpose effect |
orders opposing counsel not to mention or ask questions abourt a matter without first approaching judge for final ruling on issue's admissibility.
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Civil Procedure: Pretrial Matters
Voir Dire Challenges for cause |
juror interested
juror will be witness juror has bias or prejudice is related to party in case |
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Civil Procedure: Pretrial Matters
Voir Dire Preemptory challenges Number |
6 in district court and 3 in county court
NO premeptory challenges based on prohibited classifications |
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Civil Procedure: Trial
PErsons exempt from The Rule |
Party or spouse
designated corp officer Person essential to presentation of cause of action (including experts) |
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Civil Procedure: Trial
Grounds for Directed Verdict Plaintiff |
P can move if P conclusively proven all elements of one ground of recovery AND D has failed to produce ANY evidence on one element of each ground of defense
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Civil Procedure: Trial
Grounds for Directed Verdict Defendant |
D can move (upon resting or clsoing of evidence) on showing D has conclusively proven all elements of at least ONE ground of defense AND P failed to present ANY evidence on at least ONE elemnt of each ground of recovery
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Civil Procedure: Trial
Jury Charge Questions |
Seeks a Special Verdict - jury answer to question - includes questions, instructions and definitions
Broad form questions used puts all elements into one question Good for affirmative defenses as well. |
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Civil Procedure: Trial
Jury Charge Instructions and Definintions |
Insturctions are Rules of Law
Definition is Interpretation of word or phrase used in charge. |
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Civil Procedure: Trial
Jury Charge Types of Complaints and Timing |
Omissions & Defects
Must be complained of before submission to jury |
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Civil Procedure: Trial
Jury Charge Omission protest |
request to submit
Tender conforming question, instruction, or defniintion obtain a ruling |
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Civil Procedure: Trial
Jury Charge Defect protest |
Object to specific portion of charge IN writing or dictated to court reporter
state basis for objection Obtain a ruling |
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Civil Procedure: Verdict
Number of jurors needed for verdict |
10 jurors needed
5 in county court unanomous needed for exemplary damages |
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Civil Procedure: Motion for New Trial
Why? |
prerequisite for appeal on matters:
complaint of inadequate or excessiveness of damages found by jury complaint on which evidence must be heard (jury misconduct- new evidence) |
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Civil Procedure: Motion for New Trial
Timing |
Must be within 30 days of final judgment entered
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Civil Procedure: Motion for New Trial
Impact of denial |
extends court's plenary power (as much as 75 days if no ruling)
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Civil Procedure: Appealable Interlocutory Orders
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Grant or denial of temporary injunction
grant or denial of a special appearance certification of a class in class action |
