Texas Civil Procedure

Front 1

Tex. Civ. Pro. - What is Subject Matter Jurisdiction?

Back 1

The court's power to hear a specific case.

Front 2

Tex. Civ. Pro. - What is personal jurisdiction?

Back 2

The court's power over a party to the action or a party's property.

Front 3

Tex. Civ. Pro. - What does venue concern?

Back 3

The proper placement of a case within the judicial system.

Front 4

Tex. Civ. Pro. - What are the two basic questions to determine if a court has subject matter jurisdiction?

Back 4

1. Whether the type of case or relief sought requires the case to be filed in a particular court or courts.
2. If no, what is the amount in controversy.

Front 5

Tex. Civ. Pro. - What is the amount in controversy?

Back 5

The amount prayed for by the plaintiff.

Front 6

Tex. Civ. Pro. - What are the limits for justice courts? Constitutional County courts? County Courts at Law? District Courts?

Back 6

1. 10K
2. $200.01 to 10K
3. $200.01 to $100K
4. Greater than $500, no upper limit.

Front 7

Tex. Civ. Pro. - What are the formal requirements for a petition?

Back 7

1. The names of the parties and their residences.
2. Cause of action
3. If unliquidated damages, statement that damages w/in limits of court.
4. Demand for judgment for all other relief deemed entitled.
5. Signed by party or atty.

Front 8

Tex. Civ. Pro. - What is the effect of an pretrial amended pleading?

Back 8

Supersedes the prior pleading and must be complete in itself.

Front 9

Tex. Civ. Pro. - At what point before trial must a party obtain leave to amend a pleading?

Back 9

Seven days.

Front 10

Tex. Civ. Pro. - When should leave be granted to file a trial amendment (pleading)?

Back 10

1. Should be granted unless defendent can profve surprise or prejudice.

Front 11

Tex. Civ. Pro. - What is a purpose of a supplemental pleading?

Back 11

To reply to a defendant's defense. It adds but does not supersede the last pleading.

Front 12

Tex. Civ. Pro. - What is required for a verified pleading on a sworn account?

Back 12

1. An itemized statement of the goods or services sold.
2. Reveal offsets to the account.
3. Be supported by an affidavit stating that the claim is just and true and within the affiant's knowledge.

Front 13

Tex. Civ. Pro. - What does a defendent file to defend against a verified pleading on a sworn account?

Back 13

A written denial under oath.

Front 14

Tex. Civ. Pro. - How do you establish your right to an injunction?

Back 14

Plead and prove:
1. Probable right to relief
2. Probable injury
3. Harm is immiment
4. Without injunction, harm will be irreparable.
5. No adequate remedy at law.

Front 15

Tex. Civ. Pro. - What is required for a temporary restraining order?

Back 15

1. Application must be verified.
2. Party obtaining a TRO must post bond in favor of the adverse party.

Front 16

Tex. Civ. Pro. - What are the two issues to be considered for personal jurisdiction?

Back 16

1. Whether there is a sufficient basis for the exercise of jurisdiction;
2. Whether the defendant has received notice.

Front 17

Tex. Civ. Pro. - What are four adequate grounds for personal jurisdiction?

Back 17

1. Phyiscal presence
2. Domiciliary of state
3. Consent
4. Minimum contacts.

Front 18

Tex. Civ. Pro. - What are the three elements of the minimum contacts test?

Back 18

1. Must PURPOSEFULLY do some act or txn in Texas.
2. Cause of action must arise from or be connected with this act.
3. Must not offend traditional notions of fair play and substantial justice.

Front 19

Tex. Civ. Pro. - How is personal service accomplished?

Back 19

1. Personal delivery or registered/certified return receipt mail.

Front 20

Tex. Civ. Pro. - What other means of service are there?

Back 20

1. Substitute service
2. Citation by publication
3. Service on corporation

Front 21

Tex. Civ. Pro. - What are the elements of the long-arm statute? (Note - can just use mail. TRCP R. 108)

Back 21

1. D must be nonresident
2. Have no regular place of business in TX
3. Have no registered agent in TX
4. Have been doing business in TX.

Front 22

Tex. Civ. Pro. - How does the Statute of Limitations work with service of process?

Back 22

P must exercise actual diligence for SOL to be tolled.

Front 23

Tex. Civ. Pro. - How many days does D have to respond to service? Federal?

Back 23

1. 10:00 a.m. on the first Monday after the expiration of 20 days.
2. 20 days.

Front 24

Tex. Civ. Pro. - When must a special appearance be filed? What happens if done otherwise?

Back 24

1. Before any other plea, pleading, or motion by the defendant.
2. Consents to jurisdiction. Exception - discovery does not waive it.

Front 25

Tex. Civ. Pro. - What must a special appearance assert?

Back 25

1. Should assert that D is not amenable to service of process and deny allegations.
2. Be verified.

Front 26

Tex. Civ. Pro. - Where may lawsuits be brought? (Venue)

Back 26

1. In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.
2. County of D's residence or principal office.
3. If none of the above, in the county where P permanantly resides.

Front 27

Tex. Civ. Pro. - Where there are multiple defendants, where is venue proper?

Back 27

Wherever it is proper for any one defendant.

Front 28

Tex. Civ. Pro. - What are the two permissive venue exceptions to know?

Back 28

1. Consumer good warranty breach - action may be brought in county of P's residence at time cause accrued.
2. Suit on written K can be brought in county where D is to perform.

Front 29

Tex. Civ. Pro. - When must a motion to TRANSFER venue be filed?

Back 29

Before any other plea or pleading other than a special exception.

Front 30

Tex. Civ. Pro. - If there are multiple defendants, and one files a pleading other than an Motion to Transfer Venue, may the others still file a MTV?

Back 30

Yes.

Front 31

Tex. Civ. Pro. - What must a Motion to Transfer Venue assert?

Back 31

1. That the action should be transfered to another specified county of proper venue.
2. That the current county is not proper or that venue is more convenient in another county.
3. Legal and factual basis for the transfer.
4. Request a transfer to a specific county.

Front 32

Tex. Civ. Pro. - Who has the burden of proof on a Motion to Transfer Venue?

Back 32

Defendant.

Front 33

Tex. Civ. Pro. - What must accompany a Motion to Transfer Venue?

Back 33

Supporting affidavits.

Front 34

Tex. Civ. Pro. - Does a Motion to Transfer Venue need to be verified?

Back 34

No.

Front 35

Tex. Civ. Pro. - How much notice is required for a Motion to Transfer Venue?

Back 35

45 days, except on leave of court.

Front 36

Tex. Civ. Pro. - When must a plaintiff file a response to a Motion to Transfer Venue?

Back 36

At least 30 days prior to the hearing on the motion to transfer venue.

Front 37

Tex. Civ. Pro. - What is required for a Motion to CHANGE venue?

Back 37

1. D's affidavit and affidavits of three credible persons who are residents of the county of suit.
2. Affidavits must assert that there is such a prejudice against the D such that he cannot obtain a fair and impartial trial.

Front 38

Tex. Civ. Pro. - When may a Motion to Change Venue be filed?

Back 38

At any time.

Front 39

Tex. Civ. Pro. - What is the purpose of a Motion to Quash?

Back 39

To challenge defective jurisdictional allegations or defects in service of process.

Front 40

Tex. Civ. Pro. - If the Motion to Quash is granted, does the Defendent need to be re-served?

Back 40

No.

Front 41

Tex. Civ. Pro. - What is the purpose of a Plea in Abatement?

Back 41

To challenge P's pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case.

Front 42

Tex. Civ. Pro. - What is a Plea in Abatement based upon?

Back 42

1. A defect in the parties (such as capacity, non-joinder, improper party)

2. A defect in the petition's allegation (such as another action pending)

Front 43

Tex. Civ. Pro. - How does one object to a plaintiff's or defendant's pleading?

Back 43

Special Exceptions.

Front 44

Tex. Civ. Pro. - What are special exceptions based upon?

Back 44

Defects of Substance or Form.

Front 45

Tex. Civ. Pro. - What must a defendent state in a general denial?

Back 45

Defendant denies each and every allegation in plaintiff's original petition.

Front 46

Tex. Civ. Pro. - What does a defendant file to challege a plaintiff's assertion that a condition precedent has been performed or has occurred?

Back 46

Special Denial.

Front 47

Tex. Civ. Pro. - What are the four affirmative defenses that must be verified?

Back 47

1. Denial of plaintiff's properly filed sworn account action.
2. Denial that D is a partnership or corporation.
3. That there is another suit pending in TX with same parties and cliam.
4. That there is a defect of the parties.

Front 48

Tex. Civ. Pro. - What is an affirmative defense?

Back 48

Any matter that provides an independent reason that will totally or partially bar the plaintiff from recovering, even if the allegations are true.

Front 49

Tex. Civ. Pro. - When can a case be removed to Federal court?

Back 49

Only if the case could have been filed in federal court originally.

Front 50

Tex. Civ. Pro. - To whom is removal to federal court available?

Back 50

Only the defendant. If multiple defendants, all must join in the removal.

Front 51

Tex. Civ. Pro. - What are the requirements of diversity of citizenship?

Back 51

1. Parties must be diverse.
2. Must be sufficient amount in controversy (75K).

Front 52

Tex. Civ. Pro. - What diversity of citizenship is required for removal?

Back 52

Complete diversity. Each plaintiff must be diverse from each defendant.

Front 53

Tex. Civ. Pro. - How is citizenship determined for individuals? Corporations?

Back 53

1. Domicile.
2. State of incorporation AND State of principal office (nerve center or primary place of activity)

Front 54

Tex. Civ. Pro. - If there is complete diversity of citizenship, and at least one defendant is a citizen of the forum state, may they remove?

Back 54

No.

Front 55

Tex. Civ. Pro. - What is the time limit for removal under diversity of citizenship?

Back 55

One year from commencement of action.

Front 56

Tex. Civ. Pro. - What are the steps for removal?

Back 56

1. D must file verified notice of removal in fed court, signed under FRCP 11.
2. Notice must contain short statement of why case can be removed.
3. Must be filed within 30 days after state service.
2. Give written notice to all adverse parties and file with state court.

Front 57

Tex. Civ. Pro. - If the D did not file answer in state court before filing notice of removal, when must the D file answer in federal court?

Back 57

1. Within 20 days after reciept of initial state court pleading, or
2. Within five days after filing the notice of removal, whichever period is longer.

Front 58

Tex. Civ. Pro. - How does a plaintiff challenge a defendant's removal?

Back 58

By filing a motion to remand to state court.

Front 59

Tex. Civ. Pro. - What must a plaintiff allege in a motion to remand?

Back 59

That the case could not have been originally brought in federal court, or

There is a defect in removal procedure.

Front 60

Tex. Civ. Pro. - When must a motion to remand be filed?

Back 60

Within 30 days if based upon defect in procedure; at any time before final judgment otherwise.

Front 61

Tex. Civ. Pro. - When may the plaintiff use permissive joinder of claims?

Back 61

Against a single defendent, even if causes of action are unrelated.

Front 62

Tex. Civ. Pro. - When may the defendant use permissive joinder of claims?

Back 62

When setting forth counterclaims.

Front 63

Tex. Civ. Pro. - What is necessary for a counterclaim to be compulsory?

Back 63

1. Be within the jurisdiction of the court.
2. Not be the subject of a pending action.
3. Arise out of the same txn or occurence.
4. Be a claim that the pleader has a time of filing.
5. Not require the presence of third parties over whom the court cannot acquire jurisdiction.

Front 64

Tex. Civ. Pro. - What happens if a compulsory counterclaim is not asserted?

Back 64

Its subject matter will be barred.

Front 65

Tex. Civ. Pro. - When may a permissive counterclaim be filed?

Back 65

In the same suit or in a second suit against the plaintiff.

Front 66

Tex. Civ. Pro. - What is a crossclaim?

Back 66

A claim by one party against a coparty.

Front 67

Tex. Civ. Pro. - What must a crossclaim arise out of?

Back 67

The same txn or occurence that is the subject of the original action.

Front 68

Tex. Civ. Pro. - Are crossclaims permissive or compulsory?

Back 68

Generally, permissive.

Front 69

Tex. Civ. Pro. - When is severance proper?

Back 69

When the controversy involves multiple claims, one of which could be asserted in a separate suit and does not involved the same facts and issues in the other claims.

Front 70

Tex. Civ. Pro. - When is a bifurcated trial ordered?

Back 70

When there are distinct and complex issues that, if tried together, might create confusion for the jury.

Ex: claims for both actual and punitive damages.

Front 71

Tex. Civ. Pro. - What are the requirements for permissive joinder of parties?

Back 71

1. Claim for or against the party is asserted jointly, severally, or in the alternative.
2. Claims asserted arise out of same txn or occurence.
3. There are common questions of fact and law.

Front 72

Tex. Civ. Pro. - What may the defendant do when he believes a third party is at fault?

Back 72

File a Third Party Claim alleging that the third party is liable for all or part of the original claim.

Front 73

Tex. Civ. Pro. - What is the procedure for a third party claim?

Back 73

File within 30 days after serving original answer, or
Obtain leave on motion stating the claim, the basis, and the relationship to the primary claim.
2. Give notice to all parties.

Front 74

Tex. Civ. Pro. - What is a common example of compulsory joinder of parties?

Back 74

When there are persons who have a joint interest in the subject matter of the lawsuit, but are not parties.

Front 75

Tex. Civ. Pro. - What is the purpose of a Motion to Intervene?

Back 75

Allows a party to voluntarily seek to become a party in the suit to protect his own rights.

Front 76

Tex. Civ. Pro. - What are the first class of requirements to certify a class action?

Back 76

1. The class is so numerous that joinder of all parties is impractical.
2. Questions of law or fact common to the class.
3. Claims or defenses of the representative parties are typical.
4. Representative parties will fairly and adequately represent the interests of the class.

Front 77

Tex. Civ. Pro. - What is the secont class of requirements to certify a class action?

Back 77

One of the following three:
1. Prosecution of separate actiosn would create risk of inconsistent adjudications.
2. Party opposing the class has acted or refused to act on grounds generally applicable to the class.
3. Court finds that common questions predominate and class action is superior to other methods.

Front 78

Tex. Civ. Pro. - What is discoverable?

Back 78

Any matter that is not privileged and is relevent.

Front 79

Tex. Civ. Pro. - Is it a ground for objection that the evidence will be inadmissible at trial?

Back 79

No, if the information appears reasonably calculated to lead to the discovery of admissible evidence.

Front 80

Tex. Civ. Pro. - Must trial witnesses be disclosed? What about impeachment or rebuttal witnesses?

Back 80

Yes.
No. Must show good cause for nondisclosure or that the opposing party will suffer no prejudice or surprise.

Front 81

Tex. Civ. Pro. - What documents or tangible things must be produced upon request?

Back 81

Any that are within the person's possession, custody, or control.

Front 82

Tex. Civ. Pro. - What are the three classifications of experts?

Back 82

1. Testifying
2. Consulting. Will not testify.
3. Reviewed connsulting.

Front 83

Tex. Civ. Pro. - What is not discoverable regarding a purely consulting expert?

Back 83

The identity, mental impression, and opinions.

Front 84

Tex. Civ. Pro. - What is discoverable regarding testifying or reviewed testifying experts?

Back 84

1. Identity
2. Subject matter
3. Mental impressions and opinions.
4. Documents &c prepared in anticipation of testimony.
5. Evidence of bias of the witness.

Front 85

Tex. Civ. Pro. - What are the time limits to respond to requests for disclosure regarding experts?

Back 85

Parties seeking affirmative relief: 90 days before end of discovery period.

Other parties: 60 days.

Front 86

Tex. Civ. Pro. - When must a party seeking affirmative relief make their experts available for deposition?

Back 86

Reasonably promptly after designation, UNLESS a report concerning experts opinions and observations is provided.

Front 87

Tex. Civ. Pro. - What is work product?

Back 87

Any material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or party's representative.

Front 88

Tex. Civ. Pro. - What is the first step to claim privilege as a basis for refusing to respond to interrogatories?

Back 88

Withholding Statement, stating that information has been withheld, for which request, and the privilege asserted.

Front 89

Tex. Civ. Pro. - What is the second step to claim privilege as a basis for refusing to respond to interrogatories?

Back 89

Response - the party seeking discovery may request that the withholding party identify the informatin withheld.

Front 90

Tex. Civ. Pro. - What is the third step to claim privilege as a basis for refusing to respond to interrogatories?

Back 90

Privilege Log - within 15 days, withholding party must describe information or materials withheld and assert a specific privilege. Must also establish a prima facie case for privilege by testimony or affidative.

Front 91

Tex. Civ. Pro. - Who has the burden to prove the validity of objections to interrogatories based upon privilege?

Back 91

The objecting party.

Front 92

Tex. Civ. Pro. - If a court orders answers that a party believes privilege, what should the party do?

Back 92

Seek a writ of mandamus.

Front 93

Tex. Civ. Pro. - If a defendent inavertently discloses privileged information, is the privilege waived?

Back 93

No, as long as within 10 days of discovering that the production was made, they amend the response and state the privilege aserted.

Front 94

Tex. Civ. Pro. - How does one object to discovery?

Back 94

1. Make objection in writing within time for response. (Otherwise objection waived.)
2. State legal or factual basis for objection. (Must be good faith.

Front 95

Tex. Civ. Pro. - Why would a party seek a protective order in discovery?

Back 95

To ask that the discovery be limited in the interest of justict to protect from undue burden unnecessary expense, harassment, or annoyance.

Front 96

Tex. Civ. Pro. - What are the time limits for supplementing discovery?

Back 96

1. Must do so reasonably promptly, not less than 30 days before trial. Otherwise, presumed not reasonably prompt.

Front 97

Tex. Civ. Pro. - What is a Level 1 discovery plan?

Back 97

1. Duration begins when suit filed, ends 30 days before trial.
2. No more than 6 hours depo time, can agree to expand up to 10.
3. No more than 25 interrogatories.

Front 98

Tex. Civ. Pro. - What is the ceiling for relief for a Level 1 plan?

Back 98

$50K.

Front 99

Tex. Civ. Pro. - What is the duration of a Level 2 plan?

Back 99

Starts when suit is filed. Continues until the earlier of 30 days before trial or 9 months after the earlier of the date of first depo or due date of first response to discovery.

Front 100

Tex. Civ. Pro. - What are the depo limits of a Level 2 plan.

Back 100

No more than 50 hours for opposing parties, their experts, and people under their control, plus 6 hours for every expert beyond 2. No limit for parties not under control.

Front 101

Tex. Civ. Pro. - What are the interrogatory limits under a Level 2 plan?

Back 101

25.

Front 102

Tex. Civ. Pro. - If time limit for depo has expired, what may a party or witness do?

Back 102

Suspend the depo.

Front 103

Tex. Civ. Pro. - When does a L3 plan apply?

Back 103

When a court orders it (on motion or sua sponte).

Front 104

Tex. Civ. Pro. - What are four types of information that may be obtained using a Request for Disclosure?

Back 104

1. Correct names of parties.
2. Names, addresses, and telephone numbres of potential witnesses.
3. Legal theories and general factual basis of responding party's claims or defenses.
4. Amount and method of calculating damages.
5. Witness statements
6. Settmement agreements

Front 105

Tex. Civ. Pro. - What are the means by which a party must respond to a Request for Disclosure?

Back 105

Plaintiff: Within 30 days after service of the request.
Defendant: 30 days, except if D was served with requests before answer was due, 50 days.

Front 106

Tex. Civ. Pro. - What is the purpose of a request for production?

Back 106

To obtain documents. (Subpoena required for nonparties)

Front 107

Tex. Civ. Pro. - How long to respond to a request for production?

Back 107

30 days, except 50 days for D if served before answer due.

Front 108

Tex. Civ. Pro. - Production of a document authenticates a document for use against a producing party except:

Back 108

When the producing party objects within 10 days after the recieving knowledge the document will be used.

Front 109

Tex. Civ. Pro. - What limits exist on testing items produced?

Back 109

Item may be optained, but may not be destroyed or materially altered unless previously authorized by the Court.

Front 110

Tex. Civ. Pro. - What should be filed to gain entry to property?

Back 110

A Request or Motion for Entry. Standard response times. (30 days / 50 for D before answer due)

Front 111

Tex. Civ. Pro. - What are interrogatories?

Back 111

Written questions to a party in the suit, answers must be used only against that party. Must be signed under oath.

Front 112

Tex. Civ. Pro. - What are request for admissions?

Back 112

Requests that other party admit the truth of any matter within the scope of discovery.

Front 113

Tex. Civ. Pro. - How must a responding party answer admissions?

Back 113

Specifically admit or deny, or explain in detail reason why request cannot be admitted or denied.

Front 114

Tex. Civ. Pro. - What are the limits for responses to admissions?

Back 114

The 30 / 50 - untimely responses are deemed admitted.

Front 115

Tex. Civ. Pro. - What are the effects of admissions?

Back 115

A matter admitted is conclusively established as to the party making the admission.

Front 116

Tex. Civ. Pro. - May a party withdraw admissions?

Back 116

By leave of court, if the party shows good cause and the court finds parties relying on the admission will not be unduly prejudiced. (Both actual and deemed admissions)

Front 117

Tex. Civ. Pro. - When must notice of intent to take an oral deposition be served?

Back 117

A rsbl time before it is to be taken.

Front 118

Tex. Civ. Pro. - What must a notice of intent to take a deposition contain?

Back 118

The name of the deponent, and a rsbl time and place for the deposition. For corporate deponents, need not give name of deponent, but ask org to designate.

Front 119

Tex. Civ. Pro. - Where may a deposition be taken?

Back 119

1. The county of the deponent's residence.
2. The county where the deponent is employed.
3. The country where the deponent was served with the subpoena.
4. If party, county where suit is filed.

Front 120

Tex. Civ. Pro. - When is appearance required for a deposition?

Back 120

When the county of appearance is not more than 150 miles from where the person resides or is served.

Front 121

Tex. Civ. Pro. - When is a subpoena required for a deposition?

Back 121

If the deponent is a nonparty witness. Otherwise, the notice has the effect of a subpoena.

Front 122

Tex. Civ. Pro. - May a subpoena for a depo also compel production of documents or things at the depo?

Back 122

Yes, same rules as request for production.

Front 123

Tex. Civ. Pro. - What must a deponent do if they object to the request to produce tangible things?

Back 123

File a Motion to Quash or a Motion for a Protective Order.

Front 124

Tex. Civ. Pro. - May a depo be taken by alternative means?

Back 124

Yes, if party gives rsgbl notice.

Front 125

Tex. Civ. Pro. - What are the only three objections proper at a dep?

Back 125

Objection, leading.
Objection, form.
Objection, nonresponsive.

Front 126

Tex. Civ. Pro. - When may an attorney confer with a witness during a depo?

Back 126

Only to identify a privilege to be protected.

Front 127

Tex. Civ. Pro. - When may an attorney instruct a witness not to answer during a depo?

Back 127

Only if doing to is necessary to preserve privilege, comply with court order, or to protect witness from abusive question or question that requires a misleading answer. NO other grounds.

Front 128

Tex. Civ. Pro. - May a depo be taken before suit is filed?

Back 128

Yes, by filing a Petition for Deposition Before Suit.

Front 129

Tex. Civ. Pro. - What must a Petition for Deposition Before Suit allege?

Back 129

1. Anticipation of a suit
2. Subject matter of suit and petitioner's interests.
3. Names & contact info of persons expected to be adverse.

Front 130

Tex. Civ. Pro. - Who pays the fee of an opposing party's expert witness at a depo?

Back 130

The party that hired the expert.

Front 131

Tex. Civ. Pro. - If attempts to resolve a discovery dispute fail, what may be filed?

Back 131

A Motion to Compel. Sanctions may also be requested.

Front 132

Tex. Civ. Pro. - When may a motion to compel a medical exam of another party be filed?

Back 132

After showing good cause and that medical condition is in controversy, no later than 30 days before end of discovery period.

Front 133

Tex. Civ. Pro. - What may a court instruct a jury to infer if a party fails to produce evidence under the party's control and rsbl available to it?

Back 133

That the evidence is unfavorable to the party that could have produced it and did not.

Front 134

Tex. Civ. Pro. - What must the plaintiff show to take a default judgment?

Back 134

1. That the Court has subject matter jurisdiction.
2. Jurisdiction over D by proper service of process.
3. Allege cause of action.
4. D has not filed answer and time has expired.
5. Return of citation has been on file 10 days exclusive of the day of filing the citation and day of the default judgment.

Front 135

Tex. Civ. Pro. - What happens if a plaintiff fails to seek default judgment?

Back 135

D may still file an answer, even if not timely.

Front 136

Tex. Civ. Pro. - What is admitted in a default judgment, and what must still be proven?

Back 136

1. All liability issues.
2. Unliquidated damages.

Front 137

Tex. Civ. Pro. - What must a defendent do to set aside a default judgment?

Back 137

1. Within 30 days:
2. Show that failure to answer was not intentional or result of conscious indifference, but rather mistake or accident.
3. Show meritorious defense.
4. No delay or injury to the plaintiff by granting new trial.

Front 138

Tex. Civ. Pro. - What must be shown to set aside a default judgment by a restricted appeal to Court of Appeals?

Back 138

Within 6 months;
Must demonstarte that D did not participate in the trial court below and did not file any post-judgment motion;
2. There is error on the face of the record.

Front 139

Tex. Civ. Pro. - What must be done to set aside a default judgment through an equitable bill of review?

Back 139

Within 4 years, and in the same court:
1. A meritorious defense
2. Which D was prevented from asserting by fraud, accident, wrongful act of P, or official mistake;
3. Unmixed with any negligence of the D.

Front 140

Tex. Civ. Pro. - If a bill of revie is based on a total lack of service of process, what must the D prove?

Back 140

Only a lack of service; due process requires that traditional requirements be excused.

Front 141

Tex. Civ. Pro. - When may a P file a nonsuit?

Back 141

At any time before P has introduced all of his evidence.

Front 142

Tex. Civ. Pro. - What is the effect of a nonsuit?

Back 142

Case is dismissed without prejudice.

Front 143

Tex. Civ. Pro. - What are the two standards for Summary Judgment? (JMOL)

Back 143

1. No genuine issue of material fact;
2. No evidence.

Front 144

Tex. Civ. Pro. - Who has the burden of proof for summary judgment?

Back 144

The moving party must show sufficient conclusive facts that it is entitled to JMOL.

Front 145

Tex. Civ. Pro. - What is required for no evidence summary judgment?

Back 145

After adequate discovery time, must specifically show that the is no evidence of one or more essential elements of a claim or defense.

Front 146

Tex. Civ. Pro. - What must be shown to avoid no evidence summary judgment?

Back 146

Evidence raising a genuine issue of material fact.

Front 147

Tex. Civ. Pro. - What is the procedure for summary judgment?

Back 147

1. At least 21 days before hearing, unless leave granted;
2. No oral testimony at hearing.
3. Evidence limited to affidatits and all types of discovery.

Front 148

Tex. Civ. Pro. - What is required for affidavits for summary judgment?

Back 148

1. Made on personal knowledge of affiant.
2. Affirmatively show affiant competent to testify.
3. State admissible facts.

Front 149

Tex. Civ. Pro. - What must be done for a Rule 11 agreement to be a valid settlement?

Back 149

Must be in writing, signed, and filed as part of the record or be made in open court and entered of record.

Front 150

Tex. Civ. Pro. - Who must approve a settlement if a minor is involved?

Back 150

The court.

Front 151

Tex. Civ. Pro. - What happens if there is a conflict between a minor and a minor's next friend or guardian?

Back 151

The court will appoint a guardian ad litem.

Front 152

Tex. Civ. Pro. - If a settlement offer is made and rejected, and the judgment is significantly less favorable, what happens?

Back 152

The offering party recovers litigation costs from the rejecting party.

Front 153

Tex. Civ. Pro. - What does "significantly less favorable" mean in context of comparing settlement offers and judgments?

Back 153

For P, less than 80% of the judgment, for D more than 120%.

Front 154

Tex. Civ. Pro. - What are the limits on litigation costs for rejected settlement offers?

Back 154

Costs incurred after the date the offer was rejected, including court costs, rsbl atty fees, and fees for no more than 2 testifying experts.

Front 155

Tex. Civ. Pro. - What is the time limit to request a jury trial in a civil case? Federal court?

Back 155

30 days before trial.
Any timee, but no later than 10 days after service of the last pleading directed to a triable issue.

Front 156

Tex. Civ. Pro. - What is the procedure to request a jury trial in a civilian case?

Back 156

In writing, with a jury fee or affidavit of inability.

Front 157

Tex. Civ. Pro. - What must a Motion for Continuance contain?

Back 157

In writing,
Under oath,
Show sufficient cause supported by affidavit unless all partie sagree.

Front 158

Tex. Civ. Pro. - When will a judge's grant or denial of a Motion for Continuance be disturbed?

Back 158

Clear abuse of discretion.

Front 159

Tex. Civ. Pro. - What is the purpose of a Motion in Limine

Back 159

To prevent opposing counsel from mentioning or asking questions about a matter without approaching the judge for a final ruling.

Front 160

Tex. Civ. Pro. - What should be done to preserve error when opposing counsel disregards a motion in limine?

Back 160

1. Object timely.
2. Obtain order by court disallowing the evidence.
3. Have court instruct jury to disregard statement.

Front 161

Tex. Civ. Pro. - When may the jury panel be shuffled?

Back 161

Before voir dire.

Front 162

Tex. Civ. Pro. - How many times may the judge shuffle a panel in a case?

Back 162

Once.

Front 163

Tex. Civ. Pro. - What are the four reasons to challenge a juror for cause?

Back 163

1. Juror is interested in the subject matter of the case.
2. Juror is a witness
3. Has a bias or prejudice
4. Is related to a party.

Front 164

Tex. Civ. Pro. - If a juror has expressed some bias, is he disqualified as a matter of law?

Back 164

Not necessarily. Additional voir dire may be taken and establish that the person will be fair and objective.

Front 165

Tex. Civ. Pro. - What must be done to preserve error in a challenge for cause?

Back 165

Before peremptory challenges, must state that it will exhaust all its peremptory challenges and that specific objectional jurors will remain on the list.

Front 166

Tex. Civ. Pro. - How many peremptory challenges are each side allowed? If there are multiple parties?

Back 166

6 in district court, 3 in county court.
Same, unless coparties are antagonistic on any issue to be submitted to jury, in which case 6 for each coparty.

Front 167

Tex. Civ. Pro. - What is a BATSON challenge?

Back 167

An objection that a jury panelist was excluded because of some prohibited classification such as race, ethnicity, or gender.

Front 168

Tex. Civ. Pro. - What is THE RULE?

Back 168

The Court swears witnesses on both sides and removes them from the courtroom so that they cannot hear the testimony from other witnesses.

Front 169

Tex. Civ. Pro. - What are the exceptions from THE RULE?

Back 169

1. Parties and spouses thereof.
2. Officers of non-person parties who are the designated rep;
3. A person whose presence is shown by the party to be ESSENTIAL to the presentation of the case.

Front 170

Tex. Civ. Pro. - What are the sanctions for violating the rule?

Back 170

Excluding the testimony in whole or part;
Holding the witness in contempt;
Allowing the witness to testify.

Front 171

Tex. Civ. Pro. - What is the standard of review for sanctions arising from violating THE RULE?

Back 171

Abuse of discretion.

Front 172

Tex. Civ. Pro. - What is a directed verdict?

Back 172

The method used to present a party's argument that there are no controversial fact issues for the jury's determination.

Front 173

Tex. Civ. Pro. - When may a party move for a directed verdict?

Back 173

1. When an opponent rests;
2. When an opponent closes;
3. When all parties close.

Front 174

Tex. Civ. Pro. - What are the exceptions from THE RULE?

Back 174

1. Parties and spouses thereof.
2. Officers of non-person parties who are the designated rep;
3. A person whose presence is shown by the party to be ESSENTIAL to the presentation of the case.

Front 175

Tex. Civ. Pro. - What are the sanctions for violating the rule?

Back 175

Excluding the testimony in whole or part;
Holding the witness in contempt;
Allowing the witness to testify.

Front 176

Tex. Civ. Pro. - What is the standard of review for sanctions arising from violating THE RULE?

Back 176

Abuse of discretion.

Front 177

Tex. Civ. Pro. - What is a directed verdict?

Back 177

The method used to present a party's argument that there are no controversial fact issues for the jury's determination.

Front 178

Tex. Civ. Pro. - When may a party move for a directed verdict?

Back 178

1. When an opponent rests;
2. When an opponent closes;
3. When all parties close.

Front 179

Tex. Civ. Pro. - What are both grounds necessary for a PLAINTIFF to successfully move for a directed verdict?

Back 179

1. P has conclusively proven all elements of one ground of recovery.
2. D has failed to produce any evidence on one

Front 180

Tex. Civ. Pro. - What are the two grounds for a DEFENDANT to successfully move for a directed verdict?

Back 180

1. D has conclusively proven all elements of one ground of defense, OR
2. P has failed to produce any evidence on at least one element of each ground of recovery.

Front 181

Tex. Civ. Pro. - What are two requirements to preserve error on the jury charge?

Back 181

1. All complaints must be made before the charge is read to the jury and outside their presence;
2. All complaints must be ruled on by the judge.

Front 182

Tex. Civ. Pro. - What are the three steps for objections to submitted but defective matters?

Back 182

1. Object to the specific portion of the charge.
2. State the basis for the objection.
3. Obtain a ruling.

Front 183

Tex. Civ. Pro. - What are the two types of complaints regarding jury charges?

Back 183

1. Omissions.
2. Submitted but Defective

Front 184

Tex. Civ. Pro. - What are the minimum amount of jurors that must agree in district court? County court? Justice of the peace court?

Back 184

1. 10 of 12.
2. 5 of 6
3. 5 of 6

Front 185

Tex. Civ. Pro. - Are exemplary damages available when there is a nonunanimous verdict?

Back 185

No.

Front 186

Tex. Civ. Pro. - What may the losing party do after the jury returns a verdict?

Back 186

Request a jury poll.

Front 187

Tex. Civ. Pro. - What is the purpose of a jury poll?

Back 187

To make sure that no juror was coerced and it was their verdict.

Front 188

Tex. Civ. Pro. - When may a judge disregard a jury's findings?

Back 188

When there is legally insufficient evidence to support a finding OR where the contrary evidence is conclusive.

Front 189

Tex. Civ. Pro. - What is the purpose of a motion for judgment notwithstanding the verdict?

Back 189

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.

Front 190

Tex. Civ. Pro. - What is the time limit for a motion for judgment notwithstanding the verdict?

Back 190

After the court has entered judgment, but before it becomes final.

Front 191

Tex. Civ. Pro. - In a evidentiary bench trial, how does a party learn the basis of the court's decision?

Back 191

Request the judge to make findings of fact and conclusions of law.

Front 192

Tex. Civ. Pro. - What is the deadline to request that a judge make findings of fact and conclusions of law after judgment is rendered in an evidentiary bench trial?

Back 192

Within 20 days after the final judgment is signed. The judge must answer within 20 days after the request.

Front 193

Tex. Civ. Pro. - What may a motion for a new trial be based upon?

Back 193

Any alleged error on part of the trial court.

Front 194

Tex. Civ. Pro. - For which matters is a motion for a new trial a prerequisite for appeal?

Back 194

1. Complaint of inadequate or excessive jury damages.
2. Complaint on evidence for jury misconduct, newly discovered evidence, or failure to set aside judgment by default.
3. Complaint of factual insufficiency.
4. Complaint that jury findings are against the great weight and sufficiency of the evidence.
5. An incurable jury argumeny.

Front 195

Tex. Civ. Pro. - What is the time limit to file a motion for a new trial?

Back 195

30 days after judgment is signed.

Front 196

Tex. Civ. Pro. - What is the time limit of the trial court's plenary power to set aside, modify, or amend the judgment sua sponte?

Back 196

30 days following the signing of the final judgment.

Front 197

Tex. Civ. Pro. - What is a final judgment?

Back 197

A judgment that disposes of all parties and all issues.

Front 198

Tex. Civ. Pro. - Which interlocutory orders are appealable?

Back 198

1. Class certification.
2. Temporary injunctions.
3. Special appearance (except under family code)
4. Appointment of a receiver or trustee.

Front 199

Tex. Civ. Pro. - When is an appeal perfected?

Back 199

When a written notice of appeal is filed with the trial court clerk.

Front 200

Tex. Civ. Pro. - What must a notice of appeal contain?

Back 200

1. Identification of the trial court and the case's trial court number and style.
2. Date of the judgment or order appealed from.
3. Statement that the party desires to appeal.
4. Identify the court to which the appeal is taken.
5. A statement of the name of each party filing the notice.

Front 201

Tex. Civ. Pro. - What is the time limit for an appeal when there is no motion for a new trial? When there is?

Back 201

30 days from date judgment signed.
90 days.

Front 202

Tex. Civ. Pro. - Does perfecting an appeal suspend enforcement of the judgment pending appeal?

Back 202

No.

Front 203

Tex. Civ. Pro. - What must be done to suspend enforcement on a judgment pending appeal?

Back 203

A bond must be filed with the trial court.

Front 204

Tex. Civ. Pro. - When must a Court of Appeals affirm a lower court?

Back 204

When there is NO ERROR or when the error is not significant enough to meet the standard for reversible error.

Front 205

Tex. Civ. Pro. - What is the most common disposition of reversed cases?

Back 205

Case is remanded for a new trial.

Front 206

Tex. Civ. Pro. - May a court of appeals reverse the judgment of a trial court AND render judgment instead of a new trial?

Back 206

Yes.

Front 207

Tex. Civ. Pro. - When mediation is ordered, when may a court impose sanctions? When may it not?

Back 207

1. Refusal to participate.
2. Refusal to settle or to mediate in good faith.

Front 208

Tex. Civ. Pro. - May a court compel payment of an appointed mediator?

Back 208

Yes, as a court cost.

Front 209

Tex. Civ. Pro. - When is the only effective time that all parties must consent to a settlement agreement?

Back 209

Must consent at time when judgment is rendered.

Front 210

Tex. Civ. Pro. - Are statements made in mediation admissible in court?

Back 210

No.

Front 211

Tex. Civ. Pro. - May a mediator be compelled to disclose information?

Back 211

No, unless the parties agree otherwise.