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257 Cards in this Set
- Front
- Back
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What is the deadline for filing an answer?
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Must file by 10:00 A.M. on the first Monday after the expiration of 20 days from the date of service
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What is the earliest time a plaintiff may obtain a default judgment?
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Any time after defendant's answer is due (provided that return of service has been on file 10 days, excluding the day of filing and the day of judgment)
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What should the defendant file if it wants to challenge a TX court's exercise of jurisdiction over it?
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Defendant should file a special appearance to challenge the court's exercise of persona jursidction
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When must a special appearance be filed?
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Under the due order of pleading, it must be filed before any other plea, pleading or motion by the defendant.
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What happens if the defendant files a plea, pleading, or motion before filing the special appearance?
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The defendant has made a general appearance and subjects itself to the jurisdiction of the TX courts
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Is the special appearance available to defendant TX corporation?
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No
The special appearance is only available to a non-resident |
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What should the defendant say in the special appearance?
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1. Assert that it is not amenable to service of process in the State of Texas; and
2. Deny the plaintiff's allegations |
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Should the special appearance be verified?
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Yes, the special appearance must be verified
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What forms of evidence will the court consider in deciding personal jursidiiction?
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All discovery, affidavits, and oral testimony
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When may the court's decision on the special appearance be appealed?
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The granting or denial of a special appearance is an interlocutory order that may be immediately appealed (except in family law cases)
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How does a defendant object to the plaintiff's choice of venue?
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File a motion to transfer venue
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When should the motion to transfer venue be filed?
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It must be filed before any other plea, pleading, or motion other than the special appearance
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In a multiple defendant case, can one defendant challenge venue even though the other defendant does not?
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Yes
Any act or omission by one D in relation to venue, including waiver, does not impair the right of any other D to properly challenge venue |
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What must the motion to transfer venue assert?
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It should assert:
1. That the action should be transferred to another specified county of proper venue; 2. the county in which the action is pending is not a property count; 3. The legal and factual basis for the transfer; and 4. Request a transfer to a specific county |
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What evidence can be used support the motion to transfer?
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Affidavits and any discovery, but NO oral testimony
(in fact, the motion MUST be accompanied by supporting affidavits) |
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Does a motion to transfer venue need to be verified?
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No
A motion to transfer venue DOES NOT need to be verified |
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What must the plaintiff do to respond to a defendant's motion to transfer venue?
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File a response at least 30 days prior to the venue hearing on the motion to transfer
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What must the plaintiff's response to the defendant's motion to transfer contain?
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The response must contain affidavits to prove matters specifically denied by D and a specific denial of any of D's pleaded venue facts which P wishes to contest
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When are the parties appellate after the motion to transfer is granted or denied
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No interlocutory appeal is allowed and a party must appeal the venue decision after final judgment
However, a party may seek a writ of mandamus to compel the trial court to enforce mandatory venue exceptions |
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What happens if the court transfers the case based on convenience of the parties or witnesses?
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A party may not appeal the trial court's ruling or seek a writ of mandamus
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Venue in multiple plaintiff cases
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Each plaintiff must independently establish proper venue, if challenged
Even if a P can't establish proper venue, the court may let them stay in if it's "fair and just" to do so (Interlocutory appeal can be taken from the trial court on either of these issues) |
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What should the defendant do if he thinks he cannot get a fair trial in a particular county?
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File a motion to change venue
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What should a motion to change venue allege?
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That there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial
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What should a motion to change venue be supported by?
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D should attach his own affidavit and the affidavits of at least three credible persons who are residents of the county of suit
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Is a motion to change venue subject to the due order of pleading?
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No, because the local prejudice may become known after the answer is due
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How does a defendant challenge defective service and sufficiency of service?
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File a motion to quash
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Is the plaintiff required to re-issue the citation if D's motion to quash is granted?
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No
The moving party (e.g. defendant) is required to file an answer by 10:00 A.M. on the first Monday after the expiration of 20 days from the date that the service or citation is quashed |
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What is a plea in abatement?
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This plea challenges P's pleadings by alleging facts outside the petition that justify the suspension or dismissal of the case
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What must the plea in abatement assert?
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The plea must identify the impediment, the effective cure, and ask the court to suspend the lawsuit until P has corrected the defect
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Does a plea in abatement have to be verified?
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No, unless another rule of civil procedure requires it to be verified
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What is a plea in abatement based on?
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1. A defect in the parties (e.g., capacity, non-joinder, improper party); or
2. A defect in the petition's allegation |
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How does a party object to form or substance of the other party's pleading?
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File a special exception
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What must the party specially exception call for?
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A hearing and get a ruling on the exception (otherwise it is waived)
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What happens if the special exception is sustained?
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The party will be allowed to amend the pleadings to correct the defect, if possible
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What may the special exception be based on?
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1. Defects of substance related to the cause of action, an element of damage, or relief which is not allowed by law; or
2. Defects of form typically related to vagueness, ambiguity, and the like |
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What is a general denial?
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This is where D generally denies all of P's allegations rather than admitting or denying each allegation in P's complaint
(it is not subject to sanction as being baseless or brought in bad faith) |
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What does the general denial need to state?
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Only that "defendant denies each and every allegation in plaintiff's original petition"
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Example of Due Order of Pleading
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1. Special Appearance
2. Motion to transfer venue 3. Special Exception 4. General Denial |
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What is the effect of failing to follow the due order of pleading?
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The pleading that is out of order is waived
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What is the effect of a general denial?
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It puts in issue all matters not required to be denied under oath or specially denied
P is required to prove the facts alleged in the petition D may introduce evidence which tends to rebut evidence offered by P |
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What is a special denial?
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D must specifically deny that the conditions precedent alleged to have been met by P have actually been met
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What is a verified plea?
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A plea that must be verified by signing an affidavit under oath to the effect that the factual matters pleaded are true.
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What is the effect of a failure to file a verified plea?
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When a verified plea is required, the failure to file constitutes an admission of the matter alleged unless the truth of such matters appear of record
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List five affirmative defenses that must be verified in a breach of contract case?
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1. A contract is usurious;
2. No consideration; 3. Failure of consideration; 4. denial of the execution of an instrument in writing; 5. denial of the genuineness of an assignment |
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What are some common things that must be pleaded under oath?
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Denials
Affirmative Defenses Pleas in abatement |
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What must the defendant file to assert that P does not have legal capacity to sue?
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A plea in abatement supported by affidavit
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What is an affirmative defense?
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Any matter that provides an independent reason that, if proved by the defendant, will totally or partially bar P from recovering, even if P's allegations are true
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Appropriate Language for an Affirmative Defense of Contributory Negligence
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"Even if plaintiff proves the allegations in its petition, defendant is not liable because of plaintiff's contributory negligence which was a proximate cause of the injuries to plaintiff"
The affirmative defense of contributory negligence need not be verified |
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Appropriate Language for an Affirmative Defense of Expiration of the Statute of Limitations
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"Even if plaintiff proves the allegations in its petition, defendant is not liable because the applicable statute of limitations has expired before suit was filed."
The affirmative defense of statute of limitations need not be verified |
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If the plaintiff agrees to a cash settlement and signs a full and final release of claims, what pleading should be filed to raise the applicable defense?
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File a general denial and answer further with the affirmative defense of release.
This defense does not have to be verified |
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How can an affirmative defense be raised even where it is not plead?
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An affirmative defense will be tried by consent if the opposing party fails to timely object to evidence introduced supporting the defense
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What is an inferential rebuttal matter?
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This denies one or more elements of P's cause of action by asserting that something else exists which is inconsistent with P's claim so that P's claim cannot be proven if this exists
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What is are some examples of an inferential rebuttal matter?
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Sole proximate cause, because it tends to negate the causation element of P's case
Unavoidable accident Act of God |
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Examples of how an inferential rebuttal should be pleaded
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"Even if the plaintiff proves the allegations in its petition, defendant is not liable because the negligence of John Smith, not a party to the suit, was the sole cause of the injuries to plaintiff."
The plea need not be verified "Defendant would show that plaintiff's alleged injuries were caused by an "Act of God" The plea need not be verified |
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When may a case be removed to federal court?
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If the case could have been originally filed in federal court (e.g. case presents a federal question or satisfies diversity of citizenship)
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What party can remove to federal court?
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Removal is available only to the defendant.
If there are multiple defendants, all defendants must join in the removal. |
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Elements of Diversity of Citizenship for Federal Court
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1. Must be complete diversity of citizenship - each P must be diverse from each D who is properly named as a defendant; and
2. The amount in controversy must exceed the sum of $75,000 |
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How can a Texas plaintiff avoid removal to federal court if it is suing a non-TX defendant?
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Join a TX resident (individual or corporation) as a defendant
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Who is "citizenship" defined for federal jurisdiction purposes?
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For individuals, citizenship is defined in terms of domicile
A corporation is deemed to be a citizen of any state by which it has been incorporated and of the State where it has its principle place of business |
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Domicile of non-US citizens
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Aliens admitted to the US for permanent residence shall be deemed a citizen of the state in which such alien is domiciled
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How is a corporation's principal place of business identified?
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The corporation's "nerve center" or its primary place of activity
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Limits on Removal to Federal Court
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1. Even if complete diversity exists, no D may be a resident of the forum state
2. A case may not be removed on the basis of diversity more than one year after the commencement of the action |
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Permissive Joinder
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P may join all causes of action he has against a single defendant in one lawsuit even if the causes of action are unrelated
D in answer and setting forth a counterclaim may join as many unrelated claims he has against P |
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What is a counterclaim?
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A claim by one party against an opposing party seeking some affirmative relief
(the counterclaim must be against the opposing party in the same capacity) |
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What are the requirements for a counterclaim to be compulsory?
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The counterclaim must:
* be within the jurisdiction of the court * not be the subject of a pending action at the time the CC is filed * arise out of the same transaction or occurence that is the subject matter of the principal action; * be a claim that the pleader has at the time of filing; and * not require the presence of third parties over whom the court cannot acquire jurisdiction |
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What is a compulsory counterclaim?
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A counterclaim that must be asserted in the pending action
(if not asserted in the pending action, the claim's subject matter will be barred) |
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What is a permissive counterclaim?
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A counterclaim that the defendant may bring in the same action or he can file a separate action against P later
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What is a crossclaim?
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A claim by one party against a co-party
The crossclaim must arise out of the same transaction or occurence that is the subject matter of the original action |
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When is severance of claims proper?
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When:
1. the controversy involves more than one cause of action; 2. The severed claim is one that could be asserted independently in a separate suit; and 3. The severed claim is not so interwoven with the other claims that they involve the same facts and issues |
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What happens after a severance of claims?
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The resulting causes of action are separate and distinct and may proceed independently to final, appealable judgments
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When is a bifurcated trial ordered?
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When there are distinct and complex issues that, if tried together, might create confusion for the jury
(these regularly occurs in cases in which plaintiff has sued for both actual and punitive damages) |
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What are the requirements for permissive joinder?
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1. The claim for or against the party is asserted jointly, severally, or in the alternative
2. The claims asserted for or against the parties arise out of the same transaction, occurence, or series of transactions or occurrences; and 3. There are common questions of law or fact |
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What can a party do to have someone joined as a party?
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File a motion to compel that person's joinder
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When must a party be joined?
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If the person is subject to process and his absence would cause substantial prejudice to the persons already parties to the action or to the absentee himself
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Impleader
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A party can bring in others as third-party plaintiff who may be liable to the P or to the D for all or part of the P’s claim against the D
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Example of Impleader
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In a car accident case, D is sued by the passenger in the other car. D believes P's driver was at fault. D uses impleader to bring the driver in as a third-party and claim that driver was at fault.
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Intervention
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A motion to intervene is filed by a person voluntarily seeking to become a party in the suit in order to protect his own rights.
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What does an interpleader do?
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It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute.
An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. It is often used to resolve disputes arising under insurance contracts. |
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Lodestar in class actions
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The lodestar amount is determined by multiplying the number of hours reasonably worked by a reasonable hourly rate
The attorney fees award must be in the range of 25% to 400% of the lodestar figure |
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Requirements of the parties for Class Action Certification
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1. The class is so numerous that joinder of all members is impractiable;
2. There are questions of law or fact common to the class 3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4. the representative parties will fairly and adequately protect the interests of the class |
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Requirements to maintain a Class Action
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1. The prosecution of separate actions by or against individual members would create a risk of inconsistent adjudications; or
2. The party opposing the class has acted or refused to act on grounds generally applicable to the class or; 3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy |
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What is multidistrict litigation (MDL)?
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A five-member panel is empowered to transfer factually related cases pending in multiple counties to a single court for consolidate pretrial proceedings
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Requesting an MDL transfer
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A party may move for transfer of the case and related cases to a pretrial court
A trial court also may request a transfer of related cases to a pretrial court The written motion or request must be filed with the MDL panel |
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When the MDL panel transfer?
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When it finds that the related cases involve one or more common questions of fact and transfer to the specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases
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General Rules of Discovery
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A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action
A party cannot object on the ground that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence |
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Is the net worth of a party discoverable?
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Probably not, unless the plaintiff is seeking punitive damages
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Examples of Specifically Discoverable Matters
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* the name, address, and telephone number of each person having knowledge of relevant facts;
* the name, address, and telephone number of any person who is expected to be called at trial - not rebuttal or impeachment witnesses * the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action * the existence and contents of any settlement * the statement of any person with knowledge of relevant facts - a "witness statement" * the name, address, and telephone number of any potential party; and * the other party's legal contentions and factual basis for those contentions |
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Classification of Experts
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Testifying - those who may testify as an expert witness at trial;
Consulting - those who have been consulted, retained, or specially employed in anticipation of litigation or for trial, but who will not testify; and Reviewed |
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What is a testifying expert?
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One who may testify as an expert witness at trial
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What is a consulting expert?
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One who has been consulted, retained, or specially employed in anticipation of litigation or for trial, but who will not testify
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What is a reviewed consulting expert?
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A consulting expert whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees with the opinions of the consulting expert
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What may a party discover from the other party's testifying or reviewed consulting expert?
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* name, address, phone number
* subject matter on which expert will testify; * mental impressions and opinions; * documents, tangible things, reports, models, and data prepared in anticipation of testimony; and * evidence of bias of the witness |
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What is not discoverable about the other party's consulting expert?
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The identity, mental impressions, and opinions of a purely consulting expert are not discoverable
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When must a party seeking affirmative relief respond to the requests for disclosure of information about his testifying and reviewed consulting experts?
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Usually must respond to the requests for disclosure at least 90 days before the end of the discovery period
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When must parties not seeking affirmative relief respond to expert information requests for disclosure?
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Must identify experts at least 60 days before the end of the discovery period
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What is work product?
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Any material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representative?
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What is core work product?
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The attorney's mental impressions, opinions, or conclusions, and is absolutely privileged
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When is non-core work product discoverable?
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When the party seeking discovery has a substantial need of the materials for the preparation of the party's case and the party is unable, w/o undue hardship, to obtain the substantial equivalent
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What procedure must the defendant follow to prevent the discovery of privileged information?
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Submit a withholding statement in a response to the interrogatories
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What must the withholding statement assert?
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1. That information or material responsive to the request has been withheld;
2. The request to which the materials relate; and 3. The privilege asserted |
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What can a party do after it gets the other party's withholding statement?
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Request that the withholding party identify the information withheld
Within 15 days, the withholding party must serve a response that describes the information or materials withheld and assert a specific privilege for each item or group of items withheld |
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What should a party do if the court orders it to answers the questions on matters it still believes are privileged?
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Seek a writ of mandamus
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Has a party waived a privilege by inadvertently disclosing it?
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Perhaps Not
The producing party does not waive the privilege if: 1. Within 10 days of discovering that such production was made, the party amends the response identifying the material produced and states the privilege asserted; 2. after the disclosing party makes such an amendment, the requesting party must promptly return the specified material and any copies thereof |
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What is a Level 1 Discovery Control Plan?
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A case in which the plaintiff seeks only monetary relief not exceeding $50,000 (excluding costs, prejudgment interest, and attorney's fees)
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Limits on the Level 1 Discovery Control Plan
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Duration - discovery period begins when suit is filed and continues until 30 days before trial
Depositions - each party may have no more than 6 hours of deposition time, but can agree to expand the limit up to 10 hours per party Interrogatories - no more than 25 per party (excluding interrogatories asking a party to identify or authenticate specific documents) |
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What is a Level 2 Discovery Control Plan?
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A case is that exceeds the requirements for Level 1 and in which there is no "order" ordering a Level 3 plan
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Limits on the Level 2 Discovery Control Plan
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Duration - continues until the earlier of 30 days before the trial date, or 9 months after the earlier of the date of first oral deposition of the first response to written discovery
Deposition: no more than 50 hours for each side; opposing side can get additional 6 hours per expert if one side designates more than two (50 hour limit does no apply to depositions of non-party fact witnesses who are not under a party's control) Interrogatories: no more than 25 (excluding those asking a party to identify or authenticate specific documents) |
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What can a party do if the other party has exceeded their time limits for deposition?
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Suspend the oral deposition
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What is a Level 3 Discovery Control Plan?
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Applies only when a court orders, pursuant to party's motion or on its own initiative, a discovery control plan that is tailored to the circumstances of the specific suit
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List of information that can be obtained using a Request for Disclosure
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* the correct names of the parties
* the names, addresses, and telephone numbers of potential parties; * the name, address, and telephone number of any person who may be designate as a responsible third party; * the legal theories and, in general, the factual basis of the responding party's claims or defenses - contention questions * the amount and method of calculating economic damages * the name, address, telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case * any indemnity or insurance agreements; * any settlement agreement; * any witness statements |
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May a party use a work-product objection in response to a request for disclosure?
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No
No objection or assertion of work product is permitted to a request for disclosure under rule 194 |
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Response to Request for Disclosure
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P must respond within 30 days after service of the request for disclosure
D also must respond within 30 days, except that a defendant has 50 days from service of the requests for disclosure if the defendant was served with the requests before his answer to the petition is due |
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Limits on Request for Disclosure
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Settlement agreement, insuring agreements, and indemnity agreements disclosed in response to a Request for Disclosure are not admissible at trial because of disclosure during discovery
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When must a motion to transfer be filed?
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Before or concurrently with any other plea, pleading, or motion except a special appearance
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What must the motion to transfer allege?
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The case should be transferred to another specified county of proper venue because:
1. Venue is not proper in the county where the action is pending; OR 2. A mandatory venue statute applies |
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Must the special appearance be verified?
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YES
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Under the general venue statute, where is venue proper?
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1. County where all or a substantial part of the events or omissions giving rise to the claim occurred;
2. County of D's residence at the time of the cause of action accrued if D is a natural person; 3. County of D's principal office in the state, if D is not a natural person; or 4. if 1, 2, and 3 don't apply, the county in which P resided at the time of the accrual of the cause of action |
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In multiple defendant cases, where is venue proper?
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In any county where venue is proper as against one defendant
Example P sues X, Y, Z; If P establishes proper venue as to X, venue is proper to Y and Z as well |
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What are some sanctions for filing a groundless or frivolous pleading?
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These sanctions can be entered against the attorney, the defendant or both:
1. Directive to the violator to perform, or refrain from performing, an act; 2. Order to pay a penalty into court; and 3. Order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney's fees |
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Is filing a general denial a sanctionable action?
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NO
The TX Rules of Civil Procedure allows parties to file general denials without sanction |
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What must the notice of oral deposition state?
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1. The name of the witness, corporation, partnership, association, governmental agency to be deposed;
2. A reasonable time and place for the oral deposition; 3. Whether the deposition can be taken with alternative means of conducting and recording |
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When must the notice of oral deposition be served?
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A reasonable time before the deposition is taken
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Other than the time and place for the deposition, what must the notice of deposition to an organization state?
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It describe with reasonable particularity the matters on which examination is requested
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What must an organization state in response to notice of oral deposition?
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1. The organization must designate one or more individuals to testify on its behalf; and
2. Set forth, for each individual designated, the matters on which the individual will testify |
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What must a party file to object to the time and place of deposition?
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File either a motion to quash or motion for protective order.
Either pleading must be filed by the third business day after service of the notice of deposition If the motion is granted, the deposition is stayed until the motion can be determined |
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Where may an oral deposition take place?
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1. County of the witness's residence;
2. County where the witness is employed or regularly transacts business in person; 3. County of suit, if the witness is a party or a person designated by a party under rule 199.2 4. County where the witness was served with the subpoena, or within 150 miles of the place of service if the witness is not a resident of Texas or is a transient person; or 5. At any other convenient place directed by the court in which cause is pending |
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To get access property what must a party file?
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A motion or request for entry upon property
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What must a motion or request for entry upon property state?
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1. The time, place, manner, conditions, and scope of the inspection; and
2. Specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by whom the inspecting, testing, or sampling is to be made |
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What facts must the affidavit for an evidentiary search warrant set forth to establish probable cause?
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a) That a particular offense has been committed,
b) That specifically described property or items that are to be searched for or seized constitute evidence of that offense; and c) That the items constituting evidence to be searched for or seized are located at the place be searched |
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When can the plaintiff take a default judgment?
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Any time after answer is due if D has not filed an answer
AND the citation w/ officer's return on it has been on file with the clerk 10 days, excluding the day of filing and the day of judgment |
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What can the plaintiff do if it wants to stop the trial?
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Dismiss or take a nonsuit
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What is a nonsuit?
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Where P voluntarily dismisses the case (ordinarily w/o prejudice to refil)
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Dismissal for Want of Prosecution
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Occurs where any party seeking affirmative relief fails to appear for hearing or trial
The court must dismiss unless there's good cause shown for the case to be maintained on the docket |
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What can you file if your case has been dismissed for want of prosecution?
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Motion to Reinstate
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What is summary judgment?
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A disposition of the merits of the case by judgment without trial
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When is summary judgment proper?
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When there no genuine disputed issue of material fact in the case
AND The moving party is entitled to judgment as a matter of law |
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Is the right to a jury trial automatic in civil cases?
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NO
Unless a jury trial is demanded, it is waived |
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What is a potential consequence of missing a pretrial conference?
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Counsel and client may be subject to sanctions
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What is a motion in limine?
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A written motion made before voir dire seeking to have the court order opposing counsel and his witnesses not to mention or question a matter w/o approaching the judge for a final ruling
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What can the judge do if a motion in limine is violated?
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Hold the lawyer in contempt if the order is written
Grant a mistrial for a serious violation Reprimand the offending attorney in the presence of the jury |
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What matters can the attorneys address on voir dire?
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Matters that are material and relevant to the particular case
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How many peremptory challenges does a party get in district court?
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Each side gets six peremptory strikes
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How many peremptory strikes does a party get in county court?
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Each party gets three peremptory strikes
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What is the peremptory strike procedure in multiple-party cases?
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The court must:
1. Align the sides; 2. Equalize the number of strikes per side so that no litigant or side gets an unfair advantage |
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What is the "150 mile" rule?
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A witness that has been subpoenaed is compelled to testify only if he resides within 150 miles of the county in which suit is pending or he must be found within that distance at the time of trial
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Primary Service of Process
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Delivery to D of a true copy of citation w/ date of delivery and a copy of the petition
By personal delivery to D OR registered or certified mail |
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Primary Methods of Service Process
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1. In hand deliver to D or his agent
2. Certified mail, return receipt requested |
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Who may serve process?
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1. Any sheriff, constable, or other person allowed by law
2. Court can authorize service by any person 18 and up 3. Court clerk can serve by certified mail return receipt requested |
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Service by Publication
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Can be done after filing affidavit that D's address is unknown or D is a non-resident
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Service Outside Texas
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Out-of-state D's should be served just like in-state D's
P can serve SOS and then it will mail citation and petition to non-resident |
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Proof of Service
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Person serving citation must sign the citation
If served by an "authorized person," return must be verified If served by mail, return receipt must be provided |
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What should D file to challenge the court's subject matter jurisdiction?
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Plea to the Jurisdiction
If the court finds lack of SMJ, it must dismiss the action SMJ is determined by looking at the pleadings |
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When can lack of subject matter jurisdiction be raised?
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At any time (either by the parties or by the court)
It can also be raised for the time on appeal Can be raised for first time when P attempts to enforce the judgment |
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When may the plaintiff serve the Secretary of State with process?
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1. D has failed to maintain a required agent;
2. Attempt of service has been made on two business days |
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Can the court's lack of subject matter jurisdiction be waived?
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NO
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Can the court's lack of personal jurisdiction be waived?
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YES
The preserve error on the issue of personal jurisdiction, D must object |
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What kind of proof can the defendant provide at the special appearance?
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Affidavits setting forth specific facts denying the court's jurisdiction
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Under the general statute, where is venue proper?
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1. County where all or a substantial parts of the events or omissions occurred
2. County of D's residence 3. County of corporate D's principal place of business |
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What must D show to get venue transferred?
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1. P's choice is not a proper venue; or
2. Mandatory venue applies |
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Is a venue-selection clause enforceable in TX?
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NO
The court must look at the venue facts and the pleadings |
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When must the motion to transfer be filed?
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Before or concurrently with any other pleading except a special appearance
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How does the plaintiff establish proper venue against multiple defendants?
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If venue is proper of one D, venue is proper over all properly joined Ds where the claim or action arose out of the same transaction, occurrence, or series of
transactions or occurrences |
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How do multiple plaintiffs establish proper venue?
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Each P must, independent of every other P, establish proper venue unless:
1. Joinder or intervention in the suit by that P is proper; 2. Maintaining venue as to that P does not unfairly prejudice another party; 3. There is an essential need to have that P's claim tried in the county in which suit is pending; and 4. County is a fair and convenient venue |
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What is the defendant's burden of proof at the motion to transfer hearing?
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D must prove that:
1. P's choice of venue is improper; or 2. There is a mandatory venue; D must also offer a county of proper venue |
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What kind of proof or evidence can the defendant provide at the motion to transfer hearing?
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D can use affidavits and discoverable evidence to specifically deny P's venue facts
NO oral testimony is heard !! D has a prima facie burden (must show some evidence) |
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On what grounds may D motion for a change of venue?
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An impartial trial cannot be had because of prejudice or an improper combination of individuals attempting to influence the trial
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What type proof does D need to get a change of venue?
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D needs his own affidavit and affidavits from at least three people that live in the county where venue has been established
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Venue Hearing Notice
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Each party is entitled to 45 days notice
Any response or opposing affidavits shall be filed at least 30 days prior to hearing |
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What are the steps a defendant must take to get venue transferred?
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1. Specifically deny that venue is proper;
2. State where venue is proper and for what reasons; 3. Ask of transfer to the proper county; 4. Specify the venue state; and 5. Always argue in the alternative that venue should be transferred for the convenience of the parties |
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What happens if the court grants a motion to transfer "for the convenience of the parties?"
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The court's decision is not reviewable (either by appeal or mandamus) and it is not reversible error
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Can the a party take an interlocutory appeal of the trial court's venue ruling?
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NO
The losing party may base an appeal of the case on an improper venue decision |
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Forum Non-Conveniens
|
D may seek to transfer between counties based on convenience of the parties & witnesses
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When must a defendant file a motion for forum non-conveniens?
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Must be filed at the time of D's answer
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Forum Non-Conveniens by Statute
|
Under the CRCP 71.031, P's seeking recovery from injury or wrongful death may bring suit in Texas even if the wrongful or neglectful act took place in a foreign state or country
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What is the doctrine of forum non-conveniens?
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This is where the court has jurisdiction of the subject matter and the parties but declines to exercise it
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Are forum-selection clauses valid in Texas?
|
YES if the clause selects a different judiciary system
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What are the requirements for the plaintiff's petition?
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1. Provide fair notice of the cause of action
2. Make factual allegations regarding each element of the cause of action 3. Make a prayer or demand (tells the court what kind of relief you want); and 4. File with the clerk |
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What are the types of fatal pleading defects?
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1. Fails to give fair notice of the claim or defense asserted
2. It presents a claim for relief that is legally invalid 3. Presents a claim that is outside the court's SMJ A fatal defect will not uphold a default judgment |
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What is an amended pleading?
|
A pleading that supersedes (or replaces) a prior pleading
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Does the plaintiff have to plead special damages?
|
YES
P must plead special damages |
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When must the defendant's answer be filed?
|
By 10:00 a.m. on the Monday next after the expiration of
twenty days after the date of service |
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Does the defendant's participation in discovery waive the special appearance?
|
NO
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What evidence can the defendant provide at the special appearance?
|
Affidavit
Discovered evidence Oral testimony |
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What is a general denial?
|
It controverts all the allegations in P's petition
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Which denials must be verified?
|
1. P lacks capacity to sue or be sued;
2. Another claim is pending between the parties; 3. Defect as to parties; 4. Denial of incorporation; 5. Denials of partnership; 6. Absence of consideration; 7. Lack of notice; 8. Contract defects |
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When may a verified denial be made?
|
1. In D's answer; or
2. In a plea of abatement |
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What is a plea of abatement?
|
A motion that specifies some obstacle to the maintenance of the suit which is not apparent on the face of the suit
(example is P's failure to give notice in a DTPA case) |
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What is a plea in abatement?
|
A motion indicating that matters exist outside the pleadings showing that the case should not go forward in its present condition
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EExamples of Affirmative Defenses
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Contributory negligence
Accord & satisfaction Duress Estoppel Lack of consideration Fraud Res Judicata These must be specifically plead or they are waived |
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When may a motion for default judgment be filed?
|
1. D has not filed an answer within the required deadline; AND
2. The citation has been on file for at least 10 days |
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|
What should a defendant file to challenge a defective service
|
Motion to quash
The MTQ only delays the required date to file an answer If the MTQ is granted, D has made an appearance and must file a responsive pleading |
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What happens if a compulsory counterclaim is not raised?
|
The claim cannot be raised in a subsequent action
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What is cross-claim?
|
A claim asserted by one co-party against another co-party arising out of the same transaction or occurrence
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What may a defendant do to bring in another party to the suit that he believes his totally or partly responsible for P's damages?
|
File a third-party claim (impleader)
This brings in a third-person that was not a party to the original action |
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|
When may the defendant add a third-party to suit?
|
D may add a third-party w/o leave of court no later than 30 days after serving the original answer
If impleader is sought after the 30-day period, leave of court is required |
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|
Does a party have to respond to a counterclaim?
|
NO
A party is deemed to have denied any counterclaim |
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|
Are amendments to pleadings allowed?
|
YES
Allowed w/o leave of court, up until 7-days before trial Leave of court is required if less than 7 days before trial |
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|
How does a defendant get a default judgment set aside?
|
File a motion for new trial (MNT)
The MNT must be made within 30 days after judgment has been entered |
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|
What must the defendant show to get a default judgment set aside
|
Must show that failure to answer unintentional and not the result of conscious indifference or intentional disregard
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|
What can the defendant do if his motion for new trial because of a default judgment is set aside?
|
File a restricted appeal
Must be file within SIX MONTHS after judgment is entered |
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|
What is a bill of review?
|
An equitable remedy that allows the defendant to challenge the default judgment on grounds that he did not receive notice
Four-year SOL to file (from the time D should knew or should have known of the judgment) |
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|
What must D show during the bill of review hearing?
|
1. He has a meritorious claim or defense;
2. The judgment under attack was rendered as the result of fraud, accident, or a wrongful act of the opposite party; or 3. D contributed no fraud or negligence into the matter |
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|
What must a party show in order for the court to grant a motion for summary judgment?
|
1. No genuine issue as to any material fact; and
2. Moving party is entitled to a judgment as a matter of law |
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|
What proof can be used to support a motion for summary judgment?
|
Affidavits
Discoverable evidence NO oral testimony is heard! |
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|
What are the types of summary judgment motions?
|
Traditional
AND No-Evidence |
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|
What are the characteristics of a traditional summary judgment motion brought by the defendant?
|
1. D can file it at any time... even before filing an answer
2. The movant has the burden of proof to show it is entitled to summary judgment 3. D must conclusively disprove at least one essential element of P's cause of action |
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|
No-Evidence Summary Judgment
|
1. The movant places the burden on the other party to show that there is SOME evidence to support its cause of action
2. It can only be filed "after adequate time for discovery" 3. The non-movant must produce summary judgment evidence raising a genuine issue of material fact |
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|
What must a party show in order for the court to grant a motion for summary judgment?
|
1. No genuine issue as to any material fact; and
2. Moving party is entitled to a judgment as a matter of law |
|
|
What proof can be used to support a motion for summary judgment?
|
Affidavits
Discoverable evidence NO oral testimony is heard! |
|
|
What are the types of summary judgment motions?
|
Traditional
AND No-Evidence |
|
|
What are the characteristics of a traditional summary judgment motion brought by the defendant?
|
1. D can file it at any time... even before filing an answer
2. The movant has the burden of proof to show it is entitled to summary judgment 3. D must conclusively disprove at least one essential element of P's cause of action |
|
|
No-Evidence Summary Judgment
|
1. The movant places the burden on the other party to show that there is SOME evidence to support its cause of action
2. It can only be filed "after adequate time for discovery" 3. The non-movant must produce summary judgment evidence raising a genuine issue of material fact |
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|
What are the requirements for a motion for continuance based on witness unavailability?
|
1. Witnesses' testimony must be material;
2. Due diligence was used to find the witness; 3. The evidence is otherwise unavailable; 4. The name and address of the witness; and 5. That continuance is not being sought solely to delay the proceedings |
|
|
What's the procedure for getting a continuance?
|
1. File a motion for continuance w/ the court;
2. Motion is supported by affidavits showing sufficient cause for the delay |
|
|
When is continuance mandatory?
|
- Counsel is a member of the TX legislature
- Legislator has been employed as counsel for at least 10 days - Continuance is only allowed during the legislative session and for 30 days before and after the session |
|
|
What information is exempted from discovery?
|
1. Atty's work product, mental impressions, opinions, conclusions, etc.
2. Witness statements made subsequent to the filing of a suit, made in connection with the prosecution, defense, or investigation of claims |
|
|
How can a party get documents from a non-party?
|
Get a subpoena duces tecum
(The court may quash a subpoena if found to be unreasonable or oppressive) |
|
|
When does the Level 1 discovery plan begin and end?
|
Begins when suit filed
Continues until 30 days before trial |
|
|
When does the Level 2 discovery plan begin and end?
|
Begins when suit is filed
Continues until the earlier of (i) 30 days before trial or (ii) 9 months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery |
|
|
How many hours of oral depositions does each party get in the Level 1 Discovery Plan case?
|
Six hours of oral depositions per party
(The parties can expand to 10-hours per party by agreement) |
|
|
How many hours of oral deposition does each party get in the Level 2 Discovery Plan case?
|
50 hours of oral deposition per party
(additional 6 hours if one side appoints two or more experts) |
|
|
How many interrogatories does each party get in a Level 1 Discovery Plan case?
|
No more than 25 interrogatories per party (except those that seek to identify or authenticate specific documents)
|
|
|
How many interrogatories does each party get in a Level 2 Discovery Plan case?
|
Each party gets no more than 25 (except those that seek to identify or authenticate specific documents)
|
|
|
Can the discovery plan currently being used be modified?
|
YES
The court may modify a discovery control plan at any time and must do so if the interests of justice so require |
|
|
When are responses for a request for disclosure due?
|
Responses are due within 30 days after service
|
|
|
What is the concept of offset?
|
This applies where a plaintiff has settlement w/ one or more tortfeasors
The amount P can recover from remaining D's will be reduced by either the sum of the settlements or a credit based on the damages found by the trier of fact (P must make the election) |
|
|
For what reasons may a juror seek to be excused for servidce?
|
1. Juror is over 65 yrs old
2. Juror has legal custody of a young child 3. Juror is a secondary school or college student; 4. Juror has served as a juror w/in the past two years in large counties |
|
|
What jurors are disqualified from service?
|
1. Juror is a witness in the case
2. Juror has an indirect or direct interest in the case 3. Juror is prejudiced against one of the paties 4. Juror has previously served as a juror in the same case 5. Juror is related w/in the 3rd degree of consanguinity or affinity to a party |
|
|
How many peremptory challenges does each party get in a civil case?
|
Six per party in district court
Three per party in county court |
|
|
P sues three defendants. Court gives Ds 18 peremptory challenges and P get 6. What can P do?
|
File a motion to equalize the peremptory challenges
|
|
|
How does the court equalize peremptory challenges?
|
1. Align the parties
2. Determine if antagonism exists (Antagonistic parties get their own strikes) 3. Equalize the number of strike so that no side is given an unfair advantage (The ratio does not have to be 1 to 1, but 4 to 1 is probably impermissible) |
|
|
Batson Inquiries
|
The parties may not strike jurors based on race or gender-motivated reasons
|
|
|
How does a party preserve error for Batson challenges?
|
1. Object before the jury is empaneled
|
|
|
How do you preserve error when the judge will not strike a juror for cause?
|
1. Make the objection
2. Say why the person should be struck for cause 3. Use a peremptory strike on this person 4. Ask for another peremptory strike |
|
|
How many jurors must agree on a verdict?
|
District Court - at least 10 of 12
County Court - at least 5 of 6 Justice Court - at least 5 of 6 |
|
|
How must you respond when the other party presents prima facie evidence that you used your peremptory strikes in a race-based or gender-based manner?
|
Provide a race-neutral or gender-neutral explanation of why you struck the person(s)
Bad body language Strange hair Dirty look |
|
|
What happens when a party invokes "The Rule"?
|
All non-party witnesses may be sworn in and removed from the courtroom so they won't hear the testimony of other witnesses
|
|
|
What people cannot be excluded from the courtroom?
|
1. A party who is a natural person or their spouse
2. Officer or employee of a other non-natural person who is designated as its representative by its attorney; or 3. A person essential to the presentation of the cause (e.g., experts) |
|
|
What are witnesses prevented from doing under "The Rule?"
|
1. They can't sit in the courtroom;
2. They can't talk with other witnesses or other persons about the case other than the attorneys in the case (except by permission of the court); and 3. They can't read any report of or comment upon the testimony in the case while under the rule |
|
|
What is the punishment for violating "the Rule?"
|
Contempt of court
|
|
|
When may a motion for instructed verdict be made?
|
1. At the close of evidence; or
2. Prior to the jury rendering a verdict The movant must state the specific grounds for the request |
|
|
How does the court analyze a motion for instructed verdict?
|
The court considers the evidence in the light most favorable to the non-moving party
|
|
|
When may a plaintiff's motion for instructed verdict be granted?
|
1. When P has established all the elements of his claim so that no reasonable minds could differ on the grounds; AND
2. D has not provided any evidence to the contrary on at least one element |
|
|
When may a defendant's motion for instructed verdict be granted?
|
If D has conclusively proven all elements of the defense
|
|
|
When may a judgment notwithstanding the verdict be granted?
|
JNOV may be granted if a directed verdict would have been proper after all evidence had been presented
|
|
|
What is a "broad form" question?
|
All the elements of an independent ground of recovery or defense are put into one question
|
|
|
What are the different types of charge put to the jury?
|
1. Questions to the Jury (asks jury to determine fact issues relevant to the case)
2. Definitions (explain the meaning of technical legal terms) 3. Instructions to the Jury (explains the applicable law) |
|
|
When must objections to the jury be made?
|
Before the charge is submitted to the jury
|
|
|
How does a party preserve error when it believes a jury charge is improper?
|
1. Make a specific objection to the defect;
2. Get the court's explicit refusal to include the offered charge; 3. Dictate the objection to the court reporter in the court's presence |
|
|
When can a party get something they want in the jury charge?
|
Make a request for inclusion of a question, definition, or instruction when the charge is being prepared
|
|
|
Can depositions be taken into the jury deliberation room?
|
NO
Depositions may only be read by the court to the jury |
|
|
Request For Physical or Mental Examination
|
This is allowed upon showing "good cause" and if mental or physical condition of a party or person under the legal control of a party is in dispute
|
|
|
When may requests for admission be served?
|
No later than 30 days before the end of the discovery period
Party served must respond within 30 days to either admit or deny or object to the request Failure to respond to a request for admission is deemed admitted unless the party to whom the request is directed denies the request or submits a written objection within 30 days |
|
|
Requests for Disclosure - Experts
|
A party may discover:
1. expert's identity and location; 2. subject matter upon which he will testify 3. Mental impressions/opinions of the expert; and 4. Facts which form the basis of his impressions and opinions |
|
|
When may an attorney instruct a witness not to answer?
|
1. To preserve a privilege;
2. To comply with a court order; and 3. To stop an abusive question or one which any answer would be misleading or one which any answer would be misleading |
|
|
What are the objections that can be made during the deposition?
|
Objection "Form"
Objection "Leading" Objection "Non-responsive" |
|
|
What are five items a party may request for disclosure?
|
1. The correct names of the parties;
2. Name, address, and telephone number of any potential parties 3. The legal and factual basis of the party's claims or defenses; 4. The amount and method of calculating economic damages 5. Name, address, and telephone number of any person with knowledge of relevant facts Also Any discoverable indemnity or insuring agreements, settlement agreements, or witness statements |
