Texas Civil Procedure Part 1

Front 1

What is subject matter jurisdiction?
personal jurisdiction? venue?

Back 1

SMJ - the court's power to hear a specific case
PJ - the court's power over a party to the action or the party's property
Venue - the proper placement of a case within the judicial system

Front 2

+Where is jurisdiction proper in cases involving a determination of title to land or enforcement involving land (e.g. a mortgage foreclosure)?

Back 2

the district court of the county where the property is located has exclusive jurisdiction.

Front 3

How is the amount in controversy determined?

Back 3

The amount prayed for in good faith by the plaintiff.

If the claim is for something other than money damages, the amount in controversy is usually determined with reference to the value of the thing or interest sought to be restrained.

Front 4

What are the two basic questions used to determine which court or courts have subject matter jurisdiction?

Back 4

1. Does the type of case or relief sought require the case to be filed in a particular court or courts?

2. If not, what is the amount in controversy of the suit

Front 5

Texas Trial Courts can be divided into two categories. What are they?

Back 5

Constitutional Courts - courts created by the TX constitution. These include the district courts, the county courts and the justice courts.

Legislative courts - The TX Consitution specifically authorizes the legislature to create other courts to handle specific matters. At the county level, these are county courts at law. At the discrict level, these courts often have a special designation such as family or criminal district courts.

Front 6

+What are the monetary limits for:
1. Justice courts
2. Constitutional County Courts
3. County Courts at Law
4. District Court

Back 6

1. Justice courts - up to $10k

2. Constitutional County Courts - $200 to $10k

3. County Courts at Law - $200 to the maximum amount found in the statute that created that specific court

4. District Court - Amount must exceed $500; no upper limit

Front 7

FEDERAL COURT JURISDICTION

Back 7

FEDERAL COURT JURISDICTION

Front 8

Jurisdiction in federal court is based on either ____ or ___.

Back 8

federal question jurisdiction or diversity of citizenship

The former has never been tested on the bar exam.

Front 9

What are the requirements for the federal courts to assert jurisdiction based on diversity of citizenship?

Back 9

Complete diversity (no D or P may be citizens of the same state) and the amount in controversy must exceed $75k.

Front 10

If a party is a citizen of another country but a permanent resident of that state, where is that party's citizenship for purposes of diversity jurisdiction?

Back 10

a citizen of that state for purposes of diversity jurisdiction.

Front 11

Where is a corporations "citizenship" for purposes of diversity jurisdiction?

Back 11

A corporation is considered to be a citizen of the state of incorporation AND their principal place of business either under the nerve center approach or the place of activity approach.

Front 12

1. WHO can REMOVE?

+2. WHEN can a suit be REMOVED from state court to federal court based on diversity jurisdiction?

Back 12

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

2.If jurisdiction would have been proper if filed first in federal court. This means that you must have complete diversity and a proper amount in controversy (e.g. $75k). Additionally, there is an additional requirement that no defendant may be a citizen of the state where the case is filed. If a case is removed based on diversity of citizenship, it may NOT be removed more than a year after the commencement of the action.

Front 13

+++++If the requirements for removal are met, how does a defendant remove?

Back 13

1. The D is to file a verified NOTICE OF REMOVAL within 30 days after being served with process in the state case (or after removal becomes possible).

2. The Notice of Removal should state why the case should be removed and must be signed pursuant to Rule 11

3. After filing the notice, give written notice to all adverse parties and file a notice with the clerk of the State court where the case was originally brought.

Front 14

+If a case is removed and the plaintiff is successful in asserting lack of diversity, what is the procedure to return the case to state court?

Back 14

The plaintiff would need to file a MOTION TO REMAND.

If the remand is based on lack of jurisdiction, the federal statute provides that it may be asserted at any time before a final judgment.

If a remand is based on a defect in the removal procedure, it must be asserted within 30 days.

***Look this up!

Front 15

What is required for a court to assert personal jurisdiction over a non-resident defendant based on minimum contacts?

Back 15

1.The D must purposely do some act or consummate some transaction in Texas
2. The cause of action must arise from these contacts or the D must have systematic and continuous contacts
3. The assumption of jurisdiction does not offend traditional notions of fair play and substantial justice.

CLUE: FART
F - Fair Play and Substantial Justice
AR - Arising From
T - Transaction

Front 16

A special appearance is ONLY available to _______.

Back 16

non-residents

Front 17

+How does a defendant contest personal jurisdiction?

What type of proof can be used?

Back 17

He must file a SWORN(verified) special appearance. The D must filed this before any other pleadings or it violates the due order of pleadings rule and is waived.

The D may use any form of discovery without waiving the special appearance.

The D may properly file other pleadings subsequent to the special appearance without waiving it.

At the hearing on the matter of personal jurisdiction, the proof may consist of any discovery, affidavits or oral testimony.

Front 18

Explain what a MOTION TO QUASH is and when and why one is used.

Back 18

This motion is used to point out some defect in the service of process. It is merely a delay tactic to allow the defendant more time to answer. If the motion is sustained, the D is deemed to have appeared at 10 a.m. on the Monday next after 20 days have expired from the day the service was quashed. No new service is required. This simply means that the defective service has now been corrected and the D has been properly served the moment the motion is sustained. The time for the answer begins to run from the time the motion is sustained.

NOTE that this is a general appearance and waives a special appearance if filed first because it would violate the due order of pleadings rule.

*look at this in long outline

Front 19

How do you serve an "in-state" defendant?

+What can you do if you service is initially unsuccessful?

Back 19

By delivering to the defendant a copy of the PETITION and the CITATION(which is a separate document telling the D when and where to file an answer) in person or by certified or registered mail.

If unsuccessful, you can file a motion with an affidavit stating the usual place of abode or business of the D and asserting the facts showing that service was attempted but unsuccessful. The court may then authorize service by leaving a copy of the citation and petition with anyone over 16 years of age specified in the affidavit or by any manner that will reasonably give the D notice of the suit.

Front 20

++How do you serve an out-of-state defendant?

Back 20

You can serve:
1. Pursuant to TRCP 108 - in the same manner as an in-state D; such service may be made by any disinterested person competent to make oath (usually a sheriff of the out-of-state county where the D lives). May be used instead of a long-arm statute.

2. Long-arm statute: Service is on the Secretary of State as agent for the D. To use this statute, the P must allege in the petition that the non resident D is doing business in Texas, does not maintain a place of regular business in Texas nor maintains a designated agent upon whom service can be made. Service on the Secretary of State starts the time for the D to answer. The Secretary of State will send the court clerk a certificate (referred to as a "Whitney Certificate") certifying he received copies of the petition and citation, teh date of receipt and the date he forwarded a copy of process to the D via certified mail.

Front 21

+What requirements must be met to come within the Long-Arm Statute?

Back 21

P must allege in the petition:
1. D is doing business in TX
2. D does not maintain a place of regular business in Texas
3. Nor did D maintain a designated agent upon whom service may be made.

Front 22

+When suit is filed within the applicable statute of limitations, but the defendant is served AFTER the statute expires, what happens?

Back 22

The service will relate back to the time the suit as filed so long as the plaintiff was DILIGENT in obtaining service of process on the defendant. If there was a lack of diligence, the defendant can assert the affirmative defense that the statute of limitations has run.

Front 23

Your client has been served with process and the time to file an answer has run. However, no default judgment has been entered. You are not contesting jurisdiction or venue. What do you do?

Back 23

You file a general denial to protect your client's interest.

Front 24

Draft the substance of a general denial.

Back 24

Defendant denies each and every allegation the plaintiff has alleged in its original petition. Defendant denies every allegation the plaintiff has asserted. Defendant files this general denial.

Front 25

Do you need leave of court to file an answer once the time for answering has expired?

Back 25

No. You do not need leave of court to file an original answer. Leave is only necessary when filing an amended answer within 7 days (so 6 days or less) of trial or a trial amendment.

Front 26

If you mail your answer to the district clerk, when is the answer considered filed?

Back 26

When it is:
1. Properly addressed to the district clerk
2. With the proper first class postage
3. deposited in the US Postal Service System.

So need 3 things: addressed, postage and mailed.

Front 27

*When is an answer due in state district and county courts?

Back 27

By 10 a.m. on the following Monday after the expiration of 20 days from the date of service.

Put another way: date of service + 20 days then the next Monday by 10 a.m.

However, if the 20th day falls on a Monday, then the answer is due the following Monday.

The time period begins to run as soon as the D or his registered agent is served.

Front 28

When is an answer due in federal court?

Back 28

20 days afer service.

Front 29

+When is an answer due if a case is filed in state court but the D is removing to federal court?

Back 29

The answer is due in federal court within 20 days of the receipt of the initial state court pleading or within 5 days after the filing of the notice of removal, whichever period is longer.

Front 30

What steps must the plaintiff's attorney take to provide the D with formal notice of the lawsuit?

Back 30

The P must file suit and have the D served with process either in person or by registered or certified mail. Process means a copy of the PETITION and CITATION (a separate document under seal by the clerk which notifies the D when and where to answer and the consequences of not answering).

Front 31

VENUE

Back 31

VENUE

Front 32

*Where is venue proper?

Back 32

Unless an exception applies, by statute, all lawsuits shall be brought:

1. In the county in which all or a substantial part of the events or omissions giving rise to the CLAIM OCCURRED; OR

2. If the D is a natural person, in the county where the DEFENDANT RESIDES at the time the cause of action accrued; OR

3. If the D is not a natural person, in the county where the D's PRINCIPAL OFFICE is located in this state

If none of the above apply, then the suit is to be brought in the county in which the PLAINTIFF RESIDED at the time of the accrual of the cause of action.

Front 33

+++For the convenience of the parties or witnesses, upon a proper and timely motion to transfer venue by the defendant, the court may transfer an action in which venue is proper under the general rule or some permissive exception (but not if the case has been filed under a mandatory exception) to another county of proper venue if the court finds:

Back 33

1. Maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal harship; and

2. the balance of interests of all parties predominates in favor of the action being brought in the other county; and

3. the transfer of the action would not work an injustice to either party.

Front 34

In a case with multiple defendants, if venue is good agains one defendant, is it good against the others?

Back 34

Yes. Venue which is good against one defendant is good against all defendants properly joined.

Front 35

Does the presence of an agency or representatvie such as a retail store establish a principal office in a given county?

Back 35

No. The principal office is where the decisionmakers within a state are located.

Front 36

The actions of one defendant ____ impair another defendant from contesting venue.

Back 36

canNOT

Front 37

+How many days must the motion to transfer venue be on file before a hearing?

Back 37

at least 45 days

NOTE: The other side must have 45 days notice of the hearing.

Front 38

Who has the burden of proof on a MTV?

Back 38

Venue facts specifically pleaded by P will be taken as proved unless they are specifcally denied by D, in which case they must be proved by stipulation or affidavit

*The P must show that venue is either mandatory or permissive where filed. If P fails to prove venue, then the court will look to the D's MTV. But ultimately, D has burden of proof.

Front 39

What should the caption read on a motion to transfer venue?

Back 39

It should read "Motion to Transfer Venue." However, "Motion to transfer" is sufficient because the SUBSTANCE of the motion is what is controlling.

Front 40

*What must a defendant allege in a motion to transfer venue?

Back 40

The defendant must plead:
1. That the county of suit is not a proper venue or a mandatory provision applies (any of the P's pleaded venue facts that the D wishes to contest must be specifically denied) ; and
2. That the suit should be transferred to another specified county of proper venue.

*A defendant who wishes to challenge venue mst obtain a hearing date and give the other party 45 days notice of the hearing.

*A MTV does not need to be verified

Front 41

+What evidence can a court consider when deciding venue?

Back 41

The court may consider affidavits and all forms of discovery but oral testimony.

Front 42

???Is the D required to attach evidence to a motion to transfer venue?

Back 42

Unsure of this answer. One set of cards says no another says a MTV MUST be accompanied by supporting affidavits and the long outline says nothing.

Front 43

++++If a plaintiff want to respond to a motion to transfer venue, what should the P file and when? What should this filing contain?

Back 43

The P should file a response to the motion at least 30 days or more before the hearing.

The response must present PRIMA FACIE proof by affidavits and any relevant discovery of matters specifically denied by the D. It must also include a specific denial of any of the D's pleaded venue facts which the P wishes to contest.

Front 44

Does a motion to transfer venue need to be verified?

Back 44

No.

Front 45

You represent a defendant who claims he cannot obtain a fair trial in the county in which the case is filed. What do you do?

Back 45

File a MOTION TO CHANGE VENUE with your client's own affidavit and the affidavit of at least 3 credible residents of the county of suit showing that there is such a prejudice against the defendant in the county of suit that the D cannot obtain a fair and impartial trial.

Front 46

PLEADINGS

Back 46

PLEADINGS

Front 47

*What are the formal requirements for a plaintiff's petition?

Back 47

-names of parties and their residences
-state the cause of action sufficient to give fair notice of the claim involved
-demand for all relief party deems himself entitled to
-last 3 numbers of party's driver's license and social security numbers
-signed by party or attorney certifying the case isn't brought in bad faith or is groundless

Front 48

*What must a P plead and prove to get an injunction?

Back 48

-probable right to relief
-probable injury
-harm is imminent
-without injunction, harm will be irreparable
-no adequate remedy at law

Front 49

If the D does not timely answer but does answer before the P has sought a default judgment, is a default judgment entered nonetheless?

Back 49

No. The D's answer will prevent a default judgment even though it is not timely in this situation.

Front 50

A ___ ___ puts everything in issue the P has alleged in the petition not required to be specially pleaded or denied under oath.

Back 50

general denial

Front 51

Q about special exception can go here - need to look up - see pg 9

Back 51

Q about special exception can go here - need to look up

Front 52

When can parties ammend their pleadings without leave of court?

Back 52

Seven or more days from the trial date.

*However, this is, of course, subject to the fact that the opposing party may move to strike the amended pleadings based on an objection that the pleadings state a new cause of action or defense and is prejudicial on its face or that the amendment causes suprise or prejudice.

Front 53

If the opposing party amends its pleadings seven or more days before the trial date (so without leave of court), what may the other side do?

Back 53

They can move to strike the amended pleadings based on an objection:

1. That the amended pleading states a new cause of action or defense and is prejudicial on its face -OR-

2. That the amendment would cause surprise or prejudice.

Front 54

+What if a party wishes to amend his pleadings within 7 days of trial (six days or less) or during trial?

Back 54

Leave of court is required and should be granted unless there is an objection:
1. That the amended pleading states a new cause of action or defense and is prejudicial on its face -OR-

2. That the amendment would cause surprise or prejudice.

Front 55

What can the opposing side do if the other side tries to amend his pleadings within 7 days of trial or at trial?

Back 55

They can move to strike the amended pleadings based on an objection:

1. That the amended pleading states a new cause of action or defense and is prejudicial on its face -OR-

2. That the amendment would cause surprise or prejudice.

Front 56

What is the proper "order" that pleadings must filed in to avoid violating the due order of pleadings rule?

Back 56

1. Special Appearance
2. MTV
3. Anything else (general denial, motion to quash citation, special exceptions, etc.)

Front 57

A forum non-conveniens motion for personal injury or wrongful death cases must be filed within 1._____ of when a motion to transfer venue is due. However, the other type of forum non conveniens is not required to be filed in any particular order.

*look up forum non conveniens

Back 57

1. 180 days

Front 58

If you have filed a Special Appearance and then file subsequent motions or pleas, must you add language to those subsequent pleas that state "subject to my special appearance"?

Back 58

No.

Front 59

+What should a special appearance contain?

Back 59

-Pleadings should state the D is not amenable to service of process and dney the P's jurisdictional allegations
-Should be verified
-discovery, affidavits and oral testimony are all admissible

Front 60

+Can a denial or granting of a special appearance be immediately appealed?

Back 60

Yes, except in family law cases. It is an interlocutory appeal.

Front 61

If you represent 3 defendants in the same case, can you file a single answer for all three.

Back 61

Yes. You are not required to file separate answers for each D.

Front 62

May you file a general denial to both liability and damages in Texas state courts?

Back 62

Yes. Unlike federal court where you are required to deny each allegation, Texas procedural rules allow you to file a general denial requiring the P to prove its case.

Front 63

+What is a SPECIAL EXCEPTION?

Back 63

This is used to require the other side to plead more specifically...such as to to make specific allegations of negligence or inuries or to specify an amount of damages. If this is sustained, the court can order the opposing side to replead.

A special exception be based on a DEFECT OF SUBSTANCE or a DEFECT OF FORM. A defect of substance relates to the cause of action, a defense, an element of damage or relief which is not allowed by law (e.g. 12b6 failure to state a claim on which relief can be granted). A defect of form typically relates to claims of vagueness, ambiguity or the like.

Front 64

What if a special exception is granted but the party refuses to replead...what then can the court do?

Back 64

The court may strike the objectionable allegations and if the remaining allegations fail to state a cause of action, then the court can dismiss the suit.

Front 65

+Assume you represent a D where the P has sued for breach of two separate contracts. Procedurally, how would the D separate these two claims?

Back 65

Since the P has alleged two causes of action, the D may seek a SEVERANCE which is within the trial court's discretion.

Front 66

+If you represent a P in a slip and fall case alleging neck injuries. A couple of days before trial your client tells you he also has pain in his foot. You do not amend but instead present evidence on injuries to his foot. The defendants do not object. The jury charge includs a question on the amount of damages to the foot and the D objects asserting there are no pleadings. How would you respond and how should the court rule?

Back 66

Seek leave of court to file a trial amendment asserting that the D's failure to object to the evidence is implied consent and they cannot now assert surprise or prejudice. The court should allow the trial amendment.

Front 67

+P files one claim in one county. D answers and then files a claim based on the same set of circumstances in another county. How should the P answer the claim in the second county?

Back 67

File a verified PLEA IN ABATEMENT asserting that the court in the first county has dominant jurisdiction.

A pleas in abatement is a response by the defendant that does not dispute the plaintiff's claim but objects to its form or the time or place where it is asserted.

Front 68

Are general denials permitted in federal court?

Back 68

No. The D is required to admit, deny or state lack of knowledge.

Front 69

In a case involving a minor child, who may file?

Back 69

The parents may file as "next friend" to their child. The court should appoint a guardian ad litem to protect the child's interest if it appears that there is any conflict of interest between the minor and parents.

Front 70

A court must ___ a settlement involving a minor.

Back 70

approve

Front 71

+++8 months after answering the suit and during discovery, the D determines that another party, but not a party in the lawsuit is responsible for the P's damages, how should the D proceed?

Back 71

File a third party action (impleader) asserting that the third party D is responsible for some or all of the damages owed to the plaintiff. Since more than 30 days have passed, the D will need leave of court. Copies of the petition will need to be served on all parties.

*Look up impleader

Front 72

What different types of sanctions are available?

Back 72

striking the D's answer or other pleadings; preclusion of evidence; contempt of court; awarding costs and attorney's fees

Front 73

++1. What is necessary for a counterclaim to be compulsory?

2. What is the effect of failing to file a compulsory counter claim?

Back 73

CLUE: WANNA –
Within jurisidiction;
Arise out of same transaction;
Not be the subject of another pending action;
Not require presence of 3rd parties over whom court cannot acquire jurisdiction;
At the time of filing, pleader has claim

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

2.Failure to file bars it from being litigated at a later time.

Front 74

+P files suit for breach of K and alleges that all conditions precedent have occurred. How should the D respond if he believes that some have not occurred? Who has the burden to prove the conditions?

Back 74

The D must SPECIALLY DENY each condition precedent it believes has not occurred. The P only has to prove the conditions that the D specifically denies.

Front 75

What is the effect of a nonsuit?

When may P file a nonsuit?

Back 75

Case is dismissed without prejudice.

At any time before P has introduced all of his evidence other than rebuttal. In other words, anytime before resting.

Front 76

Does non-suiting a claim or case affect a counterclaim?

Back 76

No, the counterclaim can proceed by itself.

Front 77

+What pleadings need to be verified?

Back 77

1. special appearance
2. a plea in abatement asserting that the P does not have capacity to sue
3. a plea in abatement asserting that one court has dominant jurisdiction
?4. removal to federal court?

Front 78

+You represent the D and believe that the plaintiff is a minor without capacity to bring suit. What type of pleading should you file to raise the capacity issue and explain any technical requirements?

Back 78

You need to file a verified (sworn) PLEA IN ABATEMENT asserting that the P does not have capacity to sue.

Front 79

DEFAULT JUDGMENTS

Back 79

DEFAULT JUDGMENTS

Front 80

1. A default judgment where a defendant does not file any pleadings in response is called a _____.

2. A default judgment where the D files an answer to the merits but fails to appear at trial is called a ___.

Back 80

1. No answer default judgment

2.Post answer default judgment

Front 81

+To get a default judgment when the D fails to file any pleadings in response (a no answer default judgment) what must the P show?

Back 81

1. The court has subject matter jurisdiction
2. The D was properly served
3. The petition states a valid cause of action
4. The time to answer has expired & D has failed to answer
5. The return of citation has been on file with the court for 10 days not including the day the citation was filed with the court and not including the day the default judgment is sought.

*6. unliquidated damages

Front 82

*Broadly speaking, what are the three ways a D may seek to have a default judgment set aside?

Back 82

1. Motion for a new trial within 30 days of the default judgment

2. If no motion for a new trial is made, appeal to the Court of Appeals within 6 months of the DJ

3. Equitable Bill of Review within 4 years of the DJ

Front 83

+++What is the main method for trying to set aside a default judgment?

Back 83

HOW YOU SET ASIDE A DEFAULT JUDGEMENT:
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 84

+++1. What must be shown to set aside a default judgment by a restricted appeal to Court of Appeals?

Back 84

Within 6 months:
1. D must demonstate 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 85

+++What must be done to set aside a default judgment through an equitable bill of review?

Back 85

Within 4 years, and in the same court, D must show:
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 86

+If a bill of review is based on a total lack of service of process, what must the D prove?

Back 86

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

Front 87

When a default judgment is entered, the D admits liability, but the P must still prove ___ and ___.

?look this up

Back 87

proximate causation and unliquidated damages

Front 88

+When the D files an answer to the merits but fails to appear at trial, the D is deemed to have admitted ____ and the P must prove ___.

Back 88

nothing
all issues - liability and unliquidated damages.

Front 89

SUMMARY JUDGMENTS

Back 89

SUMMARY JUDGMENTS

Front 90

+In a traditional motion for summary judgment, the burden is on the movant to show they are entitled to 1.____, that is, 2.____.

Back 90

1. judgment as a matter of law
2. reasonable minds could not differ

Front 91

+In a traditional motion for summary judgment, what must the non-movant do once the movant has established they are entitled to summary judgment?

Back 91

They must raise a genuine issue of material fact or the summary judgment will be granted for the movant.

Front 92

+++++What is the basis for a "no evidence" summary judgment?

Back 92

After an adequate time for discovery, the party without the burden of proof at trial, without having to produce any evidence in support, can move for summary judgment on the sole basis that the non-movant has no evidence to support an elements of its claim or defense.

The motion is to state which elements lack support in the evidence and it is to be granted unless the non-movant produces summary judgment evidence raising a genuine issue of material fact. In the "no evidence" motion for summary judgment, the movant has no burden of proof, the burden is initially on the non-movant to raise a fact issue.

Front 93

+What type of evidence may parties use in support of a MSJ?

Back 93

Parties may use affidavits based on personal knowledge and any type of discovery. Oral testimony is not allowed.

Front 94

+What is a party's burden when they move for summary judgment on an affirmative defense?

Back 94

They must conclusively prove all the elements of the defense.

Front 95

There is ___ limit to the number of summary judgments.

Back 95

no

Front 96

If a party asserts a no evidence summary judgment, do they have to produce any evidence in order to obtain the relief sought?

Back 96

No. In a no evidence summary judgment, the movant only has to assert no evidence on one or more identified elements of a claim or defense. The burden then shifts to the non-movant to raise a fact issue on that element or elements.

Front 97

You file a motion for summary judgment which is denied. Can you appeal?

Back 97

No. A denial of a summary judgment is a non appealable interlocutory appeal.

Front 98

+What is required for affidavits for summary judgment?

Back 98

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

Front 99

In a products liability case based on defective design, an expert hired by the defense submits an affidavit in support of a traditional motion for summary judgment. The affidavit identifies the expert, states it is based upon personal knowledge and he is competent to make the affidavit and asserts that in his opinion the defendant's product was not defectively designed. As the plaintiff's attorney how would you respond and how should the court rule?

Back 99

I would timely respond asserting that the affidavit is a mere conclusion and not supported by any facts. Henice it does not conclusively establish the motion for summary judgment and the motion should be denied.

Front 100

An affidavit based on "information and belief" allows ___ and is not proper ____ because it is not based on personal knowledge.

Back 100

hearsay

summary judgment proof

Front 101

*1.A MSJ must be filed at least ___ days before hearing unless___.

Back 101

21 days

leave is granted

Front 102

DISCOVERY

Back 102

DISCOVERY

Front 103

The P is to allege in the 1.___ paragraph of the original petition whether discovery is to be conducted under Level 1, 2 or 3. The failure to se plead is subject to a special exception and the case automatically defaults to a ___ discovery plan.

Back 103

1. first numbered
2. Level 2

Front 104

All types of discovery are available in all discovery plans against ____. However, only oral depositions, depositions on written questions, requests for production and requests to enter property may be use against a ____.

Back 104

a party to the suit

non party

Front 105

+When can a Level 1 discovery plan be used?

Back 105

P seeks only monetary relief not exceeding $50k (excluding costs, pre-judgment interest and attnys fees) or a suit for divorce not involving children where the marital estate does not exceed $50k.

Front 106

+Describe a level 1 discovery plan.

Back 106

*total time for depos - 6 hours but parties may agreed to 10 hours but no more absent a court order
*each party may serve on all other parties not more than 25 interogatories
*discovery period begins when suit is filed and continues until 30 days before trial date.

Front 107

When can a level 2 discovery plan be used?

Back 107

It is the default. It is one that does not fit in Level 1 and there is no court order ordering a Level 3.

Front 108

+When does the discovery period begin and end under a Level 2 discovery plan?

Back 108

It begins when suit is filed and continues until:
(a) 30 days before the date set for trial under the Family Code -OR-
(b) in other cases, the earlier of:
(i) 30 days before the date set for tiral 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.
Basically, discovery goes on for 9 months max

Front 109

+Describe a Level 2 discovery plan

Back 109

TOTAL TIME FOR DEPOS: 50 hours for each side (all litigants with generally common interests) to examine & cx all persons who are subject to a parties control. If one side designates more than 2 experts, the opposing side may have an additional 6 hours of deposition time for each additional expert
INTERROGATORIES: 25

Front 110

What is a Level 3 discovery plan?

Back 110

The court tailors a discovery plan for that case upon dmand by a party or on the court's own motion.

The court uses the guidelines & limitations of a Level 1 or 2 (whichever would apply in the case) but may modify these by court order.

Front 111

+A REQUEST FOR DISCLOSURE allows for the following information to be discovered by all parties without objection or assertion of other work product privilege. What are these five things?

Back 111

1. The correct names of the parties
2. Name, address, and telephone number of any potential parties
3. The amount and method of calculating damages
4. The name, address and telephone number of persons having knowledge of relevant facts.
5. Witness statements not otherwise privileged.

Front 112

How long does each side have to respond to a REQUEST FOR DISCLOSURE?

Back 112

PLAINTIFF: Must respond within 30 days after service of the request for disclosure.

DEFENDANT: Same as above EXCEPT if he was served with the request before his answer was due. Then he has 50 days.

Front 113

What is the response time for interrogatories?

Back 113

PLAINTIFF: Must respond within 30 days after service of the request for disclosure.

DEFENDANT: Same as above EXCEPT if he was served with the request before his answer was due. Then he has 50 days.

Front 114

+What does the response to an interrogatory consist of?

Back 114

The response consists of answers, objections, or assertion of a privilege. Certain answers must be signed under oath by the party. If the party is represented by an attorney, the party must sign under oath and the attorney shall also sign although there is no requirement the attorney's signature be under oath.

Front 115

+What do you do if you want to object to a question in an interogotory on the basis of a privilege?

Back 115

State in the response the materials which have been withheld, the request to which the materials relates and the privileges you assert. This is referred to as a WITHHOLDING STATEMENT.

Front 116

What should you do if you realize that you accidentally produced privileged documents?

Back 116

Within 10 days after you discover your error, amend your response identifying the material you produced and stating the privilege asserted.

Front 117

You represent the D and are sent a set of interrogatories via certified mail. What effect, if any, does this have on your time to respond?

Back 117

Our rule provides that you add three additional days to the prescribed period to respond. The D is considered served when the interrogatories are placed in the mail.

Front 118

The adverse party sends you interrogatories seeking the names of any impeachment or rebuttal witnesses you intend to call at trial. How do you respond?

Back 118

Object. Our rules provide that a party may obtain the names of trial witnesses but not rebuttal or impeaching witnesses the necessity of whose testimony cannot be reasonably anticipated before trial.

Front 119

+You send interrogatories to the adverse party requesting them to list the witnesses they intend to call at trial. During trial, the adverse party call a witness they did not identify. What can you do?

Back 119

Object. Failure to properly respond by identifying this witness requires the court to disallow the testimony unless the adverse party shows good cause or no prejudice to you.

Front 120

What is the response time for admissions?

Back 120

Same as REQUESTS FOR DISCLOSURES.

PLAINTIFF: Must respond within 30 days after service of the request for disclosure.

DEFENDANT: Same as above EXCEPT if he was served with the request before his answer was due. Then he has 50 days.

Front 121

What is the consequence of failing to timely respond to a request for admissions?

Back 121

The matter is deemed admitted without a court order.

Front 122

+How do you respond to a request for admissions?

Back 122

Unless a party asserts a privilege or states an objection, the party must timely respond in writing by admitting or denying or explaining in detail the reasons the party cannot admit or deny.

This response must be SIGNED by the party or party's attorney if represented by an attorney.

Verification (under oath) is not required.

Front 123

What is the limit on the number of requests for admissions that a party can make under a Level 1 Discovery Plan? A Level 2?

Back 123

There are no limits on the number of requests for admissions.

Front 124

What is the effect of an admission?

Back 124

The party may not introduce evidence that contradicts the admission. The effect of an admission is that it conclusviely establishes for trial purposes those things that are admitted unless the court (on motion) permits the withdrawal or amendment of the admission. The admission is only good for the present case. The admission may be used only against the party to whom the admissions were addressed and do not bind co-parties. A party may not use its own self-serving answers.

Front 125

When can a deemed or actual admission be withdrawn?

Back 125

An admission may be withdrawn upon a motion showing GOOD CAUSE, the court finds the adverse party will not be harmed or prejudiced by such withdrawal and the presentation of the merits will be subserved by allowing the withdrawal.

Front 126

What if a party admits evidence that contradicts an admission, what can the opposing side do?

Back 126

The opposing side MUST object to the admission of this evidence. Otherwise, the failure to object nullifies the admission.

Front 127

What notice is required to take a deposition?

Back 127

A notice of intent to take an oral deposition must be served on the deponent and parties a REASONABLE TIME before it is taken.

Front 128

+What must a notice of intent to take an oral depo contain?

Back 128

1. Name of the Deponent
2. State a reasonable time and place for it to be taken

*The notice shall also state the identity of others who will attend.
**If you want tangible items present, those must be designated in the notice and this invokes the time limitations for a request for production.

Front 129

+Where may a deposition take place?

Back 129

*In the county of the deponent's residence
*Where the deponent is employed or conducts business
*Within 150 miles of the place of service if the deponent is a non-resident or transient
*The count of suit if the deponent is a party
*Or any convenient place by court order

Front 130

How do you object that time or place for a deposition is unreasonable?

Back 130

File a MOTION TO QUASH the depo or a motion for a PROTECTIVE ORDER before the time specified in the notice.

Front 131

+How do you object to a request to produce a tangible item?

Back 131

File a MOTION TO QUASH or a MOTION FOR A PROTECTIVE ORDER within the proper time to respond to a request for production.

Front 132

An oral deposition may also be taken by ___ or ___ if a party gives reasonable notice of intent to do so.

Back 132

telephone or other electronic means

Front 133

If a deponent is a non-party witness, you must issue both a ___ and a ___ if you wish to depose them. You do not need to subpoena a party.

Back 133

Notice of intent to take an oral deposition AND a SUBPOENA

Front 134

+A person may be compelled to appear at a deposition by subpoena pursuant to ___. A subpoena may also require the deponent to bring items to the deposition.

Back 134

Rule 176.

Front 135

+How is a corporation or other non-human entity deposed?

Back 135

The notice shall designate matters which will be the subject of the deposition. Then the corporation must designate the human to testify on its behalf within a reaonable time before the deposition stating the matters each witness will testify about.

Front 136

What are the only three objections that may be made during a deposition?

Back 136

CLUE: NFL
Non-responsive, Form, Leading

1. To the form of the question
2. That the question is leading
3. The answer is non-responsive

Front 137

The three objections that are allowed in depos (i.e. form, leading, non-responsive) MUST be made AT the depo (unless there is an agreement to reserve them until trial) or they are ____.

Back 137

waived

Front 138

+An agreement to reserve objections in a depo may be made by a ________.

Back 138

valid Rule 11 Agreement (defined as one in writing, signed by the parties, and filed with the court or made in open court and of record).

Front 139

+A valid Rule 11 agreement must be...

Back 139

Must be in writing, signed by the parties, and filed with the court
-OR-
made in open court and of record

Front 140

The only three proper objections in a depo are OBJECTION-LEADING, OBJECTION-NON RESPONSIVE, OR OBJECTION-FORM. However other objections may be made ____.

Back 140

at trial without agreement.

Front 141

Can an attorney have a private conference with his client and during a depo?

Back 141

No. These are improper except for the purpose of determining whether a privilege should be asserted.

Front 142

When are the only times an attorney can instruct his client not to answer a question during a deposition?

Back 142

ONLY:
1. to preserve a privilege
2. compy with a court order or the rules
3. stop an abusive question
4. stop a question which any answer to would be misleading

Front 143

When can a depo be suspended?

Back 143

If time has expired, or the depo is being conducted or defended in a manner which violates the rules.

Front 144

+Objections to the FORM of the question include:

Back 144

-the question calls for speculation
-seeks a narrative answer
-is vague, confusing or ambiguous

Front 145

No side may examine or CX an individual witness for more than ___.

Back 145

6 hours

Front 146

P sues D for making a defective salsa causing P to become sick. The D does not want its secret recipe to become public knowledge because of its competition. How can the D's answers in a depo be kept private?

Back 146

File a motion for a protective order on the grounds of trade secret. This requires D to prove their formula is a trade secret.

Front 147

+++++Assume the court orders the D to produce the formula and refuses to agree to your trade secret assertion. What can the D do at this time to prevent his formula from becoming public record?

Back 147

Seek a Writ of Mandamus. You will be required to show an abuse of discretion and that an appeal after final judgment would not be adequate.

Front 148

+What if you need the testimony of a witness who is likely to die before suit is brought?

Back 148

File a PETITION FOR A DEPOSITION BEFORE SUIT.

You must allege that:
1. The petitioner anticipates the institution of a suit which the petitioner may be a party to
2. State the subject matter of the anticipated action and the petitioner's interest therein
3. If anticipated, the names of the persons the petitioner expects to have interests adverse to the petitioner, their addresses and telephone numbers.

Front 149

What do you do if during a depo opposing counsel repeatedly interupts questioning and makes objections that expressly suggest to the witness how to answer?

Back 149

Suspend the depo. The rules provide that the court may allow in evidence at trial of any statements, objections, discussion or other occurrences that happened during the deop that reflect on the credibility of the witness or testimony

Front 150

During a depo, opposing counsel asks your witness what would be his best guess as to the speed of the train just before collision. What do you do?

Back 150

Objection, form: The question calls for speculation on the part of the witness.

Front 151

+What is a REQUEST FOR PRODUCTION?

Back 151

This rule allows you to obtain documents and tangible items from parties and non parties. It also provides for entry onto property.

Front 152

+1.What is the response time for REQUESTS FOR PRODUCTION served on a party? 2. Served on a non party?

Back 152

1. same as a request for disclosure
2. It must be served no later than 30 days before the end of the discovery period.

Front 153

What must a request for production served on a non party contain?

Back 153

The non party must be served both with proper notice and a subpoena. The notice must state the name of he person from whom production is sought, a reasonable time and place for production and the items to be produced.

Front 154

What should you get if you wish to enter property?

Back 154

REQUEST FOR ENTRY ON TO PROPERTY

If the property belongs to a party, you only need to serve them with this. If the property belongs to a non party (I think) you also need a subpoena. State that you desire to go on to the land for surveying, inspection, photographing, sampling, measuring,etc. This keeps you from being a trespassor.

Front 155

++++How does one object to discovery?

Back 155

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

Front 156

+What are the time limits for supplementing discovery?

Back 156

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

Front 157

Is it a ground for objection that the evidence will be inadmissible at trial?

Back 157

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

Front 158

What itemse are discoverable?

Back 158

Anything that is relevant and not privileged.

Front 159

+What can a MOTION TO QUASH be used for?

Back 159

-to object that the time or place for a deposition is unreasonable
-to object to a request to produce a tangible item
-to object to a defect in service of process

Front 160

Production of a document authenticates a document for use against a producing party except...

Back 160

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

Front 161

+What can a MOTION FOR A PROTECTIVE ORDER be used for?

Back 161

-to object to a deposition
-to object to a request to produce a tangible item
-to protect a trade secret (e.g. by ordering that parties do not disclose answers given in a deposition)

Front 162

What documents or tangible things must be produced upon request?

Back 162

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

Front 163

+Give examples of when it would be appropriate to seek a WRIT OF MANDAMUS.

*Study this more.

Back 163

-If a court orders answers that a party believes privilege
-If a court orders the D to produce something you believe is a trade secret and you want to prevent it from being publically disclosed

Front 164

If a court orders answers that a party believes privilege, what should the party do?

Back 164

Seek a writ of mandamus

Front 165

What may a court do if a party fails to produce evidence under the party's control and that is reasonably available to it?

Back 165

A court may instruct a jury to infer that the evidence is unfavorable to the non-producing party.

Front 166

+When may a motion to compel a medical exam of another party be filed?

Back 166

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

Front 167

If attempts to resolve a discovery dispute fail, what may be filed?

Back 167

A Motion to Compel. Sanctions may also be requested

Front 168

+What types of discovery may be used against a non-party?

Back 168

only oral depositions, depositions on written questions, requests for production and requests to enter property

Front 169

The identity, impressions and opinions of a _____ are not discoverable.

Back 169

purely consulting expert witness

Front 170

What are the time limits for supplementing discovery?

Back 170

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

Front 171

How can you get a medical exam of a plaintiff?

Back 171

A motion to compel a MEDICAL EXAM of the P by a qualified physician. This requires a showing GOOD CAUSE for the exam & that the P's physical condition is in CONTROVERSY. The motion must be filed at least 30 DAYS BEFORE THE END OF THE DISCOVERY PERIOD and must be SERVED ON ALL PARTIES.

Front 172

SETTLEMENTS AND MEDIATION

Back 172

SETTLEMENTS AND MEDIATION

Front 173

The trial court has _____ to control the manner in which opening statements are conducted.

Back 173

broad discretion

Front 174

If a settlement offer is made and rejected, and the judgment is significantly less favorable, what happens?

Back 174

The offering party recovers litigation costs from the rejecting party.

Front 175

Are statements made in mediation admissible in court?

Back 175

No.

Front 176

What does "significantly less favorable" mean in context of comparing settlement offers and judgments?

Back 176

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

Front 177

May a mediator be compelled to disclose information?

Back 177

No unless the parties otherwise agree.

Front 178

What are the limits on litigation costs for rejected settlement offers?

Back 178

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 179

+What must be done for a Rule 11 agreement to be a valid settlement?

Back 179

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

Front 180

When mediation is ordered, when may a court impose sanctions?

Back 180

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

Front 181

May a court compel payment of an appointed mediator?

Back 181

Yes, as a court cost.

Front 182

When is the only effective time that all parties must consent to a settlement agreement?

Back 182

Must consent at time when judgment is rendered.

Front 183

JOINDER, SEVERANCE, ETC.

Back 183

JOINDER

Front 184

+When may the plaintiff use permissive joinder of claims?

Back 184

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

Front 185

+When may the defendant use permissive joinder of claims?

Back 185

When setting forth counterclaims

Front 186

+++++When is severance proper?

Back 186

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 187

When is a bifurcated trial ordered?

Back 187

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 188

+What are the requirements for permissive joinder of parties?

Back 188

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 189

What may the defendant do when he believes a third party is at fault?

Back 189

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

Front 190

++++What is the procedure for a third party claim?

Back 190

File within 30 days after serving original answer, or obtain leave of court:
1. State the claim, the basis, and the relationship to the primary claim.
2. Give notice to all parties.

Front 191

What should a defendant do if they believe a third party is responsible for the P's injuries?

Back 191

D should have a third party petition timely served on the third party at any time after the commencement of the original action.

A D does not need leave of court to file this petition if it files it NO LATER THAN 30 DAYS after it serves its original answer. Otherwise it must obtain leave on motion and give notice to all parties.