Term
| What is needed in a pleading? |
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Definition
-Names & residences of parties
-Short statement of the cause of action (to give fair notice)
-In unliquidated damages, just that the amt. sought is within court's jurisdictional limits
-Demand for judgment for all other relief requested
-Signature by party or his attorney |
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Term
| What is an amended pleading? |
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Definition
Supersedes the original pleading - must be complete in itself. Can be made without court permission (leave) if >7 days, but if less, need to file a motion for leave when amending
-SHOULD BE DENIED IF IT ADDS A NEW CAUSE OF ACTION/WOULD CAUSE SURPRISE OR HARDSHIP TO D |
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Term
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Definition
Can only bring evidence to trial that was in the amended pleading
D must object to the evidence immediately, otherwise it can be admitted
CONTINUANCE - party can request this to preserve error to get more time after opposing an amendment |
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Term
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Definition
| P's reply to D's defense - adds to but doesn't supersede the last pleading the way that an amended pleading does |
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Term
| Special Pleadings: Suit on an Account |
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Definition
| If P wants to bring suit on an overdue account, P needs to file a VERIFIED PLEADING |
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Term
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Definition
May be relied on to establish a prima facie right of action - must contain:
-Itemized statement of the goods or services sold
-Reveal offsets (credits) to the account AND
-Be supported by an affidavit stating the claim is just and true and within affiant's knowledge
D MAY DISPUTE BY FILING A WRITTEN DENIAL UNDER OATH - IF HE DOESN'T, HE WAIVES HIS RIGHTS TO DISPUTE |
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Term
| Adequate grounds for personal jurisdiction |
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Definition
-Physical presence of D in the forum state
-D is domiciliary of the forum state
-D consents OR
-D has minimum contacts |
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Term
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Definition
Non-resident D or foreign corp must PURPOSEFULLY DO SOME ACT or consummate some transaction in TX
Cause of action must arise from or be connected with this act/transaction (specific jurisdiction) AND
Assumption of jurisdiction by TX must not offend traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE |
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Term
| In-State Service of Process |
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Definition
Personal service (in person/certified mail)
If that's unsuccessful - substitute service - file a motion stating D's residence and that service was tried but unsuccessful - court then leaves a copy with anyone >16 at that place of business
Citation by Publication: publish in local circulating paper |
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Term
| In-State Service on Corporations |
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Definition
May be effectively served on:
-Registered agent of the corp
-The president, OR
-Any VP of the corp
OR by P serving the SoS, who then has the duty to notify D by registered mail |
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Term
| Out-of-State Service of Process |
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Definition
To serve an out-of-state D for suit in TX, P must allege in his petition:
-That D is a non-resident of TX
-That D has no regular place of business or person in charge in TX
-D has no registered agent in TX, AND
-D has been doing business in TX
LONG-ARM STATUTE: P must get cert of service from SoS showing the date it received, the date it fwd'd, and the date SoS received the return receipt - filed with court clerk to support a default judgment |
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Term
| Service of Process and the Statute of Limitations |
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Definition
| Filing a petition generally tolls the SoL, but P must also exercise actual diligence in procuring both issuance & the service of citation |
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Term
| Special appearance pleading |
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Definition
D has burden to negate basis for PJ
-Should assert that D isn't amenable to service of process and deny P's allegations
-Must be verified (affidavit)
-MUST BE FILED BEFORE ANY OTHER PLEA, PLEADING OR MOTION BY D
-To help the court decide jurisdiction, can introduce discovery, affidavits and oral testimony
INTERLOCUTORY ORDER - IMMEDIATELY APPEALABLE! |
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Term
| Motion to Transfer Venue (MTV) |
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Definition
Must be filed:
-In the county where all/most of the events giving rise to the claim occurred
-If D is a person - in D's resident county at the time the cause accrued
-If D is a corp - in the county of D's principal office in TX, OR in P's permanent resident county at the time of the cause of action |
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Term
| Mandatory and permissive venue |
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Definition
MANDATORY to bring where land's located: foreclosure and partition actions
PERMISSIVE: written contract - county where D is required to perform (for breach, where P's resident county was at the time of breach)
-P must plead existence of cause of action and venue facts in the petition |
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Term
| Requirements for a Valid MTV |
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Definition
-State that venue isn't proper where suit was filed
-Deny any venue facts in P's petition that D wants to contest
-Name the county to which transfer is sought and plead supporting venue facts
-Identify the statute making it proper
-Request a transfer to the specified county
P MUST FILE A RESPONSE WITHIN 30 DAYS PRIOR TO THE HEARING ON THE MTV - should have prima facie proof of matters denied by D and P needs to deny any of D's venue facts which P wants to contest
-D HAS THE BURDEN OF PROOF
-Doesn't need to be verified
-Each party gets 45 DAYS NOTICE of a hearing on the motion |
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Term
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Definition
D challenges the procedure used to serve D
If granted, D doesn't need to be re-served - moving party is required to file an answer by 10 AM ON THE FIRST MONDAY AFTER 20 DAYS EXPIRE FROM THE DATE IT WAS QUASHED |
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Term
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Definition
Challenges P's pleadings by alleging facts that arise outside the petition and claiming those facts justify suspension/dismissal
BASED ON:
-Defect in the parties - capacity, non-joinder of a necessary party, improper party, or
-Defect in P's allegation (e.g. didn't name the full business name of D - so D must file a verified denial) |
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Term
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Definition
Objection to other side's pleading based on:
-SUBSTANCE DEFECTS - claiming cause of action, defense, element, or relief isn't allowed by law
-FORM DEFECTS - too vague or ambiguous
Object in writing, call for a hearing, get a ruling - IF SUSTAINED, party will be allowed to amend (correct) the pleadings |
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Term
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Definition
AKA pleas in bar
Must file answer BY 10AM THE FIRST MONDAY AFTER 20 DAYS FROM THE DATE D WAS SERVED |
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Term
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Definition
Special appearance (challenging PJ)
MTV (challenging P's venue choice
Special exception (challenges generality of pleadings)
General denial (deny all P's allegations) |
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Term
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Definition
When there's a condition precedent to D's duties (in an insurance policy or conditions to the duty to purchase a home), it's sufficient that P generally alleges all conditions precedent have been performed
D must SPECIFICALLY DENY these conditions if they haven't been met |
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Term
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Definition
Signing an affidavit under oath that the facts pleaded are true
Affirmative defenses that MUST be verified:
-Usurious contract
-No consideration
-Failure of consideration
-Denial of the execution of an instrument in writing
-Denial of the genuineness of an assignment |
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Term
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Definition
Independent reasons that bar P from recovering, even if P's allegations are true; include:
-Accord and satisfaction
-Arbitration and award
-Fraud
-Contributory negligence
-SoL or SoF
D HAS BURDEN OF PROOF |
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Term
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Definition
Case should've originated in fed court, has federal question or satisfies diversity of citizenship (must be complete diversity - each P must be diverse from each D and no D can live in TX), and $75,000+
FOR INDIVIDUALS: look at their domicile
FOR CORPS: look to state of incorporation and the state where they have their principal places of business |
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Term
| Removal to Federal Court - Procedure |
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Definition
-D must file a verified notice of removal in federal district court
-Must be signed under Rule 11 of FRCP
-Must contain a short statement of why the case can be removed
-Must be filed WITHIN 30 DAYS after D is served in state court
-If initial pleading ISN'T removable, notice of removal may be filed w/i 30 days after receipt by D of an amended pleading from which it may be ascertained that the case is/has become removable AND
After filing, D gives written notice to all adverse parties and files a copy of the notice w/ the clerk of state court
-When motion to remand is based on a defect in removal procedure, it must be filed WITHIN 30 DAYS after the filing of the notice of removal |
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Term
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Definition
Claim by one party against an opposing party seeking some affirmative relief;
-arises out of the same transaction/occurrence that is the subject matter of the principal action
-is within the subject matter jurisdiction
-isn't the subject of a pending action
-is a claim that the pleader has at the time of filing AND
-doesn't require the presence of 3rd parties over whom the court can't acquire jurisdiction
MUST be asserted in the pending action or is subject matter will be thereafter barred! |
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Term
| Permissive Counterclaims/Crossclaims |
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Definition
Permissive - may be brought in the same action, or D can assert in a separate suit
CROSSCLAIMS - claim by one party against a co-party (D1 vs. D2) that arise out of the same transaction/occurrence that's the original subject matter |
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Term
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Definition
Can file a 3rd party claim that says a 3rd party is liable for all or part of P's claim against D (like in a car accident) through a 3rd-party petition
-DON'T NEED COURT PERMISSION to make service if 3P files the petition no later than 30 days after serving the original answer - otherwise D must obtain leave on motion stating the claim/basis/relationship to the primary claim - D must give notice of motion to all parties |
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Term
| Designation of Responsible Third Parties |
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Definition
| If there are non-parties that D thinks are responsible for P's injuries, but are beyond the court's jurisdiction or bankrupt, D can file a motion for leave to designate them -doesn't add them, just lets jury consider their responsibility |
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Term
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Definition
Any non-privileged matter that's relevant to the subject matter of the pending action
Info that may be inadmissible at trial can still be discoverable IF it appears reasonably calculated to lead to the discovery of admissible evidence |
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Term
| Trial Witnesses, Documents and Tangible Things |
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Definition
-Names of all trial Ws are admissible
-Names of impeachment/rebuttal Ws not necessarily discoverable
-Person required to produce a doc or tangible thing that's within their possession, custody or control |
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Term
| Which experts are discoverable? |
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Definition
Testifying Ws are NOT discoverable
Consulting (those who consulted but won't testify at trial) ARE DISCOVERABLE
Reviewed consulting (expert whose mental impressions/opinions have been reviewed by a testifying expert) AREN'T DISCOVERABLE |
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Term
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Definition
| Party seeking affirmative relief must respond to the requests for disclosure AT LEAST 90 DAYS before the end of discovery - or can provide a report, which buys time to not have to make the expert available til all the experts have been designated |
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Term
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Definition
-Any material prepared/mental impressions developed in ANTICIPATION OF LITIGATION by a party or a party's rep
-Core work product of an atty includes their mental impressions and opinions and IS ABSOLUTELY PRIVILEGED
-Other work product is discoverable only when there's a substantial need for the materials and the other party is unable to get the info w/o undue hardship |
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Term
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Definition
| Person from whom discovery is sought may seek a PO within time permitted for a response to limit what can be discovered (i.e. a secret recipe) - should only be used when privilege/objection aren't appropriate |
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Term
| Responding to written discovery |
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Definition
For most requests, P and D must respond WITHIN 30 DAYS after service, EXCEPT D has 50 days if D was served before his answer to the petition is due
WITHHOLDING STATEMENT - saying it won't give that info out, restating the request, and stating the privilege
RESPONSE - party seeking discovery may request what exact info is being withheld
PRIVILEGE LOG - WITHIN 15 DAYS, must serve a response that describes what's withheld and a specific privilege for each |
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Term
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Definition
| If party accidentally gives up privileged info, they didn't waive their privilege if they amend the response WITHIN 10 DAYS after production was made - other party then has to return the material |
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Term
| Objecting to Written DIscovery |
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Definition
Must make objection in writing, either in the response or a separate document, in a timely manner - if not, objection is waived - D must state legal/factual basis for the objection and the extent to which they refuse to comply - D must have a GOOD FAITH factual/legal basis for the objection
-Other party can always request a hearing on such objections |
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Term
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Definition
| A party has a duty to supplement when the party has responded and knows it was incorrect/incomplete - must be pretty quick - no less than 30 days before trial |
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Term
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Definition
LEVEL 1: P seeks up to $50,000
-Discovery starts when suit is filed and goes til 30 days before trial
-Each party gets no more than 6 hours but can agree to expand up to 10 hours per witness
-No more than 25 interrogatories (unless asking to identify docs)
LEVEL 2: P seeks more than $50K
-Discovery is until 30 days before trial OR 9 months after date of first oral deposition or due date of 1st response to written discovery
-Up to 50 hrs deposition time
-No more than 25 interrogatories |
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Term
| Request or Motion for Entry Upon Property |
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Definition
Party can go into property to inspect, measure, survey, or photograph the property in question - must state the TIME, PLACE, MANNER, CONDITIONS and SCOPE of the inspection
-To get MEDICAL RECORDS - can get a court order upon a hearing for the production, use request for disclosure or party's authorization, or subpoena production by serving doctors a notice to produce w/i 10 DAYS before the subpoena is served |
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Term
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Definition
Written Qs to a party in the suit - answers may be used only against that party - responding party must sign the answers under oath unless based on info obtained from others
Responding party must admit/deny the request or explain why it can't be admitted/denied within 30 DAYS after service or 50 DAYS if D was served w/ the request before the time to answer the petition AND
*If request isn't timely served, it's deemed ADMITTED |
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Term
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Definition
If deponent is an org - notice must describe reasonably specifically the matters on which the exam is requested - org chooses a person to testify on their behalf
PLACE: if a non-party - in the county of their residence, where they're employed, or where they were served with a subpoena
IF PARTY: same as above, plus county where suit is filed |
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Term
| Proper objections in a deposition |
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Definition
| Leading; form; non-responsive |
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Term
| What if witness is going to die soon or be unavailable and you need to depose them ASAP? |
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Definition
PETITION FOR A DEPOSITION BEFORE SUIT - must be verified and served on all persons and allege:
-P anticipates a suit in which they may be a party;
-Subject matter of the suit;
-Names, addresses, #s of potential adverse party
PROHIBITED in healthcare liability claims |
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Term
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Definition
P can take a default judgment against D by showing:
-Court has subject matter jurisdiction
-Properly served D
-Allege cause of action
-D hasn't filed an answer and the time to do so has expired AND
-Return of citation has been on file 10 days
P MUST AFFIRMATIVELY SEEK DJ TO GET IT
-Must show evidence of unliquidated damages |
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Term
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Definition
FILED & SERVED WITHIN 21 DAYS BEFORE TIME SPECIFIED FOR THE HEARING - adverse party can file opposing affidavit within 7 days
Moving party may be entitled to a JMOL if there's
-no genuine issue of material fact (may be sought by either P or D - burden of proof is on the moving party)
-No evidence of one or more essential elements of a claim or defense
GRANTED unless non-moving party produces evidence regarding a genuine issue of material fact |
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Term
| Unavailable Witness or Incomplete Discovery |
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Definition
If a critical W won't be available to testify, P must submit an affidavit asserting:
-Testimony is material and why;
-Diligence was exercised to secure the testimony;
-Cause of the problem;
-Can't get the testimony anywhere else;
-Name & address of W and substance of their testimony;
-That the continuance isn't sought for delay but for justice |
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Term
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Definition
File in court to order opposing counsel and her Ws to not mention or ask questions about a matter without approaching the judge for a final ruling
TO PRESERVE ERROR FOR APPEAL:
-D must object at the time P makes statements, obtain a ruling by the court disallowing the evidence, and have the court instruct the jury to disregard the statement |
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Term
| Challenges for Cause - Voir Dire |
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Definition
| Unlimited challenges in any court - if juror is interested, directly or indirectly, in the subject matter, has a witness in the case, has a bias/prejudice, or is related to a party in the case |
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Term
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Definition
Striking a jury panelist for no reason or any reason - each party gets 6 of these in district court and 3 in county court
-If there are co-Ds, they share the 6 unless the co-Ds are antagonistic on any issue to be tried |
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Term
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Definition
| At the request of either party or the court, witnesses on both sides are sworn and removed from the courtroom so they can't hear other W's testimony |
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Term
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Definition
No controverted fact issues for the jury's determination
Grounds for P: P has conclusively proven evidence is so powerful that reasonable minds couldn't differ
Grounds for D: conclusively proven all elements of at least one ground of defense OR failed to produce any evidence on at least 1 element of each ground of recovery |
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Term
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Definition
On the verdict - judge accepts jury's finding
JNOV - used to challenge the legal sufficiency of the evidence to assert that it conclusively establishes a fact opposite to the jury's finding
Motion to disregard the verdict - to "knock out" one or more findings and rely on other findings to get a more favorable judgment |
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Term
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Definition
Can be based on any alleged error - will be re-tried as if the original trial had "never happened"
Prerequisite for an appeal only when:
-Complaint of inadequacy or excessive damages found by a jury
-Complaint on which evidence must be heard - jury misconduct, new evidence
-Complaint of factual insufficiency to support a jury finding
-Complaint that jury's findings are against the great weight and preponderance of evidence
MUST BE FILED WITHIN 30 DAYS AFTER THE JUDGMENT IS SIGNED |
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Term
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Definition
Court can compel payment of a mediator under the ADR statutes
All parties must agree to a mediation agreement for it to be entered with the court
CANNOT BE COMPELLED TO DISCLOSE ANY CONFIDENTIAL INFO GIVEN TO THE MEDIATOR |
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