Term
| what are the four things that an original petition must state? |
|
Definition
1) the names of the parties and their residences
2) a short statement of the cause of action (sufficient to give "fair notice")
3) that the amount in controversy is within the jurisdictional limits
4) prayer for relief, including anything demanded in addition to $ |
|
|
Term
| If a plaintiff files a petition that only states that they are seeking an amount within the jurisdictional limits, how can the defendant learn more specifically, the amount of damages sought? |
|
Definition
| File a special exception, seeking a specification of damages, asking the court to require the plaintiff to amend to specify the maximum amount claimed |
|
|
Term
| what is the effect of an amended pleading and when must it be filed? |
|
Definition
| An amended petition supercedes the prior pleading- therefore it must be complete in itself. It must be filed more than 7 days prior to trial- otherwise the party must seek permission (leave) from the court. |
|
|
Term
| when should a court deny a leave to amend? |
|
Definition
leave to amend should be denied if it would
1) add a new cause of action, OR
2) would cause surprise or hardship to the defendant |
|
|
Term
| If a plaintiff offers evidence of an injury not mentioned in an original or amended petition, and the defendant fails to object at trial, but objects to the jury charge, what should the plaintiff do to keep the new claim alive? |
|
Definition
1) Seek leave to file a TRIAL amendment, which should be granted, unless the defendant can show surprise or prejudice.
2) the court should allow the trial amendment because the defendant failed to object, and therefore impliedly consented. |
|
|
Term
| what should be included in a "suit on account"? |
|
Definition
file a verified pleading, including
1) an itemized statement of the goods or services sold
2) reveal off-sets to the account
3) include an affidavit stating the claim is just and true within the affiants knowledge. |
|
|
Term
| If a plaintiff files a "suit on account" how must the defendant respond? |
|
Definition
| D must file a "verified denial" -- a written denial under oath. Failure to do so prevents the D from denying the claim and waives the right to dispute the amount on the account. |
|
|
Term
| what must you plead to get a temporary injunction? |
|
Definition
1) probable right to relief
2) probable imminent, irreparable injury
3) no adequate remedy at law |
|
|
Term
| name four grounds for personal jurisdiction |
|
Definition
1) physical presence of the D in the Forum
2) D is a domiciliary of the forum
3) D consents to the jurisdiction
4) D has minimum contacts with the Forum |
|
|
Term
| what is required to achieve jurisdiction via "minimum contacts" |
|
Definition
1) non-resident has purposefully availed himself of the forum through an act or transaction.
2) the cause of action arises from or is connected with the act or transaction.
3) jurisdiction does not offend traditional notions of fair play and substantial justice |
|
|
Term
| If D cannot be found, how else might service of process be accomplished? |
|
Definition
1) P may file a motion with an affidavit stating the usual place of business or home of D and showing that service was attempted but failed, and, then court may authorize service by leaving a copy of the complaint with anyone over 16 at the location.
2) if all other means of locating D and D's residence have failed, clerk of court issues service by publication. |
|
|
Term
| how do you serve process on a corporation (4 ways) |
|
Definition
1) serve the registered agent
2) serve the president of the corp.
3) serve any vice-president of the corp.
4) if no registered agent appointed for the forum, serve the secretary of state (who then notifies D by registered mail). |
|
|
Term
| How do you take advantage of the long-arm statute? |
|
Definition
petition must allege that D:
1) is non-resident of Texas
2) has no regular place of business or person in charge in TX
3) has no registered agent for service of Process
4) has been doing business in Texas (for example, by entering into a contract with a resident of Texas to be performed in TX). |
|
|
Term
| Does filing the petition toll the statute of limitations? |
|
Definition
| Yes, but only if P exercises actual dilligence in serving P. Failure to do so may result in enforcement of SOL |
|
|
Term
| When is the D's answer due? |
|
Definition
| 10am on the first Monday following 20 days from the date D was served with process. (both corporate and individuals) |
|
|
Term
|
Definition
| a plea which defeats a cause of action without a determination on the merits- i.e. special appearance, motion to transfer venue, plea in abatement |
|
|
Term
| what is the due order of pleading |
|
Definition
1) special appearance (challenging personal jurisdiction)
2) motion to transfer venue
3) all other pleadings |
|
|
Term
| what is the difference between federal and Texas regarding objections to personal jurisdiction |
|
Definition
| if raised, in Texas, the D has the burden to negate PJ, in Fed, the P has the burden to prove PJ of the D if non-resident D challenges. |
|
|
Term
| What should a "special appearance" say and what will the court consider when making its decision? |
|
Definition
1) D is not amenable to service of process, in a VERIFIED pleading
2) court may consider discovery, affidavits and oral testimony as evidence in deciding jurisdiction |
|
|
Term
| what does D do if court denies special appearance? |
|
Definition
| file an interlocutory appeal |
|
|
Term
| what are 4 proper venues/counties in which a lawsuit may be brought under the general rule? |
|
Definition
1) where the act or omission occurred
2) county of residence (of person)
3) county of principal office of business (principal office= where decision makers work).
4) if none of the above fit, the county of the plaintiff
also: if land dispute, county where land is, if probate dispute, county where decedant lived? |
|
|
Term
| mandatory venue exceptions |
|
Definition
1) in government seat
2) in land dispute, where the property is located
3) libel, slander, invasion of privacy- county where plaintiff resided at time of libel |
|
|
Term
| permissive venue exceptions |
|
Definition
1) breach of warranty of a consumer good- county of P residence at time of cause of action
2) contract dispute- county where D is required to perform. |
|
|
Term
| how should D go about getting venue transferred? |
|
Definition
file motion to transfer venue, after special appearance, but before anything else (such as a general denial).
If there are 2 Ds, the acts of one D does not prejudice the due order of pleading of the other Ds (venue is personal to each D). |
|
|
Term
| what must D state in motion to transfer venue? |
|
Definition
1) venue is not proper where suit is filed
2) deny any venue fact in P's petition that D wishes to contest
3) name county to which transfer is sought and plead venue facts to support that venue
4) identify the section of the venue state that makes venue improper
5) request transfer to specified county |
|
|
Term
| After D files motion to transfer venue, how does P respond? |
|
Definition
1) must file response at least 30 days prior to hearing on venue
2) response should present prima facie proof of matters at issue relating to venue |
|
|
Term
| if there are multiple plaintiffs, which one must establish venue? |
|
Definition
| Each one must establish proper venue |
|
|
Term
| How does a D challenge improper service of process |
|
Definition
| motion to quash- if granted, the D will have until 10am on the first Monday after the expiration of 20 days from the date the service is quashed to file a response. |
|
|
Term
| what doe you file if there is a defect in the parties (such as capacity), or a defect in the allegation (such as pendency in another action |
|
Definition
| file a plea in abatement, supported by a verified affidavit |
|
|
Term
| what does party file to object to a pleading if it is too vague or the relief is not allowed by law? |
|
Definition
special exception
- alleging defects of form (vague, ambiguous) or substance (relating to the laws defense, etc.) |
|
|
Term
| what is filed to deny all of plaintiff's allegations? |
|
Definition
|
|
Term
| how must a defendant be extra careful if the plaintiff alleges a condition precedent? |
|
Definition
| If P alleges generally that all conditions precedent have been performed or have occurred, D must specifically deny those conditions that have not been met. Otherwise the allegations of P are taken to be true. A general denial is not enough. |
|
|
Term
| which affirmative defenses must be verified by being accompanied by an affidavit |
|
Definition
1) a usurious contract
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 |
|
|
Term
| which denials and abatements must be pleaded under oath? |
|
Definition
1) that P lacks capacity
2) denial of P's sworn account
3) that there is another suit pending in Texas between the same parties involving the same claim. |
|
|
Term
| name some common affirmative defenses? |
|
Definition
1) accord and satisfaction
2) arbitration and award
3) duress
4) fraud
5) contributory negligence
6) payment
7) release
8) statute of limitations
9) statute of frauds |
|
|
Term
| what does D do to either 1) compel arbitration or 2) tell court that arbitration has already been complete |
|
Definition
1) file a motion to compel arbitration
2) plead an affirmative defense of arbitration and award. |
|
|
Term
| Under what circumstances may a case be removed to federal court? |
|
Definition
if it could have been filed there originally only available to D
- diversity of citizenship (complete diversity + amount in controversy $75k)
- federal question |
|
|
Term
| name two limits on removing to federal court based on diversity: |
|
Definition
1) if any D is a resident of the forum state, there is no diversity (any non-diverse D defeats diversity)
2) 1-year limit: a case may not be removed to federal court (based on diversity) more than 1 year after the action begins. |
|
|
Term
| what is the procedure for removal to federal court and when must it happen? |
|
Definition
1) D files Notice of Removal,
2) including statement of why the case can be removed
3) within 30 days of being served
4) give notice to all adverse parties and file with clerk of court
5) if no answer was filed in state court, D must file its answer in federal court within either - 21 days after receipt of initial petition; OR - 7 days after filing the notice of removal (whichever is shorter) |
|
|
Term
| what right does P have after D removes to federal court? |
|
Definition
| P may file a motion to remand within 30 days if motion to remand is based on error in removal procedure. If motion to remand is based on lack of jurisdiction, it may be filed anytime before final judgment (b/c jurisdiction of court can be raised at any time). |
|
|
Term
| what is required for a compulsory counterclaim? |
|
Definition
1) arises out of the same transaction or occurrence
2) is within the jurisdiction of the court
3) not require the presence of a third party that the court has no jurisdiction over
4) not be the subject of a pending action at time of counterclaim
5) be a claim that exists at time of filing |
|
|
Term
| What is required to qualify for a permissive joinder? |
|
Definition
1) claimes are asserted jointly, severally or in the alternative
2) claims arise out of the same transaction or occurrence; AND
3) there are common questions of fact or law
- permissive joinder is when someone not in the suit joins as a party |
|
|
Term
| what does D file if D believes a third party is liable for the claim? |
|
Definition
| file a third party claim within 30 days of original answer, giving notice to all parties |
|
|
Term
|
Definition
| an action filed by a stake holder (such as an insurance company) allowing stake holder to get a judgment to determine who has priority stake in the claim to be litigated. For example, filed if there are multiple claims to a life insurance proceeds. This is not necessarily adverse, but simply a way to sort out the claims in court. |
|
|
Term
| what if D believes a third party is liable but that party is beyond the jurisdiction of the court? |
|
Definition
| motion for leave to designate a non-party as a responsible third party. The jury will consider the other persons responsibility when allocating damages. |
|
|
Term
| What is required for something to be discoverable |
|
Definition
1) calculated to lead to the discovery of admissible evidence
2) not privileged
3) relevant |
|
|
Term
| which witnesses must a party disclose in discovery request? |
|
Definition
| all witnesses that will be called for trial, except rebuttal and impeachment witnesses not reasonably anticipated (parties won't know if this is needed until trial). |
|
|
Term
| If D objects because P calls a witness not mentioned in discovery, can P keep witness? |
|
Definition
only if P shows:
1) good cause for non-disclosure
2) that witness addition will not cause other party prejudice or surprise. |
|
|
Term
| list types of discoverable items |
|
Definition
1) trial witnesses
2) documents and tangible things
3) list of experts to be called or relied upon.
4) anything that is relevant and not privileged (reasonably calculated to lead to the discovery of admissible evidence). |
|
|
Term
| what are the three classifications of experts and which are privileged? |
|
Definition
1) testifying- not privileged
2) consulting- privileged
3) reviewed consulting- no privileged |
|
|
Term
| Is a party required to provide information about a testifying expert witness? |
|
Definition
|
|
Term
| Is a party required to provide information about a consulting expert? |
|
Definition
| NO. The identity, mental impressions and opinions of a purely consulting expert are not discoverable. |
|
|
Term
| Is a party required to disclose information about a reviewed consulting expert? |
|
Definition
| yes. A reviewed consulting expert is an expert whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees. |
|
|
Term
| who pays for the time of the expert? |
|
Definition
| the party hiring the expert initially |
|
|
Term
| how much times does a party have to respond to discovery? |
|
Definition
| 30 days after service of the discovery request, except that if it was to D, before D's answer was due, 50 days. |
|
|
Term
| how does a party assert privilege discovery |
|
Definition
1) withholding statement that information has been withheld, the request that it relates to and the privilege asserted.
2) if requesting party asks for more specificity, withholding party must provide a privilege log asserting a specific privilege for each item withheld (p. 34) |
|
|
Term
| what do you do if you inadvertently disclose privileged information? |
|
Definition
| within 10 days of discovering that production was made, amend the response, identifying the material produced and the privilege asserted. The opposing party must promptly return the item and any copies. |
|
|
Term
| how does a party object to a request for discovery? |
|
Definition
| in writing, either within the response, or in a separate document, within the time for response. |
|
|
Term
| if P discovers new injury after filing petition but before trial, what to do? |
|
Definition
identify the new injury, including any additional material, supplement discovery at least 30 days before trial
- if less than 30 days before trial, party must show good cause for failing to supplement and no unfair surprise or prejudice to other side. |
|
|
Term
Discovery control plan 1:
- amount in controversy
- discovery time frame
- deposition limit
- maximum of interrogatories |
|
Definition
- amount in controversy = less than $50k
- discovery period= from date suit filed to 30 days before trial
- deposition limit= 6 hours
- interrogatories= max 25 |
|
|
Term
Discovery Control Plan - Level 2
-duration |
|
Definition
default (if other plan not pled)
duration= between suit filing and either
1) 30 days before trial date or
2) 9 months after firs oral deposition taken, or
3) due date of the first response to written discovery
(whichever is earlier) |
|
|
Term
Discovery Control Plan 2-
deposition limit
interrogatories limit |
|
Definition
limit of 50 hours of deposition PER SIDE (but doesn't apply to depositions of non-party witnesses not under party's control.
interrogatories= 25 |
|
|
Term
| Level 3 discovery control plan |
|
Definition
court starts with guidelines in levels 1 and two and modifies to fit needs of case.
Only can have level 3 if the Court orders it (via motion or the courts own initiative) |
|
|
Term
| name 5 types of discovery |
|
Definition
1) requests for disclosure
2) request for production and inspection of tangible things
3)interrogatories
4) requests for admissions
5) oral and written depositions
6) motion for physical examination |
|
|
Term
| what makes a request for disclosure special |
|
Definition
no objections may be asserted
only certain information can be obtained via a request for disclosure. |
|
|
Term
| ** name 5 types of information that can be obtained using a Request for Disclosure |
|
Definition
1) correct names of the parties
2)names, addresses of potential parties
3) names, addresses of anyone who might be a responsible third party
4) amount and method of calculating economic damages
5) names addresses and telephone number of persons having knowledge of relevant facts, along with statement of each persons connection with the case
6) any indemnity or insurance agreements
7) any witness statements
8) in personal injury case, all medical records and bills reasonably related to injuries, and authorization permitting disclosure of records
9) for any testifying expert, the contact info for the expert, the subject matter the expert will testify about, the mental impressions of the expert, the basis for the impressions and all documents provided to the expert or reviewed by the expert. |
|
|
Term
| when must a request for disclosure be responded to |
|
Definition
| 30 days, unless filed before answer due- then 50 days |
|
|
Term
| How many interrogatories can be requested? |
|
Definition
| 25 for both level 1 and level 2 (judge's discretion for level 3) |
|
|
Term
| how many hours of deposition can each side or party have? |
|
Definition
level 1: 6 hours
level 2: 50 hours per side (not including witnesses not under one party's control) |
|
|
Term
| How many requests for admission can a party serve on another party? What is the effect of an admission? |
|
Definition
there are no limits on the number of requests.
A matter admitted is conclusively admitted. |
|
|
Term
| what happens if a party doesn't respond to a request for admission within 30 days? |
|
Definition
| the request for admission is deemed admitted. |
|
|
Term
| where can a deposition of a non-party be taken? |
|
Definition
| - county where the non-party either, resides, is employed or where they were served. |
|
|
Term
| where may the deposition of a party to a suit be taken? |
|
Definition
| In the county where the deponent resides, is employed, was served, OR the county where the suit was filed, unless the county where the suit was filed is more than 150 miles from where the person resides or was served. |
|
|
Term
| How much time may a witness be deposed for in a level 1 case? Level 2? |
|
Definition
| 6 hours per witness for any case. |
|
|
Term
what are the three objections that can be made to questions and testimony in an oral deposition.
What happens if a different objection is made? |
|
Definition
Objection, leading.
Objection, form (question calls for speculation or is vague or confusing)
Objection, non-reponsive.
making any other objection is grounds for suspending the deposition |
|
|
Term
| may an attorney confer with a witness during a deposition? |
|
Definition
| no, except to identify a privilege. An attorney may instruct a witness not to answer only if doing so is necessary to preserve a privilege, to comply with a court order or to protect the witness from abusive or misleading questions. |
|
|
Term
| when can a party compel a physical examination of another party |
|
Definition
| a party can file a motion ot compel a medical exam by a qualified physician by 1) showing good cause for the exam and 2) showing that the physical condition is in controversy, 3) filing notice of hearing and motion and serving on ALL parties and the person to be examined. |
|
|
Term
| what 6 things are required to be shown for a default judgment? |
|
Definition
1) court has SMJ
2) there was proper service of process on the D
3) there is a cause of action
4) D has not filed an answer
5) the time to file an answer has expired
6) the return of the citation has been on file 10 days. |
|
|
Term
| if D does not answer in time and P does not seek a default judgment, may D file an answer? |
|
Definition
|
|
Term
| If a default judgment is granted, what must P do to get the money |
|
Definition
liquidated damages- provide instrument in writing
unliquidated damages- put on evidence of the damages. |
|
|
Term
| What can D do after a default judgment has been granted? and what is the time frame for each option? |
|
Definition
1) motion for a new trial- 30 days
2) restricted appeal to the court of appeals- 6 months
3) equitable bill of review - 4 years |
|
|
Term
| what is required for a motion for a new trial after a default judgment (4 things) |
|
Definition
1) it is less than 30 days since judgment was signed
2) failure to answer lawsuit was not intentional or the result of conscious indifference.
3) there is a meritorious defense
4) there is no delay or injury to P in granting a new trial. |
|
|
Term
| what is required for a Restricted appeal to the court of appeals |
|
Definition
1) it is within 6 months
2) D did not participate in the trial court or file any post-judgment motions
3) there is error on the face of the record |
|
|
Term
| what is required to file an equitable bill of review? |
|
Definition
1) it is less than 4 years since judgment was signed
2) a meritorious defense
3) defendant was prevented from presenting defense by fraud, accident, wrongful act of P, or official mistake
4) no negligence on the part of D
if based on complete lack of service of process, only lack of service of process needs to be shown. |
|
|
Term
| what is required for a summary judgment? |
|
Definition
| either no evidence or no genuine issue of material fact. |
|
|
Term
| If P fails to produce any evidence in discovery of an element of the case, what should D do? |
|
Definition
| file a no evidence summary judgment motion |
|
|
Term
| what can be used as summary judgment evidence? |
|
Definition
| affidavits, discovery items (if filed with clerk within 21 days of hearing). |
|
|
Term
| can you appeal a judge's ruling on a summary judgment motion via interlocutory appeal? |
|
Definition
if SMJ is granted on all issues, you can appeal because it is a final judgment.
if SMJ is denied, you cannot appeal because judgment is not final. |
|
|
Term
| how does a party create an incentive to settle? |
|
Definition
file a Declaration at least 45 days befor trial.
If settlement offer is made and rejected and judgment is significantly less favorable, the offering party recovers attorneys fees and court costs. |
|
|
Term
| how does a litigant obtain their right to a jury trial? |
|
Definition
| file a written request for jury trial, at least 30 days before date set for trial. |
|
|
Term
| what is the effect of a motion in limine? |
|
Definition
| other party must approach the court and get a final ruling on admissibility before raising an issue at trial. This prevents jury from hearing issue prior to objection. |
|
|
Term
| if a motion in limine is granted, and the issue is raised at trial anyways, can it be appealed? |
|
Definition
| only if opposing counsel objects and obtains a ruling on the record. |
|
|
Term
| what are the four causes for challenging a juror for cause? how many challenges for cause are allowed? |
|
Definition
juror is:
1) interested either directly or indirectly in the subject matter of the case
2) is a witness in the case
3) has a bias or prejudice in favor of or against a party in the case
4) is related to a party in the case.
unlimited challenges for cause are granted |
|
|
Term
| how many peremptory challenges does each side get? |
|
Definition
| generally, 6 on each side, but if there are co-parties who are antagonistic, six per party (and the other side may be granted more for fairness sake). |
|
|
Term
|
Definition
| the rule that witnesses cannot be in the courtroom or converse with other witnesses about the case |
|
|
Term
| who is exempt from The Rule? |
|
Definition
- a party
- spouse of the party
- if party is company, the designated representative
- person whose presence is essential to the presentation of the case (like an expert) |
|
|
Term
| when are the three times when a party can make a motion for a directed or instructed verdict? |
|
Definition
1) when the other party rests
2) when the opponent closes
3) when all parties close |
|
|
Term
| when might P succeed in getting a directed verdict |
|
Definition
if P has conclusively proven that evidence is so powerful that reasonable minds could not differ AND
D has failed to produce any evidence on one element of each ground of defense. |
|
|
Term
| when might D succeed in getting a directed verdict? |
|
Definition
Either
D has conclusively proven all elements of a ground of defense, OR
P has failed to produce any evidence on at least one element of each ground. |
|
|
Term
| Jury Charge: what does attn do if the jury charge is objectionable? |
|
Definition
1) object Before the charge is read to the jury
2) obtain a ruling on the record |
|
|
Term
| what are the two types of complaints to jury charge |
|
Definition
ommissions: ommission of elements in a ground of recovery or defense
Defects: when a submitted question, instruction or definition is defective. |
|
|
Term
| how many jurors must agree for a civil verdict (finding of liable or not liable) |
|
Definition
5/6 of the jury
in state district court: 10 out of 12
in state county court: 5 out of 6
in justice of peace court: 5 out of 6 |
|
|
Term
| how many jurors must agree for a finding of exemplary damages in a civil trial? |
|
Definition
| exemplary damages may only be awarded if the jury is unanimous on both liability and amount of damages. |
|
|
Term
| if one party believes that the judgment by the jury is not supported by the evidence, what do they file? |
|
Definition
| JNOV: judgment notwithstanding the verdict |
|
|
Term
| since there are no questions to be answered by a jury when there is a bench trial, how does a party find out the basis of the court's decision? |
|
Definition
| within 20 days of the signing of the verdict, party can request the judge makes findings of fact and conclusions of law. Must be filed with the court and served on all parties. |
|
|
Term
| when is a motion for a new trial required to preserve appeal? (5 things) |
|
Definition
1) a complaint of inadequacy or excessiveness of damages by jury
2) a complaint on which evidence must be heard, such as jury misconduct, newly discovered evidence, failure to set aside a judgment by default.
3) complaint of factual insufficiency to support a jury finding
4) complaint that the jury findings are against the great weight and preponderance of the evidence
5) an incurable jury argument (batson challenge) |
|
|
Term
| when must a motion for a new trial be filed |
|
Definition
| within 30 days after judgment is signed |
|
|
Term
| when may a court vacate, set aside, amend or modify it's judgment? |
|
Definition
30 days following final judgment signing.
extended to 30 days past denial of motion for new trial if new trial is moved for. |
|
|
Term
| when is a motion for a new trial deemed overruled by operation of law |
|
Definition
| 75 days. Thus 30 days after the 75 days is the latest possible date the courts plenary power will expire. |
|
|
Term
| when is the latest a court's plenary power over the case will expire? |
|
Definition
105 days after the signing of the judgment
75 days after the signing of the judgment (the day when any motion for new trial is overruled by operation of law) plus
30 days that a court's plenary power extends past when a motion for new trial is overruled. |
|
|
Term
| what are the three motions that can be filed by a D if it believes that the P has no evidence (and no evidence materializes during discovery or trial)? |
|
Definition
1) no evidence summary judgment motion
2) directed verdict (after P presents, after D presents and after P rests)
3) motion for JNOV if jury finds for P |
|
|
Term
| who can be compelled to disclose information revealed during mediation? |
|
Definition
| NOBODY. Neither party nor mediator can be compelled to disclose any confidential information disclosed given to the mediator (unless the parties agree). |
|
|
