Civil Procedure Flashcards

Question

Service of Process and Statute of Limitations

Answer 1

While filing a petition generally tolls the statute of limitation, plaintiff must also exercise actual diligence in procuring both issuance and service of citation.

Answer 2

Requirement: If service has been made by delivering process to the defendant in person the return must be endorsed on or attached to the citation. IT must state the time and manner or service and be signed by the server. IF service is by mail, the return is the same, except that the return must also have the return-receipt signed by the addressed with it. File with clerk of court Out of State Service: Proof of service under the Texas long arm statute

Answer 3

Defendant can file pre-answer pleadings known as dilatory pleas that delay or defeat an action without determining the merits of the action. Dilatory please include special appearances, motions to transfer venue and other pleadings

Answer 4

Defendant can file an answer raising matters known as pleas in bar that seek a determination on the merits of the action. These pleas include general denials, special denials, and affirmative defenses

Answer 5

The defendant can file a singled consolidated pleading raising both dilatory please and pleas in bar. Problems result when the defendant fails to follow the due order of pleading rule

Answer 6

When it must be filed: The Due Order of Pleading To challenged courts exercise of personal jurisdiction over it and at what state of case must it be asserted: Defendant should file a special appearance to challenged the courts exercise of personal jurisdiction Under the due order of pleading, a special appearance must be filed before any other plead, pleading or motion by the defendant. If a defendant fails to comply with the due order of pleading the defendant makes a general appearance, consents to jurisdiction and waives all defects in service. In contract a “plea to the courts jurisdiction” challenges the courts subject matter jurisdiction which is a nonwaivable defect

Answer 7

No, while it is true that defendant must file a special appearance before any other pleading or it is waived, making discovery subpoenaing witnesses and even appearing in person for the hearing on the special appearance may be done without waiving it

Answer 8

The burden is on the defendant to negate the basis for personal jurisdiction The pleading should assert that the defendant is not amenable to service of process and deny the plaintiffs allegations, the pleading must be verified and the forms of evidence that may be presented to the court in deciding jurisdiction are all discovery, affidavits and oral testimony The granting or denial or a special appearance is an interlockatory order that may be immediately appealed

Answer 9

Except as otherwise provided in sections dealing with mandatory exceptions or permissive exceptions, all lawsuits shall be brought: - In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred - If the defendant is a natural person, in the county of the defendants residence at the time that cause of action accrued - If the defendant is not a natural person in the county of the defendants principle office in the state or - if none of the above applies then in the county in which the plaintiff permanently resides at the time of the accrual of the cause of action Residence of the plaintiff is a proper county for venue purposes under the general rule only if no other provision of the general rule applies.

Answer 10

In suits involving multiple defendants if the plaintiff establishes proper venue against one defendant it is proper as to all defendants in all claims arising out of the same transaction or series of transactions

Answer 11

Principle office= where corporate decision makers are located within the state. The mere presence of an agency or representative such as a retail convenience store does not establish a principal office

Answer 12

12 exceptions (ex: actions involving land must be brought where land is located, specific performance not covered)

Answer 13

6 Exceptions - Breach of warranty by a manufacturer of a consumer good provides that suit is proper in the county of the plaintiffs residence at the time the cause of action accrued - A permissive venue exception for suit on a written contract allows suit to be brought in the county in which the defendant is required to perform

Answer 14

Motion to transfer venue Step 1: Plaintiffs Venue Pleading -What must plaintiff plead in the petition to demonstrate proper venue? In the petition the plaintiff must plead the existence of a cause of action and should plead venue facts (ex: defendant failed to perform his contractual duty obligation in hill county) That if true are sufficient to maintain the suit in the county where it is filed Step 2: Defendant Motion to Transfer Venue (due order of pleading) If defendant wishes to challenge venue- Motion to transfer venue must be filed before any other pleading or plea other than a special appearance. The motion has been waived if it violates the due order of pleading (court will deny if out of order) -What if there are two defendants and one already filed an answer is it to late for the other to file a motion to transfer venue No, in a suit in which two or more defendant are joined any act or omission by one defendant in relation to venue, including waiver, does not operate to impair or diminish the right of any other defendant to properly challenge venue. - What it must assert: State that venue is not proper where suit is filed, deny any venue facts in plaintiffs petition which defendant wishes to contest, name the county to which transfer is sough and plead venue facts that support the county of requested transfer as proper, identify the section of the venue statute making the requested county proper and request a transfer to the specified county Step 3: Plaintiffs reply to Defendants Motion To Transfer Venue What must Plaintiff file and when will it be due? Plaintiff must file a response at least 30 days prior to the hearing on the motion to transfer venue. Response should present prima facie proof (affidavits and discovery materials) or matters specifically denied by defendant and specifically deny any of the defendants pleaded venue facts which plaintiff wishes to contest

Answer 15

- Burden: defendant will have the burden of proof - Verified: the motion to transfer venue does not need to be verified - Notice: except on leave of court, each party is entitled to 45 days notice of a hearing on the motion - Decision maker: All venue challenges are decided by the court without aid of jury

Answer 16

No interlocutory appeal is allowed and a party must appeal the venue decision after a final judgment. The trial courts decision will prevail unless the appellate court finds reversible error Appeal with Multiple Plaintiffs: Where there are multiple plaintiffs in as suit, each plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial courts determination that a plaintiff did or did not independently establish proper venue

Answer 17

Asks if there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial (motion to transfer asks if trial court is proper venue)

Answer 18

Availability: In a motion to quash the defendant does not challenge the courts power over the defendant. Instead the defendant challenges the procedure used to serve the defendant. A defendant may challenge defective jurisdictional allegations in the petition or defects in service or process or in the citation with a motion to quash Ex: Served the wrong person thinking it was the right person Utility: If motion to quash granted, required to reissue citation? No if the motion to quash is granted the defendant does not need to be re-served. The moving party is required to file an answer by 10am on the first Monday after the expiration of 20 days from the date that the service or citation is quashed

Answer 19

Plea challenges the plaintiffs pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. Plea in abatement is based on either: - A defect in the parties (ex Capacity, nonjoinder of necessary party, improper party) - A defect in the petitions allegation (eg pendency of another action involving the same parties or pendency or an administrative proceeding involving the same claim) The plea identifies the impediments, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect Ex: Sue a store under the name “Eds Store” But it’s actually “Eds Store Inc” and eds wants to assert corporate capacity. - File a verified denial because it is not liable in the capacity in which it has been sued. Then alleged the same matters in a verified plea in abatement which raises the capacity issue and asks the court to take action on the alleged defects

Answer 20

An objection to plaintiffs or defendants pleading is made by special exception. May be based on: - Defects of substance related to the cause of action, defense an elements of damage or relief which is not allowed by law or - Defects of form typically related to vagueness, ambiguity and the like A party specially excepting must object in writing call for a hearing and get a ruling on the exception on the record otherwise it is waived If the exception is sustained, the ruling will allow the party to amend the pleadings to correct the defect, if possible. IF the party elects to not amend the pleading the opposing party can file a motion to dismiss or strike asking the court to dismiss or strike the defective allegation which the party refused to amend despite being given the opportunity to do so

Answer 21

Time to Respond: Defendant must file an answer by 10am on the first Monday after the expiration of 20 days from the date the defendant was served with process. Applies to corporate as well as individuals

Answer 22

Availability- Defendant may generally deny all of the plaintiffs allegations. Need only state” defendant denies each and every allegation in plaintiffs original petition” Effect- Puts in issue all matters not required to be denied under oath or specially denied

Answer 23

The special appearance must be first, motion to transfer venue second and then any other motions, failure to follow this order of pleading waives the pleading that is out of order. Defendant may file a consolidated response without waiving the special appearance or motion to transfer venue - Special Appearance should be filed to challenged the courts exercise of personal jurisdiction - A motion to transfer venue should be filed to challenge plaintiffs choice of county for filing - A special exception should be filed to challenge the generality of the pleadings - A generality denial should be filed to deny all plaintiffs allegations

Answer 24

When there is a condition precedent to the defendants duties (ex: conditions in an insurance policy or conditions to the duty to purchase a home) it is sufficient if the plaintiff generally alleges that all conditions precedent have been performed or have occurred In order to challenge the plaintiffs allegation, defendant must specifically deny those conditions that the defendant maintains have not been met. Unless the defendant specifically denies the conditions precedent, the plaintiff need not prove the matters as her allegations are taken as true

Answer 25

How: Verification consists of signing an affidavit under oath to the effect that the factual matters pleaded are true. The affidavit should be made by the party. Affirmative Defenses: Five affirmative defense that must be verified - A contract is usurious, no consideration, failure of consideration, denial of the execution of an instrument in writing, denial of the genuineness of an assignment

Answer 26

- That the plaintiff lacks legal capacity to sue or defendant lacks legal capacity to be sued - A denial of plaintiffs properly field sworn account action and - That there is another suit pending in Texas between the same parties involving the same claim

Answer 27

Confession and Avoidance: An affirmative defense is any matter that provides an independent reason that if proved by the defendant will totally or partially bar the plaintiff form recovering even if the plaintiffs allegations are true. Affirmative defenses are distinct from denials which directly negate and contest the allegations made by the plaintiff Texas rule of Civ Pro 94 lists many of the more common affirmative defenses, including accord and satisfaction, arbitration and award, duress, fraud, contributory negligence, payment, release, statute of limitations, and the statute of frauds

Answer 28

Affirmative Defenses must be pleaded by the defendant as a ground of defense. Defendant has the burden of proof on these matters and if pleaded and evidence is produced defendant is entitled to have affirmative defenses submitted as questions to the jury The failure to plead an affirmative defense waives that defense. However an affirmative defense will be tried by consent if the opposing party fails to timely object to evidence introduced to support the defense

Answer 29

Ex: Contract contains arbitration clause but a party sues, can you file an answer using arbitration clause as affirmative defense? No, Arbitration and award is an affirmative defense but the contractual arbitrary clause by itself provides a basis for filing a motion to compel arbitration

Answer 30

Generally: Standard for removal: a case may be removed to federal court if the case could have been originally filed in federal court (eg the case presents a federal question or satisfies diversity of citizenship requirements Removal is available only to the defendant and if there are multiple defendants all defendants must join in the removal

Answer 31

- For individuals citizenship is defined in terms of domicile. - Aliens= national citizenship - A corporation has dual citizenship because it is deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business. Both citizenships count for purposes of determining diversity of citizenship. A corporations principal place of business is identified by determining the corporations nerve center (corporate decision makers)

Answer 32

Two limits based on diversity of citizenship - Even if complete diversity of citizenship exists, no defendant may be a resident of the forum state and be removed to federal court - A case may not be removed on the basis of diversity of citizenship jurisdiction more than 1 year after the commencement of the action

Answer 33

- Defendant must file a verified notice of removal in the federal district court - The notice must be signed under Rule 11 of Fed Rules of Civ Pro - Notice shall contain a short statement of why the case can be removed - A notice of removal must be filed within 30 days after the defendant is served in state court - If the case stated by the initial pleading in state court is not removable a notice or removal may be filed within 20 days after receipt by the defendant of an amended pleading or other paper from which it may first be ascertained that the case is one which is or has become removable and - After filing the notice, the defendant must give written notice to all adverse parties and file a copy of the notice with the clerk of the state court

Answer 34

If the defendant did not file an answer in state court before filing its notice of removal in federal court, the defendant must file its answer in federal court - Within 21 days after receipt of the initial state court pleading or - Within 7 days after filing the notice of removal whichever period is longer The plaintiff may challenge the defendants removal by filing a motion to remand the case to state court. The plaintiff may allege that remand is proper because: - The case could no have been originally brought in federal court (eg no federal question and no diversity of citizenship) or - that there has been a defect in removal procedure When the motion to remand is based on a defect in removal procedure, it must be filed within 30 days after the filing of the notice or removal. If the challenge is lack of jurisdiction, it may be asserted at any time before final judgment

Answer 35

A counter claim is a claim by one party against an opposing party seeking some affirmative relief

Answer 36

in order for counterclaim to be compulsory it must : - Arise out of the same transaction or occurrence that is the subject matter of the principal action - Be within the subject matter of the court - Not be the subject of a pending action at the time the counterclaim is filed - Be a claim that the pleader has at the time of filing and - Not required the presence of third parties over whom the court cannot acquire jurisdiction If a counterclaim qualifies as a compulsory counterclaim it must be asserted against the plaintiff in the pending action or its subject matter will thereafter be barred

Answer 37

: may be brought in the same action or the defendant has the option of asserting the permissive counterclaim in a separate suit filed against the plaintiff

Answer 38

Claim by one party against co-party. Must arise out of the transaction or occurrence that is the subject matter of the original action. The general rule is that cross claims are permissive

Answer 39

Ex: Car accidence you are sued and you want to bring other driver in File a third party practice. The defendant who asserts a third party claim is known as a third party plaintiff and the document is known as a third party petition. The third party plaintiff must have citation and the third party petition served on the third party defendant The third party plaintiff need not obtain leave to make the service if he files the third party petition not later than 30 days after he serves his original answer. Otherwise the defendant must obtain leave on motion stating the claim, the basis and the relationship to the primary claim. The defendant must give notice of the motion to all parties

Answer 40

EX defendant believes there are several nonparties who are responsible for injuries but one is bankrupt so outside of courts jurisdictionHow should D address problem? - File a motion for leave to designate the nonparties as responsible third parties. The motion must be filed on or before the 60th day before the trial date except for good cause. The defendant must plea sufficient facts to raise a genuine issued regarding the designated persons responsibility for the harm - Responsible third parties include any person who is alleged to have cause or contributed to causing the harm for which recovery is sought. The term includes a bankrupt, a criminal, a person beyond the courts jurisdiction, and an employer with workers compensation immunity Impact of Designation: What impact will the designation of responsible third parties have on the case? Under proportionate responsibility the fact finder determines the degree of responsibly for various persons. A person designated as a responsible third party is a person whose conduct is considered by the jury when allocating fault for the plaintiffs injuries Ex: suppose defendant wants to actual join the nonparties as third party defendants, Does the designation procedure replace third party practice? No. The designation procedure does not affect third party practice nor any substantive rights to indemnity granted by contract, statute or the common law. But the joinder might be futile because the party joined is beyond the courts jurisdiction or is bankruptcy. The designation procedure allows the jury to consider the fault of such a party without the necessity of joining the party

Answer 41

- A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action - It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonable calculated to lead to the discovery of admissible evidence

Answer 42

The names of trial witnesses are within the scope of discovery and must be disclosed. But the names of impeachment or rebuttal witnesses the necessity of whose testimony cannot reasonable be anticipated before trial need not be disclosed What if Defendant calls witness whose identity was not disclosed in response to discovery and P objects, What must D show to overcome P’s objection? - Defendant will have to show good cause for non-disclosure or that the opposing party will suffer no prejudice or surprise

Answer 43

A party may obtain discovery of documents and tangible things that constitute or contain matters relevant to the subject matter of the action A person is required to produce a document or tangible thing that is within the person possession, custody or control

Answer 44

Classification of Experts: Testifying: those who may testify as an expert witness at trial Consulting: those who have been consulted, retained or specially employed in anticipation of litigation or for trial but who will not testify Reviewed Consulting: A consulting expert whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees with the opinions of the consulting expert Discoverable Experts: The identity, mental impressions and opinions of a purely consulting expert are not discoverable A party may discover information concerning a testifying or a reviewed consulting expert witness Designation of Experts With respect to testifying and reviewed consulting experts parties may be required to designate experts and provide information through request for disclosure - A party seeking affirmative relief must respond to the request for disclosure at least 90 days before the end of the discovery period - Other parties must identify experts at least 60 days before the end of the discovery period

Answer 45

Work product includes any material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a parties representative Protection Provided- Privilege. Core work produce of an attorney is privileged and includes the attorneys mental impressions, opinions, or conclusions and is absolutely privileged Other work product is discoverable only upon a showing that the party seeking discovery has a substantial need of the materials for preparation of the party’s case and that the party is unable, without undue hardship to obtain the substantial equivalent

Answer 46

Ex: want to keep family recipe secret but someone wants list of ingredients A person from whom discovery is sought may seek a protective order within the time permitted for a response. The court may make any order limiting discovery in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance A person should neo move for protection when an assertion of privilege or an objection is appropriate

Answer 47

A party must respond to written discovery within the time provided by court order or the rules. When responding a party must make a complete response including answers, objections, and other matters For most discovery devices including a request for disclosure, request for production or inspection, interrogatories, and request for admissions, a plaintiff must respond within 30 days after service. The defendant also has 30 days after service to respond except that a defendant has 50 days from service if the defendant was served before his answer to the petition is due

Answer 48

Asserting Privilege: Ex: defendant believes that many answers to interrogatories are covered by privilege. What procedure must be followed to properly assert claim of privilege as a basis for refusing to answer some of the interrogatories? What procedure must the plaintiff follow to obtain answers to the interrogatories? Step 1: Withholding Statement The party asserting privilege must state in a response or in a separate document within the time for the response to the request that: - Information or material responsive to the request has been withheld; the request to which the materials relate and the privilege asserts Step 2: Response After receiving a withholding statement the party seeking discovery may request that the withholding party identify the information withheld Step 3: Privilege Log - Within 15 days the withholding party must serve a response that describes the information or materials withheld (a privilege log) and asserts a specific privilege for each item or group of items withheld - At the hearing on a motion to compel the withholding party must establish a prima facie case for privilege by testimony or by affidavit. The withholding party must do so without revealing privileged information and may tender representative documents with the testimony or affidavit

Answer 49

When you produce documents some of which are privileged and you did not intend to waive that privilege. Have you waive privilege? Probably not, the producing party does not waive the privilege if within 10 days of discovering that such production was made the party amends the response identifying the material produced and states the privilege asserted After the disclosing party makes such an amendment the requesting party must promptly return the specified material and any copies thereof

Answer 50

Believe that some but not all of request are objectionable because the seek material outside of scope. How should you preserve objections? - Must make an objection to written discovery in writing. Either in the response or in a separate document within the time for the response - An objection that is not made within the time for response is waived - The defendant must state the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request - The defendant must have a good faith factual and legal basis for the objection

Answer 51

Any party may request a hearing on an objection or claim of privilege. The party making the objection or asserting the privilege has the burden to prove the validity of the objection or privilege claimed. Alternatively, a party may move to compel discovery after attempting to resolve a discovery dispute The party seeking discovery may seek an order to compel and/or sanctions

Answer 52

A party has a duty to supplement written discovery when the party has responded and knows that the response was incorrect or incomplete when made or although correct and complete when made is no longer correct and complete. Ex: new injury Plaintiff should supplement her prior discovery responses: - Identifying the newly diagnosed injury and including the expert expected to testify about the newly discovered injury - Supplement the discovery responses reasonable promptly but not less than 30 days before trial and - IF discovery responses are supplemented less that 30 days before trial they are presumed not reasonably prompt (and wont be admissible unless plaintiff can show good cause for failure to timely supplement or not unfair surprise or hardship to defendant)

Answer 53

Plaintiffs original pleading should state “Plaintiff intends that his suit be covered by Level _, Discovery Control plan, pursuant to Rule 190.2/3/4, Texas Rules of Civ Pro - The failure to so plead is subject to a special exception and the case automatically defaults to level 2 discovery plan

Answer 54

Expedited Actions and Divorces involving $50,000 or less 1) The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. 2) Each party may have no more than six hours of deposition time, but can agree to expand the limit to 10 hours per party. 3) Each party may serve on the other party no more than 15 interrogatories, except interrogatories that seek to identify or authenticate specific documents are unlimited. 4) A party may serve no more than 15 requests for production and 15 requests for admission on any other party. Each discrete subpart of a request for production or admission is considered a separate request. 5) A party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Such a request for disclosure is not counted against the 15 permitted requests for production.

Answer 55

1) The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. 2) Each party may have no more than six hours of deposition time, but can agree to expand the limit to 10 hours per party. 3) Each party may serve on the other party no more than 15 interrogatories, except interrogatories that seek to identify or authenticate specific documents are unlimited. 4) A party may serve no more than 15 requests for production and 15 requests for admission on any other party. Each discrete subpart of a request for production or admission is considered a separate request. 5) A party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Such a request for disclosure is not counted against the 15 permitted requests for production.

Answer 56

Purpose: The Expedited Actions process is meant to more quickly resolve relatively small disputes. The process is mandatory for any dispute in which all claimants (other than counter-claimants) seek only monetary relief not greater than $100,000.

Answer 57

Limited Recovery: In no event may a party who prosecutes a suit under this rule recover a judgment in excess of $100,000, excluding post-judgment interest.

Answer 58

Trial Procedures: (i) on any party’s request, the court must set the trial date within 90 days after the discovery period ends (180 days from the service of the first discovery request); and ii) each side is allowed only five hours to complete jury selection, opening statement, all examinations, and closing arguments (time spent on objections, bench conferences, and challenges for cause during jury selection do not count against the five hours).

Answer 59

Case that exceeds the requirements for Level 1 and in which there is no order ordering a level 3 plan. Also appropriate if the plaintiff fails to plead a discovery level. Limits: - Duration: the discovery period begins when suit is filed and continues until the earlier of 3 0days before the date set for trial or 9 months after the date of the first oral deposition or due date of the first response to written discovery - Depositions: Each side may have no more than 50 hours of deposition time to examine and cross-examine parties on the opposing side, experts designated by those parties and persons subject to their control. Side refers to all litigants with generally common interest in the litigation. If one side designates more than two experts the opposing side may have an addition six hours per additional expert designated. The fifty hour limit does not apply to depositions of non-party fact witnesses who are not under a parties control. - Interrogatories: Each party may serve on the other party no more than 25 interrogatories, excluding interrogatories asking a party to identity or authenticate specific documents

Answer 60

Ex: deposition entering 60th hour, what objection or instruction to end it? If the time limitations for the deposition have expired a party or a witness may suspend the oral deposition

Answer 61

Applies only when a court orders pursuant to a party’s motion or on its own initiative a discovery control plan that is tailored to the circumstances of the specific suit Limits: Court will start with the guidelines and limiations contained in Level 1 and 2. May be modified by court order

Answer 62

Permissible forms of discovery include: Request for disclosure, requests for production and inspection, interrogatories to a party, requests for admission, oral and written depositions and motions for physical examinations

Answer 63

Request: A party may request disclosure of the information and material listed below by serving a request for disclosure on another party to the suit No objection or assertion of work product is permitted to a request under this rule Content of Request: Name types of information that may be obtained using a request for disclosure and the date by which the receiving party must respond. Identifies a specific type of information and has either asked how the information may be obtained or has sought the information using an incorrect discovery device (ex: interrogatory rather than a request for disclosure)

Answer 64

- The amount and method of calculating economic damages - Any insurance or indemnity agreements - In cases seeking damages personal injuries, all medical records and bills that are reasonable related to the injuries or in lie thereof an authorization permitting the disclosure of such medical records and bills. Cases have held that the party requesting disclosure has the option of seeking an authorization rather than the medical records and that the requesting parts preference controls - The correct names of the parties - The names, addresses and telephone numbers of potential parties - The names, addresses and telephone number of any person who may be designated as a responsible third party - The name address and telephone number of persons having knowledge of relevant facts and a brief statement of each identified persons connection with the case - Any witness statements - For any testifying expert, the experts name, address and the telephone number, the subject matter one which the expert will testify, the general substance of the experts mental impressions and opinions and a brief summary of the basis for them and all documents and other information that have been provided to, reviewed by or prepared

Answer 65

Plaintiff must respond with 30 days after service or the request for disclosure. Defendant has 30 days to respond after service except defendant has 50 days from service of the requests for disclosure if the defendant was served with the requests before his answer to the petition is due

Answer 66

Request: A party must serve a request for production or for inspection to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery If the request is served on a nonparty production of documents and things may be requested only by obtaining a court order or by serving a subpoena compelling the specific form of discovery requested by the party Medical records may be obtained in several ways. First the party seeking the records could obtain a court order upon a hearing for the production of records. Second the party could use a request for disclosure to obtain the records or the party’s authorization. Finally the party may subpoena production of the records by serving the physicians and parties with a notice to produce 10 days before the subpoena is served. The subpoena is often used in connection with a deposition on written questions.

Answer 67

Production of a document operates to authenticate the document produced for use against the producing party. This rule of self-authenticated applies unless within 10 days after the producing party has actual notice the document will be used, the producing party objects to the authenticity

Answer 68

Any testing of an item may not destroy or materially alter the item unless previously authorized by the court. You can file a request for production to test the item

Answer 69

Ex: Want to view the location but defendant is objecting. Plaintiff should file a request or motion for entry upon property. Allows a party to gain entry upon property to inspect, measure, survey, photograph, or sample the property in question. The request must state the time, place, manner, conditions, and scope of the inspection

Answer 70

Written questions to a party in the suit and the answers may be used only against that party

Answer 71

Responding party must sign the answers under oath unless the answers are based on information obtained from other persons The response consists of answers, objections, or the assertion of a privilege

Answer 72

A party may serve on another written requests that the other party admit the truth of any matter within the scope of discovery Limits: There are no limits on he number of request Response: Unless a responding party stats an objection or asserts a privilege - The responding party must specifically admit or deny the request or explain in detail the reasons that the request cannot be admitted or denied - The response is due within 30 days after service or 50 days if a defendant was serve with the request before the time to answer the petition and - Importantly, if a response is not timely served the request is deemed admitted Effect of admissions: A matter admitted is conclusively admitted as to the party making the admission without the need of a court order. Upon motion, the court may allow withdrawals of an admission if the party shows good cause and the court finds that the parties relying on the admission will not be unduly prejudiced. These rules apply to actual and deemed admissions for failure to timely answer

Answer 73

Notice of intent to take an oral deposition must be served on the deponent and parties a reasonable time before it is to be taken. The notice shall contain the named of the deponent and a reasonable time and place for the deposition

Answer 74

: IF the deponent is an organization the notice must describe with reasonable particularity the matters on which the examination is requested. In response the organization must designate one or more individuals to testify on its behalf

Answer 75

The deposition of a non-party may be taken in the county of the deponents residence, the county where the deponent is employed or regularly transacts business in person, the county where the deponent was served with a subpoena If the deponent is a party the deposition may be taking in the same locations that are proper for a non-party as well as the county in which the suit is filed Appearance is required in a county that is not more than 150 miles from where the person resides or is served A motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within 3 business days of service, the objection stays the deposition until the objection is resolved

Answer 76

If a witness is a party or employed by, retained by, or otherwise subject to control of the party, service of the notice on the parties attorney has the same effect as a subpoena IF the deponent is a nonparty witness you must issue both the notice and a subpoena IF party fails to appear: other party may file a motion for sanctions or an order compelling discovery based on parties failure to produce a witness that the properly noticed deposition. Court may order no show party to pay other party attorney fees incurred in obtaining the order as well as a broad range of other sanctions

Answer 77

The notice may include a request that the witness produce documents or things at the deposition. The notice of deposition may also use a subpoena to compel the production of documents in which case the rules concerning requests for production govern the response to the subpoena If the deponent desires to object to the request to produce tangible things the witness must file a motion to quash or a motion for a protective order within 30 days after service of the subpoena

Answer 78

No side may examine or cross-examine an individual witness for more than 6 hours. The deposition may be suspended if the time limit has expired. Separate cumulative time limitations are created by the discovery plan (ie 50 hours)

Answer 79

There are only three proper objections to questions and testimony at an oral deposition Objections are limited to: objection leading, objection form, objection nonresponsive Making other objections or suggestive objections at the deposition may be grounds for suspending the deposition in order to obtain a ruling on the contention that the objections are improper. The court may award costs and attorney fees associated with a motion for sanctions

Answer 80

An attorney may not confer with a witness during a deposition except to identify a privilege to be protected 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 protected the witness from an abusive question or one that requires a misleading response

Answer 81

Ex: know that witness is terminally ill File a petition for a depositions before suit. The petition must be verified and must be served on all persons whom the petitioner seeks to depose or expects to be adverse in any anticipated lawsuit. The petition must allege that: - The petitioner anticipates the institution of a suit in which the petitioner may be a party - The subject matter of the anticipated action, if any, and the petitioners interest therein and - The names of the persons the petitioner expects to have interest adverse to the petitioner and their addresses and telephone number and - Persuit depositions are prohibited in health care liability claims

Answer 82

When a party takes the oral deposition of the opposing partys expert witness, all reasonable fees charged by the expert must be paid by the party that hired the expert

Answer 83

A party can file a motion to compel a medical examination of another party by a qualified physician. The moving party must show good cause for the exam and that the other party’s physical condition is in controversy. The motion and notice of hearing must be filed at least 30 days before the end of the discovery period and be served on all parties and the person to be examined

Answer 84

Availability The plaintiff may take a judgment by default against a defendant by showing: - The court has subject matter jurisdiction - Jurisdiction over the defendant by proper service or process (ie situation issued , served and returned) - Allege a cause of action - Defendant has not filed an answer - The time to answer has expired and - The return of citation has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment The plaintiff must affirmatively seek the entry of a default judgment. If the plaintiff fails to affirmatively seek the entry of a default judgment the defendant may file an answer even if the answer is beyond the time provided for in the rules The defaulting defendant admits all liability issues, but plaintiff is required to put on evidence of unliquidated damages. When damages are liquidated and proved by an instrument in writing, no evidence beyond this is required

Answer 85

At or immediately before the time the default judgment is rendered, the party or his attorney must certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken Immediately after the judgment is signed the clerk must mail notice of the default judgment to the defendant

Answer 86

A motion for new trial must be filed within 30 days of the date the judgment is signed IF there is no legal reason (ie error by the trial court) to set aside the judgment the defendant must demonstrate the following equitable grounds to the trial court to obtain relief: - Failure to answer the lawsuit was not intentional or the result of conscious indifference but was due to a mistake or accident - Set up a meritorious defense and - There is no delay or injury to the plaintiffs by granting a new trial

Answer 87

A restricted appeal must be filed within 6 months of the date the judgment was signed In order to set aside the fault judgment the defendant must demonstrate that: - The defendant did not participate in the trial court below and did not file any post-judgment motion such as a motion for new trial and - There is error on the face of the record

Answer 88

An equitable bill of review must be filed within 4 years of the date the judgment is signed. It is a new lawsuit filed in the court in which the old lawsuit was filed and judgment rendered. The movant must demonstarate the following: - A meritorious defense, - Which the defendant was prevent from asserting by fraud, accident, or the wrongful act of the plaintiff of official mistake and - Unmixed with any negligence of the defendant If the bill of review is based on a total lack of service of process the defendant need only prove a lack of service because due process requires that the traditional requirements be excused

Answer 89

At any time before the plaintiff has introduced all of his evidence, other than rebuttal evidence, the plaintiff may file a motion seeking an order allowing the plaintiff to take a nonsuit A nonsuit dismisses the case without prejudice to re-file. The order granting the nonsuit should recite that the motion is granted and that the case is dismissed without prejudice to refilling. The nonsuit does not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs.

Answer 90

In some cases the evidentiary record establishes that the moving party is entitled to judgment as a matter of law. A party may move for summary judgment using one of two standards: no genuine issue of material fact or no evidence.

Answer 91

A no genuine issue of material fact summary judgment may be sought by either plaintiff or defendant - Ex: settlement File a motion for a summary judgment alleging that there are no genuine issues as to any material facts concerning the affirmative defense of release and that she as the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion Burdens: Burden of proof is on the moving party to show sufficient conclusive facts to entitle it to a judgment as a matter of law

Answer 92

After adequate time for discovery a party may move for summary judgment on the grounds that there is no evidence of one or more essential elements of a claim or defense on which the nonmoving party would have the burden of proof at trial. The motion must specifically state the elements as to which there is no evidence. Burdens: While the no evidence motion for summary judgment must state the elements as to which there is no evidence, it need not contain summary judgment evidence (ie: transcripts, affidavits). The motion is to be granted unless the non-moving party produces summary judgment evidence raising a genuine issue of material fact

Answer 93

- Except on leave of court the motion and any supporting affidavits must be filed and served at least 21 days before the time specified for the hearing - The adverse party not later than 7 days prior to the hearing may file and serve opposing affidavits or other written response to the motion - No oral testimony will be received at the hearing - Evidence is limited to affidavits and all types of discovery such as request for admissions, depositions, etc - Discovery material such as depositions not on file with the clerk may be used as summary judgment evidence if the discovery material is filed and served on all other parties with a statement of intent to used the material as summary judgment proof. If relying on a deposition the party must direct the courts attention to the relevant portion and attach it to the motion The materials must be filed and served 21 days (supporting the motion) or 7 days (opposing the motion) before the hearing Affidavits must be: - Made on personal knowledge of the affiant - Affirmatively show that the affiant would be competent to testify and - State facts that would be admissible in evidence (ie hearsay and opinion except in accordance with evidentiary rules, have no effect) Ex: defendant submits affidavit with expert saying its plaintiffs fault, how should plaintiff respond Object to the sufficiency of the affidavit in a written response to the motion. Plaintiff should secure a ruling on the objection and a written order

Answer 94

A summary judgment that disposes of all issues and parties is a final judgment which may be appealed. IF the trial court denies the motion for summary judgment, this order may not be appealed since the denial of summary judgment is a nonappealable interlockatory order. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

Answer 95

Can Plaintiffs attorney force defendant to attend mediation? Yes, The plaintiffs attorney can file a request with the court for mediation. A court may on its own motion or the motion of party refer a pending dispute for resolution by an alternative dispute resolution procedure including mediation. Court cannot order mediation in a case covered by the federal arbitration act without the agreement of all parties

Answer 96

Conduct in mediation: Court may impose sanctions for refusal to participate in a court- ordered mediation. However the court may not impose sanctions for refusing to settle nor may the court order the parties to mediate in good faith

Answer 97

Can court compel payment of a mediator appointed under ADR statutes? Yes. Court may set a reasonable fee for the services of mediator appointed to facilitate and ADR procedure. Unless the parties agree to a method of payment the court will tax the fee for the services as a cost of the suit

Answer 98

A consented judgment cannot be entered unless at the time the judgment is rendered, all parties consent to the judgment. (ex: if plaintiff withdraws consent after mediation judgment cannot be entered)

Answer 99

Neither the party nor the mediatory may be compelled to disclose to any other person including the court any confidential information given to the mediator by any party unless the parties agree otherwise