Tex Civ Pro Flashcards
(102 cards)
1
Q
District Courts
A
- General Jurisdiction - AIC = $500.01 and up - Split with appellate courts on whether it is $200 or $500
2
Q
County Courts at Law
A
AIC - $200.01 to $200,000
3
Q
Constitutional County Court
A
- County judge presides - AIC = $200.01 to $10,000
4
Q
Justice of the Peace Court
A
Less than $10,000
5
Q
Single Plaintiff, Multiple Claims
A
Aggregate to get AIC
6
Q
Aggregating Multiple Plaintiffs
A
All claims against SAME defendant are aggregated for AIC
7
Q
Aggregating with Multiple Defendants
A
Separate, independent, and district claims are not aggregated
8
Q
Pleading damages
A
Plaintiff may plead specific amount in petition, but, at a minimum, plaintiff must state amount in controversy within the jurisdictional limits If no maximum claimed, defendant files SPECIAL EXCEPTION, requiring plaintiff to specify maximum
9
Q
Plea to the Jurisdiction
A
used if amount in controversy pleaded is outside the jurisdictional limit of the court
10
Q
Grounds for Challenging Subject-matter jurisdiction
A
Judiciability, governmental immunity, or another Texas court has exclusive jurisdiction using a plea to the jurisdiction
11
Q
Intermediate Appellate Courts
A
- 14 in Texas - appellate jurisidction from district and county courts when AIC exceeds $100 - Notice of Appeal initiates
12
Q
Requirements for Notice of Appeal
A
- TC’s name and case’s TC number and style - date of judgment or order appealed from - statement that party desires to appeal - court to which appeal is taken (i.e. 7th Ct. of App.); and - Name of each party filing notice of appeal
13
Q
Suspending Enforcement of the Judgment
A
- Filing notice of appeal does NOT suspend enforcement of TC judgment MUST: - obtain written agreement with judgment creditor; - Filing with TC clerk a good and sufficient bond; - Making deposit with clerk in lieu of bond; OR - Providing alternate security as ordered by court
14
Q
General Venue Rules
A
Brought in county where: - All of substantial part of the events that gave rise to the action took place; - Defendant resided at time of event - Defendant’s principal office in state, if not a natural person; - If none, plaintiff residence at time of event
15
Q
Motion to Transfer Venue
A
Four grounds: 1. P’s choice is improper under venue rule 2. case should be transferred to another proper venue on convenience and justice grounds 3. parties consent 4. local prejudice makes it unfair for case to be heard in county of suit (this is a motion toCHANGE venue)
16
Q
Deadline for Motion to Transfer Venue
A
- Must be filed before any other pleading or motion - Can be filed prior to or concurrently with filing Answer - Objection to venue is waived if not timely filed
17
Q
Contents of Motion to Transfer Venue
A
- Deny P’s venue facts alleged in the petition; - Explain why the P’s choice of venue is improper - Allege another proper county of venue with specific facts - Request the court transfer to that county
18
Q
Plaintiff Proof Requirement for a Motion to Transfer Venue
A
- Burden on P to establish prima facie proof that venue is proper in original county - May establish through affidavits, discovery products, and other sources of information
19
Q
Hearing and Submission of Evidence for Motion to Transfer Venue
A
- Should be set for hearing by defendant - Each party entitled to 45 days notice of hearing Defendant must submit any additional reply and evidence at least 7 days before hearing
20
Q
Service of Process
A
- must have minimum contacts, long arm statute extends as far as DP allows - Need citation and petition together - sheriffs, clerks of court, and private process servers may serve by HAND, certified mail with return receipt, or other by order of court
21
Q
Procedure to Provide Defendant with Formal Notice
A
- File petition (P) - citation prepared (Clerk) - Service on D (authorized person) - return of service filed (Process server)
22
Q
Answer Deadline
A
After being served, must file answer by 10 AM on the Monday next following the expiration of 20 days after service If no answer by deadline, P may obtain default judgment by motion. Will have to prove damages in hearing if they are unliquidated
23
Q
Serving Process on a Corporation
A
- Registered agent - President - Vice President
24
Q
Special Appearance
A
Nonresident objects to personal jurisdiction by filing special appearance before anything else Must be filed BEFORE answer deadline, if not, waive personal jurisdiction Must be sworn motion Evidence could include: - Affidavits filed by parties - stipulations - pleadings - results of discovery process; AND - Oral testimony If not timely filed, personal jurisdiction is waived. Can file pleadings after special appearance, AS LONG AS documents do not acknowledge TC jurisdiction
25
Minimum Contacts Test
Non-resident defendant must prove in special appearance that: 1. No purposeful availment 2. Specific jurisdiction 3. General Jurisdiction 4. Fair Play and Substantial Justice
26
Petition
Must contain short statement of cause of action sufficient to give fair notice of the claims involved
27
Answer
Defendant makes general appearance by filing answer, may challenge: - personal jurisdiction - special appearance - Venue - motion to transfer venue - Appropriateness of forum - motion to on forum non conveniens grounds
28
Due Order of Pleading Rule
First, Special Appearance Filed Then, motion to transfer venue Then, answer
29
Pleading Damages
Must include statement as to amount of damages sought within ranges: - Only monetary relief $100,000 or less; - Non-monetary relief and monetary relief of $100,000 or less; - More than $100,000 but no more than $200,000 - More than $200,000 but no more than $1 million; - Over $1 million
30
When is a Special Denial Required?
- Legal capacity of the parties to sue or be sued - A denial that a party is incorporated or is a partnership - an absent part must be joined - executed a written instrument that is subject of the suit - Denial of the genuineness of an endorsement of a written instrument that is subject of the suit - written instrument is without consideration - denial of suit on an account
31
Affirmative Defenses
Must be plead pretrial in the answer and defendant has burden of proof. Examples: - Contributory negligence - duress - estoppel - laches - release - res judicata - Statute of Frauds - State of Limitations - Waiver
32
Counterclaims
Must be included in answer. Compulsory if: - within jurisdictional limit - not pending action - claim is mature - arose from same transaction or occurence - against opposing party in same capacity; AND - does not require presence of 3rd parties which court has no jurisdiction over
33
Cross-claims
claim against co-defendant
34
Third-party practice and designation
D may join non-party who may be liable for all or part of damages by filing 3rd-Party Petition - May also designate a person as responsible 3rd party without joining formally by filing motion for leave to designate RTP
35
Answer Deadline
Must file written answer with clerk who issued citation by the Monday next following expiration of 20 days after that date of service
36
Plea in Abatement
Defects not apparent from face of the pleadings but proven by evidence are challenged with this plea
37
Amended Pleadings
Texas allows parties to liberally amend pleadings to add new cause of action, defenses, and cure defects Matter of right - before deadline in trial court scheduling order. If none, may amend at least 7 days before trial - Trial amendments during trial allowed
38
Challenging Amended Pleadings
Motion to strike A TC should not permit pleadings if it would surprise or prejudice opposing party
39
Sanctions for Frivolous Pleadings
- Paying opposing party attorney fees and expenses - excluding evidence - striking pleadings - ordering payment of penalty - Dismissing party/case Either party or attorney may be sanction depending on fault
40
Baseless Causes of Action
Move to dismiss on grounds that there is no basis in law or fact Motion must: - made pursuant to specific baseless cause of action rule - identify each cause of action to which it applies - state specifically reasons the cause has no basis - filed within 60 days after first pleading containing challenged served on movant - court must deny or grant within 45 days after filing - must award prevailing party on motion all costs and reasonable attorney fees with respect to challenged cause of action
41
Res Judicata
Must bring all same transaction claims in initial law suit or will be barred in subsequent law suit
42
Severance
If claims improperly joined, remedy is motion for severance - controversy has more than one cause of action - severed causes must be ones would be proper subject of a suit if brought independently - severed claims not so intertwined to involve identical facts and issues
43
Motion for Separate Trials
Unfair to a party to have properly joined claims tried in same trial
44
Motion to Consolidate
Same transaction claims in separate lawsuit, TC may consolidate into one case
45
Petition in Intervention
Filing for party who wants to join ongoing suit
46
Non-suit
- P may voluntarily dismiss case at any time before introducing all evidence - absolute right to nonsuit own claims - operates as dismissal without prejudice
47
Interpleader
Several parties claim property or money, a disinterested stakeholder may file interpleader action to bring all into suit
48
Scope of Discovery
anything relevant, not privileged, even if inadmissible if appears reasonably calculated to lead to discovery of admissible evidence liberal scope
49
Forms of Discovery
- Requests for disclosure - Request for production and inspection - Interrogatories to a party - Oral or written depositions - Motions for mental or physical examinations nonparty requests - must have appropriate request and subpoena
50
Level 1 Discovery Plan
Less than $100,000 pleaded and divorces $50,000 or less Each party: - No more than 6 hours in total examining and crossing all witnesses in oral depositions - no more than 15 written interrogatories - no more than 15 written requests for production - No more than 15 written requests for admissions - may request disclosure of all documents and things
51
Level 2 Discovery
- 50 hours oral deposition - 25 written interrogatories
52
What action must a party bring in order to get the court's attention if they think a discovery request is improper?
A party can make a written objection to a discovery request. A party can also file a motion for protective order.
53
Deadline to Respond to Written Discovery Requests
Must serve written response within 30 days after service of request EXCEPTION: D served with request before D's answer is due has 50 days to respond
54
Items discoverable through Request for Disclosure
- Name of the parties of the lawsuit - Names, addresses, and telephone numbers of potential parties - Legal theories and factual bases of the opposing party's claims and defenses - Amount and method of calculating economic damages - Name, addresses, and telephone number of persons with knowledge of relevant facts and brief statement of their connection with case - Basic info of testifying expert - Any indemnity and insurance agreements - Any settlement agreements - Any witness statements - personal injury, can get medical records and bills related to injury or authorization for those records - names, address, and telephone number of responsible 3rd party
55
Requests for Admission
If not timely, deemed an admission To withdraw: - move to withdraw - show good cause - show opposing party will not be unduly burdened
56
Motion to Compel
Used when the other party fails to respond adequately to written discovery requests
57
Failure to List a Witness as Trial Witness
May not offer the witness at trial unless: - Good cause for failure - Failure to identify will not unfairly surprise or prejudice other parties
58
Oral Depositions
Service - notice of deposition for a party, notice and subpoena for a witness Notice - must be served reasonable time before taken. 10 days advanced notice, without documents, probably standard Contents - include name (if organization, designate a corp rep), Time and place of depo, alternative means for conducting, additional attendees besides witness, parties, spouses, counsel, and depo officer Location - where witness resides or employed, county of suit, county where witness was served with subpoena, any where convenient directed by court
59
Objecting to Time and Place of Depositions or No knowledge by Witness.
Motion to quash deposition or Motion for Protective Order
**_NOTE_**: The motion should be accompanied by an affidavit.
60
Work-Product Privilege
material prepared or mental impressions developed in anticipation of litigation NOT PROTECTED: - expert witnesses - trial witnesses and statements - contentions - trial exhibits - name and contact info of those with relevant info - Any photo underlying facts or that will be offered into evidence
61
Attorney-Client Privilege
Must be disclosing confidential communication for purpose of obtaining legal services
62
Snap-back provision
Party who produces shit without intending to waive, does not waive IF identify the material produced and claims the privilege within 10 days of discovery of production
63
Asserting Privilege
File a withholding statement Requesting party may then request withholder to more specifically ID info by serving a privilege log. AFTER that, requesting party should have sufficient info to challenge the claim court may hold hearing to dispute claims
64
Discovery of Expert Witnesses
Testifying Expert = Discoverable Consulting = Na bro Consulting + his work reviewed by testifying expert = discovery of consulting
65
Designating Experts
Becomes testifying expert when formally designated, usually toward end of discovery Seeking affirmative relief = must designate at least 90 days before end of discovery All others = 60 days before end of discover
66
Challenging Expert Witnesses
- Dauber Robinson Motion to Exclude expert testimony. Grounds: - lacks qualifications - not reliable because it is based on flawed reasoning or invalid methodology - irrelevant Reliability, court will consider: - extent to which theory can be tested - rate of error - theory has been or could be subjected to peer review or publication - generally accepted as valid in the scientific community - extent it relies on subjective interp - non-judicial uses of the theory
67
Jury Demand
At least 30 days before date trial is set, must: - make written request (jury demand) - pay jury fee If untimely: opposing party may file motion to strike demand Untimely demand may not be permitted if too much of inconvenience on court docket
68
Setting trial date
- motion by party - court initiative - agreement by parties - each party entitled to at least 45 days notice
69
Motion for continuance
Motion to reset trial date. Grounds: - conflicting trial in another court on same date - attorney recently withdrew - material witness unavailable - validly subpoenaed material witness failed to appear - party or attorney is serving as Texas legislator at time of trial (like in session) Procedural requirements - in writing - supported by affidavit - sufficient cause - notice to other side If witness is unavailable: - must be material testimony - prove due diligence to procure testimony - what witness expected to prove - continuance not for delay but justice
70
Traditional Summary Judgment
Movant must conclusively establish there is no genuine issue of material fact and she is entitled to judgment as a matter of law Movant produces evidence
71
No Evidence Summary Judgment
Movant alleges there is "no evidence" of one or more essential elements of a claim or defense on which the other party has the burden of proof at trial Movant does not produce evidence. Non-movant must then introduce sufficient evidence - more than a scintilla - to demonstrate a genuine issue of material fact exists as to causation.
72
Summary Judgment Requirements
- Must be in admissible form - Motion must be set for hearing - Motion and any supporting evidence must be filed and served on opposing counsel at least 21 days before hearing date; AND - Response and any controverting evidence must be filed and served not later than 7 days before the hearing date
73
Motion to Challenge the Array
Used to challenge to the procedure in which potential jurors are summed
74
Jury Shuffle
After venire members seated, this can be requested ONCE by either party
75
Challenge for Cause
Unlimited Grounds include: - witness in the case - interest in the case - related to the party within the 3rd degree - Served as juror in earlier trial of same case - Bias or prejudice regarding the case
76
If a court denies a challenge for cause
To preserve error, must: - challenge and get adverse ruling - before giving strikes to clerk, inform the court that due to the refusal to strike for-cause, the party will exhaust peremptory challenge before striking objectionable panelist - Identify specific panelist who will reamin on jury list once party uses last peremptory strike - Request TC compensate for erroneous ruling on the for cause challenge by reversing the ruling or granting party's additional peremptory strike - Give clerk list of peremptory strikes - objectionable panelist must actually serve on jury
77
Number of Peremptory Challenges
Two party case: 6 in District Court and 3 in county court at law Multiple Party - each SIDE gets same number EXCEPTION: unless there is antagonism among parties on the same side. Then TC can equalize peremptory strikes through a motion to realign or equalize. Filed by party that wants additional strikes.
78
Batson Challenges
May not exercise peremptory challenges because of race, ethnicity, or sex. If party believes another used their strike for race or sex, then that party can make the Batson Challenge BEFORE the court impanels the jury and dismiss excluded panelist During hearing, challenger must make a prima facie case of discrimination. Then, the respondent must make a legitimate, non-discriminating reason for their decision. Burden back to the other side to show real reason was protected characteristic.
79
Exemptions to Invoking the Rule
- The party and spouse - If the party is corporation, designated representative - Person whose presence is essential to presentation of the case (expert)
80
Remedies for violation after The Rule is Invoked
Judge may exclude witness or hold in contempt Appellate standard: abuse of discretion
81
Jury Charge
Instruction, definitions, and questions for the Jury
82
Payne Standard
There should be but one test for determining if a party preserved error in jury charge, and that is whether TC was made aware of the complaint, timely and plainly, and obtained a ruling.
**HOWEVER**, a **REQUEST FOR SUBMISSION** is used which is a written question, definition, or instruction **SUBMITTED** in substantially correct form if the charge OMITS a question instruction or definition.
83
Waiver of Independent Grounds of Recovery, Express Findings, and Deemed Findings
If party with burden omits action or defense in charge, it is WAIVED If element omitted and neither objects, TC may make expressed finding as to omitted element after jury discharged If missing element brought to attention of appellate court, appellate may DEEM finding supports judgment
84
Protection of Jury Deliberations
A juror may not testify about any statements made or matters discussed or about effect of anything on juror's mental process EXCEPTION: may testify about outside influence
85
Challenging jury misconduct
Done through motion for new trial
86
Number of Jurors to Render Valid Verdict
10 out 12 in District 5 in County Ct at Law
87
Dynamite Charge
Verdict Urging Instructions - Jurors have not diliberated very long, court may provide this (also known as Allen Charge) - Urge jury to reach verdict if possible - Tells individual jurors not to surrender conscientious views found on the evidence unless convinced - Told to keep open mind to every reasonable argument - Told case may be retired if no verdict is reached
88
Sufficiency of the Evidence
Can challenge legal or factual sufficiency of the evidence Legal - may challenge through: summary judgment, motion for directed verdict, objection to the submission of a jury question in the charge, JNOV, motion to disregard jury findings, motion for new trial Factual - motion for new trial or motion for remititur
89
No motion for new trial filed
TC has 30 days from date judgment is signed to grant new trial or vacate, modify or reform
90
Motion for New Trial Overrulled
TC plenary power extends an additional 30 days from date it is overruled If no ruling within 75 days after judgment signed, considered overruled by operation of law. Plenary power extends additional 30 days from date overruled (105 days after judgment signed)
91
Motion for New Trial
TC has ongoing plenary power until the original judgment is reinstated or new judgment is signed
92
Interlocutory Appeal
May file if statutory exception applies. Available as matter of right from following orders: - appointing receiver or trustee - Class action certification - granting or denying temporary injunction - Denial of official-immunity summary judgment - Denial of free speech summary judgment - Granting or denying special appearance - Grant or deny plea to jurisdiction by governmental unit - Interlocutory orders related to expert witness reports in health care liability claims - Order that denies motion to dismiss an asbestos or silica-related claim
93
Writ of Mandamus
Can challenge interlocutory rulings in which no statutory right by seeking this writ. TEST: Whether relator demonstrates that lower court ruling is (1) clear abuse of discretion; (2) no adequate appellate remedy
94
Regular Appeal
Deadline for Notice of Appeal: 30 days from date a final judgment is signed Motion for New Trial or Motion to Modify Judgment is filed: 90 days from date judgment is signed
95
Interlocutory Appeal
20 days after the order is signed
96
Restricted Appeal
Within 6 months after the judgment or order is signed
97
_Discovery_: Can an attorney instruct a witness not to answer questions during a deposition?
Yes, an attorney may instruct a witness not to answer a question during an oral deposition only if necessary to preserve a priviliege, comply with a court order, or protect witness from an abusive question.
98
_Discovery_: Explain the process to compel physical and mental examination request.
No later than 30 days before the end of the discovery period, a party may move to compel another party to submit to a physical or mental examination.
**_NOTE_**: Court may issue an order for examination for **GOOD CAUSE** shown and if mental or physical condition of party is in question.
99
What is a motion in limine?
A **PRELIMINARY RULING** from a judge that a piece of evidence is not admissible.
If **GRANTED** the defendants were prohibited from referencing the arrest during voir dire or opening statement and would require defendants’ attorney to approach the bench prior to attempting to introduce the evidence during trial.
100
Explain the process on how to handle a surprise witness.
Must show either good cause for not disclosing the existence of the witness earlier or that the other party would not be unfairly surprised or unfairly prejudiced by the late disclosure.
101
When must a party object to an expert witness they believe is not qualified?
A party must object to an expert witness **PRIOR TO** the expert witness testifying. An attorney can take an expert on voir dire outside the presence of the jury if the objection overruled.
102
Special Exception
Defects apparent **ON THE FACE** of the pleadings are challenged by special exception.
Must point put pleading defect with PARTICULARITY and explains how defect may be cured.
