Tex Civ Pro II Flashcards Preview

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Flashcards in Tex Civ Pro II Deck (134):
1

Claimant Traditional Summary Judgment

Party seeking to recover may, at any time after the adverse party has appeared or answered, move for summary judgment in their favor

2

Defending Traditional Summary Judgment

Party against whom a claim is asserted, may, at any time, move for summary judgment.

3

Motion & Affidavits for Summary Judgment--Content

State the specific grounds. Movant party must conclusively disprove at least one element of the other party’s claims or conclusively prove every element of its affirmative defense.

Affidavits must be based on personal knowledge

4

Granting Traditional Summary Judgment

The judgment sought shall be rendered if evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

5

When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should:

review the summary judgment evidence presented by both sides and determine all questions presented and render the judgment the trial court should have rendered.

6

Trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must:

affirm summary judgment if any of the summary judgment grounds are meritorious.

7

no more than a scintilla

when it is so weak as to do no more than create a mere surmise or suspicion of the fact’s existence.

8

unopposed testimony of an interested witness is considered conclusive if:

(1) It pertains to matters reasonably capable of exact statement
(2) It is clear, direct, and positive
(3) It is internally devoid of inconsistencies
(4) It is uncontradicted either by the testimony of other witnesses or by circumstances, and
(5) It is of a kind that could be readily controverted if untrue.

9

Responses by Non-Movant for Traditional Summary Judgment

(1) Presents a factual dispute--> Waive if not raised @ Trl. Ct.
(2) Attack quality of movant’s evidence--> May be raised for 1st time on appeal.
(3) Attack the movant’s legal entitlement to judgment--> May be raised for 1st time on appeal.
(4) Attack formalities of proof--> Waive if not raised @ Trl. Ct.
(5) Assert affirmative defense-->Waive if not raised @ Trl. Ct.
(6) No response: even if there is no response, a traditional summary judgment will not stand if the movant has not satisfied the summary judgment standard.

10

Traditional Summary Judgment Options for Defense

(1) Summary judgment for insufficient pleadings
(a) Failure to state a claim
(b) Pleadings negate the claim
(2) Traditional motion for summary judgment—Disproving Facts

11

Defense to No-Evid. Summary Judgment

The nonmovant must produce summary judgment evidence raising a genuine issue of material fact to defeat the summary judgment.

12

Genuine issue of material fact

A genuine issues of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.

13

More than Scintilla of Evidence

More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in conclusions.

14

Std. of Review for No-Evidence Summary Judgment

When reviewing a no evidence summary judgment, the court must review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.

15

Motion for No-Evid. Summary Judgment--Content

the motion must be specific in challenging the evidentiary support for an element of a claim or defense.

that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.

16

Jury Trial

No jury trial for any civil cases, but may be requested within a reasonable time, but not less than 30 days from date of trail. Presumed reasonable when made over 30 days, not reasonable if made within 30 days. Must pay fee, and paying such fee doesn't give you control over jury as you won't be able to remove it unless non-paying party agrees.

17

Setting for Trial

Court may set trial at any time or upon request. Notice of first trial setting must be given at least 45 days prior, but only reasonable time required after that.

18

Continuance Generally

No application for a continuance shall be granted except fo good cause supported by affidavit.

Waived if announcement of ready made, except for unforeseeable events arising though no fault of movant.

19

Req. for Continuance to Obtain Testimony

Present affidavit that testimony is material, and that it can't be obtained by any other method, if it's not the first of such request. (Other means not req. if it's the first of such application).

20

Req. for Continuance due to Absence of Counsel

Left to discretion of the Court, but that alone is not good cause.

21

Mandatory Continuance for Legislative Session

If trial is set within 30days from start of legislative session, or if session already underway, and party or attorney are members of the legislature, then continuance is mandatory.

Attorney is required to present affidavit stating intent to actively participate in the case.

Not mandatory, but discretionary if attorney is hired within 10days of the trial setting.

A legislative continuance is mandatory except in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay. If the allegations are shown to be meritorious the court should deny the continuance.

22

Consolidation

When actions involving a common question of law or fact

23

Separate Trials

The court may order a separate trial of any claim, or of any separate issue .

24

Standard for Reversible Error

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals.

If the error only affects part of the case, the court may remand only that part of the case for new trial.

25

Invoking "The Rule"

At the request of any party, the witnesses on both sides shall be removed from the courtroom to some place where they cannot hear the testimony delivered by any other witness in the cause.

A court has discretion to allow a witness to testify even though the witness has violated the Rule by remaining in the courtroom during another witness’s testimony.

26

Three Exceptions to The Rule

(1) A party who is a natural person or his or her spouse
(2) An officer or employee of a party that is not a natural person and who is designated as its representative by its attorney
(3) A person whose presence is shown by a party to be essential to the presentation of the cause.

27

Right to open and close arguments:

The party who has the burden of proof on the whole case, or the party who has the burden of proof on all matters in the charge, has the right to open and close the argument. If the defendant has admitted guilt, but liability depends upon an affirmative defense, defendant holds the right.

Exception: when there are several parties who have separate claims or defenses, the court shall determine the order of the argument.

28

Opening Statements

Can't be too detailed or present inadmissible evidence

29

Who can Q a Witness

State judge may only question witnesses to clarify, and for the purpose of eliciting material evidence that has not been otherwise been brought out

To reverse a judgment on the ground of judicial misconduct, a complaining party must show either trial court bias or that they suffered probable prejudice.

Allowing the jurors to occasionally propound questions to the witnesses was not improper.

30

Judicial Commentary

If objectionable remarks by the judge are of the type which could have been rendered harmless by a proper instruction from the judge, failure to object to such remarks to such remarks and to request a curative instruction waives error.

Error is not waived if the comment could not have been cured by an instruction from the judge.

31

Exclusion of Evidence

May not be grounds for error unless:
(1) a substantial right of the party is affected, and
(2) the substance of the objection was made known to the trial court by offer of proof.

Rules require only a short, factual recitation of what the testimony would show is sufficient evidence to preserve an issue for appeal.

32

A person is disqualified to serve as a petit juror unless the person:

(1) is at least 18 years of age;
(2) is a citizen of this state and of the county in which the person is to serve as a juror;
(3) is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
(4) is of sound mind and good moral character;
(5) is able to read and write;
(6) has not served as a petit juror for 6 days during the preceding three months in the county court or during the preceding six months in the district court;
(7) has not been convicted of misdemeanor theft or a felony; and
(8) is not under indictment or other legal accusation for misdemeanor theft or a felony.

33

A person is disqualified to serve as a petit juror in a particular case if he:

(1) is a witness in the case;
(2) is interested directly or indirectly, in the subject matter of the case;
(3) is related by consanguinity or affinity within the 3rd degree to a party in the case;
(4) has a bias or prejudice in favor of or against a party in the case; or
(5) has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact.

34

Voir Dire

Trial courts should allow broad latitude to counsel to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised.

35

Bias & Prejudice

Bias--> Bias in its usual meaning is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not it did not act with impartiality.

Prejudice-->Prejudice is more easily defined, for it means prejudgment, and consequently embraces bias; the converse is not true.

Statements that reflect a juror’s judgment about facts of a case as presented, rather than an external unfair bias or prejudice, does not amount to a disqualifying bias.

Veniremembers may be disqualified even if they say they can be fair and impartial so long as the rest of the record shows they cannot. Nevertheless, Veniremembers are not necessarily disqualified when they confess bias, so long as the rest of the record shows that is not the case. KEY: LOOK AT RECORD AS A WHOLE TO DETERMINE BIAS & PREJUDICE

36

Preview of Evidence during Voir Dire

The trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not be given) a particular fact or set of relevant facts.

If the trial judge permits questions about weight jurors would give relevant case facts, then the juror’s response to such questions are not disqualifying, because while such responses reveal a fact-specific opinion, one cannot conclude that reveal an improper subject-matter bias. It’s their job to give opinion on the facts of the case, so you can’t disqualify them for that reason.

37

Preventing Voir Dire Questioning

In sustaining an objection to an improper voir dire question, a trial court should not foreclose all inquiry about a relevant topic.

To preserve a complaint that a trial court improperly restricted voir dire, a party must timely and specifically alert the trial court of the improperly restricted void dire question, and make clear—by words or context—the grounds and manner in which it intends to pursue inquiry.

A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges.

38

Statutory Disqualifications and Challenges for Cause

A challenge for cause is an objection made to a juror, alleging some fact which by law disqualifies him to server as a juror in the case.

To preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the venirmember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list.

39

false answers given during voir dire examination

Entitled to a new trial if it was concealment by a juror in response to a specific and direct question calling for disclosure.

40

Peremptory Challenges

A peremptory challenge is made to a juror without assigning any reason therefor.

each party to a civil action is entitled to six peremptory challenges in a case tried in the district court, and to three in the county court.

41

Reapportioning Peremptory Challenges

When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury.

In most cases a two-to-one ratio between sides would approach the maximum disparity allowable.

42

Factors for Reapportioning Peremptory Challenges

the circumstances of the particular case, the information available to the trial court, the extent and degree of the antagonism, weather the parties collaborate in selecting jurors to be struck, the number of jurors available on the pane, and such other conidiation as meet the statutory criteria of promoting the “ends of justice” and preventing “unequal advantage.”

43

Verdict by Portion of Original Jury

same ten or more members of an original jury of twelve or of the same five or more members of an original jury of six

rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages

44

Jury Misconduct

A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror.

45

Batson Challenge

(1) The opponent of the peremptory challenge must establish a prima facie case of racial discrimination.

(2) The burden then shifts to the party who has exercised the strike to come forward with a race-neutral explanation. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral for purposes of the analysis at step two.

(3) The trial court must then determine if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge.

Note: If a non-challenger proffered reason for striking a black panelist applies just as well to an otherwise-similar non-minority who is permitted to serve, that is evidence tending to disprove purposeful discrimination to the considered at Batson’s 3rd step.

46

Prerequisites of Appeal

A point in a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or a nonjury case, except :
(1) A complaint on which evidence must be heard such as one of jury misconduct or newly discovered evidence or failure to set aside a judgment by default.
(2) A complaint of factual insufficiency of the evidence;
(3) A complaint that a jury finding is against the overwhelming weight of the evidence;
(4) A complaint of inadequacy or excessiveness of the damages found by the jury; or
(5) Incurable jury argument if not otherwise ruled on by the trial court.

47

Arguments at Trial

Arguments on the facts should be addressed to the jury, when one is impaneled in a case that is being tried, under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel.

Court will not be required to wait for objections, but should violations not be noticed and corrected by the court, opposing counsel may ask leave of court to rise and present his point of objection.

48

Preserving Error for Improper Arguments at Trial

Whether the argument considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.

49

General Charge

where the judge points out to the jury the factual elements to be found and by instructions directs the jury as to the method to be followed in finding the facts and giving an answer finding in favor of one party or the other.

50

Specific Issue

Asks the jury specific questions that elicit findings on special controverted facts, and the judge determines the legal consequence of those findings

51

Broad Form Questions

Whenever feasible, submit the cause upon broad-form questions. Inferential rebuttal questions shall not be submitted in the charge.

When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot determine whether the improperly submitted theories formed the sole basis for the jury’s finding. However, when questions are submitted in a manner that allows the appellate court to determine that the jury’s verdict was actually based on a valid liability theory, the error may be harmless.

52

Inferential Rebuttals

Charge may not have a question about this but you can have it under an instruction.

53

Comments on the Weight

The court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.

To be a direct comment on the weight of the evidence, the issue submitted must suggest to the jury the trial court’s opinion on the matter.

54

Omitted Question, without Burden

Objection will preserve error

55

Omitted Question, with Burden

Objection and Request to Preserve Error

56

Omitted Definition or Instruction

Objection and Request to Preserve Error

57

Defective Question, Definition, or Instruction

Objection will preserve error

58

Form of an Objection

Objection can be made orally or in writing 9but separate from any requests)
Must be specific, pointing out distinctly the objectionable matter and the grounds for the objection
Good objection concealed within numerous unfounded form objection will be waived

59

Form of a Request

Must be in writing, made separately from objection in substantially correct form.
Substantially correct form means that if judge put what is requested in the charge, the new charge would be free of error

60

Error is that charge omits a Question that a party complaining needs for claim or defense

Complaining party must request needed Question

61

Error is that charge omits Question that other party needs for claim or defense

Complaining party may either request needed question or objection to its omission

62

Error is that charge omits an Instruction or Definition

Complaining party must request, regardless of who needs it

63

Error is that Question, Instruction, Definition submitted is defective

Complaining party must object to defect

64

Jury Instruction Proper if:

(1) Assists the Jury
(2) Accurately states the law
(3) Finds support in the pleadings and evidence

65

Ruling on Objections & Requests

Rulings on objections may be oral or in writing

Rulings on requests must be in writing and must indicate whether the court refused, granted, or granted but modified the request.

66

Deemed Findings & Waived Grounds

Where issues are omitted which constitute only a part of a complete and independent ground and other issues necessarily referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if no objection is made and they are supported by some evidence. There must be factually sufficient evidence admitted for it to be deemed.

67

Juror Note Taking

Note-taking by jurors is not prohibited, but is left to the discretion of the trial judge in appropriate cases.

68

Hung Juries

A jury to whom a case has been submitted may be discharged when they cannot agree and the parties consent to their discharge, or when they have been kept together for such time as to render it altogether improbable that they can agree.

The amount of time the jury is to be held in an effort to secure an agreement is left to the sound discretion of the trial judge. However, a trial judge cannot coerce a jury to reach a verdict. This includes keeping the jury until they reach a verdict. This may pressure/coerce the jury into reaching an improper verdict.

69

Conflicts in Jury Charge

Conflict must be material to be at issue

Preserving Error-->Objection before the jury is discharged, but conflict on this matter exists.

70

Gaps in Jury Charge

A judgment cannot be based on a verdict containing unanswered issues, supported by some evidence, unless the issues are immaterial.

The trial court must instruct the jury to deliberate further on the issues. If upon further deliberation the jury cannot agree on answers to the issues, the trial court may declare a mistrial, but the trial court may not render judgment based on the incomplete verdict.

The trial court will not be reversed for rendering judgment, however, unless the party who would benefit from the answers to the issues objects to the incomplete verdict before the jury is discharged, making it clear that he desires that the jury redeliberate on the issues or that the trial court grant a mistrial. But a party who silently allows the verdict to be accepted and the jury to be discharged waives the right to complain that the questions are unanswered, and the trial court may disregard the unanswered questions and render judgment for the party entitled to prevail under the findings made.

The Rules make the judge the fact-finder for missing questions but not for missing answers. A missing jury answer is not waived, even though the proponent has not complained, if an ERRONEOUS CONDITIONING INSTRUCTION has withheld it from the jury’s consideration. In such a case, the question is treated exactly as if it had never been in the charge at all. Rule 279 applies, and the trial judge can supply the missing answer.

71

Material/Immaterial Issues on Jury Charge Test

Material: Determine outcomes based on each conflicting question without the other. If the outcomes from conflicting questions are different, then material conflict exists.

Immaterial: Issues are immaterial if their answers can be found elsewhere in the charge or if they cannot alter the effect of the verdict.
A jury’s answers to questions in the charge may only be disregarded if they have no support in the evidence or if they are immaterial.
A question is immaterial when (1) it should not have been submitted, (2) it calls for a finding beyond the providence of the jury (such as a question of law), or (3) when it was properly submitted but has been rendered immaterial by other findings.

72

Constitutional Disqualification of Juror (disabled from sitting)

Not just any inconvenience or delay is a disability.

A constitutional disability must be in the nature of an actual physical or mental incapacity.

Must be more than mere mental distress occasioned by the sickness of others, and the feeling that duty to the sick demanded his presence elsewhere

73

Zone 1--No Evidence

There is no evidence (no more than scintilla) supporting a fact issue; therefore, the proponent--party with burden--is not entitled to have the issue submitted to jury. Such a finding will be set aside on appeal, and ordinarily the appellate court will render judgment in favor of the opponent.

Terms: Courts use "no evidence," or "legally insufficient evidence." Also use failed to carry burden "as matter of law."

74

Zone 2--Insufficient Evidence

There is some evidence on the issue, and consequently it must be submitted to the jury, but there is not enough evidence to support a jury finding in proponent's favor. A reviewing court will set aside such a filing and order a new trial.

75

Zone 3

There is enough evidence to support a jury verdict but not so much a court would be justified in interfering with a contrary finding. The vast majority of cases fall into this zone, where the issue is left entirely to the fact finder

76

Zone 5-Conclusive Evidence

Proponent has introduced evidence strong enough to prove a fact conclusively--that is, "asa matter of law." Accordingly, a reviewing court will set aside a contrary finding and render judgment for the proponent. There is no issue for jury to decide.

Standard--> View evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors would, and disregarding contrary evidence unless reasonable jurors could not

77

Zone 4--Great Weight & Preponderance of Evidence

The evidence favoring the proponent is even stronger, so although the issue must go to jury, a reviewing court will set aside a jury finding against the proponent and order a new trial.

78

What is exclusive standard?

When you consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.

Evidence can be disregarded whenever reasonable jurors could do so. Can't be disregarded if reasonable jurors could not.

79

Exceptions to using exclusive evidence rule:

(1) Contextual evidence
(2) Competency Evidence
(3) Circumstantial Equal Evidence
(4) Conclusive Evidence
(5) Clear & Convincing Evidence
(6) Consciousness Evidence

80

Contextual Evidence

Can't be disregarded.
In some cases, a lack of supporting evidence may not appear until all the evidence is reviewed in context.
Generally, evidence may not be taken out of context in a way that makes it seem to support/unsupport a verdict when in fact it never did.

81

Competency Evidence

Incompetent evidence is legally insufficient to support a judgment, even if admitted without objection.

82

Conclusive Evidence

Appellate court cannot disregard undisputed evidence that allows of only one logical inference.

Evidence is conclusive only if reasonable people could not differ in their conclusions and this depends on the facts of each case.

83

Consciousness evidence

In cases involving what a party knew or why it took a certain course (mental evidence required), that is not amenable to review under the exclusive standard.

84

Jurors of Credibility

Jurors sole judges of credibility. BUT:
(1) jurors decisions on credibility must be reasonable.
(2) jurors may not believe testimony that is conclusively negated by undisputed facts.
(3) And court on review must assume that jurors made credibility decisions in favor of their verdict.

85

motion for directed verdict

state the specific grounds therefor.

86

Additional Evidence/Testimony

the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.

87

The judgment of the court

Shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. The entry of the judgment shall contain the full names of the parties, as stated in the pleading, for and against whom the judgment is rendered. The date shown of the judgment or order is signed as shown of record shall determine the beginning of the periods prescribed.

88

JNOV

Upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may upon like motion and notice, disregard any jury finding on a question that has no support in the evidence.

89

Three Elements to Disregard Findings

There are three necessary elements which must be included in a motion to disregard findings:
(1) Motion must designate the finding and/or findings which the court is called upon to disregard;
(2) Specify the reason why the finding or findings should be disregarded;
(3) Must be accompanied by a motion that judgment or include a request that judgment be entered on the remaining findings after the specified findings have been set aside or disregarded.

90

Remittitur

Any party in whose favor a judgment has been rendered may remit any part thereof in open court, or by executing and filing with the clerk a written remittitur signed by the party or the party’s attorney of record.

If a review court is of the opinion that the verdict ad judgment of the trial court is excessive and that said be reversed for that reason only, then said appellate court shall indicate to such a party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed.

91

Motions for New Trial

New trials may be granted and judgment set aside for good cause, on motion or on the court’s own motions on such terms as the court shall direct. New trials may be granted when the damages are manifestly too small or too large.

Each point relied upon in a motion for new trial
shall briefly refer to that part of the ruling in such a way that the objection can be clearly identified and understood by the court.

92

Max New Trials

No more than 2

93

Timing to File a Motion for new Trial

A motion for new trial must be filed within 30 days after judgment. May amend motion before previous one is ruled on and within 30 days from last judgment or order.

In the event an original or amended motion for new trial or a motion to modify, correct, or reform a judgment is not answer within 75 days after judgment was signed, then assume to have been overruled.

94

Court Plenary Power Period

The trial court, has plenary power up to 30 days after judgment is signed.

If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until 30 days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause.

95

Timing for a motion to modify, correct, or reform judgment

A motion to modify, correct, or reform judgment, if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court’s plenary power and the time for perfecting an appeal in the same manner as a motion for new trial.

96

Timing for Appeal

If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed.

97

Mandamus Review of New Trial Orders

There are two narrow instances in which a new trial orders are reviewable, on the merits, by mandamus:
(1) When the trial court’s order was void or
(2) When the trial court erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict.

98

Findings of Fact and Conclusions of Law

Due within 20 days of the signing of the judgment. The judge has then 20 days after the request in which to act. If he does not, the requesting attorney must contact the judge within 30 days after filing the original request (10 days after the judge’s deadline has passed) by giving notice that the findings and conclusions are past due.

The reminder notice extends the judge’s deadline to 40 days after the original request. (so get an additional 20 days)

If the attorney fails to send the reminder, any complaint of the judge’s failure is waived.

If, however, the judge is properly reminded and fails thereafter to meet the new deadline, the judge’s failure is presumed harmful, unless the record before appellate court affirmatively shows that the complaining party has suffered no injury.

A timely filed request for findings of fact and conclusions of law extends the deadline for perfecting appeal from 30 to 90 days after the judgment is signed in a case tried without a jury. This, however, doesn't extend the court's plenary power.

After a court files original findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions of law.

99

judgment of a court of appeals

conclusive on the facts of the case in all civil cases.

conclusive on the law and facts, and a petition for review is not allowed to the supreme court, in the following civil cases:
(3) An appeal from an interlocutory order appointing a receiver or trustee or from other interlocutory appeals that are allowed by law;
(5) all other cases except the cases where appellate jurisdiction is given to the supreme court and is not made final in the courts of appeals

100

Interlocutory Appeal

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that appoints a receiver or trustee;
(3) certifies or refuses to certify a class;
(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction;
(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a defendant, except in a suit brought under the Family Code;
(8) grants or denies a plea to the jurisdiction by a governmental unit ;
(9) denies all or part of the relief sought, except that an appeal may not be taken from an order granting an extension under; or
(10) grants relief sought by a motion ; or
(11) denies a motion to dismiss

An interlocutory appeal stays the commencement of a trial in the trial court pending resolution of the appeal.

101

judgment following conventional trial on the merits

Any judgment following a conventional trial on the merits creates a presumption that the judgment is final for purposes of appeal. A judgment following a conventional trial on the merits need not dispose of every party and claim from the presumption of finality to apply.

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by pleadings between such parties.

102

Judgment without Conventional Merit Trial

In a judgment without a conventional trial on the merits, the judgment must expressly dispose of them for the judgment to be a final judgment.

Where only one final and appealable judgment can be rendered, judgment without a conventional trial, is final for purposes of appeal if and only if:
(1) Actually disposes of all claims and parties before the court, regardless of its language, or
(2) States with unmistakable clarity that it is a final judgment as to all claims and all parties.

Judgment that finally disposes of all remaining parties and claims, based on the record of the case, is final, regardless of its language. Judgment that actually disposes of all claims and parties is final even if it says it is interlocutory.

103

Timetable for Appeal w/out Motion for New Trial

(1) Record is due in Court of Appeals the 60th day from final judgment.
(2) File appellant’s brief 30 days from filing of record
(3) File appellee’s brief 30 days from filing of appellant’s brief
(4) File reply brief 20 days from filing of Appellee’s brief

Note: Clerk’s record includes everything filed with trial court. Court Reporter’s record includes all that was said/occurred during the court proceedings and includes the exhibits before the court, regardless if admitted or not. Individual attorneys are tasked with making sure that the Reporter puts record together and is sent up to the appeals court. May get time extension if Reporter needs additional time to put record together.

104

Timetable for Appeal w/ Motion for New Trial or to Modify

(1) File motion for new trial or modify within 30 days of final judgment
(2) Overruled by operation of law within 75 days from final judgment
(3) File notice of appeal in trial court and copy to court of appeals by day 90
(4) End maximum period of trial court’s plenary jurisdiction on day 105. (assuming court modified judgment on day 75, which grants 30 days--thus 75+30=105 max days of plenary power).
(5) Record is due in court of appeals on day 120
(6) File appellant’s brief 30 days from filing of record
(7) File appellee’s brief 30 days from filing of appellant’s brief
(8) File reply brief 20 days from filing of Appellee’s brief

105

Motions to extend time

require a reasonable explanation—any plausible statement of circumstances indicating that failure to file within the required period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.

Any conduct short of deliberate and intentional qualifies as inadvertence, mistake or mischance—even if that conduct can also be characterized as professional negligence.

106

Implied motion for extension of time

A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed but within 15-day grace period.

An appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner.

107

Power of Ct. of App.

The court of appeal’s jurisdiction automatically ceases 60 days after its judgment if no timely motion for rehearing or motion to extend time is filed, or 30 days after all timely filed motions for rehearing and motions to extend time are overruled.

108

Tex Sup Ct JX

The supreme court might take jurisdiction, notwithstanding the finality of judgments of the court of civil appeals on fact questions, in order to determine if a correct standard has been applied by the intermediate courts. Supreme Court has jurisdiction over questions of law.

109

Mandamus JX

Mandamus is appropriate when there is a clear abuse of discretion and the party has shown there is no adequate remedy by appeal.

Both the court of appeals and the Supreme Court have mandamus jurisdiction over a trial court judge.

110

Default Judgment

May take default judgment if defendant has not filed an answer, and return of service has been on file with the clerk

Where multiple defendants with some answering and others defaulting, interlocutor default judgment may be given to non-responding defendants.

The clerk shall mail written notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing on the docket.

111

Assessing Damages on Default

Liquidated:
If the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its discretion, and final judgment shall be rendered therefor.
Unliquidated:
If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to damages.

112

Service by Publication

Where service has been made by publication, and no answer has been filed nor appearance entered, the court shall appoint an attorney to defend the suit in behalf of the defendant, and the judgment shall be rendered as in other cases.

If the defendant was served by publication, a motion for new trial may be filed until 2 years after the date the judgment was signed.

113

Post-Answer Default

A post-answer default differs from the no-answer default because the answer puts the merits of the claim in issue. Judgment cannot be rendered on the pleadings, and the plaintiff must prove liability as well as damages in the default judgment hearing.

114

Void and Voidable Judgment

A judgment is void when the court rendering judgment has no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter a particular judgment, or no capacity to act.

Merely voidable when the court had such power.

A void judgment can be attacked either directly or collaterally.

115

Collateral Attack

A collateral attack is an attack on a judgment brought in a proceeding brought for some other purpose.

No time limit to collaterally attack a void judgment.

116

Direct Attack

A direct attack is a proceeding brought for the purpose of attacking a judgment, and must be filed within strict deadlines.

There are three methods to directly attack a default judgment in Texas:
(1) The motion for new trial filed in the trial court, which if denied will be appealed;
(2) Writ of error review, which is a special appeal to the court of appeals; and
(3) The bill of review, an equitable proceeding filed in the trial court.

117

Craddock Test

First determine if the judgment is void or not—if void, default judgment should be set aside regardless of Craddock.

Under Craddock, a trial court is required to set aside a default judgment if:
(1) The failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference [when the defendant knew he was being sued and didn’t care] on his part, but was due to a mistake or accident;
(2) The motion for a new trial sets up a meritorious defense; and
(3) Granting the motion will occasion no delay or otherwise work an injury to the plaintiff.

118

Exception to Craddock

Craddock doesn’t apply when the rued provide defaulting party a remedy to avoid judgment.

Such as a motion for new trial filed after judgment has been granted on a summary judgment motion to which the nonmovant failed to timely respond when the movant had an opportunity to seek a continuance or obtain permission to file a late response.

119

Restricted Appeal (writ of error)

Must be filed within 6 months of the date of the judgment.

A direct attack on a judgment by writ of error must:
(1) Be brought within six months after the judgment was signed
(2) By a party to the suit
(3) Who did not participate in the actual trial, and
(4) The error complained of must be apparent from the face of the record.

Evidence not before the trial court prior to final judgment may not be considered in a writ of error proceedings.

The appropriate remedy when extrinsic evidence is necessary to the challenge of a judgment is by motion for new trial.

120

Bill of Review and Extrinsic Evidence

Must be brought within 4 years of the rendition of judgment.

The bill of review plaintiff (the defaulting defendant) must plead and prove:
(1) A meritorious defense;
(2) That he was prevented from making by fraud, accident or wrongful act of his opponent or official mistake;
(3) Unmixed with any fault or negligence on his own part.

Above req. not needed when proper service not completed. But, when defective service puts the defendant on notice of asserted claims in a pending suit, and the technical defects are not of the sort that deprive a litigant of the opportunity to be heard, the court rejects them as grounds sufficient to support a collateral attack.

121

Dismissal for Want of Prosecution.

A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket.

An order dismissing a case with prejudice for want of prosecution, though mistaken, is merely voidable and must be attacked directly in order to prevent the order from becoming final for purposes of establishing res judicata.

122

Motion to Reinstate Following Dismissal for Want of Persecution

A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided for the Trial Cts. Plenary Power.

123

Collateral Attacks

may be made at any time and in any court of competent jurisdiction

A collateral attack claims that the court which rendered the judgment lacked jurisdiction.

124

Res Judicata

Must prove:
(1) A prior final determination on the merits by a court of competent jurisdiction;
(2) Identity of parties or those in privity with them; and
(3) A second action based on the same claims as were or could have been raised in the first action.

125

Foreign Judgments

The party seeking to enforce a foreign judgment has the initial burden to present a judgment that appears on its face to be a final, valid, and substantial judgment.

Thereafter, the defendant has the burden of collaterally attacking the judgment by establishing a recognized exception to the full faith and credit requirements. However, a collateral attack on a sister state’s judgment may not go to the merits of the original controversy.

126

Severance, Separate Trials

When all the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion. The rule then is peremptory in operation and imposes upon the court a duty to order a separate trial.

127

Consolidation Factors

Maryland Factors:
(1) Common worksite
(2) Similar occupation
(3) Similar time of exposure
(4) Type of disease whether plaintiffs were living or deceased
(5) Status of discovery in each case
(6) Whether all plaintiffs were represented by the same counsel;
(7) Type of cancer alleged

128

Multi District Litigation Transfer of Cases by Panel

A transfer may be made by the judicial panel on multidistrict litigation on its determination that the transfer will:
(1) be for the convenience of the parties and witnesses; and
(2) promote the just and efficient conduct of the actions.

129

Multi-District Litigation Rules of Operation

The rules adopted by the supreme court must:
(1) allow the panel to transfer related civil actions for consolidated or coordinated pretrial proceedings;
(2) Allow transfer of civil actions only on the panel’s written finding that transfer is for the convenience of the parties and witnesses and will promote the just and efficient conduct of the actions’
(3) Require the remand of transferred actions to the transferor court for trial on the merits; and
(4) provide for appellate review of certain or all panel orders by extraordinary writ

130

Settlement Formalities

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed, and filed with the papers as part of the record, or unless it be made in open court and entered of record.

131

Release

Parties named or otherwise specifically identified fully releases only the parties so named or identified but not others, but this holding does not affect existing releases

132

Enforcement

A party may revoke its consent to a settlement agreement at any time before judgment is rendered on the agreement. A judgment rendered after one of the parties revokes his consent is void.

If rule 11 agreement, it can be enforced on separate lawsuit. If no rule 11 agreement, the judgment cannot be enforced in separate lawuit.

133

Rule 11 Agreements

When parties dictate a settlement agreement on the record (creating an enforceable agreement under Rule 11) and the trial court approves it on the record, such a settlement agreement does not constitute an agreed judgment unless the words used by the trial court clearly indicate the intent to render judgment at the time the words are expressed.

Rule 11 is a minimum requirement for enforcement of all agreements concerning pending suits, including, but not limited to, agreed judgment.

If the rule 11 agreement is a final judgment, the trial court maintains continuing jurisdiction to enforce that judgment. If, however, the agreement is simply an interlocutory order, and the dismissal order signed is the court’s final judgment after the plenary power has expired, the trial court was without jurisdiction to enforce the Rule 11 agreement.

134

Mary Carter Agreements

A Mary Carter Agreement exists when the settling defendant retains a financial stake in the plaintiff’s recovery and remains a party at the trial of the case.

Mary Carter Agreements are void as against public policy.
Failure to object to a Mary Carter Agreement may result in waiver.