TX CIVIL PROCEDURE

Question 1

Civil claims for damage, divorce, juvenile matters, contested elections and title to land

Answer 1

What are original jurisdiction claims in TX?

Question 2

Made to object to court’s jurisdiction over D’s person or property

Answer 2

*** What is a special appearance?

Question 3

A Texas filing comparable to a federal complaint

Answer 3

** What is a petition?

Question 4

A Texas filing comparable to a federal summons

Answer 4

** What is a citation?

Question 5

All lawsuits must be commenced in the TX county: 1) where all or a substantial part of the omissions or events giving rise to the claims occurred; 2) of D’s residence when the cause of the action accrued if D is an individual; 3) of the D’s principal office in TX, if the D is not an individual; or, 4) if the foregoing provisions do not apply, in the county where the plaintiff resided when the cause of action accrued.

Answer 5

*** What is the Texas General Venue Rule?

Question 6

1) county in which the action is pending is an improper county for venue; or 2) mandatory venue of the action in another county is required by at least one specific TX statutory provision.

Answer 6

*** What are the two requirements for a motion to transfer venue?

Question 7

1) Contracts with a TX resident (e.g. by mail) and either party is to perform part of the contract in TX; 2) commits some part of a tort in TX; or 3) recruits (directly or indirectly through TX intermediary) TX residents for employment in TX or outside TX

Answer 7

Texas has limited long-arm statute, what acts constitute doing business as a basis for personal jurisdiction?

Question 8

Service of process is delivery on agent of corporation: 1) its president; 2) an of its vice president; 3) its registered agent

Answer 8

** How is service of process (delivering citation and petition) made on a corporation in TX?

Question 9

No. A plea in the abatement is the proper way to challenge a party’s satisfaction of the residency requirements.

Answer 9

Is a motion to transfer venue proper in TX divorce case?

Question 10

• Objection waived unless timely made in written motion filed before or concurrently with any other pleading except for a special appearance.
• MTO must state: 1) that the county in which action is pending is improper; 2) mandatory venue is required in another county by at least one specific TX statute.

Answer 10

*** What are the requirements of a MTO transfer venue?

Question 11

A pleading where the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. Note: except in suits governed by TX Family Code, a claim for relief must state monetary relief requested.

Answer 11

• What is fair notice pleading?

Question 12

1) A short statement of the cause of action providing fair notice of the claim; 2) a statement that damages requested are within the court’s jurisdiction limit, and; 3) a demand for judgment or any other relief requested

Answer 12

** What are the three items an original petition asserting a claim for relief must include?

Question 13

A written answer is due by 1000 AM on the next Monday after the expiration of 20 days from the date of service of regular citation.

Answer 13

** When is an answer due?

Question 14

D can plead as many matters in the answer as the D thinks are necessary for defense, and which may be relevant: 1) MTO transfer venue; 2) pleas to the jurisdiction; 3) pleas in the abatement; 4) other dilatory pleas; 5) special exceptions; 6) general denials; 7) defenses by way of estoppel or avoidance; and cross-actions

Answer 14

** What seven items can be included in an answer

Question 15

A plea to the jurisdiction

Answer 15

• What is the TX counterpart to FRCP 12(b) MTO dismiss challenging subject matter jurisdiction?

Question 16

Requests postponement or dismissal of the action by asserting a matter or defect concerning procedure, jurisdiction, or timing.

Answer 16

** What is a plea in abatement?

Question 17

Written objection to a party’s pleading - identifies specific pleading, defects and requests amendment to fix flaw or that the court strike pleading

Answer 17

*** What is a special exception?

Question 18

General - made by adverse party sufficient to put matters at issue; Specific - sets out matters that must be verified by affidavit (e.g. P lacks legal capacity to sue, D is not liable, other suit pending with same claims or parties)

Answer 18

** What is a general denial v specific denial?

Question 19

Examples include: contributory negligence, fraud, res judicata, statute of limitations and workers compensation (employer can raise as defense to employee tort claim)

Answer 19

** What are examples of affirmative defenses that can be raised in a pleading?

Question 20

In a defamation action, a D (employer) may assert this affirmative defense; 1) Employer has privilege to investigate allegations of employee wrongdoing; 2) privilege attaches to communications; 3) limitation on scope of privileges; 4) actual malice defeats qualified privilege;

Answer 20

** What is investigatory privilege?

Question 21

A pleading filed after leave from TX judge that must identify the pleading to be amended

Answer 21

*** What is an amended pleading?

Question 22

MTO filed to challenge P’s pleadings by by identifying a defect in them and request the trial court to keep the lawsuit from proceeding until P fixes the defect.

Answer 22

** What is a MTO abate?

Question 23

• Similar to federal MTO summary judgment
• D may move for summary judgment at any time
• Filed and served w/in 21 days of hearing

Answer 23

** What are the standards for a TX MTO summary judgment?

Question 24

MTO that there is no evidence to support at least one essential element of claim or defense in suit

Answer 24

*** What is a no evidence MTO dismiss?

Question 25

MTO to bring to trial court’s attention that P did not prove an essential element of its case.

Answer 25

** What is a MTO instructed verdict?

Question 26

MTO presented and decided before the entry of a judgment

Answer 26

** What is a MTO JNOV?

Question 27

Examples: jury misconduct; improper intro or admission of evidence; improper questions for witnesses

Answer 27

** What are examples of a MTO mistrial?

Question 28

D files MTO to designate a person as a responsible third party liable for damages (e.g. naming P’s employer in tort claim)

Answer 28

** What is a MTO to designate responsible third party?

Question 29

A right that is not absolute in civil cases. A party must comply with x procedural requirements: 1) written request within reasonable time prior to trial date (not less than 30 days); 2) deposit fee with court clerk;

Answer 29

*** What are the two procedural requirements for jury trial [aka jury demand] request?

Question 30

10 or more members of an original jury of 12
5 or more members of an original jury of 6
Exception: 3 of 12 die or are disabled. If less than 6/12 all jurors must concur by signing the verdict

Answer 30

Number of jurors required for verdict?

Question 31

Often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant’s willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless.

Answer 31

What are exemplary damages (which requires a unanimous verdict)?

Question 32

A verdict that fails to answer every jury question raised at trial.

Answer 32

** What is an incomplete verdict?

Question 33

The trial court submits written charges to counsel for inspection before their presentation to the jury, and provide reasonable time for review and objection outside presence of jury. Objections are made on the record, in writing or they are waived.

Answer 33

** How is an objection to a jury charge preserved?

Question 34

Objection to juror alleging a fact that: 1) by law, disqualifies the juror to serve, or 2) in the trial court’s opinion, renders the juror unfit to sit on the jury

Answer 34

** What is a juror challenge for cause?

Question 35

In order to preserve, as error, denial of a challenge for cause, the challenging party must: 1) object to the denial after voir dire but before the jury is seated; 2) use all of the party’s peremptory challenges; 3) tell the court that a) a peremptory challenge is being used to strike the potential juror who should have been disqualified for cause; and b) that the peremptory challenge would otherwise have been used to strike a specific panel member who will now be seated as a juror.

Answer 35

** What are the three elements of the procedure required to preserve error from a detail of challenge?

Question 36

Each party is generally entitled to six peremptory challenges in a TX district court case and TX county court case.

Answer 36

How many peremptory challenges is each party entitled to?

Question 37

Compensatory damages intended to compensate a claimant for financial or economic loss (excludes non-economic such as pain/suffering and exemplary damages)

Answer 37

** What are economic damages?

Question 38

No - instead D uses an ‘assertion of privilege’

Answer 38

** is an assertion of ‘work product’ allowed in response to a TX request for disclosure?

Question 39

Party provides withholding statement to the party seeking discovery and must state three items: 1) material or information responsive to request was withheld; 2) the request to which the material or information relates; and 3) the privilege(s) asserted for no disclosing this material or information

Answer 39

*** What is required for a party to withhold privileged information or material?

Question 40

A discovery control plan that applies to 1) expedited actions, in which the claimants only seek monetary relief not exceeding $100,000; and 2) divorce actions in which no children are involved when the marital estate’s value does not exceed $50,000.

Answer 40

What is a Level I discovery control plan?

Question 41

A discovery control plan that is the default if suit is not covered by other discovery control plans.

Answer 41

What is a Level II discovery control plan?

Question 42

A discovery control plan that addresses any issue regarding discovery and can change any limitation upon the time for and amount of discovery.

Answer 42

What is a Level III discovery control plan?

Question 43

A party can discover contact info (name, address, etc) of trial witness, but not of rebuttal or impeaching witness.

Answer 43

*** What can a party discover about trial witnesses?

Question 44

Examples of this information include: parties names, legal theories and factual basis of D’s defenses, amount and method of calculating economic damages.

Answer 44

*** What are examples of information that can be obtained from another party through a request for disclosure?

Question 45

D may request that P disclose or sign medical authorization allowing disclosure to D of P’s medical records.

Answer 45

** What information can be requested in suits involving mental or physical injury and damages?

Question 46

Objections can be made to this type of deposition by: 1) a motion for a protective order; or 2) a motion to quash the notice of deposition

Answer 46

*** What procedure is required to object to place and time of oral depositions?

Question 47

Objections are restricted to: Objection, leading and Objection, form

Answer 47

** What are the limitations on the objections that can be raised during an oral deposition?

Question 48

Items that can be obtained for this type of witness: 1) the subject matter about which an expert is expected to testify; 2) the expert’s mental impressions and opinions;; the facts known to the expert relating to or forming the basis of mental impressions and opinions, and; 4) additional discoverable matters such as documents not produced in disclosure;

Answer 48

** What information can be obtained by a party regarding a deposition of an expert witness?

Question 49

This type of deposition may state: 1) if the deposition will be taken by alternative means of conducting and recording its (e.g. telephonic or remote electronic means); 2) if additional attendees are included; and 3) a request for production of documents

Answer 49

*** What does a corporate deposition need to state?

Question 50

This type of deposition must be: 1) served upon the witness and all parties; 2) at least 20 days prior to the taking of the deposition.

Answer 50

*** What are the two requirements for a written deposition?

Question 51

These responses are due within within 30 days of being served

Answer 51

*** When must a party serve its answers to interrogatories, a request for admission or a request for production?

Question 52

D files a verified special appearance prior to any other pleading, plea or motion

Answer 52

What responsive pleading must D file to contest personal jurisdiction and when must it file such pleading?

Question 53

D must file an MTO transfer venue prior to or concurrent with any other motion

Answer 53

What pleading must D file to object to the case proceeding against it in the county it was filed?

Question 54

D files a special exception asking that the court order P to state the specific amount of damages he seeks

Answer 54

What pleading must D file to require P to state the amount of damages that he seeks and what should the pleading request?

Question 55

Check cards above

Answer 55

What are the five categories of information or material a party may request in request for disclosures?

Question 56

A party must amend or supplement a discovery response when it learns the response is no longer correct or complete – must be made with reasonable promptness and no less than 30 days before trial.

Answer 56

When is D under an obligation to disclose any additional witnesses and if so, when must D do it?

Question 57

P must file a request for production and inspection of the back-up alarm. P has to indicate the method to be used and the manner, means and procedure for the testing.

Answer 57

What does P have to file to inspect and test a piece of evidence under the control of D?

Question 58

An untimely response to a request for admission is deemed admitted

Answer 58

What is the effect of an untimely response to a request for admission?

Question 59

D must file a motion to withdraw the deemed admissions and show both good cause for the failure to timely respond and that P would not be unduly prejudiced by D’s withdrawal.

Answer 59

How can a D recover from an untimely response to a request for admission that has been deemed admitted?

Question 60

A reasonable time, but no less than 30 days before trial.

Answer 60

When must P file a jury request and pay the fee before trial?

Question 61

P can suspend a deposition and request a protective order and sanctions if D does not limit objections to the appropriate two allowed under TX law

Answer 61

What remedy does P have if D makes objections in a deposition other than the two permitted: “objection, leading” and “objection, form”?

Question 62

D can file a no-evidence and traditional motion for summary judgment with an affidavit and expert’s deposition (if applicable) attached.

Answer 62

When motions and attachments can a third party D file to request dismissal from the case?

Question 63

Court should invoke the “rule”, swear in the witnesses, instruct them not to speak to anyone but their lawyers about the case and exclude them from the courtroom.

Answer 63

What must P file to exclude witnesses from a courtroom?

Question 64

P can file a motion in limine to prevent discussion of previous arrest and also establish why the probative value is substantially outweighed by the danger of prejudice and/or why the evidence is irrelevant.

Answer 64

What must P file to exclude evidence of his prior arrest during jury selection?

Question 65

P can strike a biased prospective juror for cause and if denied use a preemptory challenge

Answer 65

What can P do to strike a juror on the basis of unfair prejudice?

Question 66

P must show witness the contents of his previous testimony and give the witness an opportunity to explain or deny the testimony.

Answer 66

What steps must P take before impeaching a witness with his previous testimony?

Question 67

D must show either good cause for its failure to list the witness or that its failure to do so will not unfairly prejudice P.

Answer 67

What must D do before presenting a witness no on its witness list?

Question 68

Hearsay exceptions that make this statement admissible: excited utterance, admission by a party opponent, statement against interest

Answer 68

If P testifies to a statement made by D’s employee right after an accident, is it admissible?

Question 69

An official copy of sheriffs report is admissible as self-authenticating

Answer 69

Is certified copy of an official record self-authenticating?

Question 70

D can make this motion after the P has rested his case and it should be renewed when D has rested its case and at the close of evidence.

Answer 70

When can D make a motion for a directed verdict?

Question 71

A jury can have testimony read to it from the court reporter’s transcript or the trial court can recall a witness to repeat testimony in dispute.

Answer 71

If jurors deliberating request information on substance of a witnesses’ testimony, how is the request handled?

Question 72

D can file these motion within 30 days of the date a trial judgement is signed.

Answer 72

When is a motion for JNOV and Motion for New Trial available to D?