Civ Pro (TX) Flashcards
SPECIAL APPEARANCE
Has to be filed when?
Can D use discovery first?
Before ANY OTHER PLEA OR PLEADING
YES—discovery is not a “plea or pleading” so doesn’t waive
SERVICE
Does P have to try personal service before trying substituted service?
Yes
Must file a MOTION FOR SUBSTITUTED SERVICE showing that your previous attempts were unsuccessful
SERVICE
What’s the procedure for invoking the long-arm statute?
When does the clock start for D’s answer?
Allege in PETITION:
- D is a non-resident doing business in TX
- D doesn’t maintain a regular place of business in TX or a reg agent in TX
Serve the SOS
PLEADINGS
What’s the deadline for filing an answer?
STATE COURT:
By 10:00am
The MONDAY NEXT
After 20 DAYS from day of service
FED COURT:
20 days, or within 7 days after D files a notice of removal, whichever is later
VENUE
General rule:
(1) EVENTS - substantial part of the events or commissions giving rise to the claim
OR
(2) D RESIDENCE at time cause of action accrued
- Natural person: residence
- Not natural person: principal office (where the DECISION-MAKERS are)
IF 1 and 2 not available:
PLAINTIFF’S RESIDENCE
PLEADING
What’s the DUE ORDER OF PLEADING?
- Special appearance
- MTV
- Anything else
Can be simultaneous
VENUE
Interlocutory appeal?
Reversible error to get venue wrong?
NO, need FJ
- BUT MANDAMUS if mandatory venue applies
YES—ALWAYS reversible error
VENUE
If it’s good against one D, is it good against all the others?
If one D1 waives venue challenge, can D2 still challenge?
Yes
Yes
VENUE
What goes in the MTV?
- Plead the county of suit is not proper, or the a different mandatory venue applies
EVIDENCE:
- Affidavits, any other kind of discovery
- EXCEPT ORAL testimony—only papers
VENUE
How and when does P have to respond to a MTV?
NO LESS than 30 DAYS before the hearing
File a response motion:
- Prima facie proof that venue is proper
- Specifically deny D’s venue facts
PLEADINGS
D is 2 days late in filing an answer—can he still file?
Yes—can file until P seeks a DEFAULT JUDGMENT, even if it’s not until after D’s deadline.
PLEADINGS
When do you need leave of court to amend?
If within 7 DAYS OF TRIAL
PLEADINGS
When is it too late to file a special exception?
Jury trial - after CHARGE is read to jury
Bench trial - after judgment is SIGNED
PLEADINGS
On what grounds can you move to strike a party’s amendment to their pleading?
(1) States a new cause of action and is prejudicial on its face
OR
(2) Causes SURPRISE OR PREJUDICE
MOTION TO DISMISS
What does it argue?
What’s the timeline?
A cause of action has NO BASIS IN LAW OR FACT
Must be filed:
- 60 days after received service
- 21+ days before the hearing
Must be GRANTED OR DENIED:
- 45 days after the hearing
TRIAL AMENDMENT
Pleading doesn’t include the cause of action or issue, but evidence was presented on it at trial, and the jury charge includes a Q on it
P can seek to amend via TRIAL AMENDMENT because D’s failure to object to the evidence when presented is IMPLIED CONSENT—now can’t claim surprise or prejudice for the amendment
D thinks P is a minor, doesn’t have capacity to sue. What motion should he file?
VERIFIED plea in abatement
PLEADINGS
When does D need leave of court to file a third party (impleader) action?
30 days after answer
DEFAULT JMT
What must P show in order to get a default jmt?
- Court has SMJ
- D has been served, RETURN is on file for 10+ days
- D hasn’t timely answered
- Prove up UNLIQUIDATED DAMAGES
DEFAULT JMT
How does a D challenge a DJ?
MNT within 30 DAYS (1) Legal error occurred at trial (2) Equitable grounds: - Failure to respond was not intentional, but a mistake - Meritorious defense AND - No delay or harm to P
MSJ
What’s the deadline for a response to MSJ?
7 days before hearing
DISCOVERY
Level 1
- When is it available?
- Length of discovery period
- Total depo times
- ROGs
- ROPs
- ROAs
Only monetary relief, less than $100k
OR a DIVORCE without children and marital estate is less than $50k
180 days 6 hours 15 15 15
DISCOVERY
Level 2
- When is it available?
- Length of discovery period
- Total depo times
- ROGs
- ROPs
- ROAs
Doesn’t meet Level 1, and there’s no court order for Level 3
Until 30 days before date set for trial 9 months after first depo or first due date for response to written discovery 50 hours 25 UNLIMITED UNLIMITED
RFDs
Impt things you can get with RFD:
What’s the due date for response?
(1) Names of parties
(2) Contact info for potential parties
(3) Amount and method for calculating damages
(4) Contact info for persons HAVING KNOWLEDGE OF RELEVANT FACTS and a BRIEF STATEMENT OF THEIR CONNECTION with the case
(5) Witness statements
(6) Insurance policies
(7) Relevant medical records, or an executed authorization
30 days
50 if you were served RFD before your answer was due
DISCOVERY
Which witnesses do you have to disclose?
How can you challenge someone’s calling a W they didn’t disclose?
The ones you plan to call at trial — not including rebuttal W’s (can’t anticipate those)
OBJECT, request the court to DISALLOW TESTIMONY
- Other party has to show EITHER good cause OR no prejudice
DISCOVERY
5 discovery tools:
(1) ROG
(2) RF PRODUCTION
(3) RF ADMISSIONS
(4) RF DISCLOSURES
(5) Depo’s
DISCOVERY
How can you request entry onto property to inspect?
What if it’s a non-party’s property?
Request for PRODUCTION
Need notice and a SUBPOENA — must be filed no later than 30 days before end of disc period
DISCOVERY
How can you request an opportunity to test/inspect something?
RF PRODUCTION
Specify a REASONABLE TIME and PLACE for production, and the means, manner, and procedure for testing
- Testing cannot MATERIALLY ALTER or DESTROY the thing
DEPO
Reasonable time and place for depo:
(1) Deponent’s residence
(2) Where deponent is employed
(3) County in which deponent was SERVED with subpoena
- Or within 150 miles of service if deponent is a non-resident or transient
(4) County of suit if deponent is a party
- OR any CONVENIENT PLACE by COURT ORDER
DEPO
How soon do you have to object to stay the depo?
3 business days after receiving the notice
DEPO
The only THREE kinds of objections:
Form
Leading
Non-responsive
202 DEPO BEFORE SUIT
Requirements:
(1) Petition anticipates institution of a suit of which he may be a party
(2) Subject matter of the anticipated suit, petitioner’s interest in the suit
(3) Names of expected adverse persons
SUPPLEMENT
Have to supplement by when?
If you don’t supplement on time, and the other party objects to your trying to introduce evidence in violation of the duty to supplement, what do you have to show to get the evidence admitted?
Reasonably promptly after you discover you need to supplement—within 30 days of trial is PRESUMED UNREASONABLE.
GOOD CAUSE
or
NO UNFAIR PREJUDICE
EXPERTS
By what date does a party have to disclose their testifying experts?
Party seeking relief:
- 30 days after a request is received
- 90 days before end of discovery
Party not seeking relief:
- 30 days after a request is received
- 90 days before end of discovery
EXPERTS
When does the party seeking relief have to make his expert available for depo?
If filing a report:
- Not until all other experts have been designated
If NOT filing a report:
- As soon as the expert has been designated
PRIVILEGES
Can a witness statement be work product?
No, even if part of the atty’s investigation
PRIVILEGES
Withholding statement includes what info?
What can the other party do in response? How soon do you have to respond to their response?
(1) Material information in response to a request IS BEING WITHHELD
(2) Identify WHICH REQUESTS asked for the privileged info
(3) The PRIVILEGES you’re relying on
They can ask for a PRIVILEGE LOG—describes the withheld information in detail
Have to respond within 15 DAYS
PRIVILEGES
Claw-back within how many days?
10 days
DISCOVERY
Documents you send in response to discovery requests are DEEMED AUTHENTICATED unless you do what?
Object to its authenticity within 10 days
DISCOVERY
What’s the difference between ROGs and depositions on written questions?
ROGs»_space;> PARTIES ONLY
Depo on written questions can be directed to non-parties
JURY DEMAND
Who can demand a jury?
How do you do it?
Any party
File written demand no later than 30 DAYS BEFORE TRIAL (but even if later than that, opposing party has to show unreasonable)
Pay the FEE, or affidavit of inability
Will remain on the jury docket even if the other party objects
What Rule is used for making agreements between the parties re trial, discovery, motions, etc.?
Rule 11 agreement
How do you preserver error for the court denying your objection for cause?
Use up your peremptory challenges
Specify objectionable jurors who made it on the panel that you would have struck if you hadn’t needed to use your peremptory challenge on the one earlier
How many peremptory challenges?
6 per side
Motion to equalize if it’s not even among different parties/sides
How many jurors have to agree for a verdict?
10/12
5/6
If less than 12 or 6 jurors remain, must be unanimous
What are the three motions that challenge legal sufficiency, and when do they arise?
Can the court make any of these on its own motion?
MSJ - before trial
DV - during trial
MNT
Needed for what kinds of arguments:
(1) Complaining about an error that occurred, which requires putting on evidence
(2) Complaint about FACTUAL SUFFICIENCY for a jury finding
(3) Verdict is against the OVERWHELMING WEIGHT of the evidence
(4) Damages are EXCESSIVE or INADEQUATE
(5) Incurable JURY ARGUMENT
ADR
Referral to ADR requires how many days’ notice?
10 days, and the objecting party must object within 10 days
ADR
Can the court sanction someone for not participating in good faith during mediation?
No—can sanction if they refuse to participate AT ALL, but not if they aren’t putting forth a good faith effort
PLENARY POWER
MNT is filed (timely, within 30 days of judgment), but the court never rules on it. When does plenary power end?
MNT denied by operation of law after day 75 (from the judgment).
Plenary power extends 30 days after a MNT has been denied.
So, plenary power extends to 105 days after the judgment.
