Civil P & E Flashcards
PJ - Minimum Contacts
- Foreign corp. purposely entered into a K w/TXP
- COA arose from such transaction
- Assumption of justice does not offend traditional notions of fair play and substantial justice
*To challenge: File special appearance, before any other motions/pleadings; can be filed contemporaneously in a consolidated response w/o waiver
Motion to Transfer Venue
- Need support from own affidavits
- 3 affidavits of credible persons who are residents of the county of the suit asserting prejudice against D (i.e. they cannot obtain a fair and impartial trial).
*NOTE: If not timely filed = waived
Attack Default J
File Equitable Motion for New Trial
- File w/in 30 days
- Failure to answer was not intentional or result of conscious indifference but due to mistake/accident
- Has a meritorious defense AND
- The granting of the motion will NOT occasion any delay or otherwise work an injury to the P
Requirements for Bringing Suit on Sworn Acct (i.e. items purchased on credit and not yet paid)
Allege by sworn affidavit:
- The claim is for liquidated money on a written K where a systematic record has been kept
- The claim is w/in the knowledge of the affiant, just and true, and is due AND
- All just and lawful offsets, payments, and credits have been allowed
** A party resisting such claim must file a written denial under oath (NOT a general denial) in order to offer evidence in denial of the claim.
To adjust level of discovery
Seek a different discovery plan and have it tailored to the level of discovery the person believes is adequate
Three items that must be provided if requested under Rule 194 Request for Disclosure
- Name, address, and phone number of any potential party
- Amt and any method of calculating economic dogs
- Correct names of the parties to the lawsuit
- Name addresses and phone number of anyone who might be designated as a responsible 3P
- The name, address, phone of anyone w/relevant facts along with a brief description of each person’s connection to the case
- Indemnity and insuring agreements
- W statements
The response is due 30 days after service upon the P or 30 days after service on a D unless D is served before the time to answer and in that event he has 50 days (carrot).
Time Limtis for a Depo have expired
A party or W may suspend the oral deposition (i.e. the deposition of a W is lasting 60 hours - should only lat 40)
Want to gain entry to a property for discovery purposes
File Motion/Request for Entry Upon Property. (Party is allowed to inspect, measure, survey, photo, or sample the property in question)
Review of report by consulting expert
Once an testifying expert reviews a report by a consulting expert, the report becomes discoverable (if the expert is solely a consultant, the report does not need to be produced)
SJ
May be filed after an adequate time for discovery has elapsed. Must state the element for which there is no evidence. Burden shifts to the non-motioning party to raise a genuine issue of a material fact.
*NOT enough ev. - cf. DV —> Too much ev. favoring one side
Number of Preemptory Challenges in DC
6 - Each D is entitled to 6 if the D is antagonistic on any issues submitted to the jury. If not - they share
Violation of MIL
- NOTE: Prelim ruling
- Must object when made at trial to preserve error & obtain a ruling by the court disallowing the evidence & have the judge properly instruct the court to disregard the statement
If party fails to produce evidence that is under her control, what remedies are available to the requesting party?
- Disallow evidence or possibly dismiss the case
- Sanction
- Instruct the jury that if the party who fails to produce evidence under her control and is reasonably available to her and not to the adverse party that it may infer the evidence is unfavorable to the party would could have produced and did not
No evidence to support final j - Request?
JNOV - No time limit but may before filed after court has entered judgment and before it is final
*Challenges the legal sufficiency of the evidence supporting the verdict
Timing for MNT
30 days after J is signed by TC
Plenary Power After MNT
When MNT is filed, the court’s PP over the J is extended for 30 days after all such timely filed motions are overruled either by written motion or operation of law (90 days) + 30 days = 120 days
What to plead to contest venue
- County of suit is not a county of proper venue or a mandatory provision applies
- Venue should be transferred to another specified county of proper venue
*Court may consider affidavits and all forms of discovery on on the motion BUT D does not have to file any evidence
What you must establish for a default J
1) Cout has SMJ
2) Court has PJ by proper service of process
3) A COA exists
4) The time to answer has expired
5) The return of citation has been on file 10 days exclusive of the day of filing the citation and the day of default J
- D admits all issues of liability, but not liquidated dmgs - Ps will have to prove those to obtain a default J
Four things that must be disclosed on a request for disclosure w/o providing interrogatories or requests for poduction
1) Correct names of the parties to the lawsuit
2) Name, Addresses & Phone number of any potential parties
3) The amount and method of calculating economic damages
4) Witness statements
*Ps have 30 days to respond from the date of service of process
Time to amend response w/supplemental/changed info
An amended response made less than 30 days before trial is NOT prompt
How to obtain the return of privileged communication
D must w/in 10 days or shorter time by court order after discovering that such production was made, amend the response, ID material produced and state privilege asserted
Objections at Depo
“Leading, Form, Nonresponsive”
*Anything else may result in costs and other discovery sanctions. Argumentative and suggestive objections are grounds for termination of the repo as well as the award of costs and other sanctions. (Likely the objecting party will have waived objections).
To inspect an item what type of discovery request
Request for Production and Inspection & specify the items to be produced and inspected either by individual item or by category.
Must state: reasonable time and place for production and the means, manner and procedure for testing
Can mediator be compelled to testify
No - ADRA does not allow - unless parties agree otherwise