Civil Procedure Flashcards
Trial courts in Texas
- District Court
- County Court at Law
- Constitutional County Court
- Justice of the Peace Court
District Court Amount in Controversy
At least $500.01
County Courts Amount in Controversy
$200.01-$200,000
Constitutional County Court Amount in Controversy
$200.01-$10,000
Justice of the Peace Court
Up to $10,000
Special Exception
Defendant may ask plaintiff to clarify pleading, including in respect to the maximum amount of damages. This is about defects apparent on the face of the pleadings.
Plea to the jurisdiction
Filed by defendant if the amount in controversy is outside the jurisdiction of the court.
Also used to challenge subject-matter jurisdiction (justiciability, governmental immunity from suit, or another Texas trial court has exclusive jurisdiction)
Intermediate Appellate Courts
There are 14 in Texas.
Jurisdiction over civil cases where the amount in controversy or judgment is over $100 is mandatory.
Notice of Appeal Requirements
1) Trial Court’s name and case’s trial court number and style;
2) Date of the judgment or order appealed from
3) A statement that the party desires to appeal
4) Court to which the appeal is taken; and
5) The name of the parties filing the notice of appeal
Petition for review
Request to the Texas Supreme Court to review an appeal.
General Venue Rule
All lawsuits must be brought in the county where:
1) All or a substantial part of the events that gave rise to the action took place;
2) The defendant resided at the time of the event;
3) The defendant’s principal office in the state (decision-makers conduct the daily affairs);
4) If none apply, county where the plaintiff resided at the time of the event.
Grounds for a Motion to Transfer Venue
1) Venue improper
2) Convenience of justice
3) Parties agree
4) Local prejudice makes it unfair for the case to be heard in the county of suit (motion to change venue)
Venue Transfer Procedures
- Must be filed by 20 days of service of process
- Burden on plaintiff to establish prima facie case that venue is proper.
- Each party is entitled to at least 45 days notice of the hearing.
- Plaintiff’s response and evidence must be filed at least 30 days before.
- Defendant’s additional reply and evidence must be filed at least 7 days before.
Must include the county of proper venue, the legal and factual basis for the transfer, and may be accompanied by supporting affidavits.
Service of Process Procedure
1) Petition
2) Citation (clerk of the court)
3) Served by an authorized person/ method
4) Return of service (process server)
Methods of Sservice
1) Hand delivery
2) Certified mail with return receipt requested;
3) Other means by court order
Answer Deadline
Defendant must file an answer by 10:00 a.m. on the Monday next following the expiration of 20 days after the date of service.
Default Judgment
1) Plaintiff files for default judgment
2) If plaintiff’s damages are unliquidated, will have to prove those damages in a hearing. If liquidated or clear, clerk may enter the judgment.
Serving on a corporation
1) Registered agent
2) president
3) vice-president
Serving Process on Texas Secretary of State
Plaintiff’s petition must allege that:
1) Secretary of State is the agent for service on the nonresident defendant;
2) Defendant engaged in business in Texas
3) Nonresident defendant does not maintain a regular place of business in Texas
4) Nonresident defendant does not have a registered agent in Texas
5) Lawsuit arises from the nonresident’s business in Texas.
- Whitney certificate certifies that the Secretary of State forwarded the process to the defendant.
Special appearance
-Must be made by sworn motion
Evidence considered:
- Affidavits
- Stipulations
- Pleadings
- Results of discovery;
- Oral testimony
Minimum Contacts (Personal Jurisdiction) Test
1) No purposeful availment
2) Specific jurisdiction - whether the cause of action arises from or relates to the defendant’s contacts with Texas
3) General jurisdiction - whether the non-resident defendant had continuous and systematic contacts with Texas
4) Fair play and substantial justice - whether there is a violation of traditional notions of fair play and substantial justice.
Slotting damages in original pleading
- only monetary relief of $100,000 or less
- non-monetary relief and monetary relief of $100,000 or less
- monetary relief $100,000
Defenses that must be specially denied
1) legal capacity to sue or be sued
2) Denial that the party is incorporated or is a partnership
3) absent party must be joined
4) denial defendant or a person under its authority executed a written instrument that is subject of the suit;
5) denial of the genuineness of an endorsement of a written instrument
6) that the written instrument is without consideration
7) denial of a suit on an account
8) affirmative defenses
Compulsory Counterclaims
1) Within court’s jurisdictional limits;
2) not subject to a pending action;
3) claim is mature and owned by defendant at the time of filing the answer;
4) same transaction and occurrence;
5) against the opposing party in the same capacity; and
6) does not require third-parties over whom the court cannot acquire jurisdiction
Responsible third party
Designated as such in a suit but not joined.
Requires a motion for leave to designate the responsible third party as such.
Plea in abatements
This is about defects that are not apparent on the face of a pleading but may be proven by extrinsic evidence (e.g., a case is already pending in a different court.
Amending Pleadings
- Matter of right before the deadline in trial court’s scheduling order (at least seven days before trial if no scheduling order controls)
- Trial amendment to amend during trial.
Trial court should not permit if the amendment would surprise or prejudice the opposing party.
Sanctions for frivolous pleadings
- Paying opposing party’s attorneys’ fees and expenses
- Excluding evidence
- Striking pleadings
- Ordering payment of a monetary penalty; and
- Dismissing party and/or case
Baseless Cause of Action
Motion to dismiss a cause of action on the ground that there is no basis in law or fact.
- States it is made pursuant to the specific baseless cause of action rule;
- Identify each cause of action it applies to; and
- States specifically the reasons the cause of action has no basis in law, fact, or both.
- Filed within 60 days after the first pleading containing the challenged cause of action.
- Court must grant/deny within 45 days.
- Prevailing party receives all costs and reasonable attorney’s fees.
Severance
1) Controversy involves more than one cause of action
2) Severed causes would be the proper subject of a lawsuit if independently asserted
3) Severed causes do not involve the same or identical facts/issues
Motion for separate trials
Unfair to properly join in the same trial - same lawsuit, but different trials.
Non-suit
Must be done before the plaintiff presenting its case-in-chief. Operates as a dismissal without prejudice.
Permissible forms of discovery
- Requests for disclosure
- Requests for production and inspection of documents and tangible things
- Requests and motion for entry upon and examination of real property
- Interrogatories to a party
- Requests for admission
- Oral or written deposition
- Motions for mental or physical examinations
Discovery Control Plan Level 1
- $100,000 or less or divorces of $50,000 or less
- Each party has no more than 6 hours for depositions
- No more than 15 written interrogatories
- No more than 15 written requests for production
- No more than 15 written requests for admissions
Discovery Control Plan Level 2
- Each side has no more than 50 hours in oral depositions
- No more than 25 written interrogatories
- Unlimited requests for production
- Unlimited requests for admission
Deadline to respond to written discovery requests
- 30 days after service of requests
- 50 days if prior to defendant’s answer due
Discoverable Items
- Names of the parties
- Names, addresses, and telephone numbers of potential parties
- Legal theories and factual bases of claims and defenses
- Amount and method of calculating economic damages
- Name, address, and telephone number of persons that have knowledge of relevant facts and a brief statement of each person’s connection with the case
- Basic information regarding any testifying expert
- Any indemnity or insurance agreements
- Any settlement agreements
- Any witness statements
- Medical bills/records for a personal injury lawsuit
- Name, address, and telephone number of any responsible third party
Withdrawing admission
- Move to withdraw the admission
- Show good cause
- Show that the opposing party will not be unduly prejudiced by permitting withdrawal
Failure to list a witness as a trial witness
Won’t be allowed to testify, unless
- good cause to allow the testimony
- will not unfairly surprise or prejudice other parties
Notice of deposition
- Must be served a reasonable time before the deposition is taken
- Name
- Time/place of deposition
- Alternative means of conducting it
- Any additional attendees
Location of deposition
May take place in:
- County where the plaintiff resides;
- County where the witness is employed or transacts business;
- County of suit if witness is a party (or a corporate representative of a party);
- County where the witness was served with a subpoena, or within 150 miles of the place of service, if the witness is not a resident or a transient person;
- Any other convenient place directed by the court
Snap-back provision
A party who inadvertently discloses privileged information won’t lose it if the producing party identifies the material produced and claims the privilege within 10 days that the production was made.
Asserting a privilege
- Withholding statement
- Request a privilege log
- Serve privilege log to allow counterparty to have sufficient information to know whether to challenge
Designation of expert
- For party claiming relief, at least 90 days before the end of discovery
- Other parties, at least 60 days
Expert witness discovery tools
- Request for disclosure
- Oral depositions
- Expert witness report
Daubert/Robinson motion
Motion to exclude the expert witness testimony
Jury Demand
At least 30 days before the date the trial is set:
1) make a written request for a jury trial
2) Pay the jury fee
Trial date notice
At least 45 days
Grounds for a motion for continuance
- Attorney has a conflicting trial
- Attorney recently withdrew as counsel of record
- Material witness is unavailable
- Validly subpoenaed witness failed to appear
- Party or attorney is serving as a Texas legislator
Witness unavailable to testify at trial
- Testimony is material and not available from another source
- Proof of due diligence to procure testimony
- What witness is expected to prove
- Continuance sought not for delay but for justice
Types of summary judgment motions
1) Traditional (movant conclusively establishes that there is no genuine issue of material fact and is entitled to judgment as a matter of law. Burden on movant)
2) No evidence (“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)
Summary judgment requirements
- Evidence must be admissible
- Motion must be set for hearing
- Motion and any supporting evidence must be filed 21 days before the hearing date;
- Responses must be filed at least 7 days before the hearing
Number of jurors selected
12 for district court
6 for county court
Challenge the array
Challenge to the procedure in which jurors are selected
Challenge for cause
- Witness
- Interest in the case
- Related to a party in the 3rd degree
- Served as a juror in an earlier trial of the same case
- Bias or prejudice regarding the case
Preserving error on adenial of a challenge for cause
1) challenge for cause and get the adverse ruling
2) inform court that due to refusal, the party will exhaust its peremptory strikes
3) identify the specific objectionable panelist who will remain on the jury list
4) Request the trial court to compensate by either reversing or granting an extra peremptory strike
5) objectionable juror must actually serve
Number of peremptory strikes
- Two-party case, each is entitled to 6 in district court and 3 in county court
- Multiple parties, each side gets the same number unless there is antagonism within one of the sides. In that case, each member is deemed a separate “side” but the original side with less may request an equalization.
The Rule
-Swear in witnesses and instruct them not to 1) converse with other witnesses, 2) be in the courtroom, or 3) read any report or comment about the case.
Exemptions:
1) Parties
2) Designated corporate representative
3) Person whose presence is essential (e.g., expert)
Jury charge procedure
1) Pretrial submission of proposed charge
2) Informal charge conference
3) Proposed charge given to attorneys
4) Formal charge conference
5) charge read to jury before closing arguments
6) Supplemental instructions after jury deliberation
Test for preserving error in jury charge
Whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling
Omitted Elements
- If parties do not object, the trial judge may make an express finding.
- If first brought up on appeal, appellate court may deem a finding
Number of jurors to render a valid verdict
10/12 in district
5/6 in county
Dynamite charge
- Urge jurors to reach a verdict
- Tell them not to surrender their conscientious views unless they are convinced otherwise, but be open to any reasonable argument
- Tell them a retrial may be necessary if a verdict not reached
Challenges to the legal sufficiency of the evidence
1) Summary judgment
2) Motion for directed verdict
3) Objection to the jury charge
4) Motion for judgment notwithstanding the verdict
5) Motion to disregard jury findings
6) Motion for a new trial
Challenges to the factual sufficiency of the evidence
1) Motion for a new trial (standard is whether the weight of the evidence shows that the jury’s determination was unjust and manifestly wrong)
2) Motion for remittur
Plenary power of court over judgment
1) 30 days if no motion for a new trial
2) Additional 30 days from the date a motion for a new trial is overruled (deemed overruled after 75 days)
Interlocutory Appeal
1) Orders appointing a receiver or trustee
2) class action certification
3) granting or denying temporary injunctive relief
4) Official-immunity summary judgment denial
5) denial of a free speech summary judgment
6) grants or denies a special appearance
7) grants or denies a plea to the jurisdiction by a governmental unit
8) related to expert witness reports in health care liability claims
9) denies a motion to dismiss an asbestos or silica-related claim
Writ of mandamus
Seeking an interlocutory appeal not as of right because 1) clear abuse of discretion and 2) no adequate appellate remedy.
Appellate deadlines
- 30 days from date of final judgment
- 90 days from date of final judgment if there is a motion for a new trial or motion to modify judgment
- 15 days from order for an interlocutory appeal
- restricted appeal (party in the suit, did not participate at trial, clear error), 6 months
Objections in deposition
May only be made to: 1) leading questions, 2) the form of the question or 3) nonresponsive answers.
Subsequent remedial measures
Cannot be presented into evidence to prove negligence, culpable conduct, defective product or design, or the need for a warning.
Prior statements in a deposition in civil suit
Admissible, regardless of availability of the witness .
Asserting corporate status
If an entity is sued in the wrong capacity, this error must be specifically raised in the answer to put the burden of proof on the plaintiff. The defendant must file a special sworn denial asserting that it is incorporated and that the plaintiff sued the defendant in its wrong capacity.
Third party complaints
Must be filed by a defendant and served on the third party defendant within 30 days of filing the answer.
