Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Texas Pretrial Procedure > Frank's Deck > Flashcards

Frank's Deck Flashcards

1
Q

When may a court exercise power over a defendant?

A

When the defendant is subject to the court’s personal jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What if a defendant is not subject to the court’s personal jurisdiction?

A

Does not need to obey court orders

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Why is reasonable notice through service of process required?

A

Due Process Clause of the Constitution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

To file an original petition, what must a person do?

A

Go to the court clerk and pay a fee and request the clerk to issue a citation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

How long does a defendant have to file an answer?

A

Must file before 10am on the Monday after the expiration of twenty days after the date of service of the citation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Methods of service of process

A
  1. Certified mail
  2. Hand delivery
  3. Publication
  4. “Leave with Service”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Who is authorized to serve process?

A

Sheriffs, constables, any other person authorized by law, or a person authorized by written order of the trial court can serve process.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Who cannot serve process? Will the process be void if it is served by an unauthorized person?

A

Any interested person

yes it will be void

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

May a person accept or waive process?

A

Yes, must be in writing and notarized by someone else than the attorney

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Who do you serve if suit against partnership?

A

Any partner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Who do you serve if suit against corporation?

A

Registered agent for service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Who do serve if suit against non-resident?

A
  1. In-state delivery if person comes to Texas
  2. Registered agent
  3. Certified mail
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Who do serve if suit against military personnel?

A

Serve them when they return, generally if they can’t make an appearance in court the proceeding will be stayed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if the plaintiff files before the SOL but affects service after SOL expires?

A

The date of process relates back to the date of filing if the plaintiff exercised due diligence in trying to locate and serve the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How is diligence determined?

A

By whether the plaintiff acted as an ordinary prudent person would have acted under the same or similar circumstances & was diligent up until the time the defendant was served.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What if a defendant responds to a citation that was improperly served?

A

Waives any defect in manner of service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

How do you challenge a manner of service of process without waiving service defects?

A

Motion to Quash

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does a person effectively admit to by failing to appear and answer?

A

Admits to all allegations in petition.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Three procedures to attack a default judgment?

A
  1. Motion for new trial
  2. The restricted appeal, formerly called the writ of error, to the court of appeals
  3. Bill of Review
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

If you want to file for a new trial to attack a default judgment, when do you have to file it by?

A

Within 30 days of judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

When must the court grant motion for new trial after ordering default judgment?

A
  1. The failure to answer was not intentional
  2. A meritorious defense to the plaintiff’s claim

AND

  1. The plaintiff will not be delayed or otherwise injured if the motion is granted
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

When must a person file a restricted appeal to attack a default judgment?

A

Within 6 months of judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Requirements for restricted appeal?

A
  1. Party did not participate in trial

2. Error must appear on face of record from trial court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is a bill of review and what must it show?

A

A new lawsuit filed within four years after the defendant knew or should’ve known of the default judgment.

Must show “sufficient cause” for the former judgment to be set aside and a new correct judgment substituted for it.

  1. default judgment was acquired by fraud
  2. meritorious defense
  3. freedom from negligence in permitting the judgment to be taken

if served need to show fraud and no negligence

if not served only needs to show no negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is a special appearance?

A

Gives defendant a chance to challenge jurisdiction by making a “special appearance” in court without waiving jurisdictional challenge.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What are the requirements for a special appearance?

A
  1. Must be made by sworn motion

2. Burden if on defendant to show “no contacts” and that it is not fair to be amenable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

When must a special appearance be filed?

A

Before any motion to transfer venue or any other pleading.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is the procedure for post special appearance?

A

If the trial court rules there is no personal jurisdiction over the defendant, then the case is dismissed and there is a “final judgment” - The plaintiff can appeal this

If the trial court rules there is personal jurisdiction over the defendant then a potential appeal would be interlocutory, if that appeal fails, defendant can appeal at final judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Can a special appearance be amended?

A

Yes, may be amended to cure defects

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What must the plaintiff plead in order to establish personal jurisdiction in Texas courts over a nonresident defendant?

A

Must plead a connection between the defendants alleged wrongdoing and the forum state.

31
Q

What is forum of non conveniens ?

A

Court grants motion to dismiss because there is a more convenient/practicable forum available in another.

32
Q

What will the court consider when determining whether to grant a motion to dismiss under the doctrine of forum of non conveniens?

A
  1. An alternative forum exists in which claim or action may be tried
  2. If alternative forum provides an adequate remedy
  3. If keeping the case in a TX court would work a substantial injustice to the moving party
  4. If the alternative forum, as a result of submission of parties or otherwise, can exercise jurisdiction over all defendants properly joined to the plaintiff claim.
  5. If stay or dismissal would result in unreasonable duplication of litigation
  6. Balance of the private interest of the state vs the public’s interest in transference
33
Q

What is the doctrine of comity?

A

The doctrine under which the courts of one state will recognize the laws of a sister state, and will extend immunity to a sister state as a matter of respect the net sister state is a party to the suit.

34
Q

Are forum selection clauses enforceable?

A

Yes and given much deference

35
Q

How is the amount in controversy calculated?

A

Determined by pleadings. Plaintiff is required to state amount in controversy but not required to plead amount with specificity.

36
Q

When can the amount in controversy be challenged?

A

At any time

37
Q

Do subsequent amendments to the amount in controversy effect the court’s jurisdiction?

A

No unless they involve damages which could have been claimed at the time of the original filing

38
Q

If the suit is only for non-monetary relief, where do you have to file?

A

District Court

39
Q

What effect does filing in the wrong trial court have on the statute of limitations?

A

Tolls it for 60 days of the date of dismissal, as long as it is properly refiled.

40
Q

What can a defendant do if the trial court erroneously assert jurisdiction after a ruling?

A

Defendant’s only remedy is an appeal after a final judgement. Standard defendant’s have no interlocutory appeal.

But govt units asserting immunity are allowed an interlocutory appeal by statute.

41
Q

Can a person waive subject matter jurisdiction?

A

No

42
Q

Can a court that lacks subject matter jurisdiction transfer the case to a court that does?

A

No

43
Q

When must a judge be disqualified?

A
  1. The judge has served as a legal rep in the controversy, or has previously worked with a legal rep to the present case
  2. Individually, or as a fiduciary, the judge has an interest in the subject matter in controversy - ex. the judge owns a share of stock in the company at issue in the case
  3. Either of the parties is related to the judge within the 3rd degree of affinity or consanguinity
44
Q

Are court costs included in the amount in controversy?

A

No

45
Q

What happens if a judge denies a disqualification motion?

A

It is immediately reviewable via mandamus

46
Q

How can the party appeal if a judge refuses to recuse himself?

A

Only after final judgment

47
Q

When must a judge recuse himself?

A
  1. The judges impartiality might reasonably questioned
  2. The judge has a personal bias or prejudice concerning the subject matter or a party
  3. The judge has personal knowledge of disputed evidentiary facts concerning the proceeding
  4. The judge or one of his former law partners has been a material witness concerning the proceeding
  5. The judge has expressed an opinion concerning the merits of the case while serving as a govt attorney
  6. The judge, his spouse, or minor child in his house has a fiduciary interest in the outcome of the case
  7. There are more but just go with your gut
48
Q

When must a motion to recuse be filed?

A

As soon as practicable after the movant finds out

Should not be filed within 10 days before trial

49
Q

What happens a movant fails to properly file motion to recuse?

A

It is waived

50
Q

Is an order granting a motion to recuse reviewable?

A

No

51
Q

Do all campaign doantions create a probability of bias requiring recusal?

A

No, must look at size of donation compared to total of donations and the effect of the contribution

52
Q

When must an objection to an assignment be filed?

A

Within 7 days of receiving actual notice

53
Q

Can a party object to an assignment of an active judge?

A

No, only to past or substitute judge

54
Q

When may an attorney withdraw from representing a party?

A

Only upon a written motion should good cause

55
Q

What must an attorney do if his motion to withdraw is granted?

A

He shall immediately tell the party of any settings or deadlines of which the attorney has knowledge

56
Q

Can a court impose more conditions upon granting leave to withdraw?

A

Yes

57
Q

How much time does a trial court have to rule on a motion?

A

A reasonable amount of time

58
Q

What is and how do you preserve error?

A

The record must show that the complaining party

  1. presented the matter to the trial court by a timely request
  2. states the grounds for ruling with sufficient specificity to make the trial court aware of the complaint
  3. That the trial court ruled (or failed to rule) on the matter
59
Q

Do the lack of subject matter jurisdiction or judicial disqualification require preservation?

A

No

60
Q

What can be appealed by interlocutory appeal?

A
  1. Orders on rulings on special appearance

2. Pleas to jurisdiction

61
Q

What is a writ of mandamus?

A

An original proceeding in the appellate court that seeks an order compelling a state official (such as a trial judge) to refrain from acting contrary to law.

62
Q

What must the party show to get a writ of mandamus?

A
  1. Clear abuse of discretion or legal error

2. No adequate remedy by appeal

63
Q

What is abuse of discretion?

A

If the trial court reaches a decision so arbitrary and unreasonable as to amount to clear and prejudicial error of law

64
Q

Forum vs. venue

A

Forum refers to a sovereign or state. Venue refers to a county.

Forum selection clauses have always been presumptively valid while only until recently were venue selection clauses held to be valid

65
Q

How does a party waive the benefits of a forum selection clause?

A

By substantially invoking the judicial process to the other party’s detriment or prejudice

66
Q

Does simultaneously filing an answer and motion to transfer venue with a motion to dismiss substantially invoke the judicial process?

A

No

67
Q

A trial court abuses its discretion in refusing to enforce a forum selection clause unless the party opposing enforcemnet of the clause can clearly show what?

A
  1. Enforcement would be unreasonable or unjust
  2. The clause is invalid for reasons of fraud or overreaching
  3. Enforcement would contravene a strong public policy of the forum where the suit was brought
  4. The selected forum would be seriously inconvenient for trial
68
Q

What does subject matter jurisdiction determine?

A

It determines which court in the hierarchy of TX courts is authorized to hear a particular case.

69
Q

What does personal jurisdiction determine?

A

It determines whether the Texas state courts (as a whole) have power over a particular defendant.

70
Q

What does venue determine?

A

Venue determines which of the 254 Texas counties are permissible (or mandatory) locations for litigation

71
Q

How is residency established?

A

Person has

  1. a fixed place of abode
  2. occupied or intended to be occupied consistently over a period of time
  3. permanent rather than termporarily
72
Q

Can a defendant have more than one residency?

A

Yes

73
Q

What is a domicile?

A

a permanent residence

74
Q

What is a principle office?

A

Where the decision makers conduct the daily affairs of the company

Texas Pretrial Procedure (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions