Post Trial Motions - Part B Flashcards
what must be proved for a new trial based on after or newly discovered evidence? (5)
-evidence was discovered after end of trial
-evidence is material and is likely to produce an opposite result on the merits
-evidence is not cumulative, corroborative, or collateral
-evidence could not have been discovered before trial with the exercise of reasonable diligence, and
-Evidence can be produced at a new trial
what should this request for a new trial be accompanied with?
an affidavit setting forth what efforts were made to get the evidence before trial and why it was not available
in how long should a post trial motion for JNOV or new trial be made?
within 21 days of final order (Rule 1:1)
what are the exceptions to Rule 1:1? (4)
trial court can grant relief from a default judgment after the usual 21 day limit in the following instances:
-fraud on the court
-a void judgment
-proof of an accord and satisfaction, or
-proof that the defendant at the time of service or process or entry of judgment was on active duty in the military service of the United states (fraud on court must be made within 2 years from default judgment; no time limit for other grounds)
what can a judge correct whether a def was in default or not?
clerical errors in a final order
what is a bill or review?
a common law equitable proceeding relating to a final order
what (2) alternative grounds can a bill of review be brought on?
-an error as a matter of law is obvious on the face of the record (can file without getting permission of the court), or
-newly discovered evidence (permission of court is required)
when must a bill of review be filed?
must be filed within 6 months of entry of the final order
if there is no final order, then Bill of Review cannot be used
what is a suit to enjoin the enforcement of (or set aside) a judgment?
involves fraud or mistake that results in a defendant being lawfully served but not getting actual notice of suit (example: son forges dad’s signature on note at a loan company to buy car, does not make payments and dad is sued; son was at home when papers were served but did not give papers to dad, and then dad was found in default cause he had no idea)
how to prove a suit to enjoin the enforcement (or set aside) a judgment? (5)
-judgment was ought not, in equity and good conscience, be enforced
-there was a good defense to the alleged cause of action on which the judgment was found
-fraud, accident, or mistake prevented the defendant from obtaining the benefit of his defense
-the absence of fault or negligence on the part of defendant, and
-no adequate remedy at law
what are the (2) things the Uniform Arbitration Act state?
-agreements to arbitrate are generally enforceable
-decision of arbitrator is generally binding (but there are certain circumstances that a party may ask court to vacate arbitrator’s award)
what are the grounds for vacating an arbitrators award? (5)
-award obtained by corruption, fraud, or other undue means
-partially on the part of the arbitrators,
-arbitrators exceeded powers
-improperly refused to postpone the hearing upon sufficient cause being shown therefore
-there was no arbitration agreement (and the party made an objection to this)
what the (3) grounds for modifying an arbitrator’s award?
-evident of miscalculation of damages or mistake in the description of any person, thing, or property referred to in the award
-arbitrators made an award not submitted to them, or
-the award is imperfect in a matter of form, not affecting the merits of the case
