Texas Civ Pro and Evidence Flashcards
After Plaintiff files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer?
Plaintiff must serve his PLEADING, including a CONCISE STATEMENT of the cause of action and any supplemental materials, on the defendants, and P or his attorney must SIGN the pleading. In addition, P must REQUEST a CITATION to be issued by the CLERK of the court and the citation must also BE SERVED on the defendants.
What pleading should D file to contest the filing of the suit in a different county and when should the pleading be filed?
Before, or concurrently with, any other pleading or motion filed in the case, Defendant must file a MOTION TO TRANSFER VENUE stating the county that has proper venue. It must be filed within 20 DAYS OF SERVICE of process, must include the legal and factual BASIS for the transfer, and may be accompanied by supporting AFFIDAVITS.
An incident occurred in Texas and all parties are Texas residents. D alleges that the district court has no jurisdiction over the parties and the subject matter of the suit. D moves the court to dismiss the case for lack of jurisdiction. How should the court rule?
The court should deny the motion because the incident occurred in Texas, and Texas district court has personal jurisdiction over the parties (all are Texas residents) and subject matter jurisdiction lies in Texas district court unless P is suing for $500 OR LESS.
Trey’s original petition is very broad and makes general allegations against both defendants. What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations?
The defendants should file a SPECIAL EXCEPTION in writing, pointing out the particular pleading objected to and its specific insufficiency. If the exception is granted, P must amend his pleading to SPECIFICALLY PLEAD the facts upon which he relies to support his claim, or risk the claim being struck or the case being dismissed.
D is actually a Texas corporation and not a sole proprietorship as pleaded by P. How should D give notice to the parties and the court that it is a corporation and intends to seek the protection of that status for its shareholders?
D should file a VERIFIED PLEADING stating that it is a corporation and not a sole proprietorship, and that it was sued in the wrong capacity. The pleading must be verified by AFFIDAVIT.
D believes P’s suit is barred by the statute of limitations. D does not want to disclose this defense for strategic reasons. Must D raise this issue before the case goes to trial and if so, how should D assert the defense of limitations?
D must raise the issue of the statute of limitations before the case goes to trial. The statute of limitations is an affirmative defense that MUST BE RAISED IN THE ANSWER or it is deemed waived. However, the answer can be AMENDED to add the affirmative defense without leave of court up to SEVEN DAYS BEFORE TRIAL.
What document should a party file to keep a particular matter from being presented to the jury?
D should file a MOTION IN LIMINE and REQUEST A HEARING on whether the court should exclude mention of the matter in the proceedings without first approaching the bench. D should OBJECT again if the matter arises during trial in order to preserve error for appeal.
Should P’s counsel attempt to offer the fact of the post -accident re-location of the ice machine into evidence, what substantive objection should D make regarding this evidence?
If P’s counsel attempts to offer the fact of the post-accident re-location of the ice machine into evidence, D should object, citing the rule that SUBSEQUENT REMEDIAL MEASURES are not admissible to prove negligence, culpable conduct, defective product or design, or the need for a warning.
In his first amended original petition, P alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against Ice due to its high employee turnover rate. Discovery is complete and P has produced no evidence to support the negligent hiring, staffing, or supervision claims. D fears this pleading will be prejudicial to its defense. What pleading should Ice file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration?
D should file a NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT on the issues of negligent hiring, staffing, and supervision. The court must grant the motion unless P produces evidence raising a genuine issue of material fact.
P requested a jury trial and paid a jury fee. D requested a jury trial. P filed a motion to remove the case from the jury docket and place it on the non-jury docket. D objects to the motion. How should the court rule?
The court should rule in favor of D and keep the case on the jury docket because once P has made a jury demand, he cannot withdraw the demand over the defendants’ objections.
The parties attend a mediation conference. The mediation fails. P subpoenas the mediator to testify about the information discussed in the mediation. The mediator files a motion to quash the subpoena. How should the court rule?
The court should quash the subpoena because information exchanged in mediation is generally CONFIDENTIAL and INADMISSIBLE in Texas, unless it is used to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.
On the second day of trial, one of the jurors is seriously injured and can no longer serve as a juror. There are no alternate jurors. D asks the court for a mistrial. P opposes the motion for mistrial. How should the court rule?
The court should rule in favor of P, because a verdict may be rendered in any case by at least 10 members of an original jury of 12 in district court.
In a video deposition, a D employee testifies that he saw P spill a soda, step in the soda he spilled, and fall. At trial, D offers video clips of this deposition testimony. P’s attorney objects to the video clips because D has not shown that the witness is dead or is otherwise unavailable to testify in person. How should the court rule?
The court should overrule P’s objection because the deposition was taken in the SAME CIVIL PROCEEDING and is admissible for its truth. D does not need to show that the declarant is unavailable for the video deposition to be admissible.
D calls P’s wife as an adverse witness. Out of the presence of the jury, D’s lawyer tells the court that he intends to ask the witness if P told her that he fell because he slipped in the soda. P objects to this line of questioning. How should the court rule?
Communications made between spouses while they were married are privileged if the communications were made in complete confidence and were intended to be secret between the spouses. P invoked the privilege by objecting to the line of questioning, and the court should rule in P’s favor.
During trial, the court refuses to admit into evidence P’s unauthenticated medical bills and wage statements. P then offers his own sworn answers to interrogatories to authenticate and prove his medical expenses and lost wages. D objects to this evidence. How should the court rule?
The court should rule in favor of D because the ANSWERS TO INTERROGATORIES MAY ONLY BE USED AGAINST THE RESPONDING PARTY. Thus, P cannot use his own answers to interrogatories to authenticate his own evidence.
