Texas Civil Procedure

Question 1

To avoid default judgment in a district or county court a written answer must be filed when?

Answer 1

By 10 AM on the first Monday after the expiration of 20 days from the date the defendant was served with process.

Question 2

When must a special appearance to challenge personal jurisdiction be filed?

Answer 2

A special appearance must be filed prior to or simultaneous with any pleading or motion.

Question 3

When will the court grant a change of venue when the original venue is proper?

Answer 3

If the court finds: (i) maintenance of the action in the county of the suit would work an injustice to the movant, considering the movant’s economic and personal hardship; (ii) the balance of interests of all parties predominates in favor of the action being brought in the other county; and (iii) the transfer of the action would not work an injustice to any other party.

Question 4

After the court sustains a special exception and the Plaintiff does not amend their pleadings what may the court do?

Answer 4

Dismiss the case

Question 5

What does a Plea in Abatement address?

Answer 5

Defects in the pleadings.

Question 6

What must a defendant do to add a third party to a suit who is liable to the plaintiff for all of the damages?

Answer 6

Within 30 days of filing an answer D must file a Third-Party Petition to enjoin the third party

Question 7

When is a Expert Witnesses work product the subject of discovery?

Answer 7

Discovery of a consulting expert’s work product is permitted if the expert’s opinions have been reviewed by an expert who will testify at trial.

Question 8

If the cumulative duration of oral depositions is exceeded, what may a witness do?

Answer 8

A witness may suspend the deposition if the time limitation has expired.

Question 9

Under what circumstances may a defendant call to testify at trial a witness whose identity had not been disclosed in response to discovery?

Answer 9

The defendant must show either good cause for the nondisclosure or that the opposing party will suffer no prejudice or surprise.

Question 10

If a Defendant is served with a discovery request prior to submitting his initial answer how long does D have to respond to the discovery request?

Answer 10

50 Days.

Question 11

When must a protective order be issued for witnesses named in a discovery request?

Answer 11

Within 3 days of being served notice for the deposition by counsel for the opposing party.

Question 12

When must a deposition take place after notice has been properly served.

Answer 12

30 days.

Question 13

When is a formal settlement offer admissible?

Answer 13

Is admissible only for the purpose of enforcing the settlement agreement or obtaining litigation costs.

Question 14

What must counsel do to preserve a Motion in Limine when it is ruled against?

Answer 14

Must approach the judge outside the presence of the jury to get a final ruling, then submit an offer of proof or bill of exceptions.

Question 15

What must the Defendant show to obtain a Judgment Notwithstanding the Verdict when the court rules in favor of the plaintiff and D has raised an affirmative defense

Answer 15

Defendant has conclusively proved all elements of the defense, and Plaintiff has failed to produce any evidence on his claim.

Question 16

When will the trial court lose plenary power over the case, assuming it does nothing with the motion?

Answer 16

105 Days

Question 17

How many jurors must agree for a verdict to be valid?

Answer 17

The verdict in a civil case ordinarily may be rendered by 10 members out of 12 (or 5 out of 6 jurors), but exemplary damages may be awarded only if all jurors agree on the verdict and the amount of exemplary damages.

Question 18

What are the specific limits of the amount in controversy?

Answer 18

1. Justice Courts: $10K
2. Constitutional County Courts: $200.01-$10,000
3. County Courts at Law: Jdx $200.01-$200,000 unless changed for a specific court by statute
4. District Courts: JDX when the amount in controversy exceeds $500. There is no upper limit to the jurisdictional amount in District Court

Question 19

When may a pleading be amended?

Answer 19

No less than 7 days before trial

Question 20

What must be plead in order to bring a suit on the account?

Answer 20

1. A verified pleading on a sworn account. The verified account may be relied on to establish a prima facie right of action. The petition must contain:
   a) An itemized statement of the goods of the goods or services sold.
   b) Reveal offsets to the account; AND
   c) Be supported by an affidavit stating that the claim is just and true and within the affiant’s knowledge.

Question 21

What constitutionally adequate grounds for service based on Personal JDX?

Answer 21

1. Physical presence of the defendant in the forum state
2. Defendant is a domicilliary of the forum state
3. The defendant consents to the state’s exercise of personal jdx
4. The defendant has minimum contacts with the forum state.

Question 22

What are the elements to satisfy minimum contacts?

Answer 22

1. The non-resident defendant or foreign corp. must purposefully do some act or consummate some transaction in Texas.
2. The cause of action must arise from, or be connected with, this act or transaction; and
3. The assumption of jdx by Texas must not offend traditional notions of fair play and social justice.

Question 23

When is a company subject to General JDX?

Answer 23

When the Corp. has continuous and systematic contacts with the forum.

Question 24

What is the Texas distinction for substitute service of process?

Answer 24

Federal requires service to be done with someone at least 14 years or older. Texas requires the substitute to be 16 years old.

Question 25

Who is served when a foreign corp. fails to name a registered agent?

Answer 25

The Secretary of State

Question 26

How may service be accomplished?

Answer 26

1. Personal Service
2. Service by Substitution
3. Citation by publication–if sworn by P or P’s attorney that diligent efforts have been made, but P cannot locate D. The clerk of court issues service by publication
4. Secretary of State for foreign corps. who failed to designate a registered agent.
5. Texas Long Arm Statute

Question 27

What is required to achieve service through the Long Arm Statute?

Answer 27

Defendant may be served through the Secretary of State if four elements are satisfied:

1. D must be a nonresident of Texas
2. Has no regular place of business or person in charge in Texas
3. has no registered agent for service of process in Texas AND
4. D has been “doing business” in Texas either by entering into a contract by mail or otherwise with a Texas resident to be completed within the State of Texas.

Question 28

Once served, what are the defendant’s options for Responding to the service?

Answer 28

1. Pre-Answer Pleadings. The defendant can file pre-answer pleadings known as dilatory pleas that delay or defeat an action without determining the merits of the action. Dilatory pleas include special appearances, motions to transfer venue, and other pleadings.
2. Answer. The defendant can file an answer raising matters known as pleas in bar that seek a determination of the merits of the action. These pleas include general denials, special denials, and affirmative defenses.
3. Consolidated Response. The defendant can file a single consolidated pleading raising both dilatory pleas and pleas in bar. Problems result when the defendant fails to follow the due order of the Pleading Rule.

Question 29

What should be filed to challenge a court’s exercise of personal jdx?

Answer 29

A Special Appearance

Question 30

What should be included in a Special Apperance Pleading?

Answer 30

1. Should assert that D is not amenable to service of process and deny the plaintiff’s allegations.
2. The pleading must be verified; and
3. The forms of evidence that may be presented to the court in deciding jdx are all discovery, affidavits, and oral testimony.

Question 31

What type of order is a granting or denial of a special appearance?

Answer 31

Interlocutory Order that may be appealed immediately.

Question 32

What are the general rules of Venue?

Answer 32

1. Priority is given to the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
2. If the defendant is a natural person, in the county of the defendant’s residence at the time the cause of action occurred.
3. The county of the Corp’s principal place of business
4. If none of the above are available, THEN the county upon which the Plaintiff resides.

Question 33

What is an example of a mandatory venue?

Answer 33

Actions involving land must take place in the county upon which the land in dispute is located.

Question 34

What are two examples of permissive venue?

Answer 34

1. Breach of Warranty claim—allows for place of P’s residence
2. Written Contract—The venue agreed to in the contract

Question 35

What must be included in a proper motion to transfer?

Answer 35

1. State that the venue is not Proper where the suit is filed.
2. Deny any venue facts in plaintiff’s petition which defendant wishes to contest.
3. Name the county to which transfer is sought and plead venue evidence that support the county of requested transfer as proper
4. Identify the section of the state statute making the requested county proper
5. Request a transfer to the specified county.

Question 36

What is the difference between a motion to transfer venue (MTV) and a motion to change venue?

Answer 36

MTV asks whether the trial court is a proper venue, the motion to change asks if there is prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial.

Question 37

How long does the defendant have to file an answer following process of service?

Answer 37

Must file an answer by 10:00am on the first Monday after the expiration of 20 days from the date the defendant was served with process.

Question 38

What is the proper Due Order or Pleading?

Answer 38

1. Special Appearance first to file to challenge the court’s exercise of personal jurisdiction.
2. A Motion to Change Venue should be filed next to challenge plaintiff’s choice of county for filing
3. Special Exception should be filed to challenge the generality of the pleadings.
4. Special Denial should be filed to deny all plaintiff’s allegations.

Question 39

What is a Special Denial?

Answer 39

Where there is a condition precedent to the defendant’s duties (examples: conditions in an insurance policy or conditions to the duty to purchase a home.) It is sufficient if the plaintiff generally alleges that all precedent have been performed or have occurred.

Question 40

What are the five affirmative defenses?

Answer 40

1. A contract is usurious
2. No consideration
3. Failure of consideration
4. Denial of the execution is an instrument in writing
5. Denial of the genuineness of an assignment

Question 41

What must denials and abatements pleaded under oath include?

Answer 41

1. That the plaintiff lacks legal capacity to sue or defendant lacks legal capacity to be sued.
2. A denial of plaintiff’s properly filed sworn account action
3. That there is another suit pending in Texas between the same parties involving the same claim.

Question 42

What is required for a counterclaim to be compulsory

Answer 42

1. Arise out of the same transaction or occurence that is the subject matter of the principal action.
2. Be within the JDX of the court
3. Not be the subject of a pending action at the time the counterclaim is filed
4. Be a claim that the pleader has at the time of the filing; and
5. Not require the presence of 3rd parties over whom the court cannot acquire jurisdiction.

Question 43

What is the cross claim?

Answer 43

A crossclaim is a claim by one party against a coparty (Defendant one against Defendant 2). Must arise out of the same transaction or occurrance that is the subject matter of the original action. The general rule is that crossclaims are permissive.

Question 44

How long does D have to petition a third party plaintiff get to join suit?

Answer 44

30 Days after he files his original answer.

Question 45

If a Legal claim and Equitable claim are filed at the same time, which goes first?

Answer 45

Legal claim first THEN Equitable claim. Jury determines equitable claim and court is bound by this decision.