TX Civ Pro & Evidence

Question 1

challenge SMJ

Answer 1

plea to the jrd

Question 2

challenge PJ

Answer 2

special appearance

Question 3

proper venue

Answer 3

1) county in which all or a substantial part of the events or omissions giving rise to the claim occurred
2) if natural person, county of residence at time COA accrued
3) if not natural person, county of D’s principal office in the state
4) if none of the above, county where P resided at time COA accrued

Question 4

Permissive venue for breach of warranty by manufacturer of consumer good

Answer 4

county of P’s residence at time COA accrued

Question 5

Permissive venue for suit on a written contract

Answer 5

county in which D is required to perform

Question 6

deadline for P’s response to D’s motion to transfer venue

Answer 6

30 days prior to hearing on the motion to transfer venue (present prima facie proof)

Question 7

interlocutory appeal of motion to transfer venue?

Answer 7

No. Appeal after final judgment. Need “reversible error.”

Question 8

motion to transfer venue versus motion to change venue

Answer 8

MTV asks if trial court is proper venue. MCV asks if such prejudice against D in county of suit that D cannot obtain a fair and impartial trial.

Question 9

what is motion to quash?

what happens if moving party wins?

Answer 9

D challenges the procedure used to serve D or defects in citation. Not challenging court’s power over D.

Moving party required to file an answer by 10am on first Monday after the expiration of 20 days from date service or citation quashed. P does not have to reissue citation.

Question 10

What is a plea in abatement? Which pleas in abatements must be pleaded under oath?

Answer 10

challenge P’s pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. Defect in parties (ex: capacity) or allegation (another suit is pending).

1) P lacks capacity
2) there is another suit pending in TX between same parties involving same claim
[file a verified denial, then file verified plea in abatement]

Question 11

objection to a pleading based on defects in substance (ex: relief not allowed by law) or form (ex: vagueness).

Answer 11

Special exception

Question 12

Answer due date

Answer 12

10am on first Monday after expiration of 20 days from date D served

Question 13

General denial

Answer 13

denies all of P’s allegations

Question 14

special denial

Answer 14

to challenge P’s general allegation that all conditions precedent have occurred, D must specifically deny those conditions D maintains have not been met. If D does not, P need not prove those matters, as her allegations are taken as true.

Question 15

which affirmative defenses must be verified (signed affidavit under oath)?

Answer 15

1) a contract is usurious
2) no consideration
3) failure of consideration
4) denial of the execution of an instrument in writing
5) denial of the genuineness of an assignment

Question 16

Which denial must be pleaded?

Answer 16

denial of P’s sworn account

Question 17

arbitration clause

Answer 17

Arbitration and award is an affirmative defense, but the contractual arbitration clause by itself provides a basis for filing a motion to compel arbitration

Question 18

Are affirmative defenses raised by a general denial?

Answer 18

No. They must be specifically pleaded.

Question 19

5 categories of information requests for disclosure can get

Answer 19

1) party names
2) potential party contact info
3) potential RPT contact info
4) contact info of persons with knowledge of relevant facts and brief description of connection to case
5) any indemnity and insuring agreements
6) any witness statements
7) method of calculating economic damages

Question 20

What details in request for inspection and production

Answer 20

identify the item to be inspected and tested, identify a reasonable time and place for inspection and testing, and specify the means, manner, and procedure for testing.