TX Civ. Pro. - Missed Questions Flashcards
In a suit where multiple claims arise from the same series of transactions, which is a valid challenge to venue?
In suits involving multiple defendants, where the plaintiff has established proper venue against one defendant, it is proper as to all defendants in all claims or actions arising out of the same transaction or series of transactions.
When there are multiple plaintiffs in a suit, each plaintiff must independently establish proper venue if challenged.
In suits involving multiple claims or causes of action arising from the same transaction or series of transactions, where one claim or cause of action is controlled by a mandatory venue provision, the suit must be brought in the county required by the mandatory venue provision.
In suits involving multiple defendants and where venue is incorrect as to all defendants, any action or omission by one defendant in relation to venue, including a waiver, does not operate to impair or diminish the right of any other defendant to challenge venue.
What might a D properly file in response to a P’s pleading that makes an overly vague negligence claim?
An objection to either the form or substance of the pleading is made by a special exception, which identifies the particular pleading excepted to and “intelligibly and with particularity” points out the specific problem with the pleading. Special exceptions object to defects of form such as vagueness (also undue repetition, ambiguity, obscurity, etc.) and may also object to defects of substance (where some cause of action, element of damage, defense, or relief requested is not allowable by law).
What may happen if the P does not amend the pleadings after the court sustains a special exception?
The court may dismiss the action
What issues does a plea in abatement address?
A plea in abatement challenges a plaintiff’s pleadings by alleging facts arising outside the petition that set forth reasons why the case should be suspended or dismissed. The plea identifies the impediment and the effective cure, then asks the court to suspend the lawsuit until plaintiff corrects the defect.
Under what circumstances may a D call to testify at trial a witness whose identity had not been disclosed in response to discovery?
D must show either good cause for the nondisclosure or that the opposing party will suffer no prejudice or surprise
Rule 194
Identifies discoverable matters so automatic they are not subject to objection; including:
Indemnity or insuring agreements
Testifying expert’s name, address, and telephone number
In personal injury cases, medical bills reasonably related to the injuries
What happens if P takes 45 days to respond to request for admission?
All requests are deemed admitted after 30 days
When may a court allow withdrawal of an admission?
A court may allow withdrawal of an admission if the party shows good cause, and if the court finds that the parties relying on the admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved.
A notice of deposition names Defendant, sets the time and place for deposition, and states that the deposition will be recorded by videotape and without a stenographer. What objection, if any, may Defendant’s attorney bring?
D’s attorney may, within 3 business days of service of the notice, stay the deposition by filing a motion for a protective order objecting to the time and place of the deposition.
A motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within three business days of service, the objection stays the deposition until the objection is resolved. Notice of deposition acts as a subpoena as to a party to the suit (but not as to nonparties), so Defendant may not simply ignore the notice. If Plaintiff’s attorney gives at least 5 days’ notice, the deposition can be recorded by nonstenographic means, including videotape. The party requesting the nonstenographic recording is responsible for assuring that the recording will be intelligible, accurate, and trustworthy.
Plaintiff’s attorney serves timely notice on Defendant’s attorney of intent to take Defendant’s deposition. The notice names Defendant, sets the time and place for deposition, and states the deposition will be recorded by videotape and without a stenographer. The deposition will be 120 miles away from where Defendant was served the notice and will take place in two weeks. Defendant is not a resident of Texas. What, if any, objection might Defendant bring?
No objection is available. The witness is a party, so service of the notice on the party’s attorney has the same effect as a subpoena. A witness may be deposed in the county of the witness’s residence, the county where the witness is employed or regularly transacts business in person, the county of suit (if the witness is a party or designated by a party), the county where the witness is served with a subpoena, or within 150 miles of the place of service (if the witness is not a Texas resident or is a transient), or at any other convenient place directed by the court. If the party gives at least five days’ notice, the deposition can be recorded by nonstenographic means, including videotape.
If D is served with notice of a deposition and a request for production of documents at the deposition, the deposition may be held:
30 days from the date the notice was served.
Ordinarily, the notice must be served on the parties a reasonable time before the deposition is taken. However, when a notice of deposition includes a request that the party produce documents or things at the deposition, the notice for a deposition and the request for production of documents also must comply with the rules concerning discovery of documents or things, including the 30-day time limit required for a response.
Under Texas state law, a party may move for summary judgment __________, and “summary judgment” evidence __________.
Alleging there is no genuinely disputed fact OR that the adverse party has no evidence of one or more elements of a claim or defense; must be submitted by the moving party only if the ground is that there is no genuine issue of material fact.
If the basis of the motion is that no genuine disputed issue of material fact exists, the moving party must submit evidence with the motion (i.e., pleadings, affidavits, stipulations, authenticated or certified public records, deposition transcripts, and other products of discovery on file show) to show that there is no genuine disputed issue of material fact in the case, and the moving party is entitled to judgment as a matter of law. If the basis of the motion is that no evidence has been presented as to one or more elements of a claim or defense, the motion must state the elements as to which there is no evidence, but it need not contain summary judgment evidence (i.e., affidavits, transcripts, etc.). The adverse party must then produce summary judgment evidence raising a genuine issue of material fact. Unless the adverse party can do so, the court must grant the motion for summary judgment.
When a judge rules against a party regarding the admissibility of her evidence in a motion in limine, to preserve the issue for appeal, the party:
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. If the motion is denied, the party must object when the matter comes up during trial.
Plaintiff sues Defendant 1 and Defendant 2 in District Court for damages and includes four causes of action. Defendant 1 and 2 do not have antagonistic positions with respect to the first three claims, but their liabilities as determined with respect to the fourth claim will offset each other. Each claims the other is liable. During voir dire, the court grants Plaintiff 7 peremptory challenges, including additional challenges. How many challenges are Defendant 1 and Defendant 2 entitled to?
Defendant 1 and Defendant 2 are each entitled to 7 challenges. The antagonism between Defendants with regard to the fourth claim entitles each Defendant to 6 peremptory challenges (strikes). Each Defendant is entitled to another strike upon motion to equalize, for a total of 7 each. If there is only one party on each side, each party is entitled to 6 strikes in a District court and 3 in a County court. Because the court gave Plaintiff an additional strike, each side is entitled to an additional strike. If Defendants were not antagonistic, the court would “align the sides,” and they would share 7 strikes combined.
A motion for a new trial is required as a prerequisite for an appeal in all the following cases except:
A motion for new trial is not required as a prerequisite for an appeal as to evidence that was improperly excluded. The motion is required as to: a complaint on which evidence must be heard; a complaint of factual insufficiency to support a jury finding; a complaint that jury findings are against the great weight and preponderance of the evidence; a complaint of inadequacy or excessiveness of the damages found by a jury; or an improper, incurable jury argument, if not otherwise ruled on by the trial judge. A complaint that evidence was improperly excluded does not fall within these categories. Such a complaint may form the basis for an appeal assuming an objection was made and ruled upon at the appropriate point in the trial.
