VII. DISPOSING OF THE CASE WITHOUT TRIAL 3rd Flashcards
A. Default Judgments
1. Availability [July 2001 #3; July 2006 #2]
A. Default Judgments
1. Availability [July 2001 #3; July 2006 #2]
The plaintiff may take a judgment by default against a defendant by showing:
• the court has subject matter jurisdiction,
• jurisdiction over the defendant by proper service of process (i.e., citation issued, served, and returned),
• allege a cause of action,
• defendant has not filed an answer,
• the time to answer has expired, and
• the return of citation has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment.
The plaintiff must affirmatively seek the entry of a default judgment. If the plaintiff fails to affirmatively seek the entry of a default judgment, the defendant may file an answer even if the answer is beyond the time provided for in the rules. [July 1998 #1]
The defaulting defendant admits all liability issues, but plaintiff is required to put on evidence of unliquidated damages. When damages are liquidated and proved by an instrument in writing, no evidence beyond this is required. [July 2002 #5; July 2003 #2]
A. Default Judgments
2. Notice to Defendant
how to avoid
- Notice to Defendant
At or immediately before the time the default judgment is rendered, the party or his attorney must certify to the clerk, in writing, the last known mailing address of the party against whom the judgment is taken.
Immediately after the judgment is signed, the clerk must mail notice of the default judgement to the defendant.
file written answer By 10 AM on the first Monday after the expiration of 20 days from the date the defendant was served with process.
- Setting Aside a No-Answer Default Judgment
a. Motion for New Trial
When will the trial court lose plenary power over the case, assuming it continues to do nothing with the motion
- Setting Aside a No-Answer Default Judgment
a. Motion for New Trial
• a motion for new trial must be filed within 30 days of the date the judgment is signed.
• if there is no legal reason (e.g., error by the trial court) to set aside the judgment, the defendant must demonstrate the following equitable grounds to the trial court to obtain relief:
• failure to answer the lawsuit was not intentional or the result of conscious indifference, but was due to a mistake or accident;
• setting up a meritorious defense; and
• there is no delay or injury to the plaintiff by granting a new trial. [July 1998 #2 and #3; February 2003 #3]
Ordinarily, the trial court has plenary power over a case for 30 days after the judgment is signed. However, the timely filing of a motion for a new trial extends the trial court’s plenary power (basically, jurisdiction) over the case. If nothing is done by the court to grant or deny the motion for a new trial, as here, the motion is denied by operation of law on the 75th day after the judgment is signed. After that 75th day, the court has another 30 days of plenary power over the case. Thus, if the court does nothing with the motion, it loses plenary power on the 105th (75 + 30) day.
- Setting Aside a No-Answer Default Judgment
b. Restricted Appeal to Court of Appeals
b. Restricted Appeal to Court of Appeals
• a restricted appeal must be filed within 6 months of the date the judgment was signed.
• in order to set aside the default judgment, the defendant must demonstrate that:
• the defendant did not participate in the trial court below and did not file any post-judgment motion, such as a motion for new trial; and
• there is error on the face of the record.
- Setting Aside a No-Answer Default Judgment
c. Equitable Bill of Review
c. Equitable Bill of Review
• an equitable bill of review must be filed within 4 years of the date the judgment is signed. It is a new lawsuit filed in the court in which the old lawsuit was filed and judgment was rendered. The movant must demonstrate the following:
• a meritorious defense;
• which the defendant was prevent from asserting by fraud, accident, or the wrongful act of the plaintiff or official mistake; and
• unmixed with any negligence of the defendant.
• if the bill of review is based on a total lack of service of process, the defendant need only prove a lack of service because due process requires that the traditional requirements be excused.
- Setting Aside a No-Answer Default Judgment
B. Nonsuit [February 2006 #6]
B. Nonsuit [February 2006 #6]
- at any time before the plaintiff has introduced all of his evidence, other than rebuttal evidence, the plaintiff may file a motion seeking an order allowing the plaintiff to take a nonsuit. A nonsuit dismisses the case without prejudice to re-file. The order granting the nonsuit should recite that the motion is granted and that the case is dismissed without prejudice as to refiling.
- the nonsuit does not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs.
C. Summary Judgment
1. General Standard [July 2005 #11; February 2009 #15; July 2009 #12]
In some cases, the evidentiary record establishes that the moving party is entitled to judgment as a matter of law. A party may move for summary judgment using one of two standards: no genuine issue of material fact or no evidence.
C. Summary Judgment
- No Genuine Issue of Material Fact
a. Availability
Example [February 2000 #3; February 2001 #13; February 2005 #10; February 2007 #10; July 2008 #11; February 2010 #12]: Suppose plaintiff sued defendant for personal injuries. Shortly after the injury, plaintiff agreed to a cash settlement with defendant and signed a full and final release of claims. Defendant has filed an answer to plaintiff’s petition alleging the affirmative defense of release. What motion is available to defendant, as the moving party, to establish that she is entitled to judgment as a matter of law?
b. Burdens
Example [February 2000 #4]: Suppose, in response to defendant’s motion for summary judgment based on the affirmative defense of release, plaintiff submits legally sufficient proof that he was coerced to sign the release. How should the court rule on defendant’s motion?
- No Genuine Issue of Material Fact
a. Availability
A no genuine issue of material fact summary judgment may be sought by either plaintiff or defendant.
File a motion for a summary judgment alleging that there are no genuine issues as to any material facts concerning the affirmative defense of release and that she, as the moving party, is entitled to judgment as a matter of law on the issues expressly set out in the motion.
b. Burdens
The burden of proof is on the moving party to show sufficient conclusive facts to entitle it to a judgment as a matter of law.
Motion denied. Once defendant, as moving party, carried the initial burden, plaintiff, as the non-moving party, had the burden of raising a fact issue. Here, plaintiff has raised a fact issue on whether the release was voluntary.
C. Summary Judgment
3. No Evidence
a. Availability
Example [February 2003 #12; February 2009 #15; July 2011 #15]: Suppose plaintiff entered into a contract with defendant for the purchase of widgets. After delivery of the widgets, plaintiff noticed that many of the widgets were defective. Plaintiff filed suit against defendant alleging breach of contract. After full discovery, plaintiff failed to produce any evidence of defects in the widgets. What pretrial procedure is available to defendant, as the moving party, to avoid the necessity of a trial?
b. Burdens
- No Evidence
a. Availability
After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the non-moving party would have the burden of proof at trial. The motion must specifically state the elements as to which there is no evidence.
In the example, plaintiff (i.e., the non-moving party) would have the burden of proof at trial with regard to the defective condition of the widgets. Accordingly, defendant could seek a no evidence summary judgment because the evidentiary record contains no evidence of defect.
b. Burdens
While the no evidence motion for summary judgment must state the elements as to which there is no evidence, it need not contain summary judgment evidence (i.e., affidavits, transcripts, etc.). The motion is to be granted unless the non-moving party produces summary judgment evidence raising a genuine issue of material fact. [February 2001 #13; February 2003 #12; February 2004 #13]
C. Summary Judgment
- Procedure
a. Generally [February 2008 #11; July 2008 #12; July 2009 #12; July 2010 #15]
- Procedure
a. Generally [February 2008 #11; July 2008 #12; July 2009 #12; July 2010 #15]
• except on leave of court, the motion and any supporting affidavits must be filed and served at least 21 days before the time specified for the hearing.
• the adverse party, not later than 7 days prior to the hearing, may file and serve opposing affidavits or other written response to the motion.
• no oral testimony will be received at the hearing.
• evidence is limited to affidavits and all types of discovery such as request for admissions, depositions, etc.
• discovery material such as depositions not on file with the clerk may be used as summary judgment evidence if the discovery material is filed and served on all other parties with a statement of intent to use the material as summary judgment proof. If relying on a deposition, the party must direct the court’s attention to the relevant portion and attach it to the motion. The materials must be filed and served 21 days (supporting the motion) or 7 days (opposing the motion) before the hearing.
C. Summary Judgment
4. Procedure
b. Affidavits
Example [July 2007 #12; February 2008 #11]: Suppose defendant files a motion for summary judgment supported by an expert’s affidavit. In the affidavit, the expert states that she is competent to express an expert opinion, that the affidavit is based on her personal knowledge, and that, in her expert opinion, the sole cause of the incident was plaintiff’s unforeseeable misuse of defendant’s product. How should plaintiff respond to defendant’s motion?
c. Appeal
b. Affidavits
Affidavits must be:
• made on personal knowledge of the affiant;
• affirmatively show that the affiant would be competent to testify; and
• state facts that would be admissible in evidence (e.g., hearsay and opinion, except in accordance with evidentiary rules, have no effect).
object to the sufficiency of the affidavit in a written response to the motion. Plaintiff should secure a ruling on the objection and a written order.
Here, the expert’s conclusory statements fail to show that she is qualified to give an expert opinion. The expert’s statements about causation are mere conclusions that are not connected to any facts and, therefore, are insufficient.
A summary judgment that disposes of all issues and parties is a final judgment which may be appealed. If the trial court denies the motion for summary judgment, this order may not be appealed since the denial of summary judgment is a nonappealable interlocutory order. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. [February 2000 #5]
