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Texas Civil P&E
Terms in this set (80)
How may a D challenge personal jurisdiction?
To challenge personal jurisdiction, a D should file a special appearance. This must be filed prior to any other plea, pleading, or motion.
How may a TX court establish jurisdiction over an out-of-state D?
A TX court may have personal jurisdiction over an out-of-state D if:
1. D has availed itself of the forum, establishing minimum contacts with TX, AND
2. The COA arises from those contacts, AND
3. The assertion of PJ does not offend fair play and substantial justice.
What is a special appearance
is an objection to teh courts exercise of personal jurisdiction over a nonresident.
This must be filed before or concurrently with any other plea, pleading, or motion.
Failure to comply with this due order of pleading requirement constitutes a general appearance and waiver of the special appearance.
How may a D challenge venue?
To challenge venue, a D should file a Motion to Transfer Venue
Must alleging the factual and legal basis for the transfer.
Under Texas' due order of pleading, this must be filed prior to, or concurrent with, any other plea, pleading, or motion (except a special appearance).
How should P respond after D files a motion to transfer venue?
P must respond by filing affidavits and discovery materials to make a prima facie case of his factual allegations and deny the venue facts raised in D's motion.
Where is venue proper?
1. In the county where the events giving rise to the claim occurred.
2. In the county of D's residence (if D is a natural person).
3. In the county of D's principal office in the state (if D is a corporation).
If NONE of the above applies, then in the county in which the P resided when the COA accrued.
May D appeal a denial for motion to transfer venue?
Appellate review is available only after final judgment.
Immediate review by writ of mandamus is available to enforce mandatory venue provisions only.
Review of venue decisions by interlocutory appeal is now available for cases involving multiple plaintiffs.
What happens if there is an erroneous ruling on venue?
Erroneous rulings are reversible error.
By statute an erroneous ruling on venue is not harmless and requires reversal of the trial court judgment.
P's petition does not state the total amount of damages or fails to plead with particularity- What should D do?
If P's petition does not state the total amount of damages he is seeking, D may file a special exception.
The special exception must be in writing and point out the pleading excepted to and point out with particularity the insufficiency in the allegations.
D believes that a 3rd Party is responsible for P's injuries. What should D do?
D should file a third party petition impleading the 3rd party, alleging that the 3rd Party is liable to P for all or part of P's claim.
D does not need to obtain leave of court if he files this petition within 30 days of its answer. After 30 days, D must obtain leave of court to file this petition.
When must answers be filed?
Answers must be filed by 10:00 am on the first Monday after the expiration of 20 days from the time D was served.
When are discovery responses due?
Discovery responses are due within 30 days of service.
What are the permissible forms of discovery?
1. Requests for Disclosures
2. Request for Production and inspection
3. Oral or Written Depositions
5. Requests for Admissions
P asks D for copies of all documents relating to its investigation of the incident. What can D do?
D may assert the work product privilege and withhold the information. The court should sustain the objection if it is determined the documents were prepared in anticipation of litigation.
P sends D Requests for Admissions. D does not respond within 30 days. What result?
If Requests for Admissions are not responded to within 30 days, the requests will be deemed admitted as a matter of law. However, the D may file a Motion to Withdraw the deemed admissions showing good cause for its failure to respond and that P will not be unduly prejudiced by striking the deemed admissions.
D wants to independently verify P's medical condition. What should D do?
If D wants to independently verify P's medical condition, D may file a motion for an order compelling P's medical examination by a qualified physician. The D must show good cause and that P's medical condition is in controversy. This motion must be filed 30 days before the end of the discovery period.
Discovery of insuring and Indemnity Agreements
Where such agreements may obligate any person to satisfy all or part of a judgment in the action.
The Texas request for disclosure specifically requires disclosure of such insuring and indemnity agreements.
The rules also authorize discovery of any matter within the scope of discovery via interrogatory, except matters related to testifying experts.
A request for production could compel production of such agreements because they are within the scope of discovery.
in a case for personal injuries, a responding party must produce all medical records and bills that are reasonable related to the injuries; or may authorize permitting the disclosure of such records.
*option is the requesting parties preference.
D receives a discovery request seeking information he believes is privileged. What should he do?
He may withhold the information he believes to be privileged. He must file a withholding statement stating: 1) that the info is being withheld, 2) the request to which the information relates, and 3) the privilege being asserted. This must be filed within the same time period for discovery response.
D accidentally produces information he believes is privileged. What should he do?
If a party accidentally produces privileged information, it must amend its response within 10 days after discovering the inadvertent production of privileged information. If it does so, the privilege is not waived and the opposing party must return the info.
What objections may be raised during depositions?
During depositions, the ONLY objections that may be made are:
1. Objection, leading
2. Objection, form
3. Objection, non-responsive
If counsel makes leading/argumentative objections, opposing counsel should suspend the deposition and move for a protective order and for sanctions.
How may a party challenge the admissibility of expert testimony?
To challenge the admissibility of expert testimony, a party must file a pre-trial Daubert motion alleging that the expert is not qualified by knowledge, skill. experience, training, or education to offer his opinion, and that his opinion is not reliable.
Who pays for the deposition of an expert witness?
All Rx fees must be paid by the party who retained the expert, even when the expert is deposed by the opposing party.
D believes that P does not have enough evidence to support his claim. What should D do?
Where P does not have evidence to support his claim, D may file a no-evidence motion for summary judgment.
If P cannot prove an essential element of his claim, the MSJ should be granted; D only needs to point out the elements of P's claims that lack evidence --> burden is on P to support with evidence raising a genuine issue of material fact.
(Note: This is similar to a motion for a directed verdict, but takes place pre-trial -- not during the trial phase.)
P wants a jury trial. What should he do?
If the P wants a jury trial, P must:
1. File a written request for the jury trial, AND
2. Pay a fee within a Rx time, no less than 30 days before trial. *more than 30 days, burden is on the objecting party to show unreasonableness
If the P fails to pay the fee, the case may remain on the jury docket if the fee is promptly paid and P can show it will not prejudice the D or impede the court's business.
Describe challenges to veniremen.
A party may strike a venireman for cause if it can be shown he has a prejudice toward the party. Each party has an unlimited number of challenges for cause.
- If they cant get for cause use peremptory and state reason to preserve error.
A party may exercise a peremptory challenge for any reason (other than race or gender). Each party has only a limited number of peremptory challenges.
Number of Peremptory Challenges
- 2 D's and a P: each get 6/County: 3 each
If multiparty suit, court smut determine whether parties aligned on the same side of the docket are antagonistic.
If there is no antagonism, the court may equalize the number of strikes to that no party is given an unfair advantage. *Collaboration = indication of antagonism
Is it proper for 2 D's in a civil case to use all their peremptory strikes together? Can the court prevent this?
The rules do not explicitly authorize the court to prevent parties from collaborating when exercising peremptory strikes.
Court does have discretion to "equalize" strikes upon a motion of a party to avoid giving a "side" an unfair advantage.
D is concerned that P intends to produce evidence prejudicial to D at trial. What should D do?
To prevent the admission of potentially prejudicial information, a party may file a motion in limine. The motion must be made in writing and should state, specifically, the evidence the party expects his opponent will attempt to introduce to the jury and why the evidence is either: 1) irrelevant, or 2) more prejudicial than probative.
Do rejected motions in limine preserve error?
At trial, P wants to call a witness not previously identified in any discovery responses. May he do so?
If a party attempts to call a witness he did not identify in his discovery responses, he must show:
1) good cause for his failure to do so, and
2) that the opposing party will not be unduly prejudiced.
May witness testimony be impeached by evidence of prior misdemeanors?
After P's case-in-chief, D believes that P has not presented sufficient evidence to support his claim. What should D do?
D may file a motion for a directed verdict.
(Note: This is similar to an MSJ, but is made during trial, not pre-trial.)
The jury returns a verdict in favor of P. D does not believe the evidence supports the verdict. What may D do?
Where a party believes that the evidence does not support the jury's verdict, he may file a JNOV, or judgment notwithstanding the verdict, asking the court to disregard the jury finding since there is no evidence to support it.
After trial D learns that a juror was intoxicated during deliberations, or was seen conferring with P's counsel in the hallway during trial. What should D do?
If after the trial is complete, a party learns of juror misconduct, he should file a motion for a new trial, supported by affidavit, alleging juror misconduct.
Trial is complete, but D wants a new trial. What should he do?
D should file a motion for a new trial.
Motions for a new trial must be filed prior to, or within 30 days of the signing of the judgment. If the court does not rule on the motion within 75 days of the signing of the judgment, it is deemed overruled by operation of law.
D's attorney mistakenly fails to respond to P's Request for Admissions within 30 days. What should D's attorney do?
D's attorney should file a motion to withdraw the deemed admissions, showing 1) why the response was not timely filed, and 2) that striking the deemed admissions will not cause P undue prejudice.
Before trial, D decides to assert an affirmative defense. Explain how D should proceed.
The affirmative defense(s) should be included in the answer.
If the answer has already been filed, D should file a motion to amend his answer.
- To do so without leave of court, D must file his motion to amend at least 7 days before trial.
- He must further show that the amendment does not operate as a surprise to the other party.
*failure to plead an affirmative defense, waives the defense and precludes a jury question on the defense.
Amending a Pleading
A party may amend a pleading so long as it does not operate as a surprise, except a party must seek court leave to amend within 7 days of trial.
A P may amend to join a claim against a third party defendant so long as the claim arises out of the same transaction or occurrence that is the subject of the P's claim.
Discovery of Witness Statements
With a request for disclosure, a party may obtain any witness statement another party has, regardless of when the statement was made or who took it.
A witness statement includes a stenographic recording and substantially identical transcript of such a recording.
Number of interrogatories at the different discovery levels
Level 1: 15 *also number for requests for production
Level 2: 25
Level 3: Set by court order
Discovery Requests for Admission Limits at the different levels.
Level 1: 15
Level 2: no limit
Level 3: set by court order
Character Witnesses in a Civil Case
Generally evidence of a persons disposition or propensity is not admissible to prove conduct in comfornity with teh disposition on a particular occasion.
P and D unsuccessfully attempt mediation, during which D presents witness statements. P later seeks discovery of the witness statements. P filed a motion to compel. What should the court do?
The court should grant the motion to compel. Generally, under the rules, any record made at mediation is confidential and not subject to disclosure. However, a communication made in mediation is discoverable and admissible if the same information is discoverable independently of the mediation procedure.
During discovery, P inquires as to which witnesses D intends to call at trial. D does not want to disclose this information. Must D?
Yes. Discovery rules permit parties to obtain the name, address, and the telephone number of any person who is expected to be called to testify at trial, and this information can be requested through interrogatories.
Which form of discovery authorized by the Texas Rules of Civil Procedure, if any, is not subject to any objection?
Under the Texas Rules of Civil Procedure, Requests for Disclosure are not subject to any objection or assertion of work product.
D pleads, argues, and offers evidence for an affirmative defense. In the proposed charge, no instruction is given regarding the affirmative defense. What must D do?
D must make a specific objection on the record that the court has failed to include the instruction, and argue that he pleaded the defense and offered evidence on the theory. To preserve error, D must submit a written request for the court to include the missing defenses and obtain a ruling from the court.
Describe the difference between a motion for summary judgment and a directed verdict.
MSJ ➔ before trial.
Directed Verdict ➔ during trial.
During discovery, D learns that a 3rd party may actually be responsible for P's injury. Can D wait until the present suit receives final judgment and then file suit against the 3rd party?
No, such a claim would constitute a compulsory counterclaim (one arising from the same transaction or occurrence as the opposing party's claim). If not filed in this action, it will be waived, and D will be barred from asserting it in a later suit.
During jury deliberations, a juror becomes ill and is taken to the hospital. D moves for a mistrial. What should the court do?
The court should deny the motion for a mistrial. In a 12-person jury, a jury may continue to deliberate even if as many as three jurors become "disabled," encompassing a physical condition rendering a person incapable of fulfilling the function of a juror.
After deliberation, the jury returns but has not answered all material questions. D moves for a mistrial. What should the court do?
If the jury has not answered all the material questions, the court shall instruct the jury, both in writing and in open court, of the nature of the incompleteness of the verdict; provide additional instructions as may be needed; and retire the jury for further deliberations.
After P files suit on D in Red County, D sues P in Blue County. What pleading should P file in Blue County action? What should the pleading allege and how should the Court rule?
P should file a verified motion or plea in abatement in the Blue County action. He should argue that Red County is the proper venue, the suit is still pending, and the suit concerns the same parties and the same dispute. The court should grant the motion.
List five (5) categories of information or materials P may request from D in his Requests for Disclosure.
1. Correct names of parties to the suit.
2. The amount and method of calculating damages.
3. Name, address, and telephone number of any fact witnesses.
4. Information regarding testifying experts.
5. Medical records.
Can also request a witness statement, reguardles of when teh statement was made.
What information is discoverable?
Any information that is relevant and not privileged is discoverable.
D wants to exclude P's expert witness testimony. How does D bring the issue before the Court, and what must he show the court?
D should file a pretrial Daubert motion to challenge the admissibility of the expert's testimony. The motion should allege that the expert is not qualified by knowledge, skill, experience, training, or education to offer is opinion, and that his opinion is not reliable.
Describe a pretrial Daubert motion.
A pretrial Daubert motion alleges that the expert is not qualified by...
...to offer is opinion, and that his opinion is not reliable.
After discovery, D believes P has not presented enough evidence to proceed. What motion should he file, and what should it allege?
D should file a no-evidence summary judgment motion. D should argue that P has failed to present sufficient evidence against him.
Describe what it means to invoke "the rule."
"The rule" requires the court to administer the oath to witnesses and remove them from the courtroom so that they cannot hear testimony given by the other witnesses. The judge instructs the witnesses that, except with court permission, they are not to converse with each other or with any person about the case (other than the attorneys involved in the case), nor read any report of the testimony in the case.
During trial, P calls a witness that he failed to list in any of his discovery responses. Will the witness be allowed to testify?
P had a duty to include the witness's name on the list. Failure to do so in a timely manner can result in the testimony being excluded. To avoid this harsh result, P must show that:
1. he had good cause for his failure to list the witness in any of his discovery responses, AND
2. his failure to do so will not unduly prejudice D.
During trial, one of the attorneys calls a fact witness to testify. The witness provides testimony that is substantially different from his deposition testimony. What can the attorney do to show the jury the difference in testimony?
Impeach the witness. But before a prior inconsistent statement is offered to impeach during examination, the witness must be informed of each of the following, and be given a chance to explain or deny:
1. the contents of the statement, and
2. the place and time they were made, and
3. the person to whom they were made.
After all evidence is presented, D submits a proposed instruction and jury charge regarding an issue not raised in D's pleadings. D had testified regarding the issue, but had not included it in his pleadings. P objects. What should D do, and how should the court rule?
D should ask for leave to amend and file a trial amendment to conform the pleadings to the evidence offered at trial. The court should grant the amendment unless it prejudices the other side. Since evidence regarding the issue was already offered during trial, the court will likely grant the motion for the amendment.
During deliberations, a disagreement arises between jurors as to statements made by one of the witnesses. What can the jury and the court do to resolve this issue?
The jury may ask the court reporter to read his notes regarding the disputed statements. Or, in the alternative, the judge can recall the witness to testify again regarding the disputed statements.
The jury returns a verdict for D. P is stunned because the jurors had seemed sympathetic to his case. What can P do to resolve any doubts about the verdict before the jury is discharged?
P may ask to have the jury pooled. A jury is pooled by reading the verdict aloud, then calling the name of each juror separately and asking the juror if it is his verdict.
P files his lawsuit. What documents must be served on D in order to compel him to answer?
To compel D to file an answer, P must serve a copy of the petition along with the citation issued by the clerk of the court.
P's original petition is very broad and makes general allegations of negligence against D. What pleading should D file to require the P to re-plead his case with more definite and specific factual allegations?
D should file a special exception to require P to re-plead his case with more definite and specific factual allegations. The court should grant it, ordering P to amend his petition accordingly. If P amends but does not cure the defects, D may file a motion to dismiss.
P sues D, alleging that D is a sole proprietorship. D is actually a Texas corporation. 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 denial alleging that it has been sued in the wrong capacity. This would give notice to the parties and the court that D seeks the protection of corporate status for its shareholders. D should also file a verified motion to abate identifying the impediment to the continuation of the suit, identifying an effective cure, and requesting that the court suspend the suit until the P cures the defect.
D believes that 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?
Yes, D must raise the issue of statute of limitations before trial by specifically pleading an affirmative defense, which is generally filed with answer. Failure to raise the defense will waive it. In the alternative, D may amend his petition seven days before trial to include the defense, but the court may strike the amendment if the opposing party shows the amendment was a surprise.
P and his attorney want to know if D has liability insurance to cover any of the claims brought in his suit. What document can P serve to determine whether either defendant is covered by insurance?
P should serve a request for disclosure on the defendants to determine whether they are covered by insurance.
Under the collateral source rule- ok even though it may be inadmissible at trial; specifically allow for insuring agreements under which a person may be made to identify or reimburse for amounts paid to satisfy a judgment.
The deadline to serve the request is 30 days before the end of the applicable discovery period.
Collateral Source Rule
prohibits evidence of insurance to prove that a party's medical expenses may be covered by insurance.
P requested a jury trial and paid a jury fee.
D also requested a jury trial.
P then filed a motion to the 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 trial court cannot withdraw a case from the jury docket over a party's objection. The court should deny P's motion to remove, and thereby retain the case on the jury docket. Here, D requested a jury trial, and they have objected (apparently timely) to P's withdrawal of his request.
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 overrule D's motion for mistrial. In a Texas district court, the jury consists of 12 jurors, but a verdict may be rendered by the concurrence of 10 members of the original 12-member jury. When as many as three jurors die or become "disabled," the remaining nine jurors of the original jury may render a verdict. However, if fewer than the original 12 render a verdict, the verdict must be signed by each juror concurring therein.
In a video deposition, a witness for D gives testimony. At trial, D offers into evidence clips from this recorded deposition. 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?
P's objections should be overruled because a party may read or play any part of a deposition. Under the rules of evidence, a deposition taken in the same proceeding as the trial is not hearsay, and the deponent does not need to be unavailable for the deposition to be used as evidence.
Explain the marital communications privilege, as recognized in Texas.
A confidential communication is one made privately by a person to the person's spouse, and it is not intended to be disclosed to any other person. A person has the right, during the marriage and afterwards, to refuse disclosure and to prevent others from disclosing a confidential communication made during the marriage.
During trial, the court refuses to admit into evidence P's unauthenticated medical bills. P then offers his own sworn answers to interrogatories to authenticate and prove his medical expenses. D objects to this evidence. How should the court rule?
Court should sustain D's objections because a party cannot use his own discovery response to offer or authenticate his evidence. Under the rules, documents must be authenticated through admissible evidence. Here, P is attempting to authenticate and prove his medical expenses with his own answers to the interrogatories, or what amounts to inadmissible hearsay. Because there must be proof that the documents are what they purport to be, P should either testify on the stand to authenticate the documents or offer the testimony of another qualified witness, such as the custodian of the records.
P sues D1. D1 wants to add another D. What should D1 do?
D1 should file and serve a third party petition impleading D2 at any time after the commencement of the action.
P sues a D. D is a Delaware corporation with no offices in Texas. How can P serve D?
Since D is not registered with the Texas Secretary of State, P must serve the SoS as an agent for service of process under the Texas long arm statute.
In his petition he must allege that the corp is a nonresident of texas, has no regular place of business, and has been "doing business" in Texas by committing the tort in Texas.
The SoS will then forward copies of the citation and petition to D's corporate headquarters via registered mail.
P will get a certificate of service from the SOS showing the date it received process, the date process was forwarded to ST, and the state the SOS received return service.
Where should depositions be taken?
Under the rule, depositions may be taken in the county where the suit is pending, in the county of the witness's residence, or the county where the witness is employed or regularly conducts business.
In a civil trial, must P call witnesses in a particular order?
To impeach a witness's credibility, P offers evidence of the witness's recent moving violations. Is this proper?
No. Under the rules of evidence, you can impeach by offering the conviction of a felony or a crime of moral turpitude. Misdemeanors such as moving violations are inadmissible.
Reading the Jury the Charge
The Texas Rules for Civil Procedure require the court to read the charge to the jury before argument begins unless the parties waive reading of the charge, which has not happened here.
The TC must also give each juror a copy of the charge.
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