john civpro cards.txt

Card Set Information

john civpro cards.txt
2013-06-23 21:21:05
john civpro cards

john civpro cards
Show Answers:

  1. Subject Matter Jurisdiction
    Court's power to hear a case
  2. Personal Jurisdiction
    Power over a party to the action
  3. Venue
    Concerns proper placement of a case
  4. Calculating Amount in Controversy
    Amount prayed for in good faith; injunctions usually determiend w/r/t value of things or itnerests sought to be restrained
  5. Specific Limits on Amount in Controversy
    Justice Courts: <=$10k; Constitutional County: $200.01 to $10k; County Courts at Law: $200.01 to whatever the statute says up to $100k; District Courts: >$500.
  6. Plaintiff's Pleading: Original Petition (Purpose)
    1) Gives Fair Notice to parties of facts and legal theories; 2) Guides Trial Court for purposes of a) admitting evidence; b) instructing the jury
  7. Plaintiff's Pleading: Formal Requirements
    1) State names/parties; 2) Short statement of CoA sufficient to give notice; 3) For unliquidated damages, statement saying it's within the jurisdictional limits; 4) Demand for judgment for all other relief party deems self to be entitled; 5) Signed by party AND attorney (constitutes certificate that they've read and pleadings are groundless or brought in bad faith). If bad faith, can file for sanctions against party OR attorney.
  8. Plaintiff's Pleading: Damages
    Defendant may file specical exception seeking specification of damages and asking the court to require plaintiff to amend so as to speciffy the maximum amount claimed.
  9. Plaintiff's Pleading: Prayer
    If just for damages, the sentence is sufficient. If different or additional relief, relief must be specifically pleaded
  10. Amended Pleadings
    Supercedes prior pleading and must be completein itself. May be made w/o court approval more than 7 days before trial.
  11. Leave To Amend Pleading (If w/i 7 days of Trial)
    Should be denied if 1) adds a new Coa; 2) would case suprise or hardship to Defendant (Implicitly consent if don't object to something at trial to an amended pleading)
  12. Plaintiff's Pleading: continuance
    Should request a continuance after an amended pleading. If not, waives right to complain on Appeal
  13. Plaintiff's Pleading: Supplemental Pleading
    Supplemental Pleading is used to reply to Defendant's Defense. Adds to, but does not supercede previous pleading.
  14. Defendants Pleading
    The same as Plaintiff's Pleading Rules
  15. Special Pleadings: "Suit on an Account"
    Verified pleading on a sworn account establishes a prima facie right of action if it contains: 1) itemized statement of goods/services sold; reveals offsets/credits to the account; and supported by an affidavit stating the claim is just/true/within the affiant's knowledge. Defendant should file a written denial under oath, otherwise you waive the right to dispute the pleading.
  16. Special Pleading: Injunction
    Must plead 1) probable right to relief; 2) probably injury; 3) imminent harm; 4) irreparable harm without injunction; 5) no adequate remedy at law. Remedies for failure to comply: 1) contempt (no fixed time to file)= fine or imprisonment
  17. JoP: Adequate Grounds
    1) Physical Presence; 2) D is a domicillary of forum state; 3) Defendant consents to exercise; or 4) Minimum Contacts
  18. Nonresident Defendants and Minimum Contacts
    1) Non-resident D must purposefully do some act of consummate some transaction in TX; 2) CoA must arise from or be connected with this act; 3) assumption of jurisdction must not offended traditional notions of fair play and substantial justice. 4) Could also have general jurisdiction, if substantial systematic contacts with the forum
  19. Requirements for In-State Service
    Required. Can be done by 1) personal delivery or 2) Mail.
  20. Substitute Service
    If unsuccessful in attempting to serve, 1) file a motion w/ affidavit stating usual place of business/abode of D and assert facts showing attempt and failure. Court may then authorize service by leaving copy of citation and petition with anyone over 16 at location specified in affidavit or any manner that will reasonably give D notice
  21. Citation by Publication
    When party swears he is unable to locate D or residence and other means of service failed, clerk of court just publishes notice.
  22. Service on Corporations
    Corporations are required to designate agent on whom service can be made. May be served on 1) Registered Agent; 2) President of the Corporation; 3) Any Vice-President of the Corporation 4) If no registered agent, and foreign, may be served by serving the sec. of state who will serve them by registered mail.
  23. Requirements for Out of State Service: Long-Arm Statute
    Petition must allege D is 1) non-resident of Texas; 2) no regular place of business in TX or person in charge in TX; 3) has no registered agent in Texas; 4) has been doing business in Texas
  24. Steps to Establish Long-arm Service of Process
    1) Obtain certificate of service from SEc. of State showering date it received process, date process was forwarded, and date Sec. received return receipt. File w/ the clerk of the court to support a default judgment
  25. Service of Process and SoL
    While filing petition usually tolls SoL, Plaintiff must also exercise actual diligence in procuring issuance and service of citation.
  26. Proof of Service
    1) In person: return must be endorsed on or attached to citation. STate time/manner of service and signed by server. 2) Mail: same, except w/ return-receipt signed by the addressee
  27. Defendant's Pleadings: Options
    1) Dilatory Pleas (delay or defact action without determining merits) 2) Pleas in Bar (seeks determination on the merits of the action) 3) Consolidated Response
  28. Special Apperance: Challenging Personal Jurisdiction
    Must be filed before any other plea, pleadnig, or motion by the Defendant. If D does anything else, makes a general apperance, consents to jurisdiction, and waives all defects to service
  29. Special Apperance Procedures
    Burden is on the Defendant to negate basis for JoP. Pleading should assert that D 1) not amenable to service and deny P's allegations; 2) verify pleading. Court will cosnier all discovery, affidavits, and oral testimony in determining. Can be appealed as an interlocutory order.
  30. Motion to Transfer (Challenging Venue) General Rule
    Lawsuits should be brought 1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; 2) if D is natural person, county of D's resident; 3) if D is not a natural person, count of D's principal office ; 4) if none of the above, county in which P resided at the time of the accural of the CoA
  31. Mandatory and Permissive Venue
    There are some mandatory rules: Big one = actions involving land must be brought in county where the land is located (distinguish for breach of contract w/ specific performance). Permissive Venue rule: breach of warranty by a manufacturer of a consumer good provides that suit is proper in county of P's residence at the time of the Coa accrued. Also, permissive exception for suit on WRITTEN contract to be brought in the county in which the D is required to perform
  32. Motion to Transfer Venue
    1) Step 1: Plaintiff Pleads Venue facts "defendant failed to perform his contractual obligations in ___ county" 2) Step 2: Motion to Transfer Venue (Must be filed before anything except Special Appearance). Venue proper against any D is proper to all of them. Must assert: 1) venue is not proeprty where suit is filed; 2) deny any venue facts they want to contest; 3) Name county which transfer is sought and plead venue facts that support; 4) identify section of venue statute making it proper; 5) request a transfer
  33. MTV, Step 3 (Plaintiff's Reply)
    1) P must file a response 30 days prior to the hearing to transfer, should present prima facie proof of matters specifically denied by D and specifically deny any of the D's pleaded venue facts which plaintiff wishes to contest.
  34. MTV, other issues
    1) Defendant has burden of proof; 2) motion does NOT need to be verified; 3) Each party is entitled to 45 days of notice of hearing on motion (except on leave of court). No interlocutory appeal is allowed. Appealable after final judgment.
  35. Venue Appeal, Multiple Plaintiffs
    Each Plaintiff must independently establish proper venue, if challenged. Interlocutory appeal MAY be taken of trial court's determination that P did or did not independently establish proper venue.
  36. Motion to CHANGE venue
    Motion to change venue asks if there is such a prejudice against the D in the county of suit that the defendant cannot obtain a fair and impartial trial.
  37. Motion to Quash (Challenging Service)
    Challenging Defects in Service Procedure. If granted you have until 10 am the Monday after 20 days after the motion is granted.
  38. Pleas in Abatement
    Challenges plaintiff's pleadings by alleging facts arising otuside the petition that justify dismisall or suspension of the case. Based on 1) defect in the parties (capacity, non-joinder of necessary party, improper party); 2) defect in petition's allegation (e.g., pendency of another action involving same parties or admin proceeding involving same claim). Pleas identifies impediment, effective cure, and asks the court to suspend until P has corrected.
  39. Special Exception: Challenging the Pleadings
    May relate to 1) defects of substance (related to CoA, defense, element of damage, or relief not allowed) OR 2) defects of form (vague, ambiguous, etc.). Must be in writing, call for a hearting, and get a ruling on the record to perserve error. If sustained, party who lost given opportunity to amend, if they don't do so, motion to strike or dismiss the defective allegation.
  40. The Answer: Pleas in Bar (Time to Respond)
    Must file an answer by 10 AM the Monday of 20 days from the date D was served
  41. The Answer: General Denial
    In TX, allowed to do this and denies all issues not required to be denied by oath or specially denied.
  42. Due Order of Pleading
    1) Special Appearance; 2) Motion to Transfer Venue; 3) Special Exception; 4) General Denial; Failure to follow waives the pleading that is out of order
  43. Special Denial
    Where there is condition precedent to D's duties, it is sufficient if P generally alleges that all conditions precedent have been performed. To challenge, D must SPECIFICALLY deny those conditions that D maintains have not been met.
  44. Verified Pleas
    1) Consists of signing and affidavit under oath.
  45. Affirmative defenses that must be Verified
    1) 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
  46. Denials and Abatements that Must be Pleaded Under Oath
    1) Plaintiff or Defendant lack capacity to be sued/sue; 2) Denial of P's properly filed sworn account action; 3) That there is another suit pending in TX b/t same parties invovling the same claim
  47. Affirmative Defenses
    Must be peladed by D as ground. D has burden of proof and, if pleaded and produced, entitled to have defenses submitted as questions to the jury
  48. Affirmative Defense: Arbitration
    Arbitration and Award is an affirmative defense, but w/o award, it's just grounds for a motion to compell arbitration
  49. Removal to Federal Court
    Case may be removed if the case could've originally been filed in federal court. Available only to Defendants and requires unanimous consent of the D's
  50. Diversity of Citizenship
    1) Complete diversity of citizenship between all plaintiffs and all defendants; 2) Amount in Controversy > $75k
  51. Limits on Removal
    1) No Defendant may be a resident of the forum state; 2) Can't remove later than one year after the commencement of the action
  52. Removal Procedure
    1) D must filed vertified notice of removal; 2) Notice signed under Rule 11; 3) Short statement of why case can be removed; 4) filed within 30 days after D is served in state court (or 30 days after receipt by D of amended pleading which makes it removable); 5) AFter filing, D must give written notice to all adverse parties and file copy of notice with clerk of the court.
  53. After Removal
    If no answer yet filed, 21 days of initial receipt of state court pleading or 7 days after filing the notice of removal. Plaintiff can challenge within 30 days because of defect in procedure or anytime if couldn't have been filed
  54. Permissive Joinder
    May join all causes of action she has against a single defendant, even if unrelated
  55. Compulsory Counterclaims
    To be compulsory, must 1) arise out of the same transaction or occurrence that is the subject matterof the principal action; 2) be within the jurisdiction of the court; 3) not be the subject of a pending action the time the counterclaim is filed; 4) BE a claim that the pelader ahs at the time of filing; and 5) not require the rpsence of third parties over whom the court cannot acquire jurisdiction.
  56. Crossclaim
    Claim by one party against a co-party. Must arise out of the same transaction or occurrence.
  57. Permissive Joinder
    All persons may join in action as plaintiffs and be joined in one action as defendants if 1) claims asserts for or against parties arise out of the transaction or occurrence and 2) there are common questions of fact or law.
  58. Impleader
    Suit within a suit. D brings in another D to assert that they are at fault or something like that.
  59. Interpleader
    Allows stakeholder to avoid exposure to double and multiple laibility because it provides a forum in which all claims to the stake may be litigated.
  60. Designation of Responsible Third Parties
    Person designated as responsible third party is a person whose conduct is considered by the jury when allocating fault for the plaintiff's injuries (and when impleading one of them is futile because they're insolvent). Must be filed on or before the 60th day before trial.
  61. What is Discoverable? General Standard
    Party may obtain discovery regarding anything that is not privileged and is relevant. No ground for objection that it would be inadmissible at trial.
  62. Discovery: Trial Witnesses
    Names of trial witnesses are within scope of discovery, but names of impeachment or rebuttal witnesses need not be disclosed (necessity of testimony cannot reasonab ly be anticipated). Can overcome objection if 1) good cause for non-disclosure ORn 2) opposing parrty will sufer no prejudice or surprise.
  63. Discovery: Experts
    1) Identity, mental impressions, and opinions of a PURELY CONSULTING expert aren't discoverable.
  64. Discovery: Designation of Experts
    Parties may be required to designate experts through requests for disclosure: 1) party seekign relief must respond to requests at least 90 days bf end of discovery period; 2) other parties must identify experts at least 60 days before the end of the discovery period. If seeking affirmative relief, must make experts available for deposition reasonably promptly unless report concerning opinions and observations is provided upon diesignation. Then, need not be available until all other experts designated.
  65. Limited Discovery of Work Product
    WP = material prepared or mental impressions developed in anticipation of litigation. CORE WORK PRODUCT is absolutely privileged. Other work product is discoverable upon a showering that the party seeking discovery has susbtantial need of the materials and the party is unable, without undue burden, to obtain substantial equivalent.
  66. Protective Order
    Order limited discovery in interest of justice to protect moving party from undue burden, unnecessary expense, harassment, or annoyance. Shouldn't do when objection or assertion of privilege is approrpriate
  67. Response to Written Discovery (General Rules)
    Plaintiff must respond within 30 days. Defendant must respond within 30 days as well, unless it served before his answer is due and then he has 50 days.
  68. Asserting a Privilege to Written Discovery
    Must state: 1) info responsive to request that has been withheld, request to which materials relates, and privilege asserted. Step 2) Party seeking discovery may request that witholding partying identify the info withheld; 3) w/i 15 days, witholding party must serve response that describes info ("privilege log") and asserts a specific privilege for each item; at a hearing for motion to compel, withholding party must establish a prima facie case for privilege by testimony or affidavit. Must do so WITHOUT revealing info and may tender representative docs.
  69. Inadvertent Disclosure
    Producing party does not waive privilege if, within 10d ays of discovering that such production was made, party amends response identifying material produced and states privilege asserted.
  70. Objecting to Written Discovery
    1) D must make any objection to written discovery in writing in the response or in separate doc within the time for the response; 2) objection not made in time = waived; 3) D must state legal or factual basis for objection and extent to which party is refusing to comply; 4) D must have good faith factual and legal basis
  71. Resolving an Objection
    Have a hearing. Party making objection OR asserting privilege has burden to prove.
  72. Supplementing Discovery
    Duty to supplement when party has responded and knows response was incorrect/incomplete or is no longer correct or complete. Must do it not less than 30 days before trial or else they are presumed not reasonably promopt. Can show good cause for not supplementing or no unfair surprise or hardship.
  73. Discovery Control Plans
    1) If you want level 3, you gotta state it, otherwise it's automatically level 2.
  74. Discovery Control Plan Level 1
    LEVEL 1: P seeks only money not exceeding 50k excluding costs, interest, and attorneys fees; DURATION begin when suit is filed and continues until 30 days before trial; Depositions: each party may have no more than 6 hrs of depo time, but can expand to 10 hours if agreed; Interrogatories: No more than 25 interrogatories excluding ones asking a party to identify or authenticate docs.
  75. Discovery Control Plan Level 2
    Happens when not Level 1 or 3; Duration: Begins when suit is filed and continues until EARLIER of 30 days before date set for trial, 9 months after the date of the first oral depo, or due date of the first response to written discovery; DEPOSITIONS: Each side may have no more than 50 hrs of depo time. If one side has more than 2 experts, opposing side may have additional six hours per additional expoert. DOES NOT apply to non-party fact witnesses not under party control; INTERROGATORIES: No more than 25
  76. Forms of Discovery
    1) Requests for Disclosure; 2) request for product and inspection; 3) interrogatories to a party; 4) requests for admission; 5) oral and written depositions; 6) motions for physical examinations
  77. Request for Disclosure
    Types of info that can be obtained: 1) correct name of parties; 2) names/addresses/telephone numbers of parties; 3) name/address, number of any person who may be designated as responsible third party; 4) amount and method of damage calculation; 5) name, address, number of people having knowledge of relevant facts and statement of each person's connection w/ case; 6) any insurance or indemnity agreements; 7) any witness statements; 8) medical record and bills that a reasonably related to the injury or authorization permitting disclosure of such. Party seeking has option of which method; 7) Testifying expert's name, number, etc. subject matter, substance of impressions and opinions and brief summary of basis, docs provided to and reviewed by expert.
  78. Request for Production and Inspection
    If served on non-party, may be requested only be court order or subpoena compelling the form of discovery.
  79. Obtaining Medical Records
    1) obtain court order; 2) request disclosure; 3) subpoena production by seriving physicians and parties with notice to produce 10 days before subpoena is served
  80. The Response to Request for Production
    Production of Document self-authenticates unless within ten days after producing party has actual notice doc will be used they objects to authenticity.
  81. Testing
    May test anything produced so long as it does not destroy or materially alter the item unless previously authorized.
  82. Entry on Property
    Motion to allow, allows party to gain entry upon property to inspect, measure, survey, photograph, or sample property. must state: time, place, manner, conditions, and scope.
  83. Interrogatores
    Written questions to party in the suit; answers may be used only against that party.
  84. Request for Admission
    No limits on the number of requests. Response: 1) must specifically admit or deny, or explain in detail reasons request can't be admitted or denied; 2) due within 30 days or 50 days; 3) if not timely served, deemed admitted! 4) Effect: Matter is conclusively admitted. Court MAY allow withdrawal of admission if party shows good cause and parties relying will not be unduly prejudiced.
  85. Oral Depositions
    Notice of intent must be served on deponent and parties a reasonable time bf taken. Contain name, reasonable time, and reasonable place for it. If it's an organizastion, describe the matters on which examination is requested and org must designate one or more people to testify on its behalf. PLACE: non-party must be taken in county of deponent's residence; county where employed; county where deponent was served. IF a party, same places or the county of suit. Protective order can be used to object to time/place. If raised within three days of service, stays the depo until the objection is resolved.
  86. Compelling Attendance (Deposition)
    If a Witness is a party or subject to control of a party, service of notice on party's attorney is effect of subpoena. If non-party, need notice and subpoena. Can use notice to request witness produce docs or things at depo. If you wanna object, motion to quash or protective order within 30 days
  87. Conduct of Deposition
    No side can examine one person for more than 6 hours. Cumulative limitations are governed by the plan. Only 3 objections: 1) leading; 2) form; 3) non-responsive. COMMUNICATION: attorney may not confer with a witness during depo except to identify a privilege. May no instruct a witness except to 1) perserve a privileged; 2) comply w/ court order; 3) protect witness from abusive question of requires a misleading response.
  88. Deposition Before Suit
    Verified Petition that alleges 1) petitioner anticipates isntitituion of a suit in which petitioner may be a party; 2) subject matter of anticipated action; 3) names of persons petitioner expects to have interest adverse to the petitioners, addresses, and their phone numbers.
  89. Medical Examination
    Motion to compel if good cause and physical condition in controversy. Filed at least 30 days bf end of discovery and served on all parties and person to be examinded.
  90. Default Judgment
    1) Court has SMJ; 2) jurisdiction over defendant by proper service of process; 3) allege a cause of action; 4) defendant has not filed an answer; 5) the time to answer has expired, and 6) return of citation has been on file 10m days exclusive of the day of filing the citation and the day of the default judgment. Plaintiff is still required to put on evidence of unliquidated damages. NOTICE TO D: party or attorney must certify to clerk, in writing, last known mailing address of the party against whom the judgment was taken and the clerk must mail notice of default judgment thereto.
  91. Setting Aside a No Answer Default Judgment: Motion for New Trial
    1) Must be filed within 30 days of the date judgment is signed; 2) If no legal reason, must demosntrate equitable grounds, proving a) failure to answer was not intentional result of conscious indifference, but was due to msitake or accident; b) set up a meritorious defense; and 3) no delay or injury to the platiniff by granting a new trial.
  92. Restricted Appeal to the Court of Appeals
    1) Must be filed within 6 months of the date the judgment was signed. 2) D must demonstrate that a) did not participate in trial court below and did not file any post-judgment motion; AND b) there is error on the face of the record.
  93. Equitable Bill of Review
    1) Must be filed within 4 years of the date the judgment is signed. Demonstrate: 1) meritorious defense, 2) which the defendant was prevented from asserting by fraud, accident, or wrongful act of plaintiff or official mistake; AND 3) unmixed with any negligence of the defendant.
  94. Nonsuit
    Dismisses the case without prejudice to re-file. Do not prejudice the right of an adverse party to be heard on a pending claim.
  95. Summary Judgment Procedure
    1) Except on leave of court, motion and any supporting affidavits must be filed and served at least 21 days before the time specific for the hearing; 2) the adverse party, not later than 7 days prior to hearing may file and serve opposing affidavits or other written response; 3) No oral testimony; 4) Evidence is limited to affidavits and and all types of disvoery; 5) Discovery material such as depositions not on file w/ clerk may be used if discovery material is filed and served on al other parties with a statement of intent to use material as SJ proof.
  96. Summary Judgment Affidavits
    1) Must be made on personal knowledge of the affiant; 2) affirmatively show that the affiant would be competent to testify; 3) state facts that would be admissible in evidence
  97. Right to Jury Trial
    Must file a request for jury trial and pay jury fees within reasonable time, not less than 30 days before trial. After that, you have to show granting request will not injure other party, disrupt court's docket, or impede ordinary handling of court's biz. Can't withdraw request afterwards
  98. Trial Settings
    Party is entitled to reasonable notice not less than 45 days of a first trial setting. Motion for continuance if less.
  99. Motion for Continuance
    Must be in writing, under oath, and show sufficient cause, unless all parties agree.
  100. Unavailable Witness or Incomplete Discovery
    P should submit affidavit that 1) testimony is material; 2) diligence was exercised to secure; 3) cause of the problem; 4) testimony is not available from another source; 5) name/address of witness and substance of testimony; 6) continuance not for delay, but justice!
  101. Motion in Limine
    Doesn't preserve error, just a preliminary ruling. Need objection, ruling, and instruction to the jury.
  102. Voir Dire
    1) One jury shuffle allowed; 2) Challenges for Cause = unlimited and based on a) interested juror; b) witness in the case; c) bias or prejudice; d) related to a party in the action. Equival bias is not disqualified as a matter of law. Preserving error require attorney show prejudice and make known to the trial court identity of the jruror that he will be unable to strike peremptorily due to use of strike on an unqualified juror.
  103. Peremptory Challenges
    Each side gets 6. If co-parties are antagonistic, both parties can get six each, but a party may move for additionally peremptory challenges by filing motion to equalize. NOTE: objection that jury panelist excluded because of some prohibited classification = BATSON challenge.
  104. THE RULE
    Either party or on court's own motion, witnesses on both sides are sworn and removed from court room. EXEMPTIONS: natural person or the spouse of such person; officer or employee of a party and who is designated as its rep; person whose presence is shown by a party to be essential. SANCTIONS = exclude witness entirely, exclude tained part, hold in contempt, do nothing.
  105. Instructions and Definitions
    Instruction = state of rule of law; Definition = interpretation of a word or phrase
  106. Complaints to Charge
    Must be made before the charge is read to the jury and outside their presence; must be ruled on by the judge.
  107. Omissions in Charge
    Must request a submission, tenderin writing a substantially corrected worded question, and obtain a ruling
  108. Defects in Charge
    Object to portion of the charge in writing or to court reporter, state basis for objection, and obtain a ruling
  109. Trial before the Court
    May request findings of fact and conclusion of law. Must be filed with the clerk and served on all parties. Made within 20 days after the final judgment is signed. Judge has 20 days after that.
  110. Motion for New Trial
    May be based on any alleged error on part of trial court. It is a prereq for appeal on follow: 1) complaint of inadequacy or excessiveness of damages; 2) complaint on which evidence must be heard (like jury misconduct or newly discovered evidence); 3) an incurable jury argument. Must be filed within 30 days after judgment
  111. Plenary Power
    Trial court retains inherent power to set aside, modify, or amend judgment without formal written or oral motion for 30 days. Also extended an extra 30 days from denying a motion for new trial.
  112. Appeal to CoA
    You've got 30 days from judgment date unless you had a motion for new trial and then you've got 90 days from judgment date. Judgment can still be enforced unless you post a bond equlaing sum of amount of compensatory damages awarded, interest on that for estimated duration of appeal and costs awarded in judgment.