TX Civ Pro

Question 1

in order for TX court to acquire specific PJ over a nonresident ∆ what is required

Answer 1

• cause of action must arise from ∆’s act or transaction in TX
• ∆ must purposefully do some act or consummate some transaction in TX
• assumption of jurisdiction by TX must not offend traditional notions of fair play and substantial justice

Question 2

to avoid default judgment in DC, a written answer to a lawsuit must be filed

Answer 2

by 10am on the first Monday after the expiration of 20 days from the date ∆ was served with process

Question 3

when must a special appearance be filed

Answer 3

prior to or simultaneous with any pleading or motion

Question 4

if not challenged, the objection to venue is deemed…

Answer 4

waived

Question 5

general venue rule

Answer 5

• county in which all or substantial part of the events or omissions giving rise to the claim occurred
• county of ∆’s residence at the time the cause of action accrued
• county of ∆’s principal office in the state if the ∆ is not a natural person
• if none of the above then the county in which P resided at the time of the accrual of the action

Question 6

a court may transfer an action from a county with proper venue to any other county of proper venue if it finds…

Answer 6

• the transfer of the action would not work an injustice to any other party
• maintenance of the action in the county of the suit would work an injustice to the movant, considering the movant’s economic and personal hardship
• the balance of interests of all parties predominates in favor of the action being brought in the other county

Question 7

P’s response to a motion to transfer venue must be filed 30 days before the hearing and must contain…

Answer 7

• affidavits to prove matters specifically denied by ∆ AND
• specific denial of any of ∆’s pleaded venue facts which P wishes to contest
• need not be verified

Question 8

P has pleaded facts supporting the venue of the court and ∆ files motion challenging venue denying these facts… what is the best way to ensure the court finds the venue proper?

Answer 8

P replies 30 days before the hearing on venue, stating ∆’s motion to transfer was made after filing an answer and was therefore not filed in due order

Question 9

in a suit where multiple claims arise out of the same series of transactions what are viable challenges to venue

Answer 9

• in a suit involving multiple Ps, a challenge alleging that venue is not established by each P
• challenge alleging that the P brings suit in the county appropriate for his first claim, but a subsequent claim is controlled by mandatory venue provisions
• in a suit involving multiple ∆s where venue is not proper, the first answer to be filed fails to raise the issue of venue, but another ∆ subsequently challenges venue in his answer

Question 10

what might ∆ properly file in response to P’s pleading that makes an overly vague negligence claim

Answer 10

special exception pointing out with particularity the vagueness in P’s pleading

Question 11

special exception

Answer 11

objection to form or substance which identifies the particular pleading excepted to and points out the specific problem with the pleading

Question 12

motion to quash

Answer 12

dilatory plea that delays or defeats an action without determining the merits of the matter
- used to challenge service of process

Question 13

if P does not amend the pleadings after the court sustains a special exception, the court may…

Answer 13

strike those parts of the pleadings and if no cause of action still exists in the remainder of the pleadings, dismiss the case without prejudice

Question 14

what issues does a plea in abatement address

Answer 14

defects in the pleadings

• challenges a P’s pleadings by alleging facts arising outside the petition set forth reasons why the case should be suspended or dismissed
• does not challenge venue or jurisdiction

Question 15

within _____ days of filing an answer, a ∆ may file _____ to join a 3rd party who is liable to the P for all of P’s recovery

Answer 15

30 days; 3rd party petition

Question 16

when may ∆ bring in a 3rd party ∆

Answer 16

• 3rd party will be liable to him for all or part of the P’s recovery OR
• 3rd party is directly liable to P
• unless ∆ asserts 3rd party claim within 30 days after filing his answer he must obtain leave of court

Question 17

discovery of a consulting expert’s ID and work product are discoverable if…

Answer 17

the expert’s opinions or impressions have been reviewed by an expert who will testify at trial

Question 18

under level II discovery control plan, if the cumulative duration of oral depositions is exceeded, what action may be taken

Answer 18

a W may suspend the deposition if the time limitation has expired
- under level II each side may have no more than 50 hours of deposition time to examine and cross examine

Question 19

under what circumstances may a ∆ call to testify at trial a W whose ID had not been disclosed in response to discovery

Answer 19

∆ must show either good cause for the nondisclosure OR that the opposing party will suffer no prejudice or surprise

Question 20

if ∆ was served with discovery requests before his answer to the petition is due he has ___ days from service of the requests for disclosure

Answer 20

50

Question 21

Rule 194

Answer 21

IDs discoverable matters that are so automatic they are not subject to objection

• testifying expert’s name, address, phone
• in PI cases medical bills reasonably related to injuries

Question 22

a party may gain entry on designate land or other property to inspect, measure, survey, test, or sample the property or designated object by…

Answer 22

serving a request on all parties OR a motion for good cause shown and notice of hearing on all parties and the nonparty

Question 23

production of documents and things may be requested from…

Answer 23

a nonparty by obtaining a court order or by serving a subpoena compelling the specific form of discovery

Question 24

when may a court allow withdrawal of an admission

Answer 24

• 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

Question 25

if a ∆ fails to appear at his deposition, the P may may...

Answer 25

move the court for sanction

Question 26

if a ∆ objects to a request to produce when must he file a motion for a protective order

Answer 26

within 30 days after service of the subpoena

Question 27

what does notice of deposition when sent to a party act as

Answer 27

subpoena - ∆ may not ignore the notice

Question 28

motion for a protective order may be used to object to the...

Answer 28

time and place of deposition before the time for compliance - if objection is raised within 3 business days of service, the objection stays the deposition until the objection is resolved

Question 29

where may a W be deposed

Answer 29

- county of the W's residence - county where the W is employed or regularly transacts business in person - county of suit (if W is party) - county where W is served with subpoena or within 150 miles of the place of service

Question 30

objections made during a deposition that are likely to be sustained

Answer 30

- ∆ objects to P's attorney conferring with a W about a question - P's attorney objects to leading questions - ∆'s attorney objects that the W's answers are nonresponsive

Question 31

if ∆ is served with notice of deposition and request for production of documents at the deposition, the deposition may be held

Answer 31

30 days from the date the notice was served

Question 32

under TX state law, a party may move for summary judgment...

Answer 32

alleging that there is no genuinely disputed fact OR that the adverse party has no evidence or one or more elements of a claim or defense

Question 33

summary judgment evidence must be submitted by the moving party ONLY if...

Answer 33

the ground is that there is no genuine issue of material fact

Question 34

what may be used to support a motion for summary judgment

Answer 34

- affidavits - deposition transcripts - authenticated or certified public records - NO ORAL TESTIMONY

Question 35

evidence of a formal settlement offer made under TRCP is...

Answer 35

admissible only for the purpose of enforcing the settlement agreement or obtaining litigation costs

Question 36

when a judge rules against a party regarding the admissibility of her evidence in a motion in limine, to preserve issue for appeal, the party must...

Answer 36

approach the judge outside the presence of the jury to get a final ruling, then submit an offer of proof or bill of exceptions

Question 37

prospective jurors may be challenged for cause if the juror is...

Answer 37

- interested directly or indirectly in the case - is a W in the case - has a relationship to a party within the 3rd degree - was on a previous jury that tried the same case or one identical in factual issues - has bias or prejudice in favor of or against a party in the case

Question 38

when ∆ has raised and affirmative defense and the jury finds for P, what must ∆ show to be successful on a motion for judgment not withstanding the verdict

Answer 38

∆ has conclusively proved all elements of the defense, or P has failed to produce any evidence on his claim

Question 39

a motion for new trial is required as a prerequisite as to...

Answer 39

- complaint on which evidence must be heard - complaint of factual insufficiency to support jury finding - complaint that jury findings are against the great weight and preponderance of the evidence - complaint of inadequacy or excessiveness of damages found by jury - improper, incurable jury argument

Question 40

how long before a court loses plenary power when a motion for new trial is filed

Answer 40

105 days after the order was singed

Question 41

verdicts in civil cases can be rendered by how many members

Answer 41

10 members of an original jury of 12 or 5 members of an original jury of 6 - all 10 or 5 must agree to all the answers and each must sign the verdict

Question 42

affidavits used in support of a motion for summary judgment must meet all of the following requirements

Answer 42

- based on personal knowledge - affirmatively show the affiant is competent to testify - be based on admissible evidence