Venue and Jurisdiction in Civil Litigation, Exams of Civil procedure

Download Venue and Jurisdiction in Civil Litigation and more Exams Civil procedure in PDF only on Docsity!

Texas Civil Procedures

what does the general venue provision of the TX Civil Practice and Remedies code state?correct answerAll Lawsuits shall be brought: (1) in the county in which all or a substantial party of the events or omission giving rise to the claim occurred (2) in the county of the D's residence at the time the cause of action accrued if the D is a natural person (3) in the county of the D's principal office if the D is not a natural person (where the decision makers are) what is mandatory venue?correct answercompulsory only if the D challenges the P's venue by filing a proper motion in certain cases. Is an interlocutory appeal available for venue determinations?correct answerNO To what does the court look to in determining venue questions?correct answerthe pleadings and affidavits On appeal from the trial on the merits, if venue was improper...correct answerIt shall in no event be harmless error and shall be reversible error. Appellate court looks to entire record to determine if venue was proper. how does the D raise a question of proper venue?correct answerby filing a motion to transfer/change venue when must a motion to transfer be filed?correct answermust file a motion to transfer venue prior to or concurrent with the answer, except the special appearance that must be filed first. can D waive venue?correct answerYes if it is not timely raised.

A motion to transfer venue must statecorrect answerthat the action should be transferred to another county because the county where the action is pending is not the proper county, or that venue is mandatory in another county, and the legal and factual basis for the transfer of the action, and request transfer of the action to a specific county A change in venue due to impartial trial may be granted in civil cases upon...correct answermotion of either party supported by his own affidavit and the affidavit of three credible persons in the county in which the suit is pending when are answers due?correct answer10am, Monday next, at the expiration of 20 days of service of process how many days of notice of a hearing on a motion to transfer venue is a party entitled tocorrect answer45 days any response to a motion to transfer venue or opposing affidavits must be filedcorrect answerat least 30 days prior to the hearing of the motion to transfer the movant is not required to file a reply to the response, but any reply or additional affidavits must be filedcorrect answernot later than 7 days prior to the hearing when the venue fact is specifically denied, the party pleading the venue fact (P) must makecorrect answera prima facie proof of that venue is a motion to transfer venue verified?correct answerNo. are hearings on motions to transfer conducted in from of a jury?correct answerNo. what is a motion to severcorrect answerit creates two lawsuits, and a judgment in either one is final and appealable. what is a motion for separate trials?correct answerdivides the case into two or more parts, which are tried separately to the same jury and resolved by one final judgment.

the Texas long-arm statutes enable the Texas courts to assert PJ over a non-resident D whencorrect answerthe D has established minimum contacts with the state and the exercise of such jurisdiction comports with traditional notions of fair play and substantial justice a document is considered timely filed if it is electronically filedcorrect answerat any time before midnight on the filing deadline exceptions: (1) if a doc is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Sat, Sun, or legal holiday AND (2) if a doc requires a motion and an order allowing its filing, the doc is deemed filed on the date the motion is granted. what steps must P take to provide D with formal notice of the filing of the lawsuit and require him to respond?correct answerP must request that the clerk of the court issues a citation, and he must formally serve process (service of citation and petition) on D in any method allowed under TX law- personal deliver, certified or registered mail. unless the citation or an order of the court otherwise directs, the citation must be served bycorrect answer(1) delivering to the D in person or (2) mailing it to the D by registered or certified mail, return receipt requested when is the secretary of state served?correct answerthey are an agent for service of process on a nonresident who engages in business in TX, but does not maintain a regular place of business in TX in any proceeding that arises out of the business doe in this state and to which the nonresident is a party (this must be alleged in the petition) how to you serve the secretary of statecorrect answerby certified mail, return receipt requested, and must get a Whitney certificate (proof it was forwarded to D) A person who has been served and wishes to challenged the courts PJ mustcorrect answermake a special appearance, it must be verified, and it must be done before any other motion, plea, or pleading. on what grounds does a persona make a special appearancecorrect answerthat they don't have sufficient min contacts or it would not comport with trad'l notional of fair play an substantial justice.

D files a special appearance to challenge the court's PJ. on what basis does the court determine the special appearance?correct answerthe court determines the special appearance on the basis of pleadings, any stipulations made between the parties, affidavits filed by the parties, results of discovery processes, and oral testimony. you represent in a products liability suit, state a) what pleading you should file to contest PJ, b) what should you say in that pleading c)whether the pleading must be verified d) whether the D's participation in discovery waives the contest of jurisdiction e) in what form you may present evidence for consideration by the court in deciding jurisdictioncorrect answera) special appearance b) D does not have min contacts and assertion that juris would offend trad'l notions of fair play and subs. justice. c) must be verified d) no, does not waive juris e) pleadings, affidavits, stipulations, discovery excerpts, and oral testimony P sues D for negligence. D counterclaims for slander arising from an unrelated matter. If D is concerned his case will be prejudiced if it's heard at the same time as P's case in chief, what should he file?correct answermotion for separate trials an original pleading must containcorrect answer(1) short statement of COA (2) statement that the damages sought are within the jurisdictional limits of the court (3) a statement that the party seeks: (a) only monetary relief of $100,000 or less (b) monetary relief of $100,000 or less and non-monetary relief (c) monetary relief of $100k but not more than $200k (d) monetary relief over $200k but not more than $1 mil (e) monetary relief over $1 mil and a demand for judgment for all the other relief to which the party deemed himself entitled if the party does not specify enough in the pleadingcorrect answerfile a special exception and require the pleader to amend so as to specify the maximum amount claimed. A party that fails to do so may not conduct discovery until he party's pleading is amended. The expedited actions process applies tocorrect answerall suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages, penalties, costs, expenses, pre-judgment interest, and attorney fees, except for suits

governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code what is the procedure for an expedited action?correct answerOn any party's request, the court must set the case for a trial date that is within 90 days after the discovery period in Rule 190.2(b)(1) ends. The court may continue the case twice, not to exceed a total of 60 days Each side is allowed no more than eight hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. On motion and showing of good cause by any party, the court may extend the time limit to no more than twelve hours per side. When is a dismissal of baseless cause of action appropriate?correct answerwhen the COA has no basis in law or fact a cause of action has no basis in law ifcorrect answerthe allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought a cause of action has no basis in fact ifcorrect answerno reasonable person could believe the facts pleaded does a party waive a special appearcance or a motion to transfer venue by filing a motion to dismiss for a baseless COA?correct answerno, by filing a motion to dismiss for a baseless COA a party submits to the court's jurisdiction only in proceedings on the motion itself. a motion to dismiss for baseless COA mustcorrect answer(1) state that it is made pursuant to Rule 91a (2) identify each COA to which it is addressed; and (3) state specifically the reason the cause of action has no basis in law, fact, or both. a motion to dismiss for baseless COA must be filedcorrect answerwithin 60 days after the first pleading containing the challenged cause of action is served; and at least 21 days before the motion is heard. a motion to dismiss for baseless COA must be granted or deniedcorrect answerwithin 45 days after the motion is filed

any response to the motion to dismiss for baseless COA must be filedcorrect answerno later than 7 days before the date of the hearing Must the court conduct a hearing for a motion to dismiss for baseless COA?correct answerNo. a court may, but is not req'd to, conduct a hearing. if it elects to each party is entitled to 14 days notice. when does the D have to raise and affirmative defense?correct answermust raise it in the answer. Usually they test accord and satisfaction or release. does an affirmative defense have to be verified?correct answerno What is a special exceptioncorrect answerD files it to challenge a defect in the pleading. must point out with particularity the defect. what pleading must P file in order to assert its corporate status and protect its shareholders from individual liability?correct answerto assert that it has been sued in the wrong capacity, assert its corporate status and protect its shareholders from liability, P should file a verified denial and a motion to abate. The motion should identify the impediment to the continuation of the lawsuit, identify the defect, and request that the court suspend the suit untie the P cures the defect. a counterclaim is compulsory ifcorrect answer(1) claim is within the courts juris (2) claim arises out of same T and O (3) claim does not require for its adjudication the presence of third parties of whom the court cannot require juris a party can file an impleader without leave of courtcorrect answerif its within 30 days after he serves his original petition, after 30 days must get leave of court. pleas to the jurisdiction challengecorrect answerthe courts SMJ and can be made at any time please in abatementcorrect answerchallenges the plaintiff's pleadings by alleging facts outside the pleadings that prove the suit cannot go forward in its present condition

the D, a nonresident of TX, challenges the court's PF by filingcorrect answerspecial appearance if the case should be tried in another county because of local prejudice filecorrect answermotion to change venue if another Texas court has exclusive jurisdiction file acorrect answerplea to the jurisdiction if the pleadings do not state a cause of action because they do not include the element of injury filecorrect answerspecial exception if there is the Same dispute in another Texas court filecorrect answerplea in abatement if The court does not have jurisdiction over the subject matter of this suit file acorrect answerplea to the jurisdiction if The plaintiff did not verify its petition file acorrect answerspecial exception if The county chosen by the plaintiff is not a proper county file acorrect answermotion to transfer venue what are the forms of discoverycorrect answer1. request for disclosure

2. request for production
3. request for entry and examination of real prop
4. interrogatories to a party
5. requests for admission
6. oral or written depositions
7. motions for mental or physical examinations a party may obtain discover concerning testifying expert wits only throcorrect answerrequest for disclosures, depositions and court ordered reports

the scope of discovery includescorrect answera. Documents and tangible things b. Persons with knowledge of relevant facts c. Trial witnesses d. Testifying and consulting experts e. Indemnity and insuring agreements f. Settlement agreements g. Statements from persons with knowledge of relevant facts h. Potential parties i. contentions what is core work productcorrect answerCore work product—the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories—is not discoverable. work product besides core work product is discoverable only upon a showing that the party seeking discovery hascorrect answersubstantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. Level 1 Discoverycorrect answerapplies to expedited suits. All discovery must be conducted in period beginning when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. Depo- 6 hours, parties can agree to up to 10 Interrogatories- 15 request for production- 15 request for admission- 15 to determine if D has liability insurance P cancorrect answerserve a request for disclosure, interrogatories, and a request for production of documents

all parties timely file motions to quash the depositions and the notices of the other parties. In what county should the trial court order the depositions to be taken?correct answerIn the absence of an agreement, party depositions may be taken in the county of suit D moves to compel P to respond to his request to disclose her trial witnesses. How should the court rule?correct answerThe court should grant D's motion to compel and order P to disclose the trial witnesses. In addition to discovery of fact witnesses, the 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. list five categories of discovery that you may obtain through a request for disclosurecorrect answer1. Correct party names.

2. Damages.
3. Fact witnesses.
4. Retained testifying experts.
5. Medical records which for of discovery is not subject to any objection?correct answerUnder the Texas Rules of Civil Procedure, Requests for Disclosure are not subject to any objection or assertion of work product. when must D file an answer to the petition to avoid default judgment and what is the deadline for each D to file responses to the requests for production?correct answerUnder the rule, defendants must file an answer by 10:00 am on the first Monday after the expiration of 20 days from the date the defendants were served with process. Generally, responses to written discovery are due within 30 days of service, but since the Requests for Production was served before defendants' answers were due, the response is due 50 days after service of the request. Paul's attorney sends Tools attorney a request for admission asking Tools to admit within 31 day of service of the request, that Tools was the manufacturer of the electric saw in question. Forty (40) days after Tools attorney received the request for admission, he served Paul's attorney with a response denying the request for admission. What is the effect of that response and what must Tool's attorney do and show to change that result? Explain fully.correct answerUnder the rule, defendants must file an answer by 10:00 am on the first Monday after the expiration of 20 days from the date the defendants were served with process. Generally, responses to written discovery are due within 30 days of service, but since the Requests for Production was served before defendants' answers were due, the response is due 50 days after service of the request. [TRCP 99, 196.2].

how can P's attorney preserve privileged material requested during discovery?correct answerP's attorney must assert a privilege within the time period for the response by withholding the privileged information from the discovery it produces. He does this by filing either in the response or in a separate document, a withholding statement stating 1) that information responsive to the request is being withheld; 2) that identifies the request to which the information relates; and 3) that identifies the privilege asserted During an oral deposition, an attorney begins to insult the deponent and to make suggestive and offensive comments. You represent the deponent, what remedies do you have under the rules?correct answerIf the deposition is being conducted in violation of the rules, you may suspend the oral depositions, move for a protective order, and sanctions. when can P get a default judgmentcorrect answerIf a defendant who was properly served does not file an answer within the prescribed time period (i.e., at 10:00 a.m. on the Monday next following the expiration of 20 days after the date of service), and the citation with the officer's return has been on file with the clerk for ten days, exclusive of the day of filing and the day of judgment, the plaintiff may take judgment by default. P must certify to the clerk in writing the last known mailing address of the D. when can a party get traditional summary judgment?correct answerSummary judgment will be granted when the pleadings, affidavits, and other discovery documents show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion. what are the notice and service requirements for summary judgmentcorrect answer(1) The motion and any supporting affidavits must be filed and served: at least 21 days before the time specified for hearing (2) The opposing party may file and serve opposing affidavits or other written response not later than seven days prior to the day of hearing. when can a party get a no-evidence summary judgmentcorrect answerAfter adequate time for discovery, a party without presenting summary judgment evidence 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 an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact

how many days notice does a party get for trialcorrect answerA party is entitled: to at least 45 days' notice of the first setting of a date for trial. what is a motion in liminecorrect answerA motion in limine is a common-law procedural device that is used to prevent the other party from introducing prejudicial evidence or asking prejudicial questions in front of the jury without first obtaining the court's permission. what is placing a witness under rulecorrect answerAt the request of a party in a civil case, witnesses must be sworn and removed out of the courtroom to a place they cannot hear the testimony of other witnesses. who may motion for a directed verdictcorrect answerA party may move for a directed (instructed) verdict at any time after the opposing party has been fully heard with respect to the issue or claim, but before the case has been submitted to the jury. what are the grounds for a motion for directed verdictcorrect answerno evidence conclusive evidence (moving party presented conclusive evidence to prevail on the issue or claim) Before closing arguments begin, the court must give to each member of the jury a copy of the charge, which must includecorrect answerwritten instructions, with such modifications as the circumstances of the particular case may require. Rule 226a. how many peremptory challenges does a party getcorrect answerWhen there is only one party on each side, each party is entitled to: six peremptory challenges in district court and to three in county court. what is a motion to equalize strikescorrect answerIn multiple party cases, upon motion of any litigant made prior to the exercise of peremptory challenges, it shall be the duty of the trial judge to equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. when must a request for findings of fact and conclusions of law be made?correct answerwithin 20 days after judgment when must the court file their FOF and COLcorrect answerwithin 20 days of the request

what if the court doesn't file their FOF and COL in timecorrect answerparty has 30 days after filing of the original request a motion for a new trial must be filedcorrect answerwithin 30 days after the judgment or other order complained of is signed if you are going to appeal any of the following, you must motion for a new trial firstcorrect answer(1) a complaint on which evidence must be heard, such as one of jury misconduct or newly discovered evidence or failure to set aside a judgment by default; (2) a complaint of factual insufficiency of the evidence to support a jury finding; (3) a complaint that a jury finding is against the overwhelming weight of the evidence; (4) a complaint of inadequacy or excessiveness of the damages found by the jury; or (5) incurable jury argument if not otherwise ruled on by the trial court. In the event an original or amended motion for a new trial or a motion to modify, correct or reform a judgment is not determined by written order signed withincorrect answer75 days after the judgment was signed, it will be considered overruled upon expiration of the period. the Court May grant a new trial if jury misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination, iscorrect answermaterial, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party. A juror may not testify as tocorrect answerany matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict. Except a juror may testify whether any outside influence was improperly brought to bear upon any juror. What steps should the attorneys take to challenge this potential juror?correct answerUnder Texas practice, a potential juror can be disqualified from serving on a case if the juror has a bias or prejudice in favor or against a party in the case. If the juror cannot be "rehabilitated," and the record as a whole

establishes a prejudice that renders her unfit, they can make a challenge for cause. If the challenge for cause fails, they could use a peremptory strike. What pleading should D file to bring to the court's attention the issue of no factual or legal basis for P's claims against Mercy. Explain fully.correct answerTo bring to the court's attention the issue of no factual or legal basis for P's claims against D, it should file either a traditional or a no-evidence motion for summary judgment. In the traditional motion, the court must determine whether D has established whether there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In the no-evidence, after adequate opportunity for discovery, D will assert that there is no evidence to support one or more specified elements of P's claim. The trial court sets the case for trial for the first time with thirty days notice (30) to all counsel. D objects to the trial setting. How should the court rule?correct answerobjection should be sustained. Under the rule, the court must give the parties 45 days' notice of the first trial setting P was recently cited by the USDA for food safety violation. The citations, however, were subsequently dismissed. What pleading should P file to prevent these matters from being discussed during voir dire or opening statement?correct answerPshould file a motion in limine, designed to avoid the injection into trial of matters which are irrelevant and prejudicial, such as here, that P was previously cited for food safety violations. If the judge denies the motion, at trial, the party seeking to introduce the evidence must offer the evidence and the party who wants to exclude it (P) must make a timely and specific objection and obtain a ruling. If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury for a ruling on its admissibility before offering it in front of the jury. what is a judgment notwithstanding the verdictcorrect answera. Upon motion and reasonable notice, the court may render judgment non obstante veredicto (notwithstanding the verdict): if a directed verdict would have been proper. b. Furthermore, the court may, upon like motion and notice: disregard any jury finding on a question that has no support in the evidence