Texas Motion Practice Handbook - Knowles Publishing

1 Texas Motion Practice HandbookRelease No. 14 Knowles Publishing , Inc. | Fort Worth, TX 76111 | 1-800-299-0202 | Updates:No Evidence MotionsSummary Judgment EvidenceDismissal for Want of ProsecutionForum Non Conveniens FactorsGuardian Ad Litem Practice MotionsNew Trials - Discretion of the Trial CourtNew Case LawResearch Taking Too Long?Take advantage of our free , interactive formsAccess full text of cases and statutes in secondsDirect links to helpful websitesPowerful search featuresView entire contents of the bookInvaluable Information:Service of ProcessMotions to CompelGrounds for AppealMotions for Directed VerdictMandatory VenueLegal Sufficiency of EvidenceMotions for SanctionsMinisterial ActsEverything you need ..Conventional MotionsDiscovery MotionsMotions for ContinuanceMotions for CostsWithdrawal or Disqualification of CounselDefault JudgmentsMotions in LimineTEXAS Motion Practice HANDBOOKBy Cliff Roberson, LLM, Lawyer s Role in Motion Scope of the Trial Court s Power and in Motion Practice (a)Briefing in General(b)Presentation of Facts(c)Legal Research(d)Argument and Authorities(e)The Use of Colorful Language and FightingWords in Brief Argument(a)Preparation for Oral Argument(b)The and PhrasesCHAPTER 2 SUMMARY JUDGMENTMOTIONS AND MOTIONS TO DISMISS PURSUANT TO RULE Relating to Pleadings(a)Generally(b)Consequences to a Defendant for Failure to Plead AffirmativeDefenses or Provide a Verified Denial(c)Pleading Deadlines and Trial Amendments(d)The Effect of Allegations in the Petition or Answer(e)Summary Judgment versus Special Exceptions(f)Final Summary Judgment Disposal of All Issues(g)Partial Summary Judgment Disposal of Less ThanAll the Issues(h)

2 Affirmative Defenses(i)Negating the Discovery Rule(j)Counterclaims(k)Raising a Fact Issue(l) MotionsKNOWLES Publishing PAGE Motion (a)Defendant As Movant Conventional Motion in General(b)Plaintiff As Movant Conventional Motion in General(c)Technical Drafting Requirements(1) For Movant(2) For Respondent(d)Summary Judgment Evidence General Considerations(1) Introduction(2) Identification of Summary Judgment Evidence(3) Authentication of Summary Judgment Evidence(4) Filing Requirements(e)Summary Judgment Evidence Individual Types(1) Pleadings(2) Stipulations(3) Affidavits In General(4) Affidavits Facts As Would Be Admissiblein Evidence (5) Affidavits Interested and Expert Witnesses(6) Fed. R. Evid. 702 Testimony by Experts(7) Affidavits Expert Testimony in ProfessionalNegligence Cases(8) Affidavits Some Common Mistakes in DraftingMalpractice Affidavits(9) Affidavits Responding to Defendant s ExculpatoryAffidavit in Malpractice Cases(10) Affidavits by Attorneys Appearing in the Case(11) Admissions Generally(12) Admissions Responses to Requests for Admission(13) Depositions Generally(14) Depositions Authenticating the Transcript(15) Interrogatory Responses(16) Interrogatory Responses Duty to Supplement(17) Documents Generally(18) Documents Admission into of Motion or Response(a)For Plaintiff(b)For Defendant(c)Service and Notice(d)Service of the Response(e)Leave of Court for Late Filing/Shortening theNotice Periods(f)Timing of Objections(g)Waiver of a Record at the Hearing(a)Whether a Transcript of the Hearing Should Be Requested(b)Necessity of Hearing(c)Rulings on ObjectionsKNOWLES Publishing PAGE for Appeal(a)

3 Movant May Not Appeal the Denial of a SummaryJudgment Motion (b)Appealing the Granting of a Summary Judgment Judgment Briefs(a) Boilerplate Language Movant(b) Boilerplate Language Nonmovant(c)Briefing the Argument(d)Standard of Review of Hybrid the Judgment(a)In General(b)The Mother Hubbard to Dismiss Pursuant to Rule Judgments in of Motion or of of Summary Judgment of Motion or of to As Stated in of Summary Judgment and ErrorCHECKLISTSD efendant As MovantPlaintiff s Response to Defendant s for Summary s No-Evidence Motion for Summary s No-Evidence Motion for Summary for Summary Judgment on Summary Judgment As Prepared by Prevailing Summary Judgment As Prepared by Losing Summary Judgment As Prepared by Prevailing 11 to Motion for Summary Order on Objections to Summary Judgment Basic Testimonial Basic Affidavit Authenticating Basic Affidavit Authenticating Deposition Notice of Intent to Use Discovery Products Not Otherwise on FileKNOWLES Publishing PAGE Motion for Leave to Shorten Motion for Leave to File Late Motion for Affidavit in Malpractice Sample Affidavit by Affidavit Authenticating Deposition Business Records

4 Alternative Motion for Determination ofUncontested Issues of Findings of Uncontested Issues of Motion for Severance Following PartialSummary Objections to Attorney s Fee AffidavitLanguage for Reproducible Certificate of Service and FiatCHAPTER 3 DEFAULT of Default Judgments(a)No-Answer Default Judgments (Regular Default)(b)Judgment Nihil Dicit(Defendant Says Nothing)(c)Post-Answer Default Judgment(d)Liquidated Claims(e)Unliquidated Claims(f)Where Only Some Answer(g)Default Judgment As Court-Ordered Sanction Death Penalty Cases in Obtaining a Default Judgment(a)Parties Entitled to Take Default Judgment(b)Time to Take Default Judgment(c)General Prerequisites to Taking Default Judgment(d)Specificity in Pleading a Cause of Action to SupportJudgment by Default(e)Amended or Supplemental Petition Requirement ofNew Service Upon Defendant(f)Notice of Intention to Take Default(g)Notice of Hearing on Damages(h)Defendant s Right to a Jury Trial on Damages(i)Default on Service by of Judgment by Default(a)Requirements for a Valid Judgment in General(b)Void Judgments(c)Voidable Judgments(d)Direct Attack Versus Collateral AttackKNOWLES Publishing PAGE Judgment by Default(a)General Overview(b)Attacking an Interlocutory Default Judgment(c)Modification or Correction of Judgment(d)New Trial Generally(e)New Trial Equitable Grounds(f)New Trial Legal Grounds(g)New Trial On Service by Publication(h)Ordinary Appeal(i)Writ of Error(j)Bill of Review In General(k)Bill of Review Meritorious Defense(l)Bill of Review Fraud, Accident, or Mistake(m)Bill of Review Absence of Fault or Negligence(n)Bill of Review Time to and Arguments(a)Taking Default Judgment by Plaintiff(b)

5 Attacking Default Following DefaultCHECKLISTSP laintiff Seeking Default Judgment Upon Failure to AnswerProcedure on Service by PublicationProcedure for No-Answer Defaulting DefendantPlaintiff in Taking Dismissal or NonsuitProcedure for Defendant Upon Receipt of Nonsuit orIndication of Motion for Default for Default Judgment Liquidated for Appointment of Attorney Ad Litem onService by Order Appointing Attorney Ad Litem FollowingService By Default Judgment Following Interlocutory Default Judgment on Liquidated s Demand for Jury Trial on s Motion for Default Judgment AsCourt-Ordered Judgment As Motion for New Trial Following Entry ofDefault Certificate of Address of Defaulting DefendantLanguage for Reproducible Certificate of Service and FiatKNOWLES Publishing PAGE 5 CHAPTER 4 DISMISSAL FOR WANT OF for Dismissal for Want of Prosecution(a)Dismissal on Failure to Appear(b)Dismissal on the Court s Inherent Power(c)Dismissal for Failure to Comply With theSupreme Court of Intent to Dismiss and Notice of Dismissal(a)Notice of Intention to Dismiss(b)Notice of Dismissal Under Rule 306a(c)Making a Record of the Basis for Dismissalfor Purposes of of Case on the Docket and Reinstatementof Case on the Docket(a)In General(b)Arguing for Retention of the Case on the DocketPrior to Dismissal In General(c)The TransAmericanArgument(d) Motion to Reinstate Dismissed Case In General(e)Grounds for Reinstatement Failure to Appear(f)Grounds for Reinstatement Delay or Abandonment(g)Right to a Hearing on Motion to Reinstate(h)Evidence at Hearing on Motion to From Trial Court Orders by Mandamus, Appeal,Restricted Appeal, and Bill of Review(a)Mandamus(b)Ordinary Appeal In General(c)Ordinary Appeal Time to Perfect(d)Restricted Appeal(e)

6 Bill of and in of Trial to As Movant for Dismissal for Want of ProsecutionPlaintiff Dismissal for Want of ProsecutionKNOWLES Publishing PAGE for Dismissal for Want of Prosecution Failure to for Dismissal for Want of Prosecution Failure to Prosecute Within Supreme Court for Dismissal for Want of Prosecution Court s Inherent for Dismissal for Want of Prosecution Failure to Perform Act Within Period of TimePrescribed by (Prior to Entry of Order of Dismissal) toRetain Case on the Court s Docket Failure toAttend Trial or (Prior to Entry of Order of Dismissal) toRetain Case on the Court s Docket Failure toProsecute Within Supreme Court Motion to Reinstate Dismissed Case Failure to Attend Trial or Motion to Reinstate Dismissed Case Delay or of Dismissal for Want of Prosecution(Prepared by Defendant) Order of Dismissal for Want of Prosecution StatingSpecific Order of Reinstatement of Dismissed Motion to Determine Date on Which PlaintiffReceived Actual Notice of Request for Oral Hearing on Motion to Order Denying Motion to Order Fixing Date Upon Which Plaintiff ObtainedActual Knowledge of DismissalLanguage for Reproducible Certificate of Service and FiatCHAPTER 5 NONSUIT OR VOLUNTARY Overview(a)Who May Take Nonsuit or Voluntary Dismissal(b)Time to Take Nonsuit(c)Perfecting Nonsuit Dismissal Is EffectiveImmediately Upon Filing(d)Perfecting Nonsuit Filing Requirements and Notice(e)Perfecting Nonsuit The Omitted Defendant Rule(f)The Effect of NonsuitKNOWLES Publishing PAGE Rights to Take Nonsuit Is Not Absolute.

7 Pending Counterclaims and Sanctions(a)In General(b)Pending Claims for Affirmative Relief(c)Sanctions In General(d)Sanctions Time to Move for Award(e)Sanctions The Survivability of DiscoverySanctions in a Subsequent Suit(f)Sanctions Plaintiff s Right to Contest ImpositionFollowing Nonsuit(g)Precluding Vexatious Following Nonsuit(a)In General(b)Time to Move for Reinstatement(c)Reinstatement by Agreement(d)Grounds for Entitled to Take to Take Effect of to Take a Nonsuit Is Not Survivability of Discovery Sanctionsin a Subsequent Motion for Notice of Order of to Reinstate Dismissed (Nonsuited) Case By Plaintiff (Omitted Defendant) to Reinstate Dismissed (Nonsuited) Case By Plaintiff (Accident or Mistake, Fraud, or Collusion) to Reinstate Dismissed (Nonsuited) Case By Defendant; Other Claims for Relief Agreed Motion to Reinstate Dismissed (Nonsuited) to Reinstate Dismissed (Nonsuited) Case by Defendant for Purposes of Presenting Sanctions Motion to Sever As to Dismissed or Nonsuited Order of Severance As to Dismissed or Nonsuited Order of Reinstatement Omitted Order of Reinstatement Accident/ Order of Reinstatement Inadvertent Final Agreed Order of Agreed Order of Reinstatement for Purposes of Sanctions HearingLanguage for Reproducible Certificate of Service and FiatKNOWLES Publishing PAGE 8 CHAPTER 6 MOTIONS FOR General(a)Applicability to Motions for Summary Judgmentand Other Hearings(b)Discretion of the Trial Court(c)Requirement of Verified Motion for Continuance(d)Waiver of Defect of Lack of Verified Motion byFailing to Object(e)Effect of Compliance With Rule 252(f)Announcing Ready (g)Waiver of Complaint by Failure to Obtain a for Continuance(a)Absence of Counsel In General(b)

8 Absence of Counsel The Unyielding Trial Court (c)Absence of a Witness(d)The 100-Mile Rule (e)Failure or Inability to Obtain Trial Counsel(f)Continuance to Conduct Discovery(g)Continuance Due to Illness of Party or Witness(h) Motion for Continuance When Faced With a Motionfor Leave to File Trial Amendment(i)Legislative Continuance Attendance on Legislature(j)Agreed Pass of Trial Setting(k) Continuance Under Tex. R. Civ. P. 245 MinimumForty-Five-Day Notice of First Trial of Counsel/ to Conduct Motion for ContinuanceNonmovant Motion for Motion to Pass Trial on Agreed Pass of Trial Motion for on Agreed Motion for Motion for Continuance and Request for Special on Agreed Motion for Continuance and Preferential for Continuance Want of on Motion for Continuance Want of TestimonyKNOWLES Publishing PAGE for Continuance Following Announcement of Ready Order on Motion for Continuance Following Announcement of Ready Motion for Continuance Absence of Order on Motion for Continuance Absence of Motion for Continuance Needed Order on Motion for Continuance Needed Motion for Continuance Illness of Order on Motion for Continuance Illness of Motion for Continuance On Trial Order on Motion for Continuance Trial Motion for Continuance Attendance in Order on Motion for Continuance Attendance in LegislatureLanguage

9 For Reproducible Certificate of Service and FiatCHAPTER 7 SERVICE OF PROCESS AND RELATED Relating to Issuance and Service of Process(a)Issuance and Form of Citation(b)Pleading Facts That Would Enable ProperIssuance and Service(c)Tolling the Statute of Limitations Diligencein Securing Service(d)Reissuance Upon Amended Complaint(e)Who May Serve(f)Duty of Officer or Person Receiving(g)Method of Service(h)Location Where Personal Service May BeHad/Refusal to Accept(i)Return of Service(j)Defendant Without State(k)Service of Process in Foreign Countries(l)Citation by Publication(m)Amendment of Citation or Process(n)Acceptance of Service/Waiver of Upon Whom Service May Be Made(a)Service on Noncorporate Business Agents(b)Service on a Partnership(c)Service on an Unincorporated Joint Stock Association(d)Service on the State of Texas or a Political Subdivision(e)Service on an Insurance Company(f)Service on a Domestic Corporation(g)Service on a Foreign Corporation(h)Service Upon a Landlord in a Suit by Tenant(i)Substituted Service on Secretary of State(j)Substituted Service on the Chairman of the StateHighway and Public Transportation CommissionKNOWLES Publishing PAGE Defective Service of Process(a)Motions to Quash In General(b) Motion for New Trial As Prerequisite to Appeal(c)Default Judgments Raising Defects in ProcessFollowing Judgment by Default(d)Default Judgments Service by Appearance(a)Special Appearance Under Rule 120a(b)Special Appearance What Constitutes Sufficient Minimum Contacts Such That the Defendant Is Amenable to Process in Texas in Perfecting Defective AppearanceCHECKLISTSP laintiff Service of ProcessDefendant Service of Letter Requesting Issuance of of Authorizing Private Process of Private Process for Substituted Ser