PROFESSOR ELAINE GRAFTON CARLSON South Texas College of Law 1303 San Jacinto, Suite 755 Houston, Texas (713)

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1 TEXAS PROCEDURE UPDATE: An Analysis of Recent Cases, Amended and Proposed Rules of Procedure & Legislative Enactments Affecting Texas Litigation Practice PROFESSOR ELAINE GRAFTON CARLSON South Texas College of Law 1303 San Jacinto, Suite 755 Houston, Texas (713) COURTNEY TAYLOR CARLSON Jackson Walker L.L.P McKinney Houston, Texas (713) State Bar of Texas 29 TH ANNUAL LITIGATION UPDATE INSTITUTE January 10-11, 2013 Austin CHAPTER 18.2 *These materials are largely excerpted from McDonald & Carlson, Texas Civil Practice (2012 Supplement), West Publishing. Westlaw Database: txcp

2 TABLE OF CONTENTS Pretrial and Trial... 1 Filing Deadlines-Mailbox Rule... 1 Filing Deadlines-Fax... 1 Attorneys... 1 Courts... 6 Actions In General Litigation Funding Agreements Declaratory Judgments Class Actions Injunctions Preemption Parties Ve nue Multi District Litigation Consolidation Pleading: In General Verified versus Affidavit Judicial Admissions Sanctions Tria l By Consent Pleading: Petition Pleading: Answer Immunity Review of Immunity Rulings Limitations & Repose Amended Pleadings Law of the Case Jurisdiction, Service of Process, and Ancillary Proceedings Special Appearances Standing Attacks on Defective Service Forum Non Conveniens Injunctive Relief Discovery Scope of Discovery Electronic Discovery Depositions in General Rule 202 Depositions Discovery Regarding Experts & Expert Reports Request for Admissions Attorney Client & Attorney Work Product Privilege Accountant-Client Privilege i

3 Staying Discovery Medical Privileges Dental Patient Privilege Trade Secret Privilege Procedures To Claim Privilege Shared Discovery Discovery From Non-Party Discovery From Jurors Post Judgment Discovery Sealing Court Records Contempt and Sanctions Daubert Rulings Appraisal Arbitration Trial Setting, Continuance & Abatement Summary Judgment Motions In Limine Notice of Trial Setting Jury Trial Nonjury Trial Motion for Judgment in Nonjury Trial Right to Jury Trial Jury Se lection The Jury Charge Closing Argument To The Jury Judgments In General Finality of Judgments Proposed Judgment Agreed Judgment Reducing Judgment Due To Proportionate Responsibility Reducing Judgment Due To Statutory Caps Election of Remedies Costs of Court Exemplary Damages Attorney Fees In General Equitable Attorney Fees Appellate Attorney Fees Awarded in the Judgment Segregation of Attorney Fees Attorney Fees for Legal Assistant s Work Attorneys Fees-UIM Claims Attorneys Fees-Breach of Express Warranty Prejudgment and Postjudgment Interest Guardian Ad Litem Fees Judgment Nunc Pro Tunc Void Judgment Non Suit ii

4 Dismissal Dismissal Due to Absence/Deficiency in Expert Report Dismissal For Want of Prosecution Default Judgments Settlement Motion for New Trial and Other Post-Judgment Motions Bill of Review Supersedeas Enforcement of Domestic Judgment In General Fraudulent Transfer Receivership Turnover Orders to Enforce Judgment Enforcement of Out-Of-State and Federal Judgments Full Faith and Credit Venue of Actions to Enforce Foreign Judgments Appellate Review Preservation of Error Suspension of Appellate Rules Appeals from Parental Termination Orders Appeals from Summary Judgments Appeals from Granting Motion for Judgment in Nonjury Cases Standing to Appeal Jurisdiction of Appellate Courts Appealable Judgments and Orders Final Judgment Interlocutory Appeals Appellate Timetables Motions in the Court of Appeals Motion to Disqualify Appellate Justice Motion For En Banc Reconsideration Motion to Supreme Court Regarding Appellate Security Treated as Mandamus Motion to Seal Appellate Court Record Briefs in the Court of Appeals Anders Brief Parental Termination Cases Compla int Raised For First Time in Reply Brief Complaint Raised In Body of Brief But Not In Points Complaint Raised In Motion For Rehearing Inadequate Briefing Petitions for Review in the Supreme Court Raising Complaint For The First Time Before the Texas Supreme Court Effect of a Timely Filed Motion for Reconsideration En Banc Stare Decisis Accelerated Appeals Restricted Appeals Indigent Appeals iii

5 Cross-Appeals and Multi-Party Appeals Disposition of the Case on Appeal Frivolous Appeals Mandamus Writ of Prohibition Habeas Corpus The Appe llate Record Challenging the Sufficiency of the Evidence Enforcement Proceedings and Other Activities While the Case Is in the Appellate Court Recovery on Alternate Theory: Preservation of Error in the Trial Court Restitution of Payment of Judgment Reversed on Appeal APPENDIX A Recently Amended Rules of Procedure & Legislative Enactments Affecting Litigation Unsworn Declarations In Lieu of Affidavits Changes to Return of Service Practice Free Online Access to Local Rules of Texas Courts Amount in Controversy Jurisdiction Raised in County Courts At Law Small Claims Court Abolished Probate Code Repealed Offers of Settlement Discre tionary Inte rlocutory Appe als Responsible Third Party Designation Limited Conduct of The Jury Notice of Constitutional Challenges to Attorney General Appeals in Commercial Eviction Cases Now Allowed Anti-Slapp Suits Appellate Briefs Measured By Number of Words Not Pages Electronic Filing Mandated In Appellate Courts Parental Rights Termination Cases Reporter s Record Expedited Foreclosures Cases Needing Additional Resources APPENDIX B Proposed Texas Rule Changes Pending before the Texas Supreme Court Rules for Early Dismissal of Cases On the Pleadings Rules for Expedited Proceedings for Civil Cases under $100, Rules of Procedure Governing Justice Court Rules for Court Approved Forms For No Contest Divorces Ancillary Rules of Procedure iv