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Pain and Suffering Specific Number Not Required

Mar 10, 2014 — by Jeff Mundy
Tags: Civil Procedure

Plaintiff is not required to provide a specific detailed number in answer to interrogatories requesting an exact number for pain and suffering.

Governmental Immunity & Declaratory Judgment

Aug 15, 2013 — by Jeff Mundy
Tags: Civil Procedure Civil Rights

Sovereign immunity protects the State from lawsuits for money damages, and political subdivisions of the State are entitled to this immunity—referred to as governmental immunity—unless it has been waived.  An exception to governmental immunity exists when the plaintiff seeks declaratory relief against state officials who allegedly act without legal or statutory authority because "[a] state official's illegal or unauthorized actions are not acts of the State."  For a suit to fall within this "ultra vires" exception to governmental immunity, the suit "must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." 

County Court Jurisdiction & Pleading

Aug 13, 2013 — by Jeff Mundy
Tags: Civil Procedure

When the petition does not affirmatively demonstrate the absence of jurisdiction, the petition should be liberally construed in favor of jurisdiction.  Moreover, if the original petition is within the jurisdictional limits, but an amendment increases the amount in controversy above the court's jurisdictional limits, the court continues to have jurisdiction if the additional amount accrued because of the passage of time.   

Workers' Comp Lien - Choice of Law

Aug 12, 2013 — by Jeff Mundy
Tags: Civil Procedure


The local law of the state under whose workmen's compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury.

Restatement (Second) of Conflict of Laws § 185 (1971).

Insurance Company of State of Pennsylvania v. Neese, (Tex. App. - Dallas, 2013).

Standing to Bring a Case

Apr 30, 2013 — by Jeff Mundy
Tags: Civil Procedure


A person has standing if (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; (3) he has a personal stake in the controversy;

(4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the public's interest in the matter, as well as his own.

Willis v. Marshall, (Tex. App. - El Paso, 2013)

Injunction Law

Mar 14, 2013 — by Jeff Mundy
Tags: Civil Procedure

Trial courts possess the inherent power to modify final injunctive orders to enforce a judgment or accommodate changed conditions. We apply a two-step inquiry when reviewing the grant or denial of a such a motion. First, we must consider whether the evidence shows actual changed circumstances. 

Absent changed circumstances, a trial court lacks the authority to modify a final, permanent injunction. Id. Second, if relevant circumstances have changed, we must determine whether the trial court abused its discretion in ruling upon the requested modification.

Modification of an injunction may be appropriate when changed circumstances render an injunction "unnecessary or improper." We have said that "[w]hen the issue is whether changed circumstances warrant a modification of prior injunctive orders, a balancing of equities is not only appropriate but is also required." 

Expert Witness - Basis for Testimony

Jan 28, 2013 — by Jeff Mundy
Tags: Civil Procedure

Expert witnesses may base opinions on facts or data that the expert “has been made aware of or personally observed.” Fed.R.Evid. 703. If the facts and data relied upon are the sort that experts in that field would reasonably rely on, then those facts “need not be admissible for the opinion to be admitted." Id. Accordingly, experts may base their opinions on otherwise-inadmissible information, such as hearsay, so long as the information is the sort reasonably relied upon in the experts' field.

Duty to Preserve Evidence

Jan 4, 2013 — by Jeff Mundy
Tags: Civil Procedure


A person or a company has a duty to preserve evidence where: (1) a party knows or reasonably should know that there is a substantial chance a claim will be filed, and (2) evidence is relevant and material.

When evidence is destroyed improperly, "As recognized by the Supreme Court of Texas, trial courts "have broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions."  A trial court may also choose to exclude testimony or other evidence.  "As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case." Trevino, 969 S.W.2d at 953.

Jury Verdict Survives Death of Party to Suit

Dec 13, 2012 — by Jeff Mundy
Tags: Civil Procedure

When a party to a jury trial dies between verdict and judgment, judgment shall be rendered and entered as if all parties were living.

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