Index

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 1379-1516

I-1

Index

— A —

Abandonment of Actions

Dismissal of actions, 37:365

Partial summary judgment, abandonment as nonsuit, 36:62

Abatement of Proceedings

See also Plea in Abatement

Failure to give notice of claim, 3:22

Venue, transfer motion does not abate proceedings, 9:177, 9:199

Abuse of Discretion. See Discretion of Court

Accord and Satisfaction

Affirmative defense, 14:318

Accounts and Accounting

Escrow account. See Escrow Account

Statutes of limitations

Accountants and auditors, professional negligence or malpractice, 3:276–278

Open account or account stated, 3:135

Partnership accounting, 3:136

Sworn account

Allegation in petition, 14:222

Special denial requiring verification, 14:283

Temporary injunction freezing account, interlocutory appeal, 17:332

Ad Valorem Tax Suits. See Taxes

Addresses, Telephone Numbers, and Web Addresses

Corporation’s notice of address change, Secretary of State, 10:164

Government searches, websites for, 2:47

Texas Secretary of State, 10:50

Administrative Proceedings

Exhaustion of remedies. See Exhaustion of Administrative Remedies

Plea in abatement, pending proceedings, 14:385, 15:182

Service, review of administrative agency’s action, 10:20, 10:86

Admissions

See also Requests for Admissions

Amended pleadings, original pleading used as admission, 15:61

Depositions

Party-opponent’s admissions, 28:31

Settlement leverage, admissions as, 28:23

Failure to answer as deemed admission, 14:244, 14:258, 14:265

Interrogatories, 30:64

Judicial admissions

Pleadings, 14:16–18, 14:471

Service, 10:528

Summary judgment motion, 36:311, 36:346

Adoption

Statutes of limitations

Generally, 3:317

Discovery rule, effect on adoptee’s claim to inherit from birth parent, 3:419

Adverse Possession

Statutes of limitations, 3:302–312, 3:473

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE I-2

Advertising

Deceptive advertisements, effect on jurisdiction, 8:292, 8:331

Doing business in state, effect of advertising for Texas business on jurisdiction, 8:216

Affidavits and Declarations

Authenticating affidavit, 36:271

Capacity defense, affidavit supporting, 6:188

Class action certification, affidavits submitted after certification order, 6:697

Common interest (joint defense) privilege, 25:284

Contempt for violation of injunction, affidavit supporting motion for, 17:310

Corporate status, denial of by affidavit, 14:279

Corporation’s agent cannot be found, showing diligence in affidavit or return of service, 10:162

Default judgment motion, affidavit defendant not in military, 37:55

Discovery disputes, use of affidavits, 32:11, 32:16

Fraudulently-joined defendants, 9:495

Impartial trial, affidavits supporting or opposing motion for transfer from proper venue, 9:325, 9:327, 9:329

Indigency, affidavit of, 6:100, 17:254

Inmates, 6:107–108

Jurat, 14:51

Motions, 16:58–66, 16:148

Physical and mental examinations, affidavits included with motion for order for Rule 204 exam, 29:135, 29:151

Plea in abatement, 15:218

Plea to jurisdiction, 15:134, 15:143

Presuit investigation, perpetuating testimony with affidavits of witnesses, 2:62

Request for production and inspection, affidavits supporting motions to compel or for sanctions, 27:273

Requests for admissions, motion for relief from RFA response, 31:206, 31:208, 31:220

Service

Common interest (joint defense) privilege, service of affidavits before hearing, 25:284

Delays in service, affidavit explaining, 10:32

Motion for new trial, 10:556

Publication, affidavit’s residence unknown or defendant transient, 10:248

Publication, supporting affidavit, 10:264–265

Substituted service under Rule 106(b), affidavit supporting motion, 10:129–132

Special appearance, 8:382–384, 8:391, 8:424, 8:426–428, 8:437

Summary judgment motion. See Summary Judgment

TRO or temporary injunction supported by affidavits, 17:177, 17:205

Undisclosed witness, affidavit of for summary judgment, 30:160

Venue improper, affidavits supporting or opposing motion, 9:229, 9:236–237, 9:243, 9:254–255

Verifying affidavit, 14:49–50

Affirmative Defenses

Arbitration. See Arbitration

Assumption of risk. See Assumption of Risk

Bankruptcy. See Bankruptcy and Insolvency

Counterclaim compared, 14:308

Defective statement of affirmative defense, challenging, 14:313

Duress. See Duress

Estoppel. See Estoppel

Fraud. See Fraud and Misrepresentation

Identifying defenses, 14:307

“Inferential rebuttal” compared, 14:310

Justification, 14:353

Laches. See Laches

Liberal construction, 14:312

“Matters in avoidance” of defense, affirmative defenses to affirmative defenses, 14:297, 14:309, 14:334

Nature and effect of, 14:304

I-3 INDEX

Other affirmative defenses, 14:342–367

Pleading if in doubt, 14:311

Release. See Release

Res judicata. See Res Judicata

Response to, 14:452

Special exceptions to raise affirmative defense, 14:374, 15:02, 15:70

Statute of frauds. See Statute of Frauds

Statutes of limitations. See Statutes of Limitations

Summary judgment motion, 36:02, 36:389

TRCP 94, defenses under, 14:318–337

Waived unless pleaded, 14:305–306, 14:337

Waiver. See Waiver

Agents and Agency

Discovery rule, effect on accrual of cause of action, 3:413

Foreign corporation without certificate of authorization to do business, capacity of agent to sue, 6:145

Jurisdiction issues, 8:200, 8:329–333

Physical and mental examinations, 29:21

Privilege holder, waiver issue, 25:54

Settlement, principles of agency, 38:45

Substitution of parties, 6:266

Tolling provisions, 3:455

Agreements. See Contracts

Alcohol or Drug Abuse

Physician-patient privilege, 25:466, 25:500, 25:502

Self-incrimination, privilege against, 25:318

Alcoholic Beverages

Dram Shop claims, statute of limitations, 3:180

Aliens

See also Citizenship

Diversity jurisdiction, 9:434

Jurisdiction, 8:74

Allegations. See Petitions

Alter Ego

See also Corporations

Garnishments against, 19:185

Nonresidents, long-arm jurisdiction over agents, affiliates, alter egos, and parties in privity, 8:328–341, 8:409, 8:425

Statutes of limitations

Derivative tort claims, 3:342, 3:344

Discovery rule, 3:420

Tolling provisions, 3:510

Alternative Dispute Resolution (ADR)

Generally, 14:236

Arbitration. See Arbitration

Case conference, informing client to possibility of ADR, 1:268

Choices of ADR procedures, 38:173

Confidentiality, 38:177

County ADR systems, 38:175

Court ordered ADR

Procedures, 38:182–190

Third party facilitators, 38:196–198

Engagement contract, provision for dispute resolution, 1:204

Mediation. See Mediation

Presuit activities, 2:78–81

Referral order, 38:174, 38:184

(Rev. 10, 4/13)