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James Robert Arnett II

James Arnett’s Answers

15 total


  • Is third party administrator entity a non-party or agent of Defendant?

    third party administrator company contracted by self-insured Texas political subdivision to manage and handle it workers compensation claims. Is that third party entity in such situation typically or usually considered a non-party for discovery p...

    James’s Answer

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    The third party administrator is both an agent and a non-party. To the extent the political subdivision has the right to obtain documents in the possession of the administrator, you should be able to obtain them from the political subdivision by serving requests for production of documents under Rule 196 of the Texas Rules of Civil Procedure. The test is whether the political subdivision as a practical matter has the ability to obtain the documents if it wants them. You can also serve a subpoena for documents on the administrator for any relevant, non-privileged documents in its possession.

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  • Am I required to disclose my evidence, if attorney of opposing party asks for discovery during mediation in Fort Bend County?

    I filed a small claims court lawsuit in Fort Bend County. The opposing party hired an attorney, and when we went for a motion for default judgement hearing, the judge ordered mediation and denied the default. The opposing party wanted the judge to...

    James’s Answer

    You can be ordered to participate in mediation and to work in good faith towards a settlement during the mediation, but you have no obligation to produce evidence at the mediation. Generally, statements made and settlement positions taken at mediation cannot be used later in the court proceeding against you. To assist the mediator in settling your case, you can confidentially disclose to him/her the information that supports your case and decide how much of that information the mediator can disclose to the other side.

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  • Once a federal Judge issues a Memoradum and Order denying the defendants motion to dismiss 12 (b).

    The Judge intially granted the defendant an extension of time to respond to our amended complaint and pleadings. The deadline past and now the defendants are requesting a second extension of time. My question is do you think the judge would be inc...

    James’s Answer

    Whether the Judge grants another extension of time to answer the amended complaint will depend on the reasons given for the extension and the length of the first extension, but absent some unusual circumstances, I would say the Judge probably will grant a second extension. If your second question is whether the request for a second extension would cause the Judge to change his ruling on the motion to dismiss, I think that is very unlikely. The defendants cannot appeal an order denying a motion to dismiss, They will have to wait until a judgment is entered and then appeal.

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  • Do you think I it is impossible to get a different answer in a civil suit in a county court than you did in a JP court?

    I appealed a "take nothing" judgement from a JP court to a county court. I was POSITIVE I would win this case. I know this particular judge has a reputation for not handling cases with proper care so I am thinking it was him. I bought a boat fr...

    James’s Answer

    It is definitely possible to achieve a different result on an appeal of a JP Court decision to County Court because it is "de novo" review, which means you present the case all over again. You are limited, however, to the grounds of recovery you had in JP Court. That means you are stuck with the claims you presented to the JP Court, but can present more evidence. It sounds like you presented a Deceptive Trade Practices Act claim to the JP Court. Those are not simple claims, and you would be well advised to hire a lawyer if you want to pursue this claim.

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  • Texas rules re: # of sets of admissions to send out to other side in a one week period.

    I'm pro se because I couldn't find a lawyer to take my case. I have drafted requests for admissions. set #1 has about 24 requests re genuiness of attached documents. Set #2 contains about 30 requests for admissions re facts relevant information...

    James’s Answer

    The TRCP do not contain a limitation on numbers of requests for admission that may be served, either in a single set or multiple sets. (Limitations on discovery are found in TRCP 190 and depend on what level discovery control plan applies to the case). At some point, the other side may object that the sheer number of requests is unduly burdensome, oppressive, or unreasonable. However, a single set of 60 requests is not unusual.

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  • What constitutes "proper service" when notifying the respondent of a court hearing, and what is the best way to serve?

    We sent letter and motion via regular mail and certified. I think there's a strong chance the respondent will not acknowledge the certified letter. Is this a case where a judge could reschedule the hearing if he doesn't show up? This may be what h...

    James’s Answer

    I assume from your question that the respondent has already appeared in the case, and this situation does not involve service of a citation and petition. Service of a motion under Texas Rule of Civil Procedure 21a can be made by hand delivery, courier receipted delivery, certified mail, registered mail, or telephonic document transfer (fax). The motion should include a certificate of service stating how service was made, which certificate is prima facie proof of the fact of service. If the motion itself does not include a notice of the date and time of the hearing, you will also have to serve the respondent with a notice of hearing containing that information, which notice should also include a certificate of service. However, in the case of service by mail, the respondent can offer proof that the motion and/or notice was not in fact received (if you have a signed green card, that will rebut a claim of non-receipt). If the respondent offers proof that he did not receive the motion and/or notice, the court may extend the time for the respondent to respond to the motion or grant the respondent other relief.
    If you think the respondent is going to play games with service, hand delivery or courier receipted delivery (like FedEx with a signature required) are good means of service. If the respondent has a fax machine and you keep the facsimile transmittal report, that is also good.

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  • For attorneys with Texas experience regarding ways to obtain employment and medical records.

    Could you please explain to me the pros and cons of using (1) just a business record affidavit from custodian versus (2) depo on written questions to custodian of records. For both (1) employment records and (2) medical records. Aren't records u...

    James’s Answer

    Your question raises a number of evidentiary and procedural issues that cannot be fully explained in this forum. With that caveat, both procedures create a foundation for the admission of records into evidence, although the opposing party can raise objections in either case. Properly done, a deposition on written questions is less susceptible to attack since the procedure provides the opposing party an opportunity to make objections before the deposition occurs and certain objections are waived if not asserted. A business record affidavit under Texas Rule of Evidence 902(10) is generally used when the person with the records is willing to cooperate with you, and voluntarily provide the affidavit and produce the records. A deposition on written questions is generally used with a subpoena, which compels the person to appear for the deposition and produce the records. An additional factor is that for voluntary production of employment records and medical records you are going to need a release signed by the person who is the subject of the records.
    A business records affidavit can be used as evidence in summary judgment practice, and can be used as evidence at trial if filed with the court and served on the opposing parties at least 14 days before the trial commences. Generally, experts can rely on records authenticated by a business records affidavit; however, the subject of what records experts can rely on and the interplay with what evidence is admitted at trial is complex and cannot be explained in a summary format.

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  • Does this interrogatory contain discrete subparts I can count as separate interrogatories?

    If you have filed any claim for unemployment benefits, Social Security benefits, private disability benefits, veterans benefits, welfare benefits, retirement benefits, or private medical/hospitalization benefits during the three years preceding th...

    James’s Answer

    Different judges have different views on what counts as a discrete subpart to an interrogatory. More likely than not, this interrogatory is going to be viewed as a single interrogatory because it is asking you to identify certain kinds of claims you have filed, and the subparts all relate to that basic question. Depending on the subject matter of your case, there may be objections you should make to this question, and I would echo the caution of an earlier answer about the importance of properly responding to discovery and the wisdom of obtaining legal representation.

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  • I received a "Civil Action" with 70 bogus "complaints" from Texas. What exactly do I have to send back, and to whom?

    I am not in America, and I was not given any instructions. I am guessing from Google that if I ignore this, the idiots involved might get a "default judgement", even though some of the claims are utterly ridiculous. The complaints relate to my w...

    James’s Answer

    The requirements of a response depend upon whether the case is in federal court or Texas state court, and I cannot tell that from the information in your question. The document that starts a lawsuit is called a "complaint" in federal court, and a "petition" in Texas state court. In federal court, you generally have 21 days to respond to a complaint after you have been served with a complaint and a summons. In Texas state court, you generally have to file a response by the Monday following the expiration of 20 days after you were served with a petition and a citation. The requirements of an answer or other response to a complaint or petition under either system cannot be adequately detailed here, but you can refer to the Federal Rules of Civil Procedure or the Texas Rules of Civil Procedure, both of which can be found on-line. Also, it appears that there are issues with whether you have been properly served and whether you are subject to the jurisdiction of a court in Texas. Depending on which court system you are in, your initial response may need to raise those issues or you will waive them. My recommendation is that you retain an attorney.

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  • HOw do I make defense witness produce certain documents at deposition when defense noticed the deposition

    civil trial, Texas laws. Defense is noticing the deposition of what will probably end up being its sole medical expert, yet declares at this point in time they have not retained the dr, but is offering him up for deposition at their office. ...

    James’s Answer

    General answer: You should serve the defendant with a cross-notice of deposition and have the witness served with a subpoena duces tecum to produce documents at the deposition. Check the Texas Rules of Civil Procedure that govern depositions and subpoenas. Caveat: There are many specific requirements, and you should hire an attorney.

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