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Flashcards in Civ Practice 2 Deck (21):
1

Paul drove Fred to a bar in Paul's car. After Fred and Paul each drank several beers at the bar, they decided to return to their college dormitory. Feeling somewhat impaired, Paul asked Fred to drive. Fred turned left on Avenue L in Lubbock, Lubbock County, Texas, and proceeded south. Avenue L is a one-way street, and Fred was driving the wrong way. Dan was driving westbound on 15th Street, ran a stop sign, and collided with the car Fred was driving. Paul and Dan were both injured.

Paul resided in Harris County, Texas. Fred resided in Travis County, Texas. Dan resided in Hockley County, Texas. Paul filed suit against Dan.

Questions to follow:

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1. What steps must Paul take to file a civil suit for damages and require other parties to respond to his suit?

Paul must file a pleading in writing with the clerk of the court, stating the grounds and prayer for relief. The pleading must be served on all parties and must contain a certificate of service. Upon the filing of the petition (the original pleading), the clerk will issue a citation. Paul must serve the opposing party with both the citation and the petition.

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2. Paul filed suit against Dan as a single D in Harris County, Texas. Dan believes Harris County is not a county of proper venue. What pleading must Dan file to contest venue in Harris County and when must the pleading be filed?

To contest venue, Dan must file a motion to transfer venue, before or concurrently with any other pleading or motion in the case, in a separate written motion or included in the answer. The motion must be filed within 20 days of service of process.

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3. What are the counties of proper venue authorized by the Texas Civil Practice and Remedies Code under these facts?

All lawsuits must be brought in the county where: (i) at least a substantial part of the events that gave rise to the action took place: (ii) the D resided at the time of the event; (iii) the D has its principal office in Texas, if the D is not a natural person; or (iv) if non of these situations apply, the county where the P resided at the time of the event. Here, the counties of proper venue are Lubbock County, where the accident occurred, and Hockley County, where the D, Dan, resides.

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4. Anticipating that an objection to venue may be granted, Paul contemplates an appeal of an adverse venue ruling. Is an interlocutory appeal authorized from an order granting a motion to transfer venue? Explain fully.

Paul is not entitled to an interlocutory appeal on venue determination because the determination is not a final judgment and no statutory exception would allow an interlocutory appeal. However, Paul could file a motion for re-hearing if his motion to transfer venue was based on mandatory venue or the grounds that an impartial trial is not attainable at the current venue.

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5. If the trial court rules incorrectly on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal regarding any final judgment? Explain fully.

An erroneous venue ruling on a motion to transfer venue is reversible error. The judgment will be reversed and remanded.

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6. Paul's original petition simply alleges negligence without stating the facts upon which he relies to support the claim of negligence. What pleading should Dan file in order to require Paul to specifically plead the facts upon which Paul relies to support his claims? Explain fully.

Dan should file a special exception in writing, not only pointing out the particular pleading objected to, but also including the specific insufficiency in the pleading that is the basis of the objection. If the special exception is granted, Paul must amend his pleading to specifically plead the facts upon which Paul relies to support his negligence claim, or risk the negligence claim being struck or the case being dismissed.

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7. Evidence indicates that, even though Paul knew Fred was intoxicated, he allowed Fred to drive his car while he was a passenger. What procedural steps should Dan take to allow him to submit a jury question on Paul's contributory negligence or comparative responsibility? Explain fully.

A party must affirmatively plead the defense of contributory negligence or comparative responsibility. Here, Dan must affirmatively plead comparative responsibility in his answer or amended answer to submit a jury question on Paul's contributory negligence or comparative responsibility.

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8. Name five types of discovery authorized by the Texas Rules of Civil Procedure.

The Texas Rules of Civil Procedure authorizes the following forms of discovery:

(1) Requests for Disclosure;
(2) Interrogatories;
(3) Requests for Admission;
(4) Deposition on Oral Questions; and
(5) Depositions on Written Questions.

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9. The police report indicates that Dan was unable to show proof of financial responsibility at the scene of the collision. Name two types of written discovery available to Paul to determine if Dan has insurance and, if so, the extent of his policy limits? Explain fully.

Paul could determine if Dan has insurance by making a simple request for disclosure of an insurance agreement, and Dan may not assert any objection. Additionally, Paul could serve a written interrogatory on Dan to determine whether Dan has an insurance agreement and the extent of his policy limits.

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10. In response to Dan's Requests for Disclosure as authorized by the Texas Rules of Civil Procedure, Paul produces copies of his medical bills and records. Dan requested a medical authorization. Paul objects to Dan's request for a medical authorization upon privacy concerns. Dan sets a hearing on Paul's discovery objection regarding a medical authorization, asserting that Paul must produce a medical authorization and that the production of records and bills is not sufficient. How should the court rule on Paul's objection? Explain fully.

The court should deny Paul's objection to Dan's requested medical authorization because, in a personal injury action, a party may request disclosure of medical records and bills or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. Paul cannot object to this request and must submit a medical authorization to Dan, even if Paul had already provided his medical records and bills.

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11. Paul, Dan, and Fred were all deposed. Following the transcription and delivery of the depositions, Paul served a Request of Admissions on Dan. Dan objected to the Request for Admissions on the basis that the matters addressed in the Request for Admissions could have been raised and addressed in the deposition of Dan and therefore have been waived by Paul. How should the court rule on Dan's objection? Explain fully.

The court should overrule Dan's objection to Paul's request for admissions because there is no reason Paul cannot still serve a request for admission on Dan, even if the matters addressed in the request for admission could have been raised in the deposition. Unless the request was untimely, Dan must respond to the request for admission within 30 days or the request will be considered a deemed admission.

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12. Dan served a notice to take a deposition by written questions of the investigating police officer along with a subpoena duces tecum for his report and field notes. Paul objected to the notice on the basis that there has been no showing that the officer cannot be available for trial in person, and therefore the notice of deposition by written questions in not authorized by the Texas Rules of Civil Procedure. How should the court rule on Paul's objection? Explain fully.

The court should overrule Paul's objection because Dan may take the testimony of any person or entity by deposition on written questions without showing their unavailability for trial. Even if the investigating officer is available to testify during the trial in person, Dan may still take his testimony by deposition on written questions.

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13. Paul amends the lawsuit to add Fred as a party D and seeks money damages from Fred. Following the completion of all discovery, Fred believes there is no evidence to support a jury question on the issue of his negligence. What pleading should Fred file to bring this issue to the attention of the trial court? Explain fully.

After an adequate time for discovery but at least 21 days before the hearing date, a party may make a "no-evidence" motion for summary judgment without presenting evidence on the ground that there is no proof of an essential element of a claim or defense on which an adverse party would have the burden of proof at trial. This puts the burden on the non-movant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements, or risk dismissal.

["Traditional" motion for summary judgment is also recognized in but "no-evidence" is more applicable under this scenario.]

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14. During the investigation of the accident by the police, Fred tells the police that the wreck was his fault because he was going the wrong way on a one way street and Dan could not have seen him coming. Dan offers this evidence at trial through the investigating police officer. Fred objects and asserts that his statement is privileged and not admissible, because he made the statement to the police during an official investigation. How should the court rule on the objection? Explain fully.

The court should overrule Fred's objection because a statement made to the police does not fall under any privilege recognized by the Texas Rules of Evidence. Instead, Fred's statement to the police officer was a statement against interest and is admissible hearsay under TRE 803, even if Fred is not unavailable.

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15. Paul was previously indicted for felony forgery. The indictment was later dismissed with prejudice. What pleading should Paul file to prevent this former indictment from being mentioned to the jury panel during opening statement? Explain fully.

Motions in limine are requests to exclude reference to anticipated evidence until the admissibility of that evidence can be determined which, when granted, require that counsel approach the bench before delving into a particular topic. Paul should file a motion in limine and request the court to exclude any mention of this indictment in the proceedings without first approaching the bench, and should then object again if the matter arises during trial in order to preserve error for appeal.

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16. At the pre-trial conference three days before trial, Dan reminded the parties and the court that he has retained an accident reconstructionist and plans to call the expert at trial. Although the expert had presented a report (which had been served on all parties) and had been deposed (with notice to all parties), Dan's attorney had not listed the reconstructionist as a testifying expert in discovery responses. Paul filed a motion to strike Dan's reconstruction expert. Dan objected to the motion to strike. How should the court rule? Explain fully.

A party who fails to amend a discovery response in a timely manner may not introduce the material or offer the testimony of a witness (other than a named party) who was not previously identified unless the court finds that the failure: (i) was made for good cause of (ii) will not unfairly surprise or prejudice the other parties. Here, the court should overrule Paul's motion to strike Dan's reconstruction expert because the expert had presented a report that was served on all the parties and the reconstructionist had been deposed with notice to all parties, and thus Dan's attorney's failure to list the reconstructionist as a testifying expert in the discovery response will not unfairly surprise or prejudice the other parties.

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17. At trial, Paul proffered unauthorized copies of his medical records and medical bills to support his claim for damages. Fred and Dan objected to the proffer on the basis of hearsay. Paul responded that these copies were produced to all parties in his discovery responses and that all parties had notice of the proffered evidence. Further, Paul noted that no prior objection to the proffered evidence had been urged. How should the court rule on the hearsay objections of Fred and Dan? Explain fully.

All tangible evidence must be authenticated by production of sufficient evidence to support a finding that the thing is what its proponent claims it is, and medical records must be authenticated for the record to be admissible under the business records hearsay exception. Here, the court should sustain Fred and Dan's objections because the copies of Paul's medical records and bills were not authenticated and cannot satisfy the business record hearsay exception.

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18. At the conclusion of Paul's case, Dan believed that Paul failed to prove that Dan was negligent on the occasion in question or that his conduct was a cause of the collision. What action should Dan take to bring this issue to the attention of the trial court? Explain fully.

At the conclusion of the evidence, a party may file a motion for instructed verdict, which must provide specific grounds. Here, Dan can file a motion for instructed verdict to bring the issue of Paul's failure to prove an essential element of his negligence claim to the trial court's attention.

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19. After several hours of deliberations, the presiding juror reported to the court (by way of a written note) that nine of the twelve jurors agreed on their answers to all of the jury questions propounded to them. The presiding juror asked the court to accept the verdict. Is the trial court authorized to accept a verdict of nine jurors, if all nine jurors agree on the answers to all questions propounded to them? Explain fully.

A verdict may be rendered in any case by at least 10 members of an original jury of 12 in district court, unless as many as three jurors die or become disabled from sitting and there are only nine of the jurors remaining. Here, because only nine jurors agreed on the answers to all questions propounded on them, even though more than nine jurors remained on the jury, the court is not authorized to accept the verdict.

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20. The jury awarded $20,000 to Paul for his past medical expenses. The parties had previously stipulated that Paul's health insurance carrier paid $12,000 to Paul's health care providers and that as a result of all of Paul's remaining medical expenses were completely discharged. Paul filed a motion for a judgment for $20,000 for his past medical expenses. How should the court rule? Explain fully.

The judgment of the court should confirm to the pleadings, the nature of the case proved, and any verdict, and the court may disregard any jury finding on a question that is not supported by the evidence. The court should deny Paul's motion for judgment in the amount of $20,000 because the parties have already stipulated that Paul's insurance expenses were completely discharged and the jury's verdict contradicts the parties' stipulation.