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Flashcards in Civ Practice 3 Deck (21):

Extra Good Plumbing ("Extra") was a Texas sole proprietorship with a principal place of business in Nueces County, Texas. Bill resided in Kleberg County, Texas. Bill requested that Extra send an employee to his residence to check a possible gas leak. Extra dispatched an employee, Ray, to Bill's residence. Ray resides in Brooks County, Texas. Ray had been a plumber for one month.

Ray discovered a gas valve leak inside Bill's residence. Ray told Bill he could try to replace the valve, but that he was not certified to replace an type of leaking gas valve. Bill told Ray he did not care about any certification and that he wanted Ray to replace the valve. Ray turned the gas off at Bill's gas meter. Ray installed a replacement valve manufactured by Plumber Parts, Inc. ("Parts"). Parts is not a Texas corporation, but it had over $2,000,000 in sales in Texas in the year of the valve replacement.

In spite of a city ordinance to the contrary, Bill turned his gas back on at the gas meter without contacting the local gas utility. The next day, Bill's house exploded and he sustained serious personal injuries. Bill hired a lawyer to sue Ray and Extra for his personal injuries sustained in the explosion and fire.

Questions to follow:


1. What county or counties would be proper venue for such a lawsuit? Explain fully.

The best venue would be Kleberg County, the county in which a substantial part of the events that gave rise to the action took place and where the P, Bill, resided at the time of the explosion. Venue also would be proper in Brooks County, the county where Ray resided at the time of the event, or in Nueces County, the principal place of business of Extra.


2. Bill sues Extra and Ray in Brooks County. Extra wants to contest venue in Brooks County and move the case to Nueces County. What pleading must Extra file to challenge venue in Brooks County? When must the pleading be filed? Explain fully.

Before or concurrently with any other pleading or motion, by separate written motion or inclusion in the answer, Extra must file a motion to transfer venue stating the legal and factual basis for the request to transfer venue and the county that has proper venue. Extra has 20 days to file the motion to transfer venue, or any such objection will be waived.


3. Extra wants to add Parts to the case as a party D, alleging negligence and product liability causes of action. What pleading must Extra file and when must it file the pleading to add this party to the case? Explain fully.

Extra must file a third-party petition/complaint within 30 days of filing its answer and serve it on Parts in order to add Parts to the action. If Extra wishes to file the third-party petition/complaint outside of 30 days of filing its answer, it must obtain leave of Court.


4. How must service of process be accomplished with respect to Parts, since it is a corporation and is not registered with the Texas Secretary of State? Explain fully.

Service of process on Parts must be accomplished through the Texas Long-Arm Statute, which provides that a person who engages in business in the state and who has not designated a resident agent may also be served by serving process on the Secretary of the State. The Secretary of State will then mail a copy of the process to the person in charge of Parts' business or to one of Parts' corporate officers.


5. Parts wishes to context the jurisdiction of the Texas trial court. What pleading must Parts file to contest the jurisdiction of Texas over it in this case? Explain fully.

If Parts wishes to contest the jurisdiction of Texas on the ground that a party or property is not amenable to process issued by the Texas courts, Parts must make a special appearance by filing a sworn motion (meaning that the facts alleged are verified by affidavit). Parts must file the special appearance alleging lack of minimum contacts with Texas as the first pleading in the case, and it must be filed before the answer deadline.


6. Parts contends that it is not a Texas corporation and does not conduct business in Texas. How should the court rule on Parts' plea to the Texas trial court's jurisdiction? Explain fully.

The court should deny Parts' plea because under the Texas Long-Arm Statute, a party is doing business in Texas if it contract to perform an act in the state. Because Parts entered into sales contracts and provided plumbing material within Texs, the court is likely to find that Parts has minimum contacts with Texas.


7. Bill's attorney wants to know if Extra has liability insurance for this case and if Extra, its lawyers or its insurance company have any statements concerning this case. How can he secure this information? Explain fully.

Bill's attorney can make a request for disclosure from Extra and its lawyers to produce any witness statements, information regarding testifying experts, and insurance agreements and Extra may not object to the request. To obtain information directly from the insurance company, a non-party, Bill's attorney may serve a subpoena or obtain a court order compelling an oral deposition, a deposition on written questions, and a request for production of documents or tangible things.


8. Bill's attorney retains and designates as an expert an engineer to investigate the explosion and fire. The engineer does not prepare a written report. Extra wants to know what facts Bill's expert's investigation revealed and what his expert opinions are. How can Extra obtain this information? Explain fully.

Bill's attorney may move the Court to order that the expert's findings, facts, and opinions be reduced to a written report. Bill's attorney may also obtain an oral deposition from the testifying expert, take a deposition on written questions from the expert, and request the production of documents from the expert.


9. Bill claims the explosion and fire have caused him to acquire post traumatic stress disorder (PTSD). Bill is a veteran and has been treated by the Veterans Administration Medical Center. Bill refuses to produce any medical records for health care prior to the explosion. He refuses to sign a medical authorization for such records. What steps should Extra and Ray take to obtain these prior medical records or obtain an authorization for the records? Explain fully.

A party, upon reasonable notice, can request sanctions or a court order compelling discovery on a party or deponent who failed to appear or to answer a question on oral examination or written questions. Extra and Ray should file a motion to compel Bill to sign a medical authorization for the records.


10. The parties file cross-notices for party depositions. Bill notices the depositions in Kleberg County, Texas and Extra notices the depositions in Nueces County, Texas. Both parties timely file motions to quash the other parties' notices. Upon a hearing on the motions to quash, in what county should the trial court order the depositions be taken? Explain fully.

A deposition may generally take place in the county where the witness resides or is employed, the county where the case is pending or any other convenient place ordered by the court or designated by agreement. If the parties cannot agree on where the depositions should take place, the court should order the depositions to be taken in the county of the pending lawsuit (Brooks County).


11. Parts contends it has no person, employee, or agent who can or will testify as a witness because no one in the company has any personal knowledge about the explosion and fire. How can Bill's lawyer compel Parts to produce a witness for deposition in the case? Explain fully.

Bill's lawyer may serve a notice of deposition, describing with reasonable particularity the matters on which the deposition is requested, on Parts to compel Parts to designate a corporate representative to attend the oral deposition. Bill's lawyer may also file a motion for a court order to compel Parts to designate a person to attend the oral deposition.


12. Parts' expert and the Fire Marshall believe that the valve in question was not defective, but rather that the valve was improperly installed by Ray and that the valve's design was not a cause in fact of the explosion and fire. Discovery is complete. What motion or motions should Parts file in order to be dismissed from the case? What documents should be attached to the motion or motions? Explain fully.

Parts should file a motion for summary judgment with supporting affidavits from Parts' expert and the Fire Marshall made based on personal knowledge and setting forth admissible facts that show the affiant is competent to testify to matters in the affidavit. Parts will have the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.


13. Bill requested a jury trial in his Original Petition but did not pay a jury fee. The case is on the non-jury docket and is set for trial. Forty-five days before trial, Bill pays the jury fee and requests a setting on the jury docket. Extra, Ray and Parts file objections to Bill's attempt to move the case to the jury docket. The motion is set for a hearing. How should the court rule? Explain fully.

A demand for a jury trial must be made at least 30 days prior to the trial date accompanied by the appropriate statutory jury fee or the right is deemed to be waived. Since Bill requested a jury trial in writing in his Original Petition and paid the jury fee 45 days before trial, the case should move to the jury docket.


14. In voir dire, a prospective juror says, "Extra did a lousy job at my home last year, but I think I could be fair." What steps should Extra's lawyer take to challenge that potential juror? Explain fully.

Extra's lawyer should challenge the juror for cause based on the juror's bias and prejudice against Extra. If the court denies the challenge for cause, Extra's lawyer may use a peremptory challenge to strike the prospective juror, which would not require Extra's lawyer to identify any cause or reason for removing the juror.


15. As the trial begins, Bill's attorneys call Ray as Bill's first witness. Ray and Extra object on the basis that Bill must testify first and lay a foundation for his claims against Ray and Extra. How should the court rule? Explain fully.

The order of witnesses and presentation of the case is within the discretion of the court and should be organized so as to effectively ascertain the truth, prevent waste of time, and protect witnesses from harassment. Because there is no requirement that Bill lay a foundation for his claims before others testify, the court should overrule the objection.


16. During discovery the parties obtain the report of the Fire Marshal. Later, the Fire Marshal is deposed. The Fire Marshal is listed as a trial witness by all parties, except for Parts. Parts calls the Fire Marshal as a witness at trial. Extra objects to the Fire Marshal being called by Parts because Parts did not list him as a witness. How should the court rule? Explain fully.

The court should allow Parts to call the Fire Marshal because the Fire Marshal is listed as trial witness by all other parties, they all had access to the Fire Marshal's report and deposition, good cause exists to allow testimony, and Parts' failure to list the witness was likely an oversight. Therefore, no party would be prejudiced by allowing Parts to call the Fire Marshal.


17. In order to impeach Ray, Bill proffers evidence that Ray has five convictions for moving violations in the last twelve months. Ray objects to the admission of this evidence. How should the court rule? Explain fully.

In Texas, to impeach a party using a conviction of a crime, the crime must be a felony or a crime of moral turpitude and the probative value of such evidence must outweigh its prejudicial effect. The court should sustain the objection because moving violations are neither felonies nor crimes involving moral turpitude, and because the probative value of such evidence is outweighed by its prejudicial effect.


18. After the first day of trial, Parts offers to pay Bill $10,000 for a release of all claims and an agreement to indemnify Parts from the claims of Extra. The next morning, Extra seeks to offer into evidence the fact that Parts sought indemnity from the claims of Extra against Parts, as an admission that Parts was liable for the explosion. Parts objects to the offer of such evidence. How should the court rule? Explain fully.

Settlement and offers to compromise, along with any conduct or statements made in the course of negotiating an attempt to compromise, are privileged and are not admissible to prove liability for, invalidating of, or the amount of a disputed claim. The court should sustain the objection and rule in Parts' favor because Extra seeks to introduce the evidence as an admission that Parts was liable for the explosion, and is not trying to admit the evidence to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.


19. After the parties rest and close, the Ds move for instructed verdicts. The court grants motion of Parts and denies all other motions for instructed verdict. In the court's charge, which of the parties' proportionate responsibility should be submitted to the jury? Explain fully.

Because the court granted Parts' motion for instructed verdict, the court should submit questions to the jury inquiring as to the percent of the negligence or causation that is attributable to each culpable party. The court should ask the jury to determine the proportionate responsibility of Ray (based on negligence), Extra (based on vicarious liability), and Bill (based on comparative responsibility for his own negligence).


20. The jury finds Extra to be responsible for the explosion through negligent staffing. Extra believes there is no evidence to support a finding of negligent staffing against it. Before a judgment is entered, what motion should Extra file to bring this issue to the trial court's attention? Explain fully.

To challenge the legal and factual sufficiency of the evidence before judgment is entered, Extra should file a motion for judgment notwithstanding the verdict, and the court may disregard any jury finding on a question that has no support in the evidence before rendering the final judgment. Extra may also file a motion for new trial, arguing that the verdict is supported by insufficient evidence.