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Flashcards in Civ Practice 4 Deck (21):
1

Mercy Hospital ("Mercy") is a for-profit, private institution. While her husband was a patient at Mercy, Wilda walked to the hospital cafeteria for lunch. As Wilda passed through the food line, she encountered an advertising sign that had fallen to the floor and was laying face down. The sign was the property of Prime Pizza, Inc. ("Prime"). The sign had fallen some time before Wilda arrived and had been pushed forward in the line by other customers. The sign was lying in front of the Big Burger ("Big") serving counter when Wilda tripped over the sign and fell to the floor.

As a result of her fall, Wilda sustained personal injuries, which required surgery, and lost time from her job.

Wilda resides in Hays County, Texas. Mercy is located in Travis County, Texas. Prime is a Texas corporation with a principal place of business in Dallas County, Texas. big is a sole proprietorship with a principal place of business in Travis County, Texas.

Wilda desires to file suit against Mercy and Prime.

Questions to follow:

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1. Assuming Mercy and Prime contest venue, what are the counties of proper venue for Wilda's lawsuit? Explain fully.

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 Travis County and Dallas County because Travis County is where a substantial part of the events took place that gave rise to the action, and Dallas County is where Prime has its principal place of business.

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2. Wilda files suit against Mercy and Prime, and each D is served pursuant to the Civil Practice and Remedies Code. What pleading must Mercy and Prime file in order to avoid the entry of a default judgment against them, and when must that pleading be filed? Explain fully.

To avoid the entry of a default judgment, Mercy and Prime must file an answer by 10:00 a.m. on the first Monday after the expiration of 20 days from the date they were served with process.

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3. Wilda sues "Prime Pizza" as a named D. The shareholders of Prime Pizza, Inc. want to seek the protection of their corporate entity and avoid individual liability, if any. What pleading must Prime file in order to assert its corporate status and protect its shareholders from individual liability? Explain fully.

There are various subjects, usually "conditions precedent," that must be specifically raised in the answer to put the burden of proof on the P regarding a matter. Because these include that a party is incorporated, Prime must assert that it is incorporated as a special denial in its answer and that Wilda sued Prime in its wrong capacity because she named "Prime Pizza" as the named D, not "Prime Pizza, Inc."

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4. Following the accident, Wilda accepted free medical care in the emergency room of Mercy. She signed several documents while she was in the emergency room. Mercy believes that one of these documents releases all of Wilda's claims. What pleading must Mercy file to bring this alleged defense to the attention of the court, and when should it be filed?

Mercy must affirmatively plead the defense of release in its answer or amended answer by alleging that Wilda signed a document that released Mercy of all of Wilda's claims. Because amended answers must be filed within 7 days of trial, Mercy must assert the release defense within 7 days of trial.

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5. Prime believes that Big is responsible for the accident because Big's employees had a chance to pick up the sign or warn Wilda of the sign. Big is now in bankruptcy. What pleading must Prime file in order to secure a jury question on Big's liability, if any, for the accident? Explain fully.

Prime may file a motion for leave to designate Big as a responsible third-party (RTP) because any person alleged to have contributed to causing in any way the harm for which recovery of damages is sought can be designated as a TRP by a D. Alternatively, Prime could serve third-party petition/complaint on Big to add Big as a third-party D to the action.

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

The Texas Rules of Civil Procedure authorize the following types of discovery:

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

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7. Mercy's lawyer tells Wilda's lawyer that he knows what caused the accident because he has the names and addresses of five or six witnesses to the accident. What documents can Wilda serve upon Mercy to secure the names of potential witnesses to the accident? Explain fully.

Under Texas law, a party may make a simple request for certain disclosures to which the opposing party may not assert any objections, including disclosure of the name, address, and telephone numbers of potential persons having knowledge of the relevant facts. Here, Wilda can serve upon Mercy a request for disclosure to obtain the names of potential witnesses to the accident, and Mercy cannot object.

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Prime's attorney conducted an investigation of the accident and interviewed several potential witnesses to the accident. Although no statements were taken, the attorney for Prime made and kept copious notes about these interviews. Wilda serves a request for production upon Prime seeking production of the attorney's notes.

8. Prime objects to the request for production of its attorney's notes as being protected from discovery. How should the court rule? Explain fully.

Work product includes the prepared material, mental impressions developed, or any communication made in anticipation of litigation between a party and his representatives. Although the name, address, and telephone number of any potential party or any person with knowledge of relevant facts is not protected work product. Prime's attorney's interview notes are considered undiscoverable core work product because they contain the attorney's mental impressions, opinions, conclusions, or legal theories, therefore the court should sustain Prime's objection to the request for production.

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9. Mercy serves 30 requests for admission and 30 interrogatories upon Wilda. Wilda objects to the requests for admissions and interrogatories because the number of admissions and interrogatories served is in violation of the Rules of Civil Procedure. How should the court rule on Wilda's objections to the request for admissions and interrogatories? Explain fully.

Each party is limited to 25 interrogatories, but is not limited to the number of requests for admissions they can make. Therefore, the court should sustain Wilda's objection to the number of interrogatories, but overrule her objection to the request for admissions.

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10. Prime's store manager took several photographs immediately after Wilda fell. Wilda serves a request for production on Prim seeking production of the photographs. Prime asserts that the photographs are privileged and not subject to production under the investigatory privilege. How should the court rule on the assertion of privilege? Explain fully.

The photographs taken by Prime's store manager do not fall under any privilege recognized by the Texas Rules of Civil Procedure. Any photographs of underlying facts or photographs that a party intends to offer into evidence are not work product protected from discovery. Thus, a court should deny Prime's assertion of privilege because the photographs taken do not fall under any privilege.

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11. Mercy serves interrogatories on Wilda seeking the names and addresses of any and all medical providers from whom she sought treatment for the ten years immediately preceding the accident. Wilda objects to the interrogatories on the basis of an invasion of her privacy, immateriality, and relevancy. How should the court rule? Explain fully.

A party can discovery any matter that is not privileged and is relevant to the subject matter of the pending action, even if the information will be inadmissible at trial but may lead to the discovery of admissible evidence. Under these facts, Wilda's medical history is relevant and subject to discovery because the lawsuit involves a personal injury claim by Wilda.

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12. Wilda's deposition reveals that she was taking on her cell phone when the accident occurred. What pleading should Mercy and Prime file in order to support a jury question on Wilda's responsibility, if any, for causing the accident? Explain fully.

An amendment to a pleading may be filed to fix a deficiency, correct a mistake, or to plead a new matter. Because contributory negligence must be affirmatively plead, Mercy and Prime should file amended answers at least 7 days before trial to allege that Wilda was comparatively negligent in causing the accident because she was talking on her cell phone when the accident occurred.

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13. Quick Clean was an independent contractor whose job was to clean the hospital cafeteria twice a day. In the ordinary course of its business, Quick Clean kept records of all of its activities. Wilda obtains copies of the business records of Quick Clean and a business records affidavit. Wilda advises the parties that she plans to use them as pre-trial and trial evidence. Mercy and Prime object on the basis that the "records" are hearsay as to them, although they could be used against Quick Clean. How should the court rule? Explain fully.

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: (i) the record was kept in the ordinary course of business; (ii) the making of the record was a regular practice or activity; and (iii) the record was made at or near the time by someone with actual knowledge. Here, the Quick Clean records are admissible under the business records exception to the hearsay rule because the records were kept in the ordinary course of Quick Clean's business, the making of the record was a regular practice of its business, and the record was made at or near the time of the incident by someone with knowledge.

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14. After discovery is complete, Mercy believes that there is no evidence that it is factually or legally liable for the accident and injury to Wilda. What pleading should Mercy file to bring to the court's attention the issue of no factual or legal basis for Wilda's claims against Mercy? Explain fully.

After an adequate time for discovery and without presenting evidence, a party may make a "no-evidence" motion for summary judgment 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. Here, discovery has been completed, and Mercy should file a "no-evidence" motion for summary judgment, putting the burden on Wilda to present enough evidence to raise a genuine issue of material fact on each of the challenged elements.

[In a traditional motion for summary judgment, the movant bears the burden of showing there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. A no-evidence motion is more appropriate on these facts.]

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15. During Mercy's investigation of the accident, it discovers a written statement given by Jane (a Prime manager) to the hospital, that she had also slipped on the sign and told the Prime maintenance department that the sign was a problem. Wilda seeks production of Jane's statement. Prime objects to the production of the statement because: (1) Jane was not authorized to give a statement and therefore it cannot be admissible against Prime; and (2) the statement is privileged because it was given during an internal investigation by Prime. How should the court rule? Explain fully.

Jane's statement is considered a witness statement subject to discovery because it is relevant and material as it shows that Prime had notice of the dangerous condition. The court should overrule Prime's objections because Jane's statement is subject to discovery even if she was not authorized to give a statement, and the statement does not fall under any privileges recognized in Texas simply because it was made in Mercy's internal investigation.

*Because Jane is a manager at Prime, and made the statement in that capacity, her statement should be admitted as a party opponent statement against interest.

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16. The trial court sets the case for trial for the first time with thirty days (30) notice to all counsel. Mercy objects to the trial setting. how should the court rule? Explain fully.

The court should sustain Mercy's objection because each party is entitled to at least forty-five (45) days' notice of the hearing, and the trial court only gave the parties thirty (30) days' notice.

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17. Prime was recently cited by the USDA for feed safety violations. The citations, however, were subsequently dismissed. What pleading should Prime file to prevent these matters from being discussed during voir dire or opening statement? Explain fully.

Prime should file a motion in limine requesting that this information not be disclosed, and, if granted, opposing party's counsel will be instructed to approach the bench before asking about or injecting into the trial any matter relating to the food safety violations. However, Prime still must object if the matter arises during trial in order to preserve error for appeal.

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18. On the first day of trial the weather is terrible, and very few potential jurors show up for jury duty. The trial court tells the lawyers that each side will receive four peremptory strikes in addition to their challenges for cause. Wilda objects to the court's decision to limit her to four peremptory strikes even though all parties are given the same number of peremptory strikes. Is the trial court authorized to limit the parties to an equal number of peremptory strikes under these circumstances? Explain fully.

Upon motion of any litigant made prior to the exercise of peremptory challenges, the trial judge is required to equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. Because each side in a case is entitled to six peremptory challenges in the district court and Wilda was only given four, Wilda could make a motion to equalize the number of strikes per side on the basis that she was unfairly disadvantaged as a result of the alignment of the litigants.

[The term "side" refers to one or more litigants who have common interest in the matters with which the jury is concerned. If antagonistic parties are on the same side of a case, each party will be allowed its own peremptory challenges.]

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19. At the conclusion of Wilda's case, Mercy files a motion for directed verdict, which the trial court denies. Following the return of the jury verdict, Mercy still believes that there is legally insufficient evidence to support the jury verdict and moves the trial court for a judgment notwithstanding the verdict. Is the trial court authorized to grant the motion for judgment notwithstanding the verdict in spite of the fact that it overruled the motion for directed verdict? Explain fully.

A party can challenge the legal sufficiency of the evidence by filing a motion for judgment notwithstanding the verdict (JNOV). The trial court's denial of the motion for directed verdict does not preclude the court from granting the motion for judgment notwithstanding the verdict following the return of the jury verdict.

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20. Following the entry of a judgment by the trial court finding Mercy liable, Mercy files a motion for new trial. Assuming no other action is taken by any party, and the trial court does not rule on the motion for new trial, when will the judgment become final? Explain fully.

If a motion for new trial or a motion to modify, correct, or reform a judgment is not decided by written order within 75 days after judgment, then it is deemed overruled by operation of law. If a motion is timely filed, the trial court, regardless of whether an appeal has been filed, has power to grant a new trial or to vacate, modify, correct, or reform the judgment until 30 days after all filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first. Here, the judgment will become final 105 days after judgment (75 days plus 30 days after the motion is overruled by operation of law) because the motion will be deemed overruled by operation of law.