Tx Civil P/E Flashcards
02/09: Tools [D] wants to object to the jurisdiction of the Nueces County district court on the ground that it is not amenable to process issued by a Texas court. What pleading, if any, must Tools [D] file to present such objection and when must it file such pleading? Explain fully.
Tools should file a special appearance. Under the due order of pleading rule, the special appearance must be filed before any other plea, pleading, or motion; however, the special appearance may be consolidated with other pleadings in a single instrument.
02/09: Assume that Tools [D] properly presents its objection to the Court’s jurisdiction over it. What may the Court consider in ruling on the objection? How should the Court rule on the objection? Explain fully.
The court may consider pleadings, stipulations, affidavits, the results of discovery processes, and any oral testimony. The court should deny the objection to jurisdiction. Tools has minimum contacts with Texas. The foreign corporation, Tools, purposefully acted in Texas (regularly advertised and sold products), the cause of action arises from Tool’s activities in Texas (Paul bought the product and was injured in Texas), and the assumption of jurisdiction would not offend traditional notions of fair play and substantial justice.
02/09: Assume that Tools [D] is considering removing the case to federal court on the basis of diversity of citizenship, given that it is a Delaware corporation. Does Tools have a valid basis for removing the case on diversity grounds? Explain.
Tools does not have a valid basis for removing the case on diversity grounds. Diversity jurisdiction requires that there must be complete diversity. Here, Paul (Texas domicile) is not diverse from David (Texas domicile) and Supplies (a Texas corporation with its principal place of business in Texas). The lack of complete diversity makes removal improper. Even if the parties were diverse, the presence of D’s (David and Supplies) who are residents of the forum state (Texas) would defeat removal based on diversity.
02/09: David does not want the case to proceed against him in Nueces County because he does not live in the county. What pleading must David file to present his objection to the case proceeding against him in Nueces County, and when must David file the pleading? Explain fully.
David must file a motion to transfer venue. Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance.
02/09: Assume David properly files his objection to the case proceeding against him in Nueces County. How should Paul respond, and how should the Court rule? Explain fully.
Paul should respond presenting prima facie proof (affidavits and discovery materials) of matters specifically denied by David and specifically denying any of David’s pleaded venue facts which Paul wishes to contest. The court should deny David’s motion. Under the general venue rule, venue is proper in Nueces county because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred ad it is also the county of D-Supplies’s principal office.
02/09: Assume that Paul’s original petition did not state the total amount of damages that he is seeking. Supplies wants to know the maximum amount of damages that Paul seeks. What pleading can Supplies file to require Paul to state the amount of damages that he seeks? Assume Supplies files the proper pleading. How should the Court rule? Explain fully.
Supplies can file a special exception seeking specification of damages and asking the court to require Paul to amend so as to specify the maximum amount claimed. Supplies must object in writing, call for a hearing, and get a ruling on the exception on the record. Here, the court should order Paul to replead.
02/09: When Paul filed his original petition, he also filed a Request for Production, which was served on each of the Defendants along with the citation and a copy of the original petition. When must each Defendant file an answer to the petition to avoid a default judgment and what is the deadline for each Defendant to file responses to the Requests for Production? Explain fully.
In order to avoid a default judgment, each defendant must file an answer by 10 AM on the first Monday after expiration of 20 days from the date the D was served with process. Each D has 50 days from the date of service of the request to respond because it was served before the D’s answer to Paul’s petition was due.
02/09: Assume the lawsuit proceeds in the Nueces County district court against all of the named Defendants. The parties want to proceed with written discovery before scheduling oral depositions. Identify five permissible forms of discovery under the Texas Rules of Civil Procedure.
1) Request for Disclosure
2) Request for Production
3) Requests for Admission
4) Interrogatories
5) Written and Oral Depositions
02/09: Paul’s atty sends Tools atty a request for admission asking Tools to admit within 31 days of service of the request, that Tools was the manufacturer of the electric saw in question. Forty (40) days after Tools attorney received the request for admission, he served Paul’s attorney with a response denying the request for admission. What is the effect of that response and what must
Tool’s attorney do and show to change that result? Explain fully.
Tool’s denial was not effective because its response to the request for admission was due within 30 days after service. The request for admission is deemed admitted without the need of a court order because it was not timely served. To change this result, Tool’s atty must file a motion to withdraw the deemed admission and demonstrate two things: good cause and that parties relying on the admission will not be unduly prejudiced.
02/09: All of the Defendants want to independently verify the nature and extent of Paul’s injuries. How can that be accomplished? Explain fully.
The D’s can file a motion to compel a medical exam of another party, Paul, by a qualified physician. The motion must be filed more than 30 days before the end of the discovery period, be served on all parties and the person to be examined, show good cause for the examination, and indicate that the party’s physical condition is in controversy.
02/09: Assume that Paul receives a discovery request from a Defendant calling for the production of material that
Paul’s attorney considers to be privileged. How can Paul’s attorney preserve the privilege? Explain fully.
Paul’s atty can preserve the privilege by using a withholding statement. In a response to the discovery request or in separate document, within the time for the response to the request, Paul’s atty must state that information responsive to the request has been withheld, the request to which the material relates, and the privilege asserted.
02/09: In response to a request for production from Paul, Supplies’ atty inadvertently produces communications between Supplies and its attorneys. What must Supplies’ attorney do to avoid a waiver of the attorney-client privilege with respect to the communications that were produced? Explain fully.
The producing party, Supplies, does not waive the privilege, if, within 10 days of discovering that the communications were produced, it amends the response identifying the material produced and states the privilege asserted. After the timely amendment, the requesting party, Paul, must promptly return the privileged material and any copies pending any ruling by the court denying the privilege.
02/09: During Paul’s deposition, his attorney wants to object to questions being asked by Supplies’ attorney. What objections to questions can Paul’s attorney make during the deposition? What objections to testimony can be made during the deposition?
Objections to questions during oral deposition are limited to “objection, leading” and “objection, form.” Objections to testimony during the oral deposition are limited to “objection, nonresponsive.”
02/09: In the course of discovery, Paul identifies an expert witness who states in his expert’s report that the electric saw was defective. How and on what basis can Tools challenge the expert and his opinion? Explain fully.
Tools can file a motion to exclude the expert’s testimony on the ground he is not qualified by reason of his skill, knowledge, training, education, or experience. Tools might also be able to exclude the expert’s testimony on the ground that the principles and methodologies the expert applies are not sufficiently reliable.
02/09: Assume that the Court sustains Tools pretrial objection to Paul’s expert and that Paul has no other evidence to support his claim that the electric saw was defective. What pretrial procedure is available to Tools to avoid the necessity of a trial on this claim? Assume that Tools follows the applicable procedure, how should the Court rule? Explain fully.
Tools can file a motion for summary judgement. After adequate time for discovery, a party may move for summary judgement on the ground that there is no evidence of one or more essential elements of a claim on which the nonmoving party would have that burden of proof at trial. The court should grant the motion because there is no evidence of defect, an element essential to Paul’s claim and on which he would bear the burden of proof at trial.
02/09: The case proceeds to trial. Prior to jury selection, Paul wants to keep the attorneys for the Defendants from disclosing to the jury panel certain information regarding his relationship with his ex-wife. How can Paul’s attorney keep the information from the jury panel and what must he show? Explain fully.
Paul should file a motion in limine, which, if granted, would preclude the Ds’ attys from mentioning the facts of concern to the panel during jury selection or during opening statement and would allow them to obtain a ruling on admissibility outside the presence of the jury before referencing it during trial. In his motion, Paul should show that the evidence is both likely inadmissible and unfairly prejudicial to him.
02/09: During trial, Paul calls a witness who he had failed to identify in his discovery responses. The attorneys for all of the Defendants object to the witness. What must Paul show in order for the witness to be able to testify? Explain fully.
In order for the witness to testify, Paul must show good cause for the nondisclosure or that the opposing parties will suffer no prejudice or surprise.
02/09: At the conclusion of his case in chief, Paul rests. David’s attorney believes that Paul failed to present any evidence to support the negligence claim that Paul had filed against David. What procedure is available to David’s attorney at this point in the trial to bring the matter to the attention of the Court? Explain fully.
David’s atty can file a motion for directed/instructed verdict. David may move for a directed verdict by showing the court that Paul has failed to produce any evidence on at least one element of a ground of recovery, negligence.
02/09: The case proceeds to verdict. The jury returns a verdict in favor of Paul. The Defendants believe that the evidence does not support the jury’s verdict. What pleadings can the Defendants file to prevent the entry of a judgment in favor of Paul? Explain fully.
The proper pleading would be a motion for a judgment notwithstanding the verdict. Here, the Ds can ask the court to render a judgment based on one or more findings that are supported by no evidence.
02/09: The Court enters judgment on the verdict. The Defendants want to file a motion for a new trial. When must such a motion be filed in order for it to be timely? Assume a motion for new trial is timely filed, what happens if the Court never rules on the motion? Explain fully.
The motion for new trial must be filed within 30 days after the judgment is signed. The motion for new trial will be deemed overruled by operation of law on the 75th day after the court signs the judgment.
07/09: What county or counties would be proper venue for such a lawsuit? Explain fully.
Venue would be proper in Kleburg County (where the events giving rise to the claim occurred) and Brooks County (Ray’s residence at the time the cause of action accrued). If venue is proper against one defendant, it is proper as to all D’s. Venue may be proper in Nueces County because that is where D-Extra resides as a “natural person” because a sole proprietorship has no separate legal existence apart from the sole proprietor.
07/09: 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.
Extra mus file a motion to transfer venue to challenge Bill’s choice of venue. Under the due order of pleading rule, the motion to transfer must be filed before any other plea or pleading other than a special appearance. The defendant may file a consolidated response without waiving the motion.
07/09: Extra wants to add Parts to the case as a party defendant, 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.
At any time after the commencement of the action, the defendant may file a third-party petition. The third-party plaintiff need not obtain leave of court to make the service if he files the third-party petition not later than 30 days after service of his original answer. Otherwise, the D must obtain leave of court upon motion after giving all parties notice of the motion.
07/09: 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.
Extra can serve Parts by serving the Texas secretary of state under the Texas long arm statute. Use of the long arm statute is proper when the corporation served is a nonresident, has no regular place of business in Texas, has no registered agent in Texas, and has been doing business in Texas.
07/09: Parts wishes to contest 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.
Parts should file a special appearance to challenge the court’s exercise of personal jurisdiction. The special appearance must be filed before any other plea or pleading to avoid waiver. The special appearance can be filed as part of a consolidated response.
07/09: 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’s special appearance. Here, Parts purposefully acted out of state to cause foreseeable in-state consequences. Bill’s cause of action arises from and is connected with Part’s activity. The exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. It also can be argued the Parts had substantial and systematic contacts with Texas supporting the exercise of general rather than specific personal jurisdiction.
07/09: 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 may use a request for disclosure to obtain any indemnity and insuring agreements and any “witness statements.”
07/09: 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.
Information sought concerning testifying expert witnesses may be obtained from a party through a request for disclosure or deposition. The request for disclosure allows Extra to obtain the expert’s mental impressions and opinions and a summary of the basis for them along with any “data compilations” prepared by the expert. Because no expert report was furnished at the time the expert was designated, the expert must be made available for deposition reasonably promptly after designation.
07/09: 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.
The D’s can obtain the medical records or an authorization using a request for disclosure. The D’s may subpoena production of the records by serving the physicians and parties with a notice to produce 10 days before the subpoena is served in connections with a deposition on written questions. Finally, the D’s could obtain a court order for the production of records. If Bill fails to respond to discovery demands, the D’s can move for sanctions or an order compelling discovery, as appropriate.
07/09: 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.
If the deponent is a party, the deposition may be taken in the county in which suit is filed (Brooks County); the county of the deponent’s residence; the county where the deponent is employed; and the county where the deponent was served with a subpoena. Bill’s deposition may be taken in Kleburg County (residence) and Brooks County (suit), but not Nueces County where it was set itn the notice. Extra’s deposition may be taken in Nueces County (residence and employed) and Brooks County (suit), but not in Kleburg County where it was set in the notice. Ray’s deposition may be taken in Brooks County (residence and suit). Parts’s deposition may be taken in Brooks County (suit). All depositions may be taken in Brooks County and the court should so order.
07/09: 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 notice of deposition must describe with reasonable particularity the matters on which examination is requested. In response, Parts must, a reasonable time before deposition, designate one or more individuals to testify on its behalf on specified areas. If Parts fails to designate an individual, Bill may move for an order compelling a designation or apply to the court for the imposition of sanctions.
07/09: 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 can file a motion for summary judgment alleging that there is no genuine issue as to any material fact concerning defect or causation and that it is entitled to judgment as a matter of law. Parts should attach any supporting affidavits and any discovery material such as depositions not on file with the clerk.
07/09: 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.
Overrule the objection and move the case to the jury docket. To perfect the right to a jury trial, a litigant must file a written request for a jury trial and pay the jury fee a reasonable time before the date set for trial on the nonjury docket, but not less than 30 days before the trial date. A demand made more than 30 days in advance will usually be a reasonable time.
07/09: 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 a lawyer should the juror for cause on the ground that the juror has a bias or prejudice against Extra. A perspective juror who has expressed equivocal bias, as here, is not disqualified as a matter of law. Additional voir dire questions may be allowed to determine if the person could be fair and objective.
07/09: 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 court should overrule the objection. A civil case, a plaintiff may call the defendant adversely at any time during his case in chief, even as his first witness. The plaintiff need not testify before calling the defendant or otherwise lay a foundation for his claims.
07/09: 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 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 overrule the objection. If “listed” means that Parts failed to identify the witness in response to discovery requests, then Parts will have to show good cause for the nondisclosure or that the opposing party will suffer no prejudice or surprise (i.e. the fire marshal was listed as a witness by all other parties). If “listed” refers to the pretrial order, the court may allow modification for good reason to prevent manifest injustice.
07/09: 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.
The court should sustain the objection. Convictions are not admissible to impeach a witness unless the convictions are felonies or crimes of moral turpitude. Moving violations are neither felonies nor crimes of moral turpitude.
07/09: 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.
The court should sustain the objection. Offers to provide valuable consideration to compromise a disputed claim are not admissible to prove liability, nor are statements made during compromise negotiations. The “disputed claim” element of the rule does not require that a legal claim has already been asserted against the offering party. The litigation demonstrates that there is already a dispute as to Parts’s liability, and Parts’s settlement efforts were to prevent Bill from asserting a future claim. Moreover, the request for indemnification was a statement made during negotiations and is therefore also inadmissible.
07/09: After the parties rest and close, the defendants move for instructed verdicts. The court grants the 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.
The court’s charge should submit all of the parties’ proportionate responsibility to the jury except Parts’s responsibility. Each question in the charge must be raised by the evidence and a question should not be submitted if it has no support in the evidence. By granting Parts’s motion, the court found that there are no controverted fact issues concerning Parts’s responsibility for the jury’s determination and that Parts was entitled to a verdict as a matter of law.
07/09: 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.
Extra should file a motion for judgment notwithstanding the verdict. This motion asks the court to render judgment based upon one or more findings that are supported by no evidence. Extra would be entitled to a judgment if no evidence supports the only ground on which the jury found extra responsible—negligent staffing.
02/10: After Trey files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer? Explain fully.
A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendants to file an answer, the plaintiff must obtain service on each defendant of the citation issued by the clerk and a copy of the petition.
02/10: What pleading should Home file to contest the filing of the suit in Dallas County and when should the pleading be filed? Explain fully.
Home should file a motion to transfer venue to contest the filing of the suit in Dallas County. The motion should be filed within the time allowed for filing an answer and, under the due order of pleading rule, must be filed before any other plea or pleading other than a special appearance. Home may file a consolidated response without waiving the venue challenge.
02/10: If the court decides to grant relief to Home regarding the county of suit, what county or counties constitute a proper location for the suit and why? Explain fully.
Collin County because it is a county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Venue also would be proper and Parker County because it is the county of Ice’s principal office in the state (assuming that ice is not a natural person).
02/10: Ice alleges that the district court has no jurisdiction over the parties and subject matter of the suit. Ice moves the court to dismiss the case for lack of jurisdiction.
How should the court rule? Explain fully.
Motion denied. The court has personal jurisdiction over the parties, even if neither were incorporated in Texas. It appears that home’s only contacts with any state are in Texas, and ice must have minimum contacts with Texas, since Texas is where its principle place of business is. The event that either is not a Texas Corp., The Texas long arm statute would provide jurisdiction based on commission of a tort in Texas. The court has subject matter jurisdiction assuming the amount in controversy exceeds of $500, which is the jurisdictional floor for district courts.
02/10: Trey’s original petition is very broad and makes general allegations of negligence against both defendants.
What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations? Explain fully.
File a special exception to Trey’s original petition. A special exception is used to indicate formal defects in particular allegations such as excessively general, uncertain or ambiguous allegations which fail to give fair notice. Defendants must object in writing, call for a hearing, and get a ruling on the record. If sustained, Trey will be allowed to amend the petition to correct the defects.
02/10: Home is actually a Texas corporation and not a sole proprietorship as pleaded by Trey.
How should Home give notice to the parties and the court that it is a corporation and intends to seek the protection ofthat status for its shareholders? Explain fully.
First, Home should file a verified denial as it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Trey notice that home intends to invoke its status as a corporation. Then, Home should allege the same matters in a verified plea in abatement. The plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.
02/10: Ice believes that Trey’s suit against Ice is barred by the statute oflimitations. Ice does not want to disclose this defense for strategic reasons.
Must Ice raise this issue before the case goes to trial and ifso, how should Ice assert the defense of limitations? Explain fully.
Ice must raise this issue before trial and should assert the defense of limitations as an affirmative defense in its answer. The statute of limitations must be pleaded as a ground of defense on which Ice has the burden of proof. Failure to plead the defense of limitations waives the defense. Adding the defense as a trial amendment would be a poor strategy because Trey would likely show surprise or prejudice which would cause the court to deny Ice’s motion for leave to file a trial amendment.
02/10: Trey and his attorney want to know if Home and Ice have liability insurance to cover any of the claims brought in this suit. Ice’s attorney informally tells Trey’s attorney that Ice has no insurance. Home’s attorney makes no reply about insurance coverage.
What document can Trey serve to determine whether either defendant is covered by insurance?
Explain fully.
Trey can use a request for disclosure to obtain discovery of the existence and contents of any insurance agreement under which any person may be liable to satisfy all or any part of a judgment.
02/10: By way of interrogatories, Home inquires of Trey whether he has sustained other accidental personal injuries, before or after the incident made the basis of the lawsuit. Trey objects to the interrogatory as being irrelevant. Home sets the objection for hearing.
How should the court rule? Explain fully.
Deny the objection. Home may obtain discovery regarding any manner that is not privileged, relevant to the subject of the pending action, or which is reasonably calculated to lead to the discovery of admissible evidence. The evidence sought by Home relates to the causal connection between its alleged negligence and Trey’s current alleged injuries. This information is within the scope of discovery allowed by the discovery rules.
02/10: Following Trey’s fall, Home requests that Ice move the ice machine to an area of the store where there is less customer traffic. Trey plans to offer this fact into evidence to prove knowledge of a dangerous condition. Home and Ice believe that the evidence is not admissible and is prejudicial.
What document should Home and Ice file to bring this matter to the attention ofthe court and to keep this matter from being presented to the jury? Explain fully.
Home and Ice should file a motion in limine. If granted, neither Trey nor his counsel could mention the machines relocation in voir dire, opening statement, or during the presentation of evidence without first obtaining a ruling on admissibility outside the presence and hearing of the jury.
02/10: Should Trey’s counsel attempt to offer the fact of the post-accident re-location of the ice machine into evidence, what substantive objection should Home and Ice make regarding this evidence? Explain fully.
Home and Ice should object that evidence of the re-location of the machine is an inadmissible subsequent remedial measure. The court should sustain this objection because evidence of a post accident measure taken to make the injury or harm less likely is inadmissible to prove negligence or other culpable conduct. Here, the post accident relocation of the ice machine is designed to prevent customer slipping and is therefore an inadmissible subsequent remedial measure.
02/10: In his first amended original petition, Trey alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against Ice due to its high employee turnover rate. Discovery is complete and Trey has produced no evidence to support the negligent hiring, staffing, or supervision claims. Ice fears this pleading will be prejudicial to its defense.
What pleading should Ice file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration? Explain fully.
Ice should file a no evidence motion for summary judgment to attack Trey’s allegations. After adequate time for discovery, Ice may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which Trey would have the burden of proof at trial. Ice’s motion would state that Trey has produced no evidence of negligent hiring, staffing, or supervision.
02/10: Trey requested a jury trial and paid a jury fee. Home and Ice requested a jury trial. Trey filed a motion to remove the case from the jury docket and place it on the non-jury docket. Home and Ice object to the motion.
How should the court rule? Explain fully.
Sustain the objection and deny the motion. A demand for jury trial, once made by one party, inures to the benefit of all parties. An opposing party (Home and Ice) may rely on the first party’s (Trey) jury request a first party has both made a request and paid the fee. In such a case, the trial court may not remove the case from the jury docket over the objections of the opposing party.
02/10: The parties attended a mediation conference. The mediation failed. During the mediation, an Ice representative disclosed that the machine in question was old and needed repair. Trey subpoenas the mediator to testify about the disclosure at trial. The mediator files a motion to quash the subpoena.
How should the court rule? Explain fully.
Grant the motion. There is a statutory privilege that provides that a mediator may not be called to testify or disclose any information given to the mediator by any party during the mediation.
02/10: On the second day of trial, one of the jurors is seriously injured and can no longer serve as a juror. There are no alternate jurors. Home asks the court for a mistrial. Trey opposes the motion for mistrial.
How should the court rule? Explain fully.
Deny the motion. In the district court, a verdict may be rendered by the concurrence of 10 members of the original 12 person jury. Where as many as three jurors die or become disabled from sitting, the remaining jurors may render and return a verdict. When the missing juror meets the definition of being “disabled from sitting,” as in this case, the case can proceed even without the consent of both parties.
02/10: Trey discovers that prior to his fall, Ice had been to Home’s store on four occasions to repair leaks in the machine in question. Prior to Trey’s fall, an Ice employee told Home to obtain rubber mats to protect customers. Trey offers these facts into evidence. Home objects on the basis that the witness is not its employee, that Home denies the conversation, and that the alleged statements are not binding on Home.
How should the court rule? Explain fully.
Court should overrule what amounts to a hearsay objection. Statement is not hearsay because it is not offered to prove the truth of the matter asserted. Instead, the statement shows that Home had notice of a dangerous condition. Because the statement is not hearsay, it need not qualify as a vicarious admission, and Home can try to establish that the conversation did not occur on cross examination.
02/10: In a video deposition, a Home employee testifies that he saw Trey spill a soda, step in the soda he spilled, and fall. At trial, Home offers video clips of this deposition testimony. Trey’s attorney objects to the video clips because Home has not shown that the witness is dead or is otherwise unavailable to testify in person.
How should the court rule? Explain fully.
The court should overrule the objection. The Texas rules of evidence provide that a video deposition taken in a civil case is not hearsay when offered in the same proceeding, even though the deponent is available to testify at trial.
02/10: Ice calls Trey’s wife as an adverse witness. Out of the presence of the jury, Ice’s lawyer tells the court that he intends to ask the witness if Trey told her that he fell because he slipped in the soda. Trey objects to this line of questioning.
How should the court rule? Explain fully.
The objection should be sustained. The spousal communication privilege makes confidential communications between spouses during marriage inadmissible. Either spouse may invoke this privilege, not just the witness spouse. Trey’s objection invokes the privilege and makes inadmissible the confidential communication he made to her during marriage.
02/10: During trial, the court refuses to admit into evidence Trey’s unauthenticated medical bills and wage statements. Trey then offers his own sworn answers to interrogatories to authenticate and prove his medical expenses and lost wages. Home objects to this evidence.
How should the court rule? Explain fully.
The court should sustain the objection. Documents must be authenticated through admissible evidence, not through hearsay statements such as the interrogatories. Trey should take the stand and attempt to authenticate the documents with his live testimony or that of another qualified witness, such as a custodian of records.
02/10: After the trial court signs a judgment in favor of Trey, Home and Ice file a motion for new trial based upon jury misconduct. They attach an affidavit of one of the jurors. In that affidavit that juror swears: “The presiding juror was rude and hateful to the other jurors. The presiding juror told the other jurors that all the defendants’ witnesses were liars, and the presiding juror said the jury needed to award the plaintiff a substantial sum of money because he was badly injured.” The affiant testifies to these facts at the jury misconduct hearing. No other evidence is offered to support the motion.
How should the court rule? Explain fully.
Deny the motion if. A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify at whether any outside influence was improperly brought to bear upon any juror. Outside influence means a force external to the jury and it must come from a non juror. Information introduced into deliberations by a juror is not outside influence.
07/10: What pleading should DAN and ABC file if they intend to contest venue in Brown County, Texas, and when must the pleading be filed? Explain fully.
DAN and ABC should file a motion to transfer venue to contest venue in Brown County. The motion must be filed before any other plea or pleading except a special appearance. The motion may be presented in a consolidated response so long as the due order of pleading is preserved.
07/10: DAN and ABC aver that the case should be filed in McLennan County. Paul files an alternative pleading asking the Brown County court to transfer the case to Harris County, since it is where Paul resides. DAN and ABC object to venue in Harris County, Texas.
How should the Brown County court rule? Explain fully.
The court should transfer the case to McLennan County which is a proper venue because all the events giving rise to the claim occurred in that county and also both defendants (not natural persons) appear to have their principal office is in the county. Harris County is not a proper venue because proper venues exist and the plaintiff’s residence is a proper venue only if there is no other proper venue under the general venue provisions.
07/10: By way of a broad and general pleading, Paul sues DAN and ABC for negligence and gross negligence.
What pleading must DAN and ABC file in order to require Paul to plead the specific allegations supporting his negligence and gross negligence claims? Explain fully.
DAN and ABC should file a special exception tell more specific pleadings. Defendants must make the special exception in writing, call for a hearing, and get a ruling on the exception on the record.
07/10: Paul re-pleads his case with specific allegations of negligence, but does not specify the allegations of gross negligence asserted against DAN and ABC. The defendants aver that the pleading regarding gross negligence has defects that are incurable.
What pleading should DAN and ABC file regarding Paul’s new petition, what relief should they seek, and how should the court rule? Explain fully.
DAN and ABC should file a motion to dismiss or strike asking the court to dismiss or strike plaintiffs gross negligence allegations. Having granted defendants’ national exception (see answer to previous question) the court may dismiss or strike the objectionable pleading because plaintiff elected to “stand” on his gross negligence allegations and refuse to amend despite the opportunity to do so.
07/10: Paul’s petition names “Dan Construction” and not “Dan Construction, Inc.” as a defendant.
What pleading should DAN file to assert its corporate capacity in order to protect its officers, directors, and shareholders from personal liability? Explain fully.
First, DAN should file a verified denial because it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Paul notice that DAN intends to invoke its status as a corporation. Then, DAN should allege the same matters in a verified plea in abatement. A plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.
07/10: Pursuant to the general construction contract between DAN and REYNA, Paul signed a pre-injury release and arbitration agreement. DAN believes this agreement constitutes an affirmative defense to Paul’s claims.
What pleading, if any, should DAN file in order to assert the protection of the release and arbitration agreement, and when must the pleading, if any, be filed? Explain fully.
DAN should raise the release as an affirmative defense in his answer or amended answer. The amended answer should be filed at least seven days before trial. DAN should also file a motion to compel arbitration. Arbitration and award is an affirmative defense, but the right to compel arbitration is not. There is no fixed time to file the motion, but delay can cause waiver if the party seeking arbitration substantially invokes the judicial process and the opponent suffers prejudice as a result of the delay.
07/10: Name five categories of discovery authorized by the Texas Rules of Civil Procedure.
Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions.
07/10: DAN’s attorney submits to Paul and his attorney interrogatories requiring 50 separate answers and 50 requests for production.
What pleading should Paul file to object to these discovery requests and how should the court rule? Explain fully.
Paul must make his objection to the interrogatories in writing, either in his response or in a separate document, within the time for his response. The court should sustain the objection because the number of interrogatories is limited to 25 by the rules unless this is a level three discovery case and a court order authorizes a greater number of interrogatories. There appears to be no objection based on the number of requests for production based on these facts. (!!!Check recent changes!!! Verify verity)
07/10: In response to Request for Disclosures, ABC objects to Paul’s request that it disclose its insurance coverage. ABC objects to the request for disclosure claiming ABC is a large company with plenty of assets and its insurance coverage is irrelevant.
What pleading should Paul file to bring ABC’s objection to the court’s attention and how should the court rule? Explain fully.
Paul May file a motion for an order compelling discovery after attempting to resolve the dispute. Court should overrule the objection because the rules expressly authorize the use of a request for disclosure to obtain any indemnity or insurance agreement under which any person may be liable to satisfy all or part of a judgment.
07/10: In response to Request for Disclosures, Paul produces his relevant medical records but refuses to produce a properly executed medical authorization. Paul avers that his production of the records is a valid substitute for the authorization. ABC moves the court to order Paul to produce a properly executed medical authorization in addition to the medical records.
How should the court rule on ABC’s motion and request for a medical authorization?
Explain fully.
The court should grant the motion and order the production of a properly executed medical authorization. The request for disclosure rule provides for production of medical records or, in lieu thereof, a medical authorization. One court has interpreted this to mean that the party requesting the disclosure has the option of seeking an authorization instead of medical records.
07/10: The parties agree on a date for the party depositions. The parties notice and cross-notice each other for the depositions of the parties. Paul and his wife attend the deposition, and a representative of DAN attends the deposition to testifY as a party witness for DAN along with the president of DAN. ABC, without explanation or agreement, does not produce any witness to respond to the notices and cross notices for deposition. All of the respective attorneys appear at the depositions as noticed.
What recourse is available to DAN and Paul for ABC’s failure to produce a witness at the deposition as noticed? Explain fully.
DAN or Paul could file a motion for sanctions or an order compelling discovery based on ABC’s and produce a witness at a properly noticed deposition. As a party, the notice of deposition of ABC had the same effect as a subpoena which ABC ignored. As a corporate party, ABC had a duty to designate and produce a witness to testify on its behalf in response to the notice which presumably described the matters on which examination was requested. A court may order ABC pay the atty fees of DAN and Paul incurred in obtaining the order as well as a broad range of other sanctions.
Paul’s attorney serves a notice for the deposition of Paul’s treating doctor, with the deposition to be taken on Monday July I. ABC’s attorney immediately notifies Paul’s counsel he is set for trial in another case on July I and does not have another lawyer to cover the deposition. Paul’s attorney refuses to reschedule the deposition.
- What pleading should ABC’s attorney file to object to and abate the doctor’s deposition, and when should it be filed? If the pleading is timely filed, what is the effect of the filing? Explain fully.
ABC should file a motion for a protective order or motion to quash the notice of deposition. The motion must be filed before the time specified in the notice. If the motion is filed by the third business day after service, an objection to the time of the deposition stays the deposition until the motion can be determined.
