Civ Practice 1

Question 1

Pat bought a bottle of cleaning fluid named Clean Engine from Green Supply (“Green”), a yard and garden store in Bexar County, Texas. Employees of Green represented to Pat that Clean Engine was safe for cleaning lawn equipment with gasoline engines even if they were still hot from use.

Clean Engine was manufactured by Accessories Plus Company (“Plus”), an Oklahoma corporation which has no office, employees or agents in Texas.

Pat resides in Webb County, Texas. Green is a sole proprietorship with a principal place of business in Bexar County, Texas.

Pat used Clean Engine to clean his propane gas grill at his farm in Comal County, Texas. The grill caught fire, the propane tank exploded, and Pat was injured.

Pat filed suit in Webb County, Texas, alleging negligence and products liability theories against Green and Plus.

Answer 1

Questions to follow.

Question 2

1. What must Pat allege in his lawsuit and who must Pat serve in order to acquire subject matter jurisdiction over Plus? Explain fully.

Answer 2

In order to get subject matter jurisdiction over Plus, Pat must allege that Plus is a foreign corporation doing business in Texas with no principal place of business and no registered agent in Texas. In order to properly serve Plus, Pat must serve Plus through the Texas Secretary of State under the Texas long-arm statute.

Question 3

2. Plus is served wth the citation and suit but avers that it does not have employees, agents, or an office in Texas. What pleading must Plus file in order to object to being sued in Texas as a defendant, and when should the pleading be filed? Explain fully.

Answer 3

Plus must file a special appearance before any other pleading in order to avoid default judgment or a waiver of objection to personal jurisdiction. The special appearance must be filed within the time allowed for filing an answer; 20 days of being served.

Question 4

3. What are the counties of proper venue for Pat’s lawsuit? Explain fully.

Answer 4

Proper venue lies in the county where: (i) at least a substantial part of the events that gave rise to the action took place; (ii) the D has its principal office in Texas, if the D is not a natural person; (iii) the D resided at the time of the event; or (iv) if non of these situations apply, where the P resided at the time of the event. Therefore, Bexar County is proper venue for Pat’s lawsuit because Green is a resident of Bexar County, and Comal County is also proper venue because the accident occurred in Comal County.

Question 5

4. Green files a motion to transfer venue. Pat demands a jury trial regarding the motion to transfer venue. Green objects to the demand for a jury trial on the venue issues. How should the Court rule on Green’s objection? Explain fully.

Answer 5

The court should uphold Green’s objection to Pat’s demand for a jury trial on the motion to transfer venue because venue determinations are to be made by the court without the aid of a jury.

Question 6

5. The trial court denies the motion to transfer venue. Is Green entitled to an interlocutory appeal of the Court’s order denying the motion to transfer venue? Explain fully.

Answer 6

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

Question 7

6. Green submits 50 separate interrogatories and 50 requests for admission to Pat. Pat objects to the discovery requests as being in violation of the Texas Rules of Civil Procedure. How should the Court rule on Pat’s objections? Explain fully.

Answer 7

Under the default Discovery Control Plan in Texas, each party is limited to 25 interrogatories, but a party is not limited by the number of requests for admissions they can make. Thus, the court should sustain Pat’s objection to the number of interrogatories and should overrule Pat’s objection to the number of requests for admission.

Question 8

7. After the explosion, an attorney for Green interviewed several witnesses. Although the attorney made and kept notes, the attorney took no witness statements. Pat requests production of the attorney’s written notes as well as the names and addresses of those persons interviewed. What pleading, if any, should Green file in order to avoid production of the notes? How should the Court rule? Explain fully.

Answer 8

If the material sought is privileged, the party may respond to the discovery request by stating the information is privileged and filing a withholding statement identifying the privileges asserted. Although the name, address, and telephone number of nay potential party or any person with knowledge of relevant facts is not protected work product and must be disclosed if requested, Green’s attorney’s interview notes likely are considered undiscoverable core work product because they may contain the attorney’s mental impressions, opinions, conclusions, or legal theories, and the Court will likely rule them undiscoverable.

Question 9

8. At the scheduling conference, an attorney for Green declines to advise the Court or Pat’s attorney whether Green is covered in whole or in part by insurance. What pleading or instrument should Pat file to determine whether Green has insurance coverage for Pat’s claim and lawsuit? Explain fully.

Answer 9

Pat should file a request for disclosure for information on any insurance agreements. Green cannot assert any objections to the disclosure of its insurance agreements when requested under a request for disclosure.

Question 10

9. The parties agree on a date to depose the primary parties and part representatives, but do not agree on the location for the depositions. Green files a motion that the depositions be taken in Bexar County because Bexar County is its principal place of business. Pat objects. How should the court rule on the location of the depositions absent an agreement? Explain fully.

Answer 10

In general, a deposition may take place in: (i) the county where the witness resides; (ii) the county where the witness is employed; (iii) the county where the case is pending, if the witness is a party or a corporate representative designated by a party; or (iv) any other convenient place ordered by the court or designated by the agreement. Absent an agreement, the most convenient place would be where the case is pending (Webb County), and therefore the court will likely deny Green’s motion.

Question 11

10. An investigation by Plus reveals that Pat and Green failed to heed its warning label regarding use of Clean Engine on hot surfaces. What pleading, if any, must Plus file in order to raise this issue with the Court and to support a jury question on these issues, and when should such pleading be filed? Explain fully.

Answer 11

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 pled, Plus should file an amended answer at least seven days before trial to allege that Pat and Green failed to heed its warning label regarding use of Clean Engine on hot surfaces.

Question 12

11. Pat filed a jury demand with his original petition. Pat files a motion to withdraw his jury demand. Green and Plus object to removal of the case from the jury docket. How should the Court rule? Explain fully.

Answer 12

Once Pat has made a jury demand, he cannot withdraw the demand over the D’s objections. Thus, the court should rule in favor of Green and Plus and keep the case on the jury docket.

Question 13

12. Five years before the explosion, Pat was indicted for the assault of his mistress, but the indictment was dismissed. Pat fears this indictment may be mentioned in jury selection or in his opening statements. What pleading should Pat file to preclude the mention or proffer of such evidence? Explain fully.

Answer 13

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. Pat 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.

Question 14

13. Green and Plus gathered evidence that Pat’s neighbor, Tom, actually sprayed Clean Engine onto the gas grill. What pleading should Green and Plus file to support a jury question on the issue of Tom’s negligence? Explain fully.

Answer 14

Green and Plus should file a motion to designate Tom as a responsible third-party and a third-party petition complaint against Tom. A D, acting as a third-party P, may serve a third-party petition/complaint on a person who is not currently a party, but has liability for all or part of the original P’s claim against the D.

Question 15

14. Green and Plus allege, generally, that Pat’s contributory negligence was a cause of the accident in question. What pleading must Pat file in order to determine what facts Green and Plus rely upon to support their defense of contributory negligence? Explain fully.

Answer 15

Pat should file a “special exception” in writing pointing to the particular pleading objected to, and stating with particularity the specific insufficiency. In his motion, Pat should ask the court to require the Ds to amend their defenses with specificity or, in the alternative, strike their pleadings.

Question 16

15. After discovery is complete, Plus believes that there is no evidence that its product was defective or that Plus was negligent in causing the occurrence in question. What pleading(s) should Plus file in order to bring this issue of no liability before the Court? Explain fully.

Answer 16

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 Plus should file a “no-evidence” motion for summary judgment, putting the burden on the non-moving party to present enough evidence to raise a genuine issue of material fact on each of the challenged elements.

Question 17

16. Discovery reveals that Plus is not covered by liability insurance. Plus advises the Court that it intends to tell the jury panel that it has no insurance and that a large verdict will financially destroy Plus. Pat objects, files a motion to exclude this evidence and requests the Court to order Plus not to advise the jury panel that it has not insurance. How should the Court rule? Explain fully.

Answer 17

Evidence that a person was or was not insured against liability is a public policy exclusion and is not admissible to prove whether the person acted negligently or otherwise wrongfully. Therefore, the court should order Plus not to discuss insurance or its financial status because Plus’s liability insurance is not relevant regarding whether Plus is negligent in the lawsuit.

Question 18

17. At trial, Green calls Pat’s neighbor, Tom, as a witness to testify that Pat told Tom, after his purchase of Clean Engine but before the occurrence, Pat though that Clean Engine was very combustible and could cause a fire. Pat objects to this testimony as hearty. How should the Court rule? Explain fully.

Answer 18

A statement made by a party to the current litigation is not hearty if it is offered by an opposing party because this type of statement is an admission of a party-opponent. Here, Pat’s statement to Tom would be considered an admission of a party-opponent, and the court should overrule Pat’s hearsay objection.

Question 19

18. At a court-ordered mediation, Green’s store manager told the mediator that Green will not contest liability for the purposes of mediation. Pat subpoenas the mediator to testify at trial. Green objects to any testimony from the mediator. How should the Court rule on Green’s objection? Explain fully.

Answer 19

The court should sustain the objection because information exchanged in mediation is generally confidential and inadmissible in Texas, unless it is used 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. Because those exceptions do not apply, the evidence is privileged and inadmissible.

Question 20

19. After Pat has presented all of his evidence, he rests. Green and Plus believe that the evidence is legally insufficient to support jury findings and judgment against them as Ds. What pleading should Green and Plus file to bring this legal issue to the attention of the Court?

Answer 20

Green and Plus should file a motion for a directed verdict, stating there is legally insufficient evidence to support a verdict or judgment against them.

Question 21

20. The jury returns a verdict awarding Pat $50,000 for past medical expenses. The parties stipulated before trial that Pat’s group health carrier had paid $30,000 for his past medical expenses and that these payments completely satisfied Pat’s medical accounts. Pat files a motion for judgment for $50,000 for his past medical expenses; Green and Plus move the Court for a judgment of $30,000 for Pat’s past medical expenses. How should the Court rule? Explain fully.

Answer 21

The court should grant Green and Plus’s motion for a $30,000 verdict because the parties have already stipulated that Pat’s group health carrier had paid $30,000 for his medical expenses and that these payments completely satisfied Pat’s medical accounts. Because the jury verdict contradicts the parties’ prior stipulation, the court should grant Green and Plus’s motion for a $30,000 verdict.