July 2016 P&E

Question 1

Producer, a Texas corporation with its principal office in Bexar, County, Texas, contracted with Driller, an Oklahoma corporation, to drill an oil well on land owned by producer in Zavala County, Texas. While Driller does no maintain an office in Texas, it routinely drills wells in Texas for Texas customers. The contract to drill Producer’s well was negotiated and singed in Driller’s officers in Oklahoma.

During the drilling of Producers’s well, a blowout occurred and the well was irreparably damaged. Producer terminated the contract with Driller and paid another company $1,000,000 to re-drill the well.

Producer files a breach of contract suit against Driller in 2016 in Bexar Count District Court, and properly serves Driller with the lawsuit. The suit seeks “in excess of $200,000” in actual damages and an unspecified amount of attorney’s fees.

Answer 1

Defendant must file its written answer by 10 am on the first

Monday following the expiration of 20 days from date of service.

Question 2

Driller is considering removing the case to federal court on the basis of diversity of citizenship.

Does Driller have a valid basis for removing the case to federal court based on diversity of citizenship? Explain your answer.

Answer 2

Defendant had a valid basis to remove the case to federal court based on diversity of citizenship. Removal was proper because plaintiff was a citizen of Texas and defendant a citizen of Oklahoma. Removal was proper because the amount in controversy exceeded $75,000

Question 3

Driller’s attorney informs Driller that Zavala County is a favorable forum for drilling companies and wants the case to proceed in Zavala County instead of seeking removal to federal court. Driller agrees.

Answer 3

Defendant was required to file a motion to transfer venue before or concurrently with any responsive pleading (except a special appearance) if it wanted to move the case to Zavala County.

Question 4

Assume Driller properly files the appropriate pleading requesting a transfer to Zavala County and that Producer properly responds to the pleading.

How should the Court rule on Driller’s pleading? Explain your answer.

Answer 4

Court should grant defendant’s motion to transfer because
all or a substantial part of the events/omissions giving rise to the claim occurred in Zavala
County. Because venue was proper in Zavala County, the venue
provision permitting suit in plaintiff’s county of residence did not apply.

Question 5

Producer’s original petition fails to state the maximum amount of money Producer seeks to recover from Driller.

What pleading should Driller file to bring this issue to the Court’s attention, and what relief, if any, is Driller entitled to obtain? Explain your answer.

Answer 5

Defendant should file a special exception pointing out the
defect in plaintiff’s petition. Defendant was entitled to an order
compelling plaintiff to amend its petition to state the maximum amount of damages sought.

Question 6

Driller wants to obtain more detailed information regarding the facts and circumstances underlying Producer’s claims.

List 5 forms of discover available to Driller to obtain such information.

Answer 6

5 forms of discovery available to defendant pursuant to
Texas Rule of Civil Procedure 192.1.

Permissible forms of discovery are:

(a) requests for disclosure;
(b) requests for production and inspection of documents and tangible things;
(c) requests and motions for entry upon and examination of real property;
(d) interrogatories to a party;
(e) requests for admission;
(f) oral or written depositions; and
(g) motions for mental or physical examinations.

Question 7

Driller serves written interrogatories on Producer via certified mail. Driller’s attorney deposits the interrogatories in the mail on Day 1. On Day 32 (31 days later), Driller receives, via hand delivery. Producer’s objections and responses to the interrogatories.

Did Producer timely object and respond to the interrogatories. Explain your answer.

Answer 7

Plaintiff’s response to defendant’s interrogatories was timely
because, when service of discovery is accomplished by mail, 3 days are added to the 30-day response period.

Question 8

Producer states in response to a request for production served by Driller that Producer has withheld certain documents under a claim of attorney-client privilege. Driller’s attorney sends Producer’s attorney a letter demanding that Producer’s attorney immediately identify the documents withheld.

In order to preserve the privilege, what action must Producer’s attorney take in response to the letter and when must she take it? Explain your answer.

Answer 8

Plaintiff should respond to defendant’s request that privileged documents be identified by serving a response that describes the information/material withheld and asserts a specific privilege to each. Such a response should be served within 15 days of defendant’s request.

Question 9

Several months after filing its answer, Driller learns that the blowout preventers on the well were defective and wants to add the supplier of the blowout preventers (“Supplier”) to the lawsuit.

What action must Driller take in order to join Supplier as a party to the lawsuit? Explain you answer.

Answer 9

Defendant should file a third party petition and citation on Supplier
to add Supplier to the lawsuit. Because more than 30 days have
elapsed since defendant filed its answer, defendant also had to file a motion for leave to add Supplier.

Question 10

Producers notices the deposition of Driller’s president. Driller does not want to produce its president for deposition because he does not know anything about the blowout incident.

What pleading should Driller file to resist producing its president for deposition? Explain you answer

Answer 10

Defendant must file a motion for a protective order or a
motion to quash the deposition of its president. The motion had to be accompanied by the president’s affidavit denying personal knowledge of relevant facts. This as an Apex deposition.

Question 11

Driller retains and designates an expert witness to testify at trial regarding the cause of the blowout. Producer promptly sends interrogatories and requests for production seeking information about the expert’s opinions. Driller objects on the ground that the interrogatories and request for production are impermissible discovery requests.

How should the Court rule on Driller’s objections? Explain you answer.

Answer 11

The trial court should sustain defendant’s objections to plaintiff’s interrogatories and requests for production seeking information on defendant’s expert. The proper forms for such discovery are requests for disclosure, written
reports, and depositions

Question 12

Producer sends Driller requests for admission asking Driller to admit certain facts. Driller fails to respond to the requests.

What is the effect of Driller’s failure to respond and what, if anything, can Driller do to change it? Explain you answer.

Answer 12

Defendant’s untimely response to plaintiff’s request for admissions resulted in deemed admissions. Defendant could change this result by filing a motion to withdraw admissions. Defendant must show
good cause and the party relying on the admission would not be unduly prejudiced by the
withdrawal.

Question 13

During depositions of one of Producer’s employees, Producer’s attorney objects to the form of a question asked by Driller’s attorney. Driller’s attorney asks for the basis of the objection but Producer’s attorney refuses to give it, claiming that the rules permit him to say “Objection, form” only.

Answer 13

Plaintiff’s attorney was not correct in refusing to provide a basis for
the objection to form. Upon request, the objecting attorney (here, plaintiff’s) must give a clear and concise explanation for the basis of its objection.

Question 14

During discovery, Driller produces paper copies of drilling reports that are also maintained in electronic form. Producer believes that the reports were altered by Drille and wants the reports produced in the electronic form in which Driller regularly maintains them.

Answer 14

Plaintiff is entitled to defendant’s reports in electronic
form. Plaintiff must specifically request production in electronic
form and specify the form in which it is to be produced. Defendant must
produce responsive information that is reasonably available in the ordinary course of its business.

Question 15

The case proceeds to trial. During voir dire a prospective jurors says, “Several years ago I interviewed for a job with Producer but they hired a less qualified person who was better looking than me. But I can be fair.”

What procedural steps, if any, can Producer take to strike this potential juror? Explain you answer.

Answer 15

Plaintiff should challenge the potential juror for cause based on bias or prejudice. If the for-cause challenge was unsuccessful,
plaintiff should use a peremptory challenge to remove the juror.

Question 16

Producer calls Driller’s drilling supervisor as its first witness. Driller objects on the ground that Producer should first call its own witness to lay a foundation for Producer’s claims before any defendant is required to testify.

How should the court rule on Driller’s objection? Explain you answer.

Answer 16

The court should overrule defendant’s objection to plaintiff calling defendant’s drilling supervisor as its first witness. A plaintiff need not testify first or lay a foundation before calling a witness, and may call its witnesses, including an adverse witness, in any order.

Question 17

While on the stand, an employee of Producer testifies that he talked to Driller’s supervisor immediately after the blowout incident. Producer’s attorney asks what the supervisor said. Driller’s attorney objects to the question and asserts hearsay as the basis of the objection.

How should the court rule on the objection? Explain you answer.

Answer 17

The court should overrule defendant’s hearsay objection to plaintiff’s asking an employee of defendant what the defendant’s supervisor said. The employee’s testimony regarding what the supervisor said is an admission by a party opponent, which is not hearsay.

Question 18

Prior to jury selection, the Court granted Driller’s motion in limine and instructed Producer’s attorney not to mention, or question witnesses about, prior blowouts experienced on other wells drilled by Driller. Producer now wants to introduce evidence of prior blowouts experienced on other wells drilled by Driller.

What action must Producer take to (i) introduce such evidence, and (ii) preserve error if the evidence is not allowed? Explain you answer.

Answer 18

Plaintiff should approach the bench, outside the jury’s presence, and request a final ruling on defendant’s pre-trial motion in limine. If the judge refused to admit the evidence of prior blowouts, plaintiff had to make an offer of
proof or bill of exception in order to put the evidence in the record for appellate review.

Question 19

After Producer rests its case, Driller’s attorney believes that Producer introduced factually insufficient evidence on its breach of contract claim.

What action should Driller’s attorney take to bring this matter to the Court’s attention, how should Producer’s attorney respond, and how should the Court rule on the issue? Explain your answer.

Answer 19

Defendant should file a motion for directed verdict. Plaintiff should respond that a directed verdict can only be based on “no
evidence” supporting the claim or “conclusive evidence” against the claim, and not on factually insufficient evidence as argued by defendant. The trial court should
deny defendant’s motion for that reason

Question 20

At the end of the trial, the jury returns a verdict for Producer and awards damages to Producer. Only 10 of the 12 jurors sign the verdict. Driller objects and timely files a motion for a mistrial on the ground that the verdict was not unanimous.

How should the Court rule on Driller’s motion? Explain your answer.

Answer 20

Defendant’s motion for a mistrial should be denied. A verdict can be rendered in district court by 10 of 12 jurors.