July 2017 P&E

Question 1

Producer, a Texas corporation with its principal office in Harris County, Texas, contracted with Driller, a Louisiana corporation, to drill an oil well on land owned by Producer in Webb County, Texas. Driller’s principal office, where all of Driller Officers are located, is in Louisiana, but Driller maintains an equipment yard in Jefferson County, Texas. The contract to drill Producer’s well was negotiated and signed in Driller’s office in Louisiana.

Due to an error by its accounting clerk, Producer inadvertently paid Driller $250,000 more than the contract provided for drilling the well. Driller refused Producer’s demand to refund the overpayment. Producer files suit agains Driller in 2017 in Harris County District Court, and properly serves Driller with the lawsuit. The suit seeks unspecified actual damages and attorney’s fees.

When must Driller file its answer to avoid the entry of a default judgment against it?

Answer 1

Driller should file a written answer by 10am on the first

Monday after the expiration of 20 days from service of process.

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 on the basis of diversity of citizenship? Explain you answer.

Answer 2

Driller had a valid basis to remove the case to federal court.
Most examinees explained Driller has a proper basis because Driller was a citizen of Louisiana,
Producer was a citizen of Texas, and the amount in controversy exceeded $75,000.

Question 3

Instead of seeking removal to federal court, Driller decides that it wants to move the case to Jefferson County. What pleading must the Driller file to seek to move the case to Jefferson County, and when must it file the pleading?

Answer 3

Driller should file a motion to transfer venue before or

concurrently with any responsive plea, except a special appearance.

Question 4

Assume Driller properly files the appropriate pleading to move the case to Jefferson County and that Producer properly responds to that pleading. How should the Court rule on Driller’s pleading? Explain your answer.

Answer 4

Court should deny Driller’s motion to transfer venue. Venue was not proper in Jefferson County because that county is
neither Driller’s principal place of business in Texas, nor where the events or omissions giving
rise to the claim occurred.

Question 5

Producer’s original petition fails to state how much money Producer seeks to recover from Driller. What pleading should the Driller file to bring the issue to the Court’s attention and what relief, if any, is the Driller entitled to obtain? Explain your answer.

Answer 5

Driller should file a special exception.
Driller is entitled to an order compelling Producer to amend its petition. The amendment must state the maximum amount of damages sought (rather than
the exact amount sought).

Question 6

Driller wants to obtain more detailed information regarding the facts and circumstances underlying Producer’s claims. List five forms of discovery available to Driller to obtain such information.

Answer 6

The forms of discovery available to Driller included 1) request
for disclosure, 2) interrogatories, 3) request for production, 4) oral depositions, 5) depositions on written
questions, 6) request for admissions, and 7) request for entry upon and examination of real property.

Question 7

Driller serves written interrogatories on Producer via hand delivery. Producer actually receives them on Day 1. On Day 31 (the 30th day after receiving the interrogatories), Producer serves its objections and responses to the interrogatories by depositing them in the mail. The objections and responses were postmarked that day, but not actually received by Driller until Day 33.

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

Answer 7

Producer timely responded to Driller’s interrogatories. The response was timely because service of the response was due 30 days after
receipt or on Day 31. Producer’s response was timely because it deposited
the responses in the mail on Day 31. The “mailbox rule”
does not apply here.

Question 8

Producer states in a 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?

Answer 8

Producer is required to serve a response describing the
privileged information withheld and asserting a specific privilege for each withheld item. Response is due within 15 days of service of the request.

Question 9

A week after the court-ordered deadline for joining new parties, Producer learns that Driller immediately transferred the $250,000 overpayment to a bank account owned by an affiliate of Driller. Producer is considering adding the affiliate as a defendant to the law suit.

What pleading(s) must Producer file if it decides to add the affiliate as a party to the lawsuit? Explain your answer.

Answer 9

Producer has to file and serve an amended petition on Driller’s
affiliate to add affiliate as a defendant to the suit. Producer has to file a motion for leave to do so because Producer sought to add a party after the court-ordered
deadline.

Question 10

Producer 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 alleged overpayment. What pleading should the Driller file resist producing the president for deposition?

Answer 10

Driller must file a motion for protective order or a motion to quash the deposition of its president. The motion should be accompanied
by an affidavit from its president denying personal knowledge of relevant facts.

Question 11

Driller contends that the $250,000 “overpayment” was owed under a bonus provision in the contract. Driller retains and designates an expert witness to testify at trial on the issue. Producer promptly sends interrogatories and requests for production seeking information about the expert’s opinions. Driller objects on the ground that the interrogatories and requests for production are impermissible tools for discovery of this information.

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

Answer 11

The court should sustain Driller’s objections to Producer’s
interrogatories and requests for production seeking information about Driller’s expert. The only permissible discovery tools regarding experts 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

The Driller’s failure to timely respond to Producer’s requests for
admissions resulted in deemed admissions. Driller should file a motion to withdraw the deemed admissions, showing both good cause for the failure to timely respond and
that Producer would not be unduly prejudiced by the withdrawal of the admissions.

Question 13

During the deposition 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 her to say “Objection, form” only.

Is Producer’s attorney correct? Explain you answer.

Answer 13

Many examinees knew Producer’s attorney was not correct in refusing to give a basis for
a “form” objection in a deposition. Few examinees explained that, upon request for the basis of
an objection, the objecting attorney must provide a clear and concise explanation of the basis for
the objection.

Question 14

In response to a request for production of certain documents in electronic form, Driller produces only paper copies of the documents even though they are also maintained by Driller in electronic form.

Is Producer entitled to production fo the documents in electronic form? If so, what action must Producer take to obtain such production? Explain your answer.

Answer 14

Producer is entitled to production of the documents in
electronic form because it requested the documents in such form. Producer should file a motion to compel productions of the documents in electronic form.

Question 15

After discovery is complete, Producer is convinced that Driller cannot produce any evidence to support Driller’s defenses. Producer properly files a no-evidence motion for summary judgment on each defense asserted by Driller and sets it for hearing 30 days later.

What action must Driller’s attorney take in response to the motion and when must he take it? Explain you answer.

Answer 15

Driller should file a response to Producer’s no-evidence
motion for summary judgment. The response should contain summary
judgment evidence raising a genuine issue of material fact with respect to each of Driller’s
defenses. The response should be filed no later than 7 days before the
summary judgment hearing.

Question 16

The case proceeds to trial. During voir dire, a prospective juror says, “I used to work for Driller, but they fired me. But I can still be fair.”

What procedural steps can Driller take to strike this potential juror? Explain your answer.

Answer 16

Driller should first challenge the juror for cause on the basis
of bias or prejudice. If the for-cause challenge was not successful, Driller could use a peremptory strike to remove the juror.

Question 17

Producer calls Driller’s drilling supervisor as its first 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 your answer.

Answer 17

The trial court should overrule Driller’s objection to Producer
calling Driller’s drilling supervisor as Producer’s first witness. A plaintiff may call a defendant adversely at any time during its case-in-chief, and no foundation need be laid.

Question 18

While on the stand, an employee of Producer testifies that he talked to Driller’s chief financial officer about the overpayment. Producer’s attorney asks what the officer said. Driller’s attorney objects to the question on the basis of hearsay.

How should the Court rule on the objections? Explain your answer.

Answer 18

The trial court should overrule Driller’s objection to the

witness’s testimony because the testimony was an admission by a party opponent, and not hearsay.

Question 19

Prior to jury selection, the Court granted Producer’s motion in limine and instructed Driller’s attorney not to mention, or question witnesses about, prior overpayment claims Producer had asserted against other customers. Driller now wants to introduce evidence of those prior claims.

What action must Driller take in order to (i) introduce such evidence and (ii) preserve error if the evidence is not allowed? Explain your answer.

Answer 19

Driller must approach the bench outside the jury’s presence
and request a final ruling on Producer’s motion in limine. If the
judge refused to admit the evidence, Driller must make an offer of proof or “bill of exceptions”
to put the proposed evidence into the record for appellate review.

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 you answers.

Answer 20

The trial court should deny Driller’s motion for mistrial because a verdict in district court may be rendered by 10 of 12 jurors.