P&E

Question 1

What are the counties in which

venue is proper?

Answer 1

The counties of proper venue are 1) where the
accident occurred, 2) the county of residence of the naturally born defendant, or 3) the county where the defendant corporation has its principal place of business.

Question 2

At the beginning of trial, Plaintiff
calls the Defendant as a witness. The
defendant objects, stating that the Plaintiff
cannot call him as a witness because she has
the burden of proof. How should the court rule
on the objection?

Answer 2

The court should overrule the defendant’s objection. A plaintiff may call a defendant as a witness during her case-in-chief. The burden of proof does not prohibit the Plaintiff from calling the defendant as a witness at the beginning of trial.

Question 3

Steps of a Civil Action

Answer 3

1)Decisions made before filing – jurisdiction,
venue, etc.
3) Pre-trial motions
4) Discovery
5) Trial
6) Judgment
7) Appeal

Question 4

Rule #1: Jurisdiction

Answer 4

Subject matter jurisdiction: Competence of
the court to hear a type of suit
-Diversity Jurisdiction: removing case to
federal district court is proper where plaintiff
and defendant are citizens of different states
+ amount in controversy exceeds $75,000
-Diversity Jurisdiction requires complete diversity.

Question 5

Producer, a Texas corporation with its principal office in Bexar County, Texas, contracted Driller, an Oklahoma corporation, to drill an oil well on land owned by Producer in Zavala County, Texas. While Driller does not maintain an office in Texas, it routinely drills wells in Texas for Texas customers. The contract to drill Producer’s well was negotiated and signed in Driller’s offices in Oklahoma.

During the drilling of Producer’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 County District Court, and properly serves Driller with the lawsuit. The suit seeks “in excess of $200,000” in actual damages.

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 5

Driller has a valid basis to remove the case to
federal court based on diversity of citizenship,
because Producer (a Texas corporation with
principal place of business in same) and Driller
(an Oklahoma corporation) are citizens of
different states, plus the amount in controversy
(“in excess of $200,000”) exceeds $75,000.

Question 6

Rule #1 Jurisdiction

Answer 6

Personal Jurisdiction: a court’s power over the person (defendant).
-A court has personal jurisdiction over a defendant if that defendant (1) has been served with process in the forum state, (2) has had minimum contacts
with the forum state (specific jurisdiction), or (3) is “at home” in the forum state (general jurisdiction).
 Ability to contest personal jurisdiction waived if special appearance (made by sworn motion) is not filed before any other pleading (answer) or motion (including a motion to transfer venue).

Question 7

Mary (a citizen of Texas) sues Dan (a citizen of Oklahoma)
and Mark (a citizen of Texas) in a Texas court for compensatory damages.

Because he is a citizen of Oklahoma, Dan wants to
challenge the filing of the suit in Texas.

What pleading must Dan file to object to being sued in
Texas, and when must it be filed?

Answer 7

Dan should file a special appearance before any
other pleading or motion, or else his ability to
contest personal jurisdiction is waived.

Question 8

Rule #2: Service of Process

Answer 8

 FILE, REQUEST, SERVE
 An action is commenced upon the filing of the original petition and civil case information sheet with the clerk of court.
Plaintiff must request the clerk issue a citation (official notice to other party of suit)
 Plaintiff then must obtain service of process (i.e., citation and a copy of the petition) on the defendant)

Question 9

Paul drove Fred to a bar in Paul’s car. After Fred and Paul each drank several beers at the bar, they decided to return to their college dormitory. Feeling somewhat impaired, Paul asked Fred to drive. Fred turned left on Avenue L in Lubbock, Lubbock County, Texas, and proceeded south. Avenue L is a one-way street, and Fred was driving the wrong way. Dan was driving
westbound on 15th Street, ran a stop sign, and collided with the car Fred was driving. Paul and Dan were both injured. Paul resided in Harris County, Texas. Fred resided in Travis County, Texas. Dan resided in Hockley County, Texas. Paul filed suit against Dan.

What steps must Paul take to file a civil suit for damages and require other parties to respond to his suit?

Answer 9

Paul has to file an original petition along with a
civil case information sheet with the clerk of the
court, request the clerk issue a citation, and
secure service of the petition and citation on
Dan.

Question 10

Rule #2: Service of Process (Out of State)

Answer 10

Serving out-of-state defendants
Same manner of service as for in state defendants
Non-resident motorists: serve the Chairperson of the Texas Transportation Commission
Foreign (out-of-state) corporation with no principal place of business/registered agent: serve Secretary
of State
SOS will forward process to corporate headquarters

Question 11

Dan parked his tractor-trailer rig perpendicular to Highway 100 in
Tarrant County, Texas, in order to open his back doors and unload the trailer. Ted and his co-worker Pal were in a traveling north on the same road. As it came around a curve, Ted’s vehicle collided with Dan’s trailer. Pal was severely injured and died two days later. Pal’s widow, Mary, has retained an attorney to prosecute a civil suit for compensation damages. Mary files suit against Dan. Dan is a citizen of Oklahoma and a resident of Lawton, Oklahoma.
What action must be taken to ensure that Dan is served properly,
affording him appropriate due process notice of the Texas civil suit?

Answer 11

Dan (a non-resident motorist) must be
served by serving the Chairperson of the
Texas Transportation Commission.

Question 12

Rule #3: Venue

Answer 12

What is venue?
Proper in:
 County in which all or a substantial part of the events or omissions
giving rise to the claim occurred.
 If a natural person, county of defendant’s residence when action accrued
 If not a natural person, Texas county of principal office when action accrued
 If none of the above, county in which the plaintiff resided when the
cause of action accrued

Question 13

Rule #3: Venue (MTV)

Answer 13

 Court, on motion to transfer venue filed before or concurrent with any other pleading or motion (except special appearance), shall transfer venue to another county of proper venue if:
 Improper county*
 Impartial trial
 Parties’ written consent
 If court makes an erroneous venue ruling (i.e., keeps suit in improper
venue): (1) no interlocutory appeal available, (2) it’s reversible error, which means judgment reversed and case remanded for new trial

Question 14

Rule #3: Venue (cont..)

Answer 14

Defendant can only obtain venue transfer from one proper venue of Plaintiff’s choosing (which normally controls) to another
proper venue of Defendant’s choosing when transfer would be “for the convenience of the parties and witnesses and in the
interest of justice.”
 “Inconvenience” requires a balancing of interests far too fact-intensive to be tested
 Only reason a defendant’s motion to transfer from one proper venue to another
proper venue: inconvenience
 Plaintiff’s venue is proper, Defendant’s preferred venue is also proper, but there’s no indication of inconvenience*

Question 15

Jon Snow was talking on his cell phone while shopping at CostCrow. He pushed his cart into a 10 foot high wine display, causing a bottle of White Walker Chardonnay to fall
from the highest shelf. The wine bottle struck Ygritte, who sustained a serious head injury. Jon is a resident of Hays County, and Ygritte is a resident of Bexar County. CostCrow is located in Travis County. Ygritte files suit against Jon in Travis
County, and Jon files a motion to transfer venue to Hays County.
How should the court rule on the motion to transfer venue?

Answer 15

The court should deny the motion to transfer. Venue is proper in Travis County (where all or a substantial part of the events or omissions giving rise to the claim occurred). Venue could also have been proper in Hays County (county of Jon’s residence), but there is no indication that venue should be transferred based on inconvenience.

Question 16

Rule #4: Third-party Practice

Answer 16

Texas law provides two ways for a defendant to attribute some or all
liability to a third party:
 Defendant can bring a third party into the action as a party by asserting a third party
claim against it; leave of court is required if third-party petition is filed outside 30 days after defendant filed original answer. Third party defendant must in some way be liable to defendant (indemnity) or the plaintiff (contribution) for all or part of plaintiff’s claim.
 Contribution: asserting negligent acts/omissions of third party contributed to plaintiff’s
injuries*
 Indemnity: indemnifier agrees to make good any loss/liability/damage incurred by
indemnitee (construction contracts, insurance coverage*)
 Or, Defendant can move for leave to designate responsible third party (this does
not bring third party into litigation as a party, but it does get defendant a jury question on third-party liability).
 Only used for contribution, not indemnity

Question 17

Bill resided in Kleberg County, Texas. Bill requested that Extra Plumbing (“Extra”) send an employee to his residence to check a possible gas leak. Extra dispatched an employee, Ray, to Bill’s residence. Ray resides in Brooks County, Texas. Ray had been a plumber for one month. Ray discovered a gas valve leak inside Bill’s residence. Ray told Bill he could try to replace the valve, but that he was not certified to replace any type of leaking gas valve. Bill told Ray he did not care about any certification and that he wanted Ray to replace the valve. Ray installed a replacement valve manufactured by Plumber Parts, Inc. (“Parts”). Bill turned his gas back on at the gas meter without contacting the local gas utility. The next day, Bill’s house exploded and he sustained serious personal injuries. Bill hired a lawyer to sue Ray and Extra for his personal injuries sustained in the explosion and fire.

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.

Answer 17

Extra has to file a Third Party Petition in order to add Parts to the case; leave of court is required if the pleading is filed outside 30 days after Extra filed its original answer

Question 18

Rule #5: Plea in Abatement

Answer 18

 Alleges facts outside the pleadings to show the suit cannot go forward in its present condition – court will suspend lawsuit until defect is cured
 Look for defects in allegations:
- Action w/ same parties/controversy already exists*
- Lack of notice
 Also look for defects in parties:
- Party lacks capacity to sue or be sued
- Plaintiff is not a corporation as alleged
- The name of the defendant is incorrect

Question 19

Two months after filing the first lawsuit against Bob (defendant), Susan (plaintiff) filed a second, identical lawsuit against Bob in the same county.

What pleading must Bob file to prevent the second lawsuit from proceeding?

Answer 19

Bob must file a plea of abatement in the

second court to prevent that case from proceeding.

Question 20

Rule #6: The Answer

Answer 20

Answers are due at 10:00 a.m. on the first Monday after the expiration of 20 days from the date of service.

Question 21

Rule #6: The Answer

Answer 21

Filing an answer prevents a default judgment
Default judgment is entered when a defendant was properly
served but does not file an answer in the prescribed time
period and the citation has been on file with the clerk for 10
days, exclusive of the day of filing and the day of judgment
 HOWEVER A LATE ANSWER, FILED BEFORE JUDGMENT
ENTERED, CAN STILL PREVENT A DEFAULT JUDGMENT

Question 22

Rule #7: Affirmative Defenses

Answer 22

 Affirmative defenses that MUST be raised in the answer (or amended answer filed at least 7 days before trial)
-Commonly tested:
 Statute of limitations
 Accord and satisfaction
 Assumption of risk
 Contributory negligence
 Duress
 Fraud
 Res judicata
 Statute of frauds
 Waiver
 Release

Question 23

Dan and Mark believe that the applicable statute of
limitations has expired with regard to Mary’s
lawsuit. What must Dan and Mark file to properly
raise the statute of limitations issue?

Answer 23

Statute of limitations (an affirmative
defense) must be raised in defendants’
answer and can be amended without leave
of court at least 7 days before trial.

Question 24

Rule #8: Special Exceptions

Answer 24

Defendant may file a special exception challenging the legal sufficiency of a pleading
 Likely to see on P&E defects of substance:
-Inadequate allegations
-Failure to state a cause of action
-For unliquidated damages, failure to state the maximum amount of
damages
 Purpose is to allow the other party to cure the defect
 Defect in pleading is waived if not raised by a special exception
 General demurrer not allowed – need to specifically point out each
defect or fault

Question 25

Rule #9: Discovery

Answer 25

 Requests for disclosure
 Requests for production
 Interrogatories
 Requests for admission
 Oral depositions
 Written depositions
 Motions for physical examination

Question 26

Rule #9: Discovery

Answer 26

A party may obtain discovery concerning testifying expert witnesses only through:
Requests for disclosure
Depositions
Court-ordered reports

Question 27

Jon Snow was talking on his cell phone while shopping at
CostCrow. He pushed his cart into a 10 foot high wine display,
causing a bottle of White Walker Chardonnay to fall from the
highest shelf. The wine bottle struck Ygritte, who sustained a
serious head injury.

How can Ygritte’s attorney find out if Jon is covered by liability
insurance?

Answer 27

A party may obtain information about indemnity
and insuring agreements through a request for
disclosure.

Question 28

Rule #9: Discovery

Answer 28

 In a personal injury suit, a party may request all medical records and bills reasonably related to the subject of the injuries or damages
 Can also get an authorization permitting disclosure of medical records and bills

Question 29

Rule #9: Discovery

 3 Levels of Discovery Control Plans – Level 1 (Specific Situations)

Answer 29

Level 1 – Expedited suits under Rule 169
($100,000 or less) or suits involving
divorces with no children and martial
estate is $50,000 orless
-No more than 6 hours deposition time,
but can expand to 10 hours per party
-No more than 15 written interrogatories,
no more than 15 requests for production,
and no more than 15 requests for
admission

Question 30

Rule #9: Discovery

 3 Levels of Discovery Control Plans – Level 2 (Default)

Answer 30

Default:
Level 2 – Not governed by Level 1 or Level 3 [default]
Begins when suit is filed and continues until the earlier of 30 days
before trial, nine months after first oral deposition, or nine months
after the due date to the first written discovery
No more than 50 hours deposition time
No more than 25 interrogatories, except for those that identify
specific documents (unlimited)

Question 31

Rule #9: Discovery

 3 Levels of Discovery Control Plans – Level 3 (Specific Situations)

Answer 31

Level 3 – Discovery by Court Order

Question 32

Ygritte serves 30 separate interrogatories on Jon. Jon
objects, claiming he only has to respond to 25 of them.
How should the court rule on Jon’s objection?

Answer 32

The court should sustain the objection. This case is governed by a Level 2 Discovery Control Plan, which allows only 25 interrogatories.

Question 33

Rule #10: Jury Demand

Answer 33

 A written request for a jury trial must be filed and the jury fee must be paid a reasonable time before trial, but not less than 30 days before trial.
 More than 30 days before trial, the burden is on the objecting party to show unreasonableness.

Question 34

One hundred and twenty days before the court’s “ready for trial
date,” Jon requests a jury trial and pays a fee. Ygritte files a
motion to strike the jury demand because the discovery and
pleading deadlines have passed. How should the court rule on
the motion to strike?

Answer 34

The court should deny the motion. A written request for a jury trial must be filed and the jury fee must be paid a reasonable time before trial, but not less than 30 days before trial. Because John’s request was made 120 days before the trial date, it was filed a reasonable time before trial.

Question 35

The Ygritte v. Jon case proceeds to trial, and the jury
panel is brought to the court for voir dire. How may
peremptory challenges are available to each party?

Answer 35

Because there is only one party on each side of the lawsuit, each side will receive 6 peremptory challenges.

Question 36

Rule #12: Directed Verdict and JNOV

Answer 36

Timing
 Directed verdict: any time after the opposing party has been fully heard on that issue or claim, but before the case has been submitted to the jury
 JNOV: after jury has entered its verdict
Standard
 Insufficient evidence (i.e., no evidence on which jury could find a material
fact) or
 Moving party has presented conclusive evidence to prevail
 *For JNOV – do not need to have moved for directed verdict

Question 37

The Ygritte v. Jon case proceeds to trial. After
deliberating, the jury returns a verdict in favor of Ygritte.
However, Jon believes that the amount the jury awarded
for future medical expenses has no support in the
evidence. What motion, if any, can Jon file to raise the
issue with the court? Explain.

Answer 37

Jon should file a motion for a judgment notwithstanding the verdict (JNOV) asking that the court disregard the jury findings because there is no evidence to support the amount that the jury awarded for future medical expenses.

Question 38

Rule #13: Finality of Judgment

Answer 38

 Final judgment disposes of all parties and all claims
 Only a final judgment is appealable
 NO INTERLUCTORY APPEAL OF VENUE DECISIONS ON THE P&E

Question 39

If the trial court rules incorrectly on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal regarding any final judgment?

Answer 39

It is reversible error, and would result in a

reversal of the judgment and a remand.