Assignment #15 Educational Unit
Title of Unit: BAR EXAM REVIEW[1]
Objective: Prepare for bar exam.
Procedure: Read each question carefully and attempt to answer. Then log on to the relevant Web sites to determine the correct response.
Lesson 1: Civil Procedure and Evidence
The
plaintiff’s Original Unverified Petition filed January 29, 1999, alleges, in
part, the following facts:
To the Honorable
Judge of Said Court:
I.
The plaintiff intends that his suit be covered by Level
2, Discovery Control Plan, pursuant to Rule 190.3 Texas Rules of Civil
Procedure.
1. Under this Discovery Control Plan,
(a) How many interrogatories may one party serve on any other party?
(b) How many hours of oral deposition are permitted each “side”?
(c) Assuming one “side” in this litigation designates more than two experts, how many additional hours of total deposition time may the opposing side have for each additional expert designated?
(d) What discovery level (1, 2 or 3) applies if the plaintiff does not or cannot plead an appropriate discovery level pursuant to the rule?
(e) Does the plaintiff’s pleading of “Level 2” discovery foreclose his propounding a “Request for Disclosure” under Rule 194? Explain.
1.: http://www.supreme.courts.state.tx.us/rules/finalrd.htm
Assume the petition continues:
II.
The plaintiff Pedro Martinez is an individual and the
parent and next friend of his minor daughter, the plaintiff Mijita. Both are residents and citizens of Maverick
County, Texas.
III.
The defendant EZ Go Inc. is a Delaware corporation
doing business in this state as “Quick-NEZ Convenience Stores.” The defendant operates one of its
convenience stores in Eagle Pass, Maverick County, Texas. This defendant may be served at its
corporate headquarters in Boise, Idaho at 123 Main St., by serving Mr. Nathan,
vice president.
IV. Although the tort that forms the basis of this suit
occurred at one of the defendant’s stores in Amarillo, Potter County, Texas,
venue is proper in this district court of Maverick County, Texas, since the
defendant maintains a retail convenience store in Eagle Pass, Maverick County,
Texas.
2. Assuming the factual recitations in Paragraph 4 are correct, is venue properly maintainable in Maverick County? Explain your answer.
3. Is it necessary in this particular case to invoice Texas’ “Long Arm” statute to obtain proper service on the defendant? Explain your answer.
4. May the defendant EZ Go Inc. remove this case to the proper federal district court (assuming there is $75,000 in controversy)? Explain your answer.
2.: http://capitol.tlc.state.tx.us/statutes/codes/CV000012.html
3: http://capitol.tlc.state.tx.us/statutes/codes/CV000014.html
Background Facts
IV.
On January 2, 1999, the minor plaintiff, Mijita, an
invitee in the defendant’s retail store in Amarillo, Texas, slipped and fell on
a foreign substance located on the floor.
The foreign substance made the premises unreasonably dangerous and the
defendant know or should have known of the unreasonably dangerous
condition. The defendant’s failure to
warn the plaintiff of such condition or otherwise make the premises safe for
invites constitutes actionable negligence.
5. Assume the defendant wishes to file a general denial in response to the entire petition. Draft the substance of an appropriate and effective general denial in the space provided below:
6. Assume the defendant wishes to assert the following affirmative defenses. Use the space provided below to draft appropriate language for each defense:
(a) Contributory negligence;
(b) Sole cause;
(c) Superseding intervening cause (conduct of third party);
(d) Act of God;
(e) Statute of limitations.
7. Which, if any, of the above affirmative defenses must the defendant verify?
8. Explain your answers to the following questions regarding the due order of pleading:
(a) The defendant wishes to challenge venue. First the defendant files a general denial. Immediately after the general denial, the defendant files a pleading entitled only “Motion to Transfer.” How should the court rule on the Motion to Transfer?
(b) The defendant wishes to challenge the sufficiency of service. The defendant files a timely Motion to Quash and does not file an original answer within the time prescribed by law after service. Assume the Motion to Quash is granted. Must the defendant file a responsive pleading or is the plaintiff first required to reissue citation?
(c) The defendant wishes to challenge personal jurisdiction. First, the defendant files a special appearance. Second, the defendant files an original answer. May the defendant still challenge personal jurisdiction?
9. What discovery instrument may the plaintiff serve on the defendant to allow the plaintiff to inspect and photograph the premises and site of the accident at the Quick-N-EZ store? Is the plaintiff entitled over the defendant’s objection to interview employees of the defendant at the scene of the accident during the inspection and photography session? Explain your answers.
5.: Rule 92 http://www.io.com/adminlaw/trcp24.htm#II.4.C
6: http://www.io.com/adminlaw/trcp24.htm#II.4.C
7.: Rule 93 http://www.io.com/adminlaw/trcp24.htm#II.4.C
8: http://www.io.com/adminlaw/trcp24.htm#84
http://www.io.com/adminlaw/trcp25.htm#II.5
9: http://www.io.com/adminlaw/trcp28.htm#166b
The plaintiff sends out a Notice
of Deposition that does not identify the name of the witness to be
deposed. The text of the notice states
as follows:
To: The defendant EZ Go Inc. c/o (counsel of record)
Take
notice that pursuant to Rule 201, the Texas Rules of Civil Procedure, the
plaintiff will take the oral deposition of the person or persons designated by
the defendant EZ Go Inc., to testify concerning the following matters at the
law office of the plaintiff’s counsel commencing at 10 a.m. on [Day X].
The
plaintiff wishes to examine the witnesses so designated on the following
matters:
A.
The defendant EZ Go Inc.’s policies and procedures
regarding cleaning and maintaining its interior floors during working hours.
B.
The defendant EZ Go Inc.’s policies and procedures regarding
customer safety.
C.
The defendant EZ Go Inc.’s policies and procedures
regarding the investigation of customer accidents.
10. May the defendant quash this notice because it fails to identify the particular witnesses to be interrogated? Explain your answer.
11. What discovery instrument(s) would the plaintiff serve to compel the production of documents at the deposition of an employee of the defendant who has custody or control of such documents, and how long before the date set for the deposition must such instruments be served?
10: http://www.io.com/adminlaw/trcp29.htm#II.9.B
11: http://www.io.com/adminlaw/trcp29.htm#II.9.B
Lesson 2: Trusts and Estate
In 1991,
Ted Testator, a widower, executed a will valid in Texas. The will provided as follows:
1.
I leave my 100 shares of stock in XYZ Company to my
oldest son, Sam:
2.
I leave my 400 acre ranch in Harris County, Texas plus
$40,000 cash to my youngest son, Bob; and
3.
I leave all the rest and residue of my property and
estate, including any lapsed legacy, to my only daughter, Sue.
On May 10, 1999, Ted died in
Harris County while on a visit there.
On May 13, 1999, Sam died in a tragic accident, survived by his wife
Ginger and two children, Courtney and Wyatt.
Courtney was born on May 9, one day before Ted’s death. Sam’s will left his entire estate to his
wife.
Bob survives Ted and has one
child, Elizabeth, age 20. Sue also
survives Ted; she has no children.
At the time of Ted’s death, he
owned the following property: (a) 200
shares of XYZ Company stock as a result of a 2 for 1 stock split declared by
XYZ in 1995; (b) $50,000 cash dividends that had been paid on the XYZ stock and
deposited in a bank account in Ted’s name in Harris County; (c) a $250,000
promissory note received as part of the sale price of the Harris County ranch
in 1997; and (d) his residential homestead in Dallas County, which homestead is
valued at $300,000.
Ted’s estate owes $100,000 in
debts and expenses.
A. To whom should Ted’s estate by distributed, and what interests does each distributee take? Discuss fully.
B. In what county should Ted’s will be probated?
C. From what property should the estate’s debts and expenses be paid? Discuss fully.
D. If Bob disclaims rights to the $40,000 cash bequest, who becomes entitled to receive the disclaimed $40,000? Explain your answer.
A: http://capitol.tlc.state.tx.us/statutes/codes/PB000004.html
B.: http://capitol.tlc.state.tx.us/statutes/codes/PB000001.html
C: http://capitol.tlc.state.tx.us/statutes/codes/PB000002.html
D: http://capitol.tlc.state.tx.us/statutes/codes/PB000002.html