Professor Franks

Final Examination, Spring 1999

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "I-B."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your personal identification number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your PIN and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

Upon graduating from Southern University Law Center, you decide to offer your used casebooks, hornbooks, outlines, poop and "cum-laude-quality" class lecture notes for sale as one package. An incoming first-year law student, Homer Hornblower, believes everything you say when you tell him your books and lecture notes are the key to a 4.0 average. He takes you up on your offer and writes you a check for $725 for the package.

Five days later, your bank notifies you that Mr. Hornblower has stopped payment on his check. You file suit in Baton Rouge City Court for $725. The citation is not issued immediately, and Mr. Hornblower meanwhile leaves town. No service is made.

A week after you receive your degree you head out to study for the bar, living and working part-time in the town of Toomey, Louisiana, in Calcasieu Parish. You begin clerking for the one law firm in town and, more importantly, the one law firm that has made you the best job offer. Homer Hornblower meanwhile takes a summer job as a fast-food fry cook in Orange, Texas -- just across the state line and nine miles down the road from Toomey.

On your first visit to McDonald's in Orange, you notice Homer working there. He notices you, too. On your third visit to McDonald's, while you are waiting in line for your Egg McMuffin, a strange man approaches you. He identifies himself as a deputy sheriff and hands you a summons and complaint directing you to appear before a justice of the peace in Orange, Texas, there to answer Mr. Hornblower's suit to rescind the sale and for breach of implied warranty of fitness. A quick reading of the complaint shows that Mr. Hornblower is claiming that whole pages are missing from the books you sold him and that your "cum-laude-quality" notes are illegible.

Please answer the following specific questions:

A. You decide you like the justice better in Baton Rouge. What steps should you take:

1. in the action in Texas?

2. in the action in Baton Rouge?

B. Despite your best efforts, the Texas case is set for trial. You file an answer but no counterclaim or reconventional demand. Does the Texas court now have jurisdiction? Did it have jurisdiction prior to your entry of an appearance? Discuss.

C. What substantive law should the Texas justice of the peace apply and why? Discuss various approaches the Texas justice of the peace should or could use to decide what substantive law to apply.

D. A reduction of the purchase price may be decreed in a Louisiana redhibitory action under Louisiana Civil Code article 2543, but this remedy is not available in a Texas suit for recission under the Texas UCC, the latter taking more of an "all or nothing" approach to suits to rescind a sale. Your answer pleads that the court should at most give Mr. Hornblower a reduction of some of the purchase price. Are there any steps you must take to bring this possible remedy to the attention of the Texas court? Must the Texas court recognize and consider this Louisiana remedy? Why or why not? Discuss.

The action in Baton Rouge was the first filed. The action in Texas is the first to come to trial. The justice of the peace decides to apply Texas law on sales (the Texas UCC provisions for rescission) "cuz I don't know nothin' about this redhibition thang and I don't even care to learn about Louisiana's strange laws." Applying Texas law, he finds for the plaintiff, Mr. Hornblower, awarding him judgment for the full $725. Please answer the following additional questions:

E. Mr. Hornblower is then served in Texas by certified mail with your Baton Rouge City Court suit. Hornblower appears specially in the Baton Rouge court, contesting jurisdiction. Discuss the jurisdictional issue.

F. Mr. Hornblower then claims the matter is res judicata. The Baton Rouge court decides initially not to recognize the Texas decision "because the Texas judgment is not properly certified." Discuss what steps Hornblower needs to take to have the Texas judgment recognized in the Baton Rouge court.

G. The trial judge in Baton Rouge finally decides to receive the Texas judgment into evidence. You then tell the Baton Rouge court that the justice of the peace in Texas was wrong to apply Texas law and to refuse to apply Louisiana's law of redhibition, and further that he was wrong for failing to consider a reduction of price. What will be your chances for success? Discuss.

H. The Baton Rouge City Court finally accepts your argument that the Texas judgment is wrong, and renders judgment in your favor on the bad check.

1. Which judgment now governs the parties? Discuss.

2. What if anything is Hornblower's remedy? Discuss.

3. What result if Hornblower follows that course? Discuss.

This semester you have been working in Port Allen as law clerk to one of the judges of the Eighteenth Judicial District Court for the Parish of West Baton Rouge.

Bonnie and Clyde Cochon were married in 1990. They lived in Shreveport from 1990 to 1995. One child, Hamlet Cochon, was born in 1995. That same year, 1995, Bonnie and Clyde moved to the City of Corpus Christi, County of Nueces, State of Texas. Their relationship left something to be desired, and they finally separated in June 1996.

In their divorce, in which both parties appeared, the 295th Judicial District Court for the County of Nueces (Corpus Christi) awarded "managing conservatorship" (the Texas term for sole custody) of little Hamlet to Bonnie. Clyde was given "possessory conservatorship" (the Texas term for visitation) on alternating weekends, and Clyde was ordered to pay the sum of $650 per month as child support. The judgment was signed in March 1997.

In April 1997, Bonnie moved to Port Allen, Louisiana, to begin her new life as a used car salesperson at Riverside Chevrolet. Clyde left Corpus Christi that same month and moved seven hundred miles west, to El Paso, Texas.

In January 1998, Bonnie filed a petition to modify visitation in the Eighteenth Judicial District Court for the Parish of West Baton Rouge. Clyde was served with process in Texas by certified mail and never appeared in the Port Allen action. Finding Louisiana to be the home state of the child and finding that a change of circumstances had occurred making visitation on alternating weekends inappropriate, the court modified the Texas order by awarding Clyde visitation for five weeks each and every summer and for one week during the Christmas season only in even-numbered years.

Bonnie told Clyde of the order and mailed him and copy, and Bonnie shipped little Hamlet off to El Paso for five weeks in the summer of 1998. Clyde dutifully returned Hamlet to his mother without incident at the end of those five weeks.

The visitation during the Christmas 1998 holidays did not go so well. Bonnie sent Hamlet to his father, who upon seeing the condition of the child immediately took him to a pediatrician. Clyde, enraged, then telephoned Bonnie, telling her that she would never see Hamlet again. Bonnie immediately caught the first plane to El Paso.

The very next day the father, Clyde, filed suit in the 134th Judicial District Court for the County of El Paso, State of Texas, claiming that Hamlet was "covered with bruises" when he arrived and that Hamlet reports having been sexually abused by the mother's live-in boyfriend. The father documented his claim with photographs and with the affidavit of the pediatrician.

But while Clyde was at the El Paso County courthouse filing his suit and getting an ex parte temporary restraining order against Bonnie, Bonnie swung by Clyde's house and picked up Hamlet, whom the babysitter had left playing in the front yard of his father's house. Bonnie returned directly to Louisiana with Hamlet.

Bonnie was not served while in Texas. The Texas court, finding an emergency and further finding that the courts of Texas in any case have continuing jurisdiction to modify their custody decrees, granted a default judgment awarding permanent custody of Hamlet to Clyde.

Clyde has now retained Baton Rouge counsel, and has filed a properly certified and exemplified copy of the Texas judgment in the Eighteenth Judicial District Court for the Parish of West Baton Rouge. Bonnie through her attorney has asked the Eighteenth Judicial District Court to declare the judgment not entitled to full faith and credit in Louisiana. Bonnie has also filed suit in Louisiana for an increase in child support and for a division of her ex-husband's pension that the Texas divorce court simply forgot to divide at the time of the divorce.

The judge you are clerking for has asked you to prepare a memorandum advising him on the jurisdictional questions. Do so, discussing all issues.

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