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John Edward Roper

John Roper’s Answers

13 total

  • Questions regarding Special Exceptions and what is considered a special exception. What type of pleading would we use to oppose.

    I am in attending a texas undergraduate college & my litigation class is holding mock trial. I have read rule tex civil rule 90 and from what I can tell special exceptions used when there is a defect in allegations? One of opposing teams has f...

    John’s Answer

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    You are correct that one files Rule 190 special exceptions when one asserts there is a defect, omission, or fault in the pleadings. To respond you would file a Response to Defendant's Special Exceptions. If you misnamed Macy's, a motion to abate would be the appropriate vehicle to raise the issue. Also look at Tex. R. Civ. P. 71. Have fun.

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  • I'm in Texas, ready to serve my Request for Admissions upon the Defendant, how many request can I submit in total, to defendant.

    I would like to know what is the total number of Request for Admissions, that I can submit to a defendant to answer. Need Help!

    John’s Answer

    Officially, there is no limit. Nevertheless, one may not serve requests for admissions (or undertake any other discovery for that matter) that are groundless, in bad faith, and/ or for the purpose of harassment. Accordingly, you should only serve a reasonable number of requests. What that number is may vary depending on the issues in the case and their complexity, the number of parties, and the amount in controversy, among other things. Bear in mind that what's sauce for the goose is sauce for the gander, and the defendant may also serve requests on you. Good luck.

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  • Pleading statute of limitations as an affirmative defense

    If a defendant fails to raise statute of limitations as an affirmative defense in their answer, is it too late to correct this?

    John’s Answer

    Perhaps. Generally speaking, in Texas state court (as opposed to a Texas federal court, which is a different creature), the defendant may amend its answer without the permission of the court if the amendment is made before the deadline for amended pleadings contained in any scheduling order issued in the case. When there is no scheduling order, or the scheduling order doesn't contain a deadline for amended pleadings, the defendant may amend its answer not less than seven days before trial without the permission of the court so long as the amendment does not operate as a surprise to the plaintiff. If the amendment operates as a surprise, the court may or may not allow it. If the plaintiff does not file/serve objections in writing to an amendment (i.e., on the basis of surprise or otherwise), the plaintiff may be deemed to have waived the issue and/or tried it by consent. To amend after the deadline stated in a scheduling order issued in the case, or to amend less than seven days before trial, the defendant must get the court's permission. In these instances, the plaintiff should also object in writing on the basis of surprise, if true. There's lots of of stuff going on here -- please consider discussing this issue completely with your lawyer. Good luck!

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  • Is it legal in Texas for an operator to deduct transportation, compression, and gas processing fees from an ORRI owners check?

    I have an ORRI interest in a well in the Texas panhandle. The well is a sour gas well producing from the Ellenburger in Wheeler County, Texas. The Operator of the well entered into a contract with an offset operator to run the gas through their ...

    John’s Answer

    Great question. If you own a true overriding royalty interest ("ORRI") in the production - and that's your only role - it would be unusual for you to pay operational costs. This begs the questions: are you an ORRI owner within the traditional definition of that phrase? Are the costs of hydrogen sulfide transportation (offset piping) and extraction "operational costs?"

    Start with a careful review of the underlying granting instrument(s) and contract(s); they may directly answer these questions. You could also draft a short, courteous letter to the well operator asking them to point out the specific provision(s) upon which they are relying to justify your payment of these expenses. If the operator doesn't respond within a reasonable amount of time, or if their answer is vague, ambiguous, or doesn't directly answer your question, this should raise a yellow flag. In that case, I would suggest you visit directly with an attorney about your specific circumstances.

    In any event, you should try to get to the bottom of this issue as soon as possible to mitigate an argument that you waived your right to challenge these expenses by paying them without protest, if appropriate. Good luck.

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  • Can you sue a city inTexas for breach of contract on a lease that they accepted when the bought the land.

    We are leasing out a part of a building that the city obtained when they bought property. After first telling us that we had to leave now they say we can stay but they are going to tear the rest of the center around us. Can we sue?

    John’s Answer

    You may be able to sue the city depending on a number of other unknown facts. Did the city assume the lease (and all obligations of the landlord) in writing when they acquired the building? Did they actually acquire the building by purchase or did they acquire it by eminent domain? Did your lease expire by its own terms? Is it a residential or commercial lease? This is not a pleasant situation. I recommend that you discuss these issues in depth, in private, with a lawyer. Good luck.

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  • Is it illegal to make a website about an ex? What would be acceptable and what would be unacceptable?

    I have an ex who after spending thousands on, remained faithful to and supported had cheated on me for a year. He had lied to everyone about several things including our relationship, why he was incarcerated and other things regarding our relation...

    John’s Answer

    Legally, you should not defame him, post matters that arguably invade his privacy, or post matters that publically disclose private facts, among other things. Depending on the laws of your state, using his image without his permission, alone, may be enough to create legal problems.

    Now that we've discussed some of the legal aspects, which alone should be enough to persuade you not to do this, please consider whether creating a website or otherwise publicizing "your side of the story" will accomplish anything other than escalating matters. For example, could he create a website about you in response?

    As Francis Bacon once wrote, "In taking revenge, a man is but even with his enemy, but in passing it over he is superior." I don't mean to sound sanctimonious, but you really have the opportunity to take the high road here. I suggest you not give this guy any more of your time or emotion. He has presumably taken enough already.

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  • What kind of attorney do I need for this case?

    Last November (2010) my husband and I purchased a car from a lady living in town. We paid her $3200.00 cash. We asked her for the cars title and she told us she was still financing the car and that she would use the $3200.00 to pay the car off the...

    John’s Answer

    You may want to consult with a local civil litigator/trial attorney. Whether this event was intentional or simply the result of a misunderstanding, he or she should be able to get to the bottom of it. Good luck.

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  • A couple close friends and I want to buy a head stone for a friend that was murdered.

    It has almost been 5 years and still no head stone. So we all want to pitch in and buy one for her 5 year aniversary coming up in July. We contacted the funeral home where she was burried and this is what they told us..."I just spoke to Sparkman...

    John’s Answer

    I think the fact that you all want to commemorate your friend's life is noble.

    If the funeral home's policy is as you describe it, perhaps you could have a heart-to-heart conversation with a key family member in order to see if he/she could be persuaded to participate. Or, perhaps you can find another way to celebrate your friend's memory. For instance, perhaps you could have flowers delivered on a routine basis, create a memory board, plant a memory tree or garden for her, or contribute to a civic or charitable endeavor in her memory.

    Your friend’s family may have other ideas and suggestions. If you were not close with your friend’s family before she passed away, this may be an opportunity for you all to become better acquainted, share the memories of your friend, and heal.

    In the end, in all instances I suggest you respect the family's wishes.

    I’m sorry for your loss and wish you all the best.

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  • Can retainer fees be done in payments if an emergency situation arises?

    I am trying to get an attorney to take custody of my children (including one step daughter from her previous marriage, but I have her biological father helping me with it too). Affording the attorney retainers are hard because they're so expensive...

    John’s Answer

    Many "retainers" are really nothing more than advance fee payments. In other words, clients are asked to pay a lump sum advance -- a "retainer" -- against which the lawyer may bill his/her time. The purpose of the retainer is to provide the lawyer with some security that he/she will actually be paid for the work that is being done.

    Imagine going to get the tires changed on your car. Typically, the service is done, and then you pay. But suppose after the service is performed you realize you forgot your wallet? In some states, the garage has a right to maintain possession of your vehicle as security for their work until you actually pay them (at which point in time they must give back the vehicle). Lawyers don't have a car or other good to hold onto as security if they are not paid. For better or worse, if lawyers do not get paid, they cannot practice law. Retainers mitigate some of the risk of non-payment.

    I agree with the previous answer to our question: this particular issue is negotiable between you and your lawyer. An alternative solution may be to seek a small loan sufficient to cover the entire retainer, if at all possible.

    Good luck!

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