Exec, a State X corporation, designed a building for Smith, a citizen of State Y, six years ago. Part of that building collapsed last year, causing damages in excess of $80,000. Smith has filed an action against Exec in the U.S. District Court in State X, alleging that his damages resulted from the negligent design of the building. Exec filed an answer denying negligence and asserting as an affirmative defense that the statute of limitation for negligence is two years. At the time the building was being constructed, Jones, an attorney and member of Exec's board of directors, who occasionally handled legal matters for Exec, prepared and sent the following memorandum to the president of Exec: "I have been informed by Tom Withers, an architect who used to work for Exec, that the materials being used by the contractor. Builder Corp., in constructing the building is substandard." Smith filed a timely motion for the pre-trial production of the Jones memorandum. The motion was denied. Smith filed a timely motion for summary judgment, relying on an affidavit made by Withers which set forth facts consistent with Jones' memorandum. Exec also filed a motion for summary judgment, accompanied by an affidavit that the building had been constructed six years ago. Both motions were denied.

Exec's motion for a summary judgment was:

Question 7Select one:

a.

Improperly denied, because the building was constructed six years ago.

b.

Improperly denied, because Smith failed to file a responsive affidavit.

c.

Properly denied, because the accident occurred only recently.

d.

Properly denied, if E has the burden of proof with respect to its statute of limitation defense.