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176 Cards in this Set

  • Front
  • Back
Justice courts can issue writs of mandamus and injunctions.
False, no writs of mandamus.
District courts have residual power. This means that by constitutional mandate, the district courts have jurisdiction in all cases unless exclusive jurisdiction is conferred on some other court.
True
In Texas, two documents must be filed in accordance with a due order of pleadings: Motions to Quash and Pleas to the Jurisdiction.
False, special appearance and then a motion to transfer venue.
Constitutional county courts have authority to hear cases between $200.01 and $100,000.
False, $200.01-$10,000
There are no jury trials in justice courts.
False
A special appearance is filed by a defendant to challenge the subject matter jurisdiction of the court.
False, filed by D to challenge personal jurisdiction
To challenge improper service, defendant should file a plea to the jurisdiction.
False, plea to jurisdiction is to challenge subject matter jurisdiction
County courts-at-law are created by the Texas Constitution.
True
The Texas Rules of Civil Procedure contain rules specific to the justice courts.
True
Every statutory county court has the same jurisdiction as the constitutional county court in that county unless modified by 1) the statute that created the statutory county court, or 2) a statute that applies to all statutory county courts.
True
A district court has concurrent jurisdiction with a justice court for cases between $500.01 - $10,000.
False, $500.01 to unlimited.
There are three ways to attack a default judgment in the trial court.
True, Two are in a trial court – motion for new trial, and bill of review – and the other is in an appellate court, the restricted appeal.
Local court rules have a number of important functions, such as handling the court’s docket, pretrial matters, and handling motion calendar.
True
There is no difference between filing and serving documents.
False
There is no difference between state courts and federal courts.
False
The U.S. Constitution creates all the Article III courts.
True
Rule 21a applies to the service of all documents, other than the citation.
True
Defendant is served on Tuesday. For purposes of computing time, you begin counting on the next day.
True
To preserve a complaint for appeal, a party must make an objection or present some motion to the trial court and obtain a ruling.
True
Preserving error for appeal is an integral part of litigation.
True
In a motion for new trial, a party asks the trial court to reconsider and rectify trial error – the court’s ruling or the jury’s finding – by granting a new trial.
True
If you are going to be late with a pleading, you should file a motion for enlargement of time.
True
If a party files or serves a document late, the late-filed document is not effective. A. Extraordinary circumstances.
False
Defendant is served with process on Sunday. According to the rules, this service is valid.
True
An attorney may withdraw from a case at any time without notifying the court.
False
Under Texas practice, Rule 11 must be filed within 10 days of the parties’ agreement.
False, the filing requirement is satisfied so long as the agreement if filed before it is sought to be enforced (annotations—Padilla v. LaFrance)
Under Texas practice, an answer to a petition must be filed within 20 days of service.
True, a. In district and county courts, the defendant must file its answer by 10:00 am on the first Monday after the expiration of 20 days from the date the defendant was served with process. R. 99(c).
According to Rule 21a, you add three days to response time for any document that is received by mail.
True
To preserve a complaint for appeal, a party must make an objection or present some motion to the trial court and obtain a ruling.
True
In a motion for new trial, a party asks the trial court to reconsider and rectify trial error – the court’s ruling or the jury’s finding – by granting a new trial.
True
With some limited exceptions, an appeal can be prosecuted only from a final judgment.
True
The date of signing the judgment or final order disposing of the case begins the deadlines for filing post judgment motions and for perfecting an appeal.
True
A judgment becomes final and appealable when the trial court loses plenary power to change it.
True
Any post judgment motion - not matter what is called - will extend plenary power if it 1) seeks substantive change in the judgment and 2) is filed within the time limits for a new trial.
True
The date the court loses plenary power depends on the date the judgment was signed, whether one of the post judgment motions extending the court’s plenary power was filed, and if filed, whether the motion was overruled or granted. If no post trial motions are filed, the trial court loses plenary power and the judgment becomes final 30 days after it was signed.
True
List the plenary power extending motions.
New Trial, Bill of Review or Restricted Appeal.
When a party files a plenary-power-extending motion, its plenary power expires 76 days after the day the judgment was signed.
False, 105 days
When a party files a plenary-power-extending motion, the trial court’s plenary power over its judgment is extended until 30 days after the motion is overruled, either by written order or by operation of law, whichever occurs first.
False
Filing a plenary-power-extending motion extends the appellate timelines.
True
When a trial court grants a motion for new trial, the original judgment is set aside and the case is reinstated on the trial court’s docket. In that event, the trial court retains ongoing plenary power until it signs another final judgment.
True
A motion for new trial is not necessary to preserve most errors in a nonjury trial.
True
Defendant filed a timely motion for new trial. The court does not rule on it. The motion becomes overruled by operation of law 105 days from the day the judgment was entered.
True
A plea to the jurisdiction challenges the court’s personal jurisdiction over the defendant.
False
If you are serving a document on your opponent, you should adhere by the mail box rule in R. 5.
True
Your client was served with process yesterday. You compute the response time, and the 20th day is this coming Monday. Under the rules, the answer is not due until the following Monday. Time to file is Monday after expiration of 20 days is time to file answer.
True
Filing a plenary-power extending motion extends the appellate timelines.
True
If you are going to be late with a pleading, you should file a motion for enlargement of time.
True
If a party files or serves a document late, the late-filed document is not effective.
False
Defendant is served with process on Sunday. According to the rules, this service is valid.
False, Not on Sundays
An attorney may withdraw from a case at any time without notifying the court.
False
Under Texas practice, Rule 11 must be filed within 10 days of the parties’ agreement.
False
Under Texas practice, an answer to a petition must be filed within 20 days of service.
True
According to Rule 21a, you add three days to response time for any document that is received by mail.
True
Once a defendant is served with process and is before the court, all other documents filed with the court should contain a Whitney Certificate.
False, only for Service of Process
A motion to modify a judgment should be filed sixty days from the date judgment is signed.
False, 10 days
A motion for new trial is timely filed. Judge denies the motion two days after it was filed. Judge now has 75 days of plenary power over the judgment.
False, 30 days
The concurrent jurisdiction of a district court and a county court is from $500.01 to $100,000.
False
Among other things, pleadings define the lawsuit, set forth the parties’ allegations, inform the court and the opponent about the facts and legal theories.
True
Service of process is accomplished even when the petition is not attached to the citation.
Flase
Bob is suing Jane. He has not attempted service of any kind, but he believes it’s going to be hard to serve her. The best route for him is to effectuate substituted service.
False, due diligence not complete.
Texas defendants cannot waive formal service of process because it’s not allowed by the TRCP.
False
To get a default judgment, you must make sure the return of service has been sitting in the court file for at least seven days.
False
There is a rule of civil procedure that deals specifically with special appearance.
True 120a
Under Texas practice, if you are filing a special appearance, affidavits must be filed 15 days before the hearing.
False, 7 days 120a 3
A Restricted Appeal will be filed to attack a default judgment when the judgment was entered within the last 18 months.
False, RA must be filed within 6 months
A bill of review is filed in an appellate court.
False, Trial Court
A writ of mandamus is an original proceeding in a trial court.
True
No judgment is valid unless the defendant has been served with process, accepted or waived service, or entered an appearance in the case.
True
Defendant receives interrogatories by mail. He should add three days to the response time.
True
Findings of Facts and Conclusions of Law are generally requested at the end of a hearing before a judge or a jury.
True
A Special Appearance must be filed prior to any other pleading or waived.
True
I serve the Secretary of State on September 7th. He forwards the process on September 10th. For purpose of computing time, Defendant is served on September 10th.
False, starts counting on the 7th, day SOS got it.
According to the rule, in terms of computing response time, the last day of the event is not included.
True, R. 4 day of act is not included, last day included unless Sat., Sun, or legal holiday.
Defendant files a special appearance but fails to request a hearing and proceeds to trial. He has preserved error for appeal.
False
Judge denies a special appearance. The best way to appeal is by filing a writ of mandamus.
False, appeal on Interlocutory appeal
Two things must be alleged in a writ of mandamus: abuse of discretion and no adequate remedy by appeal.
True
Under R. 106, you can serve a defendant by substituted service without the need to obtain court permission so long as you filed an affidavit of diligent search.
True
Only constables can serve process in Texas.
False, Sheriff, etc...
Ordinarily, a party may not obtain immediate appellate review of trial court’s decision, as courts of appeals generally have appellate jurisdiction over final judgments.
True
Client learns that a default judgment was entered 8 months ago. The best way to attack the default judgment is by filing a bill of review.
False, 6 months
James Jordan, a resident of Travis County, was involved in a car accident in Bexar County with a truck owned by ABC Corporation. The accident resulted in serious personal injury and property damage to James’s car. Carlos Hernandez was driving the truck. Carlos is a resident of Maverick County. ABC Corporation, incorporated in Delaware, has its principal place of business in Dallas County. James wants to sue Carlos. Where is venue proper?
Bexar and Maverick
Hearings on motions to transfer venue are conducted in front of a jury.
False
Defendant wants to move to transfer venue, he should file a Special Appearance.
True
Venue selection presupposes that the parties to the lawsuit have choices and preferences about where their case will be tried.
True
Venue may be proper in many counties under general, mandatory, or permissive venue rules.
True
Under the rules, motions to transfer venue must be verified.
False
Before filing suit, the plaintiff must decide in which of the 254 Texas counties the lawsuit should be filed.
True
Plaintiff who resides in Ft. Bend County is injured in a car accident when the driver of the defendant’s truck crashes into his car. The trucking company, an Ohio corporation, has several auto part stores in Texas. The accident happened in Travis County, but the plaintiff alleges that venue is proper in Harris County because one of the defendant’s store is located in that county. Under the venue rules, Harris is a county of proper venue.
False
Mary Brown, a resident of Harris County, was involved in an automobile accident resulting in personal injuries. The accident occurred in Bexar County when Ralph, an 18-wheeler driver, a resident of Hidalgo County, and an employee of ABC Trucking Company crashed into Mary’s vehicle. ABC is a domestic corporation with its principal office in Maverick County. Mary is suing ABC Company. Where is venue proper?
Bexar and Maverick Counties
Peter, a resident of Nueces County, Texas, was attempting to cross a public street in Jim Wells County, Texas when he was struck by a car driven by David, a resident of Brooks County, Texas. Peter sustained serious injuries in the collision. The owner of the car was David’s employer, Express Co. (“Express”), a Texas Corporation, whose principal place of business is in Bexar County, Texas. Does Peter have a proper basis for filing suit in Nueces County, Texas?
No
Same as above. Assume Peter sues David and Express. David wants to file a motion to transfer venue. What is the timeline to do so in Texas?
45 days from the date of service of process
Same as above. David files a timely motion to transfer venue. He wants to set the motion for hearing. Under the rules, how many days notice must he give to Peter?
45 days
Same as above. Assume that David has set the matter for hearing with proper notice to Peter. Peter wants to respond. Under the rules, how much time does he have to do so?
7 days prior to the hearing
Defendant is served with process. He files a general denial. Six months later, he discovers that venue is improper and he wants to challenge it by filing a motion to transfer venue. Under the rules, can he do so?
No, waived, filed answer
Under the Civil Practice & Remedies Code, a denial of a motion to transfer venue based on the inconvenience of the parties may be appealed.
True
In a suit with multiple plaintiffs, each plaintiff must be able to establish proper venue.
True
An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading, or motion, except the special appearance.
True
Venue is determined by facts as they existed at the time the cause of action accrued.
True
A written consent of the parties to transfer the case to another county may be filed with the clerk of the court at any time.
True
All venue challenges shall be determined by the court with the aid of the jury.
False
The court shall determine the motion to transfer venue on the basis of the pleadings, any stipulations made by the parties, affidavits, and attachments as may be filed in accordance with the rules.
True
A defendant raises the question of proper venue by challenging the plaintiff’s choice through a motion to transfer venue.
True
If any claim in a suit is controlled by a mandatory venue provision, all properly joined claims arising from the same transaction or occurrence, or series of transaction or occurrences, are controlled by the same provision.
True
No act or omission constituting waiver by one defendant impairs the right of any other defendant to challenge venue.
True
In a suit in which two or more defendants are joined, any action or omission by one defendant in relation to venue, including a waiver of venue by one defendant, does not operate to impair or diminish the right of any other defendant to properly change venue.
True
A party may apply for a writ of mandamus with an appellate court to enforce the permissive venue provisions of Chapter 15.
False, Writ of Mandamus filed in Trial Court
Plaintiff is a resident of Travis County, Texas and the defendant is a resident of Bexar County, Texas. The plaintiff sues the defendant for personal injury in an accident that occurred in Bexar County. Suit is filed in Travis County. This is a proper venue.
False
Trey slipped, fell and injured himself while he was shopping at the Home Grocery Store ("Home") at its only location in Collin County. Trey's fall was caused by water on the floor which came from the ice machine. The machine was owned and maintained by Ice Products ("Ice"), whose principal place of business is in Parker County. Trey filed a suit for damages in district court in Dallas County, his county of residence, alleging that Home and Ice were jointly and severally negligent and that their negligence proximately caused his injuries. Trey’s choice of venue is proper.
False
Same as above. Ice files a motion to transfer venue and sets the matter for hearing. Trey wants to reply to this motion. What is the timeline to do so?
7 days before hearing
Parker, a resident of Nueces County, purchased a used water heater from Supply Corp. (“Supply”) in Harris County. Jones, a resident of Harris County, installed the water heater in Parker’s home. Two weeks later, Parker suffered serious injuries when the heater exploded and started a fire. Appliance, Inc. (“Appliance”), a company with offices only in the State of Maine, was the manufacturer of the water heater. Appliance markets and sells its water heaters only in the State of Maine. Parker files suit in Nueces County against Supply, Jones and Appliance to recover damages resulting from his injuries. This is a county of proper venue.
False
When there are two counties of mandatory venue, plaintiff’s choice of one does not preclude a transfer to the other. The defendant may move to transfer to another county of mandatory venue.
True
When there is a county of mandatory venue and a county of permissive venue, the suit should be brought in, and upon motion it must be transferred to the county of mandatory venue.
True
Assume a court grants or denies a transfer under §15.002(b), this ruling is ground for appeal or mandamus.
True
In a suit with multiple plaintiffs, each plaintiff must be able to establish proper venue.
True
Peter, a resident of Nueces County, Texas, was attempting to cross a public street in Jim Wells County, Texas when he was struck by a car driven by David, a resident of Brooks County, Texas. Peter sustained serious injuries in the collision. The owner of the car was David’s employer, Express Co. (“Express”), a Texas Corporation, whose principal place of business is in Bexar County, Texas. Peter brings a suit against Express. Peter decides to sue Express. Under the general venue rule, where is venue proper?
Behar and Jim Wells
Peter, a resident of Bexar County, Texas, stopped at a convenience store in Nueces County, Texas on his way to the beach. The store was owned and operated by Supplies, Inc., (Supplies), a Texas corporation with its headquarters and principal office in Travis County, Texas. While shopping in the store, Peter sustained personal injuries after being hit by a cart loaded with boxes. Daniel, an employee of Supplies, had lost control of the cart while pushing it. Daniel resides in Maverick County, Texas. Peter was taken to a local hospital for treatment of his injuries. Peter wants to sue Supplies and Daniel for the damages resulting from the injuries he sustained in the incident. Where is venue proper?
Nueces, Maverick, Travis
Both defendant and plaintiff can file a motion to transfer for the inconvenience of the parties.
True
Properties, Inc. (AProperties@) owns Apartments, located in Nueces County, Texas. Properties= principal office is in Dallas County, Texas. Sam is employed by Properties as manager of Apartments. Sam is a resident of San Patricio County. Betsy lives in Apartments. Betsy sustained serious injuries in a fire that consumed her unit in Apartments. The source of the fire was a broken electrical outlet. Betsy had asked Sam to replace the broken outlet weeks before the fire. The outlet had not been replaced prior to the fire. Betsy filed a lawsuit in Nueces County seeking damages against Properties and Sam, both of whom were served with a copy of the petition and citation three days after the lawsuit was filed. If Sam wants to object to being sued in Nueces County, what pleading must he file and when must he file?
A Special Appearance
Although a defendant can waive its own venue rights, it cannot waive the venue rights of a co-defendant.
True
Once venue has been challenged, and the plaintiff files a response, the defendant is not required to file a reply to the plaintiff’s response.
True
Once venue has been challenged, and the plaintiff files a response, the defendant is not required to file a reply to the plaintiff’s response.
True
The parties may engage in discovery for the motion to transfer venue and for the case-in-chief without waiving the issue of venue.
True
Mandatory venue is compulsory only if a defendant properly objects to the plaintiff’s choice of venue.
True
Which of the following are mandatory venue provisions?

a. land dispute
b. landlord-tenant
c. mandamus against state
d. injunction against execution of judgment
All of the above
The permissive venue provisions provide alternatives to the general venue rule.
True
Pleading plays a number of important functions: they set forth the parties’ allegations; define the suit; give notice of the facts and legal theories of the case; restrict the trial court in rendering a judgment; and, form the basis for appellate review.
True
A civil lawsuit is commenced in Texas by serving the defendant with process.
False, by filing petition with court clerk
The label “original petition” is the caption of the case.
True
Normally, the omission of a party in an amended petition indicates an intent to nonsuit that party.
True
General damages are those naturally and necessarily flowing from a wrongful act and would normally compensate for loss, damage, or injury that is presumed to have been foreseen or contemplated by the party as a consequence of its wrongful act.
True
The purpose of the prayer for relief is to tell the court what relief the party is seeking.
True
Demurrers are allowed in Texas practice.
False
The purpose of special exceptions is to inform the opposing party of defects in its pleadings so the party can cure them, if possible, by amendment.
True
Pleadings and motions are the same thing.
False
Special exceptions must be verified.
True
For next 7 questions, select from the following list the pleadings the party must file to make the stated the allegations:

a. Special Appearance
b. Special Exception
c. Mtn to Trsfer/ Chnge Venue
d. Plea to the Jurisdiction
e. Plea/Motion to Abate
a. Special Appearance
b. Special Exception
c. Mtn to Trsfer/ Chnge Venue
d. Plea to the Jurisdiction
e. Plea/Motion to Abate
The defendant, a nonresident, has never conducted business in Texas and Texas courts do not have jurisdiction over it or its property.
Special Appearance
The case should be tried in another county because of local prejudice.
Motion to Transfer
Another court has exclusive jurisdiction
Plea to the Jurisdiction
The pleadings do not state a cause of action because they do not include the element of injury.
Special Exception
Same dispute in another Texas court.
Motion to Abate
The court does not have jurisdiction over the subject matter of this suit.
Plea to the Jurisdiction
The plaintiff did not verify its petition.
Special Exception
The case should be tried in another county that is more convenient.
Motion to Transfer
The motion to abate must be verified.
True
The motion for special exception must be verified.
False
A motion to abate must be raised in a timely manner or it is waived.
True
Special exceptions must be in writing.
True
When drafting special exceptions, the defendant cannot challenge pleading defects by relying on facts outside the plaintiff’s petition.
True
At the hearing for special exceptions, evidence as well as arguments may be presented.
True
The party specially excepting must obtain a ruling or waive the exceptions.
True
Under the rules, it is acceptable for a court of law to make margin notations on the special exception either sustaining or overruling.
False
Subject matter jurisdiction is essential to determine the subject matter of the controversy.
True
Without subject matter jurisdiction, a court cannot render a valid judgment.
True
If the defendant's plea to the jurisdiction is valid, the plaintiff should admit it and do whatever is necessary to get the lawsuit into a court that has jurisdiction.
True
As a general rule, special exceptions should be filed by the defendant either with its answer or shortly thereafter and by the plaintiff shortly after the defendant files its answer. However, special exceptions may also be raised during trial.
True
All answers should contain a general denial.
True
A general denial puts all matters into issue that are pleaded by the plaintiff which the defendant is not required to deny under oath.
True
Verification is necessary to assert certain defenses when the issue is not apparent on the face of the plaintiff's pleadings.
True
A general denial includes affirmative defenses and permits the defendant to submit jury questions based on these defenses.
False
If a defendant wants to rely on an affirmative defense, it must specifically plead it.
True
An affirmative defense allows the defendant to avoid liability even if the allegations the plaintiff's petition are true.
True
Supplemental pleadings and amended pleadings are the same thing.
False
A motion to abate is waived if not presented to the court for ruling before a trial.
True
A motion to abate must be set for evidentiary hearing before the trial on the merits.
True
The hearing on a motion to abate is before a jury.
False
Once an amended pleading is filed, the earlier pleadings are no longer part of the proceedings.
True
The last amended pleading is called the "live" pleading. After amendment, statements in the earlier pleadings are no longer judicial admissions.
False
The amended pleading must comply with the rules of the original pleading; e.g. if the original pleading was verified, the amended pleading must also be verified.
True
As a general rule, trial amendments must be in writing and signed by the party or his attorney. However, in limited circumstances, an oral trial amendment is allowed if dictated into the record to the court reporter.
True
Accord and Satisfaction, Res Judicata, Release, and Contributory Negligence are affirmative defenses that must be verified.
False
Rule 63 states that pleadings may be amended within seven days of trial only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
True
If the judge has entered a pretrial order limiting the amendment period, the parties may agree on their own to change that time period.
False
If you want to argue that the petition has a number of defects, you should file a summary judgment.
False
A supplemental pleading is made in response to the last pleading of an adverse party.
False
An issue is tried by consent when 1) a party introduces evidence to support an unpleaded issue and 2) the other party does not object to the to the admission of that evidence and, in a jury trial, to a jury question on that issue.
True