Preserve the record. Literally.

A trial was held, but after the verdict, a bankruptcy caused several years of inactivity before entry of final judgment in 2015. Unfortunately, in the meantime, a significant part of the reporter’s notes had been lost or destroyed. While Tex. R. App. 34.6 can require a new trial in such a situation if the loss occurs through no fault of the appealing party, the Fifth Court found it did not apply here. In Piotrowski v. Minns, the Texas Supreme Court noted that the applicable Government Code provision “authorizes reporters to cull stale notes from their records after three years when no party has requested otherwise,” whcih means that without a specific request from a litigant, “the litigant is not free from fault if the notes are destroyed as the statute authorizes. 873 S.W.2d 368, 371 (Tex. 1993). The Court found that Piotrowski was good law and controlled here, where no such request had been made in the relevant time period. Geeting v. Dyer, No. 05-16-00128-CV (Nov. 7, 2017) (mem. op.)

How much detail to grant a new trial? THIS much detail –

A new and important issue in Texas procedure has been the amount of detail required of a trial court in granting a motion for new trial. In the case of In re: BCH Development, the Dallas Court of Appeals reversed such an order, carefully laying out the framework for appellate review:

  1. The trial court’s reasons for a new trial must be both sufficiently specific and legally appropriate (satisfied here, where the court identified specific issues involving violation of limine orders, improper jury argument, and evidentiary sufficiency);
  2. Those reasons must be valid and correct. Here, (a) as to the limine order, the Fifth Court either found no violaton or a cure; (b) no incurably improper jury argument (and thus a waiver when there was not a contemporaneous objection); and (c) sufficient evidence on the issue of attorneys’ fees, noting that the amount awarded by the jury was “well within the range supported by” the testimony.

Accordingly, the Court conditionally granted the requested writ of mandamus. No. 05-16-01481-CV (Aug. 15, 2017).


Religious reference not reversible.

Abdul Khan had a dispute with a contractor about the design of a stone medallion for the foyer for his new home. The dispute went to trial and the following Q-and-A occurred during examination of a witness for the contractor:

Q. Okay. And did you have a conversation with them about whether or not you could duplicate one of those medallions?

A. Yes, and I repeated that — They — They repeated to me that this was only a design that they were interested in because they did not want cherubims and angels because — what I surmised by that was for religious readons and —

[Khan’s counsel] Objection; relevance.

THE COURT: Sustained.

Khan argued that this exchange was an attempt to appeal to religious prejudice by identifying him as a Muslin. The Fifth Court agreed that the comment was improper, as “[c]ourts in this state have long recognized that a person’s religious beliefs have no place in determining the merits of a dispute,” but found that “[t]his single reference to Khan’s religion was not extreme” as to amount to incurable error. Khan v. The Chai Road, Inc., No. 05-16-00346-CV (July 17, 2017) (mem. op.)

. . . a dream, a breath, a froth of fleeting summary judgment . . .

dandelionA famous Shakespeare poem laments: “What win I, if I gain the thing I seek?
A dream, a breath, a froth of fleeting joy. . . . ” These thoughts could also be the lament of the landlord / appellee in Analytical Technology Consultants v. Axis Capital, who obtained a summary judgment against a tenant in default on a lease. Unfortunately, while the tenant did not respond to the summary judgment motion, it pointed out in a motion for new trial that the landlord had failed to include a credit against the accelerated balance as required by the lease’s remedies provision. The landlord sought to preserve its judgment on appeal by pointing to the evidence it submitted in response to the motion for new trial, which it said included the relevant calculation, but the Fifth Court disagreed: ” An attachment to a motion for new trial is not evidence. To constitute evidence, the attachment must be introduced at the hearing on the motion for new trial. If there is no hearing, then the document never becomes evidence.” (citations omitted). No. 05-16-00281-CV (June 19, 2017) (mem. op.)

Stopping time: invoking lack of notice to preserve post-judgment relief


In In re: Douglas D. Halofitis, No. 05-16-01047-CV (Sept. 27, 2016) (mem. op.), the Fifth Court gives a helpful roadmap for parties who seek to challenge a judgment of which they were given late notice.  We know that trial courts usually lose plenary jurisdiction over a judgment within 30 days after the court signs the judgment, which is also the deadline for filing an appeal. But what if you don’t receive notice of the judgment?

Under Rule 306a, when a party does not receive notice or acquire actual knowledge of judgment within twenty days, the deadlines begin to run not from the signing of the judgment, but instead from the sooner of the date the party received notice or acquired actual knowledge of the judgment or 90 days after the judgment was signed. A few pointers to keep in mind:

  1. the 306a motion must be sworn and must establish the date of first notice or knowledge of the judgment and that this date was more than 20 days after the judgment was signed;
  2. the 306a motion, including any evidentiary supplements necessary to satisfy the procedural requirements of 306a(5), must be filed within the court’s plenary period as calculated from the date of first notice or knowledge of the judgment;
  3. the movant should seek an immediate evidentiary hearing on the 306a motion and obtain a finding of fact of the date of first notice or actual knowledge of the judgment;
  4. in no event will the periods begin to run more than 90 days after the judgment is signed, meaning that if you receive notice more than 90 days after the judgment is signed, your only avenue may be a restricted appeal or bill of review; and
  5. the 306a motion should be coupled with a post-judgment motion, e.g. motion for new trial, motion to reinstate, or motion to modify judgment. If you wait for a decision on your 306a motion, your post-judgment motion may end up being untimely even if your Rule 306a motion is successful because post-judgment motions must still be filed within 30 days of the date found to be the date of first notice or actual knowledge of the judgment.


Sometimes “Oops!” Is a Good Enough Excuse

A memorandum opinion setting aside a default judgment highlights one of the more forgiving standards for obtaining a new trial. FelCor/CSS Holdings sued Culinaire of Florida for failing to indemnify it in two personal injury suits. Culinaire received a courtesy copy of the lawsuit and put its insurer on notice. The insurer in turn hired defense counsel. But when the actual citation arrived, Culinaire’s CFO somehow forgot to forward it to the company’s insurance agent. Culinaire moved for a new trial under the familiar Craddock factors, but the trial court denied the motion. The Court of Appeals reversed and remanded, holding that losing paperwork is precisely the kind of “accident or mistake” that negates “conscious indifference” to the lawsuit.

Culinaire of Florida, Inc. v. FelCor/CSS Holdings, LP, No. 05-14-00832-CV

Not Really So Much Late, Per Se, as Unduly Delayed

One of the questions appellate lawyers get from time to time is “What’s our deadline to file for mandamus?” The answer is that there is no formal deadline under the rules, but if you wait too long you may end up waiving your right to mandamus. A short opinion from the Dallas Court of Appeals exemplifies the latter principle. On June 6, 2014, the county court at law granted a motion for new trial. On May 27, 2015, a mandamus petition was filed, seeking to require the trial judge to explain its reasons for setting aside the jury verdict and granting a new trial. With the new trial now scheduled for July 8, the Court of Appeals held that the unexplained delay of almost one year to challenge the new trial ruling was too long to justify mandamus relief.

In re Stembridge, No. 05-15-00672-CV

New Trial Following Default Judgment Is Also Not Mandamus-able

In February and again in March, the Dallas Court of Appeals held that appellate courts will not conduct merits-based review of orders granting a new trial following bench trials. In a very short opinion denying mandamus review, the Court has now extended that holding to orders granting new trial following entry of a default judgment. So unless the Texas Supreme Court weighs in, it appears that the only new trial orders subject to mandamus review under In re Columbia Medical Center will be those that follow jury trials.

In re Klair, No, 05-15-00462-CV

Trial Court Not Required to Specify Reasons for Denying New Trial

Banco Popular appealed from an agreed final judgment of garnishment for over $900,000 of its account holder’s money. The same day the court signed that agreed judgment, the bank moved for a new trial on grounds that it was not indebted to the account holder after all. The trial court denied the motion for new trial, and the Dallas Court of Appeals affirmed. The Court first held that Craddock factors did not apply because it was an appeal from an agreed judgment instead of a default. The Court also shut down a pair of creative arguments, holding that trial courts are not required to explain their reasons for denying a new trial, and that they are not required to hold an evidentiary hearing before entering an agreed judgment.

Banco Popular N. Am. v. Am. Fund US Invests. LP, No. 05-14-00368-CV

Motion for New Bench Trial Is Still Not Mandamus-able

Less than a month ago, the Court of Appeals held that a Motion for New Bench Trial Is Not Mandamus-able. Now the Court has reiterated that holding where a district judge granted a new new trial after the case had originally been tried to an assigned judge. The Court relied in part on Justice O’Neill’s dissent in In re Columbia Medical Center, which argued that in the situation of a short bench trial, the benefits of a prompt retrial outweigh the detriments of prolonging the case with interlocutory review.

If motions for new bench trial are becoming a thing, we’ll keep an eye on the Supreme Court to see whether it wants to weigh in.

In re Dixon, No. 05-15-00242