Texas Civil Procedure

Prof. Gonzalez

Spring, 2005

Text: Texas Civil Procedure: Trial and Appellate Practice, 4th Ed. Dorsaneo, Crump, Carlson, Thornburg.

Grade: B+


1)      Texas Courts

a)      District Courts hear any type of case. County courts At Law have dollar amounts restrictions on subject matter jx.  For the most part DC and CCs are similar.  Process begins with a “petition.”  Then the petition/citation is served on the D. 

2)      Scheduling the trial

a)      Setting the Case for Trial in accordance with Local Rules

i)        On party’s motion,

ii)       on court’s own motion, or

iii)     by agreement of the parties.  TRCP 245.  CN: this rule contemplates a situation where there’s been some activity, pretrial discovery etc., and one of the parties moves to set for trial.

(1)   Governed by Local Rules.  CN:  In Lubbock, at the beginning of the case, the atty’s get together to work out a scheduling order and if they can’t then the judge will send one out.  Once this is set, judges try to hold you to it.  But local rules will tell you what you have to do to “announce ready for trial.”  Some courts have a formal docket call, where you have to actually attend and announce ready or not ready.  Some courts don’t have a formal docket call, and you just have to call into the court coordinator, and announce ready.  Getting trial dates through Scheduling Orders is Preferable

iv)     45 days notice of trial setting.  “Reasonable notice not less than 45 days to the parties”

(1)   6 days notice of trial setting violated TRCP 245.  Hardin v. Hardin, 932 SW 2d 566.

(2)   Announcement at docket calls.

v)      Trial Settings

(1)   Methods of Setting for Trial

b)      Consequences of Failure to Set Case for Trial. 

i)        Dismissal for want of prosecution – 3 types. TRCP 165a.

(1)   Failure to appear at trial or hearing

(2)   Civil jury case not brought to trial within 18 months

(3)   Inherent authority of the court–P doesn’t prosecute its case with diligence.

(a)    NOTE:  If dismissed, it is without prejudice because it hasn’t been dismissed on the merits.  So you can bring the case again, as long as the Sol hasn’t run.

ii)       Dismissal without prejudice Procedure (DWOP) TRCP 165a

(1)   Notice of the court’s intention to dismiss which states grounds(s) for dismissal and the date, time and place of dismissal hearing;

(2)   Dismissal Hearing. 

(3)   Case is dismissed unless “good cause” is shown.

(4)   Notice of dismissal sent by clerk to atty of record. CN: atty is formally notified of the dismissal.  What happens when a case is DFWP? File a motion to reinstate.

(5)   Verified motion to Reinstate TRCP 165a(3). “verify means” sworn.

(a)    File within 30 days after order of dismissal is signed

(b)   Movant needs to show that the failure of the party or his atty was due to an accident or mistake and not the result of conscious indifference.  TRCP 165a(3).  What if it was due to negligence?  You still get to file a motion to reinstate.  “Conscious indifference means more than mere negligence.”

(c)    NOTE:  You need not use the motion to reinstate, you can appeal it immediately.

(d)   Hearing

(e)    Decision

(f)     Direct Appeal

iii)     Villarreal, p. 6

(1)   The dismissal was improper because the notice of dismissal did not notify Villarreal that the case could be dismissed for failure to diligently prosecute the case.

(2)   LESSON: Villarreal got lucky.  If your case is on a dismissal docket, be prepared to show that you’ve diligently prosecuted your case.

iv)    Smith v. Babcock

(1)   Atty didn’t show up to trial in Travis County because he had trial setting in Freestone County and he thought the trial judge would grant his continuance.

(2)   Case is dismissed.

(3)   Motion to reinstate granted because Smith’s atty “reasonably explained” his failure to appear for trial.

(4)   Lesson:  Resolve conflicting engagements as soon in advance as possible.

v)      Failure to send notice. Kenley

(1)   Atty of record didn’t show up at dismissal hearing because the clerk didn’t send the property notice

(2)   Motion to reinstate granted because atty demonstrated that he had no notice of dismissal hearing.  The lack of notice was a good reason not to show up at the hearing. Lesson:  An atty can’t be expected to attend a dismissal hearing if he isn’t given the proper notice.

vi)    Alexander v. Lynda Boutique

(1)   Wrong or Right.  will dismiss for want of prosecution.  Boutique doesn’t show up.  Court doesn’t hold a separate hearing, just dismisses the case. 

(2)   Why didn’t the party show up for the dismissal hearing or filing a motion to reinstate?

(a)    1/18 notice of hearing

(b)   2/15 – young associate, atty in charge, was fired.  So even if he did get this notice of hearing, there’s little interaction between the person taking over his case.  Had the new atty known about this, he could have filed a motion to reinstate.  He says he didn’t find out about it until 6/5.

(c)    Did the Clerk actually send these notices?  it’s not clear from the record.

(d)   Had they filed a motion to reinstate, they probably would have succeeded. but they didn’t find out until after the deadline.

(3)   Court distinguishes the Villarreal.  Here they said the notice was satisfactory.  165a(1).

(4)   Held, If you get a notice to show up at a certain time, and don’t show up, the court can dismiss the case.  The court doesn’t have to conduct a separate dismissal hearing.  There’s not a DP concern because you can file a motion to reinstate.  What can Boutique’s attys do now?  Direct appeal? no, because the SoL has run.  Here, the atty couldn’t show that there was . .

c)      Continuances, RULE 251-254

i)        Reasons to ask for a continuance of the trial setting:

(1)   Conflicting trial settings

(2)   Withdraw of Counsel

(3)   Missing Witnesses TRCP 252 (want of testimony).  If the witness is outside the subpoena power of the court.  How to show due diligence?  Subpoena all witnesses within the subpoena range: 150 miles of court (TRCP 176).  Then you don’t have to worry about deposing them.  Also if there’s someone within the range, but you know that they may leave the area, or that they’re ill, and you don’t depose them, then you don’t have a good argument with the court in showing due diligence.

(4)   Absent of Counsel. TRCP 253.  Absence of counsel is not good cause, unless the judge decides.

(5)   Legislative Continuance. TRCP 254.

ii)       Technical requirements

(1)   Supported by affidavit – TRCP 251

(2)   Good Cause TRCP 251

(3)   Notice to other side

(4)   Oates.  This case illustrates how failure to comply with technical requirements can be fatal.  Moreover, the continuance is within the discretion of the trial judge.

(5)   Once you “announce ready”, don’t expect to get a continuance. Reyes.  Atty had conflicting trial settings; he didn’t get the conflict resolved until after he announced to the court that he was ready to proceed.  At that point trying to get a continuance granted will be very difficult.

(6)   Withdrawal of Counsel.  p. Villegas, the atty moves to withdraw. the judge grants the motion to withdraw but then denies the clients motion for continuance.  Held, this was an abuse of discretion.  If the judge is going to grant the motion to withdraw it should allow the continuance.  If he wanted to proceed with his docket, he should have denied the motion to withdraw. 

(7)   What if the client fires the atty?  Movant has to show that he was not represented through no fault of his own.

(a)    Lesson:  If a lawyer wants to fire the client and the judge allows this 2 days before trial the client is entitled to a continuance because he needs time to find a new lawyer – assuming the client is not negligent in causing the withdrawal.

iii)     Continuance for want of Testimony – Missing Witness, p. 25 

(1)   How to get someone’s testimony? 

(a)    get a subpoena (backed by the contempt power of the court), telling the person to appear at an give testimony.  the subpoena range is within 150 miles of the court.  TRCP 176.  Outside the subpoena range, then you need to depose the witness. Also,  someone is in your subpoena range who may move out of it; or someone who is in poor health, then you want to depose them.

(2)   Materiality of testimony.  Burke, p. 25

(a)    TRCP 252-Affidavit that testimony is material

(b)   proof of due diligence to procure testimony

(c)    show what witness is expected to prove

(d)   Continuance sought not for delay but for justice

(e)    Lessons: Get your trial subpoenas done well in advance of trial

(i)      Depose people who don’t reside or can’t be served within 150 miles of the courthouse

(ii)    Depose people who are in poor health and may not make it to trial as well as people who may leave the subpoena area.

iv)     Missing Party.  As time of trial nears, atty’s need to be able to get into immediate contact with their client.

(1)   Ray– Once the atty announces “ready” for trail, the atty and the client are expected to be ready to proceed to trial at a moment’s notice. A continuance will not necessarily be granted . . .just because the client can’t be located.

v)      Legislative   TRCP 254

d)      Trial Subpoenas TRCP 176

e)      Obtaining a Jury Trial

i)        Right to a Jury Trial found in two sections of the constitution. Art. I, §15; Art v, §10.  What is the analysis in Texas for determining whether you have a right to a jury trial?  Decide whether it is a “cause” under the Judiciary Jury Article.  In a 7th Amdt analysis, you go back to the causes of action at the time the constitution was adopted.

(1)   Bill of Rights Jury Article:  In civil cases, a party has a right to a jury trial of any action that is the same or analogous to those actions that could have been submitted to a jury in 1876, the year the Texas Constitution was adopted.  This is analogous to the 7th amdt.

(2)   Judiciary Jury Article

(a)    The right to a jury trial of all “causes” in the district courts.

(b)   A “Cause” is a “suit, litigations, or action.”  It also means any legal process

(3)   The right to trial by Jury in Texas

(a)    Equity cases in Texas (in federal court only  legal cases get juries)

(i)      Equitable claims include restitution, injunction, reformation, rescissions, front pay.

(ii)    Jury determines only the ultimate issues of fact, not the propriety of equitable relief.

(iii)   What’s the difference between the two?

1.      EX: Company asserts claim for restitution against corporate insider alleged to have embezzled corporate funds.  “restitution” includes not only what you took, but everything you gained by the taken money; so you can’t benefit from your own wrongdoing. 

a.      Judge’s determination: whether you’re entitled to restitution;

b.      Jury’s determination: whether the money was actually taken, etc., i.e., All the factual issues.  This is an easy case, but an injunction may be more difficult.

(4)   State v. Creditor Bureau of Laredo, p. 33

(a)    Whether you have a right to trial by jury in this suit for civil penalties under the DTPA? yes.

(b)   Bill of Rights Jury Article Art. I, § 15: “The right to a trial by jury shall remain inviolate (except for the commitment of the mentally ill).”

(i)      This applies to cases where the right to a jury would have been proper at common law.  Because suits for civil penalties were actions for debts at common law, and actions for debts were triable by jury, it applies here; it was a remedy at law.

(c)    Judiciary Jury ArticleArt V, §10: “In the trial of all causes, P or D shall have the right to a jury trial, but only upon petition to the court, and a jury fee be paid.”

(i)      added to include causes in equity.  thus anything that is a “cause”.

(5)   Obtaining a Jury Trial ... Jury Fee, Demand, and waiver, p. 41, TRCP 216-220

(a)    Jury Fee

(b)   Jury Demand.  You don’t get a jury unless you ask for one

(i)      To make a proper request for a jury trial a party must do two things at least 30 days before the date the trial is set.

1.      Prepare a written request for a jury trial and file the request with the clerk

2.      Pay the jury fee to the clerk

a.       $30 in district court and $22 in county court at law.  Govt Code §51.064(a).

3.      Even though you have up until 30 days before trial, usually you don’t wait that long and you can just insert the demand into the petition or the pleading.

4.      Can be included in plaintiff’s petition, defendant’s answer, or filed as a separate document.

5.      Make jury demand early in case to avoid “timeliness” problems.

(ii)    30 days in advance of trial setting – presumed reasonable

(iii)   Less than 30 days no presumption.

(iv)  Jury Requests made less than 30 days in advance of trial should contain the following:

1.      Jury request

2.      Verified Motion to strike non-jury Setting

a.       A jury is available

b.      a jury trial won’t inconvenience trial court’s docket

c.       case involves disputed facts

d.      Texas constitution guarantees jury trial

e.       reasons why request was not made earlier.

(v)    Opposing a request for a jury trial

1.      Motion to strike the jury demand

a.       No right to jury trial in this case

b.      If request is made 30 days in advance, opposing party must rebut the presumption of timeliness by showing that a jury trial will (1) injure the party, 2) disrupt the court’s docket; or 3) impede the ordinary handling of the court’s business.

c.       If request is made less than 30 days in advance, opposing party should state that request was made too late and show above elements.  So the presumption can be rebutted.

d.      Trial court has discretion.

(c)    Waiver of a Jury trial

(i)      Failure to demand a jury trial and pay the jury fee required by TRCP 216.

(ii)    If the party making the demand does not appear at trial. TRCP 220.

(iii)   The party relying on the jury demand of another who fails to appear at trial.

(iv)  Failure to object when the trial court begins a non-jury trial.

(v)    Contractual Jury Waivers are enforceable.

(d)   Helsell v Dehoyos, p. 42

(i)      A request for a jury trial must be filed a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than 30 days in advance.  TRCP 216.

(ii)    A request in advance of the 30 day deadline is presumed to have been made a reasonable time before trial.

(iii)   The adverse party may rebut the presumption by showing that the granting of a jury trial would operate to (1) injure the adverse party, (2) disrupt the court’s docket, or (3) impede the ordinary handling of the court’s business.

(iv)  Here, H requested the jury on August 15.  The court scheduled the case for Sept 8.  the Court denied the request as untimely, then reset for Oct 13Held, the untimely demand became time when the trial court reset the case for Oct 13.

(v)    CN:  If the case is reset, the final trial date is the date that controls the 30 deadline.  Thus, when the case is rest for trial, an untimely request can become timely.

(e)    Six Flags Over Texas v. Parker, p. 43

(i)      In a bench trial, the court found in favor of P.  D claims the judge abused its discretion in deny its request for a jury made 20 days before trial.  D made its request on July 16, when trial was set for Aug 3.

(ii)    Whether a D receives a jury trial after a non-jury docket trial certification is a matter within the discretion of the trial judge.

(iii)   First, this case was pending for 2 years.  Second, Six Flags failed to show any evidence that a jury was available at the time of trial.

(iv)  CN:  Jury demand 30 days in advance of trial setting will not always be sufficient.  Presumption was rebutted here.  Case had been on file for 2 years.

(6)   CN: p. 47 questions.

(a)    a. “You represent a relatively large business, which the govt has charged with water pollution and sued for civil penalties.”  Bench or jury?  What county are you in?  D would probably want to go with a bench trial.

(b)   b. “embalming”  what’s the cause of action? bench or jury. probably jury.

(c)    c. “products liability.” jury.  damages are high. 

f)        The Motion in Limine and other Motions on the Eve of Trial, p. 47

i)        A. Nature and use of the Motion in Limine

(1)   Limine means “On or at the threshold.”  Made a ruled on before voir dire. Purpose is to prevent potentially prejudicial information from getting in front of a jury before a ruling on admissibility can be obtained.  What are the grounds for a motion in limine?

(2)   CN: sometimes parts of your case are damaging to your case.  The other side will try to get it from the witness; you can object at trial, but then you would have to argue the evidential ruling in front of the jury; –the question is still out there in the jury’s mind and stunk up the jury box.  One way to avoid this is to file a motion in limine.  This is good because before the other side can ask the question, it must be ruled on outside the jury’s presence.  This serves the purpose of preventing the question from even getting across to the jury.  These should be handled before voir dire begins. What are the grounds?  irrelevance; prejudice.

(3)   Motion

(a)    Evidence that is anticipated to be introduced

(b)   Explain why the evidence in inadmissible

(4)   Hearing before Voir Dire

ii)       Trial Court Ruling – grant or deny

(1)   The trial court’s ruling on a motion in limine is a preliminary ruling.

(2)   Motion in limine is granted:  Opposing counsel must approach the bench and get a ruling outside the jury’s presence before the matter or evidence can be brought before the jury.

(3)   Motion in limine denied:  opposing party can introduce the evidence without the court’s permission.

iii)     Preservation of error

(1)   Object during trial

(2)   offer proof (more later)

(a)    oral testimony: tell the judge what the witness would testify to.  Outside the presence of the jury, put the witness on the stand, to get it on the record.

(3)   Denial is not reviewable absent a ruling at trial.  Acord v GM, p. 49

(a)    Wife is killed in an auto accident.  On the eve of trial, Acord made a motion in limine for the evidence that the wife refused the blood transfusion because of religious beliefs.  Trial judge denies the motion.  If denied you may want to bring the evidence up yourself to diffuse the impact; but only if you think the judge won’t change his mind during trial.  But GM never brought it up.  Then P tries to bring it up on appeal.  Held, it’s not reversible error, it is non-reviewable, because its only a preliminary ruling.  To preserve error Acord would have wait until GM’s atty’s tried to introduce this, object, and then get a ruling from the judge, then bring it up on appeal.

(4)   Granting is not error absent ruling at trialTempo Tamers v. Crow

(a)    P was leasing a building from D and the D wouldn’t allow them to put a sign up in the parking lot; they sued for constructive eviction.  D makes a motion in limine, to keep out D’s injunction to leave the sign alone. Trial Court grants the motion.  P knows that to get this information in, it will have to approach the bench.  P didn’t bother to try to get the evidence in, but then P tried to appeal it.  Did P preserve error? no.  P would have to have actually tried to offer the evidence, approaching the bench, etc.  If you just rely on the grant of the motion, this will not preserve any error in the appellate court.

iv)     Violations of Motion in Limine

(1)   Possible Sanctions

(a)    Contempt

(b)   fine or strike pleadings

(c)    instruct jury to disregard evidence or statement

(d)   Judge will admonish you in front of the jury. 

(e)    Judge may grant a mistrial.

3)      Selection of Jury Panel, p. 69

a)      3 general stages of the general jury panel

i)        Selection of the jury panel

ii)       Jurors from the general jury panel are assigned to the specific case

iii)     Jurors go through voir dire – the final process of selecting the jury members and alternative to a particular case.

b)      General jury panel stage:

i)        Sources of Potential jurors

(1)   Voter registration lists from county registrar

(2)   People who hold a valid Tx DL from Texas DPS, except felons, non-citizens and person residing outside the county.

(3)   SOS combines the lists and sends final list of eligible jurors on or before December 31.

c)      Jury Wheel System.  Old fashion drawing of names from a wheel.

d)      Mechanical or Electronic System.  Jurors can also be selected by a mechanical means.  Computer randomly draws names

e)      Jury lists–

f)        Summoning Jurors. 

g)      Empanelling the Jury. 

i)        Jurors report to the court for jury service.  Judge in charge of the jury panel determines whether each person is qualified and not taking an exemptions.  Persons can claim an exemption before reporting to service by filing a signed statement with the clerk at any time before the date upon which they are summoned to appear.

ii)       Qualifications, [not on exam]  p. 71.  Exemptions for people who otherwise qualified. Know that convicted felons cannot serve.  Understand that an exemption gives the prospective juror the opportunity to elect not to serve by exercising a statutory exemption.

h)      Assignment for Service for a particular case, p. 73

i)        Interchangeable Jury Panels.  In counties which have 3 or more courts, people report to jury duty; once qualified, they can serve on a jury panel in any court in that county.  Jurors are assigned from the top of the panel as needed.  TRCP 223.  At least 32 prospective jurors to a district court or 18 to a count court.  You want at least 32 because you will have some who are struck for cause, and some peremptorily. 

ii)       other counties

(1)   Jurors are summoned to a particular court

(2)   Qualifications process

(3)   Clerk draws at least 24 names for a district court or 12 for the county court.

i)        Reshuffling.  TRCP 223.

i)        Questionnaire begins voir dire.  Carr v. Smith.

(1)   Preservation of error.  TRAP 33.1(a)(1) object and obtain a ruling by the court.  this was satisfied.

(2)   When does Voir Dire Begin? TRCP 223 “[T]he trial judge ... upon the demand prior to voir dire examination by any party for atty in the case, shall cause the names of all members of such assigned jury panel to be shuffled.”  Does it begin with verbal questions or submitting written questionnaires?  Held, the distinction between written and oral questioning is meaningless, especially where each party has already had the opportunity to view the panel.  After the venire panel has been sworn and once substantive inquiry begins and responses have been observed or made available to the parties or their counsel, whether verbally or in writing, voir dire has begun.  Therefore the trial court erred in granting the untimely demand for shuffle.

(3)   Reversible error.  What is the appropriate harm analysis?  Relaxed harmless error analysis.  They look at the whole record to determining whether it was hotly contested.  The complaining party must show:

(i)      the trial was materially unfair, without having to show prejudice or harm.

(ii)    the randomness of the jury has suffered.  This they did by showing that jurors originally assigned high numbers were moved into the strike zone.  Therefore, the trial was materially unfair, and harm need not be shown.

(4)   CN:  After voir dire begins, you can’t reshuffle.  Here, voir dire began the moment they passed out the questionnaires and received the responses.  these were 63 specifically tailored questions addressing the underlying claim. Held, voir dire begins when the jury is sworn. Allowing a reshuffle destroyed the randomness.  The court was really focusing on how specific the questions were.

(5)   You want to do your shuffle before you elicit any kind of confidential information through a questionnaire.  What is the public policy for the holding? It’s not fair because the parties will base their shuffle on the questionnaire, not on randomness. You only get one shuffle.

(6)   EX:  a jury shuffle happens, they come in, they’re seated: that’s when the voir dire starts.

j)        Voir Dire examination, p. 83, --TRCP 226, 226a, 230

i)        Purpose and scope of Examination, p. 83

(1)   many cases are won or lost on voir dire.  Jurors are seated in the order in which their names appear on the jury list.  Judge swears in jurors and gives [226a] instructions. Then he turns it over to the lawyers to ask questions.

(2)   Party with burden of proof begins voir dire

(3)   Then Opposing party gets the chance to voir dire.

ii)       Purpose of voir dire

(1)   Challenge for cause

(a)    Statutory disqualification on grounds

(b)   bias or prejudice

(2)   Peremptory challenges

(a)    Obtain information through voir dire and juror questionnaires

(3)   Gain trust and confidence of the jury.  Make favorable impression; be professional.

(4)   Introduce your case to the jurors.  be careful as to what you say you’ll be able to prove.

iii)     Scope of Voir Dire

(1)   Litigants have broad latitude to voir dire in Texas state courts.  In federal court, the judges control the voir dire questioning.

(2)   Scope depends on what is material and relevant to a particular case

(3)   Trial judge has a great deal of discretion in controlling voir dire.

iv)     Prohibited Questions and Remarks. 

(1)   juror’s conviction of disqualifying offense. Rule 230.

(2)   Inadmissible information

(3)   Personal lives of parties or their attys

(4)   fostering sympathy or prejudice against a particular party

(5)   Commitment questions

(a)    questions that ask the jurors how they will decide the case are improper.

(6)   Babcock v. Northwest Memorial Hospital

(a)    In preparing for a med mal case, the judge refused to allow the Ps to question the jury panel about the “lawsuit crisis.”

(b)   The media had be publicizing lots of info about med mal law suits.  Trial court says you can’t question on this.  Held, he abused his discretion.  A litigant has broad discretion to question potential jurors especially on issue about something that would cause bias or prejudice.  The media coverage of the lawsuit crisis possibly created in the mind of the jurors the potential for bias or prejudice.

(c)    Preserving error.  The P objected to a motion in limine; when they discovered a juror who confessed to being prejudice; at the end they moved for mistrial. 

(d)   The refusal

v)      Commitment questions.  Distinction between qualifying jurors to hear the evidence and improper commitment questions

(1)   EX: DWI case–you either have the blood alcohol test or impairment test.  But the impairment test requires relying on the officer’s testimony.  If a juror says that he doesn’t want to rely on the officer’s testimony, then you don’t want him on your jury.  So ask them if they can follow the law, which is sort of a commitment question, but it’s proper. no breath or blood result

(2)   This type of commitment question is permissible because the person would be disqualified for not being able to follow the legal standard.

(3)   Hypotheticals are permissible as long as the law is not misstated.

vi)     Is there a distinction between qualifying juror to hear the evidence and committing jurors to particular findings based on the anticipated evidence?

vii)   EX:  P parents sue an auto manufacturer after their 4 year old daughter was killed when a car’s airbag deployed in a low impact collision.  The manufacturer argues that, as the victim was not wearing a seatbelt at the time of the collusion, she was too close to the airbag when it deployed, causing her death.  The trial judge allows the parents to ask the potential jurors . . . .Vasquez v. Hyundai Motor, 119 SW3d 848,

(1)   Mr Cedillio:  Your honor, I need to know whether or not they would be predisposed regardless of the evidence to – Their preconceived notion is that if there is no seat belt in use, no matter what the evidence is, that . . .

(2)   Court of Appeals:  Clear distinction between questions that seek to determine the existence of unfair bias and those that seek to determine how juror will treat certain evidence.

(3)   The line of questioning focuses on the ability of the jurors to be fair.  The Vasquezes were entitled to determine which of the potential jurors could not be fair to them based solely on the fact that Amber was not wearing a seat belt when she was killed.

4)      Voir Dire Challenges, TRCP 227-233

a)      Intro:  p. 170-171 text.

b)      Challenges for cause

i)        Statutory disqualifications

(1)   The panel member is a witness in the case

(2)   the panel member has an interest in the case

(3)   the panel member is related to a party within the 3rd degree.

(4)   The panel member has served as a juror in an earlier trial of the same case.

(5)   Bias or prejudice. What does these terms mean? 

(a)    Bias” is an inclination toward one side of an issue over the other.  For bias to disqualify it the must lead to a natural inference that the panelists will not act with impartiality.

(b)   Prejudice” is prejudgment, already have judged the case.

(6)   Other grounds TRCP 228

ii)       Gant v. Dumas Glass and Mirror, p. 94

(1)   Plaintiff’s atty tried to disqualify the jurors because of the mental anguish issue.  Counsel: Could you award any mental anguish damages? A: It would be hard.  But when asked to defined “mental anguish” the atty didn’t have a good grasp of the legal definition.  He was trying to get them to say that they could not be fair.  They kept saying that “life is tough” and you “just get over it”.  You need to try to clench it and get them to commit.

iii)     Challenge ‘for Cause” Procedure.

(1)   Orally challenge the panelist for cause

(2)   The atty should make challenge for cause as soon as grounds appear.  TRCP 227, 229.  Many times its’ better to formally move to disqualify jurors at the bench outside the presence of other jurors after voir dire of panel is over.  Figure out how your judge handles this situation.

iv)     Preserving Error for denial of for cause challenge, p. 101

(1)   Hallett v. Houston Medical Center, p. 103 See O’Connor’s, p. 525

(a)    To preserving error when a litigant is compelled to accept an objectionable juror who has been challenged for cause, it is incumbent upon P, prior to exercising her peremptory challenges, to advise the court of two things: (1) that she would exhaust her peremptory challenges; and (2) that after exercising her peremptory challenges, specify objectionable jurors would remain on the jury list.

(b)   During voir dire, challenge the panelist for cause and get adverse ruling. 

(c)    Before giving [the peremptory] strikes to clerk,

(i)      inform the court that due to court’s refusal to strike the for cause panelist, the party will exercise its peremptory challenge before striking an objectionable panelist on the list.

(ii)    Identify the objectionable panelist which will remain on the jury list once the party uses its last peremptory strike.

(iii)   Ask the trial court to compensate for the erroneous ruling on the for cause challenge by granting the party an additional peremptory strike

(d)   After court overrules this request, give clerk the list of peremptory strikes.

c)      Peremptory Challenges, p. 105—TRCP 232, 233

i)        Challenge to a panelist without assigning any reasons, reject panelist who don’t appear to be favorable to your position.

ii)       Multiparty cases. 233

(1)   Motion to equalize the peremptory strikes and hearing

(a)    Made after voir dire and before the parties exercise their peremptory strikes

(2)   If no “antagonism” between parties on the same “side” of the case, each side gets the same number of strikes

(a)    P – 6 strikes

(b)   D1 and D2 – 6 strikes

(3)   If “antagonism” trial judge can allocate the number of strikes to give each side so that neither side as an unfair advantage.

(4)   Antagonism”--Must exist between litigants on the same side viz a viz each other; must exist on an issue of fact that will be submitted to the jury.

(i)      Two Ds are antagonistic when they contend the other is solely responsible for the P’s injuries.  Tamburello p. 106.

(b)   “Antagonism” is a question of law

(c)    In determining whether it exists, trial judge must consider pleadings, information disclosed through discovery, other information brought to the attention of the trial judge, and information and representations made during the voir dire of the jury panel.  See Garcia v. Central Power and Light Co case (affirmative exculpatory representation made by Ds during voir dire overcame any antagonism evidence made by the pleadings and established as a matter of law – that no antagonism existed).

(5)   Equalization. Equalization does not mean mathematical equality.  Proportioning the strikes may be accomplished by increasing the number allowed a sole party on one side, by decreasing the number allotted the multiple parties on the other side, or by both.

(i)      Maldonoldo : P—4; D1-4; D2–4;  Ds allowed to collaborate.  Equalization held to be proper.

(ii)    Patterson Dental:  P--6; D1—6; D2 – 6, D3 –6 D4 –6.  Equalization was error. 4/1 disparity of strikes was erroneous because Ds’ 24 strikes total were allowed to effectively select the jury which would try their case.

(b)   Factors to consider in determining how to allocate strikes---.....circumstances

(6)   Preserving error:  object to the court’s allocation of strikes, Patterson Dental

(7)   Reversible error:  trial court decision on antagonism and or allocation of strikes.  “Materially unfair” standard met when trial is : ”hotly contested” and the evidence is sharply conflicting.

(a)    Patterson Dental; Lorusson; Central Power and Light.  In Central Power the court based it’s determination of “hotly contested” on the fact that there were many witnesses 18, expert witnesses on both sides; thus it was a hotly contested case and therefore materially unfair.

iii)     Batson/Edmunson Challenges

(1)   In Texas civil cases, litigants cannot exercises peremptory strikes to exclude panelists solely on the basis of their race or ethnicityPowers v. Palacio.  This extends to gender.  How to show this? If every one of your strikes go to blacks, or females.

(2)   Procedure for Batson

(a)    Make the objection before the court impanels the jury

(b)   Make a record of the objection

(i)      Juror information, racial composition of panel, and identify panelists who were excluded by race

(c)    Step 1 Prima facie case

(d)   Step 2 – Responses  -- legitimate non-discriminatory reason.  This is not hard.

(e)    Step 3 – Pretext

(f)     Party asserting Batson challenge has the burden to prove strike was discriminatory

(g)    Be wary of what’s in your voir dire notes.  Don’t write “black” “Hispanic” etc. because your notes might come to light at some point.

(h)    Remedies: Reinstatement of dismissed juror or dismissal of panel

d)      CN:  The goal in voir dire is to find jurors most favorable to your side.  You can ask them questions, give them a written questionnaire.  But also you’ll ask questions regarding their biases.  There are different techniques: you can engage a venireman to help you explain the favorable law.  Educate jurors on favorable law, limit the effect of unfavorable law; personalize the client, call him by first name, put hand on his shoulder.  In the GM case, judge denied his motion in limine, so he brought it up during Voir Dire that P’s wife refused blood infusion.  If you know something is going to come up in trial, then you may want to introduce it in voir dire.  Use a technique called looping,

i)        EX:  “Why wouldn’t a woman who had just been raped report it right away?” answer:  “Because she was ashamed.”  You say “correct, maybe the woman was ashamed; is there anyone else on the panel [who thinks] that a woman wouldn’t report it right away because she was ashamed, “  Now I’ve repeated it three times so they will remember.  If you get a negative response then you don’t reinforce.  just thank him and move on.

e)      There are different kinds of jurors:  leaders , followers,...you want to figure out who will drive the jury decision; who are the good negotiators?, then you want to know if they’re good for your case. for followers it doesn’t matter all that much, because they’ll just follow the leaders.

5)      Commencement and Order of the Trial, p. 175

a)      The order of proceedings in a jury trial

i)        The events in a Trial

(1)   (Judges preliminary instruction to venire panel; void dire; challenges for cause.)

(2)   Empanelling the Jury

(a)    TRCP 236.  Oath to jury

(b)   TRCP 226a. Admonitory instruction.

(3)   Opening Statements

(a)    Party with burden goes first.  TRCP 265, 266. The party with the burden of proof on the whole case goes first, typically the P. D will then have the right to give its opening statement.  D has right to open if D admits P is entitled to recover, subject to an affirmative defense (e.g., Statute of Limitations).

(b)   Purpose:

(i)      State the Nature of the claim or defense

(ii)    What the party expects to prove

1.      A party can detail the evidence he expects to prove.  265(a). 

(iii)   Grab attention of jurors

(iv)  Short and to the point

(v)    Don’t over-promise.  If you over-promise, but then don’t deliver, the D can use it against you. 

(vi)  References to inadmissible evidence.  Usually you know at that point what’s admissible or not, but you can use the motion in limine to prevent this.

(4)   Invoking “The Rule”—TRCP 267 and TRE 614

(a)    asking the judge to order witnesses to remain outside the courtroom and to refrain from discussing the testimony with anyone other than the attys.

(b)   Either party can invoke the Rule

(c)    What does the judge do after the rule is invoked?  267(a) Judge will swear them in and tell them they cannot remain in the court room or listen to testimony or witnesses, and under (d), not to discuss the case with anyone, not read any report of comment the case,

(d)   What should the attorney do?[instruct his witnesses to comply]

(e)    Persons excluded from the Rule

(i)      a Party [P or D] who is a natural person and his spouse

(ii)    corporate representative of P or D

(iii)   A person whose presence is essential to the presentation of the case. these are expert witnesses.

(f)     purpose of the rule—prevent cross-pollination of stories, refresh memories, influence others.

(g)    Remedy for violation: contempt or excluded from testifying. 267(e).

(i)      Exclusion of evidence.  Southwestern Bell v. Johnson, p. 192

1.      I: Whether a trial court can refuse the testimony of a person who has not be placed under the rule after the Rule has been invoked?  Should plaintiff’s witness, Blakeley be allowed to testify even though he was present when the rule was invoked but never placed under the rule.

2.      Cozart  worked for SWB; Cozart was working on the telephone pole.  Johnson is working on a water meter in front of the truck.  Then, according to Johnson, Cozart saw Johnson as he passed him to return to the truck.  But Cecile says he saw the accident, but gave no testimony that Cozart every went up the pole.  Blakeley was an investigator who had taking a taped conversation with Cecil, on the tape Cecile said he did see Cozart go up the pole.  They needed Blakly to get the tape into court.

3.      Held, the trial court did not abuse it’s discretion in refusing to allow Blakley to testify. The rule was invoked, Blakely stayed in the court room and violated the rule.  P invoked the rule and should have seen that Blakeley was placed under the rule.

4.      RULE: tell your own witnesses not to violate the rule, even as pretrial preparation,

(5)   Drilex Systems v. Flores

(a)    Here the trial judge didn’t place the witnesses under the rule, didn’t order them not to talk to any of the attys of the case.  But the atty didn’t draw it to the attention of the court; Acock was an expert witness and essential to the case and he would have been exempted from the rule.

(b)   The rule was invoked, Acock speaks to another witness; when Drilex tries to get him in, the opposition objects, and the court excludes him from testifying.

(c)    Held, the trial court didn’t abuse its discretion.  A problem arises sometime when the rule has been invoked but those witnesses are not in the court room. So your duty as an atty is to inform them of their duties.

(6)   Atty must explain to their witnesses what the Rule means

(7)   Attys must tell late arriving witness who were not placed under the Rule what they can’t do

(8)   If the rule is violated, the party whose witness violated the Rule should argue that allowing testimony is not prejudicial to the other side

(9)   Whether to invoke the Rule is a strategic decision.  If you have 6 witnesses, then you don’t want to invoke the rule.  If your only witness is your client and an expert, then you would want to invoke the rule.

6)      Presenting Proof, p. 205

a)      Stages of presenting proof

i)        Direct examination. Scope of direct is limited by the pleadings. You need to know the pleadings to determine if it’s relevant.

ii)       Cross-examination. Not limited to matters covered on direct.  This is unusual to Texas law.

iii)     Redirect examination

iv)     re-cross

v)      Rebuttal evidence

(1)   Evidence that directly answers or disproves the last round of the other party’s evidence.

b)      Atty’s Proof Outline

i)        Begins during the pretrial process

ii)       Identify elements of cause of action or affirmative defense

iii)     Identify witnesses and exhibits that you will use to prove (or disprove) each element of the case

iv)     At least 30 days before trial, confirm that you have identified all possible fact witnesses and give that information to the other side,

v)      If not, supplement discovery responses

vi)     If you do not identify a witness, your opponent can try to prevent the witness from testifying.  What rule will your opponent rely on?  RULE 193.6

vii)   EX:  in an IIED case, you have 4 elements:  1) D acted intentionally, 2) conduct was extreme and outrageous, 3) P suffered emotional distress 4) severe.  You need to think about proving each one of these early on.  At trial you want to have this all mapped out, under each element the witnesses you want call.  Once you cover it, check it off.  You don’t want to assume anything, otherwise you could get a directed element.

viii)  Under discovery rules, if the other party makes an interrogatory request for trial witnesses . . .  You need to make sure the other-side has an up to date list of your witnesses.  the other side could use RULE 193.6 which says that a witness can be excluded for failure of timely disclosure.

c)      3 categories of evidence

i)        Testimonial evidence,--Oral testimony from fact and expert witnesses

ii)       Demonstrative,--Objects that illustrate verbal testimony

(1)   maps, diagrams, charts, photos, etc.,

iii)     Documentary evidence–Written materials, like contracts

d)      Admissible form

i)        Relevance –Whether the evidence would make a material fact more probable than not.  TRE 401 and 402.  But sometimes it is not admissible because it might be outweighed by substantial prejudice, Not otherwise excluded --- hearsay.

ii)       Authenticated. Show to the court that the evidence is what you purport it to be.  There is self-authenticating evidence, business records, for example.

e)      Testimonial Evidence

i)        Fact witness

(1)   Competent – able to accurately perceive, recall, and recount to jury

(2)   Personal knowledge – a fact witness is limited to testifying to the facts within his or her personal knowledge

(3)   Opinion testimony of fact witness is allowable pursuant to TRE 701. “If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to clear understanding of the witness’ testimony or the determination of a fact in issue.”

ii)       Expert witness

(1)   Robinsons/Doubert test:

(a)    Expert is qualified to give expert opinion by knowledge, skill, experience, or training

(b)   Subject of the expert’s testimony is scientific, technical, or other specialized knowledge

(c)    Expert’s testimony must assist the trier of fact to understand the evidence or to determine a fact in issue

(i)      Reliable—when you look at situations where an expert is testifying in hard science.

(ii)    Relevant

(d)   Expert’s testimony must be based on sufficient “underlying facts or data.”

(e)    Reliability Factors

(i)      The extent to which the theory has been or can be tested

(ii)    The potential rate of error of the technique.

(iii)   Whether the theory has been or could be subject to peer review or publication

(iv)  Whether the underlying theory or technique has been generally accepted as valid by the scientific community

(v)    The extent to which the technique relies upon the subjective interpretation of the expert

(vi)  The nonjudicial uses of the theory or technique.

(f)     You can establish all of this through motions before trial. You can also object to the witness. Don’t use a motion in limine because a motion in limine is not final.  You want to use a motion to strike

(g)    Challenge to expert witness testimony should be made b a written motion prior to trial

(h)    Robinson hearing follows

(i)      Preservation of error depends on wording of the order

(j)     To present a complaint that scientific evidence is unreliable, the latest a party can object is when the evidence is offered.

iii)     Introducing evidence

(1)   Mark evidence.

(2)   Hand to witness.

(3)   have witness identify.  If it’s a video tape just ask them have they seen this before.

(4)   Lay foundation (authenticate)- the foundation for different piece of evidence are different.  P. 210-213, text book.  Lay the predicate... [exam].

(5)   Tender to opposing counsel for objection

(6)   Offer into evidence

(a)    Guetersloh v CIT Corp,--even if you don’t formally offer it into evidence or don’t use the word “offer”, as long as everyone refers to it as evidence.  Even if the word “offer” wasn’t used, both parties treated it as though it had been; if it were improper it should have objected at trial.

(b)   For exam : know the foundation for Photos, video’s, and

(7)   Move to publish evidence to the jury.

(a)    EX: Photograph: 

iv)     Documentary evidence

(1)   Competence and personal knowledge

(a)    Best evidence rule. TRE 1002 “To prove the content of a writing, recording or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.”

(b)   Rule of optional completeness. O’Connor’s p. 548.   If the counsel only introduces a part of the document, the other side can object and have the remainder of the document introduced.

(2)   Relevant

(3)   No exclusionary Rule

(4)   Authenticate

(a)    Authenticate through a witness

(b)   If a document is self-authenticating, you don’t need a witnesses to prove up the document.  TRE 902.

(c)    Examples of self-authenticated documents include public documents under seal, certified copies of public records, business records, accompanied by affidavit.

(5)   Business records rule.  p. 208 text.  Why do we have the business records exception to the hearsay rule?  there is an inherent amount of trustworthiness.  TRE 803(b) takes it out of the hearsay exception.  But how do you go about proving up a business record?  You’ll have to authenticate the document: prove it is what it purports to be.  If you can’t call the custodian [you can use an affidavit].  Many employees are involved with a records and it would be a waste of time to call them all.  Sometimes it’s easier to just do it by affidavit.

(a)    Get business record introduced prior to trial. 

(b)   TRE 803(6) Business records  Exceptions to the hearsay Rule

(c)    Do not need witness to prove up business record during trial if TRE 902(10) has been satisfied.

(d)   Business records by affidavit

(i)      The record is admissible under TRE 803(6) or 803(7)

(ii)    The affidavit required by TRE 902(10)(b) is attached to the record

(iii)   The record and affidavit were filed with the clerk 14 days before trial

(iv)  The other party is given notice of the affidavit 14 days before trial

(v)    The notice includes the name and employer of the person making the affidavit and the statement that the records were available for inspection and copying.  See affidavit.  the custodian is only swearing that this is typical of the habit and routine of the business, not that they have personal knowledge of the content.

(e)    Business Records by Witness

(i)      Establish elements of TRE 803(6) through a witness

(ii)    Examples of business record foundation on p. 213.

f)        Stipulations, p. 215

i)        Parties can make stipulations as to the admissibility of evidence.  The stipulation will be construed based on the parties’ intent, so be very clear as to what you are stipulating to.

(1)   Intent of the parties Jackson v. Lewis, p. 215.

(a)    Stipulations are like a contract, so the intent of the parties is important.  You want the stipulations to be in writing setting out exactly what you are stipulating to.

(b)   In this case, they were stipulating to the reasonableness of the medical bills.  P was trying to make clear they want the actual issue of damages to go to the jury.  But the trial court overturns this decision.  The appellate court says they never stipulated the amount of damages, only the reasonableness of the medical bills.

g)      Objecting to Evidence, p. 261

i)        Timing.

(1)   Testimonial evidence – make objection after question is asked and before it is answered.  Sometimes it may not be possible, or the question is ok but the witness says things he shouldn’t.

(2)   Documentary evidence – make objection at the time opposing counsel moves to admit the document into evidence.

ii)       Form of the objection

(1)   Make specific objections.  O’Connor’s p. 545.

(a)    Identify the exact part of the question or evidence that is inadmissible

(b)   Identify the legal principle the court will violate if it admits the evidence

(c)    A correct specific objection that is overruled will preserve error.

(d)   Hearsay example: how would you go about making a specific objection to this scenario?  Car wreck. Officer is called to the scene, he interviews a bystander witness, who won’t be called to trial.  Plaintiff’s atty asked the officer questions:

(i)      “after your investigation, did you speak to Mary Witness”

(ii)    yes,

(iii)   “Did you ask her about how the collision occurred?”

(iv)  yes, 

(v)    “what did she tell you?”  this is hearsay.  this is an out of court statement, not made by the declarant, to prove the matter asserted.  So say “objection, hearsay.”  This is a correct objection.  If the court overrules your objection, then you’ve preserved your error.

(2)   Do not make general objections

(a)    A general objection is one that objects to evidence for a vague or inexact reasons. A general objection that is overruled will not presser errors

(b)   CN: If I as an atty ask a question, is that question evidence in the case?  Witnesses are the ones that give evidence.  But once they respond, then the question becomes relevant.

(3)   Running objections. O’Connor’s p. 548.  Make sure the judge says on the record that your objection is a running objection and every witness needs to know this.

(4)   Common Evidentiary objections

(a)    Hearsay

(b)   Relevance

(c)    Privilege

(d)   Parole evidence rule

(e)    leading

(f)     compound question

(g)    Misstating the evidence.  CN: attys will phrase the question is such a way . . l object, but the judge will generally not rule on it, they often do this because they can’t remember what the evidence is.

(h)    Insufficient predicate (no proper foundation)

iii)     Preserving Error by pursuing an adverse ruling, p. 548-9 O’Connor’s.

(a)    Step 1--Make an objection

(i)      Objection overruled – error preserved

(ii)    Objection sustained – pursue adverse ruling.  The question is still in the minds of the jury.  What do you do to preserve error?  You have to keep going until you get an adverse ruling and the judge tells you to stop.

(b)   Step 2--Request instruction that jury disregard the evidence (or the question).  But you having preserved your error; at this point you have to move to strike it from the record.  Once the judge says overruled, then you get your adverse ruling.  If he gives the instruction, then move to strike the evidence.

(c)    Step 3--Motion to strike evidence. 

(d)   Step 4--Motion to mistrial.

(e)    Practical note.  If you go through this whole process you may piss off the jury.  you have to think strategically.

7)      Objecting to Evidence, TRE 103, O’Connor’s p. 544

a)      Appellate review of admitted and excluded evidence

i)        Trial court erroneously admitted or excluded evidence; no other similar evidence was admitted or excluded, and the error probably caused the rendition of an improper judgment. TRAP 44.1(a).  just because a trial court messes up doesn’t mean that it will get reversed; even if there was error, and the error was preserved.

b)      Taking a witness on voir dire.  O’Connor’s p. 546.

i)        procedure whereby an atty examines the opponent’s witness before the time for cross examination to call to the court’s attention facts necessary for a ruling on the admissibility of evidence

ii)       Typically used to the test the qualifications of a witness’

(1)   Personal knowledge

(2)   qualified to give expert opinion testimony

iii)     Also could be used to point out a defect in the foundation evidence necessary to introduce a document.

iv)    EX:  car wreck case.  Police officer goes to scene of accident; he has no qualifications as an accident re-constructionist.  Atty for P was trying to get him to opine on the speed of the vehicle when the crash occurred.  He says he’s been on the police force to x years, but he has no experience in measuring skid marks, etc.  When P asks him to opine on speed of the car.  D will then object and ask to take the witness on voir dire.

v)      Taking a witness on voir dire procedure

(1)   Police officer example

(2)   Object

(3)   Ask to take the witness on voir dire

(4)   Ask for the jury to be excused

(5)   Question witness

(6)   Renew objection.

c)      Excluded Evidence. O’Connor’s p. 553

i)        Proponent must make an offer of proofTRE 103(a) (2) and 103(b).  Usually you’ll make an offer of proof during a break, but you must do this before the charge is read to the jury.

ii)       Testimonial evidence

(1)   question and answer format, or give a TRE 103(b)

(2)   Concise statement of the evidence, the purpose for which the evidence offered, and the reason the evidence is admissible

iii)     Documentary evidence.  It will be marked as an exhibit by the court reporter.

iv)     tape-recorded evidence.  Describe what the evidence on the tape, what it’s for.

v)      Make sure the judge explicitly overrules the offer of proof

d)      Formal Bill of exception TRAP 33.2, TRCP 75a.  O’Connor’s p. 555.

i)        Use formal bill of exceptions when error has not been preserved through an offer of proof.

ii)       Deadline for filing bill: 30 days after the filing party’s notice of appeal is filed.

iii)     Bill must be in writing

iv)     Bill will summarize the court’s ruling, explain why the evidence was admissible, and provide affidavit proof as to the testimonial evidence that would have been had the not ruled it inadmissible.

v)      Judge signs bill and it is filed in the record.  Hopefully the judge will sign off on it

vi)     Judge suggests corrections, party makes corrections, judge signs bill, and it is filed in the record. 

vii)   Judge suggests corrections, party refuses to make corrections, bill is refused and filed in the record, bystander’s bill is filed

(1)   Judge’s bill. Judge will also file his own bill (typically prepared by the other atty.). 

(2)   TRAP 33.2(c)(3) you need to have three uninterested by standers who witnessed the transaction.  But it may be hard to get this.  What about jurors? not clear.

viii)  This anticipates that there will be two bills, the one by the judge and the one by the party.

e)      Trial amendmentsTRCP 63 (surprise), 66 (prejudice)

i)        Oral motion for leave to amend pleading

ii)       Grounds: 

(1)   Procedural defect

(2)   add new allegations

(a)    new cause of action or defense

iii)     defenses

(1)   prejudice surprise

iv)     If motion is granted, written amended pleading is filed.

v)      TEIA v. Garza, p. 264

(1)   Did the judge make prejudicial comments?  266-67 “How may of you jurors were confused by these questions, hold up your hands.”  This could be very prejudicial. This is an improper comment on the evidence.  But the atty didn’t object.  So he waived his issue. Should the atty have objected? the judge is already ticked off at him.  But there was never preservation of error.  See bottom of p. 267.  App court didn’t think it lead to rendition of an improper judgment.

vi)     Harley v. Swift, p. 268

(1)   The order in limine prohibited mention of “any other litigation by the P against any feed company involving defective feed or regarding any claims, judgments or trials relative thereto.”  P says that the feed was no fit for its intended use.  On direct, Hurley witness said that P said he had been through that before.  Was this a violation of the court’s ruling?  The atty approached the bench and they discussed it, but there was no objection.  So no preservation of error.

vii)   Discussion problems, p. 269

(1)   (a)—mention of liability insurance.  What would your specific objection be?  Under the rules of evidence, you can’t bring in evidence of liability insurance.  To preserve error what would you do?  Pursue an adverse ruling.  Ask to strike from the record, then mistrial

(2)   (b)—what should you do?  ask the judge to reconsider his ruling.  The evidence is admissible for impeachment purposes.  Make clear that you’re offering the evidence for the purposes of impeachment.

(3)   (c)—this is an improper comment.  you must object and then pursue an adverse ruling.

8)      Jury Charge: Introduction  TRCP 271-272

a)      Procedurally, all the parties have put on their evidence and rested.  Now the jury charge becomes important.  The judge will finalize the charge, at which time parties can formally object to.  Though the court is ultimately responsible for the charge, the atty’s play a large role in putting the charge together.  Many attys will put together the charge even before the trial begins.  How will the atty go about putting together the charge?  Look to case law, elements in the cause of actions, look to the Texas pattern jury charges, which will give you a suggested way of putting your questions together. 

b)      CN:  The judge determines the law and the jury the facts, but how to present it to the jury?  Texas has the broad form.  another method is the separate and distinct, granulated method.  The general jury charge, a broader method, asks simply, “do you find for the plaintiff or defendant.”

c)      The downside of the separate and distinct method is that jurors may get confused and give conflicting answers.

d)      Types of jury verdict systems:

i)        general verdict system

ii)       Broad

iii)     Separate and distinct

e)      Background of the jury charge in Texas

i)        Jury charge – the collection of questions, definitions, and instruction of the court submits to the jury to resolve the factual dispute in the case.

ii)       1913-1973 –“separate and distinct” submission – special issues

iii)     1973-1988 –The trial court had the discretion to submit separate questions on each element of the case or to submit issues broadly.

iv)     1988 –present - - Broad form submission is required “whenever feasible.”  TRCP 277.  But  when is broad form “feasible?”

f)        Broad-form Submission, RULE 277 pp. 298-313

i)        Judicial history reaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charged.  Lemos.

ii)       Broad form submission takes all the elements of a cause of action and combines them into a single question.  It may also combine multiple cause of action with it’s related defenses.  See Dorsaneo, p. 276.

(1)   P. 279.  Cf 281 for separate and distinct.  Broad form just asks whether they were negligence, the other asks many different questions.

iii)     3 components of jury charge

(1)   General admonitory instructions

(2)   Instruction tailored to the particular case

(a)    Elements of a cause of action

(b)   definitions of legal terms

(c)    explanation of burden of proof

(3)   Broad form questions.

iv)     Tex. Dept. of Human Servs. v. E.B., p. 299

(1)   F:  This is a family law case where the State is trying to terminate the parent’s parental rights. The jury charge asks whether the parental-child relationship for each child [should] be terminated?  Jury answers “yes” to each one.

(2)   Parents suggest that there is more than one reason to terminate a parent’s right, as various violation of the Tex Fam. Code.  So giving this broad form submission doesn’t tell you which one the jurors relied on.  They are to take into account the best interest of the child.  Each juror may have found a different violation of the  Code.  Held, broad form is required whenever feasible which means every instance where it is capable of being accomplished.  The only question is whether the relationship should be terminated; it doesn’t matter what grounds it relied on.

v)      Keetch v. Kroger, p. 301

(1)   Slip and fall case.  W was walking in Krogers, claiming there was a slippery spot on the floor by the floral department.  Jury found that there was a slippery spot but that Kroger’s didn’t know about it.

(2)   The charge was not submitted in broad form.  Held, this could have been submitted in broad form.  But there was no timely objection so any error was waived.

vi)     HEB Grocery v. Warner, p. 303

(1)   W slipped on a puddle of water, sues for premises liability and negligence for the store to allow her to bag her own chicken....Court says that the pleadings contain only premises liability, so the trial judge shouldn’t allow the negligence claim go to the jury.  But should the premises liability issue be submitted in broad form?  But was this error? no.  Failure to submit in broad form was not harmful error.  Although submitted in granulated form, the jury questions contained the proper elements of a premises liability actions.  So, if it’s not harmful error, what’s the trial judge’s incentive to submit in broad form when he can not do it in broad form as long as it contains the proper elements?

(2)   But there are cases when broad form just will not work.

vii)   When broad form is not “feasible.”  Crown Life Ins. Co v. Casteel, p. 305

(1)   Casteel sold Modified Vanishing Premium policies as an agent of Crown Life insurance.  Ferguson purchased through Casteel from Crown insurance policies who said that the premiums were supposed to vanish.  Ferguson sues under the DTPA and the insurance Code.  Casteel in turn sues Crown under DTPA and Insurance code.  Casteel, however, was not a “consumer,” so his DTPA claim could not go forward.  But one of the insurance code violation theory did not require him to be a consumer. 

(2)   Here the charge was in broad form.  But we don’t know if the jury based their verdict on the improper legal theory.  The jurors may have based their claim on an incorrect legal theory, i.e., one that requires a “consumer.”  Whether a person is a “consumer” under the dtpa is a legal question.  This determination should have been made by the judge earlier.

(3)   Rule 277 is not absolute; rather it mandates broad form submission “Whenever feasible.”  When the trial court is unsure whether it should submit a particular theory of liability, separating liability theories best serves the policy of judicial economy underlying Rule 277 by avoiding the need for a new trial when the basis for liability cannot be determined.”  CN: so the judge should have done it in granulated form.

viii)  Harris County v. Smith, p. 19 Suppl—question was a damages case. 

(1)   I: Whether the trial court committed harmful error by submitting a broad-form question on damages that included an element without any evidentiary support.  Held, the error was harmful because it probably prevented the petitioner from properly presenting its case to appellate courts.

(2)   In considering what damages are proper, the trial court says you can consider several elements/factors:  Physical pain, loss of earning and physical impairment.  But there was no evidence of loss of earning capacity.  The jury returned an award of $90k, a reasonable amount.  Supreme court reversed because we don’t know if the jury based its award on earning capacity for which there was no evidence.  What they should have said: what amount for physical pain, if any ______, what about for loss of earning capacity if any __________, what amount for physical impairment if any ________.  Judge submitted both questions in broad form and in each question contained on element for which there was insufficient evidence.  On appeal the court said that we can‘t tell which on they based their decisions on.

(3)   reversed.  You are entitled to know as a party that the jury is rendering award on an improper element.  This is another inroad into the broad form submission.

g)      Broad form Submission (Limitations) summarization:

i)        Any broad form question must fairly submit the controlling fact issues to the jury.  Pure questions of law should not be submitted to the jury.

(1)   Breach of contract example: the jury should not be asked whether the contract was breached, because this is a legal question.  Ask only did these parties agree to these specific things.

ii)       Broad form submission should not be used when there are alternative liability theories and the law is unclear as to whether some of the theories are viable.[Casteel]

iii)     Broad form submission should not be used when there is a question concerning the legal sufficiency of the evidence on a particular element.  [Harris County v. Smith]

(1)   Judge – omit element or submit as a separate question. 

iv)     Some statutes have said that for damage awards, the issues should be separated out.

h)      Jury Charge: Instructions, pp. 313-332

i)        Overview:  Instructions are not the same as the charge.

(1)   RULE 277 and 278

(2)   When are jury instructions “proper?”—“enables the jury to render a verdict.”

(3)   When do jury instructions comment directly on the weight of the evidence or advise the jury of the effect of their answers?

(4)   Are instructions that predicate a damages questions on affirmative findings of liability improper? no.  “The court may predicate the damage question or questions upon affirmative findings of liability.”  277

(5)   Are inferential rebuttals the subject of proper jury instructions or jury questions? instructions.

ii)       When instructions are “proper”, p. 313

(1)   Brandon v. Cooper (1979), p. 313

(a)     Brandon and Cooper were partners. Then Cooper broke off and began competing with Brandon.  Brandon sued for breach of non-compete agreement, and use of confidential information.  Though confidential information was defined in the charge, Brandon appeals the court’s failure to give additional explanatory instruction on the definition of “confidential information.”

(b)   One instructions given was the definition of “confidential information,” but P wanted an additional instruction on what this definition means.  Judge determined that this instruction was legally in accurate.  Then plaintiff asked for a definition of “confidential relationship.”

(c)    Held, Rule 277 authorizes a special instruction only when it is necessary to enable the jury to properly pass upon and render a verdict on the issues submitted.  The trial court must give definitions of legal and other technical terms used in the charge.  Anything else, however interesting or even relevant, which does not aid the jury in answering the issues must be exluded.”

(d)   RULE:  surplusage shouldn’t be included in the instruction; instructions must be a correct statement of the law; you can only define a term if it has a distinct legal meaning.

iii)     Improper judicial comments:  instructions that nudge the jury, comment on the weight of the evidence, or inform the jury of the effect of its answers, p. 316

(1)   Acord v. General Motors, p. 316

(a)    Trial court asks jury whether the injury occurred because of a “defective design.  Then defined “defective design”.  Then gave an ADDITIONAL instruction stating that “a manufacturer is not an insurer . . . etc.”  P complained that this was a comment on the evidence.

(b)   The instruction: that the ‘manufacturer is not an insurer “. . .  brings in a balancing test and is therefore a comment on the weight of the evidence.  This sounds like a negligence case, but this was a strict liability case, so this surplusage was an improper comment on the weight of the evidence.

(c)    R: In strict liability cases the jury is not to be instructed with balancing factors.  The jury need not and should not be burdened with surplus instruction.

(d)   Held, the additional instruction in this case was erroneous, but was it harmful?

(e)    HARM:  In a closely contested case like this, to single out for the jury that GM was neither an insurer nor guarantor of a perfect product, which incorporated ultimate safety features, was a comment on the case as a whole, and thus was harmful error.

(f)     With respect to the instruction of defining “defectively designed”?  was this proper? yes, because this was a correct statement of the law.

(2)   Maddox v. Denka Chemical Corp., p. 319

(a)    P worked as an independent contractor.  There were three instructions:  the first was ok, the next two were not.

(b)   Trial court first asked:  Do you find that Denka had a right to control the work in question?  Then the court gave a definition of “control;” which was proper.  But it was improper to give the “general rule” on the owner’s duty over an independent contractor.  Juries will be improperly influenced by a judge’s instruction that, as a “General rule a D has no duty” and therefore would win.  Here, the court said it was error to provide these statements because the commented. 

(c)    These statements were correct statements of the law; but if they are thrown in here in the improper way, then they shouldn’t be in here. While all jury instruction should be an accurate statement of the law, not all accurate statements of the law [can be included in the jury instruction.]

(3)   Lone Star Gas v. Lemond, p. 322

(a)    Statement: A seller’s duty to warn arises only where the dangers to be warned or are reasonably foreseeable and are such that a consumer cannot reasonably be expected to be aware of them.”  Held, this was not a close case; jury was not confused.  Though this was surplusage, it was ok. So it’s not always easy to tell when surplusage will be erroneous.  Held, harmless error

(4)   HE Butt Grocery v Billotto, p. 323

(a)    This is a slip and fall case.  F: interprets Rule 277. is it important for jurors to be kept from knowing the legal implications of their decision?

(b)   1st question: Did D or P cause the negligence? Answer: yes. 

(c)    2d question, if both D and P were negligent, then apportion by percentage. answer, 50/50.

(d)   3d, if you find D not negligent or less than 50%, then they need not answer the damaged question. 

(e)    HEB argued that this shows the jury the legal effect of its answer.  If P is more than 50%, then you’re out of luck.  So this can lead jurors to decrease the P’s negligence so he can collect on something.

(f)     Rule 277 says that the court can predicate the question on the damages. “The court may predicate the damage question or questions upon affirmative findings of liability.”  but the jury is just making a finding of percentage of negligence, not an affirmative finding of liability.  This is a finding of comparative negligence, which is a defense to liability.  So it’s debatable of whether this is [an affirmative finding of liability]

(g)    Held, when in instruction merely directs the jury to answer a damages question only if some condition or conditions have been met, it does not directly instruct the jury about the legal effect of its answers.” Held, now you can allow a predicate question.

iv)     Treatment of the Inferential Rebuttal Defense, p. 285

(1)   “An inferential rebuttal defense denies one or more elements of the plaintiff’s cause of action by asserting a factual theory which contradicts some necessary part of the P’s claim.  Thus, in order to prove all elements of his claim, the P must disprove the inconsistent theory.”  “It didn’t happen that way, it happened this way . . .” [this is different from an affirmative difference which says, if happened they way you say it happened, but for some reason you’re not entitled to recover].

(2)   Inferential rebuttal questions shall NOT be submitted in the charge. 277.

(3)   Inferential rebuttal instructions MAY be allowed in certain negligence cases, but are generally discouraged because of their tendency to mix the concepts of negligence and proximate cause.

i)        Jury instructions Summary

i)        Prefer broad form questions with instructions that define only technical legal terms.

ii)       To be proper, an instruction must be a correct statement of the law, but not every correct statement of the law should be provided to the jury.

iii)     “Surplusage” instructions that add to accepted definitions are generally improper and may be harmful because they nudge the jury in a particular direction.

iv)     Instructions that directly inform the jury of the legal effect of its answers are not allowed.  Instructions that only incidentally inform the jury of the legal effect of its answers are permissible.

j)        Recent developments—HB-4

i)        Punitive damages

(1)   Predicate question: separate gross negligence and malice questions and instructions

(2)   Unanimity instruction: CPRC §41.003(d)

(3)   Damages question:  Unanimity instruction;  CPRC 41.003(e).

ii)       Taxability of Damages awards

(1)   § 18.091 applies to 4 elements of damages

(a)    Loss of earning

(b)   loss of earning capacity

(c)    Loss of contribution of a pecuniary value

(d)   Loss of inheritance

(2)   If a claimant seems recover for these damages, “the court shall instruct the jury as to whether any recovers for compensatory damages sought by the claimant is subject to federal income taxes.”  18.091(b)

(3)   Texas taxability instruction

(a)    “Your award will not be subject to any income taxes . . . .

k)      Requests to Charge and Objections to Charge.  TRCP 272, 273, 274, 276, 278; Dors. 332-373.  O’Connor’s, p. 570-575.

[missed in Austin; 2/11/05]

9)      Consequences of a party’s failure to object to an improper jury charge that misstates the applicable law.

i)        Waiver of substantive legal theory, RULE 278

(1)   Barfied v. Brogdon, Dorsaneo, p. 367

(a)    “A party’s failure to object to erroneous “malice” standard waived that issue.

(2)   Osterberg v. Peca, 12 SW3d 31 (tex. 2000).

(a)    Sufficiency of the evidence is reviewed in light of the incorrect legal standard.

(3)   Immaterial Submissions

(a)    No objection prior to case being submitted to jury is required for jury questions and finding that concern relief that is unavailable under the law

(i)      Wal-Mart v. McKenze, p. 371

1.      Mc was fired by Wal-mart, claiming slander and wrongful termination. Jury awarded for wrongful discharge.  The issue of compensatory and punitive damages is submitted to the jury.  But Wal-Mart didn’t object.  The Texas anti-discrimination statute says he was only entitled to equitable relief, so by law he wasn’t entitled to punitive damages.

2.      How does Mc Case illustrate this principle?

3.      When did wal-mart challenge the unavailability of the relief?  [before judgment was entered]

4.      The submission is immaterial because it was legal issue, not factual issue and the jury is not supposed to make these determinations anyway.

5.      Could Wal-Mart properly have objected at the jury charge stage? yes.

6.      You can always raise a “no evidence” for finding a particular verdict, you an raise this after the verdict motion.

b)      Jury Charge: Waiver and Deemed Findings

i)        Waiver of independent grounds of recovery.

(1)   A party waives an entire theory of recovery or defense by not objecting to its omission from the charge, unless the complete theory of recovery or defense was proved as a matter of law.  TRCP 279.

(2)   Waived Grounds, p. 377

(a)    Sudderth v. Howard, p. 377

(i)      The independent grounds of recovery pleaded by the Sudderths were   cancellation of the deed, and right to recover for usury.

1.      submitted to the jury -- cancellation of the deed.

2.      not submitted to the jury -- usury.

(ii)    Waiver? yes.  “Upon appeal all independent grounds of recovery not conclusively established under the evidence and no element of which is submitted or requested, shall be deemed waived.”

(iii)   Could the judge make factual findings on the independent ground of recover not submitted to the jury?  The judge has no business going back after the verdict, after the jury has decided one of the issues.

(3)   Omitted elements, O’Connor’s 577-578

(a)    TRCP 279 describes the procedure when an element of recovery or defense is omitted from the jury charge

(b)   IF neither party objects to missing element

(i)      The trial court may make an express findings in support of its judgment on the omitted element

(ii)    By not objecting, the parties waive a jury trial on the omitted element and agree to have the issue decided by the trial court

(iii)   5 factors that need to be satisfied: O’Connor’s p. 577

1.      the party  with the burden of proof on the incomplete claim or defense did NOT request the missing element

2.      the opposing party did NOT object to the missing element

3.      the claim or defense consisted of more than one element

4.      the missing element is “necessarily referable” to the claim or defense, and

5.      there is factually sufficient evidence to support a finding on the missing element.  TRCP 279.

(c)    IF Opposing party objected

(i)      When the opposing party objects to a missing element at the jury charge stage, a court cannot deem the missing element in favor of the party with the burden of proof on that element.  In such a case, the party with the burden of proof did not secure a finding on the omitted element, which forecloses that claim or defense.

(d)   Payne (starting at 335) is an example where an opposing party’s objection to a missing element foreclosed the court from deeming the missing element in the other party’s favor.  p. 351. 

(4)   Express findings, (p. 577, O’Connor’s)

(a)    Express findings by the trial court (procedure)

(i)      A party asks the court to make an express finding

(ii)    notice is provided to the other party

(iii)   The court conducts a hearing on the request

(iv)  The court makes an express finding and renders a judgment in conformity with both the jury’s findings and its express finding

1.      Simple negligence example:  See O’Connor’s p. 578.  The judgment could change depending on how the judge finds.  So if you’re a defendant and realize post-judgment that there is a missing element, ask the judge to make an express finding, because this may reverse the jury’s finding.

(b)   Strategic considerations:  under what conditions would you want to ask the court for an express finding when there has been a missing element?  If no one brings it up, then on appeal it will be deemed in favor of the P.  But would P have want to ask for an express finding when the jury returned a verdict despite a missing element?  If D doesn’t make the request and you don’t’ either, then it will be deemed in you’re favor.

(5)   Deemed findings

(a)    Deemed findings by the appellate court:

(i)      Neither party objected to the missing element at the jury charge stage

(ii)    The trial court did not make an express finding on the missing element

(iii)   there is some evidence to support a finding on the missing element that supports the trial court’s judgment

(iv)  The appellate court cannot deem a finding that requires a different judgment from that rendered by the trial court.  Gulf State Utilities, 70 SW 3d. 561 (tex 2002) (intermediate appellate court erred by deeming a finding in support of the new judgment that awarded greater damages than had been awarded by the trial courts judgment).

ii)       Deemed ElementsTRCP 279, p. 374-380

(1)   Hawes v Central Tex Production credit asoc.

(a)    F: Fraudulent conveyance.  The defense is that the transfer was made in good faith.

(b)   There was a missing elements—good faith.  There was not jury finding that Parker’s conveyance to Hawes was received in good faith.    The judge ordered the deed canceled.  There was no objection to missing elements.  There were no express findings.  There was some evidence to support a deemed finding in support of the trial court’s judgment, that D wasn’t taking this land in good faith.  Held, “Since neither party requested a jury finding on this issue of Hawes’ good faith or objected to its omission from the charge, the trial court, which render judgment for the P, will be deemed to have found that Hawe’s did not act in good faith if there is evidence to support such a finding.  there was some evidence, we deem this element to have been found. 

(2)   Cielo Dorado Development v. Certainteed Corp. p. 376

(a)    Missing element?  the DTPA notice issue.  Express finding, no.

(b)   Some evidence to support a deemed finding in support of judgment.  The atty stated that notice was given, but no one objected to the sufficiency of the evidence or rebutted it, so it was sufficient evidence to deem that notice was given.

iii)     Appellate Issues

(1)   Reversing a jury charge error requires a showing of “harmful error.” TRAP 44.1(a).

(a)    Probably caused the rendition of an improper judgment; or

(b)   Probably prevented the appellant from properly presented the case on appeal.

(2)   Objection to incomplete questions (omitted element):  Appellate court will reverse and render judgment in objecting party’s favor. 

(a)    EX: Payne case.  Plaintiff made no showing that D knew the location of the culvert.

(3)   Objection to flawed question or instruction:  Appellate court will reverse and remand for a new trial.

c)      Summary:

i)        Broad form questions should be used “whenever feasible”.  Casteel/Harris County.

ii)       Party with the burden of proof must secure jury findings on each element of his cause of action or affirmative defense

iii)     The atty must object and or request a submission to preserve error concerning defects or omissions in the jury charge

(1)   “One test”—Payne. Test for determining if a party has preserved error in the jury charge: whether the party made the trial court “aware of the complaint, timely and plainly, and obtained a ruling.”

iv)     Use the Texas PJC (“pattern Jury Charges”) to put together jury questions, instructions, and definition

v)      Start working on jury charge early in the litigation. So you’ll know what elements you’ll have to prove at trial.

d)      CN: recap: Once the party realizes that there has been an omitted element, a party can ask the judge to make that fact finding.  The judge steps into the shoes of the jury, on the theory that the parties have waived the right to have the jury decide.  The judge’s finding can completely change the judgment, because if one element is found in favor of the other party, then he’ll reverse it.

i)        Deemed findings. neither party objected, there was no express finding.  There will have to be some evidence on the record to support the finding.

ii)       Strategy:  there are reasons the party with the burden of proof would not to ask for the finding even if they are aware of it, because if they don’t’ bring it up, and the other side brings it up, then the deemed-finding-law means that it will be upheld.

iii)     What happens when the jury charge error is harmful?  You have to go through 44.1(a) to see if it was harmful error.

iv)     Payne, p. 341, 335.  The charge was not corrected to reflect the omitted element (“knowledge”).  On appeal, judgment is reversed and rendered.  The party with the burden of proof is required to have findings on each of their elements.  But what if it’s a question, not of an omitted element, but of a defective instruction, in the GM case the error was prejudicial because it nudges the jury in favor of the D.  The court agreed it was harmful error.  So they reverse and remand for a new trial. 

(1)   EX: Instruction: “a manufacturer is an insurer” and the appellate court said it nudge in favor of P.  This would be a reverse and remand.  When there’s an omitted element, and they find error, they reverse and render; for a faulty instruction they reverse and remand.

10)  JURY (CLOSING) ARGUMENTS, p. Dors, p. 397-41

a)      after the evidence is concluded and the charge  read, the parties make their final arguments to the jury.  TRCP 266, 269.  You have a lot of leeway to engage in flights of oratory.

b)      Purposes of argument

i)        Charge.  have the jury understand the court’s charge in a light that is most favorable to you.

ii)       Marshal evidence.  Select, arrange, and interpret the portions of the evidence that are relevant to your theories of the case.

iii)     Emotional appeal.  Why should the jury care about your case?

iv)     Right to open and close.  “The party having the burden of proof on the whole case, or on all matters which are submitted by the charge, shall be entitled to open and conclude the argument.” TRCP 269(a)

(1)   In most cases, the plaintiff will have the entitlement to open and close final arguments because he has the burden of proof.  But sometimes by the time of closing, the only claim remaining is the defendant’s counterclaim, in which case the defendant will do the closing.

(2)   Multiple parties/Multiple Claims or Defenses

(a)    “The Court shall prescribe the order of argument between them” TRCP 269(a).  EX:  P1, P2, D1, D2, P1, P2.

v)      SUMMARY:  Order of final argument.

(1)   Opening argument – the party with the burden on the entire case (generally P) presents its entire case to the jury.  TRCP 269(b)

(2)   Response argument – the other party (generally D) presents its case to the jury.

(3)   Rebuttal/Concluding argument – P replies to the opposing side’s argument and makes its final appeal to the jury. TRCP 269(b)

vi)     Allotting time for final argument.  The trial court can set reasonable limits on the amount of time spent by the attys during final argument.

vii)   Final argument in practice (outline)

(1)   Plaintiff

(a)    Introduction

(b)   Explain key parts of the charge to the jury in a manner favorable to your case

(i)      put legal terms into normal language

(c)    Walk the jury through each question, marshal the evidence on each question, and tell the jury how you want them to answer each question.  If you don’t tell the jury what you want them to do, it may not be clear, they won’t know.

(i)      Do not do a chronological summary of each witness’ testimony.  You may not completely recall all the evidence.  just tell the jury the best evidence for your case.

(d)   Brief Close –knowing you’ll be able to come back after D

(2)   Defendant

(a)    Introduction

(b)   Briefly answer P’s argument

(c)    Address the legal terms and issues in a way that is favorable to your argument

(d)   Go over each jury question individually, marshal evidence for each question, and tell jury how you want them to answer each question

(e)    Close—emotional basis for holding for you.  Why this case is important.

(f)     Tell the jury that the other side will have the last word.  The jury may not know that the low doesn’t permit you.

(3)   Plaintiff (rebuttal)

(a)    Jury question. marshal evidence –brief version

(b)   Focus on the important question in the case

(c)    Close – emotional basis for holding for you.

(4)   Pennzoil v. Texaco

(a)    First atty begins, short introduction

(b)   p. 413—Jamail, starts by saying the Miller misstated the law.  Then he walks the jury through the charge again.  Then he tells the jurors that they are the only ones who can see that justices can be done.  He’s making an emotional appeal.  Was this appropriate?  The theme is that there’s a scam or fraud, and that they need to send a message to corporate America.  This is ironic because both parties here are sophisticated businessmen. There’s a fine line between appropriate emotional appeal and going overboard.

viii)  Limits on the Scope of Argument

(1)   Arguments on the facts should be addressed to the jury and confined to the evidence and arguments of opposing counsel TRCP 269(e).

(a)    Argue inferences and deductions from the facts and circumstances in evidence

(b)   Argue matters not raised by the evidence that are within the common knowledge of the jury.

ix)     Reasonable inferences and hyperbole.   Standard Fire Ins. Co v. Reese, p. 399

(1)   Whether a jury argument made by counsel for Ins. Co constituted reversible error in the absence of an objection or motion to disregard the argument.  Held, the argument by Standard’s atty was neither improper nor reversibly harmful.

(2)   CN: Reese was an employee who got injured on the job.  Reese is the P, an Mafrigs is the P’s atty.  Dr. Buning, treated P, Moriarty, a licensed physical therapist.  Bryscinsky took over Buning’s patients when Buning died.  D argues that his injury wasn’t as bad as he claimed.  Claiming that they were all in cahoots to pump up his medical bills.

(3)   There was the statement that P drove by a thousand doctors and went to Buning.  He got the 1-2-7-9 treatment.”

(4)   But we are confined to arguing the evidence and reasonable inferences from the evidence.  Was there such evidence on the record?  The atty and doctors were good friends, atty had previously sent patients to him in the past.  P’s atty objects.

(5)   Tthe evidence:  Mafrige sent P to Buning 6 weeks after the injury, even though other dr had sent P home to work.  Bunings prescriptions were written on Moriarty’s prescription paper.  Every symptom of Reese’s injury was subjective.  The court holds that there is enough in the evidence to allow this kind of argument.  This shows that you will have leeway.

(6)   What about the comment about there being a thousand doctors?  there was no testimony regarding that.  But the court says it’s ok, because perhaps it was common knowledge that there were many doctors between Spring Brack and Astrodome.

(7)   Is hyperbole permissible?  yes.  It’s a oratorical technique.

(8)   CN: you are allowed to argue reasonable inferences and deductions from the evidence.  It’s a pretty lax standard. 

x)      Court’s Charge in Pennoil v. Texaco, inc., p. 408

(1)   Excerpts from the Jury Arguments in Pennzoil v. Texaco,

(2)   Techniques in manner of presentation

(a)    Within the limits set by the trial judge, counsel can use the following oratorical technique:

(i)      Themes

(ii)    stories

(iii)   jokes

(iv)  metaphors

(v)    hyperbole

(vi)  demonstration

(b)   Proper jury arguments

(i)      The atty may argue the probative effect or lack of probative effect of the evidence

(ii)    The atty may fairly criticize a witness’s testimony

(iii)   the atty may point out the bias or interest of a witness or party.

(c)    Improper jury arguments

(i)      Legal effect of the answer

(ii)    going outside the record

(iii)   violating motion in limine

(iv)  Sidebar remarks. TRCP 269(f)

(v)    Personal criticism of the other atty

(vi)  The atty cannot argue that in his personal opinion a witness is credible or not credible.

(3)   Improper Arguments—Curable

(a)    The vast majority of improper arguments can be “cured” by a proper objection and an instruction from the trial judge to disregard the argument.

(i)      Waiver.  If improper argument is curable, the opposing party must promptly object and pursue an adverse ruling to preserve error.

(4)   Improper arguments – incurable

(a)    Some cases indicate that an objection during the trial is not necessary to preserve error concerning an “incurable” jury argument.

(i)      If not raised by an objection during trial, an objection to an incurable jury argument must be made during a motion for new trial. TRCP  324(b)(5).

(ii)    Examples of “incurable” jury arguments include: appeals to the jury’s racial, religious, ethnics, or religious prejudice.

c)      Arguments Procedure: Control by the Court and mechanisms for dealing with Improper arguments,

i)        Test for reversible jury argument: p. 433

(1)   The complainant must prove

(a)    error

(b)   that was not invited or provoked

(c)    that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and

(d)   was not curable by an instruction, a prompt withdrawal of the statement or a reprimand by the judge.

(e)    The complainant must further prove:

(i)      that the argument by its nature, degree and extent constituted reversible harmful error.

(ii)    Then all the evidence must be examined to determine the argument’s probable effect on a material finding

(iii)   a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument.

ii)       Failure to obtain a ruling.  Standard Fire Ins. Co. v. Reese, p. 432

(1)   Here the atty objected to the line of inquiry, but there was no ruling; the judge just said “you can address this in your close.”  Lesson: you need to object and get a ruling.  Court sets out the test of when a jury argument would have reversible error.  There the jury looks at the whole incapacitation period.  The court thought the jury believed the opinion of the doctor who said it was not incapacitated. Held, by failing to object and press for an instruction at the time of the argument, Reese waived his complaint.

iii)     Appeals to Regional prejudice.  McInnes v, Yamaha motor Corp. , p. 436

(1)   P’s atty is from out of town, he is Italian.  D’s atty uses the term “woppy,” appeals to the region prejudices of the jury, saying “he might be able to get away with that in Philadelphia.”  Called a witness “a goose” from California.  P’s atty never objected, so it waived. 

(2)   Waiver, p. 437

(3)   Harmless error, p. 437

(4)   CN:  even if these statements were improper, should he object? It might draw attention to himself.  But in the end, the defendant’s atty got away with calling him a wop.  Even though appealing to region prejudice is improper, it goes on all the time.

iv)     Incurable arguments—racial solidarity.  TEIA v. Guerroro, p. 437

(1)   An objection to an “incurable” jury argument is not necessary to preserve error.  “Incurable” jury arguments are not harmless and required automatic reversal.

(2)   Judges should sua sponte correct improper argument . TRCP 269(g).

(3)   The plaintiff’s atty was Hispanic, plaintiff was Hispanic, 11 of the 12 jurors were Hispanic, doctor was Hispanic.p. 439:  atty quotes Octavio Paz, speaking that “we need to unite as a community.”  Held, this was an appeal to ethnic solidarity. 

(4)   footnote 5, 442: these are clearly improper.

(5)   But under the Reese analysis, they have to preserve error.  Here they didn’t preserve error.  All he said was “Your honor, this is getting a little inflammatory.”  Held, an incurable jury argument, doesn’t require preservation of error.  Even an instruction wouldn’t have cured it.  No harmful error analysis required; it was automatically harmful.

(6)   Holding, incurable reversible error occurs when an atty suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity.

(7)   the make up of the jury wasn’t important.  p. 444—“The important thing is that the atty who hade the intentional ethnic appeal thought it would have an impact on the jury.”  This looks like a subjective standard.  “ ethnic appeals destroys the social glue that binds society together.”

v)      Summary

(1)   Almost all improper jury arguments will be waived if not objected to

(2)   It is the atypical case where improper jury argument will constitute reversible error

(3)   Ethnic Boundaries

(a)    Do you take advantage of the law or show restraint?

d)      Jury Deliberations and the Verdict, p. 453

i)        Conduct of the jury during deliberations.  TRCP 226a

ii)       Applicable rules of Civil procedure.  282-289, 327

iii)     Applicable rule of evidence.  TRE 606(b)

iv)     Overview of Jury Deliberations

(1)   Jury retires to the jury room

(a)    The jury charge and written evidence (excluding depositions) are placed in the jury room for use during deliberations.  TRCP 281

(2)   Jury appoints a foreperson.  TRCP 280

(3)   The foreperson read the charge again to the jury

(4)   the jury deliberates in secret

(a)    Disagreement as to evidence.  TRCP 287

(b)   If deliberations are secret, what do you do if the jury flouts the instructions? no much.

(5)   The jury returns a verdict

(6)   The jury is discharged.  the jury is released from their oath of secrecy.

v)      Instructions during deliberations

(1)   The jury may request additional instructions.  TRCP 286

(2)   the judge may provide additional written instruction to the jurors

(a)    Parties may contest a supplemental instruction by following the rules concerning objection to charges.  TRCP 285 and 286 contemplates that the jury will return to the courtroom to submit written question to the judge and that any written instruction will be read to the jurors by the judge in open court.

(i)      Open court.  the instruction wasn’t read in open court, but no one objected to there’s no harm; it was waived. Garz v. San Anotion light, p. 480

vi)     Dynamite Charges”/verdict urging instruction/Allen Charge

(1)   EX:  jury deadlocked 8 to 4.  Ins co refuses to pay death benefits, saying the death was caused by suicide, not by accident.  Jury deliberates for 4 hours saying they are deadlocked with no likelihood of change.  Judge gave then oral instructions to return a verdict.  (It should have been written, but the instruction was reconstructed.) The jury recesses for the weekend, then come back on Monday and reach a verdict against the Insurance Company.  Ins. Co appeals saying the instruction was improper and coercive. Stevens v. Travelers Ins. Co. p. 481

(2)   General Rule: verdict-urging instructions ARE allowable, if not coercive.

(3)   TEST for determining the permissibility of the charge

(a)    Break up the instruction into different parts to see if it is coercive. 

(b)   If a part is found to be coercive, then look at the charge as a whole to decide whether it was coercive. 

(4)   Here, the court broke it down into 5 different parts and found only one part to be coercive:  “ending the case will meet with the approval of the court.”  This was coercive, because it’s saying that the judge will approve of you coming to a verdict no matter what.  The other parts were found not to be coercive.  The first was that “the case was tried by able lawyers,”  second part was found to be coercive, third, “keep an open mind, don’t forsake your personal convictions,” fourth, “there is cost to taxpayers if the case must be retried”; fifth, “you have to deliberate more before I decide you are deadlocked.”

(5)   Thus, Allen charges are permissible in civil cases.  But the analysis will look at each part to determine whether it’s coercive and if a particular part is found to be coercive, then they look at the whole to determine whether it’s coercive.

e)      Juror Misconduct TRCP 327

i)        The juror’s code of conduct is governed by the instruction given to the jury before the voir dire, before trial, during the trial, and in the charge.  TRCP 226a.

(1)   Juror misconduct outside the formal deliberation process [not secret]

(2)   Juror misconduct during the formal deliberation process [secret]

ii)       Does the law allow inquiry into jury misconduct in these situations?

(1)   Pharo v. Chambers County, p. 459

(a)    This is a wrongful death case filed against the County.  One juror was the girlfriend of one of the Sheriff’s.  This was not discovered during void dire.  The question is whether Mr. Collier was “connected with an interested party connected with the case.”  Trial judge denies P’s motion for new trial, so the implicit finding is that he’s not connected. This is an abuse of discretion.  He might be generally connected with the case.  This is a fact intensive inquiry. 

(b)   Bailiff Issue:  a juror commented on the aged condition of the jury card.  The bailiff said “If I were to change them I would have to raise taxes.”  Every one laughed.  But the bailiff should not have made any comment t to the jury.  TRCP 283.  But after a harmless error analysis, court finds no reversible error.

(2)   Golden Eagle Archery v. Jackson, p. 464

(a)    Jackson is P, Golden Eagle is D.  W bought a Golden Eagle bow for her H.  He is injured.  On appeal, P claims that Maxwell, the juror . . ..

(b)   Jurors Cline and Lynch are giving evidence of her misconduct during deliberations:  she voices her opinion that “he probably already got a big settlement, too many lawsuits being filed,” speculating outside the evidence that P was drinking when it occurred. 

(c)    Held, TRE 606b, and TRCP 327b are constitutional.  The only evidence that can come in is “outside influence.”  That is, “outside influence” must originate from an outside source, not the jury itself.  The RULE contemplates this testimony only for someone from outside the jury pool influencing them.

(d)   Frederick’s testimony that he had a conversation with Maxwell during a trial break by a water fountain:  was this outside or inside? Majority says “deliberations” means what we think of as deliberations, [not a conversation by a water fountain] so this testimony could come in.  The jury instruction tells the jurors not to lie, and this testimony suggests that Maxwell lied during void dire.  Court says we can considered Fredericks testimony, but it’s not clear that she was lying. 

(e)    But this shows that if conduct is happening outside the formal jury deliberations process, then it an come in as evidence.

(f)     POLICY REASONS:  p. 467: first, deliberations must be kept private to encourage jurors to discuss the cases, 2,  to prevent post trial tampering, 3.  4, the trial must have an end. 

iii)     Summary of jury misconduct

(1)   Juror misconduct must be raised in a motion for new trial, support by affidavit.

(2)   In most cases, to obtain a new trial the movant must prove the following:

(a)    misconduct occurred

(b)   misconduct was material

(c)    based on the entire record, the misconduct probably resulted in injury. TRCP 327(a).

(i)      To show probably injury, the record must indicate the misconduct probably caused the juror to vote differently on a question vital to the judgment.

(d)   Direct contact with juror cases

(i)      Proof of injury is met by showing misconduct.  CN: so you cannot talk to the juror’s, don’t offer them a quarter to buy a coke.

11)  JURY VERDICTS, p. Dors. p. 486-512

a)      TRCP 290-295

b)      “A verdict is a written declaration by a jury of its decision, comprehending the whole or all of the issues submitted to the jury.” TRCP 290

c)      General v. Special Verdicts

i)        There are no general verdicts in Texas.  It would just say “this is the party that should win.”

(1)   Even though the charge is in broad form.

d)      RULE 292—Method of arriving at a verdict

i)        A jury is comprised of 12 persons in a district court

(1)   the verdict must be rendered by at least 10 of the 12 jurors.

(2)   The same 10 members of the jury must concur as to each and every “material” answer make.  Cf. McCauley v. Charter Ok, p. 492 (in workers comp suit, reversible error was committed when the court received verdict in which the same 10 jurors who found accident was work-related did not find any resulting incapacity, even though different 10 jurors found incapacity).

ii)       If as many as 3 jurors of a 12 person jury die or are “disabled” the remaining 9 of the original 12 can render a verdict.  TRCP 292.

(1)   “Disabled” means mentally or physically incapable of serving as a juror.

(a)    Construed narrowly.  McDaniel v. Yarborough, 898 sw2d 251 (tex. 1995)(juror who was temporarily detained due to flooding was not “disabled.”)

iii)     What happens if the trial judge dismisses a juror from the case who is not “disabled” and proceeds with an 11 person jury over the object of a party?  The constitutional right to trial by jury is violated.

iv)     How can this problem be solved?

(1)   Alternate jurors to maintain a 12 person jury. Does the “original” jurors include alternates? yes.

(2)   Parties agree to try case with less than 12 jurors. 

v)      Delivery and receipt of verdict

(1)   Jury notifies bailiff that a verdict has been reached and the verdict is delivered to the court; the judge reads the verdict in open court; the atty may request a poll of the jury and should ask the court for permissions to examine the verdict for errors; the atty’s should object to any inconsistencies or omissions in the verdict before the jury is discharged.  If there are no objections, the court will receive the verdict and have it filed with the papers of the court.  The court then discharges the jury.  Once the jury is discharged, they cannot be recalled for further deliberations.  the court will subsequently enter a judgment. this doesn’t happen right away

vi)     Polling the jury  TRCP 294

(1)   Always poll the jury when the verdict is less than unanimous to make sure the same jurors agree on their answer to each question.

(2)   Polling procedure

(a)    The court should read each question and corresponding answer, call the name of each juror, and ask if that is the verdict of that juror. TRCP 294.

(b)   Purpose of the poll.  give each juror a last chance to answer.

e)      The Duty to Receive the Verdict and Render Judgment, p. 486.  TRCP 292

f)        The Partial Verdict; Consequences of Failure to Insist on a Complete Verdict, p. 493

i)        An atty should object when the jury returns an incomplete verdict and request that the jury be instructed to continue deliberating.

ii)       Appellate test for determining whether a judgment based on an incomplete verdict must be reversed:  are the unanswered questions “material”?  Did the party seeking reversal of the judgment preserve error?

iii)     Fleet v Fleet, p. 493-494

(1)   the trial court may not render judgment based on the incomplete verdict.

(2)   Whether the trial judge properly rendered judgment based on an incomplete verdict?

(3)   The special issue 1 was broken down into a bunch of questions as to particular breaches.  But special issue 7 dealt with the timing.

(4)   Jury only answered five of the questions A-K.  The ones that they did return were good for Plaintiff.  But the dates found in special issue 7 would bar the breach of fiduciary duty claims.  So do we have an incomplete verdict?  P objects before they enter the verdict, because this judgment will not help the P.  The court overruled the objection. the judge does not tell the jury to re-deliberate.

(5)   On appeal P says, we objected and we’re entitled to the jury findings on these material issues.  What is the test for reversing an incomplete verdict?

(6)   TEST: The judgment cannot be based on a verdict containing unanswered issues, supported by some evidence, unless the issues are immaterial.  Issues are only immaterial if the answer to them can be found elsewhere in the charge or if they cannot alter the effect of the verdict.

(7)   So we have to look not only to whether the unanswered questions are material, but also [whether they can be found elsewhere]

(8)   Special issues cases pose problems for getting.... you could have a broad form questions, saying “did X breach its fiduciary duty, and if so, when?”  Then you would have probably gotten a better answer.

iv)     Elliot v. Hamilton, p. 494

(1)   jury makes findings on primary negligence and damages, but made no findings as to contributory negligence.  Judge ordered a mistrial.  Held, this was correct because of the contrary findings on the contributory negligence issue.  Because it may have altered the effect of the verdict.  In a contributory negligence case, it can make a big difference.  But for contributory negligence, the defendant has the burden of proof, so they need to get findings on their defense.  But what if no objection had been made . . .?

v)      Garcia v. Spohn Health System, p. 496

(1)   There were 4 different Ds; jury says that Hospital is not liable.  Court rendered mistrial as to the other 3 defendants, but dismisses the hospital claim

vi)     Garza

(1)   trial court properly rendered judgment on the partial verdict, because the jury entered “nothing” in the damages case.

vii)   Conflicting findings, p. 501.  TRCP 295

(1)   An atty should object when the jury returns an inconsistent verdict and request that the jury be instructed to continue deliberating.

(2)   Deadline to preserve error

(3)   What is the appellate test for determining whether a judgment based on an inconsistent verdict must be reversed?

(4)   Little Rock Furniture v. Dunn (1949), p. 505

(a)    This is a special issue case.  This was a rear-end collision, personal injury case.  On special issue 15, jury answered he “failed to keep a proper lookout”  “proper lookout” was defined to be negligent.

(b)   Special issue 16, the jury answers that Dunn’s failure to keep a proper look out was not negligent.  The verdict was brought in.  The court read the answer, asking them repeatedly both sides said there was no conflict.  No one objected.  Court entered the verdict, and discharged the jury.  Later, they find the conflict, and filed a motion for mistrial.

(c)    But special issue 17, which asked whether Dunn’s failure to keep a proper look out was the proximate cause, was left blank.

(d)   The first step: is there any reasonably possible way to reconcile the conflict?


(i)      1.  look at the entire charge and all the verdict to see whether a conflict exists.  The appellate court will try to find any reasonable basis upon which to reconcile the jury findings

(ii)    2. If a conflict exists that cannot be reconciled, the court must evaluate whether the conflict in the verdict is fatal to the judgment.  The test is, whether taking the finding alone in the one instance, the judgment should be entered in favor of the P, and taking it alone in the other, judgment should be entered in favor of the D.

(f)     How does this work on a practical level?

(i)      p. 505: look at special issue 16, and the rest of the verdict.  Exclude special issues 15.  Then all we have is a verdict that says he was [not] negligent.

(ii)    Now look only at 15 and exclude 16.  Does this entitle the D to a verdict?  We have a finding the he was not negligent,...

(iii)   so applying this test D would not have been entitled to a judgment, because there was no finding of proximate cause.  The D is trying to prove contributory negligence, there was no finding for .... but on appeal we deem a finding on appeal that there wasn’t proximate cause.

(g)    The test: omitting the conflicting finding, would we have to render a judgment for the D?  Then the look to the other side, and if you have to render judgment for the P, then you have an irreconcilable conflict.

(5)   First Nat’l Bank of Lubbock is a straightforward case for finding an irreconcilable conflict.

(6)   Little Rock.  if Special issue no. 16 had been answered yes, then it would be an irreconcilable conflict because contributory negligence was a complete bar to recovery.

12)  Bench Trials

a)      Factors to consider in choosing between jury trial and bench trial

i)        type of case; type of judge–is he or she someone who will be favorable to your case; cost considerations–a jury trial requires more time; time to trial; the non jury docket, may get to have it tried sooner; talk to your client about this issue.

b)      The conduct of the bench trial

i)        no voir dire; no jury charge; no verdict

ii)       The order of presenting evidence is generally the same

(1)   Make objections to inadmissible evidence and offers of proof

(2)   Realize the judge may be more lax in letting in inadmissible evidence because she knows not to rely on that evidence in making her findings.

c)      Order of proceedings

i)        Brief opening statement

ii)       invocation of the “Rule”

iii)     Evidence presentation

iv)     Motions for judgment

(1)   The trial court may grant a D’s motion for judgment after the a P rests if the court is un-persuaded by the plaintiff’s evidence

v)      Announcement of decision

(1)   open court

(2)   the case is taken under advisement

(3)   Brief written decision is provided to parties

vi)     The court will enter a written judgment

d)      Findings of fact and conclusions of law

i)        TRCP 296-299a, 306c; TRAP 26.1(a)(4)

ii)       Findings of fact in a bench trial serve the same function as the jury’s answers to jury questions;  Conclusions of law are the statement of legal principles the court applied to the facts of the case;  Findings of fact are more important for appellate purposes

iii)     Same documents, separate headings

(1)   Findings of fact should be a in a separate document from the judgment.  TRCP 299a.

iv)     Findings of fact

(1)   Compare FRCP 52 v. TRCP 296, 297.  Unlike the federal system, the trial court is not required to make express findings unless a party complies with a technical request procedure after judgment is entered.  The effect on appeal is that judge is deemed to have found facts consistent with the judgment.

(2)   What explains the difference between the two systems?

(a)    The Texas system is more efficient, and the state court has fewer resources.

(3)   The effect of a lack of express findings of fact is that the appellate court is required to presume that the trial court’s implied findings were all in accordance with and in support of its judgment, and the judgment must be affirmed on appeal if there is evidence of probative force to support it upon any theory.  [TRCP 299].  Dors, p. 515.  EX: fraud, negligence, breach of contract.. 

(4)   Losing party:  The losing party should request findings of fact; otherwise, all findings will be deemed in favor of the judgment.

(5)   Winning Party: The winning party will likely prepare the findings of fact for the court even though it didn’t make the request.  Why?  to protect its judgment to the greatest extent possible.  In drafting the findings of fact, the party should include a finding on each element of the cause of action or defense.

v)      Omitting Findings and Deemed Rulings – TRCP 299

(1)   EX:  P asserted two grounds of recovery during the trial: fraud and negligence.  Judgment is entered in favor of P.  The D requests findings of fact.  Then P puts together detailed findings of fact on each element of both the fraud and negligence claims.  The court files its findings of fact.  There are findings on two elements of the negligence claim and no findings on the fraud claim.  Neither party asks for addition findings.  Then D appeals.  Can the appellate court “presume” the omitted findings support the judgment?

(2)   Analyze fraud and negligence claims separately.

(a)    Fraud.  TRCP 299 says “ the judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact.”  So the fraud claim can’t stand.

(b)   Negligence. only if the element is “unrequested” will it be presumed.  Here they have been requested.

(c)    look first as to whether there are any findings.  If no findings, then no presumption.  If findings on some elements but not others, it will depend on whether they were requested.

vi)     Appellate review when findings are requested but not filed

(1)   If error is curable, many appellate courts will abate the appeal and order the trial judge to make findings; other appellate courts will review the error under a harmless error analysis.  Did the trial court’s failure to make findings probably prevent the appellant from properly presenting their case to the court of appeals?  TRAP 44.1(a)(2).

(a)    Harm shown in a complicated case with disputed facts and two or more grounds for recovery or defense.  See Larry Smith v. Weber, 110 s.w.3d 611.

(b)   Harm not shown because only one defense was raised and plead by the evidence. 

(2)   Time tables and Deadlines

(a)    Deadline to file request is 20 days from the date of judgment

(b)   Later steps are calculated based on the date of the prior “triggering act.”

(c)    See Handout #2

(3)   Effect of request for findings of fact on appellate timetables

(a)    A timely request for findings of fact extends the time to perfect the appeal when (1) the findings and conclusions are requested by TRCP 296; or (2) the trial court conducts an evidentiary hearing and the findings can properly be considered by the appellate court. TRAP 26.1(a)(4); IKB Induse v. ProLine Corp, Dors, p. 521. You have the right to make a request of these findings after a bench trial.

(4)   See Questions in handout

(a)    Jack sues Marry.

(b)   Past due.  court should make it findings 20 days after the request but if they don’t then

(c)    b. give the final deadline for past due findings. Then it’s 40 days from the time of the original request.

13)  Directed Verdicts and Post Trial Motions, Chapter 8,

a)      Special purpose motions

i)        Motion for directed Verdicts; Motion for JNOV; mot for judgment on the verdict; mot for new trial; mot to modify the judgment; mot for judgment nunc pro tunc.

b)      Zones of evidence

i)        Gonzalez suppl. p. 40, p. 623, O’Connor’s

(1)   “no evidence” zone 1.

(a)    CN: if D moves for no evidence summary judgment (Motion for a directed verdict is the same thing just at a different stage in the process).

(2)   “insufficient evidence” zone 2

(3)   “Some evidence” (jury finding will be upheld) zone 3

(4)   “Against the great weight and preponderance”  zone 4

(5)   Conclusive evidence. zone 5

ii)       In which zones will the granting of a directed verdict be proper?  Zone 5.

c)      Challenges to factual sufficiency point

i)        Insufficient evidence/great weight complaints.  Mot for new trial. TRCP 324(b)(2)-(b)(3)

(1)   Remand complaints

d)      Challenges to legal sufficiency point

i)        No evidence/conclusive evidence complaints

(1)   mot for directed verdict

(2)   mot for JNOV

(3)   objection to submission of a jury question

(a)    rendition;

(4)   mot for new trial

(a)    remand complaints

e)      Directed (instructed) verdict. TRCP 268

i)        Form:  oral or in writing

ii)       State Specific grounds

(1)   No evidence/ conclusive evidence

(2)   be specific and state each and every ground possible

iii)     Reopening evidence. trial court has discretion to reopen the evidence and enable the non-moving party to supply evidence on the element in question.  TRCP 270.

iv)     Timing

(1)   After P restsàonly D may move for a directed verdict

(2)   After D restsàEither party may move for a directed verdict

(3)   After the close of all evidenceàEither party may move for a directed verdict

(4)   After the jury has been unable to reach a verdict.  Can the parties move for a directed verdict after the jury has been unable to reach a verdict?  yes.

v)      Re-urging motion for Directed Verdict

(1)   To preserve error, always re-urge your motion for directed verdict after the close of all the evidence!

(2)   Tex. Steel Co. v. Douglas, Dors., p. 592

(a)    “a D by electing not to stand on its motion for an instructed verdict made after P had introduced its evidence and rested its case, and by proceeding with the introduction of its own evidence, waives its motion for an instructed verdict.”

(b)   Is all lost if you fail to re-urge the motion?  no; just do a motion JNOV, and then, if the judge thinks that there’s a valid legal sufficiency issue, then you can get . . .in this case the facts suggest there was no motion for JNOV, only a motion for instructed verdict.

vi)     Appellate review

(1)   Motion for directed verdict denied

(a)    In reviewing the denial of a directed verdict, the appellate court is limited to the specific grounds stated in the motion.  Reed v. Wormley, Dors. 590.

(b)   Legal sufficiency point.  The appellate court must view the evidence in the light most favorable to the jury’s verdict, considering only the evidence and inferences that support the finding and disregarding all other evidence and inferences.  Davis v. San Antonio, 752 sw 2d 518 (Tex.

(2)   Motion for directed verdict granted

(a)    If the trial court grants a directed verdict on an erroneous ground, the directed verdicts can still be sustained on appeal if it is supported by another ground asserted in the motion.  Prather v. McNally.

(b)   Legal sufficiency point.  the appellate court must consider all the evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences.  S.v. v V. R.V.

vii)   No evidence” review cases

(1)   “reasonable minds” testKindred v. Con/Chem, p. 549.  P alleged defective primer caught on fired and cause injury.  Trial court entered a directed verdict.  P appeals that he did present some evidence, so that it should have gone to the jury. 

(a)    “Reasonable minds” test for whether a directed verdict should have been granted.  p. 551.  “Test for the application of this no evidence/scintilla rule is that if reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no evidence.  However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of vital fact.”

(b)   Here, it looks like the primer could have been made by a less flammable substance].  Because there was a safe alternative, this could have lead the jury to conclude there was a design defect.

(c)     Today, law is changed.  Now to win a design defect, you have to show that the new design is both technologically and economically feasible.” p. 557. 

(d)   What was the evidence of causation?  how you why know this primer caused the fire?  there were no witnesses that could say the primer was the cause of the fire.  But the jury could infer it because it was a highly flammable’

(2)   “Equal inferences” rule.  Wal-mart v. Gonzalez, (5-4) p. 552

(a)    P slips on macaroni salad, and wins a jury verdict.  WM says she had “no evidence” on constructive knowledge, that it was legally insufficient to go to the jury. 

(i)      The evidence that the macaroni was there long enough to charge them with constructive knowledge: Circumstantial evidence.  the best evidence to show this would be if another customer had seen it, say, two hours earlier.  But we don’t have this evidence here.  All we have is circumstantial evidence, that the macaroni had dirt and foot prints and cart tracks in it.  This leads us to believe it may have been there a long time.  But we can also infer that it was spilled within a short time, and because of the high traffic []. juror’s can rely on circumstantial evidence.  Held, she had to prove that it was more likely that they had constructive knowledge. “Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding.” If circumstantial evidence can produce two equal inferences both of which are equally likely that it is the opposite, then there is insufficient evidence.

(b)   Does this really fit into the “no evidence test”?  what’s vital fact here?  the time it was on the floor.  could reasonable minds differ based on the circumstantial evidence? yes.  But SCt says no. 

(c)    Warning!  What kind of cases does this apply to?  not just slip and fall.  In Lazano, p. 558, the court revisited this rule and seems to reject it.  It holds that it is for the jury to decide which is the more reasonable inference, subject to the judge’s legal sufficiency review. “IF circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court.”  Id. at 563.  So the equal interference rule is in question. [this equal inferences rule may be dead.]

(d)   But even if you looked at all the evidence, is it factually sufficient?

(3)   “inference piling” approach

(4)   “mere scintilla” rule

(5)   What’s the best test for “no evidence” review?

(a)    As a matter of law review

(i)      The court should direct a verdict when reasonable minds can draw only one conclusion from the evidence.  If there is any conflicting, probative evidence, the trial court must submit the issue to the jury.

f)        Motion for Judgment on the Verdict, TRCP 300; Dors. p. 599-603; O’C. p. 590-91.

i)        Winning party.

(1)   Winning party should file a motion to render judgment. TRCP 305.  The proposed judgment should be attached to the motion and include all relief requested.  A motion for judgment on the verdict is an affirmation that the jury findings are supported by the evidence.  CN: even though the judge is required to render the verdict, the winning party who needs to initiate the process.  Does moving for judgment waive your right to appeal?

ii)       Losing party verdicts. partially successful verdict

(1)   Question:  can the losing party or partially successful party ask the court to render judgment on the verdict without losing the right to challenge the judgment on appeal?

(2)   Answer: yes, so long as the Fojtik disclaimer is included in the motion for judgment: 1) the party disagrees with the content and result of the proposed judgment; 2) agrees only to the form of the proposed judgment; 3) plans to challenge the judgment on appeal.  O’C, p. 590

(a)    Litton, p. 600—Losing party moved for judgment on the verdict, but then say that there is no evidence.  “Litton could not on appeal take a position inconsistent with the judgment.”  When you move for judgment on the verdict you must be sure not to move for things inconsistent from those on appeal.

(b)   Fojtik—D says we want to move the appellate process along.  We don’t agree with the findings but we want to agree to the form. “We’re only agreeing to the form of the proposed judgment.”  When moving for judgment on the verdict and there are things in the verdict you disagree with, you want to include this type of disclaimer, so that on  appeal it won’t seems as though you waived it.

(c)    Green, p. 603.  Do not request anything in the motion for judgment that is inconsistent with the argument to be made on appeal.  Green did not state that he agreed only as to form. held, he did not waive his appeal because the motion was not inconsistent with a position taken below... that the expert witnesses testimony was wrongly excluded.

g)      Motions for JNOV and Motion to disregard Jury findings TRCP 301, 305.

i)        O’Connor’s p. 591-2.

ii)       Distinction.  The motion for JNOV asked the court to disregard all the jury findings and render a judgment contrary to those jury findings; the motion to disregard asks the trial court to disregard only some of the jury answers and render judgment on the remaining ones.  Both motions are used to address “no evidence” and “as a matter of law” points

iii)     A proper motion to disregard jury findings must:

(1)   (1) designate the finding or findings sought to be disregarded;

(2)   (2) specify the reason for disregarding the disputed findings; and

(3)   (3) contain a request that judgment be entered upon the remaining findings after the designated erroneous findings have been disregarded.

(4)   Dupree v. Piggly Wiggly, 542 S.W.2d 822 (), motion for judgment on the verdict was sufficient to disregard jury findings because motion pointed out the specific reason the particular jury findings should be disregarded.

iv)     Motions for JNOV

(1)   Form

(a)    In writing

(b)   refer to Rule 301

(c)    notice to other side

(d)   state grounds

(e)    deadlines

(i)      File within 30 days of judgment

(ii)    Motion must be ruled on within 75 days of judgment

(iii)   Movant will want to secure a ruling through a written order.  If granted, the court should enter a final judgment.

(2)   Grounds for JNOV

(a)    No evidence

(b)   conclusive evidence

(c)    legal principal prevents the party from prevailing on its claim or defense

(d)   The jury’s answers are immaterial.  Spencer v. Eagle Star Inc., 876 SW2d 154 (Tex. 1994)(court may disregard immaterial jury’s findings on a question of law).  A question is immaterial when it should not have been submitted, or is rendered immaterial based on other findings.

(i)      Dittberner, p. 594—D sold equipment to P in exchange for a promissory note.  P is suing D alleging fraudulent inducement to enter the contract.  D is suing P for payment of the notes.  The fraud claim is being used by P in two ways: 1) as an affirmative defense against having to pay the note, 2) for getting damages from D for buying the property.  At the close of evidence, D moves for a directed verdict.  P doesn’t disputed that there’s a note out there that he’s obligated to pay. 

(ii)    What happened re special issues on fraud?  Jury found that there was fraud involved.  D objects to the charge because not all elements of fraud are included.  So we have an incomplete charge going to the verdict.  Generally, it looks like the jury would render for P.  When can we move for jnov? when there is no evidence or conclusive evidence.  not the case here.

(iii)   The elements of fraud were not legal issues, but were they made immaterial by other findings?  Under the “immaterial” ground you could argue that jnov was proper.  Held, this is a motion for jnov.

(e)    Could it have been waived, and what would be the implication of this?  Had this issue been raised before the trial court, they could have gone either way.  On appeal, we would have deemed findings in favor of the judgment.  Who’s entitled to judgment? P hasn’t secured findings on all the elements of his fraud claim. So, regardless what we call it, P messed up, because he did get findings on his fraud case of action

(i)      p. 597. P failed to establish as a matter of law or secure factual findings that D knew his representation was false at the time he made it [the note], which foreclosed his cause of action for damages.  So D is entitled to judgment.

(f)     Rule of thumb.  A jnov is appropriate when a directed verdict would have been proper.

(g)    Practical solution:  If a Dittberner situation comes up, consider moving for judgment on the verdict, and, in the alternative, for JNOV.

v)      Appellate review

(1)   Standard of review.  The appellate court will consider only the evidence and reasonable inferences supporting the jury’s answers, disregarding all contrary evidence and inferences.

(2)   The appellate court will apply the same  “no evidence” review it does to the directed verdict. The jnov will be reversed when there is more than a scintilla of evidence to support the jury’s finding.

(3)   CN: if you move for directed verdict during trial, the other party has the opportunity to cure the error.  If you wait then they can’t reopen the evidence.

14)  Judgments TRCP 300

i)        Definition.  The judgment is the official document announcing the resolution of the issues in the lawsuit.

ii)       Requirements.

(1)   Contain the full names of the parties as stated in the pleadings.  TRCP 306.

(2)   Conform to the pleadings.  TRCP 301.

(3)   Definite and certain.  to give notice to the parties as to how much they owe, etc.

(4)   The trial court must have subject matter jx and personal jx over the parties or the judgment is void.

(5)   the trial judge must be qualified by law to sit in the court.

iii)     A judgment goes through 3 stages

(1)   rendition

(a)    a judgment is rendered when the court makes an official announcement -- either orally in open court or by written memorandum filed with the clerk – of its decision on the matter submitted for the adjudication.

(2)   signing.  the signing of the judgment by the judge begins the appellate deadlines.

(3)   Entry.  A judgment is entered when the clerk of the court performs the ministerial act of entering the judgment in the minutes of the court.

iv)     Form of the Judgment

(1)   Recitals.  The recital paragraphs chronologically sketch the proceedings in the case.

(a)    Appearance and announcements of parties and attorneys return of the verdict.

(b)   Return of the verdict.

(2)   Decretals.  The decretal paragraphs specifically award or deny relief for or against particular parties.  It is very important that the decretal paragraphs be clear, certain, and specific!

(3)   Signature by judge, The line for the judge’s signature and the date.

(4)   Signature of the attys. The losing party will approve as to form only.

v)      Money judgments

(1)   Actual damages.  The dollar amount of actual damages awarded to each party.

(2)   Exemplary damages. The dollar among of exemplary damages

(3)   Prejudgment interest.  The dollar amount of the prejudgment interest.

(4)   Attorney’s fees.  The amount of the attorney’s fees award.

(5)   Post judgment interest. The rate of post judgment interest.

(6)   Costs.  A statement that costs are to be taxed against a certain party.

(7)   “Litigations costs.” A statement that litigation costs are to be awarded against a certain party.

vi)     Take nothing judgments.

vii)   Prejudgment interest.

(1)   Definition.  Compensation allowed by law as additional damages for lost use of money due as damages during the time period between accrual of the claim and the date of judgment. CN: it’s often in the judge’s discretion to award it, and generally happens only in certain cases.

(2)   Source.  Statutory and common law.  See Finance Code § 304 concerning prejudgment interest on specified tort and contract claims. Prejudgment interest on wrongful death, personal injury, and property damages cases are specifically allowed by statute.  See Fin. Code § 304. 102.

viii)  Simple interest.

(1)   Accrual.  Prejudgment interest starts to accrue (1) 180 days after the date D received written notice of the claim or (2) the date the suit in which judgment is rendered was filed, whichever was earlier.  It stops accruing the day before judgment is signed.

(2)   Rate.  The prime rate as published by the Federal Reserve Bank of New York, with a floor of 5% and a ceiling of 15%.

ix)     Post-judgment interest

(1)   Definition.  Compensation for a judgment creditor’s lost opportunity to invest the money awarded as damages at trial.

(2)   Source.  All money judgments must specify the post judgment interest rate applicable to that judgment.  Fin. Code 304.001.

(3)   Accrual.  Starts to accrue on the date the judgment is signed and ends on the date the judgment is satisfied.

(4)   Compound interest.

(5)   Rate. For most cases, post judgment interest rate is the prime rate as published by the Federal Reserve Bank of New York, with a floor of 5% and a ceiling of 15%.

x)      Costs

(1)   Definition.  Expenses incurred in prosecution of defending a suit that are made recoverably by statute or contract.

(a)    examples.  Filing fees, court reported fees, depositions transcript fees, subpoena/citation fees.  See generally CPRC § 31.007.

(2)   General Rule—Successful party recovers. The general rule is that the successful party to a suit has the right to recover from the adverse party all recoverable costs that the party incurred.  TRCP 131.

(3)   Exception to general rule – Good cause. TRCP 141.

(4)   Motion to adjudicate costs.

(5)   Court adjudicates costs.

(6)   Successful party itemizes costs.

(7)   Bill of Costs.  The clerk will prepare a bill of costs and send to the party taxed with the costs.

xi)     Attorney’s fees

(1)   Rule.  Each party must pay his own atty’s fees, unless a statute or contract says otherwise.

(a)    Example of statute.  A party that prevails on a claim for breach of contract and receives damage is entitled to attorney’s fees.  CPRC § 38.001(8).

(2)   Segregation.  Segregating recoverable atty’s fees from unrecoverable atty’s fees.

(a)    Jarod Gonzales  (winning party) v. Honda Co (losing party)–breach of contract.

(b)   Including an award of atty’s fees through appellate process. “IT IS FURTHER ORDER THAT Jarod Gonzalez recover from Honda atty’s fees in the sum of 19k for services rendered through the trial of this case. In the event of an appeal by Honda to the court of appeals, if the appeal is unsuccessful, Jarod Gonz will be entitled to $6k as a reasonable attorney’s fee, in the event of appeal by Honda to the Supreme Court of Texas, if the appeal is unsuccessful, Jarod Gonz will be entitled to an additional $5k.”

xii)   Award of litigation costs when judgment is less favorable than rejected settlement offer.  Litigation costs. 

(1)   TRCP 167.4–if you make a misjudgment as to the value of your case you’ll have to pay, RULE 167. 167.4—if a settlement offer is rejected, and the award is ...167.4b—what is “significantly less favorable.” 

(a)    Less than 80% of the offer. Don’t need to know this stuff for the test.

(b)   “offer of settlement state and rule. Ch 42 of CPRC and TRCP 167

(c)    settlement offer procedure. 167.2

(d)   awarding litigation cots TRCP .4

(e)    litigation costs defined

(2)   Notice of judgment TRCP 306a.  the clerk of the trial court is required to give the parties immediate notice by first class mail that the court signed a judgment.  The notice must provide (1) that a judgment was signed and (2) the date it was signed.

(a)    If a copy of the judgment is not provided, the atty should request a copy of the judgment.

(b)   The date the judgment is signed begins the appellate deadline.

15)  Motions for New Trial, p. 603-631; TRCP 320-324, 329b

a)      A. The Nature and Purpose of the motion.

i)        Purpose.  The MNT asks the trial court to reconsider and rectify error in the court’s ruling or jury findings.

ii)       Reasons to file.  3 reasons to file MNT

(1)   give the trial court a final opportunity to correct errors that occurred during the trial by granting a new trial

(2)   preserve error for appeal

(3)   extend trial court’s plenary power and appellate deadlines

iii)     Specificity.  The MNT must be in writing and must specifically point to the alleged error.  TRCP 321, 322.

iv)     Grounds.  The trial court has considerable discretion in granting a MNT.  TRCP 320 states that a MNT may be granted “for good cause, on motion or on the court’s own motion.”

v)      Complaints that must be asserted in a MNT to preserve error are listed in TRCP 324(b).

(1)   Complaints on which evidence must be heard

(a)    Jury misconduct

(b)   newly discovered evidence

(c)    failure to set aside a default judgment.

(2)   Insufficient evidence complaint

(3)   Against the great weight and preponderance of the evidence complaint

(4)   Damages are inadequate or excessive

(5)   Incurable jury argument if not otherwise ruled on by the court.

vi)     Filing fee. You must pay a filing fee at the time the motion for new trial is filed.

vii)   Deadline to file.  A motion for new trial must be filed within 30 days of the date the judgment was signed.  TRCP 329b(a)

viii)  MNT that requires sworn evidence.

(1)   Examples: juror misconduct and newly acquired evidence challenged

(2)   Attach affidavits to motion

(3)   Ask court to set motion for evidentiary hearing

(4)   Introduce evidence at hearing.

ix)     Jackson v. Van Winkle, p.

b)      3.  New Trial Because of Newly Discovered Evidence, p. 609

(1)   Jackson v. Van Winkle, p. 609

(a)    Parties owned various tracts of land in a subdivision.  Plaintiff’s want an easement from Ds.  This case was tried to a judge.

(b)   Ps file a motion to introduce new evidence, and the court denies this.  Did the trial court abuse its discretion in denying the motion for new trial? no. There was lack of due diligence.

(c)    TEST for introducing newly discovered evidence:

(i)      Admissible and competent evidence has come to his knowledge after the trial,

(ii)     Late discovery of evidence was not owning to the want of due diligence on the movant’s part

(iii)   The evidence is not merely cumulative of the evidence and

(iv)  The evidence is material and would probably produce a different result at a new trial.

(d)   Abuse of discretion standard.  Whether a motion for new trial on newly discovered is within the sound discretion of the trial court.  This was also a bench trial not a jury trial. So the judge knows what he would do with it if it were a new trial.  Here, it was discovered after trial, but P didn’t exercise due diligence.  But would it have produced a new result at trial? the language was ambiguous, and

ii)       5. New Trial Because of Factual Issues, p. 624

(1)   Insufficient Evidence; Great Weight and Preponderance.  TRCP 324(b)(3)

(a)    Zones of evidence:

     1                 2                      3                                         4              5

no evid.            Insuf.                some                agst great w’t                conclusive ev

(b)   Cooper v. Argonaut ins. Co., p.

(i)      Worker’s comp case. 72 year old P, lifts a 55 gallon drum, feels a sharp pain in his groin, his back and hernia; injured on the job.  Jury finds against him, that it was confined to the hernia. 

(ii)    Held, this was clearly wrong.  Court looks to his health prior to the injury.  He had family and doctors testify.  He was operated on, walked bent over, with a limp, had sprained ligaments.  Defendant’s doctor Knight found no evidence of injury, only that he had a preexisting arthritic, he had a good range of motion.

(iii)   Held, the overwhelming evidence is that the jury was wrong.

(iv)  What is the legal standard: whether the verdict was manifestly wrong. In reviewing a factual sufficiency challenge, the court must examine all of the evidence, and having considered and weighed all of the evidence, the court may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

(c)    Eris v. Phares, (p. 63 Suppl)

(i)      Three part test of common law marriage:

1.      agreement to be married;  holding themselves out as being married; cohabiting.

(ii)    Legal sufficiency standard:  look only to the evidence that favors the verdict.

(iii)   Factual sufficiency standard:  look to all the evidence and reverse the judgment only if the jury’s finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

(iv)  Eris must have preserved error; she could have moved to a directed verdict on grounds there’s no evidence on these grounds or JNOV.

(v)    Element 1

1.      Legal sufficiency: held, there is more than a scintilla of evidence on the agreement to be married.

2.      Factual sufficiency: held, you can infer an agreement, she was living there all the time, she acted like his wife, but it was not completely against the great weight of the evidence

(vi)  Element 3 “held out”

1.      Legal sufficiency: yes

2.      Factual insufficiency: no.  The warranty deed said she was single.  She never introduces him as her husband and when they went to get a loan, Eris say she was single.  From a legal sufficiency standard, all you look at is the evidence to support the jury verdict.  But when you look at factual sufficiency, you look to all the evidence.

(vii) What if when the case is remanded the jury comes back with the same finding? If we get past zone 1, then it has to go to the jury, because there’s more than a scintilla.  So if the jury came back with the same verdict, then theoretically they could send it back for a new trial.

(viii)                       Zone 2 is insufficient. 

(ix)  Cooper and Eris are in difference Zones?  Cooper is in zone 4, and Eris is in Zone 2.  It’s a burden of proof issue, the only distinction is who has the burden of proof.

(x)    In Eris, the movant is the alleged W,  but H has the burden of proof.

(xi)  p. 623, O’Connor’s—factual v. legal sufficiency

(2)   Excessive or inadequate damages; remittitur, p. 627

(a)    TRCP 320, 324(b)(4)

(b)   Remittitur.  The procedural process by which an excessive verdict of the jury is reduced.

(c)    Steps in the remittitur process

(i)      Step 1.  The party contesting the excess damages award files a motion for remitter. The motion can be a stand alone document or include as part of a motion for new trial.

(ii)    Step 2.  The court enters an order which “suggests” a remittitur.  The P is then given the choice between remitting part of the damages or trying the case again.

(iii)   Step 3.  The P decides whether to remit part of the judgment.  If so, it will file with the trial court a written remitter.  TRCP 315.  The remittitur must be notarized!  The court will then reform the judgment and affirm it in accordance with the remittitur.

(iv)  Excessive damages

1.      Questions.  What the standard the trial court and appellate courts should utilized in determined whether to “suggest” a remittitur?

a.       Larson v. Cactus Utility, p.

i.         Jury found damages of $800k.  Upon motion for new trial, trial court ordered a remittitur of $350k.

ii.       RULE: A court of appeals, in ordering a remittitur, should do so on an insufficiency of the evidence, and not an abuse of discretion standard.

iii.      Trial courts and courts of appeals should be subject to the same standard because no court is free to substitute its judgment for that of the jury.  A court of appeals should uphold a trial court remittitur only when the evidence is factually insufficient to support the verdict.

2.      Factual insufficiency.  The court must examine all the evidence to determine if there is sufficient evidence to support the damages award, remitting only if some portion is so factually insufficient or against the great weight and preponderance of the evidence as to be manifestly unjust.






329b(a), (d), (g) TRAP 26.1(a)

329b(c) overrule by operat’n of law

TRAP 26.1(a)(1),(2)

329b(e) 75+30


0              plen’ry pwr            30                                       75                   90                                  105











3/3                             4/4                                         5/17/94

















0                                 30th  day              35th day                        75th day                                   105th day

J                                                                                                 From date J                    (30th day since timely MNT

Signed                                                                                    signed  (MNT                       overruled by opp. Of law)

                                                                                                 overruled by                        TRCP 329b(e)

                P MNT                   P’s Amended                             opp. Of law)

                timely                     MNT filed                                TRCP 329b(c)

                filed (no ruling)   (nullity since



Hint for Exam: pg 607 in O’Conner’s


Appellate Practice


16)  Intro: The appellate court system in Texas.  Appellate practice in Texas is governed by Texas Rules of Appellate Procedure.  Local rules of intermediate appellate court will also apply.  We need not study the local rules, but you will need to consult them in practice before you file you appeal!  14 intermediate appellate courts;  Appeal from trial court to intermediate appellate court;

i)        Notice of appeal must be filed with trial court clerk.  TRAP 25.1(a)

ii)       A copy of the notice of appeal must be filed with the appellate court clerk. TRAP 25.1(e).

b)      Texas Supreme Court, highest civil court in Texas.

c)      Appeal from intermediate appellate court to Texas Supreme Court.  Petition for review is the procedure used to try and alter the court of appeals’ judgment TRAP ____.

d)      Steps in the appellate process.

i)        Appeal to intermediate appellate court

(1)   Notice of appeal

(2)   pre-petition and filing of the record

(3)   brief the court

(4)   oral argument

(5)   rendering of judgment

(6)   motion for rehearing

(7)   En banc consideration

ii)       Appeal to Texas Supreme Court

(1)   Petition for review

(2)   Brief the court

(3)   oral argument

(4)   rendering of judgment

(5)   motion for rehearing.

e)      Key terms

i)        Appeal to appellate court:  Appellant/appellee

ii)       Petition for review in Supreme Court:  Petitioner/respondent

iii)     Mandamus proceeding:  relator.....

iv)     Docket statement

v)      the record

vi)     Clerks’ record

vii)   Reporter’s record.

f)        Computing time . TRAP 4.  In general, same rule as TRCP 4.

g)      Representation by counsel.  TRAP 6.

i)        Lead counsel

ii)       Withdrawal of Counsel

h)      Filing of Documents – TRAP 9.2

i)        Mailing—filed when deposited in the mail so long as received within 10 days after the filing deadline. (some courts also allow fax by the local rule, E-filing by local rule).

i)        Serving documents

i)        The filing party must serve a copy on all parties to the proceeding. TRAP 9.5.

ii)       Methods of service: mail, fax, personal, commercial delivery service,

iii)     Certificate of service.

j)        Frivolous Appeals TRAP 45

i)        Bridges v. Robinson, Dors, 723

(1)   Rob was shopping at Dillards, an altercation with the manager occurred.  Police hog-tie him and he dies.  There are allegations of police misconduct.  Case is filed in state court.

(2)   Procedurally.  Originally filed in ’95, removed to federal court in ’97.  July ’97, city plead to jx for lack of actual notice.  This plead to jx was denied by trial court.  This issue was appealed, where the appellate court stated that the facts were highly disputed.  City says they would appeal the denial on a certain time but failed to do so.  The City atty, says “We will appeal this case into the millennium.”  City filed a MSJ on grounds of official immunity.  Defendant’s appeal the official immunity issue.

(3)   What gives Ds the authority to file this appeal?  CPRC 51.0185 – appeal from an interlocutory ruling.

(4)   Deputy’s conduct:  attys completely ignore the damaging testimony from the other side.  So they couldn’t win a denial of summary judgment.  Also, their atty cited a dissenting opinion as controlling authority.

(5)   It’s strange Dillard’s appeals.

(6)   City of Houston’s appeal is also frivolous because of the comment by the city atty.  The prior decision stated that the issues were hotly disputed, in which case summary judgment wasn’t proper, and the assistance atty’s claim to “keep this can in appeal until the millennium.”

(7)   Appellate court grants motion for damages under Rule 45, because the filing of this appeal was frivolous.  Rule 45 provides that “if the court of appeals determines that an appeal is frivolous, it may award each prevailing party just damages.” p. 728.  Appellants must pay appellee’s and atty’s $10k.

(8)   What’s the legal standard for determining whether the case is frivolous or if damages would be appropriate?  it has to be egregious.  Sanctions are not appropriate if you make a good faith effort in the law.  But where an atty couldn’t have any reasonable expectation of prevailing . . .  Look at it from the reasonable appellant’s point of view at the time the appeal is filed.


i)        33.1, 44.1

ii)       CPRC 51.014, suppl, p. 79

iii)     Question:  When can a trial court’s ruling, order, decision, or judgment be reviewed by an appellate court?

iv)     General rule:  “Final judgments” are appealable.  A final judgment is one that disposes of all parties and all issues.  “Interlocutory orders” are not immediately appealable.  An interlocutory order is one that does not dispose of all the parties and all of the claims in the case.

v)      Rationale.  Preserve appellate court resources;  avoid delay; avoid increased cost to litigants.

vi)     Exceptions

(1)   Interlocutory appeal.  By statute, some types of interlocutory orders are immediately appealable.

(2)   Mandamus.  Some types of interlocutory orders may be challenged immediately in the appellate courts through mandamus.

(3)   Permitted interlocutory appeals. What are the situations where a party can immediately appeal an interlocutory order?

(a)    CPRC 51.014–gives the exceptions.

(4)   Mandamus is another method of challenging an interlocutory ruling.

(5)   51.003(c)—deals with appealing venue.

(6)   CPRC 171.098 – appealing refuse to compel arbitration.

vii)   Deadline to file interlocutory appeal.  Interlocutory appeals are accelerated appeals TRAP 28.1.

(1)   In an accelerated appeal, the notice of appeal must be filed within 20 days of the date the interlocutory 26.1(b)—20 days.

viii)  Types of interlocutory appeals – CPRC 51.014(a)

(1)   Order appoint a receiver 1 and 2

(2)   orders on class certification 3

(3)   orders granting or denying a temporary injunction. 4

(4)   denial of summary judgment on assertion of immunity by govt officer 5

(5)   denial of summary judgment on asserting of free speech 6

(6)   orders on special appearances 7.

(7)   grant or denial or govt entity’s plea to the jx 8.

(8)   expert reports under health liability claims 9 and 10.

(9)   right to immediately appeal an order allowing or denying intervention or joinder in the context of an attempt to achieve proper venue. CPRC 15.003(c)

(10)                       Right to immediately appeal an order denying a motion got compel arbitration.  CPRC 171.098

(11)                       Appealable order by agreed motion.  CRPC 51.014(d)-(f).

(12)                       Notice of appeal—file immediately

(13)                       agreed motion to trial court

(14)                       order granting motion

(15)                       application to appellate court must be made not later than 10 days after the trial court signs the written order allowing the interlocutory appeal.

(a)    CN:  In this situation, you file a premature notice of appeal in the district court because this becomes timely once the trial court grants the motion.  Because your 20 day deadline runs from the day the interlocutory order is signed.

ix)     Stay of trial court proceedings pending appeal  51.014(b) and (c)

(1)   Automatic stay of trial.  The appeal of the interlocutory order automatically stays the commencement of the trial.

(a)    Denial of MSJ by the media D

(2)   Automatic stay of all proceedings in the trial court.  The  appeal of the interlocutory order automatically stays all the proceedings in the trial court level,

(a)    Class action.  (a)(3)

(3)   Automatic stay of commencement of trial or all trial court proceedings after motion denied and deadlines met.

(a)    Denial of an official immunity summary judgment, motion a special appearance or a government’s plea to jx.  51.014(c). CN: these make sense with respect to immunity issues because, the whole point of immunity is that the don’t have to litigate.

(4)   No stay

(a)    No temporary injunction.  TRAP 29.5

x)      Texas Supreme Court review of Interlocutory orders

(1)   general rule—Supreme Court does NOT have jx to review opinions of the courts of appeals based on interlocutory orders. Govt code 22.222(b).

(2)   Exceptions

(a)    Dissent was filed in the court of appeals

(b)   one court of appeals disagrees with another specific statute grants the Texas Supreme Court jx.  govt. 22.225(d).

(c)    Texas Supreme Court has jx to determine whether the court of appeals correctly decided its jx over an interlocutory appeal.

xi)     Discussion problems p. 664

(1)   a. no

(2)   b. no, not a final judgment because it doesn’t dispose of all issues, but the trial court can sever.

(3)   c. skip

(4)   d. yes,

(5)   e. yes, if only d

(6)   f. no

(7)   g. no, but you could try for mandamus.

xii)   Cases

(1)   Denial of summary judgment on assertion of immunity by govt officer.  Bridges v. Robinson, p. 723

(2)   Temporary injunction

(a)    Qwest Communications v. ATT&T, p. 665

(i)      This court have jx to determine whether the court of appeals correctly decided its jx over an interlocutory appeal.  CRPC 51.014(a) states that “ a person may appeal from an interlocutory order that grants or refuses a temporary injunction.” The procedural requirements may render the trial court’s order void but they do not change the order’s character and function and render them unappealable.  Held, even though the form of the order was not like a temporary injunction, the judge made an order which restrained Qwest from doing something.  The court of appeals needs to review, but it can say that it is void because it didn’t meet the requirements.

(b)   CRCP 51.014(a) states “a person may appeal from an interlocutory order that grants or refuses a temporary injunction.”  A temporary injunction is still temporary even though it lasts for 3 years; it need not be for an indefinite period.

(3)   Class certification

(a)    De los santos, p. 669

(i)      RULE: CPRC 51.014(3)  “A person may appeal from an interlocutory order that certifies or refuses to certify a class in a suit brought under  42 of TRCP.”

(ii)    trial court originally certified the class.  The Gonzalez plaintiff’s appeal the changing from the opt-out to a mandatory class.  Court of appeals held that this merely enlarged the size of the existing opt-out class.  Held, changing a class from opt-out to mandatory does not simply enlarge its membership, it alters the fundamental nature of the class.  Therefore, it is appealable.

(iii)   CN:  51.014—today, the trial court should have stayed the action

(4)   Orders concerning joinder for venue purposes.

(a)    Example:  Mary and Jane sue Merck in Bexar County for injuries alleged sustained from defective breast implants.  May and Jane are residents of Bexar County.  They had the breast implants surgery in Bexar county.  Venue is proper as to Mary and Kane in Bexar county.

(b)   Donna and Kathy intervene in the breast implant lawsuit in Bexar county.

(c)    CN: 15.003—


(d)   Dayco v. Ebrahim, p. 672

(i)      F

l)        What is a “Final judgment?” Dors. 675-703

i)        CN: The plenary power of the trial court ends after 30 days of the trial.  The timeline for appealing will start when the final judgment is signed.

ii)       “One final judgment” rule.  In most proceedings, only one final and appealable judgment can be rendered.  The appellant can only appeal from that one final judgment.

iii)     Multiple “Final” judgments:  Probate; Receivership.

iv)     Questions:

(1)   How do you spot a final judgment in Texas?

(2)   Why does this matter?  because you can’t appeal an interlocutory judgment.

(3)   Are there problems in determining whether an order or judgment is a final judgment?

(4)   Are there easy solutions to these problems? not really, though they’ve made efforts

(5)   Alternative approaches:

(6)   EX:  Two parties, on claim case.  P v. D.  P answers one claim.  D moves for summary judgment on the claim, Order granting summary judgment to D.  Is the order a final judgment?  Yes, the order disposes of the only claim in the case and so is a final judgment.  The order does not need to state that it is a “final judgment.”

v)      Multiple claims or multiple parties.  A series of partial orders disposing of all claims. The order that addresses the last remaining party of claim is the final order for appeal purposes.  The interlocutory orders merge into the final judgment when the last remaining claim is resolved.

vi)     A Series of Orders Disposing of all claims, p. 675

(1)   Webb v. Jorns, p.

(a)    P sued D1, D2, D3, and D4.  Court dismissed D1.  Later, the court rendered a directed verdict in favor of D2, D3, D4.

(b)   I: Whether P timely appealed the dismissal of D1?

(c)    R: Since the trial court did not sever the cause against D1 from the rest of the case, the interlocutory judgment did not become a final judgment until it was merged into the final judgment with the court rendered disposing of the whole case.

(d)   COA said that P didn’t’ appeal within 30 days of D1’s dismissal

(e)    Sct held, not; final judgment came only when the other Ds were dismissed.  And D1’s dismissal merged into the entire judgment.

(2)   Runnymede, p. 677

(a)    P v. D1, D2.  First, court enters a judgment dismissing D1, and then another dismissing D2. Later, the court issued an order stating that it was the “final judgment” dismissing of all of them.  Held, the final judgment was when D2 was dismissed.  Not the later order claiming to be the “final judgment.”

vii)   Overlooked claims and the Mother Hubbard Clause, p. 678

(1)   Summary judgment not purporting to be final, p.

(a)    Mahan v. Bost, p. 679

(i)      Summary judgment was granted with respect to only 1 of 11 Ds.  P appeals.  D files motion to dismiss because summary judgment with respect to him was not a final judgment.

(ii)    R:  this summary judgment order is interlocutory and not a final judgment.  No orders severance has been entered to sever D. Therefore, this is not appealable.  Therefore, appeal dismissed.

(iii)   CN: P v. D1 . . . D11.  D1 moves for summary judgment which is granted.  P appeals, even though there are still 10 Ds in the case. Held, the grant of sum judgment to D1 is not a final judgment and not appealable.

(b)   What can P do?  Move for a severance

(i)      P v. D1, D2.  Judgment granted to D1 after D1 files a MSJ.  P1’s action against D1 is severed from the case.  The judgment against D1 becomes a final appealable judgment. The severance creates an entirely new case.  Once the severance occurs, P can appeal.

(2)   The Aldridge Presumption and the Birth of Mother Hubbard, p. 680

(a)    “The Mother Hubbard Clause”:  A recitation that all relief not expressly granted is denied.

(b)   ISD v. Aldrige, p. 681—

(i)      I: Determine the appealability of an order explicitly disposing of one of several claims, but not all of the claims.

(ii)    Procedural history. School district sues Aldrige for breach of k. Aldrige claims he was the agent for King O the Hill, so he indemnifies KOH.  Trial court grants SJ for breach of K against Aldrige, and states that “this case can proceed on the sole remaining issue.”

(iii)   COA says this is not a final judgment because the judgment didn’t mention the third party claim brought by Aldrige, nor did it mention the third party defendant KOH.

(iv)  Test: SCT TEST:  When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

(v)    ExceptionDavis v. McCray Refrigerator:  It will not be presumed that a judgment dismissing a P’s suit on nonsuit, plea to jx, plea in abatement, for want of prosecution, etc., also disposes of the issues in an independent cross-action.

(vi)  Application:  The presumption was that the judgment against Aldrige also disposed of his third party claim against KOH by implication.  Since there was no contrary indication on the record, the presumption decided the issue and that the judgment was final for purposes of appeal.

(3)   Partial Summary Judgments: Current Law, p. 682

(a)    Lehmann v. Har-con Corp., p. 682

(i)      RULE:  In cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.

(ii)    Harris v. Harbour.

1.      Breach of K and torts claim arising out of conveyance of real property.  Harris sues 5 Ds.  D1, D2, D3, D4, D5.  Early on they nonsuit D1 and D2. Is this interlocutory or final? Interlocutory, so they can’t appeal.  D5 files a MSJ, which is granted. It states that “P takes nothing with respect to Harbour Title Co.”  It also contains a Mother Hubbard clause. This is clear with respect to Harbour.  Does the Mother Hubbard clause only apply to Harbour or the whole case?

2.      Does the inclusion of the MH clause make it a final judgment? What about the claim against Rice?  This is set for trial, which eventually leads to a default judgment.  Then they appeal.  But the COA states that it was not a timely under Mafrige.

3.      There was dicta in the Mafrige that the MH clause makes it appealable.  But then atty’s started putting the Mother Hubbard clause into every order, including partial summary judgments.

(iii)   Held, the MH clause doesn’t make it final, because it’s inherently ambiguous.  see p. 694  So Ps were right not to appeal when the MSJ was granted.

Determining when a judgment or order is “final” for purposes of appeal, p. 603 O’Connor’s


(iv)  You have to ask three questions

1.      Question 1.  Was the judgment rendered after a conventional trial on the merits?

Yes.  Aldridge presumption applies.  When the Aldridge presumption applies, the judgment is treated as final for purposes of the appeal. 

a.       When the trial court renders a judgment after a conventional trial on the merits and there is no order for separate trials, the judgment is presumed to dispose of all issues and parties.  The judgment is treated as a final for purposes of appeal.

i.         Benefits to include a MH clause in a judgment after a conventional trial.

(v)    The courts are split on what “disposition” of the claim that is not dealt with should be presumed.  Some courts presume the claim has been rejected -- especially when there is a Mother Hubbard clause, while others presume the claim has been disposed of for purposes of appeal only. 


                  No.  The judgment is not presumed to be final and appealable. 

1.      Summary judgments

2.      Default judgments

3.      Order of Dismissal on a nonsuit

4.      Order of dismissal on a plea to the jurisdiction

5.      Order of dismissal on a plea in abatement

6.      Order of dismissal for want of prosecution

7.      The inclusion in the order of language that “all relief requested not herein granted is denied” does not indicate that the order is final for purposes of appeal. 

b.      When the trial court renders a judgment or issues an order disposing of the case at any time other than after a conventional trial on the merits, the judgment is not presumed to be final and appealable.  In these cases, the party seeking to appeal must ascertain whether the language of the judgment and the record as a whole reflect the court’s  .........


2.      Question 2.  Does the record reflect that the judgment disposes of all parties and claims?

a.       The order that addresses the last remaining party or claim is the final order for appeal purposes.

A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language.  Even if the judgment recites that it is partial or refers only to some of the parties or claims, it is final if the judgment disposes of the last remaining claims and parties.

o       When, after dismissing all of the claims in the case but one, the court signs an order resolving the last claim, that order is the final judgment. 


3.      Question 3.  Does the language of the judgment make it final?

If the language of the judgment expressly disposes of all claims and all parties, the judgment is final even if it should have been interlocutory.

Unequivocal expression in the words of the order itself.

Mother Hubbard clause won’t work

A D moves for summary judgment on only one of four claims asserted by the P, but the trial court renders judgment that the P take nothing on all claims asserted, the judgment is final for purposes of appeal --- erroneous, but final.

“This judgment finally disposes of all parties and all claims is appealable” is an example of the type of language that would leave no doubt that the trial court intends for the judgment to be final.   

Appellate courts are split on what to do when the language of the judgment shows it is final, but the judgment is erroneous because the trial court improperly disposed of claims without a proper motion.  Some courts reverse and remand the entire case; others address the merits of matters properly decided and reverse and remand the claims that were not properly decided.  The latter procedure was approved by a Supreme Court decision prior to LehmannLehmann doesn’t speak to the issue. 


a.       unequivocal intent in the language of the order to make the judgment  final

i.         Magic words

ii.       MH clause won’t work

b.      EX: 

i.         P v D – 4 claims answered by P

ii.       D moves from SJ on one claim

iii.      trial court rendered judgment that P take nothing on all claims answered against D.  It’s erroneous, but it’s final for appellate purposes, to get it reversed.  There’s some confusion as to what the appellate court should do in these circumstances:  remand the whole case, or review as though it meant to dispose of only that one claim. As an atty, you want to scrutinize these orders. 

(vi)            In Harris the atty’s just got a post-card notice, but you want to get the actual [judgment].  How do the federal rules treat this issue? In order to be an appealable final judgment, you need a separate document that says “Final Judgment” on it, listing when each claim had been dismissed.  And until you get this separate document, you can’t appeal.  This makes it easier on the attys.


m)    Appellate jurisdiction

i)        General final judgment requirement

ii)       Preserve of the right to appeal

(1)   Cecil v. Smith, p. 713— This MNT was overruled by operation of law, not specifically ruled on by the court.  Held, this is a preservation of error.

(a)    MNT legal and factual sufficiency

(b)   MNT overruled by operation of law

(c)    Legal and factual sufficiency Points were preserved for appeal.  TRAP  33.1(b).  “In a civil case, the overruling by operation of law, preserves for appellate review . . .”  But it also says “unless taking evidence was necessary to properly present the complaint in the trial court.”

(2)   Subject matter jurisdiction

(a)    Amount in controversy requirement.

(b)   General constitutional Grant, subject to limitations imposed by the legislation.

(i)      Constitutional Grant.  Art. V. § 6 of Texas Const.

(ii)    Limitation.  Amount in controversy must exceed $100. Govt code 22.220(a), CPRC 51.012.

(c)    Specific Statutory grant of Jx

(i)      Tune v. Texas DPS, p. 707—limitations to the jx of the appellate court?  yes, $100.  Under the Tex Const. appellate courts have general appellate jx over all cases “of which the District or county court have original or appellate jx, under such restriction and regulations as may be prescribed by law.”  This was a denial of a license case, so it’s hard to determine the value of it.  Generally citizens must pay 140 to get a license.  But what if the amount in controversy didn’t exceed 100?

(d)   “We look first to the Handgun act to see whether it contains specific grant of jx to the courts of appeals.  It doesn’t.”  sometimes an Act will specifically grant jx.  Here it didn’t.

(e)    If the intermediate appellate court does have jx, it can’t refuse to take a case, they are appealable as a matter of right.

iii)     Suspending enforcement of the judgment.

(a)     Enforcing the judgment [not on test.]

(i)       Writ of execution.  TRCP 622, 627-633.

1.        Command the sheriff to seize and sell, or deliver to the court, nonexempt property or the judgment debtor.

(ii)     Abstract the judgment.  Filed in the real property records of any county in which the judgnet debtor hold property.  It creates a lien on the property.

(iii)    Writ of garnishment.  TRCP 657-679.  Seeks to have third parties who hold property belonging to the judgment debtor turn that property over the the court.  Such as bank account.

(iv)   Turnover order. CRPC 31.002.  Used to reach property that cannot readily be attached or lieved on the ordinary legal process.  Judnet debtor requirement to turn property over to the sheriff or otherwise apply the property to the satisfaction of the judgment.

(b)   Just filing the notice of appeal will not prevent the judgment creditor from using these procedures.

(c)    Key points.  In general, an appeal does not suspend enforcement of judgment.  Generally the judgment debtor has the absolute right to supersede the judgment pending appeal.

(d)   Should the judgment debtor seek suspension of enforcement of the judgment?

(e)    As a judgment creditor, you may not mind the suspension of the judgment, because to supersede the judgment, they have to put up a bond, so if it’s affirmed, you have that money right there for you.

(f)     Methods of suspension.  TRAP 24.1(a)

(i)      written agreement

(ii)    supersedeas bonds

(iii)   deposit in lieu of bond—judgment debtor puts up his own cash.

(iv)  Alternative security

(g)    A supersedeas bond is a contract by which a surety obligates itself to pay a final judgment rendered against its principal.[see HANDOUT example}

(h)    Supersedeas accomplishes two things:

(i)      Assures the judgment creditor that it will be able to collect the judgment if the case is affirmed on appeal.

(ii)    Assures the judgment debtor that the judgment will not be enforced pending the appeal

(i)      Form Bond.  TRAP 24.1(b).

(j)     Amount of Bond, deposit, or security.

(i)      McDill Columbus Corp. v. University Woods Apts., 7 S.W.3d 923 (Tex. App., 2000)McDill, 7 SW3d 923 p. 719—McDill is the judgment debtor.  What should be the amount of security required here?—compensatory damages, $1.2 M.  But look also to the net worth of the judgment debtor.

(ii)    In order to stay enforcement of a judgment for the recovery of money pending appeal, the appellant must post security in at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.  The trial court may, after notice and hearing, order a lesser amount of security if it finds that posting a bond, deposit, or security as required by Tex. R. App. P. 24.2(a) will irreparably harm the judgment debtor, and that posting a bond, deposit, or security in a lesser amount will not substantially impair the judgment creditor's ability to recover under the judgment after all appellate remedies are exhausted. Tex. R. App. P. 24.2(b).   

(iii)   TRAP 24.2(a)

1.      Amount:  the sum of compensatory damages, interest for the estimated duration of the appeal, and costs.

2.      Cap—may not exceed the lesser of:

a.       50% of debtor’s net worth

b.      $25 M

3.      “Lesser amount” –judgment debtor will be caused substantial economic harm. 24.2(b).

(iv)  Motion to reduce security. 

(2)   Judgment affirmed on appeal

(a)    Court of appeals must render judgment against the surety on the supersedeas bond.  TRAP 43.5.

(b)   Appellant must perform the judgment

(c)    IF the appellant does not perform, the judgment creditor will sue the surety to collect on the supersedeas bond.

(3)   Judgment reversed on appeal.

(a)    The surety will be released from the supersedeas bond.

n)      Appellate timetables and Computing Deadlines, p. TRAP 4, 26.1

(1)   Once a final judgment or order has been signed, clerk must immediately give notice to the parties.  TRCP 306a(3).  But what if the clerk messes up and doesn’t send out the notice? 306a(4)(No notice of judgment), and TRAP 4.2a—can file a motion to extend post judgment deadlines, to get the deadline to begin the date they actually receive notice, not the judgment date.  306(a)(5)—if you didn’t receive notice within the 20 day period and you want the judge to say that the day you received notice was the date your 20 day period begins.

(2)   RULE: you will only be able to use this from the 21 to the 90th day after judgment.  If you get notice on the 91st day you can’t use this procedure. 

ii)       John v. Marshal Health Services  [see hand out]

iii)     0------20-----22[0]-----35[13]-----52[30]----93[71]----96[74]----97----112----127[105]

iv)     9/8    9/28    9/30           10/13         10/30    12/10        12/12    12/14   12/29   1/13

(1)   Judgment signed 9/8.  atty received notice on sept 30, which is 22 days after the judgment.  What if we received notice on the 20th day? you’re stuck with your original deadline and you won’t get your full 30 days.  on 10/13 a MNT was fled (35 days after).  On 12/10  MEPD (93), on 12/13

(2)   MEPD (“motion to extend post judgment deadlines”).  TRCP 306a(4). this is to get judge to realize that date of receipt should be date 0. This extends it to 90 days from the new day 0.

(3)   The actual deadline for the new MEPD is

(4)   ---------------0------13-----------------30--------71---74—75—90---105.

(5)   TRCP 306a(4) “If within 20 days after the judgment is signed, a party adversely affected by it has neither received the notice nor acquired actual knowledge of the order, then all periods . . shall begin on the date that such party received such notice.”  [this means that you no longer count from the date the judgment was signed, but from the date of actual notice.]

17)  Perfecting Appeal

a)      Notice of Appeal (NOA) (no cost bond requirement) TRAP 25.1(a).  To perfect an appeal, the appellant must file a notice of appeal with the trial court, meeting certain requirements.

b)      Docketing Statement.  Upon perfecting the appeal, the appellant must file a docketing statement in the court of appeals.

c)      NOA requirements – TRAP 25.1

i)        Written notice

ii)       where to file

(1)   trial court –original

(2)   court of appeals – copy

iii)     Service NOA on all parties to the judgment

iv)     Pay $125 filing fee to court of appeals

v)      Contents of notice.  TRAP 25.1(d).

vi)     Deadline to file NOA.  CN: to perfect appeal you must meet your 30 day deadline. Otherwise appellate court will dismiss for lack of jx.

vii)   Contents of notice.  TRAP 25.1(d)

(1)   Identity of the trial court and the style and cause number of the case in that court

(2)   The date of the trial court judgment or order being appealed

(3)   state that the party filing the notice desires to appeal

(4)   The identity of the court of appeals to which the appeal is being made

(5)   The name of each party filing the notice of appeal

(6)   Accelerated / Restricted appeal

(7)   Do not include all the error you are appealing!

(8)   The Notice need not list the dates of interlocutory order merged into the final judgment. [exam note: not necessary to memorize these five requirements.  But we do need to remember, is NOT to include in NOA a list of all the errors you think the trial court made.]  All the prior interlocutory orders are merged into the final one.

viii)  Deadlines

(1)   Accelerated—20 days after judgment or order is signed

(2)   Restricted – 6 months after judgment or order is signed

(3)   Normal – 30 days after judgment is signed

(4)   MNT/Motion to modify – 90 days after judgment is signed

(5)   14 day rule TRAP 26.1(d).

ix)     Extension of Time –TRAP 26.3

(1)   File NOA in trial court within 15 days after deadline

(2)   File motion to extend time to file NOA in appellate court within 15 days after deadline.

(a)    Give a reasonable explanation for late filing of appeal.  Courts are very liberal.  Even your own negligence can be forgiven, appellate courts will likely grant it.

x)      Prematurely filed notice of appeal – TRAP 27.1(a).  If you file your NOA a few days before the judgment is signed.

xi)     Mail box rule.

d)      Who must file a NOA?—“A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.”

i)        TRAP 25.1(c), you can’t just say, “the other side has appealed, so I can raise whatever issues I want, and ask the court for a more favorable judgment.”  You have to file your own appeal

ii)       Joint notice of appeal.

iii)     “A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.”  TRAP 25.1(c).  “The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.”  TRAP 25.1(c).

iv)     Appellee

(1)   Cross-points can be asserted without filing a NOA.

(a)    Cross-points in event of reversal.  Oak Park Townhouses, jury found for defendant on 4 grounds; trial court signed judgment for D on one ground which was reversed on appeal ;....

(2)   Remittitur.  EX: P wins a big judgment. D remits part of the judgment, but appeals.  P can’t rely on D filing a notice of appeal.

v)      Amending Notice of Appeal  TRAP 25.1(f)

(1)   Defects

(a)    Not all appellants named

(b)   wrong appellant named

(c)    wrong cause number

(2)   deadline to amend

(a)    without leave of court

(i)      before appellant files its brief

(ii)    motion to strike for cause

(b)   With leave of the court

(i)      after appellant files its brief

(c)    Courts are generally liberal in allowing amendment.

e)      Docketing statement. TRAP 32.  Provides the clerk of the court of appeals with info necessary to docket the case.  The docketing statement is not jxal but your case will likely be dismissed if it is not filed.  Each appellate court has a docketing statement form for you to use.

i)        Summary:  Know the steps that must be taken to perfect appeal

(1)   Know where to file the NOA

(2)   Know who must file the NOA

(3)   Know deadline for filing a NOA

(4)   Know what a docketing statement is and its purpose.

18)  The appellate record—TRAP 34.1

a)      There is only One appellate record, consists of:

i)        Clerk’s record TRAP 34.5:  The papers filed during the lawsuit; motion, order, jury charge, jury verdict, judgment; bound volume prepared by trial court clerk

ii)       Reporter’s record TRAP 34.6.  Written or electronically recorded record of the.....

b)      Clerk’s record

i)        Every appeal will have a clerk’s record.  Bare bones record is required.  TRAP 34.5(a)(1)-(11) lists mandatory contents.

ii)       Appellant prepares a request for preparation of the clerk’s record and designates the additional items to be included in the clerk’s record.  TRAP 34.5(b).

iii)     Appellant makes arrangement to pay for the clerk’s record.  If you don’t pay then there’s no obligation on the clerk to put it together.

iv)     File this request with your notice of appeal.  The deadline is not jxal.  35.4(b)(1).  You have to specifically request the documents you want included.  It’s very important to be specific.  TRAP 35.5(b)(2).

v)      If the clerk omits a requested item, prepare a request for a supplemental clerk’s record.  TRAP 34.5(c).

vi)     The appellee can also designate items to be included in the clerk’s record.  The cost for the additional items is charged to the appellant.  Cost of clerk’s record is based on the number of pages.  But if appellee includes all kinds of unnecessary items in the record, then the appellate court may have appellee pay for it.  TRAP 34.5(b)(3)

c)      Reporter’s record,

i)        Necessary in most appeals:

(1)   Challenge to sufficiency of evidence.  Rulings of evidence; rulings on motions after evidence hearing; challenge errors in the submission of the jury charge; challenge error in voir dire; challenge error in the jury arguments;

ii)       Not necessary in some appeals

(1)   Appeal summary judgment case; evidence will be in the clerks’ record.

iii)     Types of reporter’s record

(1)   Complete reporter’s record.  Complete transcription of all testimony, the objections, any offers of proof, and the exhibits. Downside, if you have a huge case with lots of testimony, it will be expensive.

(2)   Partial reporter’s record

(3)   Agreed reporters record

(4)   Agreed statement of the case.

iv)     Requesting a complete recorders record. TRAP 34.6(b)(1).  Written request to court reported for complete transcription of proceedings.  Designate exhibits to be included.  Make request prior to deadlines.

v)      Requesting a partial reporter’s record. TRAP 34.6(c) Designate a partial reporter’s record.  Compliance requires you to “Include in the request a statement of the issues to be presented on appeal.”  Request should be filed before the deadline for filing the notice of appeal.

(1)   Presumption—partial record

(a)    CMM Grain co, p. 747—Workers injury case.  Grain Co don’t want a judgment rendered in the full amount of the verdict.  They want to offset the amount judgment he received from insurance.  So they appeal, but just on this issue.  They requested only a partial record.  Their statement of issues was too general. 

(b)   In their notice of appeal, they asked only for the part of appeal ... They did not include in their request of the reporter’s record, “a statement of the issues presented on appeal.”  This is not a technical document.  The effect of not including a statement of the issues was fatal to their appeal. 

(c)    Presumption:  P. 748.  “If an appellant complies with Rule 34.6(c)(1) by including with the request for a partial reporter’s record a statement of point or issues to be presented on appeal, the reviewing court must “presume that the partial reporter’s record designated by the parties constitutes the entire record for the purposes of reviewing the sate points.”  TRAP 34.6(c)(4).  If, on the other hand, an appellant fails to comply with Rule 34.6(c), the contrary presumptions arises and the reviewing court must instead presume that the missing portions of the record do contain relevant evidence and that the omitted evidence supports the trial court’s judgment.” Failure to comply with Rule 34.6(c) was fatal to their appeal.

(d)   Purpose of the Rule: The purpose of the rule doesn’t seem to be served by strict construction of the rule.

(2)   Prather, p. 750.—Rule 34.6(c) provides appellee with early notice of (1) the issues on appeal, and (2) the record submitted by the appellant.  Thus, if the appellee concludes that there is something in the record that the appellee does consider relevant to the appeal, as the appellant has framed the issues on appeal, the apellee considers relevant to the issues which have been raised. If, after receiving such notice, the appellee does not designate additional material, an appellate court may safely presume that both parties agree that the court has been provided with the record necessary to determine the issues which have been raised.”

(3)   SEE example.  Be specific about the issues.  This will give rise to the presumption, stating when the trial court erred.  The statement of issues doesn’t have to be included in this...include a statement of the issues.

vi)     Agreed record TRAP 34.2

(1)   Stipulation

(2)   Designate clerks record

(3)   Request for preparation of reporter’s record.

vii)   Deadlines for filing record on appellate court—60 days from judgment signed.  TRAP 35.1

(1)   The filing of the record in a timely fashion is the court reporter and the clerk’s responsibility (not your responsibility to get it in on time).

(2)   The appellate court clerk will make sure the record is filed

(3)   You should monitor the filing of the record as well.

19)  [MISSed CLASS “briefing the court I” in court]


i)        Contents of the brief

(1)   Identity of the parties

(2)   Table of contents and index of authorities

(3)   Statement of the case

(a)    limit the statement of the case to about half a page.  Lang v. Harwood, p. 753(statement of the nature and result of the suit was 6 pages). 

(4)   Statement of Issues or Points of Error

(5)   Summary of the argument

(6)   Argument

(7)   Prayer for relief

(8)   Appendix

(a)    Multifarious point of error.  Ozuna v. Dyer

(b)     The Rules used to be very strict in stating your point of error.  You had to state who, what, where, and why.  A point of error is multifarious if it embraces more than one specific ground of error, or if it attacks several distinct and separate rulings of the trial court.  If multifarious, then you waive the point of error.  This is old law. 

(c)    Failure to brief and argue an issue constitutes a waiver of the point.

(9)   Malooly v. Napier, p. 756

(a)    Malooly bros were suing for damages, asserting their CPA didn’t figure out that employees were embezzling funds.  The CPA file fore summary judgment, asserting a statute of limitations defense.  There was also a release issue. 

(b)   first affidavit of the president, stated he knew of the embezzlement on Aug 1966.  Suit was filed in Aug 31 1968. The court grants the summary judgment, without stating why.  Then P asks for a new trial.  President says he made a mistake in his first affidavit and that he discovered the embezzlement in Dec 1966. 

(c)    Second affidavit says he found out about the embezzlement on Dec 5, 1966.  Court denies the MNT, this doesn’t fall into the “newly discovered evidence” exception.  P’s appeal under two points of error:

(d)   First, error in failure to grant a MNT.  But this is not a good point of error because mistake by a party not induced by the opposing party is no reason for granting a new trial, and he knew it at the time he made the first motion.  second,  the trial court errored in granting the SJ on the release.  He can’t win here because the trial court didn’t state that he based it on anything and the appellate court will presumed that the court based it on the SoL.

(e)    What they should have said:  should have said:  “the trial court erred in granting the motion for summary judgment.”

(f)     Today, you don’t have to use “point of errors”; you can use ‘issues”, he could have said the “The issue is: did the trial court err in granting summary judgment to Ds?”  or “the issue: is did the trial court err in granting SJ because the release didn’t apply;”  if you raise it you have to argue and brief it though.

(g)    What if you really want to catch the judge’s attention?  How would you set this up? Try this:  a “deep” issue:  “Malooly brothers sued two CPA’s for failure to discover embezzlement of funds....

ii)       Contents of appellee’s brief: Reply points and cross points.—RULE 38.2

(1)   In JNOV, raise cross points or you waive them.  Jackson v. Ewton, p. 759

(a)    F:  rear end collision.  Ewton is P; Jackson as D.  Jury verdict:  Ewton was negligence; Jackson was also negligent.  Contributory negligence was a complete bar to recovery.  Ewton files for a motion notwithstanding the verdict and a motion to disregard Special issue 17 (proximate cause).  Judge grants, so Ewton wins.  Jackson appeals saying there was evidence that Ewton’s negligence was the proximate cause of the collision.

(b)   Ewton asserts reply points, or response issues, which reply to Jackson’s argument.  But Ewton does not assert cross points.  The Rule says you have to assert cross points.  COA sides with Jackson.  If Ewton had asserted the cross points,

(c)    RULE 38.2b1—failure to bring forward crosspoints waives the complaint.

(d)   He could have made a factual sufficiency argument, because then the appellate court will look at all the evidence. Legal sufficiency is just looking at the facts in the light most favorable.

(e)    So Ewton should have filed factual sufficiency cross points (but don’t you have to file a MNT, or your waive your point?  Do you? no, because at the trial court level Ewton won, so they don’t need to move for a new trial when arguing the factual sufficiency argument.)

(f)     In situations when you have a JNOV granted and you’re the appellee, if there’s a reason to prevent the COA you have to raise them as cross points or you waive them.

(2)   Dean v. Lafayette, p.

(a)    condo owners are suing their condo Board.  Trial court renders judgment on ground that the declarations were ratified.  Board wins.  P appeals, saying we didn’t ratify the declaration.  Board says, they were ratified, but they also decide to file a cross point, saying “well, even if you don’t accept the argument on the response issue, this is an alternate grounds for the judgment.”

(b)   First, do they have to file a notice of appeal? no, because it is not seeking a more favorable, i.e., to alter the court’s judgment.

(c)     p. 764 –If he hadn’t raised this issue, could he have raised it laters? “In fact, an appellee who was satisfied with the trial court’s judgment, but who had alternative grounds for affirming the judgment in its favor, could wait and raise those issues for the first time in a motion for rehearing, if the appellate court had reversed the trial court’s judgment.”

iii)     SEE  BRIEF Gonzales sent out.

(1)   Winners (NEC) file two briefs, both as an appellant, seeking a more favorable judgment, but also as appellee in response.  But they also file cross points.  So they also raise factual sufficiency points, “the great weight and preponderance shows no liability.”  Otherwise it would be reversed and rendered.

iv)     Summary:

(1)   The appellant should attach each ground that supports the ruling or judgment.  Malooly.

(2)   The Appellee must perfect is own appeal if it seeks a more favorable judgment than the one obtained in the trial court .  It may then file its own appellant brief.  Stevens.

(3)   The appellee must file cross points when JNOV bas been granted to it or it risks waiver.  Jackson

(4)   The appellee may, but it not required to, assert cross point which, if sustained, would result in the same judgment or a less favorable judgment than that obtained in the trial court.  Lafayette Place

b)      Notice of Submission

i)        Clerk’s notice of submission

(1)   The clerk will send the atty’s a notice at least 21 days before date the case is set for argument for submission without argument.  TRAP 39.9

(a)    With arguments – TRAP 39.9(a) or On briefs.—TRAP 39.9

(2)   Oral argument

(a)    Appellant opens and closes.  TRAP 39.3

(b)   Single parties – one atty for each party preferred. TRAP 39.4

(c)    Multiple parties – Each side will divide up the time allotted for argument among the parties on that side . TRAP 39.4.

(d)   Time for oral argument varies, depends on the court.

(3)   Tips for oral argument

(a)    Presume judges have read your brief

(b)   provide the court with a roadmap

(c)    focus on a few major points

(d)   questions are your friends!

(e)    Identification of parties, don’t use “appellee” and “appellant”.

(f)     more cases are lost on oral argument than won on oral argument! 

ii)       Submission to panel/opinion

(1)   Submission to panel

(a)    3 justices panel

(b)   conference after submission

(c)    opinion drafted

(2)   The opinion

(a)    The opinion of the court of appeals is the document that contains the reasons that supports the court’s judgment.  The opinion should be distinguished from the judgment which is the pronouncement of the court’s disposition.

iii)     Types of opinions

(1)   Opinion: signed, majority, concurring, dissenting.  Creating a new rule of law, or modifying an existing rule.

(2)   Memorandum opinion: settled law, per curiam.

iv)     Judgment

(1)   The judgment is the final decree of the appellate court.  It acts upon a lower court’s judgment by affirming, reversing, vacating, or modifying that the judgment or by directing whatever action is necessary.  It is a short document that tells the trial court and the parties the result of the appeal.  The judgment also assesses the costs of the appeal against the appropriate party, usually the losing party.

(2)   Types of judgments—TRAP 43

(a)    Affirm

(i)      affirm and render in part

(ii)    affirm and remand in part

(iii)   modify and affirm.

(b)   Reverse [See O’Connor’s p. 623 for preserving error]

(i)      reverse and render – in general, an appellant who appeal on the basis of the legal insufficiency of the evidence is entitled to rendition when his “no evidence “ point is sustained.

(ii)    Reverse and remand --- In general, an appellant who appeal on the basis of the factual sufficiency of the evidence is entitled to remand for new trial when his “factual insufficiency’ point is sustained. [error pres. by MNT]

(c)    Vacate and dismiss

(i)      when trial court did not have jx to hear the case, the appellate court vacate the judgment and dismisses the case.

(d)   Dismiss the appeal

(i)      Failure to comply with appellate rules

(ii)    want of prosecution

(iii)   appellate court does not have jx.

(3)   Distribution of opinion and judgment

(a)    The clerk will distribute the opinion and judgment to attys.  TRAP 48.

v)      Restricted appeals

(1)   Accelerated appeals

(a)    accelerated = interlocutory.  TRAP 28

(i)      NOA – 20 days after order is signed,  TRAP 26.1(b)

(ii)    Record – 10 days after NOA filed.  TRAP 35.1

(iii)   Sworn copies in lieu of record. TRAP 28.3

(iv)  Appellant brief – 20 days after record filed.  TRAP 38.6

(v)    Appellee brief – 20 days after appellant’s brief.  TRAP 38.6

(2)   Restricted appeals, When would you use these?  when a party was not present, such as when a default judgment.  The problem with filing an appeal is that you’re probably passed your deadline before you find out.

(3)   Time line;  0—20 days----30-----50----70-----90------------------------------6 mos.

(4)   If you get notice within the 90 day period you can file to extend post judgment deadlines.  What if party doesn’t find out until 3 mos after the judgment, it can still file a restricted appeal

(5)   Requirements of a restricted appeal.  TRAP 30

(a)    (1) must be filed within 6 months after the judgment is signed.

(b)   (2) the notice of restricted appeal must be filed by a party to the lawsuit

(c)    (3) “the party did not participate in the hearing that resulted in the judgment complained of.”

(d)   (4) The party “did not file a timely post-judgment motion or request for findings of fact and conclusions of law” TRAP 30.

(e)    (5) Error must be apparent from the face of the record.

(6)   EX:  D files a written response to a MSJ?  But you don’t show up for the hearing.  Have you participate in the hearing?  yes, because no hearing was requiring, because filing an MSJ you’ve participated in the decision of the court.

vi)     Onyx TV v. TV Strategy Group, LLC, 990 S.W.2d 427, 429 (Tex. App., 1999)

(1)   “A restricted appeal (TRAP 330) to the court of appeals is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment.  It is not available to give a party who suffers an adverse judgment at its own hands another opportunity to have the merits of the case reviewed. n7 To appeal by restricted appeal, the petitioner must file the notice of appeal within six months after the judgment is signed; be a party to the suit; not have participated in the actual trial of the case in the trial court; and show error apparent from the face of the record. The only issue before us is whether error appears on the face of the record. 

(a)    Restricted appeal from a default judgment.  TBSG is suing Onyx, a German company.  Suit is filed and the service of process is one the SOS. They were using “substituted service” of process, through the SOS.  SOS is then supposed to send it to the German corporation.  The process was mailed to their correct address.  But Onyx never shows up to litigate the case; then onyx tries to file a restricted appeal within the 6 month period.  Where they a party to the suit? yes, did they “participate” in the judgment complained of? no.  Did they file a post judgment motion for findings of fact or conclusions of law? no.  So all they have to satisfy is that error was apparent from the face of the record.  But was the citation ever filed with the trial court record? no.  So because no citation was on file for 10 days, they qualify for a restricted appeal.  But in the restricted appeal you are limited to what was before the trial court, no extrinsic evidence.  It must come only from the court record. 

vii)   Motion Practice in the appellate courts

(1)   General Requirements TRAP 10[not on exam]

(2)   Motion to recuse TRAP 16 {Not on exam]

(3)   Dismissal motions TRAP 42

(4)   Motions to Extend time—TRAP 10.5(b)”  Reasonable explanation” – any plausible statement of circumstances indicating that the tardiness was not deliberate or internal, but was the result of inadvertence,  mistake or mischance.”

(a)     A lawyer’s misunderstanding of the law is a “reasonable explanation.”

(b)   Professional negligence is a “Reasonable explanation.”

(5)   Motion for Rehearing – TRAP 49

(a)    The document a party submits to convinced the court of appeal to change its judgment and opinion

(b)   Not a jxal prerequisite to Supreme Court review!

(c)    Once a party files a partition for review in the Supreme Court, it cannot file a motion for rehearing in the court of appeals unless the court of appeals modifies its opinion or judgment after the petition for review has been filed.  TRAP 53.7(b)

(d)   If the time for filing a motion for rehearing in the court of appeals has not expired but one of the parties files its petition for review, any other party may still file a motion for rehearing in the court of appeals. TRAP 53.7(b).

(e)    Reasons for seeking a rehearing

(i)      Also, the motion for rehearing the appellate court will look at the entire record, whereas the supt court will look only at a limited record.

(ii)    Extend time to file a petition for review to the supreme court

(iii)   Greater likelihood of  relief in appellate court than Tex Supreme Court

(iv)  Thorough review of entire record

(v)    Appellate court is more likely to change it’s opinion than its judgment.

(f)     Deadlines for motion for rehearing

(i)      Deadlines – 15 days after judgment

(ii)    Extension – 30 days after judgment

(g)    General rules

(i)      Issues or points relied on for rehearing

(ii)    Rehearing argument

(iii)   Prayer

(h)    Length:  15 pages

(i)      Right to amend

(i)      amendment as a matter of right – 15 days

(ii)    Leave of court required – after 15 days deadline.

(j)     Response to motion for rehearing

(i)      A party is not required to file a response to the motion for rehearing unless the court requests a response. TRAP 49.2

(k)   Rulings on Motion for rehearing

(i)      Court grants rehearing

(ii)    court overrules motion with no opinion

(iii)   Court overrules motion with opinion.

(l)      Further motion for rehearing. TRAP 49.5

(i)      Judgment is modified in any way

(ii)    Judgment is vacated and a new judgment is rendered

(iii)   Motion overruled with new opinion

(iv)  Deadlines

1.      Deadline –15 after one of the above action is taken

2.      extension – 30 days after one of the above actions is taken.

(m)  Motion for en banc Review

(i)      En Banc – the entire court of appeals participates in the decision

(ii)    Disfavored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.  TRAP 41.2(c)

(iii)   What is the deadline for filing a motion for en banc review? 

1.      TRAP 49.5 ( suggests it might be 15 days)

2.      TRAP 49.7(while the COA has plenary jurisdiction, 30 days).

(iv)  Decision to grant en banc review

1.      One justice requests a vote of the entire court

2.      Majority rules.

(n)    Plenary power of appellate court

(i)      Plenary power expiration

1.      No MFR (motion for rehearing) or METR – Plenary power expires 60 days after judgment .  TRAP 19.1(a).

2.      MFR—plenary power expired 30 days after the court overrules the motion for rehearing. TRAP 19.1(b)

3.      Limited things an appellate court can do after its plenary power expires.  TRAP 19.3.

(o)   Mandate –TRAP 18 [not on exam]

(i)      The mandate is the document the court of appeals issued to the trial court directing the enforcement of the court of appeal’s judgment.  A mandate is a judicial order issued by a higher court to a lower court directing the lower court to take a certain action or to kame a certain disposition of the case.

(ii)    The clerk of the court issues the mandate as part of their ministerial duties.

(iii)   When the mandate is issued , the judgment becomes enforceable.

(p)   Timeline

(q)   date of judgment day 0; 15, 30 extension dates; 30 if no MFR by this date, you have another 15 days to filing for review in supreme court, and you can extend this for another 15 days.  This leaves you 60 days, 19.1(a), which is also when the COA’s plenary power expires.  10 days after this, the mandate will issue.

(r)     day 0---------15------30---45-------60-----70

(s)    EX:  appellate court judgment day 0.  Motion for rehearing filed (within 15 deadline) and denied. 

(i)      What if they grant rehearing and modify the judgment? then we could have a further motion for rehearing and we have our 15 and 30 day deadlines extended.  Rule 49.5, and 49.[]. 

(ii)    What if denied with new opinion? TRAP 49.5. 

(iii)   What if it’s overruled or denied?  Plenary power expired in 30 days.  19.1(b). If there is no petition filed in the supreme court, the mandate will issue 70 days after denial.  The day of denial is important for calculating when to file petition for review in the supreme court (45 deadline).

(t)     day 0-----------15-----------

c)      Appellate Jx in the Texas Supreme Court, p. Dors. 777-794, Suppl. p. 91; TRAP 57

i)        Subject matter jx

(1)   Subject matter jx exists when the nature of the case falls within the general category of cases the court is empowered to adjudicate under applicable statutory and constitutional provisions.

(2)   Two questions

(a)    does the Texas supreme ct have appellate jx over your case

(b)   Will it exercisr its jx

(3)   Extends state wide over civil matters except where limited by statute Tex. Const. Art. 5, §3.

(4)   Gov. Code § 22.001(a) provides the limitations.

(5)   22.001, p. 777

(a)    1. dissent jx, on a question of law

(b)   2. conflict jx

(c)    3. construction of validity of a statute.

(d)   4. State revenue

(e)    5. Railroad commission is  party

(f)     6. ERROR Of law has been committed and error is of such important to the jx of the state that the Supreme Court believes it requires correction

(i)      This is the standard ground for Supreme court jx.

(ii)    Excludes cases in which the jx of the court of appeals is made final by statute.  22.225 gives where the court of appeals is conclusive jx on factual and legal matters.

(g)    Decisions of the court of appeals made final by statute Gov. Code 22.225

(i)      All appellate court judgments are conclusive on the facts of the case.  Tex. Const. Art.

(ii)    Certain appellate court judgment are made final unless there is dissent or conflict jurisdiction

(h)    Components of conflict jx

(i)      Conflict must appear on the face of the two opinions

(ii)    There is an inconsistence in the respective opinions that should be clarified to remove unnecessary uncertainty in the law and unfairness to the litigants.

(iii)   The conflicts must be on a question of law involved in the case and determined by the court of appeals

(iv)  The opinion with which a conflict is alleged must have been handed down before the opinion containing the conflict asserted to be a jxal predicate

(v)    The opinion with the conflict is alleged must be “published” – no “memorandum opinion?”

(vi)  Dicta cannot be the basis for conflict jx.

(i)      In your brief, 53.2(e) states you need to give a short statement of jx.  Usually it will be 22.001(a)(6).


(a)    Discretionary aspect of Texas Supreme Court jx

(i)      TRAP 56.1(a)—Discretion

(ii)    TRAP 53.2(i)—argument

(iii)   error of law important to the jurisprudence of the state.

(b)   Does the Texas Supreme Court has appellate jx to review the legal sufficiency of the evidence?—yes; at trial, you ask for summary judgment, saying there’s not a scintilla of evidence, so she should render judgment as a matter of law. So this is a legal question.

(c)    Does the Texas Supreme Court have appellate jx to review the factual sufficiency of the evidence?

(7)   Pool v. Ford Motor, p. 779

(a)    F:  Products liability; P says the Ford vehicle was defective causing his injuries.  D asserts contributory negligence, he was drunk, he was driving too fast, didn’t have his seatbelt on.  But Ford has the burden of proof on contributory negligence claim.  The jury found that the car was defective.  But the jury failed to find that Pool was negligent in driving while intoxicated, driving at excessive rate of speed, or driving without seatbelt.  Ford appeals, saying that it is against the great weight and preponderance, which is a factual sufficiency argument. 

(i)      Preserving error: (To preserve error they had to move for new trial.)  There are two types of factual sufficiency complaint.  Look a zones of evidence:  1- ; 2-insufficient; 3- ; 4- against the great weight; 5

(ii)    You call it different things based on who has the burden of proof which here is D.  Let’s say D wanted to make legal sufficiency complaint, which is either Zone 1, “no evidence” or 5- “as a matter of law” this is preserved by moving for a directed verdict or a JNOV.

(b)   COA: reversed and remanded for new trial, as against the great weight and preponderance of evidence.  What would the COA do to come to this conclusion?  they’re looking at it like a jury would, weighing the evidence.  Here the evidence did show that P was intoxicated while driving.  So it’s against the great weight and preponderance of the evidence.  The COA does what the jury would do.

(c)    I:  Do appellate courts have the right to engage in factual sufficiency review? yes.  both the constitution and govt code says that COA’s decisions shall be conclusive on law and fact.  But the constitution also says that “the parties have an inviolate right to a jury trial.”  But does the Supreme Court have jx to do a factual sufficiency review? no, they can’t review the factual sufficiency themselves.  But they do have appellate jx to set the standard of review and then see if that standard has been met.  This is called a Pool-determination.  p. 783. “COA when reversing on insufficiency grounds, should in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s findings is factually insufficient or against the great weight and preponderance as to be manifestly unjust, why it shocks the conscience; or, clearly demonstrates bias.  Further the COA should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.”

(d)   Cropper v. Caterpiller, p. 784

(i)      see p. 789.  Supreme court tells the COA to look at all the evidence again.  It failed to consider certain evidence. they remand to that court to look at the rest of the evidence.  Although the supreme court doesn’t have this jx, they can essentially accomplish the same thing.

(e)    Golden Eagle v. Archery, p 92 Suppl.

(i)      The damages element of the jury instruction were separated out. I: how should appellate court do a factual sufficiency review in this situation?  Supreme court says we can’t do the factual sufficiency review. but it can set the standard, and review that standard.

(f)     Direct appeal from Trial courts, p.

(i)      Gov. Code § 22.001(c)

(ii)    TWCC v. Garcia p. 793

1.      Trial court must grant or deny an injunction on grounds that a statute is not constitutional.  Held, the people appealing weren’t affected by the injunction and the trial court didn’t make clear that it was enjoining an basis of the constitution. This is a strict interpretation.

d)      Petition for review

i)        Petition for review TRAP 53.2

(1)   Petition for review 15 pages

(2)   Where to file

(a)    File with the Supreme Court clerk (not Appellate court clerk)

(3)   Serve petition for review on all parties to the appellate court judgment

(4)   Pay $75 filing fee

(5)   Contents of the petition for review TRAP 53.2

(a)    Similar to appellate brief in court of appeals

(i)      issues presented TRAP 53.2(f)

(ii)    Appendix. 53.2(k)

(b)   Differences

(i)      page limitation

(ii)    statement of the case requires more detail

(iii)   statement of jx

(iv)  argument – need not address every point or issue.  TRAP 53.2(i).  This is only the petition for review, not a brief on the merits.

(c)    How are you going to convince the supreme court to grant your petition?

(6)   Deadline to file petition for review. TRAP 53.7

(a)    45 days after appellate court judgment or denial of motion for rehearing.  TRAP 53.7(a)

(b)   Motion to extend time – 60 days.  TRAP 53.7(f)

(c)    Petitions filed by other parties – 30 days.  TRAP 53.7(c)

(i)      EX: what if after the appellate court gives its judgment you do nothing, but within the 45 day period the other party files; then you think, you I may as well file too.  you get another 45 days to file.  SO if the other party files on the 44th day, you have until the 74th day.

ii)       Who must file a petition for review?

(1)   A party who seeks more favorable relief than the relief granted by the court of appeals must file a petition for review.

(a)    Cross petition

(b)   Court of appeals took away an award of atty’s fees, though could only be reinstated through a cross petition.

(c)    Petitioner and cross petitioner.

(2)   Response 53.3 any other party to the appeal may file a response to the petition for review, but they need not.

(a)    Should you file a response?

(i)      9-12% of petition granted each year

(ii)    Justices discourage the filing of a response and encourage the filing of a waiver letter.

(iii)   The waiver letter doesn’t waive anything because the petition can’t be granted until a response has been filed or requested.  But it saves client money and speeds up the process.

(iv)  Big judgment, big issue, unique legal theory, mediate attention – probably file a response to help judges form an initial impression of the case.  So it’s a strategic decision; if the likelihood of granting writ is very small, then don’t bother.

(v)    But they won’t grant it without first ordering you to file a response, though they may deny it before then.

(b)   Response deadline

(i)      Voluntary response deadline – 30 days after petition is filed.  TRAP 53.7(d)

(ii)    Extension to file response. TRAP 53.7(f)

(iii)   Court will start to act on the petition for review after 30 days when no waiver letter is filed.

(iv)  Required response – The sup ct will give you 30 days.

(c)    Contents of the response 53.3

(i)      Statement of the case *53.3(b)

(ii)    Statement of jx* (you may want to argue the there isn’t jx, no conflict, not an important issue)

(iii)   Issues presented* 53.3(c)

(iv)  statement of facts*

(v)    Appendix*

(vi)  Summary of the argument

(vii) argument

(viii)                       prayer

(ix)  * not required by the rules, but you may want to include to put your own slant on things. You don’t want to allow petitioner to frame issues, facts, etc.

(d)   Issues presented – TRAP 53.3(c) and 53.4

(i)      Cross points (you want to include this either in the response or a brief on the merits)

1.      Independent ground/same judgment

2.      independent ground/less favorable judgment

3.      points not considered in court of appeals

4.      raise independent grounds for affirmance in the response and the brief on the merits

5.      Equistart Chem v. Dresser Rand

(ii)    Argument

1.      Convince the court not to

iii)     Brief on the merits

(1)   Briefs are not filed unless request by the sup Ct.  TRAP 55

(a)    Briefs requested before granting petition

(b)   briefs requested after granting petition

(c)    Sup Ct will set a briefing schedule

(d)   briefs are just more detailed version of the petition for review and response

(e)    50 page limit

(f)     More expanded argument section that covers all the issues

(2)   Appellate record is not filed with the clerk of the Supreme Court unless it is requested by the Supreme court.  TRAP 54.

iv)     Orders on Petition for review TRAP 56.1

(1)   Petition for review not granted  56.1(b)

(a)    petition denied

(b)   petition dismissed w.o.j.

(c)    petition refused – court of appeals’ opinion has the same precedential value as an opinion of the supreme court.

(i)      Only made after a response has been filed or request.

(d)   Motion for rehearing

(e)    Clerk of the court of appeal issues the mandate.

(2)   Petition for review granted

(a)    oral argument

(b)   opinion

(c)    judgment

(d)   motion for rehearing TRAP 64

(i)      15 days

(ii)    extension of time

(e)    Clerk of the supreme court issues the mandate.

20)  Writ of Mandamus

a)      Original proceedings in appellate court Trap 52

i)        Writ of prohibition

ii)       writ of injunction

iii)     habeaus corpus

iv)     mandamus

b)      Mandamus: an original writ issued by a higher court to command a lower court, tribunal, or public officer to do or refrain from doing some act.  Latin for command.  A petition for mandamus is not an appeal from a judgment of the trial court.

c)      How does mandamus fit with some other concepts we’ve learned?

i)        Normal appeal – final judgment;  interlocutory appeal CPRC 51.014.  Other trial court rulings – mandamus?

d)      Mandamus proceedings:  Mandamus jx; substantive requirements for writ of mandamus; procedure for writ of mandamus.

i)        Mandamus writ.  Art. 5 §§3, §6 cour of appeals shall have original jx as shall be prescribed by law.

ii)       p 810 Dors.Gov. Code. 22.002—Supreme court

iii)     Gov Code 22.221 Court of appeals.

iv)     Supreme court and court of appeal have concurrent jx over district judges and count court at law judges.

v)      Mandamus should first be sought in the court of appeals unless there is a compelling reason not to do so. TRAP 52.3(e).

e)      Mandamus Jx.

i)        Lesikar v. Anthony, p. 811

(1)   BR court ordered the state court not to proceed.  Judge holds a hearing as to whether it can proceed. Judge says it can.  Judge orders court reported to give him the transcript to take home.  Lasiker files a writ of prohibition.

(2)   Hold, we do not have jx to order a writ of prohibition. it can only issue such a writ if necessary for it’s own jx, i.e., if there was an appeal pending before it.

(3)   The relator was trying to mandamus the court reporter and the judge.  Held, we don’t have jx to mandamus the court reporter because 22.221b only provides for mandamusing a district court judge or a county court judge.  What if the case is pending appeal and the court reporting could mandamus the court reporter to write the transcript.

(4)   But the writ power does extend to judge Anthony.  COA issues a conditional mandamus, and direct the judge to turnover the copies and transcripts.

ii)       Welder v. Fritz, p. 813

(1)   Wife petitions for a writ of mandamus for appeal.  Does the COA have jx to mandamus the family law master, when there’s no appeal pending? no.  A master is not district court judge or a county court judge. so no jx.

f)        Substantive Requirements for issuing the writ of mandamus

i)        Johnson v. 4th Court of appeals, p. 816

(1)   P sued security guard of apartment complex because someone snuck in and raped her.  There was an incomplete verdict, so P asks for a mistrial which was granted. [this is an interlocutory ruling, so can you appeal this? no, that’s why he tries mandamus] Security guard asked for a mandamus, saying the trial court messed up.  COA says regarding the first mandamus, they conditionally grant it, saying there’s not irreconcilable conflict in the jury’s answer, so they grant mandamus.  Trial court enters judgment that she take nothing.  Then Johnson moves for new trial which the trial judge grants. For what reason? it was in the interests of justice.  Then the security agency seeks a second mandamus in the COA. COA says the same thing, “the trial court is trying to do the same thing it did last time.”  Now Johnson seeks mandamus relief in the Supreme Court.  Johnson is the relator; respondent is the COA.   They focus on the action of the trial court and review for abuse of discretion, which is “when the facts of law permit the judge to make one decision and it makes another, then it is an abuse of discretion.”  The order granting new trial stated it was “in the interests of justice,” therefore the trial court didn’t abuse its discretion.

ii)       walker v. Packer, p. 819

(1)   Two pretrial discovery requests were at issue.  Relators we denied documents,.

(2)   St Paul records.  Walkers are trying to say we were entitled to these records, trial court didn’t give them to us, therefore we are entitled to mandamus relief.  But they didn’t have enough evidence in the record.  The RULEs state that they have to give all the facts, references to the actual....52.7(a)(1) and (2).  Relator must file with the petition

(3)   Obstretrics.  Trying to get documents from Health Science faculty members. Trial court wouldn’t allow this.  TEST FOR establishing right to relief:

(a)    In order to get relief you have to say the trial courts actions were so arbitrary as to be an abuse of discretion.... Historically, mandamus was only for ministerial duties.  But Texas courts have broadened this.  Now it’s not just an abuse of a ministerial duty but abuse of discretion.  What if it’s a legal issue? this is an error of law, this constitutes clear abuse of discretion.  Next prong: not only will we require clear about of discretion, but relator must prove there is no adequate remedy on appeal.

(b)   Court then examines discovery situations, when relator may not have adequate appellate remedy:  when appeal court can’t cure trial court’s discovery error, such as privilege, if trial court order one side to hand over privileged information to another, so no adequate appellate remedy here.  Another is exhuming a body.

(c)    What if the court orders a party to turn over evidence which documents are vital to their claim or defense, mandamus would be appropriate here as well.

iii)     Substantive requirements

(1)   justiciable interest

(2)   demand and refusal

(3)   clear right to relief

(4)   violation of duties/discretion

(a)    violation of ministerial duty

(b)   clear abuse of discretion

(i)      factual issues (no clear right to relief here)

(ii)    legal issue

(5)   No adequate appellate remedy.

iv)     Examples of situations in which mandamus relief has been granted

(1)   discovery disputes

(2)   disqualification of judge

(3)   disqualification of a lawyer

(4)   motion for sanctions

(5)   nonsuit

(6)   violation of procedural requirements

(7)   void order

v)      Mandamus problems p, 835

(1)   a.

(2)   b.

(3)   c. No mandamus here, because appeal is adequate appellate remedy

(4)   d.  judge has a ministerial duty, not discretion, clear violation of law.

(5)   e. you’r trying to mandamus an executive officer, only the Texas Supreme Court can do this

(6)   f. motion for change of venue,  the law is not clear on this but you should not normally be able to get mandamus here.

vi)     Procedures for writ of mandamus

(1)   Petitions for writ of mandamus

(2)   “In re {name of relator]”

(3)   Variance in length of petition

(4)   Response

(5)   verification (similar to a certificate of service)

(6)   record – sworn copies or certified copes (two ways to approach: one, make affidavit that swears the documents in the record are correct; or you can get certified copies from the trial court.

(7)   temporary relief (motion to stay)

(8)   deadlines  (rules don’t say what deadlines are, but you should file asap after ruling because laches has been applied to these situations.)

(a)    laches


Exam: 50 question, 2 pts each.  Multiple choice; short essay, partial credit.  Multiple choice, you are contest the question if you think it’s wrong; write on instruction sheet say, I’m contesting question #5 , and then write on back the correct answer.

3 hours.  May 9th 8:30am.

Tips:  know the “tests” and “standards”, for mandamus, Walker v. Packerd, know what you need to show.

Another type he will ask what is the best procedural device to use at this point.  What documents to file.

Deadlines: need to know to a certain extent, particularly situations where we covered problems in class, plenary power situations.

Look at all the procedural devises, motions for continuance, requirements, deadlines, focus on what we talked about in class.

What about cases: look at the ones that we worked through in class.

Grades: test is curved,

g)      EXAM: 70% trial practice. Part multiple course, part short answer.

h)      Procedural device question, these are the easiest., set out the legal test; apply the legal test.  Learn all the legal tests. Be able to calculate a deadline, such as the plenary powers of the court is extended. Go to Board of Bar examiner website and look at past exams on civil procedure.  closed book.