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Texas Civil Procedure II Outline

Texas Civil Procedure II Outline
Summary Judgments
a. Summary Judgment and Legal Sufficiency
i. Rule 166a. Summary Judgment
(a) For Claimant. A party seeking to recover may, at any time after the adverse party
has appeared or answered, move with or without supporting affidavits for a summary
judgment in his favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim is asserted, may, at any time,
move with or without supporting affidavits for a summary judgment.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state
the specific grounds. The judgment sought shall be rendered if evidence shows that,
except as to the amount of damages, there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law on the issues expressly
set out in the motion or in an answer or any other response.
(f) Form of Affidavits; Further Testimony. Affidavits shall be made on personal
knowledge, shall be set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated therein.
(i) No-Evidence Motion. After adequate time for discovery, a party without
presenting summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial. The
motion must state the elements as to which there is no evidence. The court must grant
the motion unless the respondent produces summary judgment evidence raising a
genuine issue of material fact.
ii. An affiant must swear that the facts presented in the affidavit reflected his personal
1. An affiant’s belief about the facts is legally insufficient.
2. An affidavit showing no basis for personal knowledge is legally insufficient.
iii. Movant party must conclusively disprove at least one element of the other party’s claims
or conclusively prove every element of its affirmative defense.
1. Evidence must be looked at from the point of view of the nonmovant.
iv. When both parties move for summary judgment and the trial court grants one motion and
denies the other, the reviewing court should review the summary judgment evidence
presented by both sides and determine all questions presented and render the judgment
the trial court should have rendered.
v. When a trial court’s order granting summary judgment does not specify the grounds
relied upon, the reviewing court must affirm summary judgment if any of the summary
judgment grounds are meritorious.
vi. The party with the burden need only present more than a scintilla of evidence to avoid
summary judgment.
1. Evidence constitutes no more than a scintilla when it is so weak as to do no more
than create a mere surmise or suspicion of the fact’s existence.
vii. The unopposed testimony of an interested witness is considered conclusive if it meets a
five-part test of credibility:
1. It pertains to matters reasonably capable of exact statement
2. It is clear, direct, and positive
3. It is internally devoid of inconsistencies
4. It is uncontradicted either by the testimony of other witnesses or by
circumstances, and
5. It is of a kind that could be readily controverted if untrue.
b. Summary Judgment Procedure
i. Party with the burden of proof moves for TSJ (plaintiff on causes of action, or defendant
on affirmative defenses)
ii. Party without burden of proof responds to motion for TSJ.
1. Presents a factual dispute
2. Attack quality of movant’s evidence
3. Attack the movant’s legal entitlement to judgment
4. Attack formalities of proof
5. Assert affirmative defense
6. No response: even if there is no response, a TSJ will NOT stand if the movant has
not satisfied the summary judgment standard.
a. A nonmovant who did not respond to the motion for summary judgment
may attack for the first time on appeal the quality of the movant’s
summary judgment evidence and the movant’s legal entitlement to
b. But contrary evidence, affirmative defenses, and attacks on the formalities
of proof must be made in a response; otherwise they are waived.
iii. Party without burden of proof moves for SJ
1. Summary judgment for insufficient pleadings
a. Failure to state a claim
b. Pleadings negate the claim
2. Traditional motion for SJ—Disproving Facts
iv. No Evidence motion for SJ—putting plaintiff to proof facts
c. No Evidence Motions for Summary Judgment
i. The nonmovant must produce summary judgment evidence raising a genuine issue of
material fact to defeat the summary judgment.
ii. Evidence must be viewed in the light most favorable to the nonmovant.
iii. More than a scintilla of evidence exists if the evidence rises to a level that would enable
reasonable and fair-minded people to differ in conclusions.
iv. When the evidence offered to prove a vital fact is so weak as to do no more than create a
mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in
legal effect, is no evidence.
v. When reviewing a no evidence summary judgment, the court must review the evidence
presented by the motion and response in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors could
vi. Comments on Rule 166a(i): the motion must be specific in challenging the evidentiary
support for an element of a claim or defense; paragraph (i) does not authorize conclusory
motions or general non evidence challenges to an opponent’s case.
vii. A party who fails to timely designate an expert has the burden of establishing good cause
or a lack of unfair surprise or prejudice before the court may admit the evidence.
1. If you don’t meet your discovery deadlines, you will not be able to fix it when it is
time for summary judgment deadlines.
viii. Texas requires evidence to be admissible and federal does not.
Settings & Trial
a. The Jury Demand
i. Rule 216(a). Request and Fee for Jury Trial. No jury trial shall be had in any civil suit,
unless a written request for a jury trial is filed with the clerk of the court 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. Must also pay fee.
ii. Rule 218. Jury Docket. The clerks of the district and county courts shall each keep a
docket, styled, “The Jury Docket.”
iii. Rule 219. Jury Trial Day. The court shall designate the days for taking up the jury docket
and the trial of jury cases. Such order may be revoked or changed in the court’s
iv. Rule 220. Withdrawing Cause from Jury Docket. When any party has paid the fee for a
jury trial, he shall not be permitted to withdraw the cause from the jury docket over the
objection of the parties adversely interested. Failure of a party to appear for trial shall be
deemed a waiver by him of the right to trial by jury.
v. Attorney may file motion for continuance to extend time to ask for a jury trial.
1. The granting or denial of a motion for continuance is within the trial court’s
2. Court should grant a continuance for a jury trial unless it delays the docket or
causes injury to parties.
b. Settings
i. Rule 245 gives the court power to set a case for trial upon the request of a party or on its
ii. Rule 245 requires all courts to give parties at least 45 days notice of the first trial setting,
but only reasonable notice thereafter.
iii. If a party doesn’t get notice, when filing a motion for new trial due to a default judgment,
the party need not meet the burden of a meritorious defense because it would be unfair.
c. Continuance
i. Rule 251. Continuance. No application for a continuance shall be granted except for
sufficient cause supported by affidavit.
ii. Rule 252. Application for Continuance. If the ground of such application be the want of
testimony, the party shall make affidavit that such testimony is material; that such
testimony cannot be procured from any other source; on a first application for a
continuance, it shall not be necessary to show that the absent testimony cannot be
procured from any other source.
iii. Rule 253. Absence of Counsel as Ground for Continuance. Absence of counsel will not
be good cause for a continuance or postponement of the cause when called for trial,
except it be allowed in the discretion of the court, upon cause shown or upon matters
within the knowledge or information of the judge to be stated on the record.
iv. Rule 254. Attendance on Legislature. At any time within 30 days of a date when the
legislature is to be in session, or at any time the legislature is in session, it shall be
mandatory that the court continue the cause and member will be or is in actual attendance
on a session of the same. Affidavit shall contain a declaration that it is in his intention to
participate actively in the preparation and/or presentation of the case. The right to a
continuance shall be mandatory, except only where the attorney was employed within 10
days of the date the suit is set for trial, the right to continuance shall be discretionary.
v. Continuances Generally
1. The granting or denial of a motion for continuance is within the trial court’s sound
a. The exercise of such discretion will not be disturbed on appeal unless the
record discloses a clear abuse of discretion.
b. A trial court may be reversed for abusing its discretion only when the
court of appeals finds the court acted in an unreasonable or arbitrary
c. Test for abuse of discretion: whether the trial court acted without reference
to any guiding rules or principles.
i. The mere fact that a trial judge may decide a matter within his
discretionary authority in a different manner than an appellate
judge in a similar circumstance does not demonstrate that an abuse
of discretion has occurred.
2. A continuance shall not be granted except for sufficient cause.
a. The absence of a material witness is sufficient cause but only if proper
diligence has been used to procure the testimony of the witness.
3. An announcement of ready waives the right to subsequently seek a delay based
upon any facts, which were known with proper diligence and should have been
known at the time.
a. Exception: unforeseeable event arising through no fault of movant.
vi. Absence of Counsel
1. When the ground for the continuance is the withdrawal of counsel, movant must
show that the failure to be represented at trial was not due to his or her own fault
or negligence.
2. When a trial court allows an attorney to voluntarily withdraw, it must give a party
time to secure new counsel and time for the new counsel to investigate the case
and prepare for trial.
vii. Legislative Continuances
1. A legislative continuance is mandatory except in those cases in which the party
opposing the continuance alleges that a substantial existing right will be defeated
or abridged by delay.
2. In cases of this type, the trial court has a duty to conduct a hearing on allegations.
3. If the allegations are shown to be meritorious the court should deny the
d. Motions to Bifurcate
i. Rule 174. Consolidation; Separate Trials.
(a) Consolidation. When actions involving a common question of law or fact,
court may order a joint hearing or trial of any or all the matters in issue; it may
order all the actions consolidated.
(b) Separate Trials. The court may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or of any number of
claims, cross-claims, counterclaims, their-party claims, or issues.
ii. TRAP 44.1. Reversible Error in Civil Cases
(a) Standard for Reversible Error. No judgment may be reversed on appeal on the
ground that the trial court made an error of law unless the court of appeals
concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to
the court of appeals.
(b) Error Affecting Only Part of Case. If the error affects part of, but not all, the
matter in controversy and that part is separable without unfairness to the parties,
the judgment must be reversed and a new trial ordered only as to the part affected
by the error. The court may not order a separate trial solely on unliquidated
damages if liability is contested.
iii. Evidence of a defendant’s net worth is relevant in determining the proper amount of
punitive damages, and therefore may be subject to pretrial discovery.
1. A trial court, if presented with a timely motion, should bifurcate the determination
of the amount of punitive damages from the remaining issues.
e. The Trial Begins
i. Order of Proceeding
1. Announcements
2. Pretrial Motions
3. Voir Dire
4. Opening statements
5. Plaintiff’s case in chief (Defendant may file motion for directed verdict after this)
6. Defendant’s case in chief
7. Rebuttal
8. Preparation of the charge
9. Jury Argument
10. Jury Deliberations
11. Receipt of verdict
12. Judgment
13. Post-trial motions
ii. Invoking “The Rule”
1. At the request of any party, the witnesses on both sides shall be removed from the
courtroom to some place where they cannot hear the testimony delivered by any
other witness in the cause. There are 3 exceptions to the rule:
a. A party who is a natural person or his or her spouse
b. An officer or employee of a party that is not a natural person and who is
designated as its representative by its attorney
c. A person whose presence is shown by a party to be essential to the
presentation of the cause.
2. Witnesses that are not except are not allowed to converse with each other or with
any other person about the cause other than the attorneys.
3. A court has discretion to allow a witness to testify even though the witness has
violated the Rule by remaining in the courtroom during another witness’s
4. Experts are not automatically exempt.
5. Witnesses are not allowed to get a copy of the transcript.
iii. The Right to Open and Close the Evidence
1. The plaintiff has the right to open and close argument. Exceptions:
a. A defendant has the right to open and close if the burden of proof for the
entire case under the pleadings is on defendant.
b. A defendant has the right to open and close if, before trial begins,
defendant admits that plaintiff is entitled to recover, subject to proof of
defensive allegations in the answer.
c. This rule is subject to rule below.
2. The party who has the burden of proof on the whole case, or the party who has the
burden of proof on all matters in the charge, has the right to open and close the
a. Exception: when there are several parties who have separate claims or
defenses, the court shall determine the order of the argument.
iv. Opening Statement
1. Opening statement cannot be too detailed because it doesn’t allow other party to
object to it.
2. Rule 265(a) does not afford counsel the right to detail to the jury the evidence
which he intends to offer, nor to read or describe in detail the documents he
proposes to offer.
Judge’s General authority to Manage the Trial
1. There is a lot of discretion given to the judge over the control of the trial and
2. Standard is really high to overrule a judge’s opinion—even if he appears bias, will
not be enough
3. The discretion vested in the trial court over the conduct of a trial is great.
a. A trial court has authority to express itself in exercising this broad
b. A trial court may properly intervene to maintain control in the courtroom,
to expedite the trial and to prevent what it considers to be a waste of time.
4. Preserve error by objecting when it occurs.
Who Can Question a Witness
1. In federal court, the general rule is that the judge can question the witness
whenever they want.
2. State judge may only question witnesses to clarify.
3. To reverse a judgment on the ground of judicial misconduct, a complaining party
must show either trial court bias or that he suffered probable prejudice.
4. For the purpose of eliciting evidence that has not been otherwise been brought
out, the judge may put competent and material questions to a witness, and where
anything material has been omitted, it is sometimes his duty to examine a witness.
5. Allowing the jurors to occasionally propound questions to the witnesses was not
The Judge’s Comments Before the Jury
1. If objectionable remarks by the judge are of the type which could have been
rendered harmless by a proper instruction from the judge, failure to object to such
remarks to such remarks and to request a curative instruction waives error.
2. The same rule applies in the cases of comment on the weight of the evidence.
3. An objection must be promptly made or an instruction requested or the error is
4. Not waived is the comment could not have been cured by an instruction from the
5. Judge cannot expressly indicate which evidence they consider credible or not
Making a Record—Bills of Exception
1. Rule 103(a)(2) of the Texas Rules of Evidence provides that error may not be
predicated upon a ruling which excludes evidence unless a substantial right of the
party is affected, and the substance of the objection was made known to the trial
court by offer of proof.
a. Rather than maintaining formal proof, however, the Rules require only a
short, factual recitation of what the testimony would show is sufficient
evidence to preserve an issue for appeal.
b. The offer of proof may be made by counsel, who should reasonably and
specifically summarize the evidence offered and state its relevance unless
already apparent.
c. If counsel does make such an offer, he must describe the actual content of
the testimony and not merely comment on the reasons for it.
2. It is discouraged to make needless presentation of cumulative evidence, not
cumulativeness in and of itself.
a. Not a decisive factor that witness will give same evidence.
b. Rather, the court considers whether the excluded testimony would have
added substantial weight to the complainant’s case.
3. Although an appellant is entitled to a complete statement of facts, where a witness
testifies in the absence of the court reporter and the appellant fails to object,
appellant is not entitled to a new trial.
4. An official court reporter shall make a full record of evidence when requested by
the judge or any party to the case.
The Jury
a. Assembling a Jury Panel
i. § 62.101. Jury Service. All individuals are competent petit jurors unless disqualified
under this subchapter and are liable for jury service except as otherwise provided by this
ii. § 62.102. General Qualifications for Jury Service. A person is disqualified to serve as a
petit juror unless the person:
(1) is at least 18 years of age;
(2) is a citizen of this state and of the county in which the person is to serve as a
(3)is qualified under the constitution and laws to vote in the county in which the
person is to serve as a juror;
(4) is of sound mind and good moral character;
(5) is able to read and write;
(6) has not served as a petit juror for 6 days during the preceding three months in
the county court or during the preceding six months in the district court;
(7) has not been convicted of misdemeanor theft or a felony; and
(8) is not under indictment or other legal accusation for misdemeanor theft or a
iii. § 62.1031. Failure to Register to Vote. Failure to register to vote does not disqualify a
person from jury service.
iv. § 62.105. Disqualification for Particular Jury. A person is disqualified to serve as a petit
juror in a particular case if he:
(1) is a witness in the case;
(2) is interested directly or indirectly, in the subject matter of the case;
(3) is related by consanguinity or affinity within the 3rd degree to a party in the
(4) has a bias or prejudice in favor of or against a party in the case; or
(5) has served as a petit juror in a former trial of the same case or in another case
involving the same questions of fact.
b. Voir Dire Examination: Scope and Procedure
i. The primary purpose of voir dire is to inquire about specific views that would prevent or
substantially impair jurors from performing their duty in accordance with their
instructions and oath.
1. Trial courts should allow broad latitude to counsel to discover any bias or
prejudice by the potential jurors so that peremptory challenges may be
intelligently exercised.
ii. Statements that reflect a juror’s judgment about facts of a case as presented, rather than
an external unfair bias or prejudice, does not amount to a disqualifying bias.
iii. It is improper to ask prospective jurors reach what their verdict would be if certain facts
were proved.
iv. If the voir dire includes a preview of the evidence, the trial court does not abuse its
discretion in refusing to allow questions that seek to determine the weight to be given (or
not be given) a particular fact or set of relevant facts.
1. If the trial judge permits questions about weight jurors would give relevant case
facts, then the juror’s response to such questions are not disqualifying, because
while such responses reveal a fact-specific opinion, one cannot conclude that
reveal an improper subject-matter bias.
v. Trial judges have discretion to clarify whether a juror’s response is the result of
confusion, misunderstanding, or mistake.
1. The trial judge must have discretion to exclude questions that seek to gauge the
weight a juror will place on specific evidence.
vi. In sustaining an objection to an improper voir dire question, a trial court should not
foreclose all inquiry about a relevant topic.
1. To preserve a complaint that a trial court improperly restricted voir dire, a party
must timely alert the trial court as to the specific manner in which it intends to
pursue inquiry.
vii. Voir dire inquiries that explore external biases and unfair prejudices further the effort, but
those that test juror’s possible verdict based on case-specific relevant evidence detract
from it.
viii. Refusals to allow lines of questioning during voir dire are reviewed under an abuse of
discretion standard.
1. A court abuses its discretion when its denial of the right to ask a proper question
prevents determination of whether grounds exist to challenge for cause or denies
intelligent use of peremptory challenges.
2. A party preserves error by a timely request that make clear—by words or
context—the grounds for the request and by obtaining a ruling on that request,
whether express or implicit.
a. Ex: party preserved error by asking a specific and proper question, stating
the basis on which it sought to ask the question, and obtaining an adverse
ruling from the trial court.
ix. As a general rule, counsel may inquire about anything relevant to the issues to be tried,
the facts to be presented, or the parties themselves.
1. No questions may be asked which would introduce matters not admissible during
c. Statutory Disqualifications and Challenges for Cause
i. Rule 227. Challenge to Juror. A challenge to a particular juror is either a challenge for
cause or a peremptory challenge.
ii. Rule 228. Challenge for Cause Defined. A challenge for cause is an objection made to a
juror, alleging some fact which by law disqualifies him to server as a juror in the case.
iii. To preserve error when a challenge for cause is denied, a party must use a peremptory
challenge against the venirmember involved, exhaust its remaining challenges, and notify
the trial court that a specific objectionable veniremember will remain on the jury list.
iv. Error occurs when the party uses all of his peremptory challenges and is thus prevented
from striking other objectionable jurors from the list because he has no additional
peremptory challenges.
v. Veniremembers may be disqualified even if they say they can be fair and impartial so
long as the rest of the record shows they cannot.
1. Veniremembers are not necessarily disqualified when they confess bias, so long
as the rest of the record shows that is not the case.
vi. Bias is an inclination toward one side of an issue but to disqualify, it must appear that the
state of mind of a juror leads to the natural inference that he will not or did not act with
1. A statement that one party is ahead cannot disqualify if the veniremember’s
answer merely indicates an opinion about the evidence.
vii. In order for false answers given during voir dire examination to entitle a party to a new
trial, there must be an concealment by a juror in response to a specific and direct question
calling for disclosure. Catch-all questions do not meet the requirement of specificity.
viii. Batson Challenge: suggesting that the strikes were based on race or gender.
d. Peremptory Challenges
i. Rule 232. Making Peremptory Challenges. A peremptory challenge is made to a juror
without assigning any reason therefor.
ii. Rule 233. Number of Peremptory Challenges. Except as provided below, each party to a
civil action is entitled to six peremptory challenges in a case tried in the district court, and
to three in the county court.
1. Alignment of the parties. It shall be the duty of the trial judge to decide whether
any of the litigants aligned on the same side of the docket are antagonistic with
respect to any issue to be submitted to the jury.
2. Definition of Side. The term side as used in this rule is not synonymous with
party, litigant, or person. Rather, side means one or more litigants who have
common interests on the matters with which the jury is concerned.
3. Motion to Equalize. It shall be the duty of the trial judge to equalize the number
of peremptory challenges so that no litigant or side is given unfair advantage as a
result of the alignment of the litigants and the award of peremptory challenges to
each litigant or side.
iii. Reapportioning Peremptory Challenges
1. When no antagonism exists, each side must receive the same number of strikes.
2. When antagonistic parties on the same side are required to share six strikes, it is
error amounting to a violation of the basic right to trial by jury.
a. The antagonism must exist on an issue of fact that will be submitted to the
jury, not a matter that constitutes a pure question of law.
3. The question whether the trial was materially unfair in either the determination of
antagonism or the equalizing of strikes requires that the entire record, including
the statement of facts be examined by the appellate court.
4. Any complaint concerning unfair allocation of strikes is waived if not timely
made (ideally at the time the court reapportions strikes or refuses to do so).
e. Jury Misconduct
i. Rule 292. Verdict by Portion of Original Jury.
(a) a verdict may be rendered in any cause by the concurrence, as to each and all
answers made, of the same ten or more members of an original jury of twelve or
of the same five or more members of an original jury of six.
(b) A verdict may be rendered awarding exemplary damages only of the jury was
unanimous in finding liability for and the amount of exemplary damages.
ii. Rule 327(b). For Jury Misconduct. A juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or to the effect of anything upon
his or any other juror’s mind or emotions as influencing him to assent to or dissent from
the verdict concerning his mental processes in connection therewith, except that a juror
may testify whether any outside influence was improperly brought to bear upon any juror.
Nor may his affidavit or evidence of any statement by him concerning a matter about
which he would be precluded from testifying be received for these purposes.
iii. The complaining party requires the complaining party to be diligent in using voir dire to
find disqualifications—there is no reversal without due diligence.
iv. Jurors may not testify about statements or matters occurring during deliberations, but
they may testify about outside influences.
1. A court may admit competent evidence of juror misconduct from any other
2. A juror may testify about jury misconduct provided that it does not requires
delving into deliberations.
a. Ex: a juror could testify that another juror improperly viewed the scene of
the events giving rise to the litigation.
b. Ex: A juror could testify about reasons for disqualifying another juror
provided the testifying juror’s knowledge was gained independent of
v. The rule contemplates that an outside influence originates from sources other than the
jurors themselves.
vi. While failure to disclose bias is a form of juror misconduct that justifies a new trial under
the appropriate circumstances, proof of a juror’s failure to disclose bias must come from
some other source other than a fellow juror’s testimony about deliberations.
vii. A new trial for jury misconduct is warranted if
1. Misconduct occurred
2. It was material, and
3. Probably caused injury
viii. Discovery involving jurors should ordinarily be limited to facts and evidence relevant to
1. Whether any outside influence was improperly brought to bear upon any juror,
2. Rebuttal of a claim that a juror was not qualified to serve.
f. Constitutional Limits on the Exercise of Peremptory Challenges
i. A criminal defendant is denied equal protection under the US Constitution if a prosecutor
uses peremptory challenges to exclude members of the jury panel solely on the basis that
their race is the same as the defendant’s.
ii. Race-based exclusions of civil juror violates the equal protection rights of the excluded
iii. Resolving an Batson Challenge:
1. The opponent of the peremptory challenge must establish a prima facie case of
racial discrimination.
2. The burden then shifts to the party who has exercised the strike to come forward
with a race-neutral explanation.
a. A court must determine whether peremptory challenge violates the Equal
Protection Clause as a matter of law, assuming the reasons for the
peremptory challenge are true.
b. A neutral explanation means that the challenge was based on something
other than the juror’s race.
c. Unless a discriminatory intent is inherent in the explanation, the reason
offered will be deemed race-neutral for purposes of the analysis at step
3. The trial court must then determine if the party challenging the strike has proven
purposeful racial discrimination, and the trial court may believe or not believe the
explanation offered by the party who exercised the peremptory challenge.
a. This is a question of fact.
iv. If a prosecutor’s proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to the considered at Batson’s 3rd step.
v. Rule 324. Prerequisites of Appeal
(a) Motion for New Trial Not Required. A point in a motion for new trial is not a
prerequisite to a complaint on appeal in either a jury or a nonjury case, except as
provided by subsection (b).
(b) Motion for New Trial Required. A point in a motion for new trial is a
prerequisite to the following complaints on appeal:
(1) A complaint on which evidence must be heard such as one of jury
misconduct or newly discovered evidence or failure to set aside a
judgment by default.
(5) Incurable jury argument if not otherwise ruled on by the trial court.
g. Jury Argument
i. Rule 269. Argument.
(e) Arguments on the facts should be addressed to the jury, when one is
impaneled in a case that is being tried, under the supervision of the court. Counsel
shall be required to confine the argument strictly to the evidence and to the
arguments of opposing counsel. Mere personal criticism by counsel upon each
other shall be avoided, and when indulged in shall be promptly corrected as a
contempt of court.
(f) Side-bar remarks, and remarks by counsel of one side, not addressed to the
court, while the counsel on the other side is examining a witness or arguing any
question to the court, or addressing the jury, will be rigidly repressed by the court.
(g) The court will not be required to wait for objections to be made when the rules
as to arguments are violated; but should they not be noticed and corrected by the
court, opposing counsel may ask leave of court to rise and present his point of
objection. But the court shall protect counsel from any unnecessary interruption
made on frivolous and unimportant grounds.
ii. To prevail on a claim that improper argument was incurable, the complaining party
generally must show that the argument by its nature, degree, and extent constituted such
error that an instruction from the court or retraction of the argument could not remove its
effects. The test is the amount of harm from the argument:
1. Whether the argument considered in its proper setting, was reasonably calculated
to cause such prejudice to the opposing litigant that a withdrawal by counsel or an
instruction by the court, or both, could not eliminate the probability that it resulted
in an improper verdict.
iii. Mere personal criticism by counsel upon each other shall be avoided, and when indulged
in shall be promptly corrected as a contempt of court.
iv. If the error is terrible enough, you can secure that it’s a binding error without having to
preserve it.
v. Preserving Error for Appeal Review:
1. There was error
2. The error is properly preserved by proper trial objection
3. There must be harm
Jury Charge
a. Origins of Broad Form Submission in Texas
i. The General Charge: where the judge points out to the jury the factual elements to be
found and by instructions directs the jury as to the method to be followed in finding the
facts and giving an answer finding in favor of one party or the other.
ii. Special Issues: Asks the jury specific questions that elicit findings on special
controverted facts, and the judge determines the legal consequence of those finding in
determining the judgment.
b. Broad Form Questions
i. Rule 277. Submission to the Jury. In all jury cases the court shall, whenever feasible,
submit the cause upon broad-form questions. The court shall submit such instructions and
definitions as shall be proper to enable the jury to render a verdict. Inferential rebuttal
questions shall not be submitted in the charge. The placing of the burden of proof may be
accomplished by instructions rather than by inclusion in the questions. The court shall not
in its charge comment directly on the weight of the evidence or advise the jury of the
effect of their answers.
ii. Rule 278. Submission of Questions, Definitions, and Instructions. The court shall submit
the questions, instructions and definitions in the form provided by Rule 277, which are
raised by the written pleadings and the evidence. A judgment shall not be reversed
because of the failure to submit other and various phases or different shades of the same
iii. When a trial court submits a single broad-form liability question incorporating multiple
theories of liability, the error is harmful and a new trial is required when the appellate
court cannot determine whether the jury based its verdict on an improperly submitted
invalid theory.
iv. When a single broad-form liability question erroneously commingles valid and invalid
liability theories and the appellant’s objection is timely and specific, the error is harmful
when it cannot determine whether the improperly submitted theories formed the sole
basis for the jury’s finding.
1. However, when questions are submitted in a manner that allows the appellate
court to determine that the jury’s verdict was actually based on a valid liability
theory, the error may be harmless.
v. Broad-form submission may not be feasible when the governing law is unsettled.
c. Instructions and Definitions
i. In General
1. An instruction is proper if it
a. Assists the jury
b. Accurately states the law
c. Finds support in the pleadings and evidence
ii. Inferential Rebuttals: an argument that does not attack or assign responsibility to any
party because there was no negligence (i.e. element missing from plaintiff’s prima facie
case). Charge may not have a question about this but you can have it under an instruction.
1. With respect to inferential rebuttal issues, jurors need not agree on what person or
thing caused an occurrence, so long as they agree it was not the defendant.
2. Exploitation Instruction: members of the jury, the information is not there, so you
may infer against them that the evidence would show this.
iii. Knowing the Effects of Answers & Comments on the Weight
1. The trial court is given wide latitude to determine the propriety of explanatory
instructions and definitions.
2. Rule 277 states that the court’s charge shall not be objectionable on the ground
that it incidentally constitutes a comment on the weight of the evidence or
advises the jury of the effect of their answers when it is properly a part of an
instruction or definition.
3. To be a direct comment on the weight of the evidence, the issue submitted must
suggest to the jury the trial court’s opinion on the matter.
a. To directly advise the jury on the legal effect of its answer, the issue
submitted must instruct the jury how to answer each question in order for
the plaintiff or defendant to prevail.
d. Preservation of Error
i. Rule 273. Jury Submissions. Such requests shall be prepared and presented to the court
and submitted to opposing counsel for examination and objection within a reasonable
time after the charge is given to the parties or their attorneys for examination. A request
by either party for any questions, definitions, or instructions shall be made separate and
apart from such party’s objections to the court’s charge.
ii. Rule 274. Objections and Requests. A party objecting to a charge must point out
distinctly the objectionable matter and the ground of the objection. Any complaint as to a
question, definition, or instruction, on account of any defect, omission, or fault in
pleading, is waived unless specifically included in the objections.
iii. Rule 276. Refusal or Modification. When an instruction, question, or definition is
requested and the provisions of the law have been complied with and the trial judge
refuses the same, the judge shall endorse thereon “Refused,” and sign the same officially.
Such refused or modified instruction, question, or definition, when so endorsed shall
constitute a bill of exceptions, and it shall be conclusively presumed that the party asking
the same presented it at the proper time, excepted to its refusal or modification, and that
all the requirements of law have been observed, and such procedure shall entitle the party
requesting the same to have the action of the trial judge thereon reviewed without
preparing a formal bill of exceptions.
iv. Form of Complaints
1. Error in a jury charge is preserved when the party made the trial court aware of
the complaint, timely and plainly, and obtain a ruling.
2. An appellate court will not reverse a judgment for a charge error unless the error
is harmful because it probably caused the rendition of an improper judgment or
probably prevented the petitioner from properly presenting the case to the
appellate courts.
3. Unless the appellate court is reasonably certain that the jury was not significantly
influenced by issues erroneously submitted to it, the error is reversible.
e. Effects of an Erroneous Charge
i. Omissions from the Charge with No Error Preserved: Deemed Findings and
Waived Grounds
1. Rule 279. Omissions from the Charge. Upon appeal, all independent grounds not
conclusively established under the evidence and no element of which is submitted
or requested are waived. When a ground of recovery or defense consists of more
than one element, if one or more of such element are submitted to and found by
the jury, and one or more of such elements are omitted from the charge, without
request or objection, and there is factually sufficient evidence, the trial court, at
the request of either party, may make and file written findings on such omitted
element or elements in support of the judgment. If no such written findings are
made, such omitted element or elements shall be deemed found by the court in
such manner as to support the judgment.
2. Where issues are omitted which constitute only a part of a complete and
independent ground and other issues necessarily referable to that ground are
submitted and answered, the omitted elements are deemed found in support of the
judgment if no objection is made and they are supported by some evidence.
a. There must be factually sufficient evidence for it to be deemed.
3. If one of a party’s grounds of recovery is entirely omitted from the charge and no
objection is made to its omission, the party has waived it.
4. If the ground of recovery is submitted in the charge, but there is an element
missing and no objection is made to the omission, the ground is not waived.
ii. Remedy for Jury Charge Error Properly Preserved—Remand or Render?
1. In most instances, the appellate court must remand to let the trial court try the case
with the proper charge. However, when the error makes the jury question
immaterial, the question and answer to it should be ignored, and judgment
rendered accordingly.
2. When the court doesn’t know what the jury would have found, the case should be
a. Managing the Jury Deliberations
i. Juror Note-Taking: Note-taking by jurors is not prohibited, but is left to the discretion
of the trial judge in appropriate cases.
b. Defective Verdicts
i. Hung Juries
1. Rule 289 indicates that a jury to whom a case has been submitted may be
discharged when they cannot agree and the parties consent to their discharge, or
when they have been kept together for such time as to render it altogether
improbable that they can agree; or when any calamity or accident may, in the
opinion of the court, require it.
2. The amount of time the jury is to be held in an effort to secure an agreement is left
to the sound discretion of the trial judge.
a. A trial judge must have considered latitude, short of genuine prejudice to a
b. There must be substantial evidence to suggest that it was altogether
improbable that the jury would reach a verdict.
3. A trial judge cannot coerce a jury to reach a verdict.
ii. Gaps and Conflicts
1. A judgment cannot be based on a verdict containing unanswered issues, supported
by some evidence, unless the issues are immaterial.
a. Issues are immaterial if their answers can be found elsewhere in the charge
or if they cannot alter the effect of the verdict.
2. The trial court must instruct the jury to deliberate further on the issues.
a. If upon further deliberation the jury cannot agree on answers to the issues,
the trial court may declare a mistrial, but the trial court may not render
judgment based on the incomplete verdict.
3. The trial court will not be reversed for rendering judgment, however, unless the
party who would benefit from the answers to the issues objects to the incomplete
verdict before the jury is discharged, making it clear that he desires that the jury
redeliberate on the issues or that the trial court grant a mistrial.
4. A party who silently allows the verdict to be accepted and the jury to be
discharged waives the right to complain that the questions are unanswered, and
the trial court may disregard the unanswered questions and render judgment for
the party entitled to prevail under the findings made.
5. The Rules make the judge the fact-finder for missing questions but not for
missing answers.
a. A missing jury answer is not waived, even though the proponent has not
complained, if an erroneous conditioning instruction has withheld it from
the jury’s consideration.
b. In such a case, the question is treated exactly as if it had never been in the
charge at all.
c. Rule 279 applies, and the trial judge can supply the missing answer.
iii. Verdict Rendered by Less than Twelve Juror
1. Rule 292 allows non-unanimous verdicts, with the same ten of twelve jurors
concurring with each answer to the charge. The rule also allows a unanimous
verdict when any jurors have been discharged during the trial, but at least nine
jurors remain.
2. Trial courts have broad discretion in determining whether a juror is disabled from
sitting when there is evidence of constitutional disqualification.
a. Not just any inconvenience or delay is a disability.
b. A constitutional disability must be in the nature of an actual physical or
mental incapacity.
c. A juror who was temporarily unable to return to the courthouse because of
heavy flooding was not thereby disabled from sitting.
3. Must be more than mere mental distress occasioned by the sickness of others, and
the feeling that duty to the sick demanded his presence elsewhere.
c. Attacking the Jury’s Verdict for Sufficiency of Evidence:
i. The Texas Scheme—Zones of Evidence
1. Zone 1. No Evidence
a. No more than a scintilla of evidence; No Duty Case
b. Legal Sufficiency point: as a matter of law
c. Raised by: motion for summary judgment, directed verdict, objection to
jury charge, motion to disregard findings, judgment n.o.v., new trial.
2. Zone 2. Insufficient Evidence
a. Factual Sufficiency Point
b. Raised by motion for new trial
3. Zone 3. Jury Finding will be upheld
4. Zone 4. Great Weight and Preponderance of Evidence
a. Factual sufficiency point
b. Raised by motion for new trial
5. Zone 5. Conclusive Evidence
a. Legal Sufficiency Point: as a matter of law
b. Raised by: motion for summary judgment, directed verdict, objection to
jury charge, motion to disregard findings, judgment n.o.v., new trial.
ii. Evolutions of Legal Sufficiency Standard of Evidentiary Review
1. Appellate courts must view the evidence in the light favorable to the verdict,
crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not
2. Questions:
a. What is exclusive standard? Consider only the evidence and inferences
that tend to support the finding and disregard all evidence and inferences
to the contrary.
b. No evidence review in four cases: Court will exclude contrary evidence in
(iii) but not exclude contrary evidence (the inclusive rule) in (i), (ii) and
i. a complete absence of evidence of a vital fact
ii. court barred by rules of law or evidence from giving weight to the
only evidence offered of vital fact
iii. evidence offered to prove a vital fact is no more than a scintilla
iv. the evidence establishes conclusively the opposite of the vital fact
c. Courts may use the exclusion rule, but they must understand exceptions to
3. Contrary evidence that cannot be disregarded: Evidence can be disregarded
whenever reasonable jurors could do so.
4. Exceptions to using exclusive evidence rule:
a. Contextual evidence
i. In some cases, a lack of supporting evidence may not appear until
all the evidence is reviewed in context.
1. defamation cases
2. construing contracts
3. intentional infliction of emotional distress
ii. Generally, evidence may not be taken out of context in a way that
makes it seem to support a verdict when in fact it never did.
b. Competency evidence
i. Incompetent evidence is legally insufficient to support a judgment,
even if admitted without objection.
ii. When expert testimony required, lay evidence on liability is legally
iii. So court cannot disregard contrary evidence showing that expert
witness is not scientifically based.
iv. Evidence that might be considered “some evidence” is “no
evidence if the contrary evidence shows it to be incompetent.
c. Circumstantial equal evidence
i. When circumstantial evidence of a vital fact is meager, a reviewing
court must consider it not just favorable but all the circumstantial
evidence and competing inferences as well.
ii. Isn’t it the role of the jury to pick among equally likely inferences?
Not for Appellate Court?
d. Conclusive evidence
i. Appellate court cannot disregard undisputed evidence that allows
of only one logical inference.
1. Physical facts that cannot be denied
2. Undisputed contrary evidence may become conclusive
when a party admits it.
ii. Evidence is conclusive only if reasonable people could not differ in
their conclusions and this depends on the facts of each case.
iii. Legal sufficiency review prevents reviewing court from submitting
their opinions on credibility for those of the jurors, but proper
review also prevents jurors from substituting their opinions for
undisputed truth. When evidence contrary to a verdict is
conclusive, it cannot be disregarded.
e. Clear and convincing evidence
f. Consciousness evidence
i. In cases involving what a party knew or why it took a certain
course, that is not amenable to review under the exclusive
ii. In gross negligence cases, review must consider a review of all the
iii. In insurance bad faith cases, courts have been looking at all the
evidence to determine if coverage reasonably clear. Reviewing
courts do not have to credit losing party’s explanations if jury
could disregard them, but reviewing court would have to consider
conflicting evidence to see if jury could reasonably disregard it.
5. Inclusion Standard
a. Contrary evidence that must be disregarded
i. Even if court must look at conflicting evidence under inclusion
standard, looking at all evidence in light favorable to verdict often
requires that much of it be disregarded.
ii. Here are instances when contrary evidence must be disregarded
even when court begins by considering all the evidence.
b. Credibility evidence
i. Jurors sole judges of credibility. BUT:
1. jurors decisions on credibility must be reasonable.
2. jurors may not believe testimony that is conclusively
negated by undisputed facts.
3. And court on review must assume that jurors made
credibility decisions in favor of their verdict.
c. Conflicting evidence: Where reasonable jurors could resolve conflicting
evidence either way, reviewing courts must presume they did so in favor
of the prevailing party, and disregard evidence in their legal sufficiency
d. Conflicting inferences
i. Jurors may draw whatever inferences they wish, so long as more
than one is possible, BUT the jury may not simply guess.
ii. So reviewing courts reviewing all the evidence in a light favorable
to the verdict must assume jurors made all inferences in favor of
their verdict if reasonable minds could, and disregard all other
inferences in their legal sufficiency review.
6. Reconciling the standards: Both standards correct.
a. Goals: the standards must be the same—if the evidence at trial would
enable reasonable and fair minded people to differ in their conclusions,
then jurors must be allowed to do so.
i. Whether court starts with all or only part of the record, the court
1. Consider the evidence in the light most favorable to the
verdict, and
2. Indulge every reasonable inference that would support it.
3. But if evidence allows of only one inference, neither jurors
not the reviewing court may disregard it.
ii. If the evidence at trial would enable reasonable and fair- minded
people to differ in their conclusions, then jurors must be allowed to
do so. A reviewing court cannot substitute its judgment for that of
the trier-of –fact, so long as evidence falls within this zone of
reasonable disagreement.
b. Other motions: standards must be the same
i. Scope of review should not depend upon the motion in which it is
ii. Summary judgments
iii. Directed verdicts
iv. Judgments n.o.v.
v. Appellate no –evidence review
c. Fed courts standards the same
7. Conclusion: The standards are the same
a. Both standards (exclusive and inclusive) –properly applied-must arrive at
the same result, we see no compelling reason to choose among them.
b. Key concept is “PROPERLY APPLIED”- Legal sufficiency review in the
proper light must credit favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not.
iii. Identifying Scintillas
1. A legally sufficient challenge will be upheld if the evidence offered to prove a
vital fact is no more than a scintilla.
2. Evidence does not exceed a scintilla if it is so weak as to do no more than create a
mere surmise or suspicion that the fact exists.
iv. Conclusive Evidence
1. When a party with the burden of proof loses at trial and asks an appellate court to
render judgment in his favor, the party must show that the evidence conclusively
established his entitlement to judgment.
v. Motions Presenting Legal Sufficiency
1. Rule 268. Motion for Instructed Verdict. A motion for directed verdict shall state
the specific grounds therefor.
2. Rule 270. Additional Testimony. When it clearly appears to be necessary to the
due administration of justice, the court may permit additional evidence to be
offered at any time; provided that in a jury case no evidence on a controversial
matter shall be received after the verdict of the jury.
3. Rule 301. Judgments. The judgment of the court shall conform to the pleadings,
the nature of the case proved and the verdict, if any, and shall be so framed as to
give the party all the relief to which he may be entitled either in law or equity.
Upon motion and reasonable notice the court may render judgment non obstante
veredicto if a directed verdict would have been proper, and provided further that
the court may upon like motion and notice, disregard any jury finding on a
question that has no support in the evidence.
vi. Factual Sufficiency Review
1. The courts must consider and weigh all of the evidence in the case in determining
whether the evidence is insufficient or if the verdict is so against the great weight
and preponderance of the evidence as to be manifestly unjust.
2. Court of appeals, when reversing on insufficiency grounds, should detail the
evidence relevant to the issue in consideration and clearly state why the jury’s
finding is factually insufficient or is so against the great weight and
preponderance as to be manifestly unjust; why it shocks the conscience; or clearly
demonstrates bias.
3. Need not detail when affirming the jury verdict. One exception is exemplary
Judgments and Post Judgment Motions
a. Civil Judgments Generally
i. Rule 305. Proposed Judgment. Any party may prepare and submit a proposed judgment
to the court for signature.
ii. Rule 306. Recitation of Judgment. The entry of the judgment shall contain the full names
of the parties, as stated in the pleading, for and against whom the judgment is rendered.
iii. Rule 306a. Periods to Run from Signing of Judgment.
(1) Beginning of Periods. The date shown of the judgment or order is signed as
shown of record shall determine the beginning of the periods prescribed by these
rules for the court’s plenary power to grant a new trial or to vacate, modify,
correct or reform a judgment or order and for filing in the trial court the various
documents that these rules authorize a party to file within such periods including,
but not limited to, motions for new trial, motions to modify judgment, motions to
reinstate a case dismissed for want of prosecution, motions to vacate judgment
and requests for findings of fact and conclusions of law.
b. Motions for Judgment and Judgment N.O.V.
i. A claim that the evidence was legally or factually insufficient to warrant submission of
any question may be made for the first time after verdict, regardless of whether the
submission of such question was requested by the complainant.
ii. A no evidence challenge to a jury’s answer may be made by motion for j.n.ov. or a
motion to disregard o no-evidence grounds.
iii. There are three necessary elements which must be included in a motion to disregard
1. Motion must designate the finding and/or findings which the court is called upon
to disregard;
2. Specify the reason why the finding or findings should be disregarded;
3. Contain a request that judgment be entered on the remaining findings after the
specified findings have been set aside or disregarded.
iv. A jury’s answers to questions in the charge may only be disregarded if they have no
support in the evidence or if they are immaterial.
1. A question is immaterial when it should not have been submitted, it calls for a
finding beyond the providence of the jury (such as a question of law), or when it
was properly submitted but has been rendered immaterial by other findings.
c. Remittitur
i. Rule 315. Remittitur. Any party in whose favor a judgment has been rendered may remit
any part thereof in open court, or by executing and filing with the clerk a written
remittitur signed by the party or the party’s attorney of record, and duly acknowledged by
the party or the party’s attorney. Such remittitur shall be a part of the record of the cause.
Execution shall issue for the balance only of such judgment.
ii. A party may agree not to accept part of the award in order to avoid a new trial.
iii. If such a court is of the opinion that the verdict ad judgment of the trial court is excessive
and that said be reversed for that reason only, then said appellate court shall indicate to
such a party, or his attorney, within what time he may file a remittitur of such excess.
1. If such remittitur is so filed, then the court shall reform and affirm such judgment
in accordance therewith; if not filed as indicated then the judgment shall be
iv. The court must first determine what amount would be reasonable, before it can determine
what amount would be unreasonable.
1. It should authorize a remittitur of the excess above the amount which would
reasonably compensate for the injury, in accordance with its sound judgment.
v. The proper remittitur standard is factual sufficiency: the question of the excessiveness of
a verdict in this character of a suit is purely a question of fact, upon which the judgment
of the court of appeals is final.
vi. Factual sufficiency is the sole remittitur standard for actual damages.
vii. The court of appeals may not order a separate trial solely on unliquidated (unclear)
damages if liability is contested.
d. Motions for New Trial
i. Rule 320. Motion and Action of Court Thereon. New trials may be granted and judgment
set aside for good cause, on motion or on the court’s own motions on such terms as the
court shall direct. New trials may be granted when the damages are manifestly too small
or too large.
ii. Rule 321. Form. Each point relied upon in a motion for new trial or in arrest of judgment
shall briefly refer to that part of the ruling of the court, charge given to the jury, or charge
refused, admission or rejection of evidence, or other proceedings which are designated to
be complained of, in such a way that the objection can be clearly identified and
understood by the court.
iii. Rule 324. Prerequisites of Appeal.
(a) Motion for New Trial Not Required. A point in a motion for new trial is not a
prerequisite to a complaint on appeal in either a jury or a nonjury case, except as
provided by subsection (b).
(b) Motion for New Trial Required. A point in a motion for new trial is a
prerequisite to the following complaints on appeal:
(1) A complaint on which evidence must be heard such as one of jury
misconduct or newly discovered evidence or failure to set aside a
judgment by default;
(2) A complaint of factual insufficiency of the evidence;
(3) A complaint that a jury finding is against the overwhelming weight of
the evidence;
(4) A complaint of inadequacy or excessiveness of the damages found by
the jury; or
(5) Incurable jury argument if not otherwise ruled on by the trial court.
iv. Rule 329. Motion for New Trial on Judgment Following Citation by Publication. In cases
in which judgment has been rendered on service of process by publication, when the
defendant has not appeared in person or by attorney of his own selection:
(a) The court may grant a new trial upon petition of the defendant showing good
cause, supported by affidavit, filed within two years after such judgment was
signed. The parties adversely interested in such judgment shall be cited as in other
v. Rule 329b. Time for Filing Motions. The following rules shall be applicable to motions
for new trial and motions to modify, correct, or reform judgments (other than motions to
correct the record under Rule 316) in all district and county courts:
(a) A motion for new trial, if filed, shall be filed prior to or within 30 after the
judgment or other order complained of is signed.
(b) One or more amended motions for new trial may be filed without leave of
court before any preceding motion for new trial filed by the movant is overruled
and within 30 days after the judgment or other order complained of is signed.
(c) In the event an original or amended motion for new trial or a motion to
modify, correct, or reform a judgment is not determined by written order signed
within 75 days after the judgment was signed, it shall be considered overruled by
operation of law on expiration of that period.
(d) The trial court, regardless of whether an appeal has been perfected, has
plenary power to grant a new trial or to vacate, modify, correct, or reform the
judgment within 30 days after the judgment is signed.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless
of whether an appeal has been perfected, has plenary power to grant a new trial or
to vacate, modify, correct, or reform the judgment until 30 days after all such
timely-filed motions are overruled, either by a written and signed order or by
operation of law, whichever occurs first.
(f) On expiration of the time within which the trial court has plenary power, a
judgment cannot be set aside by the trial court except by bill of review for
sufficient cause.
(g) A motion to modify, correct, or reform judgment, if filed, shall be filed and
determined within the time prescribed by this rule for a motion for new trial and
shall extend the trial court’s plenary power and the time for perfecting an appeal
in the same manner as a motion for new trial.
(h) If a judgment is modified, corrected or reformed in any respect, the time for
appeal shall run from the time the modified, corrected, or reformed judgment is
vi. Trial Court Authority
1. Mandamus
a. An appellate court may conduct a merits review of the bases for a new
trial order after a trial court has set aside a jury verdict. If the record does
not support the trial court’s rationale for ordering a new trial, the appellate
court may grant mandamus relief.
b. The trial court must give more explanation than in the interest of justice.
c. Trial court satisfies its requirement so long as the order provides a cogent
and reasonably specific explanation of the reasoning that led the court to
conclude that a new trial was warranted.
d. A trial court does not abuse its discretion so long as its stated reason for
granting a new trial
i. Is a reason for which a new trial is legally appropriate; and
ii. Is specific enough to indicate that the trial court did not simply
parrot a pro forma template, but rather derived the articulated
reasons from the particular facts and circumstances of the case at
e. An order that does not specify these requirements may be corrected by
f. There are two narrow instances in which a new trial orders are reviewable,
on the merits, by mandamus:
i. When the trial court’s order was void or
ii. When the trial court erroneously concluded that the jury’s answers
to special issues were irreconcilably in conflict.
e. Timing and Plenary Power
i. Mandamus relief is appropriate when a trial court issues an order after its plenary power
has expired.
ii. An amended motion filed after being overruled need not be considered by the trial court
and does not extend the trial court’s plenary power even if leave of court is obtained and
it is filed within 30 days of judgment.
iii. Under Rule 329b, a trial court’s plenary power to grant a new trial expires 30 days after it
overrules a motion for new trial, only provided no other type of 329b motion is timely
iv. A motion for new trial or motion to modify filed before the judgment is signed is a
premature motion.
1. Deemed timely filed immediately after the trial court judgment is signed,
extending plenary power and appellate deadlines.
f. Motions Following Bench Trials
i. After a court files original findings of fact and conclusions of law, any party may file a
request for specified additional or amended findings or conclusions of law.
1. A bare request is not sufficient; proposed findings must be submitted.
ii. Rule 298 requires additional findings of fact and conclusions of law only if they relate to
ultimate or controlling issues.
1. The trial court is not required to make findings that are unsupported in the record,
that relate merely to evidentiary matters, or that are contrary to other previous
2. If a party makes a request for additional findings and conclusions and the trial
court fails to make such findings, its failure is tantamount to a refusal.
iii. Upon proper request, trial courts must make findings only on controlling or ultimate
issues, not evidentiary ones.
iv. Requests for findings of fact and conclusions of law are due within 20 days of the signing
of the judgment.
1. The judge has then 20 days after the request in which to act, but, if he does not,
the requesting attorney must prod the judge within 30 days after filing the original
request (10 days after the judge’s deadline has passed) by giving notice that the
findings and conclusions are past due.
2. The reminder notice extends the judge’s deadline to 40 days after the original
3. If the attorney fails to send the reminder, any complaint of the judge’s failure is
4. If, however, the judge is properly reminded and fails thereafter to meet the new
deadline, the judge’s failure is presumed harmful, unless the record before
appellate court affirmatively shows that the complaining party has suffered no
v. A request for findings and conclusions does not extend the court’s plenary power. Not all
requests for findings and conclusions extended appellate deadline.
vi. Any change to a judgment made by the trial court while it retains plenary power
jurisdiction will restart the appellate timetable under rule 329b(h), but only a motion
seeking a substantive change will extend the appellate deadlines and the court’s plenary
power under rule 329b(g).
vii. A timely filed request for findings of fact and conclusions of law extends the deadline for
perfecting appeal from 30 to 90 days after the judgment is signed in a case tried without a
1. Not every case finally adjudicated without a jury trial is a case tried without a jury
within the meaning of rule 41(a)(1).
a. A request for findings in a case concluded by summary judgment does not
extend appellate deadlines.
2. A party is not entitled to findings of fact and conclusions of law following
summary judgment, judgment n.o.v., or judgment after directed verdict.
viii. Timely filed requests for findings of fact and conclusions of law exends the time for
perfecting appeal when findings and conclusions are required by Rule 296, or when are
not required by rule 296 but are not without purpose—that is, they could properly be
considered by the appellate court.
1. Ex: judgments after a conventional trial before the court; default judgment on
claim of unliquidated damages; judgment rendered as sanctions; and any
judgment based in any part on an evidentiary hearing.
a. Court of Appeals Jurisdiction
i. § 22.220(a). Civil Jurisdiction. Each court of appeals has appellate jurisdiction of all civil
cases within its district of which the district courts or county courts have jurisdictions
when the amount in controversy or the judgment rendered exceeds $250.
ii. § 22.225. Effect of Judgment in Civil Cases.
(a) A judgment of a court of appeals is conclusive on the facts of the case in all
civil cases.
(b) A judgment of a court of appeals is conclusive on the law and facts, and a
petition for review is not allowed to the supreme court, in the following civil
(3) An appeal from an interlocutory order appointing a receiver or trustee
or from other interlocutory appeals that are allowed by law;
(5) all other cases except the cases where appellate jurisdiction is given to
the supreme court and is not made final in the courts of appeals
(c) Supreme Court will have jurisdiction in cases in which the justices of the court
of appeals disagree on a question of law material to the decision or in which one
of the courts of appeals holds law differently from a prior decision of another
court of appeals or of the supreme court.
(e) For purposes of subsection (c), one court hold differently from another when
there is inconsistency in their respective decisions that should be clarified to
remove unnecessary uncertainty in the law and unfairness to litigants.
iii. § 51.014. Appeal from Interlocutory Order
(a) A person may appeal from an interlocutory order of a district court, county
court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that appoints a receiver or
(3) certifies or refuses to certify a class in a suit brought under Rule 42 of
the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants or overrules a motion
to dissolve a temporary injunction as provided by Chapter 65;
(5) denies a motion for summary judgment that is based on an assertion of
immunity by an individual who is an officer or employee of the state or a
political subdivision of the state;
(6) denies a motion for summary judgment that is based in whole or in part
upon a claim against or defense by a member of the electronic or print
media, acting in such capacity, or a person whose communication appears
in or is published by the electronic or print media, arising under the free
speech or free press clause of the First Amendment to the United States
Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter
(7) grants or denies the special appearance of a defendant under Rule
120a, Texas Rules of Civil Procedure, except in a suit brought under the
Family Code;
(8) grants or denies a plea to the jurisdiction by a governmental unit as that
term is defined in Section 101.001;
(9) denies all or part of the relief sought by a motion under Section
74.351(b), except that an appeal may not be taken from an order granting
an extension under Section 74.351; or
(10) grants relief sought by a motion under Section 74.351(1); or
(11) denies a motion to dismiss filed under Section 90.007.
(b) An interlocutory appeal under Subsection (a), other than an appeal under
Subsection (a)(4), stays the commencement of a trial in the trial court pending
resolution of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or
(8) also stays all other proceedings in the trial court pending resolution of that
iv. Any judgment following a conventional trial on the merits creates a presumption that the
judgment is final for purposes of appeal.
1. A judgment following a conventional trial on the merits need not dispose of every
party and claim from the presumption of finality to apply.
2. When a judgment, not intrinsically interlocutory in character, is rendered and
entered in a case regularly set for a conventional trial on the merits, no order for a
separate trial of issues having been entered, 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 pleadings between such parties.
v. The presumption does not apply to summary judgments or default judgments.
1. Ex: if in a default judgment, the court doesn’t dispose of the punitive damages
issue, the judgment is considered interlocutory and, therefore, not final.
vi. In a judgment without a conventional trial on the merits, the judgment must expressly
dispose of them for the judgment to be a final judgment.
vii. Where only one final and appealable judgment can be rendered, judgment without a
conventional trial, is final for purposes of appeal if and only if:
1. Actually disposes of all claims and parties before the court, regardless of its
language, or
2. States with unmistakable clarity that it is a final judgment as to all claims and all
viii. Whether a judicial decree is a final judgment must be determined from its language and
the record in the case.
ix. General rule of presumption of finality in judgments does not apply to: nonsuits; plea to
jurisdiction; plea in abatement; want of prosecution; default judgment; and summary
x. Judgment that finally disposes of all remaining parties and claims, based on the record of
the case, is final, regardless of its language.
xi. Judgment that actually disposes of all claims and parties is final even if it says it is
xii. To make it final, the intent to finally dispose of the case must be equivocally expressed in
the words of the order itself.
1. Ex: if defendant moves for summary judgment on just one claim of four in a case,
but the court rules against plaintiffs on all claims, it is final though it would be
2. A judgment that grants more relief than a party is entitled to is subject to reversal,
but it is not for that reason alone, interlocutory.
b. Timetables in the Court of Appeals
i. Timetable: No Motion for New Trial
1. Record is due in Court of Appeals the 60th day from final judgment.
2. File appellant’s brief 30 days from filing of record
3. File appellee’s brief 30 days from filing of appellant’s brief
4. File reply brief 20 days from filing of Appellee’s brief
ii. Timetable: Motion for New Trial or to Modify
1. File motion for new trial or modify within 30 days of final judgment
2. Overruled by operation of law within 75 days from final judgment
3. File notice of appeal in trial court and copy to court of appeals by day 90
4. End maximum period of trial court’s plenary jurisdiction on day 105.
5. Record is due in court of appeals on day 120
6. File appellant’s brief 30 days from filing of record
7. File appellee’s brief 30 days from filing of appellant’s brief
8. File reply brief 20 days from filing of Appellee’s brief
iii. If a judgment is modified in any respect, appellate deadlines do not run from the original
judgment but from the date when the modified judgment is signed.
1. If the court directly order a reduction in damages, that order necessarily modifies
the judgment even if it is incorrectly called a remittitur.
2. By contrast, we have also held that if a party files a purely voluntary remittitur
(without order or suggestion from the court), the judgment has not been modified.
3. Deadlines are restarted by any change, whether or not material or substantial.
a. Appellate deadlines are restarted by an order that does nothing more than
change the docket number or deny all relief not expressly granted.
iv. Motions to extend time require a reasonable explanation—any plausible statement of
circumstances indicating that failure to file within the required period was not deliberate
or intentional, but was the result of inadvertence, mistake or mischance.
1. Any conduct short of deliberate and intentional qualifies as inadvertence, mistake
or mischance—even if that conduct can also be characterized as professional
v. A motion for extension of time is necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed but within 15-day grace period.
1. An appellant must offer a reasonable explanation for failing to file the notice of
appeal in a timely manner.
vi. The court of appeal’s jurisdiction automatically ceases 60 days after the judgment is no
timely motion for rehearing or motion to extend time is filed, or 30 days after all timely
filed motions for rehearing and motions to extend time are overruled.
c. Jurisdiction of the Supreme Court of Texas
i. The supreme court might take jurisdiction, notwithstanding the finality of judgments of
the court of civil appeals on fact questions, in order to determine if a correct standard had
been applies by the intermediate courts.
ii. Supreme Court may only decide if a case falls in Zone 0 or Zone 5.
1. It cannot decide if it is Zone 2, 3, or 4 because those are questions of fact and the
court of appeals has jurisdiction with questions of fact.
iii. The Supreme court cannot find facts but it can un-find facts.
iv. Supreme Court has jurisdiction over questions of law.
d. Original Jurisdiction in the Appellate Courts
i. The Supreme Court’s mandamus jurisdiction extends to the courts of appeals.
1. Mandamus jurisdiction is not dependent on appellate jurisdiction.
ii. Mandamus is appropriate when there is a clear abuse of discretion and the party has
shown there is no adequate remedy by appeal.
1. An appellate remedy is adequate when any benefits to mandamus review are
outweighed by the detriments.
2. When the benefits outweigh the detriments, appellate courts must consider
whether the appellate courts must consider whether the appellate remedy is
iii. Both the court of appeals and the Supreme Court have mandamus jurisdiction over a trial
court judge.
VIII. Defaults and Dismissals
a. Obtaining and Overturning a Default Judgment
i. Rule 239. Judgment by Default. At any time after a defendant is required to answer, the
plaintiff may in term time take judgment by default against such defendant if he has not
previously filed an answer, and provided that the return of service shall have been on file
with the clerk for the length of time required by Rule 107.
ii. Rule 239a. Notice of Default Judgment. The clerk shall mail written notice thereof to the
party against whom the judgment was rendered at the address shown in the certificate,
and note the fact of such mailing on the docket.
iii. Rule 240. Where only some answer. Where there are several defendants, some of whom
have answered or have not been duly served and some of whom have been duly served
and have made default, an interlocutory judgment by default may be entered against those
who have made default, and the cause may proceed or be postponed as to the others.
iv. Rule 241. Assessing Damages on Liquidated Demands. If the claim is liquidated and
proved by an instrument in writing, the damages shall be assessed by the court, or under
its discretion, and final judgment shall be rendered therefor.
v. Rule 243. Unliquidated Demands. If the cause of action is unliquidated or be not proved
by an instrument in writing, the court shall hear evidence as to damages.
vi. Rule 244. On Service by Publication. Where service has been made by publication, ad no
answer has been filed nor appearance entered, the court shall appoint an attorney to
defend the suit in behalf of the defendant, and the judgment shall be rendered as in other
vii. When a defendant is served with process, he is obligated to respond by answer or with
other appearance by the Monday next following 20 days after service of process.
viii. A post-answer default differs from the no-answer default because the answer puts the
merits of the claim in issue.
1. Judgment cannot be rendered on the pleadings, and the plaintiff must prove
liability as well as damages in the default judgment hearing.
b. Void or Voidable Judgment & Direct or Collateral Attack
i. When a judgment is void, it can be attacked at anytime, using any available procedure.
ii. If the judgment is merely voidable, one is limited in the time and procedures available to
challenge it.
iii. A judgment is void when the court rendering judgment has no jurisdiction of the parties
or property, no jurisdiction of the subject matter, no jurisdiction to enter a particular
judgment, or no capacity to act.
1. Merely voidable when the court had such power.
iv. A void judgment can be attacked either directly or collaterally.
1. A direct attack is a proceeding brought for the purpose of attacking a judgment,
and must be filed within strict deadlines.
2. A collateral attack is an attack on a judgment brought in a proceeding brought for
some other purpose.
a. No time limit to collaterally attack a void judgment.
v. There are three methods to directly attack a default judgment in Texas:
1. The motion for new trial filed in the trial court, which if denied will be appealed;
2. Writ of error review, which is a special appeal to the court of appeals; and
3. The bill of review, an equitable proceeding filed in the trial court.
c. Motion for New Trial and the Craddock Test
i. If the defendant was served by publication, a motion for new trial may be filed until 2
years after the date the judgment was signed.
ii. First determine if the judgment is void or not—if void, default judgment should be set
aside regardless of Craddock.
iii. Under Craddock, a trial court is required to set aside a default judgment if:
1. The failure of the defendant to answer before judgment was not intentional, or the
result of conscious indifference on his part, but was due to a mistake or accident;
a. Conscious indifference is when the defendant knew he was being sued and
didn’t care.
2. The motion for a new trial sets up a meritorious defense; and
3. Granting the motion will occasion no delay or otherwise work an injury to the
iv. If the movant had no notice of the proceedings, he is not required to show a meritorious
defense in order to obtain a new trial. That would violate federal due process protection.
The other Craddock requirements would still apply.
v. When the rule provide the defaulting party a remedy. Craddock doesn’t apply.
1. Craddock doesn’t apply to a motion for new trial filed after judgment has been
granted on a summary judgment motion to which the nonmovant failed to timely
respond when the movant had an opportunity to seek a continuance or obtain
permission to file a late response.
d. Restricted Appeal
i. Must be filed within 6 months of the date of the judgment.
ii. A direct attack on a judgment by writ of error must:
1. Be brought within six months after the judgment was signed
2. By a party to the suit
3. Who did not participate in the actual trial, and
4. The error complained of must be apparent from the face of the record.
iii. Evidence not before the trial court prior to final judgment may not be considered in a writ
of error proceedings.
1. The appropriate remedy when extrinsic evidence is necessary to the challenge of a
judgment is by motion for new trial.
e. Bill of Review & Extrinsic Evidence
i. Must be brought within 4 years of the rendition of judgment.
ii. The bill of review plaintiff (the defaulting defendant) must plead and prove:
1. A meritorious defense;
2. That he was prevented from making by fraud, accident or wrongful act of his
opponent or official mistake;
3. Unmixed with any fault or negligence on his own part.
iii. The parties have a right to a jury determination of the fact issues presented, and if
established, the bill of review plaintiff gets a new trial on underlying claim.
iv. When judgment is void, plaintiff need not prove the first two elements and the third is
conclusively established upon proof of lack of service of process.
v. The fraud required for the bill of review is extrinsic fraud—fraud that denies a litigant the
opportunity to fully litigate a trial all the rights or defenses that could have been asserted.
1. It is contrasted with intrinsic fraud, which related to the merits of the issues which
were presented—within that term are included such matters as fraudulent
instruments, perjured testimony, or any matter which actually presented to and
considered by the court in rendering the judgment assailed.
vi. A judgment is void if the defects in service are so substantial that the defendant was not
afforded due process.
1. When a defective citation is served, but the citation puts the defendant on notice
of asserted claims in a pending suit, and the technical defects are not of the sort
that deprive a litigant of the opportunity to be heard, we reject them as grounds
sufficient to support a collateral attack.
vii. A bill of review is an equitable proceeding to set aside a prior judgment that is no longer
subject to challenge by a motion for new trial or direct appeal.
f. Dismissal for Want of Prosecution and Motion to Reinstate
i. 165a. Dismissal for Want of Prosecution.
(1) Failure to appear. A case may be dismissed for want of prosecution on failure
of any party seeking affirmative relief to appear for any hearing or trial of which
the party had notice. At the dismissal hearing, the court shall dismiss for want of
prosecution unless there is good cause for the case to be maintained on the docket.
If the court determined to maintain the case on the docket, it shall render a pretrial
order assigning a trial date for the case and setting deadlines for the joining of
new parties, all discovery, filing of all pleadings, the making of a response or
supplemental responses to discovery and other pretrial matters. The case may be
continued thereafter only for valid and compelling reasons specifically
determined by court order.
(3) Reinstatement. A motion to reinstate shall set forth the grounds therefor and
be verified by the movant or his attorney. It shall be filed with the clerk within 30
days after the order of dismissal is signed or within the period provided in Rule
306a. The court shall reinstate the case upon finding after a hearing that the
failure of the party or his attorney was not intentional or the result of conscious
indifference but was due to an accident or mistake or that the failure has been
otherwise reasonably explained.
(4) Cumulative Remedies. This dismissal and reinstatement procedure shall be
cumulative of the rules and laws governing any other procedures available to the
parties in such cases. The same reinstatement procedures and timetable are
applicable to all dismissals for want of prosecution including cases which are
dismissed pursuant to the court’s inherent power, whether or not a motion to
dismiss has been filed.
g. Collateral Attacks
i. A collateral attack may be made at any time and in any court of competent jurisdiction.
ii. A collateral attack claims that the court which rendered the judgment lacked jurisdiction.
iii. The party relying on the affirmative defense of res judicata must prove:
1. A prior final determination on the merits by a court of competent jurisdiction;
2. Identity of parties or those in privity with them; and
3. A second action based on the same claims as were or could have been raised in
the first action.
iv. An order dismissing a case with prejudice for want of prosecution, though mistaken, is
merely voidable and must be attacked directly in order to prevent the order from
becoming final for purposes of establishing res judicata.
h. Foreign Judgments
i. A party that has a final judgment from one of these courts has a constitutional right to
bring that judgment to the Texas courts for enforcement.
ii. The party seeking to enforce a foreign judgment has the initial burden to present a
judgment that appears on its face to be a final, valid, and substantial judgment.
1. Thereafter, the defendant has the burden of collaterally attacking the judgment by
establishing a recognized exception to the full faith and credit requirements.
2. However, a collateral attack on a sister state’s judgment, no defense may be set up
that goes to the merits of the original controversy.
Complex Litigation
a. Complex Cases and Summary Judgment
i. A party is not required to present or arrange all of its evidence in response to a summary
judgment motion, but, in response to a no-evidence summary judgment motion, the
respondent must present some summary judgment evidence raising a genuine issue of
material fact on the element attacked, or the motion must be granted.
ii. No-evidence summary judgment rule does not require that discovery must have been
completed, but provides that a no-evidence summary judgment may be granted after
adequate time for discovery.
a. Rule 11. Agreements to be in Writing. Unless otherwise provided in these rules, no agreement
between attorneys or parties touching any suit pending will be enforced unless it be in writing,
signed, and filed with the papers as part of the record, or unless it be made in open court and
entered of record.
b. Release
i. Release of parties named or otherwise specifically identified fully releases only the
parties so named or identified but not others, but this holding does not affect existing
releases where it appears from the language of release and other circumstances that it was
intention of releasor to release named parties and other persons generally.
ii. Release which named only the automobile driver and which made no reference to other
party did not operate to release physicians who allegedly negligently treated injured party
for injuries caused by the original tort-feasor named in release.
iii. Under rule that release of parties named or otherwise specifically identified fully releases
only parties so named or identified but no others, a claimant in no event will be entitled to
recover on more than the amount required for full satisfaction of his damages.
c. Enforcement
i. Agreed judgments must be agreed to at time the court renders the judgment.
ii. Enforceable settlements agreement: if everyone agrees at time signed and rendered,
agreement is enforceable.
iii. But if someone does not agree, court may not enter settlement as judgment.
iv. If rule 11 agreement, it can be enforced on separate lawsuit.
v. If no rule 11 agreement, the judgment cannot be enforced in separate lawuit.
vi. A party may revoke its consent to a settlement agreement at any time before judgment is
rendered on the agreement.
1. A judgment rendered after one of the parties revokes his consent is void.
vii. Approval of a settlement does not necessarily constitute rendition of judgment.
viii. Judgment is rendered when the trial court officially announces its decision in open court
or by written memorandum filed with the clerk.
ix. Oral rendition is proper under the present rules, but orderly administration requires that
form of rendition to be in and by spoken words, not in mere cognition, and to have effect
only insofar as those words state the pronouncement to be a present rendition of
1. The words used by the trial court must clearly indicate the intent to render
judgment at the time the words are expressed.
x. When a consent judgment is rendered without consent or is not in strict compliance with
the terms of the agreement, the judgment must be set aside.
xi. Rule 11 is a minimum requirement for enforcement of all agreements concerning pending
suits, including, but not limited to, agreed judgment.
1. Notwithstanding a valid Rule 11 agreement, consent must exist at the time an
agreed judgment is rendered.
xii. If the rule 11 agreement is a final judgment, the trial court maintains continuing
jurisdiction to enforce that judgment.
xiii. If, however, the agreement is simply an interlocutory order, and the dismissal order
signed is the court’s final judgment, the trial court was without jurisdiction to enforce the
Rule 11 agreement because its plenary power had expired.
xiv. When parties dictate a settlement agreement on the record (creating an enforceable
agreement under Rule 11) and the trial court approves it on the record, such a settlement
agreement does not constitute an agreed judgment unless the words used by the trial court
clearly indicate the intent to render judgment at the time the words are expressed.
d. Mary Carter Agreements
i. A Mary Carter Agreement exists when the settling defendant retains a financial stake in
the plaintiff’s recovery and remains a party at the trial of the case.
1. Mary Carter Agreements are void as against public policy.
2. Failure to object to a Mary Carter Agreement may result in waiver.
ii. Information about settlement agreements should be excluded from the jury but when a
plaintiff and a defendant settle a cause on an agreement that the settling defendant will
receive back a percentage of what the plaintiff recovers from the other defendant a jury
should be aware of such settlement.
e. Order of Settlement
i. When applicable, chapter 42 and rule 167 provide a method by which parties in certain
cases who make certain offers to settle certain claims can recover certain litigation costs,
if the offeree rejects the offer and the judgment to be awarded on those claims is
significantly less favorable to the offeree than was the offer.
ii. This only applies to an offer made substantially in accordance with this rule and a
settlement offer not made in compliance with this rule, or a settlement offer not made
under this rule, or made in an action to which this rule does not apply, cannot be basis for
awarding litigation costs under this rule as to any party.