TRCP 257 grants a change of venue and TRCP 258 says the motion shall be granted but then you find out the Constitutional created court has been closed ignoring the Constitution.
The Texas CONSTITUTION in ARTICLE 5 Section 15 states: 'There shall be established in each county in this State a County Court, which shall be a court of record'.
Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 146 (Tex.App.-Texarkana 1988, writ denied), "[I]f the motion for transfer is duly filed and is not challenged as provided in [TRCP 258] the trial judge is required to transfer the case."
Learn how to overcome this fact via "Copyright". 2nd and 4th Tuesday (7:30 PM) Denny's - (Hwy 75 North at Meadow - NW Corner - Dallas, Texas) - or see video listed in Contact area
PART II RULES OF PRACTICE IN DISTRICT and COUNTY COURTS
Section 11 Trial of Causes
A Appearance and Procedure
TRCP 237 APPEARANCE DAY
If a defendant, who has been duly cited, is by the citation required to answer on a day which is in term time, such day is appearance day as to him. If he is so required to answer on a day in vacation, he shall plead or answer accordingly, and the First day of the next term is appearance day as to him.
Alcoholic Beverage Comm'n v. Wilson, 573 S.W.2d 832,835 (Tex.App- Beaumont 1978, writ ref'd n.r.e.). "Appellant had no valid notice that a hearing would be held prior to appearance day.... Any judgment entered before the time at which a defendant is commanded by the citation to appear and answer is erroneous and must be set aside."
TRCP 237a CASES REMANDED FROM FEDERAL COURT
When any cause is removed to the Federal Court and is afterwards remanded to the state court, the plaintiff shall file a certified copy of the order of remand with the clerk of the state court and shall forthwith give written notice of such filing to the attorneys of record for all adverse parties. All such adverse parties shall have fifteen days from the receipt of such notice within which to file an answer. No default judgment shall be rendered against a party in a removed action remanded from federal court if that party filed an answer in federal court during removal.
Quaestor Invs., Inc. v. State of Chiapas, ___, S.W.3d ___, ___ (Tex.l999) (No. 98-0835; 7-1-99). "[W]e hold that jurisdiction revests in the state court when the federal district court executes the remand order and mails a certified copy to the state court. [ U ] We are ... persuaded that nothing more is required to recommence the appellate timetable than the state court's requiring jurisdiction over a case. ... The court of appeals erred when it inferred from [TRCP] 237a ... that any further affirmative action was needed."
HBA East, Ltd. v. JEA Boxing Co., 796 S.W.2d 534, 538(Tex.App- Houston [1st Dist.] 1990, writ denied). "Reading [TRCP] 237a and 239 together, we conclude that a default judgment cannot be granted against a defendant following remand of a case from federal to state court until 15 days have expired from the defendant's receipt of the remand notice from the plaintiff."
TRCP 238 CALL OF APPEARANCE DOCKET
On the appearance day of a particular defendant and at the hour named in the citation, or as soon thereafter as may be practicable, the court or clerk in open court shall call, in their order, all the cases on the docket in which such day is appearance day as to any defendant, or, the court or clerk failing therein, any such case shall be so called on request of the plaintiffs attorney.
TRCP 239 JUDGMENT BY DEFAULT
Upon such call of the docket, or 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 citation with the officer's return thereon shall have been on File with the clerk for the length of time required by Rule 107.
LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989). "Craddock has general application to all judgments of default, both those 'entered on failure of a defendant to file an answer and those entered on failure to appear for trial."'
Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.l988). "Because the record here establishes that [the defendant] had no actual or constructive notice of the trial setting, the lower courts erred in requiring him to show that he had a meritorious defense as a condition to granting his motion for new trial."
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.l939). "A default judgment should be set aside and a new trial ordered in any case in which 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; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff." [Note: Because of Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 900 (1988) and Lopez, if the party was not served or did not have notice of a hearing, the party is not required to prove a meritorious defense.]
Commonwealth Home Health Care, Inc. v. Millennium Home Health Care, Inc., __ S.W.3d __, __ (Tex.App- San Antonio 1999, n.p.h.) (No. 04-98- 00737-CV; 8-11-99). "Documents are sufficient answers for default purposes even if they lack certificates of service or were Filed by non-lawyer representatives."
TRCP 239a NOTICE OF DEFAULT JUDGMENT
At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking the same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken, which certificate shall be Filed among the papers in the cause. Immediately upon the signing of the 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. The notice shall state the number and style of the case, the court in which the case is pending, the names of the parties in whose favor and against whom the judgment was rendered, and the date of the signing of the judgment. Failure to comply with the provisions of this rule shall not affect the finality of the judgment.
John v. State, 826 S.W.2d 138, 140 (Tex.l992). TRCP 239a "specifically states that 'failure to comply with the provisions of the rule shall not affect the Finality of the judgment.'"
TRCP 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.
,180.00 v. State, 865 S.W.2d 181, 188 (Tex. App.-Corpus Christi 1993, writ denied). "The default judgments were taken against Mendoza and the informant because they failed to answer. They were interlocutory default judgments, however, because Weeks did answer, and all parties must have defaulted to impose a final default judgment against multiple parties. Once the proceeding against Weeks was complete, final default judgments could be rendered against Mendoza and the informant."
TRCP 241 ASSESSING DAMAGES ON LIQUIDATED DEMANDS
When a judgment by default is rendered against the defendant, or all of several defendants, if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and Final judgment shall be rendered therefor, unless the defendant shall demand and be entitled to a trial by jury.
Hanners v. State Bar, 860 S.W.2d 903, 911 (Tex. App- Dallas 1993, no writ). TRCP 241 "provides that when a default judgment is rendered against a defendant and the claim is liquidated or proven by a written instrument, the court shall assess the damages, unless the defendant is entitled to a jury trial."
TRCP 242 REPEALED
TRCP 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 and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, and the cause entered on the jury docket.
Texas Commerce Bank v. New, __ S.W.3d __, __ (Tex. 1999) (No. 98-0744; 9-9-99). "We conclude that because unobjected-to hearsay is, as a matter of law, probative evidence, affidavits can be evidence for purposes of an unliquidated-damages hearing pursuant to [TRCP] 243."
HoltAtherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex-1992). "After a default judgment is granted, the trial court must hear evidence of unliquidated damages. ... Therefore, when an appellate court sustains a no evidence point after an uncontested hearing on unliquidated damages following a no-answer default judgment, the appropriate disposition is a remand for a new trial on the issue of unliquidated damages."
Jackson v. Biotectronics, Inc., 937 S.W.2d 38,42 (Tex.App.-Houston [14th Dist.] 1996, no writ). "[T]he general rule is that a default judgment on an unliquidated claim admits all allegations of facts set out in the petition, except the amount of damages. To establish unliquidated damages, a plaintiff must produce evidence sufficient to comport with TRCP 243."
TRCP 244 ON SERVICE BY PUBLICATION
Where service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other cases; but, in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs.
Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex.l992). TRCP 244 "requires that a trial court appoint an attorney ad litem to represent defendants served with citation by publication who fail to file an answer or appear before the court.... [TRCP] 244 also requires that the attorney ad litem be paid a reasonable fee for his services, which is to be taxed as part of the costs.... The attorney ad litem must exhaust all remedies available to his client and, if necessary, represent his client's interest on appeal."
Isaac v. Westheimer Colony Ass'n, Inc., 933 S.W.2d 588, 591 (Tex.App.-Houston [1st Dist] 1996, writ denied). "[TJhere is no evidence in the record of the trial court having appointed an attorney ad litem in [D's] behalf. Absent strict compliance with the essential requirements of [TRCP] 244, a trial court commits reversible error."
Bames v. Domain, 875 S.W.2d 32, 33 (Tex.App- Houston [14th Dist.] 1994, no writ). "Neither the case law nor the language of [TRCP 244] reveals any indication that the burden is on the attorney to move the court to make such appointment."
TRCP 245 ASSIGNMENT OF CASES FOR TRIAL
The court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-Five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said con- tested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.
A request for trial setting constitutes a representation that the requesting party reasonably and in good faith expects to be ready for trial by the date requested, but no additional representation concerning the completion of pretrial proceedings or of current readiness for trial shall be required in order to obtain a trial setting in a contested case.
In re Carter, 958 S.W.2d 919,925 (Tex.App.-Amarillo 1997, orig. proceeding). TRCP 245 "indicates that once a written request for a trial setting has been Filed no others need be proffered. [B]y making a written request ... the requesting party is implicitly telling the court that the cause will be ready to be tried on the dates suggested. [T] he court is entitled to rely upon the representation in ordering its docket, and the parties need not again reassure the court of their preparedness. But, the same cannot be said when the court has relied upon such requests only to find that the parties could not appear on the dates selected. [W]hen that occurs, the court is empowered to take measure to reduce the disruption by again demanding notification of the parties' preparedness."
Hardin v. Hardin, 932 S.W.2d 566,567 (Tex.App- Tyier 1995, no writ). TRCP 245 "was amended in 1990 to require 45 days' notice in order to harmonize it with [TRCP] 216 (request and fee for jury trial), and to require notice of trial setting before the time for demanding ajury. [If] Since the trial setting notice in the instant case only gave (appellant] 6 days notice, it failed to comply with the current version of Rule 245. The language of the rule is mandatory."
Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.-Corpus Christi 1994, no writ). "(T]he notice requirements of [TRCP] 245 are satisfied by serving the party himself, his agent, or his attorney, under the provisions of [TRCP] 21a. ... [T]he notice [must be] sent to the attorney in charge if the party is represented by counsel, or to the party himself if pro se.
State Farm Fire & Cas. Co. v. Price, 845 S.W.2d 427, 431-32 (Tex.App.-Amarillo 1992, writ dism'd). "By the clear language of (TRCP] 245, the 45 day notice applies only to the first setting of the trial. By failing to timely and specifically object to the First setting on the basis of insufficiency of notice under rule 245, State Farm failed to preserve any error for our review."
TRCP 246 CLERK TO GIVE NOTICE OF SETTINGS
The clerk shall keep a record in his office of all cases set for trial, and it shall be his duty to inform any non- resident attorney of the date of setting of any case upon request by mail from such attorney, accompanied by a return envelope properly addressed and stamped. Failure of the clerk to furnish such information on proper request shall be sufficient ground for continuance or for a new trial when it appears to the court that such failure has prevented the attorney from preparing or presenting his claim or defense.
Bruneio v. Braneio, 890 S.W.2d 150, 155-56 n.2 (Tex.App.-Corpus Christi 1994, no writ). "[W]e believe that the term 'non-resident' was intended... as merely a descriptive term for those attorneys who may be expected to request mailed notice. ... [TRCP] 246 ... merely provides an additional vehicle for notice to any of the various attorneys who may be working on the case and want direct notification.... Accordingly, Rule 246 [expands] the requirements of notice to include nonresident attorneys who would not otherwise be entitled to direct notification of the setting under Rule 245 as the attorney in charge."
Annenttvutv. Murdoch, 779 S.W.2d 119,123 (Tex. App- Houston [1st Dist.] 1989, no writ). "[The plaintiff's] attorneys admit that they did not provide the Galveston County clerk with a stamped, self-addressed envelope for the purpose of sending to them the trial dockets for the relevant months."
TRCP 247 TRIED WHEN SET
Every suit shall be tried when it is called, unless continued or postponed to a future day or placed at the end of the docket to be called again for trial in its regular order. No cause which has been set upon the trial docket of the court shall be taken from the trial docket for the date set except by agreement of the parties or for good cause upon motion and notice to the opposing party.
Brooks v. Brooks, 561 S.W.2d 949,951 (Tex.App- Tyier 1978, no writ). "It was the legal duty of the appellant to keep himself posted as to the setting of the case for trial, and to be present to testify and aid his counsel."
TRCP 248 JURY CASES
When a jury has been demanded, questions of law, motions, exceptions to pleadings, and other unresolved pending matters shall, as far as practicable, be heard and determined by the court before the trial commences, and jurors shall be summoned to appear on the day so designated.
Gaines v. Gaines, 677 S.W.2d 727,730 (Tex.App- Corpus Christi 1984, no writ). TRCP 166 and 248 "are directory procedures that are designed to help streamline the disposition of pretrial issues."
TRCP 249 CALL OF NON-JURY DOCKET
The non-jury docket shall be taken up at such times as not unnecessarily to interfere with the dispatch of business on the jury docket.
TRCP 250 REPEALED
B Continuance and Change of Venue
TRCP 251 CONTINUANCE
No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.l996). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance."
Villegas v. Carter, 711 S.W.2d 624,626 (Tex.l986). "Generally, when movants fail to comply with [TRCP] 251's requirement that the motion for continuance be 'supported by affidavit,' we presume that the trial court did not abuse its discretion in denying the motion."
Ramirez v. State, 973 S.W.2d 388,391 (Tex.App- El Paso 1998, no pet.). "Ramirez's motion [continuance] failed to specify the information and testimony he sought or why it was material. ... Ramirez did not state the names of the witnesses from whom he sought testimony, nor did he state what he expected to prove from said witnesses."
TRCP 252 APPLICATION FOR CONTINUANCE
If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, staling such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, 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.
The failure to obtain the deposition of any witness residing within 100 miles of the courthouse of the county in which the suit is pending shall not be regarded as want of diligence when diligence has been used to secure the personal attendance of such witness under the rules of law, unless by reason of age, infirmity or sickness, or official duty, the witness will be unable to attend the court, or unless such witness is about to leave, or has left, the State or county in which the suit is pending and will not probably be present at the trial.
State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.l988). " [T]he failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not authorize the granting of a continuance."
Verkin v. Soathwest C. One, Ltd., 784 S.W.2d 92, 94 (Tex-App.-Houston [1st Dist.] 1989, writ denied). When a motion for continuance is: (1) in substantial compliance with the rule; (2) verified; and (3) uncontroverted, the court "must accept the statements in the motion as true."
TRCP 253 ABSENCE OF COUNSEL AS GROUND FOR CONTINUANCE
Except as provided elsewhere in these rules, 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.
Villegas v. Carter, 711 S.W.2d 624,626 (Tex.l986). " [T] he trial court abused its discretion because the evidence shows that [the party] was not negligent or at fault in causing his attorney's withdrawal. The court granted [the party's] attorney's motion to voluntarily withdraw 2 days before trial-too short a time for [the party] to Find a new attorney and for that new attorney to investigate the case and prepare for trial."
State v. Crank, 666 S.W.2d 91, 94 (Tex.l984). "[C]ourts have required a showing that the failure to be represented at trial was not due to the party's own fault or negligence."
Rehabilitation Facility, Inc. v. Cooper, 962 S.W.2d 151, 155-56 (Tex.App--Austin 1998, no pet.). "In general, absence of counsel is not good cause for a continuance. The court does have the discretion, however, to allow a continuance if good cause is shown. [A] nother attorney from the same law Firm ... had signed pleadings and conducted discovery in this case before trial. Nothing in the record suggests that attorney was incapable of rendering adequate representation."
TRCP 254 ATTENDANCE ON LEGISLATURE
In all civil actions, including matters of probate, and in all matters ancillary to such suits which require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders, at any time within thirty days of a date when the legislature is to be in session, or at any time the legislature is in session, or when the legislature sits as a Constitutional Convention, it shall be mandatory that the court continue the cause if it shall appear to the court, by affidavit, that any party applying for continuance, or any attorney for any party to the cause, is a member of either branch of the legislature, and will be or is in actual attendance on a session of the same. If the member of the legislature is an attorney for a party to the cause, his afFidavit shall contain a declaration that it is his intention to participate actively in the preparation and/or presentation of the case. Where a party to any cause, or an attorney for any party to a cause, is a member of the legislature, his afFidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty days after adjournment of the legislature and the afFidavit shall be proof of the necessity for the continuance, and the continuance shall be deemed one of right and shall not be charged against the movant upon any subsequent application for continuance.
The right to a continuance shall be mandatory, except only where the attorney was employed within ten days of the date the suit is set for trial, the right to continuance shall be discretionary.
Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977). "[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. In cases of this type the trial court has a duty to conduct a hearing on the allegations. If the allegations are shown to be meritorious the court should deny the continuance."
TRCP 255 CHANGE OF VENUE BY CONSENT
Upon the written consent of the parties Filed with the papers of the cause, the court, by an order entered on the minutes, may transfer the same for trial to the court of any other county having jurisdiction of the subject matter of such suit.
Farris v. Ray, 895 S.W.2d 351,352 (Tex.l995). " [A] signed written agreement filed in the record of the transferee court meets all the requirements of [TRCP] II. Such an agreement, enforceable against the signatories under the terms of the rule, operates as an express waiver of any error there may have been in the initial transfer."
TRCP 256 REPEALED
TRCP 257 GRANTED ON MOTION
A change of venue may be granted in civil causes upon motion of either party, supported by his own afFidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:
(a) That there exists in the county where the suit is pending so great a prejudice against him that he cannot obtain a fair and impartial trial.
(b) That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial.
(c) That an impartial trial cannot be had in the county where the action is pending.
(d) For other sufficient cause to be determined by the court.
Acker e. Denton Publ'g Co., 937 S.W.2d III, 118 (Tex.App.-Fort Worth 1996, no writ). "The inability to obtain a fair and impartial trial of a civil case may be grounds for a change of venue. A motion on those grounds must be supported by competent affidavits of the party seeking the transfer and 3 credible residents of the county where the suit is pending." See also Dorchester Gas Producing Co. v. Harlow Corp., 743 S.W.2d 243, 253 n.6 (Tex.App.-Amarillo 1987, writ denied); Tenneco, Inc. v. Salyer, 739 S.W.2d 448, 449
(Tex.App.-Corpus Christi 1987, orig. proceeding).
TRCP 258 SHALL BE GRANTED
Where such motion to transfer venue is duly made, it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in the said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge; and the application either granted or refused. Reasonable discovery in support of, or in opposition to, the application shall be permitted, and such discovery as is relevant, including deposition testimony on File, may be attached to, or incorporated by reference in, the affidavit of a party, a witness, or an attorney who has knowledge of such discovery.
City of Abilene v. Downs, 367 S.W.2d 153, 155 (Tex.l963). TRCP 258 "by its terms is mandatorily operative. It provides the only means by which issue can be joined."
City of La Grange v. McBee, 923 S.W.2d 89, 90 (Tex.App.-Houston [IstDist.] 1996, writ denied). "[E]ach party is entitled to at least 45 days notice of a hearing on the [TRCP 257(a)] motion to transfer venue."
Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 146 (Tex.App.-Texarkana 1988, writ denied), "[l]fthe motion for transfer is duly filed and is not challenged as provided in [TRCP 258] the trial judge is required to transfer the case."
TRCP 259 TO WHAT COUNTY
If the motion under Rule 257 is granted, the cause shall be removed:
(a) If from a district court, to any county of proper venue in the same or an adjoining district;
(b) If from a county court, to any adjoining county of proper venue;
(c) If (a) or (b) are not applicable, to any county of proper venue;
(d) If a county of proper venue (other than the county of suit) cannot be found, then if from
(1) A district court, to any county in the same or an adjoining district or to any district where an impartial trial can be had;
(2) A county court, to any adjoining county or to any district where an impartial trial can be had; but the parties may agree that venue shall be changed to some other county, and the order of the court shall conform to such agreement.
Dorchester Gas Producing Co. v. Harlow Corp., 743 S.W.2d 243, 253 (Tex.App-Amarillo 1987, writ denied). "[W]hen the trial court determined that [one party] could not obtain a fair and impartial trial in that county, the court had two options under [TRCP] 259(d)-either to remove the case to any county in the same or an adjoining district or to any district where an impartial trial could be had."
TRCP 260 REPEALED
TRCP 261 TRANSCRIPT ON CHANGE
When a change of venue has been granted, the clerk shall immediately make out a correct transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed.
C The Trial
TRCP 262 TRIAL BY THE COURT
The rules governing the trial of causes before a jury shall govern in trials by the court in so far as applicable.
Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302,304 (Tex.l988). "When a plaintiff rests, he indicates that he does not desire to put on further evidence, except by rebuttal testimony, and that he has fully developed his case." In a nonjury case, the court is presumed to have ruled on the sufficiency of the evidence when it grants judgment for the defendant after the plaintiff rests.
TRCP 263 AGREED CASE
Parties may submit matters in controversy to the court upon an agreed statement of facts Filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.
Trevino & Gonzalez Co. v. R.F. Mailer Co., 949 S.W.2d 39, 41 (Tex.App- San Antonio 1997, no writ). Under TRCP 263 "parties to a lawsuit may submit matters in controversy to the court upon an agreed statement of facts. [N]o evidence is admitted or considered by the trial court and the trial court's decision is based upon the papers on File and the arguments of counsel. Therefore, ... we indulge no presumptions in favor of the judgment in such a case because the trial court had no factual issues to resolve."
Tarrant Appr. Rev. Bd. v. Martinez Bros. IMS., 946 S.W.2d 914, 917 (Tex.App-Fort Worth 1997, no writ). "Because this case was submitted to the trial court on an agreed statement of facts and the trial court certified the agreed statement of facts as correct, the stipulated facts are binding on the parties and on this court. ... The court's judgment must declare only the law necessarily arising from the stipulated facts."
City of Galveston v. Giles, 902 S.W.2d 167, 170 n.2 (Tex.App- Houston (1st Dist] 1995, no writ). "Findings of fact have no place in the trial of an agreed case. Once the parties stipulate to all the facts, the court may not make additional fact findings."
TRCP 264 VIDEOTAPE TRIAL
By agreement of the parties, the trial court may allow that all testimony and such other evidence as may be appropriate be presented at trial by videotape. The expenses of such videotape recordings shall be taxed as costs. If any party withdraws agreement to a videotape trial, the videotape costs that have accrued will be taxed against the party withdrawing from the agreement.
TRCP 265 ORDER OF PROCEEDINGS ON TRIAL BY JURY
The trial of cases before a jury shall proceed in the following order unless the court should, for good cause stated in the record, otherwise direct:
(a) The party upon whom rests the burden of proof on the whole case shall state to the jury briefly the nature of his claim or defense and what said party expects to prove and the relief sought. Immediately thereafter, the adverse party may make a similar statement, and intervenors and other parties will be accorded similar rights in the order determined by the court.
(b) The party upon whom rests the burden of proof on the whole case shall then introduce his evidence.
(c) The adverse party shall briefly state the nature of his claim or defense and what said party expects to prove and the relief sought unless he has already done so.
(d) He shall then introduce his evidence.
(e) The intervenor and other parties shall make their statement, unless they have already done so, and shall introduce their evidence.
(f) The parties shall then be confined to rebutting testimony on each side.
(g) But one counsel on each side shall examine and cross-examine the same witness, except on leave granted.
Producer's Constr. Co. v. Muegge, 669 S.W.2d 717, 719 (Tex.l984). "The trial court erred in rendering judgment before [the defendant] had an opportunity to present evidence and rest its case. [TRCP] 262,265."
TRCP 266 OPEN and CLOSE ADMISSION
Except as provided in Rule 269 the plaintiff shall have the right to open and conclude both in adducing his evidence and in the argument, unless the burden of proof on the whole case under the pleadings rests upon the defendant, or unless the defendant or all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff is entitled to recover as set forth in the petition, except so far as he may be defeated, in whole or in part, by the allegations of the answer constituting a good defense, which may be established on the trial; which admission shall be entered of record, whereupon the defendant, or the defendants, if more than one, shall have the right to open and conclude in adducing the evidence and in the argument of the cause. The admission shall not serve to admit any allegation which is inconsistent with such defense, which defense shall be one that defendant has the burden of establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver, and the like.
4M Linen & Uniform Sup. Co. v. W.P. Bollard & Co., 793 S.W.2d 320, 324 (Tex.App-Houston [1st Dist] 1990, writ denied). TRCP 266 "provides that the plaintiff has the right to open and close argument. There are two exceptions. ... First, a defendant has the right to open and close if the burden of proof for the entire case under the pleadings is on defendant. ... Second, 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."
TRCP 267 WITNESSES PLACED UNDER RULE
a. At the request of either party, in a civil case, the witnesses on both sides shall be sworn and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under the rule.
b. This rule does not authorize exclusion of (1) a party who is a natural person or the spouse of such natural person, or (2) an officer or employee of a party that is not a natural person and who is designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the cause.
c. If any party be absent, the court in its discretion may exempt from the rule a representative of such party.
d. Witnesses, when placed under Rule 614 of the Texas Rules of Civil Evidence, shall be instructed by the court that they are not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule.
e. Any witness or other person violating such instructions may be punished for contempt of court.
Drilex Sys., Inc. v. Flores, I S.W.3d 112, 118-19 (Tex.l999). "Although an expert witness may typically be found exempt under the essential presence exception, experts are not automatically exempt. Instead, [TRE] 614 and [TRCP] 267 vest in trial judges broad discretion to determine whether a witness is essential. At 120: We acknowledge that the court never expressly placed [ P's expert] under the Rule and never instructed him not to discuss the case with others. However, a court may, in its discretion, exclude the testimony of a prospective witness who technically violates the Rule even though the witness was never actually placed under the Rule."
In re Hunt, __ S.W.3d __, __ (TexJVpp.-Dallas 1999, orig. proceeding) (No. 05-99-00704-CV; 8-4-99). "Conclusory statements that a witness's presence is essential are not sufficient to prove an exemption."
TRCP 268 MOTION FOR INSTRUCTED VERDICT
A motion for directed verdict shall state the specific grounds therefor.
S.V. v. R.V., 933 S.W.2d 1,8 (Tex.l996). "In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering an adverse judgment."
Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.l994). "In reviewing ... an instructed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. ... If there is any conflicting evidence of probative value on any theory of recovery, an instructed verdict is improper...."
Mills v. Angel, 995 S.W.2d 262, 266 (Tex.App- Texarkana 1999, n.p.h.). "A directed verdict... is proper only under limited circumstances, e.g., where (1) a specifically indicated defect in the opponent's pleading makes it insufficient to support a judgment; or (2) the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the movant or negate the right of his opponent to judgment; or (3) the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment."
TRCP 269 ARGUMENT
(a) After the evidence is concluded and the charge is read, the parties may argue the case to the jury. The party having the burden of proof on the whole case, or on all matters which are submitted by the charge, shall be entitled to open and conclude the argument; where there are several parties having separate claims or defenses, the court shall prescribe the order of argument between them.
(b) In all arguments, and especially in arguments on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side.
(c) Counsel for an intervenor shall occupy the position in the argument assigned by the court according to the nature of the claim.
(d) Arguments on questions of law shall be addressed to the court, and counsel should state the substance of the authorities referred to without reading more from books than may be necessary to verily the statement. On a question on motions, exceptions to the evidence, and other incidental matters, the counsel will be allowed only such argument as may be necessary to present clearly the question raised, and refer to authorities on it, unless further discussion is invited by the court.
(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 the 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.
(h) It shall be the duty of every counsel to address the court from his place at the bar, and in addressing the court to rise to his feet; and while engaged in the trial of a case he shall remain at his place in the bar.
Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex-1979). "There are only rare instances of incurable harm from improper argument."
National Un. Fire Ins. Co. v. Soto, 819 S.W.2d 619, 624 (Tex.App- El Paso 1991, writ denied). "Counsel are admonished to keep their arguments within the parameters of [TRCP] 269, avoiding personal criticism of opposing counsel and refraining from side-bar remarks and interrupting opposing counsel when making a motion or objection."
TEIA v. Guerrero, 800 S.W.2d 859,867 (Tex.App- San Antonio 1990, writ denied). TRCP 269 "commands courts to correct improper argument sua sponte...."
TRCP 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.
Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App- Fort Worth 1998, no pet.). TRCP 270 "allows a trial court to permit additional evidence to be offered at any time when it clearly appears to be necessary to the due administration of justice. However, a trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion."
Apresa v. Mont fort Ins. Co., 932 S.W.2d 246, 249 (TexJVpp.-El Paso 1996, no writ). "After having rested his case, the right of a party to reopen it and introduce additional evidence is a question addressed to the sound discretion of the trial court. The trial judge should liberally exercise his discretion to permit both sides to fully develop their case. The trial court's decision should only be overturned for clear abuse."
D Charge to the Jury
TRCP 271 CHARGE TO THE JURY
Unless expressly waived by the parties, the trial court shall prepare and in open court deliver a written charge to the jury.
TRCP 272 REQUISITES
The charge shall be in writing, signed by the court, and filed with the clerk, and shall be a part of the record of the cause. It shall be submitted to the respective parties or their attorneys for their inspection, and a reasonable time given them in which to examine and present objections thereto outside the presence of the jury, which objections shall in every instance be presented to the court in writing, or be dictated to the court reporter in the presence of the court and opposing counsel, before the charge is read to the jury. All objections not so presented shall be considered as waived. The court shall announce its rulings thereon before reading the charge to the jury and shall endorse the rulings on the objections if written or dictate same to the court reporter in the presence of counsel. Objections to the charge and the court's rulings thereon may be included as a part of any transcript or statement of facts on appeal and, when so included in either, shall constitute a sufficient bill of exception to the rulings of the court thereon. It shall be presumed, unless otherwise noted in the record, that the party making such objections presented the same at the proper time and excepted to the ruling thereon.
State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 440 (Tex.l995). "[N]either the trial court nor Beaston's counsel had the opportunity to change the conditional submission structure of the court's charge, because State Farm made no objection before the verdict. This is precisely what [TRCP] 272 and 274 are intended to prevent. The failure to object to the conditional submission of the damages issue waives error as to form and substance of the submission."
Reinhart v. Foung,906S.W.2d47,473 (Tex.l995). "This was not a close case, where a superfluous instruction would be more likely to influence the jury improperly. At 741 [A]nd even more important, the charge contained an instruction concerning the doctrine of sudden emergency. ... Plaintiffs made no objection whatsoever to this instruction, even though it reiterates much of the unavoidable accident instruction."
City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.l995). "Submission of an improper jury question can be harmless error if the jury's answers to other questions render the improper question immaterial. A jury question is considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict."
State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,241 (Tex.l992). "The procedure for preparing and objecting to the charge has lost its philosophical moorings. There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling."
TRCP 273 JURY SUBMISSIONS
Either party may present to the court and request written questions, definitions, and instructions to be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as may be proper. 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.
Galveston Cty. Fair & Rodeo, Inc. v. Glover, 940 S.W.2d585,586-87 (Tex.l996)."The court of appeals... held that the Fair 'did not separately request in writing any definitions or instructions on' 'what constitutes wrongful disqualification' as required by [TRCP] 273. ... We disagree. The Fair's written request was separate from its oral objection. This request fully complied with Rule 273."
Lester v. Logon, 907 S.W.2d 452, 453 (Tex.l995). Disapproved of the court of appeals' opinion that held a request on one piece of paper that included 5 related matters-one question, 2 instructions, and 2 definitions-was improper.
Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450,451 (Tex.l995). TRCP 273 "does not prohibit including the request in a complete charge as long as it is not obscured."
Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex-App.-Houston [1st Dist.] 1996, writ denied). "To complain of the trial court's omission of a requested instruction on appeal, a party is obliged to make a written request to the trial court. ... Dictating a requested instruction to the court reporter is not sufficient to support an appeal based on the trial court's refusal to submit requested material."
TRCP 274 OBJECTIONS and REQUESTS
A party objecting to a charge must point out distinctly the objectionable matter and the grounds 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. When the complaining party's objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only.
Universal Servs. Co. v. Ung, 904 S.W.2d 638, 64 (Tex.l995). A party cannot complain on appeal if the trial court did not submit an instruction or definition with the correct cluster when the party did not require it as part of that cluster.
General Chem. Corp. v. De La Lastra, 852 S.W.2 916, 920 (Tex.l993). "General Chemical ... requested the very issues that it now seeks to avoid. Parties mi not invite error by requesting an issue and then objecting to its submission."
Carr v. Weiss, 984 S.W.2d 753, 766 (Tex.App.- Amarillo 1999, pet. denied). "Because a request for another charge is not a substitute for an objection, in the absence of a specific objection to the submitted question and instruction, the tender of a correct question is not sufficient to preserve error, even if a defectively worded special instruction is contained in the court's proposed charge."
TRCP 275 CHARGE READ BEFORE ARGUMENT
Before the argument is begun, the trial court shall read the charge to the jury in the precise words in which it was written, including all questions, definitions, and instructions which the court may give.
Board of Regents ofU.T. v. SAG Constr. Co., 529 S.W.2d 90,98 (Tex.App.-Austin 1975, writ refd n.r.e.), overruled on other grounds. Federal Sign v. TSU, 951 S.W.2d 401,408 (Tex.l997). "After opening argument to the jury was completed and rebuttal argument was in progress, the trial court amended its written charge to the j'uiy by changing [a] definition. At 99: We ... hold that there was no violation of [TRCP] 275...."
TRCP 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. If the trial judge modifies the same the judge shall endorse thereon "Modified as follows: (stating in what particular the judge has modified the same) and given, and exception allowed" 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.
Dallas Mkt. Ctr. Dec. Co. v. Liedeker, 958 S.W. 382,386 (Tex-1997). TRCP 276 "requires a trial court endorse refused requests 'Refused,' and sign the same officially. The rule provides that such endorsement preserves error. [ 11 ] This Court has never held that the trial court's endorsement is the only means of preserving error in refusing charge requests." (Internal quotations omitted.)
Acord v. G.M. Corp., 669 S.W.2d III, 114 (Tex. 1984). "We interpret the presumptive provision of [TRCP] 272 to mean that if an objection is articulated and the trial court makes no change in the charge, the objection is, of necessity, overruled."
TRCP 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 question.
In any cause in which the jury is required to apportion the loss among the parties the court shall submit a question or questions inquiring what percentage, if any, of the negligence or causation, as the case may be, that caused the occurrence or injury in question is attributable to each of the persons found to have been culpable. The court shall also instruct the jury to answer the damage question or questions without any reduction because of the percentage of negligence or causation, if any, of the person injured. The court may predicate the damage question or questions upon affirmative findings of liability.
The court may submit a question disjunctively when it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists.
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, but 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.
Crown Life Ins. Co. v. Casteel, __ S.W.3d __, __ (Tex.l999) (No. 98-0218; 7-1-99). P "argues that [TRCP] 277 required the trial court to submit all liability theories in a single broad-form question, and that the verdict should not be overturned because the trial court simply followed that rule. [ If ] Rule 277 is not absolute; rather, it mandates broad-form submission 'whenever feasible.' [W]hen the trial court is unsure whether it should submit a particular theory of liability, separating liability theories best serves the policy of
judicial economy underlying Rule 277 by avoiding the need for a new trial when the basis for liability cannot be determined."
Hyundai Motor Comp. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.l999). "A single question may relate to multiple legal theories. ... Indeed, submission of a single question relating to multiple theories may be necessary to avoid the risk that the jury will become confused and answer questions inconsistently. The goal of the charge is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely."
H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22,24 (Tex.l998). "[W]hen an instruction merely directs the jury to answer a damages question only if some condition or conditions have been met, it does not directly instruct the jury about the legal effect of its answers." State Farm Lloyds v. Nicolau, 951 S.W.2d 444,451 (Tex.l997). TRCP 277 "affords the trial court considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury."
Wichita Cty. v. Hart, 917 S.W.2d 779, 783-84 (Tex.l996). "A trial court must submit explanatory instructions and definitions that will assist the jury in rendering a verdict."
Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex-1995). "The omission of a proper instruction in this case was error. [ If ] The evidence in this case was vigorously and convincingly disputed...."
H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 260 (Tex.l992). The trial court's "failure [to submit a properly requested broad-form question] was not harmful error. ... Although submitted in granulated form, the jury questions contained the proper elements of a premises liability action."
Texas Dept. of Human Sens. v. E.B., 802 S.W.2d 647, 649 (Tex-1990). "The rule unequivocally requires broad-form submission whenever feasible. Unless extraordinary circumstances exist, a court must submit such broad-form questions."
Toennies v. Quantum Chem. Corp., 998 S.W.2d 374,377 (Tex.App.-Houston [1st Dist.] 1999, n.p.h.). "When liability is asserted based upon a provision of a statute or regulation, ajury charge should track the language of the provision as closely as possible."
TRCP 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. Except in trespass to try title, statutory partition proceedings, and other special proceedings in which the pleadings are specially defined by statutes or procedural rules, a party shall not be entitled to any submission of any question raised only by a general denial and not raised by affirmative written pleading by that party. Nothing herein shall change the burden of proof from what it would have been under a general denial. A judgment shall not be reversed because of the failure to submit other and various phases or different shades of the same question. Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party. Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.
Green Int'l, Inc. v. Soils, 951 S.W.2d 384, 390-91 (Tex.l997). "Assuming the trial court erred in failing to permit an amendment of the trial pleadings, the trial court did not err in failing to submit the accompanying jury questions. [ It ] Each requested jury question must be supported by the pleadings and the evidence."
Texas Dept. of Human Sens. v. Hinds, 904 S.W.2d 629, 637-38 (Tex.l995). "TDHS did not request the instruction that should have been given, but instead requested [another] instruction. ... We believe this request nevertheless preserved error for 2 reasons. First, TDHS took the instruction from the concurring opinion in Winters. ... Second, the request called the trial court's attention to the causation element missing in Question No. 2."
Triplex Comm., Inc. v. Riley, 900 S.W.2d 716,718 (Tex.l995). "If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."
Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex.l995). "The requested instruction incorrectly stated the law and was thus properly refused."
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.l992). TRCP 278 "provides a substantive, non-discretionary directive to trial courts requiring them to submit requested questions to the jury if the pleadings and any evidence support them."
Southwestern Bell Tel. Co. v. John Carlo Texas ,Inc., 843 S.W.2d 470, 472 (Tex.l992). "The court of appeals ... held the error (in refusing to define 'justification'] harmless. We disagree. Virtually the entire factual dispute between the parties has been over whether Bell's conduct was justified. To ask the juiy to resolve this dispute without a proper legal definition to the essential legal issue was reversible error."
FairTleld Estates L.P. v. Griffin, 986 S.W.2d 719, 724 (Tex.App- Eastland 1999, n.p.h.). "The record shows that, at the jury charge conference, defendants objected to the lack of an instruction on the measure of damages and requested an instruction on temporary damages. However, the record contains only an oral request, not a written request. Because defendants' request was not made 'in writing,' it was waived."
TRCP 279 OMISSIONS FROM THE CHARGE
Upon appeal all independent grounds of recovery or of defense 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 elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, 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 to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, 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. A claim that the evidence was legally or factually insufficient to warrant the 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.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 417 (Tex.l998). Federal procedure requires a JMOL ''be made before the case is submitted to the jury 'to assure the responding party an opportunity to cure any deficiency in that party's proof that may have been overlooked until called to the party's attention.' Texas procedure does not afford parties the same protection."
State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430,437 (Tex.l995). "Where ... a jury awards damages based on a charge that omits an element necessary to sustain a ground of recovery, the trial court can either file a written Finding regarding the missing element or render judgment without one. ...If the trial court does not file a written finding, the omitted element is deemed found in support of the judgment as long as no objection was made and the evidence supports such a finding."
T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218,222-23 (Tex.l992). "The Bank failed to submit or request any element of its affirmative claim to the jury. Unless the Bank's affirmative claim is conclusively established under the evidence, the ground of recovery is waived upon appeal."
Texas Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,241 (Tex.l992). "To prevail on his premise defect theory, [P] was required to obtain a finding that he lacked knowledge of the culvert. This element of his claim was not included in the broad-form charge which the trial court submitted to the jury. A finding on this one element cannot be deemed in [P's] favor because [D] objected to the omission by requesting a jury question on that issue."
Ramos v. Frito-Lay, Inc., 784 S.W.2d 667,668 (Tex. 1990). "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."
E Case to the Jury
TRCP 280 PRESIDING JUROR OF JURY
Each jury shall appoint one of their body presiding juror.
TRCP 281 PAPERS TAKEN TO JURY ROOM
The jury may, and on request shall, take with them in their retirement the charges and instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused. Where part only of a paper has been read in evidence, the jury shall not take the same with them, unless the part so read to them is detached from that which was excluded.
First Employees Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex.l983). TRCP 281 "is mandatory and ... the trial court is required to send all exhibits admitted into evidence to the jury room during the deliberations of the jury. Furthermore, this rule is self-operative and requires no request from the jurors or counsel."
Speier v. Webster College, 616 S.W.2d 617, 619 (Tex.l981). "The fact that a chart happens to summarize testimony on damages does not remove its admissibility from the discretion of the trial court. The type of testimony summarized is only one of many factors a trial court must consider in exercising its discretion."
Harvey v. Culpepper, 801 S.W.2d 596, 601 (Tex. App.-Corpus Christi 1990, no writ). "The admission of depositions into evidence is prohibited. ... The trial court should not have allowed the jury to retire with the depositions."
TRCP 282 JURY KEPT TOGETHER
The jury may either decide a case in court or retire for deliberation. If they retire, they shall be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court; but the court in its discretion may permit them to separate temporarily for the night and at their meals, and for other proper purposes.
Union City Transfer v. Adams, 248 S.W.2d 256,260 (Tex.App- Fort Worth 1952, writ refd n.r.e.). "Permitting the jury to separate temporarily for their meal was within the discretion of the court."
TRCP 283 DUTY OF OFFICER ATTENDING JURY
The officer in charge of the jury shall not make nor permit any communication to be made to them, except to inquire if they have agreed upon a verdict, unless by order of the court; and he shall not before their verdict is rendered communicate to any person the state of their deliberations or the verdict agreed upon.
Logon v. Grady, 482 S.W.2d 313, 322 (Tex.App- Fort Worth 1972, no writ). "[T]he jury bailiff violated [TRCP] 283 and 285... when he did not make the jury's wish as communicated to him known to the court and also when he instructed the jury that its members already had in the jury room all that it needed in order to answer Issue No. 14."
TRCP 284 JUDGE TO CAUTION JURY
If permitted to separate, either during the trial or after the case is submitted to them, the jury shall be admonished by the court that it is their duly not to converse with, or permit themselves to be addressed by any other person, on any subject connected with the trial.
TRCP 285 JURY MAY COMMUNICATE WITH COURT
The jury may communicate with the court by making their wish known to the officer in charge, who shall inform the court, and they may then in open court, and through their presiding juror, communicate with the court, either verbally or in writing. If the communication is to request further instructions, Rule 286 shall be
Ross v. TEIA, 267 S.W.2d 541, 542 (Tex.l954). TRCP 285 "provides that the jury may communicate with the trial judge through its foreman in open court, and [TRCP] 286 provides that when the jury desires further instructions it shall appear in open court in a body, shall make a request in writing through its foreman, and, if additional instructions are given, they shall be in writing."
TRCP 286 JURY MAY RECEIVE FURTHER INSTRUCTIONS
After having retired, the jury may receive further instructions from the court touching any matter of law, either at their request or upon the court's own motion. For this purpose they shall appear before the judge in open court in a body, and if the instruction is being given at their request, they shall through their presiding juror state to the court, in writing, the particular question of law upon which they desire further instruction. The court shall give such instruction in writing, but no instruction shall be given except in conformity with the rules relating to the charge. Additional argument may be allowed in the discretion of the court.
Stevens v. Travelers Ins. Co., 563 S.W.2d 223,229 (Tex-1978). "[E]ven though there is a latent danger of coercion, supplemental, verdict-urging instructions are not, in and of themselves, erroneous, so long as the particular charge given is not otherwise objectionable. At 226 n.l: Under [TRCP] 286 ... the supplemental charge should have been given in writing and not orally."
Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 187 (Tex.App.-Dallas 1996, no writ). "Meyers, by failing to object to the charge prior to its being read to the jury, waived his objections under (TRCP] 272. However, [TRCP] 286 allows a court the opportunity to correct an error by modifying its charge. ... The instruction was given to the jury in writing [but the trial court did not] reassemble the jury in the courtroom. Lochinvar did not object to the court's failure to reassemble the jury and read the modified charge." Thus, Lochinvar waived the error.
TRCP 287 DISAGREEMENT AS TO EVIDENCE
If the jury disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness' testimony on the point in dispute; but, if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial; and on their notifying the court that they disagree as to any portion of a deposition or other paper not permitted to be carried with them in their retirement, the court may, in like manner, permit such portion of said deposition or paper to be again read to the jury.
Steinberger v. Archer Cty., 621 S.W.2d 838, 843 (Tex.App.-Fort Worth 1981, no writ). Under TRCP 287 "the jury is entitled to hear only the specific part of the testimony relevant to the point in dispute, and only when the jury notifies the court, that it disagrees upon the statement made by the witness. In the absence of disagreement between the jurors, the court is not obligated to have any witness' testimony read back to the jury...."
Hill v. Robinson, 592 S.W.2d 376,384 (Tex.App- Tyier 1979, writ reFd n.r.e.)- "In the absence of disagreement between the jurors, the court was not obligated to have any witness' testimony read back to the jury, and accordingly, committed no error in refusing to do so."
TRCP 288 COURT OPEN FOR JURY
The court, during the deliberations of the jury, may proceed with other business or recess from time to time, but shall be deemed open for all purposes connected with the case before the jury.
TRCP 289 DISCHARGE OF JURY
The jury to whom a case has been submitted may be discharged by the court 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, or when by sickness or other cause their number is reduced below the number constituting the jury in such court.
The cause shall again be placed on the jury docket and shall again be set for trial as the court directs.
Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204,205-210 Clex.App- Corpus Christi 1990, no writ). It was coercive for the trial court to refuse to release the jury after they stated three times they were deadlocked.
TRCP 290 DEFINITION and SUBSTANCE
A verdict is a written declaration by a jury of its decision, comprehending the whole or all the issues submitted to the jury, and shall be either a general or special verdict, as directed, which shall be signed by the presiding juror of the jury.
A general verdict is one whereby the jury pronounces generally in favor of one or more parties to the suit upon all or any of the issues submitted to it. A special verdict is one wherein the jury finds the facts only on issues made up and submitted to them under the direction of the court.
A special verdict shall, as between the parties, be conclusive as to the facts found.
Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322,328 (Tex.l993). "A jury's marginal notations generally may not be considered on appeal. ... They reflect the jury's mental processes, but they are not part of its verdict."
Houston Fire & Cas. Ins. Co. v. Gerhardt, 281 S.W.2d 176, 178 (Tex.App- San Antonio 1955, orig. proceeding). "A verdict form reflecting answers to special issues but not signed by the foreman may or may not be a verdict, and presents a question which must be determined by the hearing of evidence."
TRCP 291 FORM OF VERDICT
No special form of verdict is required, and the judgment shall not be arrested or reversed for mere want of form therein if there has been substantial compliance with the requirements of the law in rendering a verdict.
TRCP 292 VERDICT BY PORTION OF ORIGINAL JURY
A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve or of the same five members of an original jury of six. However, where as many as three jurors die or be disabled from sitting and there are only nine of the jurors remaining of an original jury of twelve, those remaining may render and return a verdict. If less than the original twelve or six jurors render a verdict, the verdict must be signed by each juror concurring therein.
Yanes v. Sowards, 996 S.W.2d 849,850 (Tex.l999) "The Texas Constitution and (TRCPs] require a district-court jury to consist of 12 original jurors, but as few as 9 may render and return a verdict if the others die or become disabled from sitting. [T]rial courts have broad discretion in determining whether a juror is disabled from sitting when there is evidence of constitutional disqualification. But not just any inconvenience or delay is a disability. A constitutional disability must be in the nature of an actual physical or mental incapacity." (Internal quotations omitted.)
McDaniel v. Yarbroagh, 898 S.W.2d 251,253 (Tex. 1995). "No evidence of record suggests that [the juror] became 'disabled from sitting' within the [meaning of the constitution]. She was not mentally incompetent or sick, nor did she have some other physical or mental incapacity. On the contrary, she was temporarily detained by flooding caused by heavy rain, which is at most a transient physical barrier. Her dismissal from the jury as 'disabled' was improper. [If] Depriving the McDaniels of a full jury of 12 members, absent an exception authorized by the constitution or applicable rules, is a denial of the right to jury trial guaranteed by the Texas Constitution."
Fiore v. Fiore, 946 S.W.2d 436,438 (Tex.App- Fort Worth 1997, writ denied). "[W]hen a trial court dismisses a juror who is not 'disabled,' and there is no agreement to proceed with 11 jurors, it is an abuse of discretion to deny a motion for mistrial."
TRCP 293 WHEN THE JURY AGREE
When the jury agree upon a verdict, they shall be brought into court by the proper officer, and they shall deliver their verdict to the clerk; and if they state that they have agreed, the verdict shall be read aloud by the clerk. If the verdict is in proper form, no juror objects to its accuracy, no juror represented as agreeing thereto dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.
Thomas v. Oil & Gas Bldg., Inc., 582 S.W.2d 873 880 (Tex.App- Corpus Christi 1979, writ refd n.r.e.) TRCP 293, "in essence, provides that when a verdict is accurate and in proper form, that it 'shall be entered upon the minutes of the court."
TRCP 294 POLLING THE JURY
Any party shall have the right to have the jury polled. A jury is polled by reading once to the jury collectively the general verdict, or the questions and answers thereto consecutively, and then calling the name of each juror separately and asking the juror if it is the juror's verdict. If any juror answers in the negative when the verdict is returned signed only by the presiding juror as a unanimous verdict, or if any juror shown by the juror's signature to agree to the verdict should answer in the negative, the jury shall be retired for further deliberation.
Pate v. TexUne Feed Mills, Inc., 689 S.W.2d 238, 243 (Tex.App.--Amarillo 1985, writ refd n.r.e.). "Once the request is promptly made before the jury is discharged, the trial court has no discretion but to poll the jury, and the requesting party's motive is immaterial."
TRCP 295 CORRECTION OF VERDICT
If the purported verdict is defective, the court may direct it to be reformed. If it is incomplete, or not responsive to the questions contained in the court's charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations.
Elbar, Inc. v. Claussen, 774 S.W.2d 45, 55 (Tex. App.-Dallas 1989, no writ). "[B]ecause the charge was defective, the trial court was ... authorized to give the jury such additional instructions as it thought proper."
G Findings by Court
TRCP 296 REQUESTS FOR FINDINGS OF FACTS and CONCLUSIONS OF LAW
In any case tried in the district or county court without a jury, any party may request the court to state in writing its Findings of fact and conclusions of law. Such request shall be entitled "Request for Findings of Fact and Conclusions of Law" and shall be filed within twenty days after judgment is signed with the clerk of the court, who shall immediately call such request to the attention of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 2 la.
Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.l996). Under TRCP 296, "harm to the complaining party is presumed unless the contrary appears on the face of the record.... Error is harmful if it prevents an appellant from properly presenting a case to the appellate court.
... In this case, the trial court's refusal to abide by the Family Code's child support provisions prevented Wilbur from effectively contesting the trial court's deviation from the guidelines in Section 154.125."
Black v. Dallas Cty. Child Welfare Unit, 835 S.W.2d 626,630 n.lO (Tex.l992). "If no findings of fact or conclusions of law are filed, the reviewing court must imply all necessary fact Findings in support of the trial court's judgment."
Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.l989). "[T]he trial court's duty to File Findings and conclusions is mandatory, [and] the failure to respond when all requests have been properly made is presumed harmful, unless 'the record before appellate court affirmatively shows that the complaining party has suffered no injury."'
Kenedy Mem. Found, v. Dewhurst, 994 S.W.2d 285, 308 (Tex.App.-Austin 1999, n.p.h.). "Findings of fact set out in a trial-court memorandum are not findings of fact as contemplated by (TRCPs] 296-299. Though more formal than comments on the record or an opinion letter, the 'findings' set out in an 'opinion' are explanatory at best and not binding. We do not review an opinion written by a trial court and it has no persuasive value for an appellate court."
TRCP 297 TIME TO FILE FINDINGS OF FACT & CONCLUSIONS OF LAW
The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall cause a copy of its findings and conclusions to be mailed to each party in the suit. If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk.
Such notice shall state the date the original request was filed and the date the findings and conclusions were due. Upon filing this notice, the time for the court to file findings of fact and conclusions of law is extended to forty days from the date the original request was filed.
Vargas v. Texas Dept. of Protective & Reg. Sens., 973 S.W.2d 423,425 (Tex.App-Austin 1998, no pet.). "If findings of fact and conclusions of law are properly requested, the trial court has a mandatory duty to File [ them ]. The trial court's failure to comply with a proper request to prepare and file findings and conclusions is presumed harmful, unless the record affirmatively shows that the complaining party suffered no injury."
Salinas v. Beaudrie, 960 S.W.2d 314,317 (Tex. App.-Corpus Christi 1997, no pet.). "(T]he record does not show that appellants have complied with [TRCP] 297 by Filing and serving a 'Notice of Past Due Findings of Fact and Conclusions of Law.' Appellants' failure to File this reminder waived their right to complain on appeal of any error related to the trial court's failure to make a Finding or conclusion."
TRCP 298 ADDITIONAL OR AMENDED FINDINGS OF FACT and CONCLUSIONS OF LAW
After the court Files original Findings of fact and conclusions of law, any party may File with the clerk of the court a request for specified additional or amended Findings or conclusions. The request for these Findings shall be made within ten days after the Filing of the original Findings and conclusions by the court. Each request made pursuant to this rule shall be served on each party to the suit in accordance with Rule 2 la.
The court shall File any additional or amended Findings and conclusions that are appropriate within ten days after such request is filed, and cause a copy to be mailed to each party to the suit. No Findings or conclusions shall be deemed or presumed by any failure of the court to make any additional Findings or conclusions.
Vickery v. Commission for Lawyer Discipline, __ S.W.3d __, __ (Tex.App- Houston [ 14th Dist.] 1999, n.p.h.) (No. 14-97-00586-CV; 8-19-99). "[A] request for ... Findings contrary to a court's judgment [does not preserve error] unless the trial court is specifically alerted to the real issue, i.e., one or more necessary elements have been omitted in the court's original Findings. We Find [D] did not meet the requirements of [TRCP] 298 because he failed to apprise the trial court of the specific omissions he now complains of on appeal."
Robles v. Rabies, 965 S.W.2d 605,611 (Tex.App- Houston [1st Dist] 1998, pet. denied). "Within 10 days after the trial court Files its original Findings and conclusions, any party may File a request for specified additional or amended findings or conclusions. ... The failure to request additional Findings of fact and conclusions of law constitutes a waiver on appeal of the trial court's lack of such findings and conclusions."
TRCP 299 OMITTED FINDINGS
When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on appeal.
Black v. Dallas Cty. Child Welfare Unit, 835 S.W.2d 626,630 n.lO (Tex.l992). " [A]n omitted Finding, supported by the evidence, may be supplied by a presumption that it supports the judgment."
Vickery v. Commission for Lawyer Discipline, __ S.W.3d __, __ (Tex.App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-97-00586-CV; 8-19-99). "When a court makes Findings of fact, but inadvertently omits an essential element of a ground of recovery or defense, the presumption of validity will supply the omitted element by implication. However, if the record demonstrates the trial judge deliberately omitted the element, the presumption is refuted and the element cannot logically be supplied by implication. Thus, when an essential element in support of the trial court's judgment is omitted from the court's Findings, an issue is presented as to whether or not the omission was deliberate or inadvertent."
Boy Scouts v. Responsive Terminal Sys., Inc., 790 S.W.2d 738, 742 (Tex.App.-Dallas 1990, writ denied). "(T]he provisions of [TRCP 299] which allow omitted Findings to be deemed to support the judgment of the trial court ... only apply to omitted unrequested elements.  If a party makes a request for additional or amended Findings of fact ... and the trial court fails to make such findings, its failure is tantamount to a refusal."
TRCP 299a FINDINGS OF FACT TO BE SEPARATELY FILED and NOT RECITED IN A JUDGMENT
Findings of fact shall not be recited in a judgment. If there is a conflict between Findings of fact recited in a judgment in violation of this rule and Findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes. Findings of fact shall be Filed with the clerk of the court as a document or documents separate and apart from the judgment.
Sutherland v. Cobern, 843 S.W.2d 127, 131 n.7 (Tex.App.-Texarkana 1992, writ denied). "The trial court inserted detailed findings ... into the body of the judgment. ... Findings of fact contained in the body of a judgment may not be considered on appeal. ... Therefore, for our purposes, we review this case as one in which no Findings of fact were made."
TRCP 300 COURT TO RENDER JUDGMENT
Where a special verdict is rendered, or the conclusions of fact found by the judge are separately stated the court shall render judgment thereon unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding under these rules.
Astec Indus., Inc. v. Suarez, 921 S.W.2d 794, 798 (Tex.App- Fort Worth 1996, no writ). "In order for a judge's ministerial duty to render judgment under [TRCP] 300 to arise, the jury must first return a sufficient verdict for the judge to receive."
TRCP 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. Provided, that 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. Only one Final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.
Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.l999). "Whether a particular remedy is available under a statute is a question of law for the court. Accordingly, the jury's Findings are immaterial to the ultimate issue of whether compensatory and punitive damages are available under [the statute]. [D]'s response to [P]'s motion for judgment on the verdict was timely and sufficiently specific to give the trial court an opportunity to resolve the legal issue before rendering judgment."
Holland v. Wal-Mart Stores, Inc., I S.W.3d 91, 95 (Tex. 1999). " [ D ] specifically challenged the availability of attorney's fees [in a motion for [NOV] before the error resulted. The court of appeals, therefore, erred in concluding that [D] waived its right to challenge the propriety of an award of attorney's fees...."
Brown v. Bank of Galveston, 963 S.W.2d 511,513 (Tex. 1998). "A trial court may grant a judgment notwithstanding the verdict if there is no evidence to support one or more of the jury findings on issues necessary to liability. In determining whether [to] uphold the judgment n.o.v., we consider the evidence in the light most favorable to the verdict and reasonable inferences that tend to support it."
Stewart v. USA Custom Paint & Body Shop, Inc. 870 S.W.2d 18,20 (Tex-1994). "A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated."
Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392,394 (Tex.l991). "A court may render judgment n.o.v. if a directed verdict would have been proper."
TRCP 302 ON COUNTERCLAIM
If the defendant establishes a demand against the plaintiff upon a counterclaim exceeding that established against him by the plaintiff, the court shall render judgment for defendant for such excess.
Building Concepts, Inc. v. Duncan, 667 S.W.2d 897, 904 (Tex.App- Houston [14th Dist.] 1984, writ ref'd n.r.e.). "[A]s a matter of law the court was required to offset the amount of damages established by the [Ps] against the amount of [the defendant's] counterclaim, and to render judgment in favor of [the defendant] for the excess."
TRCP 303 ON COUNTERCLAIM FOR COSTS
When a counterclaim is pleaded, the party in whose favor Final judgment is rendered shall also recover the costs, unless it be made to appear on the trial that the counterclaim of the defendant was acquired after the commencement of the suit, in which case, if the plaintiff establishes a claim existing at the commencement of the suit, he shall recover his costs.
Building Concepts, Inc. v. Duncan, 667 S.W.2d 897, 906 (Tex.App- Houston [14th Dist.] 1984, writ refd n.r.e.). Relying on TRCP 303 and 141: "It is apparent from the record that the judge assessed costs as he did because both parties successfully prosecuted their claims."
TRCP 304 JUDGMENT UPON RECORD
Judgments rendered upon questions raised upon citations, pleadings, and all other proceedings, constituting the record proper as known at common law, must be entered at the date of each term when pronounced.
TRCP 305 PROPOSED JUDGMENT
Any party may prepare and submit a proposed judgment to the court for signature. Each party who submits a proposed judgment for signature shall serve the proposed judgment on all other parties to the suit who have appeared and remain in the case, in accordance with Rule 21 a. Failure to comply with this rule shall not affect the time for perfecting an appeal.
First Nat'1 Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex.l989). A party's motion requesting the trial court to enter judgment does not waive its right to complain about that judgment. "There must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms."
Dikeman v. Snell, 490 S.W.2d 183, 185-86 (Tex. 1973). Even though prepared by a party, a mistake in a rendered judgment is a judicial error.
TRCP 306 RECITATION OF JUDGMENT
The entry of the judgment shall contain the full names of the parties, as stated in the pleadings, for and against whom the judgment is rendered.
Crystal City ISD v. Wagner, 605 S.W.2d 743, 747 (Tex.App.-San Antonio 1980, writ ref'd n.r.e.). "Undoubtedly, the better practice is to recite the names of all the parties in the judgment, in accordance with TRCP 306. Nevertheless, when ... the names of all the parties and the relief each is entitled to is easily ascertainable from the record, it would be a useless thing to remand the entire cause for the purpose of amending the judgment to include the names of all the parties."
TRCP 306a PERIODS TO RUN FROM SIGNING OF JUDGMENT
1. Beginning of Periods. The date of 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; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.
2. Date to be Shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order.
3. Notice of Judgment. When the Final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by First-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4).
4. No Notice of Judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred First, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.
5. Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney First either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.
6. Nunc Pro Tune Order. When a corrected judgment has been signed after expiration of the court's plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect to any complaint that would not be applicable to the original document.
7. When Process Served by Publication. With respect to a motion for new trial filed more than thirty days after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion.
Bastrop ISD v. Toungate, 958 S.W.2d 365, 367 (Tex.l997). "We note that the trial court should have submitted the modified judgment to the clerk immediately upon signing it to avoid the burden of a notification hearing."
Estate o fHowley v. Haberman, 878 S.W.2d 139 140 (Tex.l994). "A party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement. ... Since [the plaintiff] did not learn of the dismissal within this period, the order of dismissal for want of prosecution was final. ... [The plaintiffs] only possible recourse is a bill of review."
Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex.l994). When "an otherwise final judgment fails to dispose of all parties, the court may make the judgment final for purposes of appeal by severing the causes and parties disposed of by the judgment into a different cause. At 313: When a severance order takes effect, the appellate timetable runs from the signing date of the order that made the judgment severed 'final' and appealable."
Levit v. Adams, 850 S.W.2d 469, 470 (Tex.l993). TRCP 306a(4) "says that the filing period commences when the party receives notice or acquires actual knowledge of the judgment or dismissal, and that in no event can the filing period commence more than 90
days after the signing of the judgment or order. [N]otice received after the 90th day is simply not covered by [TRCP 306a(4)]."
In re Montemayor, __ S.W.3d __, __ (Tex. App.-San Antonio 1999, orig. proceeding) (No. 04-99- 00549-CV; 8-25-99). TRCP 306a(4) "is not self-implementing. Unless the procedures of Rule 306a(5) are followed, the trial court's plenary power is not restarted, and it is without authority to act more than 30 days after the date the appealable order is signed."
Cannon v. ICO Tubular Sens., 905 S.W.2d 380, 388 (Tex.App- Houston [1st Dist.] 1995, no writ). TRCP 306a "specifically require [s] the clerk of the court to send notice of the court's intent to dismiss a case for want of prosecution and order of dismissal to each attorney of record. At 387: Once the order of dismissal is signed, [TRCP] 306a requires the clerk to give immediate notice to the parties or their attorneys by first-class mail advising them of the judgment."
TRCP 306b REPEALED
TRCP 306C PREMATURELY FILED DOCUMENTS
No motion for new trial or request for findings of fact and conclusions of law shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been Filed on the date of but subsequent to the time of signing of the judgment the motion assails, and every such request for Findings of fact and conclusions of law shall be deemed to have been Filed on the date of but subsequent to the time of signing of the judgment.
Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279,281 (Tex.l994). "[A] motion for new trial relating to an earlier judgment may be considered applicable to a second judgment when the substance of the motion could properly be raised with respect to the corrected judgment."
Harris Cty. Hasp. Dist. v. Estrada, 831 S.W.2d 876, 878 (Tex.App- Houston [1st Dist.] 1992, order). The court found the "appellant's prematurely filed motion for new trial, which was also prematurely overruled, extended the appellate timetable for perfecting appeal to 90 days after the [second] judgment."
TRCP 306d REPEALED
TRCP 307 EXCEPTIONS ETC TRANSCRIPT
In non-jury cases, where findings of fact and conclusions of law are requested and filed, and in jury cases, where a special verdict is returned, any party claiming that the findings of the court or the jury, as the case may be, do not support the judgment, may have noted in the record an exception to said judgment and thereupon take an appeal or writ of error, where such writ is allowed, without a statement of facts or further exceptions in the transcript, but the transcript in such cases shall contain the conclusions of law and fact or the special verdict and the judgment rendered thereon.
TRCP 308 COURT SHALL ENFORCE ITS DECREES
The court shall cause its judgments and decrees to be carried into execution; and where the judgment is for personal property, and it is shown by the pleadings and evidence and the verdict, if any, that such property has an especial value to the plaintiff, the court may award a special writ for the seizure and delivery of such property to the plaintiff; and in such case may enforce its judgment by attachment, fine and imprisonment.
TRCP 308a IN SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
When the court has ordered child support or possession of or access to a child and it is claimed that the order has been violated, the person claiming that a violation has occurred shall make this known to the court. The court may appoint a member of the bar to investigate the claim to determine whether there is reason to believe that the court order has been violated. If the attorney in good faith believes that the order has been violated, the attorney shall take the necessary action as provided under Chapter 14, Family Code. On a Finding of a violation, the court may enforce its order as provided in Chapter 14, Family Code. Except by order of the court, no fee shall be charged by or paid to the attorney representing the claimant. If the court determines that an attorney's fee should be paid, the fee shall be adjudged against the party who violated the court's order. The fee may be assessed as costs of court, or awarded by judgment, or both.
Exparte Herring, 438 S.W.2d 801,803 (Tex.l969). TRCP 308a "contemplates that service under any of the applicable portions of [TRCP] 21a including service upon the attorney would constitute a compliance with the rules. [If] [l]t is a denial of due process to commit a person to prison for contempt who is not shown to be avoiding deliberately the service of process, and who has had no personal notice or knowledge of the showcause hearing...." Relator discharged.
TRCP 309 IN FORECLOSURE PROCEEDINGS
Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiffs lien on the property subject thereto, and, except in judgments against executors, administrators and guardians, that an order of sale shall issue to any sheriff or any constable within the State of Texas, directing him to seize and sell the same as under execution, in satisfaction of the judgment; and, if the properly cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to take the money or any balance thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary executions.
TRCP 310 WRIT OF POSSESSION
When an order foreclosing a lien upon real estate is made in a suit having for its object the foreclosure of such lien, such order shall have all the force and effect of a writ of possession as between the parties to the foreclosure suit and any person claiming under the defendant to such suit by any right acquired pending such suit; and the court shall so direct in the judgment providing for the issuance of such order. The sheriff or other officer executing such order of sale shall proceed by virtue of such order of sale to place the purchaser of the property sold thereunder in possession thereof within thirty days after the day of sale.
TRCP 311 ON APPEAL FROM PROBATE COURT
Judgment on appeal or certiorari from any county court sitting in probate shall be certified to such county court for observance
TRCP 312 ON APPEAL FROM JUSTICE COURT
Judgment on appeal or certiorari from a justice court shall be enforced by the county or district court rendering the judgment.
TRCP 313 AGAINST EXECUTORS ETC
A judgment for the recovery of money against an executor, administrator or guardian, as such, shall state that it is to be paid in the due course of administration. No execution shall issue thereon, but it shall be certified to the county court, sitting in matters of probate, to be there enforced in accordance with law, but judgment against an executor appointed and acting under a will dispensing with the action of the county court in reference to such estate shall be enforced against the property of the testator in the hands of such executor, by execution, as in other cases.
TRCP 314 CONFESSION OF JUDGMENT
Any person against whom a cause of action exists may, without process, appear in person or by attorney, and confess judgment therefor in open court as follows:
(a) A petition shall be Filed and the justness of the debt or cause of action be sworn to by the person in whose favor the judgment is confessed.
(b) If the judgment is confessed by attorney, the power of attorney shall be filed and its contents be recited in the judgment.
(c) Every such judgment duly made shall operate as a release of all errors in the record thereof, but such judgment may be impeached for fraud or other equitable cause.
I Remittitur and Correction
TRCP 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.
Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.l987). "A court of appeals should uphold a trial court remittitur only when the evidence is factually insufficient to support the verdict.  If a court of appeals holds that there is no evidence to support a damages verdict, it should render a take nothing judgment as to that amount. If part of a damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict."
TRCP 316 CORRECTION OF CLERICAL MISTAKES IN JUDGMENT RECORD
Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended.
Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). "After the trial court loses its jurisdiction over a judgment, it can correct only clerical errors in the judgment by judgment nunc pro tune. In this regard, the trial court has plenary power to correct a clerical error made in entering final judgment. [ 11 ] A judicial error is an error which occurs in the rendering as opposed to the entering of a judgment."
Andrews v. Koch, 702 S.W.2d 584,585 (Tex.l986). "[A]fter a judgment has become final, the trial court may only correct clerical errors by nunc pro tune judgment and may not correct judicial errors. The salient distinction between 'clerical' and 'judicial' errors lies in the exercise of the judgmental offices of the court. A clerical error is one which does not result from judicial reasoning or determination."
TRCP 317 319 REPEALED
J New Trials
TRCP 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 motion on such terms as the court shall direct. New trials may be granted when the damages are manifestly too small or too large. When it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that such part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. Each motion for new trial shall be in writing and signed by the party or his attorney.
Old Republic Ins. Co. v. Scott, 846 S.W.2d 832,833 (Tex.l993). "The filing of a motion for new trial in order to extend the appellate timetable is a matter of right, whether or not there is any sound or reasonable basis for the conclusion that a further motion is necessary."
State Dept. of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818,819 (Tex.l993). "A partial new trial may be ordered notwithstanding the prohibition in [TRCP] 41 against post-submission severances. [TRCP] 320 is thus an exception to Rule 41."
TRCP 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.
Marino v. Hartfield, 877 S.W.2d 508, 513 (Tex. App.-Beaumont 1994, writ denied). TRCP 321 "requires that the motion for new trial briefly refer to the ruling of the court, the charge, the evidence, or other proceedings complained of so that the objection can be identified and understood by the court."
TRCP 322 GENERALITY TO BE AVOIDED
Grounds of objections couched in general terms-as that the court erred in its charge, in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the jury is contrary to law, and the like-shall not be considered by the court.
D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App- Dallas 1993, no writ). "The purpose of a motion for new trial is to provide an opportunity for the trial court to cure any errors by granting a new trial. Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to clearly understand what is being alleged as error."
TRCP 323 REPEALED
TRCP 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 in subdivision (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 to support a jury finding;
(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.
(c) Judgment Notwithstanding Findings; Cross-Points. When judgment is rendered non obstante veredicto or notwithstanding the findings of a jury on one or more questions, the appellee may bring forward by cross-point contained in his brief Filed in the Court of Appeals any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict, including although not limited to the ground that one or more of the jury's Findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact, and the ground that the verdict and judgment based thereon should be set aside because of improper argument of counsel. The failure to bring forward by cross-points such grounds as would vitiate the verdict shall be deemed a waiver thereof; provided, however, that if a cross-point is upon a ground which requires the taking of evidence in addition to that adduced upon the trial of the cause, it is not necessary that the evidentiary hearing be held until after the appellate court determines that the cause be remanded to consider such a cross-point.
State Farm Lloyds v. Nicolau, 951 S.W.2d 444,452 (Tex.l997). Appellant was not entitled to a new trial based on newly discovered evidence because it "has not shown any likelihood that the new evidence, if introduced at trial, would have resulted in a different verdict on any of the [appellees'] claims."
Tate v. E.L da Pont de Nemours & Co., 934 S.W.2d 83,84 (Tex.l996). "(B]ecause the Filing is not complete until the fee is paid, the trial court should not consider the motion [for new trial] before then, absent emergency or other rare circumstances. [T]he failure to pay the [filing] fee before the motion is overruled by operation of law may forfeit altogether the movant's opportunity to have the trial court consider the motion; it does not, however, retroactively invalidate the conditional filing for purposes of the appellate timetable."
Horrocks v. Dept. of Transp., 852 S.W.2d 498,498- 99 (Tex.l993). "The court of appeals erred in rendering judgment based on a no evidence point preserved solely in the State's motion for new trial. Ordinarily, an appellate court should render judgment after sustaining a complaint as to the legal sufficiency of the evidence. ... Here, the State ... failed to lay [the] predicate [for rendition]."
Cecil v. Smith, 804 S.W.2d 509,510 (Tex.l991). "A point in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support ajury finding and that a jury finding is against the overwhelming weight of the evidence."
Lee v. Braebum Valley W. Civic Ass'n, 786 S.W.2d 262,263 (Tex.l990). "[A] motion for new trial is not a prerequisite for an appeal of a summary judgment proceeding."
Jackson v. Van Winkle, 660 S.W.2d 807,809 (Tex. 1983). "It is incumbent upon a party who seeks a new trial on the ground of newly discovered evidence to satisfy the court First, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner, third, that it is not cumulative; fourth, that it is so material that it would probably produce a different result if a new trial were granted."
TRCP 325 REPEALED
TRCP 326 NOT MORE THAN TWO
Not more than two new trials shall be granted either party in the same cause because of insufficiency or weight of the evidence.
TRCP 327 FOR JURY MISCONDUCT
a. When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury or of the ofFicer in charge of them, or because of any communication made to the jury, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.
b. 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.
Pharo v. Chambers Cty., 922 S.W.2d 945,950 (Tex. 1996)."[T]hebailiffs... misconduct ...justifies anew trial only if it reasonably appears from the record that injury probably resulted to the complaining party. To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he would otherwise have done on one or more issues vital to the judgment. ... Determining the existence of probable injury is a question of law." (Internal quotations omitted.)
Jackson v. Golden Eagle Archery, Inc., 974 S.W.2d 952, 958 (Tex.App- Beaumont 1998, pet. granted 1-7-99). "If jury misconduct-whatever form it may take-is present, the integrity of the jury system is compromised, and a fair trial cannot be had. ... [TRCP 327(b)] denies [P] his right to a fair and impartial jury trial and is ... unconstitutional."
Doucet v. Owens-Corning Fiberglas Corp., 966 S.W.2d 161, 163 (Tex.App.-Beaumont 1998, pet. denied). "To obtain a new trial on the ground of jury misconduct, the complaining party must show (1) that the misconduct occurred; (2) that it was material; and
(3) that, based on the record as a whole, the misconduct resulted in harm to them."
Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 272 (Tex.App.-El Paso 1994, writ denied). " [T]he only evidence of jury misconduct a trial court may consider is that which tends to prove that an 'outside influence' was brought to bear upon a juror. ... 'Outside influence' means a force external to the jury and its deliberations. [If] [The] injection of personal experience, knowledge, or expertise emanating from inside the jury is not an outside influence...."
TRCP 328 REPEALED
TRCP 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 cases.
(b) Execution of such judgment shall not be suspended unless the party applying therefor shall give a good and sufficient bond payable to the plaintiff in the judgment, in an amount fixed in accordance with Appellate Rule 47 relating to supersede as bonds, to be approved by the clerk, and conditioned that the party will prosecute his petition for new trial to effect and will perform such judgment as may be rendered by the court should its decision be against him.
(c) If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.
(d) If the motion is filed more than thirty days after the judgment was signed, the time period shall be computed pursuant to Rule 306a(7).
Stock v. Stock, 702 S.W.2d 713, 714 (Tex.App- San Antonio 1985, no writ). "Because appellant was cited by publication for the modification hearing, he had 2 years in which to file the motion for new trial."
TRCP 329a COUNTY COURT CASES
If a case or other matter is on trial or in the process of hearing when the term of the county court expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent term of court and no motion or plea shall be considered as waived or overruled, because not acted upon at the term of court at which it was Filed, but may be acted upon at any time the judge may Fix or at which it may have been postponed or continued by agreement of the parties with leave of the court. This subdivision is not applicable to original or amended motions for new trial which are governed by Rule 329b.
TRCP 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 thirty days 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 thirty 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 seventy-Five 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 thirty 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 thirty 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, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tune under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired.
(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), 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. Each such motion shall be in writing and signed by the party or his attorney and shall specie the respects in which the judgment should be modified, corrected, or
reformed. The overruling of such a motion shall not preclude the filing of a motion for new trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to modify, correct, or reform.
(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 signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.
Bastrop ISO v. Toungate, 958 S.W.2d 365, 367 (Tex.l997). "The initial judgment ... was rendered on Nov. 29, 1994. Toungate filed a timely motion to modify or reform the judgment, and the trial court signed the modified judgment in favor of Toungate on Jan. 10, 1995, well within its plenary power. Upon signing the modified judgment, the trial court then had plenary power to set aside or to further modify or reform that judgment within 30 days, absent another motion extending the time periods."
Scott & White Mem. Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.l996). "[A] trial court's plenary power to act in a case does not expire until 30 days after the court has signed the judgment. A trial court's power to decide a motion for sanctions pertaining to matters occurring before judgment is no different than its power to decide any other motion during its plenary jurisdiction. [T]he time during which the trial court has authority to impose sanctions on such a motion is limited to when it retains plenary jurisdiction."
L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex.l996). "That the trial court overruled [appellant's] motion for new trial does not shorten the trial court' plenary power to resolve a motion to modify the judgment. At 444: [TRCP 329b(g) & (e)] provide that a timely Filed motion to modify judgment extends the trial court's plenary power, separate and apart from a motion for new trial."
Farmer v. Ben E. Keith Co., 907 S.W.2d 495,496 (Tex.l995). "[T]he appellate timetable runs from the signing date of whatever order that makes a judgment Final and appealable, i.e. whatever order disposes of any parties or issues remaining before the court. Further, the appellate timetable can begin yet again with the signing of an order or judgment where there is nothing on the face of the record to indicate it was signed for the sole purpose of extending the appellate timetable and the order is signed within the trial court's plenary
Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). "Under Texas procedure, a plaintiffs suit does not end with rendition of judgment. Rather, the parties may file one or more motions for new trial within 30 days after rendition of judgment. The trial court may in its discretion grant such a motion within 75 days after the judgment is signed, continuing the action for a new trial. ... If a motion for new trial or motion to modify the judgment is overruled, the trial court still retains plenary power to vacate, modify, correct or reform the judgment for an additional 30 day period."
Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993). "A trial judge's oral pronouncement granting a motion for new trial or motion to modily, reform, or correct ajudgment and a docket entry... cannot substitute for a written order required by (TRCP] 329b."
Fruehauf Corp. v. Carrillo, 848 S.W.2d 83,84 (Tex. 1993). "A trial court has plenary power over its judgment until it becomes final. ... The trial court also retains continuing control over interlocutory orders and has the power to set those orders aside any time before Final judgment is entered."
Cecil v. Smith, 804 S.W.2d 509,511 (Tex.l991). "If an original or amended motion for new trial is not determined by written order signed within 75 days after the judgment was signed, it is overruled by operation of law."
K Certain District Courts
TRCP 330 RULES OF PRACTICE and PROCEDURE IN CERTAIN DISTRICT COURTS
The following rules of practice and procedure shall govern and be followed in all civil actions in district courts in counties where the only district court of said county vested with civil jurisdiction, or all the district courts thereof having civil jurisdiction, have successive terms in said county throughout the year, without more than two days intervening between any of such terms, whether or not any one or more of such district courts include one or more other counties within its jurisdiction.
(a) Appealed Cases. In cases appealed to said district courts from inferior courts, the appeal, including transcript, shall be filed in the district court within thirty (30) days after the rendition of the judgment or order appealed from, and the appellee shall enter his appearance on the docket or answer to said appeal on or before ten o'clock a.m. of the Monday next after the expiration of twenty (20) days from the date the appeal is Filed in the district court.
(b) Repealed eff. Jan. 1, 1976 by order of July 22, 1975 (525 S.W.2d li).
(c) Postponement or Continuance. Cases may be postponed or continued by agreement with the approval of the court, or upon the court's own motion or for cause. When a case is called for trial and only one party is ready, the court may for good cause either continue the case for the term or postpone and reset it for a later day in the same or succeeding term.
(d) Cases May Be Reset. A case that is set and reached for trial may be postponed for a later day in the term or continued and reset for a day certain in the succeeding term on the same grounds as an application for continuance would be granted in other district courts. After any case has been set and reached in its due order and called for trial two (2) or more times and not tried, the court may dismiss the same unless the parties agree to a postponement or continuance but the court shall respect written agreements of counsel for postponement and continuance if Filed in the case when or before it is called for trial unless to do so will unreasonably delay or interfere with other business of the court.
(e) Exchange and Transfer. Where in such county there are two or more district courts having civil jurisdiction, the judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own courtroom try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the case is pending and at the time the judgment or order is rendered, and two (2) or more judges may try different cases in the same court at the same time, and each may occupy his own courtroom or the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or proceeding pending in his court to any other of said courts, and the judge of any court to which a case or proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his courtroom try any case pending in any other of such courts.
(f) Cases Transferred to Judges Not Occupied. Where in such counties there are two or more district courts having civil jurisdiction, when the judge of any such court shall become disengaged, he shall notify the presiding judge, and the presiding judge shall transfer to the court of the disengaged judge the next case which is ready for trial in any of said courts. Any judge not engaged in his own court may try any case in any other court.
(g) Judge May Hear Only Part of Case. Where in such counties there are two or more district courts having civil jurisdiction, any judge may hear any part of any case or proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.
(h) Any Judge May Hear Dilatory Pleas. Where in such county there are two or more district courts having civil jurisdiction, any judge may hear and determine motions, petitions for injunction, applications for appointment of receivers, interventions, pleas of privilege, pleas in abatement, all dilatory pleas and special exceptions, motions for a new trial and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting, and the judge in whose court the case is pending may thereafter proceed to hear, complete and determine the case or other matter, or any part thereof, and render Final judgment therein. Any judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.
(i) Acts in Succeeding Terms. If a case or other matter is on trial, or in the process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent term of court and no motion or plea shall be considered as waived or overruled, because not acted upon at the term of court at which it was Filed, but may be acted upon at any time the judge may Fix or at which it may have been postponed or continued by agreement of the parties with leave of the court. This subdivision is not applicable to original or amended motions for new trial which are governed by Rule 329b.
Wilson v. Dunn, 800 S.W.2d 833, 835 n.6 (Tex. 1990). "The 236th District Court and the 67th District Court both sit in Tarrant County. They are permitted to, and do, hear each other's civil cases under [TRCP] 330."
In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 173 (Tex.App.-Corpus Christi 1999, orig. proceeding). "[L litigants do not have a protected proprietary interest in having their cases heard by a particular district judge or court within the county of filing."
Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App- Dallas 1989, writ denied). TRCP 330(e) is "consistent with [Tex. Const. art. 5, Section 11]. The rule ... make[s] each district judge the judge of any other district court in the county."
TRCP 331 351 REPEALED
PART III RULES OF PROCEDURE FOR THE COURTS OF APPEALS
TRCP 352 473 REPEALED
PART IV RULES OF PRACTICE FOR THE SUPREME COURT
TRCP 474 522 REPEALED
PART V RULES OF PRACTICE IN JUSTICE COURTS
Section 1 General
TRCP 523 DISTRICT COURT RULES GOVERN
All rules governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules.
Searcy v. Sagallo, 915 S.W.2d 595,597 (Tex.App- Houston [14th Dist.] 1996, no writ). TRCP 567 & 571 "specifically provide the procedures and time constraints to be used by justice courts in motions for new trial and appeals. Thus, [TRCP] 523 does not allow the justice court to grant new trials beyond the period provided in rule 567."
Section 2 Institution of Suit
TRCP 524 DOCKET
Each justice shall keep a civil docket in which he shall enter:
(a) The title of all suits commenced before him.
(b) The time when the first process was issued against the defendant, when returnable, and the nature thereof.
(c) The time when the parties, or either of them, appeared before him, either with or without a citation.
(d) A brief statement of the nature of the plaintiffs demand or claim, and the amount claimed, and a brief statement of the nature of the defense made by the defendant, if any.
(e) Every adjournment, staling at whose request and to what time.
(f) The time when the trial was had, staling whether the same was by a jury or by the justice.
(g) The verdict of the jury, if any.
(h) The judgment signed by the justice and the time of signing same.
(i) All applications for setting aside judgments or granting new trials and the order of the justice thereon, with the date thereof.
(j) The time of issuing execution, to whom directed and delivered, and the amount of debt, damages and costs; and, when any execution is returned, he shall note such return on said docket, with the manner in which it was executed.
(k) All stays and appeals that may be taken, and the time when taken, the amount of the bond and the names of the sureties.
(l) He shall also keep such other dockets, books and records as may be required by law or these rules, and shall keep a fee book in which shall be taxed all costs accruing in every suit commenced before him.
Kahn v. Marik, 286 S.W.2d 639, 641 (Tex.App- Galveston 1956, writ reFd n.r.e.). "[T]he civil docket, which the law requires the justice of the peace to keep, is the proper place for the judgment to be entered and also serves as what we would call the execution docket in the county or district court."
TRCP 525 ORAL PLEADINGS
The pleadings shall be oral, except where otherwise specially provided; but a brief statement thereof may be noted on the docket; provided that after a case has been appealed and is docketed in the county (or district) court all pleadings shall be reduced to writing.
Knight v. Department of Pub. Safety, 361 S.W.2d 620,623 (Tex.App.--Amarillo 1962, no writ). An "appeal from the administrative body shall be tried in the same manner as a trial in the county court on an appeal from the justice court. [TRCP 525] provides that in an appeal from the justice court to county court all pleadings in a cause which are not already written shall be reduced to writing."
TRCP 526 SWORN PLEADINGS
An answer or other pleading setting up any of the matters specified in Rule 93 shall be in writing and signed by the party or his attorney and verified by affidavit.
TRCP 527 MOTION TO TRANSFER
A motion to transfer filed in the justice court shall contain the requisites prescribed in Rule 86; and in addition shall set forth the precinct to which transfer is sought.
TRCP 528 VENUE CHANGED ON AFFIDAVIT
If any party to a suit before any justice shall make an affidavit supported by the affidavit of two other credible persons, citizens of the county, that they have good reason to believe, and do believe, that such party cannot have a fair and impartial trial before such justice or in such justice's precinct, the justice shall transfer such suit to the court of the nearest justice within the county not subject to the same or some other disqualification.
Crowder v. Franks, 870 S.W.2d 568, 571-72 (Tex. App- Houston (1st Dist] 1993, no writ). TRCP 528 "incorporates in a single procedure the legislature's decision to give a civil litigant in a justice of the peace court an absolute right to the transfer of a case to avoid the alleged prejudice of a judge or potential jury. This... is predicated upon a Filing of an affidavit by a party to the suit supported by additional affidavits from at least 2 other credible citizens (nonparties to the litigation) of the county involved. The affidavits ... are sufficient even though they may be only conclusionary, albeit sworn, allegations of impartiality and residency. There is no provision in the rule for the allegations to be factually contested, nor for an eventual fact-finding made by the justice of the peace as to their accuracy."
TRCP 529 NEAREST JUSTICE DEFINED
By the term "nearest justice," as used in this section, is meant the justice whose place of holding his court is nearest to that of the justice before whom the proceeding is pending or should have been brought.
TRCP 530 BY CONSENT
The venue may also be changed to the court of any other justice of the county, upon the written consent of the parties or their attorneys, filed with the papers of the cause.
TRCP 531 ORDER OF TRANSFER
The order of transfer in such cases shall state the cause of the transfer, and the name of the court to which the transfer is made, and shall require the parties and witnesses to appear before such court at its next ensuing term.
TRCP 532 TRANSCRIPT
When such order of transfer is made, the justice who made the order shall immediately make out a true and correct transcript of all the entries made on his docket in the cause, certify thereto officially, and send it, with a certified copy of the bill of costs taken from his fee book, and the original papers in the cause, to the justice of the precinct to which the same has been transferred.
TRCP 533 REQUISITES OF PROCESS
Every writ or process from the justice courts shall be issued by the justice, shall be in writing and signed by him officially. The style thereof shall be "The State of Texas." It shall, except where otherwise specially provided by law or these rules be directed to the person or party upon whom it is to be served, be made returnable to some regular term of court, and have noted thereon the date of its issuance.
TRCP 534 ISSUANCE and FORM OF CITATION
a. Issuance. When a claim or demand is lodged with a justice for suit, the clerk when requested shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition if any is filed. Upon request, separate or additional citations shall be issued by the clerk.
b. Form. The citation shall (1) be styled "The State of Texas", (2) be signed by the clerk under seal of court or by the Justice of the Peace, (3) contain name and location of the court, (4) show date of Filing of the petition if any is filed, (5) show date of issuance of citation, (6) show file number and names of parties, (7) state the nature of plaintiffs demand, (8) be directed to the defendant, (9) show name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require defendant to File a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall notify defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct defendant to File a written answer to plaintiffs petition on or before 10:00 a.m. on the Monday next after the expiration of ten days after the date of service thereof. The requirement of subsections 10 and 12 of this rule shall be in the form set forth in section c of this rule.
c. Notice. The citation shall include the following notice to defendant: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of ten days after you were served this citation and petition, a default judgment may be taken against you."
d. Copies. The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies.
TRCP 535 ANSWER FILED
Where citation has been personally served at least ten days before appearance day, exclusive of the day of service and of return, the answer of the defendant shall be filed at or before ten o'clock a.m. on such day. Where citation has been served by publication, and the First publication has been made at least twenty-eight days before appearance day, the answer of the defendant shall be filed at or before ten o'clock a.m. on the first day of the first term which shall convene after the expiration of forty-two days from the date of issuance of such citation.
TRCP 536 WHO MAY SERVE and METHOD OF SERVICE
(a) Citation and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of a suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested, be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without written motion and no fee shall be imposed for issuance of such order.
(b) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by this rule by:
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto if any is Filed.
(c) Upon motion supported by affidavit staling the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and staling specifically the facts showing that service has been attempted under either (a)(l) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service:
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
TRCP 536a DUTY OF OFFICER OR PERSON RECEIVING and RETURN OF CITATION
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized by Rule 536, the return by the officer or authorized person must also contain the receipt with the addressee's signature. When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.
Where citation is executed by an alternative method as authorized by Rule 536, proof of service shall be made in the manner ordered by the court.
No default judgment shall be granted in any cause until the citation with proof of service as provided by this rule, or as ordered by the court in the event citation is executed under Rule 536, shall have been on File with the clerk of the court three (3) days, exclusive of the day of filing and the day of judgment.
Section 3 Appearance and Trial
TRCP 537 APPEARANCE DAY
If a defendant who has been duly cited is required by the citation to answer on a day which is in term time, such day is appearance day as to him. If he is so required to answer on a day in vacation, the first day of the next term is appearance day as to him. Where service of citation has been had by publication, the first day of the term of court which convenes after the expiration of 42 days from the date of issuance of the citation shall be appearance day.
TRCP 538 IF DEFENDANT FAILS TO APPEAR
If the defendant who has been duly served with a citation shall fail to appear at, or before, ten o'clock a.m. on appearance day, the justice shall proceed in the following manner:
(a) If the plaintiffs claim be liquidated and proved by an instrument of writing purporting to have been executed by the defendant, or be upon an open account duly verified by affidavit, the justice shall, whether the plaintiff appear or not, render judgment in his favor against the defendant for the amount of such written obligation or sworn account, after deducting all credits indorsed thereon.
(b) If the plaintiffs claim is not so liquidated, and the plaintiff appears in person or by attorney, the justice shall proceed to hear the testimony; and, if it appears therefrom that the plaintiff is entitled to recover, judgment shall be rendered against the defendant for such amount as the testimony shows the plaintiff entitled to; otherwise, judgment shall be rendered for the defendant.
TRCP 539 APPEARANCE NOTED
If the defendant appear, the same shall be noted on the docket, and the cause shall stand for trial in its order.
TRCP 540 IF NO DEMAND FOR JURY
If neither party shall demand and be entitled to a jury, the justice shall try the cause without a jury.
TRCP 541 CONTINUANCE
The justice for good cause shown, supported by affidavit, may continue any suit pending before him to the next regular term of his court, or postpone the same to some other day of the term.
TRCP 542 CALL OF NON JURY DOCKET
The docket of cases to be tried by the justice shall be called regularly, and the cases shall be tried when called unless continued or postponed.
TRCP 543 DISMISSAL
If the plaintiff shall fail to appear when the cause is called in its order for trial, the justice, on motion of the defendant, may dismiss the suit
TRCP 544 JURY TRIAL DEMANDED
Either party shall be entitled to a trial by jury. Except in forcible entry and detainer cases, the party desiring a jury shall before the case is called for trial not less than one day in advance of the date set for trial of the cause make a demand for a jury, and also deposit a jury fee of five dollars, which shall be noted on the docket; and the case shall be set down as injury case.
TRCP 545 JURY TRIAL DAY
The justice shall, on the first day of the term, fix a day for taking up the jury cases, if any, pending for trial at such term, and he may fix said first day of the term for that purpose.
TRCP 546 CALL OF JURY DOCKET
When the required number of jurors is present, the jury cases set for trial shall be called.
TRCP 547 CHALLENGE TO THE ARRAY
When the parties to a jury case have announced themselves for trial, either party may challenge the array of jurors. The cause and the manner of making such challenge, the decision thereof and the proceedings, when such challenge is sustained, shall be as provided for similar proceedings in the district and county courts.
TRCP 548 DRAWING JURY
If no challenge to the array is made, the justice shall write the names of all the jurors present on separate slips of paper, as nearly alike as may be, and shall place them in a box and mix them well, and shall then draw the names one by one from the box, and write them down as they are drawn, upon several slips of paper, and deliver one slip to each of the parties, or their attorneys.
TRCP 549 CHALLENGE FOR CAUSE
If either party desires to challenge any juror for cause, such challenge shall now be made. The causes of such challenge, and the manner of making it and the decision thereof, and the proceedings, when such challenge is sustained, shall be as provided for similar proceedings in the district and county courts.
TRCP 550 PEREMPTORY CHALLENGE
When a juror has been challenged for cause, and the challenge has been sustained, his name shall be erased from the slips furnished to the parties; and, if as many as twelve names remain on such slips, the parties may make their peremptory challenges governed by the rules prescribed for the district and county courts. Each party shall be entitled to three peremptory challenges.
TRCP 551 THE JURY
When the peremptory challenges are made, they shall deliver their slips to the justice, who shall call off the first six names on the slips that have not been erased, and these shall be the jury to try the case.
TRCP 552 IF JURY IS INCOMPLETE
If the jury by peremptory challenges is left incomplete, the justice shall direct the sheriff or constable to summon others to complete the jury; and the same proceedings shall be had in selecting and impaneling such jurors as are had in the First instance.
TRCP 553 JURY SWORN
When the jury has been selected, such of them as have not been previously sworn for the trial of civil cases shall be sworn by the justice. The form of the oath shall be in substance as follows: "You and each of you do solemnly swear that in all cases between parties which shall be to you submitted you will a true verdict render, according to the law and the evidence. So help you God."
TRCP 554 JUSTICE SHALL NOT CHARGE JURY
The justice of the peace shall not charge the jury in any cause tried in his court before a jury.
TRCP 555 VERDICT
When the suit is for the recovery of specific articles, the jury shall, if they find for the plaintiff, assess the value of each of such articles separately, according to the proof.
Section 4 Judgment
TRCP 556 JUDGMENT UPON VERDICT
Where the case has been tried by a jury and a verdict has been returned by them, the justice shall announce the same in open court and note it in his docket, and shall proceed to render judgment thereon.
Pullin v. Pamsh, 306 S.W.2d 241,242 (Tex.App- San Antonio 1957, writ ref'd). "A judgment is a prerequisite to an appeal from the justice court. [ If ] An appeal from a docketed verdict, but not the judgment, is void. [If] We do not hold that a judgment is inadequate if it is informal or merely noted on the docket sheet; ... the record must show that it is a judgment and not a verdict."
TRCP 557 CASE TRIED BY JUSTICE
When the case has been tried by the justice without a jury, he shall announce his decision in open court and note the same in his docket and render judgment thereon.
TRCP 558 JUDGMENT
The judgment shall be recorded at length in the justice's docket, and shall be signed by the justice. It shall clearly state the determination of the rights of the parties in the subject matter in controversy and the party who shall pay the costs, and shall direct the issuance of such process as may be necessary to carry the judgment into execution.
Housing Auth. v. Sanders, 693 S.W.2d 2,2-3 (Tex. App.-Tyier 1985, writ refd n.r.e.). "A justice court judgment is a prerequisite to an appeal to the county court."
TRCP 559 COSTS
The successful party in the suit shall recover his costs, except in cases where it is otherwise expressly provided.
TRCP 560 JUDGMENT FOR SPECIFIC ARTICLES
Where the judgment is for the recovery of specific articles, their value shall be separately assessed, and the judgment shall be that the plaintiff recover such specific articles, if they can be found, and if not, then their value as assessed with interest thereon at the rate of six per cent from the date of judgment.
NationalSur. Co. v. Odle, 40 S.W.2d 876,877 (Tex. App.-Waco 1931, no writ). If the specific articles cannot be recovered under the judgment, the value to be given those articles "is the value of the property at the date of judgment."
TRCP 561 TO ENFORCE JUDGMENT
The court shall cause its judgments to be carried into execution, and where the judgment is for personal property and the verdict, if any, is that such property has an especial value to the plaintiff the court may award a special writ for the seizure and delivery of such property to the plaintiff, and may, in addition to the other relief granted in such cases, enforce its judgment by attachment, fine and imprisonment.
TRCP 562 NO JUDGMENT WITHOUT CITATION
No judgment, other than judgment by confession, shall be rendered by the justice of the peace against any party who has not entered an appearance or accepted service, unless such party has been duly cited.
TRCP 563 CONFESSION OF JUDGMENT
Any party may appear in person, or by an agent or attorney, before any justice of the peace, without the issuance or service of process, and confess judgment for any amount within the jurisdiction of the justice court; and such judgment shall be entered on the justice's docket as in other cases; but, in such cases, the plaintiff, his agent or attorney shall make and file an affidavit signed by him, to the justness of his claim.
TRCP 564 WARRANT OF ATTORNEY
Where such judgment is confessed by an agent or attorney, the warrant of attorney shall be in writing and filed with the justice and noted in the judgment.
TRCP 565 RULES GOVERNING
The rules governing the district and county courts in relation to judgment and confession thereof, shall also apply to justice courts, insofar as they do not conflict with some provision of the rules applicable to justice courts.
Triple T Inns, Inc. v. Roberts, 800 S.W.2d 681,683 (Tex.App.-Amarillo 1990, writ denied). "[P] roper application of [TRCP] 565 gives the justice [of the peace] the same right to instruct a verdict possessed by county and district judges."
Section 5 New Trial
TRCP 566 JUDGMENTS BY DEFAULT
A justice may within ten days after a judgment by default or of dismissal is signed, set aside such judgment, on motion in writing, for good cause shown, supported by affidavit. Notice of such motion shall be given to the opposite party at least one full day prior to the hearing thereof.
TRCP 567 NEW TRIALS
The justice, within ten days after the rendition of a judgment in any suit tried before him, may grant a new trial therein on motion in writing showing that justice has not been done in the trial of the cause. If the grounds of the motion be other than that the verdict or judgment is contrary to the law or the evidence, or that the justice erred in some matter of law, the motion shall be supported by affidavit.
Searcy v. Sagullo, 915 S.W.2d 595, 596-97 (Tex. App- Houston [14th Dist] 1996, no writ). TRCP 567 "provides that a justice court may grant a new trial within 10 days of rendering judgment. ... [F]iling a motion for new trial in justice court does not enlarge the time period for filing an appeal bond. ... Because the justice court did not act on Searcy's motion for new trial, it was overruled by operation of law ... 10 days after the justice court rendered judgment. ... [I]f a party files a motion for new trial in justice court, there is a maximum of 20 days to file an appeal bond. At n.2: We note that rule 567 provides that the new trial time period begins when judgment is rendered rather than when the judgment is signed as is the case in district and county courts."
TRCP 568 REPEALED
TRCP 569 NOTICE
All motions to set aside a judgment or to grant a new trial, under the two preceding rules, shall be made within five days after the rendition of judgment and one day's notice thereof shall be given the opposite party or his attorney.
TRCP 570 BUT ONE NEW TRIAL
But one new trial may be granted to either party.
Section 6 Appeal
TRCP 571 APPEAL BOND
The party appealing, his agent or attorney, shall within ten days from the date a judgment or order overruling motion for new trial is signed, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on appeal; or if the appeal is by the plaintiff by reason of judgment denying in whole or in part his claim, he shall file with the justice a bond in the same ten-day period, payable to the appellee, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the costs incurred in the justice court and estimated costs in the county court, less such sums as may have been paid by the plaintiff on the costs, conditioned that he shall prosecute his appeal to effect and shall pay off and satisfy such costs if judgment for costs be rendered against him on appeal. When such bond has been filed with the justice, the appeal shall be held to be thereby perfected and all parties to said suit or to any suit so appealed shall make their appearance at the next term of court to which said case has been appealed. Within five days following the filing of such appeal bond, the party appealing shall give notice as provided in Rule 21a of the filing of such bond to all parties to the suit who have not filed such bond.
No judgment shall be taken by default against any party in the court to which the cause has been appealed without First showing that this rule has been complied with. The appeal shall not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five days after notice within which to correct or amend same.
Stephen v. Neal, __ S.W.3d __, __ (Tex.App Houston [lst Dist] 1999, n.p.h.) (No. 01-98-1214-CV; 7- 22-99). "A party has ten days from the date the judgment is signed to file an appeal bond with the justice court. If the appeal bond is not timely filed, the county court is without jurisdiction to hear the appeal, and the appeal should be dismissed for lack of jurisdiction."
Mitchell v. Armstrong Capital Corp., 877 S.W.2d 480, 481 n.l (Tex.App- Houston [1st Dist] 1994, no writ). TRCP 751 "requires the county clerk to give the adverse party notice that the justice court's judgment has been appealed."
Polk v. Braddock, 864 S.W.2d 78, 80 (Tex.App- Dallas 1992, no writ). TRCP 751 "makes it clear that the proper party for a mandamus proceeding concerning the failure to file appeal papers with the county court in an appeal from the justice court under rule 751 is the justice of the peace."
TRCP 572 AFFIDAVIT OF INABILITY
Where appellant is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after the judgment or order overruling motion for new trial is signed, which shall consist of his affidavit filed with the justice of the peace slating his inability to pay such costs, or any part thereof, or to give security, which may be contested within five days after the filing of such affidavit and notice thereof to the opposite party or his attorney of record by any officer of court or party to the suit, whereupon it shall be the duty of the justice of the peace in whose court the suit is pending to hear evidence and determine the right of the party to appeal, and he shall enter his Finding on the docket as a part of the record. It will be presumed prima facie that the affidavit speaks the truth, and, unless contested within Five days after the Filing and notice thereof, the presumption shall be deemed conclusive; but if a contest is Filed, the burden shall then be on the appellant to prove his alleged inability by competent evidence other than by the affidavit above referred to. If the justice of the peace denies the right of appeal, appellant may, within five days thereafter, bring the matter before the county judge of the county for final decision, and, on request, the justice shall certify to the county judge appellant's affidavit, the contest thereof, and all documents and papers pertaining thereto. The county judge shall set a day for hearing, not later than ten days, and shall hear the contest de novo, and if the appeal is granted, shall direct the justice to transmit to the clerk of the county court, the transcript, records and papers of the case, as provided in these rules.
TRCP 573 APPEAL PERFECTED
When the bond, or the affidavit in lieu thereof, provided for in the rules applicable to justice courts, has been filed and the previous requirements have been complied with, the appeal shall be held to be perfected.
Molina v. Negley, 425 S.W.2d 896,898 (Tex.App- San Antonio 1968, no writ). "We think a reasonable construction of the entire rule is that the filing of an appeal bond within 10 days perfects an appeal, as specifically) provided for in [TRCP] 571 and 573 ...and that the fail ure to give this notice only prevents a default judgment."
TRCP 574 TRANSCRIPT
Whenever an appeal has been perfected from the justice court, the justice who made the order, or his successor, shall immediately make out a true and correct copy of all the entries made on his docket in the cause and certify thereto officially, and immediately send it together with a certified copy of the bill of costs taker from his fee book, and the original papers in the cause to the clerk of the county court of his county, or other court having jurisdiction.
Advance Imports, Inc. v. Gibson Prods. Co., 533 S.W.2d 168, 170 (Tex.App- Dallas 1976, no writ). "[T]he duty of the justice to prepare a transcript of his docket entries and transmit it, along with the original papers, to the clerk of the county court, and the duty of the clerk to file the transcript and papers and collect the Filing fee do not arise until the appeal 'has been perfected' by filing the bond or affidavit. Consequently, failure of the justice or clerk to perform any of these ministerial duties does not reinstate the judgment of the justice court. That judgment is vacated by filing the
TRCP 574a NEW MATTER MAY BE PLEADED
Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below. The pleading thereof shall be in writing and filed in the cause before the parties have announced ready for trial.
In re Jimenez, 841 S.W.2d 572, 573 (Tex.Spec. Ct.Rev.l992). "We hold that, although the new allegation was factually connected with the controversy heard before the Commission, it was sufficiently different in its facts, its timing, its witnesses, and its legal basis that it constituted new matter, in violation of [TRCP 574a]. At n.2: Rule 574a is applicable to the present appeal by virtue of Gov't Code Section 33.034(e)."
D'TelComm. v. Roadway Package Sere., Inc., 987 S.W.2d 213, 214 (Tex.App-Eastland 1999, n.p.h.). "A party may not plead any counterclaim in an appeal to the county court that it did not plead in the justice court. ... Under [TRCP] 574a, the counterclaim in this case was improperly pleaded in the appeal; therefore, it was improperly joined. The remedy for misjoinder is not dismissal but severance."
Richard v. Taylor, 886 S.W.2d 848, 851 (Tex.App. -Beaumont 1994, no writ). "While new matters may be pleaded in the county court at law, no new grounds of recovery may be added. "
TRCP 574b TRIAL DE NOVO
The cause shall be tried de novo in the county or district court; and judgment shall be rendered.
In re Garza, 990 S.W.2d 372, 374 (Tex. App.- Corpus Christi 1999, n.p.h.). "When an appeal from a justice court judgment is perfected in a county court, the judgment of the justice court is annulled. Once this occurs, the burden is on the appellee to obtain a new judgment."
Section 7 Certiorari
TRCP 575 ORDER FOR WRIT
The writ of certiorari shall be issued by order of the county court or the judge thereof (or district court or judge thereof, if jurisdiction is transferred to the district court) as provided in these rules.
TRCP 576 REQUISITES OF WRIT
The writ shall command the justice to immediately make and certify a copy of the entries in the cause on his docket, and immediately transmit the same, with the papers in his possession and a certified copy of the bill of costs to the proper court.
TRCP 577 AFFIDAVIT OF SUFFICIENT CAUSE
The writ shall not be granted unless the applicant or some person for him having knowledge of the facts, shall make affidavit setting forth sufficient cause to entitle him thereto.
Centre Jurici De Instituto Tecnologico v. Inter travel, Inc., __ S.W.3d __, __ (Tex.App.-San Antonio 1999, n.p.h.) (No. 04-98-00397-CV; 7-14-99) '"Sufficient cause' includes a lack of jurisdiction."
TRCP 578 APPLICATION FOR CERTIORARI
To constitute a sufficient cause, the facts stated must show that either the justice of the peace had no jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceeding, and that such injustice was not caused by his own inexcusable neglect.
TRCP 579 WITHIN WHAT TIME GRANTED
Such writ shall not be granted after ninety days from the time the Final judgment is signed.
TRCP 580 BOND WITH SURETIES REQUIRED
The writ shall not be issued unless the applicant shall First cause to be filed a bond with two or more good and sufficient sureties, to be approved by the clerk, payable to the adverse party, in such sum as the judge shall direct, to the effect that the party applying therefor will perform the judgment of the county or district court, if the same shall be against him.
TRCP 581 BOND AFFIDAVIT and ORDER
The bond and affidavit, with the order of the judge, when made in vacation, shall be filed with the clerk of the court to which the same is returnable.
TRCP 582 WRIT TO ISSUE INSTANTER
As soon as such affidavit, order of the judge, and bond, shall have been Filed, the clerk shall issue a writ of certiorari.
TRCP 583 JUSTICE SHALL STAY PROCEEDINGS
Upon service of such writ of certiorari being made upon the justice of the peace, he shall stay further proceedings on the judgment and forthwith comply with said writ
TRCP 584 CITATION AS IN OTHER CASES
Whenever a writ of certiorari has been issued, the clerk shall forthwith issue a citation for the party adversely interested.
TRCP 585 CAUSE DOCKETED
The action shall be docketed in the name of the original plaintiff, as plaintiff, and of the original defendant, as defendant.
TRCP 586 MOTION TO DISMISS
Within thirty days after the service of citation on the writ of certiorari, the adverse party may move to dismiss the certiorari for want of sufficient cause appearing in the affidavit, or for want of sufficient bond.
TRCP 587 AMENDMENT OF BOND OR OATH
The affidavit or bond may be amended in the discretion of the court in which it is filed.
TRCP 588 JUDGMENT OF DISMISSAL
If the certiorari be dismissed, the judgment shall direct the justice to proceed with the execution of the judgment below.
TRCP 589 PLEADING
After the transcript of the proceedings in the justice court, together with the original papers and a bill of costs, have been filed in the county (or district) court, all pleadings in the cause which are not already written shall be reduced to writing.
TRCP 590 NEW MATTER MAY BE PLEADED
Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below. The pleading thereof shall be in writing and filed in the cause before the parties have announced ready for trial.
Hamby Co. v. Palmer, 631 S.W.2d 589,591 (Tex App.-Amarillo 1982, no writ). " [A]lthough set out in a section of the Rules dealing with certiorari proceedings [TRCP 590] also applies to appeals from justice courts to higher courts."
TRCP 591 TRIAL DE NOVO
The cause shall be tried de novo in the county or district court; and judgment shall be rendered as in cases appealed from justice courts.