Wrong address leads to reversal by restricted appeal

Posted on October 12, 2010 by Byron Henry

The Dallas Court of Appeals recently held that notice of trial sent to an incorrect address constitutes error on the face of the record sufficient to warrant reversal on restricted appeal.  Here, the trial court clerk sent notice of trial to the Plaintiffs at an address containing an incorrect suite number even though the file contained evidence of the correct address.  The notice of trial was returned "Attempted -- Not Known."  Subsequently, the trial court failed to send notice of the dismissal pursuant to TRCP 306a(3).  The court of appeals stated that "[f]ailure to give this notice is also a violation of the [plaintiffs'] due process rights and constitutes error on the face of the record."  Consequently,the court reversed the dismissal of the plaintiffs' claims.

There are two lessons to be learned from this case.  First, check and double-check your addresses.  If you do not trust the clerk, cross-serve required notices on all parties in the case.  Second, all hope is not lost if a party misses the deadline to file a motion for new trial or notice of appeal.  Restricted appeals are alive and well and can be a last resort to attack adverse judgments.  The court's opinion in Smith v. Shipp can be found at this link.    

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New Trial Granted Based on "Inherent Power to Sanction"

Posted on October 11, 2010 by Mike Northrup

Last year, the Texas Supreme Court shook things up a little with its opinion in In re Columbia Medical Center, in which it granted a petition for writ of mandamus and ordered a trial court to state the reasons for granting a new trial.  Prior to that time, mandamus relief was not available to a litigant that suffered the granting of a new trial.   But one question raised by In re Columbia Medical Center's result is "to what effect?"  Once the trial court states its reasons, is that the end of the discussion?  Or can the reasons be used as a basis to challenge the new trial order itself?

The El Paso Court of Appeals was recently presented with that issue in In re Toyota Motor Sales, U.S.A. Inc.  Following a jury verdict in favor of Toyota, the trial court entered judgment on the verdict.  The Plaintiff filed a motion for new trial, seeking a new trial "in the interest of justice" because of evidence presented and arguments made relating to whether the driver of the Toyota had been wearing his seatbelt at the time of the accident.  The trial court granted the motion for new trial "in the interest of justice" "because Defendant willfully disregarded, brazenly and intentionally violated the Court's orders in limine, evidentiary rulings, instructions and orders concerning a crucial evidentiary issue relating to seat belt use."  In what appears to be an alternate basis for the new trial, the court invoked its inherent authority to sanction, and referred to the same conduct by Defendant as the basis for a new trial.

Toyota sought mandamus relief to compel the trial court to vacate the order, arguing that the grounds were not sufficient.  The court of appeals concluded that In re Columbia does not authorize such relief and that the trial court's order satisfies In re Columbia.  The court overruled Toyota's issue challenging the new trial, and then separately declined to address whether Toyota has an adequate remedy by appeal.  The court's opinion may be found here.

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