Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Dallas Court of Appeals has held that the lack of a reporter's record from a trial on unliquidated damages requires reversal of the judgment.  In this case, the defendant defaulted and a trial was held on unliquidated damages.  No court reporter was present.  The trial court entered judgment for plaintiff awarding $1.3 million in damages,  The defendant appealed and challenged entry of the default judgment as well as the award of damages.

The court of appeals reiterated the rule that if an appellant "through no fault of his own is unable to obtain a proper record of the evidence introduced, a new trial may be required  . . . ."  Here, it was undisputed that the defendant did not receive notice or appear at the trial on unliquidated damages.  Consequently, the appellate court was unable to review the damage award.  The court acknowledged the general rule that in the absence of a reporter's record, a court presumes the evidence supports the judgment, but refused to apply it in the default judgment situation.  Thus, the court determined that a new trial on damages was required and remanded the case to the trial court.  The court's opinion in Copeland v. Cooper can be found at this link.   

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What could be better than the State Fair of Texas?  How about the Dallas/Fort Worth Joint Appellate Seminar?  Okay, maybe not, but this continuing education opportunity will give you a chance to hear from the staff attorneys at the Dallas Court of Appeals and theFort Worth Court of Appeals.  You can learn about cutting edge topics in mandamus practice.  Plus ethics and more.  Almost as good as State Fair fried bubble gum and corny dogs....

The seminar is schedued for Thursday, October 6th, from 2:00pm to 6:00pm, and includes a reception that starts at 5:00pm.  And if you haven't seen the new Winspear Opera House, now's your chance because that's the venue.  For more details, including how to register, see this link.

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After Union Carbide served a treating physician with a subpoena duces tecum that encompassed records spanning over 30 years, plaintiffs' counsel filed a motion for sanctions, asserting that the discovery requests were overbroad, harassing, and annoying, and he sought costs expended in defending against the subpoena duces tecum.  Union Carbide first learned of the motion for sanctions when it was served with copies of the motion, and its counsel then expressed a willingness to withdraw the subpoena duces tecum and proposed a nonsuit.  Plaintiffs' counsel proceeded with his motion and the trial court granted sanctions and awarded attorney's fees in the amount of $11,250.

Union Carbide appealed.  The Dallas Court of Appeals vacated the sanctions order because Plaintiffs' counsel did not confer with Union Carbide's counsel prior to filing his motion for sanctions, as was required by the local rules of procedure.   In addition, the court held that the award of attorney's fees was not proper because the record failed to show that the trial court had considered whether lesser sanctions would have deterred the conduct in question.  The court's opinion in Union Carbide Corp. v. Martin may be found here.

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