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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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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The Dallas Court of Appeals granted a petition for writ of mandamus in In re Hunter, and ordered the trial court to specify the reasons for ordering a new trial.

The court's opinion  relies upon the Texas Supreme Court's opinion in In re Columbia Medical Center, 290 S.W.3d 204 (Tex. 2009), to support its holding.  Interestingly, the relator (Hunter) apparently argued that the trial court was required to vacate or set aside its order granting the new trial.  The court's opinion does not state what reasoning the relator gave to support her argument.  However, the court of appeals cites the Texas Supreme Court's opinion in In re United Scaffolding, Inc., for the proposition that vacating or setting aside the order is not required.  Without knowing what reason the relator gave to support her argument, it's hard to know how United Scaffolding applies.  The opinion in In re United Scaffolding addressed whether the granting of the new trial was improper to the extent it was based upon a lack of sufficient evidence.  The supreme court stated that because it did not know the reason the new trial was granted, it could not grant relief other than requiring the trial court to specify the reasons.  This language almost implies that other relief could be granted in some circumstance.  Here, we don't know if Hunter made the same argument as United Scaffolding, or if some new and different argument was presented and rejected.

The court's opinion in In re Hunter may be found at this link.

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