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Rule 320. Motion and Action of Court Thereon (1981)

TEXT

New trials may be granted and judgment set aside on motion for good cause, on such terms as the court shall direct. Where 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.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: “Point or points” used in place of “ground or grounds.” See Rules 321, 418(d), 458, 469(e), and 515.

ADVISORY OPINIONS

(No. 31) Question: In order to preserve his right to be further heard in the event a judgment non obstante veredicto in his favor is reversed on appeal, is it necessary for a party to file a motion for new trial in the alternative at the time he files the motion for judgment non obstante veredicto? If such motion is necessary, when does the time begin to run for filing the amended motion for new trial under amend Rule 330(k)?

Answer: It is not necessary for the appellee to file an alternative motion for new trial at the time he files his motion for judgment non obstante veredicto in order to preserve his right to be further heard with respect to any matter shown by the record if the judgment non obstante veredicto in his favor is reversed on appeal. If appellee desires to complain in the trial court or in the appellate court of any matter which will not appear in the record unless through the filing of a motion for new trial, such, motion should be filed (Rule 325). The time for filing the motion or amended motion in courts having a continuous term as defined in Rule 330 (counties like Harris) is regulated by Rule 330(k). Where the term of court is not continuous as defined in Rule 330, the matter is regulated by Rule 320(a). The necessary prerequisite to the right of appellee to be further heard in the event the judgment non obstante veredicto in his favor is reversed on appeal is that he must bring forward in his brief the points of error committed against him on the trial and shown by the record (i.e., those matters required by Rule 325 to be set out in a motion for new trial, and those matters otherwise appearing in the record) which would prevent the affirmance of the judgment even if one had been entered by the trial court in harmony with the verdict. See the decision of the Supreme Court in Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942).

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 15 (1945).

Question: The District Courts of McLennan County have continuous terms except for the following provisions: "unless the business of the court shall be sooner disposed of." (Article 199, -19, 54, 74, as amended May 22, 1937.)

Do these courts come within Rule 330, "Rules of Practice in Certain District Courts," or do these courts come within Rule 320 in regard to the time in which to file motions for new trial?

Answer: In the opinion of the Committee, the District Courts of McLennan County are governed by Rule 330 and not Rule 320. Article 199, Sections 19, 54 and 74 as amended by the 45th Legislature in 1937 provides "each of said terms may continue until and including the Saturday next preceding the date for the beginning of the next succeeding term unless the business of the term shall be sooner disposed of." Article 199, Sections 17, 48, 67 and 79, provides that the District Courts of Tarrant County "shall continue until the business is disposed of." In the case of Super-Cold Southwest Co. v. Green & Romans, 185 S.W.2d 749 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals held that the District Courts of Tarrant County are regulated by Rule 330. Also see Gillete Motor Transp. Co. v. Wichita Falls & S. R.R. Co. , 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943).

The Legislature, in creating continuous terms for the District Courts in Judicial Districts Nos. 1, 2, 3, 7, 10, 12, 16, 18, 21, 22, 24, 27, 29, 30, 31, 32, 33, 35, 36, 38, 47, 49, 50, 51, 52, 56, 63, 64, 69, 70, 72, 81, 84, 85, 86, 90, 103, 106, 107, 108, 109, 110, 112 and 119, uses substantially the following language: "each term ... may continue until the date herein fixed for the beginning of the next succeeding term." That language was construed by the Dallas Court of Civil Appeals in the case of Federal Underwriters Exch. v. Bailey, 175 S.W.2d 618 (Tex. Civ. App.-Dallas 1943), as bringing the 86th District Court of Kaufman County under Rule 330. Likewise in the case of Traders & General Ins. Co. v. Scott, 189 S.W.2d 633 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals said that the 30th Judicial District Court of Wichita County, whose terms are substantially the same as Kaufman County, comes under Rule 330.

In a few instances the Legislature uses the term "shall continue" insteadof "may continue" but obviously the Legislature intended for these Courts to come under Rule 330 even though by the language "may continue" the term of Court could, as it may in the District Courts of McLennan County, come to an end when the business of the Court is disposed of before the end of the term.

10 Tex. B.J. 155 (1947).