By Andrew C. Nelson, Wright & Close LLP, Andrew Raber, 14th Court of Appeals, and Lisa Elizondo, 14th Court of Appeals


Cohen v. Midtown Mgmt. Dist., ___ S.W.3d ___, No. 01-14-00914-CV, 2016 WL 888742 (Tex. App.—Houston [1st Dist.] Mar. 8, 2016, no pet. h.)

A judgment nunc pro tunc may be valid if it simply corrects clerical errors that are consistent with the judgment entered on the record, but is not valid if it is an extension of that rendition.

Cohen owned five tracts of real property in Harris County and became delinquent on the tax payments on those tracts. In March 2013, two of the taxing entities brought suit on behalf of themselves and all other taxing units for whom they collect. At the November 2013 trial setting, Cohen did not appear, and the trial court, after admitting all evidence against Cohen, announced “Judgment for Plaintiffs.”

The trial judge signed a final judgment that incorporated descriptions of each of the five properties and identifying the amounts Cohen owed to each taxing unit. In June 2014, one of the plaintiffs moved to amend the judgment nunc pro tunc, saying that, although the final judgment contained an award for the Houston ISD, HISD was not specifically identified, other than as a “Plaintiff Taxing Unit” on the first page of the judgment. The court signed a judgment nunc pro tunc in June 2014.

Eighteen months later, during the pendency of an appeal that Cohen filed, one of the plaintiffs moved for a second judgment nunc pro tunc. This time, the plaintiff explained that neither of the prior judgments showed the amounts owed the Houston Community College System, despite the fact that it was identified as a taxing unit on both judgments. The plaintiff also requested amendment of the adjudged market values to correspond to the certified tax statements admitted at trial. The trial court signed that judgment nunc pro tunc as well.

On appeal, the First Court noted that once a trial court loses plenary power, it may enter a judgment nunc pro tunc only to correct clerical errors in the judgment. A clerical error is a discrepancy between the judgment entered into the record and the terms of the judgment actually rendered. A judicial error, on the other hand, is an error arising from a mistake of law or fact in the judgment that requires judicial reasoning to correct.

Applying that law to the facts of the case, the Court held that the first judgment nunc pro tunc was valid. The trial court clearly announced judgment for plaintiffs, and there was no indication that the court intended to exclude HISD from that announcement. Therefore, the failure to list HISD among the plaintiffs in the judgment was clerical, rather than judicial.

Conversely, the First Court held that the second judgment nunc pro tunc was invalid. The court noted that “[e]rrors in rendered and entered judgments are not clerical merely because they are based upon or grow out of clerical errors.” The court noted that the final judgment signed by the trial court specifies the plaintiffs’ pro rata shares of the tax debt, penalties, and interest. Therefore, the written judgment was an extension of the court’s initial rendition, not just a clerical recording of that pronouncement. HCCS was not identified as a recovering plaintiff in that judgment. When the court signed the second judgment nunc pro tunc, it added an additional $4,058 to the judgment. This was a substantive change and not a clerical one; therefore, the First Court held that the second judgment nunc pro tunc was void.

In re CVR Energy, Inc., ___ S.W.3d ___, No. 01-15-00877-CV, 2016 WL 511091 (Tex. App.—Houston [1st Dist.] Feb. 9, 2016, orig. proceeding)

When a plaintiff nonsuits a defendant shortly before trial, a co-defendant may designate the nonsuited party as a responsible third party even if the time to do so would normally have run. If the trial court does not permit the designation, a court of appeals may issue mandamus, as the defendant does not have an adequate remedy by appeal.

A plaintiff in a wrongful-death case nonsuited a defendant fifty-five days before trial. The nonsuited party’s co-defendants moved to designate the nonsuited party as a responsible third party (“RTP”) fewer than thirty days later. The trial court denied the designation, and the co-defendants filed a petition for writ of mandamus.

Wynnewood, the nonsuited party, had been a defendant in the lawsuit for several years prior to the nonsuit. Its co-defendants did not list it as a potential RTP in responses to requests for disclosure and did not move to designate it as an RTP at any time prior to the nonsuit. After the nonsuit, the plaintiffs objected to the motion for leave to designate Wynnewood, saying that limitations had run against Wynnewood and the motion was untimely.

In evaluating the situation, the First Court performed an exhaustive statutory analysis of Texas Civil Practice and Remedies Code section 33.004(d). The court determined that the trial court should have permitted the RTP designation. First, the co-defendants’ obligation to list Wynnewood as a potential RTP was not triggered until after Wynnewood was no longer a party to the case. Stated differently, a party does not have a duty to disclose its current co-defendants as potential RTPs. That conclusion was buttressed by the plain language of section 33.004(d), which speaks of a responsible third party. The court determined that the statute refers to third parties that are not parties to the suit. When a party is a co-defendant in a suit, the obligations set forth in Section 33.004(d) are not triggered. The court further found that the designation should have been allowed, even though it was made less than 60 days before trial, because good cause existed for the late designation.

Finally, the court determined that mandamus was the correct vehicle to correct the trial court’s error. Whether an adequate remedy exists by appeal is a case-by-case inquiry. The court determined that in the context of a complex wrongful-death case, waiting until appeal to correct the error would be inappropriate. Therefore, the court conditionally granted the petition for writ of mandamus.


In re Timberlake, ___ S.W.3d ___, No. 14-15-00109-CV, 2015 WL 7873726 (Tex. App.—Houston [14th Dist.] Dec. 3, 2015, orig. proceeding)

Under Rules 306c and 329b, a pre-judgment motion for new trial is not denied by including “Mother Hubbard” language in a final judgment. Therefore the trial court has plenary power to grant a subsequent post-judgment motion for new trial before the 105th day after the trial court’s final judgment was signed.

The underlying action was initiated by relator Gene Timberlake in September 2009 seeking to remove Cecelia Timberlake as independent executrix and to recover damages from Cecelia and her husband, Ray. In September 2012, the claims were tried to a jury, which returned a verdict in favor of relator. On November 7, 2012, Ray and Cecelia filed a motion for new trial (“2012 MNT”). A final judgment was not signed until June 14, 2013. The final judgment did not mention the 2012 MNT, but included the following “Mother Hubbard” language: “ORDERED . . . that all other and further relief sought by any party in this cause not otherwise granted in this Judgment is hereby DENIED.”

Following the final judgment, Ray and Cecelia filed a second motion for new trial (“2013 MNT”). The trial court granted the 2013 MNT on September 18, 2013, the 97th day after the final judgment was signed. The order set aside the jury’s verdict and vacated the court’s June 14, 2013 final judgment.

Relator filed a petition for writ of mandamus in the Fourteenth Court of Appeals seeking to vacate the trial court’s September 18, 2013 order granting a new trial and to reinstate the trial court’s June 14, 2013 final judgment. Relator argued that the September 18, 2013 order was signed after the trial court lost plenary power to grant a new trial and was therefore void. The success of his argument hinged on whether the pre-judgment 2012 MNT was deemed denied prior to or on the date of signing of the final judgment. If so, the post-judgment 2013 MNT would not extend the plenary period because it would have been filed without leave of court after a previous motion for new trial was overruled. See Tex. R. Civ. P. 329b(b). The trial court’s plenary power would have expired on July 14, 2013—the 30th day after signing the final judgment.

The majority concluded that even had the trial court intended to deny the 2012 MNT, such denial would have been premature under Rule 306c, which provides, in relevant part, “[n]o motion for new trial . . . 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 . . .” The majority held that the 2012 MNT was deemed filed subsequent to the court’s signing of the final judgment. The trial court therefore could not have denied such a motion prior to or via its final judgment, as the motion was not yet considered filed.

Because the final judgment did not deny the 2012 MNT, the motion was overruled by operation of law 75 days after the trial court’s signing the final judgment. See Tex. R. Civ. P. 329b(c). The trial court’s plenary power continued for 105 days after the signing of the final judgment—75 days to the denial of the motions by operation of law and then 30 days beyond. A trial court may grant a new trial after all motions for new trial are overruled by operation of law so long as the order granting new trial is signed within the plenary period—in this case 97 days from signing of final judgment. Relator’s petition was denied.

In his dissent, Justice Brett Busby concluded that the final judgment’s “Mother Hubbard” language denied the 2012 MNT and therefore the 2013 MNT could not have extended the trial court’s plenary power, which expired after July 14, 2013. As a result, the September 18, 2013 new trial order is void and relator is entitled to mandamus relief.

Justice Busby focused on the majority’s application of Rules 306c and 329b(a), which address pre-maturely filed motions for new trial. He disagreed with the majority’s position that Rule 306c prohibited the trial court from denying the 2012 MNT in its final judgment. This reasoning, according to Justice Busby, ignores Rule 329b(a)’s express permission to file a motion for new trial before judgment, as well as the statement at the beginning of Rule 306c that such a filing is not ineffective. Justice Busby added that the function of Rule 306c’s “deemed” date and time of filing is not to deprive the trial court of its plenary power to act on a motion for new trial prior to final judgment, but to avoid procedural traps by (1) clarifying that a motion for new trial can preserve complaints regarding a subsequent judgment, and (2) simplifying the calculation of the deadline to appeal.

Justice Busby cited several Texas cases where courts have recognized a trial court’s ability to grant or deny a motion for new trial prior to judgment. See. e.g., Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 562–63 (Tex. 2005). He concluded that the majority’s view that a trial court cannot act before the deemed filing time creates “an anomalous hole in the trial court’s plenary power to decide motions on file” and will foster complexity and inefficiency, preventing the court not only from denying but also from granting a motion for new trial before judgment.

Relator’s motion for rehearing en banc was denied, with four justices voting to deny the motion, four justices voting to grant the motion, and one justice not sitting.

In re Master Flo Valve, Inc. and Master Flo Valve (USA), Inc., ___ S.W.3d ___, No. 14-15-00956-CV, 2016 WL 316491 (Tex. App.—Houston [14th Dist.] Jan. 26, 2016, orig. proceeding)

An order that requires a party to perform searches across all its email systems and electronic files using keywords supplied by the court intrudes on that party’s right to develop its own means of searching for responsive documents without court involvement or interference by the opposing party.

On January 7, 2014, the real party in interest, Alpha, sued relator Master Flo Valve, Inc. for breach of its distribution contract. During preparations to submit a major bid on a new project, several of Alpha’s employees resigned and formed their own rival distribution company. Alpha alleged Master Flo conspired with these former employees to defeat Alpha’s bid for a new contract so that Master Flo could win the bid with the new distributor.

During discovery, Alpha sought, among other records, “all communications” between Master Flo and the former Alpha employees. Master Flo responded to some of the production requests, but objected to others as overbroad. Alpha then requested that the trial court order Master Flo to perform keyword searches of all email and electronic file systems. When the trial court granted the motion, Master Flo filed a petition for writ of mandamus seeking to vacate the trial court’s discovery order, which states:

. . . Defendants shall also perform an electronic keyword search across all email systems and electronic files for responsive documents, and shall produce all responsive documents. The keywords will be agreed by the parties, or will be supplied by the Court separately if an agreement was not reached at the hearing on the Motion . . .

The Fourteenth Court of Appeals examined a Texas Supreme Court case recognizing that providing access to information by ordering examination of a party’s electronic storage device is particularly intrusive and should be generally discouraged. In re Weekley Homes, 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding). In Weekley Homes, the Texas Supreme Court held that for a party or its expert to obtain access to an opposing party’s electronic storage device, as a threshold matter, the requesting party must show that the responding party has defaulted in its obligation to search its records and produce the requested data. Although the court of appeals concluded that the trial court’s order was less intrusive than the order in Weekley Homes, it found the orders sufficiently analogous. The court rejected Alpha’s argument that no showing of prior default was required and added that ordering a keyword search without evidence of the party’s default intrudes on the party’s right to develop its own means of searching for responsive documents without court involvement or interference by the opposing party. Otherwise, litigants and courts would become embroiled in costly disputes about keywords or other search techniques. Such disputes, the court concluded, are prone to waste judicial resources, and thus, should be reserved for when a prior default of a discovery obligation has been shown.

Because Alpha did not meet its threshold burden of showing that Master Flo defaulted on its obligations to search for and produce documents responsive to Alpha’s requests for production, the trial court abused its discretion in ordering Master Flo to perform searches across all its email systems and electronic files using keywords to be supplied by the court. The court of appeals granted Master Flo’s petition for writ of mandamus in part and directed the trial court to vacate that part of the order.

Thuesen v. Amerisure Ins. Co., ___ S.W.3d ___, No. 14-14-00666-CV, 2016 WL 514404 (Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet. h.)

A party may not recover attorney’s fees and costs as the “prevailing party” under Rule 91a.7 if the trial court did not rule on the motion because the claims were nonsuited prior to the hearing on the motion.

This case involves a matter of first impression regarding attorney’s fees under Texas Rule of Civil Procedure 91a. The case involves several other issues, but this summary will only address the Rule 91a issue. Thuesen was originally the defendant in a lawsuit related to his role as the president of a condominium association. Amerisure Insurance Company provided Thuesen’s defense in the action. Thuesen filed separate actions against the original plaintiffs, which the opinion refers to as the “Swamplot Parties,” and against Amerisure. The Swamplot Parties (Swamplot Industries, L.L.C., Laurence David Albert, and Beth Anne Brinsdon) moved to dismiss Thuesen’s claims under Rule 91a. A week before a hearing on the motion was to be held, Thuesen nonsuited all of his claims against the Swamplot Parties. The Swamplot Parties then moved for an award of attorney’s fees under Rule 91a, asserting that they were the “prevailing parties” on the nonsuited claims because Thuesen nonsuited his claims in order to avoid an adverse ruling on the motion to dismiss. The trial court granted the motion and ordered Thuesen to pay costs and reasonable and necessary attorney’s fees. Thuesen appealed.

Rule 91a.7 provides that the court “must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court.” The Fourteenth Court of Appeals focused on the phrase “on the motion” as the operative phrase tying the award of fees to the trial court’s ruling on the motion. “Under the plain meaning of the statute,” the court held, “a party cannot be a prevailing party on a motion if the trial court did not rule on the motion because absent a ruling, no party has prevailed on the motion.” The court also noted that the Legislature clearly contemplated a situation like this—in which a party nonsuited his claims prior to the court’s ruling on the 91a motion—by enacting Rule 91a.5, which discusses the effect of nonsuit on a live 91a motion. The court reasoned that if the Legislature intended to award fees in such a situation, it would have expressly done so.

The court held that the trial court erred in awarding attorney’s fees and costs to the Swamplot Parties after the claims against them had been nonsuited, and modified the judgment to delete the award. After finding the other issues without merit, the court affirmed the judgment of the trial court as modified.

Patel v. Hussain, ___ S.W.3d ___, No. 14-14-00459-CV, 2016 WL 270014 (Tex. App.—Houston [14th Dist.] Jan. 21, 2016, no pet. h.)

(1) Jury findings that a publication was substantially true and an award of damages for defamation are not “conflicting” such that error stemming from these findings must be preserved prior to the jury’s being discharged. However, if the jury finds that the complete defense of substantial truth is meritorious, no damages may be awarded for defamation. (2) Intentional infliction of emotional distress is a gap-filler tort that does not apply to the threat of revelation of exclusively private conduct that took place in a private setting and does not concern the public.

Patel and Hussain were romantically involved for several years. After they ended their relationship, Patel commenced a campaign of harassment and threats against Hussain and also began distributing “revenge porn” featuring sexual images and videos of Hussain. Hussain filed suit against Patel for intentional infliction of emotional distress, intrusion on seclusion, public disclosure of private facts, and defamation. (Hussain’s suit was filed before the September 1, 2015 effective date of CPRC chapter 98B, which expressly creates a cause of action for “unlawful disclosure or promotion of intimate visual material.”) The jury found in favor of Hussain and awarded damages for each cause of action as well as exemplary damages for each. The trial court signed a final judgment for $500,000.

On appeal, Patel alleged inter alia that (1): the trial court erred by denying his motion for JNOV on Hussain’s defamation claim because the jury found that the publication was substantially true; and (2) IIED was not available as a “gap-filler” cause of action because it merely duplicated Hussain’s claims of intrusion on seclusion and private disclosure of public facts.

With respect to the jury’s finding that the published materials were substantially true, the court of appeals held that the trial court should have disregarded the jury’s award for defamation. Substantial truth is a complete defense to defamation and so, if found, precludes liability and damages for that defamation claim. Hussain argued that Patel waived this claim by failing to object, before the jury was discharged, to an irreconcilable conflict between the jury’s finding of substantial truth and the jury’s award of damages. However, the court held that the jury’s “yes” answer to whether the publication was substantially true and its subsequent award of damages for defamation did not embrace the same material fact and thus were not in conflict. Because “[i]t is entirely possible that a party suffers reputation and mental anguish damages from a substantially true statement,” there was no conflict in the jury’s answers, and Patel was not required to object before the jury was discharged in order to preserve error. However, despite holding that the jury’s answers were not in conflict, the court held that the damages question became immaterial once the jury found that the publication was substantially true. The court held that the trial court erred in denying Patel’s JNOV on that basis.

With respect to the IIED issue, the court held that IIED was unavailable as a cause of action as a matter of law. Hussain contended that she should be able to employ IIED as a cause of action because Patel made threats to embarrass her that were not actionable under any other theory. Specifically, Patel threatened to play a sexually explicit video of Hussain at a mutual friend’s wedding. Hussain argued that this threat involved a public space in which she did not have a privacy interest protected by the other invasion-of-privacy torts. Hussain relied on two cases out of the Dallas Court of Appeals—Floyd v. Park Cities People, Inc., 685 S.W.2d 96 (Tex. App.—Dallas 1985, no writ), and Durban v. Guajardo, 79 S.W.3d 198 (Tex. App.—Dallas 2002, no pet.) to advance her argument. In Floyd, a newspaper published a picture of the plaintiff’s front yard, which included the plaintiff standing on his front porch. At the time the photo was taken, both the yard and the plaintiff had been in full view of the public. The plaintiff’s yard was the subject of controversy and public debate within the town council. The Dallas Court of Appeals held that there was no invasion of privacy because there was no intrusion upon plaintiff’s solitude, seclusion, or private affairs as a matter of law. Hussain argued that the public setting of the wedding, like the Floyd plaintiff’s front yard, was unprotected by her privacy claims, meaning that she could only recover under an IIED theory. The court distinguished Floyd, holding that Patel threatened only to expose Hussain’s private conduct that took place in a private setting, which would be covered by public disclosure of private facts, a theory on which Hussain successfully recovered at trial. Hussain also tried to rely on Durban, in which the Dallas Court of Appeals allowed a plaintiff to maintain both an IIED claim and assault claim for the same set of facts. The court explicitly rejected this reasoning, opining that it runs afoul of the Texas Supreme Court’s pronouncements in Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004).

After sustaining these issues, the court modified the judgment to reduce the amount of damages from $500,000 to $345,000 and affirmed it as modified.