Case Update for January and February 2018

By Andrew Nelson, Wright & Close, LLP and Kyle Lawrence, Beck Redden LLP,

FIRST COURT OF APPEALS

Jackson v. Stroud, No. 01-17-00145-CV, 2017 WL 6519913 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, no pet. h.)

In reversing and remanding a case for a new trial, the court found that a trial court improperly overruled a Batson challenge when counsel’s explanations for striking all black members of the panel were pretextual in nature.

Carolyn Jackson’s husband died from complications of heart bypass surgery performed by Dr. Daniel Stroud. Jackson sued Stroud for medical malpractice. During jury selection, one of the four black members of the panel was struck for cause. At the conclusion of voir dire, Stroud used three of his peremptory strikes to strike the remaining black panelists. Jackson raised a Batson challenge, which the trial court overruled. After the jury returned a defense verdict and the trial court entered a take-nothing judgment, Jackson appealed, raising the Batson issue as her first issue on appeal.

The court began its analysis by stepping through the three-step Batson analysis. First, the party challenging the peremptory strike must establish a prima facie case of racial discrimination. To make this showing, a party may rely on all relevant facts, including a statistical disparity between black and non-black panelists who are struck. Second, if the challenging party meets her burden, the burden shifts to the striking party to offer a race-neutral explanation for the strikes. This is a burden of production only. To meet this burden, the striking party must offer “clear and reasonably specific” reasons for the strikes. Third, if the striking party has offered a facially race-neutral explanation, the challenging party must prove purposeful racial discrimination. In the third step, a court examines the persuasiveness of the justification for the challenged strikes, and “implausible or fantastic justifications” may be found to be pretexts for purposeful discrimination. The court of appeals reviews the trial court’s Batson determination for an abuse of discretion, considering all relevant circumstances to determine whether race was a factor in the exercise of the preemptive strike.

Regarding the first factor—the existence of a prima facie case of discrimination—the court found that trial counsel mooted the factor by proceeding directly to explanations of the strikes and not challenging the existence of a prima facie case. In examining the second factor, the court does not analyze whether the explanations are persuasive or even plausible, but rather whether they are facially valid. In the case before it, the court held that trial counsel provided race-neutral explanations for his strikes. Specifically, counsel said he struck one juror because she was a certified nursing assistant, another because she appeared disinterested and was dozing off, and the third because he believed his brother died as a result of malpractice.

Finally, the court examined the third Batson factor, namely whether the explanations offered by counsel were pretextual in nature. In examining this factor, the court first noted a large statistical disparity between the percentage of black and non-black panelists struck by Stroud. The court held that this disparity tended to show a racial motivation for the strikes. The court then honed in on the strike used on the certified nursing assistant. The court examined counsel’s reasoning for why her status as a CNA justified a strike, and found that it was pretextual—there was simply no explanation for why her job as a CNA would have impacted her ability to be an impartial juror. As a result, at least one of the jurors was struck for a pretextual reason, meaning that the district court should have sustained the Batson challenge. The court reversed the trial court’s judgment and remanded for a new trial.

English v. Bajjali, No. 01-17-00093-CV, 2017 WL 6520433 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, no pet. h.)

The trial court did not err in granting a no-evidence motion for summary judgment when the plaintiffs did not file a sworn motion or affidavit showing why additional discovery was needed, and did not err in not considering evidence filed after the submission date for the motion for summary judgment.


English and Colling sued Bajjali over a disputed investment. Bajjali filed a no-evidence motion for summary judgment and set it for October 3, the last day for consideration of motions under the docket control order. English and Colling filed a response arguing that there had been inadequate time for discovery and that Bajjali had failed to comply with several of their discovery requests. In the following paragraph, English and Colling argued that they had “volumes of documents, evidence . . . to support each and every allegation in their complaint.” English and Colling each attached written statements to their response. Bajjali filed a reply and objected to English and Colling’s evidence. On October 5, two days after the submission date, English and Colling filed an amended response and attached additional evidence. On November 1, the trial court sustained several of Bajjali’s evidentiary objections and granted summary judgment. English and Colling appealed, arguing 1) there was an inadequate time for discovery and 2) that the court erred by striking portions of their summary judgment evidence.

First, the court stated the law regarding inadequate time for discovery:

A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before. A party contending that it has not had adequate time for discovery before a summary judgment hearing must file either an affidavit explaining the need for further discovery or a verified motion for continuance. The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary.

English v. Bajjali, 01-17-00093-CV, 2017 WL 6520433, at *2 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, no pet. h.) (internal citations and quotations omitted). The court noted that English and Colling did not file an affidavit or verified motion for continuance showing why they needed more time to conduct additional discovery. Additionally, the court pointed out that in their response to the no-evidence motion for summary judgment, English and Colling specifically stated that they had “volumes” of evidence to support their position, which conflicted with their argument on appeal. Further, the written statements attached to their summary judgment response did not address the specific evidence sought or why a continuance was necessary. Because English and Colling did not show why they needed time to conduct additional discovery, the court overruled the first issue.

Second, regarding the court’s striking of some of English and Colling’s evidence, the court began by noting that, in reviewing a summary judgment, a reviewing court must first consider whether issues raised on appeal were “actually presented to and considered by the trial judge.” The court is not “free to search . . . materials not cited to or relied on by the trial court.” Unless there is leave of court given to file untimely summary-judgment evidence, a court of appeals presumes that the trial court did not consider the evidence. In the case before it, because English and Colling’s evidence was filed late without obtaining leave of court, it was not before the trial court for consideration. As such, the court of appeals overruled the challenge to the trial court’s striking of English and Colling’s summary judgment evidence.

FOURTEENTH COURT OF APPEALS

Home Comfortable Supplies, Inc. v. Cooper, No. 14-16-00906-CV, 2018 WL 1004703 (Tex. App.—Houston [14th Dist.] Feb. 22, 2018, no pet. h.)

A complaint that the opposing party failed to properly segregate attorney’s fees is preserved by an objection before the case is submitted to the factfinder. Thus, in a bench trial, a segregation complaint was preserved for appeal by counsel’s statements made during closing argument.


After a bench trial, the trial court awarded Cooper and other plaintiffs (the “Cooper Parties”) actual damages, punitive damages, and attorney’s fees on their claims against Home Comfortable Supplies and its president (“HCS”). HCS appealed the attorney’s fees award, arguing that the Cooper Parties’ counsel failed to properly segregate their fees for work performed solely to advance claims for which attorney’s fees were unavailable.

A key issue on appeal was whether HCS’s post-judgment motion to modify preserved its segregation complaint for appeal. The court of appeals acknowledged there was “no consistent rule about when an objection to the failure to segregate attorneys’ fees must be raised in a case tried without a jury.” Surveying the case law, the court observed that some courts have held that an objection to the failure to segregate “must be raised when the fee testimony and billing records are offered as evidence,” some courts (including the Fourteenth) have held that a post-judgment motion preserves the complaint, and still other courts (also including the Fourteenth) have held that a post-judgment motion does not preserve the complaint.

Ultimately, the court noted that HCS’s counsel stated during closing argument: “They also didn’t segregate their attorney’s fees.” This statement, according to the court, was “made before the case was submitted to the factfinder” and properly “preserved the complaint” for appeal. The court further explained that its conclusion was consistent with its prior holding that such a complaint must be made before fees are awarded, its prior decisions allowing a post-judgment motion to preserve the complaint, and “many cases stating that, in a jury trial, the complaint can be preserved by a charge objection, that is, before the case is submitted to the jury.”

Finding the complaint preserved by counsel’s statements during closing argument, the court declined to “resolve the conflicts in the case law” about whether, in a bench trial, such a complaint can be preserved by post-judgment motion.

In re Merino, No. 14-17-00805-CV, 2018 WL 357476 (Tex. App.—Houston [14th Dist.] Jan. 9, 2018, orig. proceeding)

If a party adversely affected by a judgment (or their attorney) does not receive notice or acquire actual knowledge of the judgment within 20 days after the judgment was signed, Rule 306a(4) provides that the typical 30-day period for plenary power under Rule 329b does not begin until the party or their attorney receives such notice or acquires actual knowledge. But “in no event shall such periods begin more than [90] days after the original judgment or other appealable order was signed.”

According to established Supreme Court precedent, the Rule 306a(4) exception does not apply if neither the party nor their attorney learned of the judgment until more than 90 days have passed. In a concurring opinion, Chief Justice Frost labels this result a “camouflaged” trap that has “vexed Texas litigants and trial courts for many years” and calls on the Supreme Court to clarify the text of Rule 306a(4).


Merino sued a home repair company, Ivory Carter Enterprises, Inc., and two other defendants after defects in a home Merino purchased became apparent. Ivory Carter failed to answer suit, so Merino moved entry of a default judgment and severance of the resulting judgment from the remainder of the suit against the home inspector and previous owner.

The trial court granted Merino’s motion and entered a default judgment and severance order on February 28, 2017. On June 26, 2017, Ivory Carter filed a motion for new trial supported by the affidavit of its Chief Executive Officer, Gregory Carter, who testified that Ivory Carter first received notice of the lawsuit on June 19, 2017—111 days after the judgment was entered. The trial court granted the motion for new trial on August 11, 2017. Merino sought mandamus to compel the trial court to set aside the new trial order, arguing that plenary power expired before the order was entered because Ivory Carter did not timely file its motion for new trial.

The court of appeals began by explaining the relationship between Texas Rules of Civil Procedure 329b and 306a, which set the time in which a judgment may be directly attacked. Rule 329b(d) gives the default rule: unless a motion for new trial or motion to modify, correct, or reform the judgment has been filed, a trial court’s plenary power of the judgment expires 30 days after the judgment was signed. Rule 306a, in turn, provides a limited exception. First, Rule 306a(3) requires the trial court clerk to give notice to the parties or their counsel of record immediately after the judgment was signed. And if neither a party adversely affected by the judgment nor their attorney receives the required notice or acquires actual knowledge of the judgment within 20 days after the judgment was signed, Rule 306a(4) provides that the 30-day window for plenary power under Rule 329b begins on the date the party or their attorney received such notice or acquired actual knowledge, whichever occurred first. In “no event,” however, “shall such periods begin more than ninety days after the original judgment or other appealable order was signed.” Therefore, according to established precedent from the Supreme Court, the Rule 306a(4) exception does not apply if the party or their attorney did not receive notice or acquire actual knowledge of the judgment within ninety days after the trial court signed the judgment or order.

Because Ivory Carter did not receive notice of the default judgment until June 19, 2017—111 days after the default judgment was signed on February 28, 2017—the court of appeals followed Supreme Court precedent and held that the Rule 306a(4) exception could not apply. Consequently, the trial court’s plenary power expired 30 days later, on March 30, 2017, Ivory Carter’s June 26, 2017 motion for new trial was untimely, and the August 11 new trial order was void.

Chief Justice Frost joined the opinion and judgment in full, but authored a concurring opinion to emphasize that the case “highlights an opportunity” for the Supreme Court to “eliminate a trap in the procedural rules that has vexed Texas litigants and trial courts for years.” Emphasizing that courts, practitioners, and pro se litigants “ought to be able to pick up a rule book and glean the meaning of a rule from the text alone,” the Chief Justice called on the Court to amend the text of Rule 306a(4) to unambiguously reflect the Court’s prior interpretation of the rule.