As a young attorney, others advised me that, barring conflicting Texas Supreme Court precedent, Texas intermediate-appellate court holdings constituted the law of Texas. Naturally, with 14 appellate districts covering the great expanse we call Texas, there is ample room for disagreement between those districts. These disagreements can, in turn, set potential traps for litigants. Among other things, good lawyers earn their money by recognizing where these traps lie. (They also earn their keep navigating the maze of residual Latin woven in postjudgment motions like a motion for judgment non obstante veredicto, more commonly referred to as a judgment notwithstanding the verdict or JNOV).
Someone recently asked me if there were a deadline to file a motion for JNOV. While this seemed like an easy question to answer, the most accurate (and common refrain as a lawyer) was “it depends.” Texas Rule of Civil Procedure 301 does not provide a deadline for filing JNOVs. Consequently, some intermediate appellate courts have filled the legislative void and held that the deadline for JNOV motions coincides with the trial court’s jurisdiction or lands on the date that the the judgment is final. The Fifth Court of Appeals, however, has held that Texas Rule of Civil Procedure 329b(g) governs JNOV motions, which means a party must file the motion within 30 days of the judgment’s signature. In reaching this conclusion, the Fifth Court reasoned that a JNOV motion falls under subsection (g) because granting it would result in a substantive change in the judgment.
It is uncertain whether the Fifth Court of Appeals would modify its position. The Fifth Court established the rule over two decades ago (Commonwealth Lloyd’s Insurance Co. v. Thomas, 825 S.W.2d 135, 140-41 (Tex. App.—Dallas 1992), writ granted w.r.m., 843 S.W.2d 486 (Tex. 1993)) and applied it again, in a non-precedential, unpublished opinion a year later. The Fifth Court has not addressed the issue since then. In the meantime, at least one sister court has applied case law preceding the Fifth Court’s opinions and held that parties may file JNOV motions while the respective trial courts still retained jurisdiction over the case. Unless, however, a party falls into the trap by missing the Fifth Court’s deadline, we’ll likely not know whether the Fifth Court would modify its position to create more uniformity among the courts.
So, the answer regarding a JNOV deadline may vary depending on the appellate district in which your trial court resides. Regardless, this disagreement does not affect one important point: If one of your goals for filing the JNOV is to extend the appellate deadlines and the trial court’s plenary power, you must file your JNOV within the 30-day window after the trial court signs the judgment.
Image courtesy of Flickr by Jakub Martynski.