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Motion for New Trial hearing this morning (3-8-2017). Crushed the other side – just crushed them. The Court awarded my client $3,500 in attorney’s fees for having to defend a frivolous Motion for New Trial. This is called a Rule 13 Motion – sanctions for filing a frivolous pleading.

The other side filed a Motion for New Trial in an attempt to set aside the Court’s judgment and get a “do-over.” A Motion for New Trial is the method to do one of two things: either, actually get the new trial or it is the first step to opening the appellate gate. A Motion for New Trial points out to the Court any potential errors that the Court may have made in its procedures, evidence or rulings. For the Court to grant it, there must have been some error that would have caused a different result in the case if the error had not been made.

In today’s case the opposing party was asking for a new trial because she did not appear at trial. This is a post-answer default (different from a no-answer default). The other side failed to offer any excuse as to why they did not appear at trial. That is a necessary component for the other side to prevail. It is the first prong of what we call the Craddock test.

Secondly, the other side argued there was not enough evidence presented to the court on the day of trial to support the judgment the Court signed. This is an insufficiency of the evidence point. It also happens to be the weakest argument anyone can make to an appellate court – insufficiency of the evidence. It is a loser. In my case, I had taken an hour of time to prove up the case, called three witnesses and introduced 20 documents into evidence. So, any ideas that I had not put on sufficient evidence to support the judgment was blown. It was a frivolous play by the other side.

Thirdly, the other side claimed we had not met the Texas Family Code 6.301 residency requirements. Unfortunately for her, I’m pretty much an expert on this point of law. But ultimately, that was frivolous as well. My client has been domiciled in Texas since he was 17 days old.

Forth, the other side claimed that they were entitled to a new trial because we had not filed the service members affidavit US Code requires a service member’s affidavit to be filed in all cases involving domestic relations. Generally, in Dallas we don’t do this but we should. Be that as that may, the only person who can complain about the failure to file a service members affidavit is a service member. That is, if a default is taken against the service member the service member has the right to come into court and demand a new trial. The court in this circumstance has no discretion but to grant a new trial. In my case, the other side was trying to use the service member affidavit offensively for a new trial. But, she was not a service member thus she has no right to bring the complaint. This issue was filed, like the other issues, frivolously by the other side.

I crushed them, the court denied their motion and sanctioned them $3,500 for my attorney’s fees.