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Practice Questions & Answers Learned From Franchise Trial: Pizza Inn v. Adeniregun

  1. What is the danger of email or text communications?

Answer: Many people approach email and texting informally, and do not review their content critically, or run it by counsel, before hitting the send button. This can lead to statements that can be viewed as damaging if a dispute arises between the parties.

Care should be taken in responding to email where the subject or content may form the basis of a future dispute and litigation. The author of the email or text should approach the writing of an email or text message with the same critical thought and analysis in crafting a more formal letter or other communication. If the author suspects that the email or text could be discoverable in future litigation, then consultation with an attorney may be appropriate before the send button is hit.

PRACTICE POINTER: For an example of an email gone bad that resulted in a jury verdict of retaliation, see Clark, Litigation Lessons Impacting Franchise Relationships, 37 Employee Relations Law Journal No. 1 (Summer 2011), at pp. 68-69.

2. What is a motion for directed verdict (DV)?

Answer: A motion for directed verdict, usually brought at the close of the plaintiff's evidence, and renewed at the close of all the evidence in trial, is a challenge to the failure of a party to present adequate evidence of an essential element of the party's claim or defense to submit to the jury for determination. Tex.R.Civ.P. 268; Fed.R.Civ.P. 50(a) (frequently referred to in federal practice as a motion for judgment as a matter of law (JMOL)).

3. Why is the filing of such a motion important?

Answer: A motion for directed verdict can eliminate claims or defenses before submission to the jury. The failure to file such a motion can result in waiver of a challenge to the sufficiency of the evidence on appeal.

4. What is a motion for judgment notwithstanding the verdict (JNOV)?

Answer: A motion JNOV asks the court to disregard or set aside the jury's answer(s) to jury questions and to render judgment for the movant. Tex.R.Civ.P. 301; Fed.R.Civ.P. Generally, a JNOV is proper only when a directed verdict would have been proper.

5. When should the motion JNOV be filed?

Answer: It depends whether the case is in state or federal court. In state court, the motion should be filed within the same period, 30 days from date of judgment, allowed for a motion for new trial, and should be set for hearing and ruled upon by the judge within 75 days after the judgment is signed, or it is deemed overruled by operation of law.

In federal court, the JNOV must be brought within 10 days after the entry of judgment. Fed.R.Civ.P. 50(b).

6. Does the filing of a motion JNOV extend appellate deadlines?

Answer: Yes. In state court, a timely filed motion JNOV extends the time for appeal from 30 days after judgment is entered for a period of 30 days after the motion JNOV is ruled upon by the court, or 30 days after the motion is deemed overruled by operation of law (75 days after the judgment is signed if no ruling on motion made by court). See, Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000); Kirschberg v. Lowe, 974 S.W.2d 844, 847-48 (Tex.App.-San Antonio 1998, no pet.).

In federal court, a JNOV extends the appellate deadline from 30 days after the judgment is entered until 30 days after the JNOV is ruled upon by the district court. Fed.R.App.P. 4(a)(4)(A)(i).

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