Form 26-5

NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Motion for New Trial

This Motion for New Trial is brought by [name of movant], [party designation], who shows in support:

1.On [date] a judgment was signed by this Court in this case.

2.[Specifically allege trial court error in accordance with Tex. R. Civ. P. 320–322.]

a.A new trial should be granted to Movant because this Court abused its discre­tion in denying Movant’s pretrial Motion for Continuance based on Respon­dent’s failure to properly respond to Movant’s discovery requests despite being ordered to do so by the Court. Because Movant was unable to obtain the requested discovery, [he/she] was unable to properly present [his/her] case.

b.A new trial should be granted to Movant because this Court abused its discre­tion in allowing [name of respondent’s expert] to testify as an expert on Respondent’s behalf. The expert’s testimony was conjectural and speculative, and [he/she] lacked the knowledge to testify as an expert on the subject for which [he/she] was called.

c.A new trial should be granted to Movant because this Court abused its discre­tion in excluding the testimony of Movant’s expert, [name of movant’s expert], as a rebuttal or impeachment witness to [name of respondent’s expert]’s testimony.

d.A new trial should be granted to Movant because this Court erroneously failed to disqualify Respondent’s attorney, [name of respondent’s attorney], [set forth basis for disqualification].

e.A new trial should be granted to Movant because this Court abused its discre­tion in failing to grant Movant’s request for a mistrial based on [set forth basis for mistrial].

f.A new trial should be granted to Movant because Respondent made an improper and prejudicial jury argument. Specifically, [set forth prejudicial portions of jury argument].

g.A new trial should be granted to Movant because this Court abused its discre­tion in denying Movant’s objections to the jury charge. Specifically, [set forth basis for objections].

h.A new trial should be granted to Movant because the evidence is legally and factually insufficient to support this Court’s judgment. Specifically, the evi­dence is legally and factually insufficient to support this Court’s judgment based on the following [jury findings/findings of fact]: [set forth specific jury findings or findings of fact].

i.A new trial should be granted to Movant because this Court abused its discre­tion in making the property division.

j.A new trial should be granted to Movant because (1) the following newly dis­covered evidence has come to Movant’s knowledge since the trial, (2) the failure to discover the new evidence sooner was not for want of due dili­gence, (3) the new evidence is not cumulative evidence, and (4) the new evi­dence is so material that it would probably produce a different result if a new trial were granted: [specifically set forth the newly discovered evidence, which must be supported by affidavits].

k.A new trial should be granted because of the following material jury miscon­duct: [specifically set forth the material jury misconduct, which must be sup­ported by affidavits or by disclosure of a reasonable explanation and excuse as to why affidavits cannot be secured].

      The above error[s] probably caused rendition of an improper judgment in the case. Tex. R. App. P. 44.1(a)(1).

3.[Name of movant] has a meritorious defense to the cause of action alleged in this case.

4.The granting of a new trial would not injure [name].

5.Justice will not be properly served unless a new trial is granted.

[Name of movant] prays that the Court set aside the judgment signed on [date] and grant a new trial.

   
[Name]
Attorney for [name of movant]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Fax]

Verification

The undersigned states under oath: “I am Movant in this Motion for New Trial. I have read the motion. The statement[s] contained in paragraph[s] [specify] in the motion [is/are] within my personal knowledge and [is/are] true and correct.”

   
[Name of movant]

SIGNED under oath before me on ___________________________.

   
Notary Public, State of Texas

Notice of Hearing

The above motion is set for hearing on __________________ at ____________ __.m. in [designation and location of court].

SIGNED on ________________________________.

   
Judge or Clerk

Certificate of Service

I certify that a true copy of this [document/[title of document]] was served in accor­dance with rule 21a of the Texas Rules of Civil Procedure on the following on [date]:

[Name of attorney of record or party to be served] by [electronic filing manager/e-mail at [e-mail address]/fax at [fax number]/personal delivery at [address]/commercial delivery service at [address]/certified mail at [address]/first-class mail at [address]]. [Repeat for each attorney of record or party to be served.]

   
[Name]
Attorney for [name of movant]

Affidavit of [name]

[Name] appeared before me in person today and stated under oath as follows:

“My name is [name]. I am above the age of eighteen years, and I am fully competent to make this affidavit. I [am the movant in this Motion for New Trial/was one of the jurors in the above-referenced matter]. The facts stated in this affidavit are within my personal knowledge and are true and correct.

   
[Name of affiant]

SIGNED under oath before me on ___________________________.

   
Notary Public, State of Texas