Sample Brief on Motions For New Trial

BRIEF IN SUPPORT OF MOTION FOR A NEW TRIAL AND REQUEST OF FINDINGS OF FACTS AND CONCLUSIONS OF LAW FOR PREVIOUS DEFAULT JUDGMENT

TO THE HONORABLE PRESIDING JUDGE:

NOW COMES PERSON FILING BRIEF, hereinafter called Movant, and files this Brief in Support of her Motion For A New Trial and Requests for Findings of Facts and Conclusions of Law for the Previous Default Judgment, and in support hereof, shows the Court the following:

I.

Movant would show unto the court that the evidence presented to the Court by Intervenor to obtain the Default Judgment (Order in Plea in Intervention) against the Movant was legally insufficient to support a Default Judgment. More specifically, the Court found a breach on a contract and issued an Order Against Movant, (See Exhibit A), but nothing on the pleadings, contracts or anywhere indicates, and no evidence was presented to the Court that would substantiate a breach by Movant of said contract (See Exhibit B).

The Intervenor failed to present any evidence as to any duty by Movant or any liquidated damages suffered by Intervenor. Moreover, the initial judgment, and any judgement thereafter were obtained against PERSON WHO'S JUDGEMENT IS AGAINST, not against Movant. Finally, the contract between Movant and Intervenor specifically requires Dispute Resolution by Binding Arbitration (Exhibit C), at the request of either party, which was not done in this case prior to obtaining the Default Judgment against Movant. Movant was not properly served with Notice of Default Judgement against her.

II.

Movant incorporates into her Motion For A New Trial Orders for all purposes and the following exhibits, statutory law and case law:

(1) Exhibit A - Order on Plea in Intervention
(2) Exhibit B - Plea in Intervention
(3) Exhibit C- Contract between Movant and Intervenor
(4) Exhibit D- Letters from Movant's former counsel requesting Intervenor=s accounting or performance under the contract
(5) Foley v. Daniel, 346 S.W.3d 687 (Tex. App.--El Paso 2009, no pet.)
(6) Mason v. Mason, 256 S.W.3d 716, 717 (Tex. App.--Hous. [14th Dist.] 2008, no pet.)
  (7) Coastal Banc SSB v. Helle, 48 S.W.3d 796 (Tex. App.--Corpus Christi 2001, pet. denied).
(8) Tex. Civ. Prac. & Rem. Code Ann. ' 171.001.
(9) Tex. Fam.Code Ann. '' 6.601, 153.0071 (Vernon 2005 & Supp.2007) III.

On DATE, Movant and Intervenor entered into a contract for legal representation for collection of child support, inter alias. There was a proviso within the contract that required in the pertinent parts Aat any parties request, any and all disputes arising out of this contract...all parties hereby agree to submit the dispute to binding arbitration. Movant had, in multiple times requested a resolution of the problems by arbitration, but it has not been done.

On DATE, Intervenor filed his Plea in Intevention. Nothing was done on the case for over three years. Almost three years later, Intervenor sets the an Amended Plea in Intervention, Amended Notice of hearing but failed to served on the Movant the Amended Pleading. Movant requested time and time again from Intervenor, to show performance under the contract, but Intervenor has failed to prove any. Movan was given multiple excuses, including that a former assistant has quit and that the billing person had dies of cancer; nevertheless, Intervenor has never shown performance under the contract.

 On DATE, Intervenor Defaulted Movant and obtained a judgment against her knowledge. No evidence was presented to the court as to any of the elements of any alleged breach of contract. The Intervenor obtained judgements against Movant for liquidated damages that were never proven in Court. Movant has multiple Rule 94 Affirmative Defenses of the Texas Rules of Civil Procedure, including but not limited to laches, statute of limitations, failure to perform, estoppel, and many others on the case that she was prevented from submitting to the Court by not been properly noticed.

 IV.

The elements of a claim for Abreach of contract are:

(1) the existence of a valid contract;
(2) performance or tendered performance by the plaintiff;
 (3) breach of the contract by the defendant; and
 (4) damages to the plaintiff resulting from that breach. Foley v. Daniel, 346 S.W.3d 687 (Tex. App.--El Paso 2009, no pet.) Tex. Civ. Prac. & Rem. Code Ann. ' 171.001.

Intervenor has not presented sufficient evidence to support his performance under the contract, that a breach occurred on the contract, or any damages arising therefrom. Texas strongly encourages alternative dispute resolution, particularly in family law matters. See Tex. Civ. Prac. & Rem.Code Ann. ' 154.002 (Vernon 2005).

The Family Code expressly permits binding arbitration in divorce and SAPCR cases. See Tex. Fam.Code Ann. '' 6.601, 153.0071 (Vernon 2005 & Supp.2007). Mason v. Mason, 256 S.W.3d 716, 717 (Tex. App.--Hous. [14th Dist.] 2008, no pet.) These Intervention should had been handle by Binding Arbitration as requested by Movant and not by litigation as obtained by Intervenor. When a trial court fails to comply with the rules of notice, a party is deprived of his constitutional right to be present at the hearing, to voice his objections in an appropriate manner, and results in a violation of fundamental due process. Coastal Banc SSB v. Helle, 48 S.W.3d 796 (Tex. App.--Corpus Christi 2001, pet. denied).

A default judgment cannot be sustained where no notice of the default judgment hearing was given to a defendant who has appeared. Id. V. Movant was prevented from presenting her Affirmative Defenses and or case in front of an Arbitrator as required by the contract at issue. Movant was not properly served with a Notice of Default Judgment as required by law, since she made a general appearance in the case prior to the default. Intervenor presented no evidence to substantiate a judgment against Movant. There was not evidence to support breach, performance or damages.

WHEREFORE, PREMISES CONSIDERED Movant prays that the Court grant the New Trial; in the alternative, that the Court require the parties to arbitrate the case; In the event that the New Trial is not granted, the Court to issue findings of facts and conclusions of law as to the Default Judgment and Order on Plea in Intervention; and that Movant have such other and further relief at law or in equity to which Movant may be justly entitled. Respectfully submitted.

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