Addressing the "Consolation Prize" - A Dilemma For Appellate Advocates

One more note on National Gas Pipeline Co. v. Justiss is appropriate. The Texas Supreme Court held that the landowners had failed to present admissible evidence that the permanent nuisance caused by the defendant had diminished the value of their property. Normally, the loss of such a “no-evidence” point leads to the appellate court reversing the judgment and rendering judgment for the defendant. The Texas Supreme Court, however, did not render judgment. It remanded the case for a new trial, reasoning that the prior jurisprudence may have misled the landowners into believing that their damages evidence was sufficient.

Thus, instead of being tossed out of court, plaintiffs were provided a second opportunity—with a roadmap opinion from the Supreme Court--indicating how their damages should be proved up. While the landowners may have preferred a recovery under the first verdict, the chance for a “do‑over” provided an important consolation prize.

This result raises questions for appellate advocates. Should the appellee be prepared to argue for a remand as a fall-back position? This is psychologically difficult. The party has already won the trial and obtained the judgment. Arguing for a remand in the event the appellate court believes the case should be reversed may seem unduly passive or negative. Nevertheless, if the case appears reasonably close and the appellant’s position seeks to change existing law, clarify a substantial ambiguity in the law, or resolve a conflict existing in the lower courts, appellees should consider mentioning remand as an alternative case resolution.

By the same token, appellants seeking a rendition of judgment should consider whether the appellate court may consider a remand and, if so, present arguments to preempt such a remedy. The appellant might wish to emphasize that the underlying law was clear and the appellee was warned in advance that its evidence would be insufficient. Appellants might also point out that the age of the case or the situations of the parties make remand for new trial an unsatisfactory remedy.

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