Week 10 - Week 14 Flashcards
(119 cards)
1
Q
Motion for New Trial
A
Purpose: Asks TC to reconsider and rectify error in the court’s ruling or jury finding
TRCP 321: Must be in writing and must specifically point out the alleged error
Must pay filing fee at the time MNT is filed
Must be filed w/in 30 days of the date the judgment was signed (FIRM RULE)
TC has considerable discretion
2
Q
Grounds:
A
TRCP 320: A MNT can be granted for “good cause, or motion or court’s own motion”
Can say “In the interest of justice - something was unfair”
3
Q
What happens if MNT if filed and granted?
A
Case starts over
No final judgment once granted (can appeal from the final judgment- if no final judgment, no appeal)
If unhappy w/MNT - File WOM
Judgment must explain why MNT was granted
4
Q
3 Reasons to File MNT
A
Give the TC an opportunity to correct errors that occurred during the trial by granting NT.
Preserved error for appeal.
Extend TC’s plenary power and app deadlines
To invoke the extended app. timetable
5
Q
Pre-Reqs for MNT
A
TRCP 324: Certain error must be pointed out
Complaints on which evidence must be heard:
- Jury misconduct
-Newly discovered evidence
- Failure to set aside a default judgment (Must be in time window)
- Insuff. evidence
- Against the great weight and preponderance of the evidence
Damages are inadequate or excessive
Incurable jury argument if not otherwise ruled on by the court
6
Q
MNT that Requires Sworn Evidence
A
Ex. Juror misconduct and newly acquired evidence challenges (Attach affidavit to motion - Show basis for what you want)
During Deliberations - Wont’ work
Outside - Might work
Ask for evidentiary hearing and introduce evidence at hearing
- Whether to grant new trial for new evidence is w/in broad discretion of the TC
7
Q
Factual Sufficiency (Re: Zone of Evidence)
A
Category: Surviving legal sufficiency review - case goes to jury but the entity of the evidence - the decision looks unjust by the jury.
Insufficient evidence, against the great weight and preponderance of the evidence
8
Q
Excessive Damages (Factual Sufficiency Review)
A
Remittiture: The procedure by which an excessive verdict is reduced.
- TC and COA should use factual sufficiency to determine if there is sufficient evidence to support the damages award, remitting only if some portion is so factually insufficient or against the great weight and preponderance of the evidence as to be manifestly unjust.
9
Q
Steps int he Remittitur Process:
A
(1) The party contesting the excessive damages awarded files a motion for remittitur. The motion can be stand alone or included in MNT.
- Explain why the jury verdict is not supported by factually sufficient evidence
- Will request the amt. by which the judgment should be reduced
(2) Court signs an order which “suggests” a remittitur. The P is then given the choice between remitting a part of the damages or trying the case again. (Court can reject the motion)
(3) P decides whether to remit part of the judgment.
- If so it will file it w/the TC in a written motion (TRCP 315).
10
Q
Nature and Purpose of MNT
A
Affords the judge more discretion
Function is to enable the prevention or correction of injustice, and the grounds upon which it can be based are numerous
TRCP: 320: New trials may be granted for good cause, on such terms as the court shall direct.
11
Q
MNT is NOT a prereq to the right to complain on appeal in any jury or non-jury case except to preserve
A
Complaints on which evidence must be heard
Complaints of factual insufficiency of the evidence to support a jury finding;
Remittitur
Complaints that a jury finding is against the overwhelming weight of the evidence;
Complaints of the inadequacy or excessiveness of damages found by the jury; and
Complaints of incurable jury argument, if not otherwise ruled upon by a trial judge
Jury misconduct
12
Q
When may the court set aside the verdict?
A
Only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
13
Q
Plenary Power Principles
A
The day the judgment is signed starts post judgment and app. deadlines. TRCP 306(a)(1).
The plenary power of the TC extends 30 days from the date the judgment is signed when no plenary power extending motion is timely filed. TRCP 329(b)(d).
PP extending motions like a motion for new trial and motion to modify the judgment are timely filed w/in 30 days of the date the judgment is signed. TRCP 329(b)(a); TRCP 329(b)(g).
When a timely PP extending motion is filed, the PP of the trial court extends 30 days after the PP extending motion is overruled. TRCP 329(b)(e); TRCP 329(b)(c); TRCP 329(b)(g)
A timely filed motion for new trial or motion to modify judgment that is denied extends the deadline to file a notice of appeal to 90 days from the date the judgment is signed. TRAP 26.1(a).
ASK: When overruled? (+30 days to written motion)
• Did the court act?
• No, 75 days = Overruled
• +30 days = 105 Days
14
Q
Notice of Appeal Deadline & PP
A
Deadline = 90 Days from date the judgment is signed
PP doesn’t matter the app. deadline is always 90 days!
If TC acts after that 90 days = Moot notice of appeal (probably won’t happen)
o TRAP 26.1(a)
o Should know re: MNT/MMJ by day 75
15
Q
Deadlines on Weekends/Holidays
A
Whatever date begins = Day 0 (here always the date the judgment was signed)
Always count weekend and legal holidays
Deadline is the next business day (Sat → Deadline = Monday)
16
Q
Deadline for MNT/PP
A
If acts on motion → add 30 days to see when PP cuts off
If did not act = 75 Days overruled by operation of law + 30 days to cut off PP
17
Q
Extension of Appellate Timetable MNT/MMJ
A
MNT/MMJ = 90 Days
o If denied
Example: D files MNT on 20 days after signed
oTC acts to overrule 7 days
later = 27 days
o72nd day vacates order and
grants MNT
oDid court act w/in PP?
• No. PP expired on day 57 (27 + 30 days)
Same rule whether it is MNT/MMJ
Example: P files MNT on 15th day after signed
o 92nd day TJ signs MNT
(OK!)
o Overruled by operation of
law on 75 day
• +30 days = 105 days
• 92 days in w/in the PP
Ask: How was motion overruled???
18
Q
Lane Bank Case
A
Q: 329(b)(g): Motion to Modify (as distinguished from .. ) If filed shall be
Court: Parenthesis refers to clerical change creating a textual distinction made
o Motion for NT: Change →
Extended PP
o Motion to Modify: Is it a
substantive or clerical?
• Misspelling, etc. = Not
substantive
Courts can always go back and make clerical change
o Either substantive or
clerical – Made in 30 day
window
Makes change at Day 28, if party wants to appeal from that judgment they have 30 days to do so. If motion comes after that – additional 30 days after that as well.
• If outside the PP window &
a substantive change is made
– can’t do (void)
• Clerical Change is okay, no restart
App Deadlines:
Day 28 → 30 days from modification to appeal
• THINK: New Day 0
App Deadline = 90 Days
• Outstanding Motion
• Overruled (Day 75)
• Granted: Restarts 30 Days
19
Q
TRCP 316: Motion Pro Tunc
A
Clerical change is okay after PP is over
Clerical Discrepancy between entry of judgment and the judgment as it was rendered
o Not related to judiciary
reasoning
Example: Error in date, designation of parties, misspellings, acreage description (Escobar)
20
Q
Bill of Review
A
Go back to original trial years later - Need to have some type of fraud
21
Q
Original Bill of Review Elements
A
(1) A mertiorious defense to the cause of action which he or she idd not have an opportunity to present at the original trial
(2) An excuse justifying the failure to make the defense which is based upon extrinsic fraud, accident, or wrongful act of the opposite party and
(3) The absence of fault or negligence
Must be filed as a new and independent suit in the same court that rendered the judgment under attack.
22
Q
Time Tables for MNT, etc. in general
A
ASK: Did the TC overrule or grant the motion?
What did it do to the original motion?
If the court or the law actually overrules the MNT or MJ then PP of the court extends 30 days from the ruling. (App power extends 90)
When MMJ is orginially granted (during PP) then the PP extends 30 days from the modified judgment (if nothing else is done, 30 days to appeal)
(Land Bank & 329(d)(h))
23
Q
Steps in the Appeal Process (To the Appellate Court)
A
Notice of Appeal
Prep and filing of the record
Brief the court
Oral Argument
Rendering of Judgment and Issuance of Opinion
Motion for rehearing
En Banc Consideration
24
Q
Steps in Appeal Process (To the Texas SC)
A
Pet. for Review
Action on Pet. for Review
Brief the Court
Oral Argument
Rendering of Judgment and Issuance of Opinion
Motion for Rehearing
25
TRAP 4: Computing Time
In gen = same as TRCP 4
The day the opinion is signed = Day 0 (1 following day, count weekends and holidays unless it ends on one of those days, then it will be due on the following business day)
26
TRAP 9: Filing of Documents
```
Graduated schedule for Texas TC – the highest populations will go first, then the rest are graduated in slowly.
o The 14 Intermediate App.
Courts require electronic filing
• Double check local rules –
some might still require
paper copies
```
```
Texas Supreme Court requires electronic filing
o TRCP:9.2(c)(1): Attorneys in
civil cases must electronically
file documents. (No paper
copies unless local rules
require them TRAP: 9.3(a)(2)
o www.efileTexas.gov - where
you get provider to file all
your documents
```
27
TRAP 9.2(c)(4): Timely Filing:
You know it’s filed when it is personally delivered and given to the clerk, it is considered timely filed any time before Midnight on the filing deadline
* Mail: Must get there w/in 10 days
* UPS: (Recently Changed): Considered delivered when you give the documents to the commercial delivery service (Same 10 day mailbox rule)
* Same Weekend/Legal holiday rule as TRAP/TRCP: 4
You probably want some type of receipt
•If there is a technical failure – seek appropriate relief from the court
28
TRAP 45: Sanctions
Frivolous App:
Failure to acknowledge and address extensive contradictory proof
Failure to adequately brief the issue in good faith
Failure to provide sufficient proof on that issue
Counsel’s mis-citation of a dissenting opinion as controlling authority
A party's decision to appeal should be based on professional judgment made AFTER careful review of the record for preserved error in light of the applicable standards of review
29
Interlocutory Appeal:
Ask: Is there a statute?
Allowed when issues are deemed to be so critical to the litigation that they need to be reviewed immediately
Mandamus: Some types of interlocutory orders may be challenged immediately in the app. court through mandamus
30
Types of Interlocutory Orders (CRCP 51.014(a)):
Order appointing a receiver. (1) and (2)
Orders on class certification (3)
Orders granting or denying a temp. injunction (4)
Denial of SJ on assertion of immunity by gov. officer (5)
Orders on Special Appearances (7)
Grant or denial of gov. entity’s plea to the jurisdictions (8)
Expert reports under health liability claims. (9) and (10)
Denial of motion to dismiss asbestos claim (11)
Recent additions to statute
All of these situations are so essential – right to appeal is allowed right away
(Can only appeal to the next highest court)
31
Interlocutory Appeals Through the Court's Approval w/o the Parties Agreement (CRPC 51.014(d), TRAP 28.3, TRCP 168)
A controlling question of law as to whether there is a substantial ground for difference of opinion
An immediate appeal may materially advance the ultimate termination of litigation
Efficiency: If law is unclear, whoever loses will probably send to appeals anyway
*NOTE: The TC must feel it is necessary - parties do not have to agree
32
Interlocutory Appeal Procedure:
TRAP: 28.1(a): Considered accelerated appeals (the question being asked on appeal before the final opinion can be filed).
In an accelerated appeal, the notice of appeal must be filed w/in 20 days of the date the interlocutory appeal was signed. TRAP 28.1(a)
The notice of the app must state that it is accelerated. TRAP 25.1(d)(6).
The deadlines for filing the app. record and briefs in interlocutory app are accelerated. TRAP 28.1(e), 35.1(b), 38.6(a).
33
Stay of TC Proceeding Pending Appeal
Automatic Stay of Trial: The app of the interlocutory order automatically stays the commencement of the TC.
Automatic Stay of all Proceedings in the TC: The app of the interlocutory order automatically stays all proceedings in the TC level. (Class action)
Automatic Stay of Commencement of Trial or Trail Court Proceedings after motion denied and deadlines met.
Denial of an official- immunity, summary, judgment motion, a special appearance, or a gov’s plea to the jurisdiction
34
What is the final judgment?
One Final Judgment Rule: In most proceedings, only one final and appealable judgment can be rendered
Multiple Final Judgments:
Probate, Receiverships
35
How do you spot a final judgment in Texas?
A judgment is final if it disposes of all parties and all claims in the lawsuit
36
Final Judgment when there are multiple parties and multiple claims
A series of partial orders disposing of claims.
The order that addresses the last remaining claim is the final order for appeal purposes
You have to follow to find the last claim in the case is complete (the court will keep notifying you re: judgments, etc.)
37
Severance:
P v. D1 & D2
Judgment granted to D1 after files MSJ
P’s action against D1 is severed from the case
The judgment against D1 becomes final
38
Aldridge Presumption
Implying the disposition of a claim in judgment:
• Current: If there is no answer/the claim seems ignored = Final Jud.
Key: Take presumption and apply to the fact scenario. There is a presumption the judgment against Aldridge also disposed of the claim against the 3rd party. Nothing in the record to say otherwise.
TODAY: What you’re looking at is case w/lots of claims, the judgment omits one of the claims but disposes of the others (court really should say something about ea. claim). If there is an omission not based on the merits – that’s when Aldridge comes in. Must take something to overcome the presumption (harm).
Not to be used at pre-trial (hard to read the intent)
39
Mother Hubbard Clauses
Good Language: “This judgment is a final judgment that disposes of all claims and is appealable” – The MH language might help after trial but there are still issues.
40
Final Judgment at the Federal Level
The final judgment is provided on a separate document.
Problem – Can leave things hanging (people forget to type it up/have the judge signing it), w/o the separate doc. the case is still technically open.
41
3 Step Analytical Process to Determine if the Judgment is Final:
1) Was the judgment rendered after a conventional trial on the merits?
Yes. Aldridge presumption applies. When TC renders a judgment after a conventional trial on the merits and there is no order for separate trials, the judgment is presumed to dispose of all issues and all parties. The judgment is treated as final for purposes of appeal.
- Unless the some record of the case says otherwise
No. When the TC renders a judgment or issues an order disposing of the case at any time other than after a conventional trial on the merits, the judgment is not presumed final or appealable. In these cases, the party seeking to appeal must ascertain whether the language of the judgment and the record as a whole reflect the court’s decision to dispose of all parties and claims to the suit.
Mother Hubbard does not indicated finality unless other things also speak to finality.
- Example: SJs, Default Judgments, Order of Dismissal
(2) Does the record of the case reflect that the judgment disposed of all parties and claims?
The order that addresses the last remaining party or claim is the final order for appeal purposes. (Webb v. Jones)
Judgment disposing of P’s claims against all D’s, except unserved D, was a final judgment. (MO Dental Lab)
A judgment can dispose of all claims and parties and therefore be final even if a motion for sanction is still pending. (In re Velte)
(3) Does the language of the judgment make it final?
Unequivocal intent in the language of the order make the judgment final?
- EX: “This judgment finally disposes of all parties and all claims and is appealable” = Good example
•Mother Hubbard clauses will not work
```
Example: P v. D = 4 claims asserted by P
D moves for SJ on one
claim
“TC renders judgment that
P take nothing on all claims
asserted against D”
TC should have resolved one claim but all of them
```
Erroneous for TC to do that – but when this comes up in the courts have said this if final for purposes of appeal. TC committed error but this is final.
Treat as final even if wrong.
42
Practical Solutions to Determine Whether a Judgment is Final
Be precise when you are drafting orders and judgments. This helps judges be precise in their orders and judgments.
Note: You might draft what the judge will sign. If something is final, use the correct language to be helpful.
Err on the side of immediately appealing from a judgment when there are questions of finality.
Even if later on the court says it’s not final, it’s better than missing the date and waiting around (no way to recover).
43
Methods of Suspension (App. Jurisdiction and Suspending Enforcement of the Judgment)
Written Agreement
Superseadeas Bond
Deposit in Lieu of Bond
Alternate Security
44
Superseadeas Bond
A K by which a surety obligates itself to pay a final judgment rendered against its principal (up to the amt. of the bond) if the principal does not perform the judgment
Accomplishes Two Things:
Assures the judgment creditor that it will be able to collect the judgment if the case is affirmed on appeal
Assures the judgment debtor that the judgment will not be enforced pending the appeal
TRAP 24.1: Form of the Bond
45
Judgment on Appeal - Effect on Superseadeas Bond
Judgment Affirmed on Appeal:
COA must render judgment against the surety on the superseadeas bond. TRAP 43.5.
Appellant must perform the judgment
If appellant does not perform, the judgment creditor will use the surety to collect on the supersedeas bond
Judgment Reversed on Appeal:
The surety will be released from the supersedeas bond.
46
The Amount of the Bond
TRAP 24.2(a): Cap (50% of net worth/$25M) – whichever amount is lesser.
Or if the judgment debtor will be caused substantial harm
The bond is generally the amt. of the compensatory damages (excluding punitive) – i.e. the amt. of the judgment minus the punitive damages
Disputes arise re: person/co’s net worth because it effects how big/small the bond is (In re Smith)
Usually a net worth hearing
File Motion to Reduce Security
47
Writ of Execution
TRCP 622, 627-633:
Commands the sheriff to seize and sell, or deliver to the court, nonexempt property of the judgment debtor
48
Abstract Judgment
Filed in the real property records of any county in which the judgment debtor holds
49
Writ of Garnishment
TRCP 657-679:
Seeks to have third parties who hold property belonging to judgment debtor turn the property over to the court
Example: Bank accounts
50
Turnover Order (CRPC 31.002)
CPRC: 31.002
Used to reach property that cannot readily be attached or levied on by original legal process
Judgment debtor required to turn prop. over to the sheriff otherwise applies the prop. to the judgment
51
Appellate PreReqs
Gen. Final Judgment Requirement
Preservation of Appellant Complaints
TRAP 33.1 (General Rule)
Special Error Preservation Rules
Offer of Proof Example
Evidence you want to get in
MNT/MMJ Ruling by Op. of Law TRAP 33.1(b)
Sub. Matter Juris.
The amount in controversy must be $250 Key Points:
In general, an appeal does not suspend enforcement of the judgment (it is not required – but you should consider)
Generally, the judgment debtor has the absolute right to “supersede” a judgment pending appeal
Should a judgment debtor seek suspension of enforcement of the judgment?
What has been seized?
How aggressive is the other party?
How likely is it that the party wanting to appeal can win?
52
Amount in Controversy (For Appeal)
The money or the alue of the thing sued for (not always the damages sought)
Here – The hunting license – Cost $70 but was worth more than $250, the court found it was the amt. that a state’s citizens are willing to pay for a privilege
53
Summary of Timing Deadlines for Appellate Court
Direct Appeal – 30 Days from Judgment TRAP 26.1
Interlocutory Appeal – 20 Days from Order TRAP 26.1(b)
Motions that Extend Appellate Deadline to 90 Days from J TRAP 26.1(a)
MNT
Motion to Modify Judgment
Motion to Reinstate
Request for Findings of Facts and Conclusions of Law
Any change to the J restarts the appellate timetime TRAP 4.3
54
Accelerated Appeals Timelines
Accelerated = Interlocutory TRAP 28
NOA: 20 Days after order is signed TRAP 26.1(b)
Record: 10 days after NOA is filed TRAP 35.1
Sworn Copies in lie of record TRAP 28.1(e)
Appellate Brief: 20 days after the record is filed TRAP 38.6
Appellee Brief: 20 days after ate’s brief is filed TRAP 38.6
Appeals from interlocutory orders, when allowed by loaw and appeals in quo warranto proceedings are accelerated
Must perfect by filing a Notice of Appeal w/in 20 days after the appealable order is signed.
- At this time appellant is required to request the court reporter to prepare a reporter’s record
- Must be filed by the Court Clerk and the Court Reporter w/in 10 days after the notice of appeal is filed
- In lieu of the record, the COA may hear an accelerated appeal on the orig. papers fwded by the TC or on sworn and uncontroverted copies of those papers submitted by the parties
- Brief must be filed w/in 20 days after the later of:
- ----The date the clerk’s record is filed
- ----The date the reporters record is filed
The appellee’s brief is due 20 days after the appellant’s brief is filed
(The COA may allow the case to be submitted w/o briefs)
Interlocutory order does not extend the time to perfect an appeal
Parental Termination: Even tho the appeal is from a final judgment it must be filed w/in 20 days of the signing of the appealable order or judgment that is subject of the accelerated appeal.
Filing a MNT does not extend the time to perfect an accelerated appeal
55
Restricted Appeal Timetables
Outermost option when you’re pas the normal timelines (other than Bill of Review)
Must file w/in 60 mo. after J is signed TRAP 26.1(c)
Must be filed by a party to the lawsuit
The party did not participate in the hearing that resulted in the judgment they are now complaining of. TRAP 30.
The party did not file a timely post-J motion or request for findings of fact or conclusions of law. TRAP 30.
Error must be apparent from the face of the record
Davenport v. Scheble: Restricted appeal from a default J - Davenport appeals from TC’s order granting sancions and judgment rendering default judgment
• Called in and notified wife he would not appear
Wife = He appeared
Husband = Call is not
appearance
56
A Restricted Appeal is Only Allowed If:
A restricted appeal is only allowed if:
Filed his notice of restricted appeal w/in 6 mo. after the judgment was signed
Was a party to the underlying lawsuit
Did not participate in the hearing that resulted in the judgment complained of and did not timely file any post judgment motions or requests for findings of facts and conclusions of law and
Error is apparent on the face of the record.
Formerly “write of error
57
Commencement and Modification of the Appellate Process and Timetables
Date on which J is appealable = Date the J is signed
If it is modified in “any respect” while the TC retains PP, the period for appealing the judgment runs from the date the modified J is signed
In addition, this starting point can be modified if the affected party received no notice within 20 days after the judgment was signed.
58
File Notice of Appeal (Invoke COA's Jurisdiction)
Where to file:
•In the TC (They send copy to COA to notify)
(If you accidentally file it in COA, they notify TC)
```
Serve notice to other parties
Pay filing fees
Pay filing fee to the Clerk’s
office
(Done in a timely fashion)
```
What does it include? (TRAP 25.1)
•Straight forward document
Not hard – Usually 1
Paragraph
If it is restricted/accelerated
might have to add more but
generally that is it. (No need to
add in errors)
• ID of the TC, Style and Cause Number of the Case
• The date of the TC judgment or order being appealed
• A Statement that the party filing the notice desires to appeal
•The ID of the court of App to which the appeal is being made
• The name of each party filing
Courts are generally liberal re: NOA mistakes
•Just amend
•After briefing might have to go to the court and get approval but before that it is usually no huge deal
59
Filing Docketing Statement TRAP 32
Information about the case
Request the Record be put together to show COA that the appropriate part of the record will be produced
Any party that seeks to alter the TC’s judgment must file a NOA TRAP 25.1(c)
The appellate court may not grant a party who does not file a notice of appeal a more favorable relief than did the TC except for just cause.
•Do not test
Appellant:
•P/Appellant/Cross-Appellee
•D/Appellee/Cross-Appellant
60
NOA Deadlines
Accelerate – 20 days after J or Order is signed
Restricted – 6 mo. after J or order is signed
Normal – 30 days after J is signed
MNT/M to Modify – 90 days after J is signed
TRAP 26.3: Come forward w/reasonable explanation and get 15 more days (discretionary, court could deny)
•Use as an absolute last resort
Cross-Ref TRAP 10.5(b)(2):
61
TRAP 26.3: Extension of Time
File NOA w/in 15 days after deadline
File Motion to Extend Time to File NOA in App Court w/in 15 Days After Deadline (TRAP 26.3 and TRAP 10.5(b))
Reasonable explanation for late filing of appeal
EXAMPLE: Garcia v. Kasnter Farms Inc.
• Cost bond due in 30 days, Garcia did not file a Motion to Extend Time but filed in 45 days
• Show reasonable explanation – Even if it’s just attorney’s negligence – p. 689 p. 3
62
When is Motion for Extension Implied?
When a party, acting in good faith, files a cost bond w/in the 15 day period in which Rule 42 permits parties to file a Motion to Extend. (Must give reasonable explanation)
63
TRAP 26.1 Automatic Extension of Time
Day 28 after judgment is signed P files notice of appeal
As a matter of right D has 14 days to file NOA
Can use 26.3 but it is discretionary (it is not a right like 26.1(d))
Know the rule but do not rely on it!!!
64
TRAP 32: Docketing Statement
Provides the clerk of the COA w/information necessary to docket the case and provides information for admin process
The docketing statement is not juris. but your appeal will be dismissed if it is not filed
Each COA has a docket statement form to use (online)
65
TRAP 34: Appellate Record:
Consists of clerk’s record and if necessary to the appeal the reporter’s record. Should only be one on appeal.
List what must be included
At any time before the clerk’s record is prepare, any party may file w/the TC a written designation specifying terms to be included in the record
(Must be specific – not “all paper filed in the case”)
34.6(f): An appellate is entitled to a new trial if he has timely requested a reporter’s record; if w/o the app’s fault, a sign exhibit or portion of the court reporter’s notes and records has been lost or destroyed – or if electronic – is inaudible and is necessary to the appeal’s resolution and cannot be replaced by an agreement of the parties
66
TRAP 35: Time to File Record, Responsibility for Filing Record
Civil: The app record must be filed in the app court w/in 60 days after the judgment is signed except:
If Rule 26.1(a) applies – w/in 120 days
If Rule 26.1(b) applies – w/in 10 days after notice of appeal is filed or
Rule 26.1(c) applies w/in 30 days after notice of appeal is filed
67
Appellate Record Contains:
Clerk’s Record:
The paper filed during the lawsuit
Motions, orders, jury charge, jury verdict, judgment
Electronic Record prepared by the trial court
Reporter’s Record:
Written or electronically recorded record of the courtroom proceedings
Testimony, voire dire, opening and closing arguments
Electronic record prepared by court reporter
68
The Appellate Record Must:
Contain everything needed to show perfection of the appeal so that it is demonstrable that the app. court has juris.
From the standpoint of the appellant, it must include everything needed to show a TC occurrence or ruling which constitutes harmful error
Form the standpoint of the appellee, the record should include everything required to show waiver or harmlessness of the errors relied on by the app.
It should also be sufficient to support any of the appellee’s cross points.
69
Clerk's Record:
Every appeal will have clerk’s record
o Bare-Bones record is required:
TRAP 35.(a): Lists mandatory contents (judgment, trial charge, verdict)
Appellate prepares a request for prep of the clerk’s record and designates the additional items to be included in the clerk’s record
•TRAP 34.5(a)
Appellate makes arrangements to pay for clerk’s record
Agreed Clerk’s record
If the clerk omits a requested item, prepare a request for s supplemental clerk’s record. TRAP 34.5(c)
The appellee can also designate items to be included…
70
Reporter's Record:
Not every single appeal needs – but err on the side of having
Necessary is most:
•Challenge to sufficiency of evidence
•Rulings on the evidence
•Ruling on motions after evidence hearing
•Challenge errors in the submission of the jury charge
•Challenge error in voir dire
•Challenge error in jury appeals
Not Necessary
•Appeal of a SJ case
Evidence will be in clerk’s
record
```
Types of Reporter Records:
•Complete Reporter’s Record
(Compete transcription of all testimony, the objections, any offers of proof and the exhibits (more money, more time))
•Partial Reporter’s Record
•Agreed Reporter’s Record
```
71
Request a Complete Reporter's Record:
Written request to court reporter for complete transcription of proceedings
Designate exhibits to be included
Designate the portion of proceedings to be included
Copy of requested is filed with the TC
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Request a Partial Reporter's Record:
Designate a partial reporter’s record
Include a statement of the issue to be presented on appeal
•Let’s all parties know about what the appeal is about
•The appellee will then be able to defend the case or request the additional portions of the record to be included as part o the record.
(Sort of an issue of Notice)
Statement of issues to be in the request
Request should be filed before the deadline for filing the notice of appeal
Presumption
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Partial Record Caveat:
If the appellant fails to comply with Rule 34.6 the reviewing court must presume the missing portions of the record contain relevant evidence and that the omitted evidence supports the TC's judgment (FATAL)
Argue Policy
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Practical Things to Do After Final Judgment
The appellant must do the following things prior to the deadline to file NOA:
File NOA, file docketing statement
Send and file requests for prep of clerk’s record & reporter’s record
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Request for Record in Electronically Recorded Trial
Court recorder must file all the electronically recorded trials
Certified copies of tapes or other audio storage devices
Exhibits
Cert. copies of the original logs prepared by the court reporter
Use of appendix in electronically recorded trial
Transcription of relevant parts of the recording included in the appendix to the app’s brief
The same presumptions that apply to a partial reporter’s record under TRAP 34.6(c)(4) apply to the parties’ appendixes.
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Deadline for Filing Record in Appellate Court: TRAP 35.1
The filing of the record in a timely fashion is the clerk/court reporter’s responsibility
The app. court clerk will make sure the record is filed
You should monitor
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Appellant Brief (In General)
Main Goals:
Persuade the Judges
•Frame the Issue
•Summarize the Argument
•Argument
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Discussion of facts and authorities supporting the issues presented
Legal authority
Novel questions of law
Sufficiency complaints
Reversible error TRAP 44
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State pertinent facts
•Ea. factual statement needs a cite to the record
•Writer should put him/herself in the shoes of the reader
Think about the specific goals:
- Appellant (Seeking reversal)
- Appellee (Seeking affirmance)
- Structuring your arguments in a persuasive way
- Enhance your reputation w/the court
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Avoid common faults:
o Omitting the SOR
o Failing to properly research
o Using a shotgun approach
o Missing facts
o Missing law
o Exhibiting disrespect
o Address your weakness
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Prep and Filing for App Brief
Must be filed w/Clerk w/in 30 days after the record is filed
The appellee’s brief is due w/in 30 days after the appellant’s brief was filed
An appellant may file a reply brief addressing any matter in the appellee’s brief w/in 20 days after the date the appellee’s brief was filed.
Appellant who does not file a timely brief risks dismissal for want of prosecution
Motion to Extend can be filed before or after the date the trial brief is due (Same for ea. side).
Rule 10.5: Must State
Deadline for filing
Length of extension sought
Facts relied on to reasonably explain the need for extension
Number of previous extensions granted re: the time to file the brief.
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Briefing Rules Changed in 2012/2013
App briefs must comply w/word limits
Mandatory electronic filing 1/1/14
The 14 intermediate app courts require electronic filing
The SC requires electronic filing
TRAP 9.2(c)(1): Attorneys in civil cases must electronically file docs. (www.efileTexas.gov)
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Requisites:
oTRAP 38.1:
•ID of parties and counsel
•TOC
•Statement of the Case
Nature of the case
Brief procedural history
One ½ page
Cite to record
•Statement re: Oral Arg.
•Appendix (Must Include)
Judgment of appealable
order
Jury charge and verdict
Key Statute
Key document
•Opinion Contents
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TRAP 38.1(f): Issue v. Point
Brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.
Points of Error: TC erred in … because…
•Followed by explanation (Argument)
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Modern: Issues: Legal issues for the court to decide
•Frame:
If/when
Whether
One sentence Q
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Contents of the Appellee's Brief: Reply Points and Cross Points
Appellee’s brief must conform to the structure of the appellant’s brief
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Appellant's Reply Brief
The appellate court may consider and decide the case before the reply brief is filed
Due 20 days after the appellee’s brief is filed
Many COA’s say no new issues can be raised on appellant’s reply.
Others have held it is okay if it is a response to argument contained in the appellee’s brief.
Generally follow TRAP 38.1
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Summary of Appellate Brief
The appellant must file cross-points when JNOV has been granted to it or there is a waiver
The appellee must assert cross-points which, if sustained, would result in the same judgment or a less favorable judgment than the one obtained in the TC. In that situation, no NOA is required.
The appellee must perfect its own appeal if it seeks a more favorable judgment than the one he obtained in the TC. It may then file its own appellate brief.
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Oral Argument - The Rules:
TRAP 39: Oral Argument: Decisions w/o Argument:
Purpose: Should emphasize and clarify the written arguments in the brief. Counsel should not read.
TRAP 41: Panel and En Bank Decision:
Must be 3 justices, although not every member of the panel must be present for argument
W/o argument – must have 3 justices
TRAP 47: Opinions, Publication & Citation
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Oral Argument in General
The court may deny OA when the appeal is frivolous
The dispositive issues have been authoritatively denied, the facts and legal arguments are adequately presented by the briefs and record or, the decisional process would not be significantly aided by oral argument
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Judgment Making in the COA:
Rendition or Remand:
An appellant who appeals on the basis of legal insufficiency of the evidence is generally entitled to rendition when a “no evidence” point is sustained.
- Assuming error was preserved by a motion for instructed verdict, a proper objection the submission of an issue or proper Rule 310 motion.
Appellant who appeals the grand judgment NOV is entitled to rendition, absent cross-points in the appellee’s brief
Appellant is also entitled to rendition when a vital component of a ground of recover is not submitted and deeming principles cannot be applied bc an objection to nonsubmission was properly made
Remand is required on situations involving rulings on the admission or exclusion of evidence, factual sufficiency challenges to fact findings or pretrial rulings not involving the merits
A prayer for rendition does not preclude the appellate court from reversing the judgment and remanding for further proceedings in the TC.
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Judgment in the COA: Timeline
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Oral Argument
Opinion
Judgment
Post-Judgment
- Motion for Rehearing
- En Banc Recommendation
PP
Mandate
Motion Practice
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TRAP 10: Motions in the App. Court
- Contents of the Motion
- Response: May file a response any time before the court rules on the motion or by any deadline set by the court. The court may determine a motion before response is filed.
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TRAP 10.5: Particular Motions
Motions relating to informalities in the record
• A motion relating to informalities in the manner of brining a case into court must be filed w/in 30 days after the record is filed w/the COA (the obj., if waivable – will otherwise be deemed waived)
Motions to Extend Time: (Reasonable explanation, usually given favor by the court)
Must State:
- - Deadline for filing the item in question
- - Length of extension sought
- - Facts relied on to reasonably explain the need for an extension
- - The number of previous extensions granted regarding the item in question
Contents to motion to extend time to file NOA
-- Comply w/(1)(A)(c)
-- ID the TC
-- State the date of the TC’s judgment or appealable order; and
•Contents of a motion to extend time to file petition for review or petition for discretionary review – a motion to extend time to file a pet. for review must specifcy:
-- The COA
-- The date of the COA’s judgment
-- The case number and style of the case in the COA and ..
-- The date every motion for rehearing or en banc reconsideration was filed, and either the date and nature of the COA’s ruling on the motion or that it remains pending
Motions to postpone argument – Unless all parties agree, or unless sufficient cause is apparent to the court, a motion to postpone argument of a case must be support by sufficient cause
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TRAP 16: Disqualification of Recusal of App Judges
Grounds for Disqualification: Determined by the Const. and laws of Tex.
Grounds for Recusal: Same rules as Civ. Pro. – In addition, must recuse in a proceeding if it presents a material issue which the justice or judge participated in deciding while serving on another court in which the proceeding was pending
Procedure for Recusal:
• Motion – Filed promptly when party has reason to believe ..
• Decision – By the judge to certify to the entire court – which will decide the motion by a maj. of the remaining judges sitting en banc. The challenged judge may not sit w/the remainder
• Appeal – An order of recusal is not reviewable, the denial of the recusal motion is
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TRAP 18b: Mandate (b) In the SC and the C of Criminal Appeals
10 days after time has expired for filing a motion to extend time to file a motion for rehearing if no timely motion for rehearing or motion to extend time is pending
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TRAP 42.1: Dismissal, Settlement - Voluntary Dismissal and Settlement in Civil Cases
On motion or by agreement:
On a Motion: Court may dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled
By agreement:
- Render judgment effectuating the parties’ agreement
- Set aside the TC’s judgment w/o regard to the merits and remand the case to the TC for rendition of judgment in accordance w/ the agreement
- Abate the appeal and permit proceedings in the TC to effectuate the agreement
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TRAP 42.1 - Partial Disposition
A severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties
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Effect on the Court's Opinion
In dismissing a proceeding – the app court will determine whether to w/draw any opinion it has already issued. An agreement or motion for dismissal cannot be condition on withdrawal of the opinion
Costs: Absent Agreement – Courts will tax costs against the appellant
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TRAP 42.3: Involuntary Dismissal in Civil Cases:
On any party’s motion – or it’s own initiative after giving 10 days notice to all parties – the app. court may dismiss the appeal or affirm the appealed judgment or order. This may occur if the appeal is subject to dismissal:
- For want of Juris
- For want of Pros. or
- Because the appellant has failed to comply w/a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action w/in a specified time
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TRAP 41: Panel and En Banc Decision:
Constitution of Panel: (In gen. – 3 justices to decide a case en banc), maj. which quorum must agree on the judgment
If a member cannot participate in deciding a case – the case may be decided by the remaining two justices
If they cannot agree the CJ of the COA must:
Designate another justice to sit on the panel and consider the case
-- Request the CJ of the SC temporarily assign an eligible just. or judge to sit on the panel and to consider the case
-- Or convene the court en banc to consider the case – reconstituted panel or the en banc court may order the case reargued
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TRAP 49: Motion for Rehearing and en banc Reconsideration
M for Rehearing: File 15 days after the COA judgment or order is rendered
No response unless the court requests
Further Motion for Rehearing: Maybe filed w/in 15 days of the court’s action if the court:
Modifies the judgment
Vacates its judgment and renders a new judgment or
Issues a different opinion
-- Amendments on a motion can happen any time before the 15 day period allowed for filing the motion expires
--En Banc
• Can be filed w/o filing a M for Rehearing. Must be filed w/in 15 days after the COA’s judgment or order, or when permitted w/in 15 days after the COA’s denial of the party’s last timely filed motion for rehearing or en banc reconsideration
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Motion for Rehearing (In General)
Specific and to the point
-- If happy – Does law require them to file M for Rehearing or can you just go straight to the Tex. SC?
• No, don’t have to seek post-j procedures
• Could be decided to go from App to SC (1 track)
• Second – Go to Motion for Rehearing/En Banc
Response: Typically a party that wins the app court judgment just sits back and doesn’t respond even if a Motion for Rehearing is filed – the motion cannot be granted w/o a response. If you are asked to respond, you’ll have time.
- - Not obligated to do the response
- - Sometimes an app court lawyer wants to file even if not requested
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TRAP 18: Mandate
Separate and apart from the judgment
At some point – here is the appellate judgment in place & now have a mandate from higher court to lower court, saying the trial court’s judgment is enforceable
• Until you have a mandate that says that take place, you have no enforcement of the appellate court judgment
• Looks like a judgment but says the appellate judgment is forcible – the mandate says: Judgment of appellate court w/number
Issued by: The clerk of the App. Court (Admin Duty)
• Not from Texas SC
When all the time for review in terms of motion for reharing an en banc has run – that’s when the mandate will come down
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TRAP 19: Plenary Power:
COA’s PP over Judgment Expires:
• 60 days after judgment if no timely filed motion
• 30 days after the court overrules all timely filed motions for rehearing or en banc reconsideration – overrules the last of these motions (no language that talks about the operation of law, etc. must be ordered w/overrule)
The PP continues after Petition is filed – Retains PP to vacate or modify its judgment during the PP even if a party has filed a pet. for review in the SC.
Proceedings after PP expires
Expiration of Term
• The expiration of the app court’s term does not affect the court’s PP or it’s juris. over a case that is pending when the court’s term expires
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TRAP 47: Memo Opinion v. Opinion
Novel legal issue: Opinion (Because the rule reads – something that’s come up)
Fact Patter and Applying the Law (Settled Law): Shorter opinions w/ less explanation = Memo Opinions
• Not stating new law
Either way – Still precedential value and can be cited as the law.
However characterized, they should be public and available.
-- (Until 2003: If just persuasive, not published)
Legal Sufficiency: Rendition in his favor
Factual: Revesal of judgment from TC and Remand for NT
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Appellate Juris in the Tex. SC - Jurisdiction:
Two Questions:
- - Does the TSC have app. juris over your pet. for review?
- - Will it exercise its juris over your pet. for review?
Basic Point:
-- The TSC generally does whatever it wants in terms of deciding whether to grant a pet. for review but there are some limits on its juris.
How do you invoke?
-- TRAP 53.2(e): Statement of Juris
Discretionary Aspect of TSC Juris
- - TRAP 56.1(a): Discretion
- - TRAP 53.2(i): Argument
- - Error of law is important to the jurisprudence of the State
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Statutory Restrictions Imposed by Texas Legis - TSC Appellant's Juris:
- - Gov. Code: 22.001
- - Gov. Code: 22.225
Limiting Principles:
•COA judgments are conclusive on the facts of the case in all civil cases (22.225)
•Pet of Review to the TSC are not allowed in certain civil appeals like interlocutory appeals, absent some exceptions. (Dissent/Conflict Juris) (22.225)
Exceptions include cass cert. orders, denial of SJ by media defendants based on free speech, denials of motion to dismiss asbestos claims, and interlocutory appeals permitted by the TC.
•SC can intervene to determine if the COA is accessing its juris properly (22.225)
•The gen. rule concerning SC juris in civil cases have been brought to the COA after final judgments in the TC (22.001)
•The COA is conclusive on the facts of the case
SC only address the law
•Some cases pet. in civil appeals are not permissible (although there might be exceptions to that)
Interlocutory Appeals – are final (some exceptions)
•Generally – The SC in Civil Appeals after COA final judgment
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Gov. Code 22.001: Jurisdiction:
SC has appellate juris. except in criminal law matters
Coextensive w/ the limits of the State and extending to all questions of law arising in the following cases when they have been brought to the COA from appealable judgments of the TC:
•A case which the justices of the COA disagree on a Q of Law material to the decision (Dissent Juris)
•COA’s decisions are different from prior decisions or the SC on a question of law (Conflict Juris)
A case involving the construction or validity of a statute necessary to determine the case
A case involving State revenue
A case in which the RRC is a party
Or any case in which it appears an error of law has been committed by the COA and error is of such importance to the jurisprudence of the State that the SC believes it requires correction. (Broad/See more often, the other situations are more specific and narrow)
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TSC: Factual Sufficiency Review:
Procedure at TC: Challenge w/ MNT
Directed Verdict = Legal Sufficiency
-- Does the TSC have app juris to review the factual sufficiency of the evidence?
Pool v. Ford: If constitutional conflict exists, it remains to the electorate of this State to eliminate the conflict (The rights of the COA to review for factual insuff. must continue undisturbed)
Gonzalez v. Avalos: To have juris on the grounds of conflict, it must appear the rulings in the two cases are so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the oder
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Direct Appeals from TC to TSC (Bypassing Appeals)
Gov. Code: 22.001(c), TRAP 57, and TWCC v. Garcia
The TX SC may hear a direct appeal from a TC’s order granting or denying a temp. or perm. injunction based on the grounds of a State’s constitutionality
A direct appeal can only resolve issues of law, not questions of fact
A direct appeal to the TSC and a regular appeal of the COA cannot be pursued at the same time
Description of Direct Appeal
Statement of Juris
-- Obviously: If the party is not aggrieved by the COA’s judgment they cannot appeal to the TSC.
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TRAP 53: Pet. for Review
More substantive than a NOA (basically a brief)
Filed w/SC Clerk
Serve Pet. for Review on all parties to the App. Court Judgment
Pay filing fee
Contents
Deadline
-- 45 days after app court judgment or denial for motion for rehearing or motion for en banc consideration TRAP 53.7
-- Motion to Extend Time: 60 days TRAP 53.7(f)
--- Petitions Filed by Other Parties: 30 days TRAP 53.7
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TRAP 53.2: Contents
Similar to app’s brief in COA
Differences:
- - Word limit – 4,500 if computer generated
- - Statement of juris is critical
- - Argument – Need not address every point or issue
How are you going to convince the SC to grant your pet?
- - Case is important to the jurisprudence of the State
- - Dissent/Conflict Juris
Statement of the Case
Statement of Juris
Issues Presented
Statement of Facts
Appendix
Summary of Arg.
Arg.
Prayer
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Who must file a Pet. for Review
A party who seeks more favorable relief than the relief granted by the COA
-- Cross petition
Court of appeals took away and awarded attorney’s fees, those could only be reinstated through a cross-pet.
-- Pet. and Cross Pet.
No need to file a response – not granted w/o one
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TRAP 53.3 Response:
10/15% of the petitions are granted each year
Just send quick letter to clerk stating that you will respond if requested
Response Deadline:
-- Voluntary Response: 30 days after Pet. for Review TRAP 53.7
Extension to File Response TRAP 53.7
Court will state to act on the pet. for review after 30 days when no letter or response is filed. The Clerk’s office holds the pet. for the initial 30 day period.
-- Required Response: The SC will give you 30 days to file
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TRAP 53.3 and 53.4: Issues Presented
Cross Points or Cross Point Issues
Independent grounds/same judgment
Independent grounds/less favorable judgment
Points not considered in the COA
Arg.
Convince the court not to exercise its juris TRAP 56.1(a)
Pet Reply Response 53.5
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TRAP 55: Briefs on the Merits
Not filed unless requested by the SC
- - Requested before granting pet.
- - Requested after granting pet.
- - SC will set a briefing schedule
- - More detailed version of the Pet. for Review and Response
- - More extended arg. section that covers all the issues
The record is not filed w/the clerk of the SC unless it is requested by the SC (TRAP 54)
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Pet. for Review NOT granted
Pet. Denied
Pet. Dismissed W.O.J
Pet Refused – Court of Appeals Opinion has the Same precedential value as opinion of the SC
-- Only made after a response has been filed or requested
Motion for Rehearing
Clerk of the COA issues the mandate
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Pet. for Review Granted:
Briefing
Oral Argument
Opinion
Judgment
Motion for Rehearing TRAP 64
- - 15 Days
- - Extension of Time
Clerk of the SC issues mandate
Rule 58: Discusses the TSC is open to looking at cert. for fed. court
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TRAP 53: Securing App. Review for the Merits:
Pet. for Review: Filed w/in 45 days following:
- - Date the COA rendered judgment if not motion for rehearing or motion for en banc reconsideration is timely filed
- - The date of the COA’s last ruling on all timely filed motions for hearing and all timely filed motions for en banc reconsideration
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TRAP 49: Motion for Rehearing in the COA
Timely filed w/in 15 days after the COA’s judgment is ordered or rendered
-- Further motion may be filed w/in 15 days of the COA’s action if the court:
• Modified its judgment
• Vacates its judgment and renders a new judgment
• Issues a new opinion
-- May extend if a party files a proper motion for an extension TRAP 10.5
•No later than 15 days after the last date for rehearing in the COA after that party has filed a pet. for review – unless the COA modifies its opinion or judgment after the pet. for review is filed.
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Gov. Code 21.001: Inherent Power and duty of Courts
A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue these writs and orders necessary or proper in aid of its juris
-- May issue:
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Gov. Code 22.002 (Writ of madamus)
Stat. cc
Stat Probabte Court
D Judge
Officers of Exect. Departments of the gov. of this State to order or compel the perfrormance of a judicial, ministerial, or discretionary act or duty that, by State law the officer or officers are authorized to perform
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Where are the court's actively involved in mandamus?
Courts would be involved if there was an arb. agreement and parties request jury – Court would step in likely
Broader Pattern: If there is a substantive right that is denied if you do not grant mandamus relief!
Discovery – Trade secrets, privileged information – if compelled party is aggrieved if the TC says to turn them over
Disqualification of Judge
Disqualification of Lawyer
Sanction orders
Void order
Order denying dismissal based on forum non conveniens
Order denying dismissal based on a TC’s refusal to enforce a contractual form selection clause
Nonsuits
Venue Rulings
Orders granting new trials
Contractual jury waiver provision
