YOUR TRIAL IS OVER—NOW WHAT? GUIDANCE ON …smithlawgroup.default.wp1.lexblog.com/files/...05-YTIO-TexasBarCLE...GUIDANCE ON PERFECTING AND PURSUING ... appellate review. A committed

YOUR TRIAL IS OVER—NOW WHAT? GUIDANCE ON PERFECTING AND PURSUING

A STATE CIVIL APPEAL

AMANDA G. TAYLOR Hohmann, Taube & Summers, L.L.P.

100 Congress Avenue, 18th Floor Austin, Texas 78701

(512) 472-5997 [email protected]

D. TODD SMITH Smith Law Group, P.C.

1250 Capital of Texas Highway South Three Cielo Center, Suite 601

Austin, Texas 78746 (512) 439-3230

[email protected]

TexasBarCLE Webcast February 5, 2013

Austin, Texas

Background:

Vanderbilt University (2001), cum laude, B.A. in Political Science & Sociology

Baylor Law School (2004), cum laude, Law Review & Moot Court Competition Team

Third Court of Appeals (2004–2007), Law Clerk & Staff Attorney

Hohmann, Taube, & Summers, LLP (2007–current), Associate

Travis County Women Lawyers Association (2007–current), Board Member & Past President

Austin Bar Association (2004–current), Civil Litigation & Civil Appeals

Expertise:

Amanda divides her time between litigation and appellate practice, focusing on commercial, consumer, and employment disputes such as: breach of contract, shareholder issues, fiduciary duties, DTPA, fraud/misrepresentation, property disputes, and employment discrimination. Amanda has also served as appellate counsel on family law and tax matters.

During her five years at HTS, Amanda has served as lead appellate counsel on more than a dozen appeals and as appellate co-counsel on least a dozen more. As an appellate practitioner, Amanda handles it all, including: post-judgment and supersedeas matters, perfection of appeal, full briefing on the merits, oral argument, and post-appeal activity.

Amanda uses the latest e-filing technology as new tools for effective advocacy in the appellate courts. Amanda’s briefs are electronically bookmarked, hyperlinked, and incorporate color charts and graphs to persuasively convey arguments, where appropriate.

Amanda successfully tried (as second-chair) an employment discrimination case to a Travis County jury, resulting in awards of $668k+ in damages and $221k+ in fees.

At the trial level, Amanda has significant experience in: motion and hearing practice (MSJ, jurisdiction, discovery, civil procedure); taking and defending depositions; written discovery; jury charges; mediation; and settlement. Amanda is frequently consulted on preservation of error and other appellate considerations at the trial level.

Amanda Garrett Taylor Civil Litigation and Appeals

Hohmann, Taube & Summers, LLP 100 Congress Ave., Suite 1800

(512) 472-5997 [email protected]

D. Todd Smith is the founder and president of the Smith Law Group, P.C., a civil appellate boutique with offices in Austin and McAllen, Texas. He launched the firm in 2006 after spending nearly a decade in the Dallas and Austin offices of Fulbright & Jaworski L.L.P., where he was a member of the appellate and litigation practice groups. Smith earned degrees from Texas Christian University, Texas Tech University, and St. Mary’s University School of Law, where he was editor-in-chief of the St. Mary’s Law Journal. Before joining Fulbright,

he served a two-year clerkship with Texas Supreme Court Justice Raul A. Gonzalez. Smith has a statewide practice representing plaintiffs and defendants in all phases of civil appeals and original proceedings. He has handled cases before most of the fourteen intermediate Texas appellate courts, the Texas Supreme Court, and the United States Courts of Appeals for the Fifth, Seventh, and Tenth Circuits. He is also admitted to the United States Supreme Court bar. A significant part of Smith's practice takes place in trial courts, where he advises other lawyers and their clients and often serves as additional counsel of record. When engaged as a litigation consultant, he assists trial counsel with strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review. A committed bar leader, Smith has chaired the Austin Bar Association's Civil Appellate Law and Solo/Small Firm Sections and now serves on the ABA Board of Directors. He recently completed a three-year term on the State Bar Appellate Section’s governing council and is former editor of its flagship publication, The Appellate Advocate. He is a fellow of the Texas Bar and Austin Bar Foundations and serves on the St. Mary’s Law Alumni Board of Directors. Smith is a regular author and speaker on appellate-related topics and teaches an appellate practice and procedure course at Solo Practice University, an online resource for law students and lawyers looking to start their own firms. He is the creator and publisher of the Texas Appellate Law Blog (www.texasappellatelawblog.com), the first website of its kind to focus on Texas appellate practice. Smith is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization. In 2011 and 2012, he was recognized as a Fifth Circuit litigation star in Benchmark Appellate: The Definitive Guide to America’s Leading Litigation Firms and Attorneys. The same publication listed Smith Law Group as a recommended Fifth Circuit litigation firm.

CONTENTS I. INTRODUCTION ................................................................................................................................. 1 II. OBTAINING AN AWARD OF APPELLATE FEES AT TRIAL ....................................................... 1 III. FORMULATING OR OPPOSING A FINAL JUDGMENT ............................................................... 3 IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW ................................................................... 6 V. PRESERVING ERROR POST-TRIAL ................................................................................................ 9 VI. ENFORCING AND SUPERSEDING THE JUDGMENT ................................................................ 11 VII. GETTING THE APPEAL STARTED—INITIAL DEADLINES, PERFECTION OF APPEAL, AND THE APPELLATE RECORD .................................................................................................. 13 VIII. ADVISING THE CLIENT ON REALISTIC APPELLATE EXPECTATIONS .............................. 18

1

I. INTRODUCTION This paper and the accompanying presentation

review several issues that become critical once a jury has reached its verdict or the court has announced its decision following a bench trial. The discussion will focus on strategies for obtaining appellate attorney fees, formulating and opposing a final judgment, post-verdict preservation of error, securing findings of fact and conclusions of law, enforcing and superseding the judgment, and the initial steps toward taking an appeal. The paper concludes with some tips on managing the client’s expectations about the prospects for a successful appeal.

II. OBTAINING AN AWARD OF APPELLATE

FEES AT TRIAL Before you get a verdict, you need to carefully

consider appellate attorney fees. Many trial lawyers (and some trial courts) underestimate the amount of time actually involved in pursuing an appeal. But when appellate fees are low-balled, the client may be left unable to recover a certain amount of his or her incurred fees, even if successful on appeal. Thus, we encourage you to take time in making a realistic assessment of the fees that will be involved, based on the guidelines below, and to properly prove up that amount at trial. You can always consider hiring an appellate lawyer as a consulting or testifying expert for this purpose!

A. Common Myths in Estimating Appellate

Fees There must have been a form book somewhere that

recommended seeking conditional fees of $5,000 for an appeal to the court of appeals and $7,500 for an appeal to the Texas Supreme Court, because we see this all the time, despite its disconnect from reality. Maybe these low estimates derive from the following (all too common) analysis: “This appeal will be easy. We already did all the research and drafting for the summary judgment motion. We just need to turn that into a brief, which we could do in a day, and we’ll be done.”

Not so fast. No matter how great you feel about your prior work, your appellate brief should not be simply a “copy and paste” of your previous motion/response, and there will be more involved than just drafting a single brief. Your arguments on appeal should be a given fresh perspective and drafted for a new audience; your legal research should be updated and/or revised; your record should be reviewed anew and in full; and your brief should be afforded several rounds of edits. You must take off your “trial goggles”1 1 “Trial goggles” are much like “beer goggles”: Your intoxication with the “thrill of the case” causes a distorted view of the facts and legal authorities that you are arguing, causing you to lose objectivity. In this analogy, the court of appeals is like the cop who approaches you on your

and think about the facts and issues from the perspective of the appellate justices. Even in a one-issue case, this is going to take more than a day.

B. How to Estimate a Reasonable Amount of

Appellate Fees When preparing an appellate fee estimate, it is best

to start by categorizing the five phases that you are likely to encounter (post-judgment, intermediate appeal, petition to supreme court, briefing in supreme court, and post-appeal activity), and then break down what steps you anticipate will be involved within each phase. From there, you can estimate how many hours will likely be required for each step, and multiply that by the billable rate of the attorney who will be doing the work. If more than one attorney will be involved, remember to calculate time for all participants, even if it is 10 hours of work by one, followed by 2 hours of review and editing by another. Remember also that appellate fees are usually awarded on a conditional basis, meaning that you are not entitled to collect them unless you actually engage in the activity, and ultimately prevail.

Although some rough estimates of time are provided below,2 not every step will be required in every case, and the individual components will be specific to every case. Obviously, the complexity of the issues will impact how much time the individual steps will likely require. Essentially, the estimates below reflect amounts that we would, generally speaking, see as reasonable and not “shockingly” high or low.

1. Post-judgment: Fees may include a motion for

new trial, JNOV, or to modify/correct/reform; a request for findings/conclusions in a bench trial; and supersedeas or execution/collection activity. Remember to include time for both preparation of these documents, and attendance at any hearings. Reasonable estimate: 5-25 hours.

2. Intermediate Appeal: Your appeal to the

intermediate court of appeals is where the bulk of your appellate fees will be incurred. The steps will vary depending on whether you are the appellant or appellee, or if the parties are cross-appealing. And again, the amount of time required will vary widely based on the complexity/number of issues involved. Steps may include: (1) Perfection of appeal (notice of appeal, docketing statement, and request for clerk’s and reporter’s records), 2-5 hours; (2) Pre-briefing activity way out of the bar. Time to look at your situation from a new perspective! 2 We have provided estimates of hours required, rather than total fees involved, to allow individual practitioners to estimate what may be involved based on their billable rates.

Your Trial Is Over—Now What?

2

(full review and annotation/outline of appellate record, outline of appellate argument), 7-20 hours; (3) Legal research (this will be required throughout your appeal as issues develop, but should be done comprehensively on the front end), 7-20 hours; (4) Drafting and editing of appellant’s or appellee’s brief (remember if there are cross-appeals, you will be drafting one of each), see TRAP 38.1,3 15-50 hours; (5) Review opponent’s brief (read, cross-check record citations, review cited legal authorities, and annotate or outline responsive points), 3-10 hours; (6) Drafting and editing of reply brief (which should not re-state your prior arguments but, instead, focus specifically on points raised by opponent), 5-20 hours; (7) Review opponent’s reply brief (inclusive of steps above), 2-5 hours; (8) Oral argument (review all prior briefs, update legal research, prepare/revise OA outline, practice, practice, practice; attend OA and present argument), see TRAP 39, 10-30 hours; (9) Motion for Rehearing/Rehearing En Banc (prepare or respond to), 2-15 hours; (10) Miscellaneous (prepare or respond to misc. motions on appeal, conferences with client and opposing counsel, review of court’s opinion and other rulings), 3-10 hours. Total reasonable estimate: 56-185 hours.4

3. Petition to Supreme Court: If either party is

dissatisfied with the court of appeals’ opinion, and the issue is one within the supreme court’s jurisdiction,5 then he or she can file a petition for review in the supreme court. TRAP 53.2. Drafting the petition is an important step and should be given careful attention. Again, “copying and pasting” from prior work is ill-advised, especially considering that the intermediate court was not persuaded by that argument. No response to the petition is needed (other than a short letter), unless requested by the supreme court. TRAP 53.3. If a response is requested, it also requires careful attention. Reasonable estimate: 10-20 hours.

4. Briefing in Supreme Court: The supreme

court grants petitions for review in only a small number of cases. (In 2012, of the 787 filed, only 102 were

3 For brevity, this paper refers to the Texas Rules of Appellate Procedure as “TRAP” and the Texas Rules of Civil Procedure as “TRCP.” 4 Remember, to reach the total high estimate, you would have to do every single step noted, for the maximum amount of time estimated. This might be required in a complex case, with multiple issues, or a case with a very large record, or one involving issues of first impression. But for an average appeal, the more likely scenario is a time estimate somewhere in the middle, or on the lower end. 5 See TRAP 53.1(e); Tex. Gov’t Code § 22.001.

granted. See “Appellate Statistics” as linked on the supreme court’s website, http://www.supreme.courts.state.tx.us/). And even if the court grants the petition, it may not request full briefing on the merits. TRAP 55.1. However, if full briefing on the merits (and possibly oral argument) is required, the estimates will be similar to those set forth at the intermediate stage. The issues for review may be narrowed at this stage, and you are not starting from scratch with the review of the record and legal research, so that will likely result in a reduced estimate.

5. Post-Appeal Activity: Many practitioners

forget to include time for what happens after the mandate has issued from court of appeals/supreme court. Likely, there will be some activity required to enforce the ultimate judgment, and possibly further activity in the trial court (such as a hearing on damages or a complete new trial). See TRAP 51. Because of the wide range of possibilities, the time is nearly impossible to estimate, but you might want to include some number for this category in your proof of conditional fees. If nothing else, this category of time and expense should be considered when advising the client.

C. How to Secure a Judgment Awarding Your

Appellate Fees Now that you know what you are asking for, how

do you get it? First, you need to think about this before your expert designation deadline. If you are designating an attorney-fee expert, make sure that the lawyer can also (credibly) testify to appellate fees, and make sure your designation covers this opinion. If your case is large or complex, it may merit the designation of a separate appellate fee expert. Other options would be to engage an appellate lawyer as a consulting-only expert, or name an appellate attorney as part of the trial team. This can be helpful not only in analyzing fees, but also in consulting on dispositive motions, the jury charge, and preservation of error. You should also research and cite the court to other cases in which fees consistent to your estimates have been awarded. See, e.g., Isaacs v. Bishop, 249 S.W.3d 100, 116 (Tex. App.—Texarkana 2008, pet. denied) (awarding conditional appellate fees of $50,000 through intermediate appeal and $35,000 for an appeal to the Texas Supreme Court). Of course, the cases will be most persuasive if they are from your governing jurisdiction and involve similar claims.

Second, you need to make a strategic decision about whether to prove up your fees as part of your case-in-chief or in a bifurcated proceeding thereafter. It is likely that evidence of a conditional fee award will be better-received by a judge than a jury, but that is a strategic decision to make based on your facts and


3

jurisdiction. Third, you need to put on the evidence, just as with trial attorney fees. This can be handled through a live witness or, in some scenarios, via an affidavit, or a combination of the two. See Tex. Civ. Prac. & Rem. Code § 18.001-.002. Fourth, you need to make sure the specific fee awards are included in the judgment, as discussed further below.

III. FORMULATING OR OPPOSING A FINAL

JUDGMENT

A. Motions for Judgment: To File or Not to File?

Although any party may propose a judgment under TRCP 305, the party in whose favor the verdict or decision was returned customarily proposes a judgment to the trial court, subject to the opposition’s comment and objection. A motion for judgment is not required, but may provide context and, if needed, something to set for hearing to re-focus the trial court’s attention on the case. Motions for new trial or to set aside jury findings or the verdict often serve the same purpose.

A party planning to appeal should think twice about moving for judgment, as anything less than careful drafting could lead to waiver. One way to accomplish this is to expressly state that you agree to only the “form” of the proposed judgment, while maintaining your complaints about its “content and result.” In First National Bank of Beeville v. Fojtik, the supreme court held that the plaintiffs/appellants preserved their complaints on appeal when they submitted a proposed judgment with the following, express caveat:

While Plaintiffs disagree with

the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result.

775 S.W.2d 632, 633 (Tex. 1989) (per curiam).

A losing party who feels compelled to move for

judgment or who submits a proposed judgment to the trial court should always include similar language. Otherwise, the party risks waiving appellate rights. See, e.g., Bray v. Tejas Toyota, Inc., No. 03-11-00223-CV, 2012 WL 370571, at *8 (Tex. App.—Austin Feb. 2, 2012, no pet.) (mem. op.) (holding that party who prepared final order at court’s request waived its appellate arguments because it “never complained

about the trial court’s implied disposition of the good-faith claim or otherwise noted any disagreement with the disposition stated in the judgment”); Sincerely Yours, L.P. v. NCI Bldg. Sys., L.P., No. 07-10-00280-CV, 2011 WL 446188, *1-2 (Tex. App.—Amarillo Feb. 8, 2011, pet. denied) (mem. op.) (granting appellee’s motion to dismiss appeal from a judgment that appellant had requested without disclaimer); DeClaris Assocs. v. McCoy Workplace Solutions, L.P., 331 S.W.3d 556, 561 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that appellant who joined motion for judgment did not invite error because it was unlikely that joinder misled trial judge or opponent under circumstances presented). Whenever possible, the better course is to simply object to the form of judgment the opposition has proposed.

B. Judgment Elements Checklist This section provides a brief overview of the basic

elements of a final judgment. In-depth articles have been written on this topic. For a good example, see Anne M. Johnson, Formation of the Judgment (available at http://www.haynesboone.com), from which parts of this discussion are excerpted.

1. The Parties: The judgment should “contain the

full names of the parties, as stated in the pleadings, for and against whom the judgment is rendered.” TRCP 306. The best practice is to identify the parties in the body of the judgment, but failure to do so may be disregarded if the caption, the record, the pleading, and the process otherwise establish their identity. Gomez v. Bryant, 750 S.W.2d 810, 811 (Tex. App.—El Paso 1988, no writ).

2. Description of the Proceedings: Generally, an

appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). A judgment that disposes of all pending parties and claims in the record is plainly final. Id. at 195. However, a judgment following a conventional trial on the merits is presumed final, even if it does not expressly dispose of all issues and claims. See Northeast Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966) (“the Aldridge presumption”).

The Aldridge presumption arose out of the supreme court’s concern that the right to appeal was too often abridged by judgments that were poorly drafted or unclear. Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (per curiam). When the presumption applies, “[f]inality must be resolved by a determination of the intention of the court [as] gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.” Lehmann, 39 S.W.3d at 203 (internal quotations omitted).

The careful litigator will not rely on a presumption


4

to save finality. By the time you and your client have gone to the trouble and expense of trying a case to a jury or court, it is wise to invest the additional effort necessary to make sure the judgment disposes of all claims and parties on its face. Take the live pleadings and make sure every claim, counterclaim, and cross-claim is addressed.6 If the trial court made pretrial or trial rulings that help put the case in context, such as a partial summary judgment or directed verdict on one or more theories, specifically refer to and incorporate those rulings into the final judgment. Doing so will ensure clarity and help avoid having to persuade the appellate court that the judgment is indeed final.

3. Any Relief on the Merits: An award of money

damages must state with certainty the amount recovered or furnish means by which the damages can be determined. El Universal, Compania Periodistica Nacional, S.A. de C.V. v. Phoenician Imports, Inc., 802 S.W.2d 799, 802 (Tex. App.—Corpus Christi 1990, writ denied). A decree from which a recovery cannot be ascertained is too vague to constitute a final judgment and will be considered interlocutory. Disco Machine of Liberal Co. v. Payton, 900 S.W.2d 71, 73 (Tex. App.—Amarillo 1995, writ denied); H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. App.—Corpus Christi 1991, no writ).

A judgment disposing of property should describe the property with reasonable certainty, so that an officer executing a writ of possession may ascertain the boundaries of the land. Dellana v. Walker, 866 S.W.2d 355, 358 (Tex. App.—Austin 1993, writ denied).

Damage awards, including awards of actual and punitive damages and pre-judgment interest, should be clearly apportioned among the individual parties. If the awards are several, then several liability must be clearly stated. Conversely, if the awards are joint and several, then joint and several liability must be clearly stated.

A party seeking redress for a single wrong under two or more theories of recovery must elect one remedy before the trial court renders judgment. See Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Kish v. Van Note, 692 S.W.2d 463, 466-67 (Tex. 1985). This concept derives from the “one satisfaction” rule, which bars double recovery for the same injury. See Stewart Tit. Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991). When the prevailing party fails to make an election, the trial court should render judgment on the theory that affords the greatest relief available to that party. See Parkway v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995); Birchfield, 747 S.W.2d at 367; see also TRCP 301 (“The judgment . . . shall be so framed

6 Careful drafting of the jury charge using a similar process will make preparing or objecting to a proposed final judgment simpler.

as to give the party all the relief to which he may be entitled.”). The judgment can, however, reflect calculations for the alternative claim. This would allow the appellate court to render on the alternative claim in the event it sets aside the claim on which judgment was based.

If the defendant prevails on alternative defenses, he should obtain a judgment that sustains his alternative defenses. By obtaining a judgment that reflects denial of recovery on alternative grounds, the defendant may avoid remand if a ground is reversed on appeal. See Oak Park Townhouses Gen. P’ship v. Brazosport Bank, 851 S.W.2d 189, 190 (Tex. 1993)

If the defendant prevails in a counterclaim against the plaintiff in an amount exceeding plaintiff’s recovery, the judgment must award the difference to the defendant. TRCP 302.

4. Any Attorney Fees Awarded: If properly

pleaded and proved, a judgment may include an award of attorney fees. The availability of attorney fees is a question of law, but the proper amount of fees is a question of fact. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999).

A judgment may award appellate attorney fees one of two ways. The prevailing method is to award a specific sum for legal work performed through trial and allow for additional specified amounts in the event of appeal. See Seureau v. Mudd, 515 S.W.2d 746, 749 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.). Alternatively, a judgment may state a total fixed amount for all attorney fees in both the trial court and appellate courts that is subject to remittitur if no appeal is taken. Int’l Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971); Long v. Fox, 625 S.W.2d 376, 379 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.). Either type of award is appropriate as long as the total attorney fees can be determined with certainty.

Based on the different activities involved in handling an appeal, you may want to insert blanks in your proposed charge or judgment or otherwise break the stages down for the fact-finder like this:

• reasonable attorney fees through the last day of

trial;

• legal services in connection with the preparation of a proposed final judgment, motion for judgment, and submission to the jury or court;

• legal services in connection with post-trial proceedings, including any motion for new trial, motion for JNOV, motion to disregard jury findings, motion to modify the Court’s


5

final judgment, or motion relating to superseding or enforcing the final judgment;

• legal services if an appeal is taken to the court of appeals;

• legal services in the event oral argument is held in the court of appeals;

• legal services if a petition for review is filed with the Texas Supreme Court;

• legal services if the supreme court requests briefing on the merits; and

• legal services if oral argument is held in the supreme court.

Judges, as well as lawyers, need to be broken of the “form book mindset” that has tended to downplay the cost of an appeal. See supra, Section II. Separating out the activities necessary to adequately handle an appeal provides an opportunity to advocate the need for a considerable fee award based on the realities of appellate practice. It also may reduce the need for a remand if the appellate court finds fault with evidence supporting part of the award.

The judgment should include language making appellate fees conditional upon successfully defending against or pursuing an appeal (i.e., “in the event that [opponent] files a notice of appeal but does not ultimately obtain a reversal of the final judgment” or “in the event of a successful appeal to the court of appeals”). Fees for further activities in the trial court that may or may not be necessary should be made conditional as well. If the judgment does not include such “conditional” language, and your opponent complains about it on appeal, the court of appeals will routinely correct that portion of the judgment to make any recovery conditioned upon a successful outcome. See, e.g., 271 Truck Repair & Parts, Inc. v. First Air Express, Inc., No. 03-07-00498-CV, 2008 WL 2387630, at *10 (Tex. App.—Austin June 11, 2008, no pet.) (mem. op.); Sparks v. Booth, 232 S.W.3d 853, 872-73 (Tex. App.—Dallas 2007, no pet.).

5. Pre-judgment Interest: Pre-judgment interest

is “that interest calculated on the sum payable to the plaintiff from the time of his loss to the time of judgment.” Republic Nat’l Bank v. Northwest Nat’l Bank, 578 S.W.2d 109, 116 (Tex. 1978). If pre-judgment interest is awarded, it should be calculated in the judgment.

Pre-judgment interest begins to accrue the earlier of 180 days after written notice of the claim or the date on which suit was filed. Tex. Fin. Code § 304.104. It

stops accruing the day before the judgment is signed. See id.; Chapman v. Coker Equip. Sales, Inc., No. 07-04-00333-CV, 2006 WL 212091, at *2 (Tex. App.—Amarillo 2006, pet. denied) (mem. op.). Different rules apply when a settlement offer was extended. See Tex. Fin. Code §§ 304.104, 304.105.

Pre-judgment interest is computed as simple interest. Tex. Fin. Code § 304.104. As amended in 2003, the Finance Code ties pre-judgment and post-judgment interest rates to the prime rate published by the Federal Reserve Bank of New York, creating a floor of five percent and a ceiling of fifteen percent for both types. See id. § 304.103. The precise rate is determined at the time of judgment and can be conveniently determined by referring to the Texas Credit Letter, which is published online at http://www.occc.state.tx.us. These rates apply to all claims not otherwise governed by contract or statute. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514, 530 (Tex. 1998).

Pre-judgment interest is generally not available on future damages,7 exemplary damages,8 additional statutory damages,9 or attorney fees and costs.10

6. Post-judgment Interest: Post-judgment

interest is intended to compensate for a judgment creditor’s lost opportunity to invest the money awarded as damages at trial. See Miga v. Jensen, 96 S.W.3d 207-212 (Tex. 2002). Post-judgment interest begins to accrue on the date a judgment is rendered and ends on the day the judgment is satisfied. Tex. Fin. Code § 304.005(a). However, post-judgment interest is tolled for the period of time a plaintiff is granted an extension to file an appellate brief. Id. § 304.005(b).

All post-judgment interest in Texas is compounded annually. Tex. Fin. Code § 304.006. If the judgment is based on a contract that provides a specific rate of interest, the judgment earns post-judgment interest at a rate equal to the lesser of the rate specified in the contract or 18 percent. Id. § 304.003. Otherwise, the post-judgment interest rate is the same as the pre-judgment interest rate determined under Finance Code section 304.103.

Although post-judgment interest should be specified in the judgment, several courts have held that

7 Tex. Fin. Code § 304.1045. 8 Tex. Civ. Prac. & Rem. Code § 41.007. 9 St. Paul Surplus Lines, Inc. v. Dal-Worth Tank Co., 974 S.W.2d 51, 54 (Tex. 1998). 10 Ellis County State Bank v. Keever, 888 S.W.2d 790, 797 (Tex. 1994).


6

post-judgment interest is recoverable whether or not specifically awarded in the judgment. See, e.g., Phillips v. B.R. Brick & Masonry, Inc., No. 01-09-00311-CV, 2010 WL 3564820, at *11 (Tex. App.—Houston [1st Dist.] Sept. 10, 2010, no pet.) (mem. op.); Innovative Truck Storage, Inc. v. Airshield Corp., No. 13-05-743-CV, 2007 WL 1775962, at *8 (Tex. App.—Corpus Christi June 21, 2007, no pet.) (mem. op.); RAJ Partners, Ltd. v. Darco Constr. Corp., 217 S.W.3d 638, 653 (Tex. App.—Amarillo 2006, no pet.).

7. Costs: “The successful party to a suit shall

recover of his adversary all costs incurred therein, except where otherwise provided.” TRCP 131. A trial court may assess costs in a manner different from what Rule 131 requires only “for good cause, to be stated on the record.” TRCP 141; see Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001).

Statutes and case law delineate chargeable costs. Sterling Bank v. Willard M, L.L.C., 221 S.W.3d 121, 124 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Allen v. Crabtree, 936 S.W.2d 6, 7-8 (Tex. App.—Texarkana 1996, no writ)). “Costs” generally refers to charges or fees required by law to be paid to courts or their officers in an amount fixed by statute or court rules. Id.; Shaikh v. Aerovias de Mexico, 127 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see Tex. Civ. Prac. & Rem. Code § 31.007(b) (listing permissible items, including “such other costs and fees as may be permitted by these rules and state statutes”).

The judgment can either state the amount of costs, or state generally that costs are awarded against a certain party. After the judgment is signed, the clerk will send a cost bill to the party against whom costs were taxed. TRCP 129.

8. Execution: The judgment should provide for

execution with a sentence such as the following: “All writs and processes for the enforcement and collection of this judgment or the costs of court may issue as necessary.” See TRCP 308.

9. Language of Finality: In Lehmann, the Texas

Supreme Court rejected Mother Hubbard clauses as definitive indicators of finality. Despite the Aldridge presumption attaching to conventional trials on the merits, a careful practitioner preparing a form of judgment will nonetheless include something resembling the following language: “This judgment finally disposes of all parties and all claims and is appealable.” See Lehmann, 39 S.W.3d at 206. When appropriate, language such as a party “takes nothing” should also be included. See Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam); Clark v. Pimienta, 47 S.W.3d 485, 486 (Tex. 2001) (per

curiam).

10. Date and Signature Line for Judge: The judgment should include a line, immediately above the signature line for the judge, which reads: “Signed this ___ day of ________, 2012.” The word “signed” should be used (instead of “entered” or any other word) because the appellate timetable runs from the signing of a final, appealable judgment. TRCP 306a(1); TRAP 26.1.

A signature line for the lawyers is not a condition precedent to entry of the judgment by the trial court. Sigma Sys. Corp. v. Electronic Data Sys. Corp., 467 S.W.2d 675, 677 (Tex. Civ. App.—Tyler 1971, no writ). Consistent with the discussion in Section III(A) above, unsuccessful counsel who choose to sign their approval of proposed judgments should include the notation “Approved Only as to Form” or “Approved Only as to Form and Not as to Substance” to confirm their reservation of the right to appeal the judgment. See Bexar County Criminal Dist. Attorneys Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

IV. FINDINGS OF FACT AND CONCLUSIONS

OF LAW A request for Findings of Fact and Conclusions of

Law (“FOF” and “COL”) seems simple in theory, but can create large amounts of confusion (and potential error) in practice. This paper covers the basic rules and provides helpful tips. For more detail, you are encouraged to consult an appellate lawyer and/or review the following paper: David E. Keltner and Jody S. Sanders, Findings of Fact and Conclusions of Law, STATE BAR OF TEXAS, HANDLING YOUR FIRST CIVIL APPEAL (2012).

A. The Big Picture: Purpose and Effect of Findings and Conclusions

Before diving into the procedural rules, it is helpful to understand the big picture: If you are the winning party, you would rather not have FOF/COL at all because, without them, the court of appeals can uphold your favorable judgment on any legal theory that is supported by the evidence. (This is akin to a summary judgment order that does not specify the grounds for its grant). However, if the losing party properly and timely requested FOF/COL, then it is your job as the winner to help the trial court issue a set of FOF/COL that are free from reversible error. Draft them with care, making sure that there is consistency between the pleadings, the proof, the judgment, the law, and the proposed FOF/COL. Just as you would do in crafting a jury charge, pull out all of the live pleadings and make sure that each claim and element line up with the evidence that was offered and the arguments that were


7

made at trial, and that you have covered all of the essential elements in your FOF/COL.

On the flip side (and this is where most head-scratching begins), if you are the losing party, you want a whole slew of improper FOF/COL to be entered against you. Yep, that’s right…. You are hoping for entry of FOF/COL that are inaccurate and not supported by the pleadings, the record, or the law because those improper FOF/COL are your ticket to reversing the adverse judgment on appeal. One caveat here is the potential for waiver if you do not (and previously never have) voiced an objection such inaccurate facts and theories. The procedure and strategy of objecting to FOF/COL is covered in more detail below.

Another (and perhaps primary) benefit of FOF/COL for the losing party is to narrow the issues for appeal. If there are multiple claims and/or defenses, the basis for the relief awarded by the court might not be obvious from the judgment. In that event, you would be left to guess at the basis for the ruling, and would have to overcome every possible theory on appeal to get the judgment reversed.

Finally, a proper and timely request for FOF/COL will extend the deadline for perfecting appeal if (1) FOF/COL are required or are otherwise properly considered in the particular circumstance (as addressed in the next section) and (2) the judgment from which you are appealing is not interlocutory. Tex. R. App. P. 26.1, 28.1. The period of extension is just the same as when filing a Motion for New Trial or other type of deadline-extending post-judgment motion (see infra, Section VI): The deadline to file your notice of appeal extends from 30 days to 90 days after the judgment is signed.

B. Circumstances in Which to Request

Findings and Conclusions It is not appropriate to request FOF/COL in every

case. Bench trials are the most common scenario for FOF/COL. Following a conventional trial on the merits to the bench, you are entitled to request FOF/COL, and the trial court is required to issue them (assuming you have properly and timely requested them). Tex. R. Civ. P. 296-97; Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907, 908 (Tex. 2004). This includes original mandamus proceedings in the trial court. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991). Likewise, in a bifurcated trial, with part of the case tried to a jury and another part (such as attorney’s fees) tried to the bench, FOF/COL should be requested and entered on the parts of the case decided by the court. See IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex. App.—San Antonio 2004, no pet.); Ins. Co. of St. Louis v. Bellah, 373 S.W.2d 691, 692 (Tex. App.—Fort Worth 1963, no writ).

In other circumstances, you may request FOF/COL, but the trial court has discretion over whether or not to issue them. These situations can be collectively thought of as appealable orders and judgments entered after an evidentiary hearing, such as rulings on a plea to the jurisdiction when evidence has been received, special appearance, motion to transfer venue, TRO/temporary injunction, sanctions, dismissal based on an untimely medical-expert report, class-action certification, setting the amount of a supersedeas bond, default judgments requesting liquidated damages, and motion for new trial if evidentiary. Also included in this group are appealable interlocutory orders. See Tex. R. App. P. 28.1(c). There are also specific rules in the Family Code governing entry of FOF/COL, which are outside the scope of this paper. See Tex. Fam. Code §§ 6.711, 154.130.

FOF/COL are not appropriate where judgment is rendered as a matter of law based on undisputed material facts (summary judgment, judgment notwithstanding the verdict, judgment following a directed verdict, and judgment in a case tried on fully agreed facts). IKB Indus., 938 S.W.2d at 442. The supreme court has also held that FOF/COL are not appropriate in the following circumstances: dismissal for lack of jurisdiction without an evidentiary hearing, dismissal on the pleadings, dismissal following special exceptions, dismissal for want of prosecution, default judgment awarding only liquidated damages, and any other final judgment rendered without an evidentiary hearing. Id. Notably, in these circumstances (where FOF/COL are not proper), a request for findings and conclusions will NOT EXTEND the appellate deadlines. See infra, Section VII.

C. How and When to Request and Secure

FOF/COL 1. The Initial Request: A “Request for Findings

of Fact and Conclusions of Law” must be filed with the trial court within 20 days of the date that the judgment or order is signed. Tex. R. Civ. P. 296. It must be titled as such. Id. If the request is prematurely filed before the judgment is signed, then it will be deemed to have been filed on the same day as, but immediately after, the judgment was signed. Tex. R. Civ. P. 306c.

As stated above, typically it is the losing party that should file the request. The request is a very simple document; it is not customary (or advisable, especially as the losing party) to file proposed FOF/COL in conjunction with the initial request.

The trial court’s first deadline to file FOF/COL is 20 days from the date of the first request. Tex. R. Civ. P. 297. However, the standard practice of most trial courts (at least those encountered by the authors) is to not issue any FOF/COL on that first deadline.


8

Rather, you will need to jump through a few more hoops to preserve your right to the FOF/COL.

2. Submission of Proposed FOF/COL: Upon

receipt of the Request for FOF/COL, most judges will send a letter to the parties asking that the prevailing party submit proposed FOF/COL. Even if you do not receive an express request from the court, if you are the winning party, you should prepare and file proposed FOF/COL. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Draft the proposed FOF/COL carefully (as addressed above) and submit them a few days prior to the trial court’s first, 20-day deadline to issue the FOF/COL.

The FOF/COL must be in a separate document from the judgment, and if there is a conflict between any findings that were included in the judgment and any separately entered FOF, the latter findings will control for purposes of appeal. Tex. R. Civ. P. 299a.

Practice Tip: Most courts ask that you formally file your proposals with the clerk and also send a courtesy “word processing” copy (in Word or other format) directly to chambers so that the court can use the document without having to re-type everything. You must serve opposing counsel with copies of all communications that you exchange with the court. Otherwise, the communication is improperly ex parte. So, if you send a “courtesy copy” or drafts of proposals directly to chambers, make sure to include a cover letter copying the communication to all counsel.

The losing party is often tempted to file objections to the proposed FOF/COL filed by the winner. This reaction is normal: When you see the long list of proposals submitted by your opponent, which you believe are inaccurate and unsupported by the law/the record, of course you want to object to them. Not so fast! If you do, you will simply be helping your opponent (the winning party) by pointing out (and allowing her time to correct) the reversible errors on which you plan to base your appellate arguments. If any objections are required to preserve error (as addressed below), they should be lodged at the FOF/COL filed by the court, not proposed by your opponent.

3. The Second Request (“Past Due Notice”):

Assuming that the court does not issue FOF/COL within 20 days of the first request, then you must file a “Notice of Past Due Findings of Fact and Conclusions of Law” within 30 days of the date of your original request. Tex. R. Civ. P. 298. Failure to timely file this notice waives any error in the court’s failure to issue FOF/COL. Sonnier v. Sonnier, 331 S.W.3d 211 (Tex. App.—Beaumont 2011, no pet.). Notably, a prematurely-filed Notice of Past Due Findings will

NOT preserve your request, at least according to the Fourth and Ninth Court of Appeals. See Estate of Gordski v. Welch, 993 S.W.2d 298, 301 (Tex. App.—San Antonio 1999, pet. denied); Echols v. Echols, 900 S.W.2d 160, 161-62 (Tex. App.—Beaumont 1995, writ denied).

Following a proper Notice of Past Due FOF/COL, the court has 40 days from the date of the original request to file the FOF/COL. Tex. R. Civ. P. 297.

Practice Tip: Make sure to calendar the court’s deadline to issue the FOF/COL, and then follow up with the court if you have not received any FOF/COL within a day or two. Judges will sometimes sign them and give them to the clerk without specifically indicating that the document must be sent to the parties. Because the next deadline runs from the date that FOF/COL are filed by the judge, you need to make sure you are aware of the date on which that happens.

4. Request for Additional or Amended

FOF/COL (and Objections): Once the court files its FOF/COL, then either party can request additional or amended findings within ten days. Tex. R. Civ. P. 298. Your request should specifically state the additional or amended FOF/COL that you want the court to file. Id. The trial court then has 10 days from the date of the request to file any additional or amended FOF/COL. Id. The rules do not expressly contemplate filing objections to the court’s FOF/COL. However, it may be advisable to do so (within the same ten-day deadline) in certain cases, as addressed below.

(i) Why and How to Request Additional

Findings: If the court omits a finding on one or more (but not all) essential elements of a claim or defense, then the court of appeals can presume findings in support of the omitted elements if (1) the evidence in the record supports the omitted finding and (2) no party has requested that it be included (either in the original submission or the request for additional findings). Tex. R. Civ. P. 299. If you do not raise a complaint about the omitted finding(s), you waive the complaint. Jenkins v. Sims, 2007 WL 2682110 (Tex. App.—Texarkana 2007, pet. denied) (collecting cases).

Thus, if you are the losing party, you should request additional findings (and hope they contain reversible error) on the omitted elements because, otherwise, they are likely to be presumed in support of the judgment. However, remember that presumption does not apply if the omitted finding was requested (in the winning party’s original proposals), but the trial court specifically refused to include that finding. In that case, because the court “refused” to make the finding, the court of appeals will not presume it in support of the judgment.

Practice Tip: If you are the losing party and you are


9

submitting proposed (additional or amended) FOF/COL for entry by the court, include language in your submission that specifically qualifies that your request is made without waiving your arguments on appeal. Remember, you will be requesting FOF/COL that are adverse to you (i.e., in support of a judgment entered against your client), and you actually want there to be reversible error within the FOF/COL so that you can get the judgment reversed on appeal. Thus, you should make clear that, while you do not agree with the merits of the judgment against you, the additional/amended FOF/COL are necessary to clarify the basis of that judgment so that you may properly present your arguments on appeal, and the request is submitted without any intention to waive your right to complain on appeal about the error(s) contained in the judgment and/or the FOF/COL.

On the other hand, if the court has failed to make a single finding on any element of a claim or defense, then findings in support of that claim or defense will not be presumed in support of the judgment on appeal. Id. Thus, if you believe that you have prevailed on a claim or defense but the judge has failed to enter any FOF/COL in support (perhaps because you forgot to include them in your original submission of proposed FOF/COL), then you should request additional findings on each essential element of the missing claim(s) or defense(s) so that the judgment may be upheld in your favor on those grounds.

(ii) Objections and Requests for Amended FOF/COL: The rules provide even less guidance about why or how to request “amended” FOF/COL, and they are silent about filing objections to the FOF/COL entered by the court.

If you are the prevailing party (who wants to have your winning judgment affirmed on appeal), you may need to request amended FOF/COL to protect your judgment. For example, assume you are the prevailing defendant in a breach of contract case, and the court makes findings that the contract is not enforceable against you based on your statute of limitations affirmative defense. Specifically, the court finds that “the plaintiff’s claim accrued on January 1, 2010” and “plaintiff did not file suit until January 1, 2012,” and on the basis of this finding, concludes that “plaintiff’s suit is barred by the 4-year statute of limitations.” Clearly, one of the court’s findings is in error (perhaps by mistake). As the winner, you would want to request an amended finding such as “plaintiff’s claim accrued on January 1, 2001.”

If you are the losing party (who wants to have the judgment reversed on appeal), you may need to file objections (perhaps in conjunction with requests for amended FOF/COL to make corrections consistent with your objections) to preserve error on appeal. The

current case law leaves room for clarification of this issue. However, In re Kajima Intern., Inc., 139 S.W.3d 107 (Tex. App.—Corpus Christi 2004, no pet.) provides a logical and succinct analysis, hinged on the basic preservation of error rule, Tex. R. App. P. 33.1.

Pursuant to Rule 33.1(a), to preserve an issue for appeal, you must have timely and sufficiently raised the complaint with the trial court, and the court must have either ruled against you or refused to rule. Rule 33.1(d) provides that, in a bench trial, you can raise a complaint about the factual and legal sufficiency of the evidence for the first time on appeal, but the rule expressly distinguishes this from complaints that the court refused to enter amended or additional findings (thereby contemplating the filing of objections on this basis).

In Kajima, the appellant (Formosa) argued that the appellee (Kajima) had waived error by failing to file objections to the court’s FOF/COL (entered in regard to setting the amount of a supersedeas bond). The court of appeals rejected that argument and held that Kajima had preserved error under Rule 33.1 by objecting (and countering) the arguments made by Formosa at the trial court. Because Kajima had sufficiently made its complaint known to the trial court, and the trial court implicitly overruled it by granting Formosa’s motion, Kajima was not required to renew its complaint after entry of the trial court’s order.

There are other cases holding that error has been waived by the failure to object to FOF/COL and, at first blush, these would make it appear that such objections are required in all circumstances. But when these cases are examined more closely, they likewise hinge on the Rule 33.1 standard: When no complaint has otherwise been raised and preserved, then objections appear necessary to preserve the error; but if you have already argued these points/theories to the court and the court has already objected to them, then it does not appear necessary (or appropriate under the current rules) to require additional objections. See, e.g., Dunn v. Dunn, 177 S.W.3d 393 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (and cases cited therein); In re J.L., 2002 WL 31059854 (Tex. App.—San Antonio 2002, no pet.).

V. PRESERVING ERROR POST-TRIAL

Many types of error, such as evidentiary issues and defects in the jury charge, must be preserved at the appropriate stage during trial. However, there are a few rules to know for preserving error at the post-verdict stage of a jury trial. These are best analyzed according to whether the complaint on appeal will involve factual sufficiency of the evidence or legal sufficiency of the evidence, with a view to the general rule regarding preservation of appellate complaints. Under that rule, the record must show that the complaining party (1) made a valid, timely, and specific objection, request, or


10

motion; and (2) obtained a ruling, except when the motion is overruled by implication or operation of law. TRAP 33.1.11

A. Factual Sufficiency and Related Points—Motion for New Trial

Factual sufficiency points concede conflicting evidence, but assert that the evidence against the jury’s finding is so great as to make the finding erroneous. W. Wendell Hall et. al., Hall’s Standards of Review in Texas, 42 St. Mary’s L.J. 3, 40 (2010). Factual sufficiency points are designated as “insufficient evidence” or “great weight and preponderance” points, depending on who had the burden of proof at trial. Id. at 41.

The party with the burden of proof must allege that the jury verdict was against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). If the moving party had the burden on an issue that the jury failed to find, the motion should recite that the jury’s failure to find the fact is against the great weight and preponderance of the evidence. Id.

In a jury case, a complaint that the evidence is factually insufficient to support a jury finding must be raised in a motion for new trial. TRCP 301. A motion for new trial is also a prerequisite to raising a complaint (1) on which evidence must be heard (i.e., jury misconduct or newly discovered evidence), (2) about the inadequacy or excessiveness of damages, or (3) incurable jury argument not otherwise ruled upon by the trial court. TRCP 324(b).

A motion for new trial is due 30 days after the judgment is signed. TRCP 329(b). Be sure to pay the filing fee, as failing to do so waives factual sufficiency complaints. See Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004).

A motion for new trial can be overruled by operation of law—that is, without any ruling by the trial court. The motion is deemed overruled if the trial court does not act on it within 75 days after the judgment is signed. TRCP 329b(c).

11 When appealing from a non-jury trial, an appellant is not required to preserve allegations of legal or factual insufficiency. Renteria v. Trevino, 79 S.W.3d 240, 241-42 (Tex. App.—Houston [14th Dist.] 2002, no pet.); O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 248 (Tex. App.—San Antonio 1998, pet. denied). Those claims may be raised for the first time on appeal. Id. However, it is prudent to request findings of fact and conclusions of law under TRCP 296. Absent express, written fact findings, all findings necessary to support the judgment are implied. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

B. Legal Sufficiency Legal sufficiency points assert a complete lack of

evidence or conclusive proof on an issue and are designated as “no evidence” or “matter of law” points, depending on which party had the burden of proof at trial. Hall, Standards of Review, 42 St. Mary’s L.J. at 30-31. In reviewing legal sufficiency points, courts determine whether the evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

In a jury case, challenges to the legal sufficiency of the evidence must be preserved by one of the following devices: (1) a motion for directed verdict; (2) a motion for JNOV; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial specifically raising the complaint. Cecil v. Smith, 804 S.W.2d 509, 511 (Tex. 1991). Post-trial, three of these five options are available.

1. Motion to Disregard and for JNOV: The

losing party should usually file a combined motion to disregard all adverse jury findings and for JNOV as provided by TRCP 301. Rule 301 sets no deadline for these motions, but they are ordinarily filed before the trial court renders judgment and heard at the same time as any motion for judgment. The motion can also be filed after the judgment is signed and before it becomes final. The safe practice is to file a motion to disregard and for JNOV within the same thirty days allotted for a motion for new trial and to obtain an express ruling.

In addition to raising legal sufficiency, the losing party should consider moving to disregard each adverse finding as “immaterial.” Other bases for disregarding jury findings and for rendering a JNOV may exist, such as an affirmative defense or a statutory damages cap. “No duty” points should also be included if applicable.

2. Motion for New Trial: Although it may seem

counterintuitive, a motion for new trial will preserve error on a legal sufficiency point. See Cecil, 804 S.W.2d at 511. If only a motion for new trial is brought, however, the movant will be limited to that remedy. A party who preserves a legal sufficiency challenge by a motion for new trial is entitled at most to a remand rather than rendition of judgment on appeal. Brown v. Traylor, 210 S.W.3d 648, 659 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

C. Motion to Modify, Correct, or Reform the

Judgment A motion to modify, correct, or reform the

judgment is slightly different from the others. It is proper when some error in the judgment exists—such as a miscalculation of interest or a failure to award fees


11

or costs—that must be brought to the trial court’s attention. See TRCP 329b(g); TRAP 33.1; Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 682 n.1 (Tex. App.—Houston [1st Dist.] 1997, no writ) (noting that motion to modify can correct clerical or legal errors in judgment). The procedural rules regarding a motion for new trial govern motions to modify, including that it can be overruled by operation of law. TRCP 329b(c). VI. ENFORCING AND SUPERSEDING THE

JUDGMENT Filing a notice of appeal generally does not prevent

a judgment from being enforced. An exception exists for the State and its subdivisions, which are entitled to stay execution merely by perfecting appeal. See Tex. Civ. Prac. & Rem. Code §§ 6.001-.003. To avoid execution pending appeal, non-exempt parties must supersede the judgment by posting security.12

A. Procedures for Enforcement Among other methods of enforcing a judgment, the

prevailing party can abstract the judgment as soon as it is signed. The filing of the abstract automatically creates a judgment lien, which could trigger a default under corporate financing agreements. The judgment lien would attach to all real property owned by defendant in each county where the abstract is filed.

The following is a brief summary of what the judgment creditor can do to enforce a judgment immediately after the judgment is signed:

• Create a judgment lien, unless the judgment

debtor posts a supersedeas bond and obtains an order precluding or removing the lien. See Tex. Prop. Code § 52.0011.

• Obtain a turnover order as to intangible property, secreted property, or property located outside Texas. See Tex. Civ. Prac. & Rem. Code § 31.002.

• Garnish property in the possession of third parties upon filing an affidavit stating that the judgment debtor does not have enough non-exempt property in Texas to satisfy the judgment. See TRCP 657- 679.

12 Pursuing bankruptcy protection may also be a viable option. We assume for purposes of this paper, however, that the judgment debtor will pursue enforcement and that the judgment debtor will not file bankruptcy.

• Obtain early execution upon the filing of an affidavit stating that the judgment debtor is about to transfer or hide property. TRCP 628.

• Initiate post-judgment discovery to obtain information about the judgment debtor’s assets. TRCP 621a.13

• Initiate execution proceedings on the 31st day after the judgment is signed or, if a motion for new trial was timely filed, on the 31st day after the motion is denied. See TRCP 627.

B. Suspending Enforcement of a Money Judgment

1. Methods: The judgment debtor may avoid enforcement of the judgment through any one of the following methods: (1) filing with the trial court clerk a written agreement for suspending enforcement; (2) filing with the trial court clerk a good and sufficient supersedeas bond (by far the most common approach); (3) depositing of cash with the trial court clerk instead of a bond; or (4) providing alternate security ordered by the court. TRAP 24.1. 14

2. What Must Be Superseded: To suspend

enforcement of a money judgment pending appeal, the appellant must post security equaling the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs. TRAP 24.2(a)(1).

Before 2003, an appellant seeking to supersede a money judgment had to post security in “at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.” House Bill 4, the well-known tort reform package, altered the amount of security required to supersede a money judgment by substituting “the amount of compensatory damages awarded in the judgment” for “the amount of the judgment.” The Texas Supreme Court amended Rule

13 Under Rule 621a, ordinary discovery rules apply to post-judgment discovery requests. A litigant who fails to comply with the procedures for resisting discovery waives any objections not asserted timely. See TRCP 193.2(e). A party may apply for an order compelling discovery or awarding sanctions if an opposing party fails to serve answers or objections to interrogatories or requests for production. See TRCP 215.1, 215.2(b). 14 TRAP 24 underwent substantial revision to implement legislation passed in 2003 as part of House Bill 4. Those provisions were codified in CPRC chapter 52. Case law applying and interpreting the amended rule often cites the CPRC provisions as well.


12

24.2 accordingly. Under the old rule, “the amount of the judgment”

included not only actual or compensatory damages, but also any punitive or additional damages authorized by law. Commentators generally agreed that HB4 removed these sorts of “noncompensatory” damages from what must be secured, making it easier for defendants to suspend money judgments on appeal. But questions arose about whether a judgment debtor needs to supersede attorney fees and other matters making up “the amount of the judgment,” yet are arguably outside HB4’s “compensatory damages” standard. A split developed among the intermediate courts on whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal.

Two decisions illustrate the opposing lines of cases. In Shook v. Walden, 304 S.W.3d 910 (Tex. App.—Austin 2010, order),15 the Third Court of Appeals relied on certain definitions that HB4 added to a different part of Civil Practice and Remedies Code to conclude that “compensatory damages” does not include attorney fees. In Fairways Offshore Exploration, Inc. v. Patterson Services, Inc., 355 S.W.3d 296, 302-03 (Tex. App.—Houston [1st Dist.] 2011, order), the First Court of Appeals declined to follow Shook, holding instead that attorney fees are “compensatory damages awarded in the judgment” that must be secured to suspend enforcement of a judgment pending appeal. There is also some question whether pre-judgment interest falls within the realm of compensatory damages.

This topic is more complex than it may sound. For one thing, Shook has some nuances that might allow a different result in non-contract cases. Notably, the supreme court is currently considering a case in which the Thirteenth Court of Appeals came down on the Fairways side of the split. See In re Nalle Plastics Family Limited Partnership (No. 11-0903), http://www.search.txcourts.gov/Case.aspx?cn=11-0903. In the meantime, practitioners on both sides of the docket need to be aware of these issues and consider them in formulating post-judgment strategy.

Practice tip: The Travis County District Clerk’s office has created an Excel spreadsheet that incorporates Shook and simplifies calculation of the bond amount. See Appendix A (available at http://www.co.travis.tx.us/district_clerk/documents/supersedeas_calc.xls). The form includes a blank for attorney fees with the caveat that they should be included in the bond “only if awarded as compensatory damages.” Thus, both sides should consider whether

15 Amanda Taylor and her firm represented Shook in this appeal. Todd Smith has obtained an order from the Seventh Court of Appeals that is consistent with Fairways.

the fees are recoverable as fees or as damages under the particular circumstances of the case.

In addition to adopting Shook’s approach on attorney fees, the form cites Shook to support a one-year default “estimated duration of the appeal” for purposes of calculating the amount of post-judgment interest that must be secured. See Appendix A. In other locales, how long the appeal could take sometimes turns into a point of contention that must be resolved by the trial court. Whether you agree with Shook or not, the Travis County form takes much of the guesswork out of calculating the amount of security needed to supersede the judgment.

Another practice tip: As something of an oddity in state appellate-court practice, the trial-court clerk makes the initial determination whether to approve a supersedeas bond. See TRAP 24.1(b)(2). The trial court may review the bond on any party’s motion, but the best approach is to try and reach agreement with opposing counsel in advance so there is no question about the amount and sufficiency of security.

3. Limitation on Amount of Security Required:

Another change HB4 brought about was to impose supersedeas caps. The amount of security for money judgments “must not” exceed the lesser of 50 percent of the judgment debtor’s net worth or $25 million. TRAP 24.2(a) & (c). The rule does not define “net worth,” but case law holds that it generally defined as total assets less total liabilities, as determined by generally accepted accounting principles. See Enviropower LLC v. Bear, Stearns & Co., Inc., 265 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 915 (Tex. App.—Houston [14th Dist.] Dist.] 2005) (order).

TRAP 24.2(c) specifies the procedure for asserting and contesting net worth as a basis for calculating the security amount. From the judgment debtor’s perspective, complying with that procedure is sufficient to supersede the judgment pending any contest by the judgment creditor. See In re Smith, 192 S.W.3d 564, 566-67 (Tex. 2006) (orig. proceeding) (per curiam) (describing procedure when appellant relies on rule capping security to avoid enforcement at 50 percent of appellant’s net worth). And some courts have concluded that a judgment debtor who can swear to a negative net worth need not put up any security at all. See G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 838, 846 (Tex. App.—Dallas 2006, no pet.) (op. on motion) (applying 50-percent cap and concluding that appellant with negative net worth was entitled to supersede judgment without providing security).

By capping the amount of security necessary to avoid enforcement, Rule 24.2 provides relief to judgment debtors fearing insolvency or who may be


13

effectively denied their right to appeal as a result of a large money judgment. See Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 605-06 (Tex. 1996) (per curiam) (orig. proceeding). Yet, the provision protects judgment creditors to a degree by making supersedeas more attainable and thereby preserving the right to recover some amount from the judgment debtor. See McDill Columbus Corp. v. University Woods Apartments, Inc., 7 S.W.3d 923, 925 (Tex. App.—Texarkana 2000, order). Nevertheless, the statutory scheme’s reliance on fact questions like net worth and substantial economic harm (as discussed below) invites post-judgment litigation and discovery.

4. Adjustment of Security Amount: The trial

court “shall” lower the amount of security upon a showing that the judgment debtor is “likely to suffer substantial economic harm if required to post security in an amount required” under TRAP 24.2. Upon making such a finding, the trial court must reduce the security “to an amount that will not cause the judgment debtor substantial economic harm.” TRAP 24.2(b).

Once its plenary power has expired, the trial court retains continuing jurisdiction to order the amount and type of security and, if circumstances change, modify the amount or type of security required. TRAP 24.2(a). The judgment debtor must notify the appellate court if the trial court takes any such action. TRAP 24.2(b).

A court of appeals is authorized to review the trial court’s ruling on a Rule 24.2(b) motion, presumably after acquiring jurisdiction over the case. See TRAP 24.4; City of Fort Worth v. Johnson, 71 S.W.3d 470, 471 (Tex. App.—Waco 2002, no pet.). Review can be based on conditions as they existed at the time the trial court signed the order at issue or on changes in those conditions afterward. TRAP 24.4(b). The rule specifies the sufficiency or excessiveness of the amount of security, the sureties on a bond, the type of security, and the trial court’s discretionary decisions on security as subject to review by a motion filed in the appellate court. TRAP 24.4(a).

C. Suspending Non-Monetary Final Judgments When the judgment is for an interest in real or

personal property, such as mineral rights, the trial court sets the amount and type of security that the judgment debtor must post. TRAP 24.2(a)(2). The rule ties the minimum amount of security to rent or revenue for real property and, for personal property, value on the date of judgment. Id.

The trial court also sets the amount and type of security when the judgment is for something other than money or property, such as declaratory relief. TRAP 24.2(a)(3). In this instance, the security must adequately protect the judgment creditor against any loss or damage that may result from an appeal. Id. The

trial court may deny supersedeas only if the judgment creditor posts security. Id.

Few cases provide trial courts with further guidance on how to set the amount of security in these scenarios. We suggest working with your client to determine what a reasonable amount of security would be in light of the particular dispute and your client’s financial position, and then start by seeking to reach an agreement with opposing counsel, who should be in favor of securing the judgment but will likely disagree with you on the amount. If you can reach an agreement, you can file an “agreed motion” for the court’s consideration and entry, or simply file the agreement under TRCP 11 and post the security. If the opposing party has therein agreed to not attempt any execution or enforcement, then your client should be protected even without a court order.

If you cannot reach an agreement with opposing counsel on the amount of security, then prepare a “motion to set bond,” and set it for a hearing prior to the time that execution may issue. If this is not possible, then attempt to at least secure a Rule 11 Agreement that your opponent will suspend enforcement for a specified time period pending the hearing. Again, your opponent should recognize the mutual interest in securing the judgment. Your motion to the trial court needs to set forth a clear, specific, and credible argument for how you arrived at the amount and type of security proposed. You should consider attaching affidavits or other evidence to this motion.

VII. GETTING THE APPEAL STARTED—

INITIAL DEADLINES, PERFECTION OF APPEAL, AND THE APPELLATE RECORD To properly perfect an appeal and obtain the

appellate record, you need to understand the key steps involved and applicable deadlines. Upon receipt of the items below, the appellate court’s clerk’s office will conduct a jurisdiction check to make sure it can hear the appeal and that all items have been properly filed. If there is anything wrong with your filing, then the clerk will most likely contact you immediately to correct it, if possible. However, it is certainly in your best interest to get everything right the first time!

For all filings, make sure to review and comply with TRAP 9 (“Papers Generally), which includes specific rules on “signing” (9.1), “filing” (9.2), “form” (9.4),16 “service” (9.5), and “protection of minor’s identity” (9.8); and TRAP 27 (“Premature Filings”). 16 Effective December 1, 2012, TRAP 9.4 and other appellate rules were amended to replace page limits with word counts for all computer-generated documents (other than the record) filed in Texas appellate courts. The amended rules are available at http://www.supreme.courts.state.tx.us/miscdocket/12/12919000.pdf.


14

Additionally, always make sure to check the court’s local rules, which are available on each court’s website, regarding notices of appeal, docketing statements, record requests/filing, and e-filing.

Tips on e-filing: Be aware that, for all parties represented by an attorney, e-filing through the Texas.gov system is now mandatory in the Texas Supreme Court and in the First (Houston), Third (Austin), Seventh (Amarillo), and Fourteenth (Houston) Courts of Appeals; is the preferred method of filing in the Fourth (San Antonio) Court of Appeals; and is available on a voluntary basis in the Second (Fort Worth), Fifth (Dallas), Sixth (Texarkana), and Eleventh (Eastland) Courts of Appeals.17 In the Third Court, an e-filer is not required to file any paper copies of an e-filed document unless specifically requested by the Court, but all e-filed documents must contain the e-filer’s email address in the signature block. See “Electronic Filing” link on Third Court’s website. When you are e-filing, you must take care to comply with the redaction rules for both your filed document and any attachments, as promulgated by the Texas Supreme Court. In the Third Court, these are found in Local Rules 3 and 4. You should always check the local rules and practices on e-filing for whichever court you are in, as they are updated regularly.

A. Commencement and Calculation of

Appellate Deadlines The deadline to perfect appeal generally runs from

the date that the final judgment or other appealable order is signed (not necessarily the date that the judgment is “entered”). TRAP 26.1. However, there are three circumstances in which this starting point is modified. Modification of the starting date should not be confused with events that may extend the deadline to perfect appeal which are discussed in Section VII(B) below, based on the type of appeal you are taking. For example, a Motion for New Trial will extend the deadline from 30 to 90 days after signature of the final judgment in a regular appeal, but that does not modify the fact that the deadline commences upon signature of the judgment). The three instances in which the starting point for commencement of the appellate deadlines will be altered from the date of signature of the judgment/order are as follows:

First, if you do not receive a copy of the signed

17 Although e-filing through Texas.gov is not yet available in the Eighth (El Paso), Ninth (Beaumont), Tenth (Waco), Twelfth (Tyler), or Thirteenth (Corpus Christi/Edinburg) Courts of Appeals, some of these courts require submission of electronic copies via email or disk. E-filing through Texas.gov or a successor system will be mandatory for all Texas civil appellate matters by January 1, 2014.

judgment (and do not have actual knowledge that the judgment has been signed) within 20 days of its execution, then the deadline does not commence until you receive notice or actual knowledge. TRAP 4.2(a)(1); TRCP 306a. But in no event can the commencement date for perfection of appeal ever be more than 90 days after the judgment was signed. TRAP 4.2(a)(1).18 To gain additional time to perfect appeal under this rule, you must comply with TRCP 306a(5) (which requires a sworn motion establishing the date the party first received notice or actual knowledge, and that the date was more than 20 days after execution of judgment). TRAP 4.2(b).

Second, if the trial court modifies the judgment “in any respect” during the court’s plenary power, then the appellate deadlines run from the date that the modified judgment was signed. TRAP 4.3(a). If the trial court modifies the judgment after expiration of its plenary power (i.e., makes a clerical correction via a judgment nunc pro tunc under TRCP 316), then the appellate deadlines will run from the date of the corrected judgment only with respect to complaints that would not have applied to the original judgment. TRAP 4.3(b).

Third, in the rare circumstance where process was served by publication and a motion for new trial was filed more than 30 days after the judgment was signed, then the appellate deadlines commence as if the judgment were signed on the date that the MNT was filed. TRAP 4.4.

When calculating the deadline to perfect appeal, do NOT include the day that the judgment was signed, but DO include the last day of the time period. For example, if your final judgment is signed on Tuesday, February 5, 2013, then “day 1” would be Wednesday, February 6, and “day 30” would be Thursday, March 7, 2013—meaning that, in a “regular” appeal without any extensions, your notice of appeal would be due on March 7. TRAP 4.1(a); TRCP 4. If the last day falls on a Saturday, Sunday, or legal holiday, you push the deadline to the next business day. TRCP 4.

From this commencement date, the standard deadline to perfect an appeal is 30 days. However, the actual deadline depends on the type of appeal taken, whether certain post-judgment motions/requests were filed, and whether any extensions for time were granted, as detailed below.

B. Notice of Appeal Any party who seeks to alter the trial court’s

judgment or other appealable order must file a notice of appeal. TRAP 25.1(c). Parties whose interests are

18 This does not apply in a restricted appeal. TRAP 4.2(a)(2); see infra, Section VII(B)(3).


15

aligned may file a joint notice of appeal. Id. The failure of any party to perfect its own appeal precludes the court from granting that party more favorable relief than did the trial court, except for just cause. Id.

The notice of appeal must be filed in the trial court only. TRAP 25.1(c)-(d). As of February 13, 2012, you no longer have to file a copy with the court of appeals. Section (d) was added to clarify that the trial court clerk must immediately send the notice to the court of appeals. See Tex. Sup. Ct. Misc. Docket No. 9030. At the time of filing, you must serve the notice of appeal on all parties to the final judgment or, in an interlocutory appeal, on all parties to the proceeding. TRAP 9.5; 25.1(a), (c). If you realize that your notice contains any defect or omission, you may file an amended notice at any time before the appellant’s brief is filed—but it is subject to being struck for cause upon motion by your opponent. TRAP 25.1(g).

Your notice of appeal should contain a certificate of service, but no certificate of conference is required. TRAP 9.5(d), (e). In the Third Court of Appeals, “Appellants are encouraged to state in the notice of appeal the names of those parties adverse to them.” Local Practices, ¶ 35. Otherwise, the filing deadline and required contents of the notice of appeal vary by the type of appeal taken, and are subject to extension, as noted below. See also TRAP 4 (“Time and Notice Provisions”). Unless another attorney is later designated, the court considers the attorney whose signature first appears on the notice of appeal as appellant’s lead counsel. TRAP 6.1(a), (c).

Tip about CaseMail: As soon as the court of appeals has filed your notice of appeal and assigned an appellate cause number, you should register through the court’s website to receive “case mail updates” on your appeal. (You can find the Case Mail link in green on the right hand side of most of the courts of appeals’ websites). These updates are very helpful because they notify you of any event (filings, orders, etc.) in the court of appeals. However, you should be aware that some entries are vague (e.g., “phone call received”), intended to be merely a note for the court’s internal purposes. You can call the clerk’s office and ask for an explanation if necessary, but we suggest doing that only if the entry truly seems pressing or worrisome.

1. Regular Appeal: In a regular appeal from a

final judgment, the notice of appeal must be filed within 30 days after the judgment is signed. TRAP 26.1(a). However, if one of the following has been timely filed, then this deadline will be extended to 90 days after the judgment is signed: a motion for new trial, motion to modify, motion to reinstate under TRCP 165a, or a proper request for findings/conclusions if they are required by the TRCPs or could properly be considered by the appellate court, and “other” motions that seek a

substantive (not clerical) change to the court’s judgment. TRAP 26.1; TRCP 329b; Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000); see also In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008). The required contents of the notice for a regular appeal are specified in TRAP 25.1(d)(1)-(5).

2. Accelerated Appeal: In an accelerated appeal,

the notice of appeal must be filed within 20 days after the judgment is signed. TRAP 26.1(b). None of the post-trial motions noted above extend this deadline. TRAP 28.1(b). In addition to the regularly-required contents, the notice of appeal must specifically state that it is an accelerated appeal and, as of February 13, 2012, it must also state whether the case is one involving parental termination or child protection, as defined in Rule 28.4. TRAP 25.1(d)(6); Tex. Sup. Ct. Misc. Docket No. 9030. Accelerated appeals are taken from interlocutory orders (when allowed),19 quo warranto proceedings,20 and appeals otherwise required to by statute or rule to be accelerated or expedited, or appealed within less than 30 days.21 TRAP 28.1(a).

19 Generally, interlocutory orders (such as the denial of summary judgment) are not appealable until a final judgment has been issued. Some statutes, however, grant specific permission to take an immediate interlocutory appeal. The primary statute providing a list of interlocutory orders subject to immediate appeal is Civ. Prac. & Rem. Code § 51.014(a); see also CPRC § 15.003; § 26.051; § 51.016; §§ 171.021, .023, .098; Tex. Fam. Code § 6.057, § 262.111; Tex. Health & Safety Code § 81.191, § 574.070. Additionally, CPRC § 51.014(b) permits the immediate appeal of other interlocutory orders in certain situations. In cases filed before Sept. 1, 2011, the parties must agree and the trial court must grant the right to appeal. In cases filed after Sept. 1, 2011, no agreement of the parties is required, but both the trial court and court of appeals must grant permission for the appeal. See Tex. Sup. Ct. Misc. Docket No. 9183 (September 9, 2011) (adopting new TRCP 168 and amending TRAP 28 regarding permissive interlocutory appeals). 20 Quo warranto proceedings question the right of a person or corporation (including a municipality) to exercise some authority. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436-37 (Tex. 1991). Quo warranto proceedings may be initiated only by the State, not by private parties—but the State may file such a proceeding upon request of a private party. See CPRC §§ 66.001-.003; TRCP 779-782. 21 See, e.g., Tex. Elec. Code § 232.014 (challenge by candidate in primary race); Tex. Fam. Code § 109.002 (termination of parental rights); Tex. Gov’t Code § 1205.068(e) (declaratory judgment regarding validity of public securities); Tex. Health & Safety Code § 574.070(e) (court-ordered mental health services).


16

Also, effective June 17, 2011, appeals from a motion to dismiss filed under the Anti-SLAPP statute in CPRC Ch. 27 are to be “expedited” by the court of appeals, yet appellant is provided 60 days to file a notice of appeal. See CPRC § 27.008(c).22

3. Restricted Appeal: In a restricted appeal from

a default judgment, the notice of appeal must be filed with the trial court within 6 months after the judgment is signed. TRAP 26.1(c). None of the post-trial motions noted above extend this deadline because restricted appeals are taken from default judgments in which appellant has expressly not participated in this manner. TRAP 25.1(d)(7). In addition to the regularly-required contents, the notice of appeal must specifically state that (A) appellant is a party affected by the trial court’s judgment but did not participate (in person or via counsel) in the hearing that resulted in the judgment complained of and (B) appellant did not timely file either a post-judgment motion, request for findings/conclusions, or notice of appeal. TRAP 25.1(d)(7).

4. Cross-Appeal: If any party has timely filed a

notice of appeal, another party may file a notice of cross-appeal at any time within the applicable deadlines set forth above, or within 14 days of the first notice of appeal, whichever is later. TRAP 26.1(d). However, if the appellant files a late notice of appeal, the appellee does not have 14 days from the untimely filing. Rather, the appellee must perfect its cross-appeal within the Rule 26.1 deadlines, or seek an extension of time as noted below.

As the appellee, you must determine whether you need to perfect a cross-appeal, or simply raise a cross-issue in response to one of appellant’s issues. The court of appeals may not grant “more favorable relief” than the trial court did to any party who has not perfected its own appeal. TRAP 25.1(c). Thus, if your client wants some additional relief not granted by the trial court, then a notice of cross-appeal is required. However, if you will simply be asking the court to affirm the judgment or order on some alternative ground, then you may assert that as a cross-issue without the need for a separate notice of appeal. See Railroad Comm’n v. Coppock, 215 S.W.3d 559, 564 (Tex. App.—Austin 2007, pet. denied).

5. Motion for Extension of Time to Perfect

Appeal: If you miss your deadline to file a notice of 22 When a defendant has been sued for exercising his or her right to free speech or to petition the government, the defendant can use this Anti-SLAPP statute to seek a prompt dismissal of the case and, if successful, shift the defendant’s fees to plaintiff. See CPRC Ch. 27.

appeal, you should (as promptly as possible, within 15-days of the deadline) file a Motion for Extension of Time to Perfect Appeal in the court of appeals, and simultaneously file your notice of appeal in the trial court; if possible, attach a file-stamped copy of your notice of appeal to the motion. TRAP 10, 26.3. If you file a notice of appeal within 15 days of the deadline, the court will automatically imply the 15-day extension. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, the Motion for Extension is still required to supply the “reasonable explanation” under by Rule 10.5. Hernandez v. Lopez, 288 S.W.3d 180, 183-84 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

A motion to extend the time to perfect appeal must comply with TRAP 10.1(a), which requires that the grounds be stated “with particularity” and that the motion contain a certificate of conference, among other things. Additionally, the motion must (1) state the deadline for filing the notice of appeal, (2) state the facts reasonably explaining the need for the extension, (3) identify the trial court, (4) state the date of the trial court’s judgment, and (5) state the case number and the style of the case in the trial court. TRAP 10.5(b)(2). In addition, the motion must contain the date the notice of appeal was filed in the trial court. TRAP 26.3(a). The date of filing the notice of appeal, if not known personally by the attorney, must be supported by affidavit or other satisfactory evidence. TRAP 10.2. In addition to the filing fee for appeal, be aware that there is also a $10 filing fee for such a motion.

C. Filing Fee The filing fee for an appeal from a district or

county court is $175.00. See Tex. Gov’t Code Ann. § 51.207(b), (c); see also TRAP Appendix, “Order Regarding Fees Charged in Civil Cases.” You must pay this fee (or otherwise establish indigence) to perfect appeal. TRAP 5, 42.3(c).

D. Docketing Statement “Promptly” upon filing a notice of appeal, the party

must complete and file in the court of appeals a “Docketing Statement,” which is an administrative document used by the clerk’s office to properly “docket” the case. TRAP 32. Although this is not a jurisdictional requirement, the court uses this statement to verify its jurisdiction over the appeal and to enter all the relevant information about the parties and the proceeding. See Third Court Local Practices, ¶ 39, at http://www.3rdcoa.courts.state.tx.us. Thus, you should carefully review your Docketing Statement before filing to ensure its accuracy.

As of June 2012, all intermediate appellate courts now utilize a uniform, electronic docketing statement, which is a big improvement over the prior system in which each court’s form had unique features.


17

According to the Office of Court Administration’s announcement, “the electronic docketing statement is available as a PDF form. The process of completing the form is greatly simplified by pull down menus for certain case information, such as case types.” While the new form is generally more user-friendly, some practitioners have experienced difficulty in completing the form when using older versions of Adobe. The OCA is aware of this issue, and is working on it. In the meantime, if you have this issue, it’s best to make a friendly call to the clerk’s office for assistance in completing and filing the form. For the future, the OCA is developing a “smart form,” which will automatically populate the case data, and will be fully-integrated with the soon-to-come Texas Appeals Management and E-Filing System (TAMES), which will enable e-filing, online document access, and electronic event notifications in appellate cases statewide.

Timing: In February 2012, Rule 32 was amended to add the word “Promptly” before “upon filing the notice of appeal.” We suggest the following: File your notice of appeal and request preparation of the record (as detailed below) on the same day. Within 1-2 days thereafter (once the court of appeals has received and filed your notice of appeal and assigned an appellate cause number, and you have a file-stamped copy of the notice of appeal that you filed in the trial court), complete and file your Docketing Statement (with the appellate cause number noted at the top, the file-stamped notice of appeal attached, and the copies of your requests for the record attached). The Third Court requires that the Docketing Statement be filed within 10 days of the notice of appeal. See Local Practices, ¶ 39.

E. Clerk’s and Reporter’s Records In connection with perfection of your appeal, you

(as the appellant) are required to request that the trial court clerk prepare, certify and file the “clerk’s record” and, if necessary, that the court reporter(s) prepare, certify, and file any transcripts of proceedings on which the appeal is based. TRAP 34.5(b), 34.6(b).23 Together, these comprise the “appellate record.”

You should send a written request to the clerk and any necessary reporter at the time or soon after you file your notice of appeal. TRAP 9.5(a), 34.5(b)(1), 34.6(b)(1). All requests for the record should state that you agree to pay for the record requested, or otherwise make reasonable arrangements to pay. TRAP 23 In lieu of a reporter’s record, the parties can agree to a “brief statement of the case” in narrative form, which would be filed with the trial court clerk and included in the clerk’s record. TRAP 34.3. It is difficult to imagine a scenario where the parties would agree to have the appeal determined on this basis rather than the actual transcript of the proceedings.

35.3(a)(2), (b)(3). Your request should also include the specific docket number(s) and state the name and location of the court of appeals in which the record is to be filed. You must file the request in the trial court and serve it on all parties. TRAP 9.5; 24.1(b); 34.6(b)(2). You should attach copies of your requests for the record to your Docketing Statement, if possible.

TRAP 34.5(a) provides a list of items that will be included in the clerk’s record unless otherwise specified, and TRAP 34.5(b)(1)-(2) allows a party to “specifically” request additional contents beyond that list. A general request for “all papers” is unacceptable. Id. We suggest making a specific request for each item that you want included in the record, even if such item is already listed in Rule 34.5(a). The best practice is to obtain a complete copy of the court’s docket sheet, and review it carefully. Then, in your letter to the clerk, include a list or table specifically identifying each item that you want, using the file date and title used on the docket sheet, and in the chronological order shown on the docket sheet, to make it easy for the clerk to understand and locate what you want included. You can request that original documents (such as physical evidence, videos, or other documents or items that need to be reviewed or inspected in original form) be sent to the appellate court for review. TRAP 34.5(f); 34.6(g).

As the appellee, you should carefully review the appellant’s record request(s) as soon as they are filed. If you believe additional contents are necessary, you should promptly request that they be included in the record. TRAP 34.5(b)(1); 34.6(c)(2).

Additionally, any party can request later supplementation of the record—but only documents that were properly filed with the trial court may be included in the record. TRAP 34.5(c); 34.6(d). Be aware that if you request unnecessary items, especially if they are voluminous, you risk having the appellate costs taxed against you, even if you prevail on appeal. TRAP 34.5(b)(3). Thus, you should carefully consider which documents/items you need to establish your appellate arguments.

The record is due to be filed within 60 days after the judgment is signed in a regular appeal, or within 120 days if the deadline to perfect appeal was extended by a post-judgment motion. TRAP 35.1(a). In a restricted appeal, the record is due within 30 days after the notice of appeal is filed. TRAP 35.1(c). In an accelerated appeal, the record is due within 10 days after the notice of appeal is filed. TRAP 35.1(b).24 If 24 In an accelerated appeal, in lieu of a certified clerk’s record prepared under Rule 34, the court may hear the appeal on sworn and uncontroverted copies of the original papers from the trial court. TRAP 28.1(e). The purpose of this rule is to expedite the process by dispensing with the requirement of a formal record. However, in the age of electronic filing, the value of this rule is substantially


18

the record is not timely filed due to some failure of the appellant, it can serve as a basis to dismiss the appeal. TRAP 37.3. However, as long as you have complied with your duty to properly request and pay for the record, then any failure to timely file it is between the clerk/reporter and the court of appeals. TRAP 35.3(a)-(c). The court will issue a notice to the clerk/reporter stating that the record is late and, if it is not promptly filed thereafter, may issue a “show cause” order or take other action against the clerk/reporter as is necessary to get the record filed.

The deadline to file your brief will run from the date that the complete record is filed (meaning just the clerk’s record or, if requested, the clerk’s and reporter’s records). Generally, the deadline is 30 days from the filing of the record, but it is 20 days in an accelerated appeal. TRAP 38.6(a).25 Because the filing of the record starts your briefing deadlines, it is important that you obtain a copy of the record as soon as it is filed and review it to make sure all necessary contents for the appeal have been included. See TRAP 12.4. In the Third Court, all records are required to be filed electronically, and upon request the court will provide an electronic copy, free of charge, to the attorney of record (unless the record has been sealed). See Local Rules 1-2; Local Practices, ¶¶ 32, 33, 43, at http://www.3rdcoa.courts.state.tx.us.

Upon review of the record, if you realize that a necessary document is missing (but was previously requested), then file a written request for correction of the record; if a necessary document is missing (but was never requested), then file a written request for supplementation. This distinction is relevant if the correction/supplementation necessitates a further request for extension of your brief deadline because the court will be more inclined to grant another extension if the defect was not caused by your failure to request the necessary item in the first place. Even in the latter situation, you can likely establish good cause to secure a further extension, but you risk appearing to lack diligence.

VIII. ADVISING THE CLIENT ON REALISTIC

APPELLATE EXPECTATIONS Properly advising the client about an appeal

requires that you engage in an informed and objective analysis of (1) whether an appeal should be taken at all,

diminished. If you wish to proceed in this manner, you should contact the clerk of the appellate court to confirm any rules for the format and filing of such a record. 25 Most (if not all) of the fourteen courts of appeal will routinely grant a first motion for extension of time to file your brief if the motion seeks 30-days or less. Although second motions for extension are not uncommon, you must establish a sound reason for the court to grant it.

(2) if an appeal should be taken, which issues should be raised on appeal, (3) the applicable standard of review for each issue, (4) what the chances of success are on those issues, (5) what risks the client faces pending and post-appeal depending on the various possible outcomes, (6) what the anticipated costs of appeal will be, including the costs of the record, filing fees, and attorney fees and what, if any, chances the client has to recover those costs from the opponent, (7) the temperament and prior opinions of the particular justices to whom you will be appealing, and (8) the anticipated timing of the appeal.

Not all cases are appropriate for an appeal. If an appeal is taken, you should not “throw in the kitchen sink” of every possible issue. Rather, you must balance the potential costs, risks, and rewards of pursing the appeal, and of pursuing each issue. If, for example, the trial court ruled against you on an issue over which the court had full discretion, and the ruling resulted in an $18,000 award against your client, you will need to think seriously before advising pursuit of an appeal. Did the trial court really act without any reference to guiding rules and principles in making that decision? Is it really worth the cost of appeal to seek reversal of an $18,000 award? Depending on the factors discussed above (and referencing the outline of potential appellate fees at the start of the paper), the answer in some cases will absolutely be “yes,” while in others it will absolutely be “no.” In many cases, the best advice you can give your client may be to engage an appellate lawyer to assist with this analysis and any possible appeal.

The Office of Court Administration publishes very helpful statistics from each of our courts, including the fourteen intermediate courts of appeal and the Texas Supreme Court. These are the first place you should turn when a client wants to know about the potential outcomes and anticipated timing of an appeal. The statistics are available online at http://www.courts.state.tx.us/pubs/AR2011/toc.htm (you will find this link on the lower right hand column of the supreme court’s and most courts of appeals’ website home pages).

For the courts of appeal, the statistics include activity of each court for the most recent fiscal year broken down by district. This shows the total numbers of cases filed, disposed, transferred, and pending; the number of cases disposed of by being affirmed, reversed and remanded, reversed and rendered, and other outcomes; and the average time period for a case from filing to submission, and from filing to disposition. For example, in fiscal year 2011 there were 465 new civil appeals filed in the Third Court, for a total of 820 pending civil matters, and the statistics show that, of these civil cases: 149 were fully affirmed; 64 were reversed at least in part; the remainder were


19

dismissed, otherwise disposed, or are still pending; the court had only 63 cases pending for more than 12 months and, notably, the Third Court had a clearance rate for 2011 of 108%; the average time from filing to disposition was 7.9 months; and the average time from submission to disposition was 1.5 months.26 The OCA also publishes “opinion summary” statistics, broken down by each justice on each court, showing the total number of opinions on the merits, concurrences, dissents, and other dispositions issued by each justice.

Finally, as each of the intermediate appellate courts adopt the new TAMES filing system (Texas Appeals Management and Efiling System), you can run “event reports” from the courts’ websites, which will also provide you helpful insight on the courts’ activities. You can specify a date range, and then run a report for the particular court regarding the following categories: Amicus, Briefs, Opinions, Orders, Original Proceedings, Permissive Appeals, and Rehearings. The Supreme Court of Texas also offers this feature on its website, with several additional categories of searchable information specific to that court.

We hope that you have found these guidelines to be a helpful reference in navigating the “TRAPs” from verdict or the end of a bench trial to appeal. If you are in need of further appellate consultation, please contact either of us: Amanda Taylor ([email protected] or 512-472-5997), and Todd Smith ([email protected] or 512-439-3230).

26 The meaning of “submission” varies among the courts of appeals. In the Third Court, it signifies that a draft opinion has likely been circulated among the justices on your panel, meaning that a decision is imminent. You will receive a notice of submission. If a significant period of time passes after you receive that notice without an opinion being issued, it often means that one of the judges on the panel is dissenting or concurring.

CAUSE #: D-1-XX-YY-###### PLTF:DATE OF JUDGMENT: DEF:

COMPENSATORY DAMAGES Award of attorney's fees subject to bond entered belowPRE-JUDGMENT INTEREST -$ Detailed instructions in the commentRate of interest: Enter rate with the % signDate interest commences: Per judgment or per applicable lawDate interest ends ####################### Defaults to day prior to judgment; enter different date if required by law

ATTORNEY'S FEESCOSTS OF COURT Include only recoverable trial costs; no appellate costsSUB-TOTAL -$

POST-JUDGMENT INTEREST* -$ Interest (per tables - see link): 5.00% Defaults to minimum rate; link to tables:

SUPERSEDEAS BOND AMOUNT -$

ACTUAL BOND AMOUNT ** 50% of Judgment Debtor's net worth( if less than Total Bond Amount)

The amount of bond must be set by the trial court if: Specify type of bond submitted: (Letter of credit cannot be used) (1) less than amount required per Rule 24.2(a)(1)(A), T.R.A.P. ___ cash, personal check, cashier's check *** (2) the judgment includes non-monetary relief ___ negotiable securities (must be surrendered to the Clerk) (3) the judgment includes unspecified future costs or damages ___ surety: underwritten (include surety's seal + agent's power of attorney)

___ surety: personal (2 sureties required, oath of surety must be attached)

If supersedeas amount agreed per T.R.A.P. 24.1(a)(1), check here and attach copy of Rule 11 or agreement. Complete only Sec. B below.

SECTION A: CALCULATION OF BOND

*** To have cash bonds invested, an order pursuant to Loc. Govt. Code 117.053 (c) is required.

** If total exceeds amount provided in Sec. 52.006(b) Civ. Pract. & Rem. Code; (Rule 24.2(a)(1)(A), T.R.A.P), include Judgment Debtor's Affidavit with bond as required per T.R.A.P. Rule 24.2(c)(1)

SECTION B: SUBMISSION OF BOND

TRAVIS COUNTY DISTRICT CLERK

http://www.occc.state.tx.us/pages/int_rates/Index.html

*Formulas are in conformance with Shook v. Walden, 304 S.W.3d 910. Post judgment interest is presumed to apply to all amounts subject to supersedeas pursuant to the opinion unless the judgment specifies otherwise. If no interest rate is specified, use the link to look up maximum interest rate based on judgment date.

CALCULATION AND SUBMISSION OF SUPERSEDEAS BOND FOR JUDGMENT AWARDING A RECOVERY OF MONEY

Calculated for one year from date of judgment*

Include only if awarded as compensatory damages; otherwise, leave blank

To view detailed instructions or explanation, place cursor over any field with a red triangle in the upper right corner

dtoddsmith

Typewritten Text

Appendix A

dtoddsmith

Typewritten Text

Documents

YOUR TRIAL IS OVER—NOW WHAT? GUIDANCE ON …smithlawgroup.default.wp1.lexblog.com/files/...05-YTIO-TexasBarCLE...GUIDANCE ON PERFECTING AND PURSUING ... appellate review. A committed