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Appellate Law, Summer 2009
June 17, 2009

9 Common Questions about Initiating the Appellate Process

When Can a Party Appeal an Adverse Ruling?

Generally, a party cannot appeal an adverse ruling until a final judgment has been entered. Exceptions to this general principle exist where the ruling concerns one of a limited number of statutes authorizing an interlocutory appeal or where a writ of mandamus is justified.

When is a Judgment Final?

A judgment is final when it disposes of all claims against all parties. The Texas Supreme Court explained that an order is a final judgment when “it actually disposes of every pending claim and every party” or when “it clearly and unequivocally states that it finally disposes of all claims and all parties.” Lehman v. Har-Con Corp, 39 S.W.3d 191, 205 (Tex. 2001). So, a judgment would not be final if it only disposes of one party’s claims against the other but does not dispose of the counterclaim. However, even if the judgment did not dispose of the counterclaim, the judgment could be final if it “clearly and unequivocally” stated that it was a final appealable judgment.

If the Judgment Fails to Tax Costs, Is It Final?

A judgment should be treated as final even if it fails to award taxable costs as long as it disposes of all parties and all claims. A claim for court costs is not a claim for affirmative relief. Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex.App.—Dallas 2002, no pet.). Thus, even if the judgment fails to tax costs, it is still a final judgment. Straza v. Friedman, Driegert & Hsueh, L.L.C. 124 S.W.3d 404, 406 (Tex.App.—Dallas 2004, pet. denied);City of Marshall v. Gonzales, 107 S.W.3d 799, 803 (Tex.App.—Texarkana, 2003, no pet.); Thompson v. Beyer, 91 S.W.3d at 904.

When Is the Notice of Appeal Due?

Generally, a notice of appeal must be filed within 30 days after the judgment is signed. Tex. R. App. P. 26.1. For interlocutory appeals, which are accelerated appeals, the notice of appeal is generally due 20 days after the order at issue has been signed. Tex. R. App. P. 26.1(b) and 28.1. Other specific appeals may be governed by shorter deadlines. For example, certain family law appeals are accelerated appeals, and the notice of appeal must be filed within 20 days of the judgment. See In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). Certain post judgment pleadings, like a motion for new trial, a motion to modify the judgment, or a request for findings of fact and conclusions of law, extend the deadline to file the notice of appeal until 90 days after the judgment is signed. Tex. R. App. P. 26.1(a). However, such motions do not extend the deadline for accelerated appeals, and the notice of appeal is always due within 20 days from when the order is signed. In re K.A.F., 160 S.W.3d at 928. Findings of fact and conclusions of law do not extend the appellate deadlines where a judgment has been entered as a matter of law, like when a court grants a summary judgment. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).

The Deadline Has Been Missed, Can a Party Still Appeal?

Rule 26.3 allows the deadline to appeal to be extend for up to 15 days, if the party files a notice of appeal within 15 days and files a motion for extension of time that, among other requirements, explains the need for the extension. A motion for extension of time is implied by filing a notice of appeal within 15 days of the deadline. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, the motion requesting an extension must still be filed. See Woodward v. Higgins, 140 S.W.3d 462, 462 (Tex.App.—Amarillo 2004, no pet.). After this 15 day period has expired, a party cannot invoke the appellate court’s jurisdiction. In re Padilla, 103 S.W.3d 563, 567 (Tex.App.—San Antonio 2003, no pet.).

Does a Deadline Exist for Mandamus?

Unlike ordinary appeals, the rules do not provide any specific deadline by which a Petition for Writ of Mandamus must be filed. However, mandamus proceedings are largely controlled by equitable principles, requiring diligence and not aiding “those who slumber on their rights.” Callahan v. Giles, 157 Tex. 571, 575, 155 S.W.2d 793, 795 (1941). Thus, a delay of four months between the event at issue and the filing of a mandamus proceeding resulted in the mandamus being denied for a lack of diligence.Rivercenter Assoc. v. Rivera, 858 S.W.2d 366, 367-68 (Tex. 1993) (orig. proceeding). As a practical matter, mandamus proceedings frequently occur where a party is under a deadline to comply with some trial court order, like presenting a witness for deposition in 30 days. The appellate court will not look favorably on the party that waits until virtually the last moment before seeking relief from the appellate court.

How Can the Judgment Be Secured Against Collection?

Enforcement of a judgment will be suspended if the parties agree to suspend enforcement or the judgment debtor makes an appropriate filing with the trial court that operates to suspend the judgment. Tex. R. App. P. 24.1(a). Such an appropriate filing includes a sufficient bond, cash deposit, or “providing alternate security ordered by the court.” Tex. R. App. P. 24.1(a)(2)-(4). The cash deposit can be a deposit of cash, cashier’s check drawn on any federally insured federal or state-chartered bank or savings and loan. Tex. R. App. P. 24.1(c)(1)(A)-(B). With leave of court, certain other types of negotiable obligations can be used. Tex. R. App. P. 24.1(c)(1)(C). The amount of the security for a money judgment is the amount of compensatory damages, interest for the estimated duration of the appeal, and costs awarded in the judgment. Tex. R. App. P. 24.2(a)(1). The total amount of security cannot exceed the lesser of 50% of the judgment debtor’s current net worth or $25 million. Tex. R. App. P. 24.2(a)(1)(A)-(B). The judgment debtor’s current net worth is assets minus liabilities as determined by generally accepted accounting principles. EnviroPower, L.L.C. v. Bear, Stearns & Co., Inc., 265 S.W.3d 1, 5-6 (Tex.App.—Houston [1st Dist.] 2008, no pet.)(en banc).

What other documents need to be filed to perfect an appeal?

The appellant must file a docketing statement, request that the clerk’s record be prepared, and as necessary request the preparation of the reporter’s record. Tex. R. App. P. 32, 34.5, and 34.6.

What Are the Standards for Mandamus Proceedings?

A writ of mandamus is appropriate where the trial court abuses its discretion and there is no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court abuses its discretion if it reaches an arbitrary and unreasonable decision that amounts to a clear and prejudicial error of law. Walker, 827 S.W.2d at 839. Factual determinations cannot be overturned unless the reviewing court finds that those determinations were arbitrary and unreasonable. Id. at 840. However, a clear failure to correctly analyze or apply the law is an abuse of discretion, subject to relief by mandamus. Id. A trial court’s erroneous determination of the law constitutes a clear abuse of discretion. Id. This principle is true even in unsettled areas of the law. Huie v. DeShazo, 922 S.W.2d 920, 927-29 (Tex. 1996)(orig. proceeding). Whether an adequate remedy on appeal exists turns on the word “adequate,” which has no comprehensive definition and requires a careful balancing of jurisprudential considerations to determine whether mandamus relief should be granted. In re Prudential, 148 S.W.3d at 136. “Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted during eventual reversal of improperly conducted proceedings.” Id. Essentially, an appellate remedy is adequate when the detriments of mandamus relief outweigh its benefits, and conversely an appellate remedy is inadequate when the benefits of mandamus outweigh its detriments. Id.

Texas Supreme Court Update

Trial Court Must Explain Why Granting New Trial

For over 100 years, trial courts had the ability to grant a new trial without providing any justification. In a trilogy of cases, the Texas Supreme Court recently reversed course, now requiring the trial court to provide justification for the new trial. In re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. 2009); In re Baylor Medical Center at Garland, No. 06-0491 (Tex. 2009); and In re E.I. du Pont de Nemours & Co., No. 08-0625 (Tex. 2009). In each case, the Texas Supreme Court required the trial court to specify why a new trial was granted. What remains to be seen is whether satellite litigation will develop over the sufficiency of the trial court’s rationale in granting a new trial.

Limitations Tolling Provision Does Not Apply If Defendant Is Amenable to Service Out-of State

Section 16.063 of the Texas Civil Practice & Remedies Code tolls the limitations period while the defendant is absent from the state. This provision – as evident from its title – was meant to apply to defendants that were temporarily out of the state. The Texas Supreme Court recently clarified that this provision does not extend the limitations period if the out-of-state defendant is amenable to service. Ashley v. Hawkins, No. 07-0572 (Tex. 2009). This case is also a useful reminder that bringing suit within the limitations period not only requires filing suit but also requires the exercise of diligence in effectuating service on the defendant. Id.

Responsible Third Party Statue Does Not Revive Claims Precluded by the Statute of Repose

The legislature has now enacted several statutes of repose, for example protecting architects, engineers, and physicians. As opposed to a statute of limitations, the statute of repose is a deadline by which all claims must be filed regardless of any potential defense to a limitations period. The statute of repose creates a firm deadline by which a claim must be filed or it is forever precluded. Recently, a question arose whether the responsible third party statute – that extended the limitations period for sixty days for any party named a responsible third party – revived the ability to sue even if the statute of repose had passed. The Texas Supreme Court clarified that the responsible third party statute does not revive claims precluded by a statute of repose. Galbraith Engineering Consultants, Inc. v. Pochucha, No. 07-1051 (Tex. 2009).

Benefits of Hiring an Appellate Lawyer

An experienced appellate lawyer brings six strengths to the table to help advance your position in the trial court and on appeal. First, because not every error is reversible error, the appellate lawyer can help preserve the errors that have a greater likelihood of being reversed on appeal. Through knowledge of the hot appellate issues as well as the standards of review, the appellate lawyer can help you craft arguments that are more likely to win on appeal. Second, more and more appeals are being resolved without oral argument. The appellate lawyer is an expert in writing and can help you by devoting time that you do not have to crafting the winning brief. Third, the appellate lawyer has expertise in the area of appellate law and is familiar with the rules and deadlines. This familiarity creates efficiency in the appellate process. Fourth, the appellate lawyer is able to step back and take a fresh look at the case. When in the heat of battle in the trial court, the trial lawyer becomes the advocate for the client and can, at times, lose sight of the big picture or whether the error is truly reversible error. An appellate lawyer, while still advocating for the client, evaluates the case from a new set of eyes, and thus the appellate independently evaluates whether the error is truly reversible error. Fifth, the appellate lawyer keeps track of advances in the law, which can help you argue for a change in the law, or more importantly, keep you from setting precedent that is harmful to your litigation strategy. Finally, the appellate lawyer sends a signal that you are serious about your position. With appellate counsel involved, trial courts worry that they may be reversed on appeal, and opposing counsel know that you may appeal any adverse outcome. Working with your appellate counsel before and after a judgment has been entered helps you ensure that the client will receive the best possible outcome.