A.  Need final jj to appeal.

B.  When is a judgment final? 

1.  pretrial dispositions:  the party seeking drafts the jj

a.  include all the parties

b.  all the claims

c.  Mother Hubbard clause

2.  trial & verdict => @ trial w/ verdict & jj => presumption

3.  jj not reduced to writing? 

a.  Dunn v. Dunn  oral jj of divorce, then H drops dead right after; W wants all the money and files motion to dismiss b/c jj only pronounced and not final

b.  rule:  pronouncement = final and too late to get rid of jj (but to appeal you need to get it in writing)

c.  judge says I intent to grant jj => not final jj

d.  S&A Restaurant court said he would approve the jj and this wasn't final

e.  stmt of "about to" render jj is not enough

4.  Multiple D's

a.  get severed

b.  ???

5.  Judgment: 

a.  get in writing

b.  get it dated

C.  Trial court's plenary power

1.  TRCP 306a:  periods run from when jj signed

2.  need date

3.  trial clerk is supposed to send you notice of the jj

4.  if you don't get notice of a jj 306a(4)

a.  w/in 20 days after the jj

b.  party or atty has not actual notice

c.  time to appeal runs from date you got notice

d.  except never starts to run more than 90 days after jj signed

ex.  jj on day 1; on the 22d day you notice there's a jj (actual kn); since this is w/in 20-90 days, you can still appeal

file notice w/ trial ct judge saying no notice until 22d day,; now 22d day becomes day 1 for timing purposes

if you get notice on 19th day, you have only 11 more days to file

5.  nunc pro tunc orders:  if typo kind of error on jj you can get it corrected

6.  time to file appeal motion

a.  general rule:  (329bd) jj + trial ct has 30 days of plenary power

i.   procedures

A. can file MNT

B. can file moition to correct, reform jj

ii.  effect:  filing A or B extends trial ct's power up to 75 days from date of jj

A. if no ruling => automatically overruled after 75 days

B. writen order to overrule

iii.  if overruled => trial ct. gets 30 more days! (for A or B)

iv.  if granted (any part at all) => all your deadlines start over

b.  329b(g):  329b(h) if judge changes jj in any respect, timetables start over; 329b(d)

c.  Lane Bank  (wasn't listening; on p 7);  held that only a motion seeking a substantive change wasn't a 329b motion and din't extend plenary power (I think that included habeus)

D.  Trial court's power to grant a new trial

1.  necessity of written order

a.  trial judge can do anything during the 30 days even if you don't reqeuest anything

b.  when you want a MNT bring an order w/ you so it will be easy to get it signed b/c it must be written and sigend to be an effective mNT w/in the deadline

2.  The order granting the NT is not reviewable.

E.  Preserving Complaints for Review

1.  necessity for preservation

2.  general rules

a.  specific timely objection & get ruling

b.  does the complaint presernt error?

c.  was there harm?

3.  evidentiary requirements

a.  object, specific, ruiling, oop if necessary w/ ct reporter

b.  sustained:  don't have to reobject

c.  overruled: 

4.  Motions in limine

a.  just b/c MIL granted, error not preserved (but when opposing ocounsel brings it up, that is a violation of the MIL)

b.  if MIL denied, have to still object in front of the jury (but not in federal court)

5.  no evidence complaint

a.  make mtn for directed verdict b/c no E of prox cause; trial judge rules

i.  overruled => preserved

b.  make jnov; moving for jnov & trial ct overruled; that preserves; at appelate level ct can render for you

c.  objecting to jury issues; motion to disregard jj (seldom happens b/c global submissions)

c.  if do MNT and complain there, you have preserved but you've preserved it by asking for a new trial & you won't have rendition

6.  when is a MNT req'd to preserve things for appeal? (R 324b)

a.  jury misconduct or newly discovered E

b.  factual nsf of the E to support a jury finding

c.  jury finding against overwhelming weight of the E

d.  inadequate or excessive damages

e.  incurable jry arg if not otherwise ruled on by the court

7.  cross points:  will come back to later; in the event you restore this verdict if you don't here is the error??

F.  Perfecting an Appeal

1a.  when - signing of final jj starts the clock

1.  what to file

a.  notice of appeal:  file a written notice of appeal w/ trial ct clerk (and copy w/ appellate ct) & this "perfects" the appeal

b.  jx of appellate court:  effect of filing notice of appeal invokes the appellate ct's jx over th eparties to the tc's jj

c.  who files:  any person who wants to alter the tc's jj; ct of app. can't grant more favorable relief than did trial court, except for just cause

d.  contents of notice:  TRAP 25.1

1.  trial ct, case no, style

2.  date of jj (or order)

3.  state you desire to appeal

4.  court appealled to:  just state what district except in Houston where you can state either the 1st or 14th; there are a few others where you can go to more than one ct of app. - if you do you can chose (except 1/14 where they decide)

5.  name of ea party filing notice

6.  if acellerated, state

e.  service notice of appeal

1.  to all parties to jj or all parties in tc proceeding if itnerloc appeal

2.  mistakes...

3.  TRAP 32 docketing stmt must be filed in appellate ct (can usually get online) w/ names, addy's, ph or parties/counsel, date filed, tc's name & cty. & trial judge, date of any MNT or request FFCL, and **court reporter's name/addy**

4.  cause no:  10-99-340-CV (CV = civil or CR = crim); 10 = 10th ct appeals, 99= year

f.  time to perfect:  from signing jj

1.  general rule:  30 days (interloc order = 20 days)

2.  unless you've filed, MNT, modify, mtn to reinstate, req. FFCL => extend your time to file notice of appeal for 90 days from signing of jj

3.  exceptions:  20 days accellerated appeal (and some other v. fact specific exceptions)

4.  what if filed on 90th day after singning jj?  you still have 14 days to file a notice of appeal if you are opposing party (to modify attys fees or something)

5.  Notice of Extention (Trap 26.3)

a.  file w/in 15 days after date noa was due (in tc & appellate ct)

b.  state deadline, fact rzbly explaining the need for the extension, cause no, date of jj

i.  rzbly explaining:  I messed up (negligence prob.)

6.  ffcl:  not for MSJ???  bench trials....?  IKB v Pro Line

7.  "filed"  filed to someone who is willing to accept delivery

8.  computing time:

a.  weekend, legal holiday:  time extends to end of next day

b.  clerk's office closed or inaccessible:  extends to end of day when open

9.  no notice of jj (same as above) TRAP 4.2

10.  mailbox rule:  Trap 9.2b

a.  US mail

b.  properly addy, stamped

c.  by end of due date

d.  as long actually to clerk w/in 10 days of due

11.  Motions:  Rule 10.1 (see this part) cert of conference

G.  Record on Appeal

1.  clerk's record: 

a.  live pleadings, docket sheet, charge & verdict, FFCL, jj/order appealed from, MNTs, orders, noa, bills of exception, request for records, bill and other material papers;

b.  you need to designate anything else you need (b/c you'll get the latest petition, for ex.?)

2.  reporter's record

a.  file:  at or before time for perfect appeal but if you don't its ok

3.  responsibility for filing appellate rec.

a.  trial ct clerk if you (1) filed noa and (2) paid or made arrangements to pay

b.  reporter responsible for reporters rec if (1) filed noa and (2) paid or made arrangements to pay

4.  time to file record

a.  deadline for record(clerk & recorders): 

i.   60 days for ord. appeal or

ii.  120 days if MNT, FFCL

b.  what if you don't get in time?

i.   as long as you filed & paid, you are not in trouble; the ct app will send clerk a notice or something

ii.  can even throw you in jail

5.  lost or destroyed records:  get new trial if

a.  if something significant

b.  not appellant's fault

c.  can't agree on complete reporter's record

d.  ct reporter can destroy after 3 years, so you must request them to preserve notes if you don't have the transcription per Minns v. Pitrowski

6.  amending the record

a.  easy

7.  partial record

a.  if you have a ltd. appeal you can ask for only part of the record

b.  other side can ask for rest if they want it/need it for their part of the appeal

8.  effect of new rules

9.  electronic record:

a.  "official court recorder" would make tape recordings & your staff can transcribe them; this hasn't worked v. well

b.  a few cts. allow  R. 3 of Procedure for Making a record

H.  Briefs in Ct of App:  TRAP 38, 9

1.  Form and content:

appellant:

a.  toc

b.  table of authorities

c.  stmt of case (1/2 page and don't discuss the facts; "this is a K dispute involving...")

d.  all issues/points of error presented

e.  stmt of facts (w/ record references)

f.  summary of the arguments made in the brief:  succint, clear, accurate

g.  argument for the contentions w/ appropriate citations:  clear concise

h.  prayer for relief:  sufficiently & clearly state relief sought

i.  appendix

i.  trial ct's jj or other appealable order

ii. jury charge, verdict or ffcl

iii. text of any rule, statute, etc.

appellee: 

form:

·         can only be 50 pages

·         typed or printed, double spaced

·         8 1/2 in. pages

·         10 in courier or 13 pt type

·         number of copies

cover:

·         request oral argument

·         put bar number on it

·         color cover:  not red dark blue black plastic (so can be stamped)

·         bind so lies flat or staple on upper L

2.  due dates

a.  30 days after filing of cler's or reporter's record (later) 38.6a

b.  can move be extend (r 10 mtns for extension)

c.  appellees brief due 30 days after appellant's brief

d.  some stuff here on extensions that I missed

3.  amendment and supplmentation of briefs

4.  failure to file a brief

5.  points of error (new way)

6.  issues presented (old way)

7.  drafting points:

a.  be concise

b.  don't throw in points "just in case"

c.  don't misstate the facts

d.  don't take liberty w/ the holdings of the cases you cite

I.  Unassigned error:  doesn't exist - if not preserved, then no appeal

J.  Cross-Points, Cross-Appeal  38.2b

1.  cross appeal:  ex.  P gets $ jj; D appeals saying no prox cause; P could just file reply brief but P could cross appeal.  Notice of appeal for reinstatement.  So now both ppl wear both hats.  Most local rules allow you to consolidate briefs.

2.  cross points:  jnov:  P v. D; P gets lots of money; D files jnov saying no E of prox. cause & that works; P gets $0, now.  So P appeals saying jnov improper.  There are no other points of appeal that P would want to argue.  D reply saying jnov proper.  D should also file cross points in case jnov vacated.

K.  Oral Arguments

1.  must request oral argument on front cover (both parties should request)

2.  usually oral argument is granted

3.  waiving oral argument (on purpose - once you've asked for it); rare but call ahead

4.  green, yellow, red light for time (reserve for rebuttal if you need to)

5.  can't talk to briefing atty's about confidential stuff

6.  hot v. cold courts (the ones that read about your case first or not)

7.  know your record cold so you can refer judge to important stuff

8.  know the local rules; esp. for rebuttal (some cts. won't let you talk about something new)

L.  Standards of Review & Scope of Review (p. 21)

1.  see law review article by Hall, 1998.

2.  scope of review:  how much of the record will the appellate ct consider?

3.  standard of review:  rules by which the evidence is judged

a.  abuse of discretion:

i.   all discretion put in tc

ii.  if any kind of fact Q will be affirmed

iii. sometimes won on questions of law

iv. Jackson v. Van Winkle  MNT overruled on newly discovered evidence (there was an ez); tc found no ez; at some pt. after jj P's found new E of ez; Texas sct. found no abuse of discretion b/c tc saw the later discovered affidavits but held no new trial because no due diligence; rule need due diligence to get MNT granted on basis of newly discovered evidence

v.  In re Van Waters:  (Tex. 00) mandamus case; toxic tort; was a really bad abuse and the ct. mandamussed tc judge; abuse of discretion in discovery context (clear abuse b/c M)

b.  no evidence/insufficient evidence: 

no evidence

i.   no evidence points are allow the appellate court to render b/c there's nothing there to retry the case on

ii.   if you do not have the BOP on the case, the

1.  scope of review = only look for E in the record that supports the jury's finding

2.  standard:  any evidence at all; more than a scintilla

A. complete absence of evidence

B. no more than a scintilla of evidence

C. E conclusively establishes the opposite

iii. Landon case (Austin 97)

iv.  Havner  if expert unreliable can say since his was only E of causation that case could not withstand no evidence appeal

insufficient evidence

v.  insufficient evidence standard:  clearly against the great weight or preponerance of the E so that it shocks the conscience and shows bias (there are 2 but Kat can't tell the difference)

vi. Can the supreme court determine fact questions (affirm them)?  No, but they can tell the ct. app. that it didn't use the proper standard to determine the evidence sufficiency.

M.  Reversible Error  TRAP 44.1

1.  reversed at ct. appeals on grounds that trial ct errors only if

a.  probably caused rendition of improper judgment

b.  you can't get the evidence (??)

2.  44.1b:  only one part of case has error

a.  if the error only touches one part of the case, you can remand only that case,

b.  but if liability is contested you can't have a separate trial only on damages

c.  Estrada . Dillan both parties appealed; wanted to just appeal damages but couldn't only appeal on unliquidated damages

3.  history:  pre WWII presumed error

4.  what can ct appeals do?

a.  can modify jj and then affirm

b.  reverse & render (eg on no E appeal)

c.  vacate jj & dismiss

d.  dismiss appeal

*)  timing of apeal

1.  order of precedence: rule says preferential cases go first but doesn't say what cases are preferential;  R. 40 (not in materials)

a.  termination cases (parental rts. terminated) b/c family code says that case is preferential

b.  they're all hidden in various statutes

2.  accelerated appeals

a.  election laws

3.  interloc appeals

a.  class certification

N.  Opinions Publications Citations

1.  opiniongs

a.  ct of appeals must write writtten opinion

b.  the opinion can be in brief memoranda form ("we affirm.")

2.  publish  R 47.4

a.  new rule of law

b.  novel facts

c.  public interest question

d.  criticism of existing law

e.  resolving a conflict

3.  ramifications of publication

a.  unpublished = no precedential value

b.  if published may be taken up by Texas sct.

Speaker 

1.  differences btwn Texas and federal procedure;

a.  rules

i.   fed:  different appellate rules for circuit courts and for supreme courts; there are also local rules for each court

b.  process

noa

i.  Fed:  invoke jx; file notice of appeal 30 days after jj (10 days in crim case)

ii. Texas:  30 days in civil and crim cases

iii. same:  free record if indigent

iv. same:  statutes to get ct. appointed lawyer for appeal

records

i.   contact the clerk and ask how to order clerk's record (usually $1/pg); contact ct reporter to arrange to purchase, pay for ct reporter's record

briefs

i.  state ct:  30 days to file brief and 30 days to reply

ii. federal ct:  40 days to file

iii. check the local rules for brief rules about appendices, etc.

iv. e.g. supreme court you have to have little books and get 40 copies

v.  clear; transitions btwn paragraphs; grammar; Garner - Elements of Legal Style; citations proper

vi. cite liberally to the record b/c judges have to time to read the whoe record; do not prevericate - be faithful to the authority you cite

vii. apply the SOR's to your brief

viii. don't leave out important docs in appendix (ex. the K at issue)

2.  Davidian case

a.  San Antonio; 6 week trial

b.  appeal to 5th cir; issue whether judge gets to determine an issue

c.  resentencing came new jj, so filed new noa, new briefs and back to 5th cir.; new 3 judge panel & second opinion aff'd jj; en banc denied;

d.  petitioned for cert on one issue:  whether the judge's machine gun finding that increased the sentence should have been asked of the jury; cert granted

e.  Aprendhi:  re when something is an element of an offense case went right before them

f.  summer '00 reversed sentence of clients; resentencing 40 to 15 years

3.  oral argument

fed

a.  file statement requesting and saying why you need oral argument

b.  there is a rt. to oral argument unless all three judges decide it's unnecessary

c.  5th cir. handles criminal appeals into 1-4 categories and they go through lots of cases if no merit w/o even looking into authorities in briefs; they are simply aff'd

Texas

a.  you must state on front of brief that you want oral argument

b.  you usually get it (in 10th cir.)

c.  you should request oral argument unless you've just filed out of obligation to client

d.  Waco:  15 appellant, 15 appellee, 5 rebuttal and usually extra time for more parties

5th cir

a.  in New Orleans but hear appeals all over in panels of 3 judges

b.  very large an opulent and thus intimidating

c.  arrive, check in @ clerk's office, tell them split of time (20 min per side)

Supreme Court

a.  taken up to a room and the clerk gives you some instruction

b.  very close to judges when you argue

4.  dos and don'ts

a.  this is not law school moot court - less formal; be conversational - don't lecutre and don't make a closing argument; you want them to ask you questions

b.  be clear - not if you're getting all your arguments out obut if you're clear

c.  get to the issues - skip the b/g

d.  be flexible if you're asked a question; don't be tied to your script

e.  frontload

f.  don't bring so much stuff w/ you; bring briefs, copies of controlling law, and outline of argument

O.  frivolous appeals:  R. 45

1.  party or court can bring a motion and you do have chance to respond

2.  sanctions "just costs"

P.  motion for rehearing:

wasn't listening

Q.  Appealable SJ's

1.  Mafrige

2.  Inglish  Ct sets bad precedent

3.  Layman v. Harcon  2 ways to have final appealable SJ

mother hubbard clause alone doesn't make it "final?"

a)  does it actually dispose of all claims of all parties (so say that in your jj)

b)  or if it states w/ unmistakable clarity that this is a final jj

4.  exceptions

a.  Tobin  if both parties moved for SJ then it's a question of law issue; the party whose MSJ was denied then it can be appealed

b.  CPRC 51.014(6)  ex. allows interloc appeal for SJ denial re first amendment & media (like WFAA v. McLemore)

c.  and official immunity cases

5.  Baylor law review article about appealing SJ; 50 Baylor L Rev 813 (1998)

R.  Appeals from Interlocutory Orders: 

1.  CPRC 51.014

a.  receivership or overruled

b.  class certification

c.  TRO's

d.  denies MSJ based on immunity

e.  denies MSJ based on media & 1st am.

f.  grants/denies special appearance (except family code)

g.  grants/denies plea to jx

2.  effect:  stays trial

3.  other grounds

a.  arbitration is denied

b.  (un)sealing records

c.  intervention and joinder

4.  procedure:

a.  accelerated appeal

b.  tc retains jx

c.  jj of ct of appeals is conclusive (can't go to Tex. SCT)

d.  unless:

i.   class certification  Schein case (not in notes)

ii.  denial of SJ re media-fist am. (WFAA v. McLemore)

iii. civil cases where justces of coa disagree or holding conflicts w/ another coa or sct. precedent

S.  Restricted Appeal

1.  TRAP 30

2.  req's

a.  must be a party

b.  did not participate person or by counsel

c.  in petition filed w/in 6 mos of date jj complained of

d.  showing error on the face of the record

T.  Mandamus

1.  elements:

a.  no adequate remedy by appeal

b.  clear abuse of discretion

2.  name:  in re relator

3.  verify

4.  sanctions if groundless, grossly misstated facts, just to delay, intentionally omitted items from appendix

5.  will not stay trial!  can request emergency relief if there's some trade secret, etc.; call coa and tell them and notify opposing counsel & have proof of that for coa

6.  examples:  apex depos

U.  Proceedings in the Supreme Court