No, you may not appeal that.

no gifThe new “permissive appeal” procedure has not led to a lot of permissive, interlocutory appeals; another example of that trend appears in Oklahoma Specialty Ins. Co. v. St. Martin de Porres, Inc. The parties stipulated to damages, the trial court found the policy ambiguous and thus interpreted in a certain way, and said it would follow whatever the Fifth Court decided about that interpretation. The Court declined to hear the case, finding: “Given the posture of this case following the trial court’s rulings and the parties’ stipulations, we conclude a permissive appeal will not materially advance the ultimate termination of the litigation by considerably shortening the time, effort, and expense involved in obtaining a final judgment. (applying Tex. Civ. Prac. & Rem. Code § 51.014(d).

Intervention, appeal, and other such matters

webSmith intervened in a case after a judgment had been entered; the trial court granted a motion to strike his intervention. Resolving a tangled web of procedural issues, the Fifth Court held that (1) the striking of his intervention was not appealable before final judgment; (2) Smith’s appeal was limited to the merits of his intervention, not the claims of others; and (3) Smith’s filing of a motion for new trial extended the appellate deadlines. Smith v. City of Garland, No. 05-16-00454-CV (Apr. 20, 2017).

“Rhetorical Flourish” ≠ Defamation

card flourishThe Fifth Court affirmed summary judgment for D Magazine in a defamation suit by a former volunteer, finding that most of the statements at issue were unactionable opinions or accurate statements of fact. Summarizing the underlying principles of free speech, the opinion reminds that a “rhetorical flourish” that is “merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff’s feelings, is not actionable.” The court lacked appellate jurisdiction over part of a related appeal by the Dallas Symphony, since it involved the denial of a summary judgment about a tortious interference claim rather then free speech issues, although the Court was able to address the civil conspiracy claim against the Symphony. D Magazine Partners LP v. Reyes, No. 05-16-00294-CV (April 18, 2017) (mem. op.)

Nope, not final.

In Viveri Youth Service v. Orme, the Fifth Court dismissed an appeal for lack of a final judgment. While the docket sheet indicated the case had been closed, the Court observed: “The last order, however, contains no language of finality or other indication the case was closed. While the trial court’s docket sheet reflects the case was closed, a docket sheet entry does not constitute a judgment or other appealable order of the trial court.” No. 05-17-00002-CV (April 11, 2017) (mem. op.)

Should I pay or should I appeal now?

the clashAn attorney paid a sanction and then challenged the sanctions order as part of the appeal from the final judgment in the action. In reviewing an objection based on mootness, the Fifth Court observed that while an appeal becomes moot “when a judgment debtor voluntarily pays and satisfied a judgment rendered against him,” the purpose of that rule is “to prevent appellants from misleading their opponents into believing a controversy is over when it is not.” Thus, “payment on a judgment will not moot an appeal of that judgment if the judgment debtor clearly expresses an intent that he intends to exercise his right of appeal and appellate relief is not futile.” Here, before the attorney paid the sanction, the other side had notice of his intent to appeal when payment was made, so the appeal was justiciable. Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV (March 28, 2017) (mem. op.)

For whom the bell tolls, it tolls for the appellee

bellsA useful reminder about timeliness appears in Duchouquette v. McWhorter, in which the appellant filed a late notice of appeal within the 15-day grace period, but neglected to move for leave to extend the deadline. In addition to dismissing the appellant’s appeal, the Fifth Court dismissed the cross-appeal noticed 8 days after the appellant’s: “[T]he Court does not have jurisdiction over a cross-appeal where the original notice of appeal is untimely.” No. 05-17-00041-CV (March 13, 2017) (mem. op.)

Stopping time: invoking lack of notice to preserve post-judgment relief

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In In re: Douglas D. Halofitis, No. 05-16-01047-CV (Sept. 27, 2016) (mem. op.), the Fifth Court gives a helpful roadmap for parties who seek to challenge a judgment of which they were given late notice.  We know that trial courts usually lose plenary jurisdiction over a judgment within 30 days after the court signs the judgment, which is also the deadline for filing an appeal. But what if you don’t receive notice of the judgment?

Under Rule 306a, when a party does not receive notice or acquire actual knowledge of judgment within twenty days, the deadlines begin to run not from the signing of the judgment, but instead from the sooner of the date the party received notice or acquired actual knowledge of the judgment or 90 days after the judgment was signed. A few pointers to keep in mind:

  1. the 306a motion must be sworn and must establish the date of first notice or knowledge of the judgment and that this date was more than 20 days after the judgment was signed;
  2. the 306a motion, including any evidentiary supplements necessary to satisfy the procedural requirements of 306a(5), must be filed within the court’s plenary period as calculated from the date of first notice or knowledge of the judgment;
  3. the movant should seek an immediate evidentiary hearing on the 306a motion and obtain a finding of fact of the date of first notice or actual knowledge of the judgment;
  4. in no event will the periods begin to run more than 90 days after the judgment is signed, meaning that if you receive notice more than 90 days after the judgment is signed, your only avenue may be a restricted appeal or bill of review; and
  5. the 306a motion should be coupled with a post-judgment motion, e.g. motion for new trial, motion to reinstate, or motion to modify judgment. If you wait for a decision on your 306a motion, your post-judgment motion may end up being untimely even if your Rule 306a motion is successful because post-judgment motions must still be filed within 30 days of the date found to be the date of first notice or actual knowledge of the judgment.

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Adverse judgment, lots of fallout

2000px-united_states_fallout_shelter_sign-svgHenry S. Miller Commercial Co. lost a trial on a fraud claim but succeeded in a later malpractice claim against its trial counsel. The Fifth Court resolved two issues – (1) postjudgment assignment of malpractice claims as part of a reorganization was acceptable where “Here, HSM asserted its own malpractice claim against the Lawyers in its own name. It pursued its own claim through trial and judgment. Under these circumstances, HSM’s right ‘to bring [its] own cause of action for malpractice is not vitiated’ by the assignment to its judgment creditors” (applying Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 629 (Tex. App.—Dallas 2000, pet. denied)); and (2) the trial court erred in dismissing HSM’s claim for gross negligence based on the failure to designate a key responsible third party. Accordingly, because a new trial was required on punitive damages, it was also required on compensatory damages, and thus liability as well. Henry S. Miller Comm’l Co. v. Newsom, Terry & Newsom LLP, No. 05-14-01188-CV (Sept. 14, 2016) (mem. op.)

A picture is worth a thousand words

truckTen Hagen Excavating, Inc. v. Castro-Lopez presents a detailed review of the evidence about a serious truck accident, involving issues of tort law beyond the usual scope of this blog. As a matter of style, the opinion is notable for deftly using accident photos in its description of and analysis of the issues, as well as a diagram of how the accident happened. No. 05-15-00902-CV (Aug. 29, 2016).

A brief on briefs

appellate-argument-briefs-consultantsWe all too easily forget that the requirements of a good appellate brief are defined by law, as recently noted in Lau v. Reeder, No. 05-14-01459-CV (Aug. 16, 2016) (mem. op.)

As to the issues presented, “a brief must state concisely all issues for review and reveal the legal questions we are called upon to decide. See TEX. R. APP. P. 38.1(f); Bolling v. Farmers Branch Indep. Sch. Dis., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.).”

As to the record citations that accompany the argument, the Justices “have no right or obligation to search through the record to find facts or research relevant law that might support an appellant’s position because doing so –4– would ‘improperly transform this Court from neutral adjudicators to advocates.’ Chappell v. Allen, 414 S.W.3d 316, 321 (Tex. App.—El Paso 2013, no pet.)”

And as to good draftsmanship, a brief does not violate the rules but is notably unhlepful when the table of contents “indicates that the argument portion of the brief for all nine issues is located on pages 18 to 94 without any indication or notation as to where specific issues are addressed,” and the 77-page argument section “also does not denote where each of the nine issues is discussed and the only arguable headings in this section do not identify the issues to which they are attached.”