A 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.)
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:
- 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;
- 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;
- 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;
- 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
- 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.
Henry 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.)
Ten 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).
We 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.”
The appeal of an eviction case was resolved largely by the lack of a reporter’s record in Lyons v. Polymathic Properties, Inc. The opinion reminds of several basic principles triggered when a reporter’s record is required, which are worth remembering when considering whether to obtain a record, and in responding to an argument if an opponent has not obtained one:
- The judgment of the trial court implies all necessary findings of fact to sustain the judgment; “[i]n other words, we must presume the missing reporter’s record supports the decisions of the trial court”;
- Attaching a partial transcript to a brief is not a substitute for a formal reporter’s record; and
- Statements in a brief that are unsupported by the record cannot be accepted as facts.
No. 05-15-00408-CV (June 29, 2016) (mem. op.)
Rainier Income Fund I, Ltd. v. Gans presented an appeal from the district court’s confirmation of the rulings of a “special judge” appointed under chapter 151 of the Texas Civil Practice & Remedies Code. The appellant moved for a new trial before the district court; the appellee contended that it was not effective to extend the appellate deadline, as the district court’s power to grant a new trial in this posture is significantly limited by chapter 151. After a thorough review of the statute and the general principles surrounding the motion for new trial in Texas, the Fifth Court concluded that the motion was effective and the deadline was extended. In particular, it noted the Texas Supreme Court’s reminder in Old Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) that: “The filing of a motion for new trial in order to extend the appellate timetable is a matter of right, whether or not there is any sound or reasonable basis for the conclusion that a further motion is necessary.” No. 05-00460-CV (June 7, 2016) (mem. op.)
The appellate bar is still getting used to section 51.014(d) of the Civil Practice & Remedies Code, under which a “permissive” interlocutory appeal may proceed under certain circumstances. In Hartford Accident & Indemnity Co. v. Seagoville Partners, after initially granting leave to appeal under that section, the Fifth Court reconsidered whether the trial court had in fact made “a substantive ruling on a controlling question of law” as required by the statute. After thoroughly reviewing the procedural posture of the case, the Court concluded that the trial court could have also decided on the basis of whether the evidence was sufficient to raise a fact issue under the legal standard advocated by the appellant. Accordingly, it dismissed the appeal. No. 05-15-00760-CV (June 9, 2016) (mem. op.)
AdvoCare filed a petition to take a Rule 202 deposition from Michael Moussa; Moussa, joined by Shereef Kamel, counterclaimed. AdvoCare obtained a $3,500 sanctions award against Kamel and his counsel related to that filing. They appealed, arguing that “AdvoCare never asserted any affirmative claim for relief in the suit, the rule 202 petition has been ‘superseded and rendered moot’ by the institution of arbitration proceedings initiated by AdvoCare against Moussa and Kamel, and their counterclaims are no longer pending because they have nonsuited the counterclaims.” The Fifth Court disagreed because no written order confirmed the nonsuit; accordingly, it dismissed for lack of appellate jurisdiction over an appealable final order. Kamel v. AdvoCare Int’l, L.P., No. 05-15-01295-CV (March 4, 2016) (mem. op.)
The wrenching facts of the paternity dispute in In re: H.H. provide a rare example of when a finding of legally insufficient evidence can justify remand rather than rendition. The underlying rule, Tex. R. App. P. 43.3, requires that “When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial.” Under the rule, in the Fifth Court: “Remand is appropriate when, for any reason, a case has not been fully developed below.”
Here, the child “was barely a year old when the trial court entered the decree of termination and had been in the custody of TDFPS for almost her entire life, never at any time living with Father. . . . Father has been incarcerated since before learning he was potentially the biological father of H.H. and admits in his appellate brief that he remains incarcerated. However, there is no evidence in the record regarding when Father will be released or his ability to care for H.H. in a manner consistent with her interests. Additionally, neither Father nor his attorney appeared at the hearing[.]” Accordingly, ” a remand of the case against Father is appropriate to further develop the record and is in the interest of justice.” No. 05-15-01322-CV (Feb. 12, 2016) (mem. op.)