But it said “final” —

At issue in Galaxy Builers, Ltd. v. Globus Management Group was a trial court order denying enforcemement of an arbitrator’s subpoena. While the order said that it was final, section 171.098 of the Texas Arbitration Act does not list it as an appealable category of arbitration-related ruling; thus, the appeal was dismissed for lack of jurisdiction. No. 05-17-00831-CV (Oct. 2, 2017) (mem. op.)

No discretion means . . . no discretion.

The trial court dismissed Williams’s lawsuit for want of prosecution. Williams moved to reinstate, triggering Tex. R. Civ. P. 165a(3), which requires the court to “set a hearing on the motion as soon as practicable.” The trial court did not do so, and reversal resulted because under the language of this rule, “the trial court has no discretion to fail to hold a hearing.” Williams v. Moreno, No. 05-16-01114-CV (Sept. 7, 2017) (mem. op.) While arising from direct appeal rather than a petition for mandamus, this outcome is a useful reminder as to other such mandatory rules.

How to characterize what your opponent says.

If your opponent makes unclear arguments on appeal, after a bench trial with detailed findings of fact and conclusions of law, the opinion of Pelley v. Wynne, No. 05-15-01560-CV (Aug. 28, 2017) (mem. op.), reminds of two principles to bring clarity:

  1. “When a party’s issue globally attacks the trial court’s findings of fact and there is no method to ascertain the appellant’s true objection to the sufficiency of the evidence, the findings of fact issued by the trial court are binding on the trial court.” (“However, the binding nature of the trial court’s findings of fact does not prevent an appellate court from reviewing the conclusions drawn from those factual findings.”)
  2. An attack on a conclusion of law, as required by Tex. R. App. P. 38.1(i), must “contain a clear and concise argument for the contentions made, wiith appropriate citations to authorities and to the record.”

Does the “memorandum of decision” start the appeal clock?

In the recent family law case of In re: B.W.S., this memorandum was held to not start the running of appellate deadlines; the Court notedd (among other things) how the parties reacted:

When a document such as the Memorandum here instructs the parties to prepare an appropriate final order, this is evidence that the trial court did not intend the document to be a final judgment. This is supported further by the fact the trial court signed the Final Order in this case three months later. Additionally, the parties did not treat the Memorandum as a final judgment below. Mother did not file post-judgment motions after the court sent the Memorandum; she filed them after the trial court signed the Final Order. And even though Father argues on appeal that the Memorandum was the final judgment, he did not argue that below, and he also filed a motion asking the court to sign a final order.

No. 05-15-01207-CV (Nov. 28, 2016) (mem. op.) (citation omitted). In contrast, in the recent family law case of In re B.D., a similar memorandum was held to constitute a judgment and start the running of appellate deadlines; discounting (among other things) how the parties reacted to it:

“Despite the trial court’s hearings to consider appellee’s motion to sign an order and its subsequent order, we conclude the memorandum substantially complies with the requisites of a formal judgment to be accorded final judgment status triggering the appellate deadline.”

No. 05-17-00674-CV (Aug. 31, 2017).

The key distinction between these opinions seems to be the inclusion  of express language that the memorandum is not intended as a judgment, and that requests the parties to prepare draft judgments. This practice echoes the general custom endorsed by Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), of including “language of finality” in a ruling intended to be a final judgment. Of course, even under Lehmann, the substance controls rather than the “magic words,” so this area looks to be one that will continue to pose practical challenges. (SPECIAL THANKS to Hon. Emily Miskel of the 470th District Court in Collin County, who alerted me to these cases on her informative Twitter feed.)

Rare bird sighted – appeal of order to pay for reporter’s record

In the department of “rarare birdre bird sightings,” the case of Hollingsworth v. Walaal Corp. involved an appeal, under the newly-revised Texas Rule of Civil Procedure 145, to a trial court order requiring an appellant to pay for a reporter’s record. The appellant filed an affidavit of inability to pay costs and the trial court had an evidentiary hearing on the appellees’ challenge to it. Recognizing that the appellant did not offer tax returns or the like, the Fifth Court reversed, finding that his “testimony was uncontroverted” and that “[a]lthough the trial court was required to evaluate Hollingsworth’s credibility, the trial court was not free to completely disregard the only evidence establishing his inability to pay costs when no evidence was offered in rebuttal.” No. 05-17-00555-CV (June 9, 2017) (mem. op.)

Go there, not here.

arrowsDahlheimer sought a writ of injunction in the court of appeals to stay proceedings involving a receivership about the sale of a home. The Fifth Court found that it lacked jurisdiction, noting that its injunctive power is limited to “jurisdiction over the subject matter of a pending appeal,” and that “[t]he power to grant a temporary writ of injunction to prevent damages which would otherwise flow to  alitigant who has an apppeal pending rests exclusively with the trial court.” In re Dahlheimer, No. 05-17-00556-CV (June 8, 2017) (mem. op.)

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.)