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Texas Appellate Law Blog

Civil Appellate Practice Tips, Resources, and News

SCOTX: Attorney Fees Need Not Be Superseded on Appeal

By D. Todd Smith on Posted in Appellate Practice, Opinions & Judgments, Supersedeas, Supreme Court Orders, Texas Supreme Court

In November 2011, I posted about whether attorney fees must be superseded to stay execution of a judgment pending appeal. Today, in In re Nalle Plastics Family Limited Partnership (No. 11-0903), the Texas Supreme Court resolved a split among the intermediate courts of appeals and answered the question, “No.”

Let me set the stage a little. With some exceptions, filing a notice of appeal does not prevent a judgment from being enforced. Before 2003, an appellant seeking to supersede a money judgment had to post security in “at least the amount of the judgment, interest for the estimated duration of the appeal, and costs.” House Bill 4, the infamous tort-reform package, altered the security required by substituting “the amount of compensatory damages awarded in the judgment” for “the amount of the judgment.” So, for a money judgment, the appellant must now post security equaling the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs. Tex. Civ. Prac. & Rem. Code § 52.006; TRAP 24.2(a)(1).

Under the old rule, “the amount of the judgment” included not only actual or compensatory damages, but also any punitive or additional damages authorized by law. Commentators generally agreed that HB4 removed these sorts of “noncompensatory” damages from what must be secured, making it easier for defendants to suspend money judgments on appeal as the Legislature intended. But questions arose about whether a judgment debtor needed to supersede attorney fees and other matters making up “the amount of the judgment,” yet arguably outside HB4’s “compensatory damages” standard. A split developed among the intermediate courts on whether attorney fees must be included in the amount of security a judgment debtor must post to prevent execution on the judgment pending appeal. Continue Reading

Principled Appellate Decisions

By D. Todd Smith on Posted in Appellate Practice, Opinions & Judgments, Procedure, Standards of Review, Uncategorized

Yesterday afternoon, I gave a one-hour presentation to a group of 11 intermediate appellate justices on the topic of “Principled Appellate Decisions.” The presentation was part of the Texas College for Judicial Studies, a program providing educational opportunities to judges who desire to improve their adjudication skills and acquire specific training in their jurisdictional specialization. My involvement resulted from efforts to facilitate a relationship between the College and the State Bar Appellate Section.

The 11 attendees represented nearly half of the 14 Texas intermediate appellate courts. As I joked with the group, this was a little like an en banc argument on steroids. Fortunately, the attendees chimed in with questions and actively engaged in the discussion. I may have been there to help educate them, but I came away better educated myself.

The slides from my presentation appear below.

The “sound bites” come from a survey of appellate specialists reported in Stacy R. Obenhaus, Ten Things The Texas Courts of Appeals Could Do Better (According to the Appellate Bar), University of Texas 22nd Annual Conference on State and Federal Appeals (2012).

Upcoming CLE Presentation on IP Appeals

By D. Todd Smith on Posted in Announcements

At its March 21, 2013 luncheon meeting, the Austin Bar Civil Appellate Law Section is sponsoring a CLE panel entitled “Fundamentals of Patent Litigation and Appeals.” The panel will consist of moderator Bill Schuurman, Alan Albright, Amber Rovner, and Sheila Kadura. The event will take place at Green Pastures, 811 West Live Oak Street. Registration begins at 11:45, and the program will start at noon.

This topic has been on the Section leadership’s radar for quite some time. I’m glad it’s finally coming together. To ensure your spot, RSVP today to Blake Hawthorne at blake.hawthorne[at]txcourts.gov.

SCOTX Fixes Word-Count Glitches

By D. Todd Smith on Posted in Appellate Practice, Procedure, Supreme Court Orders, Texas Supreme Court

The Texas Supreme Court has issued an order correcting some of its recent amendments to the Texas Rules of Appellate Procedure. The most notable correction involves the certificate-of-compliance requirement regarding the new word count limits previously discussed here, here, and here. By adding the language underlined below, the Court has made clear that no certificate of compliance need be included when e-filing letters and other documents not expressly subject to word counts, such as motions for extensions of time:

(3)  Certificate of Compliance. A computer-generated document that is subject to a word limit under this rule must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document.

The Court also made clear that word counts apply to permissive appeals under TRAP 28.3 and removed a stray page-count reference in TRAP 52.9.

At this point, the only documents subject to word count limits are those listed in TRAP 9.4(i)(2) and TRAP 28.3(g). Therefore, these amendments confirm that a certificate of compliance need only be included when filing one of those documents.

To Cite or Not to Cite: Do Unpublished Opinions Have Precedential Value?

By Maitreya Tomlinson on Posted in Appellate Practice, Briefs

I recall discovering my first unpublished case as a law student when interning for an intermediate appellate court justice. Strangely, a legend accompanied the opinion disclaiming precedential value, which seemed odd considering that the opinion was written and accessible through my legal database. Around the same time, I encountered my first memorandum opinion with its own legend directing me to Texas Rule of Appellate Procedure 47.2 for designation and signing of opinions.

Until that point, I had assumed that all database accessible cases had precedential value. If the legend were not enough, a quick reference to TRAP 47 dispelled that notion. Now, I find that some experienced practitioners still feel that all unpublished civil opinions, including memorandum opinions, lack precedential value. This feeling is not unfounded because an older iteration of TRAP 47 maintained that unpublished opinions were not citable and lacked any precedential value.

Under the current rule, however, there is no such thing as an “unpublished” civil case and all civil opinions have precedential value. After January 1, 2003, a rule change mandated that Texas intermediate appellate courts must designate their opinions as either “opinions” or “memorandum opinions.” I think practitioners’ confusion lies in that memorandum opinions resemble “unpublished” opinions because they are accessible only through legal databases or the courts’ websites. After 2003, but before a 2008 rule amendment, the confusion was reinforced by some judicial precedent that equated the new memorandum opinions with the older unpublished opinions when it came to precedential value. Albeit in the equivalent of fine print, the 2008 amendment tried to remedy the confusion by explicitly stating in the comments section that “[a]ll opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value.”

While it is true that pre-2003 unpublished opinions still lack precedential value under current TRAP 47.7(b), the rule now allows that those opinions may be cited with the notation “(not designated for publication).” This means that practitioners may (and should) cite these unpublished cases as persuasive authority.

So, as a quick rule of thumb, any intermediate appellate court decision issued after January 1, 2003 possesses precedential force. And, any opinion designated “do not publish” issued before January 1, 2003 does not, but still may be cited as persuasive authority if it is accompanied by the notation “(not designated for publication).”

Publisher’s Note: The preceding is Maitreya Tomlinson‘s first post on this blog. Please join me in welcoming Maitreya to the blogosphere!

Your Trial Is Over—Now What?

By D. Todd Smith on Posted in Announcements, Appellate Practice

Per the announcement pasted below, TexasBarCLE has opened registration for a live webinar that Amanda Taylor and I will present next week. This program will be “studio produced” and shot at the Texas Law Center, which will be a new experience for me. If you’re interested but can’t watch live, the presentation will be archived at TexasBarCLE.com.

What else should we cover to make this presentation useful? If specific problems or issues have arisen in your practice that you’d like to see us address, please feel free to comment here or contact me directly.

Use Care When Drafting Trial-Court Orders

By D. Todd Smith on Posted in Procedure, Trial Courts

A lawyer heading into a trial-court hearing should draft a favorable order and have it on hand in case the judge is inclined to rule then and there. In addition to being efficient and good for client relations, getting that kind of instant gratification feels great.

That said, use care when drafting an order you want the trial court to enter. As I write this post, I am dealing with an order that is vulnerable to attack because it doesn’t conform to the evidence or legal argument presented at the hearing. In his haste to get something signed right away, my opponent has given me some of the grounds I need to get the order overturned on appeal.

Finding the time to prepare an order in advance can be difficult. It’s good advocacy—but only when done right. Do it wrong at your client’s peril.

Some Appellate Judicial Wisdom in 140-Character Bites

By D. Todd Smith on Posted in Appellate Practice, Fifth Circuit, Oral Argument, Procedure, Texas Supreme Court

Over the past week, I have attended two CLE events featuring a panel of appellate judges. At the 29th Annual Litigation Update Institute, Chief Justice Wallace Jefferson, Justice Paul Green, and Justice Debra Lehrmann enlightened attendees on current events at the Texas Supreme Court.  Today, Fifth Circuit Judges Pete Benavides and Pricilla Owen and U.S. District Judge Lee Yeakel (formerly Chief Justice of Austin’s Third Court of Appeals) spoke to the Austin Bar Civil Appellate Law Section on federal versus state appellate practice.

I live-tweeted both talks. For those interested in what the judges had to say, the Twitter streams appear below.

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An Unopposed Briefing Extension Request Will Be Granted, Right?

By D. Todd Smith on Posted in Appellate Practice, Briefs, Procedure

Appellate work is very time- and labor-intensive. Because it’s difficult to work on more than one matter at a time, appellate lawyers often rely on extensions of briefing deadlines to manage workloads. Texas appellate courts are usually very generous about granting such extensions, particularly when they are unopposed.

So I’m sure appellant’s counsel was surprised when he received this letter in response to an unopposed extension request:

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