Week 10 - Week 14 Flashcards
Motion for New Trial
Purpose: Asks TC to reconsider and rectify error in the court’s ruling or jury finding
TRCP 321: Must be in writing and must specifically point out the alleged error
Must pay filing fee at the time MNT is filed
Must be filed w/in 30 days of the date the judgment was signed (FIRM RULE)
TC has considerable discretion
Grounds:
TRCP 320: A MNT can be granted for “good cause, or motion or court’s own motion”
Can say “In the interest of justice - something was unfair”
What happens if MNT if filed and granted?
Case starts over
No final judgment once granted (can appeal from the final judgment- if no final judgment, no appeal)
If unhappy w/MNT - File WOM
Judgment must explain why MNT was granted
3 Reasons to File MNT
Give the TC an opportunity to correct errors that occurred during the trial by granting NT.
Preserved error for appeal.
Extend TC’s plenary power and app deadlines
To invoke the extended app. timetable
Pre-Reqs for MNT
TRCP 324: Certain error must be pointed out
Complaints on which evidence must be heard:
- Jury misconduct
-Newly discovered evidence
- Failure to set aside a default judgment (Must be in time window)
- Insuff. evidence
- Against the great weight and preponderance of the evidence
Damages are inadequate or excessive
Incurable jury argument if not otherwise ruled on by the court
MNT that Requires Sworn Evidence
Ex. Juror misconduct and newly acquired evidence challenges (Attach affidavit to motion - Show basis for what you want)
During Deliberations - Wont’ work
Outside - Might work
Ask for evidentiary hearing and introduce evidence at hearing
- Whether to grant new trial for new evidence is w/in broad discretion of the TC
Factual Sufficiency (Re: Zone of Evidence)
Category: Surviving legal sufficiency review - case goes to jury but the entity of the evidence - the decision looks unjust by the jury.
Insufficient evidence, against the great weight and preponderance of the evidence
Excessive Damages (Factual Sufficiency Review)
Remittiture: The procedure by which an excessive verdict is reduced.
- TC and COA should use factual sufficiency to determine if there is sufficient evidence to support the damages award, remitting only if some portion is so factually insufficient or against the great weight and preponderance of the evidence as to be manifestly unjust.
Steps int he Remittitur Process:
(1) The party contesting the excessive damages awarded files a motion for remittitur. The motion can be stand alone or included in MNT.
- Explain why the jury verdict is not supported by factually sufficient evidence
- Will request the amt. by which the judgment should be reduced
(2) Court signs an order which “suggests” a remittitur. The P is then given the choice between remitting a part of the damages or trying the case again. (Court can reject the motion)
(3) P decides whether to remit part of the judgment.
- If so it will file it w/the TC in a written motion (TRCP 315).
Nature and Purpose of MNT
Affords the judge more discretion
Function is to enable the prevention or correction of injustice, and the grounds upon which it can be based are numerous
TRCP: 320: New trials may be granted for good cause, on such terms as the court shall direct.
MNT is NOT a prereq to the right to complain on appeal in any jury or non-jury case except to preserve
Complaints on which evidence must be heard
Complaints of factual insufficiency of the evidence to support a jury finding;
Remittitur
Complaints that a jury finding is against the overwhelming weight of the evidence;
Complaints of the inadequacy or excessiveness of damages found by the jury; and
Complaints of incurable jury argument, if not otherwise ruled upon by a trial judge
Jury misconduct
When may the court set aside the verdict?
Only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Plenary Power Principles
The day the judgment is signed starts post judgment and app. deadlines. TRCP 306(a)(1).
The plenary power of the TC extends 30 days from the date the judgment is signed when no plenary power extending motion is timely filed. TRCP 329(b)(d).
PP extending motions like a motion for new trial and motion to modify the judgment are timely filed w/in 30 days of the date the judgment is signed. TRCP 329(b)(a); TRCP 329(b)(g).
When a timely PP extending motion is filed, the PP of the trial court extends 30 days after the PP extending motion is overruled. TRCP 329(b)(e); TRCP 329(b)(c); TRCP 329(b)(g)
A timely filed motion for new trial or motion to modify judgment that is denied extends the deadline to file a notice of appeal to 90 days from the date the judgment is signed. TRAP 26.1(a).
ASK: When overruled? (+30 days to written motion)
• Did the court act?
• No, 75 days = Overruled
• +30 days = 105 Days
Notice of Appeal Deadline & PP
Deadline = 90 Days from date the judgment is signed
PP doesn’t matter the app. deadline is always 90 days!
If TC acts after that 90 days = Moot notice of appeal (probably won’t happen)
o TRAP 26.1(a)
o Should know re: MNT/MMJ by day 75
Deadlines on Weekends/Holidays
Whatever date begins = Day 0 (here always the date the judgment was signed)
Always count weekend and legal holidays
Deadline is the next business day (Sat → Deadline = Monday)
Deadline for MNT/PP
If acts on motion → add 30 days to see when PP cuts off
If did not act = 75 Days overruled by operation of law + 30 days to cut off PP
Extension of Appellate Timetable MNT/MMJ
MNT/MMJ = 90 Days
o If denied
Example: D files MNT on 20 days after signed
oTC acts to overrule 7 days
later = 27 days
o72nd day vacates order and
grants MNT
oDid court act w/in PP?
• No. PP expired on day 57 (27 + 30 days)
Same rule whether it is MNT/MMJ
Example: P files MNT on 15th day after signed
o 92nd day TJ signs MNT
(OK!)
o Overruled by operation of
law on 75 day
• +30 days = 105 days
• 92 days in w/in the PP
Ask: How was motion overruled???
Lane Bank Case
Q: 329(b)(g): Motion to Modify (as distinguished from .. ) If filed shall be
Court: Parenthesis refers to clerical change creating a textual distinction made
o Motion for NT: Change →
Extended PP
o Motion to Modify: Is it a
substantive or clerical?
• Misspelling, etc. = Not
substantive
Courts can always go back and make clerical change
o Either substantive or
clerical – Made in 30 day
window
Makes change at Day 28, if party wants to appeal from that judgment they have 30 days to do so. If motion comes after that – additional 30 days after that as well.
• If outside the PP window &
a substantive change is made
– can’t do (void)
• Clerical Change is okay, no restart
App Deadlines:
Day 28 → 30 days from modification to appeal
• THINK: New Day 0
App Deadline = 90 Days
• Outstanding Motion
• Overruled (Day 75)
• Granted: Restarts 30 Days
TRCP 316: Motion Pro Tunc
Clerical change is okay after PP is over
Clerical Discrepancy between entry of judgment and the judgment as it was rendered
o Not related to judiciary
reasoning
Example: Error in date, designation of parties, misspellings, acreage description (Escobar)
Bill of Review
Go back to original trial years later - Need to have some type of fraud
Original Bill of Review Elements
(1) A mertiorious defense to the cause of action which he or she idd not have an opportunity to present at the original trial
(2) An excuse justifying the failure to make the defense which is based upon extrinsic fraud, accident, or wrongful act of the opposite party and
(3) The absence of fault or negligence
Must be filed as a new and independent suit in the same court that rendered the judgment under attack.
Time Tables for MNT, etc. in general
ASK: Did the TC overrule or grant the motion?
What did it do to the original motion?
If the court or the law actually overrules the MNT or MJ then PP of the court extends 30 days from the ruling. (App power extends 90)
When MMJ is orginially granted (during PP) then the PP extends 30 days from the modified judgment (if nothing else is done, 30 days to appeal)
(Land Bank & 329(d)(h))
Steps in the Appeal Process (To the Appellate Court)
Notice of Appeal
Prep and filing of the record
Brief the court
Oral Argument
Rendering of Judgment and Issuance of Opinion
Motion for rehearing
En Banc Consideration
Steps in Appeal Process (To the Texas SC)
Pet. for Review
Action on Pet. for Review
Brief the Court
Oral Argument
Rendering of Judgment and Issuance of Opinion
Motion for Rehearing
TRAP 4: Computing Time
In gen = same as TRCP 4
The day the opinion is signed = Day 0 (1 following day, count weekends and holidays unless it ends on one of those days, then it will be due on the following business day)
TRAP 9: Filing of Documents
Graduated schedule for Texas TC – the highest populations will go first, then the rest are graduated in slowly.
o The 14 Intermediate App.
Courts require electronic filing
• Double check local rules –
some might still require
paper copies
Texas Supreme Court requires electronic filing
o TRCP:9.2(c)(1): Attorneys in
civil cases must electronically
file documents. (No paper
copies unless local rules
require them TRAP: 9.3(a)(2)
o www.efileTexas.gov - where
you get provider to file all
your documents
TRAP 9.2(c)(4): Timely Filing:
You know it’s filed when it is personally delivered and given to the clerk, it is considered timely filed any time before Midnight on the filing deadline
- Mail: Must get there w/in 10 days
- UPS: (Recently Changed): Considered delivered when you give the documents to the commercial delivery service (Same 10 day mailbox rule)
- Same Weekend/Legal holiday rule as TRAP/TRCP: 4
You probably want some type of receipt
•If there is a technical failure – seek appropriate relief from the court
TRAP 45: Sanctions
Frivolous App:
Failure to acknowledge and address extensive contradictory proof
Failure to adequately brief the issue in good faith
Failure to provide sufficient proof on that issue
Counsel’s mis-citation of a dissenting opinion as controlling authority
A party’s decision to appeal should be based on professional judgment made AFTER careful review of the record for preserved error in light of the applicable standards of review
Interlocutory Appeal:
Ask: Is there a statute?
Allowed when issues are deemed to be so critical to the litigation that they need to be reviewed immediately
Mandamus: Some types of interlocutory orders may be challenged immediately in the app. court through mandamus
Types of Interlocutory Orders (CRCP 51.014(a)):
Order appointing a receiver. (1) and (2)
Orders on class certification (3)
Orders granting or denying a temp. injunction (4)
Denial of SJ on assertion of immunity by gov. officer (5)
Orders on Special Appearances (7)
Grant or denial of gov. entity’s plea to the jurisdictions (8)
Expert reports under health liability claims. (9) and (10)
Denial of motion to dismiss asbestos claim (11)
Recent additions to statute
All of these situations are so essential – right to appeal is allowed right away
(Can only appeal to the next highest court)
Interlocutory Appeals Through the Court’s Approval w/o the Parties Agreement (CRPC 51.014(d), TRAP 28.3, TRCP 168)
A controlling question of law as to whether there is a substantial ground for difference of opinion
An immediate appeal may materially advance the ultimate termination of litigation
Efficiency: If law is unclear, whoever loses will probably send to appeals anyway
*NOTE: The TC must feel it is necessary - parties do not have to agree
Interlocutory Appeal Procedure:
TRAP: 28.1(a): Considered accelerated appeals (the question being asked on appeal before the final opinion can be filed).
In an accelerated appeal, the notice of appeal must be filed w/in 20 days of the date the interlocutory appeal was signed. TRAP 28.1(a)
The notice of the app must state that it is accelerated. TRAP 25.1(d)(6).
The deadlines for filing the app. record and briefs in interlocutory app are accelerated. TRAP 28.1(e), 35.1(b), 38.6(a).
Stay of TC Proceeding Pending Appeal
Automatic Stay of Trial: The app of the interlocutory order automatically stays the commencement of the TC.
Automatic Stay of all Proceedings in the TC: The app of the interlocutory order automatically stays all proceedings in the TC level. (Class action)
Automatic Stay of Commencement of Trial or Trail Court Proceedings after motion denied and deadlines met.
Denial of an official- immunity, summary, judgment motion, a special appearance, or a gov’s plea to the jurisdiction
What is the final judgment?
One Final Judgment Rule: In most proceedings, only one final and appealable judgment can be rendered
Multiple Final Judgments:
Probate, Receiverships
How do you spot a final judgment in Texas?
A judgment is final if it disposes of all parties and all claims in the lawsuit
Final Judgment when there are multiple parties and multiple claims
A series of partial orders disposing of claims.
The order that addresses the last remaining claim is the final order for appeal purposes
You have to follow to find the last claim in the case is complete (the court will keep notifying you re: judgments, etc.)
Severance:
P v. D1 & D2
Judgment granted to D1 after files MSJ
P’s action against D1 is severed from the case
The judgment against D1 becomes final
Aldridge Presumption
Implying the disposition of a claim in judgment:
• Current: If there is no answer/the claim seems ignored = Final Jud.
Key: Take presumption and apply to the fact scenario. There is a presumption the judgment against Aldridge also disposed of the claim against the 3rd party. Nothing in the record to say otherwise.
TODAY: What you’re looking at is case w/lots of claims, the judgment omits one of the claims but disposes of the others (court really should say something about ea. claim). If there is an omission not based on the merits – that’s when Aldridge comes in. Must take something to overcome the presumption (harm).
Not to be used at pre-trial (hard to read the intent)
Mother Hubbard Clauses
Good Language: “This judgment is a final judgment that disposes of all claims and is appealable” – The MH language might help after trial but there are still issues.
Final Judgment at the Federal Level
The final judgment is provided on a separate document.
Problem – Can leave things hanging (people forget to type it up/have the judge signing it), w/o the separate doc. the case is still technically open.
3 Step Analytical Process to Determine if the Judgment is Final:
1) Was the judgment rendered after a conventional trial on the merits?
Yes. Aldridge presumption applies. When TC renders a judgment after a conventional trial on the merits and there is no order for separate trials, the judgment is presumed to dispose of all issues and all parties. The judgment is treated as final for purposes of appeal.
- Unless the some record of the case says otherwise
No. When the TC renders a judgment or issues an order disposing of the case at any time other than after a conventional trial on the merits, the judgment is not presumed final or appealable. In these cases, the party seeking to appeal must ascertain whether the language of the judgment and the record as a whole reflect the court’s decision to dispose of all parties and claims to the suit.
Mother Hubbard does not indicated finality unless other things also speak to finality.
- Example: SJs, Default Judgments, Order of Dismissal
(2) Does the record of the case reflect that the judgment disposed of all parties and claims?
The order that addresses the last remaining party or claim is the final order for appeal purposes. (Webb v. Jones)
Judgment disposing of P’s claims against all D’s, except unserved D, was a final judgment. (MO Dental Lab)
A judgment can dispose of all claims and parties and therefore be final even if a motion for sanction is still pending. (In re Velte)
(3) Does the language of the judgment make it final?
Unequivocal intent in the language of the order make the judgment final?
- EX: “This judgment finally disposes of all parties and all claims and is appealable” = Good example
•Mother Hubbard clauses will not work
Example: P v. D = 4 claims asserted by P
D moves for SJ on one
claim
“TC renders judgment that
P take nothing on all claims
asserted against D”
TC should have resolved one claim but all of them
Erroneous for TC to do that – but when this comes up in the courts have said this if final for purposes of appeal. TC committed error but this is final.
Treat as final even if wrong.
Practical Solutions to Determine Whether a Judgment is Final
Be precise when you are drafting orders and judgments. This helps judges be precise in their orders and judgments.
Note: You might draft what the judge will sign. If something is final, use the correct language to be helpful.
Err on the side of immediately appealing from a judgment when there are questions of finality.
Even if later on the court says it’s not final, it’s better than missing the date and waiting around (no way to recover).
Methods of Suspension (App. Jurisdiction and Suspending Enforcement of the Judgment)
Written Agreement
Superseadeas Bond
Deposit in Lieu of Bond
Alternate Security
Superseadeas Bond
A K by which a surety obligates itself to pay a final judgment rendered against its principal (up to the amt. of the bond) if the principal does not perform the judgment
Accomplishes Two Things:
Assures the judgment creditor that it will be able to collect the judgment if the case is affirmed on appeal
Assures the judgment debtor that the judgment will not be enforced pending the appeal
TRAP 24.1: Form of the Bond
Judgment on Appeal - Effect on Superseadeas Bond
Judgment Affirmed on Appeal:
COA must render judgment against the surety on the superseadeas bond. TRAP 43.5.
Appellant must perform the judgment
If appellant does not perform, the judgment creditor will use the surety to collect on the supersedeas bond
Judgment Reversed on Appeal:
The surety will be released from the supersedeas bond.
The Amount of the Bond
TRAP 24.2(a): Cap (50% of net worth/$25M) – whichever amount is lesser.
Or if the judgment debtor will be caused substantial harm
The bond is generally the amt. of the compensatory damages (excluding punitive) – i.e. the amt. of the judgment minus the punitive damages
Disputes arise re: person/co’s net worth because it effects how big/small the bond is (In re Smith)
Usually a net worth hearing
File Motion to Reduce Security
Writ of Execution
TRCP 622, 627-633:
Commands the sheriff to seize and sell, or deliver to the court, nonexempt property of the judgment debtor
