CIVIL PROCEDURE

FALL 2011

Sweed v. Nye, 323 S.W.3d 873 (Tex. 2010)

Timely Filed but Defective Notice of Appeal Invokes Jurisdiction of Court of Appeals: Sweed filed a notice of appeal five and a half months after the trial court dismissed his claim. See Tex. R. App. P. 26.1(c) (providing that in a restricted appeal, notice must be filed within six months after the judgment or order is signed). The court of appeals notified Sweed that his notice of appeal did not contain the information required for a notice of restricted appeal and he needed to amend his notice. See Tex. R. App. P. 25.1(d)(7) (requiring that a notice of appeal in a restricted appeal state that the appellant did not participate in the hearing that resulted in the judgment and that the appellant did not timely file a post-judgment motion or notice of appeal). Sweed filed an amended notice of appeal over six months after the trial court dismissed his case. The court of appeals held that the notice of restricted appeal was not timely filed and dismissed the appeal for want of jurisdiction. Held: Reversed and the cause was remanded to the court of appeals. The rules expressly contemplate that a party may file an amended notice of appeal to correct a defect or omission in an earlier filed notice before the appellant’s brief was filed. See Tex. R. App. P. 25.1(f). “And this Court has consistently held that a timely filed document, even if defective, invokes the court of appeals’ jurisdiction.”

Rowe v. Watkins, 324 S.W.3d 111 (Tex. App.—El Paso 2010, no pet.)

Review of Amount of Supersedeas Bond on Appeal: Rowe sued Watkins over the ownership of a dog. A jury found in favor of Watkins, but did not award monetary damages. The court ordered that Rowe turn over the dog to Watkins immediately. Rose moved the court to determine the type and amount of security to supersede the judgment pending appeal. The trial court rendered an order requiring Rowe to post $50,000.00 to suspend the judgment. Rowe sought review by the court of appeals. Held: Amount of supersedes was reduced to $5,000.00. “We review the trial court’s determination of the amount of security under an abuse of discretion standard. …Such a review includes a two-step inquiry: (1) Did the trial court have sufficient information on which to exercise its discretion; and (2) did the trial court err in the application of its discretion? … In step one, we utilize the traditional standards reviewing evidentiary sufficiency. …In step two, we must determine whether, based on the record, the trial court’s decision was arbitrary and unreasonable.” The trial court record was devoid of any evidence about the value of the dog. Accordingly, the court of appeals reviewed evidence in the record regarding the costs of the appeal, including the charges for the record. Based on those costs, the court of appeals determined that $5,000.00 was an appropriate amount of security. See also Anderton v. Cawley, 326 S.W.3d 725 (Tex. App.—Dallas 2010, no pet.) (amount of judgment excluded from calculation of defendant’s net worth for purpose of determining amount required for supersedeas).

Greene v. State, 324 S.W.3d 276 (Tex. App.—Austin 2010, no pet.)

Letter From Judge Rendered Judgment, and Later Signing of Formal Judgment was Proper Administrative Action, Despite Retirement of Judge: The judge issued a letter to the parties stating that “Judgment is rendered for the [State and other] plaintiffs on all claims and plaintiffs are awarded their attorneys’ fees. [Counsel for the State] is requested to prepare a form of judgment, circulate to all counsel for approval as to form, and submit to the court for signature.” The letter was filed with the district clerk and was noted on the court’s docket sheet. The judge then retired, but later signed the final judgment and issued findings of fact and conclusions of law. On appeal, the defendant argued that the district judge lacked authority to sign the final judgment, but the court of appeals disagreed. Case law established that a judge may render judgment, then sign a formal judgment after her term of office has ceased, because the signing of the judgment was an administrative action that lends efficacy and validity to the judicial process. In numerous cases, courts have held that a letter from a judge expressing a future intent to render judgment did not constitute rendition. Here, however, the letter stated that “judgment is rendered….” “In short, the rendition of judgment and the signing of a written judgment are not synonymous. …Judgment is rendered when the trial court declares her decision of law upon the matters at issue either in open court or by memorandum filed with the clerk. …Once judgment has been rendered, subsequent acts of drafting and signing a written form of judgment are merely preparatory, administrative acts that would authenticate the record of the court’s rendition. …Thus, if a judge renders judgment during her term of office, that judge may then perform the ministerial act of signing the instrument of judgment, even after her term of office has expired.”

Colquitt v. Brazoria County, 324 S.W.3d 539 (Tex. 2010)

Supreme Court Always Has Jurisdiction to Determine Whether Court of Appeals Properly Exercised Its Jurisdiction: In an interlocutory appeal, such as the instant case, cases ordinarily can go no further than the court of appeals unless there was a dissent or conflict. See Tex. Government Code § 22.225(b)(3), (c). Here, a conflict existed between the opinion of the court of appeals and the opinion of another court of appeals. The Supreme Court noted, however, that even in the absence of a conflict, it would have jurisdiction because the court of appeals disposed of the case on jurisdictional grounds and rendered a final judgment. The Supreme Court always has jurisdiction to determine whether a court of appeals correctly applied its jurisdiction.

Vaughn v. Drennon, 324 S.W.3d 560 (Tex. 2010)

Judgment Issued After Conventional Trial Presumed Final: Following a conventional trial on the merits, the trial court rendered judgment. Because the court of appeals concluded that the trial court had not disposed of all parties and issues, it dismissed the appeal for want of jurisdiction. Held: Judgment of court of appeals was reversed and the cause was remanded to the court of appeals to determine the merits of the appeal. “This is exactly the kind of delay in the appellate process that this Court has sought to avoid in continuously enforcing the Aldridge presumption.” See Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966). In accordance with Aldridge, a judgment rendered after a conventional trial on the merits is presumed final for purposes of appeal. “A judgment need not address every party and claim for it to be a final judgment for purposes of appeal.” Rather, after a trial on the merits, with no order for a separate trial of issues having been rendered, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues actively pursued by the parties.

Gilbert Texas Construction v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010)

Party That Prevails in Trial Court Does Not Waive Complaint That Arises From Judgment of Court of Appeals: The Supreme Court rejected an argument by the respondent that the petitioner waived a complaint by failing to assert it in the court of appeals. “While ordinarily a party waives a complaint not raised in the court of appeals, a complaint arising from the court of appeals’ judgment may be raised either in a motion for rehearing in that court or in a petition for review in this Court. See Tex. R. App. P. 53.2(f); Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004).”

Transcontinental Ins. Company v. Crump, 330 S.W.3d 211, Tex. 2010)

Defective Jury Instruction: The district court submitted a jury instruction for producing cause, but, over the defendant’s objection, without a but-for element, that is, without which the event would not have occurred. The district court rendered judgment for the plaintiff based on a favorable jury verdict. The defendant appealed, and the court of appeals affirmed. Held: Judgment of court of appeals is reversed and the cause is remanded for new trial. The Supreme Court reviewed the case law and concluded that the jury instruction was erroneous. “The producing cause definition submitted in this case lacked the but-for component. It, too, was incomplete, and therefore an erroneous statement of the law of producing cause.” In addition, after considering the entire record, the Supreme Court held that the error was harmful.

Long v. Castle Texas Production Limited Partnership, 330 S.W.3d 749 (Tex. App.—Tyler 2010, pet. pending)

Post-Judgment Interest Runs From Date of Original Judgment, Even If Subsequent Judgment Is Rendered to Correct Error: The district court rendered a judgment awarding damages to Castle. The amount of the judgment was reduced as a result of an earlier appeal, and the cause was remanded to the district court to decide an issue. Following a hearing on the issue for which remand was ordered, the district court rendered a new judgment, but provided for post-judgment interest running from the date of the original judgment. The parties against whom judgment was rendered appealed. Held: Affirmed. “Simply stated, the general rule is that after examining the entire procedural history of a dispute, a party that ultimately prevails is entitled to post-judgment interest from the date the original judgment was rendered, irrespective of whether the original judgment was erroneous, because that is the date upon which the trial court should have rendered a correct judgment.”

Hampden Corp. v. Remark, Inc., 331 S.W.3d 489 (Tex. App.—Dallas 2010, pet. granted)

No Trial By Consent: The plaintiffs pleaded a breach of contract claim, but contended that a claim for breach of another contract had been tried by consent. The district court agreed and rendered judgment based on the contract claim purportedly tried by consent. Held: Reversed and the cause is remanded to district court for consideration of evidence pertaining to pleaded breach claim. “The trial court has broad discretion in determining whether an unpleaded issue was tried by consent. …However, although that discretion is to be exercised liberally in favor of justice, trial by consent is the exception, not the rule, and should not be inferred in doubtful cases. To determine whether the unpleaded issue was tried by consent, the trial court must examine the record not for evidence of the issue, but rather for evidence the issue was tried. …The unpleaded issue may be deemed tried by consent when the evidence on the issue is developed without objection under circumstances indicating both parties understood the issue was being contested.” Based on these principles, the court of appeals concluded that the unpleaded breach of contract claim, although discussed at trial in defense of the pleaded claim, was not tried by consent.

Trigg v. Moore, 335 S.W.3d 243 (Tex. App.—Amarillo 2010, pet. denied)

Nonsuit Effective When Motion for Nonsuit Filed: The plaintiff moved for nonsuit, believing that the dispute had been settled. Upon learning that settlement was not final, the plaintiff attempted to withdraw her nonsuit. The trial court held a hearing on the motion to withdraw, denied the motion, and dismissed the suit without prejudice. Held: Affirmed. The court of appeals rejected the plaintiff’s contention that the suit should not have been dismissed because the notice of nonsuit had not been served on opposing counsel when the motion to withdraw was filed. “It has long been the law that a motion for nonsuit is effective the moment it is filed. At that instant, the action is extinguished.” The trial court’s order of dismissal was a mere ministerial act of memorializing the dismissal through a written order. “This is not to say that a plaintiff lacks options upon realizing the impropriety of nonsuiting his action. For instance, he has the ability to move the court to reinstate the cause or for a new trial.”

Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)

Abuse of Discretion Standard Deferential As To Factual Determinations, But Not Legal Ones: “Under an abuse of discretion standard, the appellate court defers to the trial courts factual determinations if they are supported by evidence, but reviews the trial court’s legal determinations de novo.”

Barnett v. Manuel Griego, Jr., D.O., P.A., 337 S.W.3d 384 (Tex. App.—Dallas 2011, no pet.)

Appeal of Temporary Injunction Provides No Cause for Postponement of Trial: Following the filing of the record and briefs in an appeal from a temporary injunction, the Dallas Court of Appeals requested a supplemental record from the district clerk to determine the status of the underlying case and learned that the trial date specified in the temporary injunction order had been continued based on an agreed motion by the parties. In one of a series of opinions on this issue, the court of appeals admonished the parties not to use an interlocutory appeal as a basis for postponing the trial. The court cited Texas Rule of Civil Procedure 683, which stated that the appeal of a temporary injunction “shall constitute no cause for delay of the trial.” “We have repeatedly disapproved the practice of postponing the trial on the merits of a case in order to obtain a ruling on the appeal of a temporary injunction. …Additionally, a party may not use an appeal of a temporary injunction ruling to get an advance ruling on the merits.” Accordingly, the court dismissed the interlocutory appeal without addressing the merits.

In re Does, 337 S.W. 3d 862 (Tex. 2011)

Pre-Suit Discovery Rule Requires Trial Court Findings, Even If Third Party Agrees to Discovery: Texas Rule of Civil Procedure 202 authorizes a court to order that a pre-suit deposition be taken, but only if the court found that: “(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.” The petitioners served a third party with a subpoena duces tecum, and the third party agreed to respond. The potential adverse parties moved to quash the subpoena. The trial court denied the motion to quash, but did not make the findings required by Rule 202.4(a). The Supreme Court granted mandamus relief, directing the trial court to grant the motion to quash. The Supreme Court rejected the petitioners’ argument that compliance with Rule 202 was excused because of their agreement with the third party. “[The petitioners] and [the third party] could not modify the procedures prescribed by Rule 202 by an agreement that did not include [the potential adverse parties, who had made an appearance by filing the motion to quash].” The Court expressed concern about insufficient judicial attention to petitions to take pre-suit discovery.