Texas Appellate Watch

Watch That Last Step . . .

Texas Civil Practice and Remedies Code section 51.014(d) allows immediate appeal of an otherwise unappealable interlocutory order, if certain conditions are met. For years, section 51.014(d) required all parties to consent, which limited its usefulness. But the statute was amended in 2011 to remove the requirement that all parties agree. Now, an order may be immediately appealable if the trial court enters an order finding (1) that the the issue involves a controlling question of law on which were is substantial ground for difference of opinion and (2) an immediate appeal may materially advance the ultimate termination of the litigation. The amended version of section 51.014(d) applies to cases filed after September 1, 2011.

Although the change significantly reduces the burden for seeking an immediate appeal, there is one last step, which may prove to be the hardest. Section 51.014(f) provides that "an appellate court may accept an appeal permitted by Subsection (d)." (emphasis added). Therefore, even if the trial court certifies an order for immediate appeal, the appellate court can decline to accept it. A recent opinion from the Dallas Court of Appeals illustrates this potential pitfall. In Gunter v. Empire Pipeline Corp., the trial court and all of the parties agreed that the requirements of section 51.014(d) were met. But the court of appeals disagreed and dismissed the appeal. The appellate court found that an immediate appeal would not materially advance the termination of the litigation. The slip opinion is available here. (Although Gunter was decided based on the old version of the statute, the old version also gave the appellate court the opportunity to decline to accept an appeal.)

So, while section 51.014(d) can provide an avenue for immediate appeal, be aware that you will have to convince both the trial court and the appellate court that an immediate appeal would be helpful. Over the next several years, it will be interesting to see how closely appellate courts look at the requirements of section 51.014(d) before accepting an interlocutory appeal.

-- Rich Phillips, Thompson & Knight

Timely Objections to Time Limits

Suppose that on the first day of trial, the judge tells the parties that she intends to impose time limits on the trial. Although you're concerned about the time limit imposed, you don't say anything about your concerns, and trial starts. During the trial, the court gives repeated reminders to the parties about how much time they have used and how much time they have left. Finally, the court informs you that you have one hour left to present your evidence. You realize that you will never finish, so you object and request more time. The trial court overrules your objection. Have you preserved error?

Probably not. As trial courts increasingly impose time limits on trials, and parties find those time limits too constricting, appellate courts have wrestled with when an objection to a time limit is timely. The rule to keep in mind is: object at the first possible opportunity. Waiting to object for the first time until your time is up, or almost up, will waive the objection.

For example, in Zurita v. ZVH-1 Partners, Ltd., the court of appeals found that the objection was waived when the complaining party waited until the last day of trial to object. No. 03-10-00650-CV, 2011 WL 6118573 (Tex. App.—Austin Dec. 8, 2011, pet. denied). The court did not say exactly when the objection should have been raised, but noted that the party had not objected when the time limit was first imposed and had not objected during the trial, when the court reminded the party about how much time was remaining. To be safe, if you think there is any chance that you will need more time, you should object as soon as the court lets you know that there will be a time limit imposed. Waiting risks waiving error.

-- Rich Phillips, Thompson & Knight

Rulings on Objections to Summary-Judgment Evidence: It May Not Be Too Late

You have returned to the office as the conquering hero. The court granted your summary-judgment motion, and the case is over. But you wake up in the middle of the night in a cold sweat: you forgot to ask the judge for a ruling on your objections to the other side's evidence. Now what? Are you going to be stuck dealing with all that evidence on appeal? Perhaps not. At least three appellate courts have held that the trial court can enter a written order on objections to summary-judgment evidence even after granting summary judgment.

Last week, I posted about the continuing split among Texas appellate courts regarding implicit rulings on summary-judgment evidence. If you don't want to rely on an implicit ruling, but the court has already ruled on the summary-judgment motion, it may not be too late to secure an explicit written ruling on your objections.

Three appellate courts (Dallas, Houston [14 District], and Waco) have now held that a written order on objections to summary-judgment evidence preserves error even if it was not signed until after the court granted summary judgment. The most recent decision is from the Waco court in Wolfe v. Devon Energy Production Co., 382 S.W.3d 434, 448 (Tex. App.—Waco 2012, pet. filed). The Waco court summarzed the prior decisions and noted that nothing in either the Rules of Civil Procedure or the Rules of Appellate Procedure specifies a deadline for a ruling on objections. Because the objections had been timely filed and the trial court issued its written order while it still had plenary power, the appellate court found that error was preserved. Although a petition for review has been filed, it does not appear that the timing of the ruling on the objections has been presented as an issue for the Supreme Court.

There are some important caveats. First, all three courts agree that the objections must have been timely filed. Therefore, these cases will not help if you forgot to make the objections until after summary judgment was granted. Second, the Dallas court noted that it was "troubled" by the timing of the order on the evidentiary objections and reiterated that the best practice would be to secure the order at the same time that the summary-judgment order is entered. Esty v. Beal Bank S.S.B., 298 S.W.2d 280, 295 (Tex. App.—Dallas 2009, no pet.). Third, the San Antonio court has refused to give effect to an order signed after summary judgment was granted, but that order was signed after the trial court lost plenary power. Rankin v. Union Pac. R. Co., 319 S.W.3d 58, 65 (Tex. App.—San Antonio 2010, no pet.). It is not clear what the San Antonio court would do with a written order signed after the summary judgment but before the trial court's plenary power expired.

In sum, while the entry of a written order after summary judgment has been granted is not ideal, it may be a good contingency plan if you timely file objections but forget to ask for a written ruling at the hearing. And requesting that written ruling is certainly a better option than trying to argue on appeal that the trial court implicitly granted your objections.

-- Rich Phillips, Thomspon & Knight

Implicit Rulings on Summary-Judgment Evidence: The Split Continues

A recent decision from the Fourteenth Court of Appeals highlights the continuing division among the intermediate appellate courts about implicit rulings on summary-judgment evidence. In Parkway Dental Associates, P.A. v. Ho & Huang Properties, L.P., the movant argued that language in the summary-judgment order indicated that the trial court had implicitly sustained its objections to the nonmovant's summary-judgment evidence by granting summary judgment. No. 14-10-01239-CV, 2012 WL 6624925 (Tex. App.—Houston [14th Dist.] Dec. 20, 2012, no pet. h.). The court noted that a decision from the Fort Worth Court of Appeals supported the movant's argument. But the Fourteenth Court of Appeals had already rejected that approach to rulings on summary-judgment evidence.

This case highlights a continuing split among the intermediate courts about whether a summary-judgment ruling also implicitly rules on objections to summary-judgment evidence. The courts have uniformly rejected the argument that merely granting summary judgment is an implicit ruling on objections to summary-judgment evidence. But a split continues about whether a statement in the summary-judgment order that the court considered "proper" or "competent" evidence reveals an implicit ruling. The Fort Worth and El Paso courts have found implicit rulings based on such language. But most of the courts have held that an explicit ruling is required.

Significantly, as the court in Parkway Dental Associates noted, the Supreme Court has yet to weigh in on this division. Until it does, the best practice is to get written rulings on objections to summary-judgment evidence. My next post will look at some cases that have held that those written rulings can be secured even after the court has entered summary judgment.

Preserving Error Related to Sanctions Orders

A decision last week from the First Court of Appeals in Houston provides a good reminder about preserving error related to sanctions orders. It also underscores the fundamental purpose of error preservation rules: giving the trial court the opportunity to correct the alleged error.

In Wilner v. Quijano, the trial court rendered a take-nothing judgment against the plaintiff and then issued post-trial sanctions against the plaintiff's counsel. No. 01-11-00322-CV, 2012 WL 5311147 (Tex. App.--Houston [1st Dist.] Oct. 25, 2012, no pet. h.). The attorney appealed, complaining that the sanction was improper because: (1) it was issued without notice and an opportunity to be heard; (2) the trial court improperly sanctioned the attorney post-trial for conduct that occurred pre-trial; (3) the trial court improperly sanctioned the attorney for his client's failure to pay a prior sanction award; and (4) the trial court failed to adequately describe the basis for the sanction. Id. at *1.

The court of appeals seemed to acknowledge that the attorney's complaints may have had merit. Id. at *3-6. But because the attorney did not raise any of these complaints in the trial court, they were waived. Id. Therefore, the court affirmed the sanction order.

We would all do well to remember that, although there are very strict rules regarding the imposition of sanctions, they can be waived without a proper objection in the trial court. We should also remember, as the court of appeals observed, that the primary purpose of error preservation rules is to give the trial court the opportunity to correct the alleged error. The complaining party cannot simply lie behind the log and complain for the first time on appeal. Complaints must be made to the trial court at a time when the trial court can correct the alleged error. Keeping this general rule in mind can provide guidance even when we cannot remember the specific error preservation rules for a particular situation.

-- Rich Phillips, Thompson & Knight

We Will Hold no Summary-Judgment Hearing Before Its Time (Unless . . .)

What would you do if you received notice today of a summary-judgment hearing scheduled for this Friday? You might be tempted to disregard it. After all, the rule is quite clear that you are entitled to notice 21 days before the hearing. But two recent cases reiterate that the nonmovant must complain in the trial court about inadequate notice of a summary-judgment hearing. At the same time, these cases reveal a split among Texas courts about when such a complaint must be raised.

First, in Torres v. Garcia, the nonmovant received written notice of the hearing only seven days in advance. No. 04-11-00822-CV, 2012 WL 3808593 (Tex. App.--San Antonio Aug. 31, 2012, no pet. h.). The court of appeals noted that there is a difference between receiving inadequate notice and not receiving any notice at all. Because the nonmovant received some notice, he was required to complain to the trial court before he could raise the issue on appeal.

And last week, the Fort Worth Court of Appeals reached the same result in Rockwell v. Wells Fargo Bank, N.A., No. 02-12-00100-CV, 2012 WL 4936619 (Tex. App.--Fort Worth Oct. 18, 2012, no pet. h.) Again, the nonmovant did not receive notice of the hearing until less than a week before the hearing was scheduled. But the court of appeals found the complaint waived because the nonmovant did not complain in the trial court.

But these two cases differ on when the nonmovant must first complain about the timeliness of the notice. In Torres, the court suggested that the complaint could be raised in a motion for new trial after the hearing. 2012 WL 3808593 at *2. But in a footnote, the court seemed to acknowledge that it may stand alone in permitting the complaint to be raised post-hearing. Id. at *2 n.2 (noting that the Dallas, El Paso, Tyler, 14th, and Corpus Christi courts require a motion for continuance to preserve error). In light of Rockwell, we can add the Fort Worth court to that list. The court held that the nonmovant should have raised its complaint by filing a motion for continuance of the summary-judgment hearing. 2012 WL 4936619 at *2.

Therefore, the safest way to preserve a complaint about inadequate notice of a summary-judgment hearing is to file a motion for continuance before the hearing. Any other course risks waiver.

-- Rich Phillips, Thompson & Knight

Correctly Securing Findings of Fact and Conclusions of Law

In a bench trial (or in other situations in which the judge, rather than the jury, resolves fact disputes), securing written formal findings of fact and conclusions of law can be crucial to the appeal. They are the equivalent of the jury's verdict. Without them, the court of appeals will draw every reasonable inference in favor of the judgment and will affirm on any legal theory supported by those deemed findings. Unfortunately, the process for obtaining findings and conclusions is convoluted and fraught with opportunities to waive error.

A request for findings and conclusions must be filed no later than 20 days after the judgment is signed. Tex. R. Civ. P 296. The findings and conclusions are "due" 20 days after the request is filed. Tex. R. Civ. P. 297. If the court does not file the findings and conclusions by the due date, the requesting party must file a notice of past due findings. Id. This notice must be filed no later than 30 days after the original request was made. Id. Failure to timely file the notice of past due findings waives any error from the failure to file findings and conclusions. Id. Finally, after the findings are filed, the party may need to request additional or amended findings. Tex. R. Civ. P. 298. If the court omits an essential finding, but the complaining party does not request additional or amended findings, the omitted element will be deemed to have been found in favor of the judgment. Tex R. Civ. P. 299. The request for additional findings is due 10 days after the original findings are filed. Tex. R. Civ. P. 298.

A recent case from the First Court of Appeals illustrates some of the traps in this process. In Joseph v. Joseph, the appellant filed her request for findings and conclusions nine days before the judgment was signed. No. 01-11-01096-CV, 2012 WL 1564318 at *2 (Tex. App.--Houston [1st Dist.] May 3, 2012). The court of appeals noted that under Rule 306c, the prematurely filed request was deemed filed immediately after the judgment was signed. Thus, the appellant's request was timely filed. The appellant also filed a notice of past due findings, but she filed it before the findings were due. The trial court never filed any findings and conclusions. The court held that the premature notice of past due findings was insufficient and that she had therefore waived any error in the trial court's failure to make the requested findings and conclusions.

The opinion is not clear about exactly when the notice of past due findings was filed, but it is possible that the appellant read the rule about the timing of the notice of past due findings and concluded that she had to file it within 30 days of her original request even if the findings were not yet technically past due. See Tex. R. Civ. P. 297 (specifying deadline for notice of past due findings based on date of original request, not on the date the findings were due). The notice was still untimely, because under Rule 306c, the request for findings was deemed filed on the date the judgment was entered.

The lesson in all of this is that these deadlines must be carefully calendared and monitored. They are shorter than most other appellate deadlines and can easily get lost in the shuffle. When I have a case where I need findings and conclusions, I always prepare a separate chart to calculate all of the deadlines related to the request for findings and conclusions. The following bullets summarize the key dates. Although the sequence looks simple in theory, it can be devilishly complicated in practice if all of the key deadlines are not properly calendared.

• Request for findings and conclusions -- after the judgment is signed but no later than 20 days after the judgment is signed
• Notice of past due findings -- no earlier than 20 days after the request is filed, but no later than 30 days after the request was filed
• Request for additional findings and conclusions (if necessary) -- no later than 10 days after the original findings are filed

-- Rich Phillips, Thompson & Knight

Error Preservation Is Not a Group Project

We all remember group projects in school where one or two group members did all the work and the rest hung around and got a good grade. Multi-party trials can sometimes seem like those group projects. But when it comes to preserving error, there is no group grade.

The default rule in Texas is that an objection by one party is not good for all parties on the same side of the case. Simply relying on another party's objection will result in waiver. The Beaumont Court of Appeals recently reiterated this principle in In re K.L., a case on termination of parental rights. No. 09-00083-CV, 2012 WL 1951111 (Tex. App.--Beaumont May 31, 2012). After the trial court terminated the parents' rights and determined that the grandmother should not be named as conservator of the child, both the mother and grandmother appealed. The mother attempted to argue on appeal that the trial court had improperly overruled the grandmother's objection to certain medical record evidence. The court of appeals noted that the mother had not made a proper objection to the medical records and held that she could not rely on the objection made by the grandmother. Therefore, the court of appeals found that the mother's complaint was waived.

The good news is that upon a proper request, the trial court has the discretion to modify the default rule. Texas courts have held that in order to avoid wasting time and manage the trial, the court can order that an objection by one party preserves error for all parties on that side of the case. See, e.g., Celotex Corp. v. Tate, 797 S.W.2d 197, 201 (Tex. App.--Corpus Christi 1990, writ dism'd). Of course, even then, the objection by a co-party will preserve only that objection. Counsel for the other parties must raise any other grounds they wish to preserve or those grounds will be waived.

-- Rich Phillips, Thompson & Knight

Error Preservation: Beware of Conditional Rulings

One key aspect of preserving error for appeal is to obtain a ruling from the trial court on your objection or request. See Tex. R. App. P. 33.1(a)(2)(A). Often, this aspect of preservation gets overlooked because the ruling is clear. But a recent case from the First Court of Appeals reveals a potential trap for the unwary.

In Tryco Enterprises, Inc. v. Robinson, the appellant complained that the trial court improperly admitted evidence over its hearsay objection. No. 01-10-00710-CV, 2012 WL 4021126 at *4 (Tex. App.—Houston [1st Dist.] Sept. 13, 2012). When the appellant objected to the evidence at trial, the trial court "conditionally admitted" the testimony, subject to the appellant filing additional briefing to show why the testimony was inadmissible hearsay. Id. at *3. The appellate court found that the appellant had failed to preserve error in the admission of the testimony for several reasons. Id. at *5. One of those reasons was that the appellant did not " obtain a definitive adverse ruling while the trial court was in a proper position to change its conditional ruling of admissibility."

In light of this ruling (and the requirement to obtain an adverse ruling on objections or requests), careful lawyers should be sure that any "conditional" rulings are made absolute in order to preserve error.

-- Rich Phillips, Thompson & Knight

Falling Trees and Preserving Error

If a tree falls in a forest, but the court reporter doesn't note it in the record, did the tree really fall?

A fundamental error-preservation principle is that if it's not in the record, it didn't happen. But the Texas Rules of Appellate Procedure provide a little-used tool to correct or clarify the record after the fact. Although opportunities to use this tool may be somewhat limited, it can be a real lifesaver in the right circumstance.

Texas Rule of Appellate Procedure 33.2  outlines the procedure for submitting a "formal bill of exception" to the trial court. Basically, a formal bill of exception is a recital of something that happened in court but is not reflected in the record for some reason. For example, if the court reporter does not transcribe a bench conference, a formal bill of exception could be used to memorialize what was said and any rulings that were made. 

A party making the formal bill of exception submits it in writing to the court, and if the court agrees with the recital of events, the court signs the bill and it is filed in the papers of the case. The rule also provides procedures that must be followed if the court disagrees with the recitals in the formal bill. Once the bill is signed and filed, it has the same effect as if the events had been transcribed. And, significantly, a formal bill of exception can be filed up to 30 days after the notice of appeal is filed.

A recent case from the Texarkana Court of Appeals illustrates one use for a formal bill of exception. City of Lufkin v. AKJ Properties, Inc., No. 06-12-00005-CV, 2012 WL 2393087 (Tex. App.—Texarkana June 26, 2012, no pet.). At a pretrial jury charge conference, the City had requested in writing that several instructions be included in the charge. The court said it was not inclined to submit the requested instructions. The City did not renew its request at the formal charge conference.

In a post-trial bill of exception under Rule 33.2, the City asked the court to clarify that it refused to submit the instructions that the City had requested at the pretrial conference. After a hearing, the trial court filed an order stating: "The above request was presented to the court after the close of the evidence and before submission of the court's charge to the jury in the presence of the court and opposing counsel and the court now [sic] hereby and in all things refused." The court of appeals found that this was sufficient to preserve error on the refusal to submit the requested instructions.

To really understand the power of a formal bill of exception, compare the result in City of Lufkin with two other cases that I posted on earlier this year. First, I posted about Jones v. Cortes, in which the Fort Worth Court of Appeals held that error was not preserved by requesting an instruction in a pre-trial proposed jury charge. A formal bill of exception might have been useful in Jones to ask the trial court to confirm that it considered and refused to submit the requested instruction.

Second, I posted about Jelinek v. Casas, in which the Corpus Christi Court of Appeals held that error was waived because the written request for an instruction could not be found in the clerk's record, even though the reporter's record indicated that a written request was submitted. A post-trial formal bill of exception could have been used to get a copy of the written request in the record and thereby preserve error.

Of course, a formal bill of exception is only useful to make a record of something that actually happened but is not in the record for some reason. It cannot be used to make a record of something that did not happen. But in the right circumstances, it can be an important preservation tool in a trial or appellate lawyer's tool kit.

I would be interested to hear if any of our readers have used a formal bill of exception to clarify or supplement the record. If you can, please share in the comments any wisdom you might have about using formal bills of exception.

-- Rich Phillips, Thompson & Knight