THE TECHNICAL SIDE OF APPELLATE ADVOCACY

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1 THE TECHNICAL SIDE OF APPELLATE ADVOCACY RICHARD B. PHILLIPS, JR. MEGHAN NYLIN Thompson & Knight LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas State Bar of Texas CIVIL APPELLATE PRACTICE 101 September 3, 2014 Austin CHAPTER 6

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3 RICHARD B. PHILLIPS, JR. THOMPSON & KNIGHT LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas Telephone: EXPERIENCE & EDUCATION BLOG Thompson & Knight LLP, Dallas, Texas (2002-present) Supreme Court of Texas, Law Clerk to the Honorable Thomas R. Phillips ( ) J.D. (with honors), The University of Texas School of Law (2001) B.A., History, Brigham Young University (1998) Texas Appellate Watch DISTINCTIONS & HONORS Listed in Texas Super Lawyers by Thomson Reuters (Appellate) Listed in Texas Rising Stars by Thomson Reuters (Appellate, Civil Litigation Defense) Order of the Coif MEMBERSHIPS American Bar Association State Bar of Texas Dallas Bar Association DRI Texas Association of Defense Counsel Bar Association of the Fifth Federal Circuit Scribes American Society of Legal Writers SELECTED PUBLICATIONS & PRESENTATIONS Appellate Lawyers as Innovators, DRI In-House Defense Quarterly (Fall 2013) Adventures in Error Preservation, Rockwall County Bench/Bar Conference (April 2013) Traps for Trial Lawyers on Appeal, Advanced Personal Injury 2012, Texas Bar CLE (August 2012) Error Preservation Update, 21st Annual Conference on State and Federal Appeals, University of Texas CLE (June 2011) SELECTED CASES Kia Motors Corp. v. Ruiz, S.W.3d, 2014 WL (Tex. 2014) Estate of Finney, 424 S.W.3d 608 (Tex. App. Dallas 2013, no pet.) In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) Halo Wireless, Inc. v. Alenco Communications (In re Halo Wireless), 684 F.3d 581 (5th Cir. 2012) Hampton-Vaughn Funeral Home v. Briscoe, 327 S.W.3d 743 (Tex. App. Fort Worth 2010, no pet.) Eaton Metal Prods., L.L.C. v. U.S. Denro Steels, Inc., No CV, 2010 WL (Tex. App. Houston [14th Dist.] 2010, no pet.) P&A Real Estate, Inc. v. American Bank of Texas, 323 S.W.3d 618 (Tex. App. Dallas 2010, no pet.) Myre v. Meletio, 307 S.W.3d 839 (Tex. App. Dallas 2010, pet. denied)

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5 MEGHAN NYLIN THOMPSON & KNIGHT LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas Telephone: EXPERIENCE & EDUCATION Thompson & Knight LLP, Dallas, Texas United States Court of Appeals for the Fifth Circuit, Law Clerk to the Honorable Catharina Haynes ( ) J.D., manga cum laude, SMU Dedman School of Law (2009) B.B.A., summa cum laude, Southern Methodist University (2006) MEMBERSHIPS State Bar of Texas Dallas Bar Association Dallas Association of Young Lawyers; Judiciary Committee Co-Chair (2010-present) Dallas Volunteer Attorney Program Texas Association of Defense Counsel DRI American Bar Association PUBLICATIONS & PRESENTATIONS Texas Supreme Court Year in Review 2013, Texas Bar Journal (January 2014) Vertical Law in a Horizontal World: Legal Issues and Challenges with Horizontal Drilling and Fracking in Shale Plays, Institute for Energy Law 64th Annual Oil & Gas Law Conference (February 2013)

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7 Table of Contents Table of Authorities... ii Introduction... 1 I. Filing a Motion for New Trial... 1 A. Texas Law... 1 B. Federal Law... 2 II. Requesting Findings of Fact and Conclusions of Law... 3 A. Texas Law... 3 B. Federal Law... 4 III. Perfecting the Appeal... 5 A. Texas Law... 5 B. Federal Law... 6 IV. Obtaining a Bond... 7 A. Texas Law... 7 B. Federal Law... 8 V. Calculating Appellate Deadlines... 8 A. Texas Law... 8 B. Federal Law... 9 VI. Requesting the Record... 9 A. Texas Law... 9 B. Federal Law VII. Filing Briefs A. Texas Law B. Federal Law VIII. Filing the Corporate Disclosure Statement in the Fifth Circuit IX. Requesting Oral Argument A. Texas Law B. Federal Law X. Motions for Rehearing and for En Banc Reconsideration A. Texas Law B. Federal Law XI. Issuance of the Mandate A. Texas Law B. Federal Law Conclusion i

8 Table of Authorities Page CASES Akukoro v. Akukoro, No CV, 2013 WL , at *7 (Tex. App. Houston [1st Dist.] Dec. 19, 2013, no pet.)... 3 Bennett v. GEO Group, Inc., No , 2013 U.S. App. LEXIS (5th Cir. May 22, 2013)... 7 Brighton v. Koss, 415 S.W.3d 864 (Tex. 2013)... 6 Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988)... 5 Claxton v. (Upper) Lake Fork Water Control & Improvement Dist. No. 1, 220 S.W.3d 537 (Tex. App. Texarkana 2007, pet. denied)... 6 Darouiche v. Fid. Nat l Ins. Co., 415 F. App x 548 (5th Cir. 2011)... 2, 6 Doyle v. Teske, No CV, 2011 Tex. App. LEXIS 2360 (Tex. App. Tyler Mar. 31, 2011, no pet.)... 3, 4 Estate of Gorski v. Welch, 993 S.W.2d 298 (Tex. App. San Antonio 1999, pet. denied)... 3 Ezy-Lift of Cal., Inc. v. EZY Acquisition, LLC, No CV, 2014 Tex. App. LEXIS 4190 (Tex. App. Houston [1st Dist.] Apr. 17, 2014, no pet.)... 4 Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993)... 1 Fleming v. Uncle Bob Storage Inc. Sovran, 476 F. App x 4 (5th Cir. 2012)... 3 Fractus, S.A. v. Samsung Elec. Co., 876 F. Supp. 2d 802 (E.D. Tex. 2012)... 5 Garriott v. NCsoft Corp., 661 F.3d 243 (5th Cir. 2011)... 3 Garza v. Garcia, 137 S.W.3d 36 (Tex. 2004)... 1 Gentry v. Squires Const., Inc., 188 S.W.3d 396 (Tex. App. Dallas 2006, no pet.)... 4 Hebert v. Exxon Corp., 953 F.2d 936 (5th Cir. 1992)... 8 ii

9 Henderson v. Henderson, No CV, 2011 Tex. App. LEXIS 5457 (Tex. App. Austin July 13, 2011, pet. filed)... 2 Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005) Hollier v. White, NO CV, 2013 WL (Tex. App. Texarkana Dec. 3, 2013, no pet.)... 9 Holloway v. Monroe, No CV, 2014 Tex. App. LEXIS 2576 (Tex. App. Houston [14th Dist.] Mar. 6, 2014, no pet.)... 5 Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67 (Tex. 2003)... 1 Imagine Auto. Grp. v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620 (Tex. App. Dallas 2014, pet filed) In re Bates, No CV, 2014 Tex. App. LEXIS 1679 (Tex. App. Houston [1st Dist.] Feb. 13, 2014, no pet.)... 1 In re Brookshire Grocery Co., 250 S.W.2d 66 (Tex. 2008)... 2 In re Gillespie, 124 S.W.3d 699 (Tex. App. Houston [14th Dist.] 2003, no pet.)... 4 In re Lovito-Nelson, 278 S.W.3d 773 (Tex. 2009)... 1 In re Nalle Plastics Family Ltd. P ship, 406 S.W.3d 168 (Tex. 2013)... 8 John v. Marshall Health Servs., 58 S.W.3d 738 (Tex. 2001)... 1 Joseph v. Joseph, No CV, 2012 Tex. App. LEXIS 3501 (Tex. App. Tyler May 3, 2012, no pet.)... 4 King v. Univ. of Tex. Health Sci. Ctr., 544 F. App x 490 (5th Cir. 2013)... 7 Linan v. Padron, No CV, 2010 WL (Tex. App. Corpus Christi Aug. 12, 2010, no pet.)... 2 Overstreet v. Joint Facilities Mgmt., LLC (In re Crescent Res., LLC), 496 F. App x 421 (5th Cir. 2012)... 6 Page iii

10 Pampell v. Pampell, 699 S.W.2d 355 (Tex. App. Austin 1985, no writ)... 1 Phillips v. Bramlett, 407 S.W.3d 229 (Tex. 2013) Powell v. Reiswerg, No CV, 2013 Tex. App. LEXIS (Tex. App. Houston [14th Dist.] Oct. 31, 2013, no pet.)... 3 RBS Mortg. LLC v. Gonzalez, No CV (Tex. App. San Antonio 2013, no pet.)... 4 Rodriguez v. Ruiz, No CV, 2013 Tex. App. LEXIS 2342 (Tex. App. Corpus Christi Mar. 7, 2013, pet. denied)... 6 Ryland Enter. v. Weatherspoon, 355 S.W.3d 664 (Tex. 2011)... 5 Simon v. United States, 891 F.2d 1154 (5th Cir. 1990)... 3 Tate v. E. I. DuPont de Nemours & Co., 934 S.W.2d 83 (Tex. 1996)... 1 United States v. Martinez, 395 F. App x 131 (5th Cir. 2010) Welder v. Fritz, 750 S.W.2d 930 (Tex. App. Corpus Christi 1988, no writ)... 6 WesternGeco LLC v. ION Geophysical Corp., 953 F. Supp. 731 (S.D. Tex. 2013)... 3 Williams v. Toyota Motor Eng g & Mfg. N. Am., 470 F. App x 309 (5th Cir. 2012)... 7 STATUTES 28 U.S.C Tex. Civ. Prac. & Rem. Code RULES 5th Cir. R th Cir. R th Cir. R th Cir. R Fed. R. App. P , 7 Fed. R. App. P. 10(b) iv Page

11 Page Fed. R. App. P. 10(e) Fed. R. App. P Fed. R. App. P. 11(b) Fed. R. App. P Fed. R. App. P. 26(a)... 9 Fed. R. App. P. 26(b)... 9 Fed. R. App. P. 26.1(a) Fed. R. App. P. 26.1(b) Fed. R. App. P. 26.1(c) Fed. R. App. P. 28(d) Fed. R. App. P. 34(a) Fed. R. App. P. 34(c) Fed. R. App. P. 35(a)(1), (2) Fed. R. App. P. 35(c) Fed. R. App. P. 40(a) Fed. R. App. P. 41(b) Fed. R. App. P. 41(d) Fed. R. Civ. P. 52(a)(1)... 4 Fed. R. Civ. P. 52(b)... 5 Fed. R. Civ. P. 59(a)... 2 Fed. R. Civ. P. 59(b)... 2 Fed. R. Civ. P. 59(c)... 2 Fed. R. Civ. P. 59(e)... 6 Fed. R. Civ. P Fed. R. Civ. P. 62(a)... 8 Fed. R. Civ. P. 62(d)... 8 Fed. R. Civ. P. 83(a)(2)... 2 v

12 Page N.D. Tex. L.R N.D. Tex. L.R Tex. R. App. P Tex. R. App. P. 4.1(a)... 8 Tex. R. App. P. 4.1(b)... 8 Tex. R. App. P. 4.2(a)... 8 Tex. R. App. P Tex, R, App. P Tex. R. App. P. 4.5(a)... 9 Tex. R. App. P. 4.5(c)... 9 Tex. R. App. P. 18.1(a) Tex. R. App. P Tex. R. App. P. 24.1(a)... 7 Tex. R. App. P. 24.1(b)... 8 Tex. R. App. P. 24.1(d)... 8 Tex. R. App. P. 24.2(a)... 7, 8 Tex. R. App. P Tex. R. App. P. 25.1(a)... 5 Tex. R. App. P. 25.1(b)... 6 Tex. R. App. P. 25.1(e)... 5 Tex. R. App. P Tex. R. App. P. 26.1(a)... 5 Tex. R. App. P. 26.1(b)... 5 Tex. R. App. P. 26.1(c)... 5 Tex. R. App. P. 34.5(a)... 9 Tex. R. App. P. 34.5(b)... 9 Tex. R. App. P. 34.6(b)... 9, 10 Tex. R. App. P. 34.6(c) vi

13 Page Tex. R. App. P Tex. R. App. P Tex. R. App. P. 38.1(e)... 11, 12 Tex. R. App. P. 38.5(a) Tex. R. App. P. 38.6(a) Tex. R. App. P. 38.6(b) Tex. R. App. P. 38.6(c) Tex. R. App. P Tex. R. App. P Tex. R. App. P Tex. R. App. P Tex. R. App. P Tex. R.App. P Tex. R. Civ. P. 4(2)... 1 Tex. R. Civ. P. 21a... 3 Tex. R. Civ. P. 26.1(a)(4)... 4 Tex. R. Civ. P Tex. R. Civ. P Tex. R. Civ. P Tex. R. Civ. P Tex. R. Civ. P. 306a... 1, 3 Tex. R. Civ. P. 306a(4)... 1 Tex. R. Civ. P. 306a(5)... 1 Tex. R. Civ. P. 306c... 2, 4 Tex. R. Civ. P. 329b(a)... 1 Tex. R. Civ. P. 329b(b)... 2 Tex. R. Civ. P. 329b(c)... 1 vii

14 Tex. R. Civ. P. 329b(h)... 5 ADDITIONAL AUTHORITIES Fifth Circuit Clerk s Office, Practitioner s Guide to the United States Court of Appeals for the Fifth Circuit (Apr. 2014)... 10, 11, 12 Page viii

15 The Technical Side of Appellate Advocacy Introduction For those who do not regularly practice appellate law in Texas state courts and in the Fifth Circuit, the prospect of an appeal can be daunting. A flawless argument or a white-horse case will be of little value if the appeal gets tripped up by procedural rules or other practical aspects of prosecuting an appeal. The purpose of this paper is to identify the hurdles and potential pitfalls so that they don t adversely impact the appeal. We will cover these procedural issues from postjudgment briefing through the conclusion of the appeal in both state and federal court. We will also cover a couple of topics that are unique to state-court procedure. I. Filing a Motion for New Trial A. Texas Law Texas Rules of Civil Procedure b generally define the requirements for filing a motion for new trial in Texas state courts. A motion for new trial must be filed within 30 days after the judgment is signed. 1 After the deadline, the court s plenary power expires, and any subsequent motion for new trial is automatically void. 2 This deadline can be extended when an adversely affected party or the party s attorney neither receives notice of the judgment nor acquires actual knowledge of the order within 20 days after the judgment. 3 In that case, the time to file a new motion runs from the first day that notice was received or actual knowledge was acquired. 4 To extend the period for filing a motion for new trial, the party must submit a sworn motion and notice attesting to the date on which notice was received or actual knowledge was acquired. 5 But this period cannot extend past 90 days after the judgment was signed. 6 A motion for new trial must be accompanied by 1 TEX. R. CIV. P. 329b(a). 2 Pampell v. Pampell, 699 S.W.2d 355, (Tex. App. Austin 1985, no writ). 3 TEX. R. CIV. P. 306a; TEX. R. CIV. P. 4(2). 4 TEX. R. CIV. P. 306a(4). The rules do not set a deadline for filing this motion beyond the expiration of the court s plenary power under 306a(4). John v. Marshall Health Servs., 58 S.W.3d 738, 741 (Tex. 2001). 5 TEX. R. CIV. P. 306a(5). 6 TEX. R. CIV. P. 306a(4). 1 the appropriate filing fee. Be sure to check with the trial court clerk because the fee can vary from county to county. State law permits counties to decide to collect certain fees in addition to the standard $15. For example, the fee is $25 in Dallas County but $61 in Harris County. The easiest way to be sure to pay the correct fee is to file electronically because the correct fee will automatically be charged to your account. Even if the filing fee has not been paid at the time of filing, the motion is considered conditionally filed. But the trial court will not consider the motion until the filing fee has been paid, and an unpaid motion does not preserve anything for appellate review. 7 To grant a motion for new trial, the court must issue a written order. 8 If the court does not issue a written order within 75 days of the judgment, the motion is overruled. 9 The trial court retains plenary power over the case until 30 days after the motion for new trial is disposed. Thus, even if the motion is overruled by operation of law, the court can still act on it as long as it has plenary power. But be aware that the loss of plenary power is jurisdictional and cannot be extended. Thus, in one case, although the district court held a hearing and orally granted a party s motion for new trial within the 75-day period, the order was void because it was not signed until after the court lost plenary power. 10 Even though the party s counsel had diligently followed up with the trial court s office, and had allegedly been informed by the clerk that an order had been signed, the order was void because it was undisputedly signed outside the plenary-power period. 11 Filing an amended motion for new trial does not require leave of court, but to be considered timely, an amended motion must be filed within the 30-day period and before any of the party s preceding motions 7 Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004); Tate v. E. I. DuPont de Nemours & Co., 934 S.W.2d 83, 84 (Tex. 1996). 8 TEX. R. CIV. P. 329b(c). See also In re Lovito-Nelson, 278 S.W.3d 773, (Tex. 2009) ( It is important that the requirement of a written order granting a motion for new trial be a bright line rule. ); Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (holding that an oral pronouncement and a docket entry are not an effective substitute for a written order). 9 In re Bates, No CV, 2014 Tex. App. LEXIS 1679, at *7 (Tex. App. Houston [1st Dist.] Feb. 13, 2014, no pet.). 10 Id. at * Id. at *11 *12. The party also filed a motion for nunc pro tunc relief with the trial court to correct the date the order for new trial had been signed. Id. at *13. However, because the appellate court had ordered a stay in the case, that nunc pro tunc order was similarly void. Id. at *13 *16.

16 for new trial have been overruled by the court. 12 In Henderson v. Henderson, 13 the court of appeals affirmed a denial of a motion for new trial where the plaintiff s original motion, although timely filed, lacked sufficient evidentiary support. 14 The plaintiff had later submitted a supplement to his original motion, but the supplement was filed after the 30-day deadline had passed. 15 Therefore, the district court acted within its power to ignore the supplement and deny plaintiff s motion for new trial based on the original filing. 16 Because the denial of a motion for new trial affects the court s plenary power and because the number of motions for new trial is limited, parties should not file a motion for new trial until after judgment has been signed. A motion for new trial filed before judgment is deemed filed on the date judgment is signed. 17 And depending on how the trial court resolves the premature motion, it can have an impact on further post-judgment options. For example, in Linan v. Padron, the appellant filed a motion for new trial, or in the alternative judgment notwithstanding the verdict before the judgment was entered. 18 The trial court denied the motion for new trial and then entered judgment. 19 Within 30 days of the judgment, the appellant filed a second motion for new trial, which the trial court granted more than 30 days after judgment. 20 The court of appeals held that the trial court lacked jurisdiction to grant the new trial. 21 The court reasoned that the premature motion for new trial was deemed filed on the day the judgment was signed, and because it had already been denied, it was deemed denied on the same day. 22 The denial of the motion for new trial triggered the expiration of the trial court s plenary power 30 days later. 23 And because the second motion for new trial was not filed until after the first one was 12 TEX. R. CIV. P. 329b(b); see also In re Brookshire Grocery Co., 250 S.W.2d 66, 69 (Tex. 2008). 13 Henderson v. Henderson, No CV, 2011 Tex. App. LEXIS 5457 (Tex. App. Austin July 13, 2011, pet. filed). 14 Id. at * Id. 16 Id. at *11 * TEX. R. CIV. P. 306c. 18 No CV, 2010 WL at *1 (Tex. App. Corpus Christi Aug. 12, 2010, no pet.). 19 Id. 20 Id. 21 Id. at *4. 22 Id. 23 Id. 2 denied, it could not affect the trial court s plenary power. 24 The key takeaway here is that a motion for new trial is a post-judgment motion, not a post-verdict motion. The proper post-verdict motion is a motion for judgment notwithstanding the verdict. B. Federal Law The requirements for filing a motion for new trial in federal court are in Federal Rule of Civil Procedure 59. Although the grounds for granting a motion for new trial are not explicitly stated in the rule, in the case of jury trials, the grounds are limited to any reason for which a new trial has heretofore been granted in an action at law at federal court. 25 Motions for new trial must be filed within 28 days after the judgment, 26 and any required affidavits must be filed along with the motion for new trial. 27 In Darouiche v. Fidelity National Insurance Company, 28 the Fifth Circuit addressed the timeliness of a motion for new trial that was filed after the deadline because the original motion was deemed deficient under local rules. 29 The plaintiff electronically filed his motion on the last day of the 28- day period, but the clerk deemed the motion deficient because it did not follow a local rule requiring separate electronic attachments. 30 Two days later, the plaintiff filed a corrected motion which complied with the local rule. 31 The Fifth Circuit held that the plaintiff s motion for new trial was timely filed because a conclusion that the minor formatting error rendered that motion too insufficient to be considered would unjustifiably elevate form over substance and would conflict with Federal Rule Civil Procedure The Fifth Circuit has also held that [a] motion for new trial cannot be used to raise arguments which could, and should, have been made before the 24 Id. 25 FED. R. CIV. P. 59(a)(1)(A). Alternatively, in the case of a nonjury trial, grounds are limited to any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. FED. R. CIV. P. 59(a)(1)(B). 26 FED. R. CIV. P. 59(b). 27 FED. R. CIV. P. 59(c). 28 Darouiche v. Fid. Nat l Ins. Co., 415 F. App x 548 (5th Cir. 2011). 29 Id. at Id. 31 Id. 32 Id. at 552. A local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply. FED. R. CIV. P. 83(a)(2).

17 judgment was issued. 33 The defendant in Garriott v. NCsoft Corp. made no objection to the testimony of the plaintiff s expert witness regarding damages models, but waited until after the verdict was issued to attack the plaintiff s expert s methodology and argue that the resulting verdict was excessive. 34 The court took issue with the defendant s lack of reason for its failure to object during trial, and the court decided that to allow a motion for new trial in this case would transform the trial court into a trial run. 35 The Fifth Circuit has also criticized the filing of successive motions for new trial that are based on substantially the same grounds as alleged in the earlier motions. 36 The court unequivocally denounced the practice, stating such successive motions are condemned by established authority. 37 II. Requesting Findings of Fact and Conclusions of Law A. Texas Law Written findings of fact and conclusions of law are essential in an appeal from a nonjury verdict. Without findings of fact and conclusions of law on the record, the appellate court presumes that the trial court made all findings in support of its judgment and will thus draw every reasonable inference in favor of the judgment. 38 Therefore, it is crucial that an appealing party properly request findings of fact. The timing rules for requesting findings of fact are wholly separate from the timing of post-judgment motions and the notice of appeal. And there are several different ways that error can be waived by missing deadlines or even filing prematurely. The procedure for requesting findings of fact and conclusions of law is governed by Texas Rules of Civil Procedure a. Any party to a case tried without 33 Garriott v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)); see also WesternGeco LLC v. ION Geophysical Corp., 953 F. Supp. 731, 740 (S.D. Tex. 2013) ( If an issue is raised for the first time on a motion for a new trial, the issue is waived. ). 34 Id. at Id. Indeed, it would be unjust to allow NCsoft to sit back during trial, observe Garriott s litigation strategy, and then demand a new trial on damages when it dislikes the verdict. Id. at Fleming v. Uncle Bob Storage Inc. Sovran, 476 F. App x 4 (5th Cir. 2012). 37 Id. 38 Powell v. Reiswerg, No CV, 2013 Tex. App. LEXIS 13503, at *9 (Tex. App. Houston [14th Dist.] Oct. 31, 2013, no pet.). 3 a jury in district or county court can request that the court issue its findings of fact and conclusions of law in writing. 39 Requests for findings must be filed within 20 days of the judgment being signed. 40 The request must be filed with the clerk, who must then immediately call it to the attention of the trial judge. 41 Additionally, copies of the request must be served on all other parties in the matter. 42 In response, the court must file its findings of fact and conclusions of law within 20 days after a timely request is filed, and the court must mail copies of its findings to each involved party. 43 If a court fails to issue its findings within 20 days, the party must file a notice of past due findings, which extends the court s time to respond to 40 days. 44 The notice of past due findings cannot be filed until 21 days after the request and must be filed no later than 30 days after the request. 45 Significantly, a premature notice of past due findings will not preserve anything for appeal. 46 There is a specific 10-day window in which the notice must be filed. The failure to file a timely notice of past due findings waives any complaint on appeal that the trial court erred in failing to make findings. 47 For example, in Doyle v. Teske, 48 the defendants filed an initial request for findings in the case but failed to submit a notice of past due findings. 49 The court found that they waived their complaint regarding the court s failure to file findings because they never ensure[d] that the court [was] in a timely fashion fully apprised of the request and the party s continu[ed] interest in having it 39 TEX. R. CIV. P Id. The same Rule 306a extension period provisions discussed supra Part I.A. apply to requests for findings of fact and conclusions of law as well. TEX. R. CIV. P. 306a. 41 TEX. R. CIV. P Id. The procedure for serving the request on other parties can be found in TEX. R. CIV. P. 21a. 43 TEX. R. CIV. P Id. 45 Id.; Akukoro v. Akukoro, No CV, 2013 WL , at *7 (Tex. App. Houston [1st Dist.] Dec. 19, 2013, no pet.) ( Findings of fact and conclusions of law must be requested within 20 days after judgment, and if no findings and conclusions are filed, the requesting party must file a notice of past due findings within 30 days of its original request. ). 46 Estate of Gorski v. Welch, 993 S.W.2d 298, (Tex. App. San Antonio 1999, pet. denied). 47 See Powell, 2013 Tex. App. LEXIS at *4 *6. 48 Doyle v. Teske, No CV, 2011 Tex. App. LEXIS 2360 (Tex. App. Tyler Mar. 31, 2011, no pet.). 49 Id. at *5 *6.

18 honored. 50 Requests for findings may be filed before the court signs its judgment, but in those cases, the request is still deemed to have been filed on the date the judgment was signed. 51 Importantly, this means the due dates for the court s response and for past due notices are determined with respect to the date the judgment was signed, regardless of when the premature documents were filed. 52 In Joseph v. Joseph, the appellant filed a premature request for findings and then followed up with a notice of past due findings 30 days after the original request, but only 20 days after the judgment. 53 In that case, the court determined that the notice of past due finding was not timely filed (because it was filed early), and therefore, the party had waived her complaint about the court s failure to file its findings. 54 After the court files its original findings, any party may request specific additional or amended findings within 10 days after the court issues its findings. 55 In response, the court may file any additional or amended findings within 10 days of the request. 56 A request for additional findings is required in two situations. First, if the trial court fails to make a finding on an essential element of a claim or defense, the party opposing the claim or defense should point it out in a request for additional findings. Otherwise, the missing findings will be presumed in favor of the judgment and the party opposing will lose the right to complain about the presumed finding. 57 Second, if the court completely omits any findings on a claim or defense, the proponent of the claim or defense must point out the omission in a request for additional findings. Otherwise, the claim or defense will be waived Id. at *6. 51 See TEX. R. CIV. P. 306c (discussing prematurely filed documents). 52 See Joseph v. Joseph, No CV, 2012 Tex. App. LEXIS 3501 at *6 *7 (Tex. App. Tyler May 3, 2012, no pet.). 53 Id. 54 Id. 55 TEX. R. CIV. P Id. 57 TEX. R. CIV. P. 299 (regarding omitted findings); TEX. R. CIV. P. 298 ( No findings or conclusions shall be deemed or presumed by any failure of the court to make additional findings or conclusions. ) (emphasis added); see also Gentry v. Squires Const., Inc., 188 S.W.3d 396, 408 (Tex. App. Dallas 2006, no pet.) ( The failure of a party to request additional or amended findings or conclusions waives the party's right to complain on appeal about the presumed finding. ). 58 TEX. R. CIV. P. 299 ( The judgment may not be supported upon appeal by a presumed finding upon any 4 Filing a request for findings does not extend the period of the court s plenary power, but because the request does not seek to modify or vacate the judgment, a court may file properly requested findings after its period of plenary power has expired. 59 Additionally, filing a request for findings does extend the period for filing a notice of appeal to 90 days after the judgment is signed. 60 But the period to perfect appeal is not extended by a request for findings where findings and conclusions have no purpose and should not be requested, made, or considered on appeal. 61 In Ezy-Lift of California v. EZY Acquisition, the court found the parties request for findings of fact improper because the trial court did not resolve any disputed questions of fact. 62 Because the deadline for filing notice of appeal was not extended by the request, the parties notice of appeal was not timely filed. 63 Thus, if there is any doubt about the propriety of a request for findings of fact, do not rely on the request to extend the deadline for the notice of appeal. B. Federal Law Federal Rule of Civil Procedure 52 addresses requests for findings of fact and conclusions of law in federal courts. The rule requires that courts must separately file statements of their findings of facts and conclusions of law in nonjury trials. 64 However, local rules may supplement this with a requirement that the parties file proposed findings. 65 Furthermore, after the judgment has been entered, the parties have 28 days to ground of recovery or defense, no element of which has been included in the findings of fact. Refusal of the court to make a finding requested shall be reviewable on appeal. ); see also RBS Mortg. LLC v. Gonzalez, No CV (Tex. App. San Antonio 2013, no pet.) ( When the court s findings do not address a defense and the party relying on the defense does not request additional findings, that defense is waived. ). 59 See In re Gillespie, 124 S.W.3d 699, (Tex. App. Houston [14th Dist.] 2003, no pet.). 60 TEX. R. CIV. P. 26.1(a)(4). 61 Ezy-Lift of Cal., Inc. v. EZY Acquisition, LLC, No CV, 2014 Tex. App. LEXIS 4190 at *8 (Tex. App. Houston [1st Dist.] Apr. 17, 2014, no pet.). 62 Id. at *26 * Id. at * FED. R. CIV. P. 52(a)(1). This statement can be made either on the record after the close of the evidence or in an opinion or memorandum of decision filed by the court. Id. 65 E.g., N.D. Texas Local Rule 52.1 (requiring that parties file and serve on opposing parties their proposed findings of fact and conclusions of law at least 14 days before trial).

19 file a motion for requesting amended or additional findings from the court. 66 In Fractus, S.A. v. Samsung Electronics Co., 67 the defendant requested that the court enter additional findings of fact and conclusions of law with respect to a particular defense. 68 However, beyond asserting this defense in its final pretrial order and submitting pretrial proposed findings of fact on the defense, the defendant did not mention the defense at trial and presented no evidence to support the defense. 69 Therefore, the court refused to make any findings of fact or conclusions of law with respect to the defense because the defendant waived its challenge by not raising the issue at trial or preserving it. 70 III. Perfecting the Appeal A. Texas Law The procedure for filing a notice of appeal is covered by Texas Rules of Appellate Procedure 25 and 26. An appeal is deemed perfected when a notice of appeal is filed with the trial court clerk; however, the rule also provides that notices of appeal mistakenly sent to the appellate court clerk are deemed to have been filed with the trial court clerk on the same day. 71 Notice must also be served on all parties to the judgment. 72 While the notice of appeal is filed with the trial court clerk, the filing fee for he appeal is paid to the appellate court clerk. This is usually done when a filemarked copy of the notice of appeal is filed in the appellate court. Even though paying the filing fee is not jurisdictional, it can result in dismissal of the appeal if the fee is not paid. The notice of appeal must be filed within 30 days after the court s judgment is signed. 73 However, some motions and filings extended the deadline to 90 days after the judgment is signed. 74 These motions and filings include a motion for new trial, a motion to modify the judgment, a motion to reinstate, and a request for findings of fact and conclusions of law FED. R. CIV. P. 52(b). 67 Fractus, S.A. v. Samsung Elec. Co., 876 F. Supp. 2d 802 (E.D. Tex. 2012). 68 Id. at Id. 70 Id. 71 TEX. R. APP. P. 25.1(a). 72 TEX. R. APP. P. 25.1(e). 73 TEX. R. APP. P TEX. R. APP. P. 26.1(a). 75 TEX. R. APP. P. 26.1(b), (c). 5 Additionally, modified deadlines apply in cases of accelerated appeals or restricted appeals. 76 Once one of these motions is filed, the deadline for the notice of appeal is extended to 90 days after the judgment was signed, regardless of when the trial court disposes of the motion. Although the time period for perfecting an appeal begins to run once the judgment is signed, if the court modifies, corrects, or reforms the judgment during its plenary period, the time period beings to run again from the date the modified judgment is signed. 77 For example, in Holloway v. Monroe, 78 the trial court issued an original final judgment and then issued a new final judgment on the last day of its plenary jurisdiction. 79 The appellees argued that the new judgment served to simply affirm a former judgment in an effort to improperly enlarge the period for perfecting appeal. 80 Nevertheless, because Texas Rule of Civil Procedure 329b(h) extends the time for appeal after the modification of a judgment in any respect, the court found that the time for appeal had began to run again after the new judgment. 81 Thus, the appellant s notice of appeal was timely. 82 The period for filing a notice of appeal is a strict requirement in appellate procedure. There is a slight room for error: the Texas Supreme Court has stated that it has consistently treated minor procedural mishaps with leniency, preserving the right to appeal. 83 Nevertheless, a timely filed notice of appeal is essential for an appellate court s jurisdiction. 84 Appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by the litigants See id. 77 TEX. R. CIV. P. 329b(h). 78 Holloway v. Monroe, No CV, 2014 Tex. App. LEXIS 2576 (Tex. App. Houston [14th Dist.] Mar. 6, 2014, no pet.). 79 Id. at *9 * Id. at * Id. at *12 (quoting TEX. R. CIV. P. 329b(h)). Any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed. Id. (quoting Check v. Mitchell, 758 S.W.2d 755, 755 (Tex. 1988) (per curiam)). 82 Holloway, 2014 Tex. App. LEXIS 2576 at * Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011). 84 TEX. R. APP. P. 25.1(b). 85 Rodriguez v. Ruiz, No CV, 2013 Tex. App. LEXIS 2342 at *6 (Tex. App. Corpus Christi Mar. 7, 2013, pet. denied) (quoting Welder v. Fritz, 750 S.W.2d 930,

20 The decisions in Rodriguez v. Ruiz 86 and Brighton v. Koss, 87 underscore how overlapping timelines and multiple filings can make analyzing the timeliness of a notice of appeal extremely complicated, not just for the parties involved, but for courts as well. In Rodriguez, the appellant confused the expiration of the trial court s plenary period with the deadline to file a notice of appeal. 88 Although the post-judgment motion filed by the appellant extended the plenary period for up to an additional 75 days (105 days total), the post-judgment motion only extended the appellant s deadline to file a notice of appeal to 90 days from the judgment. 89 Therefore, the appellants notice filed after the 90 day period was untimely. 90 In Brighton, 30 days after the court entered its judgment, one of the parties filed a motion to modify the judgment, thereby extending the period to file notice of appeal to 90 days. 91 However, the court later entered a second judgment and restarted the clock on the period to file a notice of appeal. No party filed a motion to modify the second judgment. The party later filed notice of appeal more than 30 days after the second judgment, but within 90 days. 92 Although the lower court found that the notice of appeal was untimely, the Texas Supreme Court determined that because the second judgment did not grant all the relief the party requested in her initial motion to modify the judgment, the previously filed motion to modify continued to apply and extended the appellate timetable after the second judgment. 93 Therefore, the party s notice of appeal was timely. 94 B. Federal Law Federal Rule of Appellate Procedure 4 covers the process of filing a notice of appeal. The basic deadline 932 (Tex. App. Corpus Christi 1988, no writ)). See also id. ( Even if both parties agreed that a different date [for the final judgment] actually existed, we are constrained by the rules to determine our jurisdiction by reference to the date on which the judgment was signed. ) (quoting Claxton v. (Upper) Lake Fork Water Control & Improvement Dist. No. 1, 220 S.W.3d 537, (Tex. App. Texarkana 2007, pet. denied)) Tex. App. LEXIS Brighton v. Koss, 415 S.W.3d 864 (Tex. 2013). 88 Rodriguez, 2013 Tex. App. LEXIS 2342 at *5. 89 Id. at *5 *6. 90 Id. at *4. 91 Brighton, 415 S.W.3d at Id. 93 Id. at Id. at 867. for filing a notice of appeal is 30 days after the entry of judgment. 95 However, that deadline extends to 60 days when one of the parties is the United States, a U.S. agency, or certain U.S. employees and officers. 96 A prematurely filed notice of appeal is deemed to be filed on the date the judgment is entered. 97 The deadline for filing a notice of appeal is extended by the following motions: (1) a motion for judgment under Rule 50(b); (2) a motion to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; (3) a motion for attorney s fees, if the district court extends the time to appeal under Rule 58; (4) a motion to alter or amend the judgment; (5) a motion for a new trial; or (6) a motion for relief under Rule 60, as long as the motion is filed within 28 days after the judgment is entered. 98 But if the motion or filing is untimely, the deadline is not extended. 99 For example, in Overstreet v. Joint Facilities Management, 100 the party filed a motion to modify the judgment. 101 But the motion was filed 29 days after the judgment, one day after the 28-day deadline for motions to modify. 102 Because the motion to modify was untimely filed, the Fifth Circuit found that the deadline for notice of appeal had not been extended, and it dismissed the appeal for lack of jurisdiction. 103 If technical defects in a motion are promptly corrected, the motion can be deemed timely filed, but only if the party specifically requests that relief. In Williams v. Toyota Motor, 104 the plaintiff timely filed a post-judgment motion. 105 Ordinarily, this would extend the time for filing a notice of appeal until 30 days after 95 FED. R. APP. P. 4(a)(1)(A). 96 FED. R. APP. P. 4(a)(1)(B). 97 FED. R. APP. P. 4(a)(2). 98 FED. R. APP. P. 4(a)(4)(A). 99 See FED. R. APP. P. 4(a)(4). 100 Overstreet v. Joint Facilities Mgmt., LLC (In re Crescent Res., LLC), 496 F. App x 421 (5th Cir. 2012). 101 Id. at Id. at 424. See also FED. R. CIV. P. 59(e). 103 Overstreet, 496 F. App x at 424; see also Darouiche v. Fid. Nat l Ins. Co., 415 F. App x at 551 (holding that because the motion for new trial was untimely, it did not toll the running of the thirty-day clock to appeal ). Surprisingly in Overstreet, though the Fifth Circuit could not consider the appeal, the court was able to consider the lower court s denial of the motion to modify judgment because Rule 59(e) s deadline is court-fashioned and thus nonjurisdictional. Overstreet, 496 F. App x at Williams v. Toyota Motor Eng g & Mfg. N. Am., 470 F. App x 309 (5th Cir. 2012). 105 Id. at

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