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

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

As discussed in Chief Justice Jefferson’s unanimous opinion, two decisions illustrate the opposing lines of cases. In Shook v. Walden, the Third Court of Appeals relied on the definition of “compensatory damages” that HB4 added to a different part of the Civil Practice and Remedies Code (Chapter 41) to conclude that “compensatory damages” does not include attorney fees. In Fairways Offshore Exploration, Inc. v. Patterson Services, Inc., the First Court of Appeals rejected the Chapter 41 definition, holding instead that attorney fees were compensatory damages because they represented money spent to obtain relief against the judgment debtor.

The Supreme Court came down on the Shook side of the split, but did not go so far as to expressly hold that the Chapter 41 definition of “compensatory damages” governs. Rather, the Court concluded, “based on the phrase’s ordinary meaning and [SCOTX] precedent[,] that attorney’s fees incurred in the prosecution or defense of a claim are not compensatory damages” and therefore need not be superseded.  The Supreme Court also determined that attorney fees are not “costs,” as the lower court held.

The Court nevertheless made clear that attorney fees may qualify as compensatory damages in some situations. For example, when the underlying suit concerns a claim for attorney fees as an element of damages—such as an attorney’s suit against a client for nonpayment—then those fees are properly classified as compensatory damages. After studying this opinion, however, it is difficult to imagine other circumstances in which attorney fees will have to be secured.

Lawyers representing judgment creditors who have recovered large attorney-fees awards will lament this decision as depriving them of a potential negotiating chip and a powerful collection tool. As a practical matter, however, this result flows from what happened in 2003, when the Legislature enacted HB4 and narrowed the scope of supersedeas from “the amount of the judgment” to “the amount of compensatory damages awarded in the judgment.” Because supersedeas issues rarely make their way into appellate-court opinions, the split took longer than normal to emerge.

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

The slides from my presentation appear below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Supreme Court Panel

Fifth Circuit Federal v. State Panel

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

This was a second extension request regarding appellant’s reply brief. The appellate court granted additional time in response to the first request, but not as much as the appellant sought. The basic reason given for the second request was “we’re really busy” and the extension granted was not enough.

However, when granting first extensions, the Amarillo Court of Appeals sends a letter informing counsel as follows:

Ordinarily, the Court does not grant requests for subsequent extensions absent good cause. The Court does not generally consider the normal press of business good cause. See Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ).

Curry involved a motion to extend time for responding to requests for admissions. The party stated that his delay was not intentional, but was merely the result of his attorney’s “busy schedule.” The appellate court concluded that “[a] statement that the delay was due to the attorney’s ‘busy schedule,’ without more, is not sufficient to show good cause for permitting the late filing of a response to requests for admissions.”

Technically, “good cause” is not the standard for seeking appellate briefing extensions. Under TRAP 10.5(b), incorporated through TRAP 38.6(d), a motion for extension of time to file a brief need only “reasonably explain the need for an extension.”

Whatever the standard and wherever the court, the moral here is that movants should say more than “we’re really busy” when explaining why a briefing extension is necessary, especially when seeking a second extension of the same deadline. Including some details about concurrent and conflicting deadlines, holiday office closures, recent or upcoming vacations, or even personal matters can help increase the chances that the extension will be granted.