TX. CIV. PRO.
TRIAL & APPEAL
Chap 1: Standards of Appellate Review
I.Intro
A.Important Points to Remember
1.Error
a.Error of law
b.Factual errors
c.Discretionary errors
2.Standard of Review
3.Preserved
4.Not Harmless
5.Record
a.Clerk’s record
b.Court Reporter’s record
6.Result
a.Affirm
b.Reverse and Render (We can correct the mistake)
c.Reverse and Remand (We cannot correct)
II.Preserving Error: Rule 33.1, TRAP
A.Generally
1.Error must be preserved in the trial court
a.Must ask the judge
1.Motion (pointing out the specific error or asking the judge
2.Objection to do the right thins)
3.Request
b.Must state the grounds for the objection
c.Must ask for a ruling on the request
2.Harmless error rule: error must cause harm to the complaining party
3.Only reverse when the error caused an improper judgment
4. 1, 2, & 3 must all appear in the record
B.Emerson
1.Motion made before judge entered judgment; judge failed to conform to the jury verdict
2.Lawyer should have asked judge to make a ruling on the motion for the record.
3.Other motions he could have made:
a.Motion for a new trial – bad idea; however, in the situation where at the appellate level, this is the best you can do, it is best to ask for a new trial at the trial level because the trial judge has broad discretion to grant a new trial
b.Motion to modify the judgment – the correct motion in this situation
III.Harm: Rule 44.1(a)(1) and 61.1(a)(1), TRAP
A.Generally
1.Introducing testimony of witnesses who were not previously identified in response to interrogatories
2.Motion in limine – exclude all witnesses not indicated in response; trial ct. overruled allowing 2 undisclosed witnesses to testify
3.Written motion – exclude testimony of unnamed witnesses pursuant to TRCP 193.6
4.Std. of review: error of law – cannot admit the evidence unless timely informed; judge determines the admissibility of evidence
5.Discretionary review – if good cause exists, testimony may be allowed
6.Trial judge made error by allowing testimony
7.Preservation – (1) Motion in limine & (2) Written motion
8.Harm – no harm because it duplicated the testimony of other witnesses
9.Party asserting error has the burden to show harm and must produce the ct. record
B.When the Trial Court’s Action Prevents a Showing of Harm: Rule 44.1(a)(2), TRAP
1.Biggers
a.Refusal to permit party to have testimony of the witness included in a bill of exceptions (formal written statement of a party’s objections or exceptions taken during trial and the grounds for which they are founded) for the purpose of showing the harmful and prejudicial effect of the first ruling was such a denial of the substantive rights of the party as to authorize reversal of the trial court’s judgment
2.Hogan
a.Appellant answered interrogatories generally; did not provide addresses and phone #’s of witnesses.
b.Ct. granted discovery sanctions prohibiting any witnesses on any matter except for appellant and one other witness; further, the order limited the testimony
c.Ct. quashed a subpoena and prevented deposition testimony; appellant pointed out if subpoenas were quashed, unable to preserve error by Bill of Exceptions that contained the deposition testimony
d.Appellate Ct. holds that such action in preventing the appellant from preserving error is a reversible error which could have prevented appellant from making a proper presentation of the case to the appellate ct.
e.Ruling of the court had the incidental effect of depriving counsel of the opportunity to preserve error
f.Common mistake: trial counsel forgets to make the Bill of Exceptions; though many judges remind, no obligation to do so and asking to much to expect them to help you make a record so as to reverse their ruling.
3.In re Donna Pack
a.Can get by harmless error rule when you show that the judge prevented you from showing harm
4.3 ways to get to appellate ct.
a.Ordinary appeal – must have final judgment
b.Interlocutory Appeal – by statute; no final judgment; usually following a ruling on a motion
c.Mandamus
1.Extraordinary writ filed in COA
2.Asking to stop illegal action taking place
3.Force the judge to change or review the whole situation to determine if the judge has erred
IV.Standards of Review
A.Std. of Review to determine whether there has been error
1.Legal Error
a.Saying law requires trial ct. to do one thing and the trial ct. did not do it
b.If legal error, no deference to the trial ct.
c.Appellate ct. is in equal position with trial ct. to make a decision
d.Not many legal errors
e.If you have legal errors, S.Ct. or COA can render judgment
f.Ex. Can undisclosed witness testify?
Law: If witness is undisclosed, trial ct. may not allow wit. to testify, unless good cause
If no evid. of good cause and judge allows to testify, then there is a legal error
2.Abuse of Discretion
a.Law allows trial ct. to make a range of decisions under particular circumstances
b.Can only be reversed if trial ct. abuses this discretion
c.Arbitrarily or unreasonably
d.Acting without reference to guiding rules or principles
3.Most recently, S.Ct. has divided Abuse of Discretion into laws and facts
a.Facts
1.Sometimes are undisputed
2.Must look at whether law is applied to :
a.Disputed facts
b.Undisputed facts
3.Must give judges incredible deference to issues of fact
4.If there are factual issues, appellate ct. does not have jurisdiction and must remand
5.EX.Dispute about issue of discovery
If there is evid. to support judge’s decision, then it cannot be overturned; overturned only if there is no evidence to support
b.Dispute over Law
1.Appellate ct. does not have to give deference to trial ct. on dispute over law
2.If COA or SCt. Wants to find error, they will frame it as a legal issue
4.Factual Error
a.Traditionally, insufficiency of evidence review
1.Resolutions of fact question relating to the merits of the case
b.Differs from abuse of discretion - A of D not directly bearing on the merits of the case
c.2 kinds of errors
1.Legal insufficiency – law
a.Trier of fact has made a legal error if they find a fact in which there was no evidence; not a fact dispute because is an issue of law
2.Factual insufficiency – facts
d.Trier of fact failed to find a fact in and evidence is conclusive of that fact, then the jury has made a legal error
1.Such evidence that nobody could have disbelieved the evidence
2.Evidence on both sides – based on all of the evidence, insufficient to make such a finding or the finding was against the great weight or preponderance of the evidence
B.Bocquet v. Herring (1998)
1.Std. of review for atty’s fees; declaratory judgment – declaring rights in easement
2.P nonsuited tort claims; trial on atty’s fees to bench
a.Attorneys fees only recoverable by statute or contract
3.P appeals arguing fee award was abuse of discretion; ct. appeals: std. is abuse of discretion and the award was excessive; reverse & remand
4.S.C.
a.Declaratory Judgments Act: entrusts award of atty’s fees to trial ct’s discretion
b.Abuse of discretion:
1.Arbitrarily
2.Unreasonably
3.W/out regard to legal principle
4.W/out supporting evidence
5.Before COA could reach conclusion that there was no supporting evidence, it was required to explain why the evidence was factually insufficient; COA did not do this
6.S.Ct. remands to COA to redetermine the factual sufficiency of evidence
a.If sufficient, must affirm
b.If insufficient, may affirm conditioned on remittitur or remand for further proceedings
B.Herring v. Bocquet (2000)
1.Factual sufficiency review:
a.Must weigh all evidence
b.Judgment can only be set aside if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust
c.Ct. deferred to trial ct.’s judgment and affirmed
2.Language in rule:
a.Ct. may award costs and reasonable atty’s fees as are equitable and just
1.May – indicates ct. has discretion
2.Equitable and Just – discretion
a.Reviewed on abuse of discretion which is an error of law
3.Reasonable and necessary - factual
a.Jury would be asked what is reasonable and necessary based on the evidence
3.What do factfinders do?
a.Balance the burden of proof which is ordinarily a preponderance of the evidence
4.Trial judge does not have to submit a question if someone claims compensation for reasonable attorney’s fees
a.If there is no evidence, there is no factual issue to resolve
b.If evidence is submitted, must submit to jury
5.When jury returns with amt, judge has discretion to award or not to award
a.Judge could determine not to submit the question because he will not award it anyway
b.Some judges will submit the question to get an answer in case the judge gets reversed on appeal; then he will not have to retry the case
6.Because COA has to detail sufficiency of evidence, A of D gives COA more power over trial judge because they do not have to explain in great detail.
V.Abuse of Discretion
A.Downer
1.Test for abuse of discretion: whether the ct. acted without reference to any guiding rules or principles; whether the act was arbitrary or unreasonable
2.Mere fact that trial judge may decide matter in a different manner than appellate judge does not demonstrate an abuse of discretion
3.Trial Ct. errors:
a.Errors of law – one correct answer
b.Abuse of discretion – many answers
4.More complex the factors, more surrounding facts and circumstances must be taken into account, more likely a decision will be left to trial ct’s discretion.
5.Any evidence to support trial judge’s decision, no abuse of discretion
B.Landon
1.Discretion – the power to choose among alternatives within legal bounds
2.Trial ct. abuses its discretion when the law is misapplied to established facts
3.If trial judge exercises a power of choice given to him by law, and does so in a way that is lawful in every respect, he has committed no legal error; his choice is immune from appellate revision, even though the COA may not have decided it in the same manner
4.However, the abuse of discretion std. also protects from appellate revision a limited range of trial ct. choices even when marred by legal error.
a.If legal error committed by trial ct. is not “prejudicial” or does not result in injury, the trial ct’s choice does not amt. to an abuse of discretion
b.On the other hand, legal error is prejudicial or injurious where it probably caused an improper judgment
C.Walker
1.Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law
2.With respect to resolution of factual issues or matters committed to the trial ct’s discretion, the reviewing ct. may not substitute its judgment for that of the trial ct.
a.Even if reviewing ct. would have decided differently, it cannot disturb the trial ct’s decision unless it is shown to be arbitrary and unreasonable
3.Trial ct has no discretion in determining what the law is or applying the law to facts
a.Thus, clear failure by trial ct. to analyze or apply the law correctly will consitute abuse of discretion and may result in reversal
4.Is the finding of harm essential to a finding of abuse? If there is no harm, there is no abuse of discretion
5.Guidelines for identifying abuse of discretion
a.Imposition of a severe penalty on one party for some oversight when a more forgiving approach would promote a just resolution and occasion little convenience to the other side
b.Trial cts refusal to permit a trial amendment to add an oath to existing pleadings
c.Refusal to allow P to reopen its case after resting in order to cure gaps in proof which would not hinder or delay trial
6.If a trial ct’s order simply says “Motion to Compel” with no grounds, then appellate ct. has no idea of the facts or law applied
a.If you are a trial judge and do not want to get reversed, you do not provide findings of fact or conclusions of law
b.Further, if you are the party that wins, do not provide an elaborate order because more detail makes it easier to get reversed on appeal
VI.Evidentiary Support of Fact Findings: The Zones of Evidence
A.No Duty and No Evidence
1.Generally
a.Burden of proof
1.Prove a fact by a preponderance of the evidence
2.Convince factfinder that your version of the facts is more plausible than the other person’s view of the facts
b.No Evidence
1.Element you cannot prove
2.Not entitled to judgment
3.No right to go to the jury
c.First question
1.Does P have enough evidence to go to the jury?
d.Taking the case away from the jury
1.Summary judgment
a.Opposing side does not have evidence
2.Directed verdict
a.Have presented evidence, jury is not given question because there is nothing for the jury to decide
2.Boyles
a.The ct. found that there is no general duty in TX not to negligently inflict emotional distress; a claimant may only recover mental anguish damages in connection with D’s breach of some other legal duty
b.Since the ct. found no duty under these circumstances, the videotape of the incident becomes no evidence of negligence; i.e. it falls into Zone 1
B.The TX Scheme – Zones of Evidence
1.Class Notes
a.Sufficiency of Evid. Review
1.Generally
a.Review of fact; insufficiency pt.
b.Broad
c.Zone 2 or 4
d.Party entitled to a jury question
2.This is the some evidence zone and must be resolved by the fact finder
a.Zone 2 – P’s evid. so unconvincing, hard to believe jury would answer affirmatively
b.Zone 4 – jury answers no – jury is clearly biased, the answer no is so clearly against the great weight and preponderance of the evid.
3.Relief = new trial; must give it to another jury; an error of fact finding a judge cannot completely fix that question and must send it to another jury to get it right
a.Can only grant 3 new trials on sufficiency of evid.
4.Reverse and remand in Zone 2 and 4
b.No Evid. or Conclusive Evid. Review
1.Generally No Evid.
a.Review of fact; no evid. pt.
b.Legal Sufficiency of Evid.
1.If all you have is a scintilla of evid., then that is not enough to be some evid.
a.Cases tell us that a scintilla is an unreasonable inference; or an inference upon an inference; or if you have opposing reasonable inferences
b.If you have direct evid. of a fact, clearly have more than a scintilla
c.Circumstantial evid. is usually more than a scintilla
c.Zone 1 or 5
d.Fact established or not established as a matter of law
e.S.Ct. has no jurisdiction over sufficiency of evid. pts.
2.If you have no evid., not entitled to a jury question
a.Judge might grant MSJ
b.During trial, judge might grant a DV because there is no fact issue and before it is sent to the jury
c.Can object to a jury question if P presented no evid. on that issue
1.If overruled, next time you can bring up is if jury answers affirmatively to the question you objected to and you may make a JNOV motion
d.b. and c. preserve error; however, no error is preserved if MSJ is overruled, must make a motion at trial
3.When evaluating no evid. motion, trial ct. is to look at the evid. presented by nonmovant
a.Essentially, looking at P’s best stuff and if more than scintilla present, must deny motion
4.Conclusive Evid.
a.P presented so much evid., satisfied burden of proof as a matter of law, no way that jury could find other way
b.First, P must have evid. of every COA and there is no contrary evid.
1.If there is contrary evid., then there is a fact issue
2.D has no burden of proof; D can win even if they present no evid.
c.Second, is P’s evid. so good that it is incapable of disbelief
1.Quantity of D’s evid.; if none, 2
2.Quality of P’s evid.
3.Circumstantial evid. is not good enough
d.To have fact finding proved as a matter of law
1.No contrary evid.
2.Of a quality that cannot be disbelieved
5.If P fails to prove one element D wins
6.Can get judgment on single fact issues and have them taken away from the jury
7.Reverse and render judgment in Zone 1 and 5
2.Garza
a.Unless the context shows that the words were used in a different sense, references to the insufficiency of the evidence are usually construed to mean factual insufficiency
3.“No Evidence & Insufficient Evidence”
a.Zone 1: no evidence (or no more than a scintilla of evidence) supporting a fact issue
1.Therefore, proponent not entitled to have that issue submitted to the jury
2.Such finding will be set aside on appeal and the appellate ct. will render judgment in favor of opponent
b.Zone 2: some evidence on the issue, it must be submitted to the jury, but there is not enough evidence to support a jury finding in the proponent’s favor; reviewing ct. will set aside such a finding and order a new trial
c.Zone 3: enough evidence to support a jury verdict, but not so much that a court would be justified in interfering with a contrary finding; vast majority of cases fall under this zone, where the issue is left to the trier of fact; jury decides one way or the other
d.Zone 4: evidence favoring the proponent is even stronger, so although the issue must go to the jury, a reviewing ct. will set aside a jury finding against a proponent and order a new trial
e.Zone 5: proponent has introduced evidence strong enough to prove a fact conclusively – i.e., as a matter of law; accordingly, a reviewing ct. will set aside a contrary finding and render judgment for the proponent; as with zone 1, when evidence falls in zone 5 there is no issue of fact for the jury to decide
3.Proper Terminology
a.Zone 1 (legal sufficiency point): No evidence; or legally insufficient evidence; or proponent has failed to carry its burden as a matter of law
b.Zone 2 (factual sufficiency point): Insufficient evidence; or factually insufficient evidence to support an affirmative finding
c.Zone 4 (factual sufficiency point): A finding contrary to evidence is against the great weight and preponderance of the evidence
d.Zone 5 (legal sufficiency point): Conclusive evidence
4.Identifying Evidence in Zone 1
a.When the record contains no evidence on a fact issue, or when the trial or appellate court determines that the only supporting evidence should not have been admitted, the case clearly falls into zone 1
b.Sometimes a record contains only a scintilla of evidence
1.“so weak as to do no more than create a mere surmise or suspicion of a fact’s existence”
2.Scintilla rule applies when the proponent attempts to establish a critical fact through an inference from other proof and the reviewing ct. finds the inference unreasonable
c.To conclude that evidence falls within Zone 1, ct. must be persuaded that reasonable minds could not differ on the matter.
d.Sometimes little dispute exists as to the facts; instead the opponent claims that the facts do not constitute a cause of action