CHAPTER 13 Wrapping Up the Appeal

• Jurisdiction: United States

CHAPTER 13

Wrapping Up the Appeal

13-1 Introduction

The appellate process includes much more than preparing the brief, making the necessary motions, and presenting oral argument. Some of the most critical aspects of the appellate process are ensuring that the judgment, including costs and attorney's fees, is collectible and in fact collected after the appeal is finished. For example, it is important to the successful party to ensure that the court allocates costs properly and in accordance with the final disposition of the case. These costs can be significant, especially if the case was fully tried below. Further, the parties cannot execute the judgment without a mandate issued by the appellate court. Thus, ensuring that the mandate is both correctly and timely issued is important to wrapping up the appeal. Full satisfaction of the judgment is dependent on technical compliance with these requisites.

This chapter describes the process of wrapping up the appeal by focusing on the appellate process from the appellate court's decision to the ultimate termination of the appeal, which includes seeking rehearing, correcting the judgment, issuing the mandate, and collecting the judgment. It also provides practical advice to assist practitioners with those particular aspects of the appellate process.

13-2 The Appellate Court's Decision

13-2:1 The Opinion

13-2:1.1 Written Opinions

Rule 47.1 requires the court of appeals to "hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."¹ The opinion must be distributed to the parties, the trial court (both the judge and clerk of court), and the regional administrative judge.² And the clerk of the trial court must file the opinion of record.³

There are two official forms of opinions: "opinions" and "memorandum opinions." Opinions are either signed by a justice or designated as "per curiam," and a majority of the participating justices will make that determination.⁴ Memorandum opinions are addressed in § 13-2:1.2. All justices participating in an opinion or order must be named in the document.⁵

A justice who participated in the decision may file a concurring or dissenting opinion.⁶ And any justice on the court may file a concurring or dissenting opinion as to the denial of rehearing en banc.⁷ But a justice who did not participate in the decision may not file a concurring or dissenting opinion from the judgment of the court of appeals.⁸

13-2:1.2 Memorandum Opinions

When the decision of the court of appeals applies settled precedent to a particular case, it "should write a brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the basic reasons for it."⁹ So, the opinion can be designated as a memorandum opinion unless it:

• establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

• involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

• criticizes existing law; or

• resolves an apparent conflict of authority. ¹⁰

Cases involving concurrences and dissents are generally not appropriate for this designation, and an opinion cannot be designated as a memorandum opinion if the concurring or dissenting justice disagrees with the designation.¹¹

13-2:1.3 Publication and Citation

Before 2002 there was a serious debate nationwide as to whether unpublished opinions could be cited as authority. Constitutional challenges were made to many court rules prohibiting citation to unpublished opinions.¹² The Texas Rules of Appellate Procedure now make clear that all opinions of the courts of appeals should be made freely and publicly available—going so far as to mandate that they "are open to the public and must be made available to public reporting services, print or electronic."¹³ Opinions are no longer designated as published or unpublished.

Rule 47.2(c) ended the practice of designating certain opinions as unpublished by mandating that opinions issued on or after January 1, 2003, shall not be designated as "do not publish."¹⁴ Those earlier opinions designated as unpublished "have no precedential value," but they can be cited "with the notation '(not designated for publication).' "¹⁵ When citing unpublished opinions that are not easily accessible, practitioners should provide the court and opposing counsel with copies.¹⁶

Memorandum opinions in civil cases after the 2003 amendment have precedential value.¹⁷

13-2:2 The Judgment

13-2:2.1 Outcomes

When the appeal is entirely concluded, the court of appeals will issue a separate judgment, which is usually no more than a page. The judgment is often overlooked in the interest of reading the opinion, but it is vitally important and should be carefully reviewed. By rule, the courts of appeals are to render judgment "promptly" after submission of a case.¹⁸

13-2:2.1a Court of Appeals

There are six basic actions that may be taken by the intermediate court of appeals:

• affirm the trial court's judgment (where there is no reversible error);

• modify the judgment and affirm it as modified (where the decision does not warrant reversal, but needs changes);

• reverse the trial court's judgment in whole or in part and render the judgment the trial court should have rendered (where a new decision is substituted for that of the trial court);

• reverse and remand for further proceedings consistent with the opinion;

• vacate the trial court's judgment (when the trial court lacked jurisdiction or the parties have settled); and

• dismiss the appeal (for want of prosecution or appellate jurisdiction). ¹⁹

If the appellate court finds reversible error, the presumption is that it should render the judgment the trial court should have rendered unless a remand is necessary either to entertain further proceedings or in the interests of justice for a new trial.²⁰

A much less frequent option is a remittitur, which is more of a conditional outcome. In such situations, if the court of appeals or a party believes that the evidence supports a damages award, but not as much as the damages awarded in the judgment, it can suggest a lower amount. When the court of appeals suggests a remittitur, it essentially tells the losing party that it has found reversible error in a portion of the damages award but would uphold the award if it were reduced to a specified amount.²¹ If the remitting party accepts the reduction and timely files the remittitur, the court of appeals reforms and affirms the judgment; if no remittitur is filed, it must reverse the judgment.²² A party can also make a voluntary remittitur within 15 days after the court of appeals renders judgment by remitting "the amount that the party believes will cure the reversible error."²³ The court of appeals can accept the voluntary remittitur and affirm the modified judgment, reject it, or counter with a different amount.²⁴ In either scenario, the remitting party can reserve its rights to challenge the remittitur in the Supreme Court.²⁵

13-2:2.1b Supreme Court of Texas

The Supreme Court's disposition of appeals is addressed in Rule 60. The Supreme Court has the same six basic options as the courts of appeals, except that its decision operates on the "lower court's judgment," meaning that it can act on either the trial court's or appellate court's judgment and it can also remand to either the trial court or the court of appeals for further proceedings consistent with its opinion.²⁶ The Supreme Court can also reverse and remand to the trial court "in the interest of the justice . . . even if rendition of judgment is otherwise appropriate."²⁷ It uses this authority, for example, when announcing a new rule of law that would be unfair to impose on the parties before it who had not had the benefit of its pronouncement during their proceedings in the courts below.²⁸

13-2:2.2 Inconsistencies Between the Opinion and Judgment

The operative language is contained in the court's judgment. As a result, if there is an inconsistency between the two documents, the judgment controls.²⁹

It is imperative that you check the court of appeals' judgment immediately to determine whether it is consistent with the opinion, whether the costs are inappropriately taxed, or whether the parties or sureties are omitted. If any of these issues are present, you should raise the arguments in a timely motion for rehearing.

13-2:2.3 Costs of Appeal

Generally, recoverable costs are fees and charges the law requires parties to pay to the courts, the amount of which is fixed by statute or court rule,³⁰ unless they are indigent.³¹ Appellate costs are typically the filing fees in the court of appeals and the costs of preparing the record.³² In Texas, an appealing party cannot recover its premiums for obtaining a supersedeas bond as appellate costs, even if successful on appeal.³³

Except for cases involving exempt government entities, the judgment in a civil appeal should contain an order for the prevailing party to pay the costs of appeal.³⁴ However, the appellate court has authority to tax costs differently if "required by law or for good cause."³⁵ Situations where the "prevailing" party only succeeded on a small part of the appeal or engaged in conduct that was inappropriate can warrant taxing costs against it.

In cases involving supersedeas bonds, if the court of appeals affirms the judgment against the appellant or modifies it and renders judgment against the appellant, it must also render judgment against the surety or sureties on the bond "for the performance of the judgment and for any costs taxed against the appellant."³⁶

If costs were inappropriately taxed or the judgment erroneously omitted the sureties, those arguments must be raised in a timely motion for rehearing.

13-2:2.4 Damages for Frivolous Appeals

The appellate courts may also impose penalties by way of awarding...