Transcript

Holly Draper: Hi, everyone, this is Holly Draper and today I wanted to hop on and do a solo episode for you to talk a little bit about appeals and to address some of the common mistakes that I see other attorneys making when it comes to preserving error and preparing a case for a possible appeal.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly: The first topic I wanted to dive into a little bit is the difference between an appeal and a mandamus. They are actually a little bit different. So if you don’t know, a mandamus is kind of an emergency appeal that occurs in the middle of a case. The timeline for a mandamus is much faster than an appeal. And it is quite a bit more complicated to do a mandamus. So in family law, we’re looking at doing a mandamus for a few different types of things. Temporary orders, if a plea to the jurisdiction was denied.

Say for example, we don’t think that a particular nonparent has standing, the judge has denied our plea to the jurisdiction, we’re going to file a mandamus. An appeal is going to be filed at the end of a case when we have a final appealable order. Whether that was after a trial, or because the court granted a motion to dismiss, or a motion for summary judgment. Or going back to the plea to the jurisdiction, if your client was dismissed, then you know, we’re looking at a final appealable order.

The next step or topic to dive into a little bit is the record. And the record is everything when we’re talking about either a mandamus or an appeal. It is vitally important because the only thing that the Court of Appeals can consider when they are reviewing your case is what is in the record. The record comes in two forms. One, it is the transcript or transcripts from the relevant hearings or trial that you are either mandamusing or appealing. And then we also have the clerk’s record or whatever is in the court file.

So if your information that you want the court of appeals to consider is not contained in one of those, the Court of Appeals does not get to hear it. You cannot add in new evidence in an appeal or mandamus, you cannot raise issues that were not already raised in the trial court as part of the record. So if it does not get in the record, your client is in trouble. On a mandamus, the record looks different than it does on an appeal. And that is because the attorney is creating the record. You do that in a couple of ways.

You have to obtain your own transcript or transcripts depending on how many hearings might be at issue for your particular case. And you have to create essentially a version of the clerk’s record. So all of the relevant pleadings and filings that have been filed with the clerk in the case, you are putting that into your own record for the Court of Appeals and doing an affidavit certifying that these are true and correct copies of documents that have been filed with the court. And getting that in front of the court that way.

So the clerk is not going to send anything for a mandamus. Nor is the court reporter. When we file our records in a mandamus those are part of the public record. And that means when we are particularly dealing with children, there’s going to be a lot of redacting that has to happen. This makes filing a mandamus very cumbersome and burdensome, especially if you have long transcripts or you have a voluminous case file. Because you’re gonna have to go through and redact the names, the birth dates, social security numbers, any identifying information that could lead someone out in the public to identify your client or the children is going to have to be redacted.

At the same time, you need to redact it in such a way that the Court of Appeals can know what you’re talking about. So oftentimes, you know, we had a child named Jane Doe, we might redact the a n e and the o e, and just have it be J D listed throughout so that the Court of Appeals can know we’re talking about this particular child here and not just a couple of black boxes. On an appeal, the record is a lot easier, because it is submitted to the court of appeals by the court reporter and by the clerk’s office.

So after you file a notice of appeal, you are going to file a written request to the court reporter and a written request to the district clerk requesting that these records be prepared. If you haven’t already paid for them. Sometimes with a transcript, you already have the transcript and you’ve already paid for it. So there might not be an additional fee, there’s definitely going to be fees with the clerk’s record. So you know, they will send you a bill or an estimate, and you have to pay for that in advance in order to have record prepared and submitted to the court of appeals. Because they are submitting those records to the Court of Appeals. You don’t have to as the attorney worry about any type of redaction or anything like that.

So one of the I would say probably the most important thing, when we are looking at a possible mandamus or an appeal, is did that trial attorney properly preserve the record? I see a very common mistake made by attorneys is to not put something on the record because the judge clearly doesn’t want you to go into it. Or the judge has already heard enough. The judge is annoyed with you. So you don’t want to keep objecting or something like that.

But if you do not get it on the record, you will lose in the court of appeals because the court of appeals cannot consider it. So you know, as an example, sometimes judges get annoyed and they don’t want you to keep objecting. You know, yes, counselor, you have objected to this repeatedly, I have overruled it every time. We don’t need to hear it anymore.

As an attorney, when you’re standing in the courtroom, and you hear that, you know, you may want to burst into tears. Or, you know, your gut instinct says I need to do what this judge is telling me to do, and I need to stop objecting. But you need to keep in the back of your mind, if I do that, is it going to harm my clients? Is my client going to be prevented from raising this issue in an appeal? You know, the judge might be really wrong. Judges are wrong a lot. They really are. And we wouldn’t have so many appellate cases out there if the judge is not right on time.

So, you know, I’ve had judges rule on things like hearsay objections that were just so blatantly wrong. And you know, this particular judge thinks that whatever it is, is hearsay, and they’re gonna keep it out over and over. But every single time you want to object if that is something that is important to your case. Because you know, let’s say that it’s something that a child has said it doesn’t meet any exceptions, but it is very damaging to your client. If you don’t object, guess what, you waived it, and the Court of Appeals is gonna say too bad, so sad.

We also run into issues with judges not even wanting to let you try to put on your evidence. And in that situation, if a judge denies you the opportunity to submit something in evidence, or really even bring it up, you want to ask to make an offer of proof. In an offer proof is essentially your opportunity to get it into the record that you have evidence of X, Y and Z. And this is what it looks like Court of Appeals, so that they know whether or not the trial court got it wrong.

If the trial judge says, objection sustained, you’re not putting in whatever it is you’re trying to put in. And you don’t put on an offer of proof. The Court of Appeals has no idea if the court got it wrong, has to presume the court got it right. And you’re going to lose. I have seen situations where the trial court doesn’t want to give you the opportunity to put on an offer of proof. And put up as much of a fight as you can. Object, object, object.

Tell the court that you object to the refusal to allow you to put on offer proof. That you need to put on this evidence so that in the event of an appeal or mandamus, the Court of Appeals knows what you are going to put on etcetera. So that it is at a minimum very clear in the record that you were trying to put on an offer proof and the court denied your request. It is error for a trial court to refuse to let you put on an offer of proof. Now, could the Court of Appeals find that to be harmless, yes. But it really depends how important that piece of evidence is to your case.

So what happens if you did not get a chance to put on an offer of proof, or you did not, for whatever reason get to put something important on the record. I’m gonna give you an example. I had a hearing last week on a complicated legal issue. And I went second, it was the other side’s motion. And I had all kinds of evidence that I thought was extremely important. And the judge had already made up his mind long before I ever got to put on any of that. And basically, he said, you have two minutes, and there was no opportunity for me to put on the vast majority of my evidence.

Incidentally, the reason he did that was because he was going to rule in my favor. I don’t like it, because in the event, the other side appeals, that evidence is not out there. Now, if I go the other way, and if he had ruled against me, but I had not been able to put on that evidence, I would file a motion to reconsider. And I would attach all of that evidence to it.

I would include affidavits from my client, I would do whatever I could to make sure the evidence I wanted the court to see was somewhere in the record. So at least I could, you know, maybe I can get a hearing on the motion to reconsider and put it on that evidence there. If the trial court won’t give it to me, then at a minimum, I can say to the Court of Appeals, look, I filed this motion to reconsider. I showed the trial court that I had all this other evidence, and they refused to let me put it on.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper law firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: Another issue that I see attorneys making mistakes on sometimes from an appellate perspective, is thinking that they do not need an evidentiary hearing on something. They’ll think you had an attorney recently who thought this is a legal issue, this judge is not going to want to hear from the parties, the judge isn’t gonna want any evidence. They’re just gonna want to have the attorneys kind of tell him what’s going on, and he’ll make a decision. And I said, absolutely not.

You have to put on evidence. This is a substantive legal issue. That is based on a lot of facts. So if you have facts that you would be relied upon, to prove your case, the fact that you put it into a motion, or a response to a motion is not evidence. The fact that you stand up as an attorney and argue it or tell the court, hey, my client did X, Y, and Z. And the law says this, so the court needs to do that. That’s no evidence in support of your claim. So, if you lose in a hearing where you did not put on any evidence, and it was based solely on attorney argument, you have zero chance of success on an appeal.

If the court is not inclined to let you put on evidence, I would ask for an offer of proof. If it’s denied, you know, certainly object to the fact that the court, object on the record to the fact that the court is denying you an evidentiary hearing. If you then lose whatever the issue is, then I would go back and file that motion to reconsider and incorporate all of the evidence that you wanted to put on in that hearing to show the court, hey, I have all this evidence. You don’t let me put it on. I need an opportunity to put this on.

The one exception to that, there may be more, but the only one I can think of is motion for summary judgment, where we don’t have evidentiary hearings. It’s just really based on the pleadings. And any attorney argument made is not evidence. Again, it’s just going to be based on the filings. So if you are thinking you have an issue that is ripe for mandamus or an appeal, deadlines can be very important.

With a mandamus there really aren’t any deadlines. But too much delay can be a reason that you lose on a mandamus and a reason that the court can decline to even consider the case at all. With an appeal, there are deadlines and the clock is going to start to tick when the final order is signed. The clock doesn’t start ticking with a rendition or with a judge’s memorandum. With the court saying in open court, this is what I’m going to rule. The final order being signed is when the clock starts to tick.

Now, some courts, I’m looking at you, Dallas, but I’m sure there are others, do not necessarily notify you if an order is signed. So it would be very wise to keep an eye on the docket of any case where you have an order pending out there. So that you know, when an order gets signed. Now, if you don’t know and deadline gets blown, there are ways of trying to get the deadline extended, because you didn’t know. But I would not want to have to rely on that. It is much better to rarely be checking the dockets. So that if that order get signed, you know.

The first deadline that comes up after there’s an appealable order is the deadline to file a request for findings of fact and conclusions of law. You have to do that within 20 days of when the order gets signed. And it’s a little counterintuitive to me that this is before a motion for a new trial. This is before a notice of appeal will be due. It’s the very first deadline out of the gates. And it’s very important to do this depending especially if you have complicated issues, if there are a lot of issues. You want to request findings of fact and conclusions of law if you have just lost.

Now, if the other side requests findings of fact and conclusions of law, you may want to request them too even if you’ve won, or you may want to request additional findings depending on what the court rules to try to help beef up your case on the appeal. If you want to file a motion for new trial that has to be filed within 30 days of when the order is signed. You don’t have to have a valid reason to file a motion for a new trial. Extending appellate deadlines by itself is considered a valid reason for a motion for new trial.

But if you filed a request for findings of fact and conclusions of law that also extends the deadlines. So it’s not always necessary. Sometimes we file a motion for a trial, if we are coming into the case after it’s over. And we want an opportunity to review the record and decide if an appeal is appropriate or not. This motion for a new trial will buy us some time before we actually have to file a notice of appeal.

Motion of trial is overruled by operation of law 75 days from the date the order signed. This very early in my career, I had this issue bite me, where we were trying to set a hearing on the motion for a new trial. It was my motion for new trial. I was trying to be nice and accommodating to opposing counsel, opposing counsel chose a date that was more than 75 days after the order was signed. At that time, I wasn’t aware of this rule. And so we showed up in court, I think it was about 80 days after the order had been signed and opposing counsel stands up and said no, it’s already overruled by operation of law. Case closed.

Now in that particular instance, plenary power does extend longer. So the trial court can choose to motion for a new trial on its own accord. But you do not want this mistake to happen to you and you will feel like a fool like I did way back when. Make sure you get your hearing set within 75 days of when that were resigned if you are really trying to get a new trial.

So, notice of appeal. If you do not request findings of fact and conclusions of law or a motion for new trial, you need to get a notice of appeal filed within 30 days of the order being signed. The motion for new trial or findings of fact conclusions of law extends that to 90 days. One other brief issue I wanted to mention if you are exploring an appeal is to pay attention to the rules regarding temporary orders pending appeal.

So if no request for findings of fact and conclusions of law or a motion pending trial has been filed, a request for temporary orders pending appeal is due within 30 days of when the order is signed. If a request for findings of fact or conclusions of law or motion for new trial was filed, then you have 90 days. You know, usually I don’t see a reason to file temporary orders pending appeal, especially if we’re talking about kid issues.

Because you know, the judge that just ruled against you in a final trial is probably not going to rule a different way about the schedule or something like that on a temporary order pending appeal. If we’re looking at property issues, there may be reasons to try to get a temporary order pending appeal. You may need a motion to stay execution of the judgment in the trial court. You definitely want to look at what those rules say, as far as timing and what’s required and what you can and cannot do.

When we’re talking about property issues, we want to make sure that we’re protecting whatever’s there to the best of our ability. Because what good does it do you to win an appeal 18 months from now, if, at the end of the day all the property is gone by then? So anyway, those are a few little tidbits about appeals and mandamuses. Here at the Draper Law Firm. We love to handle appeals and mandamuses.

So if you have any, and you need some help in those areas, please reach out to us. We would love to handle those for you. If you just have a question here or there, I’m also happy to answer those for you. Thank you, and oh, if you could take a minute and do me a really big favor and go into you know, Apple podcasts if that’s where you listen to your podcasts, and leave me a five star review, I would greatly appreciate it. If you use some other podcast service. I bet they have reviews too. So give us a review and keep on listening. See you next time.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com