by Angela Spoede, Staff Attorney at the First Court of Appeals
In comparison to trial-level litigation, which involves multiple deadlines for discovery and filings, the whims of opposing counsel, and the constraints of the trial court’s time and resources, appellate practice is more sedate. There are fewer documents changing hands, there are fewer filings to juggle, and true emergencies are relatively rare.
That is not to say that such emergencies never arise. They are particularly common when dealing with interlocutory appeals and petitions for writs of mandamus or other original proceedings. When the need arises to obtain emergency or temporary relief from the appellate court, special considerations and requirements come into play.
Best Practices for Movants Seeking Emergency Relief
First, the motion for emergency relief must be associated with an appeal or petition for mandamus. See, e.g., Tex. R. App. P. 29.3 (court may make temporary orders “[w]hen an appeal from an interlocutory order is perfected”); id. R. 52.10 (temporary relief with petition for writ of mandamus). For example, a party seeking relief from a non-appealable interlocutory trial court order cannot file its emergency motion before it files the petition for writ of mandamus. Rather, the moving party must file any motions for temporary or emergency relief with its petition for writ of mandamus or the notice of appeal.
Second, emergency or temporary relief on appeal is available to protect the status quo pending resolution of issues on appeal or in a mandamus. Rule 29.3 provides that “the appellate court can make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal[.]” Similarly, Rule 52.10 provides in the mandamus context that “[t]he relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition,” and “[t]he court—on motion of any party or on its own initiative—may without notice grant any just relief pending the court’s action on the petition.” Appellate courts are most likely to grant emergency relief that is tailored as narrowly as possible to address the impending harm. Courts also consider factors such as the danger of irreparable harm, the degree of prejudice or harm to the non-movant resisting party, and the movant’s probable right to relief on the merits.
While appellate courts have fairly broad authority for granting temporary relief, successful motions have several common characteristics. They are typically short. Motions for emergency temporary relief should include only the information necessary for the court to rule on the narrow issue of emergency relief. They use every detail of the motion, from the title to the prayer, to focus attention on the impending harm and relief sought. Ideally, the first sentence or two that the court reads should identify the impending harm, explain why that event would cause irreparable harm, state the precise nature of the relief sought, and provide the deadline for action by the appellate court. If these key facts are not immediately obvious, it can cause delay and difficulty in obtaining the necessary relief.
Successful motions for temporary relief are also timely. A movant should file the motion as soon as practical. Waiting until the night before a trial setting or other deadline that has been in place for six months undermines the movant’s claim that the situation is an emergency. To paraphrase the old adage, “Lack of planning on your part does not constitute an emergency on the court’s part.” If the last-minute timing could not be avoided, the movant should explain its best efforts to be diligent. The Rules do not require that attorneys include proposed orders when filing motions in the appellate court, but it never hurts for parties to include in the motion’s body or prayer the actual language they would like the order on the motion to contain.
Helpful movants for emergency relief notify the clerk of the court in advance of filing their motion when possible. This is especially true for motions filed late on a Friday afternoon or in the face of an immediately pressing deadline.
Finally, movants should not skip the step of conferring with opposing counsel. It is required by the Rules. See, e.g., Tex. R. App. P. 10.1(a)(5) (requiring a certificate of conference for most civil motions) and R. 52.10(a) (“The relator must notify or make a diligent effort to all parties by expedited means . . . that a motion for temporary relief has been or will be filed and must certify to the court that relator has complied with this paragraph before emergency relief will be granted.”). Just as importantly, it can help expedite the entire filing process and ensure that the court has the information it needs from both sides to rule in a timely manner. When seeking emergency relief, it is also particularly important that service of documents is as expeditious as possible. Attempts to obfuscate or withhold important information from the court or other parties is sanctionable conduct. See id. R. 52.11.
Best Practices for Respondents to Motions for Emergency Relief
Respondents must first weigh the potential value of a response against the costs involved. A response might be most helpful in situations where there is not a genuine emergency or when the movant has omitted material facts. Respondents might also want to respond with a request that the court order a bond in connection with the granting of relief, see Tex. R. App. P. 52.10, or with a request that the court implement some alternative for of security, see id. R. 29.3. If the court requests a response, it is typically in the client’s best interest to provide one.
Time is of the essence in filing a response to an emergency motion. Emergency motions are exempted from the general rule that the court must wait ten days to rule on motions. See Tex. R. App. P. 10.3 (providing that court should not hear or determine a motion until ten days after motion is filed except in certain limited circumstances, including when motion requests emergency relief). Although a single judge can rule on motions for emergency relief, courts sometimes prefer to have a panel of judges consider a motion, particularly if it could have a significant impact on the ultimate resolution of the merits of the mandamus or appeal. See id. R. 10.4(a). The sooner the judges have access to the response, the more impact it will have on the deliberations. Accordingly, the responding party should file its response as quickly as practical, and, when possible, should communicate its intent to respond to the court.
Just as with motions for emergency relief, effective responses are short, direct, and clearly state the reasons that emergency relief should not be granted. The response should correct any confusion regarding the nature of the impending harm to the movant and the deadline for the appellate court’s action. It should also clearly state the ways in which the respondent will be prejudiced by the proposed relief. If some form of bond or security is sought, the nature of that relief should be expressly stated.
Responding parties can also make use of a motion to reconsider temporary or emergency relief, particularly when the respondent missed the opportunity to respond in the first instance, if new circumstances arise that materially affect the relief granted, or if the court grants relief sua sponte. See id. R. 52.10(b).
Finally, resisting the motion for temporary or emergency relief may not always be the best course. If there is clearly error in the underlying order, or if there is no prejudice to the client, consider agreeing to temporary relief or a stay.
Motions for emergency or temporary relief are a small, but important, aspect of appellate practice. By following the requirements set out in the Rules of Appellate Procedure and keeping in mind the best practices for obtaining and resisting relief, attorneys provide the best advocacy possible for their clients by being helpful to the appellate court.