Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P54 doc

Perfection Of Appeal And Jurisdiction TRAP 32.1[b], [c], [g], [j]: Date order or judgment signed: Date notice of appeal filed in trial court: Attach a signed copy, if possible Attach f

Appellate Docket Number: _

Appellate Case Style:

Tenth Court of Appeals P.O Box 1606, Waco, Texas 76703-1606

[to be filed in the court of appeals upon perfection of appeal

I Parties (TRAP 32.1(a), (e)):

(See note at bottom of page) (See note at bottom of page)

Attorney (lead appellate counsel): Attorney (lead appellate counsel, if known; if not, then

Address (lead counsel): Address (lead appellate counsel, if known; if not, then

If not represented by counsel, provide appellant's/appellee's address, telephone number, and telecopy number

On Attachment 1, or a separate attachment if needed, list the same information stated above for any additional parties to the trial

court's judgment

II Perfection Of Appeal And Jurisdiction (TRAP 32.1[b], [c], [g], [j]):

Date order or judgment signed: Date notice of appeal filed in trial court:

(Attach a signed copy, if possible) (Attach file-stamped copy; if mailed to the trial court clerk,

also give the date of mailing)

What type of judgment? (e.g., jury trial, bench trial, summary Interlocutory appeal of appealable order:

judgment, directed verdict, other [specify])

 Yes  No (Please specify statutory or other basis on which interlocutory order is appealable) (See TRAP 28)

If money judgment, what was the amount?

Accelerated appeal (See TRAP 28):

Actual damages:

 Yes  No

Punitive (or similar) damages:

(Please specify statutory or other basis on which appeal is

Attorneys' fees (trial):

Attorneys' fees (appellate):

[continued]

Other (specify):

Appeal that receives precedence, preference, or priority under statute or rule?

 Yes  No (Please specify statutory or other basis for such status)

Appeal from final judgment? Yes  No  Will you challenge this Court's jurisdiction? If yes, explain Does judgment dispose of all parties and issues:

Yes  No  Does judgment have a Mother Hubbard clause?

(E.g.: "All relief not expressly granted is denied"):

Yes  No  Does judgment have language that one or more parties

"take nothing"?

Yes  No  Other basis for finality?

III Actions Extending Time To Perfect Appeal (TRAP 32.1[d]):

Request for Findings of Fact and Conclusions of Law No Yes

IV Indigency Of Party (TRAP 32.1[k]): (Attach file-stamped copy of affidavit)

Date ruling on contest due:

Ruling on contest:

Sustained Overruled

V Bankruptcy (TRAP 8):

Will the appeal be stayed by bankruptcy? Date bankruptcy filed?

Name of bankruptcy court: Bankruptcy Case No.:

Style of bankruptcy case:

VI Trial Court And Record (TRAP 32.1[c], [h], [i]):

Trial Judge (who tried or disposed of case): Court Clerk (district clerk):

(Note: No request required

Yes

(See TRAP 28.3)

Court Reporter or Court Recorder: Court Reporter or Court Recorder:

[continued]

Address: Address:

(Attach additional sheet if necessary for additional court reporters/recorders) Length of trial (approximate): State arrangements made for payment of court

Reporter's or Recorder's Record None Will request Was requested on: (check if electronic recording )

VII Nature Of The Case (TRAP 32.1[f]) (Subject matter or type of case: E.g., personal injury, breach of contract, workers'

compensation, or temporary injunction) (see list below):

Landlord/Tenant _

VIII Supersedeas Bond None Will file Was filed on:

(TRAP 32.1[1]):

IX Extraordinary Relief: Will you request extraordinary relief (e.g., temporary or ancillary relief) from this Court? Yes  No 

If yes, briefly state the basis for your request

X Alternative Dispute Resolution/Mediation (if applicable) (As of MM/DD/YY, these programs exist in the 1st [Houston], 3rd [Austin],

4th [San Antonio], 5th [Dallas], 9th [Beaumont], 13th [Corpus Christi], and 14th [Houston]) (Use additional sheets, if necessary)

1 Should this appeal be referred to mediation? If not, why not

2 Has the case been through an ADR procedure in the trial court?

If yes, answer the following:

a Who was the mediator?

b What type of ADR procedure?

c At what stage did the case go through ADR? (Specify pre-trial, trial, post-trial, other)

d Rate the case for complexity Use 1 for the least complex and 5 for the most complex Circle one

1 2 3 4 5

e Can the parties agree on an appellate mediator? If yes, give name, address, and telephone and telecopy numbers (with area codes)

f Languages other than English in which the mediator should be proficient:

3 Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known

(without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary)

[continued]

CREATIVE RESOURCES.

REPRODUCED BY

PER-MISSION OF GALE, A

PART OF CENGAGE

LEARNING.

XI Related Matters: List any pending or past related appeals or original proceedings (e.g., mandamus, injunction, habeas corpus)

before this or any other Texas appellate court by court, docket number, and style

XII Any other information requested by the court (see attachments, if any)

XIII Signature:

Date:

Signature of counsel

(or pro se party) State Bar No.: _

Printed Name: _

XIV Certificate of Service: The undersigned counsel certifies that this docketing statement has been served on the following lead

counsel for all parties to the trial court's order or judgment as follows on , 20

Signature

(TRAP 9.5[e] requirements stated below; use additional sheets, if necessary)

Note: Certificate of Service Requirements (TRAP 9.5[e]): A certificate of service must be signed by the person who made the service

and must state:

(1) the date and manner of service;

(2) the name and address of each person served; and

(3) if the person served is a party's attorney, the name of the party represented by that attorney.

Examples of common legal doctrines include

the clean hands doctrine, the doctrine of FALSE

DEMONSTRATION, and the doctrine of merger

The MONROE DOCTRINE, enunciated by

Presi-dentJAMES MONROEon December 2, 1823, was an

American policy to consider any aggression by a

European country against any western

hemi-sphere country to be a hostile act toward the

United States

DOCTRINE OF EQUALITY OF STATES

One of the fundamental rights of a state is

equality with all other states This right is

inherent in the concept of a state as a subject of

INTERNATIONAL LAWand is given general

recogni-tion by long-standing state practice Precise

definition of the principle of equality of states is

difficult, however, since many factors affect its

application in any particular situation Thus, it

is best to differentiate between legal equality,

that is, the concept of state equality as it applies

to the legal relations that states maintain with

each other, and political equality, which reflects

the relative distribution of economic and

military power between states

In its legal effects the principle of state

equality has several important consequences

Probably the most important manifestation of

the doctrine is the right of every state to have

one vote in matters requiring the consent of

states A natural consequence of this is that the

vote of every state, no matter how large or small

the state, counts the same as the individual votes

of all other states Legal equality also means that

no state can claim jurisdiction over other states,

and asCOROLLARY, a state is independent of the

political will of all other states From this also

flows the concept ofSOVEREIGN IMMUNITY, which

prevents one state from being sued in the courts

of another state without the consent of the first

state Likewise, equality of states means that

no other state can question the legality of

official acts of another state, a rule known in

U.S law as the act of state doctrine

The DOCTRINE OF EQUALITY OF STATES means

one thing in legal effect, but it also must be

reflected against the realities imposed by

differ-ences in political power Political equality is in

states assent to informally, even though under

a strict legal regime, they would not be bound

by the agreement

The differences between legal and political equality are also recognized in the organization

of the UNITED NATIONS Although the Charter

of the United Nations expressly recognizes the sovereign equality of states, and the General Assembly formally operates according to that principle, the five permanent members of the Security Council retain express veto power over several important aspects of U.N func-tions, such as use of enforcement measures, admission to membership, amendments to the Charter, and election of the Secretary-General

Notwithstanding the fact that nations recognize limits on the principle of state equality in instances where political power is crucial, the principle of legal equality is basic to the operation of international law and a symbolic concept incorporated into the formal structure

of most international institutions

DOCUMENT

A written or printed instrument that conveys information

The term document generally refers to a particular writing or instrument that has a bearing upon specific transactions A deed, a marriage license, and a record of account are all con-sidered to be documents

When a document is signed and the signa-ture is authentic, the law accurately expresses the state of mind of the individual who signed

it A false document is one of which a material portion is purported to have been made or authorized by someone who did not do so It can also be a document that is falsely dated or which has allegedly been made by or on behalf

of someone who did not in fact exist

An ancient document is a writing presumed

by the court to be genuine due to its antiquity, because it has been produced from a reliable source where it would be logically found, and because it has been carefully kept

A private document is any instrument executed by a private citizen A public document

is one that is or should legally be readily available for inspection by the public, as a document issued

CROSS REFERENCE Ancient Writing.

DOCUMENT OF TITLE Any written instrument, such as a bill of lading,

a warehouse receipt, or an order for the delivery

of goods, that in the usual course of business or financing is considered sufficient proof that the person who possesses it is entitled to receive, hold, and dispose of the instrument and the goods that

it covers

A DOCUMENT OF TITLEis usually either issued

or addressed by a bailee—an individual who has custody of the goods of another—to a bailor—

the person who has entrusted the goods to him

or her Its terms must describe the goods covered

by it so that they are identifiable as well as set forth the conditions of the contractual agree-ment Possession of a document of title is symbolic of ownership of the goods that are described within it

Documents of title are an integral part of the business world since they facilitate commercial transactions by serving as security for loans sought by their possessors and by promoting the free flow of goods without unduly burden-ing the channels of commerce

A person who possesses a document of title can legally transfer ownership of the goods covered by it by delivering or endorsing it over

to another without physically moving the goods

In such a situation, a document of title is a

NEGOTIABLE INSTRUMENT because it transfers legal

are to be delivered to the bearer, the holder of the document, to the order of the named party,

or, where recognized in overseas trade, to a named person or his or her assigns TheUNIFORM COMMERCIAL CODE and various federal and state regulatory laws define the legal rights and obligations of the parties to a document of title

DOCUMENTARY EVIDENCE

A type of written proof that is offered at a trial to establish the existence or nonexistence of a fact that is in dispute

Letters, contracts, deeds, licenses, certifi-cates, tickets, or other writings areDOCUMENTARY EVIDENCE

Charles Doe was a prominent nineteenth-century jurist, serving as chief justice of the New Hampshire Supreme Court from 1876 until his death in 1896 Doe has been regarded

by legal historians as one of the greatest judges

in U.S history but he remains an obscure figure He is best remembered for his

procedur-al reforms, which sought to overcome burden-someCOMMON LAW practices that filled the legal landscape with many pitfalls

Doe was born in 1830 in Derry, New Hampshire He came from a wealthy and prominent family, and thus it was not surpris-ing that he would matriculate at Dartmouth College After graduating in 1849 he studied law

Charles Doe 1830–1896

1830 Born,

Derry, N.H.

1861–65

◆

1849 Graduated from Dartmouth College

1852 Admitted

to New Hampshire bar

1859 Appointed Associate Justice, New Hampshire Supreme Judicial Court

1874 New Hampshire Supreme Judicial Court dissolved

1876 Appointed Chief Justice, New Hampshire Supreme Court

1896 Died, Rollinsford, N H.

1894 Pullman Railroad

1865 Thirteenth 1877

1854 Kansas-Nebraska Act passed

lawyers“read the law” as Doe did, apprenticing

themselves until they were ready to take the

state bar exam Doe passed the New Hampshire

bar exam in 1852 and began a PRIVATE LAW

practice in Dover During the 1850s he also

served as the county solicitor and assistant clerk

to the New Hampshire State Senate

In 1859, at the age of 29, Doe was appointed

an associate justice to the New Hampshire

Supreme Judicial Court At this point in the

state’s history the Supreme Judicial Court

fun-ctioned as both a trial and appellate court Doe

spent much of his time riding circuit and

hearing cases Before the Civil War he left the

DEMOCRATIC PARTY over the party’s pro-slavery

position and joined the REPUBLICAN PARTY

This action temporarily hurt his judicial career

when the court was dissolved in 1874 by the

Democratic state legislature He spent two years

in private practice before the 1876 state

con-stitutional convention created a new Supreme

Court and a Republican administration named

him chief justice He would serve for the next

20 years in this capacity

Though personally eccentric (he dressed in

the clothes of a farmer instead of judicial garb

and insisted that the courtroom window be

removed during frigid winter weather), Doe

distinguished himself as a jurist He was

pri-marily concerned with simplifying and

codify-ing court procedures and the rules of evidence

He did not develop a judicial philosophy

but subscribed to New England Yankee

“pra-cticality.” Doe ignored court precedents, which

are the bedrock of the common law, to adopt

simplified procedures In addition, he was the

first judge to abandon the common law rule

that required a new criminal trial if any

prejudicial error was found Instead, Doe stated

that a new trial should be limited to only the

issues in which the error had occurred In the

realm of evidence rules, Doe dispensed with

many exclusionary rules and placed as much

information before the jury as possible He did

so out of respect for the wisdom of the jury

Doe died in 1896 in Rollinsford, New

Hampshire, having spent 35 years on the state’s

highest court

FURTHER READINGS

“Doe of New Hampshire: Reflections on a Nineteenth

query.nytimes.com/mem/archive-free/pdf?res=9E00 E2DF1638E033A2575BC1A9659C94679ED7CF; website home page: http://query.nytimes.com (accessed September

2, 2009).

Surdukowski, Jay 2008 “Not Your Average Doe: Notes on the Recently Discovered Library of Chief Justice Charles Doe.” New Hampshire Bar Journal (winter).

DOING BUSINESS

A qualification imposed in state long-arm statutes governing the service of process, the method by which a lawsuit is commenced, which requires nonresident corporations to engage in commercial transactions within state borders in order to be subject to the personal jurisdiction of state courts

The Due Process Clause of the U.S

Constitution, and similar provisions found in state constitutions, guarantees the fair and orderly administration of justice by the courts

by providing that any individual, including corporations, must receive notice of the charges against him or her or it and an opportunity

to present a defense prior to the rendition of judgment This clause has been interpreted by courts to require a state to have some tie or relationship to a defendant before its courts acquire the power to bind the individual per-sonally Employing this reasoning, state legis-latures enacted statutory provisions requiring nonresident or foreign corporations to do or transact business within the state if they are to

be amenable to the PERSONAL JURISDICTION of its courts.DOING BUSINESS is one kind of minimum contact that brings such a corporation within the jurisdiction of the court

The nature and extent of business to be done within a state varies according to the jurisdiction

It must be an exercise of some of the functions for which the enterprise is incorporated and

it must be of a sufficient nature to justify an inference that the corporation is present within the state If so, the corporation is viewed as having received some benefit of the laws of the state and, therefore, should also be liable for its actions therein In the past, there had to be a substantial tie to the state, such as the opera-tion of an office or the presence of a resident employee In the early 2000s, courts consider this requirement fulfilled by a single commer-cial transaction, if the cause of action—facts providing a right to a judicial remedy—arises from it If the CAUSE OF ACTION does not,