Welcome to the August 11, 2008 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.
Click on these titles to view the contents:
1 - A Modern Approach to Appellate Advocacy
Leane Capps Medford shares her expertise using the latest technology to annotate transcripts, organize appellate records and effectively use e-briefs in trial and appellate courts (presented at the July 2008 luncheon).
2 - Case Summaries
A summary of selected recent opinions from the Texas Supreme Court and the First and Fourteenth Courts of Appeals by Amber Ramon, Fourteenth Court of Appeals (from the July 2008 luncheon).
3 - Tips from the Top - Tips from Appellate Practitioners
Lynne Liberato, Haynes & Boone, LLP shares her expertise concerning client communication.
4 - Current Practices of the First and Fourteenth Courts of Appeals
Beth Crawford on the practices of the First and Fourteenth Courts regarding citations to LEXIS and Westlaw.
5 - Houston Appellate Calendar
Calendar of appellate events from August through October 2008.
A Modern Approach to Appellate Advocacy
A modern approach to appellate advocacy: using the latest technology to annotate transcripts, organize appellate records and effectively use e-briefs in trial and appellate courts.
Leane Capps Medford ©
Leane Capps Medford ©
My trial and appellate practice focuses on complex civil cases.[1] As a result, the appellate records I work with often involve weeks of trial testimony and hundreds of exhibits. Many times, I only have time to read the entire record once. As a result, I had to develop a way to make sure I identified the critical testimony and exhibits in a manner that allowed me to integrate them into a brief without constantly referring back to the entire record or looking for an elusive sticky note.
In addition, because many of my trials and appeals are outside of Texas, I had to develop a system that allowed me to always have my entire record with me on my laptop. But having the electronic record with me was not enough. I had to be able to effectively use that information to write briefs and motions from a hotel room or sitting on a plane. The system I developed over a number of years relies on annotative software, electronic exhibits and summary charts. Eventually, I used it in all my cases, not just when I was traveling, because I found it was a superior method to memorialize my work product and was more efficient.
When I introduced to e-briefs the system, it became even more effective and efficient. I then started using e-briefs to assist the court and as an advocacy tool. One of the benefits of the system is that you can tailor it to the needs of each case. You can combine any of its elements to meet the size of the record and budgetary restraints.
Using Technology in the Trial Court
Use software to annotate key evidence during trial and persuade the court.
Using annotation and trial presentation software in the trial court provides a number of advantages to the appellate practitioner.[2] Before trial, I import copies of all the designated and pre-admitted exhibits and all the deposition transcripts, which have been synchronized with any video and linked to the deposition exhibits. I also arrange for a daily, real time trial transcript.
During the trial, whether as trial or appellate counsel, I import the daily copy of the trial transcript into my annotation software so that I can annotate key testimony and exhibits that support the elements of my client’s case. I create an issue builder for each claim and capture the testimony and exhibits that support the claim as the case unfolds.
Annotations made during trial are never going to be as extensive as the annotations made to the final trial transcript post trial. But taking the time during trial to build issue builders with key testimony and exhibits allows you to quickly access that evidence to support or respond to a motion for judgment as a matter of law and/or prepare for the charge conference.
It is much more powerful and persuasive to show the court during the hearing on a motion for judgment as a matter of law the exact testimony of CEO Smith than summarizing the testimony or asking the court to recall it. In a lengthy trial, Smith may have testified days or weeks before this critical hearing.
Similarly, it is much more persuasive to bring all the testimony and exhibits that establish a particular point together and show it to the court. The same summary can also be played to the jury at closing and serves as the basis for your next round of annotations to prepare or respond to post trial motions.
After trial, use linked transcripts to prepare and respond to post trial motions and to assist the trial court.
After trial, I use a linked trial transcript to prepare and respond to post trial motions. A linked trial transcript allows you to easily and effectively learn the trial record. Linked transcripts allow the user to see the exhibits associated with the testimony as it unfolds in the transcript. We learn better when we see exhibits with their associated testimony, just like the jury. A linked transcript can also assist the trial court by providing all the testimony and exhibits in a more usable format that allows the court to quickly access critical exhibits and testimony.
File e-briefs of your post trial motions to assist the trial court.
I am strong advocate of using e-briefs of post trial motions. Trial courts never have enough resources. Busy trial judges and their law clerks will welcome a post trial motion or brief that links to the trial transcript, the exhibits and the case law. Filing an e-brief also allows trial judges and their law clerks to review post trial motions when they are not in chambers. Providing this resource to the court may therefore expedite the court’s decision.
Using Technology in the Appellate Courts
Use software to annotate the trial transcript.
When I read a trial transcript my goal is to read the entire transcript once. I create issue builders that mirror the outline of my brief and the issues raised by the appeal.[3] The scope of the annotations is very broad because the testimony and exhibits that I capture and add to my issue builders can easily be deleted, copied, and moved. If I have a question, I mark it with an electronic “post it” note. At the end of the day or week, I can print all of my notes and follow up on them.
As I go through the entire transcript, I look at each linked exhibit. If the exhibit is important to the testimony I have captured and placed in an issue builder, I also capture the exhibit. At the same time, I can annotate the critical portions of the exhibit (blow up, highlight or add notes to a document) and take “snapshots” (screen captures) of the critical portions of the exhibit for the appeal. I save my “snapshots” with the original exhibit to remind me what was important about the exhibit. I also in many cases, however, the trial testimony does not always fully develop the importance of all the admitted exhibits. As a result, I take the review of exhibits a step further.
Electronically organize, analyze, and categorize your exhibits.
In a large document case, particularly a commercial dispute, the trial transcript does not always reflect all the facts, inferences, and other juicy items in the admitted exhibit. Often, there is additional information in the admitted exhibits that can be used to support your position on appeal, assuming they were admitted without limitation.
I have used two methods to extract all the necessary information from the exhibits and insure I use them effectively in the brief. One is to create a document database that includes all the exhibits with fields that can be filled in with specific information on each exhibit. The second is the creation of a Microsoft Word table or an Excel spreadsheet. Either way, I collect the following information regarding each admitted exhibit:
- The exhibit number;
- Title of the document;
- Whether there was an objection to its admission;
- Whether it was admitted for a limited purpose;
- Date of the document;
- Author of the document;
- List of “cc” and “bc” recipients of the document;
- Date it was admitted at trial and witness (es) it was used with;
- A section for my comments on how to use it in the brief.
Once the database, table or spreadsheet is done, I can sort it by date, exhibit number, author, recipient, etc. This information can be used in every aspect of your briefing. For example, as I write the statement of facts, I can sort and refer to the list in chronological order and make sure that every important document relevant to the time period I am discussing is used. As I continue to work on the brief, I check off the exhibits I decided to use as I integrate them into the brief.
This information can also supplement the trial testimony. For example, I can sort for every exhibit authored or received by a key trial witness to make sure all the exhibits associated with the witness are used, even if they were not admitted with that witness on direct or cross. This is a particularly useful tool in business tort cases when intent issues must be proven by circumstantial evidence.
Electronically organize and analyze the clerk’s record, then cull it down and scan the key documents.
Typically, the clerk’s record is littered with documents that were designated as a cautionary measure, but have no relevance to the appeal. As a result, I do not automatically import all the documents in the clerk’s record into the document database of my annotative software. I review the index; identify the key documents that I may actually refer to in the brief, such as the live pleadings, motions in limine, post-verdict motions and the judgment, and then import these documents. Having the critical portions of the clerk record in one place allows me to repeatedly refer to these documents while the larger paper version of the clerk’s record takes up filing space. Just like exhibits, documents from the clerk’s record can be annotated and saved as a screen capture.
If you are the appellee, hyper-link your opponent’s brief before you start writing and print a small, concise record.
If I am the appellee, I scan and hyperlink the appellant’s brief before I start writing. It allows me to quickly identify the testimony and exhibits the appellate is relying upon and links all the case citations to a copy of the case and the pinpoint citation in the brief.
I also print my issue builders and organize them in the order of my brief. I add the issue builders to a notebook with my analysis of the exhibits and start writing. My record is now a manageable size and can travel with me anywhere.
Provide the court with e-briefs.
E-briefs are very efficient and effective tools in appellate courts because they present the court with almost everything it needs to decide the appeal in one place with links to the cases cited by the parties.
I generally advocate providing the appellate court with copies of all the briefs in electronic form, not just your client’s brief. Although some clients may not want to pay to link an opponent’s brief, failing to provide the court with all of the briefs in electronic form is shortsighted for at least two reasons. First, the court may not appreciate having half of the case electronically available and having to turn to the paper record for the rest. Second, if you opponent’s brief takes liberties with the record by mischaracterizing testimony or the case law, linking you opponent’s brief can be a powerful advocacy tool. If the linked version of the opponent’s brief quickly reveals that its factual and legal statements are inaccurate, your opponent’s brief may make a first impression that is difficult to overcome.
Use technology to prepare for oral argument.
Your annotations software, case database, e-briefs, tables issue builders are also effective tools to prepare for oral argument. I take my case database and e-briefs with me to oral argument so that I can quickly pull up any trial exhibit, search for a key term in the trial testimony, or review a case citied by the opponent.
[1] Leane Capps Medford is a member of ELROD, PLLC a trial boutique specializing in complex civil litigation. Before joining ELROD, she was a partner for seven years at Rose Walker, LLP, where she was the head of the firm’s appellate and insurance litigation sections. Leane specializes in complex commercial, aviation and insurance litigation and appeals.
[2] I have always used Visionary, http://www.visonarylegal.com/. There are a number of other software options available, but since I am not as familiar with them, this paper assumes that any other software has the same capabilities.
[3] Another advantage of using annotative software and issue builders is that if you can send them to other attorneys outside your firm who have the same software. For example, an attorney in Houston can create the issue builder on exemplary damages and send it to his co-counsel in Dallas.
June 2008 Cases Impacting Houston Appellate Lawyers
Presented July 17, 2008 at the HBA Appellate Section Luncheon
by Amber Ramon, Fourteenth Court of Appeals
by Amber Ramon, Fourteenth Court of Appeals
Editors Jennifer Kingaard, Baker Botts, L.L.P.
Opinions Issued June 19, 2008 – July 17, 2008
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Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (June 27, 2008) (Justice Medina)
Significance: This case clarifies that the Free Exercise Clause of the First Amendment extends protection from suit not only for negligence, but also for intentional torts when considering the plaintiff’s emotional damages would require a court to delve into the validity of certain religious practices.
Holding: Because the Plaintiff’s intentional tort claims were so closely intertwined with the church’s religious practice and beliefs, assessing emotional damages against the church for engaging in such religious practices would unconstitutionally burden the church’s right to free exercise and embroil the Court in an assessment of the propriety of those religious beliefs.
Relevant facts: Seventeen-year-old Laura Schubert collapsed twice while worshiping at Pleasant Glade Assembly of God church. Several church members then “laid hands” on Schubert and prayed in an attempt to exorcize demons. According to Schubert, she was forcibly held down—despite demands to be freed—resulting in minor physical injuries and emotional trauma. She ultimately sued the church for intentional torts and a host of negligence claims. The jury awarded Schubert a total of $300,000 in damages for assault, battery, and false imprisonment. On appeal, the church argued Plaintiff’s intentional tort damages were barred under the First Amendment. The Fort Worth Court of Appeals disagreed, holding the church was judicially estopped from asserting a First Amendment defense because, in a prior mandamus proceeding, the church only asserted Plaintiff’s negligence-based claims were protected. The supreme court reversed and dismissed for lack of jurisdiction. First, the court held that the church was not judicially estopped from asserting the First Amendment. The court then explained that assessing emotional damages against the church for performing religious practices infused in its belief system would require the court to delve into an assessment of the propriety of the church’s religious beliefs. Plaintiff thus failed to establish a cognizable, secular claim because determining the circumstances of her emotional injuries would draw the court into forbidden religious terrain. Chief Justice Jefferson dissented, joined by Justice Green and Justice Johnson in part. Justice Jefferson opined that it was unnecessary to evaluate the validity of the church’s religious beliefs, or even inquire into the assailants’ motives, to hold the church liable for its intentional torts on these facts.
Significance: This case clarifies that the Free Exercise Clause of the First Amendment extends protection from suit not only for negligence, but also for intentional torts when considering the plaintiff’s emotional damages would require a court to delve into the validity of certain religious practices.
Holding: Because the Plaintiff’s intentional tort claims were so closely intertwined with the church’s religious practice and beliefs, assessing emotional damages against the church for engaging in such religious practices would unconstitutionally burden the church’s right to free exercise and embroil the Court in an assessment of the propriety of those religious beliefs.
Relevant facts: Seventeen-year-old Laura Schubert collapsed twice while worshiping at Pleasant Glade Assembly of God church. Several church members then “laid hands” on Schubert and prayed in an attempt to exorcize demons. According to Schubert, she was forcibly held down—despite demands to be freed—resulting in minor physical injuries and emotional trauma. She ultimately sued the church for intentional torts and a host of negligence claims. The jury awarded Schubert a total of $300,000 in damages for assault, battery, and false imprisonment. On appeal, the church argued Plaintiff’s intentional tort damages were barred under the First Amendment. The Fort Worth Court of Appeals disagreed, holding the church was judicially estopped from asserting a First Amendment defense because, in a prior mandamus proceeding, the church only asserted Plaintiff’s negligence-based claims were protected. The supreme court reversed and dismissed for lack of jurisdiction. First, the court held that the church was not judicially estopped from asserting the First Amendment. The court then explained that assessing emotional damages against the church for performing religious practices infused in its belief system would require the court to delve into an assessment of the propriety of the church’s religious beliefs. Plaintiff thus failed to establish a cognizable, secular claim because determining the circumstances of her emotional injuries would draw the court into forbidden religious terrain. Chief Justice Jefferson dissented, joined by Justice Green and Justice Johnson in part. Justice Jefferson opined that it was unnecessary to evaluate the validity of the church’s religious beliefs, or even inquire into the assailants’ motives, to hold the church liable for its intentional torts on these facts.
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JCW Electronics, Inc. v. Garza, No. 05 1042 (June 27, 2008) (Justice Medina)
Significance: This case clarifies that claims for breach of implied warranty under Article 2 of the Texas Uniform Commercial Code qualify as causes of action based on tort subject to Chapter 33 of the Texas Civil Practice and Remedies Code.
Holding: Chapter 33’s proportionate-liability scheme barred damages for breach of implied warranty allegedly resulting in an inmate’s suicide when the jury found the inmate 60% negligent in causing his own death.
Relevant facts: Inmate Rolando Domingo Montez hanged himself with a telephone cord, which JCW Electronics, Inc. had installed in his cell. A jury found JCW liable for breach of implied warranty, among other things, but attributed 60% of the liability to Montez. The trial court rendered judgment for Plaintiff, thus overruling JCW’s argument that the jury’s 60% finding of fault barred Plaintiff’s recovery under Chapter 33. The Corpus Christi Court of Appeals held that Chapter 33 did not apply to a claim for breach of implied warranty, thus allowing Plaintiff to recover. The Texas Supreme Court, however, reversed and rendered that Plaintiff take nothing. The Court noted that “the Legislature intended for Chapter 33 to . . . cover [breaches of implied warranty] under its broad pronouncement that ‘this chapter applies to any cause of action based on tort’” because “‘[i]mplied warranties are created by operation of law and are grounded more in tort than in contract.’”
Significance: This case clarifies that claims for breach of implied warranty under Article 2 of the Texas Uniform Commercial Code qualify as causes of action based on tort subject to Chapter 33 of the Texas Civil Practice and Remedies Code.
Holding: Chapter 33’s proportionate-liability scheme barred damages for breach of implied warranty allegedly resulting in an inmate’s suicide when the jury found the inmate 60% negligent in causing his own death.
Relevant facts: Inmate Rolando Domingo Montez hanged himself with a telephone cord, which JCW Electronics, Inc. had installed in his cell. A jury found JCW liable for breach of implied warranty, among other things, but attributed 60% of the liability to Montez. The trial court rendered judgment for Plaintiff, thus overruling JCW’s argument that the jury’s 60% finding of fault barred Plaintiff’s recovery under Chapter 33. The Corpus Christi Court of Appeals held that Chapter 33 did not apply to a claim for breach of implied warranty, thus allowing Plaintiff to recover. The Texas Supreme Court, however, reversed and rendered that Plaintiff take nothing. The Court noted that “the Legislature intended for Chapter 33 to . . . cover [breaches of implied warranty] under its broad pronouncement that ‘this chapter applies to any cause of action based on tort’” because “‘[i]mplied warranties are created by operation of law and are grounded more in tort than in contract.’”
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Goldberg v. The Commission for Lawyer Discipline & The State Bar of Texas, No. 01-07-01104-CV (MJuly 3, 2008) (Justice Taft)
Significance: This case clarifies that—regardless of how a plaintiff couches a claim—trial courts do not have the authority to usurp the supreme court’s exclusive authority to regulate law licenses and the procedures for licensure, discipline, disbarment and reinstatement.
Holding: The trial court lacked subject-matter jurisdiction over disbarred lawyer’s suit requesting the trial court to restore his law license.
Relevant facts: In 2001, Daniel Goldberg, a licensed lawyer in Texas, pleaded guilty to the felony offense of aggregate theft, was placed on community supervision for three years, and was disbarred. In 2004, he successfully completed his community supervision, so the trial court issued an order withdrawing Goldberg’s guilty plea and dismissing the charge. In 2007, Goldberg filed a declaratory judgment action to immediately restore his law license since the criminal conviction on which disbarment was based was rendered a legal nullity by the trial court’s order. The trial court granted the Commission’s plea to the jurisdiction. On appeal, Plaintiff argued he was automatically entitled to a restoration of his law license rather than having to wait the required five years before seeking reinstatement of his license. The First District Court of Appeals disagreed, holding that when a litigant seeks in a lower court a remedy that would impinge upon the supreme court’s exclusive authority to regulate the practice of law, the case does not present a justiciable controversy.
Significance: This case clarifies that—regardless of how a plaintiff couches a claim—trial courts do not have the authority to usurp the supreme court’s exclusive authority to regulate law licenses and the procedures for licensure, discipline, disbarment and reinstatement.
Holding: The trial court lacked subject-matter jurisdiction over disbarred lawyer’s suit requesting the trial court to restore his law license.
Relevant facts: In 2001, Daniel Goldberg, a licensed lawyer in Texas, pleaded guilty to the felony offense of aggregate theft, was placed on community supervision for three years, and was disbarred. In 2004, he successfully completed his community supervision, so the trial court issued an order withdrawing Goldberg’s guilty plea and dismissing the charge. In 2007, Goldberg filed a declaratory judgment action to immediately restore his law license since the criminal conviction on which disbarment was based was rendered a legal nullity by the trial court’s order. The trial court granted the Commission’s plea to the jurisdiction. On appeal, Plaintiff argued he was automatically entitled to a restoration of his law license rather than having to wait the required five years before seeking reinstatement of his license. The First District Court of Appeals disagreed, holding that when a litigant seeks in a lower court a remedy that would impinge upon the supreme court’s exclusive authority to regulate the practice of law, the case does not present a justiciable controversy.
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University of Houston v. Barth, No. 01 06 00490 CV (July 3, 2008) (Justice Higley)
Significance: This case applies the rule that a claim under the Texas Whistleblower Act is jurisdictionally barred when an employee does not timely initiate the grievance procedures after discovery of the alleged violation through reasonable diligence.
Holding: The trial court did not have subject-matter jurisdiction over a portion of Plaintiff’s claims based on the Whistleblower Act.
Relevant facts: Professor Stephen Barth filed two grievances with the University of Houston’s grievance committee for retaliation and later sued the University. A jury found that the University violated the Whistleblower Act. On appeal, the University alleged that the trial court lacked subject-matter jurisdiction because Barth failed to initiate timely the internal grievance procedures. The First Court of Appeals determined that Plaintiff failed to initiate timely the internal grievance procedures for one grievance, but not the other. The court thus remanded for a new trial on Plaintiff’s claims that were not jurisdictionally barred. The majority also reviewed for legal sufficiency, determining that the University failed to challenge one of Plaintiffs’ grounds for recovery, and that legally sufficient evidence to support the jury’s causation finding. Justice Alcala dissented, arguing the evidence was legally insufficient.
Significance: This case applies the rule that a claim under the Texas Whistleblower Act is jurisdictionally barred when an employee does not timely initiate the grievance procedures after discovery of the alleged violation through reasonable diligence.
Holding: The trial court did not have subject-matter jurisdiction over a portion of Plaintiff’s claims based on the Whistleblower Act.
Relevant facts: Professor Stephen Barth filed two grievances with the University of Houston’s grievance committee for retaliation and later sued the University. A jury found that the University violated the Whistleblower Act. On appeal, the University alleged that the trial court lacked subject-matter jurisdiction because Barth failed to initiate timely the internal grievance procedures. The First Court of Appeals determined that Plaintiff failed to initiate timely the internal grievance procedures for one grievance, but not the other. The court thus remanded for a new trial on Plaintiff’s claims that were not jurisdictionally barred. The majority also reviewed for legal sufficiency, determining that the University failed to challenge one of Plaintiffs’ grounds for recovery, and that legally sufficient evidence to support the jury’s causation finding. Justice Alcala dissented, arguing the evidence was legally insufficient.
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Texas Department of Public Safety v. Varme, No. 01-06-00874-CV (June 19, 2008) (Chief Justice Radack)
Significance: This case clarifies that the administrative suspension of a driver’s license for refusing to submit to a breathalyzer test during a traffic stop is not impacted by the later dismissal of a DWI charge.
Holding: Dismissal of driving while intoxicated charge does not require civil reinstatement of driving privileges suspended under chapter 724 of the Transportation Code.
Relevant facts: A Houston police officer arrested Byron Varme for driving while intoxicated. Varme refused to submit to a breath test at the scene, which triggered a suspension of his driver’s license for 180 days. After receiving a dismissal on the DWI charge, Varme moved to dismiss the administrative proceeding arguing the dismissal of his underlying criminal cause barred any determination of probable cause by the administrative law judge. The county court vacated the ALJ’s order and reinstated Varme’s license. The First Court of Appeals reversed the county court’s decision holding, according to chapter 724 of the Transportation Code, Varme failed to establish he was “acquitted” in a proceeding in which jeopardy attached.
Significance: This case clarifies that the administrative suspension of a driver’s license for refusing to submit to a breathalyzer test during a traffic stop is not impacted by the later dismissal of a DWI charge.
Holding: Dismissal of driving while intoxicated charge does not require civil reinstatement of driving privileges suspended under chapter 724 of the Transportation Code.
Relevant facts: A Houston police officer arrested Byron Varme for driving while intoxicated. Varme refused to submit to a breath test at the scene, which triggered a suspension of his driver’s license for 180 days. After receiving a dismissal on the DWI charge, Varme moved to dismiss the administrative proceeding arguing the dismissal of his underlying criminal cause barred any determination of probable cause by the administrative law judge. The county court vacated the ALJ’s order and reinstated Varme’s license. The First Court of Appeals reversed the county court’s decision holding, according to chapter 724 of the Transportation Code, Varme failed to establish he was “acquitted” in a proceeding in which jeopardy attached.
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Trousdale v. Henry, No. 14 06 00848 CV, 2008 WL 2520799 (Tex. App.—Houston [14th Dist.] June 24, 2008) (Justice Fowler)
Significance: This case clarifies that the non-fracturing rule (providing that legal malpractice plaintiffs may not opportunistically transform a malpractice claim into other claims) does not apply when a plaintiff alleges facts that go beyond the mere negligence allegations in a malpractice action to support another cause of action, here, breach of fiduciary duty.
Holding: Plaintiff’s allegations supported a cause of action for breach of fiduciary duty separate and independent from a claim for legal malpractice.
Relevant facts: Lenieta Trousdale hired Bell & Henry L.P. to represent her in two lawsuits that were later dismissed for want of prosecution. In December 2005, she sued for legal malpractice and breach of fiduciary duty. The trial court granted the law firm’s motion for summary judgment, holding that these claims were time-barred by the two-year limitations period for legal malpractice. The Fourteenth Court of Appeals held that although Plaintiff’s malpractice claim was time-barred, she had alleged facts sufficient to establish a breach of fiduciary duty claim separate and independent from her malpractice claim and the four-year statute of limitations for breach of fiduciary duty applied to this claim, rendering it timely. Specifically, Trousdale alleged facts beyond the mere negligence allegations in a malpractice action: that her attorneys (1) knew and failed to disclose that her cases had been dismissed, (2) continued to bill and collect fees from her, and (3) refused to return her file for the purpose of concealing that the cases had been dismissed. Justice Guzman dissented, arguing that the facts pleaded in support of Plaintiff’s breach of fiduciary duty claim were the same as those asserted in her legal malpractice claim and the same as those relied on in Plaintiff’s attempt to toll limitations on her malpractice claim.
Significance: This case clarifies that the non-fracturing rule (providing that legal malpractice plaintiffs may not opportunistically transform a malpractice claim into other claims) does not apply when a plaintiff alleges facts that go beyond the mere negligence allegations in a malpractice action to support another cause of action, here, breach of fiduciary duty.
Holding: Plaintiff’s allegations supported a cause of action for breach of fiduciary duty separate and independent from a claim for legal malpractice.
Relevant facts: Lenieta Trousdale hired Bell & Henry L.P. to represent her in two lawsuits that were later dismissed for want of prosecution. In December 2005, she sued for legal malpractice and breach of fiduciary duty. The trial court granted the law firm’s motion for summary judgment, holding that these claims were time-barred by the two-year limitations period for legal malpractice. The Fourteenth Court of Appeals held that although Plaintiff’s malpractice claim was time-barred, she had alleged facts sufficient to establish a breach of fiduciary duty claim separate and independent from her malpractice claim and the four-year statute of limitations for breach of fiduciary duty applied to this claim, rendering it timely. Specifically, Trousdale alleged facts beyond the mere negligence allegations in a malpractice action: that her attorneys (1) knew and failed to disclose that her cases had been dismissed, (2) continued to bill and collect fees from her, and (3) refused to return her file for the purpose of concealing that the cases had been dismissed. Justice Guzman dissented, arguing that the facts pleaded in support of Plaintiff’s breach of fiduciary duty claim were the same as those asserted in her legal malpractice claim and the same as those relied on in Plaintiff’s attempt to toll limitations on her malpractice claim.
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Green v. Alford, No. 14-05-00407-CV (July 15, 2008) (Justice Guzman) (en banc)
Significance: This case holds, as an issue of first impression, that—for purposes of determining whether the damages caps for public servants covered by at least $100,000 in insurance apply—a defendant is not considered “covered” by $100,000 in insurance if the relevant insurance policy requires the defendant to individually pay the first $100,000 in damages.
Holding: Defendant failed to conclusively establish he acted in good faith. The evidence was legally and factually sufficient to support the challenged findings regarding recklessness. And Defendant failed to establish his liability was capped at $100,000 under section 108.002 of the Texas Civil Practice and Remedies Code.
Relevant facts: Christopher Green, a volunteer firefighter, collided his fire truck with the Alfords’ truck. Following a nonjury trial, the trial court entered judgment against Green. On appeal to the Fourteenth Court of Appeals, Defendant argued he was entitled to official immunity and that there was legally and factually insufficient evidence of recklessness and causation. The majority held since official immunity was an affirmative defense, Defendant bore the burden at trial to prove this element. The majority concluded the evidence was sufficient that no reasonable fire truck operator could have believed the need justified the risks Defendant chose to take; therefore, he failed to conclusively establish his good faith. In addition, the majority held the evidence was legally and factually sufficient to support the trial court’s four specific factual findings that Green acted recklessly. In the alternative, Green argued because he was an assured under an insurance policy issued to the City of Pasadena, section 108.002 of the Texas Civil Practice and Remedies Code capped his liability at $100,000 as a matter of law. However, under the City’s insurance policy the assured was required to pay the self-insured retention before the policy indemnified the assured. Ultimately, the court determined Green failed to established he was “covered” as those terms are used in section 108.002. Senior Justice Hudson, sitting by assignment, dissented arguing Green was entitled to official immunity as a matter of law unless Plaintiffs offered some evidence that no reasonable person in Defendant’s position could have thought the facts justified Defendant’s conduct. According to Senior Justice Hudson, under the circumstances presented here, the Alfords did not offer any evidence to rebut Green’s prima facie official immunity defense.
Significance: This case holds, as an issue of first impression, that—for purposes of determining whether the damages caps for public servants covered by at least $100,000 in insurance apply—a defendant is not considered “covered” by $100,000 in insurance if the relevant insurance policy requires the defendant to individually pay the first $100,000 in damages.
Holding: Defendant failed to conclusively establish he acted in good faith. The evidence was legally and factually sufficient to support the challenged findings regarding recklessness. And Defendant failed to establish his liability was capped at $100,000 under section 108.002 of the Texas Civil Practice and Remedies Code.
Relevant facts: Christopher Green, a volunteer firefighter, collided his fire truck with the Alfords’ truck. Following a nonjury trial, the trial court entered judgment against Green. On appeal to the Fourteenth Court of Appeals, Defendant argued he was entitled to official immunity and that there was legally and factually insufficient evidence of recklessness and causation. The majority held since official immunity was an affirmative defense, Defendant bore the burden at trial to prove this element. The majority concluded the evidence was sufficient that no reasonable fire truck operator could have believed the need justified the risks Defendant chose to take; therefore, he failed to conclusively establish his good faith. In addition, the majority held the evidence was legally and factually sufficient to support the trial court’s four specific factual findings that Green acted recklessly. In the alternative, Green argued because he was an assured under an insurance policy issued to the City of Pasadena, section 108.002 of the Texas Civil Practice and Remedies Code capped his liability at $100,000 as a matter of law. However, under the City’s insurance policy the assured was required to pay the self-insured retention before the policy indemnified the assured. Ultimately, the court determined Green failed to established he was “covered” as those terms are used in section 108.002. Senior Justice Hudson, sitting by assignment, dissented arguing Green was entitled to official immunity as a matter of law unless Plaintiffs offered some evidence that no reasonable person in Defendant’s position could have thought the facts justified Defendant’s conduct. According to Senior Justice Hudson, under the circumstances presented here, the Alfords did not offer any evidence to rebut Green’s prima facie official immunity defense.
Tips from the Top
August 2008 Tip from an Appellate Practitioner
"If your client calls you to ask the status of her appeal, you are guilty of a failure to communicate. Keeping clients informed, even when nothing is happening in their appeals, is essential to client service. So, for example, during the wait for submission or the issuance of an opinion, regularly send e-mails to your clients, even if only to say that the court has not yet taken action. In letting them know that nothing is happening, you are letting them know you care."-- Lynne Liberato, Partner Haynes & Boone, LLP
Board Certified in Civil Appellate Law
Current Practices of the First and Fourteenth Courts of Appeals
Editor Beth Crawford, Fulbright & Jaworski L.L.P.
Topic 2. Do the Courts use both Westlaw and Lexis?
Do the Courts prefer citations to one over the other in briefing submitted to the Courts?
Do the Courts prefer citations to one over the other in briefing submitted to the Courts?
The First Court of Appeals
The Court has both Lexis and Westlaw; online citations to either are appropriate.
The Fourteenth Court of Appeals
Citations to either Westlaw or Lexis are acceptable.
Next month’s topic: Staffing Structure – Staff and Briefing Attorneys
This regularly-appearing column will answer your questions about current practices in the internal operating procedures at the First and Fourteenth Courts of Appeals. Please submit your questions that would benefit the entire Section.
In most cases, this column will address one question per month. The responses from the Courts relate to their “current” practices. Both Courts continually make changes to address new concerns and experiment with new procedures to improve the operations of the Courts and increase effectiveness and efficiency. The Courts may decline to answer those questions that implicate the confidentiality of the Courts’ inner workings.
This column would not be possible without the willingness of the Courts to participate and answer questions. My very special ongoing thanks to the Chief Staff Attorneys from the First and the Fourteenth, Janet Williams and Nina Indelicato, and to both Courts generally.
Houston Appellate Calendar
August 2008 through October 2008.
August 21:
HBA Appellate Practice Luncheon
Judge Thomas Reavley (Fifth Circuit) on Posner's How Judges Think
Place: Coronado Club, 919 Milam Street, 5th Floor
Time: 11:30 a.m. to 1:00 p.m.
Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins
CLE Credit: 1.0 hr. participatory credit
RSVP Deadline: Tuesday, August 19, 2008 by NOON
Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000 (Please note the new RSVP contact)
Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.
September 1:
Labor Day
The following courts will be closed:
· Texas Supreme Court
· Fifth Circuit
· First Court of Appeals – the late filing box will not be available
· Fourteenth Court of Appeals – the late filing box will not be available
September 3:
Civil Appellate Practice Boot Camp
By The State Bar of Texas
Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas
Time: 8:30 a.m. to 4:50 p.m.
Cost: $175
CLE Credit: 6 hours participatory credit
For more information: http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=EV&lID=7801 or call 1-800-204-2222 x1574
September 4 & 5:
Advanced Civil Appellate Practice Course
By The State Bar of Texas
Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas
Time: 8:30 a.m. to 5:00 p.m. (Thursday); 8:30 a.m. to 3:35 (Friday)
Cost: $545
CLE Credit: 12.25 hours participatory credit (including 3 hours ethics)
For more information: http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=EV&lID=7801 or call 1-800-204-2222 x1574
September 18:
HBA Appellate Practice Luncheon
Prof. Henry J. Abraham (University of Virginia) constitutional scholar to speak on the US Supreme Court. (Tentatively scheduled)
Place: Coronado Club, 919 Milam Street, 5th Floor
Time: 11:30 a.m. to 1:00 p.m.
Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins
CLE Credit: 1.0 hr. participatory credit
RSVP Deadline: Tuesday, September 16, 2008 by NOON
Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000 (Please note the new RSVP contact)
Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.
October 13:
Columbus Day
The following courts will have limited staff on duty:
· Fifth Circuit
October 16:
HBA Appellate Practice Luncheon
Speaker to be announced
Place: Coronado Club, 919 Milam Street, 5th Floor
Time: 11:30 a.m. to 1:00 p.m.
Cost: $25 members; $30 non-members with RSVP and section walk-ins; $35 non-member walk-ins
CLE Credit: 1.0 hr. participatory credit
RSVP Deadline: Tuesday, September 16, 2008 by NOON
Contact: scampbell@rustyhardin.com or call Shannon Campbell at 713-652-9000
Additional Information: If you would like a vegetarian or fruit plate, please note this request when making your RSVP and kindly inform your waiter at the luncheon that you requested a vegetarian entrée/fruit plate.
To have your event added to the Appellate Lawyer calendar, contact us at submissions@hbaappellatelawyer.org. The Appellate Lawyer accepts calendar submissions for appellate court events, HBA Appellate Section events, appellate CLEs, and other events relevant to the appellate community in Houston and surrounding areas.
This calendar is maintained by the HBA Appellate Lawyer and may contain errors. Please contact the relevant party to verify the information provided is correct. If you notice an error, please call it to our attention by contacting us at submissions@hbaappellatelawyer.org.
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