September 24 Edition

Welcome to the September 24, 2009 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.


Click on these titles to view the contents:

1 - Appellate Advocacy: The Proper Use of “English”: an instructional introduction to the game of pool using the cue ball referred to as “English” by Roger D. Townsend, Alexander Dubose & Townsend LLP.

2 - Case Summaries: a summary of selected recent opinions from the Texas Supreme Court and the First and Fourteenth Courts of Appeals (from the August 2009 luncheon). Prepared and presented by Amy Hefley, Baker Botts, L.L.P., edited by Jennifer Kingaard.

3 - Calendar of Appellate Events: prepared by Derek D. Bauman, Franklin, Cardwell & Jones, P.C.

Appellate Advocacy: The Proper Use of "English"

WARNING!!

INTENDED FOR MATURE AUDIENCES ONLY;

Not Intended for
Readers under 40
Who read on-screen
Only in an “F” pattern.

READER DISCRETION ADVISED!

Appellate Advocacy: The Proper Use of “English”

by Roger D. Townsend

You probably think this article is about writing. Wrong. You should know me better than that. It’s about pool, specifically how to control the spin on the cue ball referred to as “English” (though the French probably call it “French”).

Unless you have the rare straight-in shot that will win the game, so that you have no need to play position for another shot, you’ll need to apply some “English” to your shot. This means that you strike the ball slightly off center to influence its trajectory. But you don’t need to apply much spin. The greatest player who ever lived, fifteen-time world champion Willie Mosconi, observed that 99% of all shots in pool can be made by using no more than a cue-tip’s width of “English.” Willie Mosconi, Willie Mosconi on Pocket Billiards 40 (1948); see generally Willie Mosconi, Winning Pocket Billiards 66 (1965).

Since we’re not standing together over a pool table, maybe it will be easier to describe what I mean if I analogize to writing a brief. Suppose the facts are that one vehicle ran a red light, striking another vehicle in an intersection and severely injuring one driver. If you have the dead-on shot that will win the case, then that’s probably all you would need to say. But suppose you represented the injured party. To be sure of winning the case, you would need to show the other driver was at fault. And to uphold your client’s large recovery, you’d want to make the injuries look as bad as possible. You could add “English” to the facts by a slight spin. In doing so, you might report that “a Hummer plowed through the intersection, striking a Volkswagen Beetle, and rendering the Beetle’s occupant, a teenage girl, a paraplegic.”

Of course, too much spin on the ball, more than a cue-tip’s worth, runs the risk of
a miscue. While a master pool player might be able to get away with that to pull off a massé trick shot, most players will fail miserably. Returning to my analogy, you would not want to assert paraplegia, if the only injury was whiplash. That’s simply too much spin and will result in a miscue. A miscue can give your opponent the chance to run the table and win the game.

As another example, suppose you represented the defendant in the above example.
Your cue-tip’s width of spin might be that “two vehicles collided in an intersection and one of the drivers was injured.” That’s accurate and spins it slightly to control where the ball will wind up. But too much spin would be something like “the defendant’s vehicle was damaged when it was struck in the front by the driver’s side door of a speeding vehicle; not surprisingly, the plaintiff driver was also injured.”

Another example could be a breach-of-contract case. Bob and Carol own a diner. Ted and Alice supply the tofu on a monthly basis. Because of a Teamsters’ meeting at the diner, Bob and Carol run out of tofu earlier than usual. They ask Ted and Alice for a special delivery and offer to double the usual price. Ted and Alice deliver, but Bob and Carol won’t pay the higher price. It’s lawsuit time.

By racing to the courthouse, Ted and Alice win the lag to get the first shot. But in
case they miss, they will want to leave Bob and Carol in a poor position. So, Ted and Alice use some “English” by asserting that they “worked on a weekend, canceling a trip to South Beach with their young children, five-year-old Paris and eight-year-old London, to fulfill the extraordinary demands of Bob and Carol. Based on the promise of a double price, they told their children that they would make it up to them next year by visiting Mickey Mouse in Florida.”

As you can see, that spin leaves Bob and Carol on the defensive. When they get to
the table, assuming there’s been no game-winner shot like summary judgment on a sworn account, Bob and Carol may need to execute a trick shot. They may be tempted to use a massé shot, which puts extreme spin on the ball by elevating the cue dramatically. When it works, it’s a show-stopper; however, the massé shot requires tremendous expertise and often a special cue. The risk of a miscue, or even of damaging the cloth of the table, is very high.

Bob and Carol decide to go for it. They assert that the tofu supplied by Ted and
Alice was defective and made the Teamsters sick. In fact, the tofu was so bad that the Teamsters have canceled their monthly meeting at Bob and Carol’s diner and are now frequenting Maurice and Evan’s bistro. Thus, Bob and Carol file a counterclaim for lost profits against Ted and Alice. As long as some Teamsters will testify for Bob and Carol, perhaps with medical and accounting records to document the allegation, the massé shot may work. Otherwise, it may be too much spin.

Less risky might be a cue-tip’s width of “English.” For instance, they could spin
the ball by asserting that there never was a promise of twice the price, only the suggestion that they would consider increasing their future demand by adding tofu to their daily lunch menu. As a result, there was no contract for a double price. This relegates Ted and Alice to a claim in quantum meruit for the extra tofu delivered. Because it leaves Ted and Alice in a tough position, that is probably a safer shot for Bob and Carol.

To be a top player, however, you also must master “reverse English.” This is a
special spin that causes the cue ball to rebound in the opposite direction, depending on how hard you strike it. It’s a very necessary skill for top-flight position play. For those of you who are not pool players but merely appellate lawyers, think about a case in which an appellate court has just reversed a huge damages award, but affirmed an apparently small part of the case involving indemnity — though that’s the only part of the case that the appellee really cares about. Applying “reverse English,” the appellee might petition first to the supreme court, so that the focus would be on the damages issue, rather than the one the appellee is most worried about. The other side, as cross-petitioner, may have a hard time refocusing the court, since the “reverse English” has taken the case in an unexpected direction and made the second-player’s subsequent shot look like an afterthought or even just safety play.

I’m sure you’re starting to get the picture. It takes a lot of practice to perfect the proper use of “English.” Aside from aim, force (known in the trade as “touch”) also is important. Don’t overdo it; in fact, don’t use it unless you need it. But when spin is necessary, don’t shy away from using a little.

That’s all my advice for today. I’ll see you at Slick Willie’s later tonight; be sure
to bring your wallet — I play only for cash.

July 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

August 20, 2009

SELECTED CASE SUMMARIES

July 16, 2009 – August 20, 2009


Presented by:

Amy Hefley

Baker Botts L.L.P.

amy.hefley@bakerbotts.com


FOURTEENTH COURT OF APPEALS

Larsen v. Santa Fe Independent School District, No. 14-07-01038-CV (July 28, 2009) (Justice Boyce).

Significance: Exhausting administrative remedies is not a jurisdictional prerequisite to a claim for retaliatory discharge under § 451.001 of the Texas Labor Code, which prohibits employers from terminating or discriminating against employees who file workers’ compensation claims.

Holding: The trial court properly exercised subject matter jurisdiction over the § 451.001 retaliatory discharge claim of a school district police officer who did not exhaust his administrative remedies before bringing suit.

Facts: Erik Larsen worked on an at-will basis as a police officer for the Santa Fe Independent School District (the “District”). After suffering an on-the-job injury, Larsen took a leave of absence and began receiving workers’ compensation benefits. When Larsen was unable to return to work after exhausting all leave available under the District’s Leave and Absence Policy, the District terminated his employment. Although the District had an administrative grievance procedure for its at-will employees, Larsen did not invoke it. Instead, he filed suit, asserting that the District terminated his employment in retaliation for his filing of a workers’ compensation claim, in violation of § 451.001 of the Texas Labor Code. The District filed a verified plea to the jurisdiction asserting that Larsen failed to exhaust his administrative remedies, which the trial court denied. The District subsequently filed a traditional motion for summary judgment challenging the merits of Larsen’s § 451.001 claim on several grounds, which the trial court granted. On appeal, the District reasserted its jurisdictional challenge. After noting that the Texas Supreme Court had expressly left open the question of whether a terminated school district employee must exhaust administrative remedies before pursuing a retaliatory discharge suit under § 451.001 in Van Independent School District v. McCarty, 165 S.W.3d 351 (Tex. 2005), the court of appeals held that § 451.001 itself did not establish an exhaustion requirement. The court further determined that nothing in the Education Code required an at-will employee to exhaust administrative remedies before filing a retaliatory discharge claim under § 451.001. Because no law established an exhaustion requirement on the particular facts of the case, the court concluded that the trial court properly exercised subject matter jurisdiction over Larsen’s claims. The court ultimately held that summary judgment was proper because Larsen failed to establish that the District’s Leave and Absence Policy was enforced differently with respect to a similarly situated employee.



Rosemond v. Al-Lahiq, No. 14-08-00550-CV (August 4, 2009) (Justice Frost).

Significance: The trial court has authority to determine the date on which a plaintiff’s medical expert report was received by the defendant and must dismiss a plaintiff’s healthcare-liability claims upon determining that his or her medical-expert report was untimely.

Holding: The trial court did not abuse its discretion in dismissing the plaintiff’s healthcare-liability claims when the evidence was conflicting as to whether plaintiff’s counsel faxed the medical expert report before it was due.

Facts: Ulysses Rosemond filed healthcare-liability claims against a hospital and physician Maha Khalifa Al-Lahiq. Dr. Al-Lahiq moved to dismiss Rosemond’s claims, asserting that Rosemond failed to serve a medical expert report within 120 days of filing his claims as required by section 74.351 of the Texas Civil Practice and Remedies Code. Rosemond’s trial counsel responded with an affidavit in which she swore that she faxed a medical expert report two days before the expiration of the 120-day deadline and received a transmittal reflecting that the report was delivered “o.k.” to the fax number for Dr. Al-Lahiq’s attorney. Applying Texas Rule of Civil Procedure 21a, the court of appeals determined that the affidavit of plaintiff’s counsel gave rise to a rebuttable presumption that service was effected. Dr. Al-Lahiq rebutted that presumption, however, with an affidavit from his attorney’s information technology administrator, who swore that he reviewed the firm’s electronic logging system, received fax log, and incoming electronic faxes and found no record of a fax from plaintiff’s counsel. The court of appeals held that, in light of this conflicting evidence, the trial court had the authority to determine the date on which the report was received. By granting Dr. Al-Lahiq’s motion, the trial court impliedly found that the expert report was not faxed on time. Accordingly, the trial court was required to dismiss the plaintiff’s claims.



FIRST COURT OF APPEALS

Cassidy v. TeamHealth, Inc., No. 01-08-00324-CV (July 23, 2009) (Justice Jennings).

Significance: Physicians and physicians’ associations may not use the Declaratory Judgment Act to create a quasi cause of action to enforce the Medical Practices Act, which does not itself create a private cause of action.

Holding: Neither physicians nor physicians’ associations had standing to challenge a contract between a hospital and a corporation to provide hospital staffing and management services that allegedly constituted the unlawful corporate practice of medicine in violation of the Medical Practices Act.

Relevant Facts: Doctors Crystal Cassidy and Richard Ybarra, who both practice emergency medicine in Memorial Hermann Healthcare System hospitals (“Memorial”), and two emergency medicine physicians’ associations—The American Academy of Emergency Medicine (“AAEM”) and The Texas Academy of Emergency Medicine (“TAEM”)—filed a declaratory judgment action against Memorial, TeamHealth, Inc. (“TeamHealth”), and ACS Primary Care Physicians Southwest, P.A. (“ACS”), among others. Plaintiffs alleged that Defendants had engaged in the unlawful corporate practice of medicine in violation of the Medical Practices Act and sought a declaration that three contracts were void: (1) a contract between TeamHealth and Memorial that allowed TeamHealth to provide emergency room staffing and management services at Memorial’s hospitals; (2) a proposed contract between Cassidy and ACS, an entity that Plaintiffs alleged was merely a shell professional association used by TeamHealth to disguise the for-profit nature of its business; and (3) an executed contract between Ybarra and ACS. The trial court granted Defendants’ pleas to the jurisdiction, which challenged Plaintiffs’ standing. The court of appeals affirmed, holding that (1) Cassidy and Ybarra lacked standing to seek a declaration with respect to the Memorial-TeamHealth contract because they were not parties to it; (2) AAEM and TAEM lacked associational standing to seek a declaration with respect to the Memorial-TeamHealth contract because none of their members were parties to it; (3) Cassidy lacked standing to seek a declaration with respect to the proposed Cassidy-ACS contract because that contract never came into being; and (4) the Ybarra-ACS contract did not confer standing on Plaintiffs to obtain a declaration that Defendants’ conduct violated the Medical Practices Act, which does not itself create a private cause of action.

Houston Appellate Calendar

September 2009 through November 2009


September 7:

Labor Day

The following clerk’s offices will be closed:

  • Texas Supreme Court
  • Fifth Circuit
  • First Court of Appeals
  • Fourteenth Court of Appeals


September 9:

Nuts and Bolts of Appellate Practice

By the State Bar of Texas

Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas

Time: 8:30 a.m. to 4:45 p.m.

Cost: $195

CLE Credit: 6 hours participatory credit

Additional Information: http://www.texasbarcle.com/materials/Programs/1905/Brochure.pdf or call 1-800-204-2222 x2212.


September 10--11:

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 3:15 (Friday)

Cost: $645

CLE Credit: 12 hours participatory credit (including 2 hours ethics)

Additional Information: http://www.texasbarcle.com/materials/Programs/1905/Brochure.pdf or call 1-800-204-2222 x2212.


September 17:

HBA Appellate Practice Luncheon

Marcy Greer: Appellate Pro Bono for the 1st and 14th Courts of Appeals

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 15, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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 12:

Columbus Day

The following clerk’s offices will operate with a skeleton crew:

  • Fifth Circuit


October 15:

HBA Appellate Practice Luncheon

Roundtable Discussions on the 2009 Judicial Survey

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, October 13, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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.


November 19:

HBA Appellate Practice Luncheon

TBA

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, November 17, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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.


November 26:

Thanksgiving Day

The following clerk’s offices will be closed:

  • Texas Supreme Court
  • Fifth Circuit
  • First Court of Appeals
  • Fourteenth Court of Appeals


November 27:

Day after Thanksgiving

The following clerk’s offices will be closed:

  • Texas Supreme Court
  • First Court of Appeals
  • Fourteenth Court of Appeals

The following clerk’s offices will operate with a skeleton crew:

  • Fifth Circuit

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.

August 11 Edition

Welcome to the August 11, 2009 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.


Click on these titles to view the contents:

1 - Houston Urban Debate League: an invitation to learn about becoming a volunteer mentor to inner city highschool debate teams by Kevin Dubose, Alexander Dubose & Townsend LLP.

2 - Case Summaries: a summary of selected recent opinions from the Texas Supreme Court and the First and Fourteenth Courts of Appeals (from the July 2009 luncheon). Prepared and presented by Jenny Kingaard, Baker Botts, L.L.P., edited by Leif Olson, Welsh & Chapoton, LLP.

3 - Calendar of Appellate Events: prepared by Derek D. Bauman, Franklin, Cardwell & Jones, P.C.

Houston Urban Debate League Presents Opportunity to Help

by Kevin Dubose, Alexander Dubose & Townsend LLP

The Houston Urban Debate League (HUDL) is a non-profit organization working with HISD to restore competitive cross-examination policy debate to inner city Houston High Schools (where it once thrived, but until last year had almost completely disappeared). Because this type of debate is similar to appellate oral advocacy, and because many appellate lawyers got their start as high school debaters, appellate lawyers are natural sources of support for this important initiative.

To learn more about HUDL, go to www.houstonurbandebateleague.org.

To volunteer to serve as a mentor for 3 hours/month, e-mail margaret.telegen@gmail.com.

To contribute financial support go to http://houstonurbandebateleague.org/PDFs/HUDLContributionForm.pdf.

To talk to someone involved in the organization, contact Kevin Dubose at kdubose@adtappellate.com.

Please consider making a small donation of your time and/or money that can make a huge difference in the lives of children who need help.

June 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

July 16, 2009

SELECTED CASE SUMMARIES

June 18, 2009 - July 16, 2009


Presented by:

Jenny Kingaard

Baker Botts L.L.P.

jennifer.kingaard@bakerbotts.com

SUPREME COURT OF TEXAS

In re Columbia Med. Ctr. of Las Colinas, No. 06-0416 (July 3, 2009) (Johnson, J.) (O’Neill, J., dissenting)

Significance: Protecting the right to jury trial is an exceptional circumstance that justifies mandamus relief whenever either a trial court or an appellate court sets aside a jury verdict without specifically setting forth its reasons for doing so.

Holding: A trial court must specify its reasons for setting aside a jury verdict “in the interest of justice, and the Court directed the trial court to do so. It refused to direct the trial court to set aside its order and enter judgment on the verdict. Justice O’Neill, joined by Chief Justice Jefferson and Justices Medina and Green, dissented, arguing that the Court should not overturn its own precedent that a trial court has discretion to order a new trial “in the interests of justice and fairness” because (1) this will cause appellate intervention and delay and (2) statutory or procedural rules—not the Court—should determine the standards for when a trial court may grant a new trial.

Facts: A jury unanimously ruled against Creech’s claims against Columbia for her husband’s death. On Creech’s motion, the trial court granted a new trial “in the interests of justice and fairness[.]”Columbia petitioned the Supreme Court for a writ of mandamus, arguing that the trial court abused its discretion by granting the partial new trial, not specifying its grounds for doing so other than “in the interests of justice and fairness,” and not entering judgment on the verdict.


In re Morgan Stanley & Co., No. 07-0665 (July 3, 2009) (Medina, J.) (Brister and Willett, JJ., concurring) (Hecht, J., dissenting).

Significance: A party’s capacity to enter into an arbitration agreement is a gateway matter concerning the existence of an agreement that must be decided by the court, not an arbitrator.

Holding: Formation-of-contract issues—such as whether a party to a contract had the mental capacity to enter a contract—must be determined by the court. On a federal question of first impression, the Supreme Court held that the trial court did not abuse its discretion in declining to send the issue capacity to the arbitrator. Justice Brister concurred, but argued that the guardian could not sue Morgan Stanley under the agreements and simultaneously dispute Helen’s capacity to assent to arbitration. Justice Willett concurred, but found the majority’s exhaustive review of case law on the point unnecessary, as the Federal Arbitration Act clearly and decisively settles the issue. Justice Hecht dissented, arguing that since mental incapacity precludes the enforcement—but not the formation—of a contract, the issue is severable and should be decided by an arbitrator.

Facts: Taylor had transferred several securities accounts to Morgan Stanley under agreements that each contained an arbitration clause. She had also signed a durable power of attorney in favor of her granddaughter and a trust agreement naming that granddaughter as trustee. A Dallas probate court appointed a different guardian, who sued the granddaughter and Morgan Stanley for fiduciary breaches and theft. When Morgan Stanley moved to compel arbitration, the guardian asserted that Taylor had lacked the requisite mental capacity to consent to the arbitration agreements.


FIRST COURT OF APPEALS

Fogal v. Stature Construction, Inc., No. 01-07-00456-CV (June 18, 2009) (Alcala, J.).

Significance: A nonsignatory to an arbitration agreement may compel arbitration when the nonsignatory is bound to the contract under principles of contract law and agency.

Holding: A nonsignatory homebuilder was entitled to compel arbitration because it was doing business as the entity named in the contract, notwithstanding the fact that it had not filed an assumed name certificate. Under Business & Commerce Code § 36.25, failure to register an assumed name does not impair the validity of a contract, including a contract requiring arbitration.

Facts: The Fogals bought a house from Tremont Homes by entering into an earnest money contract that contained an arbitration agreement. After they moved into the house, they asked Stature, the homebuilder, to repair the house’s defective roof. Stature declined, and the leak eventually caused mold to grow in the home. The Fogals sued, arguing that Stature could not enforce an arbitration agreement to which it was not a party. Stature furnished evidence that it did business under the name “Tremont Custom Homes,” that “Tremont Homes” was a typographical error, and that it—Stature—was the party that actually sold the house to the Fogals. The judge compelled arbitration. On Stature’s motion, the trial court confirmed an arbitration award for the Fogals, who reurged their objections to the arbitration.


FOURTEENTH COURT OF APPEALS

Lowe’s Home Centers, Inc. v. GSW Marketing, Inc., No. 14-07-00953-CV (June 30, 2009) (Guzman, J.).

Significance: Parties that build or maintain a display to which an object is attached have a duty to ensure safe attachment, but they do not have a duty to ensure correct assembly of the object when they have no control over or knowledge of faulty assembly of the object.

Holding: Neither the company that built the display on which a toilet originally had been mounted nor the company that maintained the display from which the toilet tank fell had a duty to discover that the toilet itself was incorrectly assembled. The court held that the display builder neither controlled the unidentified assembler of the toilet nor created a dangerous condition by mounting the toilet at an angle. Additionally, the court held that although the maintainer was responsible for ensuring safe installation of the toilet and safe maintenance of the display, it did not have a duty to inspect the toilet for correct assembly.

Facts: An improperly assembled toilet tank separated from an overhead display and hit Tanner, a Lowe’s employee, who sued Snow Mountain Construction, Salesmakers (now called GSW), and others. Lowe’s had hired Snow Mountain to construct the display, and Salesmakers was responsible for maintaining the display. The trial court entered summary judgment for the defendants on Tanner’s negligent activity and premises liability claims.

Houston Appellate Calendar

August 2009 through October 2009

August 20:

HBA Appellate Practice Luncheon

Justice Bill Boyce, "Iron Chef: Appellate Addition - Learn what the World's Top Chefs can teach you about brief-writing and advocacy"

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 18, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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.

Please note: the contact to reserve a place at the appellate luncheon has changed to Christy Martin.


September 7:

Labor Day

The following clerk’s offices will be closed:

  • Texas Supreme Court
  • Fifth Circuit
  • First Court of Appeals
  • Fourteenth Court of Appeals


September 9:

Nuts and Bolts of Appellate Practice

By the State Bar of Texas

Place: Four Seasons Hotel, 98 San Jacinto Blvd., Austin, Texas

Time: 8:30 a.m. to 4:45 p.m.

Cost: $195

CLE Credit: 6 hours participatory credit

Additional Information: http://www.texasbarcle.com/materials/Programs/1905/Brochure.pdf or call 1-800-204-2222 x2212.


September 10--11:

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 3:15 (Friday)

Cost: $645

CLE Credit: 12 hours participatory credit (including 2 hours ethics)

Additional Information: http://www.texasbarcle.com/materials/Programs/1905/Brochure.pdf or call 1-800-204-2222 x2212.


September 17:

HBA Appellate Practice Luncheon

Marcy Greer: Appellate Pro Bono for the 1st and 14th Courts of Appeals

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 15, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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 12:

Columbus Day

The following clerk’s offices will operate with a skeleton crew:

  • Fifth Circuit


October 15:

HBA Appellate Practice Luncheon

TBA

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, October 13, 2009 by NOON. Please note that, if you RSVP and do not attend, you will be billed for the cost of the lunch. RSVP’s are transferable.

Contact: Christy Martin dcmartin@shb.com or call 713-227-8008

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.

July 14 Edition

Welcome to the July 14, 2009 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.


Click on these titles to view the contents:

1 - Case Summaries: a summary of selected recent opinions from the Texas Supreme Court and the First and Fourteenth Courts of Appeals (from the May 2009 luncheon). Prepared and presented by J. Shannon Gatlin, Briefing Attorney for the Texas Fourteenth Court of Appeals, edited by Jennifer Kingaard and Karlene Poll, Baker Botts, L.L.P.

2- Calendar of Appellate Events: prepared by Derek D. Bauman, Franklin, Cardwell & Jones, P.C.

May 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

June 18, 2009


SELECTED CASE SUMMARIES

May 22, 2009 – June 18, 2009


Presented by:

J. Shannon Gatlin

Briefing Attorney to the Hon. William J. Boyce

Texas Fourteenth Court of Appeals

shannon.gatlin@14thcoa.courts.state.tx.us


SUPREME COURT OF TEXAS

Harrell v. State, No. 07-0806 (June 5, 2009) (Willett, J.).

Significance: Proceedings under Texas Government Code section 501.014(e) to recover court fees and costs assessed against inmates are civil in nature and not part of the underlying criminal case; abrogating Gross v. State, 279 S.W.3d 791 (Tex. App.—Amarillo 2007, no pet.), and Zink v. State, 244 S.W.3d 508 (Tex. App.—Waco 2007, no pet.).

Holding: Where the issue presented involves a trial court’s ability to seize an inmate’s funds post-judgment pursuant to a civil statute, withdrawal orders issued under that statute are more substantively civil than criminal.

Relevant Facts: Harrell pled guilty to drug charges in 1997 and 2003. In 2006, the convicting trial court issued orders pursuant to Texas Government Code section 501.014(e), directing $748 be withdrawn from his inmate trust account to pay court costs and appointed-counsel fees. Harrell moved to rescind these orders on due process grounds, which the trial court denied. The Amarillo Court of Appeals dismissed Harrell’s appeal for want of jurisdiction, citing its earlier decision in Gross that no statutory mechanism to appeal such orders existed. The supreme court granted review to resolve a split of opinion between the Waco and Amarillo Courts of Appeals—which deemed section 501.014(e) orders to be criminal in nature—and the San Antonio and Texarkana Courts of Appeals—which deemed such orders to be civil in nature. The supreme court concluding that section 501.014(e) orders are indeed civil in nature. After holding that section 501.014(e) orders are civil post-judgment collections, akin to garnishment actions or actions to obtain a turnover order, the court held a prisoner is afforded due process when given notice and an opportunity to be heard after funds are withdrawn. Because Harrell was afforded sufficient due process, the court affirmed the trial court’s orders


Ditta v. Conte, No. 07-1026 (June 5, 2009) (Willett, J.).

Significance: A court has discretion to remove a trustee at any time.

Holding: The statute of limitations period applicable to suits seeking damages for breach of fiduciary duty does not apply to suits seeking removal of a trustee rather than recovery of damages.

Relevant Facts: Following her husband’s death in 1993, Doris Conte and her children, Susan and Joseph, served as cotrustees of a family trust. After two years, Susan and Doris discovered that Joseph was not administering the trust in accordance with its terms. Subsequently, Doris was declared mentally incapacitated and removed as cotrustee. Attorney Louis Ditta was named guardian of Doris’s estate. An accounting revealed that both Susan and Joseph misused trust funds for personal expenses and owed approximately $400,000 each to the trust. Joseph was removed as trustee, and Ditta filed suit seeking Susan’s removal as trustee. The probate court removed Susan as trustee following a bench trial. The First Court of Appeals reversed, holding that Ditta’s removal action was barred by the four-year statute of limitations governing claims for breach of fiduciary duty. The supreme court reversed and remanded to the court of appeals. The court noted that the probate court gave multiple reasons for removing Susan that extended beyond discrete breaches of fiduciary duty, describing the position of trustee as a status, like marriage, and recognizing that no statutory limitations period applies to a divorce action. The court also analogized a trustee removal action to an action to remove cloud on title to real property, which is available as long as the injury clouding the title exists. The court expressly left open the question of whether equitable defenses, such as laches or estoppel, apply to removal actions.


FIRST COURT OF APPEALS

City of Houston v. Davis, No. 01-09-00023-CV (May 28, 2009) (Alcala, J.).

Significance: Where a live animal’s purpose is assisting a police officer in carrying out his law enforcement duties on behalf of the government, the government “used” the animal for purposes of determining waiver of sovereign immunity.

Holding: Injuries inflicted by a police dog due to alleged negligence by an on-duty police officer give rise to a waiver of sovereign immunity.

Facts: Davis flagged down a Houston Police Officer to report a vehicle driving dangerously. The officer stopped the driver Davis reported, and Davis pulled his car behind the officer’s patrol car. As Davis approached the officer, the officer’s police dog leapt from the open door of the patrol car and bit Davis. Davis sued the city for damages under negligence and other theories, asserting that the officer’s negligence in handling the dog waived sovereign immunity. The city filed a plea to the jurisdiction based upon sovereign immunity, which the trial court denied. The First Court of Appeals affirmed. The court framed the issue as whether the officer was “using” the dog when it bit Davis because waiver of immunity based upon the use of tangible property requires that the property’s “use” proximately cause the plaintiff’s personal injury. The fact that the officer did not verbally command or physically lead the dog to attack Davis was irrelevant. The court of appeals instead focused on the police dog’s purpose, which was to assist the officer in performing his police duties—duties that he was carrying out when Davis was injured. Because the dog directly caused Davis’s injury and the city—through the officer—was “using” the dog at the time, Davis’s pleadings alleged a valid waiver of sovereign immunity.


FOURTEENTH COURT OF APPEALS

Hadley v. Wyeth Laboratories, Inc., No. 14-07-01055-CV (May 28, 2009) (Yates, J.).

Significance: Chapter 82 of the Texas Civil Practice and Remedies Code does not broaden the common law definition of “seller” to include doctors who prescribe pharmaceuticals while providing medical services.

Holding: A doctor who prescribes drugs during the provision of medical services to patients is not a “seller” entitled to indemnity under Texas Civil Practice and Remedies Code section 82.002(a).

Relevant Facts: Patricia Emig took two diet drugs and later suffered personal injuries. Emig sued Wyeth, the drugs’ manufacturer, and Dr. Hadley, the prescribing physician. Dr. Hadley filed a cross-claim against Wyeth, seeking indemnity as an innocent “seller” under chapter 82. Each party moved for summary judgment, and the trial court granted Wyeth’s motion while denying Dr. Hadley’s. The Fourteenth Court of Appeals affirmed. The court explained that the common law defines a “seller” as someone “engaged in the business of selling” products, and that courts have held routinely that doctors instead engage in providing medical services, notwithstanding their use of products or prescription drugs during this practice. Dr. Hadley urged the court to conclude that chapter 82 broadened the scope of who qualifies as a seller based upon its requirement that a “seller” be “engaged in the business of distributing or otherwise placing” a product into the stream of commerce. He argued that the court should look for guidance to the definition of the term “vendor” found in Texas Insurance Code section 1902.002, which explicitly includes physicians and healthcare providers. Because the legislature presumably was aware of the common law when it passed chapter 82, the court of appeals determined that it easily could have changed the definition of “seller” if that were its intention.


Bailey v. Barnhart Interest, Inc., L. Irvin Barnhart, and Paul F. Barnhart, Jr., No. 14-08-00160-CV (June 16, 2009) (Boyce, J.).

Significance: Judicial estoppel is inapplicable when a bankruptcy trustee moves to reopen a bankruptcy estate to administer previously undisclosed assets for the benefit of the estate’s creditors.

Holding: The bankruptcy trustee may pursue the debtor’s claims against the defendants on behalf of the bankruptcy estate’s creditors even if the debtor would have been judicially estopped from pursuing them herself.

Facts: Sheryl English filed a personal injury suit against the defendants (collectively, “the Barnharts”) in May 2003. English filed for bankruptcy in November 2004. When English filed her bankruptcy schedules and statement of financial affairs, she failed to list her pending suit against the Barnharts as an asset of the bankruptcy estate. English died in January 2005, while her bankruptcy and suit against the Barnharts were still pending. Bankruptcy trustee Joseph Hill filed a no-asset report with the bankruptcy court on February 2, 2005, and the bankruptcy estate was closed. Hill subsequently learned of English’s pending action against the Barnharts and moved to withdraw his no-asset report and reopen the bankruptcy estate on February 22, 2005. The bankruptcy court granted Hill’s motion and reopened the bankruptcy estate on February 23, 2005. On March 21, 2006, the bankruptcy court granted Hill’s motion authorizing him to pursue English’s suit against the Barnharts. Reginald Bailey, as administrator of English’s probate estate, was added later as a plaintiff. The Barnharts moved for summary judgment against Hill and Bailey on grounds of judicial estoppel, asserting that English’s failure to list the suit in her bankruptcy filings foreclosed any party standing in her shoes from subsequently pursuing the suit. The trial court granted the Barnharts’ summary judgment motion. The Fourteenth Court of Appeals reversed and remanded with respect to bankruptcy trustee Hill and reversed, rendered, and dismissed with respect to administrator Bailey. Acknowledging that Hill, as bankruptcy trustee, became the real party in interest upon English’s filing of the bankruptcy petition, the court of appeals analyzed the role of the bankruptcy trustee and his continuing duty to disclose all potential and pending claims. The court determined that Hill had not abandoned the asset in question—English’s suit against the Barnharts—and had followed the required procedures of the Bankruptcy Code upon learning of the asset’s existence. While federal case law at the time the trial court granted summary judgment indicated that a bankruptcy trustee was judicially estopped from pursuing claims which the debtors themselves were judicially estopped from pursuing, the court noted that the federal courts subsequently narrowed this holding so that judicial estoppel would not apply to a bankruptcy trustee who pursues claims for the benefit of the bankruptcy creditors rather than for the debtor’s benefit.