February 2009 Edition

Welcome to the February 9, 2009 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Click on these titles to view the contents:

1 - Justice Kent C. Sullivan: an article about the new justice of the Fourteenth Court of Appeals by Kevin F. Risley, Thompson, Coe, Cousins & Irons, 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 January 2009 luncheon). Prepared and presented by Deterrean Gamble, Briefing Attorney for the Texas First Court of Appeals, edited by Jennifer Kingaard and Karlene Poll, Baker Botts, L.L.P.

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

Please note that the March Appellate Section Luncheon
has been rescheduled to March 12 to accomodate Spring Break.

Justice Kent C. Sullivan Joins the Fourteenth Court of Appeals

by Kevin F. Risley, Thompson, Coe, Cousins & Irons, LLP

Justice Kent C. Sullivan was sworn in as a justice of the Fourteenth Court of Appeals in December 2008. He replaces Justice Wanda McKee Fowler.

Justice Sullivan brings an incredibly broad range of experience to the appellate bench. He received his bachelor’s degree in economics and his law degree from the University of Virginia. From 1982 to 2002, he maintained a very successful civil trial practice in Houston. During his time in private practice, Justice Sullivan had extensive experience on both sides of the docket, in commercial litigation as well as personal injury litigation. Justice Sullivan was a name partner in a highly-respected defense firm and an equally-esteemed plaintiffs’ firm.

While in private practice, Justice Sullivan served on the Supreme Court Advisory Committee, the Pattern Jury Charge Committee, and the Referral Fee Task Force. When he was on the Pattern Jury Charge Committee, he served as Vice-Chair of the PJC Oversight Committee and emphasized the need for plain language in jury submissions. He received Presidential Citations from two Texas Bar presidents for his service on these committees.

For the last six years, Justice Sullivan has served the people of the State of Texas. In 2002, he was appointed, and later reelected, to the bench of the 80th District Court in Harris County. Even with twenty years of trial practice behind him, he received “lots of education” in the time he spent as a trial judge.

In June of 2006, Justice Sullivan was asked by Attorney General Greg Abbott to serve as the First Assistant Attorney General of Texas, a position he held for two and a half years. During this time, Justice Sullivan was in a unique position to become familiar with the courts and citizens across the State of Texas and to realize how diverse the legal needs of the people throughout Texas really are.

Justice Sullivan has served on the Board of Directors and the Executive Committee of the State Bar of Texas. In addition, he is a member of the Houston Bar Association and a fellow of the Houston Bar Foundation and Texas Bar Foundation. He is also active in his church and has been involved with several non-profit entities.
Justice Sullivan is excited about the opportunity to serve on the appellate bench. Attorneys that appear before him can expect him to be prepared and knowledgeable about the legal issues before the court. With his background, breadth of experience, and commitment to public service, Justice Kent Sullivan is a strong addition to the Fourteenth Court of Appeals.

December 2008 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section January 15, 2009

SELECTED CASE SUMMARIES
November 20, 2008 – January 15, 2009

Presented by: Deterrean Gamble
Briefing Attorney-Texas First Court of Appeals

deterrean.gamble@1stcoa.courts.state.tx.us

Edited by: Jennifer Kingaard, Baker Botts, L.L.P.
and Karlene Poll, Baker Botts, L.L.P.

SUPREME COURT OF TEXAS

Southwestern Bell Tel. Co. v. Mitchell, No. 05-0171 (December 19, 2008) (Justice Hecht).

Significance: The supreme court expressly overrules Continental Downs and clarifies that any pending claims for worker’s compensation made prior to the Texas Legislature’s amendment of the Labor Code but after the court’s decision in Continental Downs are subject to the Texas Workforce Commission rule giving employers 60 days to contest a claim, rather than the 7 days provided for in Continental Downs.

Holding: In light of the recent amendment to Texas Labor Code § 409.021 making clearer that the Texas Workforce Commission rule that a company has 60 days to contest the compensability of an employee’s injury was the rule the legislature believed should be followed, Continental Downs, which concluded otherwise, is overruled as wrongly decided.

Relevant Facts: Louise Mitchell, a clerk-typist for Southwestern Bell (“Bell”) claimed she contracted Legionnaire’s disease at work. Mitchell filed a worker’s compensation claim on August 23, 2000 and died four days later. Her husband pursued death benefits under the worker’s compensation policy. Bell contested the claim with the Texas Workforce Commission October 23, 2000—43 days after receiving notice of the injury. On June 17, 2002, the supreme court affirmed a lower court opinion in a different case holding that a company had only 7 days to contest compensability. In March 2003, a hearing officer with the Commission concluded that Bell’s challenge to Mitchell’s claim was untimely. Bell filed an administrative appeal. The legislature then amended the Labor Code and clarified that the Workforce Commission’s 60-day rule governs. After this amendment, the Commission nonetheless affirmed the decision of the hearing officer and Bell appealed. Both the district court and San Antonio Court of Appeals held that Bell’s challenge was untimely.

FIRST COURT OF APPEALS

Poland v. Ott , No. 01-07-00199-CV (December 19, 2008) (Justice Taft).

Significance: This case clarifies that a party asserting a health-care liability claim against a physician or health-care facility may not rely on an expert-medical report served presuit to comply with the Texas Civil Practice and Remedies Code requirement that an expert-medical report be served within 120 days after filing suit.

Holding: Presuit service of a medical report does not satisfy the requirements of former Texas Civil Practice and Remedies Code section 74.351. The use of the term “serve” in the statute implicitly incorporates the plain language of Texas Rule of Civil Procedure 21a, which generally concerns postsuit service.

Facts: Decedent Jessie Poland (“Decedent”) bled to death during a surgery to repair a faulty heart valve. Her husband (“Poland”) and children alleged that, at the time the surgery was performed, Decedent’s blood contained a blood thinner that made her surgery dangerous. Poland commissioned an expert-medical report from Dr. Dennis Moritz and sent a copy of the report to the professional-liability carrier of Decedent’s physician, Dr. David Ott, nearly three months before filing suit. Poland and the children then sued several parties, including Ott, and served a copy of the report to Ott 123 days after filing suit. Ott filed a motion to dismiss under Texas Civil Practices and Remedies Code section 74.351(b), which requires that, in a health-care liability case, a trial court must grant a motion to dismiss if the plaintiff fails to serve the expert-medical report to the physician or his attorney within 120 days after filing suit. Poland argued that Ott’s professional-liability carrier was his designated representative, and presuit service of the expert medical report to the carrier satisfied the requirements of the Texas Civil Practice and Remedies Code. The trial court granted Ott’s motion to dismiss.

Hunt Constr. Group, Inc., Desert Plains, Inc., Way Engineering, Ltd., and Way Engineering Serv., Ltd. v. Konecny, No. 01-06-01155-CV (December 4, 2008) (Justice Alcala).

Significance: This case clarifies the meaning of the word “provide” in Texas Labor Code section 406.123, which allows a general contractor to be deemed an employer for purposes of worker’s compensation law. To satisfy the statutory provision to “provide” worker’s compensation insurance, a general contractor is not required to purchase insurance but must merely make the insurance available for subcontractors and their employees.

Holding: The court reverses a jury award on grounds that the plaintiff’s exclusive remedy was his worker’s compensation claim. Plaintiff’s employer was a subcontractor. The court held that, because Hunt as the general contractor provided worker’s compensation insurance within the meaning of Texas Labor Code section 406.123, Hunt was deemed the plaintiff’s employer for purposes of the worker’s compensation bar. The claims against other subcontractors were barred as well.

Facts: Harris County Sports Authority hired Hunt Construction to build the Toyota Center. Hunt subcontracted the ventilation and air conditioning work to Way Engineering Service, Ltd. and contracted the fireproofing work to Desert Plains, Inc. Way in turn subcontracted the sheet metal and duct work of the ventilation system to Superior Air Handling Corporation. Plaintiff Kevin Konecny was a supervisor with Superior. The Sports Authority implemented an owner-controlled insurance program (“OCIP”) to provide worker’s compensation and other liability insurance throughout the Toyota Center project and required all contractors to participate in the program. The Sports Authority financed the OCIP by charging a credit for the cost against the contractor’s price. Hunt made a similar financing agreement in its subcontracts with Way and Superior. Hunt required Desert Plains to purchase worker’s compensation in accordance with the OCIP. Crews from Superior and Desert Plains were working in the same area on May 23, 2003. Desert Plains was spraying fireproofing materials on support beams; Superior was installing air ducts. Konecny fell and injured his back when he slipped on fireproofing materials. Konecny filed a worker’s compensation claim and filed suit against Hunt, Way and Desert Plains. Konecny received over $280,000 in worker’s compensation benefits and a jury award against the companies totaling $180,000. The companies appealed.

Transamerica Occidental Life Insurance Company v. Rapid Settlements, Ltd., No. 01-07-00137-CV (December 18, 2008) (Bland).

Significance: This case clarifies that the insurer or obligor of a structured-settlement payment is an interested party that must be served with written disclosures of all actions involving transfers of the right to receive structured-settlement payments.

Holding: The trial court erred in entering a judgment confirming an arbitration award in the absence of Transamerica Occidental Life Insurance Company and Transamerica Annuity Service Corporation’s (collectively “Transamerica”) agreement to arbitrate. The arbitration clause in the original agreement did not bind Transamerica, and the trial court’s final judgment was not enforceable against Transamerica because it was a nonsignatory and did not have notice of the arbitration agreement, arbitration proceeding, or the trial-court hearing.

Facts: In 1988, Raymond Echols settled a personal injury claim in exchange for the right to receive a structured settlement payment of $100,000 in 2027. Transamerica was the annuity insurer and obligor of the structured settlement. Echols entered an agreement with Rapid Settlements, Ltd. to transfer his right to receive the future structured-settlement payment for an immediate lump-sum payment of $5,000. The agreement between Echols and Rapid contained an arbitration clause, but Transamerica was not a party to the agreement. Echols later attempted to cancel the transfer, and Rapid initiated an arbitration proceeding. Transamerica was not a party to the arbitration proceeding. After receiving an arbitral award in its favor, Rapid filed a petition in Harris County Civil Court to confirm the award. Transamerica was not served with the petition and was not made a party to the action. The trial court confirmed the award, signed the final judgment, and ordered Transamerica to change the name of the designated payee to Rapid Settlements.

FOURTEENTH COURT OF APPEALS

In Re Credit Suisse First Boston Mortgage Capital, L.L.C. and Credit Suisse First Boston, L.L.C., Relators No. 14-08-00819-CV (December 11, 2008)

Significance: This case clarifies that a non-signatory who fails to demonstrate an agency relationship with a signatory cannot enforce a jury waiver provision in an agreement made by the signatory.

Holding: In a case of first impression, the court holds that a valid contractual jury waiver can be invoked by agents of a signatory party. However, the court declined to extend a jury waiver to a party merely alleged to be an agent of a signatory party.

Facts: Credit Suisse First Boston Mortgage Capital (“Mortgage Capital”) and a commercial real estate development partnership (“Developer”) made a loan agreement in which Mortgage Capital agreed to lend Developer in excess of $39 million for a renovation project of a Houston office building. After the agreement was made, Developer needed additional funds because the renovation project was redesigned. Two employees with Credit Suisse First Boston (“CSFB”) allegedly told Developer that Mortgage Capital would lend Developer $6.75 million under the same terms as made under the original loan agreement. Mortgage Capital turned down Developer’s additional loan request. Developer sued both Mortgage Capital and CSFB for common-law fraud and alleged that the two CSFB employees were authorized to commit Mortgage Capital to the additional loan. The original loan agreement contained a jury waiver. CSFB, a non-signatory to the original loan agreement, asked the trial court to extend the jury waiver to CSFB. The court of appeals denied mandamus relief because CSFB never claimed that it was an agent of Mortgage Capital, so it could not rely on Developer’s “agency” allegations to confer the right to invoke the jury waiver.

Houston Appellate Calendar

February 2009 through April 2009

* Please note that appellate practice luncheon for March is in the second week of the month, not the third due to spring break considerations.

February 16:

Presidents’ 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

February 19:

HBA Appellate Practice Luncheon

The Honorable Leslie Yates, the Honorable Terry Jennings, and Kent Rutter: Advanced Appellate Practice in the 1st and 14th Courts of Appeal: Understanding and Navigating the Thicket.

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, February 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: 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.

February 24:

Mardi Gras

The following courts will be closed:

· Fifth Circuit

March 12:

HBA Appellate Practice Luncheon

The Honorable Keith P. Ellison, The U.S. Supreme Court and the Transition from a Vertical to a Horizontal Jurisprudence.

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, March 10, 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: 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.

Please note: The appellate practice luncheon for March is in the second week of the month, not the third due to spring break considerations.

February 24:

Good Friday

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

· Fifth Circuit

The following courts will not have a late filing box:

· First Court of Appeals

· Fourteenth Court of Appeals

April 16:

HBA Appellate Practice Luncheon

Speaker and topic 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, April 14, 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: 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.

April 24–25:

HBA Civil District / Appellate Bench Bar Conference

Place: San Luis Resort and Conference Center, 5222 Seawall Boulevard, Galveston, Texas

Time: Begins at 8:45 on Friday; Ends at noon on Saturday

Cost: $425 single occupancy; $370 per person double occupancy; $50 Spouse/Guest Dinner

CLE Credit: 9.25 hours MCLE credit (3.0 hours ethics credit)

RSVP Deadline: Tuesday, April 14, 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: call Lucy Fisher at (713) 759-1133

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.