March 2009 Edition

Welcome to the March 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 Jim Sharp: an article about the new justice of the First Court of Appeals by J. Stephen Barrick, Hicks Thomas, LLP.

2 - Chief Justice J. Woodfin Jones: an article about a founding partner of Alexander Dubose Jones & Townsend joining the Austin Court of Appeals by Hannah Sibiski, Fulbright & Jaworski L.L.P.

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

4 - 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 Jim Sharp Joins the First Court of Appeals

by J. Stephen Barrick, Hicks Thomas, LLP

On January 1, Jim Sharp was officially sworn in as the newest justice of the First Court of Appeals, succeeding Justice Sam Nuchia to Place 3 on the court. Justice Sharp’s investiture was held in the Gerald Treece Courtroom at South Texas College of Law on February 12, where he was formally sworn in by former Governor Mark White.

Originally from Dallas, Justice Sharp received his B.A. from the University of Texas at Austin, where he majored in English and Government, and received his J.D. in 1988 from South Texas College of Law. While a student at U.T., Justice Sharp attended college part time so he could work full time as a bill clerk and legislative aide in the Texas Legislature. After graduating from college, Justice Sharp worked for a political consulting firm in Washington, D.C., helping implement political campaigns, and worked in public relations for an insurance company in New Mexico and Massachusetts.

Justice Sharp joins the appellate bench after 19 years in solo practice, where he represented individuals and small businesses in probate, juvenile, family law, criminal, and civil district courts across the state. Justice Sharp also appeared in appellate courts in Houston and San Antonio, and in the Texas Supreme Court and Texas Court of Criminal Appeals.

The New Chief Justice of the Austin Court of Appeals

by Hannah Sibiski, Fulbright & Jaworski L.L.P

J. Woodfin "Woodie" Jones, a founding partner of Alexander Dubose Jones & Townsend, has left the firm to return to public service as the new Chief Justice of the Austin Court of Appeals. Elected by Austin voters, Chief Justice Jones begins his second term on the Austin Court of Appeals. He also served as a justice on that court from 1988-2000. Chief Justice Jones received his BA with honors, Phi Beta Kappa, from the University of Texas, and he also received his JD from the University of Texas School of Law. He later obtained his LLM from the University of Virginia School of Law, with a Master of Laws in Judicial Process. In 2003, Chief Justice Jones was Board Certified in Civil Appellate Law.

Chief Justice Jones began his career in Houston, serving as a briefing attorney for the Fourteenth Court of Appeals and working as an associate for Bracewell & Patterson. He then moved his practice to Austin, becoming a partner at Sneed, Vine, Wilkerson, Selman & Perry. In 1988, he left private practice to serve as an appellate justice the first time. After leaving the bench in 2000, Chief Justice Jones resumed his private practice in Austin, as a partner at Scott, Douglass & McConnico. In 2003, he was a founding partner of the law firm Alexander Dubose Jones & Townsend LLP, the firm he now leaves to resume public service as the Chief Justice of the Austin Court of Appeals.

January 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

February 19, 2009

SELECTED CASE SUMMARIES

January 16, 2009 – February 18, 2009

Presented by:

Elizabeth A. Holman

Law Clerk, Texas First Court of Appeals

elizabeth.holman@1stcoa.courts.state.tx.us

SUPREME COURT OF TEXAS

Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., No. 06-0867 (February 13, 2009) (Justice Willett).

Significance: The eight-corners rule can limit, as well as trigger, an insurer’s duty to defend.

Holding: When the pleadings in an underlying lawsuit fail to allege facts that would trigger an insurer’s duty to defend, an insured may not establish the insurer’s duty to defend by introducing extrinsic evidence.

Relevant Facts: Great American issued general liability policies to Pine Oak, a homebuilder. The policies contained a coverage exclusion for property damage occurring after Pine Oak completes construction. However, they did provide coverage for damage caused by Pine Oak’s subcontractors. When a homeowner sued Pine Oak, Great American refused to defend Pine Oak because the pleadings in the underlying lawsuit did not allege that faulty work was performed by its subcontractors. Pine Oak sued Great American and submitted evidence that it was subcontractors that performed the defective work alleged in the underlying lawsuit. The trial court granted summary judgment in Great American’s favor, and the court of appeals and supreme court both affirmed. The supreme court reasoning that the eight-corners rule restricts a court’s examination to the insurance policy and the pleadings in the underlying lawsuit. The court concluded that the distinction between attempting to introduce extrinsic evidence to limit an insurer’s duty to defend and to trigger an insurer’s duty to defend is legally insignificant.

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In re Labatt Food Serv., L.P., No. 07-0419, 2009 WL 353524 (Tex. Feb. 13, 2009) (Justice Johnson).

Significance: Because a wrongful-death beneficiary’s claims are derivative, the beneficiary must arbitrate wrongful-death claims against a decedent’s employer when the agreement between the decedent and the employer contains an arbitration provision.

Holding: The arbitration provision in an agreement between a decedent and his employer required the employee’s wrongful death beneficiaries to arbitrate their wrongful-death claims against the employer even though they did not sign the agreement.

Facts: To participate in Labatt’s occupational injury plan, the decedent Carlos Dancy, Jr. signed an agreement stating that he elected to be covered “individually and on behalf of heirs and beneficiaries.” The agreement also contained an arbitration clause requiring that disputes related to the agreement, plan, or occupational injury/death be submitted to binding arbitration under the Federal Arbitration Act. While on the job, Dancy had an asthma attack and died. Dancy’s parents and children filed a wrongful-death suit against Labatt, and Labatt moved to compel arbitration. The trial court denied Labatt’s motion, and the court of appeals denied mandamus relief. The Texas Supreme Court conditionally granted Labatt’s petition for writ of mandamus and directed the trial court to compel arbitration. The court reasoned that Dancy would have been compelled to arbitrate his own claims, so his beneficiaries suing on his behalf were likewise compelled to arbitrate.

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FIRST COURT OF APPEALS

Stanford Dev. Corp. v. Stanford Condo. Owners Ass’n, No. 01-08-00240-CV (January 29, 2009, no pet. h.) (Chief Justice Radack).

Significance: An association bringing suit on behalf of members is bound to arbitrate if its members agreed to arbitration.

Holding: When an association files suit based on terms in its members’ individual contracts that contain arbitration agreements, the association is equitably estopped from denying the applicability of the arbitration agreements.

Facts: A condo association sued the condo developer for construction defects. The suit was brought on behalf of thirty-seven members, twenty-seven of whom had signed (or subsequently purchased from members who had signed) earnest money contracts containing arbitration agreements. The developer moved to compel arbitration, but the trial court denied that motion, concluding that the association was not bound by the arbitration agreements in its members’ contracts. On interlocutory appeal, the court of appeals reversed and remanded, explaining that the association was bound to arbitrate the dispute because it stepped into the shoes of its members when it sued on their behalf. Additionally, because the arbitration agreements created rights independent of the conveyance, the subsequent deeds did not extinguish the arbitration agreements in the earnest money contracts.

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Lincoln v. Clark Freight Lines, Inc., No. 01-06-01177-CV, 2009 WL 350563 (Tex. App.—Houston [1st Dist.] Feb. 12, 2009, no pet. h.) (Justice Keyes).

Significance: To satisfy Daubert, a car tested for purposes of accident reconstruction does not have to be identical to the car involved in an accident.

Holding: The expert’s testimony based on testing data from a newer-model Camaro was reliable in a suit involving an older-model Mustang with tires similar to the Camaro because the expert explained that the only relevant factor was whether the cars had similar tires.

Facts: Brian Gregory, Jr. was killed when the fifteen-year-old Mustang that he was riding in collided with a tractor-trailer owned by Clark Freight Lines. His mother, Kimble Lynette Lincoln, sued Clark Freight Lines and filed a Daubert motion to prevent Harris County’s expert accident reconstructionist from testifying. Lincoln asserted that the accident reconstruction was unreliable because it was based on a coefficient of friction calculated by testing a two-year-old Camaro. Lincoln stated that the engine, type of transmission, braking system, weight, age, horsepower, and suspension system in the Camaro were all different from those in the Mustang. At the Daubert hearing, the expert acknowledged those differences, but explained that they do not affect the coefficient of friction; only similarity in type and hardness of tire affect the coefficient of friction, and the Camaro and Mustang had similar tires. The trial court ruled that the expert could testify. The jury found that the Mustang driver’s negligence was the sole proximate cause of the accident. The court of appeals affirmed, reasoning that the expert’s testimony was reliable because he acknowledged the differences between the Mustang involved in the accident and the Camaro used for testing, and then gave the jury reasons why these differences did not affect his accident reconstruction.

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FOURTEENTH COURT OF APPEALS

Galveston Indep. Sch. Dist. v. Jaco, No. 14-08-00271-CV (January 20, 2009, no pet. h.) (Justice Guzman).

Significance: A challenge to an element of a claim under the Texas Whistleblower’s Act does not affect the trial court’s subject-matter jurisdiction.

Holding: A public employer’s waiver of immunity to suit under the Texas Whistleblower’s Act is unconditional. To invoke the trial court’s subject-matter jurisdiction, a public employee need only allege a violation of and seek relief under the Act.

Facts: Jaco, the director of athletics and extracurricular activities for Galveston ISD, learned that a high school student was playing football in violation of a UIL rule. With GISD’s approval, Jaco reported the violation to the UIL. Jaco was thereafter reassigned to the position of athletic director and eventually offered a term contract as a teacher. Jaco sued GISD, alleging violations under the Texas Whistleblower’s Act. GISD filed a plea to the jurisdiction, asserting that GISD’s actions do not constitute an adverse employment act, the UIL rule is not a law, and the UIL is not “an appropriate law enforcement authority” as used in Texas Government Code section 554.002(a). The trial court denied the plea, and the court of appeals affirmed. The court explained that unlike the Texas Tort Claims Act, under which a challenge to an element of the claim is also a challenge to subject-matter jurisdiction, the Texas Whistleblower’s Act does not hinge subject-matter jurisdiction on liability.

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Speedy Stop Food Stores, Ltd. v. Reid Rd. Mun. Util. Dist., No. 14-07-00225, 2009 WL 237265 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet. h.) (Justice Frost).

Significance: The “property owner rule” applies to corporate property owners.

Holding: A corporate property owner or its representative who is familiar with the market value of the property may testify about that market value even if not qualified as an expert witness.

Facts: Reid Road Municipal Utility District (the “District”) initiated a condemnation action to acquire approximately 1/20 of an acre of land owned by Speedy Stop. The trial court appointed three special commissioners to assess damages. At the hearing convened by the commissioners, a state-certified appraiser estimated damages of $9342. Speedy Stop timely filed objections to the commissioners’ finding on the amount of compensation to be awarded to Speedy Stop, among other things. The District filed a motion for summary judgment asserting that there was no evidence of just compensation to be paid to Speedy Stop for the taking of the easement and requesting judgment for Speedy Stop in the amount of $1 nominal damages. Speedy Stop responded by offering, on behalf of the owner, the affidavit of its vice president and general partner, who was in charge of all real estate acquisitions for Speedy Stop. The affidavit demonstrated that the vice president was familiar with the market value of the property, which he testified dropped $62,000 in value after the condemnation. The District objected to the affidavit on the grounds that Speedy Stop did not designate the vice president as an expert and that he was not an expert in real-estate appraisal. The trial court granted the District’s motion to exclude the affidavit and granted summary judgment in favor of the District. In a majority opinion, the court of appeals reversed and remanded, concluding that corporate owners who are familiar with the market value of their property are no less reliable than individual owners. Among other things, the dissenting opinion, written by Justice Seymore, points out that the property-owner rule exclusively allows the testimony of property owners, and the vice president of Speedy Stop was not the property owner.

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.

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

Rusty Hardin, of Rusty Hardin & Associates, P.C.: Inside the mind of a trial lawyer: what appellate lawyers ought to know.

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.

Please note: This will be the Appellate Section's annual meeting. Officers will be elected.

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

May 15:

Practice Before the Texas Supreme Court

Place: Norris Houston CityCentre, 800 W. Sam Houston Pkwy. N.

Time: Begins at 8:00 am; Ends at 4:30 pm

Cost: $195

CLE Credit: 5.50 hours MCLE credit

More information: http://www.texasbarcle.com/materials/Programs/1927/Brochure.pdf

May 21:

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, May 19, 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.

May 24:

Memorial Day

The following clerk’s offices will be closed:

• Texas Supreme Court
  

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

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.