April 2009 Edition

Welcome to the April 29, 2009 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Click on these titles to view the contents:

1 - Tips from the Top: Russell Post, Beck, Redden & Secrest, L.L.P. shares his appellate expertise.

2 - 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 J. Shannon Gatlin, Briefing Attorney for the Texas Fourteenth 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.

Tips from the Top

Using "Decision Cues" in Appellate Writing

Experienced appellate advocates understand that they are writing for a small and specialized set of readers -- appellate judges -- who must process an extraordinary amount of information in a limited period of time. For this reason, effective appellate advocacy frequently requires more than careful legal analysis and clear prose; it also requires that the advocate provide a framework to aid the reader in processing a wealth of information and reaching a decision. Providing such a synthesis goes beyond a clear and coherent legal argument; it places the issues in context in a way that commands a favorable decision.

One effective strategy to assist judges in processing information is the use of what I call "decision cues." Decision cues are features of legal writing that aid a judge in processing information about an unfamiliar or complex field of law by drawing on their familiarity with general decisionmaking principles. By their nature, appellate judges are procedural specialists, but substantive generalists; they have developed expertise in certain procedural decisionmaking rules (canons of interpretation, use of precedent, standards of review, etc.) that can be used to decide a wide array of substantive questions. Decision cues are rhetorical devices by which an advocate can use a general decisionmaking rule to suggest the strength or weakness of a substantive proposition -- even if the judge does not otherwise know anything about the substantive question. To take a familiar example, appellate judges are highly disciplined decisionmakers who tend to be very attuned to the order in which issues should be addressed on appeal. If an appellant raises a jurisdictional complaint but does not address it as a threshold issue in the brief, the very structure of the appellate brief becomes a sign of weakness, signaling a lack of confidence in the argument. An effective appellate advocate will highlight that weakness, using the reader's procedural expertise to draw inferences about the strength of the argument.

There are many such "decision cues," and many opportunities to use them effectively in appellate advocacy. I liken this strategy to Berthold Brecht's theory of "epic theater," which argued that the audience should not be passive; theater should provoke self-reflection and critical engagement by the audience. To that end, Brecht employed a variety of devices to break down the barrier between the audience and the stage, inviting the audience to confront the reality behind the dramatic action. (In short, Brecht forced the audience to pay attention to “the man behind the curtain.”) Through effective use of decision cues, appellate advocates can do the same, inviting their own audience to confront the reality behind an opponent’s carefully constructed presentation and providing significant signposts for each judge’s journey through the appellate briefs.

Russell Post, Beck, Redden & Secrest, L.L.P.

Case Summaries

HBA Appellate Practice Section

March 12, 2009

SELECTED CASE SUMMARIES

February 19, 2009 – March 12, 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

Adequate Warning to Invitee as a Matter of Law

TXI Operations, L.P. v. Perry, No. 05-0030 (Feb. 27, 2009) (Justice Green).

Significance: The duty to warn invitees of a known dangerous condition on the defendant’s premises is not necessarily satisfied by posting a general instruction or notice.

Holding: A “be careful” warning might provide some evidence that a premises owner is not negligent, but it is inconclusive if the warning serves only as a general instruction, neither informing of known hazards overall nor identifying the particular known hazard that caused harm.

Relevant Facts: Plaintiff regularly drove an 18-wheel truck down an unpaved road maintained by TXI. One of these times, Plaintiff’s truck struck a hole and he was injured when thrown into the roof of the truck cab. Plaintiff admitted he knew the hole was there and that he was aware of a 15 m.p.h. speed limit sign TXI had posted near the hole. Plaintiff nonetheless sued TXI for negligence based upon its failure to warn of a known dangerous condition on its premises. A jury found TXI and Perry equally negligent; the trial court entered judgment for Perry, reducing the jury’s damage award by his percentage of fault. The court of appeals affirmed. On appeal to the supreme court, TXI did not contest that it owed a duty; rather it argued that the speed limit sign was an adequate warning of the dangerous road condition as a matter of law. The supreme court disagreed and affirmed the trial court judgment. In a dissenting opinion joined by Justice Medina and Justice Willett, Justice Hecht opined that the 15 m.p.h. speed limit sign was adequate as a matter of law to discharge any duty TXI may have had to warn invitees of rough conditions on its unpaved road. The dissent further asserted that TXI owed no duty to warn because the potholes were an open and obvious danger.

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Retamco Operating, Inc. v. Republic Drilling Co., No. 07-0599 (Feb. 27, 2009) (Justice Green).

Significance: A nonresident company accused of violating the Uniform Fraudulent Transfer Act (UFTA) by acting as transferee of Texas oil and gas interests may be subject to specific jurisdiction of Texas courts.

Holding: Purchases of oil and gas interests located in Texas by a nonresident—even if the nonresident has never entered Texas—as purchases of real property, are sufficient to demonstrate purposeful availment of the privilege of conducting business in Texas, and the alleged receipt of Texas real property for the purpose of defrauding a Texas resident is sufficient to demonstrate that at least part of the alleged tort occurred in Texas.

Relevant Facts: Retamco, a Texas corporation, sued Paradigm Oil, Inc., a Texas corporation, for unpaid royalties related to oil and gas interests in several Texas counties. Following an interlocutory default judgment against Paradigm, Retamco amended its petition to include a claim against Republic, a California corporation, under UFTA. Retamco claimed that during the pendency of the case, Paradigm assigned to Republic a 72% interest in certain of Paradigm’s wells and leases and an option to acquire a 72% interest in a lease held by Paradigm. Retamco alleged that these transfers were fraudulent, and that they led to Paradigm’s insolvency, rendering it unable to satisfy Retamco’s claims. Republic filed a special appearance, arguing that it did not have minimum contacts with Texas and even if it did, Retamco’s cause of action did not arise from or relate to those contacts. Republic specifically argued that Texas courts could not exercise personal jurisdiction over it because the allegedly fraudulent assignment of the leases occurred entirely in California. The trial court denied Republic’s special appearance, and it filed an interlocutory appeal. The court of appeals reversed and held that Republic was not subject to personal jurisdiction in Texas. The supreme court reversed the court of appeals’ judgment and remanded to the trial court.

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FIRST COURT OF APPEALS

Sims v. Fitzpatrick, No. 01-07-00868-CV (Feb. 26, 2009) (Justice Jennings).

Significance: A jury demand filed more than 30 days before the scheduled trial date is presumed to be timely even if the entry of “death penalty” sanctions against the requesting party establishes liability and a hearing to the bench on damages is held within 30 days after filing of the jury demand.

Holding: The trial court abused its discretion in denying Defendants’ September 25 jury demand for a trial originally scheduled for November 5, notwithstanding the court’s entry of judgment regarding liability on September 14 and 25 and a subsequent hearing on damages tried before the court on October 3.

Facts: Plaintiffs’ lawsuits against Defendants were consolidated and set for trial on November 5, 2007. On September 10, 2007 and September 14, 2007, Plaintiffs filed motions for death penalty sanctions alleging primarily discovery abuses. The trial court granted the motions, striking appellants’ pleadings and entering judgment against appellants with regard to liability. Defendants filed a jury demand with the trial court on the same day that the court granted the last motion for sanctions, which was more than 30 days before the scheduled November 5 trial date. But on September 25, the trial court also set a hearing on damages for October 3, 2007, which rendered the jury demand untimely. The trial court denied Defendants’ motion for continuance and decided the issue of damages without a jury. The court of appeals reversed and remanded for a jury trial on damages.

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Stoll v. Henderson, No. 01-07-00733-CV (Feb. 26, 2009) (Justice Sharp).

Significance: The offer of a will solely as an instrument of revocation of a probated will is a will contest that is subject to the two-year statute of limitations in Texas Probate Code § 93.

Holding: The application to probate a will solely for the purpose of revoking another will constituted an untimely will contest barred by the two-year statute of limitations, regardless of the fact that the will was not being offered for probate.

Relevant Facts: Decedent executed a will on November 5, 1993, transferring nearly all of her assets into a family trust, and executed a codicil on June 8, 1994. On July 21, 1994, she executed a new will that purported to revoke all prior wills and codicils and bequeath all assets to two individuals. Subsequently, she signed a note before two witnesses purporting to revoke the July 21, 1994 will. Decedent died on March 5, 2004. The November 1993 will and June 1994 codicil were admitted to probate on May 3, 2004. On November 8, 2006, applicants Stoll and Evans filed an application to set aside the probate of the 1993 will due to its revocation by the July 1994 will. All parties stipulated that the July 1994 will was duly executed and contained a revocation clause, later revoked, and not being offered for probate. The trial court concluded that the offer of the July 1994 will to establish revocation of the probated 1993 will constituted a will contest subject to the two-year statute of limitations set out in Texas Probate Code § 93 and that applicants were therefore time-barred from pursuing their action to set aside the 1993 will. The court of appeals affirmed.

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FOURTEENTH COURT OF APPEALS

Determining Status for Premises Liability Actions

Mayer v. Willowbrook Plaza Limited Partnership, No. 14-07-00358-CV (Feb. 19, 2009) (Justice Boyce).

Significance: For purposes of determining duty owed by a landowner under a premises liability theory, a person can lose “invitee” status by leaving the premises and then returning later without having any present business of mutual benefit at the time of return.

Holding: As a matter of law, the decedents who left their cars in a shopping center parking lot for two or three hours to go elsewhere and then returned after the shopping center had closed to retrieve their cars were not invitees at the time they returned.

Facts: Four restaurant customers left together shortly before 2:00 a.m. to attend a party at a nearby hotel. The group took one car to the party, leaving two cars behind in the parking lot. The group returned between 4:00 a.m. and 5:00 a.m. to retrieve the cars—long after closing time. The group discovered one teenager attempting to hotwire one of the cars left behind and another teenager sitting in a nearby car. After an altercation, the teenagers left and quickly returned with a gun. Two members of the group were shot and killed, and their families sued numerous defendants under theories of negligent activity and premises liability. The trial court granted summary judgment for the defendants, and the court of appeals affirmed.

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XTO Energy, Inc. v. Smith Production, Inc., No. 14-07-00069-CV (Feb. 24, 2009) (Justice Frost)

Significance: A party to a joint operating agreement (JOA) may not change its initial election to participate or not participate in the cost of a proposed new operation, even if it purports to make such a change within the time period specified for making its election, unless a change is unambiguously allowed under the JOA.

Holding: Under the unambiguous language of the JOAs at issue, Chevron was not allowed to change its initial election not to participate in the cost of a proposed new operation after it had received proper notice of the operation.

Relevant Facts: Smith was an operator under two JOAs governing exploration and production on an oil and gas lease. Chevron was one of four non-operating interest owners who were also parties to the JOAs. In May 2004, Chevron contracted to sell its working interest in the oil and gas lease to XTO. In May and June of 2004, Smith gave written notice to the non-operating interest owners of its proposal to drill four more wells on the lease. Under the JOAs, these owners had 30 days after receipt of the notice to notify Smith whether they would participate in the cost of the proposed operations. Chevron did not consult with XTO in deciding not to participate in the cost of the four proposed wells and notified Smith of its election within the 30-day period. Chevron then, also within the 30 days, sent Smith a letter attempting to revoke its earlier notification and to elect to participate in the cost of the wells. Smith asserted that Chevron could not revoke its prior notification and would be treated as a “non-consenting party” under the JOAs. XTO subsequently sued Smith for breach of contract based upon Smith’s refusal to accept Chevron’s purported election change and sought specific performance. The trial court granted summary judgment in favor of Smith. The court of affirmed. Justice Guzman dissented, arguing that the language of the JOAs was ambiguous and that the case should be reversed and remanded for further proceedings.

Houston Appellate Calendar

April 2009 through June 2009

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

April 29:

Farewell Ceremony for Justice Tim Taft

Place: Joe M. Green Auditorium, South Texas College of Law, 4th Floor

Time: 4:00 P.M.

Additional Information: Light refreshments afterward

May 6:

Corporate Counsel / Appellate Counsel Seminar

Place: Damian's Cucina Italiana, Second Floor, 3011 Smith Street

Time: 2:00 - 5:00; reception to follow

Cost: none

CLE Credit: 3 hours MCLE credit (1.0 hour ethics credit)

RSVP: spaces are limited; email gholland@adtappellate.com to reserve a space

May 12:

18th Annual Appellate Judicial Reception

Place: Ouisie's Table, 3939 San Felipe Drive

Time: 5:30 p.m. to 8:00 p.m.d

Cost: $20 members; $40 non-members; cash bar

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

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

May 21:

HBA Appellate Practice Luncheon

Justice Jeff Brown of the Fourteenth Court of Appeals, "How To Be a Good Scout Law-yer"

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
  

May 29-31:

14th Appellate Practice Institute

Place: 163 East Walton Place, Chicago, Illinois

Time: Begins at 7:45 A.M. on Friday; Ends at 10:30 A.M. on Sunday

Cost: $875 private practice ABA member; $925 private practice non-ABA member; $725 government ABA member; $775 government non-ABA member

CLE Credit: not listed

Additional Information: http://www.abanet.org/jd/ajc/cal/pdf/appellate_practice_institute_brochure.pdf

June 4-5:

19th Annual Conference on State and Federal Appeals

Place: Four Seasons Hotel, Austin, Texas

Time: Begins at 8:00 A.M. on Friday; Ends at 4:15 P.M. on Saturday

Cost: $545 if registered by May 27; $595 if registered after May 27

CLE Credit: 12.0 hours MCLE credit (2.5 hour ethics credit)

Additional Information: http://www.utcle.org/conference_overview.php?conferenceid=852

June 18:

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, May 16, 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.

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.