June 15 Edition

Welcome to the June 15, 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 April 2009 luncheon). Prepared and presented by David J. Campbell, Briefing Attorney for the Texas First Court of Appeals, edited by Jennifer Kingaard and Karlene Poll, Baker Botts, L.L.P.

2 - 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 Sean J. Yan, Judicial Intern 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.

March 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

April 16, 2009


SELECTED CASE SUMMARIES

March 12, 2009 – April 16, 2009


Presented by:

David J. Campbell

Briefing Attorney to the Hon. Terry Jennings

First Court of Appeals of Texas

davecampbell@alumni.utexas.net

SUPREME COURT OF TEXAS

Entergy Gulf States, Inc. v. Summers, No. 05-0272 (Apr. 3, 2009) (Justice Green).

Significance: This case allows premises owners to avail themselves of the exclusive remedy defense when they provide workers’ compensation benefits to subcontractors’ employees.

Holding: Entergy, as a premises owner, fits the statutory description of a “general contractor,” making Entergy an “employer” for purposes of the Workers’ Compensation Act. As a statutory employer, Entergy is entitled to assert the exclusive remedy defense.

Relevant Facts: John Summers, an IMC employee, was injured while working at Entergy’s Sabine Station plant. Summers applied for, and received, benefits under the workers’ compensation policy purchased by Entergy. He then sued Entergy. Entergy moved for summary judgment, arguing that it is immune from Summers’s common-law tort suit because it is his statutory employer. See Tex. Lab. Code § 408.001(a) (describing exclusive remedy defense available to statutory employers). Entergy argued that it qualifies as Summers’s statutory employer, and may therefore assert an exclusive remedy defense against Summers, because Entergy (1) provided workers’ compensation benefits to Summers (2) pursuant to a contract with IMC in which Entergy agreed to provide workers’ compensation coverage to IMC employees, and (3) Entergy is both a premises owner and general contractor. See id. §§ 406.121(1) (defining “general contractor” as “a person who undertakes to procure the performance of work or service, either separately or through the use of subcontractors”), 406.123(a), (e) (stating that when a general contractor enters into a written agreement to provide workers’ compensation coverage to a subcontractor and its employees, the general contractor is considered a statutory employer “only for purposes of the workers’ compensation laws of this state). The trial court granted Entergy’s motion for summary judgment, and the court of appeals reversed. The supreme court reversed the court of appeals, holding the exclusive remedy defense applied. Justice Hecht filed a lengthy concurrence, opining that the statutory provisions at issue are ambiguous, but that the majority interpretation is most consistent with the Workers’ Compensation Act as a whole. Justice Willett also filed a concurrence, pointing out with particularity why, in his view, the majority’s ultimate conclusion is right, and why each of Summers’s arguments flawed. Justice O’Neill, joined by Chief Justice Jefferson and Justice Medina, dissented.


HCBeck, Ltd. v. Rice, No. 06-0418 (Apr. 3, 2009) (Justice Green).

Significance: To qualify as a statutory employer and avail itself of the exclusive remedy defense, a contractor may provide workers’ compensation insurance by agreeing in writing to buy the insurance, compensating a subcontractor for buying the insurance, or “connecting the subcontractor” to the party that is paying for the work by contractually providing for that party to buy the insurance.

Holding: HCBeck “provided” workers’ compensation insurance as required under the Texas Labor Code to benefit from the exclusive remedy defense because the insurance plan incorporated into both its upstream contract with FMR and its downstream subcontract with Haley Greer included workers’ compensation coverage to Haley Greer’s employees and because the contracts specified that HCBeck was ultimately responsible for obtaining alternate workers’ compensation insurance if FMR were to terminate coverage.

Relevant Facts: HCBeck contracted with FMR to construct an office campus on FMR’s property. Haley Greer entered into a subcontract with HCBeck to provide services on the project. Charles Rice, an employee of Haley Greer, was injured while working on the project. As part of the FMR/HCBeck contract, FMR agreed to provide workers’ compensation insurance to the employees of both HCBeck and its subcontractors. Rice applied for and received workers’ compensation benefits under the policy paid for by FMR. He then filed a negligence suit against HCBeck. HCBeck obtained summary judgment on the ground that it had provided workers’ compensation coverage to Rice by contractually obligating FMR to obtain and pay for the workers’ compensation insurance. The court of appeals reversed, holding that “HCBeck’s contract with Haley Greer—which simply incorporated FMR’s [coverage] into the subcontract under the direct order of FMR in its contract with HCBeck—is insufficient to constitute ‘providing’ providing workers’ compensation insurance to Haley Greer.” The supreme court reversed the court of appeals’s judgment and rendered judgment in favor of HCBeck. Justice Johnson dissented, arguing that he would hold that to be a statutory employer, a general contractor must be more substantively involved in securing and maintaining the subcontractor’s worker’s compensation insurance than contracting for another to place and maintain insurance.


Genn v. Forrester, No. 08-0163 (Mar. 27, 2009) (per curiam).

Significance: A restricted appeal requires error that is apparent on the face of the record; error that is merely inferred will not suffice.

Holding: A district clerk’s notation stating that nothing in the record indicates that the required notice of a dismissal for want of prosecution was sent to the plaintiff is insufficient to affirmatively demonstrate that notice was not sent, and thus insufficient to establish reversible error in a restricted appeal.

Facts: The Forresters’s lawsuit was dismissed for want of prosecution. For their subsequent restricted appeal, the Forresters requested a supplemental clerk’s record containing documents that would have showed that the trial court failed to notify the Forresters of an impending dismissal for want of prosecution. The clerk provided a supplemental record stating, “NOTE: Unable to locate other items requested.” Reasoning that the clerk’s notation reveals that the trial court failed to notify the Forresters of its intent to dismiss the case, the court of appeals reversed the trial court’s judgment of dismissal and remanded the case for further proceedings. The supreme court reversed.


FIRST COURT OF APPEALS

Grant v. Laughlin Environmental, Inc., No. 01-07-00227-CV (Mar. 26, 2009) (Justice Jennings).

Significance: Under the unclean hands doctrine, a party that engages in unlawful or inequitable conduct, such as fraud, may not recover quantum meruit relief.

Holding: The trial court did not abuse its discretion in denying Grant a quantum meruit recovery because LEI presented ample proof that Grant had engaged in unlawful or inequitable conduct.

Facts: Grant signed a two-year compensation package agreement with LEI, but continued working for LEI after the agreement expired. During that time, Grant used LEI employees and equipment for his personal use. He also used LEI’s credit to make personal purchases. In Grant’s lawsuit against LEI, he asserted a number of claims, including a claim for quantum meruit recovery for bonus money to which he claimed he was entitled. Based on the jury finding that Grant’s conduct “constituted unclean hands,” the trial court denied the quantum meruit recovery.


Mireles v. Mireles, No. 01-08-00499-CV (Apr. 2, 2009) (Justice Jennings).

Significance: Extrinsic evidence may be used to collaterally attack a judgment when the trial court had no power to decide the case.

Holding: The trial court did not err in granting a petition to set aside a divorce on the grounds the underlying marriage was void, despite the respondents’ contention that the petitioner did not plead and prove the required facts for bill of review relief.

Facts: In 1998, Jennifer Jack married Andrew Mireles, and in 2005, they divorced. In 2007 Jennifer filed a bill of review, alleging that two years after divorcing Andrew, Jennifer “was shocked” to discover that Andrew Mireles “was born a female named Phyliss Ann Mireles.” Based on the parties’ agreement that Mireles was born a female, the trial court found that the underlying marriage was void and set aside the divorce decree. In affirming, the court of appeals noted that, while Jennifer labeled her action a “bill of review,” she “was actually attacking collaterally the divorce decree in order to have the underlying marriage declared void, rather than attempting to secure the rendition of a single, correct judgment in place of the earlier one.” Because a same-sex marriage is void in Texas, the court had no choice but to dismiss the divorce in light of the undisputed fact, established through extrinsic evidence, that this was a same-sex marriage.


FOURTEENTH COURT OF APPEALS

Afri-Carib Enterprises, Inc. v. Mabon Limited, No. 14-07-00650-CV (Mar. 31, 2009) (Justice Yates).

Significance: A party does not have constructive notice of a trial setting or default judgment when notice is sent to an attorney who is not authorized to practice law, even if the attorney was not authorized to practice law when hired.

Holding: Evidence was legally and factually sufficient to support the trial court’s finding that Mabon did not have notice of the trial setting.

Facts: Afri-Carib sued Mabon in 1996 for breach of contract. Mabon hired counsel and made an appearance. The case was called to trial nearly two years later, and neither Mabon nor its counsel appeared, so the trial court entered a default judgment against Mabon. Mabon filed a bill of review arguing that it did not receive personal notice of the trial setting or default judgment and that notice could not be imputed to Mabon based on notice its attorney received because the attorney’s license was suspended when the notices were sent. The trial court granted Mabon’s bill of review, set aside the default judgment, and granted summary judgment for Mabon in the underlying suit. The court of appeals reversed and remanded for further proceedings.

April 2009 Cases Impacting Houston Appellate Lawyers

HBA Appellate Practice Section

May 21, 2009


SELECTED CASE SUMMARIES

April 16, 2009 – May 21, 2009


Presented by:

Sean J. Yan

Judicial Intern to Justice Kem Thompson Frost

Texas Fourteenth Court of Appeals

SeanJosephYan@gmail.com


SUPREME COURT OF TEXAS

Kappus v. Kappus, No. 08-0136, 2009 WL 1383716 (May 15, 2009) (Willett, J.) (unanimous).

Significance: An independent executor’s conflict of interest, either actual or potential, is not a ground for removal under the Probate Code.

Holding: The court of appeals erred in removing John Kappus from his position as independent executor of his brother’s estate. A good-faith disagreement between an executor and the estate over the percentage division and valuation of estate assets is not a ground for removal as a matter of law. Such a development would (1) depart from the specific grounds for removal listed in the statute, (2) frustrate the testator’s choice of executor (particularly the common practice of appointing spouse-executors), and (3) impede the broader goal of supporting the independent administration of estates with minimal costs and court supervision.

Facts: James and John Kappus inherited Kappus Farm from their father and became 50/50 cotenants. Throughout the time that they owned Kappus Farm, James and John individually made several improvements to the farm. John and his wife, Sandra, also made improvements together. In 2004, James and Sandra divorced, and Sandra received an equitable lien on Kappus Farm for her half of the community improvements. After the divorce was final, James executed a new will creating a testamentary trust for his two children and naming John as the trustee and independent executor. Shortly thereafter, James died. As part of the administration of the estate, John intended to pay off James’s debts by selling Kappus Farm and splitting the proceeds equally between the estate and himself. Sandra, on behalf of her children, opposed John’s proposal, and asserted that the estate was owed more than 50% of the proceeds due to the improvements that James had made to the property. Sandra obtained an injunction and sought to remove John as independent executor and trustee of the testamentary trust, alleging, among other things, a conflict of interest. The trial court divided Kappus Farm equitably but refused to remove John as independent executor and trustee. On appeal, the court of appeals affirmed the division of property, but reversed the trial court’s decision on removal of John in his capacity as independent executor.


City of El Paso v. Heinrich, No. 06-0778 (May 1, 2009) (Jefferson, J.).

Significance: A suit brought against a government actor concerning retroactive changes to pension benefits is not barred by sovereign immunity when the defendants are sued in their official capacity and the relief sought is equitable or injunctive, rather than monetary.

Holding: While governmental immunity generally bars suits for retrospective monetary relief, it does not preclude prospective declaratory and injunctive relief in official-capacity suits against government actors alleging statutory or constitutional violations.

Facts: Lilli Heinrich is the widow of Charles Heinrich, a member of the El Paso Police Department who died while serving in the line of duty. Pursuant to the bylaws of the El Paso Firemen & Policemen’s Pension Fund’s Board of Trustees, Ms. Heinrich was entitled to a two-thirds portion of her husband’s pension; the other third would be paid to her on behalf of her then-minor child. Notwithstanding the bylaws, the Board voted and approved awarding Ms. Heinrich 100% of the pension benefits. Accordingly, when in 2002 the Board reduced the monthly payments to Ms. Heinrich by one-third after her son turned 23, Ms. Heinrich sued, seeking declaratory relief and alleging that the Board acted without legal authority by retroactively reducing her benefits. On appeal from the trial court’s determination it has jurisdiction over the claims, the Board contended that although Heinrich requested declaratory and equitable relief, her claim is essentially for past and future money damages, and that governmental immunity therefore bars her suit. The court of appeals disagreed, holding that “a party may bring a suit seeking declaratory relief against state officials who allegedly act without legal or statutory authority and such suit is not a ‘suit against the state.’” The supreme court affirmed in part and reversed in part. It held that Heinrich’s retrospective damages claims must be dismissed as barred by governmental immunity. However, the remaining claims alleged against the Board members in their official capacity were remanded to the trial court for further proceedings.



FIRST DISTRICT COURT OF APPEALS

Haden v. David J. Sacks, P.C. d/b/a Sacks & Associates, No. 01-03-00025-CV, 2009 WL 1270372 (May 7, 2009) (Radack, J.).

Significance: Section 31.002(e) of the Civil Practice & Remedies Code (the turnover statute) may be used to recover post-judgment attorney’s fees incurred by a judgment creditor for work done in bankruptcy court resulting from a judgment debtor’s post-judgment bankruptcy filing.

Holding: The trial court did not abuse its discretion by interpreting section 31.002(e) as authorizing recovery of reasonable costs and attorney’s fees incurred by a law firm in its efforts to secure turnover relief and to seek and obtain dismissal of judgment debtor’s personal bankruptcy petition.

Facts: Sacks & Associates (“Sacks”) obtained a judgment against Charles Haden for breach of contract and attorney’s fees. When Haden did not supersede the judgment pending the appeal, Sacks initiated proceedings to discover nonexempt assets. Sacks requested relief authorized by section 31.002(e) to (1) issue a turnover order, (2) appoint a receiver, and (3) grant injunctive relief to prevent post-judgment transfer of assets by Haden. Although the trial court granted all of its requests, Sacks obtained only partial satisfaction before Haden filed a bankruptcy petition in federal court. Sacks, appearing through independent bankruptcy counsel in Haden’s bankruptcy case, asserted its rights as a judgment creditor and challenged Haden’s declaration of bankruptcy. The bankruptcy court dismissed Haden’s bankruptcy filing with prejudice. Once the bankruptcy proceedings concluded, Sacks sought to recover reasonable costs and attorney’s fees incurred as a consequence of Haden’s bankruptcy petition. The trial court granted Sacks’s request, and Haden appealed. The First Court of Appeals affirmed.

Houston Appellate Calendar

June 2009 through August 2009


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

Robert Dubose presenting "Our Brains Are Being Re-Wired: How Reading is Changing and Why Brief Writers Must Adapt."

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, June 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: 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.


July 3:

Independence Day Eve

The following clerk’s offices will be closed:

  • Fifth Circuit


July 16:

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, July 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: 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.


August 20:

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, 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.

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.