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.