Features for November 2010

Welcome to the November 2010 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

A brief word about the revamped newsletter


Collision With Destiny: Justice Sherry Radack, Chief Justice of the First Court of Appeals by Justice Wanda Fowler (Ret.)

If Something's Worth Doing, It's Worth Doing Right: Justice Terrie Livingston, Chief Justice of the Second Court of Appeals
by Justice Wanda Fowler (Ret.)

Justice Bill Boyce, 14th Court of Appeals, discusses effective legal writing and the U.S. Supreme Court's opinion in Capterton v. A.T. Massey Coal Co.

DID YOU KNOW . . . ?
by JoAnn Storey

Case updates for the First and Fourteenth Courts of Appeals
by Lucy Forbes, The Forbes Firm, PLLC, and Jessica Zavadil, Wright Brown Close, LLP


Welcome to the inaugural edition of the newly revamped The Appellate Lawyer, the newsletter of the HBA Appellate Practice Section! Every other month you will receive an e-mail like this that will include a link to the columns in the newsletter. Each newsletter will include four columns:

  1. “Rewrite this Sentence.” A column by Justice Bill Boyce in which he discusses a sentence from a United States Supreme Court opinion.

  2. “Did You Know?” A column by JoAnn Storey highlighting an interesting, useful, or curious fact related to appellate law or appellate practice.

  3. Profiles of the Justices. A column featuring a profile of one or two justices on the courts of appeals in Texas. This month’s newsletter begins those profiles with interviews of Chief Justice Sherry Radack of the First Court of Appeals and Chief Justice Terrie Livingston of the Second Court of Appeals.

  4. Case Summaries. This column will highlight cases from the First and Fourteenth Courts of Appeals that focus on procedure or are otherwise noteworthy.

From time to time other columns may appear, depending on the committee's ability to twist the arms of experienced practitioners to share their wisdom. But you can always expect to see the four columns just listed.

The members of the newsletter committee are listed on the right side of this page. The technical editors, responsible for producing the bi-monthly newsletter, are Stephen Barrick and Derek Bauman. We could not have done this without them.

If you have any comments about anything you read in the newsletter or have a suggestion for one of the columns, please e-mail us at submissions@hbaappellatelawyer.org.

Collision With Destiny: Justice Sherry Radack

by Hon. Wanda Fowler (Ret.), Wright Brown & Close, LLP

Sherry Radack is Chief Justice of the First Court of Appeals and, soon, she will be chief of two other groups. This year she will chair the Council of Chief Justices, comprised of the Chief Justices of the Courts of Appeals in Texas. In years when the Legislature meets, the Chair of the Council represents all of the Texas Courts of Appeals before the Legislature. Her primary purpose will be to work with the Legislature on the budgets for the courts of appeals. It is an exhausting job requiring patience, persistence, diplomacy, and maybe a little bit of arm-twisting here and there.

In November of 2011 Chief Justice Radack will become President of the Council for Chief Judges of the State Court of Appeals. An arm of the National Center for State Courts, this organization is comprised of the Chief Judges of the state courts of appeals. Justice Radack explained that its purpose is primarily educational. “Chief Judges have common problems administering their courts, [preparing] budgets, and [dealing with] their Legislatures,” she says.

This all makes it sound as if Justice Radack has been a judge for years. She has, but probably not as long as you think. In fact, she might not have been a lawyer but for a collision with destiny—literally.

Justice Radack was born in Houston, graduated from Bellaire High School, and from Rice University with a degree in foreign languages—primarily in French and Spanish. She began teaching French, Spanish, and sometimes German in middle school in the Alief School District—at that time one of the best districts. As she says, she taught middle school because she was “too young to teach high school.” In the meantime, she married her high school sweetheart, Steve Radack, and had four boys. After she had the boys, she stopped teaching, but at some point she and her husband began several small businesses; they owned several lighting stores and had the Famous Amos Chocolate Chips kiosk in the Galleria before the company went national.

This might have been “all she wrote” for Justice Radack and the appellate section. But, in 1986, with four boys between the ages of 9 and 2, she had a severely debilitating car accident. She was in physical therapy and speech therapy for a year. She had to relearn how to speak; she also was left with an oral comprehension deficit and a gap in math skills. To regain these skills she spent hundreds of hours on computer programs. Her therapists suggested that she study SAT materials and that she study for and take the GRE or the LSAT as a tool to improve her language and math skills. Had the GRE not been so heavily math oriented, she says she would have been a speech pathologist because it so profoundly affected her life. Instead, she took the LSAT—and did very well. And thus began her law career.

She attended the University of Houston Law School. There, she would tape the lectures, type them each night, and then read them. Small wonder she was a top student. Upon graduating in 1991 she began her practice at Bracewell & Patterson (the predecessor to Bracewell & Giuliani). She was elected a district judge in 1998 and took office in 1999. In 2001, she was appointed to the First Court of Appeals as an associate Justice and in 2002 was appointed Chief Justice.

When asked what she likes most about her job, she said that she feels like she’s “working on a puzzle that she has to get right.” “Every day I learn something new.”

Justice Radack also had some useful comments on legal issues that might interest readers:
  • Bench briefs – Usually they’re not that helpful for argument because the parties give them to the justices just before argument begins. To be assimilated for argument they really should be filed a week beforehand. Chronologies can often be very helpful.

  • Oral Arguments – Justice Radack was unable to say which arguments were the best and why. Generally, “it is not so much what you say”—at that point they know your case as well as you do (or better)—“but how you say it.” “The best oral arguments are like a good conversation with give and take, and not with the lawyer simply trying to get in all his points.” She always begins arguments by telling the lawyers what, in her view, is the most important issue and asking them to address it.

  • Cases of First Impression – Cases of first impression she approaches just like other cases: she looks at the law and then applies the principles from the law. She always looks at any relevant law from other states.

  • Judicial Philosophy – Her court is an error correcting court and the judges on it are supposed to follow the law. In addition, having been a trial judge, she has the utmost reverence for juries. She presided over 100 trials and saw how hard the jurors worked to “get it right.” As a result, she does “not like to disturb jury verdicts.So what about Justice Radack’s personal life?
When she is not judging she loves to read history. Oh, and she also has 1200 orchid plants she keeps in two greenhouses. At any given time as many as 120 orchids might be blooming.

Justice Radack recently was re-elected to the Court for a six-year term.

If Something's Worth Doing, It's Worth Doing Right: Justice Terrie Livingston

by Hon. Wanda Fowler (Ret.), Wright Brown & Close, LLP

Terrie Livingston, Chief Justice of the Second Court of Appeals in Fort Worth, is a relative newcomer to her current position, but not to the court. Chief Justice Livingston was appointed Chief by Governor Perry in April of this year. Before that, she was an Associate Justice on the court for 16 ½ years. Seven judges are on the court.

Justice Livingston had an inauspicious beginning, having been born in Atlanta, Georgia, but by the time she was one year old her family had moved to the town she still calls home—Fort Worth. There wasn’t any one event that changed or shaped her life—“more like 30-40,” she said with a laugh. But if she had to point to one thing, it would be her father’s influence. With no sons and two daughters, he always told them they could be whatever they wanted to be and gave them healthy doses of old adages such as, “If something’s worth doing, it’s worth doing right.” She took these to heart.

She didn’t know she was going to be a lawyer, and you wouldn’t have been able to tell from looking at her family: her father was an electrical engineer and her older sister was an anesthesiologist. But Justice Livingston didn’t have that scientific bent. When she started Texas Tech, she didn’t know what she wanted to major in, but she “knew she liked political science and government” so she started in the political science department. There she found a new sub-category: pre-law. Practicing lawyers taught the pre-law courses using the Socratic method. Her first pre-law course was in criminal law. After that, she was “hooked.” She obtained her B.A. with distinction and honors.

She went directly from Texas Tech to law school at U.T.—something her Aggie father forgave her for since A & M had no law school. While in law school, she had three part-time jobs as a law clerk for three different governmental agencies: the Texas Attorney General’s Special Prosecutor Division, the Appellate Division of the Tarrant County District Attorney’s Office, and the legal department of the Texas Secretary of State. In her second year of law school she would encounter a law professor who would have a lasting affect on her future practice; the venerable Stanley Johansson taught her property and probate and guardianship law. He kindled her interests in those areas, and the fire would never fade.

In 1980, when she graduated from law school, she returned home to Fort Worth and began practicing with a small firm specializing mainly in estate planning, probate, guardianship, and real estate. Fifty percent of the practice was litigation. Four years later, she started her own firm doing some of the same things as before, plus banking and small business litigation; she later merged with several other lawyers; and finally, the last two years before she went on the bench, she practiced by herself. Throughout this time she was heavily involved in bar activities in Tarrant County and Fort Worth. She decided to run for judge in 1994 and initially was considering a probate bench, but when eight other people filed for that spot, she turned to her long-term goal—an appellate judge. She was elected in 1994 and took office in December of 1994.

Like most judges, Justice Livingston has definite opinions about things lawyers should and shouldn’t do on appeal.
  • Bench Exhibits – Usually bench exhibits are useful especially when they contain demonstrative exhibits such as a plat showing boundaries or a timeline or a summary of a lengthy procedural issue. She and most of the other judges on her court review the upcoming week’s cases the weekend before. So for them, a bench exhibit would be most useful if filed before the weekend. She says people often will put into bench exhibits things they should have put into the appendix: “People underestimate the power of an exhibit attached in the appendix to the brief.”

  • Oral Arguments – The most effective arguments are those in which the lawyer “recognizes the weakness of her case and tells the judges why the outcome should still be in her favor.” Likewise, the least effective arguments are those presented by a lawyer who refuses to recognize the weaknesses of the case. Finally, it’s important at argument to close properly and tell the judges precisely what you want them to do. Sometimes a party will need very specific relief; if so, you should state it in your closing, especially if you didn’t state it in the brief.

  • Cases of First Impression – “Cases of first impression often require a different approach.” She finds herself going to secondary materials—such as Am. Jur, Tex. Jur, insurance treatises, criminal law treatises, advanced seminars—when she has a case of first impression. She also will look at the law of other states and to federal law for guidance. Three or four cases a year are cases of first impression.

  • Judicial Philosophy – When asked about her judicial philosophy, her father’s adages showed their continuing influence. “Try your best to get it right,” she responded. “Try not to create things out of whole cloth and stick to the arguments made by the parties.” She and the other justices on her Court are “pretty cautious about overruling our court’s precedent.” Invariably when her court overrules its own precedent, that is done by an en banc panel.
What is Justice Livingston’s favorite thing about being a court of appeals judge? Those times “when you get a case that grabs you and you can’t find enough information about it; the one that sparks that curiosity in you, whether it’s an issue or an aspect of procedure, and you really want to learn everything about the case.”

Justice Livingston does have a life off the bench, although her new position has cut into her free time. When asked what she most likes to do when she isn’t judging, she immediately responded with exuberance, “Kayaking!” She’s been on several overnight trips on Texas rivers and lakes and is hoping to go on a ten-day kayaking trip to Scotland this May.

Justice Livingston was re-elected this November, but will be on the ballot again in 2012 running for a full 6-year term.

Rewrite This Sentence

This is the inaugural submission for a regular column with the audacious purpose of rewriting United States Supreme Court opinions. Not whole opinions, just portions of them.

Put aside for a moment the understandable concern about hubris, delusions of grandeur, and compulsive behavior. There is a purpose to this exercise, and it goes beyond the mere thrill (such as it is) of purporting to edit Justice Scalia’s work product.

The purpose here is to use Supreme Court opinions as a vehicle for exploring the choices that underlie legal writing. Opinions, like briefs, are a species of legal writing. Opinions, like briefs, use legal writing to communicate information on multiple levels simultaneously.

Some of those levels are direct and closely linked to specific word choices. Consider the emphatic terms “affirmed” and “reversed.” Or the still-pretty-emphatic-but-need-to-keep-reading impact of the phrase “affirmed in part and reversed in part.”

Other levels are more subtle. An opinion can communicate information by what it says, and by what it does not say. It can frame a holding broadly in terms of what a governing legal precept requires the actor to do, or more narrowly in terms of what the actor cannot do. It can say what the limit is, or only that this is just too much. Supple words like “reasonable” may burrow into an otherwise stout-sounding standard, making it more easily adaptable to the particular circumstances of future litigants.

Enough with the abstract musings. To kick things off, let’s look at a sentence from Justice Kennedy’s majority opinion in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009).

Much of the attention garnered by Caperton has focused on the sentences announcing a new recusal standard. Under this standard, an appellate judge violated the Fourteenth Amendment’s Due Process Clause when he denied a recusal motion prompted by campaign spending in support of the judge’s election to the Supreme Court of Appeals of West Virginia.

The Caperton sentence I have in mind is much less sexy. But it illustrates the effective use of lists.

In the course of discussing considerations that go into deciding recusal motions, Justice Kennedy wrote this sentence: “Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work.Id. at 2263 (emphasis added).

The first time I read this sentence, I thought to myself: If my daughter wrote this sentence, I would circle all the “ands” and tell her to start over. Then I read it again. And again.

If only efficiency mattered, I would rewrite Justice Kennedy’s sentence like this: “Judges who decide recusal motions must consider these factors, among others: (1) precedent; (2) stare decisis; (3) the Constitution’s text; (4) the law’s purpose; (5) logic; (6) scholarship; (7) experience; (8) common sense; (9) fairness; (10) disinterest; and (11) neutrality.” It frequently is tempting to use this format in opinion writing. At the price of boredom, this format quickly conveys a lot of information in a small space.

But efficiency is not the only thing that matters in Justice Kennedy’s sentence. His sentence’s lyrical flow and its heavy use of “ands” convey a clear message: Recusal implicates many overlapping considerations, and the standard cannot be reduced in cookbook fashion to a simple recipe. Justice Kennedy’s sentence will not win a grammar award, but it is effective legal writing.

Equally effective is Chief Justice Roberts’s list in his Caperton dissent. There’s nothing lyrical about his dense, lengthy compilation of 40 unanswered questions and sub-questions. It goes on for pages. It defies being skimmed. And it too conveys a clear message: The majority has opened a huge can of worms by recognizing a due process right to recusal predicated on campaign spending in judicial elections, and the Supreme Court will come to regret having done so.

Two lists, two approaches. Both are powerful.

Have your own rewrite worthy suggestion? Send it to: submissions@hbaappellatelawyer.org

Did you know . . . ?

If the Texas Supreme Court does not rule on a motion for rehearing within 180 days of the date the motion is filed, the motion is denied by operation of law. Tex. Const. art. V, § 31(d).

-- JoAnn Storey

Have your own piece of procedural arcanum suggestion? Send it to: submissions@hbaappellatelawyer.org

Case Updates for October and November 2010

by Lucy Forbes, The Forbes Firm, PLLC, and Jessica Zavadil, Wright Brown Close, LLP

A. Court of Criminal Appeals Special Update

Brooks v. State, No. PD-0210-09 (Tex. Crim. App. Oct. 6, 2010)

Factual-sufficiency review: alive or dead?

Issues Addressed: Is factually sufficiency review still alive? Possibly not in criminal cases according a plurality opinion by the Texas Criminal Court of Appeals. The Texas Court of Criminal Appeals granted discretionary review specifically to address whether there is “any meaningful distinction” between a legal-sufficiency standard of review, as articulated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979), and a factual-sufficiency standard of review, as articulated by the Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In addition, the Court addressed the underlying question of “whether there is a need to retain both standards.” Brooks, slip op. at 2. The Court’s ultimate decision was expressed in a plurality opinion of four Judges, with two Judges concurring in the judgment, and four Judges dissenting.

Court’s Reasoning and Decision: The Court first introduced factual sufficiency review of the evidence in appeals from criminal convictions in Clewis. Since then, it had articulated the standard for reviewing the factual sufficiency of the evidence in various ways, summarizing the standard of review as follows:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt.

See Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). The Court’s plurality opinion, authored by Judge Hervey, articulated the difficulty in applying this standard as a tension between requiring courts of appeals to review the evidence “in a neutral light” while, at the same time, requiring that they not “sit as a thirteenth juror” or disagree with the jury’s determinations of credibility or the weight given to the evidence. The Court concluded this tension resulted in an inherent contradiction in the application of the Clewis factual sufficiency review, rendering it “barely distinguishable” from a legal sufficiency review. As a result, the plurality held that the legal and factual sufficiency standards of review “have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both.” The Court overruled Clewis and held that a legal sufficiency review is the only standard that an appellate court should apply in determining whether the evidence is sufficient to support the elements of a criminal offense that the State is required to prove. Brooks, slip op. at 2-3.

The concurring opinion, authored by Judge Cochran and joined by Judge Womack, observed that attempting a factual sufficiency review of the evidence in a criminal case is unworkable because the evidence “is either sufficient to support [a] conviction under the constitutionally mandated Jackson standard or it is not. It cannot be ‘semi-sufficient.’” Brooks, slip op. at 2 (Cochran, J, concurring). In the view of the concurring judges, criminal and civil standards of review depend on different burdens of proof and, “[l]ike oil and water, they do not mix.” Id. at 26. As a result, the concurring judges determined “it is time to consign the civil-law concept of factual sufficiency review in criminal cases to the dustbin of history.” Id.

In contrast, the dissenting opinion, authored by Judge Price, concluded that, because of the Texas constitutional and statutory bases supporting and requiring factual sufficiency review of the evidence, the Court “cannot simply decide it need not be ‘retained’ any longer absent a change in the constitutional and statutory provisions that confer that jurisdiction.” Brooks, slip op. at 2 (Price, J., dissenting). The dissent noted that, as recently as Watson, the Court held that the distinction between legal and factual sufficiency review “is a real one” and, in recent years, had consistently overruled similar arguments by the State seeking to overturn Clewis. Id. at 3. The dissenting judges criticized the plurality opinion as overturning the Court’s precedent while “fail[ing] even to pay lip service to the doctrine of stare decisis.” Id. at 10.

Impact on civil cases?: This update is meant only to highlight this significant decision, and the reader is commended to review the nearly 70 pages of plurality, concurring, and dissenting opinions for a fuller understanding. However, this astounding holding raises the question of whether factual sufficiency review can be maintained in civil cases at all, and if so, does such review need to be reformed or restated in some way? It is easy to envision such arguments being repackaged in a petition for review to the Texas Supreme Court. The plurality opinion in Brooks essentially says that, if a court of appeals honestly gives more than mere lip service to the idea that it must defer to a jury's determinations of credibility and the weight given to the evidence, then a factual sufficiency review -- looking at all the evidence in a "neutral" light -- is literally impossible and unworkable. As a result, factual sufficiency review cannot be maintained, even given the Texas Constitution's provision of conclusive jurisdiction over questions of fact to intermediate courts of appeal.

B. Fourteenth Court of Appeals Update September-November 10, 2010

1. Rapid Settlements, Ltd. v. Settlement Funding, LLC, No. 14-09-00637-CV, 2010 Tex. App. LEXIS 7412 (Tex. App.—Houston [14th Dist.] Sept. 9, 2010, no pet. h)

Segregate attorney’s fees during trial or you get to do it on remand

● Issue: Does a party forfeit recovery of attorney fees by failing to segregate them? No, not always. Here, while appellee failed to segregate its fees, it did not forfeit recovery of them because the evidence presented regarding the total amount of attorney fees that appellee incurred was some evidence of what the segregated amount should be.

● Relevant facts: Rapid Settlements, Ltd. appealed the trial court's order granting summary judgment in favor of appellee Settlement Funding, LLC d/b/a Peachtree Settlement Funding (hereinafter "Peachtree") and awarding Peachtree attorney's fees and costs in the amount of $ 171,863.91. Rapid Settlements is a factoring company that offers to buy an individual’s future income stream in exchange for an immediate lump sum payment. In this case, Rapid Settlements offered to purchase a future income stream to which William Maxwell was entitled. Rapid Settlements offered an immediate lump sum of $ 32,000 for the transfer of a portion of Maxwell's monthly payments to Rapid Settlements. Maxwell agreed, and the parties executed a transfer agreement. But Maxwell changed his mind and entered into a second agreement with Peachtree. The trial court ultimately concluded that Peachtree had the sole contractual right, title and interest in and to Maxwell's assigned structured settlement payments; and ordered Rapid Settlements to pay Peachtree $ 171,863.91 “for the reimbursement of Peachtree's necessary and reasonable costs and attorney's fees.”

At trial, Peachtree’s counsel also represented Maxwell (Maxwell was dismissed for lack of personal jurisdiction). Peachtree claimed that it was not required to segregate attorney’s fees incurred representing Maxwell from attorney’s fees incurred representing Peachtree because “[a]ll of these purportedly separate claims and parties depend upon a common nucleus of facts and the same legal arguments.” However, as the Texas Supreme Court has explained it is only when discrete legal services advance both a claim for which fees are recoverable and a claim for which fees are unrecoverable that fees need not be segregated.

● Outcome/holding: The Fourteenth Court reversed the portion of the trial court's judgment awarding appellee $ 171,863 in attorney fees and costs, severed that portion of the judgment, and remanded the matter for further proceedings. The court affirmed the remainder of the trial court's judgment. In doing so, the court concluded that while Peachtree did not meet its burden in segregating attorney’s fees between those incurred representing Maxwell and those incurred representing Peachtree, it did not forfeit its right to recover them. The court concluded that the evidence presented regarding the total amount of attorney’s fees it incurred is some evidence of what the segregated amount should be.

2. Zeno Digital Solutions, L.L.C. v. K Griff Investigations, Inc., No. 14-09-00473-CV, 2010 Tex. App. LEXIS 7505 (Tex. App.—Houston [14th Dist.] Sept. 14, 2010, no pet. h)

Lost profits evidence really does mean evidence of net profits

● Issue: Does a party fail to prove its lost profit damages award with reasonable certainty by failing to account for expenses in its calculations? Yes, in this case, because appellee, K Griff Investigations, Inc. (“K Griff”) did not prove net profits, from which expenses had to be subtracted, the evidence did not prove lost profit damages.

● Relevant facts: Appellant Zeno Digital Solutions, L.L.C. (“Zeno”) appealed from the trial court's judgment awarding lost profit damages to K Griff. Zeno argued that the trial court erred in awarding $ 64,069.50 in lost profits to K Griff because there is no evidence to support the award. K Griff is an investigation firm that provides various services, including background checks for employers, surveillance in workers' compensation and domestic cases, and civil process service for attorneys. Zeno sells document management solutions as well as hardware, scanners, printers, and facsimile machines. Zeno sold K Griff several copiers and facsimile machines, including two Ricoh digital copiers. For several months, these copiers had problems and were non-operational for days at a time. K Griff hired outside vendors to repair the machines. K Griff filed suit against Zeno for various causes of action asserting lost profit damages.

● Outcome/holding: The Fourteenth court reversed and rendered that K Griff take nothing on its lost profit damages award, but otherwise affirmed. The court agreed with Zeno that the evidence did not support the trial court's award of lost profit damages because K Griff failed to account for expenses in its calculations. By not doing so, K Griff failed to prove the amount of lost profit damages awarded by competent evidence with reasonable certainty. Instead of using net income in its calculations, K Griff used annual gross revenue figures for each department in its calculations. Because K Griff did not prove net profits, from which expenses had to be subtracted, the evidence did not prove lost profit damages.

3. In re Preston Croft, No. 14-10-00106-CV, 2010 Tex. App. LEXIS 7778 (Tex. App.--Houston [14th Dist.] Sept. 22, 2010, orig. proceeding)

Want income tax returns? It is your burden to show how they are relevant, material, and the information is not obtainable from any other source

● Issue: Does a party have to produce his tax returns upon request? No, not unless the party requesting such documents shows that the documents are relevant and material to the issues in the case.

● Relevant facts: In this original proceeding, Relator petitioned for a writ of mandamus to compel the judge to set aside his discovery order and two subsequent letter orders compelling him to produce his tax returns and other financial documents in the underlying action brought by real party in interest for breach of fiduciary duty, breach of contract, fraud, and minority shareholder oppression. Relator objected that the discovery was overly broad and not relevant.

● Outcome/Holding: The Fourteenth court conditionally granted the writ, in part, and directed the trial court to set aside those portions of its discovery orders that compelled Relator to produce his tax returns. In doing so, the Court concluded that with regard to financial documents (other than tax returns), Relator had the burden of showing that the documents were not relevant and failed to do so. But with regard to the tax returns, the real party in interest (the party seeking the documents) had the burden of showing why they were relevant and failed to do so. Real party in interest also failed to demonstrate that he could not obtain the information that he sought in the tax returns from another source. Indeed, he admitted in his response to Relator's petition that he could obtain the information in other financial documents, and such documents were relevant to those issues. Because real party had not met his burden of showing that Relator's tax returns were relevant and material to the issues in the case, the trial court abused its discretion in ordering the production of the tax returns.

4. Rawlins v. Rawlins, No. 14-09-00429-CV, 2010 Tex. App. LEXIS 8124 (Tex. App.—Houston [14th Dist.] Oct. 7, 2010, orig. proceeding)

Be careful for what you ask: Clerical error versus Judicial error.

● Issue: Does a trial court err when granting a judgment nunc pro tunc correcting a “start” date for child support on a Final Agreed Divorce Decree? In this case, it did. It was found that the error in the start date for child support was a judicial error and not a clerical error which could be corrected by a judgment nunc pro tunc.

●Relevant facts: This case was a consolidated appellate proceeding, consisting of an appeal and a petition for writ of mandamus, arising out of the trial court's granting of a motion for judgment nunc pro tunc in which the trial court changed dates in the Agreed Final Decree of Divorce.

On January 9, 2007, the trial court signed an Agreed Final Decree of Divorce, dissolving the marriage of appellant/relator Monica Darlene Rawlins (hereinafter "Mother") and appellee Robert Rawlins, Jr. (hereinafter "Father"). The Agreed Final Decree of Divorce provided for Father to pay child support for the couple's child. Over two years later, Father filed a motion for judgment nunc pro tunc, alleging that the Agreed Final Decree of Divorce contained a clerical error in the date child support was to begin. Specifically, Father alleged that the date of January 5, 2006 stated in the Agreed Final Decree of Divorce should have been January 5, 2007. Mother responded that the error was not a clerical error but a judicial error, and the trial court could not correct by judgment nunc pro tunc a judicial error after it lost plenary power over the judgment.

The trial court took judicial notice of the file and noted at the hearing that (1) the petition for divorce was filed on September 25, 2006 and, according to the petition, the parties did not cease to live together until September 8, 2006; and (2) there were temporary orders entered on October 10, 2006 that indicated child support was to begin October 21, 2006. Based on this information, the trial court concluded the dates on pages one and seventeen of the Agreed Final Decree of Divorce were clerical errors. The trial court then signed an order that the date on which child support was to begin should have read "January 5, 2007" and not "January 5, 2006."

Mother appealed, contending that the trial court erred by granting the judgment nunc pro tunc because it was a judicial error not a clerical error. When deciding whether an error is clerical or judicial, this court must look to the judgment actually rendered and not to the judgment that should or might have been rendered. Evidence to support this may be in the form of oral testimony of witnesses, written documents, the court's docket, and the judge's personal recollection.

Neither party presented evidence at the hearing on the motion for judgment nunc pro tunc that the trial court rendered a different judgment in writing or orally prior to signing the Agreed Final Decree of Divorce. The only evidence in the record regarding the contents of the judgment the trial court actually rendered is the signed Agreed Final Decree of Divorce.

● Outcome/holding: The Fourteenth Court held that because nothing in the record showed that there was a discrepancy between the judgment as rendered and the judgment as entered, the error in the child-support state date was a judicial error and the trial court erred by granting a judgment nunc pro tunc, changing the date from January 5, 2006 to January 5, 2007 on page 17 of the Agreed Final Decree of Divorce.

● Interesting comments by the Court: The Court makes some interesting comments in this case. The Court states that, “this outcome, while compelled by current Texas law, is admittedly a repugnant result.” The Court notes that Mother—an attorney in Texas—will receive a windfall of undeserved child-support payments encompassing a period of time when the family was still intact and living together.

5. Abatement Inc. v. Williams, No. 14-09-00523-CV, 2010 Tex. App. LEXIS 8121 (Tex. App.—Houston [14th Dist.] Oct. 7, 2010, no pet. h.)

Choose your definitions wisely; those intended for claims in administrative proceedings do not necessarily apply to claims in district court proceedings

●Issue: Did the trial court err in holding a company and president, jointly and severally liable for breach of an employment agreement with appellee employee? Under these facts, it did. The Court concluded that the trial court erred in using the definition of employer found in Tex. Lab. Code Ann. § 61.001 as a basis for finding the president individually liable for the company's failure to pay profits to the employee, and that the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., does not provide a private cause of action for failure to pay wages.

● Relevant facts: Abatement was in the business of asbestos abatement. Manring was Abatement's president, and Gary Laughlin was its vice president. Williams was involved in the construction business. Hurricane Rita caused extensive damage in portions of Texas. Abatement hired Williams and his crew to help repair some apartment buildings that had been damaged. There was no written contract but the parties agreed that Abatement promised to and did pay Williams $ 1,000 a week for his work. Williams claims that Abatement also promised to pay him a percentage of the profits of any job he worked on. Williams sued Abatement and Abatement’s president for these profits. The jury found in favor of Williams. Abatement and its president appealed. Williams sought to hold Manring (the company president) individually liable for unpaid profits is under chapter 61 of the Labor Code.

● Outcome/holding: The judgment was reversed as to the portion of the judgment against the president individually and rendered that the employee take nothing against the president. The remainder of the judgment was affirmed. In its reasoning, the Court held that Chapter 61 provides a detailed administrative enforcement scheme and allows the possibility for enforcement by the attorney general, and nothing in language of chapter 61 shows any intent to also allow a private right of action. The Court further held that the Fair Labor Standards Act (FLSA) provides a private cause of action for failure to pay minimum wages and overtime pay; unlike chapter 61, it does not provide a private cause of action for other failures to pay wages, such as the one Williams alleged in this case.

6. In re Kvaerner/IHI, No. 14-10-00538-CV, 2010 Tex. App. LEXIS 8244 (Tex. App.—Houston [14th Dist.] Oct. 13, 2010, orig. proceeding)

No jurisdiction to review interlocutory rulings of an arbitrator, such as locale determination

● Issue: Does a trial court have jurisdiction to change the locale of the arbitration of the claims as determined by the AAA? No, before an arbitration order may be considered final, the arbitrators must have intended for the award to represent their complete determination of all claims submitted to them. An interlocutory ruling by an arbitrator does not meet this standard; such a ruling, including a locale determination, is not subject to judicial review.

● Relevant facts: In this case, the AAA requested that the parties submit “locale contentions” so that it could make its locale determination. The AAA then issued an order that all arbitration hearings would be held in San Diego, CA. One of the parties then filed a motion to clarify this order and the trial court signed order directing that the arbitration take place in Houston. The AAA then reversed itself and notified the parties that the hearings would take place in Houston in accordance with the trial court’s order. This mandamus proceeding ensued and the Court conditionally granted the petition.

● Outcome/holding: The Court concluded that the trial court abused its discretion by ordering the parties to arbitrate their dispute in Houston. The reasoning behind this holding is that that before an arbitration order may be considered “final,” the arbitrators must have intended for the award to represent their complete determination of all claims submitted to them. A ruling regarding a locale determination is not final and any appeal after the conclusion of the arbitration would vitiate relator’s right to have the AAA decide the locale issue.

7. Wolf Hollow I, L.P. v. El Paso Mktg., L.P., No. 14-09-001180-CV, 2010 Tex. App. LEXIS 8600 (Tex. App.—Houston [14th Dist.] Oct. 28, 2010, no pet. h)

Negligence claim not subject to economic loss rule because negligence resulted in physical damage to parts of power generating facility, which were not the subject of the contract between the parties.

● Issue: Economic Loss Rule: Is a party precluded from recovery to damage unrelated to contract under the economic loss rule? No.

● Relevant facts: Wolf Hollow appealed from a final judgment entered by the trial court following its grant of several motions for summary judgment filed by appellees, El Paso Marketing, L.P. ("El Paso") and Enterprise Texas Pipeline, LLC ("Enterprise"). The disputes between the parties all revolve around natural gas supply and transportation contracts. El Paso also filed a third-party petition against Enterprise, seeking to recover contribution and indemnity for any liability that El Paso might have to Wolf Hollow. Wolf Hollow then filed a negligence cross-claim against Enterprise. According to Wolf Hollow, Enterprise was negligent when it (1) delivered gas that failed to comply with the quality specifications contained in the Transportation Agreement, and (2) permitted the four interruptions in gas delivery. From Enterprise, Wolf Hollow sought to recover: (1) the cost of replacement power, (2) amounts for damage to the Granbury plant, (3) sums expended in mitigation of damages, (4) the cost to purchase additional fuel treatment equipment, and (5) the costs of cleaning and refurbishing turbines at the Granbury facility. All issues in the litigation were resolved by the trial court's rulings on a series of summary judgment motions filed by El Paso and Enterprise. In its rulings, the trial court disposed of Wolf Hollow's claims against El Paso on multiple grounds. Also, without specifying the grounds, the trial court granted Enterprise's motion for summary judgment on Wolf Hollow's negligence claim. Following the issuance of its summary judgment orders, the trial court entered a final judgment ordering that Wolf Hollow take nothing on its claims against El Paso and Enterprise.

In nine issues on appeal, Wolf Hollow challenged the trial court's granting of El Paso's and Enterprise's motions for summary judgment. Eight of Wolf Hollow's issues addressed El Paso's motions for summary judgment. Wolf Hollow's ninth issue addressed summary judgment on its negligence cause of action against Enterprise.

Wolf Hollow alleged Enterprise negligently performed its duties under that contract by delivering contaminated gas to the plant. Wolf Hollow further alleged that this contaminated natural gas damaged the turbines and other plant equipment. Because Wolf Hollow alleges that Enterprise's negligence resulted in physical damage to parts of Wolf Hollow's power generating facility, which were not the subject of the agreement between Wolf Hollow and Enterprise, the economic loss rule does not preclude those specific claims.

● Outcome/holding: The Fourteenth Court sustained Wolf Hollow's ninth issue on appeal, and reverse the judgment of the trial court as it related to Wolf Hollow's negligence claim against Enterprise, seeking relief for property damage allegedly caused to Wolf Hollow's power plant, and remanded that claim to the trial court for further proceedings consistent with this opinion.

8. Ramirez v. Suez Energy Res. NA, Inc., No. 14-09-00856-CV, 2010 Tex. App. LEXIS 8414 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no pet. h.)

Permissive venue statute abuse of discretion

● Issue: Did the trial court abuse its discretion in transferring venue to Harris County from Webb County under section 15.035 (a), the permissive venue statue governing performance of a written contract? Yes, in this case it did. The court found that nothing in the contract mandated payments in Harris County and the notice section of the contract, in fact, permitted payments to be made outside of Harris County.

●Outcome/holding: The Court reversed the trial court’s venue determination and remanded with instructions to transfer venue from Harris County to Webb County.

C. First Court of Appeals Case Update (September-November 10, 2010)

1. Richards v. Transocean, Inc., No. 01-08-00923-CV, 2010 Tex. App. LEXIS 8344 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, no pet. h) (op. on rehearing)

Be sure to address every theory of liability in a pleading when seeking a final summary judgment

● Issue: Does a motion for summary judgment have to address every theory of liability within the plaintiffs’ live pleadings? Yes, to be sustained on appeal, every theory of liability must be addressed. The safest course is to individually attack each element of each of cause action under a distinct heading when filing a no-evidence motion.

● Relevant facts: In this opinion on rehearing, Appellants challenged the grant of summary judgment alleging that appellee’s motion for summary judgment failed to attack appellants’ joint enterprise liability theory. The Court agreed and concluded that appellee’s motion for summary judgment could not be fairly read to contend that there was no evidence to establish that appellee had a vicarious liability for the liability of another based on joint enterprise theory.

●Outcome/holding: Because appellee did not amend its motion to include a ground specifically addressing appellants’ joint enterprise liability theory, the trial court erred in rendering a take-nothing judgment. The Court then reversed and remanded for further proceedings.

2. Scipiano v. Smith-Moffett, No. 01-09-00880-CV, 2010 Tex. App. LEXIS 8349 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, no pet. h).

Incorrectly served? Raise the issue by a motion to quash rather than a special appearance

●Issue: Can a challenge for defective service of proceed be made in a special appearance? No, not under this case.

● Relevant facts: In his only issue, the appellant argued that the trial court should have granted his special appearance on the basis that appellee failed to serve him with process under the Inter-American Convention on Letters Rogatory (IAC).

● Outcome/holding: The Court held that defective service of process must be challenged by a motion to quash rather than by a special appearance. Thus, the trial court did not err in denying on the special appearance on this basis.

3. Zimmerman v. Anaya, No. 01-07-00570-CV, 2010 Tex. App. LEXIS 8967 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010) (op. on remand)

Sue the supported medical school hospital first, then you are barred from suing resident physician individually under election of remedies

● Issue: Can a resident physician is entitled to bring an interlocutory appeal like any other state employee for the denial of a motion for summary judgment on immunity under section 51.014(5)? In the first appeal, the First Court of Appeals said no. The Texas Supreme Court disagreed and stated yes, when the underlying litigation arises from a residency program coordinated through a supported medical school, the resident is entitled to bring an interlocutory appeal like any other state employee. The Texas Supreme Court remanded the appeal for consideration on the merits.

● Relevant facts: Wendy Anaya sued Dr. Zimmerman for alleged negligence during the delivery of her son which caused him to suffer personal injuries and death. Dr. Zimmerman moved for immunity because Anaya made an irrevocable election to sue Baylor first and is thus barred from suing him. On remand, the court had to consider whether Dr. Zimmerman conclusively established that Anaya, having irrevocably elected to sue Baylor first, is barred from suing him. Anaya’s live pleading alleged that Dr. Zimmerman acted negligently in the delivery of her son. These allegations do not involve conduct that strays outside the scope of Baylor’s coordinated or cooperative activities at Ben Taub through Baylor’s residency program.

● Outcome/holding: Dr. Zimmerman conclusively proved under section 101.106 of the Civil Practice and Remedies Code that Anaya’s claim against him was barred. Thus, because the trial court erred in denying Dr. Zimmerman’s motion for summary judgment, the Court reversed and rendered judgment dismissing Anaya’s claims with prejudice.

4. Morris Indus. v. Trident Steel Corp., No. 01-09-01094-CV, 2010 Tex. App. LEXIS 8958 (Tex. App.—Houston [1st Dist. ] Nov. 10, 2010, no pet. h.)

If the party seeking a special appearance negates all jurisdictional allegations, a continuance is appropriate to conduct jurisdictional discovery

● Issue: The importance of jurisdictional discovery: Does the court err in denying a motion to continue a special appearance hearing in order to conduct more discovery on the jurisdictional issue? Not typically, unless the party asserting the lack of personal jurisdiction negates all jurisdictional allegations. In that case, the burden shifts to the plaintiff to bring forth evidence establishing personal jurisdiction making discovery vital.

● Relevant facts: In this case, Morris Industries, Inc. filed a special appearance asserting lack of personal jurisdiction. Morris successfully negated all jurisdictional allegations. Trident move for a continuance of hearing in order to conduct more discovery to establish personal jurisdiction. The trial court denied the special appearance and motion to continue.

● Outcome/holding: In this case, the Court held that because Morris successfully negated all jurisdictional allegations, it was appropriate to reverse and remand the trial court’s order denying the special appearance, and remand the case to allow the trial court to consider Trident’s request for additional time to conduct jurisdictional discovery.

5. Ronald Engh v. Michael Reardon and Panagiotis Kougias, M.D., No. 01-09-00017-CV, 2010 Tex. App. LEXIS 8954 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.)

Reversal of a motion to dismiss under 74.351

● Issue: Does a plaintiff’s expert’s report have to set forth individual standards of care for each defendant physician under section 74.351 of the Texas Civil Practice and Remedies Code? That depends. In this case it was not necessary to state distinct standards of care for each of the defendant doctors because the expert was not attempting to state a collective standard of care applicable to members of two or more different professions nor was he attempting to state a collective standard of care applicable to physicians with different specializations. Rather, the expert was commenting on the failure of a “uniform duty” owed by two vascular surgeons to the same patient with respect to a single surgical procedure.

●Relevant facts: The appellees performed a femorocaval bypass on the appellant. Appellant claimed that a surgical clip was placed on his right ureter during that operation and that the doctors failed to remove the clip prior to closing him up. In the weeks and months following the surgery, appellant’s right kidney begin to fail until ultimately it had to be removed. Appellant filed a medical practice claim against the appellees and three other defendants. Appellant timely served each defendant with an expert report. The appellees objected to the report and filed a motion to dismiss which was granted.

●Outcome/holding: The Court concluded that the trial court would have abused its discretion had it found that Dr. Verta’s report was insufficient with respect to standard of care, breach or causation, or that Dr. Verta was unqualified to opine on the issue of causation. Thus, the Court reversed the order granting the motion to dismiss and reversed and remanded the case for further proceedings.