Features for October 2011

Welcome to the October 2011 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Chief Justice Carolyn Wright: Forging Relationships by Justice Wanda Fowler (Ret.)

Chief Justice Steve McKeithen: “The Gentleman Generalist” by J. Stephen Barrick, Hicks Thomas, LLP

Justice Bill Boyce, 14th Court of Appeals, considers the impact of dictation on legal prose before the advent of modern word processing.

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 & Close, LLP

Chief Justice Carolyn Wright: Forging Relationships

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

If you really want to know who Chief Justice Carolyn Wright is, you have to start with four facts: she was a military brat; she is African-American; she was born in her mother’s home state, Texas; and she overcomes any adversity she encounters by forging relationships.

As the daughter of a military man, Justice Wright lived on military bases and attended military schools on base—which were integrated long before public schools in the United States. When there was no military school, she attended small private schools comprised mainly of African-Americans, Asians, and Native Americans. When she was a young child living in the South, her parents were able to shield her from racial prejudice by carefully monitoring where they went. But during middle school and her first year of high school, she was completely removed from any racially-charged settings when her father was stationed on Kiushu, the southern-most and most rural of the Japanese islands. At the base on Kiushu she played every sport she could: basketball, track and field, volleyball, and softball—and excelled at each. She also sang in the choir and learned to write Japanese from the librarian, who taught her the traditional way—while Justice Wright sat at a low table on her knees (not an easy task for one of her height). The intent behind this study technique was to instill discipline. Her later life certainly suggests that it worked.

Justice Wright loved Japan. But one day near the end of her freshman year in high school in the early 1960s, her father told her they were moving back to the States so that she could “learn how to be a black American.” Not having experienced segregation first hand, she was a little perplexed. But this conversation was to become a “major factor” in her life. They returned to Delaware to find a “country in total turmoil.”

Although life on the base remained the same, now when her family went on vacations off the base, she experienced what other black Americans experienced: segregated bathrooms, hotels, pools, and restaurants. It offended her that anyone would refuse to serve them, but especially that anyone would refuse to serve her father, who had been awarded the bronze star. That was the worst blow.

On the base Justice Wright continued to excel in academics, sports, and choir and was very popular. She was selected to represent her high school at Girls’ State. Having learned that life off the base wasn’t always as straightforward as life on the base, she was fearful that the girls would not be as accepting as military families—and this was before she learned she was the first African-American chosen to attend Girls’ State in Delaware. Fortunately, her fears were unfounded. She found that the girls “liked who they liked.” And they liked her. A group of girls pegged her as the perfect Attorney General because she was articulate and made her points well. There was just one problem with this scheme: Justice Wright didn’t know the first thing about running a campaign or about elections. She had never experienced an election; her parents had always voted absentee. So they struck a deal: her new friends ran the campaign while she wrote her speech. The speech must have been good, for she won and was Attorney General of Delaware for a day.

She decided she wanted to attend Strayer, a business college with a paralegal school, in Washington, D.C., because D.C. was only a few hours from her home. She was accepted and she signed up for a roommate in a dorm, not knowing that an African-American had never lived in a Strayer dorm. When she and her parents showed up for registration, the school administrators told her that there had been a mix-up and that there was a problem with her accommodations. Soon it became apparent that the college didn’t know she was African-American until she showed up to register and didn’t know what to do with her. Her father was incensed and demanded that she return to the base. But Justice Wright wanted to remain in D.C. She declared she would remain in D.C. and attend Strayer. Her father declared that if she stayed, she would not receive any money from him. The result of this stand-off certainly is not surprising: she stayed. The school placed her in an over-flow dorm off campus where, once again, she alone “integrated” the setting. And as she had done in the past—in the military schools, in the small private schools in the South, and at Girls’ State—she forged relationships and became good friends with her dorm mates. She began school, supporting herself with a job at the EEOC (and with money her mother sent on the sly).

At the EEOC she worked as a paralegal for Dr. James Jones. A few years later, Dr. Jones joined the administration of Walter Washington, the first African-American mayor of Washington, D.C., to become the Mayor’s youth czar; Dr. Jones brought Justice Wright with him. There was much work to be done. Inner-city D.C., like many inner cities across the nation, was experiencing much civil unrest. This was a tension-laden time, not just for Washington, D.C., but for all of the United States.

In April of 1968, not long after Justice Wright and Dr. Jones began work with Mayor Washington, Martin Luther King, Jr. was assassinated. Riots broke out in more than 100 cities across the United States. The D.C. riots lasted five days and took a great toll on the D.C. inner city. As many as 20,000 people swarmed the inner city and, at one point, rioting reached within five blocks of the White House. The occupation was the largest of any American City since the Civil War and by the time it ended, 12 had been killed, 1,097 injured, and over 6,100 arrested and 1,200 buildings had burned down, including over 900 businesses. Id. Justice Wright was in the middle of it all. When stability returned, Mayor Washington committed to rebuilding the City. As a member of Mayor Washington’s administration, Justice Wright “devoted a tremendous amount of time to rebuilding.”

Sometime after this, Dr. Jones stepped-up his mentoring. Justice Wright had obtained her bachelor’s degree in business from Howard and graduated from D.C. Teacher’s College while working for him. Dr. Jones told her she was too smart to stay with him; if she weren’t enrolled in law school by a specific date, she would lose her job. She heeded his warning and enrolled in law school at Howard University, keeping her job to pay her way. For this and all the other things he did for her, she credits him with “finishing my father’s work.”

The end of law school ushered in another new chapter in her life; by this time she had decided to move to Texas, where she had relatives and where she thought her parents would retire. (As a child in a military family she “was never from anywhere except where I was born.”) Looking back on this period of her life, she says that everything she did in D.C. was “necessary to adjust socially.” Her military upbringing and life itself on the military base was so different from civilian life. To some extent, she found it a bittersweet lesson, but when it was done, she was prepared for her move to Texas.

Initially, Texas proved to be a challenge. She first moved to Houston, home of her relatives and her birth, but couldn’t find any work. So she moved to Dallas, which she found less progressive and in some respects more segregated than Houston. No African-American practiced in the major Dallas law firms. But not one to be sidetracked from reaching her goal, she began her own family law practice, working with H. Ron White, a fellow Howard University Graduate. As she says, “Because I had forged relationships all my life with people of different races and colors, I worked it out.” She found mentors who were willing to help, such as Francis Maloney, a well-known family lawyer (who would later be a close colleague on the Fifth Court of Appeals). She sat second chair with Francis Maloney on at least one trial.

And Justice Wright continued to forge relationships. During this time she also helped a fellow African-American run for judge—as a Republican, which she says required those persuasive skills she must have exhibited at Girls’ State. In helping him, she met many people who would be crucial to her future political aspirations.

In 1983, when a position opened for associate judge in the family law courts, her relationships came through. The family law judges unanimously selected her for the position. Never one to take the easy road, she ran for a family district bench two years later as a Republican. She won in spite of having several opponents in the primary, and became the first African-American woman in Dallas to win a county-wide election. In that election, Justice Wright received a higher percentage of votes in Dallas County than Governor Clements. He noticed this, and the next time he came to town he stopped by to visit because he “wanted to know who’d beaten him” in percentages. After 1986, she never had an opponent. Nine years later, then Governor Bush appointed her to the Fifth Court of Appeals as an associate justice. On the retirement of Chief Justice Linda Thomas in 2009, Governor Perry appointed Justice Wright Chief Justice.

The Dallas Court of Appeals is the largest in the state, with 13 justices. Because of the court’s size, the Chief Justice position tends to have more administrative demands than the chief position on other courts. One of her first goals as Chief Justice was to secure electronic filing for the court. She was motivated to achieve this goal when a group of appellate judges from Brazil visited and she realized that “the Amazon had electronic filing, but the Dallas Court of Appeals didn’t.” Along with the chiefs on the Houston courts, who also were pushing for electronic filing, she was able to fast-forward the date the office of court administration had set for electronic filing. Electronic filing has been up and running in Dallas for months.

For those about to argue in the Fifth Court of Appeals, Justice Wright has the following suggestions and comments:
  • Bench Exhibits – If an exhibit is important, it should be in the appendix. Most of the time exhibits are filed too late to be useful at all. Furthermore, bench exhibits given just before argument begins are not useful. It is “terribly distracting to get new material during argument.”

  • Oral Arguments – The most effective arguments are ones in which the lawyer “isn’t hitting and missing all over the place.” An argument is effective when “it is narrow in focus” and the “lawyer presents her best arguments but also concedes weak arguments.”

  • Judicial Philosophy – Justice Wright believes in applying the law narrowly. Every time the law is applied, it becomes elastic and tends to expand. As a result, she strives to write opinions as narrowly as possible. In her opinion “it is more harmful to the law to expand it intentionally.” “If the legislature does its job and I do mine, I believe the process works.”
When asked what she likes most about being on the court of appeals, Justice Wright said without hesitation that she has enjoyed the study and research of the law, the dialogue between the justices at conference, and the intellectual stimulation from delving more deeply into many different aspects of the law. After serving on the trial bench and having to rely on lawyers because she had no law clerk, she has found it a luxury to spend time studying the law as she does now.

When she is not judging, Justice Wright is most likely traveling, listening to music, attending sporting events, or engaging in an activity at church. Not surprising for someone who has always lived life fully.

Chief Justice Steve McKeithen: "The Gentleman Generalist"

by J. Stephen Barrick, Hicks Thomas LLP

The most westerly county in Texas’s most easterly appellate district – the Ninth Court of Appeals in Beaumont – is Montgomery County, which originates much of the court’s caseload and is the home of its current Chief Justice, Steve McKeithen.

Justice McKeithen was first elected in 2002 – the first Republican to defeat an incumbent Democrat for a seat on the Beaumont Court of Appeals. Justice McKeithen lives in Conroe and commutes to work in Beaumont.

The son of a machinist, Justice McKeithen is the first in his family to finish high school. After graduation, he promptly married his high school sweetheart, Sherry, who is now an eighth-grade math teacher. Justice McKeithen attended the University of Houston, where he earned a bachelor’s degree in political science. After graduation he worked for Gates Rubber Company as a field representative.

Always knowing that he eventually wanted to become a lawyer and then a judge, Justice McKeithen went back to school and, in 1984, earned his J.D. from South Texas College of Law. He then opened his own general civil practice in Houston, providing legal services for everything from estate planning to litigation.

In 1988, Justice McKeithen joined the Montgomery County Attorney’s office and for two years prosecuted criminal cases in the County Courts at Law in Montgomery County. He then moved to the Civil Division, representing the County in civil actions in state and federal trial and appellate courts. Justice McKeithen was promoted to Civil Division Chief in 1993 and served in that capacity for over five years before returning to private practice, again as a general civil practitioner.

In 2002, the opportunity presented itself for Justice McKeithen to realize his dream of becoming a judge and he ran for Chief Justice of the Beaumont Court of Appeals and won. He subsequently won reelection in 2008.

As Chief Justice, Justice McKeithen has helped lower what had been a relatively high reversal rate for the Beaumont Court of Appeals. He was also successful in lobbying the legislature to add a fourth justice to the court, which has one of the highest case loads per justice in the state.

The Beaumont Court has four justices who sit weekly on rotating panels. Cases filed in the court are assigned to a justice and to a panel at intake. Historically, a slight majority of the court’s cases were civil, but in recent years the court’s caseload has become nearly two-thirds criminal. Justice McKeithen attributes this trend to tort reform, the economy, and other factors.

Oral argument in the Beaumont court is not granted in the majority of cases but the court will sometimes grant oral argument on the motion of one of the parties, even after it was initially denied. The court rarely has a bench memorandum or opinion in draft before oral argument, which means that oral argument is generally scheduled relatively soon after briefing is complete.

For counsel with appeals before the Beaumont Court of Appeals, Chief Justice McKeithen had the following suggestions:
  • Bench Exhibits – The court accepts bench exhibits that are filed and exchanged in advance. Justice McKeithen noted that bench exhibits are not helpful in all cases. In cases where they are useful, he finds poster boards and handouts more helpful than PowerPoint presentations.

  • Oral Arguments – Justice McKeithen emphasized that counsel should maintain eye contact with the panel, answer questions directly, avoid argument that simply restates the arguments in the brief, and avoid trying to be someone you are not. He said it is obvious to the court when counsel is putting on a show, or does not know the answer to a question, or is avoiding a weakness in the case. A frank and honest discussion of the issues is always the most effective.

  • Cases of First Impression – Justice McKeithen believes that true cases of first impression are very rare. In cases involving application of a statute, he focuses on the language of the statute itself. In cases involving common law issues, Justice McKeithen will consider cases from other contexts and jurisdictions and will attempt to follow accepted precedent as much as possible.

  • Electronic Briefs – the Beaumont Court of Appeals has not yet adopted electronic filing but tentatively plans to do so in November 2011. Justice McKeithen stated that he often reads briefs on a computer and he finds hyperlinked e-briefs useful but noted that e-briefs can be overdone with too many hyperlinks.
Chief Justice McKeithen and his wife have recently become empty nesters. Their son, Seth, is a student at the University of Texas and their daughter, Sarah, is a respiratory therapist in Conroe.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

A retired legal secretary once described to me the brief-writing process her boss used in the 1960s.

Long before the advent of desktop computers, Microsoft Word, and Westlaw, legal writing frequently unfolded as a largely oral process. The boss in question approached it that way. He rummaged around on his desk among stacks of paper and piles of open law books until he found the nugget for which he was searching. The lawyer leaned back in his chair; pondered for a while; and then dictated a paragraph as his secretary scribbled on a notepad in shorthand. Thus did the brief progress, paragraph by paragraph, until the dictation was complete; the notes were typed; and the brief was finished. The arduous task of preparing the brief on a typewriter kept the number of drafts to a minimum.

It was a different era. In a lot of different ways.

I thought about this oral writing process as I re-read Near v. Minnesota, 283 U.S. 697 (1931).

Near addressed a Minnesota statute targeting any person “‘engaged in the business of regularly or customarily producing, publishing, or circulating, having in possession, selling or giving away . . . a malicious, scandalous and defamatory newspaper, magazine, or other periodical . . . .’” Id. at 701 (quoting Mason’s Minnesota Statutes, 1927, § 10123-1). Persons engaging in such activity were deemed to be “guilty of a nuisance” and were subject to being enjoined in state district court from continuing to publish. Those who disregarded the injunction could be held in contempt and punished by a fine of not more than $1,000 or by imprisonment in the county jail for not more than 12 months.

Rest assured, the statute was not totally one-sided; it made available “the defense that the truth was published with good motives and for justifiable ends . . . .”

“Malicious, scandalous and defamatory” aptly described the work product of Jay Near, a muckraker who freely blended fact, opinion, speculation, outrage, and religious intolerance in a weekly newspaper called The Saturday Press. Chief among Near’s targets were the Minneapolis mayor, the police chief, and the county attorney. Near published a series of articles accusing the trio of cozying up to organized crime leaders and failing to investigate illicit activities. These articles earned Near an injunction under the Minnesota gag law, which was upheld by the Minnesota Supreme Court. Near appealed to the United States Supreme Court.

The Supreme Court invalidated Minnesota’s gag law as a violation of free speech rights protected under the First and Fourteenth Amendments. Chief Justice Charles Evans Hughes wrote the majority opinion, joined by Justices Roberts, Stone, Holmes, and Brandeis. The dissent was written by Justice Butler, joined by Justices Sutherland, McReynolds, and Van Devanter.

Said Chief Justice Hughes in an oft-quoted portion of the opinion: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.” Id. at 720. “Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” Id.

The drafting-by-dictation anecdote came to mind as I read another paragraph in the Near majority opinion. It came to mind because spoken sentences often are longer and harder to follow when reduced to print on the written page. Consider this paragraph from Near:

If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter – in particular that the matter consists of charges against public officers of official dereliction – and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the essence of censorship.

Id. at 713. I like the powerful ending. But the opening sentence launches the reader on a verbal triathlon.

I have not researched the process by which Chief Justice Hughes drafted opinions in general. I do not know if that sentence was dictated. In his book Minnesota Rag, author Fred W. Friendly recreates the conference at which the justices decided the outcome of Near and describes the opinion-writing process in general terms; that account does not provide details about the mechanics of drafting. But to my ear, the first sentence of this paragraph sounds like someone talking out loud. Or delivering a speech. The paragraph’s opening sentence stitches together at least four distinct concepts.

The statute allows public authorities to prosecute a publisher for printing scandalous and defamatory matter. The matter in this case focused on charges of dereliction against public officials. The publication will be suppressed unless the publisher can convince a judge that the challenged article is true and published with good motives. Further publication is punishable by contempt.

This is the same information in smaller – and much easier to read – bites. But I must admit that it loses some of its rhythm.

Perhaps the Chief Justice’s lengthy sentence was envisioned as a powerful oration when the opinion was read aloud from the bench. Perhaps it merely reflects a different approach to legal writing from a different era. Would Near read differently if modern word-processing equipment had been available in 1931? Would Near have greater or lesser impact if it were rewritten using current techniques to enhance reader comprehension? I will leave those questions hanging. It takes an appellate nerd to raise them; only an appellate nerd of the first order would attempt to provide answers.

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

Did you know . . . ?

A successor judge is authorized to make findings of fact and conclusions of law in a trial heard by his or her predecessor when the presiding judge has died, resigned, or become disabled during his or her term of office. See, e.g., Lykes Bros. S.S. Co. v. Benben, 601 S.W.2d 418, 420 (Tex. App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.); 2900 Smith, Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 744 n.6 (Tex. App.—Houston [14 Dist.] 2009, no pet.); Fidelity & Guar. Life Ins. Co. v. Pina, 165 S.W.3d 416, 421 (Tex. App.—Corpus Christi 2005, no pet.).

The rule does not apply, however, where the presiding judge did not render judgment before death, resignation, or disability. See 2900 Smith, 301 S.W.3d at 744 n.6.

Further, the rule does not authorize an appellate court to abate an appeal and remand for entry of findings of fact and conclusions of law where the judge who tried the case was replaced as a result of an election. See Corpus Christi Housing Auth. v. Esquivel, No. 13–10–00145–CV, 2011 WL 2395461, at *1 (Tex. App.—Corpus Christi 2011, no pet.); Liberty Mutual Fire Ins. v. Laca, 243 S.W.3d 791, 796 (Tex. App.—El Paso 2007, no pet.); Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 616 (Tex. App.—Dallas 2003, pet. denied).

-- JoAnn Storey

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

Case Updates for May, June, July, August 2011

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

Even if fundamental constitutional rights are at stake, do the appellate rules of procedure bar review of unpreserved error? Yes, even though no waiver was found in this case, it is always better to remember to make proper charge objections and submission requests even in these types of situations.

Pitts & Collard, L.L.P. v. Schechter, No. 01-08-00969-CV, 2011 Tex. App. LEXIS 3580 (Tex. App.—Houston [1st Dist.] May 12, 2011, no pet.).

Issue: Whether Plaintiff Pitts waived his complaint about the absence of an instruction on actual malice in the charge.

Relevant facts: Plaintiff brought an action against Defendant for breach of contract, alleging that he failed to pay referral fees from lawsuits that Plaintiff referred. Defendant filed a counterclaim for defamation, breach of contract, and abuse of process. The trial court entered a take-nothing judgment against Plaintiff on his breach of contract claim. The trial court awarded a partial judgment to Defendant on his counterclaims. On appeal, the court found that the evidence was sufficient to show that Plaintiff breached the contract first. However, the evidence was legally insufficient to establish that Plaintiff acted with the actual malice required for him to be liable on a claim of defamation against a public figure. Defendant Schechter argued that Pitts waived his complaint about the absence of an instruction on actual malice. Pitts did not object to the malice instruction that was submitted to the jury, which constitutes a waiver under application of the ordinary procedural rules. He did not request that the jury be instructed on actual malice, offer a substantially correct question, or in any other way indicate that he thought the charge was improper because Schechter was a public figure.

Outcome/holding: In an ordinary case, the lack of an objection by Pitts would require the appellate court to evaluate the sufficiency of the evidence with respect to the court’s charge, and not some other law that was not identified to the trial court. Even when fundamental constitutional rights are at stake, the rules of appellate procedure bar review of unpreserved error except in very narrow circumstances. However, the free-speech implications of this case required the court to find waiver only in circumstances that are “clear and compelling.” To the extent such a waiver is even possible by procedural inaction, Pitts’s complete failure to expressly raise the issue of actual malice after a three-week jury trial may represent the strongest possible case. The court continued to hold that even if it concluded that waiver has occurred, it was still required to “consider whether those procedural grounds are adequate as a matter of substantive federal constitutional law to protect the constitutional interests at stake.” In First Amendment cases, the court is obligated to “make an independent examination of the whole record” so as to ensure that “the judgment does not constitute a forbidden intrusion on the field of free expression.”

Does an express contract between two parties preclude a plaintiff from recovering for services rendered in quantum meruit? Yes, generally, if the contract covers those services and materials, and if no exception to the general rule applies.

Christus Health v. Quality Infusion Care, Inc., No. 01-09-00591-CV, 2011 Tex. App. LEXIS 4578 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet. h.)

Issue: Whether the trial court erred in awarding judgment for Quality on the jury’s quantum meruit finding because the express contract rule barred such a recovery, given the jury’s implied finding that a contract existed, and the express finding that Christus’s failure to comply was excused, along with evidence that Quality failed to do as the parties’ agreement required.

Relevant facts: Christus manages a network of medical and healthcare providers in east Texas and western Louisiana. The health plan is for active and retired members of the Armed Services, their families, and survivors. Quality provided medical services to several Christus members referred to it by a specialist in Christus’s network. Quality itself, however, was not part of the network. Christus paid some of Quality’s invoices, but denied others on the basis that Quality had not complied with the terms of the medical plan. Quality sued Christus to collect the unpaid invoices, claiming that Christus breached its duty to pay or, alternatively, owed it an equitable recovery on a quantum meruit theory.

Outcome/holding: An express contract between the parties precludes a plaintiff from recovering for services rendered in quantum meruit if the contract covers those services or materials and if no exception to the general rule applies. The equitable remedy of quantum meruit is therefore unavailable when the party seeking compensation has a legal remedy under the contract. Quality argued that Christus waived the express contract defense by failing to plead it or cite it as a ground for summary judgment, motion for directed verdict, or motion for judgment notwithstanding the verdict. The trial court disagreed and concluded that it was Quality that invoked rights under the contract, and submitted both theories of relief to the jury. In its answer, Christus invoked the contract defenses of failure to meet a condition precedent, anticipatory repudiation, prior material breach, and failure to mitigate. The jury heard evidence on these issues and made affirmative findings on the questions of breach and excuse. These findings necessarily refer to the existence of a contract. The court reversed the trial court’s judgment and held that the express contract rule barred Quality from a quantum meruit recovery.

Is a trial court’s order regarding the award and payment of ad litem fees a final and appealable order? Yes, under the probate code.

Trevino v. Reese, No. 01-10-00717-CV, 2011 Tex. App. LEXIS 4558 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet. h.)

Issue: Whether the appellate court had jurisdiction to review the challenged order authorizing ad litem fees because it “did not dispose of all claims and parties and was merely part of the pending guardianship and divorce proceedings.”

Relevant facts: The trial court signed an order granting authority to pay attorneys’ fees and expenses and discharging attorney ad litem. It approved the ad litem’s fees, taxed them as costs, and ordered that he be paid in accordance with its order approving the settlement agreement. In its order approving the settlement agreement, the trial court authorized Reese to fulfill the settlement agreement, and it ordered that the ad litem fees be “taxed as costs” and be paid.

Outcome/holding: Generally, parties may appeal only from final judgments. However, probate proceedings give rise to a recognized exception to the general rule since multiple judgments may be rendered on discrete issues before the entire probate proceeding is concluded. Not all probate orders are appealable. Determining whether sufficient attributes of finality exist to confer appellate jurisdiction over an order arising from a probate proceeding depends on whether the order resulted from the adjudication of a substantial right or disposed of all issues in a particular phase of the proceeding. In this case, the trial court’s order not only required appellant to pay the ad litem fees, but also released Smith as the ad litem. Therefore, for the purposes of Smith’s fees, the order concluded a discrete phase of the probate proceedings and the order was thus final and appealable.

Does the return of service have to be verified by a notary public in order to be valid and comply with Rule 107? Yes, if the return of service is not verified, service on the defendant has not been perfected, and no default judgment can be entered.

Chupp v. Chupp, No. 01-10-00197-CV, 2011 Tex. App. LEXIS 4928 (Tex. App.—Houston [1st Dist.] June 30, 2011, no pet.)

Issue: Whether entering a default judgment on a divorce decree was error because of lack of personal jurisdiction based on defective service of process.

Relevant facts: Appellee husband filed his first amended petition for divorce. Because the return of service of citation was signed by a licensed private process server, TEX. R. CIV. P. 107 required that the return of service of citation be acknowledged before a notary public which was not done. Although the process server signed the return and indicated her license number, this was not sufficient to satisfy the requirements of Rule 107; therefore, the service of process was invalid and of no effect. The trial court did not have personal jurisdiction over the wife and erred in rendering the default divorce decree.

Outcome/holding: The default judgment against the wife was reversed.

Does a trial court err in making appellate attorney’s fees contingent on success on appeal? Yes, an award for appellate attorney’s fees must be conditioned on which party prevails on appeal; but reversal a trial court’s judgment in this respect is not necessary.

Ansell Healthcare Prods. v. United Med., No. 01-10-00541-CV, 2011 Tex. App. LEXIS 5358 (Tex. App.—Houston [1st Dist.] July 14, 2011, pet. filed)

Issue: Whether the trial court erred by not making the award of appellate attorney’s fees dependent on which party prevailed on appeal.

Relevant facts: The underlying products liability suit involved two manufacturers. After it was settled, the manufacturer contended that the seller had incurred excessive attorney’s fees and that this amount was attributable to the other manufacturer’s product under Chapter 82. The court found the evidence sufficient to show that the costs the seller sought to recover were incurred in relation to the manufacturer’s product, even if the seller also incurred some costs relating to the other manufacturer’s product.

Outcome/holding: The award of appellate attorney’s fees should be dependent on which party prevails on appeal. However, an unconditional award of appellate attorney’s fees does not require reversal; instead, the appellate court may modify a trial court’s judgment to make the award of appellate attorney’s fees contingent upon the receiving party’s success on appeal. The appellate court in this case affirmed the trial court’s judgment as modified to provide that the award of appellate attorney’s fees was contingent upon success on appeal.

Does a defendant contesting personal jurisdiction waive his special appearance when his retained attorney files a motion for continuance for the purpose of obtaining DNA testing? Yes, be careful not to waive challenges to personal jurisdiction by watching what you file before a special appearance.

Branckaert v. Otou, No. 01-08-00637-CV, 2011 Tex. App. LEXIS 6286 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, no pet. h.)

Issue: Whether a party waives his special appearance when his retained counsel files a motion for continuance for the purpose of obtaining DNA testing.

Relevant facts: The mother had filed suit to establish a parent-child relationship between the individual, who lived in Italy, and the mother’s child. The trial court entered a judgment adjudicating the individual to be the child’s father. The individual filed a new trial motion, which was denied. Because the individual never verified his special appearance, he never adequately challenged personal jurisdiction, and his motion for continuance recognized that an action was properly pending, such that the individual entered a general appearance.

Outcome/holding: Relying on Dawson-Austin, the father argued that a motion for continuance will never constitute a general appearance. Dawson-Austin, however, is distinguishable. In that case, the defendant filed a special appearance, contemporaneously with a motion to quash service, plea to the jurisdiction, and plea in abatement. In contrast, in his motion for continuance, the father expressly denied paternity and argued to the court that the trial should be reset in order to give the parties time to conduct paternity testing. The issues raised in the father’s motion have nothing to do with the court’s jurisdiction, but indicate his intention to defend the case of the merits by obtaining DNA testing to disprove paternity. The father’s motion for continuance, with its request for time to perform DNA testing, “recognizes that an action is properly pending” and “seeks affirmative action from the court.” Thus, he has entered a general appearance in the case and waived his previously filed special appearance.

Are postings on a website incorporating Texas-related content of an unknown origin enough to establish personal jurisdiction over a defendant owner of a website? No, not in this case—postings on a third-party website will not be enough to invoke personal jurisdiction.

Wilkerson v. RSL Funding, L.L.C., No. 01-10-01001-CV, 2011 Tex. App. LEXIS 6282 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, no pet. h.)

Issue: Whether internet activity or postings on a third-party “website” is enough to establish personal jurisdiction.

Relevant facts: In this interlocutory appeal, Jerry Wilkerson appealed the trial court’s order denying his special appearance. Appellee RSL Funding, L.L.C. sued Wilkerson for defamation, libel, and business disparagement, all based upon statements made by Wilkerson on third-party internet sites. In his sole issue, Wilkerson argued the trial court erred in denying his special appearance and objection to jurisdiction.

Outcome/holding: The appellate court agreed with Wilkerson, and noted that for purposes of analyzing personal jurisdiction over an individual in a case arising from his internet activity, the standard of purposeful availment should be applied. The company presented no evidence about how the resident posted his comments in a way directed at Texas. The evidence did not support the company’s factual allegation, factually refuted by Wilkerson, that he deliberately used a website oriented towards, aiming at, or otherwise specifically targeting Texas. Jurisdiction could not be exercised over a nonresident user based on his use of a website based upon the mere evidence that the website incorporated Texas-related content of an unknown origin. Nothing in the record showed that Wilkerson sought any benefit, advantage, or profit by availing himself in Texas, as was required for personal jurisdiction.

Does a party have to raise an issue on appeal to the DWC Appeals Panel in order to raise the issue in the trial court? Yes.

Thompson v. Ace American Ins. Co., No. 01-10-00810-CV, 2011 Tex. App. LEXIS 6902 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet. h.)

Issue: Whether the trial court erred in including a “date of injury” in its question to the jury on the issue of whether Ace had proven that Thompson did not sustain a compensable injury.

Relevant facts: Thompson challenged the trial court’s judgment entered, after a jury trial, in favor of Ace in its suit for judicial review of a decision of the Texas Department of Workers’ Compensation (“DWC”) in favor of Thompson. Thompson argued that the trial court erred in including a date of injury in its question to the jury on the issue of whether Ace had proven that Thompson did not sustain a compensable injury, and in the alternative, that if a date of injury was properly included in the question, the trial court erred in not submitting to the jury a definition of the term “date of injury” in regard to an occupational disease.

Outcome/holding: The appellate court found that, at trial, the insurer presented extensive evidence that the employee was not at work on March 18, 2007, and the insurer asserted that this evidence established that the employee could not have suffered a compensable injury. The insurer did not dispute that neither it nor the employee appealed the issue of the date of his injury, March 18, 2007. Because the insurer had failed to appeal the issue of the date of the employee’s injury to the DWC Appeals Panel, the issue was not properly before the trial court, and the trial court erred in including the date in its question to the jury. This error was also harmful because it had the probable effect of misleading and confusing the jury.

Fishing expedition ends early, ten years is too long

In re Swift Transportation Co., No. 14-11-00535-CV, 2011 Tex. App. LEXIS 7435 (Tex. App.—Houston [14th Dist.] September 13, 2011, orig. proceeding).

In this negligence case, plaintiff sued defendant, Swift, a national trucking company, and its employee, for injuries she sustained from an accident with a Swift tractor-trailer. Plaintiff sought to take the deposition of a risk manager or person most knowledgeable about any and all injury or death claims for the ten years before the accident that made the basis of the suit. Swift’s counsel filed an objection, motion to quash, and motion for protective order. Plaintiff filed a motion to compel. After a hearing, the trial court signed an order denying Swift’s motions. Swift filed a petition for writ of mandamus.

The court conditionally granted the petition for writ of mandamus. It explained that orders requiring discovery covering an unreasonably long time period or distant and unrelated locales are impermissibly overboard. Because discovery is limited to matters that are relevant to the case, requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible “fishing expeditions.”

The court agreed with Swift that the lower court abused its discretion because it required that a national company produce a corporate representative to testify about all injury and death claims asserted against it during the ten years before plaintiff’s accident. Swift asserted that it opened more than 1,000 auto liability claims related to accidents involving its vehicles in 2010 alone. Plaintiff responded that the information sought “might well show” that Swift had engaged in a pattern of negligent hiring and supervising that would support her gross negligence claim. The appellate court disagreed, holding instead that the information sought amounted to an impermissible “fishing expedition.”

Only the attorney who actually signs a pleading is subject to sanctions, and a law firm is not subject to sanctions, under Rule 13 or Chapters 9 or 10

Yuen v. Gerson, No. 14-09-00635-CV, 2011 Tex. App. LEXIS 4538 (Tex. App.—Houston [14th Dist.] June 16, 2011, pet. filed) (on reh’g).

In this legal malpractice case, a former client and his new attorneys sued the former lawyer. The issue was whether the new attorney and his law firms are subject to sanctions, when the attorney did not actually sign the pleading at issue? The Fourteenth Court of Appeals answered in the negative as to whether the law firm could be liable, thereby causing a split in authority between the First and Fourteenth Courts of Appeals.

James Gerson is an attorney who represented Paul Koik-Wah Law in a suit. After Gerson withdrew from representation, Law sued Gerson for, among other causes of action, negligence and breach of contract related to Gerson’s allegedly deficient representation. Appellants, Xenos Yuen, Siegal, Yeun & Honore, PLLC, and Law Office of Xenos Yuen, P.C. then began representing Law in the underlying and malpractice suits. Gerson filed a counterclaim against Law alleging his claims were frivolous in violation of Chapter 9 of the Texas Civil Practice and Remedies Code. The trial court granted a no-evidence summary judgment in favor of Gerson on all of Law’s claims. Then, after a bench trial on Gerson’s counterclaim for sanctions, the court orally announced its finding that Gerson incurred attorney’s fees in defending against Law’s frivolous claims. Gerson follow up with a written motion requesting sanctions against Law and Appellants under Texas Rule of Civil Procedure 13, Chapters 9 and 10 of the Texas Civil Practice and Remedies Code, and section 17.50(c) of the Texas Business and Commerce Code (a section of the Texas DTPA). After a hearing scheduled on the motion, where Law and Appellants did not appear, the trial court admitted evidence and several days later signed a final judgment that Law take nothing on his suit, determining that Appellants brought a groundless lawsuit in violation of Rule 13, Chapters 9 and 10, and section 17.50(c), and awarding Gerson $16,675 in attorney’s fees against Law and $25,000 against Appellants. Appellants filed a motion for new trial, alleging they did not receive notice of the sanctions hearing, which was denied without a hearing.

Only the Appellants appealed, Law did not. Neither Yuen nor his law firms signed the frivolous pleadings. The issue was whether there was legally sufficient evidence to support a finding that Appellants signed the objectionable pleadings. Yuen did not sign the challenged pleadings. Yuen’s name was on the pleadings, but they were signed by associate attorneys at Yuen’s law firms. Rule 13 and Chapters 9 and 10 provide for sanctions against the signatory of a groundless pleading. The express language of Rule 13 limits sanctions for groundless pleadings to the attorney who actually signed the pleadings and a represented party. Because the language in sections 9.012 and 10.004 is substantially similar to the language of Rule 13, the court concluded that under Rule 13, the same is true. Therefore, the court concluded that the evidence was legally insufficient to support sanctions against Yuen under Rule 13 and sections 9.012 and 10.004 because he did not sign the objectionable pleadings and was not a party to the pleadings. For the same reasons, the court held the evidence was legally insufficient to support sanctions against Yuen’s law firms because the objectionable pleadings were not signed on behalf of either firm. Thus, the appellate court held that the evidence was legally insufficient to support sanctions against the law firms. Also, the court explained that only licensed persons, not entities such as law firms, may practice law.

On this latter point, the Fourteenth Court of Appeals diverges from the First Court of Appeals. The First Court has held that law firms are sanctionable under sections 9.012 and 10.004. The Fourteenth Court concluded that the trial court erred by awarding Gerson a $25,000 sanction against Appellants under Rule 13 or Chapter 9 or 10. With respect to the award of attorney’s fees under section 17.50(c), the court reversed that award as well, holding that the trial court lacked jurisdiction over Appellants because a pre-appearance default judgment was effectively taken against them on a third-party claim.

Features for July 2011

Welcome to the July 2011 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Chief Justice Brian Quinn: “A Purposeful Life,” Amarillo Court of Appeals by Justice Wanda Fowler (Ret.)

Chief Justice David Wellington Chew:“A Public Service Family by J. Stephen Barrick, Hicks Thomas, LLP

Justice Bill Boyce, 14th Court of Appeals, explores the effective use of positive-negative combinations in Wal-Mart Stores, Inc. v. Dukes.

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 & Close, LLP

Chief Justice Brian Quinn: "A Purposeful Life"

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

Not many people can point to one event that shaped the rest of their life. Chief Justice Brian Quinn of the Amarillo Court of Appeals can. He was in 8th grade running the last leg of the 880 yard medley relay for his school team. With his average height and trim build, track star is not what immediately comes to mind when one sees Justice Quinn. Nonetheless, there he was on the track field. Just before he began his part of the race, he said a prayer. He asked God to help him and promised that if he did not finish last, he would start going to church. He finished third. And kept his end of the bargain. From that point on, “better things started happening.” He says he can “see the hand of God throughout his life, whether God opened a door that would not have opened otherwise” or something else. As a result, he “does not believe in coincidences.”

Presumably that belief also applies to the circumstances of his birth. He was born in rural New Jersey—literally—in a car on the way to the hospital. And according to lore, not only was he born in the car, he also fell out of it at birth. After this shaky beginning, things got better when his father left the army and the family returned to El Paso, Texas, his mother’s home town.

Not long after his fateful run, Justice Quinn decided to go to law school as a result of a high school civics class. His teacher showed a film about the First Amendment, which involved a Nazi setting up a soap box in the middle of a Jewish area and extolling the virtues of Nazism. The question to the students was whether the person had the right to do this. He was taken with the idea that lawyers played a role in such important issues.

He obtained a BA in political science from UTEP followed by a Juris Doctor from Texas Tech Law School. He was the first in his family to graduate from college and obtain a post-graduate degree. After law school, he went to Laredo to clerk for U.S. District Judge, George Kazen. He was Judge Kazen’s fourth law clerk, staying for two years. Even when he clerked in the early 80s the court heard many criminal cases. They also heard a number of voting rights cases and civil rights actions against government officials.

After completing his clerkship with Judge Kazen, Justice Quinn returned to Lubbock to join McWhorter, Cobb & Johnson, where he tried to focus on appellate law. He says he was known as an “egghead” and a “library lawyer.” He worked mainly on school district, voting rights, and FDIC cases. His trial work in those days was mainly second chair.

In 1994 Justice Quinn ran for a spot on the Amarillo Court of Appeals. He says he “just felt it was time to do it”; he had “always wanted to be a judge.” He was elected in 1994 and in 2006 was appointed Chief Justice of the court, replacing Chief Justice Phil Johnson who was appointed to the Texas Supreme Court.

The Amarillo Court of Appeals has four justices. All four justices sit weekly on rotating panels. Chief Justice Quinn had the following suggestions for lawyers regarding bench exhibits, oral argument, cases of first impression, and other issues relevant to appellate lawyers.
  • Bench Exhibits – Justice Quinn says they do not receive bench exhibits often, but when they do, the exhibits are helpful. They tend to receive them in cases of interpretation involving statutes, wills, or contracts. On occasion, lawyers have used electronic visuals, but invariably these are ineffective because the lawyers “lose time fiddling with the equipment.”

  • Oral Arguments – The most effective arguments occur when the lawyer is prepared and admits the faults of his case. This is “helpful because it builds credibility.” “The lawyer may not win that time but it helps them down the line.” The least effective argument is when a lawyer dodges questions. This hurts them in two ways. First, it hurts their credibility and causes the judges to wonder whether they can trust the lawyer’s argument. As when a lawyer answers the tough questions, dodging questions affects the lawyer’s credibility even after the argument is done. The justices remember lawyers who are not completely straightforward with them and “won’t trust the lawyer as much.” When a lawyer dodges questions it also hurts his position because it irritates the justices and their staff “who then have to do their job for them.”

  • Cases of First Impression – In cases of first impression, Justice Quinn tries to find analogous law for guidance and will look to other states. If a statute is involved, Justice Quinn likes to see the legislative history. When confronted with a new cause of action, his job is relatively easy. He is “not there to create law.”

  • Judicial Philosophy – Justice Quinn believes that “the Legislature should be the primary creator of the law. “As a judge, [his] job is to interpret the law.” When he encounters a case in which he wants to do one thing but the law requires him to do another, he follows the law.

  • What he most likes about being a judge – “The jigsaw puzzle. The intellectual challenge. The unique case that comes up and getting the right answer.”
Justice Quinn reads all of his briefs on his iPad. He doesn’t read hard copies of the briefs at all. He finds that he reads briefs on the computer faster than on a hard copy—“maybe because of the larger print.”

All of Chief Justice Quinn’s hobbies are motorcycle related. He collects and repairs old motorcycles and also has built custom motorcycles. He finds it intellectually stimulating, but also imaginative and very physical. In college Justice Quinn was a mechanic. He also loves muscle cars, as evidenced by the 1976 Firebird he owns. He says he “likes the rumble of its engine.”

Justice Quinn lives in Lubbock and commutes to Amarillo, where the court sits.

Chief Justice David Wellington Chew: "A Public Service Family"

by J. Stephen Barrick, Hicks Thomas LLP

El Paso is closer to San Diego than to Houston, and is in a different time zone than both. But it is home to Texas’s Eighth Court of Appeals and Chief Justice David Wellington Chew.

For Justice Chew, public service runs in the family. His father, Wellington Yee Chew, who immigrated to the United States through Mexico as a small child and earned his citizenship by serving in World War II, was one of the first Chinese-American lawyers in Texas and became a highly respected lawyer and civic leader in El Paso. Justice Chew himself, who was born and raised in El Paso, is a longtime attorney and jurist in El Paso who also served a term on the El Paso City Council. And Justice Chew’s two sisters – Linda Chew and Patricia Chew – are the presiding judges of the 327th District Court and Probate Court No. 1 of El Paso. (Justice Chew recuses when their orders and judgments are before the Court of Appeals.)

After briefly attending the University of Texas at El Paso, Justice Chew accepted an appointment to the United States Naval Academy, drawing inspiration from one of his boyhood idols, Roger Staubach, who won the Heisman Trophy while playing football for Navy. Upon graduating, Justice Chew served as a Surface Warfare officer in the Navy and eventually attained the rank of Lieutenant Commander. While in the Navy, Justice Chew also served as Admiral’s Aide before leaving to attend law school at SMU. Upon graduating in 1978, Justice Chew joined the El Paso law firm that his father founded and practiced mostly immigration and nationality law for 16 years, often before the Board of Immigration Appeals.

In 1994, Justice Chew ran as a Democrat in a crowded race for an open seat on the Court of Appeals and won. He took office in 1995 as one of the first Asian-American appellate justices in Texas, and he has never since been contested in a judicial race. In 2006, Governor Rick Perry appointed Justice Chew to succeed Hon. Richard Barajas as Chief Justice. When asked what he likes most about being an appellate justice, Justice Chew refers to the scholarly nature of the job. He enjoys studying and writing on the law and feels that it better suits his temperament than private practice.

The Eighth Court of Appeals hears civil and criminal appeals from 17 West Texas counties. In addition, the Court is a transferee court for docket equalization, receiving cases mostly from Fort Worth and San Antonio. The Court has only three justices, so it is usually easy to predict who will be on the panel. Cases are randomly assigned to a justice about 90 days prior to argument or submission, and the Court’s staff generally prepares a bench memo and orally presents it to the panel shortly before submission or argument.

For cases being argued before the Eighth Court of Appeals, Justice Chew provides the following insights:

  • Bench Exhibits – The Court generally allows the parties to use bench exhibits and presentations as they like, but in most cases the appendix to the briefs should be sufficient. Blow-ups can be useful for illustrating complex relationships or time lines, but not to highlight evidence or cases. PowerPoint presentations are usually a distraction and are not very helpful.

  • Oral Argument – The Court nearly always permits oral argument when a party has requested it, which sometimes results in oral arguments that are useless or awkward. Justice Chew gave an example where the Court clearly lacked jurisdiction and there was very little to discuss. Lawyers who argue their case as if they are presenting it to a jury are not effective. Moreover, the skills that appellate specialists bring are often a welcome relief.

  • Cases of First Impression – Justice Chew does not handle cases of first impression differently but enjoys the opportunity to write on a clean slate and make new law.

  • Judicial Philosophy – Justice Chew characterizes his judicial philosophy as “relatively liberal,” but he does not believe there is much room for liberalism on the appellate bench. He believes that the law and precedent must be followed but is relatively permissive on matters of procedure.

  • Electronic Briefs – Justice Chew is not a fan of electronic filing and computerized legal research and personally does not find eBriefs to be useful. He notes, however, that there are others on his Court who find them useful.

In 2002, the Asian Pacific Interest Section of the State Bar of Texas established an award in Justice Chew’s honor. Each year, the Justice David Wellington Chew Award is presented to a member of the bar to recognize his or her contributions to the Asian-Pacific legal community.

Justice Chew is married to Mandy Chew, and they have a son, Wellington Montgomery Chew, who is a graduate of St. Edwards University.

When asked what he would most like to do if he were not judging, Justice Chew states that he would like to return to the sea, referring back to his days as a Naval Officer.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

This column will focus on Wal-Mart Stores, Inc. v. Dukes, ___ S.Ct. ___, 2011 WL 2437013 (U.S. June 20, 2011), and the power of the one-two punch.

Dukes reversed a Ninth Circuit judgment approving a nationwide class action involving 1.5 million current and former female Wal-Mart employees. The plaintiffs alleged that local Wal-Mart supervisors exercise their discretion over pay and promotion to discriminate against women in violation of Title VII. The plaintiffs sought injunctive and declaratory relief, punitive damages, and backpay. The United States Supreme Court held that the class could not be certified under Federal Rule of Civil Procedure 23(a)(2) based on a lack of commonality; it further held that the plaintiffs’ backpay claims were certified improperly under Rule 23(b)(2) because such claims were not incidental to their requested injunction.

The first sentence of Justice Scalia’s majority opinion makes the final destination pretty apparent: “We are presented with one of the most expansive class actions ever.” Not a promising start if you’re trying to uphold the class.

From a legal draftsmanship viewpoint, my eye was drawn to a technique that appears both in Justice Scalia’s majority opinion and in Justice Ginsburg’s dissent.
This technique is the one-two punch created by coupling a positive assertion with a negative one. The contrast establishes limits; provides clarity; and adds emphasis.

Consider these examples of the positive-negative combination from the majority opinion.
  • “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’ . . . .” Dukes, 2011 WL 2437013 at *7 (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982)). “This does not mean merely that they have all suffered a violation of the same provision of law.” Id.

  • “In the landmark case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough.” Id. at *10 (original emphasis) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).

  • “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id. at *12. “It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. (original emphasis).
This technique also works in reverse when an initial negative statement is coupled with a clarifying positive statement. “Rule 23 does not set forth a mere pleading standard.” Id. at *7. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis added).

Justice Ginsburg uses the same approach to make her points in dissent.
  • “Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: ‘[T]here are questions of law or fact common to the class.’” Id. at *16 (Ginsburg, J., dissenting) (footnote omitted). “The Rule ‘does not require that all questions of law or fact raised in the litigation be common . . . .’” Id. (quoting 1 H. Newberg & A. Conte, Newberg on Class Actions § 3.10, pp. 3-48 to 3-49 (3d ed. 1992)).

  • “Sensibly read, however, the word ‘questions’ means disputed issues, not any utterance crafted in the grammatical form of a question.” Id. at *16 n.3.
The technique also comes in handy for distinguishing cases. “Teamsters, the court acknowledges . . . instructs that statistical evidence alone may suffice . . .; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account.” Id. at 18 n.4 (citing Teamsters v. United States, 431 U.S. 324, 339 (1977)).

The one-two punch makes for more focused and more persuasive legal writing. And the beauty is that it does so in a calm, reasoned, matter-of-fact way. The contrast does the work; reliance on histrionics and over-the-top adjectives is unnecessary.

Feeling some pressure to fulfill the promise of this column’s title, I have not merely examined Dukes for good legal writing; I also have searched for less-than-perfect expressions of legal thought.

To that end, I offer the following awkward sentence for your inspection: “Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate.” Id. at *6 n.4. Betcha can’t say that sentence aloud in a single breath.

A little remodeling fixes the problem: “The court of appeals accepted in part Wal-Mart’s argument that monetary claims predominated for class members who no longer worked for Wal-Mart and lacked standing to seek injunctive or declaratory relief.”

Mission accomplished.

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

Did you know . . . ?

In the absence of express findings of fact and conclusions of law, a court of appeals errs by holding that "the trial court found all facts and conclusions favorable to the prevailing party rather than implying only those facts and conclusions necessary to support the judgment." Rosemond v. Al-Lahiq, 331 S.W.3d 764, 767 (Tex. 2011) (court's emphasis). On appellate review, the court may imply "only those findings of fact that are necessary to support the judgment," and only those conclusions of law that are "necessary, but not made, [may be] deemed in support of the judgment." Id. (Court's emphasis).

-- JoAnn Storey

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

Case Updates for April, May, and June 2011

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

Does the exclusivity bar of TEX. LAB. CODE ANN. § 408.001 (2006) hinge on whether the employer had provided notice of coverage under TEX. LAB. CODE ANN. § 406.005 (2006)? No.

Warnke v. Nabors Drilling USA, L.P., No. 01-09-00734-CV, 2011 Tex. App. LEXIS 2543 (Tex. App.—Houston [1st Dist.] Apr. 7, 2011, no pet. h.).

Issue Presented: One of the main issues in this case was whether the worker’s negligence claims were barred by the worker’s compensation exclusivity bar even though the employer did not show that it gave such notice to the worker before his injury. The Court found that even though no notice was given, the exclusive remedy provision barred the worker’s negligence claims against the employer for his on-the-job injury.

Relevant Facts: Warnke suffered an on-the-job injury when a pipe connected by a co-worker, Bruce Wilkinson, came free and crushed his hand. Warnke testified that his supervisor told him after his injury that he was not covered by workers’ compensation insurance and that an employee in the human resources department, Brandon Cannady, denied the company’s responsibility for Warnke’s medical expenses. Warnke also alleged that Nabors never provided him written notice of coverage under workers’ compensation insurance before his injury. Eight months after the accident and about three months after filing suit, Warnke began receiving workers’ compensation benefits. He filed suit against Nabors and Wilkinson, asserting claims of negligence, fraud, and negligent misrepresentation. In his original petition, Warnke claimed that he and Wilkinson were both employees of Nabors. He later amended his petition to plead in the alternative that Wilkinson was an independent contractor. Nabors and Wilkinson filed a motion for summary judgment arguing, among other things, that no genuine issue of material fact existed because the Act’s exclusive remedy provision bars Warnke’s recovery. They also asserted that the exclusive remedy provision excluded Warnke’s fraud and negligent misrepresentation claims against all defendants.

Outcome/Holding: The court held that the exclusivity bar of Tex. Lab. Code Ann. § 408.001 (2006) did not hinge on whether the employer had provided notice of coverage under Tex. Lab. Code Ann. § 406.005 (2006). Thus, although Nabors did not show that it gave such notice to the worker before his injury, the exclusive remedy provision barred the worker’s negligence claims against the employer for his on-the-job injury. However, because Wilkinson did not prove conclusively that he was an employee under § 408.001(a), a fact issue existed as to whether the exclusive remedy provision applied to the negligence claim against him. The Court further held that the exclusive remedy provision applied only to work-related injuries, thus, Warnke’s negligent misrepresentation claims against Nabors could go forward.

If consideration is given for a gift from a parent during a marriage, is it separate or community property? Community property. Make sure when your parents give you gift, you don’t agree to give any money for the gift!
Zoller v. Zoller, No. 01-09-00992-CV, 2011 Tex. App. LEXIS 3025 (Tex. App.—Houston [1st Dist.] Apr. 21, 2011, no pet. h.)

Issue Presented: Among other issues in this case, the Court considered whether a car given to the husband from his parents was a gift.

Relevant Facts: The parties’ dispute concerned a 1997 Oldsmobile and a 2001 Mercury Marquis that the husband, Joseph received from his parents. Joseph testified that the Oldsmobile was a gift from his parents. No other evidence regarding the Oldsmobile was offered. Joseph testified at trial that the Mercury "was partially a gift." He explained that he agreed to pay his father $1,000 for the car and one of Joseph's sons agreed to pay another $1,000. Joseph valued the car at $4,500.

Outcome/Holding: The court held that the trial court erred in characterizing as separate property under Tex. Const. art. XVI, § 15 and Tex. Fam. Code Ann. § 3.001(1) (2006) the car for which the husband paid because it did not qualify as a gift and thus was community property pursuant to Tex. Fam. Code Ann. §§ 3.002, 3.003(a) (2006). A gift is a “voluntary transfer of property to another made gratuitously and without consideration.” To establish the existence of a gift, the party must prove three elements: (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property. The very fact that Joseph's father agreed to and received consideration in exchange for the Mercury, however, establishes that it was not given as a gift.

Can a judge that does not preside over a trial grant a motion for new trial? Yes.

Hull v. S. Coast Catamarans, L.P., No. 01-10-00724-CV, 2011 Tex. App. LEXIS 3628 (Tex. App.—Houston [1st Dist.] May 12, 2011, no pet. h.)

Issue Presented: In this case, the buyer, Edgar Hull argued that the district court’s order granting a new trial was void because the district judge did not have authority to rule on the motion because she did not preside over the actual trial.

Relevant facts: Hull purchased a boat from South Coast. After the purchase, Hull hired a surveyor to inspect the boat and the surveyor concluded that the boat’s poor structural integrity precluded its safe use. Hull demanded a full refund plus other coasts he had incurred in relation to the boat. Hull then sued South Coast, and others for fraud, negligent misrepresentation, breach of contract, negligence and breach of warranty. The district judge conducted numerous hearings on discovery and other pretrial matters. However, a visiting judge presided over the actual trial in the case. The jury returned a unanimous verdict in favor of Hull on all of his claims. The district judge received the jury’s verdict and made an entry of judgment. Defendants moved for a new trial on various grounds. The district court granted the new trial, specifying her reasons for granting the motion as the violation of the court’s discovery and docket control order and a juror error.

Outcome/Holding: On appeal, the court found that it was proper under Tex. R. Civ. P. 330(g) for the regular trial judge to rule on the motion for a new trial on the discovery issue about which she had heard argument and evidence.

Does a trial court abuse its discretion in denying a motion to file late summary-judgment response without a showing of undue prejudice? Yes.

Williams v. Fort Bend Indep. Sch. Dist., No. 01-10-00611-CV, 2011 Tex. App. LEXIS 4778 (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet. h.)

Issue Presented: In this case, the court considered whether a trial court abused its discretion in denying Williams’s motion for leave to file a late response.

Relevant Facts: Williams appealed the trial court's rendition of summary judgment in favor of Fort Bend Independent School District. Williams filed suit alleging racial discrimination in violation of the Texas Commission on Human Rights Act. The District filed a combined traditional and no-evidence motion for summary judgment. Williams did not file a response. After denying Williams's motion for leave to file a late response and to continue the summary judgment hearing for one week, the trial court granted the District's motion. On appeal, Williams argued that the trial court abused its discretion by denying her motion for leave to file a late response and to continue the hearing by seven days and that summary judgment was improper because the summary judgment evidence raises fact issues on her claims.

Outcome/Holding: A late summary judgment response should be allowed upon a showing of good cause and no undue prejudice to the opposing party. "Good cause" means the failure to timely file a summary judgment response was due to an accident or mistake and was not intentional or the result of conscious indifference. Under the good cause standard applicable to these types of cases, “[e]ven a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result.” Williams's counsel explained that she miscalendared the date that the response was due. The District counters that a "bare assertion" that an attorney miscalendared the response date is insufficient to show good cause. Williams's counsel explained that when she received the motion on June 2, she miscalendared the response date and immediately drafted and sent a letter to her client, Williams, which contained the erroneous response date. The Court held that this was good cause. Williams asked for the deadline to file a response to be moved to Monday, June 21 and the hearing to be postponed for one week until June 25. Williams's counsel explained that no trial setting existed and, therefore, a one week delay would not prejudice the District. The District did not argue or produce evidence before the trial court and does not argue on appeal that it would suffer undue prejudice from a one week delay—either by a delay in the trial or being hampered in its ability to prepare for trial. The Court held that the District would not be harmed by a one week delay and the trial court abused its discretion in denying Williams's motion to file a late summary judgment response.

You can’t get summary judgment on a ground you didn’t raise in your motion

PAS, Inc. v. Engel, No. 14-10-00813-CV, 2011 Tex. App. LEXIS 4851 (Tex. App.—Houston [14th Dist.] June 28, 2011, no pet. h.).

In this case, the Fourteenth Court of Appeals held it was error for the trial court to grant summary judgment on a claim that was properly pleaded, but that was not addressed as a ground in the Summary Judgment Motion, and that the limited “common ground” exception did not apply.

Cory Engel worked for Matrikon, which was a competitor of a company (PAS) that provided consulting services to process and power companies. Engel later worked for PAS and signed two employment agreements with PAS containing non-compete clauses and provisions addressing confidential and trade-secret information belonging to PAS. Engel resigned nine days after signing the second agreement and incorporated Caputech, which entered into an “Exclusive Reseller Partner Agreement” with Matrikon under which Caputech agreed to sell Matrikon products and services.

PAS sued Engel and Caputech, alleging theories of breach of and intentional interference with the employment agreement, theft of trade secrets, fraud, and civil conspiracy. PAS amended its pleadings so that, at the time of summary judgment, it had also asserted a claim breach of fiduciary duty.

Engel and Caputech filed a First Amended Traditional and No-Evidence Motions for Summary Judgment (the Summary Judgment Motion). The Summary Judgment Motion did not seek summary judgment on PAS’s breach of fiduciary duty claim. The trial court granted summary judgment on all of PAS’s claims.

On appeal to the Fourteenth Court of Appeals, PAS asserted that the trial court erred in granting summary judgment on its breach of fiduciary duty claim because that claim was not a ground addressed by the Summary Judgment Motion.

It was undisputed that the Summary Judgment Motion did not address the breach of fiduciary duty cause of action. The Court thus held it was error for the trial court to grant summary judgment on a claim that was not addressed by the Summary Judgment Motion. The Court noted that while the Engel and Caputech arguably asserted a challenge to that claim in their reply, a movant may not use its reply to amend its motion for summary judgment or to raise new and independent summary judgment grounds.

Engel and Caputech asserted limited exceptions to the general rule that a trial court may not properly grant summary judgment on claims not addressed in the motion for summary judgment. They argued that the appellate court should affirm the summary judgment on the breach of fiduciary cause of action because: (1) under a “common ground” analysis, the breach of fiduciary duty claim fails for the same reason as the fraud claim; (2) the breach of fiduciary duty claim was tried by consent; and (3) PAS waived its right to complain of the trial court’s error.
The Court disagreed with the “common ground” argument because even though the at-will employment precluded PAS from establishing justifiable reliance for purposes of its fraud claim, it did not bar its breach of fiduciary duty claim.

The Court disagreed with the “trial by consent” argument because even assuming that trial by consent could apply under these facts, PAS had listed the breach of fiduciary duty claim in its pleadings and that it was not clear that the breach of fiduciary duty claim was fully discussed and tried by the parties.

Finally, the Court disagreed with the waiver argument, holding that PAS was not required to file a motion for new trial to preserve error when a trial court improperly grants summary judgment.

Features for April 2011

Welcome to the April 2011 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Chief Justice Josh Morriss: “Living Up to Expectations,” Texarkana Court of Appeals by Justice Wanda Fowler (Ret.)

Justice Bill Boyce, 14th Court of Appeals, explores the lyricism of Marbury v. Madison.

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 & Close, LLP

Chief Justice Josh Morriss: “Living Up to Expectations”

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

They say history repeats itself, but that is not a saying frequently applied to judges. In the case of Justice Josh Morriss, Chief Justice of the Texarkana Court of Appeals, it is quite apropos. Every day he goes to work he finds his grandfather looking over his shoulder. That is because his grandfather—Isaac Newton Williams—was a justice on the Texarkana Court of Appeals from 1937-1954 and his grandfather’s portrait hangs in the hallway leading to Justice Morriss’s chambers. Justice Morriss says it makes him behave himself. But Justice Morriss likes having his grandfather’s watchful eye on him, for he owes his grandfather a lot—his very existence even. If his grandfather had not moved from their family home in Mt. Pleasant to Texarkana, Justice Morriss’s parents would not have met.

Surprisingly, even with this background, law was not in the picture when Justice Morriss went to college. His father was a businessman and that is what Justice Morriss expected to do. He obtained a BBA and an MBA in finance from SMU. He intended to become a certified financial analyst. But the summer before he started grad school, fate intervened. He worked in the trust department of a bank “and whenever they had an important issue, they always said, ‘Let’s send this to the lawyers.’” That made him realize “the strategic value of being the one people go to for advice when they have problems.” As a result, after getting his MBA at SMU, he attended and graduated from U.T. Law School.

After graduation from law school, Justice Morriss returned to Texarkana where he practiced primarily business law. Most recently before joining the Court, he was a partner with the Texarkana firm of Atchley, Russell, Waldrop & Hlavinka, LLP.

Epiphanies seem to play a role in the big decisions in Justice Morriss’s life. Just as an epiphany moved him into law, an epiphany moved him to become a judge. He was a long time Republican in “yellow-dog Democrat” East Texas. In 2000, the Republican County Chair approached him and asked “What are we going to do about the vacancy on the Texarkana Court of Appeals?” His initial reaction was “Why are you asking me?” But then he started thinking about it. It was something he could afford to do, and the more he thought about it, the more he realized he “was built more for a judicial application than a litigation application.” He realized that “when [he] was involved in litigation, [he] had real trouble picking a side; [he] was built more for evaluating cases from a neutral standpoint rather than a partisan one.”

He decided to apply for an appointment and, in 2002, was appointed Chief Justice. Still, there was no guarantee that he would be elected. No Republican had ever been elected from his district. But he won that first election and has been elected twice more since then.

Texarkana is a three-judge court. The authoring justice for any given case is assigned on a rotating basis. Before argument, the Justices know who the author will be, have a memorandum discussing the case, and have conferred about the case with the attorney assigned to work on it. In the Supreme Court’s efforts to equalize the dockets of the Courts of Appeals, Texarkana is a transferee court, receiving most of its additional cases from Tyler. Texarkana does not have a definite start date for e-filing, but has asked to be moved up on the priority list for court e-filing start dates. Justice Morriss described himself as “computer friendly,” but he “doesn’t read briefs on the computer yet.” The court accepts briefs on disk in addition to a hard copy.

For lawyers about to argue or file a brief in Texarkana, Justice Morriss has the following suggestions:
  • Bench Exhibits – Justice Morriss said that bench exhibits can be very effective. The court usually receives them in high-profile cases. He said the most effective use of a bench exhibit was in a murder conviction based on circumstantial evidence. On the evening of the event, the defendant traveled in three different counties. The murder happened in one location, the weapon was found in another, and the defendant ended up in the third county later in the evening. The district attorney was able to track the defendant’s movements and location by his cell phone calls, which showed when he visited all three places and showed him to be near the place of the murders around the time of the murders. The DA gave the justices an exhibit listing the phone calls, their locations, and the time of the calls.

  • Oral Arguments – The least effective arguments usually involve a lawyer making a jury argument. In one case a lawyer repeatedly said “I think this,” or “I think that,” rather than discussing the law. The most effective argument is the “courageous” one, when the lawyer, usually an experienced appellate lawyer, is willing to “cut to the chase” and says, “Here is the issue. If you agree with me, I win; if you do not agree with me, I lose. But let’s talk about it.”

  • Cases of First Impression – When he has a case of first impression or an issue that has two opposing authorities, he “works them very hard.” He will analyze them to see which one fits the situation better. For example, in one appeal they were confronted with a very high bond on a multiple murder conviction. They took all the data points they could find —various factors that dictate a higher or lower bond—and put them into a spread sheet. This helped them decide to “trim the bond a little.” In a case of first impression, he also looks at any public policies that are relevant.

  • Judicial Philosophy – In a phrase, his philosophy could be described as “exercising restraint.” As he said, “If we have a safe harbor, let’s use it.”
When asked what he likes most about being a judge, Justice Morriss said that he had spent most of his adult life saying “Hurry! Hurry! Let’s get it out!” He says, “It is a pleasure to be in a situation to take your time and get it right.” When asked what he likes to do when he is not judging, Justice Morriss described himself as “a musical theater nut.” He is one of the founders of a theater group in the Texarkana area, called Texarkana Repertory Company, which produces four shows a year. He has been doing this since high school, so if you name a well-known musical, he probably has had a major role in it—Henry Higgins in My Fair Lady; Woody in Finian’s Rainbow; Curly in Oklahoma!; Tevye in Fiddler on the Roof. These days he does less acting and more producing and managing. He also has collaborated with friends to write a musical comedy about Texarkana along the lines of Judy Garland/Mickey Rooney’s Let’s Do a Show. And since 1995, Justice Morriss has portrayed President George Washington in the historically accurate A Standing Miracle, a show he researched and wrote and presents to area organizations and groups.

In closing, Justice Morriss said that three things are central to, and impact, his operating style. First, his faith in Christ; he considers his oath of office sacred, making him accountable not only to the State of Texas but to God. Second, he is “one of those who will spend his life trying to live up to his family name cultivated by his parents”; as he said, “they have a strong performance streak.” Third, when he was practicing, it was clear which judges were impartial and which ones weren’t; the ones that weren’t always "stuck in his craw.” He found that when a case was getting started, the first question people often would ask—to find out if they had some advantage—was, “Who’s the judge?” It gave him the impression that most people feel that it is who you know that counts, not what the law says. He would say to himself, “The system ought to be better than that.” Now he is making sure the system is better than that.

Rewrite This Sentence

Recent columns have discussed recent United States Supreme Court opinions. To mix things up a bit, let’s look at a golden oldie: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Ronald Reagan was about half way through his second term when I first read Marbury v. Madison. I dutifully studied the opinion for a constitutional law exam. Landmark decision. Established the legitimacy of judicial review. Constitution trumps incompatible legislation. I then filed it in my memory under the heading, “What the law is; emphatically the province and duty of the judicial department to say.”

I picked up Marbury v. Madison again in 2011 to focus less on what it says and more on how it reads. A few things about the opinion stand out after a fresh look.

First, it was a mandamus. Marbury was the relator. He lost. Some things haven’t changed.

Second, it provides a good example of what now might be called “roadmapping.” At multiple points in the opinion, Chief Justice Marshall clearly identifies each issue that must be answered in a logical progression to reach a decision. Does Marbury have a right to the commission he demands? Does he have a remedy? Is that remedy a writ of mandamus from the Supreme Court? Then the opinion methodically analyzes each question. It was a good approach to opinion writing in 1803, and it is a good approach today.

Third, it contains many beautiful turns of phrase. Some are archaic, some are lyrical.
  • “The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded.” Id. at 154.

  • “After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.” Id. at 159.

  • “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id. at 163.

  • “[I]t is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of the court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.” Id. at 170.

  • “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.” Id. at 177.
Think of it as free verse poetry, legal style.

Consider how these phrases might spice up a contemporary Texas appellate opinion. “It is not wonderful that there was admitted into evidence testimony repugnant to the intricacy and peculiar delicacy of the hearsay rule. An anxious search of the record confirms that the testimony is cumulative, and the act does not deserve the high appellation of ‘reversible error.’ Therefore, we need not intermeddle with the prerogatives of the district judge.”

Some of Marbury v. Madison’s 19th century language readily translates to the 21st century reader, and some does not. The commas and semicolons flowed a little more freely from the quill in 1803.

But here’s the key point. Chief Justice Marshall did not encrust his opinion with mind-numbing legal jargon and Latin phrases. The opinion is written in more-or-less plain English, albeit plain English from a more formal and more wordy era. The opinion contains numerous short paragraphs, many of which are only one sentence long. The sentences themselves are an attention-keeping mixture of short, punchy declarations interspersed with longer, complex thoughts linked by commas or semicolons. The reader is given clear directions about where the opinion is going; how it will get there; and where it has arrived. Sounds a bit like some seminar advice I’ve heard.

If you seek an opinion emphatically deserving the high appellation of “modern legal writing,” then dig out your casebook and re-read Marbury v. Madison. You will discover a decision that is deeply interesting, but happily, not of an intricacy proportioned to its importance.

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