Features for January 2011

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


JUDICIAL INTERVIEW SERIES
Consistently Excellent: Chief Justice J. Woodfin "Woodie" Jones, Austin Court of Appeals by Justice Wanda Fowler (Ret.)

The Dreamer: Chief Justice Cathy Stone, San Antonio Court of Appeals
by Justice Wanda Fowler (Ret.)

REWRITE THIS SENTENCE
Justice Bill Boyce, 14th Court of Appeals, discusses the clarity of the holding in the U.S. Supreme Court's opinion City of Ontario v. Quon

DID YOU KNOW . . . ?
by JoAnn Storey

CASE UPDATES FOR DECEMBER 2010 AND JANUARY 2011
Case updates for the First and Fourteenth Courts of Appeals
by Lucy Forbes, The Forbes Firm, PLLC, and Jessica Zavadil, Wright & Close, LLP

Consistently Excellent: Chief Justice J. Woodfin "Woodie" Jones

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

J. Woodfin “Woodie” Jones is Chief Justice of the Third Court of Appeals in Austin, a seat he was elected to in 2008. This is not his first time as a Justice on the Court. He was elected to the Court in 1988 and served until the end of 2000, when he lost his bid for re-election. Ironically, that same year, he received the highest rating of any Travis County judge. That performance on the bar poll was not surprising, for Justice Jones has been consistently excellent throughout his life. One might almost say he has been so consistently excellent, it is boring. But to those who know him, “boring” would not come to mind—friendly, energetic, intelligent, and empathetic maybe, but not boring. Justice Jones is one of those people who always has a smile for those he greets. In fact, he is so nice, that once, before a CLE presentation for which he was critiquing an oral argument, he was told that the presentation would be boring if he acted like he normally does and was nice to the lawyers. He did his best.

But back to the consistently excellent part. Justice Jones began his consistently excellent path early. He graduated near the top of his high school class and attended Plan II at the University of Texas, where he was a Phi Beta Kappa. He decided to go to law school his junior year and attended U.T. When he initially began to consider law as a profession, he assumed he would be a criminal lawyer like his father, but pretty early he realized that he wasn’t cut out to practice criminal law. Instead, he began his law career as a briefing attorney for Chief Justice Curtiss Brown on the Fourteenth Court of Appeals. As he said, he “loved that job”; it “planted the seed in his mind” for becoming an appellate judge himself one day. He then spent five years working at one of Houston’s top law firms, Bracewell & Patterson, and had a successful career there, including working with Kelly Frels on a high profile school-desegregation case. Finding himself longing for his hometown, and thinking he could return on his own terms after the successes in Houston (an accurate assumption), he returned to Austin. Then he began his successful trek into politics. He became involved in bar activities, working his way up to the Presidency of the Austin Bar Association. In the meantime, he also set his sights on a spot on the Austin Court of Appeals. He ran in 1988 and won the Democratic primary against the incumbent. There was no Republican candidate, so he was assured of a position on the court beginning in January. But the Democratic incumbent whom he had defeated ran into trouble and left office in August. Justice Jones asked the Republican Governor, Bill Clements, to appoint him to the now vacant seat. Reviewing Justice Jones’ excellent history, Governor Clements did just that.

Justice Jones is proud of this bipartisan beginning and feels strongly that judges should do everything in their power to set aside their partisan differences and work together. On his court, this is not just idealistic talk, for unlike some courts, his is split with two Democrats and four Republicans.

As noted earlier, politics did interrupt his time on the court, with his defeat in 2003. But he used his break to continue in his excellent ways. He became a partner at Scott, Douglass, & McConnico for two years, helped found his own appellate boutique—Alexander, Dubose Jones & Townsend—became Board certified in Civil Appellate Law, and was named a Super Lawyer in Appellate Law for four years. But Justice Jones knew he was not done being a judge. He ran for, and was elected to, the Chief Justice spot on the Third Court of Appeals in 2008.

As you would expect from someone who’s been on the court so long, Justice Jones has some insights into specific issues:
  • Bench Exhibits – Bench exhibits can be very useful. Justice Jones strongly suggests handouts rather than posters.

  • Oral Argument – The most effective – One argument has stood out in all his years on the bench, and it probably happened his first year on the bench. A lawyer arguing, to the court conceded that a particular issue was a weak part of his case but he explained that his client still should win. As Justice Jones explained, “Credibility is a vital part of what a lawyer has to sell. There is no better way to enhance your credibility than by being candid.”

  • Least Effective Argument – Again during his first year on the bench, a law firm apparently knew it had a weak case so it sent a very young lawyer to argue the case. The brief for the party omitted the Prayer section of the brief. While the young lawyer was arguing the Chief Justice flipped to the back of the brief to ascertain what relief the party was asking. When he noticed there was no prayer, he held up the brief and said “Counsel, you don’t have a prayer.” The young lawyer replied, “I know judge, but I’m doing the best I can.”

  • Cases of First Impression – Justice Jones doesn’t handle cases of first impression differently, but he often finds himself looking for more background on the issues so that he understands the broader context within which the issues are presented. Often he will do additional research to understand the history of the area of law or to grasp the policy issues. If it’s a statutory construction question, he wants to know more about the history of the statute or the problem the statute was designed to fix.

  • Judicial Philosophy – Justice Jones states that when he first ran, Raul Gonzales also was running and would tell the story of a man who came up to him complaining saying, “You know the problem with you judge is that you’ll rule for the plaintiff in one case and the defendant in another case. You ain’t got no judicial philosophy.” That, says Justice Jones, is how he’d describe himself—“middle of the road.” He approaches each case with the desire that the losing party is satisfied that he “got a fair shake and a thorough review of the issues.”

  • Electronic Briefs – In January the court will begin accepting electronic filings. For oral argument he still likes to have the written briefs in front of him to mark. For non-argument cases he is trying to read the briefs on the computer.

Justice Jones’s favorite part about being a judge is “the intellectual challenge of finding the answer that makes the most sense.” “It’s like solving a puzzle.” When Justice Jones is not judging he likes reading (mainly) non-fiction and playing lots of golf. He learned when he was 10, so it takes him back to his childhood. You also can find him as a frequent speaker at CLEs.

The Dreamer: Chief Justice Cathy Stone

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

Cathy Stone is Chief Justice of the Fourth Court of Appeals in San Antonio, having been elected to that position in 2008. Before that, she was an associate justice on the court for 14 years. Justice Stone’s current position on the court is miles away from her childhood. In fact, when she was a child in Biddeford, Maine, one might almost be able to say that she could not have dreamed of being where she is today. But as time would show, she was a dreamer.

When asked if there was someone who had a significant impact on her life, she immediately replied “Lyndon Johnson.” Coming from a Maine native, this statement was intriguing, if not surprising. But one need only hear the rest of her story to understand. In the 1950s and 60s, Justice Stone was one of five daughters of a single mother on welfare who had not completed high school. Her future seemed predictable. But in middle school, she realized she had a choice. She could stay at home and most likely become like her mother, or she could leave and see if she could do something more with her life through education. She left—at age sixteen. She says the “Great Society” programs initiated during Lyndon Johnson’s presidency enabled her to have a choice and be a dreamer. Through scholarships and low-income loans created for students, she was able to go to college.

Justice Stone attended Assumption College in Worcester, Massachusetts. She majored in foreign affairs—graduating magna cum laude—but as she says laughingly, it would have been more aptly called “foreign affair,” for there she met and married her future husband. Armed with her undergraduate degree and his masters in psychology, they moved to Texas, where she began working at the district attorney’s office in Beaumont, Texas. There, she realized she needed still more education. After considering law school or a PhD in political philosophy, she chose law and was accepted to her first choice—St. Mary’s Law School. Thus began a relationship with San Antonio that has yet to end.

Justice Stone was pregnant with her first child when she began law school. She said she had to sit sideways to fit in the desks. Shortly after exams ended, the first of her three sons arrived. Justice Stone thought she wanted to practice family law, but after clerking for both a family lawyer and a personal injury lawyer, she decided to go to work in personal injury law. She clerked for one year as a briefing attorney for Justices James Baskin and Pete Tijerina, then went to work for a plaintiffs’ personal injury firm. She did all of the firm’s appellate work. At that time, there weren’t many appellate lawyers, so lawyers outside her firm began using her to do their appellate work. She says she primarily was hired by plaintiff’s lawyers. Eventually, she started a solo practice doing mainly appellate law. In 1994, then Governor Ann Richards appointed her to fill a vacancy on the San Antonio court of appeals. She’s been there ever since.

Regarding bench exhibits, oral argument and other topics of interest to appellate lawyers, Justice Stone offered the following suggestions:
  • Bench Exhibits – Bench exhibits usually aren’t very helpful. Typically what she receives in a bench exhibit should have been in the appendix. If an attorney must file a bench exhibit, she would prefer to get them a day or two before argument. She also has seen a few power points used at oral argument, which she has found “completely useless.”

  • Oral Argument – The oral arguments Justice Stone most appreciates seem “more like respectful dialogues between the lawyers and the judges.” She also is very impressed when lawyers address adverse cases up front and in an “intellectually honest manner.” Justice Stone also commented on two things that greatly detract from oral argument. First, she finds it off-putting when a lawyer arguing before her treats the trial judge with disrespect. This greatly detracts from their argument and, rather than helping their argument, hurts it. But even worse is when the lawyer gives a jury argument.

  • Cases of First Impression – When Justice Stone is on a panel interpreting a case of first impression involving a statute, she wants to see the legislative history on the statute. In addition, in some cases, there will be a trend among the states involving similar statutes; she wants to know about the trends in those states. On cases of first impression, Justice Stone says that she “goes where she thinks the law is going.” She’ll try to discern the next logical step in the area.

  • Judicial Philosophy – Justice Stone is a “big believer in the jury system.” She believes that jurors “rise above their own capabilities to reach a greater common good.” She also believes in affording the trial judge his or her full measure of discretion.

  • Electronic Briefs – San Antonio has not converted to a purely electronic system yet, but the Court does accept courtesy e-briefs. Justice Stone is hoping to read more on a computer screen. She has an iPad and if she gets CD-Roms, she will use them.
Justice Stone’s favorite part about being a judge is being involved in “the evolution of the law, whether it involves application of the law to the parties, or development of the law on a grander scale.” When she is not judging, Justice Stone may be playing tennis or spending time with one of her three adult sons and her husband. As she said, the “extra-curricular activity” she has enjoyed the most is “being a mom.”

Rewrite This Sentence


The first column in this series promised to rewrite portions of opinions from the United States Supreme Court.

I am skipping the rewrite in this second column to focus instead on the dialogue between Justices Kennedy and Scalia in City of Ontario v. Quon, 130 S. Ct. 2619 (2010). Quon was featured in a November 17, 2010 article in The New York Times by Adam Liptak carrying the provocative and self-explanatory headline, “Justices Are Long on Words but Short on Guidance.”

The article summarizes recent academic scholarship and identifies several criticisms directed at opinions issued by the Supreme Court under Chief Justice Roberts. Too many opinions are too long. Many opinions purport to be unanimous, but they really aren’t because individual justices muddy the waters by concurring. They are poorly written. They are drafted by law clerks. They are too complex. They provide insufficient guidance to litigants and lower courts. They plagiarize too much from the parties’ briefs. They are responsible for Jeff Bagwell’s tepid showing in his first Baseball Hall of Fame vote tally.

The last point merits thoughtful consideration and (because I just made it up) further research. The remaining opinion-writing criticisms identified in the article cover a spectrum ranging from serious to whiny to catty to irrelevant. But the insufficient guidance criticism struck a nerve. And that brings us back to Quon.

The opinion “involves the assertion by a government employer of the right . . . to read text messages sent and received on a pager the employer owned and issued to an employee.” Quon, 130 S. Ct. at 2624. “The employee contends that the privacy of the messages is protected by the ban on ‘unreasonable searches and seizures’ found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment.” Id. (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

This much is clear: “The Court of Appeals erred in finding the search unreasonable.” Quon, 130 S. Ct. at 2632.

This much is unclear: An explanation of the proper standard to be applied so that other courts do not repeat this error.

Fearing that “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted,” the Supreme Court freighted its opinion with assumptions made solely for argument’s sake. These included assuming that the employee had a reasonable expectation of privacy, and that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.” Id.

Quon also avoided deciding whether to endorse the standard set forth by the plurality in O’Connor v. Ortega, 480 U.S. 709 (1987), for analyzing the propriety of a government employer’s warrantless search. It did so because “[t]he Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.” Quon, 130 S. Ct. at 2629. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications on emerging technology before its role in society has become clear.” Id. But if the O’Connor plurality’s standard were to be applied, we are told, then the search at issue in Quon satisfied that possibly applicable standard and was reasonable under that potentially governing approach. Id.

The majority’s hedging and assuming and hand-wringing provoked Justice Scalia to write a concurring opinion. Justice Scalia chided the majority for talking at length about the O’Connor plurality when “it is unnecessary to resolve which approach in O’Connor controls . . . .” Id. at 2634 (Scalia, J., concurring). He also observed: “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.” Id.

So where does this leave lower courts? Apparently, it deposits them somewhere in Baffledville near the intersection of Uncertainty Street and the Avenue of the Irritated. See Rehberg v. Paulk, 611 F.3d 828, 844-45 (11th Cir. 2010) (“The Supreme Court's more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are reasonable. . . . Even after the briefs of 2 parties and 10 amici curiae, the Supreme Court declined [in Quon] to decide whether the plaintiff's asserted privacy expectations were reasonable.”).

Quon and the Liptak article prompt two conclusions from this interested observer.

One conclusion is that current Supreme Court scholarship seems to be consumed by a counting compulsion. According to the Liptak article, recent studies have

  • Used “linguistic software to analyze the complexity of the usage and concepts in some 5,800 Supreme Court opinions from 1983 to 2008;”

  • Counted the number of words per decision;

  • Identified “the amount of ghostwriting on the court by developing software to analyze how justices’ writing style varied from opinion to opinion and term to term;” and

  • Used anti-plagiarism software to determine that “about 10 percent of the prose in majority opinions from the three terms that concluded in 2005 came from the parties’ briefs.”
Separately, The Wall Street Journal recently reported on not one but two studies that counted up the number of “laughter” notations in transcripts of Supreme Court oral arguments. The conclusion: Justice Scalia got the most laughs. I am not making this one up.

A second and more substantive conclusion is that Quon lays bare an internal tension that sometimes plays out in opinion writing. How should The Holding be framed? How will this language get sliced, diced, and pureed in briefs, motions for rehearing, petitions for review, and subsequent opinions? Clarity is desirable; oversimplification is not. Caution is desirable; timidity is not. What is the right balance?

Quon’s candor carries lessons for the appellate advocate. Go beyond a simple “I win” and think about the holding or the legal rule that you want the court to write in its opinion. What should it say? Suggest some language. Suggest alternatives. Explain why your language is neither too broad nor too narrow. Explain why it is neither overreaching nor timid. And be prepared to defend your suggestions in response to questioning by a court that needs to consider not just the resolution of your case, but the potential impact on future cases.

For the Ph.D candidates among you, this column contains 1,081 words.


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

Did you know . . . ?

Even after the appellate court's plenary power has expried, the court may amend its judgment to reflect the sureties' liability on a supersedeas bond. Whitmire v. Greenridge Place Apts., No. 01-09-00291-CV, ___ S.W.3d ___, 2010 WL 3294280, at *3 (Tex. App.--Houston [1st Dist.] Aug. 19, 2010, no pet.).

The court reasoned that it has a mandatory duty, under TRAP 43.5, to render judgment against the sureties on the supersedeas bond when the court affirms the trial court's judgment. Id. The court also determined that, upon affirming the trial court's judgment, rendering judgment against the sureties is a ministerial act involving no judicial discretion which thus may be corrected after expiration of the court's plenary power. Id.

-- JoAnn Storey


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

Case Updates for December 2010 and January 2011

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


Is the pearl in the oyster a lucky find? Not always.

Jones v. Landry’s Seafood Inn & Oyster Bar-Galveston, Inc., No. 14-09-00767-CV, 2010 Tex. App. LEXIS 9927 (Tex. App.—Houston [14th Dist.] Dec. 16, 2010, no pet. h.).

In this summary judgment case, Jones ordered an Oyster Mimmo, which is a processed, ground oyster meat dish, at Grotto Restaurant (which is owned by Landry’s). She alleged that she cracked a molar on a hard object while eating this dish. According to the Landry’s manager, the object was a pearl; but the summary judgment evidence was inconclusive as to what it was. Jones alleged that the manager promised that Landry’s would pay to have her tooth repaired; and she sought reimbursement for the ensuing dental care. When Landry’s refused to pay, she sued for strict products liability, negligence, breach of implied warranty, and promissory estoppel, seeking the amount of her dental expenses, pain and suffering, and mental anguish. Landry’s successfully obtained both a traditional and no-evidence summary judgment.

The trial court granted Landry’s traditional summary judgment under section 82.004 of the Texas Civil Practice and Remedies Code, which provides that in a products liability action, a manufacturer or seller shall not be liable if the product is a common consumer product intended for personal consumption such as an oyster. The appellate court reversed the summary judgment, agreeing with Jones that section 82.004 does not apply to her claim because her claim was based on a manufacturing defect. The court agreed that Jones’ complaint was of a manufacturing defect because Landry’s allowed an inedible object to be incorporated into the ground oyster meat dish, whether the object was present when Landry’s received the meat or the personnel failed to detect and remove the object while preparing the dish. Thus, the dish was a finished product that differed in terms of construction and quality from the restaurant’s planned output in a manner that rendered it unreasonably dangerous.

The trial court also granted Landry’s no-evidence summary judgment on her promissory-estoppel claim on the grounds that Jones would have obtained the repair of her tooth regardless of whether Landry’s promised to pay. The appellate court disagreed, finding instead that Jones’ affidavit presented a genuine issue of material fact regarding reliance on Landry’s promise to pay her dental bills by averring she would have curtailed the treatment she received by considering less expensive care or postponing treatment, if not for the promise.

So, a pearl in an oyster is not always a lucky find. A complaint about an object present in a prepared oyster dish is a manufacturing defect claim that is not subject to section 82.004, which otherwise provides that a manufacturer or seller shall not be liable for products liability for a product that is an oyster.


Is it error to grant summary judgment for a party that is a non-movant? Yes.

Donald Willy, Independent Executor of the Estate of Joan Susan Willy, Deceased v. Rosetta Lee Winkler v. Stanley Winkler, No. 01-10-00115-CV, 2010 Tex. App. LEXIS 10118 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

In this summary judgment case, the deceased, Joan Willy created a joint account with AG Edwards while she was alive. She held this account with her mother, Rosetta Winkler. The Willys paid all of the taxes on the account. When Joan died with a will, the account became “property of the estate” under the will. Donald Willy filed a motion for partial summary judgment, seeking a declaration that Joan’s estate owned the accounts and that the accounts were not held in “joint tenancy with a right of survivorship.” He further asserted that he had not signed any agreement consenting to Joan’s maintenance of a joint account with rights of survivorship with Rosetta, and under Texas law, the establishment of a “joint account by a parent with a child” evidenced Rosetta’s intent to make a gift of the account to Joan.

The Winklers filed a response to this partial motion for summary judgment asserting that the account agreement established a right of survivorship and Donald failed to present summary judgment evidence establishing a community interest in this account. In the final paragraph of their response, the Winklers asserted that “summary judgment [was] inappropriate” and “unresolved fact issues preclude[d]” the granting of summary judgment in Donald’s favor. The Winklers did not separately move for summary judgment in their favor.

Despite the fact that the Winklers did not move for summary judgment, the trial court entered a judgment in their favor declaring that the account was held by Joan and Rosetta “in joint tenancy with rights of survivorship.” The trial court also declared that, upon Joan’s death, the accounts became Rosetta’s exclusive property.

On appeal, the court reversed this judgment and held that the trial court erred in granting summary judgment in favor of the Winklers, who never even moved for the judgment entered by the trial court. So, the holding to take away from this case is to make sure you specifically move for any judgment you wish for the trial court to enter or it will be reversed on appeal.


Is a claim for alleged sexual assault a health care liability claim which requires a timely expert report under Section 74.351? Yes.

Sedeno v. Mijares, No. 01-10-00374-CV, 2010 Tex. App. LEXIS 10132 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

Appellant Heriberto Sedeno, P.A. was sued for allegedly sexually assaulting Mijares when she visited his office to address some problems with her high blood pressure. He allegedly told her to bend over and remove her pants so that he could give her a B-12 shot but instead raped her and ejaculated all over her and her clothing. Mijares pled causes of actions for sexual assault and intentional infliction of emotional distress against Dr. Sedeno and Sedeno, P.A. She alleged that Sedeno, P.A. “allowed [Dr. Sedeno] to be unsupervised with female patients despite its knowledge of [Dr. Sedeno’s] sexual proclivities” and that such negligence and gross negligence was the proximate cause of her injuries.

Sedeno, P.A. filed a motion to dismiss, arguing that Mijares’s claims were health care liability claims covered by Chapter 74 of the Civil Practice and Remedies Code, that Mijares had failed to file an expert report as required by section 74.351, and that Sedeno P.A., accordingly, was entitled to mandatory dismissal of Mijares’s claims against it. Mijares responded, arguing in part, that her claims were not health care liability claims and that the motion to dismiss was untimely according to the scheduling order. The trial court signed an order denying Sedeno P.A.’s motion to dismiss. The order contained a hand-written notation that the motion was denied “because the motion was not set for hearing in a timely manner under the agreed DCO.” Sedeno, P.A. filed a motion for reconsideration which was denied by the trial court.

In two issues, Sedeno, P.A. challenged the trial court’s order claiming that Mijares’s claims were health care liability claims requiring an expert report and such expert report was not timely filed under section 74.351. After an extensive analysis, the court of appeals sustained Sedeno, P.A.’s issues and concluded that Mijares’s negligence claims for alleged sexual assault were health care liability claims because the “gravamen” of her claims was that it breached the standards of care and safety owed to Mijares by failing to protect her from the alleged sexual assault of Dr. Sedeno. The court also concluded that Sedeno, P.A. was a “health care provider” under the chapter as well. In sum, the court held that the provisions of section 74.351 applied and the trial court erred in denying Sedeno, P.A.’s motion to dismiss the negligence and gross negligence claims.


Does a party waive summary judgment relief on grounds not specifically addressed in the motion even when the motion generally seeks summary judgment on all claims asserted? Yes.

Home Loan Corp. v. SKH, L.L.P., No. 01-09-01088-CV, 2011 Tex. App. LEXIS 121 (Tex. App.—Houston [1st Dist.] Jan. 6, 2011, no pet. h.)

In this summary judgment case, Home Loan Corporation appealed a judgment in favor of SKH, L.L.P. and Lagean Medearis. Home Loan argued that the trial court erred in granting summary judgment on claims not addressed in SKH’s and Medearis’s motion for summary judgment. Home Loan filed suit against Medearis and SKH for breach of fiduciary duty, negligence, and negligent misrepresentation, alleging that Medearis did not properly distribute funds at a closing for a piece of real property.

SKH and Medearis filed a motion for summary judgment on the following grounds: (1) the evidence conclusively established that there was no breach of fiduciary duty on the part of Medearis and (2) the evidence conclusively established that, even if Medearis breached a fiduciary duty, any injuries that Home Loan is alleging were caused by negligent and/or fraudulent acts of plaintiff and fraud defendants. They further stated that “Defendants are entitled to summary judgment as a matter of law on plaintiff’s claims.” The motion did not specifically mention Home Loan’s negligence or negligent misrepresentation claims. Home Loan did not file a response and the trial court granted the summary judgment and dismissed all claims against SKH and Medearis with prejudice.

In one issue on appeal, Home Loan argued that the trial court erroneously granted summary judgment on its negligence and negligent misrepresentation claims because SKH and Medearis did not expressly present grounds for summary judgment on those claims. In response, SKH and Medearis argued that summary judgment on all claims was proper, including the negligence and negligent misrepresentation claims, because their motion provided fair notice that they sought relief on all claims. SKH and Medearis pointed to the fact that in the motion they asked for summary judgment on “plaintiff’s claims” in the plural. They also maintained that the motion presented grounds for summary judgment on negligence and negligent misrepresentation because the motion asserted that SKH and Medearis did not cause Home Loan’s injuries, and causation is an element of breach of fiduciary duty, negligence, and negligent misrepresentation. The court of appeals disagreed, and concluded that the trial court erred in granting summary judgment on the negligence and negligent misrepresentation claims. The court affirmed the summary judgment as to the breach of fiduciary claim, but reversed and remanded the claims for negligence and negligent misrepresentation.


Does a party waive a complaint regarding the trial court’s refusal to grant extra time for voir dire by failing to object to the seating of the jury? Yes, in a criminal case.

Harrison v. State, No. 01-09-00611-CR, 2010 Tex. App. LEXIS 10159 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

In this case, appellant challenged the trial court’s refusal of his request for additional time to conduct voir dire. When the trial court informed appellant that his time for questioning had expired, appellant stated that he wanted to file a formal pre-typed motion requesting additional time to ask questions included in the motion. The trial court informed appellant that he had already been given 44 minutes, 14 minutes more than originally allotted. Appellant then offered the motion for additional time, which listed the questions he was unable to ask and began to recite additional questions beyond those listed in the pre-typed motion. The trial court instructed him to “write those down and then just have it offered.” Appellant replied, “As long as I can make a bill later with the rest of the questions, that’s fine.”

After the peremptory strikes were exhausted, the trial court asked whether either side had any objection to the seating of the jury. Both sides said “none” and the jury was sworn and seated by the court.

Outside the presence of the jury, the trial court asked appellant if there was anything he would like to put on the record. Appellant recited the questions he asserted he would have asked had he been given more time. The trial court reiterated that appellant had already been given 14 additional minutes and that it did not believe he had used his time effectively. Before the indictment was presented, the trial court asked a second time if there was any objection to the seating of the jury. The defense responded, “None from the defense.”

The State argued that appellant waived any error relating to the voir dire process when appellant twice affirmatively stated that he had no objection to the seating of the jury. The court of appeals agreed holding that appellant had affirmatively stated twice that he had no objections to the seating of the jury. The court held: “appellant waived any error to the amount of time he was given to question the jury by affirmatively stating that he had no objection to the seating of the jury.” While this holding was in a criminal case, it could easily be extended to civil cases. Thus, a lesson learned from this case is if you wish to complain about time constraints regarding voir dire on appeal, make sure you object to the seating of the jury.