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

Did You Know . . . ?

A party's "failure to present on appeal a discrete challenge to liability when that party challenges damages does not defeat the plain language of [TRAP] 44.1(b) proscribing a separate trial on unliquidated damages when liability is contested." Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001). In other words, a court of appeals errs in remanding a case for a new trial solely on the damages issue(s) on the ground that the complaining party did not challenge liability in its brief on appeal. Id. The mere filing of a general denial in the trial court "extends to contesting liability" on appeal. Id.

-- JoAnn Storey

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

Case Updates for February and March 2011

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

Five-year statute of limitations applies to claims of negligence for allowing continuous sexual assault of a child

Stephanie M. v. Coptic Orthodox Patriarchate Diocese of the S. U.S., No. 14-10-00004-CV, 2011 Tex. App. LEXIS 1952 (Tex. App.—Houston [14th Dist.] March 17, 2011, no pet. h.).

In this case of first impression, the court determined that the five-year statute of limitations applicable to personal injuries arising as a result of sexual assault extended to parties whose alleged negligence was a proximate cause of the conduct that caused her injuries and not just to party who physically assaulted the plaintiff.

In August of 2008, Stephanie M. filed a lawsuit against the Coptic Orthodox Patriarchate Diocese of the Southern United States, St. Mark Coptic Orthodox Church, St. Mary Coptic Orthodox Church, and Isaac Sullivan (the priest). She alleged that the priest sexually assaulted her from 1999 to 2001, when she was between the ages of 13 and 15. She further alleged that the Church and Diocese were negligent by failing to have appropriate policies, procedures, and standards in place to prevent priests from sexually abusing children; failing to properly supervise the priest; and allowing the priest to have unsupervised access to Stephanie.

Both the Diocese and Church defendants filed a motion for summary judgment based on limitations under section 16.0045 of the Texas Civil Practice & Remedies Code. These defendants argued that Stephanie’s claims against them sounded only in negligence, and so the two-year statute of limitations applicable to negligence causes of action applied to the claims against them. Stephanie responded that the five-year statute of limitations for filing civil suits in sexual assault cases applied to both the perpetrator and to other defendants potentially liable for the same injuries by their negligent acts that allowed the abuse to occur.

The trial court granted the Diocese and Church defendants’ summary judgment motions, and Stephanie appealed. The court of appeals reviewed section 16.0045’s plain language, which provides that a person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates section 21.002 of the Penal Code, which addresses the continuous sexual abuse of a young child. The court of appeals concluded that the subsections of 16.0045 show the legislative intent was to provide victims of continuous sexual abuse of young children more time to seek damages for their injuries.

The court of appeals concluded that Stephanie’s personal injury claims against the Diocese and Church defendants arose from the alleged intentional conduct of the priest. And, because her personal injury claims arose from the priest’s alleged sexual assault, the five-year statute of limitations provided by section 16.0045 operated to extend her time to file suit against them. Thus, the Court reversed the trial court’s judgment and remanded the case.

Is expert testimony required to support a submission of a party’s negligence? No, in this case the court found it was not required and the trial court erred in refusing to submit a contributory-negligence question regarding the worker’s negligence.

GSF Energy, LLC v. Padron, No. 01-09-00622-CV, 2011 Tex. App. LEXIS 948 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, no pet. h.)

Issue: This appeal arose out of the death of Adan Padron, who was killed when debris fell on him while he was cleaning the inside of a processing-plant tank. Padron’s wife and children sued the plant operator and Padron’s employer for negligence and premises liability. The court, addressed, among other things, whether the trial court erred in submitting the jury charge without any question as to Padron’s negligence.

Relevant facts: GSF requested, and the trial court refused, a contributory-negligence submission. GSF argued that the trial court erred in refusing to submit questions in the charge on Padron’s negligence. GSF argued that there was sufficient testimony to raise the question of Padron’s negligence.

Outcome/holding: Appellees argued that the trial court properly refused to submit questions in the charge on Padron’s negligence because there was no expert testimony submitted regarding Padron’s alleged negligence. The court disagreed with the appellee’s position that expert testimony was necessary, and sustained GSF’s issue. The court held that the evidence supported the submission of Padron’s contributory-negligence, and reversed and remanded for a new trial.

How many marriages are too many? More than one!

Lan Ngoc Nguyen v. Dinh Duc Nguyen, No. 01-09-00421-CV (Tex. App.—Houston [1st Dist.] Feb. 24, 2011)

Issue: In this appeal, the Appellant, Lan Ngoc Nguyen (“Lan”) sued Dinh Duc Nguyen (“Dinh”) for divorce. The trial court found that Lan and Dinh never married because of Dinh’s prior marriage to a woman in Vietnam. Lan argued that the evidence was insufficient to support this finding or rebut the presumption that her marriage to Dinh was the valid one.

Relevant facts: Lan met Dinh when she started working in his chiropractic clinic in 1995. They began to date, and Dinh traveled to Vietnam in February 2000 when he allegedly married a woman named Pham. Pham remained in Vietnam, and Dinh returned to the United States. Dinh then proposed to Lan, and they had a traditional Vietnamese wedding ceremony but never received a marriage license from the Harris County Clerk’s license. Lan and Dinh lived together until 2003, separated for approximately two years, and then reconciled in 2005. They then lived together as husband and wife (according to Lan) until 2007 when Lan was kicked out and filed for divorce. The trial court, after considering testimony from Lan, Dinh, and Pham ruled that a Lan and Dinh were never formally married, nor were they informally married “due to the impediment of Dinh’s prior marriage.”

Outcome/holding: The court of appeals held that Dinh did not overcome the presumption that his marriage to Lan—the most recent one—was the valid marriage. The evidence did not show that Dinh and Pham were validly married at the time of the October 2000 ceremony between Dinh and Lan. The evidence also showed that Pham was allegedly married to an Australian man in 2002. The court ultimately reversed and remanded the case for the determination of whether Lan could establish the statutory elements of a valid informal marriage.

Is a party’s statement that “a deal will close” grounds for fraudulent misrepresentation? Not in this case. In this case, the court found that the appellant’s misrepresentation that “the deal would close” was an expression of opinion and not of fact.

Anglo-Dutch Petroleum Int'l, Inc. v. Shore Harbour Capital Mgmt. Corp., No. 01-09-00417-CV, 2011 Tex. App. LEXIS 1761 (Tex. App.—Houston [1st Dist.] Mar. 10, 2011, no pet. h.)

Issue: Whether Anglo-Dutch’s representation to Shore Harbour—when Shore Harbour agreed to invest with Anglo-Dutch—that “the deal would close” was a fraudulent misrepresentation.

Relevant facts: The facts underlying this case span nearly two decades, involve multiple transactions related to the development of a foreign oil and gas field, and relate to numerous lawsuits involving Anglo-Dutch. Anglo-DutchPetroleum International, Inc. was a partner in Anglo-Dutch Kazakhtenge (ADK), which itself was a partner in a joint enterprise to develop an oil and gas field in Kazakhstan, called the Tenge Joint Enterprise. Shore Harbour considered a proposal to contribute capital to Anglo-Dutch to facilitate the buy-out transaction. In making its decision to contribute, Shore Harbour relied on oral conversations between its managing shareholder, Don Chamberlin, and Anglo-Dutch’s president, Scott Van Dyke. Chamberlin contended in the trial court, as he does in this appeal, that Van Dyke represented to him that the deal would close. The deal did not close. Shore Harbour demanded repayment of its $100,000 contribution, but Anglo-Dutch did not refund Shore Harbour’s money. The trial court limited Shore Harbour’s fraud and fraudulent inducement claims at trial to a single alleged misrepresentation by Anglo-Dutch, specifically that “the deal would close.” After a bench trial, the trial court awarded Shore Harbor $100,000 on its fraud claim, plus pre- and post-judgment interest. Anglo-Dutch appealed arguing that this was error because the alleged misrepresentation was not the kind of statement for which a cause of action for fraud may be pursued.

Outcome/holding: The trial court erred by awarding damages. The appellate court held that Anglo-Dutch’s misrepresentation that “the deal would close” was an expression of opinion and not of fact. The alleged statement could not, as a matter of law, be the basis of a cause of action for fraud. The trial court's judgment was reversed, and a take-nothing judgment was rendered in favor of Anglo-Dutch.

Is a recording under Texas Rule of Civil Procedure 656 a recording for purposes of imputing constructive knowledge to defeat a claim of a bona fide purchaser? No.

Noble Mortg. & Invs. LLC v. D&M Vision Invs., LLC, No. 01-09-00987-CV, 2011 Tex. App. LEXIS 1970 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet. h.)

Issue: Is the recording of a sale on an execution docket in compliance with Texas Rule of Civil Procedure 656 a “recording” for the purposes of putting subsequent creditors and purchasers on constructive notice under sections 13.001 and 13.002 of the Texas Property Code? No, as an issue of first impression, the court of appeals held that a recording of a sale on an execution docket in compliance with Rule 656 is not a “recording” for purposes of putting subsequent creditors or purchasers on notice.

Relevant facts: Noble challenged here the trial court’s factual finding and legal conclusion that “Noble Mortgage is not a bona fide purchaser or mortgagee as against Danny K. Whitfield, Sr.’s prior claims.” Noble also challenged, among other conclusions, the trial court’s determination that the “filing of the Execution and order of Sale and the Officer’s Return of Execution on the sale of the Property to satisfy the Judgment in the records of the Harris County Clerk satisfied the recording statute of the Texas Property Code.” D&M asserted that Noble “does not specifically challenge the [trial court’s] finding . . . [that] ‘Noble Mortgage did not acquire an interest in the Property in good faith.’” A challenge to the trial court’s finding that Noble did not acquire its interest in the Blodgett Property in good faith, however, is fairly subsumed within Noble’s arguments that the trial court erred in finding it was not a bona fide mortgagee or purchaser, as good faith is a required element of that bona fide status. On October 4, 2007, Noble’s security interest in the Blodgett Property was first recorded in the real property records. While the Financial Holdings Judgment was entered on October 30, 2006, almost a year before, it is undisputed that no one filed an abstract of that judgment in the real property records. It is likewise undisputed that—prior to Whitfield’s December 31, 2007 filing of the “Deed Under Execution” issued by constable transferring Blodgett Property from Banks to Whitfield in the real property records—there there was no mention of the Financial Holdings Judgment or the resulting foreclosure sale to Whitfield anywhere in the real property records.

Outcome/holding: The court of appeals held that the evidence was legally insufficient to support the trial court’s ruling that Noble was not a bona fide purchaser. Noble’s bona fide status was proven as a matter of law. Recording the sale on an execution docket in compliance with Tex. R. Civ. P. 656 was not a “recording” for the purpose of putting subsequent creditors and purchasers on constructive notice under Tex. Prop. Code Ann. §§ 13.001 and 13.002. Further, none of the evidence the purchaser pointed to would have put the mortgagee on inquiry notice that there was an unrecorded money judgment in the County Court at Law records. The court reversed the trial court’s judgment, and rendered judgment that Noble was entitled to possession and title of the property.