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.