Features for October 2011

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


JUDICIAL INTERVIEW SERIES
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

REWRITE THIS SENTENCE
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 MAY, JUNE, JULY, AND AUGUST 2011
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.