Features for September 2013

Welcome to the September 2013 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Section.

Chief Justice Adele Hedges by Allison Standish Miller

David Furlow commemorates the lives of the first two women to practice law in Texas.

Justice Bill Boyce, 14th Court of Appeals, explains the problem with the overuse of acronyms and abbreviations.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman explains how to mark your brief citations so that MS Word will automatically create and update a table of authorities.

Case updates for the First and Fourteenth Courts of Appeals
by John Barnes, Baker Donelson, and Andrew Nelson, Wright & Close, LLP

Chief Justice Adele Hedges

by Allison Standish Miller, Shepherd, Scott, Clawater & Houston, L.L.P.

On November 19, 1992, when then-Justice Adele Hedges was sworn in to the First Court of Appeals, the world was a different, albeit rapidly-changing, place. The Cold War had recently been declared over. European leaders approved the formation of what would become the European Union. Governor Bill Clinton of Arkansas defeated President George H.W. Bush in the presidential election, and the Church of England approved the ordination of female priests.

Nearly twenty-one years later, as now-Chief Justice Hedges prepares to leave her post, the Houston Courts of Appeals have changed drastically as well, both in form and in function. The Courts are now housed in the beautifully- and painstakingly-restored 1910 courthouse. Electronic filing is not only available, it is required. And the Courts enjoy electronic circulation of and voting on opinions. All of these improvements resulted at least in part from the efforts and leadership of Chief Justice Hedges, who worked with others to improve the beauty, efficiency, and accessibility of Houston’s Courts of Appeals. Reflecting on her time on the bench, Judge Hedges considers two words that could best sum up her years of service to be “efficiency and dedication.” Perhaps “innovation” should be included as well.

More specifically, Judge Hedges endeavored to secure funding for TAMES, the Texas Appellate Management E-Filing System, and permitted the Fourteenth Court to serve as the beta test court for the program. With respect to the courts’ internal case management, Judge Hedges assisted in securing funding for and participating in the development of the case circulation software that all of the Texas Courts of Appeals now utilize. “We had to invent [the software]. . .” she recalled. “There was nothing on the shelf.” Last, but certainly not least, Judge Hedges was instrumental in the Houston courts’ move to the new courthouse, as she participated in the design and restoration of the old district courthouse, which was left vacant once the courts moved to their new facility at 201 Caroline.

Marie Jamison, an attorney with Wright & Close, LLP who served for several years as Judge Hedges’s briefing attorney, believes that Judge Hedges was an “essential part to updating” TAMES, going on to remark that Judge Hedges’s efforts “gave the appellate bar a more efficient and transparent TAMES. Without her, e-filing as we know it today would likely still be a work in progress.”

Born and raised in Orange, Texas, Judge Hedges earned her Bachelor of Arts degree from the University of Houston in 1968. She then went on to attend Rice University, where she earned both a Master of Arts and a Ph.D. in French. Not yet satisfied, she attended the University of Houston Law Center, from which she graduated Summa Cum Laude in 1974. During her time at the Law Center, she served as Articles Editor of the Houston Law Review; won the Best Brief Award in 1973, and participated in the State Moot Court Team. After law school, Judge Hedges went to work as an associate at Fulbright & Jaworski, LLP, where her practice included litigation, real estate, business, and banking matters. Over the intervening years, Judge Hedges worked in private practice and as in-house counsel—and also briefly took on the role of Professor of French at Rice University.

In 1992, Judge Hedges commenced her years as public service when she took office as Justice, Place 2 of the First Court of Appeals, following previous Place 2 justices such as Ewing Werlein and Frank Price. During her multiple terms on the First Court, the Texas Association of Civil Trial and Appellate Specialists honored Judge Hedges as 1998’s Appellate Judge of the Year. In late 2003, following the appointment of then-Chief Justice Scott Brister’s appointment to the Texas Supreme Court, Governor Rick Perry appointed Judge Hedges as Chief of the Fourteenth.

In addition to her work helping to modernize and streamline the courts, Judge Hedges also served as member and in 2007 as the Chief of Texas’s Council of Chief Justices. During her time on the council, Judge Hedges worked with the other justices to secure pay raises for the Texas judiciary amidst fiscally-difficult times. Judge Hedges is married to Dan Hedges, who himself is a well-respected trial lawyer and a name partner at Houston’s Porter & Hedges, LLP. Together they make innovation a family affair; in collaboration with their team of architects, the couple garnered accolades and press attention in 2009 for what at the time was referred to as “Houston’s greenest residence.” Almost entirely off the power grid, the Hedges residence boasts solar power, rainwater collection and treatment capabilities, and geothermal air conditioning. Judge Hedges is also a devoted mother to the couple’s grown son, Clinton, and their two beloved dogs.

Judge Hedges’s commitment to improving the world around her extends not just to the legal community, but to the arts community as well, where she has donated her time and efforts to work as a Director of the Houston Symphony and of the Alley Theater. Interestingly enough, the arts and legal communities recently intersected when the Houston Grand Opera performed Gilbert & Sullivan’s Trial By Jury at the new courthouse. Judge Hedges herself is a talented musician and artist—her pursuits include the classical flute, jewelry-making, and knitting.

Throughout her years of practice, Judge Hedges has also found time to act as a Director of the Texas Center for the Judiciary; as the editor and co-author of the Pre-Trial, Trial, and Appellate Practice Guides published by the West Group; as Vice President and Director of the Council of the Appellate Practice Section; as Editor of this publication; and as Chair of the Governance Committee of TAMES.

Judge Hedges considers clarity and directness to be essential elements of parties’ briefing and the Courts’ opinions, and she intends to take those lessons, as well as the others she learned and refined on the bench, into her new private practice. She is proud of the efficiency that she helped bring to the Court, recognizing that ruling with efficiency and effectiveness is an ongoing challenge all courts face. She is also proud of the fact that, during her tenure, the Court heard oral arguments in almost every county in its district.

Texas jurisprudence is fortunate to have benefited from the service of Judge Hedges. As a jurist, a leader, and an innovator, she created positive changes in her community that will most certainly endure as they benefit generations of Texans for many years to come.

Taking the Law into their Own Hands

Taking the Law into their Own Hands:
Hortense Sparks Ward, Alice S. Tiernan, and the Struggle for Women’s Rights in the 1910 Harris County Courthouse

             By David A. Furlow

Editor's Note: The original article contains citation footnotes. To view or download the original article, click here. If you have trouble accessing the file, you can request a copy from the author by email.

If you pay close attention to the large “Bench and Bar of Houston, Harris County, Texas” facebook exhibited in the “Historical Display” section of the sixth floor of the 1910 Harris County Courthouse, you might have noticed photographs of two women on the bottom of the page. The two women, Hortense Sparks Ward and Alice S. Tiernan, brought the nation-wide battle for women’s rights to Harris County’s 1910 courthouse. This is their story.

Bench and Bar of Houston, Harris County, Texas

Born to Frederick and Louise Sparks in Matagorda County on July 21, 1872, Hortense Sparks Ward grew up in Edna and went to school at Nazareth Academy, a Roman Catholic convent school, before returning to Edna in 1890 to teach school. The next year, in 1891, she married an Edna man, Albert Malsch, and bore him three daughters: Mary, Marguerite, and Hortense. In 1903, the couple moved to Harris County, where the marriage faltered. On 11 May 1906, Hortense divorced Albert in a Harris County court. Her divorce petition explained that her husband, Albert, “is lazy and of no account, and…works only about half of the time…”

While working as a court reporter to make ends meet, Hortense began the study of law, through a correspondence course. Three years later, Hortense married her second husband, William Henry Ward, a Houston lawyer. In 1910 she passed the State Bar examination, earning a rank of second out of all applicants who took the test. Hortense became Texas’ first licensed woman attorney to practice law. Another woman, Edith Locke, had previously been admitted to practice law, but she left no record of ever exercising the powerful right she earned. Hortense, in contrast, transformed Texas law.

Hortense and her husband W. H. Ward practiced law together in Houston, as partners, before Harris County voters elected her husband as a county judge. Like many other early women attorneys, she avoided taking cases to Harris County’s all-male juries, leaving the firm’s litigation to her husband. Although she did not argue in Texas courts, she wrote or helped write many of the briefs her husband filed. Hortense was at least seventy years ahead of her time; she anticipated the complicated lives of late twentieth century and twenty-first century lawyers by practicing law with a lawyer spouse while raising three children. As late as 1939, seventy-six percent of women practicing law remained childless, while only three percent were raising three or more children.

Hortense soon began using newspapers to make a case for the reform of women’s rights and status. On April 1, 1911, Hortense published an influential article in The Houston Chronicle entitled The Legal Status of Married Women in Texas. The article helped convince the Legislature to grant women the right to enter into commercial contracts, but the reform failed to satisfy Hortense and her supporters. Redoubling her lobbying, she convinced the State Bar to adopt a resolution recognizing the right of a married woman to exclusively manage and control her separate property; keep, control, and dispose of her own earnings independent of her husband; and to contract as a free individual.

In 1912, the Delineator, a popular woman’s magazine, published Hortense’s pamphlet, Property Rights of Married Women in Texas. Hortense pointed out that, in Texas, a husband “may even mortgage or sell every piece of furniture in the home, and [the wife] is helpless to prevent [it], even if her earnings have paid for every piece. He has a right to sell her dresses if he sees fit.” The Texas Federation of Women’s Clubs, the Texas Congress of Mothers, Texas’ then-powerful progressives, and fathers who feared that their daughters might marry a wastrel or a bum persuaded the Legislature to enact the Married Women’s Property Act in 1913. The resulting statute gave Texas women “the power to make contracts, giving the wife control over her separate property…giving her control over the rents from her separate real estate, interest on bonds and notes, and dividends on stock owned by her…”

During the second decade of the twentieth century, Hortense led the Texas suffragette movement – by example. On February 25, 1915, she and her husband were both admitted to practice before the U.S. Supreme Court, making her the first Texas woman admitted to practice in the highest court in the land.

In March 1918, the Legislature enacted a statute that granted Texas women the right to vote in primary elections. One year later, Texas became the first Southern state to ratify the Nineteenth Amendment to the U.S. Constitution, which authorized women the right to vote in all elections. As President of the Harris County Equal Suffrage Association, Hortense became the first woman to register as a voter in Harris County, on June 18, 1918. She achieved another distinction in August of 1923, when Houston’s City Council appointed her as a judge of its Corporation Court, where she served six days as Texas’s only female judge of a police court.

In 1925, Governor Pat Neff, a Progressive Democrat, appointed the first all-female state supreme court in U.S. history to decide an important insurance case, Johnson v. Darr. The Darr case presented an important issue: whether trustees of a fraternal organization were entitled to exercise ownership of two tracts of land in El Paso. After the Forty-First Judicial District Court of El Paso County granted Trustees J. M. Darr, W.S. Barnes, H.A. Borcherding, and E. P. Jones clear title to only one of those two tracts, they appealed, and the El Paso Court of Civil Appeals overruled and awarded them full title to both tracts. Darr presented a problem for the Texas Supreme Court. The Woodmen of the World was a politically powerful insurance association whose membership included many prominent men. When Darr reached the Texas Supreme Court, all three Texas Supreme Court Justices were members of the Woodmen with a financial stake in the outcome of the case that required their disqualification and replacement.

When the Texas Supreme Court’s three then-serving justices disqualified themselves in Darr, Governor Neff sought three substitute justices capable of serving on a special court. Shortly before the inauguration of Miriam “Ma” Ferguson as Texas’ first female governor, Governor Neff appointed Hortense and two other recently-licensed Texas attorneys to serve as a special panel of the Texas Supreme Court. The editor of the Dallas Morning News celebrated Governor Neff’s appointment of a three-woman court: “All records were shattered [because of Governor Neff’s] healthy New Year gift of recognition to the woman barrister of today. This is the first instance a woman has been appointed to sit on the supreme bench; it is the first time a higher court is to be comprised entirely of women.”

Since Governor Neff had chosen women to serve on other commissions and boards, an all-female court presented a simple solution to the problem of male disqualification. But Governor Neff and successor governors had appointed men to other special panels in Woodmen cases, so he did not have to name any woman to that panel. On January 1, 1925, Governor Neff appointed Nellie Robertson of Granbury, Edith Wilmans of Dallas, and Hortense Sparks Ward of Houston to hear Darr. Although Governor Neff could have chosen three women solely because of the unavailability of men, he probably sought to upstage Governor Ma Ferguson, whom he neither liked nor endorsed for election. Whether viewed as an objection to the corruption and criminal conviction of Ma Ferguson’s husband, Governor James “Pa” Ferguson, or an ironic comment on “Pa” Ferguson’s opposition to female suffrage, Governor Neff showed that he was more progressive than either his predecessor or his successor.

Leaders of the State Bar soon pointed out that Nellie Robertson of Granbury and Edith Wilmans of Dallas lacked seven years of legal experience, a constitutional requirement for service on the court under the Texas Constitution. After Robertson and Wilmans recused, Governor Neff appointed Ruth V. Brazzil Roome of Galveston and Hattie L. Henenberg of Dallas as associate justices, while retaining Hortense Sparks Ward as Chief Justice. Chief Justice Ward’s court convened on January 8, 1925, and granted the petitioner’s writ of error. Chief Justice Ward and Associate Justices Brazzil and Henenberg granted W.L. Johnson’s writ of error and scheduled oral argument for January 30, 1925.

On May 23, 1925, Chief Justice Hortense Sparks Ward’s special panel affirmed the El Paso Court of Civil Appeals’ decision, vindicating the full title to both tracts asserted by Woodmen of the World. “We are of the opinion that the instrument evidencing the trust was not required by the statute to be recorded and that the title of defendants in error was not affected by the attachment lien,” Special Chief Justice Ward wrote for the Majority. “We therefore affirm the judgment of the Court of Civil Appeals reversing and rendering the decision of the trial court.” Her colleagues, Associate Justices Brazzil and Hattie Henenberg, wrote concurring opinions. Subsequent courts have cited what some newspapers called the “Petticoat Court’s” Darr decision in more than thirty cases, including a 2009 decision written by Texas Supreme Court Associate Justice Nathan Hecht.

Hortense continued to participate in politics long after Darr came to an end. Throughout her life, she supported the prohibition movement as a means of protecting women and children from the excesses of alcohol, especially when consumed to excess by irresponsible husbands. In later years, Hortense opposed the influence of the Ku Klux Klan in Texas and elsewhere. She sought to regulate working hours, supported a woman’s right to serve as a corporate officer or director, and urged the Legislature to create domestic relations and family courts.

Hortense Sparks Ward continued to play an active role in Houston’s political and social life, especially in the Houston Heights Woman’s Club, until her second husband died in 1939. Hortense passed away on December 5, 1944, in Houston’s St. Joseph Infirmary. Hortense Sparks Ward lies in Houston’s Hollywood Cemetery, fondly remembered by descendants who still play leading roles in the legal community.

The Loving Cup Texas suffragettes awarded Hortense Sparks Ward, and the gavel she used as Chief Justice of the Texas Supreme Court in Darr v. Johnson.

Alice S. Tiernan, the other Houston woman whose face appears on the bottom row of the large “Bench and Bar of Houston, Harris County, Texas” facebook, played a different role in winning rights for women and women attorneys in Texas. Another of the first Texas women licensed by the Bar to practice law, she worked with her husband R. H. Tiernan. Unlike Hortense, Alice conducted appellate criminal litigation in her own name. Even as late as 1949, only one percent of women lawyers practiced trial law or defended the accused.

In Houston Chronicle Publishing Co. v. Tiernan, her husband sued their home town’s largest newspaper for publishing an allegedly defamatory 1912 story discussing Alice’s involvement in a barratry case instigated by the State Bar for prosecution by the District Attorney. The Galveston Court of Appeals’ ruling, which reversed a jury verdict and judgment for the Tiernans, helped decide the parameters of privilege in Texas defamation cases. Within a few years, Alice ended her controversial career as criminal appellate counsel. But the example she and other lawyers set as fierce defenders of individual rights inspired later generation to enter Harris County courtrooms, first as parties, then as lawyers, and finally as judges and justices.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

The next time you’re feeling tooled around, consider Robert Pelkey’s plight.

There he was, sick in bed in his New Hampshire apartment, when a snowstorm hit in February 2007. Unbeknownst to Pelkey, his landlord had Dan’s City Used Cars tow Pelkey’s 2004 Honda Civic from the parking lot so that the snow could be cleared. The ailing Pelkey was hospitalized soon thereafter, during which his left foot was amputated and he suffered a heart attack. He was discharged two months later only to discover that Dan’s City was planning to sell his car at a public auction to pay the towing and storage fee.

Two days before the auction, Pelkey’s lawyer told Dan’s City that Pelkey wanted to pay the fees and reclaim his car. Dan’s City nonetheless went ahead with the auction, and ultimately traded Pelkey’s Civic to a third party.

Pelkey got nothing for his car. So he sued Dan’s City and asserted various state-law claims for damages based on violations of a New Hampshire statute regulating the removal, storage, and disposal of abandoned cars. And, in due course, his case wound up in the United States Supreme Court on a preemption issue under the Federal Aviation Administration Authorization Act. Despite its aviation-flavored name, this statute’s preemption provision also applies to the trucking industry – and to towing under certain circumstances.

Justice Ginsburg’ opinion for the unanimous court in Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769 (2013), holds that the preemption provision does not apply to Pelkey’s state-law claims arising from the towing company’s disposal of his car because this dispute does not involve “transportation of property” under the federal statute. Pelkey faces no preemption hurdle in his effort to extract compensation from Dan’s City.

I highlight this opinion not to celebrate the determined Mr. Pelkey’s victory over the unloved towing company, but to consider a frequently used writing technique that appears at the beginning of Dan’s City Used Cars, Inc. This technique is the definition of parties and other terms by shorthand references in parentheticals.

Many briefs and opinions over-define. Every participant in the litigation gets a personalized parenthetical – even if it merely informs you that plaintiff James Smith will be referred to hereinafter as (“Smith”) and defendant Harry Jones will be referred to hereinafter as (“Jones”). This approach is all clutter and no help. It reflects the same paint-by-numbers approach to legal drafting that is exemplified by annoying references to “the instant case” and the gratuitous inclusion of inter alia.

The problem becomes acute when the drafter defines multiple entities or documents with acronyms to create a secret code decipherable only by the litigants, their lawyers, and the National Security Agency (hereinafter referred to as the “NSA”). It is not uncommon to see something along these lines in a brief or opinion:
The instant case arose from a business relationship between Acme Global Insurance (“AGI”) and Assurance Network of Texas (“ANT”). The purpose of this relationship was, inter alia, to negotiate a Joint Underwriting Memorandum (“JUM”) to govern the parties’ actions in developing and marketing Big Loss Experience (“BLE”) coverage to customers. AGI, ANT and others signed the JUM for BLE.
You get the idea.

To be sure, defined terms can aid comprehension when they are used thoughtfully and sparingly. Dan’s City Used Cars, Inc. follows this approach by using only two parenthetical defined terms at the opinion’s beginning: The petitioner is defined as “Dan’s City” and the federal statute is defined as the “FAAAA.” I can’t really quarrel with either writing choice. It would be clumsy to refer to the petitioner by its full name throughout the opinion. And there probably is no non-clumsy way to abbreviate a federal statute that has four words beginning with “A” in its name. Mercifully, there is only one “Pelkey” in the case and Justice Ginsburg has enough confidence in her readers to assume they will remember he owned the Civic.

In deciding when and how to define terms at the outset of your document, bear in mind the example of Mr. Pelkey, Dan’s City, and the FAAAA. When it comes to definitions and acronyms, less really is more.

Did you know . . . ?

by JoAnn Storey

A "writ refused" opinion in cases decided after June 14, 1927, have the same precedential value of a Texas Supreme Court opinion. Mark E. Steiner, Not Fade Away: The Continuing Relevance of "Writ Refused" Opinions, The Appellate Advocate, Vol. XI, No. 2, p. 3 (February 1999); see also Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 754 n. 52 (Tex. 2006) (noting that case decided after 1927 "carries the imprimatur of Texas Supreme Court precedent.").

Vasquez relied on the Green Book as authority. The most recent version of the Green Book says the writ refused designation had that effect starting in 1892. See also State v. Clear Channel Outdoor, Inc., 2012 WL 4465338, *4 n. 3 (Tex.App.—Houston [1st Dist.] 2012, pet. filed).

Point is: if you are feeling a bit insecure about citing some really old court of appeals' case, you may find that it has the precedential value of a Texas Supreme Court opinion if the writ/petition was refused.

AppellaTech: Automated Table of Authorities in MS Word

Setting up your brief so that Word will automatically create and update your table of authorities is a fair bit more on the technical side than my last post about using auto-correct to quickly create your citations. As a result, this post does not come along with any similar public shaming for not following the instructions. (Trust me, I'm just as sad to not be writing it as you are to not be reading it.) Many people prefer to not get too into the technical side of their software. In most circumstances, I tend to be the same way. So I begin with a much more gentle push for why you should consider following my instructions.

In my experience, drafting a table of authorities after the brief is otherwise done is a tedious and frustrating process. While there is a fair bit more labor involved in setting up your brief so that it will automatically create and update your table of authorities, in my opinion, it saves time in the long run. It also gave me a greater sense of confidence that my table of authorities was as close to perfect as I could get it.

That's rather vague, I know. It typically makes more sense to convince people that they should go through a process before actually explaining the process. Here, however, most of the explanation of why it is a worthwhile process will make more sense if I explain the process first. For those that are anxious, scroll down to the bullet list at the end. For the more patient, please at least gloss over the explanation of what you need to do to create a table of authorities. Hopefully, that will make the explanation of the benefits make more sense.

The first step (and most laborious step) in your process is marking all of the legal citations in your brief. (Naturally, citations to the record do not appear in your table of authorities. So you will not need to mark those.) Let's say this is a portion of text in your brief:

Select the first citation you want to mark. (The order in which you mark them has no effect on how they appear later on.)

If you prefer keyboard shortcuts, press Alt+Shift+I (all together). If you prefer to use the menu ribbon at the top, select "References" and then click on "Mark Citation."

Either way, you should get this screen:

There are two things you need to do. First, make sure "Category" is correct. Here, it is. Other options are Statutes, Other Authorities, Rules, Treatises, Regulations, and Constitutional Provisions. You will notice on the right, there is a button that allows you to add other categories. You can also use this to change the order in which those categories appear (on the list and in your table of contents). Before doing anything like this, please read my caution below.

Second, type in a short citation name. This can be anything you like. The short citation is there only for internal purposes. No one else will see what the short citation is. That said, if your short citation in this pop-up matches up with the actual short cite (a portion or all of it) that you use later in the brief, that can help make marking other citations later on easier.

Once you've done these two things, click on the Mark button. The pop-up screen should now look like this:

Congratulations! You've marked your first citation. Unfortunately, you're not quite done with it (if it's a case cite). Go ahead and close the pop-up. One thing you might notice is that your text looks a little unusual.

The text in between the curly brackets is the information Word uses to create the table of authorities. For case citations, the table of authorities should not include a pinpoint cite. So you will need to delete that from the text between the curly brackets. While you can make other edits to the text between the curly brackets, I would urge extreme caution in doing so. Unless you are very familiar with the different segments of this text, you can end up creating errors for your table of authorities.

You're now ready to mark your next citation. If you want the dots and paragraph symbols to go away, go to your Home ribbon, and click on the paragraph symbol.

Now usually, I mark my citations in the order they appear in the brief. But for the sake of this post, let's skip ahead. Let's say a little later on, your brief contains this text:

Select "Tipps" and open the citation marking pop-up (Alt+Shift+I). You get this:

Now, if the text you selected matches the short citation you gave for the citation originally, then Word will automatically select the right case in the pop-up. If the selected text does not match the short citation (for example, when your citation is "Id."), then you will need to scroll through the box just beneath the "Short citation" field until you find the case you're referencing, and click on it. Either way, once the original citation has been selected, click on the "Mark" button.  You'll get this:

This is the short citation cite. It's what tells Word that one citation refers back to an earlier citation. You will use this for your Id. citations as well.

Now you go through and mark every legal citation. As I said, this is labor intensive. But the end result is a table of authorities that always updates every time you make an edit. So let's turn to making a table of authorities. Go to the page you want, and put the cursor where the table of authorities should begin. If it's not currently selected, click on the Reference ribbon at the top of Word. You will see an option for "Insert Table of Authorities."

Click on that, and you will get this:

You can play around with the options to get what you want. But once you are comfortable with everything, click "OK." You will get something like this:

It's not bad, but it needs to be better. The page looks too cluttered. Here's my suggestion. Put the cursor after the comma following the style of the case. Then press Shift+Enter. Do that for each citation. Now it should look like this:

Admit it. You have table of authorities envy.

Now let's say you make any amount of changes to your brief. It could be a little. It could be a lot. Now you want to update your table of authorities. Click anywhere in your table of authorities, and press F9 (at the top of your keyboard, not far from the actual 9 key). Voila! Automatic update! You're welcome.

You'll notice that when you press F9, you loose all those Shift+Enter changes you made (any any others). That's why you want to wait until the very end to make those formatting changes. But now, you can do any amount of editing and your citations will be right there with you.

It's worth noting that if you have multiple sections in your table of authorities (such as a section for cases, a section for statutes, a section for rules of procedure, etc.), you will need to click on each section and press F9 to update.

So here it is. A little summary of the advantages that this process should give you:
  • You can pretty easily mark your citations as you go along. So the labor isn't too intensive.
  • If you inadvertently type in a short cite without an earlier long cite, you'll know, because you won't find the reference in the citation marking pop-up.
  • If you're doing edits and find yourself with an Id. that doesn't match up to the earlier cite, you can find out what it's meant to refer to if you display the citation marks in the text.
  • This is the most important one: If you're finishing your brief on a rapid deadline, you know your table of authorities will be ready almost at the moment you're done with editing. It may not sound like much, but a table of authorities can be a pain to put together, especially at the end of a tight deadline.
If you're on the fence about whether you want to go through this process, try it once. If you don't like it the first time, the next time probably won't be any better. But if you do like it, I believe you will save yourself a lot of time and worry in the long run.

Next column: Using styles in Word. This will be my last how-to for Word for a while. But I promise there will be a LOT more public shaming in it.

Derek Bauman
Staff attorney, First Court of Appeals

Comments, questions, and useful information are always welcome (and desperately sought). Please send them to: submissions@hbaappellatelawyer.org.

Case Updates for July and August 2013

By John Barnes, Baker Donelson, and Andrew Nelson ,Wright & Close, LLP

Proving proper service by judicial notice in a default judgment case: potential pitfalls.

In re J.M.H., No. 01-12-00793-CV, 2013 WL 4606151 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet. h.)

Issue Presented: Can proper service in a default judgment situation be proven by asking a court to take judicial notice of facts surrounding service?

Relevant Facts: The State of Texas filed a petition against Victor A. Charles seeking to establish paternity and to establish his child support obligations for J.M.H. Charles was incarcerated in a Texas Department of Criminal Justice facility at the time. A private process server delivered citation and a copy of the petition to a correctional officer at the facility. Charles did not appear at the hearing, and the trial court issued an order adjudicating Charles the father of the child and setting his child support obligations. Charles filed a motion for new trial, which was denied. Charles appealed, alleging that the court lacked jurisdiction over him because he was not properly served.

Legal Summary: Before a trial court may enter a default judgment, the record must affirmatively indicate that a defendant was properly served. A provision of the Texas Civil Practice and Remedies Code provides that the warden at a TDCJ facility may designate an employee to accept service of process on behalf of an inmate. However, in the case before it, the record contained no evidence that the TDCJ employee that accepted service on Charles’ behalf was designated by the warden of the facility to serve as an agent for service of process on inmates confined in the facility.

To fill the gap, the State asked the First Court to take judicial notice of two facts: 1) that the employee that received service works in the law library at the facility, and 2) that all law library employees have been designated by the warden to receive service of process on behalf of inmates. The First Court noted that it can only take judicial notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tex. R. Evid. 201. The court held that neither of the facts the State requested the court to judicially notice met that criteria; therefore, the court declined to take judicial notice of those facts. Accordingly, the State did not meet its burden to show proper service, and the default judgment against Charles was reversed.

Standing to file suit as assignee of a cause of action: when does the cause of action arise?

Magill v. Watson, No. 01-12-00051-CV, 2013 WL 3422663 (Tex. App.—Houston [1st Dist.] July 9, 2013, no pet. h.)

Issue Presented: When does a cause of action arise such that it may be assigned by one individual to another?

Relevant Facts: Before filing suit for breach of an earnest money contract, the executor of an estate executed an assignment of all causes of action under the contract to two trusts. The trusts then filed suit against the Magills. At trial, the trustees prevailed and were awarded a judgment against the Magills. The Magills appealed, asserting that the trusts lacked standing to file the suit.

Legal Summary: A plaintiff may acquire standing by the assignment of a cause of action. On appeal, the Magills alleged that, because the assignments took place before suit was filed, the assignments were void when executed. To be effective, the Magills argued, a suit must have been filed by the estate at the time of the assignment.

To prove standing under an assignment, a party claiming to be the assignee of the assignment must prove “(1) a cause of action existed that was capable of assignment and (2) the cause was in fact assigned to the party seeking recovery.” In examining whether a cause of action existed at the time of the assignment, the court first addressed the Magills’ argument that Section 12.014 of the Texas Property Code permits a cause of action to be sold only after it is filed with a court. The First Court held that the only purpose of that section was to require notice to parties already involved in a lawsuit of the sale of a cause of action by one of the parties to the suit. The provision was never intended to limit the sale of causes of action to existing claims in lawsuits. Thus, the court held, Section 12.014 of the Texas Property Code did not apply.

The court went on to note that, “[a]t common law, a ‘cause of action’ ordinarily consists of two distinct and separate elements, the primary right and duty of the parties respectively and the wrongful act or omission violating it.” Further, “‘a cause of action’ has also been said to consist of those facts entitling one to institute and maintain an action at law or in equity.” Accordingly, the court noted, a cause of action may exist before a suit is filed. Therefore, the court held that the fact that the estate had not filed suit before it assigned its cause of action to the trusts was not a ground to conclude that the trustees lacked standing.

Is an applicable statute of limitations tolled for each day a defendant is not present in the State of Texas?

Medina v. Tate, No. 01-12-00496-CV, 2013 WL 3421973 (Tex. App.—Houston [1st Dist.] July 9, 2013, no pet. h.)

Issues Presented: Does a resident defendant’s absence from the State of Texas for any period of time during which an applicable statute of limitations is running toll the running of the statute?

Relevant Facts: Medina sued Tate for injuries occurring on Tate’s premises. Medina filed his suit two years and one day following the date of the injury—i.e., the date after the relevant limitations period expired. Tate moved for summary judgment on limitations grounds. The trial court granted the motion.

Legal Summary: On appeal, Medina argued that, although his suit was technically filed one day too late, the limitations period against Tate should have been tolled for each day that Tate was not present in the State of Texas. Tate did not contest that she was outside the State of Texas for at least one day during the relevant time period. Medina’s argument was based on Texas Civil Practice and Remedies Code Sec. 16.063, which states:
The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.
The court began by noting that numerous courts from around the State of Texas have held for years that an applicable statute of limitations is tolled each time a defendant is absent from the State, and is tolled for the whole time that the defendant is outside the State. In fact, the court noted its own precedent so holding. Winston v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

Tate did not address the court’s prior precedent, but rather urged the court to adopt the reasoning of a 2010 case from the Fourteenth Court of Appeals, Zavadil v. Safeco Insurance Co. of Illinois, 309 S.W.3d 593, 596 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). In Zavadil, the Fourteenth Court relied on two Texas Supreme Court decisions concerning the tolling of the statute of limitations for non-resident defendants, Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008) and Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009), to hold that a resident defendant’s time outside the State of Texas does not toll any applicable statutes of limitations. The Zavadil court based its ruling on the notion that, even when resident defendants are physically absent from the State, they are still subject to personal jurisdiction in Texas and are always amenable to suit in the State.

Although it noted its desire to achieve uniformity with its sister court, the First Court held that it could not follow Zavadil. The First Court noted that the Fourteenth Court’s interpretation of Section 16.063 “essentially appends to the statute the additional provision, ‘unless the person is subject to personal jurisdiction in Texas and amenable to service.’” This addition, the First Court held, would essentially render Section 16.063 meaningless. Accordingly, the Court held that the statute of limitations was tolled for the time Tate was out of the State of Texas, and that Medina’s action was not barred by limitations.

Calculation of prejudgment interest: when does the meter begin to run?

Christus Health Gulf Coast v. Carswell, No. 01-11-00292-CV, 2013 WL 4602388 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet. h.)

Issue Presented: When a litigant files a lawsuit and subsequently added additional causes of action, and at trial recovers only on the subsequently added causes of action, what is the proper date on which to begin the calculation of prejudgment interest?

Relevant Facts: Carswell sued Christus on June 7, 2005 for medical malpractice allegedly committed against her late husband. After conducting discovery, on January 5, 2007, Carswell amended her petition to add post-mortem claims against Christus for improper handling of her husband’s heart, body, and other organs. At trial, the jury awarded Carswell damages for her post-mortem claims only. In the final judgment, the trial court awarded prejudgment interest accruing from June 7, 2005, the date the suit was initially filed.

Legal Summary: On appeal, Christus challenged the date on which the trial court began the calculation of prejudgment interest, arguing that the proper date on which to begin the calculation was January 5, 2007, the date on which the post-mortem claims were added. The court began by noting the purposes behind prejudgment interest, namely to compensate plaintiffs for lost use of the money due between the time of filing and judgment, as well as to encourage settlements. Prejudgment interest is not awarded to punish the defendant.

Next, the court noted two 2012 cases from the Fourteenth Court of Appeals holding that where a plaintiff amends its pleadings to add claims on which it is eventually entitled to prejudgment interest, the calculation of prejudgment interest begins from the date the amended pleading was filed. Those decisions noted that the two main purposes underlying prejudgment interest awards are not served by permitting the interest to be calculated from the date of the initial filing of the suit. A plaintiff is not deprived of money if he is not awarded interest prior to the date the claim on which an award of prejudgment interest is based. Further, and perhaps more importantly, the goal of efficient settlement cannot be served by awarding prejudgment interest before a claim is filed, namely because a defendant is not aware of the claim and cannot attempt to settle it. The court agreed with the holdings of the Fourteenth Court of Appeals and held that an award of prejudgment interest is calculated from the date on which the claim supporting the award of prejudgment interest is filed.

Zachary Coleman v. Christopher DeWayne Reich, No. 14-12-00794-CV (Tex. App.—Houston [14th Dist.] July 2, 2013)

Issue Presented: The issue presented in this appeal was whether a series of letters filed of record as an alleged Rule 11 agreement together constitute an enforceable contract.

Relevant Facts: Zachary Coleman and John Coleman (collectively, the "Colemans") filed suit to recover damage allegedly sustained in a motor vehicle accident with Christopher DeWayne Reich ("Reich"). On July 14, 2011, the Colemans' attorney sent a letter to Reich, offering to settle their claims for $8,000 and $4,500, respectively. The offer required a response by July 21, 2011.

On July 20, 2011, Reich responded, offering to pay $8,000 to settle Zachary's claim and $4,500 to settle John's claim, but adding that no settlement checks would be issued until the Colemans executed settlement documents and confirmed that no outstanding liens existed. Reich's letter included a signature line for the Colemans' attorney to indicate acceptance, which was never signed.

Thereafter, John executed a formal settlement agreement, but Zachary refused to agree to settle his claim, whereupon Reich moved for summary judgment on a counterclaim for breach of contract, alleging that the parties correspondence constituted an enforceable Rule 11 agreement. Zachary responded that Reich's July 20 letter was not an acceptance, but only a counter-offer, which Zachary was free to reject. The trial court agreed with Reich, entering summary judgment in his favor. After denial of a motion for new trial, Zachary appealed.

Outcome/Holding: The Court held that, because the July 20 letter included additional terms not found in the July 14 letter, referred to the fact that Reich was making an offer to settle, and further contained the unexecuted signature line, the July 20 letter was ambiguous as to whether Reich intended to accept Zachary's offer or to propose a counter-offer. Consequently, the Court concluded that the trial court had erred in granting summary judgment for Reich, and reversed and remanded.

Christopher Norman v. Christopher Henkel and Lisa Henkel , No. 14-12-00995-CV (Tex. App.—Houston [14th Dist.] July 30, 2012)

Issue Presented: The issue presented by this appeal was whether a general warning to "don't slip" was sufficient to discharge the duty of the owner or occupier of land to an invitee.

Relevant Facts: Appellant Christopher Norman is a mail carrier whose walking route included Christopher and Lisa Henkel's neighborhood. On January 9, 2010, an abnormally cold day in Houston during which there was a hard-freeze warning in effect until the following day, Norman delivered mail to the Henkels, handing the mail directly to Lisa, who was standing at the front door. Lisa contended that she cautioned Norman to be careful and specifically mentioned the icy conditions. Norman contended that Lisa never said anything to him about ice on the Henkels' premises and saw no ice as he approached to deliver the mail, but acknowledged that she said, "[d]on't slip," after he gave her the mail. As he walked away, Norman slipped and fell on a patch of ice on the Henkels' walkway. Norman sued the Henkels for premises liability, negligence and gross negligence, seeking damages for injuries sustained in the fall.

The Henkels moved for summary judgment, on the ground that "all evidence presented by either side shows that Defendant Lisa Henkel explicitly warned Plaintiff regarding potentially icy conditions just seconds before he fell." The trial court granted summary judgment, and Norman appealed.

Outcome/Holding: The Court reversed and remanded, concluding that the phrase "don't slip" was too general an instruction to constitute an adequate warning of the slippery condition, noting the public policy concerns that might be raised by an alternate holding. Justice Jeffrey V. Brown dissented, concluding that, under the circumstances of the event (the generally icy conditions, the hard-freeze warning, etc.), a reasonably prudent person in Norman's position would have understood the warning to relate to ice as the cause of slippery conditions, and Lisa Henkel's warning was therefore adequate.

The City of Houston v. Maria Zuniga Ranjel, et al., No. 14-12-00458-CV (consolidated with No. 14-12-00459-CV) (Tex. App.—Houston [14th Dist.] August 1, 2013)

Issue Presented: The issue presented by this consolidated interlocutory appeal was whether the City of Houston, as the owner and operator of Bush Intercontinental Airport ("the Airport"), waived immunity under the Texas Tort Claims Act (TTCA) in connection with an accident involving the automated people mover (APM) system at the Airport in which several of the Appellees were injured.

Relevant Facts: The APM is a remotely controlled, above-ground train that transports passengers along elevated guideways from terminal to terminal. Because Houston and its employees do not possess the knowledge to operate and maintain the APM, Houston has always retained a third-party to perform these functions. For all times relevant, that third-party operator was Johnson Controls, Inc., one of the appellees.

At the time of the incident, Houston had decided to expand the APM system at the Airport to include an additional guideway connecting terminals 2 and 3, said expansion being referred to as the "Phase 3 Project." Houston contracted with Continental Airlines, Inc. to manage the Phase 3 Project. Two of the companies involved in the Project were Post, Buckley, Schuh & Jernigan, Inc. (PBS&J) and Webber, L.L.C. (Webber). Once the new guideway was substantially complete, it was turned over to Johnson Controls for inclusion under its existing contract to operate and maintain the APM system.

On October 26, 2010, James Farr, a Johnson Controls employee, escorted appellee Juan Cordero and two other Webber employees into an area of the new guideway where trains were not allowed due to the ongoing work. They were later joined by appellee Travis Turner, an employee of PBS&J. Subsequently, Farr left the worksite. At some point thereafter, Turner and Cordero walked onto a part of the guideway where the trains were running and were struck, Turner dying as a result of his injuries and Cordero suffering incapacitating injuries. Appellees filed suit.

At the trial court, Houston filed a plea to the jurisdiction, asserting that the TTCA did not waive Houston's sovereign immunity because no Houston employee was alleged to have used or operated the train in a negligent manner. The evidence presented showed that, although Houston owned the APM system, neither it nor its employees had the knowledge or expertise to operate it on a day-to-day basis. The evidence further showed that, under its contract, Houston (a) could give Johnson Controls permission to operate the system with a reduced number of trains and could shut down the system entirely by cutting the electrical feed for the Airport, but that Houston had no ability to directly affect the daily operation of trains on the APM guideway, for which Johnson Controls personnel were required; and (b) had input into the formulation of policies and procedures related to the APM guideway, but that Houston never provided Johnson Controls with a set of safety rules and regulations for the APM system, as Johnson Controls was given the authority to enact site policies and procedures without obtaining Houston's approval. It was also undisputed that the guideway was elevated, and could only be accessed by an elevator that was under the exclusive control of a Johnson Controls employee. Nevertheless, the trial court denied Houston's plea, and this appeal followed.

Outcome/Holding: The Court held that the TTCA did not waive Houston's immunity because the evidence showed that neither Houston nor its employees had the ability or contractual authority to directly control the operation or use of the APM trains. Though the Court noted that the evidence indicated that Houston had the contractual authority to instruct Johnson Controls to hold trains in the station and had participated in the formulation of the policy governing access to the APM guideway, this was insufficient to establish the level of control necessary to make Johnson Controls an employee, and thus subject Houston to waiver of immunity under the TTCA. As it concluded that remand would be futile, the Court reversed and rendered, dismissing appellees' claims against Houston.

Ernest Navy v. College of the Mainland, No. 14-12-00528-CV (Tex .App.—Houston [14th Dist.] August 1, 2013)

Issue Presented: The issue presented in this appeal was whether the trial court erred in granting summary judgment in favor of the College of the Mainland (the "College") as to Navy's claims for disparate-treatment racial discrimination and retaliation under the Texas Commission on Human Rights Act (the "Act").

Relevant Facts: Navy, an African-American professor at the College who was terminated, sued the College, alleging that his firing was due to racism on the part of his superiors, and constituted disparate treatment and retaliation in violation of the Act. The College moved for summary judgment.

The summary judgment evidence showed that Navy was terminated because he failed to positively respond to disciplinary intervention, specifically by making unsupported allegations against colleagues, delaying answering students' correspondence, and exhibiting insubordinate behavior. In addition, the evidence showed that the quality of Navy's online courses was significantly substandard, he incorrectly calculated students' grades over a multiyear period, he inappropriately assigned an excessive number of incomplete grades, and his performance had been the subject of an excessive number of student complaints. Further, the evidence showed that a high-school principal whose students took classes at the College specifically requested that her students be assigned to any instructor other than Navy. The evidence also demonstrated that Navy had engaged in several activities protected under the Act, including filing numerous grievances and complaints against colleagues and against the College itself. Prior to his discharge, Navy was given a negative peer review evaluation in 2007, in which his colleagues gave him low scores. He was also denied tenure on multiple occasions, his tenure file being disorganized and containing multiple instances of plagiarism, as well as numerous spelling and grammatical errors. The evidence further showed that Navy had been unreceptive to feedback by the ad hoc review committee, which questioned Navy's professional judgment and ethics because, among other things, Navy included an e-mail in his tenure file which was, in fact, two separate e-mails that Navy had combined so as to change their meaning.

The trial court granted the College's motion, and Navy appealed.

Outcome/Holding: The Court addressed Navy's disparate-treatment and retaliation theories separately. As to both theories, the Court noted that it was undisputed that Navy was a member of a protected class and had engaged in protected activities (e.g., filing grievances, filing claims with the Texas Workforce Commission, etc.). As to Navy's disparate-treatment theory, the Court noted that the Act does not address every decision made by employers that arguably might have some tangential effect upon employment decisions (e.g., disciplinary filings, supervisor's reprimands, and even poor performance evaluations), but rather addresses only "ultimate employment decisions", such as those that involve hiring, granting leave, discharging, promoting, and compensation. Accordingly, the only, ultimate employment decision presented by Navy was his termination. The Court held that the College had presented ample evidence of non-discriminatory bases for Navy's termination, and that, for his part, Navy had failed to present evidence of any professor at the College with a similar history of misconduct and performance issues that had received different treatment. As to his retaliation claim, although the Court noted that retaliation claims are broader in scope than disparate treatment claims, encompassing decisions beyond merely "ultimate employment decisions," they also require that the claimant demonstrate that the adverse employment decision would not have occurred "but for" his engaging in the protected activity and that the adverse decision would deter a reasonable person from engaging in the protected activity. In this case, the adverse employment decisions cited by Navy included negative peer review evaluations and denials of tenure, for which the Court held that the record contained ample evidence of alternative bases for the adverse decisions (Navy's misconduct, history of complaints about his performance from within and outside the College, the poor state of his tenure file, etc.). Moreover, the Court concluded that the adverse decisions made by the College were not such as would deter a reasonable person from filing grievances, etc., and, in fact, the evidence showed that they had not deterred Navy himself. Accordingly, the Court concluded that Navy had failed to raise a genuine issue of material fact as to either of his claims, and it therefore overruled Navy's issues and affirmed the summary judgment of the trial court.

Justice Christopher filed a concurring opinion, as she determined that Navy's Pleadings raised an additional claim beyond disparate-treatment and retaliation: that the College committed discrimination in Navy's discharge. However, because Navy failed to present any evidence that he was replaced by anyone outside of his protected class, Justice Christopher found that he had likewise failed to raise a fact issue as to discrimination.

Sutapa Ghosh and Cinemawalla, Inc. v. Pawan Grover, M.D., et al., No. 14-10-00974-CV (Tex. App.—Houston [14th Dist.] August 29, 2013)

Issue Presented: The issues presented in this appeal included, but were not limited to, (1) whether the statute of frauds barred the appellees' breach of contract claim because a promise to make a contribution to a limited liability company is unenforceable unless it is in writing, see TEX. BUS. ORG. CODE § 101.151; (2) whether evidence that the money in one party's account all came from a second party, and that all of the second party's money came from a third party, is legally sufficient to support a conversion claim by the third party against persons who took the money out of the account of the first party; and (3) the effect of the omission of a question or instruction on justifiable reliance as to the sufficiency of the evidence for a claim of fraud.

Relevant Facts: Appellee Grover and a partner wrote a screenplay for a movie called 97 Minutes, featuring a plot involving a terrorist attack, and assigned the rights to the screenplay to Grover's company, appellee PAV Entertainment, L.L.C. ("PAV"). In November 2006, Grover formed appellee 87 Minutes Productions, L.L.C. ("87 Minutes") for the purpose of producing the film, naming PAV as the registered agent for 87 Minutes and causing PAV to assign the rights to the screenplay to 87 Minutes. He also hired Maureen Doherty as 87 Minutes' attorney. At all times relevant, Doherty also represented appellant Sutapa Ghosh ("Ghosh") and his company, Cinemawalla, Inc. ("Cinemawalla").

Over the course of the next year, Grover, PAV and 87 Minutes (collectively, "Appellees") secured a written commitment from William Hurt, an Academy-Award winning actor, to star in the film, as well as written commitments from a director, casting director and a director of photography. By the end of 2007, however, Appellees had failed to secure financial backing for the film. At around that time, Doherty suggested that Grover contact Ghosh, who was attempting to produce a film called Ex-Pats that similarly featured a terrorist attack as a key plot point. Doherty explained that Ghosh had secured financing for his project in the form of $4 million in escrowed funds, but had not been able to obtain commitments from actors, directors or other necessary personnel. Grover met with Ghosh, who verified Doherty's statements. The two then agreed to combine the resources of their respective companies and form Cinemawalla 97 Minutes, L.L.C. ("the LLC") for the purpose of producing 97 Minutes, and filed a certificate of formation naming 87 Minutes and Cinemawalla as the LLC's members. the certificate was silent as to any capital contributions to be made in exchange for those membership interests. After opening a bank account in the LLC's name, Grover and Ghosh orally agreed that, in exchange for their respective membership interests, (a) 87 Minutes would contribute the rights to the screenplay for 97 Minutes, as well as the written commitments obtained by Appellees, plus an additional $1 million -- $600,000 cash and a $400,000 credit; and (b) Ghosh would attempt to modify Cinemawalla's existing financing contract and have the $4 million escrowed funds released for the production of 97 Minutes instead of Ex-Pats.

Grover gave Ghosh the business plan for 97 Minutes to submit to her financier. Over the next several months, Ghosh repeatedly assured Grover that the financier had agreed to the reallocation of the escrowed funds to the 97 Minutes project, and would release the first portion thereof at the end of April, but would need proof of 87 Minutes' capital contribution before it would authorize the release. Accordingly, Grover wired an additional $633,979 from 87 Minutes' account to the LLC's account. With Grover's approval, Ghosh then wrote herself a check from the LLC's account for preproduction expenses that she had incurred, but for which she could not otherwise reimburse herself until the first portion of the escrowed funds was released. Over the course of that month, the parties used funds from the LLC's account to buy an airplane that was to be the primary set of the film, pay for a trip to Argentina to scout locations, and to pay various personnel, including $375,000 to pay Hurt half of the fee he required to secure his commitment to the film. The parties' relationship subsequently deteriorated, and, on April 28, Ghosh told Grover that the financier had backed out.

In July 2008, Appellees sued Ghosh and Cinemawalla (collectively, "Appellants"), alleging, among other things, breach of contract, conversion, and common-law fraud. Following a trial on the merits, a jury returned a verdict in the Appellees' favor on each cause of action.

On appeal, Appellants argued, in part: (1) the statute of frauds barred the breach of contract claim; (2) the evidence was legally insufficient to support the jury's finding on the conversion claim; and (3) the trial court erred in entering judgment in Appellees' favor on the fraud claim because the evidence conclusively established that Grover's reliance on Ghosh's alleged misrepresentations was unjustifiable.

Outcome/Holding: The Court reversed in part and remanded. The Court concluded that the statute of frauds barred enforcement of Ghosh's oral promise to secure the $4 million escrowed funds for the project. Addressing Grover's argument that Ghosh had waived the statute of frauds as an affirmative defense by failing to request a jury instruction on it, the Court concluded that the issue had been conclusively established by the evidence, and the defense was therefore not waived, consistent with the Court's prior holding in XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 632 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). The Court further concluded that the evidence was legally insufficient to support Grover's conversion claim, as the evidence showed that he no longer had the immediate right of possession, having lost upon deposit of the funds into 87 Minutes account, which, in turn, lost any claim for possession of the funds upon their deposit into the LLC's account. Disposing of Grover's argument that he retained a right to immediate possession because he was entitled to rescind the fraudulently induced oral contract, the Court noted that there was no legally enforceable contract to rescind. Turning to Ghosh's legal sufficiency point of error, the Court noted that Ghosh had not requested a jury instruction on the issue of justifiable reliance. Therefore, consistent with the Court's prior holdings in Yeng v. Zou, No. 14-11-00819-CV, 2013 WL 3864320 (Tex. App.—Houston [14th Dist.] Jul. 25, 2013, no pet. h.), and Energy Maint. Servs. Grp. I, LLC v. Sandt, 401 S.W.3d 204 (Tex. App.—Houston [14th Dist.] 2012, pet. denied), because the jury charge did not require Appellees to prove justifiable reliance, and legal insufficiency of the evidence on that issue would not prevent the trial court from rendering judgment on the fraud claim. Accordingly, the Court overruled Ghosh's legal sufficiency point of error as to the fraud claim.