Features for December 2013

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

JUDICIAL INTERVIEW SERIES
Chief Justice Rogelio Valdez: Humble Beginnings by Stephen Barrick

REBORN ON THE BAYOU: Magna Carta and English Common Law Return to Texas
David Furlow describes the development of English common law in Texas's early years.

REWRITE THIS SENTENCE
Justice Bill Boyce, 14th Court of Appeals, warns about the scourge facing the modern jurist: link rot.

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH
Derek D. Bauman discusses how to make a well-formatted brief with paragraph styles.

CASE UPDATES FOR SEPTEMBER, OCTOBER, AND NOVEMBER 2013
Case updates for the First and Fourteenth Courts of Appeals
by John Barnes and Andrew Nelson, Wright & Close, LLP

Chief Justice Rogelio Valdez: Humble Beginnings

by Stephen Barrick, Hicks Thomas LLP

Chief Justice Rogelio Valdez of the Thirteenth Court of Appeals has come a long way from his humble beginnings.
One of ten children, Justice Valdez is the son of immigrant farm workers. Born in the small farming community of Raymondville, Texas, in South Texas, Justice Valdez grew up on a farm and worked as a migrant farm worker as a youth. That work took him all over the country and forced him to miss two years of school as a teenager. When he graduated from high school (two years late, because of work), he was the first in his family to do so.
Justice Valdez developed an interest in the law at an early age. He first learned about practicing law from his grandfather, who had been a legal advisor in Mexico. As a boy, Justice Valdez used to earn extra money shining shoes at the local courthouse, where he would often sit in on trials to watch the lawyers in action. Justice Valdez’s favorite television show growing up was Perry Mason, and he wanted to be like Perry Mason.
After high school, Justice Valdez attended Texas A&I University (now Texas A&M University – Kingsville), where he was elected Student Body President. After graduating in four years with a liberal arts degree, he went straight to law school, attending Texas Southern University in Houston. While in law school, he interned at the district attorney’s office and worked in the legal aid clinic, where he met his future wife, Adelita.
After law school, Justice Valdez worked a few years at a title company and as a solo practitioner. Then a friend who had been elected District Attorney in Cameron County offered him a job as an assistant district attorney. Justice Valdez accepted the offer and moved to Brownsville to become a prosecutor. Only a year later, however, when the judge of County Court at Law No. 1 decided to run for a district court seat, Justice Valdez saw an opportunity and decided to run for the county court-at-law seat. He won that election and became one of the youngest county court-at-law judges in the State, only four years out of law school.
Judicial Career
Justice Valdez served as the Judge of County Court at Law No. 1 in Cameron County for four years. Then, in 1986, after the State created a new district court, he decided to run for that open seat. Before the election, however, the Governor appointed someone else to fill the seat, and Justice Valdez found himself running against an incumbent in a hotly-contested primary. Justice Valdez ultimately prevailed and became the first elected judge of the 357th District Court of Cameron and Willacy Counties. Justice Valdez credits his success, in part, to the rising influence of Hispanic voters in South Texas.
Justice Valdez served as a district court judge for fourteen years. Then, in 2000, he ran for an open seat on the Thirteenth Court of Appeals. He was opposed in the primary by another district court judge from Corpus Christi, and it turned into a heated primary battle between two sitting judges. But Justice Valdez again prevailed in the primary, ran unopposed in the general election, and became the first Hispanic Chief Justice of the Thirteenth Court of Appeals. Since then, Justice Valdez has never drawn an opponent in any election.
Justice Valdez happily reports that he has enjoyed every judicial office he has held, and he enjoys the appellate bench in particular because it affords him the time and resources to carefully consider every case. By comparison, he jokes, being a district court judge is like being an air traffic controller: you have to deal with cases and issues as they arise and quickly move on to the next one, with little time for reflection.
Argument in the Thirteenth Court of Appeals
In the Thirteenth Court of Appeals, cases are assigned to a judge or panel once the case is ready for submission. Oral argument is not routinely granted; instead, it is granted only in cases where the court believes it will be helpful. Justice Valdez noted, however, that the court will sometimes schedule oral argument if a party files a motion after oral argument is denied explaining why oral argument is necessary.
When oral argument is presented, Justice Valdez believes the best advocates are the ones who are knowledgeable about the state of the law and are candid with the court about the record. Argument that over-emphasizes the equities, or attempts to over-simplify the key legal issues, is not particularly effective. Justice Valdez believes that demonstrative exhibits are helpful during oral argument in cases that involve complicated or evolving facts, and he appreciates it when lawyers use exhibits to make the court’s job easier.
Judicial Philosophy
As a jurist, Justice Valdez believes that courts should be as open and transparent as possible and that litigants should have their day in court. For this reason, he tends to disfavor summary judgments and to give great deference to jury verdicts. Justice Valdez prefers to keep his opinions as brief and to-the-point as possible, and he rarely authors separate opinions.
Personal
Justice Valdez has received many accolades over the years. He has been honored as Hispanic of the Year by Image of Brownsville, Outstanding Citizen by the Harlingen Jaycees, Exemplary Former Migrant Student by the Texas Education Agency, and Pro Bono Honoree by the Cameron County Pro Bono Project. Most recently, in 2012, Justice Valdez was named a Distinguished Alumnus by Texas A&M University – Kingsville.
Justice Valdez has five adult children, ranging in age from 24 to 34, and two grandchildren. A self-described workaholic, Justice Valdez has little spare time for hobbies and pastimes. But in what little spare time he has, Justice Valdez likes to return to his roots and work with his hands on his horse ranch near Harlingen.

Reborn on the Bayou: Magna Carta and English Common Law Return to Texas

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.

Just after sundown, Sam Houston, the first elected president of the Republic of Texas, strode up the stairs to attend a grand cotillion in Houston City, the Republic’s new capital. Six feet, six inches tall and forty-three years old, eagle-eyed and courtly-mannered, Sam wore a black velvet suit braided with gold, a scarlet cassimere waistcoat, and a ruffled shirt. Silver spurs jangled from the heels of the tightly-laced, red-topped boots he wore, in place of dancing slippers, to strengthen the ankle a Mexican musket ball shattered exactly one year before, a few minutes after 3:30 PM on April 21, 1837, at the Battle of San Jacinto.

“[W]e had a grand San Jacinto ball,” twenty-one year old Francis Lubbock, later a governor of Texas, wrote many years later. “[A]nd it would have reflected credit on any one of the large cities of the United States on account of the great number attending, drawn for miles from the settled portions of the State, the many beautiful women present with their fine costumes and the many elegant looking young men handsomely dressed.”

Another San Jacinto veteran, General Mosely Baker, set aside his political differences with President Houston to permit his wife, Mrs. Eliza Ward Pickett Baker, to escort Sam to the first San Jacinto Ball. Eliza’s beauty and the fine black lace overdress she wore over her white satin ball gown won the admiration of the men in their evening coats, white silk cravats, gold-braided officers’ uniforms, ruffled shirts, and evening coats – and the envy of the ladies arrayed in wide hoop skirts, velvet ball gowns, and New Orleans finery.

The musicians raised their violin, bass viol, and fife to play Hail to the Chief when they saw Sam arrive. “The dancers withdrew to each side of the hall,” Adele Looscan wrote in THE LADIES MESSENGER, “and the whole party, General Houston and Mrs. Baker leading, and maids bringing up the rear, marched to the upper end of the room…. Then were the solemn figures of the stately cotillion executed with care and precision, the grave balancing steps, the dos a dos, and others to test the nimbleness and grace of dancers.”

Those who accompanied President Houston that night included not only future governor Francis Lubbock and his wife Adele but also the lively Miss Mary Jane Harris, President Houston’s personal attorney John Birdsall, whom Sam would soon appoint as Texas Attorney General on August 15 of that year, and Britain’s consular officer at Tampico, Mexico, Joseph Tucker Crawford, who was also responsible for monitoring the Lone Star Republic. Dancing lasted until dawn, and President Houston remained sober.

A new capital in a new city: Houston. Neither a roof nor a ceiling graced the unfinished, two-story, twenty by fifty foot ballroom President Houston and Mrs. Baker danced across on April 21, 1837. Like everything else in Houston City, both ballroom and building were new. Less than six months before the ball, on November 30, 1836, the Republic’s First Congress had selected Houston City, named after the President, to serve as the Republic’s new capital. Construction of the capitol building began on April 1, three weeks before Houston began tightly lacing his boots so he could waltz despite the ankle injury still healing from the San Jacinto battle.


Photographs by David A. Furlow, 2013

As a result of the Texas Revolution and the unsettled state of the Republic, the capital, also the home of the Texas Supreme Court, moved frequently from 1836 to 1845:
  • first, at Washington-on-the-Brazos, then at Harrisburg, and then at Galveston, each of which served as a temporary capital during the Revolution, from the Declaration of Independence on March 2, 1836 through April 21, 1836;
  • second, at Velasco, in Brazoria County, from April through September of 1836, while the Republic’s leaders kept General Santa Ana there;
  • third, at West Columbia, in Brazoria County, from October through December 1836;
  • fourth, at Houston, from 1837 through 1839, at what is now known as the Post Rice Lofts, formerly the Rice Hotel, at 909 Texas Avenue in downtown Houston;
  • fifth, at Waterloo, later renamed Austin in honor of Stephen F. Austin, in Travis County, from 1839 through 1842;
  • sixth, at Washington-on-the-Brazos, in Austin County, from 1843 through 1844; then
  • seventh, at Austin, which served as the Republic’s last capital in 1844 and 1845.

Austin became the state capital in 1846 by legislative decree, and, in 1850, by a majority of the popular vote in 1850. Austin remained the capital under the United States of America and the Confederate States of America.

In the four months from January 1, 1837 until May 1, 1837, the settlement first known as Houston City, then simply as Houston, grew from twelve residents, a few tents, and a single log cabin to Augustus Chapman Allen, John Kirby Allen, and Charlotte Allen’s burgeoning town of one thousand, five hundred people, one hundred houses, and Thomas H. Borden’s gridiron plat of broad streets running perpendicular and parallel to Buffalo Bayou.

“[T]he courts of justice performed their duty sternly and with good results,” Francis Lubbock wrote, attributing the success of the courts to the character of Houston’s settlers:
[F]rom the very first settlement of Houston we had good people, intelligent men, and elegant women of good breeding and fine culture....We soon had a good legal bar, with proper courts, learned physicians, good preachers, and intelligent school teachers.
“As Houston continued to grow rapidly,” Lubbock wrote, “we became ambitious and wanted a city. So Congress incorporated Houston as a city early in June, 1837.”

On December 15, 1836, while still seated in Columbia, in Brazoria County, the First Congress of the Republic enacted its first judiciary statute. It set judicial salaries and scheduled the term of the Texas Supreme Court to begin on the first Monday in December. Later congresses postponed the date the supreme court’s term began as Texans became familiar with the delays, checks, and balances inherent in any judicial system.

The first chief justice of the Supreme Court of Texas: James Collinsworth. President Houston soon chose James Collinsworth, a native of Tennessee and a former U.S. District Attorney, to serve as the Texas Supreme Court’s first Chief Justice. After moving to Texas, Collinsworth won honor at the Battle of San Jacinto and fame as an exemplar of “chivalrous conduct” in a report written by Texas Secretary of War Thomas J. Rusk to then-President Burnet.

Chief Justice Collinsworth would have presided over the first session of the Republic’s supreme court, in December of 1837, but the absence of a quorum forced the session’s cancellation. On July 11, 1838, Chief Justice Collinsworth fell into a drunken stupor on board a steamboat crossing Galveston Bay, then fell, or was pushed, or jumped into the bay in a fit of depression, and there drowned.

The second chief justice of the Supreme Court of Texas: John Birdsall. President Houston appointed John Birdsall, his friend from the San Jacinto Ball and later the Republic’s Attorney General, to replace James Collinsworth as the high court’s next chief justice. A close ally responsible for securing Sam’s divorce from his estranged Tennessee wife, John Birdsall was born in 1802 in Greene, New York, studied law, earned an appointment as Circuit Judge of New York’s Eighth District in 1824, and arrived in Harrisburg, Texas in early 1837.

But the Supreme Court of Texas did not convene during Chief Justice Birdsall’s one-month term, and a Senate dominated by supporters of the second president, Mirabeau B. Lamar, refused to confirm Houston’s appointment of Birdsall. John Birdsall returned to private life, joined Sam Houston as a law partner in 1837, and died of yellow fever on July 22, 1839. He is buried in Glendale Cemetery, in Harrisburg.

The limited rule of English common law begins in Texas. Another man who accompanied President Houston to the first San Jacinto Ball, British consular officer Joseph Tucker Crawford, noted the new republic’s decision to govern itself under English common law. During the Convention that began on March 1, 1836, the new nation’s leaders made the common law of England the law of Texas in criminal matters under Article VI of the DECLARATION WITH PLAN AND POWERS OF THE PROVISIONAL GOVERNMENT OF TEXAS.

Section 13 of Article IV of the 1836 CONSTITUTION OF THE REPUBLIC OF TEXAS, adopted on September 8, 1836, required that,
The Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision. Over time, substantive English common law, as interpreted in Texas and other American courts, would come to govern commerce in Texas, while English common law procedures would largely remain in England and while important categories of Castilian substantive and procedural law would carry on in Texas.
On December 20, 1836, while still the capital in Columbia, Texas, President Houston carried out his constitutional duties by signing an act adopting the common law of England, “as now practiced and understood ... in its application to juries and to evidence.

Nevertheless, Congress dragged its collective, spur-shod heels and did not adopt the common law of England into Texas civil law until January 20, 1840. That statute stated:
Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled,

That the Common Law of England, so far as it is not inconsistent with the Constitution or acts of Congress now in force, shall, together with such acts, be the rule of decision in this Republic, and shall continue in full force until altered or repealed by the Congress.
On February 5, 1840, Congress enacted another statute declaring that, “the adoption of the common law shall not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer...”

Virgin soil, or a phoenix reborn? So Houston began, “planted on virgin soil – a town where none had ever been before, in a republic still in the process of taking shape,” as historian Marguerite Johnston observed in HOUSTON: THE UNKNOWN CITY, 1836-1946.

Except for two things. Largely unknown but for a small group of Houston archaeologists, historians, and preservationists, English common law did not wait until 1836 to come to the Bayou City and the Allen Brothers and President Sam Houston did not plant the Republic’s new capital on virgin soil.

In 1986, Dr. Kenneth L. Brown, Ph.D., Chairman of the University of Houston’s Anthropology Department, responded to Houston Fire Department inquiries about a construction worker’s discovery of graves during the expansion of HFD’s Logistical Center and Maintenance Depot at 1305 Dart Street. The graves did not come as a surprise. City leaders named Jeff Davis Hospital after the President of the Confederacy because building crews discovered, in 1924, that their construction activities were wrecking a cemetery for Confederate soldiers buried in the City’s Old 1840 Cemetery. The 1840 cemetery originally contained four separate sections: one for wealthy whites, another for African-Americans, a third for paupers, and a fourth for suicides and duelists. The City later made sections available for burial of many hundreds of Yellow Fever victims, Freemasons, and Confederate veterans.

Photographs of the site of the former English colony beneath the site of the Old 1840 City Cemetery, the first Jeff Davis Hospital, and a Houston Fire Department maintenance station, taken by David Furlow in December 2013.

The really interesting thing was not the Confederate graves but what lay deep beneath them. Dr. Brown excavated some forty “black earth” graves of plague victims buried deep beneath the expected Confederate graves in four parallel rows, uniformly spaced and laid out on a Christian east-west axis, with the corpse looking east toward Jerusalem. A deep black layer of organic material – leaves and earth – covered the badly decomposed bones of what appeared to be plague victims.

Louis F. Aulbach and Linda C. Gorski, the author of BUFFALO BAYOU: AN ECHO OF HOUSTON'S WILDERNESS BEGINNINGS and the President of the Houston Archaeological Society, respectively, noted that,
Ceramic pieces found in the black earth graves date from the 1600’s and are a type of ceramics used by English colonists of that period. The black earth graves were mandated by a law of the City of London in 1563 (rescinded in 1685) for persons who died of disease. The nature of the burial [without a coffin] was designed to accelerate decomposition and retard spread of disease.

Further excavations found that the graves were aligned within an area bound by a moat ten feet wide and ten feet deep that is similar to a colonial pattern found in Charleston, South Carolina and dating to the same period of English colonization.
In short, these graves, darker in color and different in texture from the Confederate burials, belonged neither to Indians nor Spaniards nor Frenchmen nor later Yellow Fever victims did not belong to Indians. And one dark earth grave contained several fragments of Rhenish storeware, ceramics exported by Germans to the Dutch who resold it to English settlers throughout seventeenth century America. The black earth graves most likely belonged to people who came from seventeenth century England.

Examination of topographical reports revealed that the site occupied the highest ground in the area bounded by the confluence of White Oak and Buffalo Bayous. A week ago I confirmed that even today, the site of the old Jeff Davis Hospital slopes steeply down toward the bayou. The unknown leaders who buried their comrades chose a hill site unlikely to flood and then fortified it with a deep with trench and two triangular bastions of the kind used at Jamestown, St. Mary’s City, Maryland and the Printzhof, the capital of the New Sweden colony, to deter or defeat a European enemy’s anticipated attack.

Dr. Brown, the Principal Investigator of Harris County’s Old Cemetery Project from 1986 to 1992, used a backhoe excavate a trench ten feet wide trench to determine what lay beneath the 1840 Old Cemetery. He employed core drillings to explore the surrounding area. Further digging revealed a ten foot wide by ten foot deep moat, the remains of a gun-platform palisade (a seventeenth century defensive fence made of palings, i.e., sharpened stockade poles), and mid seventeenth century pottery.

Additional research revealed that archaeologists from Texas A&M University had discovered the remains of a skinned, but not consumed buffalo carbon-dated to 1645 on nearby White Oak Bayou. Texas’ Indians consumed or otherwise used every part of a buffalo. But Europeans were principally interested in taking their fur.

The archaeology convinced Dr. Brown and his colleagues that English settlers came to Houston, bringing the common law to Texas with them long before the French and Spanish settled in the area. Marc Schneider published a map of the settlement in the Houston Chronicle showing it overlapping the Old Jeff Davis Hospital and the HFD maintenance depot at 1305 Dart Street. “As far as I’m concerned,” Dr. Brown told archaeologists in 1986, “we have a 17th-century English colony under a portion of downtown Houston.”

In short, some two centuries before Thomas Borden imposed a gridiron plat on the swampy lands lying along both sides of Buffalo Bayou, another group of English settlers came to build a settlement on the high ground later occupied by the City of Houston’s 1840 Cemetery and the old Jeff Davis Hospital at 1010 Girard and Elder Street, a site occupied by the Elder Street Artists Lofts, a renovated version of the old Jeff Davis Hospital.

It appears that seventeenth century Englishmen settled secretly along Buffalo Bayou, then known to Spanish authorities in Madrid and Mexico City as the Rio de Spirito Santo, to lay claim by possession to the Carolana Colony and to create a privateering base from which they could attack Spanish shipping in the Golpe de Mexico (Gulf of Mexico).

But who were these English settlers who came to Buffalo Bayou? They were colonists of a vast swath of land known as the Carolana colony (Carolana, “belonging to Charles” in Latin, not Carolina with an i) that King Charles I of England conveyed to his Attorney General, Sir Robert Heath, on October 30, 1629.

King Charles recognized Attorney General Heath’s patent as an exclusive right to possess all lands from the Atlantic coast of what is now North and South Carolina to the “South Seas,” i.e., the Pacific, a continent-girdling colony from America’s Atlantic coast to the Pacific coast south of 36 degrees and north of 31 degrees longitude. The Carolana patent was the largest single land grant to one man in American history. An eighteenth century map of the Carolana colony, showing it extending all the way to Buffalo Bayou, appears below.

A MAP OF CAROLANA AND OF THE RIVER MESCHACEBE [MISSISSIPPI],
a 1722 map found at the state North Carolina maps web-page,

Why build a settlement so far inland? To protect themselves against the Spanish, who claimed exclusive right to possession of the coasts abutting their colony of New Mexico. In 1565, King Phillip II dispatched a Spanish admiral and conquistador, Don Pedro Menendez de Aviles, to end the privateering threat a French colony near present-day Jacksonville, Florida posed to the Spanish treasure fleets passing along Florida’s eastern coast before sailing across the Atlantic to Seville. Aviles annihilated the French, executing nearly four hundred prisoners after raping French Huguenot women and murdering their children.

And in 1641, Spanish General Francisco Diaz Pimienta, acting on orders given by Spain’s King Philip IV, assembled an invasion fleet of seven large ships, four pinnaces, fourteen hundred soldiers and six hundred seamen to invade and destroy a Puritan English privateering colony at Providence Island, a settlement one hundred and twenty miles off the coast of Nicaragua.

If Englishmen settled along Buffalo Bayou to prey upon shipping in the Gulf, they needed a well-hidden, well-fortified inlet that might easily evade Spanish eyes. The confluence of White Oak and Buffalo Bayous offered just such a place of refuge. Contemporaneous Spanish records reflect that their Saint Augustine, Florida garrison failed to receive their situado, or resupply, intact for ten years in a row in the middle years of the seventeenth century, in part because of English and French piracy in the Gulf of Mexico.

It is during this time that the maps and sea charts of master Dutch cartographers depict Galveston Bay with stunning accuracy, along with a little river running northward from it named Rio de Santa Spirito. Jan Jansson’s INSULAE AMERICANAE IN OCEANO SEPTENTRIONALI CUM TERRIS ADJACENTIBUS (“Islands of America in the Ocean with Adjacent Lands), a chart compiled in 1636, shows the breadth and shape of Galveston Bay with the Rio de Santa Spirito running northwest from it.

Another seveneenth century Dutch chart, Pieter Goos’s PASCAERTE VAN WESTINDIEN DE VASTE KUSTEN EN DE EYLANDEN (“Chart of the West Indies and the Vast Coasts along the Islands”) updates master cartographer Hessel Gerritsz’s 1631 chart of the Gulf of Mexico to reveal finely-detailed coastal features, including the Rio de Santa Spirito name for Buffalo Bayou and a star of navigational rhumb lines (a path derived from a sea-captain’s well-defined initial bearing), all clustering on the coast west in the area of what is now Brazoria County. At some point between 1630 and 1650, the Dutch became intimately familiar with the area around Galveston Bay, either because they were sailing there or because they were trading and sailing with Englishmen settling there.

During his research, Dr. Brown found a contemporary Spanish record from a gold merchant in New Mexico to a Spanish trade merchant complaining that gold was repeatedly being “stolen at the Rio de Santa Spirito by the English.” It appears that English privateers were operating out of Buffalo Bayou.

So what does a seventeenth century English settlement signify for the history of law in Houston? It suggests that English common law and the Magna Carta came to Texas two centuries before Anglo-American settlers and English sailors brought them to Spanish Tejas and Mexican Texas in the early nineteenth century.

Attorney General Robert Heath, the proprietary patentee of the Carolana colony after 1629, embodied the heritage of English law. He graduated from St. John’s College, Cambridge University, at the age of fourteen and Clifford’s Inn at the age of seventeen. He then began his work as a London barrister at the Inner Temple in 1603. In 1621, Englishmen elected him to Parliament. Appointed Solicitor General of England in 1621, he received a knighthood, won appointment as Attorney General in 1625, and was serving as the Chief Justice of England’s Court of Common Pleas by 1631. He presided over Star Chamber cases but aroused King Charles’ suspicions by showing clemency to accused Puritans.

The 1629 Charter of the Carolana Colony survives. Although Carolana was a proprietary colony similar to a privately held company, the Charter contained a Bishop of Durham Clause that authorized a measure of self-government for those who lived within its bounds, including the right to make law for the new land as he, his officers, and his free-holder settlers deemed appropriate:
Charles by the grace of God of England Scotland France & Ireland King Defender of the faith &c: To all to whom these present lres shall come, greeting...

We have seen the inrolement of certaine of our lres patents under our great scale of England made to Sr Robert Heath Knight our Atturney Generall, bearing date at Westminster the 30. day of October in the 5 yeare of our reigne & inrolled in our Court of Chancery, & remaining upon Record among the Roles of the Said Court in these words: The king to all to whom these present &c: greeting. Whereas our beloved and faithful subject and servant Sr Robert Heath Knight our Atturney Generall, kindled with a certain laudable and pious desire as well of enlarging the Christian religion as our Empoire & encreasing the Trade & Commerce of this our kingdom: A certaine Region or Territory to bee hereafter described, in our lands in the parts of America betwixt one & thirety & 36 degrees of northerne latitude inclusively placed (yet hitherto untild, neither inhabited by ours or the subjects of any other Christian king, Prince or state...

Know therefore that wee prosecuting with our Royall favor the pious & laudable purpose & desire of our aforesaid Atturney of our especiall grace certaine knowledge & meere motion, have given, granted & confirmed & by this our present charter to the said Sr Robert Heath Knight his heirs & assignee for ever, doe give, grant & confirme all that River or Rivelett of St Matthew on the South side & all that River or Rivelett of the great passe on the North side, & all the lands Tenements & Hereditaments lying, beeing & extending within or between the sayd Rivers by that draught or Tract to the Ocean upon the east side & soe to the west & soe fare as the Continent extends itselfe with all & every their appurtenances & alsoe all those our Islands of beayus Bahama & all other Isles & Islands lying southerly there or neare upon the foresayd continent ail which lye inclusively within the degrees of 31 & 36 of Northerne latitude….And furthermore the patronages and advowsons of all churches which shall happen to be built hereafter in the said Region Territory & Isles and limitts by the increase of the religion & worship of Christ Together with all & singular these & these soe amply, Rights Jurisdictions, priviledges prerogatives Rovaltyes libertyes immunityes with Royall rights & franchises whatsoever as well by sea as by land, within that Region Territory Isles & limitts aforesaid To have exercise use & enjoy in like manner as any Bishop of Durham within the Bpricke or County palatine of Durham in our kingdome of England ever heretofore had held used or enjoyed or of right ought or could have hold use or enjoy.

And because in the Government of see great a Province sudden chances many times happen to which it will be necessary to apply a remedy before that the Freeholders of the sayd province can be called together to make lawes, neither will it be convenient, upon a continued title in an emergent occasion to gather together soe great a people therefore for the better Government of the sayd Province, we will & ordaine & by these presents for Us our Heires & Successors; doe grant unto the said Sr Robert Heath his Heires & Assignes by himself or by magistrates & officers duly constituted for that purpose (as before is sayd) shall & may have power from time to time to make & constitute wholesome & convenient Ordinances within the Province aforesaid & be kept & observed as well for the preserving the peace as for the better Government of the people there liveing; & to give publicke notice of them to all whom it doth or may concerne: which Ordinances we will that they be inviolably observed within the sayd Province under the paines expressed in them soe as the sayd Ordinances be consonant to Reason & not repugnant nor contrary, but (as conveniently as may be done) consonant to the laws, statutes & rights of our Realme of England as is aforesaid soe alsoe that the same Ordinances extend not themselves against the right or interest of any person or persons or to distrayne bind or burden in or upon his freehold goods or chattels: or to be received any where there in the same Province or the Isles aforesayd.
Magna Carta, the Charter of Carolana, and English common law governed all English subjects who came to English Texas in the seventeenth century. Sir Robert Heath’s CHARTER OF CAROLANA became the basis for John Locke’s 1669 FUNDAMENTAL CONSTITUTIONS OF CAROLINA that granted English settlers of North and South Carolina that measure of freedom that eventually evolved into the Tar Heel State and the Palmetto State.

At some point in the seventeenth century, Sir Robert Heath’s adventure in Texas ended in failure and abandonment. The long, parallel lines of black earth graves suggest that plague, smallpox, or the Yellow Fever that laid low so many Houstonians in the nineteenth and twentieth centuries likely brought the colony to an end.

In Joseph Conrad’s HEART OF DARKNESS, the character Marlow imagines what it must have been like to be a Roman soldier posted to Britain when it was still a colony, a colony like the one that rose up along the banks of Buffalo Bayou during the seventeenth century:
I was thinking of very old times, when the Romans first came here, nineteen hundred years ago, the other day…Imagine the feelings of a commander of a fine – what d’ye call them? – trireme in the Mediterranean, ordered suddenly to the north; run overland across the Gauls in a hurry….Imagine him here, the very end of the world, the sea the color of lead, a sky the color of smoke, a kind of ship about as rigid as a concertina – and going up this river with stores, or orders, or what you like. Sandbanks, marshes, forests, savages, – precious little to eat for a civilized man, nothing but Thames water to drink. No Falernian wine here, no going ashore. Here and there a military camp lost in a wilderness, like a needle in a bundle of hay – cold, fog, tempests, disease, exile, and death, – death skulking in the air, in the water, in the bush. They must have been dying like flies here.
So it may have seen to the soldiers and settlers who sailed and lived along Buffalo and White Oak Bayous in the middle of the seventeenth century.

Perhaps the English suffered too many deaths and too much disease. Dr. Brown’s research revealed Spanish records of four English ships carrying families and animals west past their colony of Florida in 1664. Was that when the Carolana colonists gave up on their western adventure? Or did the colony collapse because Sir Robert lost King Charles’ favor in 1634 because of his clashes with Archbishop William Laud, the harrower of the Puritans? Or did the colony collapse when Parliament impeached Sir Robert in 1644 for high treason because of his ties to Charles I?

However it came about, it appears that English settlers, and English law, came to Houston in the seventeenth century, and quietly left again, leaving no memory behind, nothing but a settlement beneath the soil. Other English settlements collapsed during the seventeenth century, too. The 1607 colony at Pop ham, Maine and the Wessagussett colony north of Plymouth are two examples, while the Jamestown colonists abandoned Jamestown and boarded ships to sail back to England, only to be returned to their posts by Lord De La Warre and his resupply vessels.

We may never know the real story of what happened to the settlement near the confluence of White Oak and Buffalo Bayous. We shall not know until the City of Houston grants archaeologists permission to excavate the soil beneath the Houston Fire Department’s Logistical Center and Maintenance Depot at 1205 Dart, around the corner from the Elder Street Lofts and the site of the old Jeff Davis Hospital. Then, perhaps, we will know more about what happened here, in our home town, and listen to tales written in bone, stone, tears, and rust, stories that now remain shrouded and silent.

Houston is not a city built on virgin soil. It lived and it died once before. And in 1836, under the guidance of President Sam Houston, the Allen Brothers, and Charlotte Allen, Houston rose like a phoenix above the black earth graves along Buffalo Bayou.

Author’s note: If you have any useful information you’d like to share about the lost colony buried beside Houston’s Buffalo and White Oak Bayous, please feel free to e-mail me at dafurlow@gmail.com. And if you’re interested in learning more about the common law and Magna Carta, you can see an original copy of England’s charter of freedom at the Houston Museum of Natural Science from February 14 through August 17, 2013. See http://www.hmns.org/index.php?option=com_content&view=article&id=652&Itemid=684 (accessed Dec. 10, 2013). David A. Furlow


Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

It's hard enough to write a solid legal opinion that will withstand the passage of time.

Deep research, tight reasoning, clear prose, and careful craftsmanship cannot guarantee that a particular opinion will influence the direction of future decisions. Perhaps a higher court will reverse it. Perhaps other opinions will disagree with it. Perhaps the statute at issue will be amended. Perhaps it addresses an obscure issue that doesn't get litigated often, or a unique fact pattern that is unlikely to reoccur.

To this longstanding list of threats to precedential potential, add another one specific to the age in which we now litigate.

Link rot.

This pernicious condition afflicts hyperlinks to Internet content contained in opinions and other documents. The Internet's ephemeral nature means that a significant proportion of links will stop working after a relatively short time as websites come and go; content ceases to be maintained; and data is moved, updated, or simply deleted.

Oliver Wendell Holmes never had to worry about this.

A recent New York Times article cites a study concluding that 49 percent of the hyperlinks contained in opinions by the United States Supreme Court no longer work.

One example comes from Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n. 14 (2011) (Alito, J., concurring).

Justice Alito voted with the majority to declare unconstitutional a California statute prohibiting the sale or rental of violent video games to minors, albeit on narrower grounds than those embraced by the majority.

Justice Alito's concurring opinion describes a number of especially violent and gory video games, and includes footnote cites to various Internet sites that discuss these games. A link to http://ssnat.com is provided in footnote 14 to support the concurring opinion's assertion that one particularly repulsive video game allows players to reenact the mass murders at Columbine High School and Virginia Tech.

As of today, if you click on this link you will be greeted with a picture of a forest and this text: "404 Error - File Not Found."

But there's more. A cheeky message below the text asks, "Aren't you glad you didn't cite to this web page ...?" It continues, "If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age."

A cautionary tale for writers of opinions and briefs alike.

I will think about this example the next time I am tempted to cite something from the Internet that has not been captured in a screen shot and included as part of the official appellate record.

On the bright side, I am comforted by the knowledge that this article is guaranteed to live forever on the HBA's website. Just like the Harvest Party pictures.

Did you know . . . ?

by JoAnn Storey

The rule governing motions for rehearing is different for the courts of appeals and for the Texas Supreme Court:

TRAP Rule 49.2
No response to a motion for rehearing need be filed unless the court so requests. A motion will not be granted unless a response has been filed or requested by the court.

TRAP Rule 64.3
No response to a motion for rehearing need be filed unless the Court so requests. A motion will not be granted unless a response has been filed or requested by the Court. But in exceptional cases, if justice so requires, the Court may deny the right to file a response and act on a motion any time after it is filed.

In Bostic, et al. v. Georgia-Pacific Corp., No. 10-0775, the Texas Supreme Court denied the PFR; the Court thereafter granted plaintiff’s motion for rehearing without first requesting a response.

Bottom line: remember the difference between the rules when advising your client whether to voluntarily file a response to a motion for rehearing in the supreme court.

AppellaTech: Using Styles in MS Word

I really do enjoy analytic writing, which goes a long way in explaining why I enjoy practicing appellate law so much. But it's the writing part of writing that I enjoy, not the formatting part. The formatting part drives me crazy. I expect that, had I come of age in the time before personal computing, I never would have become a lawyer, or at least not an appellate lawyer. The same is likely also true if I had come of age before styles became so incredibly useful in word processing. Without styles, I would not survive.

This post and the last two posts have been about how to take some of the work out of the formatting side of writing so that you can have more time to spend on the writing side. Using AutoCorrect to create your citations and then marking your citations for an automatic table of citations are incredibly useful, I believe. But they are not critical. I believe, however, that styles are critical for a clean, well-formatted brief. Otherwise you're spending a ridiculous amount of time cleaning up all of your paragraphs so that every page looks uniform and orderly. Or you're leaving other people to do the formatting work, which make you "that person." You don't want to be "that person," do you?

So what are styles? Styles are a way you can tell MS Word (or any other word processor) how every kind of paragraph you write should look. Most of your paragraphs will look more or less the same. For example, most of your paragraphs may be one-half-inch left indent on the first line, double spaced, justified, 13-point Times New Roman. I have a style, "Body Text," that I click on for every paragraph that is supposed to be formatted like that. I also have a style called "Block Text," which is one-half-inch left indent for the whole paragraph, one-half-inch right indent for the whole paragraph, single spaced, justified, 13-point Times New Roman, with a 13-point space at the end of the paragraph when the next paragraph is a different style. Then there's "Body Text No Indent," which is identical to "Body Text" except that (you guessed it) the first line is not indented. The list goes on.

The point is that, whenever I'm writing a brief and want to block quote something, I can just click on the "Block Text" in my styles pane, type the text I'm quoting (or paste it), and all my formatting is done for me. For the next paragraph, I click on "Body Text No Indent," and I plug in my citation. For the paragraph after that, I click on "Body Text" and keep on writing. I have condensed multiple changes to the settings for each paragraph into three clicks. Also, I know that the block quote I just typed is formatted exactly the same way as every other block quote in the brief. The same is true for every "Body Text" paragraph and every other paragraph that has been assigned a style.

I'd like to offer one other way that styles are useful. When you are done with writing a brief and you're doing your final check to make sure that everything looks that way it should, do you have to spend time looking for headings sitting alone at the bottom of a page or extra line breaks from the last time you corrected that but then everything got changed in the last round of edits?

I don't.

Not to rub it in.

Okay, yeah. I'm kind of rubbing it in. (A small point, admittedly. But still... )

Hopefully by now I have convinced you that it is in your best interest to be using styles. Now let's move on to how to set them up. As you might imagine, styles are rather open-ended with how you set them up. So there's a lot worth learning about styles that I cannot cover in a short post. Once I give you the basics, I encourage you to play around with them and spend some time googling what the different options are.

To set up your styles, you'll need to set up a document that will be your starting document for all future briefs. If you know how to create templates, you might consider creating one and setting up the styles in that template. Otherwise, just create a file that you'll copy each time you're ready to write a new brief. I recommend that you start with an old brief that has as many of the different kinds of paragraphs that you expect to be using already in it. For example, if you have an old brief that has block quotes to cases, block quotes to statutes or trial testimony, numerous footnotes, and perhaps a bulleted list or two, open that up. It's usually easiest to define styles based on existing text.

Now that you have your old document open, look for the styles portion of the Home ribbon.


See that tiny box with an arrow in it at the bottom right? Click on it. You should see something like this (except yours won't have the same styles listed):


Now, click on "Options..." at the bottom right.


I recommend that you choose "In current document" under "Select styles to show" and "Alphabetical" under "Select how list is sorted." But that is more of a personal choice. Once you've chosen how you want things displayed, click "OK."

Now let's set up some styles. First, if you are using an old document to set up your styles, put your cursor in a paragraph for the first style you want to use. It's probably best to start with what will be your standard paragraph text.

Microsoft has a number of pre-defined styles. Because of how open-ended styles can be, the settings for Microsoft's styles are almost certain not to be what you want them to be. But you can very quickly change them to be exactly what you want them to be. To modify existing Microsoft styles, go back into options, and select "All styles" under "Select styles to show." Then, click "OK." Find a suitable style name. (I use "Body Text" for my standard paragraph style.) Hover your mouse over the name of that style, and you will see a drop down button to the right of the style name.


Click on the drop-down, and select "Update Body Text to Match Selection."


Voila! Your first defined style. Wasn't that easy? No go through your document, find each of the different paragraph styles, and identify them appropriately. (Hold off on your headings for now, though. Styles for headings are worthy of their own article, to follow. They're complicated, but they're worth it.) If you don't like any of the names for Microsoft's pre-defined styles, you can create your own. Click on the "New Style" button at the bottom left of the style pane.


You'll get this pop-up:


Under "Name," type in your desired style name. The rest should be set up based on the paragraph your cursor is currently in. Make any changes you feel necessary and click "OK."

Once you have defined all of your styles, I recommend going back into options in the style pane and selecting "In current document" under "Select styles to show." That removes a lot of the clutter for the style pane.

Now that you have your styles set up, using them is rather easy. If you have a paragraph in your brief that hasn't been marked, simply put your cursor anywhere in the paragraph and then click on the style. If a paragraph is incorrectly formatted, just put your cursor in the paragraph and click on the correct paragraph style. Now you can be assured that all of your paragraphs in your brief are correctly formatted.

Suppose, however, that after you've done all this work, you decide that you want to change the formatting for a certain set of paragraphs. This is incredibly easy. Modify your style and all of the paragraphs based on that style are automatically updated.

As an example let's say you decide that you want your Body Text paragraphs to be 14-point font instead of 13-point.  Move your mouse over the Body Text style in the style pane, and click on the drop-down. Select "Modify..."


You will get this pop-up:


For the font size, just click on the font size drop-down and select (or type in) the correct size. Once you click okay, the change is applied to all of your Body Text paragraphs.

It is beyond the scope of this article to discuss all of the formatting options. But a few are worth noting. Look at the "Style based on" option. If you have two styles that are close to each other with just a few modifications, you can make one based on the other. For example, you can make "Body Text No Indent" based on "Body Text." If you do that, any updates you make in Body Text will also appear in Body Text No Indent. That can be both good and bad. So if other styles are changing inexplicably, this may be why.

Here's one I find particularly fun. Look at "Style for following paragraph." Nine times out of ten, when I use a block quote, it's only one paragraph long. So, in my Block Text style, I set "Style for following paragraph" to Body Text No Indent. Then for Body Text No Indent, the following paragraph is set to Body Text. Now, when I'm done typing in my block quote and I press enter, Word automatically switches the style for the next paragraph to Body Text No Indent. Once I've typed in my accompanying citation and any other following thoughts, I hit enter again. When I do, Word automatically switches the next paragraph to Body Text. It may not sound like much, but it's one more way you can spend your time focusing on the substance of your brief and less time on the formatting.

Finally, it's worth your time to click on the "Format" button on the bottom left.


Spend some time figuring out what the various options are. It is well worth your time. The "Paragraph..." option in particular has a lot of good options worth being familiar with. One setting under the paragraph option, however, deserves special mention. Click "Paragraph..." from the "Format" button. Click on the "Line and Page Breaks" tab on the new pop-up. See the "Keep with next" option?


That will make sure that the paragraph for the current style (such as a heading) will stay on the same page as the paragraph following it. Once you apply that option to your headings, you will not have to worry about headings appearing at the bottom of the page without any accompanying text beneath it. If you write particularly lengthy headings, you might keep note of "Keep lines together" to prevent a heading from being split onto separate pages.

If you're more of a visual person and want to make changes to your style, select the paragraph that will be your guinea pig, make the changes, select the drop-down for the style you want to update, and click on "Update [style name] to Match Selection." Again, the changes will be made to all paragraphs based on that style.

Once you have set up your file with all of the appropriate styles, you can use it for all your future briefs. You can do the same for motions and any other type of document you regularly create. You can delete your text without fear of losing your styles. If your styles do disappear, it's probably because you have "Select styles to show" set to "In use" under the options in the style pane. Change that to "In current document," and your styles will still be there.

As I said at the beginning, you can never learn how to automate typing in your citations and marking them for a table of authorities without suffering too greatly. To me, however, styles are critical for making a brief look well put together. Give it a try, and I expect you will reach the same conclusion.

Next column: Using headings with styles in Word. I know I said that this article would be my last how-to for MS Word for a while. That was before I realized that discussing creating and using heading styles properly necessitated its own article.

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 September, October, and November 2013

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


Appellate attorney’s fee awards: contingent on success?

Northern & Western Ins. Co, Ltd. v. Sentinel Investment Group, LLC, No. 01-12-00847-CV, 2013 WL __________ (Tex. App.—Houston [1st Dist.] Oct. 31, 2013, ____________)

Issue Presented: Must an award of appellate attorney’s fees be conditioned on a successful appeal?

Relevant Facts: A group of investors agreed to invest $1.5 million with the Panamanian company. The Panamanian company purchased a surety bond with Northern & Western as security for the investment. The investment did not deliver as promised, and the investors demanded payment under the surety bond. Northern & Western refused. The investors sued Northern & Western, and the trial court entered a summary judgment against Northern & Western on the investors’ breach of contract action. The judgment included an award of attorney’s fees: “It is ORDERED . . . that plaintiff Sentinel recover additional attorney’s fees in the amount of $50,000 in the event of an appeal.”

Legal Summary: Northern & Western appealed. One of its points was that the award of appellate attorney’s fees should have been conditioned upon Sentinel’s successful appeal. The court agreed with Northern & Western that appellate attorney’s fees must be conditioned on prevailing on appeal. However, the court refused to grant Northern & Western’s request to strike the fee award altogether. Rather, the court simply modified the judgment to condition the award of appellate attorney’s fees on a successful appeal.


Personal jurisdiction: non-residents and Texas real property

Curocom Energy, LLC v. Young-Sub Shim, No. 01-13-00462-CV, 2013 WL _________ (Tex. App.—Houston [1st Dist.] Nov. 14, 2013, _______)

Issues Presented: Are allegations of fraud in connection with a transaction involving Texas real property sufficient to subject a non-resident defendant to personal jurisdiction in Texas?

Relevant Facts: Shim was an officer of a Korean company and a resident of Korea. A subsidiary of the Korean company purchased oil and gas leases in Texas. Shim oversaw the purchase and traveled to Texas to visit the oilfield. Shim later sold a 90% interest in the oilfield to Curocom, following meetings between Shim and Curocom’s chairman in Korea. Curocom later filed suit against Shim, alleging that he fraudulently induced Curocom to enter into the contract by failing to disclose a bad production report he had received regarding the oilfield. Shim filed a special appearance, which the trial court granted. Curocom appealed.

Legal Summary: Curocom argued that Shim was subject to specific jurisdiction in the Texas because of his allegedly fraudulent dealings regarding property in Texas. The court noted that a defendant’s purchase or sale of real property in Texas would subject a defendant to specific jurisdiction in litigation regarding that property. However, Shim never personally owned an interest in the property—the property was owned by a subsidiary of the company of which Shim was an officer. Thus, the specific jurisdiction doctrine of “property ownership” would not apply to Shim.

Curocom argued that Shim was subject to jurisdiction because he visited the property in Texas shortly after negotiating purchase. However, the Curocom lawsuit dealt with a different transaction. Additionally, Shim’s allegedly fraudulent conduct occurred outside Texas. As a result, Shim could not be subjected to jurisdiction in Texas based on the commission of a tort outside of Texas, even if it was directed at property in Texas.

Next, Curocom asked the court to extend the jurisdictional nexus of Texas real property to any fraudulent inducement claims related to that property. The court refused this request, holding that an ownership right in the property is necessary for specific jurisdiction. Thus, although Shim’s alleged fraudulent inducement related to Texas real property, the court held that he could not be subjected to personal jurisdiction on those grounds because he did not personally own the property.


The impact of a bankruptcy stay on appellate jurisdiction

Saden v. Smith, No. 01-11-00202-CV, 2013 WL 5372748 (Tex. App.—Houston [1st Dist.] Sep. 26, 2013, no pet. h.)

Issue Presented: When a party files bankruptcy and invokes the automatic stay, can that party still appeal a judgment against him?

Relevant Facts: Saden and Smith were partners. Smith sued Saden for breach of contract and breach of fiduciary duty. Smith obtained a judgment against Saden. After the verdict, but before judgment was entered, Saden filed for bankruptcy. The bankruptcy court modified the automatic stay to permit the trial court to enter judgment on the verdict. The bankruptcy court then entered an order declaring that the judgment against Saden would be non-dischargeable through bankruptcy. Saden appealed the judgment. Smith filed a motion to dismiss the appeal for lack of appellate jurisdiction, arguing that the bankruptcy trustee—not Smith—had the authority to bring the appeal.

Legal Summary: The court began the analysis by noting that Saden filed an emergency motion in the bankruptcy court to confirm his authority to file the appeal. The bankruptcy court modified the stay to allow Saden to bring his appeal, but expressly declined to rule on the issue of whether the court of appeals had jurisdiction over the appeal. Thus, although the stay did not prevent Saden from filing an appeal, the court analyzed whether any other issues would prevent him from bringing the appeal.

Saden argued that the non-dischargeability determination by the bankruptcy court provided him with standing to bring the appeal. The appellate court agreed. The court noted that while a discharge under Chapter 7 bankruptcy ordinarily extinguishes a debtor’s personal liability for a debt, the bankruptcy court’s non-dischargeability order meant that Saden retained a pecuniary interest in the outcome of the bankruptcy case. Because the judgment against Saden would not be extinguished as a result of the Chapter 7 bankruptcy proceedings, and in light of the bankruptcy court’s modification of the stay, the court held that Saden had standing to pursue the appeal in his personal capacity, giving the court of appeals jurisdiction over the appeal.


William M. Bishop, et al. v. E. Barger Miller III, et al., No. 14-12-00264-CV (consolidated with No. 14-12-00318-CV) (Tex. App.—Houston [14th Dist.] September 12, 2013)

Issue Presented: This consolidated appeal presented issues concerning the vicarious liability of a corporation for its officer's misappropriation of trade secrets belonging to a third party.

Relevant Facts: These cross-appeals concerned the alleged misappropriation of trade secrets relating to a process for mining potash (potassium-containing ore) in a particular region near Moab, Utah known as Ten Mile Area. William M. Bishop ("Bishop"), a geologist and mechanical engineer, was the developer of a patented "pipe-in-pipe" or concentric-pipe heat exchanger for use in the solution mining of minerals contained in underground salt formations. While working for Parsons Brinckerhoff-Kavernen Bau und Betroeb (PB-KBB), an engineering firm, and examining materials provided by Buttes Resources Company ("Buttes"), Bishop began to formulate a process for selective solution mining ("SSM") of the Ten Mile Area. SSM involves injecting a mining solution (typically brine) underground and extracting a mineral in a crystallized form that is separated from the mining solution, which solution can then be returned underground. SSM requires a certain temperature differential between the deposit and the surface, and differs from the basic process of solution mining, wherein the mineral is dissolved with the mining solution itself (usually freshwater) and later processed for separation, requiring large retention ponds and typically leaving behind large salt deposits. The standard climate in the Ten Mile Area did not afford the proper temperature differential to use SSM as normally employed, but Bishop's plan called for the use of his pipe-in-pipe heat exchanger to achieve the correct temperature balance.

After leaving PB-KBB, Bishop began to solicit potential investors with the intent of obtaining the potassium mining rights in Ten Mile Area and developing his plan for mining in the area. The mining rights in Ten Mile Area by this time were owned by Reunion Potash Company ("Reunion"). Bishop met E. Barger Miller III ("Miller"), potential investor, and the two formed a partnership. In 2002, Bishop and Miller signed a letter agreement pledging joint participation in the project. In 2003, after additional investors failed to materialize, Miller sent Bishop a letter regarding terms for Miller's possible exit from the project, and in late 2004 or early 2005, Miller informed Bishop that he (Miller) no longer took any responsibility for the joint project.

In June 2005, Miller formed a new company, Carnallite Enterprises, LLC, with other investors, and created a business plan for the development of Ten Mile Area, which he used in an attempt to sell all or part of the project to BHP-Billiton (BHP). Miller also used the business plan to obtain a loan from Texas Community Bank, which he used to purchase Reunion (and its rights in Ten Mile Area) on behalf of Carnallite. Miller than became president of Reunion.

Miller also prepared a series of PowerPoint presentations, which he showed to a number of potential investors, including Gordon Gray, owner of Allied Crude Purchasing ("Allied"). Allied eventually purchased Reunion from Carnallite on March 23, 2007 for $1.23 million, out of which Carnallite satisfied several accounts payable and made a shareholder distribution, including to Miller's company, E. B. Miller & Co. Miller then resigned as president of Reunion, being replaced by Gray, but remained on as its secretary and continued to act as its agent to develop an Operating Plan for the Ten Mile Area leases. As of the date of the appeal, the Bureau of Land Management (BLM) had rejected the Operating Plan as incomplete, but Reunion was still pursuing its plans to develop the leases.

Meanwhile, Bishop, while seeking investors for his planned project, learned of Carnallite's purchase of Reunion and filed suit on behalf of himself and the partnership, alleging, amongst other things, fraud and breach of contract against Miller and misappropriation of trade secrets against Miller and Reunion. At trial, the jury found (1) that Bishop and Miller had formed an equal partnership, that Miller had breached his duty of loyalty to Bishop, and Bishop was entitled to $1.04 million in damages; (2) that Miller had failed to comply with his duty of loyalty to the partnership, entitling it to $2.08 million in damages; and (3) that Miller had breached a confidentiality agreement and a letter agreement, resulting in a diminishment in Bishop's interest in the joint venture of $1.04 million. The jury charge also inquired whether each item in a list of thirteen pieces of information constituted trade secrets belonging to Bishop, as well as whether a compilation of any or all of the items constituted a trade secret. The jury found that three of the items (Bishop's calculations of temperature and concentration in the Ten Mile Area, Bishop's plan for use of heat exchangers, and the economic and environmental advantages of using a heat exchanger in a closed-loop system in the development of potash beds that exist at anomalously high temperatures) individually constituted trade secrets and that a compilation of some of the items likewise constituted a trade secret, and that these had been misappropriated by Miller and Reunion, proximately causing damages to Bishop in the amount of $1,696,428.55. In its judgment, the trial court concluded that the jury verdict favored Bishop, and that Bishop had assigned his claims to Pinnacle Potash. The trial court therefore entered judgment in favor of Pinnacle, awarding (1) $1.04 million in actual damages, plus $1,456,929.84 in attorneys' fees, against Miller on the contract claims; (2) $1,357,142.84 against Miller, individually, for misappropriation of trade secrets; and (3) $339,285.71 against Miller and Reunion, jointly and severally, for misappropriation of trade secrets. The court further ordered Reunion to pay 12.4% of Pinnacle's court costs, and Miller to pay 84.6% of those costs.

Reunion appealed (Miller did not), challenging the legal sufficiency of the evidence on the following points: (1) that Bishop owned any trade secrets; (2) that Reunion used Bishop's trade secrets; or (3) that Bishop suffered damages as a result.

Outcome/Holding: The Court affirmed the trial court judgment. The Court reasoned that Bishop's calculations constituted a trade secret because the evidence demonstrated that the calculations were what permitted the use of the SSM technique that he developed. The Court further found that the use of a heat exchanger to compensate for anomalously high temperatures for SSM was demonstrated to be unique by the testimony of Bishop at trial, which was unrebutted by Reunion's industry expert, and therefore also was a trade secret. The Court also found that Bishop's testimony comparing the mining method he devised to those in use in other potash mines, emphasizing the economic and environmental benefits of this approach, was sufficient to establish this, too, as a trade secret. The Court also concluded that the compilation of information that went into Bishop's process, even though some of the information was originally sourced from Buttes, and therefore was also in the possession of Reunion, likewise constituted a trade secret. Based on the efforts of Bishop, including, but not limited to, making those with whom he shared his process sign confidentiality agreements, the Court concluded that Bishop had maintained the secrecy of his process, as required for protection under In re Bass, 113 S.W.3d 735 (Tex. 2003). The Court held that Reunion had "made use" of the trade secrets because Miller, though holding himself out to BHP as the president of Carnallite, had nonetheless openly negotiated for the development of mineral leases owned by Reunion, of which he was then president, and had used the information obtained from Bishop that constituted his trade secrets in order to entice BHP to invest large sums of money in the project, which would have inured to the benefit of Reunion. Moreover, though unsuccessful, Reunion, through Miller, had submitted its Operating Plan, of which fifteen parts were directly incorporated from Bishop's plan, and a further six were modified variants of the remaining parts of Bishop's plan, to the BLM with the intent of seeking to profit from doing so via development of the leases. As to damages, the Court found that Bishop's expert had adequately detailed the basis for his conclusions, even though he had not broken out his calculations for each of the items that the jury found to be Bishop's trade secrets, and that Reunion's expert had failed to rebut the testimony.

Justice Christopher filed a concurring opinion, as she further believed that Reunion had failed to preserve some of its complaints regarding the legal sufficiency of the evidence supporting the damages finding.


Mark A. D'Andrea, M.D., et al. v. Epstein, Becker, Green, Wickliff & Hall, P.C., et al., No. 14-12-00494-CV (Tex. App.—Houston [14th Dist.] October 31, 2013)

Issue Presented: The issues presented by this appeal were whether the preparation of a memo concerning the behavior of Appellant D'Andrea by outside counsel at the direction of the corporation's general counsel, and the furnishing of said memo to said general counsel after he was terminated by the corporation, violated outside counsel's duty of loyalty to (a) the corporation; and/or (b) D'Andrea, whom outside counsel was representing, individually, in an unrelated bankruptcy proceeding.

Relevant Facts: This was an attorney malpractice action brought by D'Andrea and various business entities of which he is the alleged "de facto owner" (the entities will be collectively referred to as "Gulf Coast"). The law firm of Epstein, Becker, Green, Wickliff & Hall, P.C. (the "Firm") represented Gulf Coast and D'Andrea in various matters, including a bankruptcy matter involving D'Andrea.

The representation at issue concerns a memo prepared in 2009 by the Firm at the behest of Gulf Coast general counsel and corporate secretary Kirk Kennedy, in which serious allegations were made against D'Andrea. The evidence showed that the memo was prepared entirely from the unsubstantiated allegations communicated to the Firm by Kennedy, and that those allegations formed the entire factual basis of the opinions contained in the memo concerning potential exposure of Gulf Coast as a consequence of D'Andrea's supposed conduct. As work on the memo progressed, the Firm became aware or had reason to know that Kennedy would be leaving employment with Gulf Coast and intended to use the memo against Gulf Coast and/or D'Andrea. Facts demonstrating this included prior communications between Kennedy and Firm attorneys concerning (a) Kennedy's seeking employment with the Firm, (b) Kennedy's request for advice concerning his employment contract with Gulf Coast; (c) Kennedy's representation that he would be fired soon and that he wanted the memo transmitted to his personal e-mail account; (d) the Firm's awareness that Kennedy had solicited a recently-fired employee to help investigate Gulf Coast; and (e) Kennedy's request that the memo specifically include a reference to section 161.134 of the Texas Health and Safety Code, which prohibits retaliatory termination by medical facilities of employees who report violations.

The memo was prepared and transmitted, initially to Kennedy's corporate e-mail account with Gulf Coast, then to his personal e-mail address when those transmissions proved undeliverable. A copy of the memo was also forwarded to Gulf Coast's president. Kennedy's possession of the memo ultimately caused considerable expense and frustration to both Gulf Coast and D'Andrea, the latter's medical practice being virtually destroyed by its publication. As a result, Gulf Coast and D'Andrea sued the Firm, alleging negligence, breach of fiduciary duty, an unspecified intentional tort, and common-law fraud. The Firm filed a traditional and no-evidence motion for summary judgment, which the trial court granted, finding that (1) D'Andrea was not a client of the firm as to the memo, and lacked standing to assert the rights of Gulf Coast, so the Firm owed him no duty; (2) the attorney-client relationship between D'Andrea and the Firm, a bankruptcy proceeding, was unrelated to the memo; and (3) even if the Firm's preparation of the memo was negligent, Kennedy's subsequent use thereof was not foreseeable, and therefore broke the chain of proximate causation. D'Andrea and Gulf Coast appealed.

Outcome/Holding: Justice Busby, writing for the Court, concluded that the preparation of the memo violated the Firm's duty of loyalty owed separately to both D'Andrea and Gulf Coast. The Firm owed a duty of loyalty to each not to take or assist in action that was adverse to the interests of their clients, D'Andrea and Gulf Coast, even if the Firm's immediate representation of those clients was on matters unconnected to the matters described in the memo. The Court further concluded that the Firm had knowledge that Kennedy was about to be or had already been fired at the time that they provided the memo to Kennedy and that litigation over his firing was possible. Consequently, fact issues existed as to (a) whether Kennedy was adverse to D'Andrea and Gulf Coast at the time that the memo was furnished to him; and (b) whether Kennedy's subsequent use of the memo was foreseeable, so as to preclude it being an intervening cause. Accordingly, the Court reversed and remanded.


Houston Medical Testing Services, Inc. v. Rand Mintzer, No. 14-12-00506-CV (consolidated with No. 14-12-00524-CV) (Tex. App.—Houston [14th Dist.] November 14, 2013)

Issue Presented: The issue presented by these cross-appeals is whether the existence of an implied contract, as opposed to an express contract, precludes recovery in quantum meruit.

Relevant Facts: Mintzer is an attorney. In connection with his defense of a man charged with sexual assault of a minor, Mintzer arranged for Houston Medical Testing Services, Inc. (the "Service") to review the State's forensic tests, which indicated that Mintzer's client had fathered a child with the client's minor step-daughter. The review confirmed the State's results, and the Service subsequently sent Mintzer multiple invoices for payment, which he did not pay.

The Service sued Mintzer, seeking payment on alternative theories of breach of contract and quantum meruit. At trial, the jury concluded that there was a contract between Mintzer and the Service, but that Mintzer had not breached it, but they nonetheless concluded that he was liable in quantum meruit to the tune of $2,200 as they found that the Service had rendered valuable services or materials to Mintzer who knowingly accepted them and used them and should have known that the Service expected to be compensated for the work. Mintzer moved for judgment notwithstanding the verdict (JNOV), arguing among other things that the Service was barred from recovering in quantum meruit by the jury's finding that a contract existed. The trial court denied the motion, and signed a judgment on the verdict, which Mintzer appealed.

On Appeal, the Service argued, among other things, that the jury's finding regarding the existence of a contract could have been a finding of an implied, as opposed to express, contract, which the Service maintained would not preclude recovery in quantum meruit.

Outcome/Holding: Justice Busby, writing for the Court, took note of the Supreme Court's opinion in Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972), in which it stated that there is little, if any difference between an express and an implied-in-fact contract (Justice Busby concluded that the implied contract referenced by the Service could not be an implied-in-law contract, as the existence of such would have been a legal question for the trial court). On this basis, the Court determined that it did not matter whether the jury had found an express or an implied-in-fact contract existed between Mintzer and the Service, the result would be the same: quantum meruit recovery would not be available. As such, the Court determined that the parties' contract barred quantum meruit recovery, and the trial court had erred in denying Mintzer's motion for JNOV. The Court therefore reversed and rendered judgment that the Service take nothing.

Chief Justice Frost filed a dissenting opinion. In her dissent, Justice Frost opined that, because the existence of a contractual bar to quantum meruit recovery is an affirmative defense, and Mintzer's motion for JNOV and appeal had both only addressed the express contract issue, Mintzer had failed to preserve the issue of whether recovery in quantum meruit would be barred by the existence of an implied contract, which she believed to be a question of first impression.