Features for June 2014

Welcome to the June 2014 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

JUDICIAL INTERVIEW SERIES
Justice Ken Wise: Loving Law and Living Large, by Chief Justice Kem Frost

THE FIRST CIVIL COURTS IN HOUSTON
David Furlow discusses the first civil courts established in Houston and the buildings that housed them.

REWRITE THIS SENTENCE
Justice Bill Boyce, 14th Court of Appeals, has a lot of questions about oral argument but won't give you any time to respond to them.

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH
Derek D. Bauman offers an introduction to Westlaw Next for those who have not looked at it yet.

CASE UPDATES FOR MARCH, APRIL, AND MAY 2014
Case updates for the First and Fourteenth Courts of Appeals
by John Barnes, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP

UPCOMING LUNCHEONS
A look at the upcoming CLE luncheons for the HBA Appellate Practice Section

Justice Ken Wise: Loving Law and Living Large

by Chief Justice Kem Frost, Fourteenth Court of Appeals

Justice Ken Wise is the newest member of the Fourteenth Court of Appeals. Last October, Governor Rick Perry appointed him to fill a vacancy on the nine-member court, from the 334th Civil District Court of Harris County. A graduate of Texas A & M University, Justice Wise holds a degree in finance. He received his law degree from the University of Houston Law Center and practiced in Houston for eight years before his initial appointment to the civil trial bench in 2002. In addition to civil trial experience, Justice Wise brings a love of the law and an interesting assortment of life experiences to his new job.

When asked whether he prefers the trial bench or the appellate bench, Justice Wise simply says that he likes both in different ways. What he likes most about being an appellate judge is working with judicial colleagues on interesting cases. Contrasting his role as a trial judge with his new post on the appellate bench, Wise observes that the biggest difference might be in the approach to deciding cases. The appellate bench, he explains, affords a greater opportunity to study issues at a deeper level. Wise says he enjoys the “academic atmosphere” at the court of appeals and has welcomed the opportunity to return to a more rigorous, “law school-like” approach to solving legal problems. He finds the judicial colloquy—the back-and-forth among committed people working together to find the right answer—a fascinating way to resolve thorny quandaries.

Justice Wise finds oral argument particularly helpful in cases with issues of first impression and in cases in which the courts of appeals seem to be divided on an issue. In preparing for oral arguments, he typically reads appellate briefs on an iPad or on his desktop computer. He says he likes to be thorough in his approach to judicial decision-making and, like most appellate judges, he has a healthy appreciation for well-written briefs. When a case is briefed well on both sides, Wise observes, oral arguments tend to be richer and often more animated. A good brief can be the catalyst for a lively discussion, both on the bench and in conference. His advice to lawyers appearing in the appellate court is to come prepared.

When not on the bench, Justice Wise most enjoys spending time with family. He is currently a single parent, father to one daughter, eight-year-old Sarah Jane. The blonde, blue-eyed second-grader has stolen her father’s heart and, on three occasions, the limelight at his judicial investitures. At Justice Wise’s most recent swearing-in ceremony, Sarah Jane, who led the pledge to the flag, received an ovation from the crowd and a promise that “Whataburger is in your future” from her father. She is the pride and joy of the three-time gubernatorial appointee.

In recent months, Justice Wise has been busy making plans for a summer wedding and preparing for life with a new, blended family. He and fiancĂ©e Sara Campbell, a major gifts officer at the Houston Zoo, are planning a nuptial celebration for July. Justice Wise is eager to become stepfather to seven-year-old Jackson, who already has demonstrated an emerging interest in some of the judge’s more adventurous hobbies. There are many.

Justice Wise is an avid hunter. He has hunted all over Texas and will hunt “nearly anything, anywhere.” When it comes to bird hunting, Wise has a strong preference for geese, quail, and duck, and hunts them primarily in South Texas and Louisiana. The new appellate justice is quick to note that he hunts ducks “where Scalia hunts.” Wise smiles big at the suggestion that perhaps one day he might get the chance to go hunting with the appellate icon. But, with or without a Supreme Court justice along, Wise loves the thrill, sport, challenge, and satisfaction of hunting, especially bird hunting.

A waterfowl guide in high school and college, Wise has hunted in all conditions and with an assortment of hunting companions. He has encountered snakes in pit blinds and once, when duck hunting, held his breath when an alligator came perilously close, nearly swimming right into the blind. Wise recalled it was a good hunting day despite the unwelcome encounter.

The judge’s prowess in the hunting blind is rivaled by his prowess on the golf course. He is close to being a scratch golfer. Though Wise currently carries a handicap of 4, at one point it was +2. The lifelong golfer attributes his declining handicap to sometimes getting to play only once a month. With all of his other pastimes, it is easy to understand the lack of time on the greens, at least during hunting season and rodeo season.

Justice Wise is a rodeo devotee of the highest order. He was a member of the Texas A&M Rodeo Team and, during his college years, young Ken Wise calf-roped all over Texas. Though calf-roping was his main event, he was a competitive team roper and a steer wrestler, too. Living large eight seconds at a time, Wise found the high-risk sport exhilarating fun, Texas style.

Two-and-a-half decades later, the cowboy-turned-judge no longer competes in rodeos, at least not as a roper or a wrestler. He now directs his energy to a less daring but equally competitive event—barbequing. Wise is a member of the Houston Livestock Show and Rodeo’s World Championship Barbeque Committee, a group that is committed to preserving and promoting Texas barbeque as an art form. For those who might be wondering, the “championship” title comes from cooking, not eating barbeque, though Justice Wise is a standout at both.

Wise is a Director of the Houston Livestock Show and Rodeo, a position he earned after more than a quarter of a century as a rodeo committee volunteer. As Chairman of the Directions and Assistance Committee, Wise led the team that rounds up hundreds of lost children and thousands of lost articles every rodeo season. To mark the opening of every new “committee year,” Wise, as Chairman, ceremonially drew the first item from the “lost and found” depository, an eclectic collection of treasures that includes such things as dentures, portable oxygen bottles, scads of drivers licenses and car keys, and every make and model of cell phone. Wise notes that his committee not only works diligently to get these valued articles back to their owners but also performs the very important function of reuniting children with their temporarily misplaced parents. Rodeo work is hard work but fun work, and it comes with a few privileges, one of which is the opportunity to mingle with the rodeo elite. Wise has met a wide array of rodeo celebrities over the years. His all-time favorite is George Strait, who, in Wise’s words, is “the king”.

When not rodeo-ing, driving the fairways, or dodging alligators in Louisiana swamps, Wise divides his remaining free time fueling an assortment of other interests. A big one is shooting. Wise is a sporting clay shooter who competed for many years, making the top ten in the country in his class at the 1998 national championships in “5-stand” sporting clays. Wise also enjoys shooting pistols and has competed in practical pistol competitions.

With all that riding, roping, hunting, and shooting, it is no surprise that Ken Wise is a fifth-generation Texan. He has a rich family history that dates to the days of the Republic of Texas. Wise is a direct descendant of early Texas settler Dr. James Howe Price, a medical doctor and entrepreneur who arrived in Montgomery, Texas, in 1839. Dr. Price, whose surname is Wise’s middle name, was the proprietor of a hotel where Sam Houston regularly stayed. Today, the doctor’s medical bag is displayed at the Sam Houston Museum in Huntsville. These deep Texas roots paved the way for Wise to become a member of “The Sons of the Republic of Texas,” an organization whose members are direct lineal descendants of those that settled the Republic of Texas before February 19, 1846, when Texas merged with the United States as the 28th state.

Ken Wise loves being a Texan with a strong Texas heritage. He credits the time spent on the family’s ancestral ranch in Montgomery with shaping his character and direction. During his formative years, young Ken Wise often passed his weekends at the rural Montgomery home of a great aunt and uncle, riding horses, tending cattle, and taking in family lore and tradition. The experience, he says, left a lasting impact, a legacy that he now shares with the next generation.

Wise’s ancestral legacy also instilled in him a love of Texas history and heroes. Drawn to projects that celebrate and preserve our state’s rich traditions, Wise serves on the Advisory Board of the Former Texas Rangers Foundation and on the Supreme Court of Texas Historic Document Preservation Task Force.

Wise, who was born and reared in Houston, says he feels especially blessed that he has been able to experience both country and urban life to the fullest. The native Houstonian graduated from Strake Jesuit High School in 1986. Growing up in the big city and attending a big high school, Wise engaged in a host of team and individual sports. He especially enjoyed ice hockey. In his words, it was the “Houston Aeros Era” and he quickly became an ice hockey enthusiast, both in the rink and in the stands. He also developed a knack for music. He began playing acoustic guitar and drums at an early age. By the time he reached high school, Wise was playing in several bands. Though he did not pursue performance music, he has maintained a robust appreciation for music. Country music—the kind “the king” produces—is a favorite genre.

Wise does not come from a long line of lawyers. He is the only lawyer in his family. But, he notes, throughout his growing-up years, many formed the belief that he was a natural advocate. “Everyone that ever argued with me said I ought to be a lawyer,” Wise recalled. The judge’s first vocational ambition was to become an FBI agent. Wise explained that he pursued a law school education only because he originally contemplated going into the FBI and a law degree was one of the ways to satisfy the threshold predicate for consideration. It was the late Judge John Hill, recalled Wise, who was the driving force behind his decision to forgo an FBI career and instead become a trial lawyer and eventually a judge.

Wise reports that Judge Hill was one of his most cherished mentors. The late legal legend, who served as Chief Justice of the Supreme Court of Texas, Texas Attorney General, and Texas Secretary of State before becoming a named partner at Liddell, Sapp, Zivley, Hill & LaBoon (now Locke Lord, LLP), helped shape Wise’s legal and judicial career. Wise is especially grateful to have worked with Judge Hill at the firm and to have “learned from the best”. Wise says that, to this day, he values the wisdom, coaching, guidance, and practical advice he received under Judge Hill’s tutelage. Today, Judge Hill’s youngest child—Justice Martha Hill Jamison—is Wise’s judicial colleague on the Fourteenth Court of Appeals and occupies an office adjacent to his. Whether there, in the historic Harris County 1910 Courthouse that is home to both Houston-based courts of appeals, or at one of the more venturesome venues he frequents, Justice Wise is sure to be loving law and living large.

The First Civil Courts in Houston

by David A. Furlow

In 1776 John Adams observed that, “[t]he dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend on an upright and skillful administration of justice.” See ROBERT J. TAYLOR, et al. (eds.), THE PAPERS OF JOHN ADAMS (Cambridge: Belknap Press of Harvard Univ. Press, 1977), vol. I, Chap. 4, Doc. 5, at http://press-pubs.uchicago.edu/founders/documents/v1ch4s5.html (accessed May 31, 2014).

Since, by general consensus, the proper administration of justice requires a courthouse, tracing the history of law in Houston requires a search for the courthouses where justice was first administered. After the end of Mexican rule and its municipal alcalde system of justice, traditional Anglo-American courthouses came to Harris County. Beginning in 1837, Houston City served the new capital of the Republic of Texas. See Marguerite Johnston, Houston: The Unknown City, 1836-1946 (College Station: Tex. A&M Univ. Press 1991), at 9-11 and 16. Houston’s first courthouses arose soon after the erection of the capitol building on April 1, 1837. Three weeks before the anniversary of the Battle of San Jacinto, where General Samuel Houston won his right to run for, and later serve as, the Republic’s new President. Id. at 16.

Thanks to the foresight and planning of city founders John, Augustus, and Charlotte Allen, as well as the surveying work of Gail Borden, Jr. and his brother Thomas, Houston began with a well-organized street plan and broad avenues. The new roads connected Court House Square with Congress Square, the Church Reserve, and the School Reserve. Id. at 9.

The law of the Republic of Texas that incorporated the City of Houston.

The new republic’s founders gave Texas a two-tiered judicial system. The supreme court consisted of a chief justice and three to eight district court judges who served, ex officio, as associate justices of the supreme court. See James L. Haley, The Texas Supreme Court: A Narrative History (Austin: Univ. of Tex. Press, 2013), at 235; Judge John Hyde, Historical Foundations of The Supreme Court of Texas: People, Politics and Precedent, 7TH ANN. W. TEX. FALL C.L.E. SEM. (Oct. 7, 2005). The supreme court reviewed cases from trial courts. Article IV, Section 1 of the Texas Constitution of 1836 provided the framework for a legal system that continues until the present day. It read as follows:
The judicial powers of the government shall be vested in one Supreme Court, and such inferior courts as Congress, may, from time to time, ordain and establish.
Article IV, Section 2 required Texas’ Congress to divide the republic into districts and to establish a court in each one.

The first civil courthouse in Houston, and Harris County, was a two-story frame building with an outside staircase similar in basic form to the Republic’s two story capitol. Approved by the Harris County Commissioners’ Court in 1838, the first court brought the rule of law.


Don’t believe what you read in the newspaper. The First Court House didn’t look like this.
Digital Image of 2003.003, Harris County Archives,on display at the 1910 Historic Courthouse, Sixth Floor Museum.

The Eleventh Judicial District Court continued, albeit in Harris County’s second courthouse, a brick building crowned with a copper cupola. The Commissioners Court accepted it on October 15, 1851. By 1857 it was too unstable to serve as a courtroom. County officials abandoned it about a year later.


Digital Image of 2003.003.0002, Harris County Archives, on display at the 1910 Historic Courthouse, Sixth Floor Museum. 

The Eleventh Judicial District Court of Harris County, in the Republic’s Second Judicial District, is the oldest trial court in Texas. The first judge of that court, Benjamin C. Franklin, conducted a trial even before the Republic’s constitution went into effect. Thirty-one years old, admitted to the Georgia State Bar at the age of twenty-two, Franklin received a commission to adjudicate an admiralty dispute. That dispute arose on April 3, 1836, when sailors aboard the Texas vessel Invincible seized an American brig Pocket near the mouth of the Rio Grande River. Franklin ruled that the American vessel Pocket was a lawful prize of war. See Haley, Narrative History, at 23. The Republic’s Congress then elected Franklin as a district court judge. Id. From a small acorn grew the mighty oak of Texas jurisprudence.

Rewrite This Sentence

by Justice Bill BoyceFourteenth Court of Appeals

This month’s column shifts focus from the words judges use in opinions to the words they use – or don’t use – in oral argument.

I have watched with keen interest as legal commentators have launched several recent salvos aimed at oral argument questioning by the justices on the United States Supreme Court.

The most extreme comments come from The New Yorker’s Jeffrey Toobin in a February 2014 article entitled, “Clarence Thomas's Disgraceful Silence.” It focuses on Justice Thomas’s well-known practice of not asking questions during argument. The title pretty much tells you everything you need to know about the article’s tone. Like an invective-filled appellate brief that serves primarily to explain exactly how much this lawyer detests opposing counsel – and only incidentally to make some legal points – Toobin’s adjectives swallow his argument.

Toobin suggests that oral argument primarily serves as a vehicle to give the public a “window[] onto the Justices’ thought processes” and to let lawyers “look these arbiters in the eye and make their case.” A justice who does not ask questions “is simply not doing his job” and is treating fellow justices with “disrespect.”

Toobin’s attack on Justice Thomas prompted a number of responses, including one from Professor Ilya Somin at George Mason University. In a post on The Volokh Conspiracy, Professor Somin responds: “Thomas has a reasonable counterargument when he suggests that the justices would do better to listen to the arguments of counsel rather than take up much of their time . . . with their own points.” Professor Somin disputes the “window on the justices’ thought processes” contention. The real window, he says, is the opinion itself.

While saying too little during argument is a sin, apparently talking too much also is bad. Or, to be more precise, talking when the only purpose is to embarrass counsel. Professor Josh Blackman at South Texas College of Law used his blog to note a recent instance in which Justice Scalia called out an advocate during argument for reading from a script at the podium. Professor Blackman pronounced this to be . . . um . . . a “[not very sportsmanlike] move.”

Sportsmanship aside, the justices themselves have addressed whether the dialogue suffers when oral argument is used primarily to transmit questions and positions to others on the court – thereby relegating counsel to the role of a cell phone tower. Chief Justice Roberts was interviewed in an October 2013 article in The New York Times discussing the intensity of questioning at oral argument. According to the article, the Chief Justice and others believe that “the justices should moderate their volubility” and let counsel utter a complete sentence once in a while.

So, let me see if I’ve got this straight. Judges shouldn’t talk too much. And they shouldn’t talk too little. And don’t be mean.

I understand the “don't be mean” part. I've been on the receiving end of mean. I also appreciate that there’s a fine line between vigorous follow-up questioning by a judge and crossing the border into Bullyville. I try to avoid crossing the line by taking two or three swings at a follow up question; if I can't get a satisfactory answer after that, I usually just give up and go silent. But I am confident that some advocates on the receiving end of those questions have felt harangued.

As for the balance between too much or too little questioning, I am not hugely worried by either extreme. The right amount of questioning is the amount that gets the panel’s questions answered. Sometimes there aren’t many questions because the panel doesn’t have many questions. Sometimes I’m concerned individually about an issue and I want to be told why I shouldn't be worried about it. At other times I am content to listen while other panel members explore an issue with the advocate. There is nothing “disgraceful” about silence. The job is still getting done.

And I must agree with Professor Somin on one point in particular. If you want to open up a window into a court’s thinking, open up its opinions.

On at least one level, things are much simpler on a state intermediate court of appeals. Not much time is spent at argument trying to bounce questions off of lawyers to influence colleagues on a panel. We usually just talk to one another and tell each other what we think.

Did you know . . . ?

by JoAnn Storey

A trial court does not err in granting a motion for summary judgment during trial, as long as proper notice is given under the rules. Sandhu v. Pinglia Invest. of Tex., L.L.C., No. 14-08-00184-CV, 2009 WL 1795032, at *2 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (mem. op.). The court reasoned that TRCP 166a(c) only requires notice to be provided to the non-movant before the motion is heard. The record in Sandhu indicated the motion was heard after the jury was seated and sworn, but outside the jury’s presence, and that the non-movant had received the requisite notice.

AppellaTech: Westlaw Next

It is a natural human condition to be resistant to change. Especially change for something that we do on a daily basis and rely heavily upon. In my experience, that resistance proves to be particularly true for changes to technology. Apple fanboys notwithstanding, technology is commonly found to be confusing, and changes to technology end up that much more confusing.

I am no exception to this rule. Some years back, I noticed that whenever Microsoft came out with a new version of Word, I would find many of its updates vexing and needless. After a few months' time working with the new version, however, I would find those same updates wonderful and necessary.

I reminded myself of that when I was offered the chance to be trained on the newer Westlaw search engine (known as Westlaw Next). So I decided to set prejudices aside for a moment and give it a try. After going through the training, I decided to try the new search engine for a few days. If I wasn't happy with how it worked after the third day, I decided I would just go back to the older version of Westlaw.

By the end of the first day, I was hooked.

As I've said before, the goal of this column is to let appellate lawyers know about electronic resources that are available to make their jobs easier for them. Since everyone is aware of Westlaw and LexisNexis, there won't be much reason to write articles about them. This article is an exception to that general rule, however. It comes as no surprise that other people share my initial reluctance to trying Westlaw Next. This article is meant to show the benefits to those Westlaw users who have not made the switch yet.

For LexisNexis users, this is not meant to try to convince you to switch to Westlaw. I don't have enough experience with LexisNexis to determine if a switch is beneficial. (For those of you familiar with Lexis Advance, LexisNexis's corollary to Westlaw Next, please see my plea below.) But if your experience with LexisNexis shows you it is more cumbersome than what is being described, it might be worth investigating more.

Everyone who has a Westlaw account has access to both what is now called Westlaw Classic and Westlaw Next. If you'd like to follow along with me, you can access Westlaw Next by clicking here.

I don't intend to chronicle every difference between Westlaw Classic and Westlaw Next. In my opinion, there are about three key distinctions that make the Westlaw Next experience superior. The first is the simplicity of the home page. Here's what the home page for Westlaw Classic looks like:


If you want to pull up a case, you type the citation into the "Find by Citation" field. If you want to use search terms, you type into "Search" field and select the databases you want to search in.

It's not bad. But Westlaw Next is better. Here's its home page:


One search field for everything. Before I tried out Westlaw Next, I assumed having one search field would be a weakness. I now see it as a strength. The reason it is a strength is because of how Westlaw allows you to refine your searches. Let me give you an example. Suppose you wanted to research the law on the excited utterances exception to the hearsay rule. Let's use the following search criteria:

"excited utterance" /s hearsay

Here's what Westlaw Classic gives you if you search in the Texas Cases database:


There are 578 cases. If you want to refine further, you either need to do a new search or use the "Locate in Result" function.

Now, here's Westlaw Next's result if you use that search criteria:

First you come to an overview page. You won't want to stay here, but you're given a quick idea of how to refine your search. There are 578 cases that match our search criteria, 23 statutes (mostly supplemental text for 23 statutes and rules), and 1,396 secondary sources, to name a few.  Click "Cases" and we will see the one of the most useful improvements that I believe Westlaw Next offers.

Just like Westlaw Classic, we have 578 cases that match our search criteria. Now, look that the bottom left. There is a section entitled "Narrow." It looks like this:


These are some of the options available to quickly refine the search we have already performed. We know that 190 of the cases are reported. If we want to only see those, we check that box. If we only want civil, we check that box as well. There's also jurisdiction. See the plus sign next to the box? If you click on the plus sign, you get this:


If you're working on a brief to be filed with the Fourteenth Court of Appeals, you probably want to look into the 70 cases coming from that court first (along with the two from the Texas Supreme Court, assuming you are working on a civil case).

You can accomplish much the same thing in Westlaw Classic. But knowing the number of cases in each refinement is incredibly helpful. Also, it is very simple and quick to switch between refinement options in Westlaw Next.

Finally, there is the little gem that saves me a lot of time in citing my cases. Let's say we've found the legal authority we're looking for, and we are ready to insert that into our brief. With Westlaw Classic, you can highlight the relevant text, copy it, paste it into your brief, and then type in the citation. With Westlaw Next, you can highlight the relevant text, and copy both the text and the correct citation. First, select the relevant text.


A pop-up appears next to the text. Select "Copy with Reference (Texas)." (If "Texas" in not in parentheses, click on the drop-down button to select your preference.) Now go into your document and select paste.


Automatic citations! Tell me that's not worth giving up your Westlaw Classic for!

If you already have a Westlaw account, you should definitely give Westlaw Next a try. Plan a time that you can try it for about three days. If you're not hooked by the third day, my guess is you never will be. If you still prefer Westlaw Classic by the third day, you should go back to it. But I expect you will become a convert before the third day is over.

My plea to Lexis Advance users: I would love to put together a similar article for Lexis Advance. Unfortunately, I have no experience with it. If you have a basic familiarity with it and would be interested in being a guest writer for AppellaTech, please contact me at the email address below.

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 March, April, and May 2014

By John BarnesBaker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP

Attorney’s fees under Chapter 38: Is failure to segregate between claims fatal to recovery?

McMahon v. Zimmerman, No. 01-12-01090-CV, 2014 WL 1258815 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no pet. h.).

Issue Presented: When a litigant fails to segregate attorney’s fees between claims for which fees are recoverable and claims for which they are not, can the litigant still recover fees attributable to the claims for which fees are recoverable?

Relevant Facts: A client sued his former attorney for legal malpractice in connection with a divorce proceeding. The attorney counterclaimed for breach of contract for unpaid attorney’s fees. The trial court granted summary judgment in favor of the attorney on the malpractice claims, and, following a bench trial, issued a judgment in favor of the attorney on the breach of contract claim. The attorney sought an award of attorney’s fees in the amount of $72,810 pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). That amount represented the total amount of fees incurred both in the defense of the malpractice claim and in prosecution of the breach-of-contract claim. The attorney argued that the two causes of action were too intertwined to require segregation, but the trial court disagreed and awarded only $6,000 in fees for the prosecution of the breach-of-contract claim.

Legal Summary: On appeal, the client argued that, in the absence of segregation, the evidence was legally insufficient to support any award of fees. The Court of Appeals began by explaining that segregation between claims for which fees are recoverable and those for which they are not is required, and the party seeking to recover fees bears the burden of proof. Ordinarily, if segregation is required and the claimant does not provide testimony on the proper segregation, the cause should be remanded for proper findings. This case was different, however, in that it was tried to the bench, and the court made specific findings regarding the amount of fees attributable to the contract claim. The Court of Appeals explained that “trial courts have no obligation to delve into billing records to segregate fees on behalf of litigants who do not offer segregation testimony,” but it is not error if they elect to do so. The trial court’s findings of fact were sufficient to show that the trial court considered which fees were attributable to the different claims; therefore, remand was not necessary. The evidence before the trial court—namely fee bills—was sufficient to support the award.


Default Judgments: How quickly must a court rule on the motion?

Davis v. West, No. 01-13-00463-CV, 2014 WL 1258551 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no pet. h.)

Issues Presented: How quickly must a court rule on a default judgment? If the court does not rule on the motion immediately and the defendant files an answer in the interim, is a plaintiff prejudiced by the court’s failure to rule promptly?

Relevant Facts: A plaintiff orally moved for a default judgment in a court hearing against a defendant that had not filed an answer. The court did not immediately rule on the motions, and two weeks later, the defendant filed an answer. Four days after the answer was filed, the plaintiff filed a written motion for a default judgment, but the trial court denied the motion.

Legal Summary: On appeal, the plaintiff argued that the trial court erroneously failed to promptly rule on her motion for default judgment and that she was prejudiced as a result. The plaintiff asked the Court of Appeals to reverse and render a default judgment against the defendant.

The Court of Appeals began by noting that “[t]he temporal requirement on a judge to rule on a pending motion for default judgment is only that the judge rule within a ‘reasonable time.’” The court further noted that appellate courts have previously held that one month is a reasonable time. Under the circumstances, the court held, two weeks was not an unreasonable delay.

The Court of Appeals next addressed the plaintiff’s argument that she was prejudiced by the trial court’s delay in ruling until after the defendant filed its answer. The court rejected that argument, explaining that the defendant may file an answer at any time before a default judgment is rendered. And “[o]nce an answer is on file, even if it is filed after the due date, the district court may not render a no-answer default judgment.” The defendant’s answer, filed prior to the court’s ruling, therefore rendered the plaintiff’s complaint moot.


Recusal: Applicable only to the individual judge or to the entire court?

Davis v. West, No. 01-13-00463-CV, 2014 WL 1258551 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no pet. h.)

Issue Presented: When a judge recuses from a case and later leaves the bench, may the new judge hear the case?

Relevant Facts: In the same case referenced above, the plaintiff argued that the trial court lacked jurisdiction to issue a summary judgment against her based on the recusal of a former judge of the court. While the plaintiff’s claims were pending, the judge of the 149th Judicial District Court of Brazoria County recused from the case. The presiding judge of the district therefore assigned another judge to preside over the case. The assigned judge then granted summary judgment in favor of one of the defendants, but the plaintiff’s claims against another defendant remained pending for several years. In the interim, the recused judge retired and another judge was elected to take his place. The newly-elected judge then granted summary judgment in favor of the remaining defendant.

Legal Summary: On appeal, the plaintiff argued that, as a result of the prior judge’s recusal, the 149th District Court lacked jurisdiction to render a decision in her cause. In rejecting the plaintiff’s argument, the Court of Appeals first held that recusal, unlike disqualification, is not a jurisdictional issue. The court then found that the recusal order merely removed the challenged judge, not the court itself. The case was never actually transferred out of the 149th district – another judge was simply assigned to the case. Thus, the Court of Appeals held that the first judge’s recusal did not cause the 149th District Court to lose jurisdiction.


Summary Judgment: Whether the court of appeals may consider untimely summary judgment evidence.

Alphaville Ventures, Inc., et al. v. First Bank, No. 14-12-00580-CV (Tex. App.—Houston [14th Dist.] April 1, 2014, no pet.).

Issue Presented: Whether the court of appeals may consider untimely summary judgment evidence and what summary judgment evidence is necessary to establish that a note has been assigned.

Relevant Facts: Alphaville Ventures, Inc. (“Alphaville”) was the debtor by assignment on a note to the Small Business Loan Source LLC (“SBLS”). First Bank claimed that it was the creditor by assignment on the note Alphaville defaulted, and First Bank brought suit.

First Bank moved for summary judgment, attaching evidence that the note had been transferred to First Bank by SBLS pursuant to a Loan Purchase and Sale Agreement (“PSA”). Nine days before the hearing on its motion, First Bank filed supplemental evidence in support of its motion. The trial court granted summary judgment in favor of First Bank, from which this appeal was brought.

Legal Summary: The Court of Appeals reversed and remanded, concluding: (a) the court of appeals may not consider summary judgment evidence that was not timely filed and (b) there was no evidence that the note had been assigned to First Bank because the PSA recognized additional steps needed to effect the assignment, and there was no evidence that these steps had occurred.


Execution of Judgment: Effect of a judgment based on a premarital obligation on community property.

Drake Interiors, L.L.C. v. Andrea Marie Thomas et al., No. 14-13-00349-CV (Tex. App.—Houston [14th Dist.] April 29, 2014, no pet. h.).

Issues Presented: (1) Can an abstract of a judgment rendered before the marriage create a valid lien on a home jointly managed as community property? (2) If so, what is the effect of a homestead designation after a divorce?

Relevant Facts: In October 2002, Rob Thomas married Andrea Thomas ("Andrea"). In 2003, the couple acquired a townhome known as the Asbury Property, which they held as their joint management community property. In 2004, Drake Interiors, L.L.C. ("Drake") obtained a final judgment against Rob based on a premarital obligation.

Drake abstracted the Judgment, recording it in Harris County, where the Asbury Property is located. Shortly thereafter, Rob and Andrea separated and vacated the Asbury Property Andrea was awarded ownership of the Asbury Property in the divorce. Drake brought suit to enforce its lien.

While this suit was pending, Andrea returned to the Asbury Property and claimed it as her homestead. Andrea asserted that the Asbury Property was exempt from forced sale, and sought a declaration that Drake's judgment lien was invalid. The trial court granted Andrea's motion, declaring that Drake's lien did not attach and was null and void as to the Asbury Property.

Legal Summary: The Court of Appeals reversed and remanded, holding that pursuant to sections 3.202(c) of the Texas Family Code, Drake's judgment lien attached to any non-exempt community interest in the Asbury Property, as it was a debt incurred before or during the marriage and the Asbury Property was jointly managed by Rob and Andrea during their marriage. However, because the Court concluded that Drake had failed to prove that Rob and Andrea had both abandoned the Asbury Property as their homestead at the time the lien was created, the Court remanded for further proof.


Landlord-Tenant: Notice requirements for termination of a lease.

Betty Getters v. Baytown Housing Authority, No. 14-13-00045-CV (Tex. App.—Houston [14th Dist.] April 30, 2014, no pet. h.).

Issue Presented: Did a combined notice of termination and notice to vacate comply with Tex. Prop. Code § 24.005 in the context of a federally-subsidized, multi-family housing project?

Relevant Facts: Betty Getters (“Getters”) is a resident of a federally-subsidized, multi-family housing project operated by Baytown Housing Authority (“Baytown”). Before terminating the lease for cause, Baytown was required to provide a notice of termination that would inform Getters of her right to exercise the project's grievance procedure and request a hearing. This notice was required to be given 30 days before the termination date if for a reason other than failure to pay rent timely or a health, safety or security concern.

On June 11, 2012, Baytown served a combined notice of termination and notice to vacate the premises. On June 28, 2012, without further notice to Getters, Baytown filed a forcible detainer action. Getters moved for judgment on the grounds that (1) BHA had not provided her with a second notice to vacate after the 30 days had expired; and (2) the lawsuit was filed prior to the expiration of the 30 days given to vacate. The county court denied Getters' motion, and awarded possession to BHA. On appeal, Baytown argued that the appeal was moot because the lease had expired and did not provide for automatic renewal.

Legal Summary: The Court of Appeals reversed and rendered judgment in Getters' favor, concluding that (a) the appeal was not moot, as Baytown was required to automatically renew the lease under the United States Housing Act of 1937; (b) the forcible detainer action was filed prematurely; and (c) the forcible detainer action violated section 24.005(e), because Baytown filed the notice to vacate before Getters was allowed a right to respond. Furthermore, Baytown’s breaches were not subject to a harm analysis under sections 24.005.


Insurance: Effect of a vacancy clause on a mortgagee’s coverage for fire.

SWE Homes, LP v. Wellington Insurance Co., No. 14-12-01116-CV (Tex. App.—Houston [14th Dist.] May 15, 2014, no pet. h.).

Issue Presented: Does a standard mortgage clause in a residential insurance policy provide coverage to a mortgagee for a loss by fire when the policy also contains a vacancy clause and the mortgagor has left the property vacant?

Relevant Facts: Edgar Sadberry (“Sadberry”) purchased a Texas Dwelling Policy from Wellington Insurance Co. (“Wellington”), naming SWE Homes, LP (“SWE”) as a beneficiary in the mortgagee clause. A vacancy exclusion voided Sadberry’s coverage. Sadberry's home was damaged in a fire. Sadberry admitted that the property had been vacant for over a year prior to the fire. Wellington denied coverage under the policy's vacancy clause.

Legal Summary: The Court of Appeals reversed and remanded, holding that the mortgage clause created a separate contract between the insurer and the mortgagee, which could not be vitiated by the conduct of the mortgagor. Since the vacancy clause applied as an exception only to coverage of claims brought by Sadberry, it was not sufficient to defeat SWE's claim, and the summary judgment was improper.


Compelling arbitration: Whether a minor is bound by an arbitration clause in an employment agreement.

PAK Foods Houston, LLC v. Marissa Garcia, et al., No. 14-13-00409-CV (Tex. App.—Houston [14th Dist.] May 22, 2014, no pet. h.).

Issue Presented: Can an employer compel arbitration on personal injury claims brought by and on behalf of a minor employee?

Relevant Facts: Marissa Garcia brought suit as next friend of S.L., a minor for injuries incurred during S.L.’s employment with PAK Foods (“PAK”). PAK filed a motion to compel arbitration and stay trial proceedings pursuant to its Mutual Agreement to Arbitrate. Garcia contended that S.L. had disaffirmed any arbitration agreement by objecting to arbitration. The trial court denied arbitration.

Legal Summary: Recognizing that well-established Texas law holds that a contract executed by a minor is voidable at the minor's discretion, the Court concluded that S.L.'s election to file suit in lieu of arbitration voided the Agreement. The Court further recognized that this also applied to S.L.'s mother's claims, as they were wholly derivative of S.L.'s claims.

Upcoming Luncheons

June 19
"A Judge's Perspective on Making Electronic Briefs Reader-Friendly: A Guide for the Practitioner." The discussion will be moderated by Kevin Dubose and will feature panel members Justice Tracy Christopher of the Fourteenth Court of Appeals; Justice Terry Jennings of the First Court of Appeals; and Justice Michael Massengale of the First Court of Appeals.
RSVP deadline: noon on Monday, June 16th
CLE: 1.0 hour

July 17*
“United States Supreme Court 2013 Term in Review,” by a panel featuring Judge Gray Miller  (Southern District of Texas), Justice Brett Busby (Fourteenth Court of Appeals), and Aaron Streett (Baker Botts)
RSVP deadline: noon on Monday, July 14th
CLE: 1.0 hour

August 21*
A panel discussion with Justices Jeff Boyd, John Devine & Jeff Brown (Supreme Court of Texas), with moderator Warren Harris: “The New Texas Supreme Court Justices’ Perspectives from the Bench”
RSVP deadline: noon on Monday, August 18th
CLE: 1.0 hour


Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $35 for Section members who RSVP; $40 for non-members who RSVP and for Section member walk-ins; $45 for non-member walk-ins.

To RSVP, please e-mail luncheon@hbaappellatesection.org. Please note that, if you RSVP and do not attend, you will be billed for the cost of the luncheon. Reservations are transferable.

* If you RSVP now for a luncheon in the future, please indicate in your email which luncheon you are planning to attend.