Features for September 2015

Welcome to the September 2015 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

These people are more ethical than you.

Jeffrey L. Oldham and Scott A. James offer advice for this year's round of flogees.

Justice Bill Boyce, 14th Court of Appeals, works through some lingering childhood issues by analogizing to concurring opinions.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman offers a way to track billable time and expenses without expensive software.

Case updates for the Houston practitioner
by James C. Marrow, Hogan & Hogan, and Andrew Nelson, Wright & Close, LLP

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

Congratulations to the Ethics Jeopardy Winners

The July 2015 HBA Appellate Practice CLE luncheon was a game with ethics questions presented in the style of Jeopardy. The winning table is presented below. Congratulations to them, and thank you for all those who attended and participated.

From left to right: Nick Dambrosio, Mark Little, Ben Geslison, Travis Canova, Lynn Liberato, and Polly Fohn

Tips for Preparing for the TBLS Specialization Exam in Civil Appellate Law

by Jeffrey L. Oldham, Bracewell & Julliani LLP, and Scott A. James, Shook, Hardy & Bacon L.L.P.

I. General Considerations for Preparation

A. Amount of Studying

The exam is difficult and requires significant preparation. In years past, successful examinees have advised studying, in total, 100-200 hours. Although this figure seems daunting, effective studying over the course of several weeks/months quickly accumulates to these totals.

B. Timeline for Studying

1. Successful examinees have advised commencing preparation during the summer months before the exam. Successful examinees have also stated during previous conferences that applicants who have not dedicated significant study time by the time of the Advanced Civil Appellate Law Course in September may lack adequate preparation time. While heeding this advice is recommended, an examinee who begins preparation in September may discover that he or she has sufficient time to become adequately prepared for the exam, particularly if he or she can set aside large amounts of time in the weeks before the exam.

2. Our advice—do not be too easily discouraged from taking the exam, even if you have not dedicated a significant amount of time to studying up to this point. If you can begin preparation at, or shortly after, the date of the September course, and you are able to study consistently between now and the exam, you should seriously consider sitting for the exam. Last year, a large number of approved applicants elected not to sit for the exam, likely due to the concern that they lacked adequate preparation time.

3. However, cramming the weekend (or even the full week) before the exam will likely not allow for adequate preparation, even for a practitioner who devotes nearly all of his or her time to civil appellate work. That is because the exam covers a number of appellate and trial topics that are not part of the everyday practice of an appellate lawyer. Our recommendation is to, whenever possible, make studying part of your daily routine. You should endeavor to study for one or two hours a day. Daily review of this highly detailed material is likely more beneficial than significant studying time shortly before the exam.

C. Studying Tips

Make your own study tools. Prepare outlines, note cards, timelines, charts, etc. in order to effectively digest the detailed information that will be the subject of the exam. As the exam approaches, you can transition your studies from the significant volume of resource materials to these more manageable study tools. These study tools will allow you to focus on the detailed information in the weeks and days immediately preceding the exam.

II. Primary Resources to Study

A. General

We have provided this list of resources based upon our experiences in studying for and taking the exam. We found that our review of these materials covered most of the information on the exam.

B. Resource List

1. All papers from the Civil Appellate Practice Course 101 (also known as “Boot Camp” and “Nuts and Bolts”). We recommend consulting papers—at least to identify hot topics—from courses for the two years preceding the exam. These papers provide an excellent review of the important details that are likely to be tested. It is a good idea to study at least one paper on each of the likely test topics. If you did not attend the courses, you can access the papers on the TexasBarCLE website for a fee. />
2. All substantive papers from the Advanced Civil Appellate Practice Course itself—including courses for the two years preceding the exam. Again, it is worth at least reviewing the list of papers to identify hot topics that may appear on the exam, and if you did not attend the courses, you can access the papers on the TexasBarCLE website for a fee.

3. You may also want to consider consulting the substantive papers from the University of Texas State and Federal Appeals Conference. If any of these papers are duplicative, focus on the most recent and comprehensive paper in order to limit the amount of resource material that you are studying. Note that there are always a number of papers presented at the conferences that accompany panel discussions, focus on interesting statistical information, or provide guidance on brief writing, etc. While these papers are useful for the practitioner, we recommend focusing on the papers from the Civil Appellate Practice Course 101 and the substantive papers provided during these other conferences.

4. Comprehensive case summaries for Texas Supreme Court cases for the two years preceding the exam. We recommend those summaries written by the Texas Supreme Court staff that are presented at CLE presentations, including those presented at the Advanced Civil Appellate Practice Course and the University of Texas State and Federal Appeals Conference. Osler’s e-mail summaries can also be helpful. Additionally, some successful past examinees have reported compiling a binder of every supreme court case within the preceding year(s) and making their own notes on each case, or at least the key procedural cases and the more significant substantive cases. Finally, the State Bar of Texas Appellate Section’s quarterly newsletter, The Appellate Advocate, provides case summaries of all the Texas Supreme Court cases decided each quarter. Prior issues of The Appellate Advocate are available on the section’s website, www.tex-app.org.

5. The Texas Rules of Civil Procedure, Texas Rules of Appellate Procedure, Texas Civil Practice & Remedies Code, and Texas Rules of Evidence (but only those evidence rules related to topics discussed in the Exam Specifications for Civil Appellate Law that is available on the TBLS website). In particular, applicants should read and re-read the Texas Rules of Appellate Procedure.

6. The Federal Rules of Civil Procedure and Federal Rules of Appellate Procedure (see our discussion below of the federal questions). Again, the Federal Rules of Appellate Procedure are more significant.

7. O’CONNORS TEXAS RULES—CIVIL TRIALS. Review the entirety of this resource, but pay special attention to the introduction, which outlines the recent statutory, rule, and common law changes. This section highlights areas of law that are evolving, and it provides good testing material. The exam, in years past, has tested on these evolving areas to ensure that examinees are current on significant changes in the law. Also pay special attention to those trial rules that frequently are the focus of appellate practice (i.e., preservation, findings of fact/conclusions of law, etc.).

8. O’CONNORS TEXAS RULES—CIVIL APPEALS. Pay special attention to the introduction, for the reasons stated above.

9. O’CONNORS CIVIL PRACTICE & REMEDIES CODE, with annotations for the CPRC provisions described in the Exam Specifications for Civil Appellate Law on the TBLS website. The relevant provisions of the CPRC include, but are not necessarily limited to, Chapter 9 (Frivolous Pleadings & Claims), Chapter 10 (Sanctions for Frivolous Pleadings & Motions), Chapter 15 (Venue), Chapter 41 (Damages), and Chapter 51 (Interlocutory Appeals).

III. Popular Topics

The TBLS provides a list of topics in its Exam Specifications for Civil Appellate Law. The list is comprehensive. Our experience is that the exam is wide-ranging, and this comprehensive list of topics is a fair indicator of the breadth of the test. You should find one or more resources to cover each of these topics. We provide the below list of topics to place special emphasis on those areas of the law that successful examinees have reported as being traditional favorites for testing.

A. Interlocutory appeals. Memorize section 51.014 of the CPRC. This is a favorite for the exam, in the essays and multiple choice.

B. All appellate timetables and deadlines (state and federal).

C. Findings of Fact and Conclusions of Law. Memorize all deadlines.

D. Default Judgments and the ways to review them (motion for new trial, restricted appeals, bills of review).

E. Preservation of error at different points of case.

F. Standards of Review.

G. Injunctive Relief.

H. Texas Supreme Court jurisdiction. Be sure to review the actual Texas Government Code statute.

I. Supersedeas. Elaine Carlson’s paper, Reshuffling the Deck: Enforcing & Superseding Civil Judgments on Appeal After HB 4, is a very good resource, as is the section on superseding judgments in the Appeals volume of McDonald & Carlson’s TEXAS CIVIL PRACTICE treatise.

J. Perfecting appeals.

IV. Exam Specifics

A. Format

1. Essay Questions

In years past, the essay portion of the exam has been given in the morning. Generally, there are three separate essay questions for a 3-hour morning exam period. Each of these questions contains differing numbers of subparts. Plan to generally spend one hour per question. Limit yourself to a maximum of one hour on the first question. You will be able to return to that question if time permits. Because the questions each contain a different amount of subparts, be aware of the points assigned to each particular subpart so that you can maximize your ability to get points should you run out of time.

Special note for repeat takers—it has been reported that it is common for a question from the prior year’s exam to reappear in some fashion the following year. So, if you are a repeat taker, come prepared on the topics tested in the prior year.

2. Multiple Choice Questions

There are approximately 100 multiple choice questions for a 3-hour exam period. 80 of those questions pertain generally to Texas appeals, 10 pertain to federal appeals, and 10 pertain to ethics. Many of these multiple choice questions are presented in a complex format that requires the applicant to consider the correctness of several possible answers. Pay special attention to the call of the question. Many of the questions may seem to include multiple correct choices. Choose the “most” correct where necessary, as many of the questions are very nuanced. Keep track of time as you go through the multiple choice questions, and do not let yourself get caught up on any one question. Like the MBE portion of the bar exam, these questions are difficult.

3. Ethics

The 10 ethics multiple choice questions are not specific to the specialization exam for civil appellate law, but rather are provided to all examinees for all specialization exams. Because of this format, preparing for the ethics questions is difficult. Past examinees have given mixed advice on the helpfulness of preparing in any significant detail for the ethics questions. Our experience is that the ethics questions are detailed and fact-sensitive, and that these questions would be difficult even with substantial time spent in preparing for these questions. We recommend reviewing/reading the ethics rules once, but devoting your preparation time to other areas. This is especially true if you feel that you are in a crunch and are worried about whether you are adequately prepared for the appellate questions. If you have time, Texas Lawyer’s Professional Ethics (4th ed. 2007) is a good basic resource that contains all of the rules and annotations containing the most relevant cases.

4. Federal Questions

There are also 10 multiple choice federal questions. We recommend paying special attention to those areas where the federal and state rules diverge. But past examinees have given mixed advice about the helpfulness of preparing for these questions, and the authors have slightly differing views. One author studied only the Comparison of State and Federal Appeals paper presented at the 2010 Civil Appellate Practice 101 Course. On the other hand, because these questions are generally detail specific, this is an area where examinees (even those who do not practice in federal courts) can obtain credit with adequate preparation. O’CONNORS FEDERAL RULES OF CIVIL TRIALS provides additional helpful material, including timetables.

B. Laptop or Handwriting

You may take the essay portion of the exam on a laptop or by handwriting. Most examinees report taking the exam on their laptop. This has been generally recommended because the time period in which to complete the essay questions is challenging. However, if you are more comfortable with handwriting, stick within your comfort zone.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

This installment of the column will change the GPS setting slightly and move its geographic focus from Washington D.C. to Austin, Texas.

This shift will allow the majority and dissenting opinions in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), to serve as a jumping-off point for considering the role and power of the concurring opinion.

Concurring opinions sometimes resemble the middle child in a three-sibling family. The oldest and youngest siblings often get most of the attention and perks, while the middle child has to settle for whatever scraps of attention are left over.

Sometimes, however, a middle child adds enough heft and height as time passes to surpass the siblings. The kid who started out as the overlooked one in the middle turns out to be center of attention.

So it is with concurring opinions. Sometimes they play second-fiddle to the majority opinion; or are treated as opportunities to vent; or are used as vehicles for exploring alternative approaches to the issue being decided. At other times, the concurring opinion gradually exerts an outsized influence that eventually surpasses the majority opinion it accompanies.

This dynamic is on display in Brookshire Brothers, a recent spoliation decision in which the supreme court drew heavily on the late Justice James Baker's concurring opinion in Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998).

The majority opinion in Trevino, in which the supreme court declined to recognize an independent tort cause action under Texas common law based on spoliation of evidence, is still good law. It addressed a specific, narrow issue -- and then stopped there.

Justice Baker agreed with that result. But he wrote a solo concurring opinion that canvassed existing spoliation law and offered a roadmap for Texas trial and intermediate appellate courts to use in determining when spoliation remedies are warranted, and which remedies should be considered. In the nearly two decades that have elapsed since Trevino issued in 1998, many judges have followed that roadmap.

Last year, the Supreme Court of Texas drew heavily on Justice Baker's concurring opinion when it addressed the appropriate scope of spoliation sanctions in Brookshire Brothers.

The majority opinion in Brookshire Brothers, written by Justice Lehrmann and joined by five other justices, sets out a two-step process for analyzing spoliation. First, the trial court must determine as a question of law whether a party spoliated evidence. Second, if spoliation occurred, the court must assess an appropriate remedy. See Brookshire Brothers, 438 S.W.3d at 14.

"To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so." Id. This determination is to be made outside the jury's presence. Id. The harsh remedy of a spoliation instruction in the jury charge "is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe sanction would be insufficient to reduce the prejudice caused by the spoliation." Id. "A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense." Id.

On its way to establishing these standards, the Brookshire Brothers majority refers favorably to the reasoning from Justice Baker's concurring opinion in Trevino no fewer than seven times. See id. at 19–22. The Brookshire Brothers majority does not adopt the Trevino concurring opinion in its entirety. For example, Justice Baker thought prejudice should be analyzed as part of determining whether spoliation had occurred, and as a factor in determining the appropriate remedy. See Brookshire Brothers, 438 S.W.3d at 21 n.9 (citing Trevino, 969 S.W.2d at 955–58) (Baker, J., concurring). The Brookshire Brothers majority concluded that "this two-step analysis is unnecessary, and that analyzing prejudice as a key factor in imposing a spoliation remedy contemplates that some degree of prejudice is required for the nonspoliating party to be entitled to a remedy." Id.

Interestingly, Justice Guzman's dissenting opinion in Brookshire Brothers also invokes Justice Baker's concurring opinion from Trevino -- even through Justices Guzman, Devine and Brown concluded that the majority's application of the spoliation standard left insufficient room for the exercise of trial court discretion. See Brookshire Brothers, 438 S.W.3d at 33, 36 (Guzman, J., dissenting).

If there was not 100 percent agreement among the nine current justices about how spoliation should be addressed, there was agreement on at least one point -- Justice Baker's concurring opinion in Trevino was a milestone in analyzing the competing considerations involved in this issue. The seeds sown by Justice Baker in 1998 came into full bloom in 2014.

Did You Know . . . ?

by JoAnn Storey

Where the Supreme Court, upon the parties’ joint motion, grants a petition for review, sets aside the judgments of the Court of Appeals and the trial court without reference to the merits, and remands to the trial court for entry of judgment in accordance with the settlement agreement of the parties, the Court of Appeals’ opinion is not vacated and its precedential value is equivalent to a “petition dismissed” case.  See Houston Cable TV, Inc. v. Inwood West Civic Ass’n, 860 S.W.2d 72, 73 n. 3 (Tex.1993) (stating rule under former writ-of-error practice).

The dismissal of a petition “shall not be regarded as precedent or authority.”  Tex. Gov’t Code Ann. 22.007(e) (stating rule with respect to writ of error).

AppellaTech: A Simple Tool to Record Your Time and Expenses

A close friend opened her own solo legal practice this year. From what I saw, it was an exciting and terrifying experience. Not even a year in, she is already thriving. I am delighted to see her hard work is already paying off.

A few months ago, she was lamenting to me that her accounting software did not have an easy way for her to track her hours worked and her expenses incurred and then generate a client report. And the software that did exist was incredibly expensive. As she was describing to me what she needed, I had a thought. "I bet I could do something like that." So I put myself to the task.

My goals were modest: Could I put something together (1) in an existing and common program (2) that didn't use coding, which would open itself up to malicious code being inserted, and (3) that would meet the needs of a solo practitioner? After a couple months of on-the-side work after the kids went to bed, I feel like I have determined the answer is yes. I thought I might share my results with you.

The program is Excel. If you have Microsoft Excel (version 2010 or later), this should work for you. If you are a solo practitioner (or have a very small office that can share one Excel spreadsheet), I believe you could find this useful.

To get a copy of the spreadsheet, click here.

The first tab of the spreadsheet includes instructions. Hopefully, that is enough. If you prefer images with your instructions, continue reading.

First, let's save a version to your computer. (The link above will provide you with a web-accessed, read-only version.) Click on the link, and you should see something like this:

Click on the 'File' tab, and choose 'Download as' and 'Microsoft Excel.'

Save it to your desired location. And then open up the file that you have saved. When you do, you may see this message at the top of the Excel window:

If you see that, click 'Enable Editing.'

Now let's go over some terms. These are your worksheets. (They should appear at the bottom of Excel.)

These are your "ribbons." They give you various options for things you can do with your spreadsheets.

The first thing you must do is enter in your clients. Click on the 'Client Matter List.' You should see this:

The dark blue area contains your headings. The light blue area is where you'll type in the necessary information. You should always type in new information on the very next line. Gaps in the lines will cause problems with the spreadsheet.

Now let's fill in the information. If you have one client with multiple matters, you will need to type in the same client multiple times, with each line listing a different matter. To make things a little more complicated, if you have multiple attorneys working on the same matter, you will need a line for each attorney in each matter on each client. For example, let's say you have one client (Sally Jones) with two matters ('Jones v. Carson' and 'Estate Planning). Now let's say, for Jones v. Carson, there's you and one other attorney in your office working on that case. You will fill in the client list like this:

If the client matter does not have an identified ending date, put something far into the future. (I used 1/1/3030.) If the billing rates change in the process of the representation, put the last date of the old billing rate into the 'Date End' field, then create a new line with the updated billing date, etc. with the day after the old 'Date End' being the 'Date Start' for the new line. For example, let's say the billing rate for the Estate Planning matter changes at some point. Here's what that should look like:

If you make *any* changes or additions to the 'Client Matter List' worksheet, you *have* to follow this next step. Click on the 'Data' worksheet (at the bottom of Excel), and then click on the 'Data' ribbon (near the top of Excel). You should see a button that says 'Refresh All.' Click on it.

That's it. You're done. Please note: ***Do not manually change any of the fields on the 'Data' worksheet. This information updates automatically when you click on 'Refresh All' in the 'Data' ribbon. Making manual changes on this spreadsheet can cause errors in the functionality of the rest of the spreadsheet.***

Now you are ready to start entering in your time and your expenses. Let's start with time. Click on the 'Timesheet' worksheet. You should see this:

The 'Client' field and the 'Matter' field will be restricted to the clients and matters you identified in the 'Client Matter List' worksheet. This is to prevent small typing errors that lead to large billing errors.

Fill in the necessary information for columns A through G (Client, Matter, Date, Time Start, Time End, and Description). Please note: ***there are automated fields to the right of the 'Description' column. DO NOT type in these fields or in any other way manipulate them. This can lead to errors in your billing reports.***

The 'Expenses' worksheet looks similar:

Like the 'Timesheet' worksheet, the 'Client' field and the 'Matter' field will be restricted to the clients and matters you identified in the 'Client Matter List' worksheet. Fill in columns A through E (Client, Matter, Date, Description, and Amount). Also like the 'Timesheet' worksheet, DO NOT type in the fields or in any other way manipulate anything to the right of the 'Amount' column. These fields are automated and manual changes can lead to errors.

Now you are ready to start creating and printing reports. Let's start with a time report. Click on the 'Time Report' worksheet. It looks like this:

Click on the 'Data' ribbon (near the top of Excel). You should see a button that says 'Refresh All.' Click on it.

If you have a logo, you can add yours to the worksheet. Also, update the address, email, and web address lines (with whatever information you want to appear on the report).

Now, select the dropdown next to 'Client' (row 9), and choose the appropriate client. Do the same for 'Billing Period' (row 10). The rest should fill in. It will look something like this:

Print that out, and you have a decent time billed report. The same procedure applies to the expense report. Click on the 'Expense Report' worksheet.

Click on the 'Data' ribbon, and select 'Refresh All.'

Select the dropdown next to 'Client' (row 9), and choose the appropriate client. Do the same for 'Billing Period' (row 10). The rest should fill in. It will look something like this:

Print, and you're done.

It may help you to have a spreadsheet will sample data already filled in for you to play around with. If you would like to try your hand at the various functions with mock data, click here.

I hope you find this useful. It's limited in its functionality, but it's also free. Hopefully, it is useful in comparison to its cost.

Case Update for April to August 2015

By James C. Marrow, Hogan & Hogan and Andrew C. Nelson, Wright & Close LLP


Guillory v. Seaton, LLC, No. 01-14-00379-CV, 2015 WL 4735694 (Tex. App.—Houston [1st Dist.] Aug. 6, 2015, no pet. h.)

The Texas Supreme Court had authority to promulgate Texas Rule of Civil Procedure 91a.

Rule 91a is constitutional.

Guillory was injured while operating a baler on a jobsite. One of the defendants he sued, Seaton, filed a Rule 91a motion to dismiss, which the trial court granted. Guillory appealed the judgment in favor of Seaton. Among other things, Guillory challenged both the authority of the Supreme Court to promulgate the Rule, as well as the constitutionality of the Rule.

First, Guillory argued that the Court lacked the authority to promulgate Rule 91a because it conflicts with Chapter 10 of the Texas Civil Practice and Remedies code. Chapter 10 limits the Supreme Court’s ability to issue sanctions rules. Guillory argued that Rule 91a was a sanctions rule because it awards attorney’s fees and court costs to the prevailing party. He argued that as a “sanctions rule,” the rule violated Chapter 10.

The First Court began its examination by determining that Rule 91a is not a sanctions rule. It does not punish bad conduct; rather it shifts the economic risks of litigation. Rule 91a does not reference the culpability of any party. Rule 91a is, therefore, a risk-shifting mechanism as found elsewhere in Texas law.

The court noted that even if Rule 91a was a sanctions rule, the Texas Legislature has mandated fee shifting in Rule 91a by passing Section 30.021 of the Texas Civil Practice and Remedies Code, in which the Legislature explicitly authorized the motion to dismiss procedure. To the extent Section 30.021 conflicts with Chapter 10, Section 30.021 prevails because it is more specific and was passed after Chapter 10. The court upheld the Supreme Court’s authority to promulgate Rule 91a.

Next, the court addressed Guillory’s arguments that Rule 91a is unconstitutional on its face and as applied. The court considered and rejected Guillory’s challenge that Rule 91a violates the open courts provision of the Texas Constitution. The court noted that Rule 91a would violate the open courts provision if the requirement is an unreasonable financial barrier to access to the courts. The court held it was not for several reasons. First, Rule 91a is not a “pay-to-play” rule—shifting litigation-cost risk is fundamentally different from requiring actual payment as a prerequisite to judicial review. Second, the court held that fee-shifting does not chill the filing of all claims. In most cases, it will not. Third, the court ruled that Rule 91a limits a plaintiff’s potential risk by requiring a defendant to file the motion early in the litigation. A plaintiff will therefore only be liable for a few months of litigation costs, not a few years. Fourth, Rule 91a provides a 21-day window for a plaintiff to nonsuit or amend the petition if desired in an attempt to avoid the fee-shifting mechanism.

For many of the same reasons, the court also turned away Guillory’s constitutional challenges based on free speech, due process, and equal protection. Finally, the court ruled that Guillory could not succeed on his as-applied challenge. The court upheld the validity of Rule 91a.

S.C. Maxwell Family P’ship, Ltd. v. Kent, No. 01-15-00245-CV, 2015 WL 4624026 (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no pet. h.)

When an alleged contract contains an arbitration agreement, and one party challenges the alleged contract on the basis that a contract was never formed, the validity of the contract is for the court, not the arbitrator, to decide.

Thomas and Nancy Kent received a letter from the S.C. Maxwell Family Partnership (the “Partnership”) informing them that the Partnership considered a partnership agreement between them to be invalid. In response, the Kents filed a declaratory judgment seeking a declaration that the agreement was valid.

The Partnership answered by attacking the formation and validity of the partnership agreement on multiple grounds, including the defenses of fraud, fraud in the inducement, failure of consideration, and lack of consideration. The Partnership then filed a motion to compel arbitration based on an arbitration clause in the agreement. The Kents opposed the motion. The trial court denied the motion to compel arbitration.

On appeal, the Partnership argued that the trial court erred in denying its motion. The First Court noted that while Texas law strongly favors arbitration, that presumption only arises after the court determines that a valid agreement to arbitrate exists. Under the “separability doctrine,” an arbitration provision is separable from the rest of the contract such that a challenge to the validity of the entire contract is a question for the arbitrator, while the question of a challenge specifically related to the arbitration provision is a question for the court. However, courts have distinguished between issues related to the contract’s formation and other issues impacting a contract’s validity. Specifically, when the formation of a contract is called into question, courts have authority and responsibility to decide the matter.

In the case before it, the Partnership pleaded failure of consideration and lack of consideration as defenses. Those defenses challenge the very existence of a contract. Because the Partnership raised a formation defense alleging the contract never existed, that issue was for the court to decide. As a final argument, the Partnership argued that because the Kents did not deny the existence of the agreement, the trial court should have ordered arbitration. The court rejected that argument. The court affirmed the judgment of the trial court.

Lumenta v. Bell Helicopter Textron, Inc., No. 01-14-00207-CV, 2015 WL ______ (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no pet. h.)

The court laid out the standards for review of a denial for a motion for continuance of a hearing on a forum non conveniens motion.

The plaintiff, Lumenta, sued Bell Helicopter in Houston over a fatal helicopter crash that killed her son in Indonesia. Among other things, Bell Helicopter filed a motion to dismiss Lumenta’s claims based on forum non conveniens. The trial court granted the forum non conveniens motion. Lumenta appealed.

The court engaged in a lengthy discussion of the doctrine of forum non conveniens and ultimately determined that the dismissal was proper. That discussion is not summarized here.

However, Lumenta also argued that the trial court should erred by refusing to grant her motion for continuance of hearing on the forum non conveniens motion. The First Court noted that it reviews a trial court’s denial of a motion for continuance for a clear abuse of discretion. Lumenta filed her motion for continuance on the grounds that she needed to conduct additional discovery in support of her motion. Lumenta argued that she “could not respond fully” to Bell Helicopter’s motion, but filed her response anyway.

Lumenta relied upon a case in which the court held that a trial court committed an abuse of discretion in not granting a motion for continuance of a hearing on a motion for summary judgment. However, the First Court distinguished that case on the grounds that a summary judgment is a decision on the merits. On the other hand, a motion to dismiss based on forum non conveniens is not a merits dismissal, because it is a determination that the claims should be decided elsewhere. Additionally, a forum non conveniens motion does not call for development of the whole case, as opposed to a motion for summary judgment. Because of the distinctions drawn between the different motions, the First Court affirmed the trial court’s denial of Lumenta’s motion for continuance.


Saifi v. City of Texas City, No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015) (mem. op.).

Notwithstanding CPRC section 51.014(a)(8), an appeal from the granting of a jurisdictional plea that results in a final judgment is governed by ordinary appellate deadlines and not the accelerated appellate timetable.

Appellant Saifi sued Appellee, the City of Texas City, alleging wrongful termination of his employment with the City’s fire department. The trial court granted the City’s plea to the jurisdiction asserting governmental immunity, and Saifi appealed.

The City argued that Saifi failed to timely perfect his appeal because the appeal was taken from an order that “grant[ed] or denie[d] a plea to the jurisdiction by a governmental unit,” which is grounds for interlocutory appeal under Civil Practice and Remedies Code section 51.014(a)(8). The Court of Appeals disagreed because, although the trial court’s order did not include express language of finality, the order reflected that the City’s plea to the jurisdiction, which addressed all of Saifi’s claims, was granted “in its entirety.” Thus, under Lehmann v. Har-Con Corp., the order was a final judgment because it finally disposed of all parties and all claims. Accordingly, the Court of Appeals held that the judgment was not subject to an accelerated appellate timetable and that Saifi’s notice of appeal was timely filed.

The Court of Appeals ultimately reversed the trial court’s plea to the jurisdiction because Saifi’s pleadings did not reveal incurable jurisdictional defects on his breach-of-contract claim, and remanded the matter for Saifi to have an opportunity to amend his pleadings and develop the record on his contention that the City’s immunity was waived under Local Government Code section 271.152.

In re Valerus Compression Servs., LP, No. 14-14-00019-CV, 2015 WL 2169656 (Tex. App.—Houston [14th Dist.] May 7, 2015, orig. proceeding) (mem. op.).

A trial court abuses its discretion, and mandamus is appropriate, if the trial court grants a Rule 202 petition prior to ruling on the opposing party’s motion to compel arbitration.

The real parties in interest filed a Rule 202 petition, seeking to depose various representatives from relator, Valerus Compression Services, to investigate potential claims of breach of contract, breach of fiduciary duty, minority shareholder oppression, and civil conspiracy. Valerus objected to the 202 petition and filed a motion to compel arbitration pursuant to a dispute resolution in a partnership agreement among the parties. The trial court granted the Rule 202 petition but did not expressly rule on the motion to compel arbitration. Valerus filed an interlocutory appeal and mandamus proceeding.

The Court of Appeals held that mandamus, not interlocutory appeal under CPRC section 51.016, was the appropriate procedural vehicle in this instance because the trial court did not rule on the motion to compel arbitration (so as to give rise to an interlocutory appeal) but instead deferred ruling.

The Court granted mandamus relief, relying on its earlier decision in In re Bill Heard Chevrolet, No. 14-05-00744-CV, 2005 WL 2787468 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, orig. proceeding) (mem. op.). The earlier panel that decided Bill Heard had ruled that “[t]he trial court has no discretion to delay the decision on the merits of arbitrability until after discovery,” and the Court followed that precedent and reached the same conclusion. Accordingly, the panel conditionally granted mandamus relief and ordered the trial court to rule on the issue of arbitrability.

Justice McCally concurred in the outcome because the Court’s precedent dictated the same outcome. However, she wrote separately to urge the court to reconsider Bill Heard Chevrolet, reasoning that a Rule 202 trial court does not have jurisdiction to adjudicate claims or defenses to final judgment. As such, a Rule 202 trial court does not have jurisdiction to consider or rule on a motion to compel arbitration, so “we have ordered the trial court to do that which it does not have jurisdiction to do.” Instead, Justice McCally suggested that a Rule 202 trial court should consider a motion to compel arbitration as part of the benefit/burden analysis required by Rule 202, which takes into account defenses to discovery that would exist in a traditional lawsuit, and that mandamus review of the Rule 202 trial court’s ruling should be limited to examining the trial court’s balancing of the benefits and burdens of the requested pre-suit discovery.

Stamatis v. Methodist Willowbrook Hosp., No. 14-14-00492-CV, 2015 WL 3485734 (Tex. App.—Houston [14th Dist.] June 2, 2015) (mem. op.).

A trial court’s inherent power does not authorize a court to dismiss a party’s claims on the merits without a pending motion.

Appellant, Paul Stamatis, Jr., sued several health care providers for alleged medical negligence. The defendants contended that Stamatis had received “emergency medical care,” such that, under CPRC section 74.153, to recover Stamatis would have to prove the health care providers acted with willful and wanton negligence, as opposed to the traditional ordinary negligence standard.

At a pretrial conference on the eve of trial, and based on Stamatis’s pleadings and the arguments of counsel without considering any evidence, the trial court determined as a matter of law that the willful and wanton standard would apply. Stamatis had not pleaded the higher standard of care and declined to amend his pleadings. The trial court therefore signed a final judgment ordering that Stamatis take nothing on his claims against the defendants. Stamatis appealed.

The Court of Appeals reversed, holding that the trial court was not permitted to enter judgment without a case-dispositive motion by the defendants. The Court noted that the Rules provide several procedural vehicles that may be used to resolve a dispute, including trial on the merits, motions for summary judgment, and agreements by the parties to compromise some or all of their claims. The Court continued, “[w]here an extensive system is in place governing procedures applicable to a situation, trial courts do not, in the absence of some extraordinary reason to depart from those procedures, have the inherent authority to create their own ad hoc procedures. Inherent power does not permit a trial court to dismiss a party’s claims on the merits without a pending motion.”

Menon v. Water Splash, Inc., ___ S.W.3d ___, No. 14-14-00012-CV, 2015 WL 3982547 (Tex. App.—Houston [14th Dist.] June 30, 2015).

The Hague Convention prohibits plaintiffs from serving process on Canadian citizens living in Canada by mail but instead requires service through a central authority or “directly through the judicial officers, officials, or other competent persons of the State of destination.”

Appellee, Water Splash, sued Menon, among others, in Galveston, Texas for unfair competition, conversion, tortious interference with business relations, and conspiracy. Menon is a citizen of Canada and resides in Quebec. Water Splash requested, and the trial court approved, alternative service of process on Menon through Rule 108a, specifically, first class mail, certified mail, and Federal Express to Menon’s address and email to each of Menon’s known email addresses.

Menon did not file an answer or otherwise appear. Water Splash moved for default judgment, arguing that service was accomplished by sending a letter to Menon’s Quebec address through certified mail, return receipt requested, and first class mail. The trial court granted the motion for default judgment against Menon and awarded actual and exemplary damages and attorneys’ fees. Menon moved for a new trial. Her motion was denied, and she appealed.

Menon argued that the Hague Service Convention applied, that it specified the only acceptable means of service, and that service by mail was not sufficient under the Convention. Water Splash responded that Rule 108a was an acceptable form of alternative service.

The Court of Appeals held that the Hague Service Convention applied and defined the relevant issue as the interpretation of Article 10(a) of the Convention. Article 10(a) generally provides for “the freedom to send judicial documents . . . directly to persons abroad” and “the freedom . . . to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination.” The question presented was whether Article 10(a) allows service of process by mail. This question has not yet been answered by the United States Supreme Court, Texas Supreme Court, or the Fourteenth Court of Appeals.

Menon argued that, by using the word “send” in relation to judicial documents generally, but “service” elsewhere, the drafters did not intend to allow service of process by mail. The majority of the Court of Appeals agreed with Menon and held that the Convention prohibited service of process by mail. The majority reasoned that, because the Convention provides elsewhere for service of process through a central authority or through diplomatic channels, it was “unlikely that the drafters would have put in place these methods of service . . . while simultaneously permitting . . . service by mail.” The majority also noted that other federal district courts in Texas, and at least two Texas state courts (including the First Court of Appeals), had reached the same conclusion. Therefore, the panel majority reversed the default judgment and remanded to the trial court for further proceedings.

Justice Christopher dissented, noting that the “majority rule” in the U.S. interpreted Section 10(a) as allowing service of process by mail. She further noted that, as a treaty, the Convention is not legislation and is supposed to be construed more liberally than a private contract to secure equality and reciprocity among the participating countries, that is, in a manner “consistent with the shared expectations of the contracting parties.” Justice Christopher further observed, among other things, that the Executive Branch—to which interpreting courts are to accord “great weight”—has “unwaveringly interpreted Article 10(a) as permitting service by mail” and that other countries have not drawn a distinction between the words “send” and “service” in Section 10(a). Accordingly, Justice Christopher would hold that Article 10(a) of the Convention permits service by mail in Canada.

Upcoming Luncheons

October 8
“U.S. Supreme Court Cases That Will Affect Your Practice: Reviewing The 2014 Term and Previewing the 2015 Term,” Jeff Oldham, Bracewell & Giuliani LLP; William Peterson, Beck Redden, L.L.P.; Aaron Streett, Baker Botts
RSVP deadline: noon on Monday, October 5
CLE: 1.0 hour (0.25 ethics)

Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $40 for Section members who RSVP; $45 for non-members who RSVP and for Section member walk-ins; $50 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.

Features for April 2015

Welcome to the April 2015 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

Kevin Dubose, Alexander, Dubose, Jefferson & Townsend, LLP, discusses the underlying principles of effective appellate advocacy

Justice Bill Boyce, 14th Court of Appeals, considers the effects of jumping the overly-expansive-legislative-interpretation shark. That tagline works; just go with it.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman explains ways to stay up-to-date on potential legislative changes to your area of practice.

Case updates for the Houston practitioner
by John Barnes, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Andrew Nelson, Wright & Close, LLP

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

Toward a Kinder and Gentler (and More Effective) Advocacy Style

by Kevin Dubose, Alexander, Dubose, Jefferson & Townsend, LLP


In the middle of my fourth decade of practicing law, mostly as an appellate specialist, I realize that my style of oral and written advocacy has changed since I was a young lawyer. I am less aggressive, less manipulative, less snarky, and less focused on my own performance. I also am more candid, more flexible, and more audience-sensitive. I approach advocacy less as an act of bending the mind of my audience to my will, than it is a joint process of discovery, analysis, and reaching reasonable conclusions together.

I have not fully mastered this advocacy style. But it is what I consciously aspire to, and is a worthwhile goal for all appellate advocates. This approach is a more effective way to communicate with, and ultimately persuade, today’s appellate judicial audience.

The way we were (or at least I was)

I spent years as a competitive public speaker, first as a high school debater, and then in mock-trial and moot court competitions in law school. As a young lawyer I coached law school moot court teams for several years, which caused me to further focus on appellate advocacy as a competitive sport.

Then I spent the first six years of my career as a trial lawyer, with all of the competitive, combative, and ego-driven mind games that practice inevitably entails.

The combined result of these experiences was an advocacy style that was focused on demonstrating superiority to opposing counsel. This was often accomplished by melodramatic flourishes of language, exaggerated cleverness, snarky put-downs, and well-rehearsed performance techniques. Although I was aware that judges played a role in the process, I assumed that if I could prove to myself and opposing counsel that I was the superior advocate, then surely the judges would figure that out and decide cases accordingly.

What changed?

Me. And the judicial appellate audience.

I changed in ways associated with experience, maturity, and accumulated wisdom and perspective.

I heard and read the teachings of Professor George Gopen, who emphasizes the importance of writing with a focus on the needs and expectations of the reader, rather than the unrestrained impulses of the writer.

I participated tangentially in creating, and was liberally exposed to and studied and began to teach the groundbreaking work done by my brother, Robert Dubose, in legal writing for screen readers, which also emphasizes being mindful of the reader’s experience.

I read – and in some cases participated in writing – literature on ethics and professionalism in the appellate practice.

I studied judicial surveys, listened to judges’ CLE presentations, and talked to judges. That process was somewhat de-mystified when more of my friends, colleagues, and former students became judges.

Not only have I learned more about appellate judges, but the composition and quality of the appellate judiciary has changed during my career. When I began practicing law the conventional wisdom was that appellate judges tended to be old white men who had not been successful practicing law, were appointed to a vacant appellate bench as a return for political favors, and rode the wave of incumbency until they qualified for a pension. There were numerous notable exceptions to this characterization, locally and state-wide, but there were too many instances where the stereotype rang true.

Today’s appellate judiciary seems to be more diverse, younger, brighter, and more engaged. I know outstanding appellate advocates who have become appellate judges as a public-service-oriented career choice, rather than out of an absence of choices. At almost every level, oral arguments have changed from disinterested panels that asked few questions to interrupt prepared speeches, to fully engaged “hot” panels that spend most of the argument time in an informed dialogue with the advocates about the issues. Briefs seem to be read and absorbed more thoroughly, and relevant portions of records examined more frequently.

This more fully engaged appellate audience demands a different style of advocacy, one that recognizes:
  • Appellate judges should, and do, decide cases based on the law and the facts, not the quality of the oral advocates.

  • Appellate judges not only are unimpressed by lawyers being snarky with and about each other, but it makes them uncomfortable. They do not consider it helpful in doing their job, which is to decide cases and write opinions, not to referee cat fights.

  • Appellate judges not only have to decide the case before them in a fair and appropriate manner, but have to consider the implications of their opinions on other cases.

  • Appellate courts are over-worked and under-staffed, which creates time pressures that make judges appreciate lawyers who get to the point quickly.

  • Appellate judges like it when briefs are so objectively honest and accurate that parts of them can be appropriated and used in opinions. 

  • Appellate judges – like most people – do not readily embrace being insulted, talked down to, or dogmatically told what they have to do. They prefer a reasoned and rational approach that respects their intelligence and allows them to reach their own conclusions.

  • Appellate judges are human beings whose world view is inevitably shaped by their experience. But they rarely, if ever, pursue ideological agendas, have pre-determined ideas about the outcomes of cases, or decide cases based on anything other than what they truly believe is the best result based on the facts and the law in that case.
So, what do I try to do that is kinder and gentler?

Try to never make it about opposing counsel. At a minimum, this means never addressing opposing counsel by name in briefs or oral arguments. But it also means refraining from using phrases like “counsel for Appellants” or “the attorney for the Partnership.” Even those phrases focus attention on the individual lawyer representing the opposing party and personalize the argument. Address the arguments advanced on behalf of the opposing party; don’t attach the argument to the person making it.

Don’t address the appellate strategy employed by the opposing party. Avoid statements like, “The Trustees saves this argument for last because they know it lacks merit,” or “Plaintiffs avoid mentioning the standard of review because they know they cannot prevail under the proper standard.” These strategic decisions were made by lawyers, and this is another way of making a personal attack on counsel, even if counsel is not expressly mentioned.

Avoid commenting on the integrity of opposing parties, counsel, or arguments. Don’t say things like, “The insurance company is represented by experienced appellate counsel who are well aware of the standard of review and choose to ignore it.” Or, “There are no Texas cases standing for this proposition, and they know it.” Be wary of ever accusing the opposing party of being “disingenuous,” because it often implies a conscious intent to deceive.

Be respectful of the trial court and the appellate court. Even though any appellant must point out reversible error in the trial court, there are tactful ways of doing that. It helps to adopt an attitude that recognizes that even hard-working and conscientious trial judges have to make numerous difficult judgment calls on the fly every day of a jury trial, and occasionally get it wrong despite their best intentions. That approach is far better than suggesting that the trial judge was so stupid and incompetent that it is a minor miracle that he was able to execute an appealable judgment. Trial judges are also part of the judicial community, and in many ways are closer to being peers of the appellate judges you are writing for than you are as an appellate practitioner. Attacking a judge’s potential friends and colleagues is not calculated to make a favorable impression.

When addressing prior negative precedent of the court you are addressing, consider arguing that the facts are distinguishable, or that the jurisprudence has shifted since the previous opinion issued. Either approach is preferable to simply saying that the previous opinion “was wrongly decided at the time, and it remains wrong today.”

Finally, even though a motion for rehearing must point out result-altering errors in the court’s opinion, leave open the possibility that the court inadvertently, and in good faith, failed to consider a particular implication of its decision, or the relevance of a piece of evidence. Or, when appropriate, implant the possibility that you may not have been sufficiently clear in calling these things to the court’s attention in the original briefing. Any of these approaches is far preferable to accusing the court of intentionally disregarding an argument or a fact in the record in order to reach a result.

Avoid being dogmatic, arrogant, or unjustly confident. Sure, you want to act like you believe in your arguments. But most cases that end up in the court of appeals with good lawyers on both sides are not one-sided affairs that should be treated as a slam dunk. Candor and integrity probably demand that you treat your opponent’s arguments with the respect that the court is likely to give them. If the court is intrigued by an argument, and is anxious to hear your reasoned rejoinder, blustering and telling the court that the argument is “patently absurd” or “cannot be made with a straight face,” is not likely to make the court less interested in the argument. It will only make the court less interested in considering your response, because it is not helpful.

Similarly, don’t tell the court what it has to do. Avoid using phrases like, “This Court must affirm,” or “This Court has no choice but to reverse.” Most people resent being told what they have to do, and it makes them defensive and resistant. Make your best argument, tell the court what you are asking it to do, and then step back and let the judges reach their own conclusions and do their job.

Don’t hide the ball or ignore bad facts or bad law. I used to think that if I could get the court to focus on my best points, they might ignore the other side’s best arguments and facts and decide in my favor. That approach is na├»ve and unrealistic. The court and the staff attorneys will spend as much time on the other side’s brief as they do on yours, regardless of how you choose to spend your time in oral argument, and troublesome arguments and evidence will not be overlooked or swept under the rug because of your manipulating eloquence. Ignoring difficult points just means that you are missing the opportunity to give the court your best answer for them, and leaving the court to consider those points in a vacuum.

In oral argument, be prepared for a productive conversation, not an exercise in oratory. You can prepare a 20-minute script for a 20-minute argument if you want. But 9 times out of 10 – or maybe 19 times out of 20, or 49 times out of 50 – you will not be able to get through, or maybe even get to, your script. And if you think the best approach is to quickly and dismissively answer questions and then get back to where you were in your script (before you were so rudely interrupted), then you are badly missing the point of oral argument. Oral argument is not a chance for you to display your eloquence, but an opportunity for the court to ask questions about the things they – or other judges on the panel – are having trouble with. The best use you can make of your time in oral argument is to respond to and allay those concerns. And if you are focusing on your own presentation rather than meeting the expressed concerns of the court, then you may be missing the best opportunity to win your case.


The title of this article is more than just an attempt to invoke the good will of George H.W. Bush’s nomination acceptance speech in 1988. The phrase “kinder and gentler” summarizes the two points I think are most important to develop in an effective advocacy style. We should try to be kinder to opposing counsel. Treat them with respect, and like worthy adversaries, rather than dismissively and derisively. And we should try to be gentler in our efforts to persuade the appellate courts. Ham-handed attempts at intimidation and manipulation are rarely successful. Treating appellate judges like intelligent and conscientious legal scholars with whom we can reason together is much more likely to be effective.

Last month I was interviewing my friend Charles “Skip” Watson, an appellate lawyer in Austin, for a State Bar project. He said this: “Opposing counsel is not the enemy. They are just another lawyer trying their best to do their job.” In 36 years of practicing law I had never heard anyone say that, and it is something I have thought about almost daily since then, because it is so true, and so refreshing.

Opposing counsel is not your enemy. Neither is the appellate court. And your advocacy style should reflect those truths.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

The phrase “jump the shark” owes its existence to the beloved 1970s television sitcom Happy Days.

Photo courtesy of wikipedia.com
Several years into the show’s long run as a weekly viewing staple, weary Happy Days script writers started running out of ways to exploit 1950s nostalgia. Plots went from implausible to bizarre. Deteriorating story quality became manifest with the broadcast of a 1977 episode built around this burning question: Could Arthur “Fonzie” Fonzarelli muster the courage to jump over a live shark while waterskiing? (Spoiler alert: He did; hilarity ensued.)
“Jump the shark” soon entered the popular lexicon to describe that precise moment signaling the arrival of creative exhaustion and the inevitable demise of a once-mighty entertainment franchise. One can only surmise that the exploding head scene in The Interview heralds such a moment for Seth Rogen.

Looking beyond the entertainment realm, this phrase has acquired a broader meaning capturing the notion of taking an idea way too far. And that brings us to Yates v. United States, 135 S.Ct. 1074 (Feb. 25, 2015), in which five justices concluded that the prosecution of a commercial fisherman under the Sarbanes-Oxley Act was tantamount to jumping the shark – or, to be more precise, jumping the 20-inch red grouper.

The United States prosecuted John Yates under 18 U.S.C. § 1519, which provides for a fine and imprisonment up to 20 years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with an intent to impede an investigation. This provision was one aspect of the legislative response to the massive financial and accounting fraud leading up to Enron Corporation’s collapse.

Yates’s prosecution arose from a visit to his fishing boat off the Florida coast by an agent of the National Marine Fisheries Services, who determined that Yates had caught 72 fish that were shorter than the 20-inch minimum specified in federal regulations for red grouper. The agent told Yates to keep the undersized fish segregated in crates on the boat. When Yates docked in Florida four days later, the agent determined that Yates had thrown the undersized fish overboard. Yates was convicted for violating section 1519 and another statutory provision, and the court of appeals affirmed his conviction.

The Supreme Court reversed Yates’s conviction under section 1519 in a fractured decision that produced a plurality opinion written by Justice Ginsburg, who was joined by Chief Justice Roberts and Justices Breyer and Sotomayor. Justice Alito concurred in the judgment and wrote a separate opinion explaining his narrower reasons for reversal. Justice Kagan dissented, joined by Justices Scalia, Kennedy, and Thomas.

The fight centered on section 1519’s use of the phrase “tangible object.” All justices agreed that, in the abstract, a fish is indeed a “tangible object.” The split arose because the plurality and Justice Alito concluded that section 1519’s statutory context mandated a narrower reading of these words so that this provision’s prohibition against destruction of a “tangible object” did not reach Yates’s action in throwing undersized red grouper overboard.

Per Justice Ginsburg: “[I]t would cut section 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.” Id. at 1079. “Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of section 1519 is in order: A tangible object captured by section 1519 . . . must be one used to record or preserve information.” Id.

According to Justice Alito, section 1519 “does not cover every noun in the universe with tangible form” when read in light of the statute’s list of nouns, its list of verbs, and its title. Id. at 1090 (Alito, J., concurring). Section 1519’s title reads as follows: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” Per Justice Alito: “This too points toward file keeping, not fish.” Id.

For her part, Justice Kagan concluded that “conventional tools of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible. I would apply the statute that Congress enacted and affirm the judgment below.” Id. at 1091 (Kagan, J., dissenting).

There are colorable statutory construction arguments on both sides of this issue. All three opinions plausibly marshal authorities and rules to advocate their respective conclusions. Those justices having an inclination to examine legislative history dutifully mine the record for supporting nuggets.

While one will search these opinions in vain for the phrase “jump the shark,” there are hints that this decidedly non-legal concept played a role in the debate. A pungent whiff of “this is a bit much” comes across when Justice Ginsburg observes as follows: “[T]he Government urges a reading of section 1519 that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense . . . .” Id. at 1088 (original emphasis). It emerges again when Justice Alito states that “the Government’s argument, though colorable, becomes too implausible to accept.” Id. at 1090 (Alito, J., concurring). Justice Kagan acknowledges these concerns but attributes them to a “deeper pathology in the federal criminal code” characterized as “overcriminalization and excessive punishment.” Id. at 1100-01 (Kagan, J., dissenting).

The lesson Yates holds for advocates is to keep an eye on the shark’s location when formulating legal arguments. Logically plausible contentions still may fall short if they require a jump the court simply is not willing to make.

Did You Know . . . ?

by JoAnn Storey

A trial court’s plenary jurisdiction gives it not only the authority but the responsibility to review any pre-trial order upon proper motion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985); Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 422 (Tex. App.-Houston [14th Dist.] 2011, no pet.).

AppellaTech: Online Resources for the Texas Legislature

Given how much energy and resources the government puts into tracking us, it seems only fair that we be allowed to track them right back. Fortunately, the Texas Legislature has made that possible. As you know, the Texas Legislature is back in session. So now is a good time to look at some of the online resources available to follow the sausage-making process.

First, there's the website—or, more accurately, the websites. There's a website for traditional computers. (Yes, "traditional computers" is now a thing.) Then there's a website for mobile devices. You can access both websites from either your computer or your mobile device. The difference is in layout, and the mobile website is more limited in its scope.

The website for the mobile device has some nice features if you are actively following certain activities of the legislature. But I want to focus instead on how to follow bill activity and receive updates about them. To do this, you need to go to the main website, and you need to create a personal account.

At the top of the main page for the legislature, there is a menu bar. One of the options on the menu bar is "My TLO." (If it's not abbreviated, it's not trendy, LOL!) That gives you a few choices: Bill Lists, Alerts, Saved Searches, etc.

To use the first three options, you need to create an account. Go to the log in page, and click on New User. Once you have created your account, you can return to the My TLO page.

"Bill Lists," as the name suggests, allows you to put certain bills you want to follow into a group of your naming. Then, every time you visit the website, you can run a report to view the activity on each of the bills in the list.

"Saved Searches" is handy when, for example, you want to regularly look for certain terms appearing in any bill. Once you've performed a specific search, you can save your search criteria. This allows you to find the same thing quickly every time you want an update. Start by going to the search page, selecting the type of search, and entering your criteria. Once you run the search, you will have an option to save the search near the top right of the screen.

Next time you want to perform the search, just go to your saved searches in My TLO.

The last item I want to cover is "Alerts." You can use this section to receive email notifications under a wide variety of circumstances. This section has a lot of options that are worth exploring if you are deep into the weeds of legislative bill making. For those of us that are more casual Texas Legislature field observers, there are a couple of alter options that are more pertinent. The first is "Subjects Alerts." This allows you to receive alerts about a subject-matter that is of particular relevance to you.

Since we are all appellate practitioners, the "Courts--Appellate" subject might be of particular relevance. To add it, click on "Add Subjects to My List."

Scroll down. Select the desired subject. Then click on the "Add Subject(s)" button. You will then start receiving emails about activities on bills within your subject, such as the bill to create chancery courts in Texas.

The second general alert that might be of interest to you is "Adjournment Alerts." This will send a simple update when each legislative branch has adjourned and for how long it will be adjourned.

The information on the legislative websites allows you to tailor the information available to your needs. Obviously that requires your focus and time to get everything set up the way you like it. If you'd prefer to rely on the hard work of others (and not re-invent the wheel), the Appellate Section of the State Bar of Texas has just what you need. They have a webpage dedicated to providing legislative updates on "proposed legislation might affect the practice of civil trial and appellate lawyers and the judiciary." This webpage is curated by Jerry Bullard. Mr. Bullard also sends out an e-newsletter on the topic. If you are interested in being added to the list, visit the Appellate Section's legislative update webpage for more information.

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 January to March 2015

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


Tesco Corp. v. Steadfast Ins. Co., No. 01-13-00091-CV, 2015 WL 456466 (Tex. App.—Houston [1st Dist.] Feb. 3, 2015)

A declaratory-judgment suit is rendered moot when a judgment from another state that forms the basis for the suit is reversed.

A pleaded request for attorneys’ fees under the Declaratory Judgments Act will not prevent the dismissal of a case that was rendered moot while on appeal of a summary judgment when the summary-judgment ruling did not involve a request for attorneys’ fees.

Tesco—an operator of drilling rigs—was sued in Colorado by a worker claiming personal injuries resulting from Tesco’s negligence. Steadfast—Tesco’s insurer—provided a defense to Tesco. The jury found against Tesco, awarding, among other things, $1.5 million in punitive damages to the plaintiff. Steadfast informed Tesco that Colorado law does not allow punitive damages to be covered under a policy of insurance.

Tesco then filed a declaratory judgment action in Texas, asserting that Texas law applied to the policies at issue, and that under Texas law, Steadfast was liable to pay the punitive damages on its behalf. Tesco filed a motion for partial summary judgment on the coverage issue. Steadfast filed a cross-motion for summary judgment. The trial court granted Steadfast’s motion and denied Tesco’s, declaring that Colorado law applied to the policies. Tesco appealed, and the First Court reversed and remanded.

Following the First Court’s reversal, Steadfast filed a motion for rehearing in which it brought to the court’s attention a ruling by the United States Court of Appeals for the Tenth Circuit reversing the award to the plaintiff in that case. Tesco and the plaintiff entered into a stipulation that the plaintiff would no longer pursue a claim for damages against Tesco.

The First Court held that the controversy between the parties was rendered moot by the Tenth Circuit’s opinion and the parties’ stipulation. Because the plaintiff in the underlying case would never be able to collect punitive damages from Tesco, the declaratory judgment suit no longer presented a live controversy between the parties.

Tesco argued that a live controversy remained because of Tesco’s claim for attorneys’ fees. The court acknowledged that a remaining dispute over attorneys’ fees can prevent a case from being moot in some circumstances. However, Tesco did not seek attorneys’ fees in its motion for partial summary judgment, expressly leaving that issue aside to be considered later. Thus, the court held, no live controversy existed as to attorneys’ fees. The court vacated the trial court’s judgment and dismissed the case for want of jurisdiction.

Ahmed v. Shah, No. 01-13-00995-CV, 2015 WL 222171 (Tex. App.—Houston [1st Dist.] Jan. 15, 2015

Parties may join a co-party’s motion pursuant to Rule 58 of the Texas Rules of Civil Procedure so long as they share “a community of interest and identical defenses to [the opposing parties’] claims.”

The dispute at issue arose from failed investments in a medical clinic. A number of doctors sued another group of doctors for fraud, conspiracy, and several other causes of action. One of the defendant doctors filed several motions for summary judgment. Four of his co-defendants joined the motions pursuant to Rule 58. The trial court granted the motions.

On appeal, the appellant doctors (plaintiffs below) argued that the trial court improperly allowed the other defendants to join the summary judgment motions of the defendant who filed the motions. The appellants asserted that the joining defendants needed to establish that they were in a position identical to that of the moving party, which they did not. The First Court rejected that argument, noting that the petition alleged common facts and claims against the defendants as a group, creating a community of interest among the defendants. The court held that it was not necessary for the joining defendants to establish that they were in a position identical to that of the moving party before employing Rule 58 to join the motions.

Thielemann v. Blinn Bd. Of Trustees, No. 01-14-00595-CV, 2015 WL 1247018 (Tex. App.—Houston [1st Dist.], Mar. 17, 2015)

The court reversed an award of sanctions because it determined the plaintiff’s petition had an arguable basis in law and, therefore, was not sanctionable.

A pro se plaintiff filed suit against the Blinn Board of Trustees, alleging that the board violated a Texas Education Code provision when it set out-of-district tuition rates, because the rates caused the taxpayers of Washington County to shoulder a disproportionate amount of the cost. The board filed a motion to dismiss for lack of jurisdiction on the grounds that no private cause of action existed for violation of the Texas Education Code. After the court granted the board’s motion, it entertained the board’s motion for sanctions against the plaintiff. The trial court awarded $9,055.50 in attorneys’ fees to the board.

The plaintiff challenged the award of attorneys’ fees on appeal. The court began by noting that “sanctions are reserved for those egregious situations where the worst of the bar uses our honored system for ill motive without regard to reason and the guiding principles of the law.” The court further noted that the court cannot base an award of sanctions on the legal merit of a pleading or motion. Instead, the trial court must examine all facts available to the litigant and the circumstances at the time of the filing of the motion.

In the case before it, the court noted that a public community college like Blinn is protected by governmental immunity. However, governmental immunity does not bar suits seeking to require officials to comply with statutory or constitutional provisions. The court noted that while the plaintiff’s claims for monetary damages were barred by governmental immunity, his attempt to force the board to comply with the statute arguably was not. Further, the plaintiff’s allegations, though not artfully pleaded, were sufficient to arguably plead a cause of action. Therefore, the court could not say that his suit lacked a reasonable basis in law.

The court further noted that the board did not present any evidence at the sanctions hearing, but rather presented only motions and arguments of counsel, which do not constitute evidence for purposes of a sanctions proceeding. This, combined with the fact that the plaintiff’s claim arguably had a reasonable basis in law, made the award of sanctions inappropriate. The court reversed the award of sanctions and rendered a take-nothing judgment.


In re Mark Athans, et al., No. 14-14-00699-CV, 2015 WL 673416 (Tex. App.—Houston [14th Dist.] Feb. 13, 2015)

Where, on the basis of factual insufficiency, a relator seeks mandamus relief from the granting of a motion for new trial, the relator fails to establish his right to mandamus relief if he does not provide the entire trial record.

American Surgical Assistants, Inc. ("ASA") sued relators Mark Athans, Omar Martinez, and Prestige Surgical Assistants, LLC (collectively, "Relators") for various causes of action, including breach of fiduciary duty and aiding-and-abetting a such a breach. At trial, the jury failed to find a breach and, therefore, did not answer the questions concerning the aiding-and-abetting count. The court granted a new trial for ASA on three grounds: (1) the jury's failure to find a breach was against the great weight and sufficiency of the evidence; (2) the jury should have been instructed on the meaning of the term "solicit" in the charge, which is a question of law; and (3) defense counsel violated the trial court's instructions not to discuss the details of the evidence or argue the case during voir dire. Concerning the sufficiency ground, the trial court pointed to the testimony of witnesses Mark Athans, Monica Ellington, Omar Martinez and Eleazar Flores (collectively, the "Witnesses"). The court likewise pointed to the differing definitions of "solicit" argued by counsel in closing.

Relators filed a mandamus petition, to which they attached excerpts of the transcripts from the voir dire and from the trial, which excerpts contained the testimony of the Witnesses and the arguments and statements of counsel at issue. Relators did not include any exhibits from the trial in their mandamus record.

The Court of Appeals denied Relators' petition, holding that, in order to review the granting of a new trial on factual insufficiency grounds, it would be necessary to review the entire trial record, including, but not limited to the exhibits from the trial. Because they had only included excerpts from the transcript, Relators failed to provide all relevant and material portions of the record under Tex. R. App. 52.7, which precluded consideration of the merits of their petition.

Justice Busby dissented, noting that the only relevant and material portions of the record were those that went to the specific grounds relied upon by the trial court in granting ASA's motion. Hence, because the trial court relied upon the testimony of the Witnesses and specific statements and arguments of counsel, all of which were included in the excerpted portions of the voir dire and trial transcripts included in Relators' mandamus record, Justice Busby would have held that the record was sufficient under Rule 52.7.

Gary Aaronii et al. v. Directory Distributing Assocs., Inc., et al., No. 14-13-00784-CV, 2015 WL 971357 (Tex. App.—Houston [14th Dist.] Feb. 26, 2015)

The collective action provisions of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), do not preempt the venue provisions of Texas law under Texas Civil Practice and Remedies Code (CPRC) section 15.003 (entitled "Multiple Plaintiffs and Intervening Plaintiffs"). Therefore, out-of-state plaintiffs may be dismissed from a collective action brought in Texas state court under the FLSA unless they can individually establish that venue is proper as to each of them.

Various Harris County residents who delivered telephone directories for AT&T (the "Named Plaintiffs") brought suit against AT&T, Directory Distributing Associates, Inc., and five natural persons (collectively, the "Defendants") under the FLSA, alleging that Defendants had violated the FLSA by engaging in a pattern and practice of identifying individuals as independent contractors in order to evade the minimum and overtime wage requirements under the FLSA. The Named Plaintiffs made allegations seeking to invoke the collective action provisions of the FLSA, and the trial court certified a collective action and ordered that notice be sent to all current and former individuals hired by Directory Distributing Associates, Inc. ("DDA") during a specified period who were classified by DDA as independent contractors and hired to deliver telephone directories. The notice allowed these individuals to "opt in" to the collective action by filing written consents. Thousands of individuals, from at least thirty-eight states, "opted in" (the "Opt-In Plaintiffs").

Defendants filed a motion to dismiss approximately 15,000 of the Opt-In Plaintiffs, including all Opt-In Plaintiffs who neither resided in Texas nor delivered directories in Texas (collectively, the "Non-Texas Opt-In Plaintiffs"). Defendants asserted that no Texas county is a proper venue for the claims of these plaintiffs and that, under CPRC section 15.003, each of the Non-Texas Opt-In Plaintiffs were required to independently establish proper venue to avoid dismissal. The Non-Texas Opt-In Plaintiffs asserted that the collective action provisions of the FLSA preempted section 15.003. The trial court granted Defendants' motion, and the Non-Texas Opt-In Plaintiffs filed an interlocutory appeal.

The Court of Appeals affirmed, holding, in a case of first impression, that the Non-Texas Opt-In Plaintiffs were required to independently establish the propriety of venue for their claims because the FLSA neither expressly nor impliedly preempted state law, as the operation of section 15,003 did not conflict with the purposes of the collective action provisions of the FLSA. In particular, the Court noted that "opt-in" plaintiffs in a collective action have party status even though they are not individually named, as opposed to unnamed plaintiffs in a class action. The Court further concluded that, although the collective action provisions of the FLSA allow such an action to be brought in any state or federal court of competent jurisdiction, they do not, consistent with the principles of federalism, mandate that states create such courts. Finally, the Court concluded that the Privileges and Immunities Clause of the U.S. Constitution did not apply because the record contained no evidence that the Non-Texas Opt-In Plaintiffs were actually unable to independently establish venue. Therefore, the dismissal was appropriate.

The Williard Law Firm, L.P. v. Sewell, No. 14-14-00621-CV, 2015 WL 1456995 (Tex. App.—Houston [14th Dist.] Mar. 26, 2015)

The discovery rule does not toll limitations on a fiduciary duty claim when the plaintiff has failed to use reasonable diligence, even when the evidence establishes that the plaintiff lacks formal education and is physically unable to read the documents forming the basis of the claim.

Appellant John Sewell ("Sewell") retained Appellee Williard Law Firm, L.P. ("Williard") to prosecute a wrongful foreclosure claim against Panola Building Co. ("Panola") regarding Sewell's property on Surratt Drive in Houston (the "Surratt Property"). Williard's principal, Stephen M. Williard, prepared a contingent fee legal representation agreement (the "Agreement"), which was signed by Sewell. Under the terms of the Agreement, Sewell was to pay all litigation expenses; the contingent fee included half of any net property settlement or recovery made; and Sewell agreed to hold title to the property with Williard as tenants in common.

The suit against Panola settled with Panola agreeing to transfer the Surratt Property back to Sewell and pay Sewell $19,500.00 in cash. Sewell eventually received $8,740.15, which represented the settlement amount minus the litigation expenses and Williard's fifty percent. At the same time, a warranty deed transferred a fifty percent interest in the Surratt Property from Sewell to Williard; a second warranty deed conveyed the same interest back to Sewell; and a deed of trust created a vendor's lien favoring Williard to secure a $28.951.60 promissory note (at 10% interest) from Sewell to Williard. On October 11, 2007, Sewell began paying the note, and he continued to make payments until March 2011, but sometimes made them late. Williard sent a foreclosure notice in November 2010 and foreclosed in December 2010.

Sewell learned of the foreclosure in March 2011 and consulted with new counsel. On April 2, 2012, Sewell filed suit for various claims, including breach of fiduciary duty. Williard plead the four-year statute of limitations, among other defenses.

At trial, evidence was presented that Sewell was unable to read or understand the various documents put in front of him by Williard for his signature, due to a lack of formal education and eye defects that made him unable to read them. Although the jury found that Williard had breached its fiduciary duty, it also found that Sewell, in the exercise of reasonable diligence, should have discovered the breach by October 11, 2007 – more than four years before he filed suit. Williard moved for judgment based on limitations, Sewell moved for JNOV, asking the trial court to disregard the jury's discovery date. The trial court granted Sewell's motion and awarded him judgment. Williard appealed.

The Court of Appeals reversed and rendered, holding that, despite any educational or physical infirmity on the part of Sewell, the evidence was factually sufficient for the jury to conclude that he should have been aware of his injury no later than the date of his first payment on the promissory note to Williard, i.e. October 11, 2007. Therefore, the limitations period began to run on that date, and his 2012 suit was time-barred.

Galveston Central Appraisal District v. Valero Refining-Texas L.P., No. 14-13-00434-CV, 2015 WL 1501761 (Tex. App.—Houston [14th Dist.] Mar. 31, 2015)

Even if appropriate comparables are used, an appraisal expert's conclusions concerning the valuation of commercial industrial property will be legally and factually insufficient to support a judgment where the expert's testimony fails to provide an explanation as to why significant fixtures and equipment were not included in the expert's calculations.

Appellee Valero Refining-Texas L.P. ("Valero") owns a refinery in Texas City (the "Valero Refinery"). The Valero Refinery comprises five tax accounts, all appraised on an annual basis by appellant Galveston Central Appraisal District ("GCAD"). Valero filed a petition for review of its 2011 property taxes, which Valero had paid before the delinquency date, arguing that GCAD had appraised the Valero Refinery unequally, and that the appraised value should be reduced under section 42.26 of the Texas Tax Code and the excess tax payment be refunded. GCAD filed a plea to the jurisdiction, challenging Valero's petition for failure to state the amount of taxes that it proposed to pay. The trial court denied GCAD's plea.

Valero's suit initially challenged each of the five tax accounts associated with the Valero Refinery, but Valero subsequently amended its petition to drop two of those accounts and proceed only as to the remaining three. After Valero amended its petition, GCAD filed a second motion challenging jurisdiction, this time on the grounds that, by dropping two of the tax accounts, Valero was no longer asserting a challenge to the valuation of the Valero Refinery as a whole. Again, the trial court denied GCAD's motion.

At trial, Valero offered the testimony of two experts to establish the unequal appraisal and the proper valuation. Valero's experts compared the valuations of comparable portions of the two other refineries in Galveston County, one owned by BP Products (NA), Inc. (the "BP Refinery") and the other by Marathon Petroleum Company (the "Marathon Refinery"), against the valuation of the applicable portions of the Valero Refinery, to determine a median valuation, to which Valero argued GCAD's appraisal should be reduced. This calculation involved using Equivalent Distillation Capacity (EDC) to compare the three refineries, calculated by taking the Nelson Complexity Factor for each processing unit in each refinery and multiplying that number by the capacity of the unit. Valero's experts then performed additional calculations using the resulting EDC to arrive at their conclusions regarding the median value of the Valero Refinery. Valero's experts did not include the pollution control equipment at each of the refineries in their calculation of EDC, though their testimony, as well as that of GCAD's appraiser, showed that the pollution control equipment was an integral part of the overall refinery, without which it could not operate. No explanation was given as to why the pollution control equipment had been omitted from the final calculations. There was evidence, however, that, in the process of preparing their report, Valero's experts had conducted two series of calculations, one with and one without the pollution control equipment, ultimately used the latter set of calculations that yielded a markedly lower valuation. Following trial, a jury found that the portions of the Valero Refinery at issue had been unequally appraised and made determinations concerning the equal and uniform value of the Valero Refinery. The trial court entered judgment, and GCAD appealed.

On appeal, GCAD argued that the trial court lacked jurisdiction because (a) Valero did not challenge the valuation of the Valero Refinery as a whole, and (b) Valero did not state the amount of taxes that it proposed to pay. GCAD further asserted that the evidence supporting the jury's determination of value was legally and factually insufficient. Specifically, GCAD argued that (i) the BP Refinery and the Marathon Refinery were not valid comparables, as there were sizable differences in production capacity and resulting value due to differences in the age, sophistication, and type of refining equipment in the three refineries; and (ii) Valero's experts failed to address why they had omitted the valuation of the pollution control equipment.

The Court of Appeals reversed and remanded, finding that the trial court had jurisdiction but that the evidence supporting the verdict was insufficient. The Court concluded that there was no merit to GCAD's jurisdictional challenge because (a) the requirement to state the amount of tax to be paid only applies where the property owner proposes to pay only the amount of taxes not in dispute, and Valero had paid the entire tax bill and was seeking a refund; and (b) though Valero's suit focused on only portions of the Valero Refinery, it asserted that the valuation of the whole of the property was unequal due to the unequal appraisal of the challenged portions, thus satisfying the statute. The Court similarly disposed of GCAD's argument concerning the differing characteristics of the various refineries, concluding that the properties were sufficiently similar that any differences could be accounted for through an appropriate adjustment to value. But the Court agreed with GCAD as to the omission of the pollution control equipment, finding that the evidence was insufficient to support the verdict in light of the testimony that the equipment was an essential part of the processing units of each refinery, and there was no explanation for omitting that equipment from the calculation of EDC. The Court therefore reversed and remanded for a new trial on the related issues of unequal appraisal and the equal and uniform value of the Valero Refinery.