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.

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