Features for December 2016

Welcome to the December 2016 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

by Mark Ritchie, Law Office of Mark Ritchie, P.C.

DID YOU KNOW . . . ?
by JoAnn Storey

by Derek D. Bauman

by Andrew C. Nelson, Wright & Close, LLP, and Leslie Gardner, 14th Court of Appeals

by James Marrow

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

We All Have Issues: But Can We Make the Argument?

By Justice Evelyn Keyes, First Court of Appeals, Houston  and Angela Spoede, Senior Staff Attorney to Justice Keyes

Lawyers use words like “issue,” “claim,” “argument,” and “question,” freely and usually properly, even if they do not always appreciate the nuanced distinctions between their meanings. Frequently, those nuances are immaterial. But in some circumstances they are crucial. For example, the appellate courts will not review an issue that has been waived, but suppose you failed to make a powerful argument in support of your issue—or worse, you made the wrong argument. Can you make the strong argument on appeal, or is it waived?

So what is the difference between an issue and an argument? For the Supreme Court the distinction, as it relates to questions presented for review in a writ of certiorari, is that between the question presented for review and an argument made to resolve that question. See Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). While the Supreme Court “will not reach questions not fairly included in the petition [for writ of certiorari],” it will review issues—questions or claims—if “passed upon below,” and it will review an argument “fairly embraced within the question set forth in the petition.” As it stated in Lebron, “Our traditional rule is that ‘[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments made below.” Id. at 965.

But note that it is not always true that an argument is preserved just because the broader issue was raised at trial. As the Third Circuit held in United States v. Joseph, 739 F.3d 336 (3d Cir. 2013), lawyers generally must be careful to preserve specific complaints in the trial court by raising not just the issue—such as error in the charge or the erroneous admission of evidence—but the relevant, specific arguments as well. See id. at 341 (holding that to make suppression-of-evidence argument, party must make same argument in district court that he makes on appeal). In Texas state courts too, an appellant must clearly designate alleged error and specifically explain the basis of its complaint in its objection to the charge in the trial court to preserve his complaint of charge error—a general complaint raising the issue of error in the charge is insufficient. See, e.g., TEX. R. CIV. P. 274; Continental Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Likewise, a party complaining of some other specific action of the trial court, such as the admission of particular evidence, must raise specific arguments or grounds, and the complaint made on appeal must comport with the specific objections raised in the trial court. See, e.g., TEX. R. APP. P. 33.1(a); Houston R.E. Income Props. XV, Ltd. v. Waller Cnty. Appraisal Dist., 123 S.W.3d 859, 862 (Tex. App.—Houston [1st Dist.] 2003, no pet.). On appeal, these are “issues” or “points of error,” but they are more specifically issues raised by something the trial court did, not legal issues or claims presented by the pleadings themselves. Without a proper objection, it is easy to end up waiving an entire issue on appeal by failing to object in the trial court and to present the proper argument.

By contrast, just as the Supreme Court held in Lebron, even a broad request to consider a legal question or claim on appeal is sufficient to allow the courts to address any argument “fairly embraced” within that issue. Texas Rule of Appellate Procedure 38.1(f) provides that the statement of an issue or point presented for review in an appellate brief “will be treated as covering every subsidiary question that is fairly included.”

Note, however, that Rule 38.1(i) still requires “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record,” even as it is silent on whether the argument must comport with those made below. Thus, the resolution of questions raised by the claims made, like the correct construction of a contract or a statute, need not preserve arguments made below, but may make any arguments “fairly embraced” by the issues before the reviewing court. Suppose a lawyer construed a contract improperly below and lost. Neither he nor the reviewing court, which reviews such questions de novo, is bound by the arguments made by the attorney below. See, e.g., Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006) (holding that “the actual intent of the parties is not what counts [in construing a standard form insurance policy] (as they did not write it), but the ordinary, everyday meaning of the words to the general public”).

Nevertheless, even if an argument advanced to resolve a legal question arising from a party’s claim need not have been made below—as opposed to an argument in support of a party’s objection to a trial court’s action—an appellant seeking to reverse a trial court’s ruling of any sort still must be acutely aware of the issue and all supporting arguments, as courts will generally uphold a trial court’s ruling if it is correct on any legal theory. See, e.g., Guaranty Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (“We must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.”); Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411 (Tex. App.—Dallas 2006, pet. denied) (providing that courts will uphold a trial court’s evidentiary ruling if it is correct under any legal theory).

So, as you consider your next jury charge, motion, or brief, spend some time thinking about the overarching issues that matter most to your client, the nature of those issues, and the various arguments you have at your disposal to obtain the best result possible.

Frivolous Arguments on Appeal: Time for a New Approach

by Mark Ritchie, Law Office of Mark Ritchie, P.C.

The question of how best to deal with frivolous appeals is a persistent one. For decades, commentators and practitioners alike have bemoaned the prevalence of such appeals, noting with dismay their habit of “consuming [scarce] judicial resources, delaying justice, increasing costs, and wasting the time of courts and litigants alike.” Identifying the Frivolous Appeal, 10 App. Advoc. 11, 11 (Feb. 1997). Despite this, our state has shown relatively little interest in minimizing the impact of such appeals. No doubt this is at least partially due to a tacit understanding that appellate practitioners will hold themselves to more exacting standards, not wasting the courts’ precious time with arguments that are weak, silly, or otherwise ridiculous. Cf. Warren D. Wolfson, Oral Argument: Does It Matter?, 35 Ind. L. Rev. 451, 454 (2002) (discussing in the context of oral argument the necessary, unspoken agreement that lawyers “must not argue weak, silly, or frivolous issues [which only] dilute the strength of serious matters”).

Given that the total number of appellate filings has dropped in recent years, the issue of frivolous appeals may not seem a particularly pressing issue. See Annual Statistical Report for the Texas Judiciary: FY 2015, at 54 (noting that the number of new cases filed in the courts of appeals was at a 20-year low, with a four percent drop in the total number of filings compared to the previous year). However, the current approach tends toward a crude, all-or-nothing effort to weed out appeals that are entirely frivolous, with relatively little attention being focused on the more common practice of including frivolous arguments on appeal.

The Current Focus – Entirely Frivolous Appeals

Texas Rule of Appellate Procedure 45, which was adopted nearly 20 years ago, is the current rule explicitly addressing frivolous appeals. The language of the rule is surprisingly succinct (a mere 67 words in total) and is set forth below in its entirety:
If the court of appeals determines that an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.

By adopting Rule 45, the subjective requirement of bad faith was eliminated under Texas law, leaving only the objective merits to be considered by the courts of appeals. E.g., Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Under the rule, an appeal is deemed frivolous when the court’s review of the record reveals no reasonable grounds for belief that the case could be reversed on appeal. E.g., Becker-White v. Goodrum, 472 S.W.3d 337, 341 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

This shift to a completely objective standard is certainly an improvement, as litigants no longer have to prove that the appellant was motivated by subjective bad faith in deciding to take the appeal. See Glassman, 347 S.W.3d at 782 (discussing requirements under former Texas Rule of Appellate Procedure 84). However, cases interpreting Rule 45 indicate that sanctions are appropriate only when the entire appeal is found to be frivolous, i.e., the appellant fails to raise any issue providing an arguable basis for reversal. See, e.g., Becker-White, 472 S.W.3d at 341 (holding that record must reveal no reasonable grounds for belief that case could be reversed). Arguably, then, no relief is available under Rule 45 to an appellee forced to counter multiple frivolous arguments so long as the appellant makes sure to brief a single legitimate issue in the process. A particularly unscrupulous appellant might abuse this safe harbor by deliberately including weak arguments, padding out the brief in an effort to put the appellee to additional effort and expense.

Frivolous Appeals v. Frivolous Arguments

I think it is fair to assume that my experience is not unique, and that sooner or later most appellate lawyers will find themselves dedicating substantial time and effort to refuting arguments that are simply, inexcusably, breathtakingly wrong. This is more or less de rigueur when dealing with a pro se litigant, but I have often found myself sifting through inscrutable and, at times, wholly incoherent arguments written by experienced attorneys who really ought to know better. While it is probably not too much to ask that we address the occasional weak, throwaway argument without complaint, there should be consequences for appellants who force other parties and our courts to spend hours deciphering page after page of what can only be described as unadulterated nonsense.

At the very least it seems reasonable to revise Rule 45 to prohibit both frivolous appeals and the inclusion of discrete frivolous arguments on appeal. Admittedly, there is already a mechanism for seeking sanctions against an attorney who includes frivolous arguments, as they are prohibited by Rule 3.01 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary Rules Prof’l Conduct R. 3.01 cmt. (discussing prohibition against asserting a frivolous position on appeal); Edward L. Wilkinson, If One Is Good, Two Must Be Better: A Comparison of the Texas Standards For Appellate Conduct and The Texas Disciplinary Rules of Professional Conduct, 41 St. Mary’s L.J. 645, 671 (2010) (noting the applicability of Rule 3.01 to discrete issues on appeal). While such relief is at least theoretically available, in practice the courts of appeals are unwilling to impose such sanctions in all but the most extreme cases. See, e.g., Baker Hughes Oilfield Ops., Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 448 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (explaining that appellate sanctions are discretionary, and are imposed “only under those circumstances we find truly egregious”).

The historic restraint exhibited by the courts is both understandable (given that more frequent use of sanctions would almost certainly spawn more argument over their imposition) and admirable (in light of the general reluctance to deprive any party of access to appellate review). Still, the issue of frivolous arguments on appeal should be carefully considered. It’s time to develop a less binary approach, one that minimizes waste by eliminating opportunities for abuse.

Did you know . . . ?

By JoAnn Storey

When an issue is tried without a jury, a complaint that the evidence is legally or factually insufficient to support the trial court's finding on the issue is not required to be raised in the trial court, but instead can be raised for the first time on appeal.  Enzo Investments, LP v. White, 468 S.W.3d 635, 654 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing Tex. R. App. P. 33.1(d)).

AppellaTech: Accessing the Appellate Record Online

by Derek D. Bauman

A short post today, my friends, as I am currently devoting most of my time to figuring out who invented eggnog and, more importantly, why.

In truth, I decided to delay my planned topic so that I can assist in spreading the word about the new way you can now review the appellate record for cases you are assigned in certain courts. It's known as the Attorney Records Portal. For select courts (currently the Texas Supreme Court, the two Houston courts, Dallas, and Beaumont), if you are associated with an appellate case, you can view the record online. Since I work for a court, I am naturally not the attorney of record for any case. As a result, I haven't had the chance to try this out myself. But it sounds like an incredibly helpful tool, so I thought I would share what I have learned.

First the link: https://www.attorneyportal.txcourts.gov/

Next, you need to set up an account. Click on the link on the left side of the page that says "Register." Put in the required personal information. You will also have to select which courts you practice in. If you practice in more than one, you can select more than one. Personally, I can't figure out a reason why you wouldn't go ahead and select all of them from the start. But you will be able to add to the list at any time.

To select all courts, click on the first option, then hold down the shift key, and then click on the last option. All of them should be highlighted now.

To select some but not all of the courts, hold down the control key and click on each court you want to select.

Once you are done, click on the Save button. You now have one hour to verify your account. You will get an email asking you to verify that you created the account. It will include a link for activating the account. That link will take you to a log on screen. Once you have logged on, your account is activated.

From there, you can view all cases you are associated with by clicking on the "My Cases" link of the left side of the page. You can move between courts by changing the selected court in the drop down list.

If you do not see any cases, this means you are not listed as an attorney of record with the court. To change that, you will need to contact the relevant court.

That is as far as I can guide you, my friends, since I cannot be the attorney of record for any case. But I wish you luck. I expect you will find it a useful tool as you review the record and prepare your factual citations. If not, perhaps drinking some eggnog will take your mind off of your woes. It always works for me. Every time I drink eggnog, I become solely focused on trying to figure out who thought it was a good idea for a drink.

Case Update for October to December 2016

By Andrew Nelson, Wright & Close, LLP, and Leslie Gardner, 14th Court of Appeals


In re Essex Ins. Co., No. 01-16-00552-CV, 2016 WL 6599613 (Tex. App.—Houston [1st Dist.] Nov. 8, 2016, orig. proceeding)

A trial court does not have discretion to grant a separate trial when severance is mandated by the Texas Rules of Civil Procedure.

Essex denied coverage to its insured for a personal injury action brought against its insured by an employee. After Essex denied coverage, the insured filed a third-party petition against Essex in the pending personal injury suit. The insured sought a declaration that Essex had a duty to defend and indemnify, damages for breach of contract, and damages for violations of the Texas Insurance Code.

Essex moved to sever the claims against it from the personal injury suit. The plaintiff and defendant opposed the motion and instead proposed that the case be bifurcated into two phases—one in which the tort claims would be tried and evidence of insurance would not be admissible, and a second phase in which the insurance claims against Essex would be decided. The trial court granted separate trials but denied bifurcation. Essex filed a petition for writ of mandamus.

On appeal, the First Court began by noting that, in determining whether severance was required, it must address whether the claims were properly severable, and, if so, whether the circumstances of the case required the trial court to grant severance. In the specific case before it, the court noted that Texas Rule of Civil Procedure 38(c) indicates that an insurance company cannot be joined as a third-party defendant in a tort case unless it is liable by statute or contract to the person injured. Additionally, Rule 51 regarding joinder of claims states that the joinder rule shall not be applied in tort cases to permit the joinder of an insurance company.

As a result of these rules, the court held that the insured was prohibited from joining Essex in the underlying personal injury case. In response, the plaintiff and defendant (insured) argued that the plaintiff’s premises liability allegations, and the facts developed in those allegations relating to his employment status, were “inextricably linked” to Essex’s coverage defenses. They also noted that the same medical records and expert testimony used to support the plaintiff’s damages would form part of the basis for the insured’s claim for indemnity.

The court of appeals denied these judicial economy arguments. Where the rules prohibit joinder of parties, the court held it is error for a trial court to deny a severance, regardless of what efficiencies might be achieved by deciding the issues together.

Finally, the court held that Essex lacked an adequate remedy by appeal and that mandamus relief was warranted. Unless mandamus was granted, the court said, Essex would have been forced to participate in discovery and monitor a separate liability trial “in the face of the prospect that [the insured] may not prevail on its suit for coverage and a defense.” And, the outcome of the separate trials would be reversed for improper joinder anyway. Therefore, the First Court granted mandamus.

Lyon v. Building Galveston, Inc., No. 01-15-00664-CV, 2016 WL 6518641 (Tex. App.—Houston [1st Dist.] Nov. 3, 2016, no pet. h.)

Texas Rule of Civil Procedure 270 does not forbid a trial court from taking evidence related to attorneys’ fees after the jury’s verdict, so long as the parties have an agreement in place to try the issue of fees to the court.

Building Galveston, Inc. (“BGI”) was a contractor hired to remodel a bakery. It engaged Lyon to serve as its subcontractor on the project. BGI sued Lyon for a variety of different causes of action, including breach of contract. The jury rendered a verdict against Lyon. The parties agreed before trial to submit the issue of attorneys’ fees under Chapter 38 of the Texas Civil Practice and Remedies Code to the court rather than to the jury. However, BGI failed to plead presentment of its demand for attorneys’ fees to Lyon. BGI moved for leave to file a supplemental petition pleading presentment after the jury returned its verdict. The trial court refused to allow the filing. Lyon appealed, and BGI filed a cross-point on the attorneys’ fees issue.

On appeal, the First Court first determined that the trial court should have permitted BGI to file its supplemental petition. Lyon, however, argued that that error was harmless, because Rule 270 forbade receipt of evidence on the disputed issue of presentment post-verdict. Rule 270 provides: “When it clearly appears necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.”

The court noted that the application of Rule 270 in the context of a bifurcated trial in which the parties agreed to try the fees issue to the court was a case of first impression in Texas. However, the court held that by agreeing not to submit the issue to the jury, Rule 270 did not bar the trial court from receiving evidence of the disputed issue after the jury rendered its verdict. The court seemed to make a clear distinction between issues submitted to the judge and issues submitted to the jury. This case makes clear that when parties have agreed not to submit certain issues to the jury, there is no requirement that a hearing on the issues submitted to the judge be had prior to the jury’s verdict.


In re Blankenhagen, No. 14-16-00699-CV, 2016 WL 6809189 (Tex. App.—Houston [14th Dist.] Nov. 17, 2016, no pet. h.).

A default judgment that does not determine the amount of damages is not a final judgment.

Relators Larry Blankenhagen and Dian Petty contracted with Noble Building & Development, LLC (“Noble”) for construction of their home. In 2012, Relators sued Noble for breach of contract. The contract included a dispute-resolution provision, which required relators to first submit their claim to an “Initial Decision Maker.” Relators and Noble designated the Architect as the Initial Decision Maker. Relators submitted their claim, and the Architect issued his Initial Decision in favor of relators, but did not make a final determination of the damages. The Initial Decision estimated the damages ranged from $366,636.31 to $513,316.31 and approved Relators’ claim.

Relators filed their petition for declaratory judgment and Noble failed to timely answer. On April 2, 2016, the trial court signed a default judgment in favor of Relators. The default judgment entered by the trial court provided that Noble was indebted to Relators “in the amount as set out in the Initial Decision by the Architect.” On June 9, 2016, the trial court denied Relators’ motion for hearing to prove the amount of damages. The trial court denied the Relators’ motion because it concluded the default judgment was a final judgment and its plenary jurisdiction had expired. The Relators filed a petition for writ of mandamus asking the Fourteenth Court of Appeals to compel the trial court to vacate its order denying Relators’ motion for hearing.

Justice Donovan, writing for the majority, held the default judgment was not final because the damages awarded could not be ascertained from the judgment or the attached Architect’s Initial Decision. Noble argued that even though the damages could not be ascertained, the default judgment was final because it stated, “[t]his judgment finally disposes of all parties and all claims and is appealable.” This language is the example given by the Texas Supreme Court in Lehmann v. Har–Con Corp. as a statement that would leave no doubt that the court’s intention was to make a final, appealable order. 39 S.W.3d 191, 206 (Tex. 2001). Because the default judgment had this language, Noble argued the default judgment was a final judgment. The Court rejected this argument and concluded the Lehmann did not overrule or create an exception to the Texas Supreme Court’s prior decisions that a judgment must be definite and certain to be final. See e.g., Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985).

The Court held the trial court abused its discretion by concluding it lacked plenary jurisdiction to hear and consider Relators’ request for an award of damages in a certain amount. The Court directed the trial court to vacate its order denying Relators’ motion for hearing on damages, remand the issue as to the amount of damages to the Architect for determination, and conduct a hearing on Relators’ claim for attorney’s fees.

Southwinds Express Constr., LLC v. D.H. Griffin of Tex., Inc., No. 14-15-00610-CV, 2016 WL 6775759 (Tex. App.—Houston [14th Dist.] Nov. 15, 2016, no pet. h.)

(1) The trial court determines whether claims arising from a subsequent oral agreement are governed by a valid prior arbitration agreement, not the arbitrator.
(2) The trial court determines whether an arbitration agreement is illusory.
(3) A party’s ability to unilaterally bypass mediation in favor of arbitration does not render the arbitration provision illusory.

Southwinds Express Construction, LLC (“Southwinds”) entered into a subcontractor agreement with D.H. Griffin of Texas, Inc. (“Griffin”) for the removal of construction and demolition debris from a project site. The agreement provided that Southwinds would (1) perform concrete excavation and haul-off for free and (2) brick haul-off for $40 per truckload. The original agreement did not include construction and demolition (“C&D”) haul-off. The agreement also required arbitration of claims made by either party.

Later, the parties orally agreed Southwinds would perform C&D haul-off. Southwinds performed C&D haul-off until early 2014. Southwinds said it stopped performing C&D haul-off because Griffin’s payments were not timely. Griffin said Southwinds stopped paying landfill disposal fees and that the landfill owner barred Southwinds from using the landfill. Griffin filed a demand for arbitration, and Southwinds objected arguing the arbitration provision did not extend to claims arising from the subsequent oral agreement to provide C&D haul-off services. The arbitrator overruled Southwinds’ objection, and issued an award for Griffin.

Griffin sought to have the arbitration award confirmed in district court, and the trial court signed a final judgment confirming the arbitration award. Southwinds appealed.

Southwinds first argued on appeal that the C&D haul-off claims were not covered by a valid arbitration agreement because they were the subject of the parties’ oral agreement, separate from the original subcontractor agreement. The arbitrator concluded the oral agreement was a modification of the subcontractor agreement and the C&D haul-off claims fell within the parties’ arbitration agreement. The trial court concluded the subcontractor agreement contemplated additional potential work such as the C&D haul-off work. Therefore, the trial court concluded, the C&D work arose out of the agreement, and consequently, the arbitration agreement contemplated additional work.

The Fourteenth Court of Appeals first analyzed who could decide whether claims are arbitrable. The Court concluded that the question of whether the C&D haul-off claims were governed by a valid arbitration agreement was for the trial court, not the arbitrator. This is because Southwinds was challenging the existence of an agreement to arbitrate the C&D haul-off claims. In re Morgan Stanley & Co., 293 S.W.3d 182, 189 (2009). Therefore, the trial court must determine the threshold issue whether a valid arbitration agreement existed under these circumstances. See Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 880 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding issue of whether a subsequent contract’s arbitration provision superseded the initial arbitration agreement was a question for the trial court).

Because the trial court already made an independent determination that the claims were arbitrable, the court reviewed the trial court’s determination de novo. The Court concluded the C&D haul-off claims were arbitrable.

Southwinds next argued the trial court erred in determining that mediation was not a condition precedent to arbitration. The arbitration provision provided claim resolution would be resolved through mediation, unless Griffin believed mediation would be useless, then Griffin could escalate claims to binding arbitration at any time. Southwinds argued that if the agreement was reformed to remove the illusory portion, then the agreement required arbitration only if claims were first unsuccessfully mediated.

Generally, the arbitrator decides procedural questions, such as whether conditions precedent are met. Southwinds argued the trial court should decide whether the condition precedent of mediation was met, because this case falls within the narrow exception. Southwinds relied on Amir v. International Bank of Commerce, 419 S.W.3d 687 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Amir held that a court can deny a motion to compel arbitration if there is clearly established proof that a strictly procedural requirement was not met and that procedural requirement precludes arbitration. This case did not fall within this narrow exception, however, because it involved an arbitration provision that allowed Griffin to unilaterally escalate claims to binding arbitration. Therefore, the Court had to decide first whether the arbitration agreement was illusory.

The Court first decided who could determine whether an arbitration provision is illusory. The Court concluded that the trial court decides whether the arbitration provision is illusory. This is because the illusory argument challenges the enforceability of the arbitration agreement, which is for the trial court to decide.

The Court concluded Griffin’s ability to unilaterally bypass mediation in favor of arbitration did not render the arbitration provision illusory. Therefore, Griffin’s option to bypass mediation was not a condition precedent to arbitration.

In its last issue, Southwinds argued the arbitration award should be vacated because it was tainted by manifest disregard for the law and gross mistake in applying the law. The Court concluded the arbitration award could not be vacated on these grounds, because neither an arbitrator’s manifest disregard for the law nor gross mistake is a statutory ground for vacating an arbitration award under the Texas Arbitration Act. Neither are these grounds a basis for vacating an award under the Federal Arbitration Act. Accordingly, the trial court properly confirmed the arbitrator’s award.

In Chief Justice Frost’s concurrence, she stated that because neither party asked to compel or stay arbitration, the only grounds on which Southwinds could obtain vacatur of the arbitration award were grounds listed in section 171.088 of the Texas Civil Practice and Remedies Code. Southwinds sought vacatur on grounds that the award was tainted by manifest disregard of law and gross mistake, and that by failing to mediate, Griffin failed to fulfill a condition precedent. Section 171.008 does not include these grounds for vacatur, therefore, the court lacked authority to vacate the award on these grounds and did not err in rejecting them. Southwinds did not establish entitlement to vacatur under grounds that were included in section 171.088. Therefore, the trial court did not err in confirming the arbitration award.

The majority, the concurrence stated, did not need to address whether the trial court or the arbitrator decides issues as to Southwinds’ arguments that mediation was a condition precedent to arbitration. Even if the majority had to decide this, a sounder option would be to analyze it under section 171.088. The analysis should have been as follows: (1) to the extent Southwinds was only arguing that mediation was a condition precedent, this would not be a valid grounds for vacatur under section 171.088; (2) to the extent Southwinds argued the trial court should have vacated the arbitration because the failure to mediate means there is no arbitration agreement, section 171.088 provides that courts, rather than arbitrators, are to resolve this issue if it was raised at the arbitration. The majority based its analysis on cases that were reviewing motions to compel or stay arbitration. The concurrence stated these cases are not on point for cases like this one. Additionally, those cases reveal considerable conflict and uncertainty as to the analysis of purported conditions precedent to arbitration.

Crossword Puzzle

by James Marrow, Hogan & Hogan

Here's is the latest HBA Appellate Lawyer crossword puzzle. For those who prefer to solve online, there is a .PUZ version of the file. (To solve online, you may need the Across Lite software, which is available for free.)

A PDF version of the puzzle is available. The solution is also available.

Click to view regular size.

Upcoming Luncheons

January 12

“Works in Progress: 2016 Updates to the Rules and the Texas Pattern Jury Charges” by Justice Jane Bland, First Court of Appeals
RSVP deadline: noon on Monday, January 9
CLE: 1.0 hour

February 9*

“Brief Writing: Make Yourself Useful As Well As Ornamental” by Steven Hayes
RSVP deadline: noon on Monday, February 6
CLE: 1.0 hour

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. Reservations are transferable.  Please note that if you RSVP and do not attend or transfer your reservation, you will be billed for the cost of the luncheon.  For more information, please contact Meetings and Membership Chair, Tanya Garrison, at (713) 961-9045.  PLEASE NOTE IN YOUR RSVP IF YOU HAVE A DIETARY REQUEST (vegetarian, gluten free, non-dairy, non-seafood, etc.).

Business attire required (jackets for men). Please do not valet park at the Coronado Club; valet parking at the Coronado Club is only for Coronado Club members who pay for parking through their individual memberships.  Paid parking is available at the McKinney Place Garage at 930 Main Street, at street level, and in surrounding surface lots.

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

Features for September 2016

Welcome to the September 2016 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

Engaging the Law: A Profile of Justice Michael Massengale, First Court of Appeals, Houston
by Meredith Parenti, Parenti Law PLLC

What the Appellate Practitioner Should Know After Being Ordered to Mediation in State Court
by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

by Mark Ritchie, Law Office of Mark Ritchie, P.C.

by David A. Furlow

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman discusses how to link to legal authority in your electronic brief.

Case updates for the Houston practitioner
by Andrew C. Nelson, Wright & Close, LLP, and Andrew Raber, Watt, Thompson, & Henneman LLP

by James Marrow

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

Please sign up to help the HBA TEACH TEXAS COMMITTEE bring the Lone Star Rule of Law to Our Seventh Grade Students
by David A. Furlow

Engaging the Law: A Profile of Justice Michael Massengale

Engaging the Law: A Profile of Justice Michael Massengale, 1st Court of Appeals, Houston
by Meredith Parenti, Parenti Law PLLC

-What led you to consider a career in law?

As I was finishing college, I was ready to be done with school. But I was not a top student as an undergraduate, and as a government major, I wasn’t thrilled with my immediate career options. The one thing I was qualified to do was work as an underpaid junior legislative aide. I realized I needed professional training, and law seemed like the best fit for me.

-When did you first realize that you might be interested in becoming an appellate justice?

I started my legal career as a law clerk at the Fifth Circuit, so I had seen an appellate court up close, and I enjoyed that work.

My stint in private practice was predominantly devoted to commercial litigation, mostly during the pretrial and trial stages of proceedings. I enjoyed research and writing, and I believed those were my personal strengths. As I advanced in my practice, I found myself doing less of the research and writing that I enjoyed, and instead spending more of my time on other aspects of practice. Returning to appellate work was appealing to me, but I had already found my niche at my firm, and I did not see a path to make a transition.

I saw the possibility of an appointment to an appellate bench as a unique way to shift into public service, and at the same time transition into work that best fits my skill set. I was happy at my law firm and thought of it as something I might pursue in the future, but opportunity knocked sooner than I expected.

-After your appointment to the First Court of Appeals by Governor Rick Perry in 2009 and your election in 2010, were you surprised by any aspect of your new job as an appellate justice and, if so, which aspect of your new role has surprised you the most?

I was really looking forward to the writing aspect of the job. What I failed to fully appreciate before coming to the court was the significant difference in the caseloads for justices on the courts of appeals as opposed to the Supreme Court. We have many times more opinions to produce (usually in the range of 65-75 opinions each year), with less attorney staff to support us. What it means is that I can’t write every opinion from scratch, though I’d like to, and I also can’t spend as much time as I’d like perfecting every opinion. That said, the broad range of cases that come through our court ensures that there are always novel issues that justify extra attention. Between new statutes passed by our legislature every two years, and a constant stream of new precedents from the high courts, our court has lots of opportunities to write important opinions to provide guidance about how to apply new laws.

-What are your favorite aspects of being an appellate justice?

I feel quite blessed to have found a position that allows me to serve the community in a way that fits my professional strengths. The job remains interesting because we work in wide range of different substantive areas of the law. An unanticipated benefit is the job’s flexibility; I can read briefs and work on opinions from anywhere, and I do!

-How would you describe your judicial philosophy?

The proper role of the courts is to decide cases based on existing law, rather than acting as the primary engine for policy changes, which is primarily the role of the legislature. Judges should follow the federal and state constitutions, based on the original intent of the people, as expressed by the text of the documents. Likewise, courts should make every effort to apply statutes based on their plain text, resisting the urge to resort to extratextual authorities to justify a particular interpretation.

When I came to the court, I expressed my intended approach in terms of “judicial restraint,” and I still embrace the perspective that courts should be wary about the temptation to assume a policymaking function. In some circles it’s become fashionable to disparage the concept of judicial “restraint” as an abdication of the responsibility to enforce constitutional boundaries. That is not my conception of judicial restraint. Instead, I agree with the proponents of judicial “engagement” insofar as they insist judges must exercise independence in the application of constitutional standards.

-You recently ran for Place 3 on the Texas Supreme Court and lost by a close margin in the Republican primary against the incumbent. Did you gain any insights on the process and the unique challenges of running for statewide judicial office?

Running an effective statewide campaign is an enormous, exhausting undertaking. I have renewed respect for all statewide officeholders and candidates for the time they take away from their families and their day jobs to travel around the state, meeting with all kinds of people and talking about important issues facing the courts.

As long as we elect judges in Texas, citizens only will be able to cast informed votes if they have access to meaningful information about the candidates. However, judicial races do not get substantive news coverage on par with other comparably important elected positions, and there is a general dearth of reliable, objective information about these races. It is a problem with no obvious solutions, but the legal community is uniquely situated to help fill the information gap by engaging the process.

-Could you describe your work as a Commissioner on the Supreme Court of Texas Permanent Judicial Commission For Children, Youth & Families and how that might inform your work as a Justice?

Lawyers and judges who work on child-protection issues know these are sensitive matters, with the welfare of tens of thousands of young Texans in the balance. The Children’s Commission brings together all the major stakeholders in this system and facilitates continual improvement to improve outcomes for kids. It’s incredibly important work. I am serving my second term as a commissioner, and I currently chair the education committee, which oversees judicial and attorney education initiatives in the child protection area. We plan CLE conferences and webinars. I have been particularly involved with organizing a NITA-style trial skills seminar for child-protection lawyers from around the state. We also try to anticipate emerging legal issues so we can disseminate useful information to lawyers and judges.

Working on the Children’s Commission has exposed me to a significant segment of the bar that I hadn’t worked with before. It has broadened my perspective about an important part of our court’s docket. It’s not a practice area in which many appellate judges have a strong background, so my experiences at the Commission have helped to bolster our court’s expertise in these matters.

-On what devices (e.g., desktop at the court, remotely from home, hand-held devices) do you prefer to review appellate briefs? Do you have any suggestion for improving the readability of electronic briefs, as in particular styles, formats, or fonts that you find easiest to read?

The most common thing for me is to read briefs at the office, where I have three large monitors (portrait orientation for all three). When I’m working away from the office, I often review briefs on my iPad. If I am working on opinions remotely I usually use a laptop or my home desktop computer.

I know some practitioners have put a lot of effort into making briefs more readable, and those efforts are greatly appreciated. Our opinions all follow the same format, so the art of presenting writing electronically is not something I’ve tinkered with very much. I don’t have any suggestions other than the basics: always submit native-file PDFs instead of scanned briefs, don’t use Courier, do utilize bookmarks.

On the ongoing debate about the proper placement of authorities (text vs. footnotes), I do not have a dogmatic view. As a default, I avoid footnotes in my opinion writing when possible. But in complicated cases with lots of authorities, I will use footnotes to make the opinion more readable. I use my best judgment in each case and I trust practitioners to do the same.

-In your opinion, what are the top mistakes that practitioners make on appeal?

We get a lot of mandamus filings and interlocutory appeals. They all get expedited treatment compared to ordinary civil appeals. But they are not all treated as emergencies, because most of them are not true emergencies. When you do have a true emergency, act promptly, let the clerk know as soon as possible, be clear about what relief you’re requesting, and let us know by when you need it. Failure to do any of these is a big mistake.

While it’s probably not a problem for most lawyers who will read this, I am surprised by the frequency of conclusory arguments that are made without meaningful authority or legal analysis. We would always rather address a plausible argument on the merits, but sometimes the quality of briefs leaves us little choice but to find briefing waiver. It’s not our role to develop issues that the lawyers haven’t developed themselves, and we don’t have the resources to do it anyway.

Finally, I’ll note that zealous advocacy too often manifests as unnecessary disparagement of judges at all levels. Even if I agree that the trial judge, or my colleagues, got something wrong, I don’t want to read something that bashes them with unnecessarily harsh language. It’s better for lawyers to lay out a strong argument for reversal, and let the judges draw their own conclusions about how egregiously wrong it was. Harsh criticism of another judge will get my attention (and I assume that’s why lawyers do it), but not in good way.

-What do you wish practitioners would do to make the Court’s job easier?

Exercise self-help to identify and manage procedural hiccups. For example, if you’re waiting on a ruling on a motion or other action from our court, it is always appropriate to call or write the clerk to inquire about the status. Things get lost in the shuffle and sometimes a gentle reminder will clear a logjam.

If you’re relying on an important secondary authority that’s not available on the internet or Westlaw, provide a courtesy copy. If you found a great treatise that’s on point, I’d like to see it, but it may not be in the court’s library.

-What are the biggest challenges facing appellate courts in Texas in your opinion?

I don’t want to be held to saying it’s our “biggest” challenge, but I am concerned about the impact on our caseload stemming from the increased scope of mandamus review and the proliferation of interlocutory appeals. My sense is that these are occasionally being used strategically to gain leverage, impose burdens, delay trials, and generally bringing many matters to the appellate courts which otherwise never would have come to us because they are destined for summary disposition or settlement. Interlocutory issues often can be made more difficult by the undeveloped state of the case. In order to increase efficiency, I think it would be worth discussing a change to appellate rules to allow affirmance without opinion in interlocutory appeals, like we are permitted to deny a mandamus without opinion.

-What are your interests and hobbies outside of the legal profession?

I enjoy reading, usually about history and current events in law, politics, and religion. I listen to a wide variety of music, and I like going to concerts when I can. My wife and I are ambitious travelers, and I serve as in-house amateur travel agent, always planning the next getaway. Our trips usually incorporate a mixture of religious sites, local cuisine, and vineyards when we’re in wine country. I’m also a part-time concierge for Mollie, our 2-year-old Cavalier King Charles Spaniel.

Why Me(diation)? What the Appellate Practitioner Should Know After Being Ordered to Mediation in State Court

By Justice Evelyn Keyes, First Court of Appeals, Houston  and Angela Spoede, Senior Staff Attorney to Justice Keyes (with special thanks to Chris Prine, Clerk of the First and Fourteenth Courts of Appeals).

Judging from the relatively high number of objections filed in cases that have been ordered to mediation, many practitioners seem to have decided that appellate mediation cannot work for them. For example, out of forty-four cases ordered to mediation by the First Court of Appeals in the 2015-2016 fiscal year, objections were filed in twenty-three of those cases.

However, there can be tremendous benefits to mediation at the appellate level when practitioners know what the process can and cannot do. Consider this a word in favor of mediation in an appropriate case.

The goals of alternative dispute resolution, including mediation, are to (1) increase party participation in, and satisfaction with, the judicial system; (2) to provide an alternate forum for readily accessible, fair, and appropriate means to resolve disputes; (3) to reduce the time and costs of litigation; and (4) to ease the court’s heavy docket. See PRACTICE BEFORE THE COURT: ALTERNATIVE DISPUTE RESOLUTION PROCEDURES, http://www.txcourts.gov/1stcoa/practice-before-the-court/mediation-adr/ (last visited Aug. 29, 2016).

Our state appellate courts may order mediation as part of the state’s policy “to encourage peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” See TEX. CIV. PRAC. & REM. CODE. § 154.002. But mediation at the appellate level may or may not be helpful. Consider this conundrum: Mediation may be particularly appropriate in a family law case where the issues are more personal than legal. But in that case, there will usually be no appeal. And if such a case does reach the appellate courts, it may well be on a legal issue not suitable for mediation—one that requires an appeal. So, recognizing that identification of the “appropriate” case in the appellate mediation context can be tricky, let us consider from a court’s perspective cases in which mediation might be helpful.

In the majority of cases, an appellate court will consider whether to order a case to mediation following the appellant’s filing of the docketing statement, which includes a mediation section. Factors the Court considers in determining whether the case is appropriate for appellate mediation include the parties’ requests regarding mediation, the case’s prior history with attempted alternative dispute resolution, the type of case and issues raised, and the relative complexity of the case, among others. If the court orders the case to mediation, any party may file a written objection within ten days. The Court reviews objections and, if it finds a reasonable basis for the objection, will sustain the objection and withdraw the mediation order.

Compelling reasons for objecting to mediation include the presence of a complicated legal question requiring resolution by the appellate court; previous unsuccessful attempts at mediation; or strong emotional components or power imbalances that could complicate the settlement process. At this point, the parties may have reasons for objection to mediation that are not apparent to the court at the docketing stage. But when mediation works—even in clarifying or reducing the issues presented on appeal—it greatly expedites dispute resolution and saves money.

The court may also order mediation later in the process—such as after briefing has been submitted or even after a case has been heard at oral argument. Parties can also object to mediation at this point, but a court’s referral to mediation at this stage of an appeal is a strong signal for the parties to engage seriously in the mediation process. The classic situation here is when a panel suggests mediation from the bench during oral argument, usually as an indicator that there is a disagreement among the panel or that the panel foresees that no one will be happy with the anticipated legal answer. If the parties have strong substantive reasons not to mediate, this is the time to share them with the court—at oral argument or by requesting permission to file a letter brief stating persuasive reasons for the objection to mediation and seeking rescission of the order.

Regardless of when in the appellate process the parties engage in mediation, the parties must agree on a qualified mediator and notify the court of their selection. After the Clerk of the Court receives the notice, the selected mediator is deemed appointed by the Court. See PRACTICE BEFORE THE COURT: ALTERNATIVE DISPUTE RESOLUTION PROCEDURES, http://www.txcourts.gov/1stcoa/practice-before-the-court/mediation-adr/. The Legislature has provided general standards for mediators appointed by a court. See TEX. CIV. PRAC. & REM. CODE. § 154.052. Litigants will also want to look for a mediator with experience in appellate, as opposed to trial, mediation and one who is familiar with the applicable area of law.

When most lawyers think of mediation, they think of it as a method of settling disputes prior to conducting a trial and obtaining a judgment on the merits. However, mediation is alive and well in the appellate courts of Texas, and knowing the process for mediation in the state appellate courts can help practitioners reach better results for their clients.

Appellate Mediation: Embracing a Pragmatic Approach

by Mark Ritchie, Law Office of Mark Ritchie, P.C.

Ah, the docketing statement. The series of simple requests for discrete information seems less like work, and more like the professional equivalent of a crossword puzzle, stimulating and providing a sense of accomplishment without being too taxing. Filling in the requested names, dates, and other specifics is an agreeably simple exercise, at least for a while, and then the imponderable question rears its ugly head:

“Should this appeal be referred to mediation?”

The transition from easy recitation to deep strategic consideration is jarring, to say the least. Gone are the questions that have simple, objectively correct answers, and in their place is a vastly more difficult question, one that demands we carefully weigh the relative bargaining positions of the parties against an endless succession of subjective considerations and provide . . . an educated guess. Yuck.

Still, there’s little use in complaining about it, as mediation on appeal is met with increasing favor, especially here in the Houston area. Rather than cringing with uncertainty, each of us needs to make ourselves comfortable with how to evaluate the likelihood that mediation will be successful for any given appeal. To that end, I have worked to provide in this article a broad stroke sketch of the most common issues, together with a few pointers and rules of thumb I find particularly useful. Little has been written on this subject so far, and my hope is that this article will prompt serious consideration and discussion.

Is the Appeal Appropriate for Mediation?

The principle objection to mediation on appeal is that, in the vast majority of cases, one party has overweening bargaining power because of the judgment in their favor. The party who prevailed at the trial court level may be seen as holding all the cards, with little motivation to change position or grant any concessions whatsoever. How can mediation or, for that matter, any meaningful negotiation take place when that party has no motivation to come to the table in the first place?

The reality, though, is that a measure of insecurity accompanies even a seemingly airtight trial court judgment. Assuming for the sake of argument that there are legitimate grounds for taking an appeal in the first place, then there is significant risk of the judgment being altered in some way. Without getting into case-specific analysis, the statistics for the 2015 fiscal year are that 37.4% of all appeals filed in the courts of appeals were disposed by reversal, modification, or “Other” disposition. Obviously, each case must be evaluated on its own merits, and merely filing an appeal doesn’t mean its ultimate decision boils down to a statistical roll of the dice. The statistics quoted here merely illustrate the broader principle, that a party who prevails at the trial court level shouldn’t be so quick to rest on its laurels, discounting the possibility that this would mean snatching defeat from the jaws of victory.

Furthermore, the prevailing party does not have the luxury of only considering the risk that the judgment may be overturned; it also has to consider real world risks having no direct relation to the merits of the case. Financial resources have already been depleted in obtaining the judgment, and most parties will want to consider how much in the way of additional resources they are willing to commit to defending the judgment on appeal. Even parties who have a more or less inexhaustible ability to finance litigation may prefer immediate resolution at a modest discount. Fatigue and frustration may have already taken a significant toll, and the party’s desire to continue the fight has to be weighed against reaching final resolution of the matter through litigation at a distant future date.

Turning to the appellant’s perspective, mediation is almost certainly going to be an attractive option from the outset, especially when the appeal will be decided under a deferential standard of review. Even so, due consideration must be given to the likelihood of modification or reversal, and how the odds of reaching a desirable settlement may be served by mediating before or after briefing is complete. For example, if error is particularly evident and egregious, the appellant may want to wait until after briefing is finished and explore the possibility of settlement, provided that the cost of posting a supersedeas bond or alternate security is not an overweening concern.

For both sides, it may also be important to consider the long-term implications of pressing forward instead of working toward a negotiated settlement. If the parties anticipate future business dealings, for example, there may be additional pressure to smooth things over sooner rather than later and avoid the risk of long-term damage to their ability to work together. Similarly, the parties may be well advised to consider whether this appeal is the right vehicle for establishing favorable precedent for novel or unsettled legal issues likely to be important to pending or anticipated lawsuits affecting their respective interests. Both appellant and appellee should also make a point of looking for similar cases winding their way through the appellate process ahead of them that may cause significant shifts in the legal landscape.

Cooler Heads Must Prevail

While cool, logical consideration of the parties’ available options seems most sensible for all concerned in the period between judgment and appeal, in practice it seems much more common for emotion to play a significant role. Those on the prevailing side at the trial court level are understandably exuberant and proud of their accomplishment, and are often reluctant to consider the possibility that their victory may be a fleeting one. Likewise, those on the other side typically may be deflated or angered by the loss, and the losing party may also be overwhelmed by a sense of desperation if the judgment carries a risk of economic ruin. Both sides are heavily vested in the outcome, and are likely preoccupied to some greater or lesser extent with their sunk costs in the litigation to date.

In sharp contrast, our job when we are brought in to handle an appeal is to look at the case with objectivity and precision, which is facilitated by our status as newcomers lacking a personal investment in its outcome. Unfortunately, this may foster hostility on the part of trial counsel, who may resent our questioning of their objectivity, both as to the merits of the case and the quality of their own work. Left unchecked, this may prompt a breakdown in communication, or worse still an openly antagonistic relationship with trial counsel that interferes with our ability to confidently assess the strengths and weaknesses of the case.

Regrettably, no one strategy can manage every possible complication, meaning appellate counsel may spend a significant amount of time providing reassurance, answering questions, and reigning in conflict, depending on the particular mix of personalities involved and the immediate needs of the client and the case. While this may be taxing, it also serves to educate you on the specific contours of your client’s ability to understand the legal issues and willingness to tolerate uncertainty, while at the same time learning what you can from trial counsel about the tenor of any settlement negotiations that previously occurred. Tact, diplomacy, and inquisitiveness will serve you well in this, giving you an opportunity to develop a clearer understanding of whether mediation is likely to succeed.

We’re Going to Mediation? Great! With Whom?

Once the decision is made to go to mediation, the parties still have to agree on the mediator. Fortunately, there is legitimate consensus on who constitutes the best choice. In most situations, the parties’ first choice should be either an experienced appellate practitioner or former appellate judge, so that the mediator has a solid understanding of the procedural and substantive issues most likely drive the decisionmaking process of the court of appeals. See, e.g., Hon. Jeff Kaplan (Ret.), Practical Considerations for Post-Trial and Appellate Mediations, 64 THE ADVOC. (TEX.) 71, 72 (Fall 2013) (noting that “at a minimum, the mediator should understand the applicable standards of review and the substantive law”). This quality is considered indispensable, as he or she will have to push the parties toward resolution by commenting directly on the merits of the case and openly challenging the legal arguments advanced by the parties in support of their respective positions. See id. (encouraging the selection of former appellate judges and experienced practitioners who have “the credibility needed to encourage both sides to realistically assess the risks . . . and negotiate in a meaningful way”); see also D. Todd Smith, Using the Evaluative Approach in Appellate Mediation, TEXAS APPELLATE BLOG (July 31, 2016), http://www.texasappellatelawblog.com/2016/07/articles/mediationadr/evaluative-approach-in-appellate-mediation (discussing the evaluative approach as potentially superior to the facilitative approach for appellate mediations).

While the choice of an experienced appellate lawyer or former appellate judge is preferable for most appeals, though, care should be taken not to let this result in the alienation of parties or their counsel. The more direct and confrontational approach may make one side feel it is at a disadvantage and is being bullied, especially when the party on that side is not represented by seasoned appellate counsel. If there is a substantial disparity in the sophistication and experience of counsel on each side, then this should be taken into account at the time a mediator is selected, and care should be taken to choose someone who can diplomatically and respectfully speed the parties toward an agreement that suitably reflects the merits of the case.

Texas Judicial Elections Began at San Felipe de Austin in 1823

by David A. Furlow

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

It’s autumn now, the season of politics. The Dog Days of Summer are upon us, but the first cooling breezes will begin to rustle the still-green leaves of red oaks, tallows, and cypress. Judicial candidate yard signs proliferate like mushrooms after a spring shower, while billboards promote incumbents’ virtues and negative ads destroy their opponents’ competence on cable TV. The League of Women Voters distributes lists of candidates and their credentials. Activists of the right and the left circulate sample ballots that canonize cherished candidates while castigating and condemning their competitors.

How did we arrive at this competitive state of affairs where ordinary voters, rather than legislators, select who will be our justices of the peace, judges, and appellate justices?

Judicial candidate signs proliferate in front yards throughout Texas
Photo by David A. Furlow
Texas’s long tradition of electing judges did not begin in November 1850 when a majority of Texas voters approved an amendment to the Texas State Constitution of 1845 that required popular election of the Justices of the Texas Supreme Court, effective in 1851. Instead, judicial election of judges began in Stephen F. Austin’s colony in the Mexican state of Coahuila y Texas more than a decade before the Battle of San Jacinto gave birth to the Lone Star Republic.

In 1822, Stephen F. Austin, the empresario (entrepreneurial governor) of the colony founded by his father Moses Austin, came to San Antonio. While there, the Mexican governor of Mexico’s Texas territory insisted that Stephen F. Austin secure the recently created Mexican national government’s approval of the land grant his father had received from the Spanish.

Stephen F. Austin, painted by an unknown artist, 1840
Texas State Library and Archives Commission
In April 1822, Austin reached Mexico City, where he remained until, on February 18, 1823, the recently crowned Mexican Emperor, Agustin Iturbide, decreed that Austin’s governorship of his colony enjoyed Mexico’s formal national support, so that “he [Austin] is charged with the administration of Justice, settling all differences which may arise among the inhabitants, and preserving good order and tranquility, rendering an account to the government of any remarkable event that may occur.” After Emperor Iturbide’s overthrow, and an arduous, year-long journey, Austin returned to Texas with the Mexican Congress’s official seal of approval for his colony.

When Austin returned to his colony, he created his colony’s semi-autonomous system of justice. Unwilling to waste his time resolving “little neighborhood disputes about cows and calves,” Austin soon instituted elections to choose the alcalde, a combination of judge and mayor with judicial and administrative authority, to preside over trials in each of the colony’s two settlements. In 1823, one settlement’s voters chose Josiah Hughes Bell, a former Justice of the Peace in Missouri who governed Austin’s colony during the empresario’s absence, while other colonists elected John Tumlinson as their alcalde.

In a recently published article, Jason Boatright, former Director of the Texas Railroad Commission’s General Counsel Division and Chairman of Texas Attorney General Greg Abbott’s Opinion Committee, described how Stephen F. Austin oversaw the December 20, 1823 election to choose San Felipe de Austin’s alcalde judge for the year 1824. Mr. Boatright established that Sylvanus Castleman, a landowner in St. Genevieve, Missouri who lived near Moses Austin while the area remained Francophone and retained vestiges of Franco-Spanish, won the first alcalde election. Under Article 20 of his Civil Regulations and Criminal Regulations (1824), Stephen F. Austin permitted appeals only if the sum in dispute exceeded $25.00. Uninterested in appellate law, Austin created an appellate panel of alcaldes to hear those appeals.

Photo by Jason Boatright of the original election returns of the San Felipe de Austin alcalde election of 1823, from the
Stephen F. Austin Papers, Briscoe Center for American History, at the University of Texas at Austin,
reprinted with permission of The Texas Supreme Court Historical Society Journal.
Stephen F. Austin administered justice in his colony under Mexican law from 1823 until the Congress of Coahuila and Texas permitted the colonists’ Ayuntamiento to evolve into the Municipality of Brazoria on April 28, 1832. Under Article 1 of the March 11, 1827 Constitution of the State of Coahuila and Texas, all Texans became Coahuiltexanos. Under Articles 155-159, male Coahuiltexanos not disqualified from voting under Articles 18 to 22 elected their Ayuntamiento a/k/a Ayuntamie (Town Council), including Alcaldes (mayors), Sindicos (trustees), and Regidores (judges). Hispanics and Anglo-American settlers met annually on the first Sunday in December to elect Ayuntamie councils, whose investitures occurred the following Sunday.

Austin’s home-grown courts protected the interests of Texas citizens until Mexican authorities imposed military garrisons in the 1830s. Lawmakers in the State of Coahuila and Texas organized the municipality of Brazoria, with Brazoria as its capital and Port Brazoria as its maritime entrepot. The Precinct of Victoria Guadalupe governed the lower half of Stephen F. Austin’s colony after 1829. Alexander Hodge served as Commissioner in 1829, while other precinct commissioners included Asa Bringham and Henry Smith. Courts administered justice until state officials imposed a more formal Alcalde court on Brazoria’s settlers in 1834.

Austin’s elected alcaldes acted not only as fact-finders and law-givers but as conciliators to encourage arbitration. Alcalde magistrates kept orderly dockets and registers, reviewed written petitions before suits could be filed, rendered judgments, and ordered executions on property. The law of Mexico and the State of Coahuila y Texas required alcalde judges, who were to wear “black or dark blue, and a white sash with gold tassels . . . on all solemn occasions.” Dress and demeanor were considerably less formal and more homespun on the rough-hewn frontier at San Felipe de Austin. Anglo-American lawyers like William B. Travis, James Fannin, and Sam Houston soon found work representing settlers in their native English in Austin’s alcalde courts. Those lawyers litigated before juries of Anglo-American settlers in Mexican trials in the Precinct of Victoria, in the Municipality of Brazoria. A simple system of claims and answers dispensed justice simply, cheaply, and efficiently, while avoiding the intricacies of Anglo-American courts and its distinctions between common law and equity.

The experience lawyers, laymen, juries, and judges gained in the elections to the alcalde courts of the Mexican state of Coahuila y Texas paved the path that led to the Lone Star State’s popular election of justices of the peace, district judges, and appellate justices in 1851 – and in every subsequent election year down to the present day.

Did You Know . . . ?

By JoAnn Storey

Under Rule 299a, a trial court should not include findings of fact in its judgment. See Tex. R. Civ. P. 299a (“Findings of fact shall not be recited in a judgment.”).

Nevertheless, findings in the judgment have probative value and will be treated as valid findings as long as they do not conflict with findings recited in a separate document. In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.); see also Gonzalez v. Razi, 338 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (“[F]indings of fact recited in an order or judgment will be accorded probative value so long as they are not in conflict with findings recited in a separate document.” (quoting In re Sigmar, 270 S.W.3d 289, 295 n.2 (Tex. App.—Waco 2008, orig. proceeding))); In re C.A.B., 289 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“The mere inclusion of findings in a judgment does not mean the findings have no effect” and “findings improperly included in a judgment still have probative value and are valid as findings.”); Hill v. Hill, 971 S.W.2d 153, 157 (Tex. App.—Amarillo 1998, no pet.) (recognizing that “findings contained in a judgment (contrary to Rule 299a) are not shorn of all authority” but “only to the extent they conflict ” with findings made in a separate document).

In Family Law cases, consult Family Code Section 6.711 (Findings of Fact and Conclusions of Law) and section 154.130 (Findings in Child Support Order).

AppellaTech: Linking to Legal Authority in Briefs

by Derek D. Bauman

In the last issue of the HBA Appellate Lawyer, I discussed how you can use Adobe Acrobat to hyperlink your record citations to portions of the record. This time, I'm going to discuss how to hyperlink your case citations. As with record citations, there really isn't a perfect way to do it.

But before we get into how to link to cases, you should give some thought about whether you should link to cases. If you don't know already, the Texas courts of appeals (including the Supreme Court of Texas and the Texas Court of Criminal Appeals) have a program that automatically inserts hyperlinks into briefs for case and statutory citations.

In addition, I've been told by the Court Clerk for the First and Fourteenth Courts of Appeals, Chris Prine, that the electronic filing system strips out hyperlinks from all documents filed. So all that careful work may be for naught. I expect the reason for this is for security purposes. It's possible to hyperlink to a website that puts malicious software on a court computer and it could be difficult to distinguish between valid hyperlinks and malicious ones.

Chris is currently investigating whether its possible to get a copy of the hyperlinked brief loaded into the system in the clerk's office without stripping the hyperlinks. If that works, you could deliver a copy of the brief to the clerk's office with a flash drive in order to preserve the hyperlinks. I will provide an update when I hear more.

If you do decide to add hyperlinks to cases, the next question you have to answer is what exactly you want to link to. Broadly speaking, you have two main options: (1) you can attach copies of the cases to your brief and hyperlink to those pages of the document or (2) you can link to an online legal source. As I've indicated, both have their drawbacks.

Attaching copies of cases to the brief and hyperlinking to those attached cases has all of the drawbacks that I mentioned for hyperlinking to the portions of the record attached to the brief. If you're attaching both copies of the record and copies of legal authority to your brief, you are especially in danger of running up against the limit on the size of files you can upload.

That said, it could be helpful in certain circumstances. Let's say your case turns on one or two particularly important cases or statutes. The crux of your argument rests on the proper interpretation and application of that authority. In that case, it might be a good idea to attach the authority to your brief. That way, not only can you link to the relevant pages, but you can pre-highlight the passages that need to be emphasized.

If you want to go this route, my previous article points you to resources on how to combine documents into one PDF and how to hyperlink between the pages.

The other main option is to link to web pages for your legal authority. The downside to this is it requires the reader to switch between the PDF document and the web page displaying the legal authority. Another potential downside is it creates a new tab or window in the web browser every time you click on a link, even if two links are to the same case. After a while, this could become cumbersome. Ultimately, though, that creates a situation for the reader to decide how best to use the links.

To create a hyperlink, you can create it in the PDF document. It's fairly simple and there are a number of websites that can tell you how to do it, if you don't already know.

Another option is to insert the link in Word. When you convert the document to PDF, the link will be preserved if done properly. In my opinion, this is the better way to do it because Word gives you greater control over the appearance of the link in the document. Creating a hyperlink in Word is also fairly easy.

Before you add the hyperlinks, you'll need to consider what website to link to. One obvious candidate is Westlaw. (I would avoid Lexis Nexis links for at least the First and Fourteenth courts, though, since neither has Lexis Nexis subscriptions.) It is familiar and it will have access to most citations you need.

Westlaw may be the best website to use for your links. (The courts' system that inserts hyperlinks uses Westlaw for its links.) But there is another option that might be worth considering. I've discussed before how to use Google Scholar for free access to case law (which I promptly had to follow up on). And you also know about the website for Texas statutes. These websites are free to everyone and (as a result) do not require a log in to use. In my opinion, that makes them a little more accessible.

One drawback to these links is that they only take the reader to the case or statute cited without pinpointing the relevant page or passage. The good news is that there are websites and web apps that you can use that will allow you to link to a particular passage on a web page.

I haven't researched the whole range of apps available, but one useful one I found is called TLDRify. (In case you don't know, "TL;DR" is an abbreviation for "too long; didn't read.") Follow the instructions to install the app on your web browser. Then, find a case that you want to link to (say, on Google Scholar). Highlight the relevant passage that you want to bring to the reader's attention. Then click on the icon for TLDRify. When you do, a web link will appear.

Copy that link and use it for the hyperlink reference. When the reader clicks onto that link, they are not only taken to the case or statute, they are taken to the relevant passage with the appropriate text highlighted. (To see it in action, click here.) I think that could be hugely useful.

You should know that, at least for TLDRify, the links don't work with Westlaw. For it to work, you will have to use websites like Google Scholar and the Texas statutes website.

Of course it's only useful if you can get a copy of the brief to the court that doesn't have the hyperlinks removed. Hopefully there will be a way to do that.

Case Updates

By Andrew Nelson, Wright & Close, LLP; Andrew Raber, Watt, Thompson, & Henneman LLP


Guam Indus. Res., Inc. v. Dresser-Rand Co., No. 01-15-00842-CV, 2016 WL 3964672 (Tex. App.—Houston [1st Dist.] July 21, 2016, no pet. h.)

Consent to arbitrate in Texas does not constitute consent to litigate in Texas.

Dresser-Rand sued Guam Industrial Resources, Inc. (“Guam”) for failing to pay it for work it did pursuant to a contract. The contract contained an arbitration clause in which the parties agreed to arbitrate in either Buffalo, New York, or Houston. The parties also consented to the jurisdiction of those courts for purposes of the entry of judgment upon an arbitration award. However, Dresser-Rand filed suit rather than moving for arbitration.

Guam filed a special appearance. The trial court denied Guam’s special appearance on the grounds that Guam consented to jurisdiction when it agreed to the arbitration clause. Guam appealed. During the pendency of the appeal, Dresser-Rand moved to compel arbitration in the trial court, and the trial court granted the motion. However, the First Court stayed that order pending its resolution of the interlocutory appeal.

The court began by noting that ruling on jurisdictional issues usually requires an examination of a defendant’s contacts with Texas; however, that is not the case when a defendant contractually consents to jurisdiction in Texas. Instead, review focuses on whether the trial court properly applied the clause.

The court noted that an arbitration clause is a type of forum-selection clause. In construing forum-selection clauses, the court applies principles of contract interpretation. In this case, the court focused on only one issue: whether Guam consented to be sued in Houston.

The court held that Guam did not consent to be sued in Houston. Guam’s agreement to arbitrate in Houston subjected it to Texas jurisdiction for the limited purpose of confirming any award against it or for compelling arbitration, but not for being sued in Texas in the first instance. The court noted that its holding was in line with a number of federal courts. And, under normal minimum contacts principles, jurisdiction over Guam in Texas was not proper. Thus, the trial court erred in denying the special appearance.

Finally, the court considered what to do with the trial court’s order compelling arbitration entered after denying the special appearance. The court held that the granting of the motion to compel arbitration could not cure the court’s error in denying the special appearance. Special appearances must be judged based on the pleadings before the court at the time of the hearing. After-filed documents cannot be considered. Therefore, the court reversed the trial court’s judgment and rendered judgment granting the special appearance and dismissing the case for lack of personal jurisdiction.

Addo v. Am. Tank & Vessel, Inc., No. 01-15-00688-CV, 2016 WL 3662652 (Tex. App.—Houston [1st Dist.] July 7, 2016, no pet. h.)

Failure to include a complete clerk’s record when challenging a trial court’s summary judgment ruling will lead to affirmance of the summary judgment.

Addo sued American Tank and Vessel, Inc. (“ATV”) for breach of contract. ATV moved for summary judgment, attaching 91 exhibits to its motion for summary judgment. The trial court granted the summary judgment and also granted equitable fee forfeiture and death penalty sanctions against Addo. Addo appealed.

Addo filed a request for documents to be included in the clerk’s record; however, he only requested four of the 91 summary judgment exhibits for inclusion in the record. ATV argued that the court of appeals must presume the missing exhibits support the judgment and affirm the summary judgment.

Addo argued that the omitted evidence was not “pertinent” because the only issue in the case was who breached the contract first, and the evidence that he attached was supposedly all the court needed to answer that question. The court rejected that argument. The court held that it was not up to the parties to determine which evidence is pertinent; rather, the parties must include a full clerk’s record so that the court can make that determination. Because Addo did not do so, the court presumed that the omitted exhibits supported the summary judgment, and affirmed. It is worth noting that the court specifically stated that it was significant that the omission of the exhibits was not accidental, but was intentional.

The court also upheld the trial court’s granting of death penalty sanctions. The trial court’s judgment specifically stated that it relied on evidence presented at several hearings on the motions. Under the presumption of regularity of judgments, the court of appeals noted that it must presume that the trial court did in fact rely on the evidence as it stated. However, Addo only included a partial reporter’s record that did not include transcripts of all the hearings in which the court received evidence. The court of appeals pointed out that while Rule 34.6(c) permits a party to prosecute an appeal with a partial reporter’s record, that rule also requires the party to specifically state the issues to be considered on appeal, and the appeal will then be limited to those issues. When a party does not file such a statement, the court of appeals must affirm the judgment. Because Addo did not file a statement, the court presumed the missing record supported the judgment and affirmed.


Sharp v. Kroger Texas L.P., No. 14-15-00784-CV, 2016 WL 3965113 (Tex. App.—Houston [14th Dist.] July 21, 2016, no pet.)

When Plaintiff files suit, but does not serve Defendant until after the expiration of the statute of limitations, Plaintiff must demonstrate due diligence in effectuating service from the moment petition was filed, not the moment the statute of limitations expired.

In an appeal from the trial court’s grant of summary judgment in favor of defendant Kroger Texas LP, the Fourteenth Court of Appeals examined whether the plaintiff exercised due diligence in procuring citation and effectuating service of process on Kroger. Plaintiff filed suit before the statute of limitations expired, but did not request citation or effectuate service on Kroger for over five months, after the statute of limitations expired. Plaintiff therefore had the burden of demonstrating due diligence as to “every period of delay” in order for the date of service to relate back to the date of filing.

Justice Jamison, writing for the majority, focused on the applicable time period in which to judge “every period of delay.” Plaintiff argued that due diligence is measured from the expiration of the statute of limitations and not from the date the lawsuit was filed. The court of appeals disagreed, holding that the measure of diligence begins from the time the suit is filed and explanation is needed for every period of delay thereafter. See Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).

The plaintiff also attributed the delay in procuring citation and effecting service on the parties’ ongoing effort to resolve the case. This argument did not persuade the court either. The court concluded that unilaterally waiting to serve a defendant during settlement negotiations is not due diligence. The court affirmed the trial court’s judgment.

In the concurring opinion, Justice Christopher addressed the issue of due diligence before the statute of limitations has run. Although Justice Christopher agreed that the plaintiff failed to exercise due diligence in serving her lawsuit, she wrote separately to recommend that courts examine the delay that occurs before the running of limitations differently from delay that occurs after the running of limitations. In Justice Christopher’s opinion, it was reasonable for the plaintiff to delay serving her lawsuit while attempting to settle the case, and courts should not discourage such practice. Further, because the court has never held that a plaintiff has a duty to file a suit as soon as possible, plaintiffs often wait until the last minute to file. Accordingly, she noted “it seems incongruous to fault a plaintiff with five months of delay in attempting service when that same plaintiff could have waited those same five months without filing at all, filed three days before the expiration of limitations, and served a defendant after limitations had run.”

Universal MRI & Diagnostics, Inc. v. Medical Lien Management Inc. D/B/A Bridgewell, No. 14-15-00420-CV, 2016 WL 4204049 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, no pet. h.)

A party may choose to use the lodestar method to establish the amount of reasonable and necessary attorneys’ fees, but must provide evidence of the time spent on specific tasks and identify which attorney or paralegal performed those tasks.

In 2012, the Texas Supreme Court’s El Apple I decision clarified the proof required to demonstrate the reasonableness of attorneys’ fees using the lodestar method. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012). The lodestar method is a two-step process used to ensure the amount of attorneys’ fees awarded to a party are reasonable. The method involves determining the base fee (i.e., lodestar) and then adjusting that amount up or down based on the complexity of the work. To determine the base fee, the party requesting attorneys’ fees must establish the number of hours reasonably spent on the case. Id. at 762–64. The rule requires proof documenting the performance of specific tasks, the time required for those tasks, the person who performed the work, and his or her specific rate. Id. at 764.

Following El Apple I, however, the Supreme Court and some courts of appeal (including the Fourteenth Court of Appeals) have been inconsistent in when and how to apply the lodestar method when reviewing awards of attorneys’ fees. See Mark E. Steiner, Will El Apple Today Keep Attorneys' Fees Away?, 19 J. Consumer & Com. L. 114, 118–19 (2016) (providing a full explanation of the El Apple I decision and the lower courts’ application of the decision when reviewing awards of attorneys’ fees under the lodestar method).

In the most recent “lodestar case,” the Fourteenth Court of Appeals applied the lodestar method to a case involving claims for fraud and breach of contract. The court first determined whether the party intended to use the lodestar method by considering the following evidence:
MLM submitted the affidavit of K. Bo Wilson as evidence of its attorneys’ fees. In the affidavit, Wilson states MLM agreed to compensate his firm “based on the hourly fee of $100.00 to $350.00.” He then states that “based on the Firm’s fee agreement, MLM incurred reasonable and necessary attorney [and paralegal] fees in the amount of $44,008 in preparing and drafting MLM’s pleadings and motions, discovery, compiling exhibits, and taking other necessary actions to perform the Firm’s legal services properly.”
The court concluded that the party’s references to the agreed hourly rate and the total amount of fees incurred based on the agreement demonstrated its intent to use the lodestar method.

The court then examined whether the evidence supported the trial court’s award of attorneys’ fees using the lodestar method. Citing El Apple I, the court reviewed the record for evidence “of the services performed, who performed them and at what hourly rate, when they were performed, and how must time the work required.”

Because the party provided only a range of hourly rates and generally listed the types of tasks that were performed, the court concluded that the trial court could not have meaningfully reviewed the fee request and therefore the evidence was not sufficient to meet the El Apple I standard. The court of appeals reversed the portions of the trial court’s judgment awarding the party attorneys’ fees and remanded the case for further proceedings regarding the attorneys’ fees.