Features for January 2016

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

"KNOWLEDGE IS POWER"
Chief Justice Nathan Hecht Celebrates the Centennial of the Harris County Law Library, by David Furlow

REWRITE THIS SENTENCE
Justice Bill Boyce, 14th Court of Appeals, explains how SMOG isn't just a problem in China.

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH
Derek D. Bauman encourages you to eat your electronic vegetables.

CROSSWORD PUZZLE
James Marrow provides an appellate-themed crossword puzzle.

CASE UPDATES FOR SEPTEMBER TO NOVEMBER 2015
Case updates for the Houston practitioner
by James C. Marrow, Hogan & Hogan, and Andrew Nelson, Wright & Close, LLP

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

“Knowledge is Power”: Chief Justice Nathan Hecht Celebrates the Centennial of the Harris County Law Library

by David 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).

“This library, for 100 years, has been a bastion of legal knowledge for Houston, and enriching the community,” Chief Justice Nathan Hecht observed during the Harris Count Law Library’s Centennial Celebration on October 1, 2015. “That’s good reason to celebrate, to be grateful for the vision and service that have made the library all it is, and to wish it continued success.” Chief Justice Hecht’s speech reflected his deep appreciation of the value and power of a law library:
Libraries are quiet places. It’s the thing I like best about them. They are little worlds you can go off to, not just to find answers, but to reflect on outside turmoils. In the quiet, surrounded by knowledge, there is power.
This is the story of how a stronghold of progressive government came into existence.

The Harris County Law Library started more than a century ago with the scratch of a pencil across a scrap of paper. It was a glorious time to be a lawyer in Harris County. The census recorded that Progressive Era Texas had 3,896,542 Texans in 1910, a number that was rapidly growing; by 1920, Texas’s population had swollen to 4,663,228. Sam Rayburn, later a long-time and powerful speaker of the U.S. House of Representatives, who had already served four years in the Texas Legislature, was enmeshed in the reform agenda of the Thirty-First Regular Session. Houston voters were seeking the right to petition the City to place charter-amendments on the ballot. Houston attorney Hortense Sparks Ward was beginning a movement to give Texas women a married woman’s property act and, eventually, the right to vote in elections.

In the Progressive Era Houston of 1910, Houston Bar Association President John Charles Harris looked down past his spectacles, pin-striped bowtie, and broad mustache to add the figures going through his mind. Eventually he wrote down $5,000 on the paper before him. That was the sum it would cost to fund construction of a good law library. Soon he began making rounds to raise the funds required. Only to see the down side of the legal profession’s thriftiness. “I regret to say that we were not successful in establishing the foundation for an Association Library, as out of a total membership of one hundred and one, but nineteen members returned their subscriptions to me.”

Yet just as mighty oaks grow from tiny acorns, the seed of HBA President John Harris’s idea grew rapidly in the fertile ground of Progressive Era Houston. Three years later, after being recast as the “Lawyers Library Association,” the idea bore fruit as planning began for the Harris County Law Library.

The Lawyers Library Association President, Judge Charles E. Ashe, was soon working with Vice President Lewis R. Bryan, Association treasurer Captain James A. Baker (of Baker & Botts fame) and Association secretary R. W. Franklin to organize Harris County’s Law Library. In his Centennial Celebration speech, Chief Justice Hecht referred to those four men and their colleagues James A. Breeding, Thomas H. Ball, and Lewis R. Bryan as “towers of the bench and bar.” So they were, each a community-minded man whose efforts made the dream of a Houston law library a reality. To create a law library, the Association’s leadership had to resolve questions important and mundane, such as whether to use electric lamps or gas lighting to provide illumination. The choices those men made in 1913 and 1914 echo to this day.

The Harris County Law Library opened on October 1, 1915 in the Civil Courts Building where the county’s attorneys and judges could consult the myriad volumes assembled. When the County Law Library opened in 1915,” Harris County Attorney Vincent R. Ryan, Jr. observed during its October 1, 2015 centennial celebration, “Judge James L. Autry, requested that the library ‘always be open to the free use of struggling young lawyers.’” Judge Autry received his wish; the law library is a fountain that has flowed for the benefit of all of the County’s lawyers, judges, justices, and citizens for over a century.

On October 1, 2015, Chief Justice of the Texas Supreme Court Nathan Hecht joined Harris County Law Librarian Mariann Sears, Harris County Deputy Librarian Joseph Lawson, Harris County Attorney Vince Ryan, Fourteenth Court of Appeals Justice the Honorable Brett Busby, and more than one hundred and fifty judges, justices, lawyers, and members of the public to celebrate the Harris Count Law Library’s hundred-year anniversary. An historic event inspired several great speeches.

County Attorney Vince Ryan, whose office administers the Law Library, spoke first at the Library’s October 1, 2015 centennial celebration. In contrast to the library’s humble origin, it now serves as a temple of the law, where, as County Attorney Ryan observed,
More than 5,000 students, attorneys, and self-represented litigants access the law library’s resources each month. The library has more than 30,000 volumes of printed materials and provides access to major research databases like Westlaw, LexisNexis, and HeinOnline.
Thanks to the support of Harris County’s Commissioners’ Court, the Library has recently moved from a seventeenth floor venue to the spacious site of the former Harris County Jury Assembly Room. County Attorney Ryan concluded his October 1, 2015 presentation by thanking Law Library Director Mariann Sears and her staff as they “find new ways for the library to be of service to all.”

Harris County Law Librarian Mariann Sears. Photo by David A. Furlow.

Law Librarian Mariann Sears’s staff provided all who attended the library’s Centennial Celebration with a faux-leather copy of a genuine, Law Library Catalogue distributed to Houston Bar Association members in 1949

Harris County Law Librarian Mariann Sears then ticked off some of the modern resources now available through the Law Library:
Very quickly then, what’s new and cool about the Harris County Law Library today? Well, for starters, we’ve got 25 public access computers available with access to all the latest and greatest legal research databases. We’ve got robust content contracts with WestlawNext and Lexis Advance. We’ve got access to RIA’s CheckPoint, a tax research database. We’ve got O’Connor’s Online, HeinOnline, and State Bar Practice Manuals online. We’ve got Internet access and MSWord and Excel, too. And all of it’s FREE to our patrons.
Not to mention ServiceDocs, a full service copy and reprographics center located right here within the law library. Mariann then described the library’s “greatest partnership… the one we’re continuing to develop with the Houston Volunteer Lawyers.”

Left to right: Harris County Attorney Vince Ryan, Harris County Deputy Librarian Joseph Lawson, Harris County Law Librarian Mariann Sears, and, at the podium, Houston Bar Association President Laura Gibson. Below: Chief Justice Hecht speaks at the Centennial Celebration.

Scientia potentia est,” Chief Justice Hecht stated in speech, “Knowledge is power.” For over a century, lawyers, judges, justices, and ordinary citizens have harnessed its power to make the Rule of Law a reality in this part of Texas.


To learn more about the Harris County Law Library, visit its website at http://www.harriscountylawlibrary.org/. An excellent online exhibition about the Centennial Celebration is available at http://www.harriscountylawlibrary.org/100.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

Kuff’s Pharmacy provided some useful legal training while I poured coffee behind the counter near the rack featuring comic books and Mad Magazine.

Kuff’s is long gone, one of many independent pharmacies buried during the rise of ginormous national chains. It already was obsolete when I worked there in the early 1980s – a fading reminder of the mom-and-pop drug stores that lured customers with a soda fountain, shelves of candy, a few greeting cards, bandages, and a vast selection of tobacco products.

Kuff’s still had a lunch counter, or at least the vestige of one, where customers could get a cup of coffee, a donut, or a Coke. My job was to be there each weekday ready to pour by 7:30 a.m. That’s when the regulars began strolling in – salesmen, a guy who owned the private ambulance service, retirees, the dentist from a few doors down. The same customers showed up at the same time expecting the same two deliverables. One was hot coffee. The other was conversation.

The training came from learning to talk with people who were older than I was. More specifically it came from being taught how to converse without sounding uninformed, nervous, defensive, or – worst of all in the eyes of Kuff’s unpretentious regulars – like a know-it-all with more vocabulary than sense. The lessons were delivered with humor. And a purpose.

These lessons came to mind when I read a recent article in The Yale Law Journal Forum entitled, “Judicial Gobbledygook: The Readability of Supreme Court Writing.” According to the introduction, this article “analyzes the readability of over six thousand United States Supreme Court opinions by measuring the length of sentences and the use of long, polysyllabic words.” Its conclusion: “The data shows that legal writing at the Court has become more complex and difficult to read in recent decades.”

In earlier columns I’ve bemoaned the increasing tendency of legal scholarship to analyze opinions by counting words or applying algorithms instead of actually reading them. I must qualify my numbers-crunching criticism in light of this new article.

I’m backpedaling a bit because the article uses the word “gobbledygook” in its title. This most excellent and unpretentious word is one that Kuff’s regulars certainly would have applauded. Few legal journals meet this standard.

Then the article applies the Simple Measure of Gobbledygook (SMOG) formula, which estimates the years of education needed to understand a given text. The estimate depends on the length of sentences and the number of long multisyllabic words in each sentence.

Minutes of intense internet surfing have confirmed that SMOG is a real thing among those who study readability. I’m pretty sure this isn’t satire.

As applied to Supreme Court opinions, the SMOG formula reveals “a particular spike since 2000” in difficulty level. The article is measured in its conclusions and recommendations. “In legal writing, readability may have an optimal level. High SMOG scores are not necessarily a bad thing.” It continues, “Although true gobbledygook is probably best avoided, to some extent high scores in the Simplified Measure of Gobbledygook may be an unavoidable part of the practice of modern law.” This is because “[t]he law frequently engages with complex subject matter, and the legal issues that the Supreme Court deals with are often the most nuanced.” The article notes that “[in] explaining these issues a degree of complex language is almost inevitable.”

Inevitable or not, the SMOG formula is a useful prod for drafters of opinions and briefs alike. Complex topics do not require impenetrable prose. Tools for simpler writing always are at hand: fewer clauses; fewer commas; shorter sentences; simpler words when appropriate; active voice.

For me, this article is a reminder to write it so the folks at Kuff’s Pharmacy could read it. They were smart. But they had little patience for cold coffee and even less for gobbledygook.

Did You Know . . . ?

by JoAnn Storey

When the applicable law changes during the pendency of the appeal, the court of appeals must render its decision in light of the change in the law. Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex. 1993).

The court of appeals in Blair vacated the trial court’s death-penalty default judgment against the plaintiff for discovery abuse and remanded the case to the trial court for reconsideration in light of the Texas Supreme Court’s opinion in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (orig. proceeding). The supreme court held the court of appeals has no authority to decline to decide the appeal on its merits.

On the other hand, the supreme court can vacate a court of appeals’ judgment and remand the case to that court to reconsider its judgment in light of changes in the law. Id.

AppellaTech: Tips on Creating Strong Passwords

As any parent of young kids knows, getting kids to eat their vegetables is a constant struggle. They're important for good health, and they're not nearly as bad as most kids make them out to be. In fact, once you give them a chance, you realize they're actually really good. (If you cook Brussels sprouts right, they can be down right amazing.) And yet, the goal of getting kids to eat vegetables is a constant struggle. If you're like me, you end up making eating vegetables a prerequisite for a desired reward (dessert).

There's an adult equivalent of this. It's getting full-grown adults to form a safe password.

You did it, didn't you? You rolled your eyes and thought, "oh no, not THIS conversation again"! Passwords are important for your computer/financial/online-anything health! It's really not as bad as you're making it out to be. Plus, once you give it a chance, it can even be fun! Okay, maybe "fun" is overselling it. Let's go with interesting.

I'm not going to spend a great amount of time telling you why you should work on having a good password. If you don't already know that by now, I can only conclude you are completely devoted to a campaign of willful ignorance, rendering my explanations useless. Instead, I want to devote the bulk of this article to providing tips on creating strong passwords.

But maybe I can do a little bit of both by way of setting up what makes passwords good or bad. A bad password is short, has common words, and is used by the same person across a variety of accounts.

Let's start with short. As of 2012, it was possible to hack 7-character passwords within six hours. (This is for encrypted files. Online passwords on websites that limit your number of tries are different.) Each additional character significantly increases the magnitude of time needed to crack a password.

The hazard of common passwords should be obvious. If it was an easy idea, then a lot of other people also thought of it and use it. A common password is naturally commonly guessed by hackers. "Letmein" is not a good password. And almost everyone loves pizza. Seriously, stop putting "pizza" in your password. Because this is a Texas-based newsletter, I will warn you that "comeandtakeit" is also a really bad password.

Then there's use over multiple accounts. If you have one password, even a really complex password, that you use for every single thing requiring a password, then you only need to be hacked once before every other account you have is now compromised. So not only has your Instagram account been compromised, so has your email account, your bank account, and your credit card account. Plus, once your email account has been compromised, the hacker can quickly learn what other accounts you have, leaving only your password as your protection.

As you've by now guessed, then, a hard to hack password is long, uses random letters and characters, and is used for only one account. While such a password is ideal, it runs up against an inherent problem with human memory. We are terrible at remembering multiple sequences of random letters and numbers. If you try that, while you've effectively prevented anyone from accessing your accounts, you will likely end up one of the people effectively prevented from accessing your accounts.

So the trick to coming up with a strong password is to create one that looks random to everyone else but has a hidden meaning that only you can easily remember.  I'm going to spend the rest of this article recommending three different methods to try to achieve this.

Before I begin, though, I have to emphasize something. I will be using examples to illustrate the principles for creating passwords. DO NOT USE THE EXAMPLES AS YOUR PASSWORD! While this column has not yet achieved world-wide popularity, it is nevertheless publicly available. By using a password that is publicly available, you've defeated the entire goal of making a hard to guess password. Use the principles given, but base it on your own unique formulation.

The Sentence-Acronym Method

What's a sentence that you can rattle off the top of your head with little thought? Let's take the first sentence of the Gettysburg Address. "Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal." What does that look like if we take the first letter of each word (preserving capitalization)? FsasyaofbfotcannciLadttptamace. (Yes, this is unnecessarily long. As I said, it's an example.)

What if we change the number-words into actual numbers? 4sa7yaofbfotcannciLadttptamace. Just looking at it, it looks random and it has uppercase letters, lowercase letters, and numbers. But you know it's the Gettysburg Address, which you memorized in middle school and has been rattling around in your brain ever since. Now it's your shield against hackers. Thanks, Abraham Lincoln. First emancipating slaves, now this!

Mind you there are two critical features you need here. First it is preferably something you already have memorized and that you memorized a long time ago. If you memorized it a long time ago and still remember it, that means you're more than likely going to continue to remember it. If you've only recently memorized something, you don't know that you have it stored in long term memory yet. A hard to guess password that you can no longer remember is a real problem. If you want to go with newer, try it out on a less-important account for a while.

Second, try to make it something you have memorized but few other people have. For that reason, the Gettysburg Address may not be the best candidate. (It's rattling around in a number of other heads.)

As you may have realized, this still suffers from the problem of being only one password. If you use the same one for every account, you still have a weakness. So how do we avoid this? Add a unique identifier at the end that is relevant to the account.

Let's say this is your bank account password and you bank with Bank of America. Add the name of the bank to the end (still going with first letter acronyms). 4sa7yaofbfotcannciLadttptamaceBoA. This offers a slight improvement, but the variation is still rather guessable. Let's add a little more. Say you have multiple bank accounts, but Bank of America is your primary account. In your head, think, "Bank of America, primary bank account." BoA1ba. Add it to your sentence, and you have 4sa7yaofbfotcannciLadttptamaceBoA1ba. Then your JP Morgan Chase account (your secondary account) becomes 4sa7yaofbfotcannciLadttptamaceJPMC2ba.

Those are some pretty darn good passwords you've got there.

How about a play on the Dos Equis advertising campaign? "I don't always use social media, but when I do, I primarily use Facebook." IdausmbwIdI1uF. Three parts of that password change for varying accounts. "Social media," "primary," and "Facebook." This increases the complexity of your password for would-be hackers.

Another possibility: "I want to rock and roll all night and use Google primarily to send emails." IwtraranauG1tse. There's at least one theme song from a TV show you watched as a child that you could still belt out at a moment's notice. Make use of it. Remember that song you used to sing over and over again as you pined for your massive crush? (You remember. "Strumming my pain with his fingers...") That song is never going away. Bet that refrain could make a great password.

Play around with it and it could start being interesting or (dare I say it?) fun.

The Unique Image Method

The next idea is to take four common but unrelated words and stick them together. The example from xkcd is "correct horse battery staple." While each word by itself is common, the four together are not. The challenge, then, is how to remember this random collection. Granted, it's only four words (or more, if you wish). But remembering them can still be a challenge. The idea is to come up with an image that contains all four words and (preferably) indicates the order of the four words. Humans are better at recalling images than written words, and this method plays off of that memory trick. Returning to the example in xkcd, the image is of a horse looking at a battery with a staple in it, saying, "battery staple," and someone else saying "correct." (The efficacy of this method is proven by looking at the image in the link instead of relying on my description.)

I have heard that the less G-rated an image is, the easier it is to remember. But proceed with caution on that. There will be times in your life that you will have to share your password with someone. Make sure it's something that won't make you stammer and turn red when conveying it.

This method, like the one above suffers from the problem of only being one password. You can either try coming up with four words that you associate with the account. (You'd have to be loose on the association, though. Otherwise, you make it guessable.) Or you can add acronyms on to the end like in the example above.

The Nonsense Rhyme Method

Like visual images, we are better at remembering rhyming phrases than a non-rhyming random string of words. This is why ballads were a popular form of entertainment for centuries. The story teller could better remember long stories by memorizing a series of rhyming words that told the story. If it was good enough for Chaucer, then it's good enough for your passwords!

One of the examples that I enjoyed from the paper was "And British fiction engineer; Travolta captured bombardier." Like the Unique Image Method, it helps to memorize this phrase by coming up with a mental image that you can recall to help you enter the password. The hard part is coming up with a random phrase that rhymes. Worry not, the authors of the paper that propose this idea have offered to do it for you! Just email the authors, and they will send you your very own personalized rhyming password! (The link is to the Washington Post article, which explains how to contact the authors.)

Just like all the others, you can still improve on this method by adding a short identifier unique to each account (described in the Sentence-Acronym Method) at the end. This way, if someone is able to access your password for one account, they aren't automatically granted access to all other accounts you hold.

Email Variation

One last idea. This has less to do with passwords, but is related to the strength of having different passwords for different accounts.

Many email service providers allow you to create what I call "sub-accounts." They're not really different accounts. You can just designate different suffixes to your account name and that modified email address will still result in your receiving the email. For example let's say your account is standardemail@gmail.com. Going back to the examples of having a Bank of America account and a JP Morgan Chase account, let's say you tell Bank of America that your email address is standardemail+BnkAm@gmail.com. That email works and shows up on your regular email account. Then you can tell JP Morgan Chase that your email is standardemail+JPMorg@gmail.com. Just like the Bank of America account, emails will show up in your regular account. But both of your bank accounts store differing email addresses.

The reasons this is beneficial is that, if you use a standard password across accounts (or one with the modifiers at the end that I suggested), someone who learns your email address for Bank of America will not automatically know your email for JP Morgan Chase or any other account you have. Sure, they'll know your standard email address. But they won't automatically know what you told JP Morgan Chase was your email. And they need to know that PLUS your password in order to gain access to your online account. It's an added layer of complexity (for hackers) that is relatively easy for you to remember.

If the hacker gains access to your email, all of your extensions will also be revealed. (Are you seeing why your passwords for your email addresses are perhaps your most important ones to protect?) But if a hacker gains access to anything else, they still have to guess how to access the other accounts.

Many email providers have a method for doing this. There are instructions for Google, Yahoo, and Hotmail. There's a good chance that other email providers offer the same. It's worth using if it's available to you.

See that wasn't so bad, now was it? As a reward, here's a recipe for a delicious way to cook Brussels sprouts.

Crossword Puzzle

by James Marrow, Hogan & Hogan

Q. What’s a fourteen-letter word or phrase for “one who regularly solves puzzles”?

A. Cruciverbalist. (We also would have accepted “appellatejudge.”)

This issue, the HBA Appellate Section blog offers a crossword puzzle loosely themed on appellate law (and, in particular, the excellent articles submitted this month by the blog’s many outstanding contributors). For those familiar with the days-of-the-week convention for grading crossword difficulty, this puzzle is (intended to be) a “Tuesday.”

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—not to imply that the blog’s readers need such help—is also available.

 

Click to view regular size.

Case Update for September to December 2015

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

FIRST COURT OF APPEALS

Holland v. Memorial Hermann Health Sys., No. 01-14-00283-CV, 2015 WL 7455328 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet. h.)

If a summary-judgment movant does not meet its burden of establishing each element of its claim or defense, the non-movant need not respond or present any evidence, and may raise a legal sufficiency challenge for the first time on appeal.


Holland allegedly tripped and fell in the parking lot of Memorial Hermann Katy Hospital. Holland sued Memorial Hermann Health System (“Memorial”) for her alleged injuries. Memorial moved for summary judgment, claiming it did not control the premises in question. The trial court granted Memorial’s motion.

On appeal, Holland argued that the trial court erred in granting summary judgment, because Memorial attached evidence that it did not own or possess a parking lot adjacent to Memorial Hermann Memorial City Hospital, but not the parking lot where she allegedly fell in Katy. In response, Memorial argued that Holland waived the issue by failing to raise it in the trial court, and, in any event, the evidence established that she fell at the Memorial City location rather than the Katy location.

The First Court reversed the trial court’s granting of summary judgment. The court noted that a summary-judgment movant bears the burden of establishing each element of its claim or defense. Only after the movant meets that burden does the burden shift to the non-movant to produce evidence to disprove one of those elements. Because one of the elements of a premises-liability claim is ownership of the premises, and because Holland alleged that the incident occurred at the Katy location, Memorial did not offer any evidence to disprove that element by attaching evidence that it did not own a parking lot adjacent to the Memorial City location.

Further, the court held that Holland did not waive her challenge to the issue by not raising the issue in the trial court. Because a summary judgment must stand or fall on its own merits, a court may evaluate the legal sufficiency of the grounds presented by the movant for the first time on appeal.

Finally, the court noted that Memorial attached evidence that the incident occurred at the Memorial City location to its appellate brief, but that evidence was not in the summary-judgment record. Accordingly, the court refused to consider that additional evidence.

Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 WL 7455826 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet. h.)

The “Property Owner Rule” applies only to cases involving real or personal property, not to claims for lost profits in a business.


Accurate Precision Plating, LLC (“APP”) sued Guerrero for several causes of action related to his violation of a non-compete agreement after leaving the company. At trial, APP’s president, Alberto Mani, testified that APP lost several customers as a result of APP’s actions. However, the trial court excluded Mani from testifying regarding APP’s alleged lost profits. Mani did not have any formal training or education in accounting, economics or business forecasting.

On appeal, APP challenged the exclusion of Mani’s lost profits testimony. APP argued that Mani should have been permitted to offer testimony regarding lost profits based on the Property Owner Rule. Essentially, Mani argued that APP’s business was his property and that, based on his familiarity with it, he should be allowed to offer valuation opinions.

The First Court rejected this argument. The Property Owner Rule has only been applied to cases involving real or personal property, not to cases involving lost profits. The court noted that the rationale behind the Property Owner Rule is the presumption that a property owner is familiar with its property and its value. However, given the much different considerations involved in a lost profits analysis, the court refused to extend the Property Owner Rule beyond the realm of real or personal property.

Richard v. Ayala, No. 01-14-00354-CV, 2015 WL 6931497 (Tex. App.—Houston [1st Dist.] Nov. 10, 2015, no pet. h.)

Offensive collateral estoppel did not apply to subsequent suit against parents of teenage driver because the parents were not in privity with their son in his trial.


The Ayalas’ son Edwin was involved in a car accident when he was 16 years old. The other driver sued Edwin, who by the time of trial was 18. During the trial, Edwin testified that, at the time of the accident, he only had a learner’s permit and that his parents had allowed him to drive alone several times in violation of the permit’s restrictions. The plaintiff then filed a subsequent suit against the Ayalas based on negligent entrustment.

The trial court found the Ayalas liable to the plaintiff. However, the only evidence that the plaintiff introduced of his damages was the judgment entered against Edwin in the prior suit. The plaintiff sought to bind the Ayalas to that damage amount by offensive collateral estoppel. The trial court found that collateral estoppel did not apply and awarded no damages to the plaintiff. The plaintiff appealed.

Collateral estoppel prevents the re-litigation of a fact issue that was resolved in an earlier suit. Collateral estoppel can be applied offensively or defensively. A party seeking to use collateral estoppel must establish that “(1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action.” However, mutuality of parties is not required. The party against whom collateral estoppel is asserted need only to have been in privity with one of the parties in the prior action.

The First Court noted that privity is an issue of law that it reviews de novo. The Ayalas were not parties in the first suit, and, as their son was an adult, their legal rights were not at stake in the first suit. They had no more than a parental interest in whether their son was found liable for damages—they did not have legal or pecuniary interests represented in the suit against Edwin. Accordingly, the Ayalas did not have a “full and fair opportunity to litigate the issue” of the extent of the plaintiff’s damages, and were not in privity with their son.

The court also concluded that the application of collateral estoppel would be unfair. The court noted that a trial court has broad discretion to determine whether offensive collateral estoppel without mutuality of parties would be fair to apply under the facts of the case presented. In the Ayalas’ case, because they would not have been financially liable under any theory in the case against Edwin, they had no motivation to defend against any of the claims. Because they had no interest in that suit, it would have been unfair to apply findings from that case against them later on. The court concluded that offensive collateral estoppel did not apply in that case.

FOURTEENTH COURT OF APPEALS

In re Walker, No. 14-15-00434-CV, 2015 WL 5137228 (Tex. App.—Houston [14th Dist.] Sept. 1, 2015, orig. proceeding) (mem. op.).

An order that states that it “finally disposes of all parties and all claims” is a final judgment even if the order does not actually dispose of all parties and all claims.

The doctrine of laches does not bar mandamus relief that is premised on the entry of a void order.

The real party in interest, Joe Price, sued relator, Robert Walker, for fraud and breach of contract. Instead, the jury found for Walker on his counterclaims against Price. Walker moved for judgment on the verdict and asked the trial court to award him attorneys’ fees. Before judgment was entered, Walker’s previous law firm intervened, seeking reimbursement of its attorneys’ fees out of any award to Walker.

On January 22, 2014, the trial court signed a document entitled “Final Judgment” that granted Walker’s motion to enter judgment on the verdict. But the court crossed-out the proposed judgment language granting attorneys’ fees, and the order does not mention the law firm or its pending plea in intervention. The order concluded, “This judgment finally disposes of all parties and all claims.” No appeal was taken from that order.

Instead, on December 23, 2014—11 months later—both Price and the law firm moved to vacate the January 2014 judgment, claiming it was not final. The firm specifically argued that the judgment was not final because it did not name the firm, mention its intervention, or deny the firm’s request for attorneys’ fees.

On January 16, 2015, the trial court vacated the judgment and later set the case for trial to begin on December 7, 2015. Walker filed a mandamus petition with the Fourteenth Court of Appeals.

The Court held that the January 2014 order was a final judgment, even though it did not expressly dispose of the firm’s intervention and request for attorneys’ fees, because the order stated, “This judgment finally disposes of all parties and all claims.” Accordingly, the Court concluded that the trial court lacked plenary power to vacate the judgment a year later, and that such order was void.

The Court also rejected the law firm’s argument that mandamus relief should be denied, on the basis of laches, because Walker waited until May 14, 2015 to request mandamus relief. The Court held that “laches is not a bar to mandamus relief where, as here, the mandamus relief is premised on the entry of a void order.” Accordingly, the Court conditionally granted mandamus relief.

Pressil v. Gibson, ___ S.W.3d ___, No. 14-14-00731-CV, 2015 WL 5297689 (Tex. App.—Houston [14th Dist.] Sept. 10, 2015, no pet. h.).

Acknowledging a split in lower-court authority, the Fourteenth Court of Appeals sided with the Texarkana Court of Appeals in holding that the measure of damages available in a “wrongful pregnancy” case are limited to medical expenses associated with the failed procedure that produced the healthy but unwanted child.

This legal-malpractice case arose from the dismissal of a health care liability claim by Pressil against a fertility center. Unbeknownst to Pressil, his girlfriend had surreptitiously taken samples of his sperm to the clinic and was artificially inseminated there, a process that resulted in the birth of healthy twin boys. Pressil sued the clinic for negligence and conversion, seeking damages for mental anguish, loss of opportunity, loss of enjoyment of life, child support, the cost of raising two children, lost earnings, and lost earning capacity. The trial court ruled that Pressil’s claims against the fertility center were health care liability claims and dismissed his lawsuit for failure to file an expert report under CPRC chapter 74. Pressil’s lawyers did not appeal the dismissal.

Pressil then sued his lawyers for legal malpractice. The lawyers moved for summary judgment arguing, among other things, that Pressil could not prevail against them because, in his suit-within-a-suit, Texas law would not have allowed Pressil to recover damages related to the birth of healthy children. Thus, the lawyers argued, Pressil could not have won his case-within-a-case and therefore could not prove the causation element of his legal-malpractice claims. The trial court granted summary judgment, and Pressil appealed.

The Fourteenth Court of Appeals first discussed the background of so-called “wrongful pregnancy” lawsuits, that is, claims brought by the parent(s) of a healthy, but unexpected, unplanned, or unwanted child against a medical provider for negligence leading to conception or pregnancy. The Court noted that a plaintiff cannot recover damages related to the support and maintenance of a healthy child born as a result of medical negligence, because the intangible benefits of parenthood far outweigh the monetary burdens involved. But Texas law is unsettled as to what damages a plaintiff can recover in a wrongful-pregnancy case.

The Waco Court of Appeals has proposed a “limited-damages” rule that potentially would allow a plaintiff to recover damages for (1) medical expenses for the failed procedure and any corrective procedures, (2) prenatal and postnatal expenses, (3) pain and suffering during pregnancy and delivery, (4) pain and suffering associated with the corrective procedure, (5) permanent impairment suffered because of the pregnancy, delivery, or corrective procedure, (6) emotional distress, (7) lost wages, and (8) loss of consortium. The Texarkana Court of Appeals, by contrast, has further limited a wrongful-pregnancy plaintiff’s recovery to the actual medical expenses incurred as a result of the failed sterilization procedure.

The Fourteenth agreed with the Texarkana court, and rejected the Waco court’s expansion of available damages, holding that “the measure of damages available to plaintiffs in wrongful pregnancy cases is limited to the medical expenses associated with the failed procedure that produced the healthy but unwanted child.” Because Pressil did not undergo any medical procedure, he could not recover any damages. Therefore, because Pressil could not prove damages in his underlying fertility lawsuit, he could not prove causation in his legal-malpractice suit.

The Court rejected Pressil’s contention that expert testimony was necessary to prove proximate cause in this case. The causation question—the availability of damages—was a question of law, and expert testimony would not have been admissible as to whether Texas law afforded Pressil a recovery in the fertility lawsuit. Accordingly, the Court affirmed the lawyers’ motion for summary judgment.

Russell v. Russell, ___ S.W.3d ___, No. 14-13-01100-CV, 2015 WL 5723109 (Tex. App.—Houston [14th Dist.] Sept. 29, 2015, no pet. h.).

In interpreting an appellate court’s mandate, a trial court should look not only to the mandate itself but also to the appellate court’s opinion. However, trial courts are given a reasonable amount of discretion to comply with the mandate.


This was the second appeal involving these parties; the issue on appeal was the trial court’s compliance with the Court’s mandate issued in Russell I. The Russells (Janna and Chris) divorced in 2008. In 2009, Janna moved for contempt and enforcement, contending Chris had violated their divorce decree and property-division agreement. The trial court did not find Chris in contempt but still awarded Janna judgment for unreimbursed medical expenses and for funds that were ordered to be paid into a savings account. However, the trial court did not award Janna additional child-support arrearages she sought or attorneys’ fees.

In Russell I, Janna appealed the denial of attorneys’ fees. The Court held that, because the trial court found that Chris failed to make child support payments, Family Code section 157.167 obligated the trial court either to award Janna her reasonable attorney’s fees or to state good cause for refusing to award attorney’s fees. The Court concluded that the trial court “abused its discretion by failing to award attorney’s fees [under 157.167] without stating good cause.” The Court reversed that portion of the judgment and remanded the case to the trial court “for further proceedings consistent with [the court’s opinion.”

Following remand, the trial court again refused to award attorneys’ fees to Janna for the stated reason that Chris had not been found in contempt. The Court reviewed its earlier mandate and opinion, and it concluded that, following Russell I, the trial court had only two options on remand: (1) award fees to Janna under section 157.167, or (2) maintain its refusal to award fees if it found good cause not to award fees and stated its reason for that decision. The Court would not imply good cause from the record because the trial court had rejected Chris’s proposed findings that good cause existed, and likewise declined to enter additional or amended findings.

The Court again reversed, holding that “[b]ecause the trial court failed to award Janna reasonable attorney’s fees under section 157.167 without stating any reasons supporting a finding of good cause to deny fees,” the trial court erred by failing to follow the Russell I opinion and mandate. The Court then expressly stated the trial court’s specific duties on remand, in apparent hopes of avoiding Russell III.

Fleming & Assocs., L.L.P. v. Kirklin, ___ S.W.3d ___, Nos. 14-15-00238-CV & 14-15-00369-CV, 2015 WL 6560520 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet. h.).

CPRC section 51.014 does not provide for interlocutory appeal from an order granting a motion to dismiss a SLAPP action.


The plaintiff law firm (“F&A”) previously represented more than 8,000 clients in diet drug litigation. After that litigation settled, the defendants (which consisted of other lawyers and law firms) allegedly solicited F&A’s former clients to pursue civil litigation against F&A concerning settlement expenses. F&A sued the defendants for malicious prosecution and conspiracy. All of the defendants moved to dismiss F&A’s suit pursuant to the Texas Citizens’ Participation Act (also known as an “anti-SLAPP” motion to dismiss). The trial court granted some defendants’ motions, but denied others.

F&A attempted to appeal the order granting some of the dismissal motions but denying others. No party attempted to appeal from the portion of the order that denied some of the defendants’ motions to dismiss.

The Court held that it lacked jurisdiction over F&A’s interlocutory appeal. Although CPRC section 51.014(a)(12) provides for interlocutory appeal of an order that “denies a motion to dismiss under Section 27.003,” no statute explicitly provides for interlocutory review of an order that grants such a motion.

The Court acknowledged that it had previously written in Jardin v. Marklund, 431 S.W.3d 765, 769 (Tex. App.—Houston [14th Dist.] 2014, no pet.) that “we have jurisdiction to review the trial court’s grant or denial of a motion to dismiss under the TCPA” (emphasis added). However, Jardin actually involved the denial of a motion to dismiss, so the Court refused to follow the quoted language as dicta.

The defendant whose anti-SLAPP motion was denied later moved for summary judgment, which the court granted. However, because the trial court still had not resolved another defendant’s request for attorney’s fees, the Court held that the summary-judgment order was interlocutory and non-appealable. The Court dismissed the appeal for lack of jurisdiction.

Crotts v. Cole, ___ S.W.3d ___, No. 14-14-00094-CV, 2015 WL 7306395 (Tex. App.—Houston [14th Dist.] Nov. 19, 2015, no pet. h.).

Notwithstanding its title as a “motion to reinstate” under TRCP 165a, a motion that sought a substantive change in a TRCP 91a dismissal order was sufficient to extend the trial court’s plenary power.


Alan Crotts, acting pro se, sued Jessalyn Cole, claiming that Cole was Crotts’s wife and asserting various claims for money damages against Cole. Cole moved to dismiss all claims under TRCP 91a. Crotts did not appear for the hearing. The trial court granted Cole’s motion on October 14, 2013 and dismissed all claims under Rule 91a.

Later that day, Crotts filed a “Motion to Reinstate,” that nominally cited Rule 165a, which applies to reinstatements following dismissals for want of prosecution. On November 12, 2013, Crotts filed a “First Amended Motion to Reinstate and Motion to Quash,” which included an argument that the trial court should have denied Cole’s Rule 91a motion, and which requested that the court “quash” its dismissal order under Rule 91a.

On December 6, 2013, the trial court reinstated Crotts’s claims for defamation and breach of contract. Cole then moved to dismiss the action for lack of jurisdiction, arguing that the reinstatement order was void, as having been signed outside of the trial court’s plenary power. The trial court agreed with Cole, declared that the reinstatement order was void, and dismissed the action. Crotts timely appealed.

The Court examined the relief requested in Crotts’s amended reinstatement motion, which asked that the trial court order the Rule 91a motion and dismissal order “quashed.” The Court concluded that, even if part of Crotts’s motion was an unverified motion to reinstate under Rule 165a—which would not extend the trial court’s plenary power—the motion also requested a substantive change to the dismissal order. Because that motion was filed within 30 days from the trial court’s rendition of the final dismissal order, the Court held that Crotts’s “reinstatement” motion properly extended the trial court’s plenary power over its final order. Therefore, the trial court had plenary power when it reinstated the case on December 6, 2013. Accordingly, the Court held that the trial court erred by dismissing the case for want of jurisdiction. The Court reversed the trial court’s final order and remanded for further proceedings.

Upcoming Luncheons

January 14

“Don’t Banc En It: Best Practices in Petitioning for En Banc Review,” by The Honorable Jennifer Walker Elrod, United States Court of Appeals for the Fifth Circuit
RSVP deadline: noon on Monday, January 11
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. Please note that, if you RSVP and do not attend, you will be billed for the cost of the luncheon. Reservations are transferable.