Features for April 2016

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

Veritas from the Virtuoso: Justice Brett Busby, by James Marrow

by David Furlow

Justice Bill Boyce, 14th Court of Appeals, reflects on the references to the national pastime from the nation's highest court.

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman goes full nerd and discusses fonts in brief writing.

Case updates for the Houston practitioner
by Andrew C. Nelson, Wright & Close, LLP, Andrew Raber, 14th Court of Appeals, and Lisa Elizondo, 14th Court of Appeals

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

Veritas from the Virtuoso: Justice Brett Busby

by James C. Marrow, Hogan & Hogan

-What led you to consider a career in law?
My parents are both lawyers, so I grew up learning about how lawyers help people. In college, I chose to major in public policy and eventually discovered that I was drawn more to the work of interpreting and applying existing laws in a coherent and predictable way than to the political task of developing, lobbying for, and compromising over new laws.

-When did you first realize that you might be interested in becoming an appellate justice?
When I graduated from law school, I planned to be a tax litigator—a job that involves few factual disputes but many arguments about the meaning of a complex and interrelated set of statutes and regulations. After clerking for Judge Gerald Tjoflat on the Eleventh Circuit and later Justices Byron White and John Paul Stevens at the Supreme Court, I realized that I thoroughly enjoyed the variety of legal issues addressed by appellate courts and decided to specialize in appellate advocacy. As a clerk, I also enjoyed the process of weighing competing arguments, collaborating with the judges deciding the case, and helping to shape and refine an opinion, so I knew I would enjoy the craft of appellate judging if I had the opportunity to become a judge someday.

-After years as an appellate advocate, 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?
The bar and the public see only the finished product of an opinion signed by a particular justice, but it has been surprising and encouraging to see how attentive the other justices on the panel can be to shaping a draft opinion before it is released. Each justice brings different perspectives and strengths to the court, and welcoming suggestions from our colleagues generally makes the finished opinion stronger and provides clearer guidance for future cases.

-What are your most favorite aspects of being an appellate justice?
Most of my favorite parts of the job involve collaborating with my colleagues and our staff attorneys and law clerks in deciding cases, engaging with good advocates through briefing and oral argument, and striving to write opinions that are clear and readable. I also particularly enjoy the variety of our docket—Texas appellate judges are some of the few remaining legal generalists, and I believe that knowing how different areas of the law address similar issues helps strengthen our jurisprudence.

-How would you describe your judicial philosophy?
There are too many aspects of judicial philosophy to cover in the space available, but here are a few thoughts. In our adversary system of justice, a judge should (with few exceptions) decide only issues raised by the parties. Because everyone is entitled to know what the law is so they can plan their conduct accordingly, a judge’s decisions should be based on the plain language of governing laws or other written documents and on a consistent and evenhanded application of procedural rules. To foster stability and predictability in the law, a judge’s opinions should apply or clearly distinguish relevant precedents, should explain the decision in the current case in a way that provides appropriate guidance for future cases, and should not decide too much.

Regarding Briefs:

-The Fourteenth Court of Appeals was at the leading edge in the push for electronic briefs. 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 Fourteenth Court is completely paperless, which allows the judges and staff easy access to the briefs, record, and draft opinions. I have three screens in my chambers, and two are positioned vertically so that I can view a whole page of a document. I prefer to read briefs on these screens, but I also read remotely from home and occasionally on an iPad. I do not have a font preference, but as to format, I find declarative sentences helpful in headings.

-In your opinion, what distinguishes an effective appellate brief from one that is not? Do you have any suggestions about how attorneys can improve their written work product in the court of appeals?
The best briefs signpost the structure of their argument up front so that the reader knows what is coming and has the context necessary to evaluate the facts and legal arguments as they are presented. Factual introductions may be short, saving further factual development to accompany the argument it supports. Avoid witness-by-witness summaries of testimony. For each legal issue, spell out the essential facts and the key authority that supports your argument, while acknowledging and distinguishing any contrary authority. Also, take the time to explain why a case (especially a non-binding one) is correct, rather than just providing a citation and saying that your client will win if the court follows the case. A brief should never—ever—attack opposing counsel, a court, or the Legislature. This point seems elementary, but I see a surprising number of briefs from otherwise-skilled advocates that (for example) accuse opposing counsel of trying to mislead the court rather than simply showing why opposing counsel’s argument is wrong. Such attacks are grating and distracting for the reader, and they diminish the writer’s credibility.

-Do you prefer legal citations in appellate briefs to be contained in the text itself or in footnotes?
I prefer citations in text (unless they are long string cites) because I find it distracting to look (or scroll) up and down multiple times per page in order to check the nature of the authority being cited for a proposition. Even more distracting is a page in the statement of facts that contains a footnote after practically every sentence, with each footnote offering only a very short record citation.

Regarding Oral Argument:

-How do you decide whether to grant oral argument in one of your cases?
After coming to the court, I was surprised to find that many parties do not ask for oral argument. In general, the court will not set a case for argument if no party requests it. In the cases where argument is requested, the justice assigned to write the opinion makes the first recommendation regarding argument, though any panel member may request argument. If a case appears to be controlled by existing precedent, I do not recommend the further expenditure of time and resources by all involved that oral argument would entail. If the case is ably briefed and a quick review of the brief and some key cases does not show that existing precedent provides a ready answer, I generally recommend oral argument.

-In what ways do you find oral argument helpful or unhelpful? Do you have any suggestions for how attorneys can improve their performance at oral argument?
As a former appellate advocate, I enjoy oral argument. I find that it frequently shapes the way the opinion is written, though it is less common for argument to change entirely the disposition of the case. I find it helpful if attorneys begin by providing a short introduction listing the two or three key points they hope to cover. Factual introductions and jury arguments are not good uses of the limited time available. Instead, be prepared to offer brief bullet points of the authorities and facts supporting your position, and to respond to your opponent’s key points. Be sure to welcome questions and answer them as well as you can. If an advocate does not know an answer, we welcome one short post-submission letter that provides the answer.

Regarding Himself:

-Much has been written about your musical background and talent with the violin (including an excellent piece in last month’s Texas Bar Journal). What led you to choose the violin?
My parents took me to symphony performances geared toward young children beginning at age 3. After I had attended a few times, I’m told that I pointed to the violins on stage and told my parents I wanted to play that. They thought I was a bit young to start, but they looked around and found a teacher of the Suzuki method who was willing to start teaching me to play by ear.

-Does musical talent run in your family? Did your parents play musical instruments? Do your children (Katie and Will)?
My mother played the piano and flute growing up, and she once had the opportunity to play with Van Cliburn. My wife Erin also plays the piano, and Katie is an enthusiastic piano student. Will is learning some music theory and is interested in the guitar, but he has not started taking lessons yet.

-You seem to keep quite busy, between your time on the bench, rehearsals and concerts with the Houston Civic Symphony, service with the Houston Symphony Society board of trustees, and as a husband and father of two children. If you could add a few more hours to each day, how would you spend them?
I would spend more time on these activities I already enjoy, especially time with my family, and I would likely read more for pleasure—particularly history.

-I understand you have played the fiddle a bit, too. On a truly serious note (or not), you said once (in the Texas Super Lawyers 2009 publication) that The Devil Went Down to Georgia was your favorite fiddle piece (and I respectfully submit that is the only correct answer to that question). Which side of the “duel” do you enjoy playing more—Johnny’s or the Devil’s? As the song goes, the Devil plays a pretty mean fiddle; so, in your expert opinion, did Johnny really beat the Devil?
The Devil’s part is more difficult to play because it is not very tonal and has a lot of slides. But I enjoy tonal music more (probably because of my classical training), so Johnny’s part has always been the winner in my book. Johnny’s part has a lot of chords that are fun to play, as well as an enjoyable back-and-forth with the singer.

HBA’s Teach Texas Committee Brings the Rule of Law to Life

by David Furlow

The Houston Bar Association is looking for judges, justices, and lawyers to help teach Houston area seventh graders about how the Rule of Law came to Texas. Opportunities to volunteer, and to share stories about the Rule of Law with our community’s students, will continue in late March, April and May of this year.

During February and March, many Houston Bar Association members, and staff have participated in the HBA Teach Texas Committee’s introduction of a new seventh grade judicial civics textbook in area schools. HBA President Laura Gibson and HBA Director Warren Harris, acting on behalf of the Teach Texas Committee, have recruited judges, attorneys and Houston area school districts to participate in a project organized by the Texas Supreme Court Historical Society and the State Bar of Texas Law-Related Education Department.

HBA President Laura Gibson discusses the Taming Texas textbook and pilot project at the January 2016 HBA Committees Breakfast, January 2016 Photo by Tara Shockley

The project involves teaching lessons from a 2016 book, Taming Texas: How Law and Order Came to the Lone Star State written by James L. Haley and Marilyn P. Duncan. Both the book and the project teach students how the state’s court system fits into the larger picture of Texas history from Stephen F. Austin’s time to the present.

Jim Haley and Marilyn Duncan wrote the book’s opening stories to help students understand an early Texas in which there was no law or order. They sought to challenge students to think about how a society begins to organize itself. Subsequent stories reveal how Spanish, Mexican, and Texas lawmakers enacted laws, conducted trials, and honed precedent in courts over the centuries while emphasizing those aspects of the Texas experience that are a unique part of the Lone Star State’s heritage.

The Texas Supreme Court Historical Society’s Fellows, which commissioned and funded the project, are providing the HBA Teach Texas Committee and seventh graders in Houston area schools a free copy of the book in e-book format, a hard copy of the book for classroom teachers, downloadable worksheets, and a variety of online games. These teaching resources tie the history of Texas law, lawyers, and courts into current TEKS standards (see the detailed list of the book’s TEKS-related elements below). Through the Texas Supreme Court Historical Society’s TAMING TEXAS JUDICIAL CIVICS AND HISTORY PROJECT, the book will be provided to seventh-grade Texas history classrooms throughout the state in 2017 and in subsequent years.

In his Introduction, Chief Justice Nathan Hecht hailed the book’s examination of Texas judicial history:
The laws people choose for themselves describe the society they live in. Does it protect individual liberty? Respect property rights? Limit government? Treat people equally? Try to provide justice to the rich and poor, the strong and weak, alike? To us, the answers may seem simple. But over the years, judges and lawmakers have fought against power and prejudice to produce the society we enjoy today.

This book is about how that happened in Texas. Settlers from Spain and Mexico brought with them a civil law tradition that had its origins in Roman law two thousand years ago. At the same time, other pioneers from the United States believed in a common law system borrowed from England. Coming together in this wild frontier, people from very different cultures and backgrounds had to find new ways to settle their disputes and establish order. They recognized women’s rights, protected homesteads, tamed the railroads, and fostered the independent spirit that had brought them here in the first place.

Many early lawmakers are well-known heroes of early Texas history—like Stephen F. Austin, Sam Houston, and Lorenzo de Zavala. Others’ names are not as familiar—Francisco de Arocha, John Hemphill, Robert “Three-Legged Willie” Williamson (yes, he was a Justice on the Texas Supreme Court!)—yet they, too, played important roles in the early court system. Together they created a legal system, tamed the frontier, and made Texas a safe place to live and work. This book tells some of their stories.
And that’s not all. Taming Texas is the first volume in a series that the Texas Supreme Court Historical Society will publish over the next five years. Each book will focus on a different aspect of the Texas law and the courts: law on the frontier, women and Texas law, the twenty-seven Chief Justices of the Supreme Court of Texas, the evolution of the Texas court system, and other topics. The Taming Texas books are generously funded by the Fellows of the Texas Supreme Court Historical Society.

Through the first Taming Texas textbook and lesson plans now being introduced as a pilot project, seventh grade students and their teachers are learning that:
  • The first “lawyer” in Texas was a Karankawa Indian tribal leader tribe who made a case for sparing the lives of the Spanish explorer Cabeza de Vaca and his men and won Texas’ first death penalty case.
  • Texas women owe their community property and separate property rights to Castilian legal principles articulated by the same Queen Isabella of Spain who funded Christopher Columbus’s journey to the New World.
  • In the final years of frontier Texas, some notorious outlaws, including Judge Roy Bean, the “Law West of the Pecos,” changed sides and became judges and lawmen.
  • Texas Governor Pat Neff appointed the first all-female state supreme court panel in the English-speaking world when he appointed the three justices of the “All-Woman Court” to decide the Johnson v. Darr supreme court appeal in 1925.
  • Texas is one of only two states with two “supreme” courts: the Texas Supreme Court and the Texas Court of Criminal Appeals.
Taming Texas is a judicial civics textbook inspired by U.S. Supreme Court Associate Justice Sandra Day O’Connor’s call for the renewed teaching of civics in American schools.

To teach how the Rule of Law came to Texas, Warren Harris and Fourteenth Court of Appeals Justice Brett Busby conducted a trial-run Class 1 session in mid-February. They presented lesson plans crafted by the State Bar of Texas’s Law Related Education Department. HBA recorded a video to show volunteers how Warren and Brett taught Class Lessons 1 and 2.

Justice Brett Busby, left, and Warren Harris, right, teaching at KIPP school in Houston, February 2016 Photo by HBA photographer Ariana Ochoa

HBA lawyers, judges, and justices filled the room to learn about how to teach the Taming Texas book and lesson plan at HBA’s headquarter downtown on Friday, February 19, 2016 Photo by David A. Furlow

HBA President Laura Gibson, HBA Director Warren Harris and Teach Texas Committee Co-Chairs Justice Brett Busby, Harris County District Court Judge Erin Lunceford and Texas Supreme Court Historical Society Journal Executive Editor David A. Furlow introduced the new text and project to over one hundred volunteers on Friday, February 19, 2016.

Warren Harris then presided over a make-up session the following Monday, February 22, 2016 for another twenty volunteers. After that, volunteer teachers and lawyers took the book and project into the schools. The Teach Texas Committee anticipates that over four thousand Houston area students will learn about the Rule of Law this year alone, while the project is still in its pilot-project stage.

HBA and Texas Supreme Court Historical Society Director Warren Harris describes the Taming Texas book to volunteer lawyers and judges in HBA’s headquarters on February 22, 2016 Photo by David A. Furlow

First Court of Appeals Senior Justice Terry Jennings holds a copy of Taming Texas before some of the first Plummer Middle School, Aldine Independent School District students to participate in a Teach Texas Committee class Photo by David A. Furlow

Any judge, justice or lawyer interested in volunteering to teach Taming Texas should contact Bonnie Simmons, HBA’s Director of Projects, at bonnies@hba.org or at her HBA phone number, 713-759-1133.

Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

The first day of spring is March 20. And spring training is underway. What better time could there be to explore the use of baseball references in opinions from the Supreme Court of the United States?

A search for the term “baseball” reveals three distinct circumstances in which the national pastime merits mention in Supreme Court opinions.

The first circumstance involves the diverse ways in which baseball bats can be used as weapons. I won’t dwell on this unpleasantness just now.

The second circumstance involves litigation over baseball as a business, of which there is a lot. Baseball’s antitrust exemption, enshrined in Federal Baseball Club v. National League, 259 U.S. 200 (1922), comes up for discussion from time to time. So do baseball-flavored labor fights and commercial disputes.

The third circumstance is the one I want to explore a bit further: the baseball analogy. The late Justice Antonin Scalia was a particular fan of this writing technique.

Let’s warm up with Justice Scalia’s majority opinion in Florida v. Jardines, 133 S. Ct. 1409 (2013), which held that police violated the Fourth Amendment by obtaining a search warrant based on the reaction of a drug-sniffing dog who alerted at Mr. Jardines’ front door while being walked on a leash in front of the house. “The officers were gathering information in an area belonging to Jardines and immediately surrounding his house – in the curtilage of the house, which we have held enjoys protection as part of the home itself.” Id. at 1414. “And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.” Id.

The baseball analogy took the mound in response to Justice Alito’s dissenting opinion, which prompted Justice Scalia to throw this fastball: “The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy – so long as they ‘stick to the path that is typically used to approach a front door, such as a paved walkway.’” Id. at 1416 n.3.

Baseball analogies pop up with some frequency in other opinions. See, e.g., Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2221 (2014) (Alito, J., dissenting) (“The plurality responds with a series of examples in which the word ‘and’ is used to join two commands, one of which is – as the plurality asserts here – dependent on another. . . . But . . . that is hardly the only way the word case be used. For example: ‘If today’s baseball game is rained out, your ticket shall automatically be converted to a ticket for next Saturday’s game and you shall retain your free souvenir from today’s game.’”) (citations omitted).

The analogy strikes again in Burrage v. United States, 134 S. Ct. 881, 888 (2014), in which Justice Scalia discussed but-for causation. “Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run.” Id. “It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game.” Id. (original emphasis).

Additional examples are easy to run down. See Chisom v. Roemer, 501 U.S. 380, 410 (Scalia, J., dissenting) (“The Court’s feeble argument to the contrary is that ‘representatives’ means those who ‘are chosen by popular election.’ . . . On that hypothesis, the fan-elected members of the baseball all-star teams are ‘representatives’ – hardly a common, even if a permissible, usage.”) (citation omitted); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (“When we say that a statesman has ‘compiled an enviable record of achievement,’ or that a baseball pitcher has ‘compiled a 1.87 earned run average,’ we do not mean that these individuals have pulled together papers that show those results, but rather that they have generated or produced those results.”) (original emphasis).

Other than demonstrating a love of the game, what makes the baseball analogy such an effective pitch in opinion writing?

I haven’t used this device myself, but it hits me as an especially effective way to make opinions more interesting and persuasive. The baseball analogy reinforces a technical legal point by tapping into a widely shared experience and vocabulary. Even the casual observer likely knows enough about baseball to get the point.

I’m not about to step up to the plate with an observation regarding the “best” sport or the most worthy leisure activity from which opinion-writing nuggets can be obtained. Suffice it to say that I struck out while trying to think of another analogy that is so instantly accessible to so many readers.

Did You Know . . . ?

by JoAnn Storey

Unlike other proceedings, a partition case has two final judgments, both of which are appealable. Griffin v. Wolfe, 610 S.W.2d 466, 466-67 (Tex.1980). In the first judgment, the trial court (1) determines the interests of each of the joint owners or claimants in the real estate sought to be divided and decides all questions of law and equity affecting the title to such land; (2) determines whether the property is susceptible to partition or the subject of a sale; and (3) appoints commissioners to partition the property in accordance with the respective shares or interests of each of such parties entitled thereto. Goldberg v. Zinn, No. 14-11-01091-CV, 2013 WL 2456869, at *5 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (mem. op.). In the second judgment, the court approves of the commissioners’ report and partitions the property in kind or by sale. Id. 

AppellaTech: Fonts

by Derek D. Bauman

It's no secret that appellate lawyers, on the whole, are a nerdy bunch. No doubt there are exceptions. Sure, it has been said that Warren Harris is the George Clooney of the Houston appellate bar,1 but it remains true that there is a disproportionately high concentration of bookish introverts among our ranks. (I do not claim to be an exception.) That is why, when I came up with the idea to discuss fonts in an article, I decided this was a group that would indulge me on such a particularized topic.

Until quite recently, the default font for Microsoft Word was Times New Roman. Because it was the default, it became ubiquitous. It has also become the object of much scorn. Personally, I do not share this view. While I don't intend to sing its praises, I find it to be a perfectly functional font.

Naturally, there are some people who care very much about the use of fonts in various contexts. Google recently updated the typeface for its logo. And I have no objection to paying careful attention to the use of fonts in appellate writing. I just feel that there are quite a number of other things that take precedent in evaluating what makes a good, persuasive brief. I think of it this way: the brief that loses on the merits when written in Times New Roman but wins when written in a more stylish font seems like an exceptionally rare brief. You have to be right on the cusp of persuasion when the font you use in your brief is what puts you over the line.

The key idea there, though, is winning or losing on the merits. I expect most would agree with me that a font choice is not likely to have that large of an impact in that circumstance. The place where it is more likely to have an impact (I would hazard to guess) is where your goal is to have the court show an interest in your issue, such as in a petition for discretionary review. In that scenario, it seems that choice of font could have at least some impact on the favorability shown towards your brief and, hence, your issues. But again, this strikes me as more of an on-the-fringes influence.

Another argument for using a font other than Times is a sort of marketing or branding of the attorney or firm. If the attorney always uses the same distinctive, aesthetically pleasing font, the font itself can become a symbol of the reputation of the lawyer. I can see the argument for this. In order for this to work, though, you have to have enough volume of work before some court that the distinctive font gets associated with you. For attorneys who don't file briefs with enough frequency to become individually known by a court, this would seem to produce less of a benefit. Also, it probably helps that the court have a positive view of you. Otherwise any persuasive effect of the distinctive font could be a net negative.

It's worth noting that some courts count themselves among those that care a lot about fonts. The Supreme Court of the United States requires you to use a font "in Century family (e.g., Century Expanded, New Century Schoolbook, or Century Schoolbook)." The Seventh Circuit has a lot of thoughts about fonts. The Fifth Circuit is more open to the font you use. See Fed. R. App. P. 32(a)(5)-(6) & 5th Cir. R. 32.1. The Texas appellate courts are also more permissive. See Tex. R. App. P. 9.4(e).

To the degree you are interested in picking a font other than Times for your legal writing, there is a book devoted to helping you do just that. Typography for Lawyers by Matthew Butterick. (I'm going to venture a guess and say that most of the attorneys who have bought this book are appellate attorneys. Like I said, certain examples notwithstanding, we are a bunch of nerds.) You should be aware, though, that if you pay for a license to use a specific font (that is, if you want to use a font that is not already on your computer and is not free to the public), you may need to check the licensing agreement to make sure that your normal use of fonts in your practice does not violate the licensing agreement.

If you want to stick with the bundle of fonts already on your computer, but want to switch to a font other than Times, Garamond is a good, readable font. Book Antiqua, Bookman Old Style, and Century are also good fonts. These are all "serif" fonts, as opposed to "sans-serif" fonts. A serif font has embellishments at the ends of the letters. A sans-serif font uses lines without embellishments.  (This article is written in a sans-serif font.) When Google switched the font for its logo, it went from a serif font to a sans-serif font. The reason for this presents a conundrum for appellate lawyers today.

A serif font is understood to be more readable on printed paper. A sans-serif font (such as Arial or Verdana) is understood to be more readable on a computer screen, especially on a small screen that you might find on a smart phone or tablet. (This is why Google, being a creature of the internet, went the sans-serif route.)

I think you see the conundrum. Many of the justices on the Supreme Court of Texas use iPads to read briefs. The Fourteenth Court of Appeals is paperless. If the justices are reading your brief on a smaller screen, this is some argument for using a sans-serif font. But if the justices are reading a printed copy of your brief, a serif font might be perceived as better. I have no particularly good advice to offer on this point other than to guess that the sheer inertia of the continued use of serif fonts shows that they should continue being used unless or until some judges start publicly calling for sans-serif fonts to be used.

If any of this leaves you in doubt about which font to use in your writings, perhaps a good fallback guideline is the idiom, "Imitation is the sincerest form of flattery." When in doubt, find out which font the court you are before uses, and use that font in your briefs. The Supreme Court of Texas and the Court of Criminal Appeals of Texas use Times New Roman for their opinions. So do the First Court of Appeals and the Fourteen Court of Appeals. The Fifth Circuit uses Century Schoolbook.

1^ Granted, this was said by me. Right now. In this post. But the point remains that it has been said.

Case Updates

By Andrew C. Nelson, Wright & Close LLP, Andrew Raber, 14th Court of Appeals, and Lisa Elizondo, 14th Court of Appeals


Cohen v. Midtown Mgmt. Dist., ___ S.W.3d ___, No. 01-14-00914-CV, 2016 WL 888742 (Tex. App.—Houston [1st Dist.] Mar. 8, 2016, no pet. h.)

A judgment nunc pro tunc may be valid if it simply corrects clerical errors that are consistent with the judgment entered on the record, but is not valid if it is an extension of that rendition.

Cohen owned five tracts of real property in Harris County and became delinquent on the tax payments on those tracts. In March 2013, two of the taxing entities brought suit on behalf of themselves and all other taxing units for whom they collect. At the November 2013 trial setting, Cohen did not appear, and the trial court, after admitting all evidence against Cohen, announced “Judgment for Plaintiffs.”

The trial judge signed a final judgment that incorporated descriptions of each of the five properties and identifying the amounts Cohen owed to each taxing unit. In June 2014, one of the plaintiffs moved to amend the judgment nunc pro tunc, saying that, although the final judgment contained an award for the Houston ISD, HISD was not specifically identified, other than as a “Plaintiff Taxing Unit” on the first page of the judgment. The court signed a judgment nunc pro tunc in June 2014.

Eighteen months later, during the pendency of an appeal that Cohen filed, one of the plaintiffs moved for a second judgment nunc pro tunc. This time, the plaintiff explained that neither of the prior judgments showed the amounts owed the Houston Community College System, despite the fact that it was identified as a taxing unit on both judgments. The plaintiff also requested amendment of the adjudged market values to correspond to the certified tax statements admitted at trial. The trial court signed that judgment nunc pro tunc as well.

On appeal, the First Court noted that once a trial court loses plenary power, it may enter a judgment nunc pro tunc only to correct clerical errors in the judgment. A clerical error is a discrepancy between the judgment entered into the record and the terms of the judgment actually rendered. A judicial error, on the other hand, is an error arising from a mistake of law or fact in the judgment that requires judicial reasoning to correct.

Applying that law to the facts of the case, the Court held that the first judgment nunc pro tunc was valid. The trial court clearly announced judgment for plaintiffs, and there was no indication that the court intended to exclude HISD from that announcement. Therefore, the failure to list HISD among the plaintiffs in the judgment was clerical, rather than judicial.

Conversely, the First Court held that the second judgment nunc pro tunc was invalid. The court noted that “[e]rrors in rendered and entered judgments are not clerical merely because they are based upon or grow out of clerical errors.” The court noted that the final judgment signed by the trial court specifies the plaintiffs’ pro rata shares of the tax debt, penalties, and interest. Therefore, the written judgment was an extension of the court’s initial rendition, not just a clerical recording of that pronouncement. HCCS was not identified as a recovering plaintiff in that judgment. When the court signed the second judgment nunc pro tunc, it added an additional $4,058 to the judgment. This was a substantive change and not a clerical one; therefore, the First Court held that the second judgment nunc pro tunc was void.

In re CVR Energy, Inc., ___ S.W.3d ___, No. 01-15-00877-CV, 2016 WL 511091 (Tex. App.—Houston [1st Dist.] Feb. 9, 2016, orig. proceeding)

When a plaintiff nonsuits a defendant shortly before trial, a co-defendant may designate the nonsuited party as a responsible third party even if the time to do so would normally have run. If the trial court does not permit the designation, a court of appeals may issue mandamus, as the defendant does not have an adequate remedy by appeal.

A plaintiff in a wrongful-death case nonsuited a defendant fifty-five days before trial. The nonsuited party’s co-defendants moved to designate the nonsuited party as a responsible third party (“RTP”) fewer than thirty days later. The trial court denied the designation, and the co-defendants filed a petition for writ of mandamus.

Wynnewood, the nonsuited party, had been a defendant in the lawsuit for several years prior to the nonsuit. Its co-defendants did not list it as a potential RTP in responses to requests for disclosure and did not move to designate it as an RTP at any time prior to the nonsuit. After the nonsuit, the plaintiffs objected to the motion for leave to designate Wynnewood, saying that limitations had run against Wynnewood and the motion was untimely.

In evaluating the situation, the First Court performed an exhaustive statutory analysis of Texas Civil Practice and Remedies Code section 33.004(d). The court determined that the trial court should have permitted the RTP designation. First, the co-defendants’ obligation to list Wynnewood as a potential RTP was not triggered until after Wynnewood was no longer a party to the case. Stated differently, a party does not have a duty to disclose its current co-defendants as potential RTPs. That conclusion was buttressed by the plain language of section 33.004(d), which speaks of a responsible third party. The court determined that the statute refers to third parties that are not parties to the suit. When a party is a co-defendant in a suit, the obligations set forth in Section 33.004(d) are not triggered. The court further found that the designation should have been allowed, even though it was made less than 60 days before trial, because good cause existed for the late designation.

Finally, the court determined that mandamus was the correct vehicle to correct the trial court’s error. Whether an adequate remedy exists by appeal is a case-by-case inquiry. The court determined that in the context of a complex wrongful-death case, waiting until appeal to correct the error would be inappropriate. Therefore, the court conditionally granted the petition for writ of mandamus.


In re Timberlake, ___ S.W.3d ___, No. 14-15-00109-CV, 2015 WL 7873726 (Tex. App.—Houston [14th Dist.] Dec. 3, 2015, orig. proceeding)

Under Rules 306c and 329b, a pre-judgment motion for new trial is not denied by including “Mother Hubbard” language in a final judgment. Therefore the trial court has plenary power to grant a subsequent post-judgment motion for new trial before the 105th day after the trial court’s final judgment was signed.

The underlying action was initiated by relator Gene Timberlake in September 2009 seeking to remove Cecelia Timberlake as independent executrix and to recover damages from Cecelia and her husband, Ray. In September 2012, the claims were tried to a jury, which returned a verdict in favor of relator. On November 7, 2012, Ray and Cecelia filed a motion for new trial (“2012 MNT”). A final judgment was not signed until June 14, 2013. The final judgment did not mention the 2012 MNT, but included the following “Mother Hubbard” language: “ORDERED . . . that all other and further relief sought by any party in this cause not otherwise granted in this Judgment is hereby DENIED.”

Following the final judgment, Ray and Cecelia filed a second motion for new trial (“2013 MNT”). The trial court granted the 2013 MNT on September 18, 2013, the 97th day after the final judgment was signed. The order set aside the jury’s verdict and vacated the court’s June 14, 2013 final judgment.

Relator filed a petition for writ of mandamus in the Fourteenth Court of Appeals seeking to vacate the trial court’s September 18, 2013 order granting a new trial and to reinstate the trial court’s June 14, 2013 final judgment. Relator argued that the September 18, 2013 order was signed after the trial court lost plenary power to grant a new trial and was therefore void. The success of his argument hinged on whether the pre-judgment 2012 MNT was deemed denied prior to or on the date of signing of the final judgment. If so, the post-judgment 2013 MNT would not extend the plenary period because it would have been filed without leave of court after a previous motion for new trial was overruled. See Tex. R. Civ. P. 329b(b). The trial court’s plenary power would have expired on July 14, 2013—the 30th day after signing the final judgment.

The majority concluded that even had the trial court intended to deny the 2012 MNT, such denial would have been premature under Rule 306c, which provides, in relevant part, “[n]o motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails . . .” The majority held that the 2012 MNT was deemed filed subsequent to the court’s signing of the final judgment. The trial court therefore could not have denied such a motion prior to or via its final judgment, as the motion was not yet considered filed.

Because the final judgment did not deny the 2012 MNT, the motion was overruled by operation of law 75 days after the trial court’s signing the final judgment. See Tex. R. Civ. P. 329b(c). The trial court’s plenary power continued for 105 days after the signing of the final judgment—75 days to the denial of the motions by operation of law and then 30 days beyond. A trial court may grant a new trial after all motions for new trial are overruled by operation of law so long as the order granting new trial is signed within the plenary period—in this case 97 days from signing of final judgment. Relator’s petition was denied.

In his dissent, Justice Brett Busby concluded that the final judgment’s “Mother Hubbard” language denied the 2012 MNT and therefore the 2013 MNT could not have extended the trial court’s plenary power, which expired after July 14, 2013. As a result, the September 18, 2013 new trial order is void and relator is entitled to mandamus relief.

Justice Busby focused on the majority’s application of Rules 306c and 329b(a), which address pre-maturely filed motions for new trial. He disagreed with the majority’s position that Rule 306c prohibited the trial court from denying the 2012 MNT in its final judgment. This reasoning, according to Justice Busby, ignores Rule 329b(a)’s express permission to file a motion for new trial before judgment, as well as the statement at the beginning of Rule 306c that such a filing is not ineffective. Justice Busby added that the function of Rule 306c’s “deemed” date and time of filing is not to deprive the trial court of its plenary power to act on a motion for new trial prior to final judgment, but to avoid procedural traps by (1) clarifying that a motion for new trial can preserve complaints regarding a subsequent judgment, and (2) simplifying the calculation of the deadline to appeal.

Justice Busby cited several Texas cases where courts have recognized a trial court’s ability to grant or deny a motion for new trial prior to judgment. See. e.g., Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 562–63 (Tex. 2005). He concluded that the majority’s view that a trial court cannot act before the deemed filing time creates “an anomalous hole in the trial court’s plenary power to decide motions on file” and will foster complexity and inefficiency, preventing the court not only from denying but also from granting a motion for new trial before judgment.

Relator’s motion for rehearing en banc was denied, with four justices voting to deny the motion, four justices voting to grant the motion, and one justice not sitting.

In re Master Flo Valve, Inc. and Master Flo Valve (USA), Inc., ___ S.W.3d ___, No. 14-15-00956-CV, 2016 WL 316491 (Tex. App.—Houston [14th Dist.] Jan. 26, 2016, orig. proceeding)

An order that requires a party to perform searches across all its email systems and electronic files using keywords supplied by the court intrudes on that party’s right to develop its own means of searching for responsive documents without court involvement or interference by the opposing party.

On January 7, 2014, the real party in interest, Alpha, sued relator Master Flo Valve, Inc. for breach of its distribution contract. During preparations to submit a major bid on a new project, several of Alpha’s employees resigned and formed their own rival distribution company. Alpha alleged Master Flo conspired with these former employees to defeat Alpha’s bid for a new contract so that Master Flo could win the bid with the new distributor.

During discovery, Alpha sought, among other records, “all communications” between Master Flo and the former Alpha employees. Master Flo responded to some of the production requests, but objected to others as overbroad. Alpha then requested that the trial court order Master Flo to perform keyword searches of all email and electronic file systems. When the trial court granted the motion, Master Flo filed a petition for writ of mandamus seeking to vacate the trial court’s discovery order, which states:
. . . Defendants shall also perform an electronic keyword search across all email systems and electronic files for responsive documents, and shall produce all responsive documents. The keywords will be agreed by the parties, or will be supplied by the Court separately if an agreement was not reached at the hearing on the Motion . . .
The Fourteenth Court of Appeals examined a Texas Supreme Court case recognizing that providing access to information by ordering examination of a party’s electronic storage device is particularly intrusive and should be generally discouraged. In re Weekley Homes, 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding). In Weekley Homes, the Texas Supreme Court held that for a party or its expert to obtain access to an opposing party’s electronic storage device, as a threshold matter, the requesting party must show that the responding party has defaulted in its obligation to search its records and produce the requested data. Although the court of appeals concluded that the trial court’s order was less intrusive than the order in Weekley Homes, it found the orders sufficiently analogous. The court rejected Alpha’s argument that no showing of prior default was required and added that ordering a keyword search without evidence of the party’s default intrudes on the party’s right to develop its own means of searching for responsive documents without court involvement or interference by the opposing party. Otherwise, litigants and courts would become embroiled in costly disputes about keywords or other search techniques. Such disputes, the court concluded, are prone to waste judicial resources, and thus, should be reserved for when a prior default of a discovery obligation has been shown.

Because Alpha did not meet its threshold burden of showing that Master Flo defaulted on its obligations to search for and produce documents responsive to Alpha’s requests for production, the trial court abused its discretion in ordering Master Flo to perform searches across all its email systems and electronic files using keywords to be supplied by the court. The court of appeals granted Master Flo’s petition for writ of mandamus in part and directed the trial court to vacate that part of the order.

Thuesen v. Amerisure Ins. Co., ___ S.W.3d ___, No. 14-14-00666-CV, 2016 WL 514404 (Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet. h.)

A party may not recover attorney’s fees and costs as the “prevailing party” under Rule 91a.7 if the trial court did not rule on the motion because the claims were nonsuited prior to the hearing on the motion.

This case involves a matter of first impression regarding attorney’s fees under Texas Rule of Civil Procedure 91a. The case involves several other issues, but this summary will only address the Rule 91a issue. Thuesen was originally the defendant in a lawsuit related to his role as the president of a condominium association. Amerisure Insurance Company provided Thuesen’s defense in the action. Thuesen filed separate actions against the original plaintiffs, which the opinion refers to as the “Swamplot Parties,” and against Amerisure. The Swamplot Parties (Swamplot Industries, L.L.C., Laurence David Albert, and Beth Anne Brinsdon) moved to dismiss Thuesen’s claims under Rule 91a. A week before a hearing on the motion was to be held, Thuesen nonsuited all of his claims against the Swamplot Parties. The Swamplot Parties then moved for an award of attorney’s fees under Rule 91a, asserting that they were the “prevailing parties” on the nonsuited claims because Thuesen nonsuited his claims in order to avoid an adverse ruling on the motion to dismiss. The trial court granted the motion and ordered Thuesen to pay costs and reasonable and necessary attorney’s fees. Thuesen appealed.

Rule 91a.7 provides that the court “must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court.” The Fourteenth Court of Appeals focused on the phrase “on the motion” as the operative phrase tying the award of fees to the trial court’s ruling on the motion. “Under the plain meaning of the statute,” the court held, “a party cannot be a prevailing party on a motion if the trial court did not rule on the motion because absent a ruling, no party has prevailed on the motion.” The court also noted that the Legislature clearly contemplated a situation like this—in which a party nonsuited his claims prior to the court’s ruling on the 91a motion—by enacting Rule 91a.5, which discusses the effect of nonsuit on a live 91a motion. The court reasoned that if the Legislature intended to award fees in such a situation, it would have expressly done so.

The court held that the trial court erred in awarding attorney’s fees and costs to the Swamplot Parties after the claims against them had been nonsuited, and modified the judgment to delete the award. After finding the other issues without merit, the court affirmed the judgment of the trial court as modified.

Patel v. Hussain, ___ S.W.3d ___, No. 14-14-00459-CV, 2016 WL 270014 (Tex. App.—Houston [14th Dist.] Jan. 21, 2016, no pet. h.)

(1) Jury findings that a publication was substantially true and an award of damages for defamation are not “conflicting” such that error stemming from these findings must be preserved prior to the jury’s being discharged. However, if the jury finds that the complete defense of substantial truth is meritorious, no damages may be awarded for defamation. (2) Intentional infliction of emotional distress is a gap-filler tort that does not apply to the threat of revelation of exclusively private conduct that took place in a private setting and does not concern the public.

Patel and Hussain were romantically involved for several years. After they ended their relationship, Patel commenced a campaign of harassment and threats against Hussain and also began distributing “revenge porn” featuring sexual images and videos of Hussain. Hussain filed suit against Patel for intentional infliction of emotional distress, intrusion on seclusion, public disclosure of private facts, and defamation. (Hussain’s suit was filed before the September 1, 2015 effective date of CPRC chapter 98B, which expressly creates a cause of action for “unlawful disclosure or promotion of intimate visual material.”) The jury found in favor of Hussain and awarded damages for each cause of action as well as exemplary damages for each. The trial court signed a final judgment for $500,000.

On appeal, Patel alleged inter alia that (1): the trial court erred by denying his motion for JNOV on Hussain’s defamation claim because the jury found that the publication was substantially true; and (2) IIED was not available as a “gap-filler” cause of action because it merely duplicated Hussain’s claims of intrusion on seclusion and private disclosure of public facts.

With respect to the jury’s finding that the published materials were substantially true, the court of appeals held that the trial court should have disregarded the jury’s award for defamation. Substantial truth is a complete defense to defamation and so, if found, precludes liability and damages for that defamation claim. Hussain argued that Patel waived this claim by failing to object, before the jury was discharged, to an irreconcilable conflict between the jury’s finding of substantial truth and the jury’s award of damages. However, the court held that the jury’s “yes” answer to whether the publication was substantially true and its subsequent award of damages for defamation did not embrace the same material fact and thus were not in conflict. Because “[i]t is entirely possible that a party suffers reputation and mental anguish damages from a substantially true statement,” there was no conflict in the jury’s answers, and Patel was not required to object before the jury was discharged in order to preserve error. However, despite holding that the jury’s answers were not in conflict, the court held that the damages question became immaterial once the jury found that the publication was substantially true. The court held that the trial court erred in denying Patel’s JNOV on that basis.

With respect to the IIED issue, the court held that IIED was unavailable as a cause of action as a matter of law. Hussain contended that she should be able to employ IIED as a cause of action because Patel made threats to embarrass her that were not actionable under any other theory. Specifically, Patel threatened to play a sexually explicit video of Hussain at a mutual friend’s wedding. Hussain argued that this threat involved a public space in which she did not have a privacy interest protected by the other invasion-of-privacy torts. Hussain relied on two cases out of the Dallas Court of Appeals—Floyd v. Park Cities People, Inc., 685 S.W.2d 96 (Tex. App.—Dallas 1985, no writ), and Durban v. Guajardo, 79 S.W.3d 198 (Tex. App.—Dallas 2002, no pet.) to advance her argument. In Floyd, a newspaper published a picture of the plaintiff’s front yard, which included the plaintiff standing on his front porch. At the time the photo was taken, both the yard and the plaintiff had been in full view of the public. The plaintiff’s yard was the subject of controversy and public debate within the town council. The Dallas Court of Appeals held that there was no invasion of privacy because there was no intrusion upon plaintiff’s solitude, seclusion, or private affairs as a matter of law. Hussain argued that the public setting of the wedding, like the Floyd plaintiff’s front yard, was unprotected by her privacy claims, meaning that she could only recover under an IIED theory. The court distinguished Floyd, holding that Patel threatened only to expose Hussain’s private conduct that took place in a private setting, which would be covered by public disclosure of private facts, a theory on which Hussain successfully recovered at trial. Hussain also tried to rely on Durban, in which the Dallas Court of Appeals allowed a plaintiff to maintain both an IIED claim and assault claim for the same set of facts. The court explicitly rejected this reasoning, opining that it runs afoul of the Texas Supreme Court’s pronouncements in Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004).

After sustaining these issues, the court modified the judgment to reduce the amount of damages from $500,000 to $345,000 and affirmed it as modified.

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