Features For June 2016

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

JUDICIAL INTERVIEW SERIES
From Courthouse Runner to Chief Justice: A Profile of Chief Justice Kem Frost, 14th Court of Appeals
by Meredith Parenti, Parenti Law PLLC

ABOR IS DEAD, LONG LIVE PRUDENTIAL
The Texas Supreme Court Resolves the Split of Authority on Mandamus and Dominant Jurisdiction
by Mark Ritchie, Law Office of Mark Ritchie, P.C.

BRINGING LONE STAR LAW TO HOUSTON'S SEVENTH GRADE STUDENTS
by David Furlow

TRENDS IN THE TEXAS SUPREME COURT
by Lynne Liberato, Mark Trachtenberg, & Polly Fohn, Haynes & Boone, LLP

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH
Derek D. Bauman discusses how to link to the record in your electronic brief.

CROSSWORD PUZZLE
by James Marrow

CASE UPDATES FOR APRIL TO JUNE 2016
Case updates for the Houston practitioner
by Andrew C. Nelson, Wright & Close, LLP, and Andrew Raber, 14th Court of Appeals

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

From Courthouse Runner to Chief Justice: A Profile of Chief Justice Kem Frost, 14th Court of Appeals

By Meredith Parenti, Parenti Law PLLC

What led you to consider a career in law?

Growing up I didn’t have any lawyers in my family, but I learned about them early in life. I remember as a young child standing at my father’s side when a Sunday School teacher looked at me and told him, “You have a little lawyer there.” I didn’t know what a lawyer was but the comment so amused my father that I took it as a good thing.

Hanging on the wall of my office is a framed contract that I drafted in the fourth grade. It is typed, signed, stamped “duplicate,” and accompanied by a carbon copy. The official-looking document spells out the rights and obligations surrounding a treasured possession my younger sister wanted to borrow. The contract would be an impressive piece of work except that instead of providing for damages in the event of breach, it says that should my sister violate its terms, the contract is void. (At the time, a law school class covering legal remedies was at least 12 years in my future.) Still, it was a pretty good effort for a ten-year old.

When I was a sophomore in high school, I took a vocational guidance course through First Presbyterian Church. We visited professionals from several fields. One week we went to the Harris County Courthouse to see Judge Wyatt Heard, the father of one of my Lamar High School classmates. (See attached photo.) The visit made quite an impression on me. I knew from at least that point that one day I wanted to be a lawyer and maybe a judge.

During college I got a summer job in downtown Houston working as a runner for Liddell, Sapp, Zivley, Brown & LaBoon (now Locke Lord, LLP), the firm that later would give me my first job out of law school. My main duty as a runner was to file papers at the courthouses. Occasionally, I would get to sit in a courtroom “on call” for firm attorneys in trial. Watching lawyers in action was the best part of the job.

Spending so much time at the courthouse, I got to know every nook and cranny of the building and all the secrets to getting things processed expeditiously. I struck up a good rapport with the clerks who manned the filing windows and the personnel who worked in the County Law Library. Those people were still there when I returned as a new lawyer. (By that time, the County Law Librarian had become a judge and he remembered the friendly runner who daily listened to his stories while making photocopies.) The friendships I formed and the walking-around-knowledge I picked up as a courthouse runner served me well in my early years of practice. Today, as a judge, I work in the same building, now restored to its 1910 glory.

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

While I was in private practice, I worked at two big firms, first as an associate at Liddell, Sapp (now Locke Lord, LLP) for nearly four years and the rest of the time at Winstead, P.C., where I became a shareholder. Neither firm had an Appellate Section while I was there. I enjoyed brief-writing and gravitated toward appellate work, but I spent much more time in trial courts. For most of my 15+ years in private practice I concentrated heavily on injunction work, the legal profession’s counterpart to working in an emergency room. The practice was demanding, fast-paced, and often unpredictable. The same can be said of motherhood. Soon after I started having children, I discovered the unsustainability of having two jobs like that.

My husband and I were blessed with four sons in less than five years (no multiples). The growing demands of motherhood and the crazy pace of the practice prompted me to consider making the move that until then had seemed like such a distant spot on the “someday” horizon. When a vacancy opened up on the Fourteenth Court of Appeals in late 1998, I applied for the position. Then-Governor George W. Bush appointed me to fill it.

I’ve now been a judge longer than I was a practicing lawyer. When I went on the appellate bench, our youngest son was a baby. Last week, he graduated from high school and will be heading to college in August. Becoming a judge when I did was the perfect vocational move. I remain as grateful today as I was then for the opportunities to serve, grow, and contribute that life on the appellate bench provides.

After 15 years as a civil trial and appellate practitioner, 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?

Once I took my place on the court of appeals, I developed a better appreciation for the appellate process. Appellate judging is a fascinating and sometimes surprising phenomenon. Judges come to the appellate bench from different paths and different places, each bringing to the work of the court special gifts, unique perspectives, and idiosyncratic styles. Together, we solve problems. As a team, we are far more effective than any one of us is individually. Though we sometimes disagree, we share a genuine zeal to find the right answer and to reach the right result. The process promises surprises and there have been plenty over the years.

From time to time, there are jurisprudential surprises, too. The peculiar shared-jurisdiction structure of the Houston courts of appeals delivers them regularly. Because the First and the Fourteenth share judicial power in a single ten-county region, when the two courts come down on opposite sides of a legal issue, people and trial courts in the affected districts ostensibly must obey two opposite yet equally binding rules. It makes the law unpredictable in split-of-authority cases and that tends to produce surprises. As a practitioner, I occasionally ran into conflicts between the First and the Fourteenth but until I went on the bench, I did not realize how frequently they occur nor did I fully appreciate the inherent challenges they present.

As the longest-serving member of the Fourteenth Court of Appeals, what significant changes have you seen at the court since your appointment to the bench by then-Governor George W. Bush in 1999?

C.S. Lewis said, “Isn’t it funny how day by day nothing changes but when you look back everything is different.” That’s how I feel when I think about my time at the court.

When I arrived 17+ years ago, the designated author of an opinion would circulate a single draft (printed on yellow paper) to the other panel members, one at a time in order of seniority. Judges would handwrite edits and circulate proposed revisions on a single hard copy. If someone else had the record, you had to wait to review it, and sometimes the record was so big and heavy you had to load the volumes onto a cart to get it to your office. Today, with electronic filing and circulation, panel members can view the record and proposed drafts and revisions simultaneously. We can access and word-search records with the stroke of a key. Now, the hyperlinking of citations in the briefs makes access to the facts and the law nearly effortless. These and other improvements have revolutionized the way the court processes opinions.

One of the best changes to date came in 2011, when the First and the Fourteenth moved into the beautifully restored Harris County 1910 Courthouse, where we now enjoy state-of the-art facilities in historic surroundings. The new place provides fabulous and functional office space for judges and staff as well as majestic public areas. The two courts and the entire appellate community enjoy the advantages of our new home in the splendid old courthouse.

The courts and public also benefit from many other positive changes in technology, docket management, court administration, and general operations, far too many to list. Suffice it to say that today’s judges and court staff stand better-equipped to serve the people of Texas.

What are your favorite aspects of being an appellate justice?

My favorite part of the job is solving problems.

How would you describe your judicial philosophy?

I am a textualist in the tradition of the late, great Justice Antonin Scalia. My judicial philosophy mirrors his.

On what devices (e.g., desktop at the court, remotely from home, hand-held devices) do you prefer to review appellate briefs?

I can access my court computer from work or home. I generally read briefs at my desk, on a computer screen. (Reading briefs under a tree, at the beach, or while lounging in a hammock has never worked for me because a big part of my process is taking notes, making chronologies, reading authorities, and accessing the record– activities that I find easiest to perform at a desk.)

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?

Use boldfaced type and italics sparingly so that it means something when you do.

In your opinion, what distinguishes an effective appellate brief from one that is not?

Good writing.

Do you have any suggestions about how attorneys can improve their written work product in the court of appeals?

Tell the court, in the simplest possible terms, what you want and why you are entitled to it. To maximize clarity, write precisely. Provide context, but do not overwhelm the reader with unnecessary information. Strive for brevity. Invest the time to rewrite, edit, and proofread.

Brief writers can enhance readability by doing these simple things:
  • Use headings and subheadings to give the reader a roadmap. (Make the headings and subheadings parallel so that they tell a story if read in succession.)
  • Use active voice whenever possible.
  • Vary sentence length and complexity.
  • Mind your tenses. (State facts in the past tense and propositions of law in the present tense.)
  • Use short words. Substitute words for phrases. And, eliminate unnecessary words and phrases.
  • Use reader-friendly terms and use them consistently, both for clarity and so that word searches will reveal all relevant points of discussion.
  • Use footnotes sparingly.
  • Omit unnecessary facts and dates.
Most judges find visual aids especially helpful, so when it is feasible, include diagrams, charts, graphs, and photos in the body of the brief.

Do you prefer legal citations in appellate briefs to be contained in the text itself or in footnotes?

As a reader, I prefer citations in the footnotes, but I don’t feel strongly about it and I believe mine may be the minority view. Most lawyers and judges seem to prefer citations in the text, so when writing majority opinions, I generally bow to that preference. But, for my separate writings, I tend to put citations in the footnotes because that makes for a crisper, pithier read.

How do you decide whether to grant oral argument in one of your cases?

I generally find oral argument helpful. For many, oral argument is important for procedural fairness because it provides parties with their “day in court.” The chances of getting a panel to grant oral argument seem to increase when the issue is new or the law is undeveloped. When appropriate, advocates should emphasize the novelty of the issue and point out when the case presents an issue of first impression. Many judges find argument especially helpful in statutory-construction cases. Some lawyers ask for oral argument without giving any reasons. Explaining why oral argument would be helpful is a key first step to getting it. The quality of the briefing usually factors into the decision, too. A good brief suggests the argument is likely to be of the same caliber.

In what ways do you find oral argument helpful or unhelpful?

Oral argument is most helpful when everyone comes to court prepared. Sending a “focus letter” identifying specific issues the panel would like the advocates to address during oral argument seems to improve the experience for everyone.

Do you have any suggestions for how attorneys can improve their performance at oral argument?

The process tends to be most effective when advocates do the following:
  • assume judicial preparation;
  • focus on the points that have the best chance for success;
  • get to the point without spending too much time providing factual context;
  • emphasize and clarify;
  • listen carefully;
  • master the record as well as the holdings and reasoning of key authorities;
  • come prepared to explain what the advocate is asking the court to do and what the impact of the holding would be;
  • clearly articulate the rule the advocate wants the court to apply and explain how the court has the ability to do what the advocate is asking;
  • welcome questions from the bench and answer them without dodging; and
  • maintain credibility by not pushing the law or the facts too far.
What are your interests and hobbies outside of the legal profession?

My biggest interest is being with my family, so to some extent their interests have become mine. My husband is an avid golfer, so I enjoy time with him on the golf course, mostly driving the cart but occasionally swinging a club (really ugly golf.) One son is a music enthusiast and I love watching him perform on drums or guitar. Another son runs cross-country and I enjoy cheering him on. Two other sons really like going new places and I get a kick out of planning interesting and adventuresome vacations for our family.

I like projects and my volunteer work provides plenty of opportunities. It seems I always have a few projects going.

Reading and writing are favorite pastimes. I enjoy reading American history in period prose, especially Presidential biographies. (I like finding accounts of historical events in older sources, written close in time to the event. The writers’ perspectives are interesting and sometimes surprising.) I have a handful of ongoing writing projects, some well underway and some just beyond the planning stages.

I’m a collector and I enjoy hunting for treasures, especially antique and vintage things. I also enjoy genealogy and learning about ancestors. I like piecing their stories together.

Though I’m not artistically gifted, I enjoy being creative and from time to time I dabble in painting, pottery-making, ink drawing, printing/imprinting, and the like. I especially enjoy retrofitting old things (interesting antique finds) for new purposes. I also like designing living spaces.

I especially enjoy unwinding with sisters and friends -- swapping stories, playing Head’s Up!, exploring new eateries, or just hanging out. Some of my best friends today I met in elementary school. There’s something special about lifelong friendships and part of the beauty of being a native Houstonian is having lots of lifelong friends in town.

And, I love taking short vacations – little get-aways that allow you to recharge your batteries without paying too much of a price for taking time off. I’m looking forward to a week-long Frost Family adventure this summer, a quick “sisters trip” to Colorado this fall, and a high school reunion later this year.

Abor is Dead, Long Live Prudential: The Texas Supreme Court Resolves the Split of Authority on Mandamus and Dominant Jurisdiction

By: Mark Ritchie, Law Office of Mark Ritchie, P.C.

Late last month the Supreme Court of Texas issued In re J.B. Hunt Transp., Inc., No. 15-0631, 2016 WL 3159215 (Tex. May 27, 2016), in which the Court conditionally granted relief from an improperly denied plea in abatement. In granting the relator's request for mandamus relief, the Court resolved a split of authority on whether the standard announced in Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985), was still in effect, or had instead been abrogated by In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004).

As wryly observed by Justice Willett, writing for the unanimous court, J.B. Hunt was both figuratively and literally "a case about traffic and jurisdictional lanes." In November 2014, a J.B. Hunt tractor-trailer struck the vehicle occupied by the Real Parties in Interest ("Real Parties"), which had become disabled and entered the tractor-trailer's lane on I-10 in Waller County. A couple of weeks later, J.B. Hunt brought suit against the Real Parties in Waller County, claiming in its petition that the Real Parties' failure to properly maintain and service their vehicle contributed to the mechanical problems that caused the collision and seeking actual and compensatory damages. The Real Parties filed their own suit against J.B. Hunt and its driver in Dallas County shortly thereafter, prompting J.B. Hunt to file a plea in abatement.

J.B. Hunt asserted in its plea in abatement that Waller County had dominant jurisdiction under the first-to-file rule. In response, the Real Parties argued that Waller County did not have dominant jurisdiction was not implicated because the lawsuits were not "inherently interrelated." Alternately, the Real Parties argued that J.B. Hunt was estopped from asserting dominant jurisdiction because it did not have a bona fide intent to prosecute the Waller County suit, and also because of its own inequitable conduct prior to filing suit. The Dallas County court denied J.B. Hunt's plea in abatement, and the Dallas Court of Appeals summarily denied mandamus relief, prompting J.B. Hunt to seek relief from the Texas Supreme Court.

The Court wasted little time finding that the Dallas County trial court abused its discretion, as the lawsuits were inherently interrelated under the compulsory counterclaim rule and the evidence relied upon by the Real Parties fell far short of establishing an exception to the first-filer rule. Having easily found the requisite abuse of discretion, the Court then addressed the broader question of whether the availability of mandamus relief is restricted under the more stringent Abor standard, or instead is determined by reference to the Prudential standard.

Under the stringent standard of Abor, a plea in abatement is an incidental ruling of the court that cannot support mandamus relief unless it "actively interferes with the exercise of jurisdiction" by the other court. Leaving Abor intact would typically preclude the availability of mandamus relief, leading to an inevitable waste of resources "as the case is tried in the wrong court only to be automatically reversed on appeal after judgment." Recognizing the split of authority on whether Abor was still the controlling standard, the Court explicitly held that the more flexible standard announced in Prudential abrogates the inflexible approach of Abor, and thus "a relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a plea in abatement in a dominant-jurisdiction case."

Bringing Lone Star Law to Houston’s Seventh Grade Students

by David A. Furlow

During three months from February 16 to May 17, 2016, the Houston Bar Association became Texas’s first bar association to pilot the Texas Supreme Court Historical Society’s “Teach Texas” program to seventh grade students. Throughout the greater Houston area, volunteer attorneys and judges entered 576 classrooms to teach 9,534 seventh grade students in 28 schools how the Rule of Law came to the Lone Star State. Most volunteers shared stories about their education, practices, and experiences. Almost all answered questions like, “How many years did you go to law school?” and “How much money do lawyers make?” and “Do you have to defend someone you think is guilty?”

Fifth Circuit Judge Jennifer Elrod shared stories of Texas legal history and educational printouts 
(on the wall behind her) with Taming Texas project seventh grade students

Some lawyers presented PowerPoint programs that chronicled the history of Texas law, lawyers, and courts. Others posted flash cards and other teaching tools developed by the State Bar of Texas’s Law Related Education Division. Many read from James L. Haley and Marilyn P. Duncan’s well-written and extraordinarily illustrated seventh grade textbook, Taming Texas: How Law and Order Came to the Lone Star State.

The cover of the Taming Texas judicial civics book

In his foreword to Taming Texas, Texas Supreme Court Chief Justice Nathan Hecht explained the book’s purpose and the Society’s hopes by asking some of the most important questions any jurist can ask:
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 . . . .
The Society provided hardback copies of the book to middle school Texas history teachers and social science administrators free of charge, while making electronic copies available without charge in easy to download e-book formats for Kindle, iBook, and PDF at the Society’s Taming Texas website.

Students, teachers, and school administrators learned from the lawyers and judges who participated in the program. But the lawyers and judges learned, too. Many students demonstrated teachers’ extraordinary efforts to educate them about constitutional rights and duties. They often asked intelligent questions about Stephen F. Austin, Sam Houston, Rosa Parks, Martin Luther King, and the Civil Rights movement.

Fourteenth Court of Appeals Justice Bill Boyce presented a copy of 
the Taming Texas book to Lanier Middle School history teachers. 
Photo by HBA Taming Texas volunteer lawyer Curt Langley, a partner at Jackson, Walker.

Harris County 165th Judicial District Court Judge the Hon. Debra Mayfield 
and her co-presenter Kerry Manning of Shook Hardy & Bacon participate in the pilot-project. 
Photo provided by Hon. Debra I. Mayfield.

Left to right: Vincent Branch, a Texas history teacher at Gregory Lincoln Education Center; 
Texas Supreme Court Associate Justice the Hon. Jeff Brown; 2015-2016 HBA President Laura Gibson (middle); 
Kelton Parker, Texas history teacher at Gregory Lincoln Education Center; 
Warren Harris, former Texas Supreme Court Historical Society President (right). 
Photo by Tara Shockley, HBA Director of Communications.

Sabrina DiMichele of Schick & Copeland LLP teaches seventh grade 
students at Cardiff Junior High in the Katy School District. 
Photo provided by Sabrina DiMichele.

Sponsored and funded by the Fellows of the Texas Supreme Court Historical Society and spearheaded by Society Fellow Warren Harris, the Taming Texas book and its related Civics and History Project introduced Texas’s judicial system to young Houstonians. The Society’s innovative program combined colorful lore about Texas lawyers, lawmakers, judges and courts with specially designed, hands-on classroom activities developed with the assistance of the State’s best history teachers. The first book in a contemplated multi-year series, Taming Texas: How Law and Order Came to the Lone Star State, tells the story of Lone Star Texas law from 1528, when a Karankawa tribal chieftain defended the lives of castaway Spanish conquistadors, through 2016, when HBA’s volunteers identified the Justices of the Texas Supreme Court and Court of Criminal Appeals to the pilot-project’s students and teachers.

The Taming Texas book HBA’s volunteers introduced to Houston area classrooms is the first volume in a series to be published over the next five years. Each volume will focus on a different aspect of the Texas’s legal history: law on the Wild West frontier; the twenty-seven Chief Justices of the Supreme Court; women and Texas law; the evolution of the Texas court system; and similar topics. The series will become a library of colorful narratives that examine the Lone Star State’s judicial history through the lens of the law, providing an important resource for teachers, administrators, and students in seventh-grade Texas history classes.

The Taming Texas judicial civics project proved the wisdom of an important observation by James Grossman, Executive Director of the American Historical Association. “Everything has a history,” Grossman declared. “To think historically is to recognize that all problems, all situations, all institutions exist in contexts that must be understood before informed decisions can be made. No entity—corporate, government, nonprofit—can afford not to have a historian at the table.”

The Teach Texas Committee’s program sent hundreds of lawyers and judges not just to the table but into the classroom. In an outreach effort HBA President Laura Gibson organized through the HBA Teach Texas Committee, teams of volunteer judges and attorneys presented the two-part curriculum in Houston area middle schools from mid-February through mid-May 2016. The Teach Texas program sent hundreds of lawyers and judges not to the table but into the classroom. Students who learn to think historically learn to think critically.

Partnering with the Houston Bar Association, members of the Society’s project team and the State Bar Law-Related Education Department developed a wide-reaching teaching curriculum based on the Taming Texas book. In an outreach effort HBA President Laura Gibson organized through the HBA Teach Texas Committee, teams of volunteer judges and attorneys presented the two-part curriculum in middle schools throughout Houston from mid-February through mid-May.

According to former Texas Supreme Court Historical Society President and Fellow Warren Harris, the HBA rollout was extraordinarily successful. “We were extremely pleased with the success of the Houston pilot project. Anyone interested in volunteering for the second phase of the program should contact the HBA office. We look forward to taking the project statewide next year.”

HBA President Laura Gibson galvanized the Houston legal community to support the project as one of the most important initiatives of her presidency. “She appointed a committee last fall to recruit volunteers and enlist the support of school administrators and teachers,” Mr. Harris observed. “The program took off from there.”

“The Society’s Fellows hoped the judicial civics program would have an impact over time,” said Society Fellows Chair David J. Beck, “but the success of the Houston rollout took us all by surprise.” He noted that the program will be expanded to other school districts in the 2016–2017 school year, with a goal of reaching every middle school in Texas.

The HBA Teach Texas Committee and the Texas Supreme Court Historical Society’s Fellows would like to express their enormous gratitude to the volunteer lawyers, judges, and justices who made the pilot project a success and wish to convey their special appreciation of HBA President Laura Gibson, HBA Executive Director Kay Simms, HBA Director of Education Ashley Steininger, HBA Communications Assistant Ariana Ochoa, and HBA Director of Communications Tara Shockley for their support during phase of the Taming Texas/Teach Texas pilot-project in Houston. A special thank you goes to HBA Director of Projects Bonnie Simmons, who invested an enormous amount of time, energy, and intellect to match HBA volunteers with seventh grade school teachers and classes interested in learning about how the Rule of Law came to the Lone Star State.

Under Warren Harris’s leadership, the HBA Teach Texas pilot project will transform into a state-wide judicial civics project in the 2016-2017 school year. Fourteenth Court of Appeals Justice Brett Busby, Harris County 61st Judicial District Court Judge the Hon. Erin Lunceford, and Houston attorney and Texas Supreme Court Historical Society Journal Executive Editor David A. Furlow comprise the current, 2016-2017 Co-Chairs of the HBA Teach Texas Committee.

BA Teach Texas Committee Co-Chairs Warren Harris (upper left); 
Harris County 61st Judicial District Court Judge Erin Lunceford (upper middle); 
Fourteenth Court of Appeals Justice Brett Busby (upper right); 
and Texas Supreme Court Historical Society Journal Executive Editor David A. Furlow (lower middle). 
Photo by Ariana Ochoa, HBA Communications Assistant.

HBA volunteers Daryl Moore (standing at chalkboard) and Joann Storey (back to camera) 
taught the last Taming Texas class at Cornerstone Academy Middle School, Spring Branch ISD. 
They and their students had a great time. Photo by David A. Furlow.

Trends in the Texas Supreme Court

By Lynne Liberato, Mark Trachtenberg & Polly Fohn, Haynes and Boone, LLP

Evaluating trends in the Texas Supreme Court is reminiscent of the parable of the blind men and the elephant. Each one felt a different part of the elephant to learn what it was like. When they compared notes, they found that they completely disagreed.

As lawyers, we tend to “feel” the part of the Court’s jurisprudence that affects us most. So, for example, the Court has issued several workers compensation-related cases in the past couple of years but mention of them seldom turns up in the speeches and articles about significant cases directed to civil appellate lawyers. A “trend” is in the eye of the beholder.

So, we approach this evaluation of trends with the caveat that these are not “the” trends but some patterns as viewed by one set of appellate lawyers.

Anti-SLAPP (Anti-Strategic Lawsuits Against Public Participation)

Much of the Court’s work involves statutory interpretation. One of the statutes the Court has recently focused on is the anti-SLAPP statute, which authorizes a defendant to move to dismiss a claim involving the exercise of the right to free speech upon a showing that the communication was made in connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE § 27.001. Enacted in 2011, the Court frequently has clarified procedures to bring and defend against an anti-SLAPP motion to dismiss. No doubt more anti-SLAPP cases will find their way to the Supreme Court’s docket during the next few years.

While the purpose behind anti-SLAPP legislation appears directed at protecting First Amendment rights in defamation cases, the Court has interpreted what constitutes “public interest” broadly. The Court has noted the open-ended language in the statute extends anti-SLAPP to private as well as public communications.

So, in Lippincott v. Whisenhunt, the Court determined that a nurse’s suit for defamation arising out of disparaging e-mails sent by hospital administrators relating to the nurse’s work were covered by the anti-SLAPP statute. 462 S.W.3d 507, 509-10 (Tex. 2015). Because the act encompasses both public and private communications and health care services are a matter of public concern, the defendant hospital could file an anti-SLAPP motion to dismiss.

As for anti-SLAPP procedure, the process begins when a defendant files a motion to dismiss applying the test set forth in the statute. If the Court determines that the case is meritless, the lawsuit is dismissed and fees and potential sanctions are awarded against the filing party.

In In re Lipsky, the Court allowed the party defending against a motion to dismiss to rely on circumstantial evidence to make its required showing of a prima facia case to avoid dismissal. 460 S.W.3d 579, 589-91 (Tex. 2015). In Sullivan v. Abraham, the Court addressed the award of attorneys’ fees in an anti-SLAPP case. -- S.W.3d --, 2016 WL 1513674, at *4 (Tex. 2016). It held that the trial court has the discretion to determine whether a fee award is “reasonable,” but it cannot adjust the award based on “justice and equity.” Id.

For a thorough analysis of the anti-SLAPP statute, see Prather & Bland, “Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas,” 47 Tex. Tech. L.R. 725 (2015).

Public Information Act

The Court also has directed its attention to the Texas Public Information Act, the state equivalent of the Freedom of Information Act. The Court held favorably both for requestors and for parties seeking protection from disclosure. So, in Kallinen v. City of Houston, the Court gave requestors the option to bypass the attorney general and act on their own by filing suit challenging refusal of a governmental authority to produce information. 462 S.W.3d 25, 27-29 (Tex. 2015). Then, in Boeing v. Paxton, it extended protections from disclosure by giving private parties standing to protect competitively sensitive information. 466 S.W.3d 831, 839 (Tex. 2015). In Greater Houston Partnership v. Paxton, it clarified that private entities are only covered by the Act if they are “sustained” by public funds. 468 S.W. 3d 51, 61 (Tex 2015).

Premises Liability

Recently, the Court has addressed multiple cases involving premises liability. In one case, it determined that employers owe employees the same premises liability duty that other landowners owe to their invitees. That duty is to either make the premises safe or warn invitees of concealed dangers. Generally, the landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee. Austin v. Kroger, 465 S.W.3d 193, 202-04 (Tex. 2015).

In another case, it determined that a prior property owner is not liable under a negligent activity theory. Occidental Chem. v. Jenkins, 478 S.W.3d 640, 644, 647-48 (Tex. 2016). And, in a case of first impression, the Court found that lack of consent is an element of trespass, not an affirmative defense. Envtl. Processing Sys. v. FPL Farming, 457 S.W.3d 414, 425 (Tex. 2015). A final, but not exhaustive example is Abutahoun v. Dow Chemical Co., 463 S.W.3d 42 (Tex. 2015). In it, the Court held that the limitations on liability in Chapter 95 of the Civil Practice and Remedies Code may apply to an independent contractor’s negligence claims against a property owner, even when the claims are based on injuries arising out of the property owner’s negligent activities and not the independent contractor’s own work.

Insurance

The Court was generally, but not always, favorable to carriers in insurance coverage cases. In a decision favorable to the insured, it determined that Superfund proceedings by the EPA are a “suit” for purposes of triggering the duty to defend. McGinnes Indus. Maint. v. Pheonix Ins., 477 S.W.3d 786, 787 (Tex. 2015). It also determined that the insured tow truck driver may recover loss-of-use damages in total destruction cases. J & D Towing, LLC v. Am. Alternative Ins. Corp., 478 S.W.3d 649, 676 (Tex. 2016). In a case favorable to insurance companies, it excluded from coverage damage caused by both wind and water, based on certain clauses in the insurance policies. JAW The Pointe v. Lexington Ins. Co., 460 S.W.3d 597, 608 (Tex. 2016). And in In re Deepwater Horizon it answered “no coverage” to a certified question from the Fifth Circuit that asked if BP had coverage derived from sub-contractor TransOcean’s carriers. 470 S.W.3d 452, 455-56 (Tex. 2015).

Employment Cases

The Court has considered a number of employment cases, which is not a surprise given the sheer number of employment cases that are filed.

The Court appears generally favorable to employers, although not always so. For example, the Court found that a worker was in the course and scope of his employment when driving to a remote location and thus his widow was entitled to workers compensation benefits. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 643-45 (Tex. 2015). Conversely, the Court determined in a sexual harassment suit that no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 138 (Tex. 2015).

In two whistle blower suits, the Court determined that the statutory procedural requirements governing when whistle blowers must report challenged wrongdoing is strictly construed, and that report must be made to someone with “outward looking” law enforcement authority, not a supervisor with power only to oversee internal compliance. See Office of Att’y Gen. v. Weatherspoon, 472 S.W.3d 280, 282-83 (Tex. 2015); McMillen v. Tex. Health & Human Servs. Comm’n, -- S.W.3d --, 2016 WL 766799, at **1-3 (Tex. Feb. 26, 2016).

Arbitration

The Court continues to make vacating awards challenging. Most recently, in Hoskins v. Hoskins, the Court held that the Texas Arbitration Act sets out the exclusive grounds for vacating arbitration awards arising from agreements governed by that statute, and that common law vacatur grounds are no longer viable. -- S.W.3d --, 2016 WL 2993929, at *7 (Tex. May 20, 2016). The Court also has continued to enforce arbitration clauses against parties attempting to avoid arbitration in these recent cases: Royston Rayzor v. Lopez, 467 S.W.3d 494, 499-506 (Tex. 2015), where the Court enforced an arbitration agreement in an attorney-client contract that excluded claims made by the firm for recovery of its fees and expenses; G.T. Leach v. Sapphire, 458 S.W.3d 502, 519-22 (Tex. 2015), where the Court determined that the arbitrator, not the Court, decides procedural arbitrability issues; and Richmont Holding v. Superior Recharge Sys., 455 S.W.3d 573, 574-76 (Tex. 2014), in which the Court determined that a party did not waive the arbitration clause despite taking several actions in the trial court, including filing a cross action, moving to transfer venue, engaging in minimal discovery and delaying moving for arbitration.

Health Care

The Court has been reviewing statutes that impose procedural hurdles for plaintiffs in health care liability cases. It drew a line at injuries sustained in common areas in determining coverage by Chapter 74, the Texas Medical Liability Act (TMLA). Thus, the Court decided that a plaintiff suing a hospital for a slip and fall in an elevator lobby was not covered by the TMLA. Ross v. St. Lukes, 462 S.W.3d 496, 501-05 (Tex. 2015). The Court explained that there must be more of a relationship to health care than that the occurrence happened in a hospital. Id. at 504. The effect here was that the plaintiff was not required to obtain an expert report before filing suit. The fact patterns were similar in Reddic v. E. Tex. Med. Ctr. Reg’l Health Care, 474 S.W.3d 672 (Tex. 2015) and Galvan v. Mem’l Hermann Hosp. Sys., 476 S.W.3d 429 (Tex. 2015).

More recently, the Court found that a claim for post mortem fraud was a health care liability claim. Christis Health Gulf Coast v. Carswell, -- S.W.3d --, 2016 WL 2979718, at **4-6 (Tex. May 20, 2016). In this case, the effect of that determination was that a claim that the hospital began covering up deficient health care immediately following a patient’s death was barred by the act’s two-year statute of limitations provision. Id. at **7-8.

Procedure

Understandably, the Court continues to decide multiple procedural cases. Two of the most talked-about cases by the appellate bar concern jury charges.

In one, the Court determined that objections to a spoliation instruction that were not asserted at the charge conference were preserved in a pretrial response to a motion for sanctions. Wackenhut v. Gutierrez, 453 S.W.3d 917, 919-20 (Tex. 2015). That case followed a decision in 2014 that determined that as long as the parties have a “reasonable time” to review and object to the charge, the trial court has authority to set a deadline for charge objections that falls before the reading of the charge to the jury. King Fisher Marine v. Tamez, 443 S.W.3d 838, 845 (Tex. 2014).

In another procedural issue of interest to appellate lawyers, the Court held that an award of disgorgement does not need to be superseded on appeal. In re Longview Energy Co., 464 S.W.3d 353, 361 (Tex. 2015). This means that a potentially enormous judgment could get appealed with no bond.

While courts generally avoid interfering with rulings by trial judges during the course of a trial, the Supreme Court granted mandamus relief after a trial judge refused to exclude a corporate representative from portions of a temporary injunction hearing at which trade secret testimony was presented. In re M-I L.L.C., -- S.W.3d --, 2016 WL 2981342, at **3-8 (Tex. May 20, 2016).

Summary Judgment

Given how often grants of summary judgment are appealed, multiple cases address summary judgment standards and procedures. The law of summary judgment is mostly settled, but the Court continues to tweak the law. For example, in Farm Bureau Cty. Mut. Ins. Co. v. Rogers, the Court noted that even an order styled as one denying a motion for summary judgment can be final, noting that “the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties.” 455 S.W.3d 161, 163 (Tex. 2015). However, it found that the order before it was not final because neither the language in the judgment taxing court costs nor a Mother Hubbard clause disposed of the parties’ claims for attorney’s fees. Id. In Greene v. Farmers Insurance Exchange, the Court indirectly approved of language for severing issues and parties dismissed by a motion for partial summary judgment, thereby making that portion of the case final and appealable. 446 S.W.3d 761, 764 n.5 (Tex. 2014).

Energy

It is difficult to define “Energy” cases. But, narrowing the analysis to cases that could be classified as traditional oil and gas cases, the Court continues to consider important issues such as how to calculate royalty and overriding royalty interests, the treatment of production payments and the role of industry custom in interpreting written agreements. For example, in Chesapeake Expl., L.L.C. v. Hyder, 483 S.W.3d 870, 873-76 (Tex. 2016), the Court interpreted a contractual overriding royalty provision as being free from post-production costs. The Texas Oil and Gas Association has warned that the Court’s interpretation could “throw into dispute thousands of royalty provisions in oil and gas leases and overriding royalty instruments throughout Texas.” In Apache Deepwater, LLC v. McDaniel Partners, -- S.W.3d --, 2016 WL 766731 (Tex. Feb. 26, 2016), the Court held that termination of an oil and gas lease also extinguishes any production payment (or similar overriding royalty) created in an assignment of the lease. And in Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445, 454 (Tex. 2015), the Court concluded that “industry custom cannot impose obligations beyond those within the [parties’] written agreement.

Plaintiffs v. Defendants

What constitutes a plaintiffs’ case can be hard to categorize. But, in a study of Texas Supreme Court cases performed by plaintiffs’ lawyer Jay Jackson, he reports that in 2015, the plaintiff won 36% of the time and the defendant won 57% of the time. Four opinions were split between the two. He further narrowed the analysis to 49 cases that are more likely to be divided by tort or tort-like cases (wrongful death, DTPA, fraud, insurance, whistleblower, etc.). Among those cases, the plaintiff won 31% of the time and the defendant 69% of the time. Compared to his earlier studies, he notes that there has been a narrowing between plaintiffs’ and defendants’ wins by about a third. See “Trends in the Texas Supreme Court,” Advanced Trial Strategies Course, State Bar of Texas (2016).

Conclusion

Looking for trends in the Supreme Court requires more conjecture than fact. The Court can only hear cases that are brought before it. So, when there is a new, significant statute such as anti-SLAPP, application of that new law will create a “trend.” To be sure, the only thing that is certain is that the Court focuses on cases that it considers important to the State. The substantive mix of those cases is often driven by advocates and the actions of the Legislature, not the Court itself.

Lynne Liberato, Mark Trachtenberg and Polly Fohn are appellate lawyers in the Houston office of Haynes and Boone.

Did you know . . . ?

By JoAnn Storey

There is no right to an interlocutory appeal of an order granting or denying a special appearance in a suit brought under the Family Code. Tex. Civ. Prac. & Rem. Code § 51.014(a)(7). The court on appeal has no jurisdiction to entertain an interlocutory appeal in such cases. CHEK Investments, L.L.C. v. L.R., 260 S.W.3d 704, 706 (Tex. App.—Dallas 2008, no pet.) (dismissing interlocutory appeal challenging denial of special appearance in family-law matter).

Mandamus is the appropriate vehicle for challenging the grant or denial of a special appearance in a suit brought under the Family Code. See Knight Corp. v. Knight, 367 S.W.3d 715, 730 (Tex. App.—Houston [14th Dist.] 2012, no pet.); In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]).

Practice tip: If you mistakenly perfect an interlocutory appeal challenging the grant or denial of a special appearance in a family-law matter, ask the court to convert the appeal to a mandamus proceeding as opposed to dismissing the appeal. See In re J.P.L., 359 S.W.3d 695, 703 (Tex. App.—San Antonio 2011, pet. denied).

AppellaTech: Linking to the Record in Briefs

by Derek D. Bauman

A couple of years ago, I spent some time discussing how to automate some processes of writing a brief in MS Word. I ended with some instructions that would allow you to convert the brief into PDF so that headings would be converted into internal hyperlinks. I've decided it's time to revisit the subjects of Word documents, PDFs, and hyperlinks. But this time I would like to focus on ideas for hyperlinking to sources outside of the brief. For this post in particular, I want to discuss hyperlinking to the record.

To cut to the chase, there are not really any great options for hyperlinking to the record. In fact, I don't believe there is any good way of doing this from MS Word and only one semi-decent option of doing this from Adobe Acrobat. Notice I didn't say Adobe Reader. You'll need the full-blown version of Adobe Acrobat if you have any hopes of hyperlinking your record citations to actual portions of the record.

I'd like to discuss why I believe there is only one viable option for hyperlinking to the record. For those of you who don't really care why but want to know how to do it, click here to go straight to those details.

In general, hyperlinks can be used for three general purposes: (1) linking to a point within the document (or web page, etc.), (2) linking to a web address, or (3) linking to a file already on that computer or a server. I'll address these in backwards order.

When you think of linking to the record in the abstract, you probably think of adding a hyperlink to the file(s) that contain the clerks records and the reporter's record. The judge reading your brief would click on the link for the record citation and the portion of the record you cite to would instantly appear in a PDF document on the judge's computer. To a certain extent, this sounds perfect.

What you're likely thinking about in this abstract idea is hyperlinking to a document that is on a computer or server. In order for that to work, however, you have to know the exact location of that file on that particular computer. In order to create the hyperlink, you will necessarily have to link to where you have the file on your computer. As I expect you already see, there's no reason to believe that the judge will have the record stored in the same location on his or her computer. If the file isn't in the same place when the link is clicked, the user only gets an error message. I suppose you could include instructions in your brief on where the judge should store certain files so that your hyperlinks will work, but that's not likely to happen. So hyperlinking to a file on the computer is not an option.

Another option is storing a copy of the clerk's record or reporter's record on a website such as your firm's website. (For a number of reasons, the case records are not accessible online from the appellate court's websites.) Technically, this is possible to do. But I want to make a special point of arguing that you should never use this option.

As I expect you already know, the judges and staff at any court operate under a code of confidentiality. The court does not reveal its internal thought processes and takes pains to make sure that those processes are not revealed to the public. Hosting copies of the clerk's record and reporter's record on your own website threatens that confidentiality. It is entirely possible to be able to monitor when a document on your website is accessed and even what portions of the document were accessed. This means that if your brief linked to a copy of the record that you were hosting, you could potentially find out when court personnel were accessing the record, what portions they were accessing, and how often various portions were accessed. The court would be revealing at least some of its internal thought process to you.

Now certainly you, dear reader, would never do such a thing to compromise the court's confidentiality. I assure you, your honor remains unimpugned. But undoubtedly someone will. And the problem is that no one other than the party hosting the document on its website would know if any monitoring is taking place. The courts would have no method of knowing which documents were being monitored and which were not. It is not a risk worth taking for the courts. And if the courts cannot click on your links for fear of confidentiality violations, then your links have become effectively worthless.

So we are left with linking to a point within the document that holds your brief. This has its own limitations. If you had hoped for your links to go pages within the entire clerk's record and reporter's record, then that means that your brief, the clerk's record, and the reporter's record must all be contained within the same electronic file. The main problem with this approach is that you will, in most cases, exceed the size limit for electronically filed documents. If you have to split the documents apart, your links won't work.

The only real alternative, then, is to have excerpts of the record attached to your brief. Then your links to the record will link to each excerpted point. The Texas Rules of Appellate Procedure already require you to include an appendix containing the relevant documents from the record, so the only step you'll have to add is to create the links. Depending on the number of pages you want to reference in your excerpts of the record, there's still a chance that putting your brief and the appendix together in one document will still exceed the file size. In that event, your only remaining option is to decide which excerpts are the most important, include those in the file containing your brief, and only be able to link to those portions of the record. It may not be ideal, but it's the only real option currently available to you.

After that explanation, let's begin the instructions on how to do it. As I mentioned, you can only create these links in Adobe Acrobat with a PDF version of your brief. Technically, it is possible to set all this up in MS Word, but it's very difficult and time consuming. It's not worth your time.

The first step is to convert your brief into a PDF document.

Second, put together your excerpts in the order you want them. These will need to be in PDF format as well. You can either have a separate document for each excerpt (plus cover page) or you can have the entire appendix already fashioned into one document. If the excerpt file(s) are not already formatted with text recognition, you should take the time to do that. (In Acrobat, click on "Tools," then "Text Recognition," and then "In This file." Follow the instructions from there, and save when you're done.)

Third, merge all of your documents into one PDF. (This article explains how to do that.) Be sure to save that file.

Fourth, go through each of the record citations in your brief, and create the links. (The same article explains how to do that as well.)  Notice you get some option for the appearance of the links. Play around with the options to see which you think is best. Personally, I prefer the Link Type to be visible and the Line Style to be underlined.

Fifth, if you want to remove or change a link, click on "Tools," then "Content Editing," and then "Add or Edit Link." From there you can edit or delete the links you've created by right clicking on the link and selecting the desired option.

Last, save and test out the links to make sure everything is working the way you want.

It's worth pointing out that the article I linked to on how to merge the documents and create the links also recommends a couple of Adobe Acrobat extensions you can purchase that makes creating and editing links even easier. If you plan on regularly linking your record cites to record excerpts, you might consider purchasing one of them.

Once you have this process down, you might consider using it for another purpose. When writing a brief, it is sometimes necessary to refer to an argument you have made in a different part of the brief. Writers commonly use phrases such as "as argued above" or "as is discussed further below." Links could be useful for you there. You could make it easier for the reader to reference those sections by putting a link in your PDF to those sections.

You are now another step closer to a professionally made, user-friendly, electronic brief. Next issue, I'll explore options for creating links for legal citations.

Crossword Puzzle

by James Marrow, Hogan & Hogan

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

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

Click to view regular size.

Case Update for April to June 2016

By Andrew Nelson, Wright & Close, LLP; Andrew Raber, 14th Court of Appeals

FIRST COURT OF APPEALS

Medina v. Raven, No. 01-14-00881-CV, 2016 WL 1388949 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.)

Deemed admissions may be “undeemed” upon a showing of good faith and no undue prejudice. When deemed admissions are merits-preclusive, good cause exists absent bad faith or callous disregard of the rules by the party seeking the withdrawal.


Plaintiff Medina sued Raven for injuries sustained in a car collision. Raven sent requests for admission to Medina via her counsel in February 2014. Some of the requests asked the plaintiff to admit that Raven was not at fault, admit that she was not injured in the collision, and admit that the driver of the car in which Medina rode was negligent. Although there was some uncertainty regarding whether the admissions went to counsel’s correct address, counsel ultimately received the requests and prepared responses. Counsel sent responses to Raven’s counsel, but more than thirty days after receiving the requests. Medina subsequently changed counsel.

In June 2014, Raven filed a motion for summary judgment based on the deemed admissions. Medina filed a response outlining the fact that she had responded to the requests, but did not file a motion to undeem the admissions. The trial court ultimately deemed the admissions and granted summary judgment.

Medina filed a motion for new trial asking to undeem the admissions. The trial court denied the motion.

The First Court began by noting that a trial court’s decision to permit or deny withdrawal of deemed admissions is reviewed for abuse of discretion. Raven cited another case from the First Court, Cleveland v. Taylor, 397 S.W.3d 683, 695 (Tex. App.—Houston [1st Dist.] 2012, pet. denied), for the proposition that failure to seek to undeem admissions prior to a motion for new trial constitutes waiver of the ability to challenge on appeal. The First Court distinguished that case, noting that, despite being given the opportunity to respond to the admissions, counsel refused to answer a number of requests. On the other hand, Medina did not refuse to answer the requests, but simply responded to them late.

The court next recognized that due process concerns are implicated when merits-preclusive admissions are deemed. While the Rules require a showing of good cause and no undue prejudice before admissions can be undeemed, the court noted that good cause will exist where there is no bad faith or callous disregard of the rules. In the case before it, neither Medina nor her counsel showed bad faith in responding to the admissions late. Additionally, Raven’s counsel had the admissions for several months before seeking summary judgment, so there was no unfair prejudice wrought by the late responses. Accordingly, the court held that the trial court should have granted Medina’s motion for new trial, and reversed and remanded the cause to the trial court.

Zhao v. XO Energy, LLC, No. 01-15-00937-CV, 2016 WL 2587039 (Tex. App.—Houston [1st Dist.] May 5, 2016, no pet.)

A temporary injunction ordering a defendant to deposit money into the court’s registry during the pendency of a lawsuit is not reviewable via interlocutory appeal, but is reviewable by petition for writ of mandamus.


Zhao, the defendant in an underlying lawsuit, was ordered to deposit over $500,000—funds whose ownership was being challenged in the suit—into the court’s registry during the pendency of the suit. The district court styled its order as a “temporary injunction.” Zhao filed an interlocutory appeal of the temporary injunction. When the plaintiff moved to dismiss the appeal for want of jurisdiction, Zhao filed a petition for writ of mandamus challenging the same order.

Via its motion to dismiss, the plaintiff argued that “the requirement that Appellant deposit funds in the court registry is not injunctive relief but rather attachment relief that cannot be addressed in an interlocutory appeal.” Zhao responded that, in the trial court, the plaintiff specifically sought a temporary injunction, even noting that it was not seeking a writ of attachment.

The First Court, performing its own research, noted that “most, if not all” interlocutory appeals involving challenges to deposit money into the court registry have been dismissed for want of jurisdiction, regardless of how the order is titled. The court cited a lengthy collection of case law indicating that such orders are not actually temporary injunctions, and therefore do not invoke the jurisdiction of the interlocutory appeal statute. The First Court agreed, dismissing Zhao’s appeal for want of jurisdiction.

However, the court ruled that it could review the order on mandamus. The court noted that a trial court may order money to be deposited into the registry either by issuing a writ of attachment or by using its inherent authority. The court held that the trial court’s ruling was not a writ of attachment and instead characterized the order as signed pursuant to the court’s inherent authority. The First Court held that the trial court did not abuse its discretion in finding that the funds were at risk of being lost or depleted, and denied the petition for writ of mandamus.

FOURTEENTH COURT OF APPEALS

In re DLS, L.L.C. A/K/A D&L Salvage, L.L.C., ___ S.W.3d ___, No. 14-16-00265-CV, 2016 WL 1613236 (Tex. App.—Houston [14th Dist.] April 21, 2016, orig. proceeding).

When filing suit under the Jones Act, Tex. Civ. Prac. & Rem. Code § 15.0181(e) does not limit a party to filing in the county where the party resided at the time the cause of action accrued in cases involving an out-of-state defendant.

In a novel issue regarding section 15.0181(e)’s construction, the Fourteenth Court of Appeals examined dueling interpretations of the mandatory venue statute to determine whether venue was appropriate in Harris County, where the suit was filed, or Montgomery County, where the plaintiff resided.

Real party-in-interest Daniel Foret sued relator DLS, LLC in Harris County under the Jones Act for injuries allegedly incurred in Louisiana inland waters. DLS filed a petition for writ of mandamus seeking to transfer venue of the case to Montgomery County and vacate the trial court’s order denying DLS’s motion to transfer venue. Foret argued that venue was proper in Harris County because Foret did not reside in Galveston County when the cause of action accrued. The parties disagreed as to the proper construction of section 15.0181(e), which provides:

(e) if all or a substantial part of the events or omissions giving rise to the claim occurred on inland waters outside this state . . . , the suit shall be brought:
(1) in the county where the defendant’s principal office in this state is located if the defendant’s principal office in this state is located in a coastal county;
(2) in Harris County unless the plaintiff resided in Galveston County at the time the cause of action accrued;
(3) in Galveston County unless the plaintiff resided in Harris County at the time the cause of action accrued; or
(4) if the defendant does not have a principal office in this state located in a coastal county, in the county where the plaintiff resided at the time the cause of action accrued.

Foret argued that subparagraphs (1) through (4) are independent options within a mandatory venue statute, (e)(2) and (4) are both available to him to select, and that he properly selected (e)(2). DLS argued that (e)(1) through (3) apply where the defendant has a principal office in Texas located in a coastal county and only (e)(4) applies where a defendant has no such office.

Although the court agreed that DLS’s reasoning made sense, it concluded that the organization of the statute favored Foret’s interpretation and the court was not at liberty to correct the work of the Legislature. By rejecting DLS’s interpretation of the statute, the court also rejected the San Antonio Court of Appeals’ interpretation of the statute. See In re Atlantic Sounding Co., Inc., No. 04-15-00407-CV, 2015 WL 8386363, at *3 (Tex. App.—San Antonio Dec. 9, 2015, orig. proceeding). The Court reasoned that the San Antonio Court of Appeals’ interpretation was incorrect because it impermissibly added language to subsection (e)(2)’s unambiguous terms. The phrase “if the defendant does not have a principal office in this state in a coastal county” does not appear in subsections (e)(1)-(3). Section 15.0181(e)(2)’s plain language allows a plaintiff to establish venue in Harris County regardless of whether the defendant has a principal office in this state located in a coastal county. The court, therefore, denied DLS’s petition for writ of mandamus.

Pablo Rion y Asociados, S.A. de C.V. v. Dauajare, No. 14-15-00611-CV, 2016 WL 2744749 (Tex. App.—Houston [14th Dist.] May 10, 2016, no pet. h.).

A trial court has the discretion whether to include a “return-jurisdiction provision,” allowing the plaintiff to reinstate the case in the original forum if the foreign forum becomes unavailable, when setting the terms and conditions of an order dismissing a case on forum non conveniens grounds.

In another case of first impression, the Fourteenth Court of Appeals examined whether a trial court is required to include a return-jurisdiction provision in an order dismissing a case under the equitable doctrine of forum non conveniens. Including such a provision would allow the plaintiff to reinstate the case in the original forum should the foreign forum become unavailable.

Pablo Rion y Asociados, S.A. de C.V. (“PRA”) initiated a lawsuit in Fort Bend County by suing the Dauajares for breach of contract, quantum meruit, and fraud. The allegations focused primarily on the breach of an agreement that was negotiated and expected to be performed in Mexico. The Dauajares moved to dismiss the case on the basis that Mexico was a more convenient forum, but the trial court denied their motion. The Dauajares sought relief through a petition for writ of mandamus. The appellate court conditionally granted the petition and ordered the trial court to dismiss the case on forum non conveniens grounds.

When the parties returned to the trial court, the Dauajares moved for entry of an order dismissing the case. PRA requested the trial court to include a return-jurisdiction provision, but the trial court denied PRA’s request. PRA appealed, claiming the omission of a return-jurisdiction provision constitutes an abuse of discretion per se.

Although no Texas courts had spoken on this issue, the Texas Supreme Court had at least acknowledged the existence of return-jurisdiction provisions. In re Pirelli Tire, L.L.C., 247 S.W.3d 670 (Tex. 2007) (orig. proceeding) (plurality). In its analysis of Pirelli, the Court of Appeals noted the Supreme Court’s choice of the permissive word “authorizes,” which indicates the provision is discretionary, rather than mandatory.

The analysis did not end with Pirelli, however, as that case involved a statutory application of forum non conveniens, rather than the common law. And because no Texas court has ever held as a matter of Texas common law whether return-jurisdiction provisions are discretionary or mandatory, the court looked to the approaches taken by federal courts.

Whereas the Fifth Circuit adopted a bright-line rule that requires the inclusion of a return-jurisdiction clause, the Ninth and Tenth Circuits chose not to create a mandatory requirement. Those circuits adopted a discretionary approach that allows the trial court discretion to determine whether including the clause is necessary.

The Court of Appeals concluded that the discretionary approach was warranted because the plaintiff can still receive adequate protections that the defendant will cooperate in the foreign forum. For example, the trial court can order the defendant to submit to personal jurisdiction in the foreign forum, to waive limitations defenses, to agree to discovery, and to agree to the enforceability of the foreign judgment. Because the trial court in this case was given no justifiable reason to doubt that the case could be resolved fairly in Mexico, the Court of Appeals held that the trial court did not abuse its discretion by refusing to include a return-jurisdiction provision that would enable PRA to reinstate its case in Texas.

Auzenne v. Great Lakes Reinsurance, PLC, ___ S.W.3d ___, No. 14-15-00159-CV, 2016 WL 2758615 (Tex. App.—Houston [14th Dist.] May 10, 2016, no pet. h.).

A party must obtain a judgment establishing the insured’s liability before bringing an action directly against the insurer to recover no-fault medical expense insurance benefits.

This case involves a matter of first impression in Texas regarding a party’s ability to sue an insurer as a third-party beneficiary to recover no-fault medical expenses without first obtaining a judgment against the insured.

Auzenne alleged in his petition that he slipped and fell at a Snowflake Donuts store and his injuries caused him to incur several thousand dollars in medical expenses. Snowflake Donuts was insured under a commercial policy with Great Lakes Reinsurance, PLC at the time. Auzenne alleged that Snowflake Donuts’ policy includes a “medical payments clause” that requires Great Lakes to pay medical expenses of anyone who is injured on the property regardless of fault. Auzenne proceeded to send his medical bills and records directly to Great Lakes and requested Great Lakes reimburse him under the insurance policy. After Great Lakes refused to reimburse Auzenne’s medical expenses, he filed suit, alleging, among other claims, breach of contract.

Great Lakes filed a motion to dismiss the lawsuit under Tex. R. Civ. P. 91a. In his response, Auzenne argued that as a third-party beneficiary, he has standing to sue without first obtaining a determination of Snowflake Donuts’ liability. The trial court granted Great Lake’s motion to dismiss, and Auzenne appealed.

The Fourteenth Court of Appeals analyzed whether the prohibition on direct actions by an injured third party against an insurer applies to claims brought under a “medical payments” provision in an insurance policy requiring the insurer to pay medical expenses of anyone injured on the subject property regardless of fault.

The majority first addressed the no-direct-action rule, which generally prohibits suit against the insurer until the liability of the insured has been established. See Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). The majority rejected Auzenne’s argument that claims under a no-fault medical payments coverage clause should be treated differently. Citing Texas courts’ consistent refusal to make exceptions to the rule based on the types of claim brought or the status of the parties bringing them, the majority concluded that there is no authority indicating that the medical payments coverage clause negates the applicability of the general rule.

The majority also rejected Auzenne’s third-party beneficiary argument. Auzenne argued that as a third-party beneficiary of the insurance policy, he was not required to obtain a judgment establishing Snowflake Donuts’ liability before bringing an action directly against the insurer. Taking as true the allegation in Auzenne’s petition that the insurance policy contained such a clause, the majority concluded that Auzenne did not overcome the bar to direct actions against the insurer. The court also found that Auzenne failed to rebut the strong presumption against a finding of third-party beneficiary status. The majority affirmed the trial court’s order granting Great Lakes’ motion to dismiss.

In her dissent, Justice Jamison concluded that dismissal under Rule 91a was inappropriate. In her view, the majority held that Auzenne must obtain a liability finding against Snowflake Donuts, even though, as pleaded, Auzenne was not required to establish liability to be entitled to recoup medical expenses under the insurance policy. Justice Jamison distinguished the cases relied on by the majority, stating that none of the cases involved a medical payments provision in an insurance policy. Under this provision, the issue is not whether the property owner was liable, but whether the claimant is a third-party beneficiary of the policy.

Justice Jamison cited a line of cases from various jurisdictions holding that a plaintiff’s right to directly sue the insurer rests not on whether the state authorized direct actions against a tortfeasor’s insurer, but rather on whether the plaintiff was a third-party beneficiary of the contract providing for medical payment benefits—in other words, a contract-based, rather than tort-based remedy. Justice Jamison concluded that, taking the allegations in his petition as true, Auzenne did not fail to state a cause of action. He, therefore, should have had the opportunity to establish his third-party beneficiary status and his right to sue the insurer directly in contract, as opposed to bringing a lawsuit to recover damages for the insured’s negligence.

Auzenne has filed a motion for en banc reconsideration.

Upcoming Luncheons [Updated]

July 14

“Lessons Learned from the Deepwater Horizon: Appellate Practice Within the Context of Major Multidistrict Litigation,” by Alan York (Godwin PC), Reagan Simpson (Yetter Coleman), moderated by David Gunn (Beck Redden)
RSVP deadline: noon on Monday, July 11
CLE: 1.0 hour


August 11

“Supersedeas Reform: How’s That Working for You?,” by Kevin Jewell (Chamberlain Hrdlicka); Elaine Carlson (South Texas College of Law)
RSVP deadline: noon on Monday,August 8
CLE: 1.0 hour


September 15*

“Traditional, Pragmatic, and Theory-Driven Judging: Are There Such Things and Which Would You Choose,” by Hon. Evelyn Keyes, Justice, First Court of Appeals
RSVP deadline: noon on Monday,September 12
CLE: 1.0 hour


October 13*

“Building an Effective Case Strategy Begins With Three Things: Causation, Causation, Causation,” by Kirsten Castaneda, Alexander Dubose Jefferson & Townsend LLP
RSVP deadline: noon on Monday,October 10
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. Business attire required.

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