Features for December 2016

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

WE ALL HAVE ISSUES: BUT CAN WE MAKE THE ARGUMENT?
by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

FRIVOLOUS ARGUMENTS ON APPEAL: TIME FOR A NEW APPROACH
by Mark Ritchie, Law Office of Mark Ritchie, P.C.

DID YOU KNOW . . . ?
by JoAnn Storey

APPELLATECH: ACCESSING THE APPELLATE RECORD ONLINE
by Derek D. Bauman

CASE UPDATES FOR SEPTEMBER TO NOVEMBER 2016
by Andrew C. Nelson, Wright & Close, LLP, and Leslie Gardner, 14th Court of Appeals

CROSSWORD PUZZLE
by James Marrow

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

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

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

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

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

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

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

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

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

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

Frivolous Arguments on Appeal: Time for a New Approach

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

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

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

The Current Focus – Entirely Frivolous Appeals

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


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

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

Frivolous Appeals v. Frivolous Arguments

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

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

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

Did you know . . . ?

By JoAnn Storey

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

AppellaTech: Accessing the Appellate Record Online

by Derek D. Bauman

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

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

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

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

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

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

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

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

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

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

Case Update for October to December 2016

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

FIRST COURT OF APPEALS

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

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

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

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

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

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

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

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

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

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

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

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

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

FOURTEENTH COURT OF APPEALS

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Crossword Puzzle

by James Marrow, Hogan & Hogan

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

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



Click to view regular size.

Upcoming Luncheons

January 12

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


February 9*

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


Place: Coronado Club, 919 Milam Street, Suite 500 from 11:30 a.m. - 1:00 p.m.
Cost: $40 for Section members who RSVP; $45 for non-members who RSVP and for Section member walk-ins; $50 for non-member walk-ins.

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

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

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