Features for October 2017

Welcome to the October 2017 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

A speech celebrating the 125th anniversary of the First Court of Appeals
by Justice Terry Jennings, First Court of Appeals, Houston

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

A soon-to-be published article on natural language searches raises troubling questions
by Mark Ritchie

DID YOU KNOW . . . ?
by JoAnn Storey

by James Marrow

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

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

The "Friendly First" Texas's First Court of Appeals 1892-2017

On September 12, 2017, the First Court of Appeals celebrated its 125th anniversary, and the Fourteenth Court of Appeals celebrated its 50th anniversary. At a celebration to mark the occasion, Justice Terry Jennings delivered a speech, which tracked the remarkable history of the First Court of Appeals. We are publishing the speech here, with his permission.

By: Terry Jennings, Senior Justice, First Court of Appeals
Sept. 12, 2017

The life of the First Court of Appeals has spanned the tenure of 28 governors and 23 presidents, and the reign of six British Monarchs.

To put this in perspective, consider the life-span of our beloved sister court—only one British Monarch, Elizabeth, the Second, who began her reign in 1952—15 years before the creation of the Fourteenth Court of Appeals.

But please don’t hold our sister’s relative youth and inexperience against her. Indeed, we, on the First Court, sometimes consider her opinions persuasive, though not authoritative.

For 125 years, the First Court has endured and thrived during times of peace and war, political and social progress and strife, economic booms and recessions, and fair weather and foul—from the Great Galveston Hurricane of 1900 to Hurricane Harvey of 2017.

Through it all, the staff, attorneys, and justices of the Court have worked to administer justice without fear or favor.

As Stanley E. Babb of the Galveston Daily News wrote in 1929, “Thousands and thousands of cases have been argued, discussed, deliberated, and mediated over within [the Court’s] walls, representing all phases of human behavior and experience.”

And the bar has made significant contributions to the Court’s history. As Babb wrote, “Many of the ablest lawyers in Texas have displayed their foremost abilities and their capacities for unraveling the Gordian knots of complicated and difficult legal problems in [its] historic old building[s].”

Over the years, the Court, with its user friendly philosophy, became known as the “Friendly First,” with justices forming strong personal bonds with each other and staff, and strong professional bonds with members of the bar, in their mutual endeavor, even in disagreement, to “get it right.”

After Texans approved a constitutional amendment in 1891, the legislature, in a special session in 1892, established the Courts of Appeals for the First (Galveston), Second (Fort Worth), and Third (Austin) Supreme Judicial Districts of Texas to help alleviate a serious backlog in the Texas Supreme Court.

Each district had jurisdiction in civil appeals over approximately one third of the state, with the First Court covering 57 counties.

The legislature’s decision to locate the Court in Galveston was based, of course, on pure political whim.

“It has always been my understanding,” recalled Henry Garrett, the Court’s clerk in 1929, “that the selection of Houston for the [1892] state [Democratic] convention had a strong influence in the selection by the legislature for Galveston for the location of the [First Court], many of the legislators saying, ‘Well, Houston got the convention, let’s give Galveston the court.’”

In 1892, the state of Texas was only 47 years old. Jim Hogg was governor, Benjamin Harrison was president of the United States, and Victoria was the Queen of England.

And the First Court, consisting of Chief Justice Christopher Columbus Garrett, Justices H. Clay Pleasants and Frank Williams, and Clerk S. D. Reeves, opened its first term in Galveston on Monday, October 3.

It issued its first published opinions just nine days later on October 11, 1892, concerning

  • an appeal from a district court’s grant of a petition for a writ of mandamus,
  • the parole evidence rule,
  • and a passenger’s wrongful ejection from a train.

The opinions vary in length from two to six pages.

From 1892 to 1957, the Court’s first home was the renovated 1878 Galveston County Jail, located at 20th and Winnie Streets. And from the beginning, the Houston Bar looked upon the Court with envious eyes, and it made several unsuccessful attempts to have the Court moved to Houston.

Finally, in 1957, Hurricane Audrey damaged the beautiful old red brick, with white limestone trim, building. And Chief Justice Gaius Gannon petitioned the legislature to move the Court to Houston to the Harris County Courthouse.

The legislature expanded the First Court to six justices in 1978, and, due to overcrowding, the new justices and their staffs moved to the Citizens Bank Building at 402 Main Street. Their stay there was short lived, due to malfunctioning elevators, no central air conditioning, falling plaster, and an infestation of grasshoppers.

Chief Justice Frank Evans then began to work to find a new home for the Court and our younger sister, the Fourteenth Court, which the legislature created in 1967.

The South Texas College of Law and Harris County Commissioners Court came to the rescue. The Commissioners agreed to pay for the construction of three additional floors on top of a building that the law school had previously planned, and the law school agreed to lease the space back to the courts for 99 years.

The deal was timely struck as the legislature, in 1981, added three new justices to each court, who were first elected in 1982.

In 1983, the courts moved into the new space on the eighth, ninth, and tenth floors at 1301 San Jacinto, where we enjoyed a great relationship with the law school that continues through today.

As the Houston area grew in population, so did litigation and the demands on the First and Fourteenth Courts. Over time, the legislature reduced the number of counties in their jurisdiction to ten.

And although the justices and staff enjoyed the camaraderie that came with working in close quarters at the law school, the courts, with a growing staff, simply ran out of room.

Again, Harris County Commissioner’s Court came to the rescue. Following the construction of the new Criminal Justice Center and Civil Courthouse, space became available in this beautiful, old Courthouse.

And under the leadership of Chief Justices Sherry Radack and Adele Hedges, the courts moved into our newly renovated home in 2011. Here, Chris Prine, the Clerk of both courts, has worked to bring the courts into the 21st Century, instituting the electronic filing of all documents.

There was little change on the First Court when it was in Galveston. The Court consisted of three judges, all white men, who served long, secure tenures. For example:
  • Justice George Graves served on the Court from 1917 to 1955, 38 years, the longest tenure of any justice on the Court, spanning the two world wars and then some.
  • Chief Justice Robert Pleasants served for 31 years, from 1907 to 1938.
  • And Henry Garrett served as the Court’s Clerk from 1908 to 1947, 38 years.

In contrast, life on the Court in Houston has been dynamic, with many significant changes occurring in the 1980s and 1990s. As noted by former Justice Murry Cohen,

My generation on the First Court, 1983 2002, saw big changes. 1982 was the first election after the First and Fourteenth Courts were enlarged from three to nine justices and went from being the Courts of Civil Appeals to the Courts of Appeals, with criminal law jurisdiction.

Moreover, as America progressed politically and socially, so did the First Court.

  • In 1978, Governor Dolph Briscoe appointed to the Court, Henry Doyle, the first black man to serve as an appellate court justice in Texas.
  • In 1982, two Jewish justices were elected, Ben Levy and Murry Cohen.
  • Justice Camille Hutson Dunn, in 1985, was sworn in as the first woman elected to a Texas appellate court.
  • In 1991, Governor Ann Richards named Alice Oliver Parrott the first woman chief justice in Texas.
  • Richards appointed Gaynelle Griffin Jones, Texas’s first black woman appellate justice, in 1992.
  • And in 1993, the First Court appointed Margie Thompson as the first black woman clerk of an appellate court in Texas.

Thompson, known for her broad smile and can do attitude, continued the user-friendly policy of her predecessor, Kathryn Cox, who earned for the Court the nickname of the “Friendly First,” coined by Justice Lee Duggan.

Thus, the First Court has in many ways been “first” in making progress in Texas. Today, sadly, both the First and Fourteenth Courts are lacking in racial diversity.

Women, however, have, in recent years, constituted a majority of both of the courts. Texas’s first all woman appellate court panel, with Chief Justice Oliver Parrott and Justices Hutson Dunn and Margaret Mirabal, met and heard oral arguments in 1991. Today, all woman panels now meet regularly in both courts.

Since the 1980s, one of the few constants on the Court has been change. The Court is technologically up to date, and several justices read almost everything on computer monitors. It has moved from deciding cases less on the common law and more on statutory interpretation. Court opinions average between 20 to 25 pages in length, and it is not uncommon in complex cases for an opinion to be 60 to 100 pages long. And although its justices each author between 60 to 80 opinions per year, most appeals in civil cases are not from judgments after a jury trial.

Happily, another constant on the Court is the strong relationships that form between the justices and each other and their staffs, many of which, because of their shared commitment to their life’s work, last for life.

As noted by Justice Mirabal,

My first job out of law school was as a law clerk at the First Court for Justice Frank G. Evans, who served with Chief Justice Tom F. Coleman and Justice Phil Peden. I learned more in that one year at the Court than I learned in three years of law school.

She was elected to the Court thirteen years later.

After I was elected to the Court in 2000, Justice Cohen, describing our job as “the best in the world,” was kind enough to act as my judicial mentor. And I had the opportunity to work with retired First Court justices like Frank Evans, Lee Duggan, and Jack Smith—all part of America’s greatest generation—who had come back to the Court on a special task force to help eliminate a backlog of cases.

I immediately noticed something special about these justices. As explained by Justice Cohen:

Many early colleagues had served in World War II or the Korean War. None discussed combat experiences with me, but they often talked about fascinating things they had seen and done in military service. To several, including Jack Smith, who was like a second father to me, it was the most important experience of their lives.

These justices bought their life experience with them to the Court, and they had a profoundly positive effect on everyone that they worked with that is still felt today.

It is not uncommon for current and former First Court justices to regularly meet with former law clerks and staff attorneys to bond and share fond memories of justices like Jackson B. Smith.

To illustrate the point, in December 2015, Justice Cohen invited me and several friends over to his home, which his parents had built in 1964, to celebrate his 70th birthday with his wife Meryl. They had just finished repairing their home after the Memorial Day Flood in 2015.

It was a beautiful evening at which Justice Cohen toasted the Constitution and Justice Smith, as is our custom. And, of course, he handed out awards to every guest. My award was for “Oldest Friend in Terms of Joint Judicial Service.” For a present, I gave him a biography of Justice Brandeis.

When the party was over, we spoke outside his house in the crisp air under a star lit sky about the flood and how difficult it had been to repair the house and get everything back in order. He was so proud that he and Meryl had saved his parent’s home.

On August 27, 2017, I received a text from Justice Cohen, stating that Hurricane Harvey had destroyed “the Old Cohen Place”; “[e]verything is lost. And we will not return.” He later added that one of the things that he took with him, as he left the home his parents had built, was the book that I had given him.

Such are the human bonds upon which the history of the First Court of Appeals is built.

As long as there are men and women in Texas who, even in disagreement, share a commitment to justice and the rule of law, may there ever be the First Court of Appeals, Texas’s “Friendly First.”

Appellate Ethics Refresher - Speaking Candidly

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

We all know that, once lost, an attorney’s professional reputation is almost impossible to regain. A lawyer’s bad behavior hurts the client and can cause distortions in the law. At best, it creates confusion and extra expense; at worst, it creates injustice. So, let’s discuss legal ethics in practice in the appellate court.

Remember that lawyers have an ethical duty to disclose “authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Texas Disciplinary Rule of Professional Conduct 3.03(a)(4). This duty is necessarily narrow – it covers only directly adverse authority from a controlling jurisdiction. But any competent and diligent appellate attorney also knows that her obligations to both her client and the court require paying attention to any previous controlling or persuasive authority directly related to an issue presented to the court. Nevertheless, appellate attorneys regularly fail to point out persuasive authority that, even if not directly adverse, has already addressed the issues presented in the appeal or closely related issues. In doing this, lawyers waste court resources and jeopardize their own cases by leaving judges and their staffs to track down cases that the attorneys should have been aware of and should have presented to the court. To have the court bring these cases up at oral argument or in an opinion can be a lawyer’s worst nightmare—and an opportunity lost to persuade the court in advance as to why the adverse authority must be distinguished. It is much harder to make repairs than to build a sound and thoughtful case in the first place.

Of course, even a good lawyer may be sandbagged. Which is why he should always be ready to respond to a case attack by an opponent or by the court, even if it is to say, “Your honor, we did address that issue in ‘x’ way; I’ll be happy to submit additional briefing.” This can, at times, be his opportunity to turn the case in his favor. But only if he was prepared in the first place.

There is also a corresponding obligation for an appellate attorney to be familiar with the entire record of the case. While Disciplinary Rule of Professional Conduct 3.03(a)(1) requires that “[a] lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal,” attorneys sometimes forget that they have an obligation to make reasonable inquiries into both the law and the facts relevant to their cases. Investigation and presentation of a case that fails to discover key events or facts that occurred in the trial court can cause the court to take unfavorable notice when those facts and the case law applicable to them are brought up by an opponent or, worse, discovered by the court itself. Courts always read both the record and the briefs. Yet there are attorneys who actually misrepresent the facts in the record to the court (not a good idea). Attorneys appearing for oral argument sometimes attempt to deflect questions about events in the trial or in other related proceedings by stating that they are just appellate counsel and do not know what happened in the trial. Attorneys will discuss their interpretation of a contract or the parties’ intentions in forming it, but will never quote the contract itself or otherwise refer to key language or be able to respond to questions about it—apparently failing to recognize that it is the written language that controls the outcome of their case. Be prepared! And do not expect sympathy from the court when your explanation for any of the lapses above is “I was too busy,” or “I don’t know,” or “I wasn’t asked to look into that.”

Yes, Virginia, there are such instances. At least one attorney has admitted to the court that he failed even to contact his imprisoned client because he did not consider the money paid him by the state for indigent defense to be adequate to permit taking time for such inquiries. See Texas Disciplinary Rule of Professional Conduct 1.03(a) (“A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”). Attorneys have admitted that they did not perform the investigations clearly required to present an adequate case to the court under the applicable law—preventing formation of an adequate appellate record. And attorneys have filed strings of cookie-cutter briefs on the same immaterial or previously adversely settled issue. See Texas Disciplinary Rule of Professional Conduct 1.01 (providing that, generally, lawyer shall not: “accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence”; “neglect a legal matter entrusted to the lawyer”; or “frequently fail to carry out completely the obligations that the lawyer owes to a client or clients”).

Unfortunately, those of you who read this article do not need it, except as affirmation that you are on the right track! A great majority of the appellate bar in Houston conduct themselves under much higher standards of conduct than those minimal standards enforced by the Disciplinary Rules. For those who do need help in this area, the Supreme Court of Texas and intermediate appellate courts, including the First Court of Appeals, have adopted Standards for Appellate Conduct that set an aspirational standard for litigating cases in the appellate courts. For example, “Counsel will explain the appellate process to their clients” and “will not foster clients’ unrealistic expectations.”

The best appellate attorneys abide by these higher standards, including their duty to the court not to “misrepresent, mischaracterize, misquote, or miscite the factual record or legal authority.” They do this, not only because to do otherwise would be unethical, but because such unethical conduct is ultimately unsuccessful and professionally self-defeating. But mostly they do it because they are honorable and caring people who know that they are members of a profession vital to the preservation of the rule of law. Clients are always better served by a thoughtful, organized, clear, and complete brief and oral argument. And by a thoughtful, organized, and, above all, ethical attorney.

Natural Language Legal Research and the Importance of Algorithmic Accountability

An article on natural language searches raises troubling questions

By Mark Ritchie

"We become what we behold. We shape our tools and then our tools shape us."
- Marshall McLuhan

We have seen some truly remarkable technological advances over the past quarter-century. The cellular phone has evolved from basic communication device to a pocket-sized personal computer, and the hefty PC running MS-DOS has been supplanted by sleek tablets and improbably-thin laptops. Gone are screeching modems and stand-alone fax machines, curious relics of our technological past bearing little resemblance to the modern high-speed internet connections and inexpensive all-in-one printers available everywhere. The capabilities of both software and hardware have increased exponentially since the 1990s, and anyone who had not attempted to perform natural language legal research since then could be forgiven for expecting a similar geometric progression in the quality of results returned for a given search . . . .

When Lexis and Westlaw first rolled out their natural language search engines roughly two decades ago, their representatives touted it as a grand step forward. Those who took legal research more seriously greeted the representatives’ claims with skepticism, and rightly so, given that results returned by these searches left much to be desired. While some cases returned by a search would be relevant, just as many if not more bore little or no discernible relationship to the issues actually being researched, and frequently the results included cases that obviously were no longer good law.

Nearly 20 years later, users still describe natural language legal research as a consistently disappointing experience, whether the research is done through WestlawNext, Lexis Advance, or another provider.1 But while natural language searches are easily derided based on anecdotal experience, until recently no concerted effort had been made to meaningfully benchmark the reliability of their underlying algorithms. This is soon to change, though, thanks to the dedication of Susan Nevelow Mart, an associate professor and director of the law library at the University of Colorado Law School.
In October 2017, the Law Library Journal published Professor Nevelow Mart’s article, “The Algorithm as a Human Artifact: Implications for Legal {Re}Search,”2
in which she evaluates results returned by the natural language search algorithms of Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel and Casetext. While the article does praise (perhaps faintly) the variation in results between the different providers studied as “a remarkable testament to the variability of human problem solving,” the results themselves are nothing short of disturbing:

There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of 40 percent of the cases were unique to one database, and only about seven percent of the cases were returned in search results in all six databases. . . . The oldest database providers, Westlaw and Lexis, were at the top in terms of relevance, with 67 percent and 57 percent relevant results, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were clustered together at a lower relevance rate, each returning about 40 percent relevant results.3

We as appellate practitioners may be tempted to dismiss these results as unimportant (at least so long as we have the option of resorting to more reliable tools for research), but bear in mind that natural language searches are marketed preferentially by their providers, presumably based on the belief that natural language is what the average customer wants.4 Professor Nevelow Mart makes the case in her article that we must demand “algorithmic accountability” from those responsible for crafting these natural language algorithms, positing that only then will educators and researchers be in a position to outmaneuver each algorithms’ inherent biases.5 I certainly agree with this proposition, but I also think that the lack of algorithmic accountability is disturbing because these algorithms stand to exert at least a subtle influence on how the law develops over time. The demonstrable biases embodied in each database’s search algorithms make particular cases, articles, etc. relatively easier or more difficult to locate, and the limited time and resources most lawyers can devote to research any given issue means the influence of some authorities will be elevated, and some will be diminished, based on the biases and assumptions of those who programmed the algorithms in the first place.6 Without necessarily meaning to do so, the designers of the algorithms we use to find the law become active, uninvited, and presumptively unwelcome participants in the process of shaping the law itself.

What, then, is to be done? Professor Nevelow Mart makes an eloquent and convincing case for demanding that the database providers allow at least a peek inside the “black box” of their search algorithms, but nothing will change until there is significant awareness of the problem. I would say that reading Professor Nevelow Mart’s article,7 then encouraging friends and colleagues to do the same, is a good start. We, as appellate lawyers, certainly have a selfish interest in demanding better tools for legal research, but more importantly we also have an obligation to look after the law itself. The law should be protected from degradation and inappropriate influence, and we can advance this cause by joining the movement to demand algorithmic accountability.

1. As observed by one individual shortly before Westlaw Classic was retired, WestlawNext’s “search results were just bizarre to me. It was more akin to the anti-Google – I’d type in search terms or even a case name, and I’d get everything other than the case or article I was looking for.” Matt Bodie, I want my Westlaw Classic, PRAWFSBLAWG (Apr. 16, 2014, 12:09 P.M.). Others commenting in response to this thread pointed out that Lexis Advance was every bit as unpleasant an experience. The consensus among those who devote a substantial portion of their time to legal research tends to be that natural language searches are useful as a tool for achieving rapid, if superficial, familiarity with an unfamiliar area of law. See, e.g., Dorie Bertram, Searching Bloomberg Law, Lexis Advance and Westlaw: Natural Language v. Terms & Connectors Searching, WASH. U. LAW LIBRARY RESEARCH GUIDES, (last updated Aug. 28, 2017) (noting that a natural language search is best used “as a starting point for finding a few highly relevant documents,” but that “[i]t doesn’t always find all results or even the best results”); see also Bodie, supra (noting that natural language searches were useful “to skim the surface of a topic”).

2. 109 Law Libr. J. 387 (2017).

3. Id. at 390.

4. See Did Lexis Squander $US700,000,000 On Lexis Advance, PRACTICE SOURCE, (reprinting a document from an anonymous source critical of those responsible for designing and marketing Lexis Advance based on customer input rather than advice from legal researcher experts).

5. “Algorithmic accountability in legal databases will help assure researchers of the reliability of their search results . . . . If researchers know generally what a search algorithm is privileging in its results, they will be better researchers.” Nevelow Mart, supra note v, at 4.

6. Indeed, this problem is only magnified by marketing of natural language searches as a ready solution to the pressures of practice. Advertising pieces frequently imply that natural language searches are a better approach than traditional Boolean searches, delivering equivalent quality results with greater ease and efficiency. See, e.g., Making Boolean Researchers Even More Effective (favorably comparing results from a WestlawNext search to a traditional Boolean search in Westlaw, while also noting that “studies show researchers who use WestlawNext are 64% more efficient than researchers who use westlaw.com”).

7. [I’m confident that everyone with the patience to have read my article this far is also entirely capable of tackling Professor Nevelow Mart’s article, but she has also published a much shorter article on the same subject for those preferring a less-ambitious reading assignment. Susan Nevelow Mart, Every Algorithm Has a POV, AALL SPECTRUM (Sept./Oct. 2017)]

Did you know?

By JoAnn Storey

As we all know, “[a] party who seeks to alter the court of appeals’ judgment must file a petition for review” in the Texas Supreme Court. TEX. R. APP. P. 53.1.

But, Rule 53.4 provides that a party may obtain a remand to the court of appeals for consideration of issues or points briefed in that court but not decided by that court, or may request the Supreme Court to consider such issues or points, by raising those issues or points in the petition, the response, the reply, any brief, or a motion for rehearing.

The Texas Supreme Court recently rejected a respondent’s Rule 53.1-waiver claim and, instead, applied Rule 53.4 in First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017). In that case, the jury found in plaintiff’s favor on a breach-of- contract claim and on a negligent-misrepresentation claim, and the trial court rendered judgment for the plaintiff on the verdict. The court of appeals affirmed the judgment on the breach-of- contract claim but reversed the judgment on the negligent-misrepresentation claim, holding that plaintiff could not recover for misrepresentation because he could not prove an injury independent from economic losses.

The Texas Supreme Court reversed the court of appeals’ judgment on the breach-of- contract claim. Plaintiff argued that, if the supreme court were to reverse the judgment on the breach-of- contract claim (which it did), then the court of appeals’ reason for denying recovery for misrepresentation no longer applied and defendant’s challenge to the sufficiency of the evidence must still be decided.

Defendant argued that plaintiff sought to “alter the court of appeals’ judgment” and was thus required to file a petition for review. The supreme court agreed that plaintiff sought to alter the judgment, but invoked Rule 53.4 as opposed to Rule 53.1. The parties briefed the issue of the sufficiency of the evidence supporting the misrepresentation claim in the court of appeals, but the court did not decide the issue. So, although plaintiff did not file a cross-petition for review, the Texas Supreme Court held that plaintiff’s failure did not preclude him from obtaining a remand to the court of appeals for a determination of the issue. (The Texas Supreme Court declined to determine the issue itself because the defendant did not address the sufficiency of the evidence in its briefing to the court).

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.

Case Updates for July, August, and September 2017

By Andrew Nelson, Wright & Close, LLP, and Jill Schumacher, 14th Court of Appeals


Davati v. McElya, No. 01-16-00544-CV, 2017 WL 3429958 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017, no pet. h.)

A severed partial summary judgment is not appealable when the parties to the suit still have claims remaining against each other.

McElya sought a declaratory judgment that she owned a driveway between her property and Davati’s. McElya also filed other claims in the suit, and Davati filed counterclaims. The trial court granted summary judgment in McElya’s favor on the declaratory judgment claim, but did not grant summary judgment as to the other claims. After the court granted the partial summary judgment, it purported to sever the declaratory judgment claim from the other claims in the case. The summary judgment in the severed case stated that the judgment was “final and appealable.” Davati appealed from the severed action.

The court began by noting that a severance does not make an interlocutory judgment final and appealable if it only disposes of a subset of claims between the parties. If a party appeals from a partial summary judgment that disposes of some, but not all, claims between the parties, the appellate court must dismiss the appeal for lack of jurisdiction, even if the court severs the partial summary judgment into a new action. The court ultimately held that “[a]s the severance order neither actually disposed of every pending claim between the severed parties nor clearly and unequivocally stated that it finally disposed of the parties and claims, it does not make the summary judgment final and appealable.” The court rejected Davati’s argument that a severance and a new cause number makes an otherwise interlocutory order final and appealable, regardless of the language the trial court used in its order.

Livingston v. Livingston, No. 01-16-00127-CV, 2017 WL 4171903 (Tex. App.—Houston [1st Dist.] Sep. 21, 2017, no pet. h.)

A permanent injunction issued after a trial need not detail the reasons for its issuance.

Catherine Livingston (“Catherine”) sued her step-son, Robert, for a variety of intentional torts, including false imprisonment and intentional infliction of emotional distress. The jury found for Robert on the false imprisonment claim, but for Catherine on the intentional infliction of emotional distress claim. The jury did not award Catherine any damages; however, the trial court issued a permanent injunction preventing Robert from coming within 1,000 feet of Catherine.

On appeal, Robert contended that the permanent injunction was defective because it did not specify the reasons for its issuance, pursuant to Texas Rule of Civil Procedure 683, which requires a court to specifically state its reasons for issuing injunctive relief. The court began its discussion of the point by noting that it previously held Rule 683’s requirement “that reasons for issuance of an injunction be stated applies only to ancillary injunctive relief.” Likewise, other courts in the state have held that the requirement “applies only to temporary injunctions, in which the relief ordered is ancillary to the ultimate relief sought, and not to permanent injunctions.”

Robert argued that Rule 683 applied to the permanent injunction in that case, because the injunction was ancillary to the other relief sought, namely damages. The court rejected that argument. The court held that the key consideration was not whether the final judgment under review is one from a case whose sole purpose was to obtain a permanent injunction, but rather whether the injunctive relief itself is ancillary, such as a temporary injunction. Accordingly, Rule 683 did not apply to the injunction, and the trial court did not have to specifically state its reasons for granting it. The court affirmed the judgment below.


Berkel & Co. Contractors, Inc. v. Lee, No. 14-15-00787-CV, 2017 WL 2986856 (Tex. App.—Houston [14th Dist.] Jul. 13, 2017, no pet. h.)

A corporation is liable for the intentional tort of a vice-principal or manager.

An individual commits an intentional tort when she has substantial certainty that her conduct will injure the individual seeking relief.

During construction, an employee of a general contractor suffered an injury. The superintendent of the subcontractor decided to violate safety policies, and that decision caused the employee’s injury. The employee received workers’ compensation benefits through a plan that the general contractor administered. Relying on common law, the employee successfully sued the subcontractor for additional damages.

On appeal, the subcontractor asserted that the Texas Workers’ Compensation Act precludes the employee’s recovery of common-law damages. The court held that the Act precludes liability in this case because the injured employee is a statutory co-employee of the subcontractor and the subcontractor’s employee’s action does not fall within an exception to the Act because the employee did not have the requisite mental state to commit an intentional tort.

Texas Labor Code section 408.001(a) immunizes subscribers from an injured employee’s claims for negligence and gross negligence by making compensation under the Act an injured employee’s exclusive remedy. The court applied section 408.001(a) after concluding that the subcontractor was a statutory co-employee of the injured employee. Because section 408.001(a) applied, it barred the employee’s recovery based on the subcontractor’s negligence and gross negligence.

The employee asserted that he could avoid the Act’s exclusive-remedy provision under a court-made exception that allows an employee to recover damages for intentional torts. In its answer to one question, the jury found that an employee of the subcontractor knew his conduct was substantially certain to cause an injury. In its answer to another question, the jury found that the employee’s conduct was attributable to the subcontractor because the employee was a principal or manager.

The subcontractor objected to the jury charge for two reasons. First, the subcontractor argued that to commit an intentional tort, an employee must be substantially certain that his conduct will cause a specific injury. Second, the subcontractor argued that it was not liable for its superintendent’s conduct because the superintendent was not an upper-level executive or alter ego.

Addressing vicarious liability first, the court gave significant attention to policy concerns Professor Lex Larson discussed in his treatise, Larson’s Workers’ Compensation. The court ultimately rejected the alter-ego test Professor Larson advocates. Instead, the court applied the holding of an analogous case from the Supreme Court of Texas. The court held that a corporation is liable if a corporation’s vice principal, acting within the course and scope of his employment, intentionally injures another. In this case, the court explained that the subcontractor was liable if the superintendent committed an intentional tort.

Next, the court clarified the law surrounding intentional torts. The court held that an individual commits an intentional tort if she is substantially certain that her conduct will injure a particular individual or someone within a small class of potential victims within a localized area. (An individual does not commit an intentional tort if she is substantially certain that her conduct will cause injury to someone.) In reaching its holding, the court catalogued many contexts in which courts applied the definition of intent contained in the Third Restatement of Torts, and concluded that the results of those cases matched statements contained in the commentary to the Third Restatement.

The court ultimately concluded that the subcontractor was liable for the actions of its superintendent, but that the superintendent did not act with intent because he did not have substantial certainty that the injured employee “would be a particular victim of his behavior.” The court reversed and rendered judgment in favor of the subcontractor.

TecLogistics, Inc. v. Dresser-Rand Grp., Inc., No. 14-16-00189-CV, 2017 WL 3194164 (Tex. App.—Houston [14th Dist.] Jul. 27, 2017, no pet. h.)

Cases are not binding if they are decided under a prior statute that is materially different than the current statute.

Dresser-Rand hired TecLogistics to transport parts and supplies between Dresser-Rand and its customers.

Dresser-Rand asserted counterclaims for breach of contract and fraud against TecLogistics and TecLogistics’ president in her individual capacity. The breach-of-contract claims were based on evidence that Dresser-Rand twice paid the same invoice. The fraud claims were based on evidence that TecLogistics’ president created false invoices that overstated charges from one of TecLogistics’ subcontractors. TecLogistics used those false invoices to pass the inflated charges to Dresser-Rand. The trial court refused to submit questions to the jury on the president’s liability for fraud in her individual capacity. The jury awarded damages for both breach of contract and fraud.

On appeal, TecLogistics challenged the damage awards. Dresser-Rand cross-appealed, challenging the trial court’s refusal to submit a jury instruction on the president’s individual liability for fraud.

The language of the charge determined the answers to both questions relating to the jury’s assessment of damages. The charge asked the jury whether TecLogistics breached the contract by charging Dresser-Rand too much. The record did not contain evidence that TecLogistics charged the invoice twice, so the court modified the judgment to delete the damages the jury awarded for breach of contract.

The court measured the sufficiency of the evidence supporting the fraud damages by looking to the jury charge. Although TecLogistics argued that the damages were speculative and that Dresser-Rand did not realize the damages because Dresser-Rand passed the inflated charges on to its customers, the language in the charge informed the jury how to assess damages. Noting the presumption that the jury followed the charge, the court found the evidence was sufficient to support the jury’s assessment of damages.

In addressing the cross appeal, the court determined that Texas Business Organizations Code section 21.223(a)(2), which bars individual liability in some instances, applied to the case. Dresser-Rand argued that even if section 21.223(a)(2) applied, the president could be held liable based on common law. The court noted that section 21.224 expressly precluded common-law liability unless the individual “(1) expressly assumes, guarantees, or agrees to be personally liable to the obligee for the obligation; or (2) is otherwise liable to the obligee for the obligation under [the Business Organizations Code] or other applicable statute.” The court explained that no one alleged nor offered evidence that either exception applied.

The court noted that many cases appear to hold individuals liable when the predicates of section 21.223(a)(2) are met. In an overview of cases that appear to reach opposite results, the court explained that many of those cases discussed language of a prior statute with less robust protection or incorrectly relied on cases decided under an older version of the statute. The court concluded the trial court did not err in refusing Dresser-Rand’s proposed question because the question would have allowed the jury to find the president liable for common-law fraud without finding that a statutory exception permitted liability based on common law.

Upcoming Luncheons

November 9

“Oral Argument: Lessons Learned from Teaching and Judging,” by Randy Roach and Sharon McCally
RSVP deadline: noon on Monday, November 6
CLE: 1.0 hour

January 18*

“New Year, New You - Strategies to Ramp Up Your Appellate Practice,” by Kevin DuBose, Meredith Parenti, Lynne Liberato, David Gunn
RSVP deadline: noon on Monday, January 15
CLE: 1.0 hour

February 8*

“Chapter 95 Premises Liability and Supersedeas Bonds,” by Brad Snead
RSVP deadline: noon on Monday, February, 5
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, James Marrow, at (713) 222-8800.  PLEASE NOTE IN YOUR RSVP IF YOU HAVE A DIETARY REQUEST (vegetarian, gluten free, non-dairy, non-seafood, etc.).

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

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

Features for July 2017

Welcome to the July 2017 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

Strategies for writing motions for rehearing and for en banc reconsideration
by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

by David Furlow

DID YOU KNOW . . . ?
by JoAnn Storey

Derek D. Bauman discusses options for linking to websites in your brief.

by James Marrow

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

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

Can You (Re)Hear Me Now?

By Justice Evelyn Keyes, First Court of Appeals and Angela Spoede

All the attorneys who appear before appellate courts present their cases with the hope that their arguments will connect with the judges and cause them to rule in their clients’ favor. Unhappily, given our adversarial legal system, roughly half the litigants who appear before the court will not achieve their goal. Sometimes, the judges manage to disappoint both sides at once. When that happens, parties may feel that the court has not truly heard their arguments, and they may ask themselves whether they should move for rehearing. Generally: yes. But not always.

Parties have a right to file a motion for rehearing. See TEX. R. APP. P. 49.1. Sometimes, however, the time and expense involved in filing a motion is more justified than at other times. For example, if a dissenting or concurring opinion has been filed by a member of the panel, a party filing a motion for rehearing knows that he has fewer justices to persuade—and maybe he can find support for the dissenting judge’s view in the law that will cause one or both of the other judges to change his mind. Or if taking the hint from the dissenting judge does not lead to victory in the intermediate appellate court, it may help hone the arguments for a petition for review.

Even without a dissent in your favor, a motion for rehearing can be a preview of the argument to come in a petition for review. And it may alert the appellate court that it is in the interest of the law and the court itself to correct a clear error of fact or law rather than having a higher court do it for them.

For example, the court’s opinion may misstate a material fact in the record. Or the court may have made an error of law. Or the opinion may fail to adequately address an issue necessary to the resolution of the dispute. Or some error in the judgment may create a discrepancy between that document and the opinion. Other times, counsel may have specialized knowledge about the case or the area of the law that the court missed or misunderstood. It does happen—especially in very complex cases or in specialized areas of law that do not often come before the appellate courts. In that case, a motion for rehearing may help the court correct an error important to maintaining the integrity of the law or to ensuring justice in the case.

It is important to note, however, that under any circumstances the odds of the court’s granting a motion for rehearing are low. But a knowledgeable practitioner can increase the odds of getting the desired result by following a few key guidelines.

The best motions for rehearing use a respectful tone. Judges know that they can make mistakes, and many will even thank you for your efforts in pointing them out if you do it professionally. But disrespectful and angry motions are less helpful to the court and may not get the type of attention you think they deserve. Effective motions for rehearing also stick to the essential facts and law and do not waste time on peripheral issues or on pointing out every possible mistake the lawyer thinks the court made. Especially if he thinks the court made error after error after error. Sometimes the litigant doth protest too much.

The language of Rule of Appellate Procedure 49.1 is vague (“The motion must clearly state the point relied on for the rehearing.”). But some arguments or points in support of rehearing are much more helpful than others. Focusing on flaws in the court’s reasoning, interpretation of material facts, or key points of law puts the important points squarely before the panel, with no room for distraction. To the extent possible, build on the arguments of a dissenting judge or the reasoning already used in the opinion. If applicable, point out the importance of authorities that were not cited in the panel opinion, or provide citations and analysis for cases that may have come out between when you originally briefed the case and when the opinion was issued.

Keep in mind that a motion for rehearing is not an appropriate vehicle to rehash arguments from your original brief. If they did not persuade the court the first time, you can be fairly certain they will not persuade the second time, without more. Raising brand new issues is likewise inappropriate. Courts generally will not consider issues raised for the first time in a motion for rehearing. Rather, present your appellate issues and supporting arguments in a new light that will give the court an opportunity to consider its ruling from a different perspective.

And a word on motions for en banc reconsideration. The appellate courts frequently see motions for rehearing and motions for en banc reconsideration filed concurrently in a single document. This is permitted under the Rules of Appellate Procedure. But it is often not a good idea. Filing both motions in the same document and using the same reasoning for both deprives a party of an important tool to advocate effectively for the client’s needs.

These two types of motions have different audiences and different purposes. A motion for rehearing is addressed to the panel of judges who originally considered the case and who are familiar with the facts and legal principles of the dispute. A motion for en banc reconsideration is addressed to the entire Court, and judges who are first encountering the case on a motion for en banc reconsideration will tend to rely on the original panel’s evaluation of the case, except in unusual cases.

The scope of a motion for rehearing is different from that for a motion for en banc reconsideration. A motion for rehearing is appropriate to raise any concern regarding errors in the panel’s original opinion. But a motion for en banc reconsideration is “not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.” TEX. R. APP. P. 41.2(c). Thus, the most effective motions for en banc reconsideration focus on identifying errors that meet the criteria of Rule 41.2 or for supreme court review set out in Rule 52. Even if the motion meets the en banc criteria, it may well be denied, as the judges may conclude that the panel has already considered the issues and it is not necessary for the whole court to opine on them, to correct an error, or to frame the case for high court review.

Whether to file a motion for rehearing or for en banc reconsideration involves consideration of a complex legal interpretations, factual realities, and client objectives and needs. But a motion for rehearing can offer your best opportunity to be certain you have had your arguments heard by the appellate court or to highlight serious issues deserving of a closer look.

Law Day Allowed HBA Attorneys to Share the Music of a Good Book

By David Furlow

U.S. Supreme Court Justice Oliver Wendell Holmes appreciated the value of a good book: “The best of a book is not the thought it contains, but the thought which it suggests, just as the charm of music dwells not in the tones but in the echoes of our hearts.”

This year, the Law Day Committee shared the music of Michael S. Bandy’s and Eric Stein’s book Granddaddy’s Turn: A Journey to the Ballot Box with elementary students in 100 schools throughout Harris County. The committee then orchestrated the donation of that book about the Fourteenth Amendment’s promise of equality under the law with each school’s library.

This year’s Law Week focused on equality under the law. Beautifully illustrated with James E. Ransome’s watercolor images, the book told the story of one boy’s journey to an Alabama voting precinct with his grandfather in the early 1960s. The book ended by showing how the Civil Rights Act of 1964 and the Voting Rights Act of 1965 made the Fourteenth Amendment’s promise of equal rights under the law a reality by the time of America’s Bicentennial in 1976.

The Hon. Justice Harvey Brown read Granddaddy’s Turn to students at Frostwood Elementary School in Spring Branch ISD on May 4, 2017.
The HBA’s Law Day 2017 events focused on “The 14th Amendment: Transforming American Democracy.” HBA volunteers, including appellate and trial judges and attorneys from every practice, fanned out into Houston area schools to show how equal protection under the law is important to everyone.

HBA Law Day volunteers read in schools all around Houston. Nearly 100 attorneys and judges read to 8,255 students in 197 readings at 100 Elementary Schools in 17 school districts and in private schools. Law Day, a national celebration of the rule of law, has been sponsored and promoted by the American Bar Association since 1961, when President Dwight Eisenhower designated it a national holiday. HBA volunteers and staff joined local and state bar associations to sponsor activities that clustered around May 1.

Seventeen public school districts participated in the 2017 HBA Law Week Reading program: Aldine ISD; Alief ISD; Alvin ISD; Channelview ISD; Conroe ISD; Cy-Fair ISD; Fort Bend ISD; Galena Park ISD; Goose Creek ISD; Houston ISD; Humble ISD; Katy ISD Lamar Consolidated ISD; Pasadena ISD; Spring Branch ISD; Spring ISD; and Stafford ISD. Eleven private schools participated as well. Those schools include Iman Academy; Our Savior Lutheran; St. Ambrose Catholic School; St. Jerome Catholic School; St. John’s School; St. Joseph Regional Catholic School; St. Michael Catholic School; St. Theresa Catholic School; St. Vincent de Paul Catholic School; The Banff School; and the Rusk School.

The Hon. Judge Erin Lunceford read Granddaddy’s Turn to the students of St. Jerome Catholic Elementary School in May 2017. Judge Lunceford also read to students at Rusk Elementary School in the Houston Independent School District in May 2017.
Houston attorneys organized the HBA Law Week Committee (then named the Law Day Committee) in 1958. HBA volunteers first read to students in Houston area schools in 2003.

HBA’s Law Week 2017 efforts began in February when more than 400 special needs students and teachers watched local and state judges at the historic 1910 Courthouse. HBA volunteers and staff soon joined the Asian American Bar Association, the Houston Lawyers Association, the Hispanic Bar Association, and the Mexican-American Bar Association to sponsor Law Day Poster Workshops for children in the Chinese Community, Third Ward, and East End.

Law Day occurs on May 1 each year, but readings continue in the weeks afterwards. The Law Week Committee plans several activities throughout the year in honor of Law Day. Next year, the readings will take place April 16 to May 11, 2018, or at the end of the school year if needed.

Above: Earl Touchstones read Granddaddy’s Turn at Kate Bell Elementary School in HISD in May 2017. Below: Mala Sharma reads at the Banff School.
What can attorneys do to help out with Law Day 2018? The best thing is to volunteer—early and often. HBA Special Projects Director Bonnie Simmons always accepts new volunteers if they are HBA members or members of a partnering local bar organization. New volunteers are typically recruited by attorneys already in Bonnie’s existing volunteer pool. Bonnie’s volunteer groups already include the Law Week Committee, Lawyers for Literacy Committee, Speakers Bureau Committee, HBA Board of Directors, and all previous reading volunteers, as well as local bar associations such as the Houston Northwest Bar Association.

Karen Lukin read about equality under the law and voting rights to the students of Atherton Elementary School in Houston ISD on May 23, 2017.
Begin by volunteering for Constitution Day in September 2017. HBA will next conduct readings in Houston area classrooms in September 2017 to celebrate the U.S. Constitution. The Law Week Committee assists the Lawyers for Literacy Committee to read for Constitution Day each year. Constitution Day readings will take place on Friday, September 15, 2017 this year.

In addition to everything else, HBA Law Day readings are fun. It’s great to get out into the community and to meet teachers and students who welcome HBA volunteers into their classrooms. When Judge Erin Lunceford urged me to sign up to read to kids, I wasn’t sure what I was getting into. But I loved it. So I’m signing up to read again in May 2018. HBA volunteers get to donate the book that they read to teachers at the school where they read.

David Furlow with teachers at Stafford Elementary School in Stafford on May 12, 2017.
I recommend this program to all Houston area justices, judges and attorneys. Please consider signing up to read in Houston area schools in May of 2018. Anyone interested in volunteering should conduct HBA Special Projects Director Bonnie Simmons at 713-759-1133 or at bonnies@hba.org www.hba.org. In addition, the 2017-2018 Law Week Committee will be co-chaired by Luke Gilman of Jackson, Walker, LLP, Jason Muriby of Morgan Lewis & Bockius LLP, and Bryon Rice of Beck Redden. HBA’s Law Week web-page, at https://www.hba.org/law-week-activities/, will answer most questions about this great program.

Did you know?

By JoAnn Storey

Rule 24.4 of the Texas Rules of Appellate Procedure governs review of the trial court’s rulings on supersedeas issues. To seek review in the court of appeals, file a motion. Tex. R. App. P. 24.4(a). That motion typically is called a “Rule 24 Motion.”

Seek review of the court of appeals’ ruling on the motion by petition for writ of mandamus in the Texas Supreme Court. Id.

AppellaTech: Linking to Websites in Your Brief

By Derek Bauman

I've written two articles about whether and how to hyperlink to the record and legal resources in your brief.  I thought it would be useful to discuss citing and linking to websites, generally, as well. Robert Debose created an excellent CLE some years back on whether to cite websites such as Wikipedia in appellate briefs.  I cannot improve upon that, so I am not going to try. Instead, I'm going to focus on the particulars of how best to approach citing and linking to briefs once you have determined that it is appropriate to include the cites.

The main problem you are faced with is that, when you upload your brief to the court's filing portal, all of the hyperlinks that you inserted into your brief are stripped out. So if you only embed your hyperlinks into the text (as I have done in the paragraph above), no one at the court will ever know that you added a hyperlink or what the link was supposed to show.

Instead, if you want the reader to look at a particular link, the web address for that link must appear as text within your brief. This leads to its own problem. Many addresses for web pages are quite lengthy.

For example, if you have http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=AR&lID=136070 written in your brief, anyone who wants to view that link has to either manually type in that address or copy it from the brief and paste in into their web browser. I'm not saying that won't happen, but I expect you know it is going to take more than simple curiosity for someone to decide to go through that process.

To improve your chances of someone going through that effort, you need a shorter link. As it happens, there are some ways to accomplish this.

One example is a website called bitly.com. You enter the web address you want to cite to, and it gives you a much shorter version of that link. The Texas Bar CLE link I gave as an example becomes: http://bit.ly/2tEHzY0.

Unfortunately, this presents another problem. With the full link, the reader is provided with some useful information about what the link will show them. Providing the link to the Texas Bar CLE website will indicate that the link is for a CLE. A link to chron.com will tell the reader you're linking to a news article. And a link to youtube.com will tell the reader that you probably want them to watch a cat video.

The shortened link does not provide any clues about the content of the link. While it will make it easier for the reader to go through the effort of viewing your link, it may take away some of the confidence that the linked information will be useful.

To solve this, I recommend adding a parenthetical after the link describing the website and the information it is meant to provide. For example: "http://bit.ly/2tEHzY0 (A Texas Bar CLE questioning whether I should have included this link in this brief in the first place)."

Now you have a link that is easier for the reader to access and that still provides the context information to encourage the reader to go through the effort.

If you are citing to a lengthy article, but want to emphasize a certain passage, there's a way to do that and also make your link short. I've mentioned before a website called TLDRify. You can use that website to highlight a certain passage on a website and get a link that will take the reader to that web page and highlight the relevant passage for them.

Finally, there's a video equivalent to this on YouTube as well. If you want to cite to a video, but the relevant portion is not at the beginning, you can follow these instructions to start the linked video at the desired place. As we all know, sometimes the best segment of a cat being adorable comes in the middle of the compilation video.

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.

Case Updates for April, May, and June 2017

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


Krajca v. Caum, No. 01-16-00057-CV, 2017 WL 2471102 (Tex. App.—Houston [1st Dist.] June 8, 2017, no pet. h.)

A late-filed summary judgment response may still be considered if good cause is shown and no undue prejudice would result from permitting the response to be considered.

Krajca filed an action in probate court seeking to remove Caum as independent executrix of an estate. After the parties conducted initial discovery, Caum filed a no-evidence motion for summary judgment. Krajca timely filed a response to the motion, but it was undisputed that he failed to serve it on Caum timely. Caum filed a motion to strike the late-served response. Krajca filed a response, arguing that his failure to serve his response was the result of an unintentional typographical error and that striking the response would effectively impose an unjust death-penalty sanction.

Krajca explained that he used an e-filing system to file his response. He attempted to enter Caum’s attorney’s email address into the system, but left out one of the letters in her email address. As a result, Caum’s counsel was never served with the filing. Krajca, however, received a receipt indicating that his response had been served. Nevertheless, the trial court effectively struck the response by informing the parties that it was not considered because it was not properly served. The court granted summary judgment. Krajca appealed.
v On appeal, Krajca argued that the trial court erred by not considering his response because the failed service was the result of an unintentional typographical error and that Caum had not been unduly prejudiced by the late service. The court began by noting that although the court did not explicitly rule on the motion to strike his response, its ruling could be implied pursuant to Tex. R. App. P. 33(a)(2)(A).

Next, the court noted that Krajca demonstrated, through undisputed evidence, that the failure to timely serve the response was not the result of intentional or consciously indifferent actions. Because the service would have been completed if Krajca had not mistyped the email address, the court found that good cause existed for serving the summary judgment response late.

The court noted that the overarching policy regarding unintentional errors of counsel is to decide the case on the merits rather than on a procedural default when possible. The court further noted that the Texas Rules of Civil Procedure, specifically Rule 21(f)(6), provide that when a documents is untimely due to a technical failure, the filing party may seek appropriate relief from the court. “The electronic filing and service rules should not become a trap for the unwary when no harm is done.”

The court determined that no harm had been done in the case before it. Therefore, the court reversed the ruling of the trial court and remanded so that the court could consider Krajca’s response.

Ramirez v. Noble Energy, Inc., No. 01-16-00155-CV, 2017 WL 2180719 (Tex. App.—Houston [1st Dist.] May 18, 2017, no pet. h.)

When deemed admissions are merits-preclusive, the deemed admissions should be permitted to be withdrawn unless the party opposing withdrawal can demonstrate that the failure to timely answer the requests resulted from flagrant bad faith or callous disregard for the discovery rules.

Monroy sued Noble for an injury he sustained while unloading a truck on Noble’s premises. Noble served Monroy with requests for admission, and Monroy did not respond. Noble moved to compel responses, and the court ordered that Monroy file responses by November 5, 2015. Monroy did not file his responses until November 6, 2015. Noble filed a motion for summary judgment, arguing that the matters contained within its requests for admission were deemed admitted. The deemed admissions covered a wide range of topics, such as: “Noble is not a proper party to this lawsuit” and “[t]he truck [Monroy] was driving was not Noble’s property.” Monroy responded to the motion and argued that Noble had not demonstrated any harm or prejudice from the allegedly inadequate responses. Monroy also alleged that the late response was the result of turnover in his attorney’s office resulting in the response deadline being overlooked. Several weeks later, Monroy filed a motion to withdraw the deemed admissions, arguing again that the failure to timely respond was not the result of conscious indifference. The trial court granted summary judgment and denied Monroy’s motion to withdraw deemed admissions. Monroy appealed.

The court of appeals first noted that a trial court may permit a deemed admission to be withdrawn if (1) the party shows good cause for the withdrawal, and (2) no undue prejudice will result. A party can establish “good cause” by showing that failure to timely respond was an accident or mistake, not intentional or the result of conscious indifference. Courts have typically found that even a “slight excuse” will suffice when evaluating this standard.

When a party seeks to rely upon deemed admissions to preclude presentation of the merits of the case, it is even more difficult to preclude the withdrawal of deemed admissions. The burden of proof in such situations shifts from the party seeking to have the admission withdrawn to the party seeking to rely on the deemed admissions. And, the party seeking to rely on the deemed admissions must demonstrate “flagrant bad faith or callous disregard for the rules.” This is because, when a party seeks to have deemed admissions treated as merits-preclusive, the deemed admissions implicate due process concerns. Therefore, courts apply the same standard as when a party is seeking death-penalty discovery sanctions.

The court first determined that Noble’s requests for admission were merits-preclusive in nature. Some of Noble’s requests, such as the request to admit that Noble was not a proper party to the suit, were not actually proper requests for admission. Monroy admitted three of the requests in his late-served response, and because those responses were not controverted, those admissions were not merits-preclusive. However, the other admissions were disputed and did not simply involve uncontroverted facts; therefore, they were merits-preclusive.

Having determined that the requests were merits-preclusive, the court went on to consider whether Noble proved that the late-served admissions were the result of “flagrant bad faith or callous disregard.” Monroy’s explanation for the late-served admissions was that his counsel had just hired a new assistant, and the new assistant neglected to calendar the response time for the discovery. The court noted that “a lack of care, simple bad judgment, or a mistaken belief that no discovery had been served does not rise to the level of bad faith or callous disregard for the rules. . . Rather, a determination of bad faith or callous disregard for the rules has been reserved for cases in which the evidence shows that a party is mindful of pending deadlines and nonetheless either consciously or flagrantly fails to comply with the rules.”

In the end, the court held that although the responses were served late, Noble did not prove that they had been filed in flagrant bad faith or callous disregard for the rules. Accordingly, the court reversed and remanded the case.


Nat’l Sec. Fire & Cas. Co. v. Hurst, No. 14–15–00714–CV, 2017 WL 2258243 (Tex. App.—Houston [14th Dist.] May 23, 2017, no pet. h.)

An insured cannot defeat an otherwise valid and binding appraisal award simply by refusing to accept the insurer’s payment of the award or by asserting extra-contractual claims that are derivative of the policy claims.

Ozier Hurst submitted a damage claim to his insurer, National Security Fire & Casualty Company, after his home sustained wind-related damage during Hurricane Ike. The damage was initially appraised at $3,524.56 (accounting for the $1,000 deductible). National paid Hurst the appraised amount, and although Hurst accepted and cashed the check, he did not use the money to repair the house.

Unhappy with the initial estimate and payment, Hurst sued National, the adjusting firm, and the independent adjuster for contractual and extra-contractual claims. Hurst invoked the appraisal clause, and the umpire awarded $7,166.36. National issued a check for $3,641.80, which is the difference between the umpire’s award and the amount already paid to Hurst. Hurst never returned or cashed the check. Nor did he move to set aside the award. He continued to pursue the underlying litigation.

The jury found (1) National liable for breach of contract, (2) that National, the adjusting firm, and the independent adjuster violated the prompt payment provisions of Section 542 of the Insurance Code, (3) National breached its common-law duty of good faith and fair dealing, and (4) National, the adjusting firm, and the independent adjuster violated Chapter 541 of the Insurance Code and the DTPA. The trial court denied all post-judgment motions and signed a final judgment in accordance with the jury verdict awarding damages from National, the adjusting firm, and the independent adjuster, including prejudgment and post judgment interest, penalty interest, court costs, and attorneys’ fees.

National appealed, arguing the trial court erred in failing to grant a directed verdict because the full and timely payment of the appraisal award precludes as a matter of law any award for breach of contract, penalty interest, or any statutory or common-law bad faith violations. Hurst responded that (1) because he did not accept National’s tendered payment, his breach of contract claim was not precluded and (2) the inclusion of a release of the extra-contractual claims rendered National’s payment a partial or conditional payment.

First, the Fourteenth Court concluded that acceptance of the payment is not a necessary condition to estop a breach of contract claim. Generally, all that is required to estop a breach of contract claim is that the insurer tenders the full amount owed pursuant to the conditions of an appraisal clause. Second, the court concluded the release of the extra-contractual claims did not render the tender of the payment less than the set amount determined by the appraisal process. Therefore, the court concluded, Hurst is estopped from recovering for breach of contract.

The court went on to conclude Hurst’s extra-contractual claims were also precluded. First, the full and timely payment of the appraisal award precluded an award under the Insurance Code’s prompt payment provisions. Second, the common-law duty of good faith and fair dealing and the DTPA violation claims were precluded because Hurst did not allege any act so extreme as to cause an injury independent from the loss of benefits under the insurance policy. The court reversed and rendered judgment that Hurst take nothing on his claims.

Eng’g and Terminal Services, L.P. v. TARSCO, Inc., No. 14–16–00424–CV, 2017 WL 1540888 (Tex. App.—Houston [14th Dist.] Apr. 27, 2017, no pet. h.)

The certificate of merit requirement in section 150.002 of the Texas Civil Practice and Remedies Code does not apply to a third-party petition filed by an original plaintiff seeking contribution from a third-party defendant.

Buckeye Partners, LP contracted with Engineering and Terminal Services (ETS) to provide engineering design and support services. ETS in turn subcontracted with TARSCO and Orcus. ETS sued Buckeye for breach of contract based on Buckeye’s alleged failure to pay ETS for its engineering services. In response, Buckeye filed counterclaims against ETS alleging its engineering designs contained errors, omissions, and other deficiencies that caused Buckeye substantial damages. ETS, as a third-party plaintiff, filed a third-party petition against TARSCO and Orcus based on allegedly defective engineering and design services that formed the basis of Buckeye’s counterclaims. ETS sought contribution from TARSCO and Orcus to the extent it was liable to Buckeye.

Section 150.002 requires “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional” engineer to file a supporting expert affidavit “with the complaint.”

ETS did not file a certificate of merit with its third-party petition. TARSCO and Orcus filed motions to dismiss the third-party claims under section 150.002 of the Texas Civil Practice and Remedies Code. ETS responded to the motions to dismiss relying on Jaster v. Comet II Construction, Inc., 438 S.W.3d 556 (Tex. 2014), in which five justices who joined in the court’s judgment agreed that a third-party plaintiff is not “the plaintiff” in an action or arbitration proceeding and thus is not subject to the certificate of merit requirement. The trial court granted the motions to dismiss and ETS appealed.

The Fourteenth Court looked to Jaster for guidance, which considered the statute’s applicability in the third-party practice context. In Jaster, four of the five Texas Supreme Court justices concluded a cross-claimant and a third-party plaintiff (who was originally the defendant) are not the “plaintiff” and therefore are not required to file a certificate of merit with the complaint. The plurality opinion reasoned that “action” means “suit” and that “plaintiff” means the party who initiates the action. The concurring opinion reasoned the certificate of merit requirement does not apply to third-party plaintiffs seeking indemnity and contributions, because the affidavit requirement is limited to actions for “damages.”

The Fourteenth Court rejected TARSCO’s and Orcus’s argument that Jaster does not support ETS because in Jaster, the third-party plaintiff was originally the defendant, but here, ETS is the original plaintiff who initiated the lawsuit. The court concluded that ETS’s status as the original plaintiff who filed a third-party petition against new third-party defendants is not a fact that distinguishes this case from Jaster in a legally meaningful way. The principle identified in Jaster applies equally to plaintiffs, defendants, or counter-defendants acting as third-party plaintiffs. The court therefore reversed the trial court’s orders dismissing ETS’s third-party claims against TARSCO and Orcus.

Upcoming Luncheons

July 13

“Mastering the Art of Briefing Visually (Or, A Picture is worth 1,000 Words),” by Robert Dubose
RSVP deadline: noon on Monday, July 10
CLE: 1.0 hour

August 10*

“When There's Nothing Left: What Every Appellate Lawyer Needs to Know About Bankruptcy Appeals,” by Alan York & Ed Rothberg
RSVP deadline: noon on Monday, August 7
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, James Marrow, at (713) 222-8800.  PLEASE NOTE IN YOUR RSVP IF YOU HAVE A DIETARY REQUEST (vegetarian, gluten free, non-dairy, non-seafood, etc.).

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

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

Features for March 2017

Welcome to the March 2017 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

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

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

by David Furlow

DID YOU KNOW . . . ?
by JoAnn Storey

by Derek D. Bauman

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

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

Multicultural City

By Justice Evelyn Keyes, First Court of Appeals and Angela Spoede

The Houston area truly exemplifies the concept of the American melting pot. Our community embraces citizens and immigrants reflecting cultures from Asia, Africa, Latin America, and Europe. More than one hundred languages are spoken in Houston every day, and, by some estimates, Houston is the most diverse city in the United States of America, surpassing even New York and Los Angeles in terms of the variety of cultures represented on our city’s streets.

Our legal system, including our courts, plays a huge role in supporting the coexistence of these various cultures in our society. So, it comes as no surprise that the cases that come before our city’s courts also reflect the rich diversity of ethnicity and culture found here. In recent months, the Houston courts of appeals have addressed issues ranging from a custody dispute between an Indian citizen and an American citizen to a business conflict between former friends and co-owners of an Asian martial arts school, and the dissolution of a family-run Vietnamese business raising chickens, just to name a few. We have adjudicated a custody dispute between parents of Middle Eastern descent, determined the validity of marriages entered into in a Far Eastern country, and resolved numerous issues involving complex business and financial arrangements among immigrants and citizens that touch on Houston’s diverse cultures, whether they be those found relatively close to home, like Latin America, or require us to venture further afield to Europe and beyond. This list does not even begin to touch upon domestic entities who do business here and abroad, providing yet another contact between Houston and other world cultures.

In all of these interactions—despite their differences in underlying facts and legal substance—there is one common thread. Each of these cases requires the court and the attorneys involved to address fundamental conflicts between social or cultural expectations and the legal remedies actually available through the American justice system. Houstonians’ beliefs about their business and personal relationships are influenced by the culture and social norms familiar to them, but those norms are not always perfectly aligned with legally enforceable relationships in American jurisprudence. In many of these cases, parties enter into personal, financial, or business arrangements that may ultimately fail to satisfy their expectations when analyzed in light of American law. What one culture would treat as an enforceable legal contract or a redressable breach of honor, local courts struggle to put into familiar legal terms that line up with causes of action recognized in Texas.

The lesson for lawyers and judges working in this legal melting pot is this: We must make an effort to educate ourselves on the variety of cultural and legal backgrounds that come before us in our practices and learn to translate cultural expectations into understood and agreed upon enforceable legal obligations. And the lesson for culturally diverse litigants is that, early on, they must seek out attorneys who are familiar with the legal system in which they find themselves—attorneys who can address actual and potential conflicts arising out of their native culture, but do so within the framework of American jurisprudence. Only when both attorneys and courts understand the goals and objectives of the litigants in terms readily cognizable in American law can we truly provide the best possible legal advice and maintain the integrity of our legal system in a way that still does justice for the people of Houston, regardless of their cultural background.

"Sympathetic Summary" as a Tool for Better Appellate Arguments

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

There is no more defining characteristic of appellate practice, and appellate practitioners, than the tendency toward candor and intellectual honesty. While the reputation of our profession is such that the very notion of an “honest lawyer” seems surprising, if not wholly oxymoronic, it is not difficult to understand why intellectual honesty is more or less de rigueur on appeal. Appellate lawyers are, both by training and temperament, a more nuanced, dispassionate, and circumspect, which makes them more intellectually rigorous in their own work, and also more effective in rooting out intellectual dishonesty on the part of others. See Brad Pauley, So You Want To Be an Appellate Lawyer?, 32 GP Solo 10, 12 (Sept./Oct. 2015) (noting that good appellate lawyers typically share a capacity for critical reasoning and detached assessment); The American Academy of Appellate Lawyers, Statement on the Functions and Future of Appellate Lawyers, 8 J. APP. PRAC. & PROCESS 1, 5 (2006) (describing the appellate lawyer as the “traditional solver of legal problems” responsible for providing legal analysis that both advances the client’s cause and the development of the law).

Appellate lawyers are taught early on that candor is a necessity, and (perhaps more importantly) the use of less-than-candid arguments is almost certain to end in disaster:
Cases that are totally one-sided usually don’t make it to the court of appeals. In cases that do, almost all parties—plaintiffs or defendants, appellants or appellees—have some weakness in their position, some point they’d rather not discuss but would be foolish not to. . . . If your position has a weakness, the chances that three or more judges, and each of their law clerks, will all overlook that weakness are exceedingly slim.
Raymond M. Kethledge, A Judge Lays Down the Law on Writing Appellate Briefs, 32 GP Solo 24, 25 (Sept./Oct. 2015). Still, the value attached to candor does have practical limits, and at times even the most conscientious lawyer will struggle to square his or her obligations as an advocate with the “principle of charity.”

For an argument to be logically sound, the principle of charity requires us to avoid straw-man arguments and similar rhetorical tricks, instead addressing our arguments to the best, strongest possible interpretation of an opponent’s position. Leo Groarke, Informal Logic, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Spring 2017 ed.); see also SIMON BLACKBURN, THE OXFORD DICTIONARY OF PHILOSOPHY 62 (1st ed. 1994) (stating that principle of charity “constrains the interpreter to maximize the truth or rationality in the subject’s sayings”). The level of candor necessary to adhere to this principle is usually minimal in the context of appellate argument, often only requiring an occasional word of praise or concession in the face of arguments that are particularly well-developed. As a result, most of us find it painless to concede a point as a tactical measure, allowing us to shore up our credibility with the court while we await opportunities to redirect the argument in more favorable directions. See Andrew S. Sollis, Ten Tips for Persuasive Oral Argument, 32 GP Solo 32, 36 (Sept./Oct. 2015) (noting that concession of points not needed to win argument reinforces the lawyer’s integrity in the eyes of the court).

While the occasional concession is an easy-enough pill to swallow as part of the greater strategy for winning our case, few of us take any great pleasure in the task. We may be appellate lawyers, but we are still lawyers, and so the willingness to concede a point, even an inconsequential one, is not necessarily our first impulse. See Solis, supra at 36 (“Lawyers tend to be reluctant to concede anything—even points that we don’t really need to win. It’s ingrained in us not to give any ground unless we absolutely must.”). However . . . the case can be made for a contrarian approach that not only observes, but systematically embraces the principle of charity as a tool for crafting one’s arguments. Providing a “sympathetic summary” of your opponent’s arguments (the term coined for Darwin’s use of this approach in The Origin of Species) can be a tremendously persuasive approach, and one that is particularly suited for uphill battles to persuade those who are particularly skeptical or suspicious.

As a tool for appellate argument, sympathetic summary could reasonably be described as “the principle of charity on steroids,” as it requires us not only to anticipate the arguments of opposing counsel, but to truly immerse ourselves in them. “[C]ounterargument to your own should first be summarized in its strongest form, with holes caulked as they appear, and minor inconsistencies or infelicities of phrasing looked past. Then, and only then, should a critique begin.” ADAM GOPNIK, ANGELS AND AGES: A SHORT BOOK ABOUT DARWIN, LINCOLN, AND MODERN LIFE 120 (Kindle ed. 2009). Taking a step beyond the mere intellectual honesty required by the principle of charity, sympathetic summary requires that we do all we can to understand and appreciate the deeper intuitive and emotional resonance embodied by our opponent’s arguments. See id. at 118-20 (“Darwin not only posits the counterclaims; he inhabits them. He makes the negative case as urgent and the positive claims . . . reporting an objection or contrary argument . . . if possible with greater force than its own believers[.]”) As a tool for defeating arguments contrary to your own, the strength of this approach lies in developing a measure of “intellectual empathy,” allowing the practitioner to anticipate and preempt arguments by understanding them more fully than their actual proponents, then developing the most robust counterarguments possible. Id. at 118 (observing that this approach allowed Darwin to anticipate arguments against his theory that no one had yet made, in “a really amazing piece of intellectual empathy, and of beating one’s opponents to the punch”).

Moreover, sympathetic summary is an exceptionally useful format for presenting arguments in writing, especially when the court is initially skeptical of your position. By carefully setting out the objections to your position, taking the time to fully acknowledging their perceived strengths before only then presenting the most persuasive counterargument, the sympathetic summary inspires the court to confidence in your position by providing an analytical roadmap to the “right” answer. See id. at 116 (characterizing sympathetic summary as an approach that is “charitable by name, [but] selfishly constructive in intent” because “only by putting the best case forward can the refutation be definitive”). The systematic guide to each side’s arguments is tremendously useful to the court, and will no doubt continue to persuade the court as it drafts its opinion in a way unmatched by the typical “he said, she said” exchange. Indeed, this approach is particularly well-suited for appellate argument precisely because it replicates the court’s perspective, seeking to address the issues in the case as problems to be solved rather than contests to be won. J. Frederic Voros, Jr., To Persuade a Judge, Think Like a Judge, UTAH B. J., Sept./Oct. 2011, at 12, 12. By taking the time to present argument in this format, you provide the court with a ready-made guide to defending its ultimate decision, shouldering the analytical heavy lifting on the court’s behalf in favor of your client’s desired outcome. See id. (stating that “[e]very appellate decision also represents an incremental evolution in the law” that must be defended, and that the likelihood of success is enhanced by providing argument that allows the court to justify its decision with intellectual integrity).

While the advantages of sympathetic summary are readily apparent, it is equally clear that they come at a significant cost. The additional time and effort required to provide a fair and complete account of your opponent’s arguments adds up quickly, and choosing to dedicate substantial space to summarizing your opponent’s best arguments may not be an option when word-count limitations dictate otherwise. Still, the sympathetic summary is an undeniably powerful tool for appellate argument, and under the right circumstances it provides an unparalleled method for influencing the court’s decision.