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.

Lorenzo de Zavala, the Most Interesting Man in Texas

by David Furlow

I don’t always admire a professional revolutionary, but when I do, it’s usually Lorenzo de Zavala, the most interesting man in Texas. Don’t take my word for it, either. Just turn to William Fairfax Gray, the Virginian who served as the first Clerk of the Texas Supreme Court. Writing in his diary in San Felipe de Austin on February 28, 1836, Gray noted that,
This evening a number of members [of the Convention of 1836, Texas’s constitutional convention] arrived, among them, Lorenzo de Zavala, the most interesting man in Texas. He is a native of Yucatan; was Governor of the State of Mexico for five years, minister to the Fiscal Department and ambassador to France from the Republic of Mexico, which post he renounced when Santa Ana proved recreant to the liberal cause, and he then resided for some time in the United States. He now lives on his estate on Buffalo Bayou, near Galveston. He is a fine writer and Republican; a pure statesman, although some accuse him of inordinate ambition...
William Fairfax Gray, Diary: From Virginia to Texas, 1835-1837 (Dallas: Southern Methodist Univ. 1997), 111.

The Diary of William Fairfax Gray reveals the importance of Lorenzo de Zavala
in early Harrisburg, Houston’s predecessor community.

The representative of Harrisburg, i.e., Harris County, during the Consultation and the Convention of 1836, he urged Texans to take arms against a sea of troubles. A self-trained physician, he presided over the birth of the Republic of Texas. Born Manuel Lorenzo Justiniano de Zavala y Sáenz, Anglicized as Lorenzo de Zavala, exemplifies the best of Texas’s Castilian Spanish traditions. Juan Seguin, Angel and Jose Navarro, Silvestre and Fernando de Leon, and other Tejanos represented other aspects of that tradition. But none played as important an early role in shaping Texas law as Lorenzo de Zavala.

Portrait of Lorenzo de Zavala available through the
Texas State Library and Archive.

Dr. Bruce Winders, Curator of the Alamo, discusses the law and statutory
enactments of the Mexican state of Coahuila y Texas during the Alamo’s
The Legends of Texas series.

Born in the village of Tecoh in the Yucatan Peninsula, de Zavala received a traditional Catholic education at the Tridentine Seminary of San Ildefonso in Mérida in 1807. He began his career as a reform-minded journalist and newspaper editor who served as Secretary of the City Council of Mérida from 1812 until 1814.

After being imprisoned by Spanish authorities in Veracruz in 1814, he learned enough medicine to become a prison physician in 1817 and enough English to become a proponent of constitutionalism. Instead of accepting the “divine right” of kings to rule their peoples, young Lorenzo believed that people must take governance into their own hands. Zavala went to Madrid in 1821 as a deputy to an empire-wide Spanish Cortes (meaning “court,” i.e., a parliament) before revolution drove the Spanish out of Mexico. See Raymond Estep, Zavala, Lorenzo de, HANDBOOK TO TEXAS HISTORY, http://www.tshaonline.org/handbook/online/articles/ZZ/fza5.html (last visited Mar. 7, 2017).

De Zavala helped draft the federalist Mexican Constitution of 1824 to ensure that power came to reside and remain with the people of Mexico. See Stephen L. Moore, Eighteen Minutes: The Battle of San Jacinto and the Texas Independence Campaign 78 (Dallas: Republic of Texas Press 2004). He represented Yucatán as a deputy in two Mexican Constituent Congresses and the Mexican Senate, then won election as Yucatán’s Governor. Centralist Party leaders exiled him to the U.S. Later, de Zavala received a March 12, 1829 empresario grant to settle five hundred families on a huge tract of land in southeastern Texas. After visiting France and England, Zavala returned to Mexico, rose in political prominence, and went to Paris in 1834 as a Mexican diplomat.

When de Zavala learned of General Santa Ana’s seizure of power in Mexico, he denounced Santa Ana as a tyrant, resigned his diplomatic post, and returned to Texas in time to participate in the rebellion that began at Gonzales on October 2, 1835.

By then, Stephen F. Austin and other leaders had drafted the first Constitution for a Mexican State of Texas separate from Coahuila at the General Convention at San Felipe in April of 1833. See Ernest Wallace, David M. Vigness, & George B. Ward, Documents of Texas History 80, 105 (State House Press Austin 1994). One year earlier, in October 1834, Juan Seguin, the Chief of the Department of Bexar, grew dissatisfied with “the reactionary designs of General Antonio Lopez de Santa Anna, who was . . . endeavoring to overthrow the federal system . . . .” Seguin “urged every municipality in Texas to appoint delegates to a convention . . . to meet at San Antonio to consider the impending dangers and to devise means to avert them.”

De Zavala soon joined with Stephen F. Austin in supporting Mexican federalism consistent with the Mexican Constitution de Zavala signed in 1824. See T. R. Fehrenbach, Lone Star: A History of Texas and the Texans 200 (New York: American Legacy Press 1973); Estep, Zavala, Lorenzo de, Handbook. When it became clear that federalism’s prospects were dim in Mexico, the publication of “Opinions of Lorenzo de Zevala” in leading Texas newspapers launched the independence movement.

De Zavala appeared as the representative of Harrisburg in the Consultation of 1835, as it sought autonomy for Texas; he played an even more prominent role in the independence-minded Convention of 1836. Francisco Ruiz and Antonio Navarro went to the Convention in Washington-on-the-Brazos on behalf of San Antonio de Bexar. Their support for independence helped rally Tejanos to fight. De Zavala helped write the Texas Constitution of 1836, as constitutional-law specialist James C. Harrington noted:

Some of the delegates there had helped write constitutions for other states. One of the more prominent delegates was Lorenzo de Zavala, widely respected for his intellectual argument in favor of republican government.

Soon after being appointed there as the Republic’s first Vice President, De Zavala ensured that officials translated the Constitution and the Republic’s statutes into Spanish for Tejano citizens.

That 1836 Constitution provided that, “All laws relating to land titles shall be translated, revised, and promulgated.” The Republic’s Congress mandated that the Commissioner of the Texas Land Office hire a translator who “shall understand the Castillian [sic] and English languages” with the ability to record “all the laws and public contracts relative to the titles of land which are written in the Castillian [sic] language . . . .”

On May 27, 1836, de Zavala became one of the peace commissioners who accompanied the defeated Santa Ana to Mexico City. Soon afterwards, Zavala returned to Harrisburg. Exhausted from travel and in poor health, de Zavala resigned the Vice Presidency on October 17, 1836. Less than a month later, on November 15, 1836, he died of pneumonia. Before he died, de Zavala played a major role in advancing the rule of law in Texas to include Tejanos.

Did you know?

By JoAnn Storey

Lehmann continues to haunt—and trip up—the unwary practitioner. Recall that the supreme court in Lehmann told us that a “judgment rendered without a conventional trial on the merits is final for purposes of appeal” if it “actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). The court gave us an example of clear and unequivocal language that leaves no doubt the trial court entered a final judgment: “This judgment finally disposes of all parties and all claims and is appealable.” Id. at 206.

Lehmann thus taught us to perfect an appeal of an order that is final, even if it is erroneous because it grants more relief than was sought or intended.

The First Court recently applied Lehmann and held that: (1) an order granting a “summary motion” seeking a partial judgment to remove a lien placed on property that contained Lehmann’s finality language was final, and appealable; and (2) because no appeal had been perfected, the trial court’s amended order that sought to “correct” the final order signed outside the court’s plenary power was void and subject to mandamus relief. In re M & O Homebuilders, Inc., ___ S.W.3d ___, No. 01–16–00602–CV, 2017 WL 444445, at *5, 7 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, no pet. h.).

It’s possible the supreme court could take up the issue to determine if the First Court’s holding is a proper application of Lehmann or if it runs counter to the supreme court’s caution that it has “tried to ensure that the right to appeal is not lost by an overly technical application of the law.” Lehmann, 39 S.W.3d at 205.

AppellaTech: Overview of Creating Your Own Electronic Brief

by Derek D. Bauman

Over the course of a number of posts, I've given you instruction on how to automate certain parts of brief writing and how to convert the final draft into a PDF ready for filing. I thought it might be helpful to provide an overview of all of the instructions so you don't have to go searching through the newsletter's archives to find them.

The first thing you need to do to create a good looking brief is set up your paragraph styles so that you can quickly and seamlessly format your block quotes, headings, and all other portions of the brief. If you set this all up in a template file that you use every time you start a new brief, setting up styles is a one-time cost. I devoted two articles to this endeavor. The first covers the basics of setting up styles in a document. The second covers how to set up headers through styles.

Setting up headers in styles is particularly important because it allows you to quickly create and then update a table of contents for your brief. The second article on styles also covers how to do this. As an added advantage, using headers through styles creates correlating bookmarks when you convert to PDF. The second article on styles covers that as well. (Let's be honest, the second article on styles is pretty great.)

So now that you have your template document set up with all of your preferred styles, you're ready to begin writing. And since you're writing an appellate brief, it won't be long until you need to start plugging in legal citations. Did you know there's a really quick way to plug in your citations? You didn't? Lucky for you, I wrote an article on just that topic.

And now that you've plugged in all of your legal citations so quickly, wouldn't it be just grand if you could quickly create a table of authorities that is easy to update every time your brief is revised? You know where this is going, don't you? I wrote an article about that, too! I know!

Most of your heavy lifting on getting your electronic brief ready will take place in your word processor. It is sometimes more useful, however to hyperlink your citations after you have converted the document to PDF. For hyperlinking your record citations, you don't have many options. And none of them are great. Nevertheless, I wrote an article explaining the process for the more determined.

The options for hyperlinking to legal authority is a little better. Not great, but better. This article guides you through the various considerations and links to various instructions on the process.

For at least the near future, this is all I have to guide you through the process. Good luck on your brief writing. I hope I have been able to make the process a little easier for you.

Case Updates for January and February 2017

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


Ayele, d/b/a MAE Solutions, LLC v. Jani-King of Houston, Inc., No. 01-16-00007-CV, 2017 WL 769911 (Tex. App.—Houston [1st Dist.] Feb. 28, 2017, no pet. h.)

A court cannot grant a post-answer default summary judgment when a defendant’s failure to file a response is not due to conscious indifference.

MAE Solutions, LLC (“MAE”) sued Jani-King of Houston, Inc. (“Jani-King”) for several causes of action arising from a failed franchising relationship. Jani-King filed a motion for summary judgment and set the motion for submission on the court’s September 7 docket. MAE filed a motion for continuance on the grounds that its counsel had a vacation letter on file for September 7. The court granted the continuance and interlineated on the order that the motion would be set for submission on October 5th. The court did not send a notice of hearing, and Jani-King did not either. When MAE did not file a response prior to the October 5 hearing, the court granted the summary judgment. Later, counsel for MAE received a postcard notifying him that the summary judgment had been signed. Counsel filed a motion for new trial, attaching an affidavit to prove that he had not received notice of the hearing. The trial court denied the motion for new trial, and MAE appealed.

On appeal, MAE argued that the trial court abused its discretion in denying its motion for new trial because it satisfied its burden under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), to set aside the default judgment. The court noted that the Supreme Court has held that Craddock does not apply when a party opposing summary judgment had notice of the hearing and an opportunity to obtain leave to file a late response before the hearing date. However, when a party does not have notice of the submission date, the court must apply Craddock, which states that a court should set aside a default judgment if (1) its failure to respond resulted from an accident or mistake and not from conscious indifference or an intentional act; (2) the motion for new trial alleges a meritorious defense; and (3) granting the motion will not cause undue delay or otherwise injure the plaintiff.

In the case before it, the court held that the undisputed, verified facts were specific enough to affirmatively prove MAE’s lack of notice. The court noted that “conscious indifference means more than mere negligence.” A defendant may show lack of conscious indifference by providing an excuse that is not controverted and, if true, negates intentional or consciously indifferent conduct on its part. “An excuse need not be a good one to suffice.” The court held that regardless of whether MAE’s counsel should have seen the court’s order granting the continuance and re-setting the submission date, MAE proved that its counsel had not, in fact, seen the order. Accordingly, MAE’s failure to respond was not the result of conscious indifference, and the summary judgment should have been set aside.

Justice Lloyd dissented. He argued that conclusory statements by counsel that counsel did not have notice of the new submission date did not meet the Craddock standard. He would require more from a lawyer such as MAE’s such as an explanation of why counsel did not see the order. He would require the attorney to explain why he did not monitor the status of his motion for continuance. If the attorney monitored the status of his motion for continuance, he would have seen the order re-setting the submission date. Justice Lloyd did not believe the evidence showed an abuse of discretion on the part of the trial court.

Garcia v. Figueroa, No. 01-15-01010-CV, 2017 WL 491284 (Tex. App.—Houston [1st Dist.] Feb. 7, 2017, no pet. h.)

Failure to include a complete reporter’s record when challenging the factual sufficiency of a trial court’s judgment will lead to affirmance of the judgment.

Garcia sued Sasson, her landlord, for issues related to an easement that went through the property. After a jury trial the court rendered judgment that Garcia take nothing from Sasson. Garcia filed a motion for JNOV, arguing that her requested admissions from Sasson were deemed because he failed to timely respond. In the alternative, she filed a motion for new trial arguing that the jury’s findings were against the great weight and preponderance of the evidence. Sasson filed a motion to withdraw the alleged deemed admissions. The trial court granted Sasson’s motion and denied both of Garcia’s motions.

After losing in the trial court, Garcia requested a partial reporter’s record that included some of the trial exhibits. The record did not include all of the exhibits or the trial transcripts. In her notice of appeal, Garcia stated that she “desire[d] to appeal on deemed admissions and other grounds.”

In her brief, Garcia raised the sole issue that the trial court erred in denying her motion for new trial because the jury’s answers were against the great weight and preponderance of the evidence. Sasson argued that Garcia failed to comply with Texas Rule of Appellate Procedure 34.6(c), governing the filing of a partial reporter’s record.

An appellant can request a partial reporter’s record and “include in the request a statement of points or issues to be presented on appeal and will then be limited to those points and issues.” Tex. R. App. P. 34.6(c)(1). An appellant cannot simply give general notice of stated points and issues; rather, the points or issues should be described with some particularity. When an appellant properly requests a partial reporter’s record, the court must “presume that the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues.” Tex. R. App. P. 34.6(c)(4). However, nothing in Rule 34.6(c) relieves an appellant of her burden to bring forth a record showing reversible error. Rule 34.6(c), when properly complied with, prevents the application of the general presumption that missing portions of the record support the trial court’s judgment. Thus, if the rule is not properly followed, the court must presume that the omitted portions support the trial court’s judgment.

In the case before it, Garcia stated only that she “desire[d] to appeal on deemed admissions and other grounds.” Thus, the court held, she was entitled to the presumption that the partial record was complete only for purposes of reviewing deemed admissions. Because the only issue she raised in her brief was a factual sufficiency point, the court presumed that any omitted portions of the record supported the trial court’s judgment. The court dismissed Garcia’s argument that Sasson could show no harm because he was able to supplement the record if he so desired. The court noted that the fact that Rule 34.6(c)(2) allows supplementation does not relieve the appellant of her own burden to bring forth an adequate record in the first place.

Presuming that the omitted portions of the record supported the trial court’s judgment, the court affirmed the judgment.


Arceneaux v. Pinnacle Entertainment, Inc., No. 14–15–00894–CV, 2017 WL 716631 (Tex. App.—Houston [14th Dist.] Feb. 23, 2017, no pet. h.)

Proportionate-responsibility statute in Chapter 33 of the Texas Civil Practice and Remedies Code applies to intentional torts.

Plaintiff Roy Arceneaux became disruptive at a Pinnacle casino, where he was drinking and gambling. A security officer asked him to cash his chips and leave. When Arceneaux did not comply, casino security officers brought him to the ground in an effort to subdue him.

Arceneaux filed for various claims against Pinnacle including civil assault. After trial, the jury found that Pinnacle committed assault against Arceneaux; that Arceneaux contributed to the occurrence or injuries; that Arceneaux was 70 percent responsible and Pinnacle was 30 percent responsible; and that a total of $40,000 would fairly and reasonably compensate Arceneaux.

If chapter 33 applies to a claim, a claimant may not recover damages if his proportionate responsibility is greater than 50 percent. Tex. Civ. Prac. & Rem. Code Ann. § 33.001 (West 2013).

Pinnacle filed a motion for entry of a final take-nothing judgment asserting sections 33.001 and 33.002 of the Texas Civil Practice and Remedies Code apply. Arceneaux moved for judgment in his favor arguing those sections do not apply. The trial court entered a final, take-nothing judgment in favor of Pinnacle.

Arceneaux argued on appeal that the trial court erred because the jury found that Pinnacle committed assault against him and it rejected Pinnacle’s defenses to assault. Pinnacle responded that the trial court did not err because the jury determined that Arceneaux was 70 percent responsible and chapter 33 applies to intentional torts.

The Fourteenth Court agreed with Pinnacle and affirmed the trial court’s take-nothing judgment. The panel concluded chapter 33 applies to assault claims for three reasons. First, chapter 33 is broad and applies to “any cause of action based on tort in which a defendant . . . is found responsible for a percentage of the harm for which relief is sought.” Tex. Civ. Prac. & Rem. Code § 33.002(a) (West 2013). Second, the panel concluded that section 33.002 is unambiguous and does not provide any exclusion for intentional torts. The panel pointed out that the 1987 version of chapter 33 expressly excluded intentional torts, but the 1995 amendments removed the exclusion. Third, Texas courts of appeals have rejected arguments that chapter 33 does not apply to the intentional tort of fraud, and that a Southern District of Texas federal district court rejected an argument that chapter 33 does not apply to assault.

Lastly, the court rejected Arceneaux’s argument that the jury’s rejection of an affirmative defense displaces the broad application of chapter 33. The court affirmed the trial court’s judgment.

In re C.Y.K.S., No. 14–15–00554–CV, 2017 WL 536644 (Tex. App.—Houston [14th Dist.] Feb. 9, 2017, no pet. h.)

Section 231.211(a) of the Family Code does not apply to the assessment of appellate costs.

This is a supplemental opinion on the denial of appellee’s motion for rehearing. The Fourteenth Court reversed a trial court’s order that dismissed for lack of jurisdiction an order that modified appellant’s monthly child-support obligation. The Fourteenth Court ordered appellee to pay all costs incurred by reason of this appeal. Appellee moved for a rehearing on the ground that section 231.211(a) of the Family Code bars the appellate court from ordering her to pay costs.

The court denied the rehearing motion and concluded that section 231.211(a) does not bar the court from assessing appellate costs against appellee.

Section 231.211(a) provides that “[a]t the conclusion of a Title IV-D case, the court may assess fees . . . except that the court may not assess [attorney’s fees and court costs] against . . . any party to whom the [Title IV-D] agency has provided services under this chapter.” A “Title IV-D case” means “an action in which services are provided by the Title IV-D agency under Part D, Title IV, of the federal Social Security Act (42 U.S.C. § 651 et seq.). The court presumed that appellee was a party to whom services had been provided because the Texas Attorney General’s Office, a designated Title IV-D agency, had filed child-support enforcement actions in the case. The court also made a presumption that the Fourteenth Court of Appeals fell within the definition of “court.” Tex. Fam. Code Ann. § 101.008 (West, Westlaw through 2015 R.S.).

Three other courts of appeals have concluded section 231.211(a) applies to the assessment of appellate costs. See Target Logistics, Inc. v. Office of Att’y Gen., 465 S.W.3d 768, 770 (Tex. App.—El Paso 2015, no pet.) (applying section 231.211(a) to the assessment of appellate costs); In re J.D.D., No. 05-10-01488-CV, 2011 WL 5386370, at *4 (Tex. App.—Dallas Nov. 9, 2011, no pet.) (applying section 231.211(a) to the assessment of appellate costs against party to whom the Title IV-D agency had provided services); In re Z.H.S., No. 13-08-00204-CV, 2009 WL 265274, at *1 (Tex. App.—Corpus Christi Feb. 5, 2009, no pet.) (same as Target Logistics). Because those decisions did not analyze the language of the statute, the court respectfully declined to follow those courts of appeals.

The court conducted a plain language analysis of section 231.211(a). The court said that the plain language of “at the conclusion of a Title IV-D case” meant at the conclusion of the trial court proceedings. Finding otherwise would mean there would be two conclusions—the conclusion of a trial and the conclusion of an appeal. This would be contrary to the plain meaning of “conclusion.” Moreover, if appellate courts applied 231.211(a) it would mean that appellate courts would be making findings on reasonable and necessary attorney’s fees, which is contrary to Texas law.

The court denied appellee’s motion for rehearing and concluded the court had the authority to order her to pay appellate court costs for good cause. See Tex. R. App. P. 43.4.

In re Marshall, No. 14–17–00038–CV, 2017 WL 370117 (Tex. App.—Houston [14th Dist.] Jan. 24, 2017, orig. proceeding)

After a party files a motion to recuse, a respondent judge must, within three business days, grant the motion to recuse or refer the motion to the regional presiding judge, regardless of whether the motion complies with the Texas Rule of Civil Procedure 18a(f)(1).

During a hearing on a temporary restraining order, relator filed a handwritten motion to recuse the trial judge. The trial judge responded that he believed the handwritten motion did not comply with the rules, but took the motion under advisement. After the hearing, he signed the TRO without granting the motion or referring the motion to the regional presiding judge. Relator filed a petition for writ of mandamus.

The Fourteenth Court conditionally granted the writ of mandamus. Justice Jewell, writing for the majority, explained that under the clear language of Rule 18a(f)(1), a judge must either recuse or refer the motion, even if the motion is defective. Real party in interest had cited a line of cases holding that a relator waives any right to complain of a judge’s refusal to recuse if the motion does not comply with the mandatory requirements of Rule 18a. Those cases, however, were decided before the rule was amended in 2011 to say a judge must recuse or refer “regardless of whether the motion complies with this rule.” Tex. R. Civ. P. 18a(f)(1).

Alternatively, the real party in interest argued that respondent had good cause for issuing the TRO before the motion to recuse was decided. The Fourteenth Court concluded the record was insufficient to support a “good cause” argument.

Upcoming Luncheons [Updated]

April 13

“Trial Versus Appellate Courts: Unexpected Differences That Should Influence Your Advocacy” by Honorable Gregg Costa, U.S. Court of Appeals for the Fifth Circuit
RSVP deadline: noon on Monday, April 10
CLE: 1.0 hour

May 11*

“Winning Strategies for Petitioners and Respondents in the Texas Supreme Court.” by Warren Harris and David Keltner
RSVP deadline: noon on Monday, May 8
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.