Features for July 2017

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

CAN YOU (RE)HEAR ME NOW?
Strategies for writing motions for rehearing and for en banc reconsideration
by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

LAW DAY ALLOWED HBA ATTORNEYS TO SHARE THE MUSIC OF A GOOD BOOK
by David Furlow

DID YOU KNOW . . . ?
by JoAnn Storey

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

CROSSWORD PUZZLE
by James Marrow

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

UPCOMING LUNCHEONS
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

FIRST 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.



FOURTEENTH COURT OF APPEALS

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.