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.