Features for January 2018

Welcome to the January 2018 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

A speech celebrating the 125th anniversary of the
Fourteenth Court of Appeals
by Justice Ken Wise, Fourteenth Court of Appeals, Houston


by David A. Furlow

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

Form and Function in Appellate Brief Writing: A View from the Bench

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

A discussion of the relationship between form and function had been ongoing in design and engineering circles for decades, from Louis Sullivan’s conviction that “form ever follows function” to the more modern construction by Steve Jobs that design is not just what a thing looks like but how it works. While lawyers’ work product is materially different from that of an architect or designer, we can learn a thing or two by contemplating the relationship between the form and the function of our writings, especially as they relate to persuading a court.

It is tempting to think of the form and the function of a brief as two separate considerations. For example, lawyers balance complying with the word limit requirements while still conveying the important legal issues. We attend CLE presentations on the topic of best practices in formatting briefs so that the legal arguments are more accessible to the judges who will read them. But the very best briefs—the very best writings—combine both form and function into one seamless product. Or, as famed architect Frank Lloyd Wright would have it, “Form and function should be one, joined in a spiritual union.” Any lawyer hoping to persuade a court through a brief should use every aspect of writing—the “form” of word choice, syntax, and argument structure and to the “function” of the substantive ideas needing to be conveyed—to serve the ultimate goal of persuading the Court.

The starting point must always be to know your goal. It has actually happened more than once during oral argument that the Court has received the answer, “I don’t know,” in response to the question, “What would you like us to do here?” It is unfortunately common for the Court to receive briefs that are a collection of defensive reactions, disjointed facts, legal citations, and arguments seeking to combat an unfavorable ruling or argument of the opposing party. A brief is far more effective when the practitioner determines, from the beginning, the action she wants the Court to take so that everything, from the facts all the way through the analysis to the final prayer for relief, helps to meet that goal.

From that starting point of setting up a persuasive brief, a good writer proceeds through ever-narrowing considerations of the form of the writing until she arrives at a finished product. She should select the big ideas, or issues, that will help to reach the goal. And she should resist the temptation to clutter those ideas with extraneous thoughts or less-meritorious arguments that cause the Court to lose its way through the forest. I have rarely seen a case that merits serious consideration of any more than two or three core issues.

Making a winning case on the core issues starts from the first word. Take hold of the facts from the beginning and set them out with logical force. Tell a story that is easy to follow and that makes your desired conclusion seem almost inevitable. Rambling statements of fact that leave out important details, bury those details, drag red herrings across the path, or take off on rabbit trails do not serve anyone.

Remember to consider the audience for the brief: judges and staff who are not as familiar with the details of the case and will need a thorough explanation of various terms of art or other law unique to the circumstances. Also consider opposing counsel who are very familiar with the case and will be lying in wait for any false or foolish step. Even experienced lawyers make the error of leaving out foundational information—such as the actual language of a disputed statutory or contractual provision—leaving the court to fill in details before it can consider the merits of the arguments. Be careful, too, in providing citations to the record to support your statements of fact, so that the Court can easily verify your statements and find the relevant documents.

The analysis should always be structured to support the ultimate goal. Set out the applicable legal standards and supporting law in a way that mirrors the facts already provided. Be specific regarding which evidence and relevant facts support the different elements of the claim. And don’t forget to draw a conclusion and ask for what you want. It is always most helpful when the conclusions and prayer for relief are specific and detailed.

Finally, consider word choice and syntax carefully. Be sure to do a round of editing or proofreading exclusively dealing with issues of grammar. Most judges will not dismiss valid legal arguments just because they are communicated unartfully or with grammatical errors. But they notice. And it does not help you if the judge thinks you cannot write a grammatical sentence or a logical argument.

It behooves every writer to put effort into learning and using proper grammatical forms. At best, extensive errors of grammar or spelling are distracting and undermine the judge’s confidence in the strength of your legal arguments. In the worst cases, such errors as sentence fragments and poor word choice can make your arguments nearly incomprehensible. Writers with “amble” evidence to support their positions, who write impenetrable run-on sentences, or who use an ellipsis in every other line, make brief-reading a chore. By contrast, pithy and appropriate word choice, clear syntax, and logical structure reinforce the strength of sound legal arguments and lend credence to your position.

And there is one other thing. Do not take a scornful attitude towards the intelligence of the judge or opposing counsel in a brief or in court. Yes, this happens too, though seldom. And when it does, it undermines everything you have just done to persuade. Keep always on track with your clear goal in mind: a clean and honest win for a well-put cause.

Reflections on the Fourteenth Court of Appeals

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 Ken Wise delivered a speech, which tracked the fascinating history of the Fourteenth Court of Appeals. We are publishing the speech here, with his permission.

Good afternoon. What a special honor it is to be present at a significant anniversary of the Houston Courts of Appeals. Historic events of late have not been on the positive side of the ledger so this day is certainly welcome.

The creation of the Fourteenth Court of Appeals is truly a lesson in sausage making. In 1967, the Texas constitution provided for only three justices on a court of appeals. Jim Kronzer, a name familiar to us all, grew weary of waiting on opinions from an overworked First Court of Appeals. So he went to a State Representative named Jack Ogg to expand the opportunity for justice in the Houston area. Representative Ogg got his bill passed out of the House and Senator Chris Cole from Harris County carried it in the Senate.

Sen. Cole had a bit of difficulty with the state affairs committee being chaired by the “Bull of the Brazos,” Senator Bill Moore. Cole couldn’t get a hearing. Wondering what it might take, Senator Cole went to visit with Senator Moore. Senator Moore informed the young Senator that it would be very helpful if Moore’s former law partner and current Brazos County District Judge John Barron could be appointed as one of the first Justices of the new court. Of course, since Justice Barron would want to stay in Bryan, it would also be helpful if the new Fourteenth Appellate District included Brazos County. Cole, of course, agreed and off Senators Cole and Moore went to visit with Governor John Connally about the new Court. Cole recruited a couple of co-sponsors by the way, Hank Grover and Barbara Jordan.

The Governor agreed to appoint John Barron to the Court should the bill pass. Shortly, Senator Cole got his hearing and the new court was created effective September 1, 1967.

The first justices were Chief Justice Bert Tunks and Justices Sam Johnson and John Barron. Justice Johnson went on to serve on the Texas Supreme Court. He was joined by four other Justices who went from the Fourteenth to the Supreme Court. Those were Harriet O’Neill, Scott Brister, Eva Guzman, and Jeff Brown. Two Justices of the Fourteenth later served in the federal judiciary, Sam Johnson and George Cire.

Curtiss Brown was the longest serving justice, serving from 1973-1995. The shortest tenure belongs to Gary Bowers who took office in 1993 and unfortunately passed away the same year.

The Fourteenth has had two chief justices who had previously served on the First Court: Adele Hedges and Scott Brister.

In our first 50 years there have been six clerks of the Fourteenth. Richard Tisdale was the first, followed by Thelma Mueller, Claudine Parten, Mary Jane Smart Gay, Ed Wells, and Chris Prine. Hurricane Harvey, by the way, has resulted in Ed Wells returning to his old stomping ground in a temporary office next door to me.

As of July 31, 2017, the Fourteenth has issued 45,265 opinions and disposed of 46,241 appeals. At least six have been reviewed by the United States Supreme Court.

The Fourteenth originally sat in the first floor of the 1910 Courthouse. It moved to the South Texas College of Law Building in 1983 and stayed there for 28 years, returning home to this beautiful building in 2011.

One of the biggest changes in all of our lives has been technology, and the Fourteenth uses it to the fullest. In the early days, the judges wrote out opinion drafts in longhand. I’m sure that resulted in shorter opinions. I can only laugh at the thought of my writing out an opinion in longhand where it would most certainly be rejected by West Publishing as wholly illegible.

Sam Johnson, son of that first justice of the Fourteenth, told me that the biggest technological advance at the court was the purchase of a xerox machine. He and I are the same age and both of us fondly remember xeroxing the side of our faces and hands, on our dad’s respective office xerox machines. Justice Harvey Hudson led the charge out of the technological dark ages by designing one of the first programs to circulate draft opinions electronically. Chief Justice Adele Hedges furthered the technological advances and paved the way for the current case management system operated by the Texas Office of Court Administration.

Today, everything the Fourteenth works on is online. We can read, write, and do research with no more than a cell phone. I maintain this ability has revolutionized the way appeals make their way through the process.

Another important factor in the performance of the Fourteenth is our coordination with the First. In addition to the efficiencies gained by sharing a clerk, we work together on security, training, and other issues. While some claim angst about our jurisprudence not always matching exactly, we can continue to hope the First Court will just do what we say.

It is a tremendous honor and a true pleasure to be a part of the relatively short history of the Fourteenth Court of Appeals. I know I speak for my colleagues when I say that we all pledge our best efforts to extend its history of success. Thank you for attending today.

HBA Volunteer Lawyers and Judges Give Back to the Houston Community - and Will Again in 2018

By David A. Furlow

The Houston Bar Association shared dozens of Houston area lawyers and judges with elementary school teachers and students throughout the Houston area during Law Week activities during the autumn of 2017. HBA attorneys have sponsored readings in elementary schools for many years now, after first presenting Constitution Day ceremonies in 2007.

Photos of Judge Erin Lunceford reading to students at Rod Paige
Elementary School.

HBA Director of Projects Bonnie Simmons says that the HBA plans to conduct attorney and judge readings in over 100 elementary schools during the April/May period reserved for Law Week Readings. Despite delays caused by Hurricane Harvey, Karen Lukin organized other HBA volunteers to present programs and PowerPoints at high schools throughout Houston from October 25 through 30. We have finalized a power point and other materials to use as a suggested guide for the Dialog on Freedom presentations to local high schools.

Any judge or attorney who would like to give back to the community by reading in Houston area elementary schools can join the program by contacting HBA Director of Projects at the following address:

Bonnie Simmons
Director of Projects, Houston Bar Association
1111 Bagby, FLB 200 | Houston, Texas 77002
713-759-1133 (p)
713-759-1710 (f)

Did You Know?

By JoAnn Storey

The twenty-one day notice requirement for the hearing on a motion for summary judgment does not apply to a resetting of the hearing, provided the nonmovant received notice twenty-one days before the original hearing. LeNotre v. Cohen, 979 S.W.2d 723, 726 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex. App.—Texarkana 1992, no writ); Hart v. State, No. 03-02-00542-CV, 2003 WL 549273, at *3 (Tex. App.—Austin 2003, no pet.). The reasoning behind the twenty-one day requirement in rule 166a(c) is to give the nonmovant sufficient time to prepare and file a response for the original setting. LeNotre, 979 S.W.2d at 726. By rescheduling a hearing, the movant is actually giving the nonmovant additional time to respond. Id. Therefore, a party need only give reasonable notice that a hearing on a summary judgment has been rescheduled. Id. Reasonable notice, however, means at least seven days before the hearing on the motion because a nonmovant may only file a response to a motion for summary judgment not later than seven days prior to the date of the hearing without leave of court. Id. But see Brown v. Capital Bank, N.A., 703 S.W.2d 231, 233 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (holding three days was sufficient notice of the rescheduled hearing because nonmovant had notice of the motion for summary judgment more than seventy-five days prior to the final hearing).

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 Update for October, November, and December 2017

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


In re Wagner, No. 01-15-00744-CV, 2017 WL 6374549 (Tex. App.—Houston [1st Dist.] Dec. 14, 2017, orig. proceeding)

An order granting a new trial must state a legally appropriate reason for its issuance, and the record must support the trial court’s rationale; otherwise, an appellate court may issue mandamus to correct the error.

Jenny Wagner was injured during a fire that took place at a residential-care facility for disabled adults. The fire was started by another resident at the facility, Esperanza Arzola. Wagner, through her guardian, filed suit against Anthonia Uduma and Four J’s, the operators of the facility. The jury found that: Four J’s was 60% liable for Wagner’s injuries, Uduma was 40% liable, and Arzola’s negligence did not cause Wagner’s injuries. The jury awarded more than $8 million in damages. Uduma and Four J’s filed a motion for new trial, which the trial court granted. The trial court explained that the jury’s failure to find negligence by Arozla—who was the “cause-in-fact” of the fire—was so against the great weight of the evidence as to be clearly wrong and manifestly unjust. Wagner filed a petition for writ of mandamus seeking to have the new trial order overturned.

The court of appeals began its analysis by noting that, in granting a new trial, the trial court must state a reason for doing so. Moreover, that stated reason must be (1) “legally appropriate,” articulating a “well-defined legal standard” or a “defect that probably resulted in an improper verdict,” and (2) “specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reason from the particular facts and circumstances from the case at hand.” After the court examines the order to see if it meets that two-part test, it may still conduct a merits review and grant mandamus relief if “the record does not support the trial court’s rationale for ordering a new trial.”

Examining the order before it, the court held that the order was sufficiently specific, in that it pointed to evidence that Arzola started the fire in question. However, the court held that the order did not meet the first prong of the test, because the evidence that Arzola was the “cause-in-fact” of the fire did not undermine the jury’s finding. Negligence requires a showing of proximate cause, i.e., cause-in-fact and foreseeability. Cause-in-fact is only one component of that analysis. Accordingly, the new trial order was defective on its face.

Nevertheless, the court went on to conduct a full review of the record and found that the order was also defective because the record did not support the trial court’s conclusion. The court of appeals conditionally granted the writ of mandamus.

Eichner v. Jester, No. 01-16-00956-CV, 2017 WL 4638295 (Tex. App.—Houston [1st Dist.] Oct. 10, 2017, no pet. h.)

In a breach of contract action involving a contract that provides for the payment of interest, the pre- and post-judgment interest rate is 18%, and a judgment ordering the lower 5% rate may be reformed on appeal to state the correct rate.

Kenneth Eichner, P.C. (“Eichner”), a law firm, obtained a default judgment against a former client. The retainer agreement between Eichner and the client stated that interest would accrue on any unpaid amounts at the rate of 18% per annum or the maximum legal rate, whichever is less. The trial court awarded 5% pre- and post-judgment interest on its award. Eichner appealed for the narrow purpose of challenging the interest rate, which he contended should have been 18%.

The court of appeals explained that when a contract provides for interest, the pre- and post-judgment interest rate is not 5%, but rather is the lesser of the rate stated in the contract, or 18%. The court stated that the trial court does not have discretion in awarding prejudgment interest—it may not order more than allowed by law, but it also may not order less. Because the contract provided for the maximum legal rate or 18% as interest, the court held that the award should have been 18%, rather than 5%, which was awarded under the wrong section of the Finance Code.

Rather than remand the case for the correction of the interest rate, the court modified the judgment, inserting “18%” for “5%” throughout the judgment. As modified, the court approved the judgment.


In re the Williams Cos., 14-17-00701-CV, 2017 WL 5196239 (Tex. App.—Houston [14th Dist.] Nov. 9, 2017, orig. proceeding)

A Rule 11 agreement calling for focused discovery on agreed search terms did not require the parties to produce privileged or irrelevant documents.

North American Polypropylene ULC (“NAPP”) sued The Williams Companies, Inc. and other defendants (“Williams Parties”) asserting claims for fraud and negligent misrepresentation.

The Williams Parties filed a motion to dismiss, arguing that the trial court was an improper forum for litigation. Another defendant corporation filed a special appearance. NAPP served the Williams Parties with a discovery request for documents relating to a particular project. The Williams Parties objected that the discovery requests were overly broad, burdensome, and irrelevant to forum and jurisdictional discovery. NAPP moved to compel discovery. At the hearing on NAPP’s motion to compel, the trial court orally instructed the parties to conduct discovery relating to forum and jurisdictional issues, but the trial court signed an order directing the Williams Parties to produce all of the documents NAPP had requested.

Afterward, the Williams Parties and NAPP entered into a Rule 11 agreement defining the scope of discovery. In the Rule 11 agreement, the parties agreed that their obligations under the order are to undertake “focused discovery” on issues related to jurisdiction and forum. The Rule 11 agreement stated that the parties would agree on search terms.

The Williams Parties conducted a search pursuant to the agreed search terms, but they withheld all documents that they determined were privileged or irrelevant to the forum and jurisdictional issues. NAPP filed a motion to compel arguing that under the Rule 11 agreement, the Williams Parties were required to turn over all of the documents found under the search terms. The trial judge granted NAPP’s motion and ordered the parties to turn over all documents found under the search terms.

The Williams Parties filed a petition for writ of mandamus, arguing that the trial court abused its discretion by incorrectly interpreting the Rule 11 agreement to require production of the entire pool of documents, without regard to relevance.

The court of appeals conditionally granted mandamus relief, concluding that the Rule 11 agreement unambiguously limited discovery to non-privileged documents that are relevant to forum and jurisdictional issues. The court reasoned that the Rule 11 agreement did not state that it supplanted Texas discovery rules, which limit the scope of discovery to information that is relevant or reasonably calculated to lead to the discovery of admissible evidence. The court also noted that nowhere in the Rule 11 agreement did the Williams Parties agree to waive any privileges, including attorney-client privilege.

In re Estate of Nunu, 14-16-00394-CV, 2017 WL 5196145 (Tex. App.—Houston [14th Dist.] Nov. 2, 2017, no pet. h.)

A party does not waive its right to appeal a judgment by failing to request a complete transcript. The appellate court may on its own motion order the trial court to supplement the record.

A brother lacked standing to pursue a claim for fee forfeiture of his sister’s attorney’s fees. Because the brother did not make the attorneys parties to the suit, the trial court lacked jurisdiction to render a declaratory judgment regarding fee forfeiture.

A brother and sister were beneficiaries of their mother’s estate, and the sister was the independent executor. The brother initially asserted claims against the sister relating to the administration of the estate, including an attempt to remove his sister as independent executor. The brother also filed an application to compel distribution of the estate. Ultimately, the brother nonsuited many of his claims, but continued to pursue a few claims including a request for forfeiture of the fees charged by the sister’s attorneys. The trial court denied the brother’s requests for relief, and the brother appealed.

In the court of appeals, the sister argued that the brother waived his right to appeal because he did not request a complete transcript of the trial and all pretrial hearings. In designating the clerk’s record, the brother included only 13 of the 418 entries on the docket sheet. The court rejected this argument, explaining that the Texas Rules of Appellate Procedure no longer place the burden on any party to designate items to be included in the appellate record, but instead permit any party, the trial court, or the appellate court to place them in the record. See Tex. R. App. P. 34.5. The appellate court on its own motion ordered the record supplemented to resolve appellate issues.

The court then turned to the brother’s claim for fee forfeiture. The court explained that Texas Estates Code section 404.0037(a) allows an independent executor who in good faith defends an action for the independent executor’s removal to receive reasonable attorney’s fees out of the estate’s funds. The sister used some of the estate’s funds to pay at least a portion of the attorney’s fees incurred in defending the suit brought by the brother. The brother challenged those fees by arguing that the sister’s attorneys were professionally negligent and breached fiduciary duties that they owed to the sister and the estate. Accordingly, the brother sought a declaratory judgment that the fees should be forfeited.

The court concluded that the brother could not assert his fee forfeiture claim because (1) the brother failed to make the attorneys parties to the action, and (2) the brother lacked standing to pursue claims based on the relationship between the sister and her attorneys. The court explained that the brother’s failure to make the attorneys parties to the claim meant that the attorneys would not be bound by any declaratory judgment because Texas Civil Practice and Remedies Code section 37.006 limits the reach of declaratory judgments to parties to the suit. The court concluded that any declaratory judgment would be advisory and the trial court lacked jurisdiction to render an advisory opinion.

The court ultimately remanded the case for the trial court to address whether the attorney’s fees were reasonable and necessary and for the trial court to compel distribution of the estate in accordance with the will.

Range v. Calvary Christian Fellowship, 530 S.W.3d 818 (Tex. App.—Houston [14th Dist.] 2017, no pet. h.)

Evidence supported only $167,714 of $232,000 awarded in attorney’s fees. The court suggested remittitur rather than remand because there were no outstanding questions for the trial court to resolve.

A commercial landlord rented commercial space to a tenant. The lease provided the tenant various rights of first refusal if the landlord decided to sell the property during the term of the lease. The lease also provided for reasonable attorney’s fees to any person who prevails in a legal proceeding “related to the transaction described in this lease.”

When space became available, the landlord and tenant began negotiations for the tenant to purchase the space, but the parties did not reach a sale agreement. The parties then negotiated for the tenant to lease additional space, but again, the parties were unable to reach an agreement. The tenant sued the landlord, alleging that the parties’ communications constituted an agreement to sell or lease the property. The tenant asserted claims for breach of contract and promissory estoppel, among others. A party whose interests were related to the tenant intervened.

The jury found against the tenant and intervener (collectively, “the plaintiffs”) on the breach of contract claim but in favor of the plaintiffs on the promissory estoppel claim. The jury awarded $6,350 to restore the tenant to its pre-reliance position and $5,000 to restore the intervener to his pre-reliance position. The jury also awarded $232,000 to the plaintiffs for attorneys’ fees in the trial court.

The trial court rendered judgment awarding damages on the promissory estoppel claims, but denying each side’s request for attorney’s fees. Both sides appealed the judgment.

The court of appeals rejected the plaintiffs’ argument that the evidence conclusively proved an enforceable agreement to sell the property and that the landlord breached the lease agreement. The court also concluded that the record contained no evidence of reliance damages, and the plaintiffs therefore could not recover on their promissory estoppel claims.

The court determined that the landlord is entitled to attorney’s fees under the contract provision awarding attorney’s fees to the prevailing party. The court concluded that the landlord is the prevailing party because it obtained a take-nothing judgment on the main issue in the case (whether there was an enforceable agreement for the landlord to sell or lease).

However, the court concluded that the evidence supported only $167,714.97 in attorney’s fees—not the $232,000 awarded by the jury. The court discussed examples of when it is necessary to remand for a hearing on attorney’s fees, but concluded that remand was unnecessary because its judgment did not leave any outstanding questions for the trial court. The court suggested remittitur of the excess attorney’s fees, and held that it would remand if the landlord did not accept the suggestion of remittitur.

Upcoming Luncheons

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, .5 hour ethics

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.