Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

The Texas Supreme Court issued four opinions with today's orders.

In National Plan Administrators, Inc. v. National Health Insurance Co. (No. 05-0006), the Court held that a third-party administrator did not owe a general fiduciary duty to an insurer in light of the parties' agreement and certain provisions in the Insurance Code.  The Court therefore reversed the court of appeals' judgment affirming a monetary awardand rendered judgment that the insurer take nothing.

In Texas Parks & Wildlife Department v. E.E. Lowrey Realty, Ltd. (No. 05-0157) (per curiam), the Court applied its recent decision in Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) and held that Government Code § 51.014(a)(8) provided the court of appeals with jurisdiction to consider the appeal of Department employees named as codefendants in the suit.  Reversing the court of appeals' judgment, the Court dismissed the plaintiff's claims against the employees and the Department after concluding that they were incurably defective and therefore should not be remanded.

In A.G. Edwards & Sons Inc. v. Beyer (No. 05-0580), the Court rejected the contention that Probate Code § 439(a) barred the plaintiff's breach of contract claim against A.G. Edwards and affirmed the court of appeals' judgment affirming a $791,200 jury verdict.  However, the Court reversed and remanded for a new trial on attorney's fees because the plaintiff failed to segregate fees between her breach of contract and tort causes of action.

In Lamesa Independent School District v. Booe (No. 05-0959) (per curiam), the Court reiterated its holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006) that Education Code § 11.151(a) is not a clear and ambiguous waiver of sovereign immunity.  Because the court of appeals determined otherwise, the supreme court reversed and remanded the case to the court of appeals to consider issues it did not reach.

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In a thought-provoking series over at his legal-writing blog, Wayne Schiess ruminates on the reasons why modern legal writing isn't what it should be.  Among the causes he cites are a primary and secondary education system that doesn't emphasize writing education adequately, reliance on poorly written judicial opinions and form documents, merely superficial understanding of legal authorities and transactions, and a lack of time to edit one's work appropriately.  All legal writers at all levels should read and reflect on these posts.

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Residing and practicing in Austin, I follow the Third Court of Appeals pretty closely.  I note that the Court has not released a substantive opinion in a civil case since September 14, 2007.  Are we headed for a barrage?

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The Texas Supreme Court issued no opinions with today's orders.  Interestingly, the Court denied the motion to recuse filed in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416) (previously discussed here and  here), which reportedly had been set for oral argument with the mandamus petition next Thursday.

UPDATE: The Court's spokesman, Osler McCarthy, has confirmed that reports of a hearing on the Columbia motion were mere rumors.  Accordingly, I have taken down today's earlier post on that subject.  Ugh!

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I filed a brief recently in which I made the decision to discard an issue litigated at trial in favor of stronger arguments that, in my judgment, provide better prospects for obtaining appellate relief.  Ray Ward, author of the (new) legal writer, compares this exercise to the "kitchen-sink" approach.  According to Ray:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge.  So should we get rid of those weak issues and arguments?  Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out.  Kenneth Oettle says it better than I can:

Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs.  This is how slot machines work.  Random payoffs keep the patrons pulling.  So it is with weak arguments.  We have all won something with a weak argument, so we keep using them.  We seem to think that persuading a judge is a matter of pushing buttons until we find the right one.  The right argument is, in a sense, a button—if you press it, you persuade.  But weak arguments are buttons, too, and unlike the Close Door buttons on elevators, they are connected to something.  At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court's intelligence.

James McElhaney says the same thing in a different way:

Are there risks in [discarding weak arguments]?  You bet.  Good legal writing is good writing.  It's also good lawyering.  Good writing and good lawyering both involve taking risks.  That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldnt fly in the real world.  Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk:  creating a mishmash of legal theories that produces lumpy, sodden writing.

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The Texas Supreme Court issued no opinions with this week's orders.  Hmmmm.  Maybe I'll start the weekend early . . . .

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Appellate geeks like me are already interested in In re Columbia Medical Center, Subsidiary, L.P.  (No. 06-0416), a case in which the Texas Supreme Court will re-examine whether a trial court's decision to grant a new trial is reviewable by mandamus.  (Oral argument is set for September 27.)  But the real parties in interest have filed a recusal motion that will lift more than a few eyebrows.  Texas Lawyer provides the details here.

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In Wolk v. Wolk, the Third Court of Appeals has reversed a no-answer default divorce decree challenged in a restricted appeal, holding that error was apparent on the face of the record because the plaintiff presented no evidence identifying, describing, and valuing community assets awarded in the decree.  Without this evidence, the trial court could not have divided the community estate in a manner that was "just and right" under Texas Family Code § 7.001.  Accordingly, the appellate court reversed the decree and remanded the case for a new trial on the issues appellant raised, which also included child support and attorney's fees.

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In Romano v. Newton, the Third Court of Appeals has affirmed a post-answer default judgment, conditioned on a remittitur of all but $29,544.47 of the original $176,150.68 judgment amount.  The appellate court held that the trial court acted within its discretion by overruling the defendant's equitable motion for new trial, but that the plaintiff presented no evidence supporting the damages and attorney's fees awarded above the sum sought on a sworn account.  On its own motion, the court of appeals suggested a remittitur for the difference.

Update:  On December 7, 2007, the court of appeals issued a supplemental opinion noting that the plaintiff did not file a remittitur. Thus, in accordance with its prior opinion, the Court reversed the district court's judgment and remanded the case for a new trial on unliquidated damages and attorney's fees.

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The Texas Supreme Court has added links to its calendar (in Microsoft Word and PDF form) as a new feature on the Court's web site.  Advocates and others now have ready access to the Court's schedule through August 2008, including dates for oral argument, conference, orders, and holidays.

Thanks to Elana Einhorn for the tip.

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After a very busy couple of weeks, the Texas Supreme Court released one opinion with today's orders.  In Texas A&M University System v. Koseoglu, the Court held that a plaintiff who, due to pleading defects, loses a plea to the jurisdiction based on sovereign immunity is not entitled to a remand when amending the pleading could not cure the defects.  The Court also determined that Civil Practice and Remedies Code § 51.014(a)(8) vests appellate courts with jurisdiction to decide a government official's appeal from the denial of a plea to the jurisdiction based on immunity.

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Well, the long weekend and resulting short week caught up to me, and it turns out that I won't be able to post summaries of the most recent Texas Supreme Court decisions as intended.  The fact that I am attending the Advanced Appellate Seminar here in Austin tomorrow and Friday hasn't helped that cause.  If things slow down, I may write about some of the individual cases.  In any event, Osler McCarthy's excellent summaries are available here.

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Blawg Review #123 brought a surge of traffic to this site over the past week.  To those who recently visited for the first time, welcome.  If Texas appellate law suits your fancy (or even if it doesn't), feel free to kick your shoes off and stay a while.  (Better yet, subscribe.)

Thank you to Ed. at Blawg Review for allowing me the privilege of hosting and for being so helpful in completing the issue.

And a special thank you to those who have either commented or mentioned Blawg Review #123 in their own blog posts:

Above the Law
Austin Criminal Defense Lawyer
Antitrust Review
Chicago IP Litigation Blog
Build a Solo Practice, LLC
California Blog of Appeal
f/k/a
Home Office Lawyer
idealawg
Infamy or Praise
Law.com Legal Blog Watch
Lawgarithms
LexBlog
Likelihood of Confusion
New York Personal Injury Law Blog
Small Business Trends
Online Guide to Mediation
QuizLaw
The Common Scold
What About Clients

Putting the issue together was great fun!

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