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

I attended the Texas Supreme Court Historical Society's annual John Hemphill Dinner last night.  I believe all the justices were there, and the big ballroom at the Four Seasons here in Austin was packed as always.

Professor Mark Steiner from South Texas College of Law was the keynote speaker, and he talked about his new book An Honest Calling: The Law Practice of Abraham Lincoln.  We don't often think of Lincoln as anything but the President who gave the Gettysburg Address and issued the Emancipation Proclamation.  It was interesting to learn more about Lincoln the lawyer.

In particular, Professor Steiner addressed Lincoln's proclivity as an appellate practitioner.  The joke of the night, paraphrased as best I can remember it this morning, went something like this:  "Lincoln even handled an appeal in Texas.  Rumor has it that the Texas Supreme Court will issue its opinion in the case this summer."

The room erupted with laughter.

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The Texas Supreme Court issued two opinions with this week's regular orders.

In Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1 (No. 06-0904), the Court concluded that the district exceeded its rule-making authority, reversed the court of appeals' judgment, and rendered judgment declaring the permitting scheme at issue invalid.

In In re Zandi (No. 07-0919) (orig. proceeding) (per curiam), a habeas corpus proceeding, the Court held that the relator/contemnor did not receive sufficient notice of the allegations against him and set the trial court's order revoking suspension of its commitment order aside.

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I'm a little late to this party—I just happened to be at a conference today and another function this evening with some of the lawyers involved—but the Texas Supreme Court denied the State's mandamus petitions in the FLDS cases this afternoon.  The Supreme Court of Texas Blog discusses the per curiam decision in the lead case and Justice O'Neill's concurring and dissenting opinion (joined by Justices Johnson and Willett) here.

5/30/08 Update:  Texas Lawyer has this follow-up story, which unfortunately fails to credit my friend Amy Warr, of Alexander, Dubose, Jones & Townsend, for the result she obtained on the mothers' behalf.

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In Merck & Co. v. Ernst (No. 14-06-00835-CV), the Fourteenth Court of Appeals has reversed Mark Lanier's $26.1 million judgment in a highly publicized Vioxx case and has rendered judgment that the plaintiff take nothing.  (The jury verdict included a $229 million award for punitive damages, which trial court reduced in accordance with statutory caps.)  The concluding paragraphs state:

The epidemiological evidence supports the conclusion that Vioxx use at a certain dose and duration is associated with an increased risk of thrombotic cardiovascular events.  The expert's speculation that a clot could have existed, but could have dissolved, been dislodged, or fragmented gives rise to nothing more than conjecture.  Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infarction triggered by a blood clot.  Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband's death.  Merck's first issue is sustained.

The judgment of the trial court is reversed and judgment is rendered that appellee take nothing.

Merck has aggressively defended these cases, rather than settle them.  Looks like that strategy will continue paying off.

Clarification:  My comment above is somewhat unclear, perhaps because I had a limited amount of time to write this post.  I accurately described Merck's litigation approach to the Ernst case and others—before it entered into a $4.85 billion global settlement late last year.  That may not seem aggressive, but some are speculating that Merck will save as much as $10 billion by resolving the cases this way.

5/30/08 Update:  Texas Lawyer has more detailed coverage, including Mark Lanier's reaction, here.  Also, I neglected to mention that my former firm defended the Ernst case and handled the appeal.  I was not involved at either level.

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I've been working on a brief and until this evening hadn't seen the special Memorial Day edition of Blawg Review over at Patent Baristas.  The lead-in photo alone is worth the visit.  Thanks to editor Stephen Albainy-Jenei for including my oft-updated post entitled "FLDS Children Going Home?"  I don't feel worthy.

I had the pleasure of hosting Blawg Review #123 and will be hosting again on August 25.  It's too early to pick a theme, but if you have any ideas, feel free to share them with me.

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Over at the relatively new Bartlett Blog, Tad Bartlett provides a blow-by-blow of the recent Fifth Circuit en banc arguments, including the In re Volkswagen venue case that’s generating a lot of discussion these days because it threatens the Marshall “rocket docket.” (See the recent discussion in Texas Lawyer and at the WSJ Law Blog.)  Tad’s comments about what he observed and heard before the arguments and at intermission were also very interesting.

Tad's blog covers Fifth Circuit issues in greater depth than I am currently able to provide.  If you follow that court, please be sure to check out what he has to offer.

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The Texas Supreme Court issued two decisions with today's regular orders.

In Providence Health Center v. Dowell (No. 05-0386) (consolidated with Petit v. Dowell (No. 05-0788)), a negligence action against emergency-room personnel for failing to prevent a suicide, the Court concluded that any connection between releasing the patient and the patient's death was too attenuated for proximate cause.  The Court therefore reversed and rendered a take-nothing judgment.

In In re Team Rocket, L.P. (No. 06-0414) (orig. proceeding), the Court held that, once a trial court rules on the merits of a motion to transfer venue, a plaintiff cannot avoid the ruling by nonsuiting the case and re-filing in another county.

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In In re Steed (No. 03-08-00235-CV) (orig. proceeding) (per curiam), the Third Court of Appeals has conditionally granted the petition for writ of mandamus and vacated the district court's order placing more than 400 FLDS children in state custody.  The Supreme Court of Texas Blog, the ABA Journal, and other media outlets are reporting additional details.

Chief Justice Law, Justice Pemberton, and Justice Waldrop made the decision, but we don't know who wrote the opinion.  It's difficult to criticize deciding this case per curiam, given its  highly politicized and controversial subject matter and the national publicity it has received.

Update:  On closer examination, the Third Court's ruling in In re Steed does not purport to return all the FLDS children in CPS custody, only those belonging to the 38 relators in that proceeding.  The court reached the same result in a related case, In re Bradshaw (No. 03-08-00298-CV), also issued per curiam, which involved three additional relators.

After these orders, however, CPS would presumably change course on all the affected children.

A third case involving three more relators, In re Jessop (No. 03-08-00236-CV), remains pending.

5/23/08 Update:  Per coverage at CNN.com and the Salt Lake Tribune, the State is taking the matter up to the Texas Supreme Court.  The Deseret News posted unsigned PDFs of the mandamus petition and motion for emergency relief apparently filed today.

5/24/08 Update:  Per the Supreme Court of Texas Blog, the response to the State’s motion, the Court’s docket sheet, and a page with the electronic versions of the briefs (which should be updated when any further briefs are filed) are now available through the Texas Supreme Court's web site.

Given the present uncertainty, I have added a question mark to the title of this post.

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The Third Court of Appeals has released its opinion in the lead State Farm rate case, Geeslin v. State Farm Lloyds (No. 03-05-00067-CV).  So much for any concerns that the recent panel-switch would delay the decision—although the Court did not decide all the cases together, as Chief Justice Law indicated it might.  Here is the opening paragraph (footnote omitted):

This appeal concerns the validity of a rate order issued by the commissioner of insurance.  The rate order was based on now-expired article 5.26-1 of the insurance code, which provided the procedure by which Texas homeowners insurance providers were to file their initial homeowners insurance rates with the Texas Department of Insurance (“TDI” or the “department”) as required by Senate Bill 14 in 2003.  Tex. Ins. Code Ann. art. 5.26-1 (West Supp. 2004-2005).  The rate order required State Farm Lloyds to reduce its filed homeowners insurance rates by twelve percent.  State Farm Lloyds sought review in district court.  Finding that article 5.26-1 was unconstitutional and that State Farm Lloyds’s due process rights had been violated, the district court vacated the rate order.  Appellants now seek reversal of the district court’s judgment.  We conclude that the portion of section 4 of article 5.26-1 setting out what insurers are required to prove on appeal to the commissioner (“the proof provision”) is unconstitutional on its face and as applied to State Farm Lloyds.  Therefore, we affirm the judgment of the trial court in part as to its findings that the provision of former Article 5.26-1, section 4, which requires an insurer to prove that a rate reduction would produce inadequate rates, is unconstitutional and that State Farm Lloyds’s due process rights were violated.  Because we further hold that the unconstitutional proof provision is severable, we sever that provision, reverse the trial court’s judgment as to the constitutionality of the remainder of the statute, and remand to the department for further proceedings consistent with this opinion.

Lots of juicy issues here.  This dispute seems far from over.

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On the heels of a hotly debated study declaring that California has the top state high court (see discussion here, here, and here), another paper has reached the same conclusion.  At least this time the authors are from other states.

Neither the Texas Supreme Court  nor the Texas Court of Criminal Appeals fared particularly well.  The paper contains several different categories of data, the foundations of which are not always clear.  In a composite of all the categories, ranking a total of 52 courts (Texas and Oklahoma each have separate high courts for civil and criminal matters), SCOTX came in 39th, and the CCA came in 43rd.

Thanks to the Legal Theory Blog, via How Appealing.

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The pro bono committees of the Austin Bar Civil Appellate Section and the State Bar Appellate Section are distributing the following message regarding the FLDS matter in El Dorado:

Appellate Pro Bono
Volunteers  Needed
*********
El Dorado Children

Lawyers from across the state have volunteered to represent children from the Yearning for Zion Ranch in El Dorado.  Many of the volunteers are neither family lawyers nor trial lawyers and are unfamiliar with the steps required to preserve the appellate record or to prosecute an appeal.  These lawyers could use an appellate mentor now.

There is a mechanism in place for you to register if you choose to help.

The online resource and communication center for judges and attorneys handling child abuse cases is located at http://www.lawyersforchildren.org/.

You do not have to register to use the resource center to volunteer your services.  Simply go to the blue menu bar (at the top of every page) and click on the tab for “Pro Bono” and then click on “Volunteer for Pro Bono Network.”  You can designate the areas of assistance and types of assistance you would like to provide on the on-line form.  Appellate law, trial skills, trial preparation, and discovery are among the many areas in which you can mentor another attorney.  Please check the box for “Eldorado Children” and then all other areas that apply.

The list of those who register to provide pro bono services is accessible only by judges and attorneys who register to use the resource center.  Texas Lawyers for Children maintains tight security over the site, and verifies that those who register are the judges and attorneys they claim to be.

If you need any help signing up for the pro bono network, the Texas Lawyers for Children Help Desk number is 800-993-5TLC (5852).  The Help Desk lines are answered Monday – Friday from 11:00 AM - 6:00 PM.

In addition to both sections' outstanding appellate pro bono initiatives, this program presents a wonderful opportunity for appellate lawyers to help those in need of their expertise.

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At some level, every blog is built on shameless self-promotion.  To that end, I'm happy to point out some attention generated by my recent post entitled Newsflash:  Appellate Judges Read Blogs:

• The piece was picked up by the online version of the Wall Street Journal and mentioned over at the Sophistic Miltonian Serbonian Blog.
  
  
• The California Blog of Appeal's Greg May added to the discussion and has since posted a follow-up survey to get a feel for his readers' demographics.
  
  
• LexBlog's Kevin O'Keefe chimed in on Greg's survey and wrote his own piece, in which he predicted that "lawyers with well written blogs on niche litigation subjects are going to be called in as co-counsel on an appeal or brief" and further commented that "[t]he value of having a lawyer on your side whose material is regularly read by the court you're before is priceless."

Blogging has definitely helped me obtain broader exposure faster than any other medium could provide.  Here's hoping that Kevin's prediction is accurate over the long haul.

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For some Friday afternoon fun, watch this video, courtesy of the Sophistic Miltonian Serbonian Blog:

If you don't know, Tom Goldstein was a small-firm lawyer before he joined Akin Gump.

(Yes, this was my first attempt at imbedding video on this blog.)

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The Texas Supreme Court decided six cases and issued one substituted opinion with this week's orders.  Briefly, the new decisions are:

• First American Title Insurance Co. v. Combs (No. 05-0541), affirming the Comptroller's interpretation of a retaliatory tax statute affecting foreign insurers.
  
   
• In re McAllen Medical Center (No. 05-0892) (orig. proceeding), holding that appellate courts may review the adequacy of expert reports required by the Medical Liability Act when the statute's purposes would otherwise be defeated.  The Court conditionally granted the writ and ordered the trial court to dismiss the plaintiffs' claims against the hospital.
  
   
• Canyon Regional Water Authority v. Guadalupe-Blanco River Authority (No. 06-0873), deciding a state water authority's easement rights involving a lake.
  
   
• In re Citigroup Global Markets, Inc. (No. 06-0886) (orig. proceeding) (per curiam), concluding that removing a case to federal court before filing an answer did not waive the defendants' right to arbitration.  Compare Perry Homes v. Cull (No. 05-0882), previously discussed here.
  
   
• Higgins v. Randall County Sheriff's Office (No. 06- 0917), holding that an uncontested affidavit of indigence entitled the appellant to pursue his appeal without advance payment of costs.
  
   
• City of Dallas v. Reed (No. 07-0469) (per curiam), determining that a two-inch variance between traffic lanes was neither a special defect nor a premises defect for purposes of the Tort Claims Act.

I expect we'll see some lively discussion of McAllen Medical Center, Citigroup, and Reed in the coming days.

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While attending a bar function today, a local appellate justice I have met a few times before recognized me, introduced me to his companions as the author of an appellate blog, and confessed (?) to being one of my regular readers.  I have had similar conversations with other members of the appellate bench in recent months.

Appellate judges are often perceived as ivory-tower idealists.  They don't really read blogs, do they?  I mean, anybody can put a blog up on the internet, right?  Minimal tech skill—but no legal knowledge—is required.

Anybody can.  But this justice reads mine.

That alone makes it worthwhile.

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One of my goals in creating this blog was to have it serve as a sort of "home page" for lawyers involved in Texas appeals by providing links to resources those folks are likely to need at some point in the appellate process.  For example, say you're away from the office and need to double-check what TRAP 9.5 says about certificates of service.  Visit http://texasappellatelawblog.com, scroll down the sidebar to "Useful Links," and click on "Texas Rules of Appellate Procedure."  Presto!  No Westlaw or Lexis password required.

For the benefit of those with matters before the Fifth Circuit, I have included a link to that court's web site and a version of the FRAPs that sets out the court's local rules and internal operating procedures.  Another useful resource is available that should be consulted early and often:   the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit.

Thanks to the (new) legal writer.

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Though somewhat afield from this blog's primary focus, the topics of electronic discovery and computer forensics should concern anyone practicing law in this day and age.  I am therefore pleased to announce that nationally recognized expert Craig Ball—a board-certified trial lawyer in his own right—will speak to the Austin Bar Association's Solo & Small Firm Section at noon on Thursday, May 22, 2008 at the Austin Bar office.  (In case you're wondering, as the Section's Program Co-Chair, I'm the guy responsible for lining up speakers.)

The event is free for Section members, and others may attend for a nominal charge.  If you'd like to attend and reserve a catered lunch, please contact Bill Biggs at wbiggs@sbcglobal.net.

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The Texas Supreme Court released no opinions with this week's orders.

Of interest, check out these posts from the Sophistic Miltonian Serbonian Blog and the Supreme Court of Texas Blog about the recent Texas Watch report criticizing the Court's alleged overreliance on per curiam opinions.

I would be interested to know whether the report cites any specific cases as examples of ditching accountability by hiding behind per curiams.  Without that, it's a little tough to appreciate what the hubbub is about, since PCs usually don't tread any new ground.

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The following is a guest post from Roger Hughes of Adams & Graham, LLP:

Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them.  That problem is indictment and jail.  This week, the Texas Court of Criminal Appeal decided round two of Vasilas v. State ( PD-1473-06) (May 7, 2008).  The Court reversed the trial court’s ruling that quashed the indictment against an attorney who allegedly made a false statement in a civil pleading.

Vasilas was an attorney for a criminal defendant who beat the criminal charges; Vasilas then filed an expunction suit.  The petition he prepared contained factual error.  Unamused, the DA indicted Vasilas under Texas Penal Code § 37.10(a), which prohibits making false entries in a “government record.”  This is a felony if there is an intent to defraud.  The trial judge quashed the indictment.  Still unamused, the DA appealed.

In the first round, the Court held that a petition in a civil case was a “government record” for the purpose of Section 37.10.  Vasilas v. State, 187 S.W.3d 486 (Tex. Crim. App. 2006).  It remanded to the Dallas Court of Appeals, which determined that the civil rule about frivolous pleadings, TRCP 13, did not supplant the Penal Code and remanded for trial.  Vasilas returned to Court of Criminal Appeals, joined by amici TTLA and TADC.

In Vasilas II, the Court decided that the doctrine of in pari materia did not apply.  Because TRCP 13 was a court rule, not a statute, it doesn't trump the Penal Code for false statements in civil case pleadings.  The Legislature did not write TRCP 13, so there was no reason to use it construe or control Section 37.10.

The upshot is that, no matter what the judge in a civil case does, the DA can still indict and prosecute for arguably false statements in a brief or pleading.  It's a bit scary to think that you can defeat a motion for sanctions over a statement in your brief, but your opponent can still get you indicted.

Think about going to jail for something in your factual statement the next time you write a a brief.  Your ultimate audience may be the DA and a criminal jury.

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As mentioned in my last post, I've been tied up getting ready for an oral argument I had today before the Third Court of Appeals here in Austin.  The case is not the kind you would usually get that excited about, but we have a couple of good legal issues, and it got a fair amount of media attention when it was tried.  (I wasn't involved at that stage.)  More media coverage could be coming, depending on what happens with the appeal.

As I prepared, I was reminded of the things that make oral argument great.  Today, a big part of it was getting my client her day in court.  Then there is the thrill of back-and-forth dialogue with the appellate justices on narrow legal issues that wouldn't interest most people.

But one of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements.  As the appellant, if you can't persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you're probably going to lose.  As the appellee, the key is to identify and emphasize the reasons why the court should leave well enough alone.  Whichever side I'm on, it's a process I always enjoy.

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I am preparing for an oral argument tomorrow, which explains my silence on a number of issues worthy of commentary, including media coverage of the Perry Homes v. Cull decision and Ted Cruz's new position at Morgan Lewis.  The Supreme Court of Texas Blog  and others have covered these issues well.  I'll get back to more regular posting soon.

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From an article in yesterday's Houston Chronicle:

Five years after Texas insurance regulators ordered State Farm to cut homeowners' rates by 12 percent, the insurance company's legal battle to avoid the reduction continues to languish.

The latest delay came this week, when nearly three years after the case was submitted to a three-judge panel of the Third Court of Appeals, it was assigned to a new panel.

Chief Justice Kenneth Law [pictured] said the reassignment was rare but was done so that the same judges will hear the 2003 rate case and two later appeals involving rate disputes between State Farm and the Texas Department of Insurance.

"In this case, it is to make sure those three opinions are consistent by assigning them to very similar or the same panel," said Law, who was a member of the previous panel and remains on the new panel.  The other two panelists are different.

He said the court may decide to rule on all three appeals at one time and does not expect the assignment to a new panel to cause a significant delay.

But the six justices at the Third Court are already struggling to reduce the biggest case backlog of any of the 14 intermediate appeals courts.  Law said it is taking the court so long to resolve appeals because of judicial turnover, budget cuts and the complicated administrative law cases that make up a significant part of the Austin-based court's workload.

State Farm won a district court ruling that part of a 2003 law that allows for immediate refunds was unconstitutional because it didn't give the company due process.  The Insurance Department appealed to the Third Court.

The other appeals are related to the initial dispute and involve questions of whether State Farm is charging excessive rates and whether Insurance Commissioner Mike Geeslin had evidence and authority to require the company to get prior approval before raising rates. . . .

The lead case is Commissioner of Insurance v. State Farm Lloyds (No. 03-05-00067-CV).  The reassignment order does not appear on the court's released orders list.

I practice in the Third Court and am mostly sympathetic to the explanation Chief Justice Law gave for the slow-moving docket.  Four of the court's six seats were on the ballot during the 2006 election cycle,  The Chief is up in November, and he has drawn a strong opponent in former Justice Woodie Jones.  The judges must campaign in a large and diverse 24-county district.  If they want to keep their jobs, they have to spend a lot of time away from the court's day-to-day business.

But to change two of the three judges three years after the initial panel heard argument?  I'm not sure I see the point in that.  The other two cases were filed after No. 03-05-00067-CV.  One of them was argued nine months after the lead case, and the other was argued six months later (seven months ago).  Is the case going to be re-argued before the new panel?  Without a compelling reason, and with an already slow-moving docket, it is difficult to see the benefit to this move.

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The Texas Supreme Court issued one new decision and one substituted opinion with this week's regular Friday orders.

In Perry Homes, a Joint Venture v. Cull (No.  05-0882), the Court held that the plaintiffs waived their right to arbitration by substantially invoking the litigation process, including "request[ing] hundreds of items of merits-based information and conduct[ing] months of discovery under the rules of court" before changing their minds "only four days before the trial setting . . . and decid[ing] they would prefer to arbitrate after all."  The Court vacated an $800,000 arbitration award and "remanded the case to the trial court for a prompt trial."

This is a significant decision that warrants further study and analysis.  I will likely post about it further when time permits.

In Igal v. Brightstar Information Technology Group, Inc. (No. 04-0931), the Court withdrew its December 7, 2007 opinion, substituted a new one in its place, and denied the parties' motions for rehearing.  The votes and the result remain the same.

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