Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

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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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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The Tex Parte Blog is reporting that former Dallas district judge Catharina Haynes (pictured) has been confirmed to the United States Court of Appeals for the Fifth Circuit.  She joins Judge Jennifer Elrod (previously discussed here) as Baker Botts alumna recently taking seats on the court.

One can't help but notice that three of President Bush's last four Fifth Circuit appointments (see Judge Priscilla Owen) have been Texas women.

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The U.S. Supreme Court heard argument in a particularly interesting and (I think) important case today.  In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989), the Court will decide whether contracting parties may agree to expand the grounds for vacating arbitration awards beyond those recognized under the Federal Arbitration Act.  The Fifth Circuit and others have said yes—see Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993 (5th Cir. 1995)—but the Ninth Circuit disagreed.  The merits briefs, amicus briefs, and a transcript of the argument are available here.

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In Charles v. Grief (No. 07-50537), the Fifth Circuit has affirmed the district court's denial of a state official's motion for summary judgment based on qualified immunity because the official's immunity turned on fact issues.  What is remarkable about this decision is the following section from the circuit court's opinion, which is worth quoting in full (footnote omitted):

The cost in time and money incurred by a public employee who has sued in the belief that he has suffered an adverse employment action as the result of unconstitutional retaliation is significantly increased when, as here, the defendant takes a clearly unwarranted appeal of an interlocutory denial of qualified immunity.  Taking such an appeal is now unconscionable in light of this courts burgeoning precedent uniformly rejecting such appeals of fact-based denials of qualified immunity for lack of appellate jurisdiction, our most recent being Connelly.  Considering the usual disparity in the financial conditions of the parties to such actions, cavalierly taking such an appeal smacks of economic duress.  Indeed, this is at least the second such case this year in which the office of the Attorney General of Texas has improvidently brought and doggedly prosecuted such an appeal, Connelly being another.  We trust that counsel for Grief, as well as all other counsel who represent public employers and state actors in such roles, will henceforth carefully heed the case law of this court on point and be chary to take appeals of interlocutory orders denying qualified immunity on grounds of the existence of genuine factual disputes, lest they incur penalties, sanctions, damages for, e.g., frivolous appeals, or worse.

Do you think General Abbott's staff got the message?

11/28/07 Update:  The Fifth Circuit issued a revised opinion today, leaving the above-quoted language intact.

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In In re Volkswagen of America, Inc. (No. 07-40058), the Fifth Circuit has held that a district court sitting in the Eastern District of Texas, Marshall Division, abused its discretion by failing to transfer this product liability case to the Northern District of Texas, Dallas Division.  The Fifth Circuit granted mandamus relief, concluding that the district court incorrectly applied the private and public interest factors relevant to transfer motions brought under 28 U.S.C. § 1404.

Update:  Per this order, the Fifth Circuit will rehear the case en banc.

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The Tex Parte Blog is reporting that the Senate has confirmed 190th District Court Judge Jennifer Elrod's nominationto the Fifth Circuit (discussed previously here).  As the post points out, there are some interesting contrasts between Elrod's confirmation process and former Texas Supreme Court Justice Priscilla Owen's.

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In GWTP Investments, L.P. v. SES Americom, Inc., the Fifth Circuit has reversed in part the dismissal of plaintiff's breach-of-contract and fraud claims.  Although the circuit court agreed that the statute of frauds precluded recovery on the alleged contract, it rejected the district court's conclusion that the fraud claim was merely a "repackaged" contract claim because (1) some of the alleged misrepresentations occurred after the putative contract was formed; and (2) plaintiff sought only reliance damages, not benefit-of-bargain damages, for fraud.  The circuit court also affirmed the district court's summary judgment on plaintiff's claim for breach of fiduciary duty.

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In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, the Fifth Circuit has held that ERISA trumped a divorce decree purportedly divesting an ex-spouse of her interest in any "retirement plan, pension plan, or like benefit program existing by reason of [decedent's] employment."  The decedent never removed his ex-wife as the designated beneficiary, and the decree did not meet the requirements of a "qualified domestic relations order" under ERISA.  Therefore, the decree did not trigger an exception to the statute's "anti-alienation provision," which prohibits assignment or alienation of benefits provided under an employee pension benefit plan.  The ex-spouse collected about $400,000 because of this mistake.

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As reported in Blawgletter, the Fifth Circuit handed down two more Katrina-related insurance decisions yesterday, reaching the same basic result as the case discussed here last week.  Arias-Benn v. State Farm Fire & Casualty Insurance Co. involved damage to refrigerators and freezers from post-storm putrefaction of their contents.  Chauvin v. State Farm Fire & Casualty Co. dealt with exclusion of "flood" damage from homeowner policies.  Insurance companies 3, insureds 0.

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In In re Katrina Canal Breaches Litigation, the Fifth Circuit has rejected several insurance policyholders' attempts to obtain coverage for water damage caused by Hurricane Katrina, despite exclusions for damages caused by "flood," based on allegations that the inundation of water into the City of New Orleans resulted from the negligent design, construction, and maintenance of the levees along three canals.  The plaintiffs argued that the policies were ambiguous because the flood exclusions did not clearly exclude coverage for water inundation caused by negligence.  The circuit court held that, aside from any negligence, the policy exclusions unambiguously precluded recovery.

Update:  Here is a list of all counsel involved in the Fifth Circuit appeal.  See the WSJ Law Blog for some interesting coverage and comments, as well as a YouTube video set to Led Zeppelin's When the Levee Breaks.

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Over at Law.com,appellate practitioner and How Appealing blogger Howard J. Bashman has this piece about the stare decisis effect of federal circuit court decisions predicting state law when intermediate state appellate courts have since reached a different result.  As cited in a law review article surveying the circuits' various approaches to this issue, the Fifth Circuit laid out its rule in FDIC v. Abraham, 137 F.3d 264 (5th Cir. 1998):

We are, of course, a strict stare decisis court.  One aspect of that doctrine to which we adhere without exception is the rule that one panel of this court cannot disregard, much less overrule, the decision of a prior panel.  Adherence to this rule is no less immutable when the matter determined by the prior panel is the interpretation of state law:  Such interpretations are no less binding on subsequent panels than are prior interpretations of federal law. . . .

We conclude then, that when our [Erie Railroad Co. v. Tompkins] analysis of controlling state law is conducted for the purpose of deciding whether to follow or depart from prior precedent of this circuit, and neither a clearly contrary subsequent holding of the highest court of the state nor a subsequent statutory authority, squarely on point, is available for guidance, we should not disregard our own prior precedent on the basis of subsequent intermediate state appellate court precedent unless such precedent comprises unanimous or near-unanimous holdings from several—preferably a majority—of the intermediate appellate courts of the state in question.

Absent definitive statutory or Texas Supreme Court authority, lawyers otherwise constrained by a Fifth Circuit prediction of Texas law should examine whether intervening court of appeals decisions hold differently on the issue at hand.  If so, Abraham may create an argument that a Fifth Circuit panel is not bound by the prior Erie prediction and need not wait for an en banc ruling to reach a contrary result.

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In Smith International, Inc. v. The Egle Group LLC, the Fifth Circuit has reversed in part the district court's summary judgment on the plaintiff's claims for breach of contract, negligence, and indemnity.  Although it agreed with the district court that the contract and negligence claims were time-barred under Texas law, the circuit court concluded that neither res judicata nor limitations precluded the indemnity claim.  The opinion contains an interesting discussion of "liability" versus "damages" indemnity agreements and explains the different accrual rules for each.

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The Fifth Circuit recently issued a decision confirming an arbitration award in American Laser Vision v. Laser Vision Institute (No. 06-10260).  The losing party sought to vacate the award on grounds that the arbitrator exceeded his authority and manifestly disregarded the law.

As noted over at Disputing, the decision breaks no new ground, but "is still helpful as a recent and cogent explanation of the analysis on these two fairly common grounds parties assert when attempting to appeal arbitral awards."

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Authoritative enough for the Fifth Circuit, apparently.  Last week, in Exxon Mobil Corp. v. Commissioner (note 1), a circuit panel cited the online encyclopedia for its definition of the accounting term "accrue."  (Hat tip to Appellate Law &Practice.)

Are internet-savvy clerks are showing their influence?  Should the Fifth Circuit rely on a wiki of uncertain authorship to define a term of art?

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As reported by Howard Bashman at How Appealing:

President Bush has nominated Jennifer Walker Elrod to serve on the U.S. Court of Appeals for the Fifth Circuit:  Currently, Elrod serves as a state district judge in Houston.  She has been nominated to fill the vacancy created when Circuit Judge Patrick E. Higginbotham took senior status.  A brief biography of Elrod can be accessed here (scroll down).

Update: The official notice from the White House is now available at this link.

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In Apache Bohai Corp. v. Texaco China BV, the Fifth Circuit has rejected claims that an arbitrator exceeded his powers and manifestly disregarded the law in rendering an award exceeding $71 million.

No surprise here, really.  Except in the most egregious of circumstances, arbitration awards can't be busted.  No matter how well advised, clients have a difficult time accepting that these things are won or lost at the arbitration hearing.

Now seems like an appropriate time to emphasize that contracting parties wanting to include an arbitration clause may hedge their bets by bargaining for expanded judicial review, at least under current Fifth Circuit and Texas law.  Employing this approach, the parties either alter the scope of review and thus allow courts greater leeway than what the arbitration statute provides, or they contract for a second layer of arbitration in which a panel of "appellate arbitrators" reviews the initial award.  A recent St. Mary's Law Journal article (38 St. Mary's L.J. 471) explains these concepts, as does a similar article in the forthcoming issue of The Appellate Advocate, which should arrive in State Bar Appellate Section members' mailboxes any day.

Full disclosure:  Some very fine lawyers at my former firm were involved in the Apache Bohai case, but I did not work on the appeal.

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