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

As I prepare for an oral argument tomorrow, I came across this article from Texas Lawyer reporting that the intermediate appellate courts are granting argument in more cases.  That's welcome news, if it holds up.

The article quotes incoming Third Court Chief Justice Woodie Jones as supporting a default position that the Court should grant oral argument.  I will be watching with interest to see how the numbers change after he assumes the helm next month.

For some of my previous thoughts on oral argument, follow these links:

• Oral Argument Rituals
• Why I Love Oral Argument
• Third Court Oral Argument Call-Out
• Oral Arguments on Rise in Third Court?
• Is Oral Argument Dying a Slow Death?

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Shortly after the election, I mentioned having heard rumblings that a sitting justice on the Third Court of Appeals may be leaving.  I haven't brought it up again because I hadn't confirmed it directly with the judge in question, but with this story, the news has been broken.

Congratulations to Kurt Kuhn on declaring his candidacy to replace Justice Jan Patterson (pictured), who has announced her intention to run for the district bench in Travis County.

Now that Kurt has begun the campaign process, I suspect others may be making similar announcements.  The last open-seat race in that court was quite interesting, with both parties fielding several primary candidates.

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Incoming Third Court of Appeals Chief Justice Woodie Jones won't take office for a few more weeks, but he is already showing up on the Court's January oral argument calendar.

After next Wednesday (when I happen to be arguing a case), the Court's next oral submission date is January 14, 2009, with the Chief presiding over the morning panel.  His public investiture ceremony will be held at 4:00 p.m. on Monday, January 12, in the Third Court of Appeals courtroom.

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Despite speculation that Democrats might pick up at least one spot, no Texas Supreme Court seats changed hands yesterday.  Chief Justice Jefferson and Justices Wainwright and Johnson each handily defeated their opponents, so the Court will remain all-Republican a while longer.  The Court of Criminal Appeals remained all-Republican as well.

The big news around these parts is former Justice Woodie Jones's (pictured) defeat of incumbent Third Court of Appeals Chief Justice Ken Law.  The media has covered this race thoroughly, so I'll just say that the Third Court will now be evenly divided, with three justices from each party.  (But rumor has it that one of the sitting justices might be leaving; I'll report on that when confirmed.)

With one exception (Eighth Court incumbent Kenn Carr), other intermediate court justices on the ballot kept their jobs, including recent Fourteenth Court appointees Jeff Brown and Bill Boyce.  Many of these races were very, very close.

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As discussed previously, Third Court of Appeals Justice Diane Henson spoke to the Austin Bar Association's Solo and Small Firm Section last week.  With her permission, I am posting a copy of her handout here.

Justice Henson gave a useful overview of how the Third Court conducts its business and offered some helpful briefing and oral-argument tips.  One thing I learned was that the Court doesn't have access to Westlaw, so advocates should consider providing a Lexis cite for opinions not published in the South Western Reporter.

The following point also stuck with me:  Don't ask the Court to reschedule an oral argument unless you have a very good reason.  Aside from the fact that oral argument is not granted in most cases, the argument calendar fills up pretty far in advance because the Court is required to give the parties 21 days notice of the setting.  A valuable time slot may go unfilled because of a late cancellation.

As a Westlaw subscriber, I haven't figured out an easy solution to the Lexis issue, though I would just include a copy of the opinion in my appendix if it were important enough.  On rescheduling, one of my clients actually benefitted from a late cancellation earlier this year when the clerk called and asked if I could argue a case the following week.  Fortunately, the case was not overly complicated, so we were able to pull it off.

If you have a case going to the Third Court of Appeals or questions about Texas appellate practice generally, please don't hesitate to contact me to discuss whether I can help.

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Justice Diane Henson will be speaking to the Austin Bar Association's Solo and Small Firm Section at noon tomorrow, September 25, in the ABA seminar room.  The topic will be "Practice Pointers From the Third Court of Appeals."  Attendees will receive 30 minutes of CLE credit.

The event is free for Section members, and others may attend for a nominal charge of $10.  Validated parking is available in the 816 Congress garage.  If you're interested in reserving a catered lunch, please contact Bill Biggs at wbiggs@sbcglobal.net.  Brown baggers are welcome.

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This is the first installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "How is the Texas appellate court system structured?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Texas has 14 intermediate courts of appeals, each of which hears both civil and criminal cases.  The intermediate courts are located in Houston (1st and 14th Districts), Fort Worth (2nd District), Austin (3rd), San Antonio (4th), Dallas (5th), Texarkana (6th), Amarillo (7th), El Paso (8th), Beaumont (9th), Waco (10th), Eastland (11th), Tyler (12th), and Corpus Christi (13th).  Generally, each court draws cases from its assigned geographic region, although transfers sometimes occur through a process known as "docket equalization."  There are some other jurisdictional quirks, as a handful of the state's 254 counties fall into more than one appellate district, and the state's most densely populated region is served by two intermediate appellate courts (1st and 14th).

A court of appeals has appellate jurisdiction in all civil cases over which the district or county courts have jurisdiction when the amount in controversy or the judgment exceeds $100, exclusive of interest and costs.  The court of appeals has final authority on all factual issues—applying standards of review, it can “unfind” facts the jury found and review the jury’s failure to find certain facts, but it cannot simply substitute its judgment for the jury’s.

Texas is one of only two states with a dual high-court system.  (Oklahoma is the other.)  The Texas Supreme Court has jurisdiction over civil cases as described below.  The Texas Court of Criminal Appeals is the criminal-law equivalent to the supreme court.

The supreme court's jurisdiction is limited to questions of law.  Among the statutory jurisdictional grounds, the following are most common:

• the justices of a court of appeals disagree on a question of law material to the decision (“dissent jurisdiction”);
  
  
• the decision conflicts with a prior decision from another court of appeals or of the supreme court on a question of law material to the case (“conflicts jurisdiction”);
  
  
• the case involves the construction or validity of a statute; or
  
  
• it appears that the court of appeals has committed an error of law, and that the error is of such importance to state jurisprudence that it requires correction.

Although the supreme court cannot decide fact issues of fact, it is the ultimate arbiter of the law. The supreme court may review the court of appeals’ decision to make sure it applied the correct legal standards.

Members of the Texas appellate judiciary run in partisan elections and fill six-year terms.  When a justice leaves office during his or her term, the Governor appoints a replacement.  An appointee must run in the next general election to retain the position for the rest of an unexpired term.

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I'm not a star-struck person.  The few times I've seen celebrities cavorting about Austin, I haven't been fazed.  But just about every lawyer in town knows the story about how Sandra Bullock's "dream house" had to be torn down (allegedly) because of defective workmanship.  Bullock and the general contractor got into a legal tussle that ultimately settled after a high-profile jury trial right here in Travis County.

The Third Court of Appeals today rejected the GC's claims against several subcontractors who worked on the project.  In a single opinion deciding seven cases severed from the original Bullock matter, the appellate court affirmed the trial court's orders dismissing them in part and ultimately disposing of them by summary judgment.  The court concluded that the GC's "claims in these various appeals fail because (1) they are barred by limitations, (2) they are inadequately briefed, or (3) they lack merit."

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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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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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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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By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay.  The court also denied the stay sought in the companion case, In re Faithann Jessop, et al. (No. 03-08-00236-CV).

Before you rush to criticize this decision, consider the reason the court of appeals gave for it.

The court explained that the application for emergency relief complained about a two-page order signed on April 22 and alleged that this order failed to comply with Section 262.201 of the Family Code.  Following its own investigation, however, the appellate court learned that the district court had, on April 21, signed an eight-page Temporary Order Following Adversary Hearing and Notice of Hearing, which the relators neither referenced in nor attached to their emergency motion.  The April 21 order "makes explicit findings with respect to the requirements of section 262.201, temporary conservatorship of the children, possession of and access to the children, temporary child support, temporary medical support, access to medical records, the acquisition of information regarding alternate caregivers who are relatives of the children, and the best interest of the children."

The court of appeals concluded that the April 21 order, "on its face, addresses statutory requirements" and based its denial of temporary relief on that conclusion.  Whether the order—which requires the children to remain in the possession of the Department of Family and Protective Services—"is supported by sufficient evidence, is the product of a sufficient "full adversary hearing" as required by section 262.201, or is an abuse of discretion are questions for determination on the merits of Relators' Petition for Writ of Mandamus."

Moral:  When presenting a motion for temporary emergency relief to an appellate court, be sure and tell the whole story, not selected parts of it.  I don't know if the relators intentionally omitted the April 21 order or just made a mistake—I'm hoping the latter—but an appellate court's discovery that you have omitted significant or potentially dispositive facts can only harm your client.

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It turns out that Tuesday's post about FLDS appeals coming to Austin was timely.  According to this press release and what I can gather from the Third Court of Appeals' web site, lawyers for Texas RioGrande Legal Aid filed a mandamus petition yesterday asking the court to order District Judge Barbara Walther to hold hearings at which each family would be able to respond to allegations of abuse before the children are placed in foster care in locations throughout the state.

A panel consisting of Chief Justice Law and Justices Pemberton and Waldrop will hear argument in In re Sara Steed, et al. (No. 03-08-00235-CV) on April 29 at 2:00 p.m.  The house should be packed.

Update:  The Supreme Court of Texas Blog and a commenter to this post point out that the order setting argument is addressed to the motion for temporary relief, rather than the mandamus petition itself.  It's an unusual development for an extraordinary case.

4/25/08 Update.  The oral argument has been canceled.  The court has taken no action on the mandamus petition.

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The West Texas town of Eldorado is more than 200 miles from Austin.  So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U.S. history") will be heard by the Third Court of Appeals, right here in the Live Music Capital of the World.

Surprisingly few Texas family law bloggers have weighed in on the FDLS matter.  I'm sure some of them were among the hundreds who volunteered to serve as court-appointed ad litems in more than 100 child removal cases the State filed in the 51st District Court (which serves Schleicher County and nearby Tom Green County, among others).  What an incredible effort.

It will be interesting to see how the appeals will be handled logistically.  Some of the attorneys involved have identified Judge Barbara Walther's decision to hear the State's evidence en masse, rather than child-by-child, as a potential ground for reversal.  I suspect the challenges arising from the sheer numbers will carry over into the appellate court to a significant degree.

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What does one have to do to get a case set for oral argument before the Third Court of Appeals?  It's a rhetorical question I've heard others ask recently.

Early last year, I discussed the perception that oral argument in Texas appellate practice is dying a slow death.  I asked how appellate practitioners are supposed to hone oral advocacy skills if the chances that argument will be heard in any given case are less than 20 percent.  I also asked how, given these general statistics, less experienced appellate lawyers are supposed to acquire the number of arguments necessary to qualify for the board certification exam.

The State Bar Appellate Section offers one potential answer to both questions:  participate in its appellate pro bono program, which now covers both the Third Court and the Texas Supreme Court.  The Third Court apparently will give priority to cases in the program for oral argument, so signing up for the program (using this form) and taking these cases could help increase one's oral argument experience.  The Section is to be commended for this effort.

In a follow-up post, I wrote about how some Third Court justices have stated that they generally favor oral argument and have suggested including a separate statement in your brief explaining why oral argument should be heard.  (Coincidentally, the supreme court is considering a change to TRAP 38 that would acknowledge the validity of such statements.)  Since then, other Third Court justices have said that a formal motion requesting oral argument may be considered favorably, even if oral argument was initially denied.

Now for the call-out.

I'm handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial.  The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years.  Both parties requested oral argument in their briefs.

After the briefing was complete, I happened to review the Court's online docket and found a reference mistakenly indicating that my opponent had not requested oral argument.  Although the parties received no formal notice, a subsequent online docket entry indicated that oral argument had been denied.

I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission.  The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court's submission calendar.  Per this postcard, the Court denied the motion without comment.

How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008?  Has the Court already decided how the case will come out, thus rendering any argument futile?  If not, why did the Court deny argument in this (or any other) case?

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In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment.  Other than for accelerated appeals, such requests push the deadline from 30 days to 90 days after the judgment is signed if "findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court."  TRAP 26.1(a)(4).

Because findings and conclusions are neither required nor properly considered on appeal in the summary judgment context, and because the appellant in Finney did not file his notice of appeal within 30 days after the judgment was signed, the notice was not timely.  The court therefore dismissed the appeal for want of jurisdiction.

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In Austin Periodontal Associates, Inc. v. Husak (No. 03-07-00125-CV), a pre-House Bill 4 dental malpractice case, the Third Court of Appeals has affirmed a $503,923 judgment rendered after a jury trial.  The dentist and hisemployer challenged the judgment on several grounds, most of which involved evidentiary complaints.  This decision is noteworthy, however, because the trial court refused the defendants' proposed "bad result" instruction under former Article 4590i, Section 7.02:

A finding of negligence may not be based solely on evidence of bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judge of the weight, if any, to be given any such evidence.

Section 7.02 was limited to jury trials "involving a health care liability claim against a physician or hospital."  The court of appeals concluded that no abuse of discretion occurred in Husak because the dentist presented no evidence that he was a "physician," and his employer presented no evidence that it was a "hospital," as the former statute defined those terms.

The current version, Section 74.303(e) of the Civil Practice and Remedies Code, mandates a "bad result" instruction in "any action on a health care liability claim that is tried by a jury."  The jury may or may not have reached the same result had it been instructed under the current law, but the trial court could not have refused the instruction.

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Appellants surnamed Belt had a rough day in the Third Court of Appeals.

In opinions written by Justice Jan Patterson (pictured), the Court dismissed for want of jurisdiction two restricted appeals brought by Robert Belt and one brought by Justin Belt.  All three cases are styled Belt v. Point Venture Property Owners' Association, Inc., and all of them involved tax foreclosure sales.

In Robert's first case (No. 03-07-000567-CV), the Court concluded that the order at issue, which involved distribution of part but not all of the excess sale proceeds, was interlocutory and therefore not appealable.  Although Section 34.04 of the Tax Code allows appeals from orders regarding excess proceeds, the Court concluded that "[n]o statute authorizes an interlocutory appeal from an order to distribute a portion of the excess proceeds from a tax sale."

In Justin's case (No. 03-07-000568-CV) and in Robert's second case (No. 03-07-000569-CV), the Court concluded that that both appellants could not establish three of the four prerequisites for a restricted appeal:  (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing nor filed a timely notice of appeal, post-judgment motion, or request for findings of fact or conclusions of law; and (4) the face of the record must disclose the claimed error.  Both Justin and Robert timely filed their restricted appeals, but neither was a party to the underlying lawsuit, both timely perfected (but did not pursue) an ordinary appeal, and the records in both cases failed to demonstrate error.

Of general appellate interest, the Court noted in the latter two opinions that "a party can no longer abandon an ordinary appeal and then seek a restricted appeal" (citing TRAP 30 and Salvaggio v. Brazos County Water Control & Improvement Dist., 598 S.W.2d 277 (Tex. 1980)).

The Belts have three other matters against the same opponent pending on the Third Court's docket.

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As a follow up to this post on the status of e-filing in the Texas appellate courts, the Third Court of Appeals is now accepting electronic courtesy copies.  The court is also asking (but not requiring) the party responsible for requesting or filing the record and briefs to submit e-copies of such documents on a CD or DVD in searchable PDF format.  For specific guidelines, see the "Electronic Filing" link on the court's web site.

I haven't surveyed the otherintermediate appellate courts, but if they aren't doing thisalready, they certainly should follow the Third Court's lead.

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In Texas Comptroller of Public Accounts v. Attorney General of Texas (No. 03-07-00102-CV), the Third Court of Appeals has agreed with an attorney general opinion that state employees' birth dates are public information subject to disclosure under the Texas Public Information Act.  Justice Diane Henson (pictured) wrote the panel opinion (joined by Chief Justice Law and Justice Waldrop) affirming the trial court's summary judgment for the AG.  The appellate court also rejected a request for attorney's fees by The Dallas Morning News, which made the public information request that generated the controversy.

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As reported in the Tex Parte Blog, the race for chief justice of the Austin Court of Appeals is shaping up.  The incumbent, Chief Justice Kenneth Law (R) (pictured) recently announced his plans to seek re-election, following some speculation that he would not run again.  Former Justice Woodie Jones (D) previously announced his candidacy and is gearing up for a strong bid.

Travis County remains a Democratic stronghold, but a number of the 24 counties in the Third District are primarily Republican.  This race won't match the drama of the last election cycle, but it should be interesting nonetheless.

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In Saudi Refining, Inc. v. Combs, the Third Court of Appeals has held that it lacked jurisdiction to decide an appeal from a summary judgment signed in 2003.  In an opinion authored by Chief Justice W. Kenneth Law (pictured), the court rejected an argument that the omission of costs sought by the defendants was sufficient to render an otherwise final judgment interlocutory.  The court thus dismissed the appeal for want of jurisdiction.

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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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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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In Osborne v. Jauregui, Inc., a dispute over a defectively built home,a divided panel of the Third Court of Appeals has reversed and remanded the trial court's judgment declining to award the plaintiffs attorney's fees and denying an intervening insurer's subrogation claim.

Plaintiffs sued the architect/builder and several subcontractors, alleging DTPA violations and other causes of action.  Their homeowners insurer (State Farm) intervened to assert subrogation rights for benefits previously paid.  Plaintiffs settled with all defendants except the builder, against whom they proceeded to trial and obtained an $835,158 jury verdict.  After applying a dollar-for-dollar credit for the $1,260,500 in settlement proceeds, the trial court refused to award attorney's fees under the DTPA, denied State Farm's subrogation claim, and rendered a take-nothing judgment. Plaintiffs and State Farm appealed.

The appellate court first concluded that plaintiffs were "prevailing parties" entitled to attorney's fees under the DTPA, even though the settlement credit negated the jury's damage award.  Noting a split of authority on this issue, the court distinguished this case on the basis that it did not involve prior payments by the same defendant against whom plaintiffs had gone to trial.  Because plaintiffs prevailed against the lone remaining defendant, who had not contributed to the settlement, they were entitled to fees.  The court remanded for calculation of the appropriate amount.

Addressing State' Farm's issues, the court of appeals acknowledged the Texas Supreme Court's recent decision in Fortis Benefits v. Cantu, which held that contract-based subrogation rights trump equitable considerations.  Although the court of appeals criticized the positions State Farm took in the litigation and noted that State Farm did not allocate the settlement proceeds to losses covered by insurance payments, it nevertheless reversed and remanded the subrogation issue so that the trial court could review the contractual subrogation language under Fortis Benefits and determine whether the policy or equitable principles control.

Justice Puryear dissented, citing his belief that plaintiffs were not prevailing parties in light of the one-satisfaction rule and thus are not entitled to attorney's fees.  Applying Fortis Benefits, Justice Puryear further concluded that the insurance contract governed the subrogation issue and that State Farm was entitled to subrogation against the settlement funds.

This is a very interesting case.  When the dust settles, I expect the supreme court will give it a close look.

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In Wallace v. Texas Department of Health, the Third Court of Appeals has held that the trial court acquired subject-matter jurisdiction over a prematurely filed Texas Commission on Human Rights Act claim when the statutory administrative period ended.  Under the statute, the Commission had exclusive jurisdiction over the dispute until 180 days after the employee filed his administrative complaint or until he received a right-to-sue letter from the Commission.  The appellate court reversed the trial court's judgment granting the Texas Department of Health's plea to the jurisdiction after concluding that the employee was not required to dismiss and re-file his lawsuit before jurisdiction could vest in the district court.

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In AXA Financial, Inc. v. Roberts, a consolidated interlocutory appeal and mandamus proceeding previously discussed here, the Third Court of Appeals has turned away efforts to compel arbitration under both the Texas and federal statutes.  The court first held that it lacked jurisdiction over the interlocutory appeal because the notice of appeal was not filed timely (within 20 days of the district court's order denying the motion to compel arbitration) and because a "motion to reconsider" neither extended the appellate timetable nor qualified as an independently appealable order.  Considering the mandamus petition, the court of appeals concluded that the relator failed to establish the existence of an arbitration agreement covering the dispute and that the district court acted within its discretion in refusing to consider "new" evidence submitted with the motion to reconsider.

This opinion contains a good summary of Texas arbitration law, particularly the procedure and burdens of proof relating to a motion to compel arbitration.  The lessons learned are (1) remember that an appeal from an order denying a motion to compel arbitration is accelerated, making the notice of appeal due in 20 days rather than the usual 30; and (2) if you are the movant, gather and present your evidence on the first go-round because you might not get a second chance.

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Earlier this year, Jeffrey Kyle took over for Diane O'Neal as clerk of the Third Court of Appeals here in Austin.  With that change came a significant revision to the Court's local practices.  Before, an appellee could file its brief anytime up until the case was formally submitted to the Court, which could occur several months (or longer) after the filing of appellant's brief.  Now, in conformity with Texas Rule of Appellate Procedure 38.6, appellee's brief is due 30 days after appellant's (20 days if the the appeal is accelerated), and appellant's reply brief is due 20 days later.  The Court now requires a motion for extension of time to push these deadlines back.

The online version of the Court's local practice guide (¶57) reflects this change.  The printed versions I have seen do not.   Moral:  Don't rely on memory when advising clients (or yourself) about impending deadlines.  As stated here before, always check the rules.

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In another chapter of the most recent school-finance case, Neeley v. West Orange-Cove Consolidated Independent School District, the Third Court of Appeals has rejected the State's challenge to the district court's $4 million attorneys' fee award.  The court of appeals held that the State waived its argument that certain constitutional provisions precluded the districts from recovering such fees by failing to raise the argument in its direct appeal to the Texas Supreme Court.  Applying the Uniform Declaratory Judgments Act, the court further held that that the award was "equitable and just."

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In Levy v. OfficeMax, Inc., the Third Court of Appeals has reversed the dismissal of class claims that OfficeMax and Best Buy must assign tax refund rights to customers who mailed in product rebates.  On remand, the trial court will consider whether such assignments can be compelled and whether a class should be certified.

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In Polk v. City of Killeen, the Third Court of Appeals has affirmed a take nothing summary judgment on the plaintiff's survival claim.  What makes this otherwise run-of-the-mill decision interesting is that the claim arose from a collision between an ambulance transporting the decedent (who had been found unresponsive at his workplace) and another vehicle.  The court of appeals held that an emergency room physician's affidavit testimony that the decedent was "unable to be brought back to life from the time he was first treated by Kileen Fire Department EMS" where he collapsed conclusively established that the decedent did not sustain an injury while he was alive.  Because the plaintiff had no controverting evidence, summary judgment was proper on both traditional and no-evidence grounds.

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At today's Austin Bar Appellate Section Luncheon, Justices David Puryear, Alan Waldrop, and Diane Henson (the Court's newest member) gave a panel presentation about the goings-on at the Third Court of Appeals.  Justices Waldrop and Henson both chimed in about the relative dearth of oral arguments, as previously discussed here.  Justice Waldrop indicated that he believes the number of arguments will be rising, but will remain limited becauseof the Court's workload.  Justice Henson, a self-proclaimed advocate of oral argument, stated that she intends to do what she can to facilitate it in appropriate cases.

Justice Waldrop offered a helpful tip to those desiring oral argument in the Third Court.  Don't simply request it on the cover of your brief.  Go beyond what the rules require and include a separate statement inside the front cover explaining why the Court should hear oral argument in your case.

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In Charles v. Texas Property & Casualty Insurance Guaranty Association, the Third Court of Appeals has held that the trial court's signing of an order nunc pro tunc to correct the cause number in a dismissal order did not extend the deadline for filing a notice of appeal.  Accordingly, the appellate court determined that it lacked jurisdiction to consider the appellant's complaints about the original order, which were raised in a restricted appeal from the order nunc pro tunc.  The court of appeals affirmed the dismissal after rejecting the appellant's challenges to the corrected version.

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In Rainbow Group, Ltd. v. Wagoner, the Third Court of Appeals has dismissed a class action defendant's interlocutory appeal from an order denying its motion to decertify the class and an order granting the plaintiffs' motion to amend the certification.  The court of appeals held that it lacked jurisdiction becausethe first order was not subject to an interlocutory appeal and because the defendant failed to timely file a notice of appeal from the second order.

Disputing discusses the case here.

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In Morales v. Barnett, the Third Court of Appeals has affirmed the trial court's order dismissing a wrongful death suit against the Luling Independent School District on the ground that sovereign immunity had not been waived.  The court of appeals held that the incident did not "arise[] from the operation or use of a motor-driven vehicle" for purposes of the Tort Claims Act (Tex. Civ. Prac. & Rem. Code § 101.021(1)) because the district's jurisdictional evidence negated any causal nexus between a coach's use of hazard flashers while parked beside the road and an athlete's death from being struck by another car.  The appellate court further concluded that the coach's decisions were supervisory in nature and thus could not give rise to a waiver of immunity.

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In Cox Newspapers, L.P. v. Penick, a media defendant's interlocutory appeal from an order partially denying summary judgment, the Third Court of Appeals has held that a former Bastrop County district attorney presented no evidence that one of several newspaper articles about a murder trial he prosecuted was "of and concerning" him (as required under New York Times v. Sullivan) or that the remaining articles were published with actual malice.  Accordingly, the appellate court reversed that portion of the district court's order denying summary judgment on these articles and rendered judgment that the former district attorney take nothing from the newspaper.

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In Railroad Commission of Texas v. Coppock (on motion for rehearing), the Third Court of Appeals has reversed a district court's determination that the Commission's basis for extending a surface coal mining permit that the miner lacked a market for selling its coal was not authorized under the Texas Natural Resources Code.

The merits of this case are something only an administrative lawyer could love.  A straightforward procedural issue is what grabbed my attention.  The Third Court panel glossed over the appellants' position that an argument characterized as an independent ground for affirmance could not be heard because the appellees did not file their own notice of appeal.  See Tex. R. App. P. 25.1.  Instead of deciding whether Rule 25.1 was in play, the panel addressed the merits of the appellants' argument "[i]n the interests of justice."  What's more, because the court reversed on another ground, the entire discussion is arguably dicta.

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In Baize v. Scott & White Clinic, a health care liability case, the Third Court of Appeals has affirmed a no-evidence summary judgment based on the plaintiffs' failure to timely designate expert witnesses.  Although the trial court erred by granting a motion to withdraw as counsel that failed to state the expert designation deadline, the court of appeals held the error harmless because the plaintiffs had sufficient time to secure new counsel and for the new counsel to investigate the case and prepare for trial.

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In Goodson v. Castellanos, the Third Court of Appeals has rejected a collateral attack on a 2003 Bexar County decree granting a child's adoption by two same-sex parents.  After considering appellant's contention that the adoption decree was void because state law prohibits same-sex adoptions, the Court concluded that the decree could not be attacked collaterally because Texas Family Code § 162.012 prohibits all challenges to an adoption decree filed more than six months after the order is signed.

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In Colonial American Casualty and Surety Co. v. Scherer, the Third Court of Appeals has held that the surety on a bond securing the original estate administrator could be liable for a successor administrator's attorney's fees in an action against the former administrator for mismanagement of the estate.  However, the Court limited the surety's liability for such fees to the bond's face amount.

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In Cluck v. Commission for Lawyer Discipline, the Third Court of Appeals has affirmed a summary judgment disciplining a lawyer who deposited $20,000 from a client into his operating account rather than his trust account.  The fee agreement described the money as "a nonrefundable retainer" against which the lawyer would bill at his hourly rate.

Lawyers considering charging their clients "nonrefundable" fees should study this case closely to appreciate the difference between what the Court calls a "true retainer" and a mere "advance fee."  Here, contractual language labeling the money "nonrefundable" was not enough to qualify it as a "true retainer," which the Court defined as a payment "to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment" (quoting Tex. Comm. on Prof'l Ethics, Op. 431, 49 Tex. B.J. 1084 (1986)).

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In In re C.S., the Third Court of Appeals has held that an ad litem's request for an injunction to remove "unconconstitutional barriers" to an adoption by increasing subsidies was really "an attempt to force the State to pay money to [the prospective adoptive parents] that the State is not willing to pay on its own volition."  Because the State is immune from suits for money absent legislative consent, the Third Court reversed the trial court's denial of the State's plea to the jurisdiction and rendered judgment dismissing the claim.

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In Metal Building Components, LP v. Raley, the Third Court of Appeals has remanded for further proceedings on attorney-fee and settlement-credit issues because the trial court's failure to provide "any analysis or reference to guiding principles" prevented the appellate court from determining whether an abuse of discretion had occurred.  Also of interest, the Third Court declined to limit the "one satisfaction rule" to tort cases.

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In Barrigan v. MHMR Services for the Concho Valley, the Third Court of Appeals has held that failure to include an instruction on the burden of proof in the jury charge was harmless error because the jury was instructed about the proper burden when trial began and appellant's counsel emphasized the proper burden throughout the trial.

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