Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part V: How Will Rule 56.1 Operate in the New Jurisdictional Landscape?

Maitreya Tomlinson

As lawyers, we love rules (and by “love” I mean memorize, apply, hopefully comply, argue, and at times strive to change them). We don’t, however, amend rules until they somehow fail or become obsolete. Granted, failure/obsolescence can be in the beholder’s eye and must present itself before we strive to change the rule.

In light of the Texas Supreme Court’s streamlined jurisdiction, the following question naturally arises (likely only for dedicated appellate professionals): will the Court continue to utilize Texas Rule of Appellate Procedure 56.1 similarly or will it have to revamp the rule? Perhaps because in some ways the Court’s new jurisdiction doesn’t appear to change the status quo, its new jurisdiction doesn’t seem to be generating much attention. So, it’s not surprising that rules promulgated under the old jurisdictional bases are not yet receiving noticeable attention. This includes Rule 56.1 titled, “Orders on Petition for Review.” Although not heavily cited in case law, the Texas Supreme Court employs the rule every time that it considers a petition for review. Consequently, it’s worth considering whether the jurisdictional change will affect the way the Court utilizes the rule or whether it chooses to amend the rule. Any meaningful discussion regarding Rule 56.1 (or any rule) must begin with the rule itself.

(Almost) Everything You Wanted to Know About Rule 56.1, But Were Afraid to Ask

Rule 56.1 contains four subsections that guide the Texas Supreme Court when it considers petitions for review. Rule 56.1(a) states that the Court has judicial discretion to grant review and lists the following six factors to consider when exercising its discretion: “(1) whether the justices of the court of appeals disagree on an important point of law; (2) whether there is a conflict between the courts of appeals on an important point of law; (3) whether a case involves the construction or validity of a statute; (4) whether a case involves constitutional issues; (5) whether the court of appeals appears to have committed an error of law of such importance to the state’s jurisprudence that it should be corrected; and (6) whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court.” Rule 56.1(b) empowers the Court to deny or dismiss a petition on file for thirty days—regardless if there was a response—with either the following two notations: (1) “Denied”; or (2) “Dismissed w.o.j.” (shorthand for “Dismissed for Want of Jurisdiction”). Rule 56.1(c) allows the Court to refuse a petition after a response is filed or requested, using the notation “Refused.” This notation serves as a proverbial rubber stamp and indicates that the court of appeals’ opinion supplies equivalent precedential value as a Texas Supreme Court opinion. Lastly, Rule 56.1(d) permits the Court to, without opinion, set aside its previous order granting review and dismiss, deny, or refuse review as if review were never granted. Continue Reading

Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part IV: Will Changes to Jurisdiction Necessitate a Change to Rule 53.2?

Maitreya Tomlinson

Sometimes the earth shifts along the ocean floor creating tsunamis that flood unsuspecting coastal areas. Sometimes the shifts amount to unnoticed ripples silently traveling alongside flowing waves. Like the quaking seabed, will the recent changes to the Texas Supreme Court’s jurisdiction lead to any amendments to the rules of appellate procedure? In Part II of this series, I predicted the jurisdictional change would force petitioners to cede valuable real estate in their argument sections to prove jurisdiction. I based this prognostication on Texas Rule of Appellate Procedure 53.2(e)’s prohibition on argument in a petition-for-review’s statement of jurisdiction.

At this point, you may be asking yourself what is Rule 53.2 or 53.2(e) and why might it need amending? Rule 53.2 concerns petitions for review (the initial filing to appeal reviewable orders or judgments). It prescribes certain headings and establishes rules regarding their respective content. In particular, Rule 53.2(e) requires a heading labeled, “Statement of jurisdiction.” It further mandates that “[t]he petition must state, without argument, the basis of the Court’s jurisdiction.”

New(ish) Jurisdiction and Possibly Amending Rule 53.2

So, does the rule require amending? Before the jurisdictional change, practitioners typically (utilizing the kitchen-sink or the more-the-merrier approach) identified multiple bases of jurisdiction in this section. The new, solitary importance-to-the-state’s jurisprudence standard, however, has eliminated this need. In fact, it may be enough to now simply state that the legal issues are important to the state’s jurisprudence. There are, as I will detail more below, reasons why petitioners might still need to present argument in their statements of jurisdiction. In turn, the need may necessitate at least removing Rule 53.2(e)’s “without argument” language.

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Posted in Appellate Practice

How Appellate Work Saved Me from Diabetes and Diabetes Made Me a Better Appellate Lawyer

Jeff Nobles

I was diagnosed with type 1 diabetes 44 years ago, on September 24, 1973, and have practiced appellate law full-time since 1989. Appellate law has played a major part in helping me live a longer and healthy life. In 1973, the life expectancy for a teenager diagnosed with diabetes was 50. I turned 59 last month. Here are some of the ways my career has extended my life and diabetes has made me a better appellate lawyer.

Health Insurance

I joined a small Houston firm in 1987 and worked as a trial lawyer for a couple of years. In Texas in 1987, health insurance coverage was not a given for a person with diabetes, and the group insurer for my small firm would not cover me or my wife, Angie. This was a problem that led me to a new job in 1989 with a larger employer, the State of Texas, where I began work as a staff attorney at the First Court of Appeals, just before our first daughter, Audrey, was born.

Health insurance has always been a key factor in my job choices. I’ve mainly worked in law firms that had decent health insurance coverage. Without good health insurance, the annual costs of my diabetes—quarterly endocrinologist visits; insulin; insulin pumps and supplies; test strips and meters; continuous glucose monitors and supplies—would be more than $30,000 annually. Decent health insurance coverage has maintained my health and the ability to work long hours on complicated appeals.

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Posted in Appellate Practice

Advocate v. Advisor: Estimating Likelihood of Success

Laura P. Haley

“We’re going to win,” a board-member announced, pointing at the application for a temporary restraining order, and looking around the room. Turning her gaze to me, she reiterated, “it says, ‘Plaintiff Will Likely Succeed on the Merits,’ and then you give a bunch of reasons why. That means we’ll win the case, right?” “From a purely legal perspective, yes,” I began. “Oh boy. This is why people hate lawyers,” another board-member interjected, as I started to explain. But I wasn’t being coy with the board or dishonest with the court: I was estimating the likelihood of success, as both an advocate and advisor.

Conflicting Estimations

Rule 2.01 of the Texas Rules of Professional Conduct requires that when “advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” Rule 3.03 states that a “lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” Although these rules require a lawyer’s “candor” to a tribunal and “candid advice” to a client, nowhere do they require that her communication with both be consistent. In fact, these rules allow her estimation to her client and to the court, of the likelihood of her client’s success, to conflict.

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Posted in Appellate Practice, Technology

Talking Legal Tech on New Solo

D. Todd Smith

Anyone familiar with me as a lawyer knows I have a penchant for legal technology. It’s a regular topic of discussion around here, particularly as it relates to modern-day appellate practice. I’m always looking for ways to implement legal tech and related tools to make things run more smoothly and efficiently in my firm and provide better service to our clients.

One good way to learn about legal tech is to listen to podcasts focusing on the topic. The Legal Talk Network has several good ones. I’ve long been a fan of The Kennedy-Mighell Report and The Digital Edge, to name a couple you may have heard about. Continue Reading

Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part III: What’s Old May Be New in the Statutory Renovation

Maitreya Tomlinson

 

As discussed in my previous two posts (here and here), the Texas Legislature has made significant changes to statutes demarcating the Texas Supreme Court’s jurisdiction. In what appears to be an effort to renovate, the legislature has done more than change the wallpaper. It has tried to simplify jurisdiction by applying the same jurisprudential-importance standard to both final orders/judgments and appealable interlocutory orders. In doing so, the legislature has removed entire sections of the existing statutes like a contractor tearing up old carpet.

Analogous to hardwood floors gracefully aging under a carpet, the standard isn’t new. The existing legislation has long weaved jurisprudential importance into a basis for jurisdiction. Jurisprudential-importance arguments have also served other purposes. For instance, savvy practitioners have argued jurisprudential importance to convince the Supreme Court to grant their petitions, not merely establish jurisdiction. Now, however, the standard will present a threshold issue for all appealing parties to argue. Like the hardwood floors, the standard will now be exposed for all to behold and will be used more frequently. Continue Reading

Posted in Appellate Practice

Lawyers in the Living Room: “Texas Lawyers” Facebook Group

Laura P. Haley

“I feel like I’m visiting your home every time I read a post,” I told Andrew Tolchin, the founder of the “Texas Lawyers” (TL) Facebook Group. “Visiting my home is precisely what it is supposed to feel like—like you are in my living room,” he replied. Andrew describes TL as a “judge-free online legal community for actively-licensed lawyers who see value in online communication by and between lawyers in a closed group environment.”

Andrew and I went to law school together twenty years ago. Since then, our paths never crossed until two years ago when he contacted me on Facebook and invited me to join TL. Now I check-in almost daily, and am fascinated by the TL community and Andrew’s gracious moderation of it. Over the last two years (and probably like every other member), I’ve invited many other lawyers to join—friends, co-counsel, clients, even opposing counsel—pretty much anyone who I think would appreciate or benefit from the TL community. Continue Reading

Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part II: The Times They Are a-Changin’ (Or Are They?)

Maitreya Tomlinson

My previous blog post briefly outlined the Texas Supreme Court’s jurisdiction and the soon-to-be-effective legislative changes. As the title of these posts suggests, the next step is to examine the potential effects, if any, that these changes will have on courts, practitioners, and clients. Admittedly, by doing so, I tread into uncharted territory armed solely with surmise and experience.

Expanded Jurisdiction?

It’s difficult to predict the effect that the likely expanded jurisdiction will have on the Texas Supreme Court. Overall, HB 1761 appears to have expanded the Supreme Court’s jurisdiction over all appealable orders and judgments. HB 1761 confers the Supreme Court with broader jurisdiction over interlocutory orders. (Note: the changes only apply to interlocutory orders rendered on or after September 1, 2017.) As a result, the Supreme Court should be able to review more intermediate appellate-court and trial-court decisions. Continue Reading

Posted in Appellate Practice

Properly Pleading Attorneys’ Fees in Suits Against Partnerships and LLCs to Avoid Zombie Litigation

Jeff Nobles

Zombie litigation” broadly refers to cases that generate unending piecemeal litigation. Attorneys’ fees disputes often spawn zombie litigation—after the merits of the case have been decided but the lawyers continue to litigate and appeal whether and how they will get paid. Over the last 20 years, Texas appellate courts have crafted new tools to help them conduct an exacting review of large attorneys’ fee awards. One of the newest and sharpest tools for carving fee awards was crafted in a 2014 appellate decision, Fleming & Associates, L.L.P. v. Barton, which applied a new spin to the 1986 enactment of section 38.001 of the Civil Practice & Remedies Code. The Fleming decision also lays a new pleading trap when fees are sought against a partnership or LLC.

The new effect of section 38.001 was largely overlooked for years.

When enacted in 1986, section 38.001 was considered to be a non-substantive codification of article 2226, its predecessor. Before 1986, article 2226 allowed a successful contract claimant to obtain attorneys’ fees from “a person or corporation.” Section 38.001 changed “person” to “individual.” The Fleming court noted that a “person” is defined by the Civil Practice & Remedies Code to include business entities, but “individual” is not. Therefore, “a person may not recover attorney’s fees against a partnership.” In Alta Mesa Holdings, L.P. v. Ives, this reasoning was further applied to limited liability companies, or LLCs. As a result, contract claimants who seek attorneys’ fees exclusively under section 38.001 now find themselves barred from recovering them.

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Posted in Appellate Practice, Texas Supreme Court

Texas Supreme Court Jurisdiction, Part I: The Times They Are a-Changin’ (Or Are They?)

Maitreya Tomlinson

Likely obscured by the legislative din emanating from the capitol these days, the Texas Legislature has somewhat quietly altered the Texas Supreme Court’s jurisdiction by passing HB 1761. The Governor signed it, without much fanfare, on May 26, 2017, and the bill is now effective on September 1, 2017.

For the uninitiated, at its most basic level, jurisdiction entails a court’s ability to hear a matter. The Texas Supreme Court is the state’s highest appellate court that reviews civil matters. It also generally enjoys the discretionary power to select appeals for review, albeit appeals over which it has jurisdiction.

Final Judgments

Currently, the Texas Supreme Court has discretion to hear appeals from final orders or judgments in the following six types of civil matters:

  • a case in which the justices of a Texas intermediate appellate court (“court of appeals”) disagree on a question of law material to the decision (“dissent” jurisdiction);
  • a case in which one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case (“conflict” jurisdiction);
  • a case involving the construction or validity of a statute necessary to a determination of the case;
  • a case involving state revenue;
  • a case in which the railroad commission is a party; and
  • any other case in which it appears that an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that, in the opinion of the supreme court, it requires correction, but excluding those cases in which the jurisdiction of the court of appeals is made final by statute.

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