Posted in Appellate Practice, Texas Supreme Court

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

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.

Continue Reading

Posted in Appellate Practice, Texas Supreme Court

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

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.

Continue Reading

Posted in Announcements

Marking Milestones

D. Todd Smith

Eleven years ago today, I started the practice that became Smith Law Group LLLP. One year later, on the first anniversary of what was then a solo shop, I posted these words:

One year ago today, I departed big firm life to start my own appellate boutique—if you can call one lawyer a boutique! The result has exceeded my expectations in almost every way. While I am grateful for the opportunities I had at Fulbright & Jaworski and the excellent experience I obtained there, my current practice is a much better fit for my personality and work style, and it is also better for my family (although my wife would say that I don’t work any less). Special thanks to all the folks who have referred cases to me or hired me over the past year. Without you, I wouldn’t be posting this message.

Like most firms, we’ve gone through significant changes over the intervening decade. Appellate practice has changed a lot too, generally for the better. Electronic filing, e-service, CaseMail, and the new Attorney Portal have helped us take our practice digital. With my MacBook, iPad, Westlaw subscription, and a good internet connection, I can do my job from anywhere, making our big state seem a lot smaller.

As I write this now, in 2017, I’m more excited than ever about where we are as a firm, where we’re headed, and our ability to help litigators and in-house counsel solve their appellate problems—preferably before they arise.

Welcome Jeff Nobles!

Here’s one reason for my optimism: This week, respected appellate advocate Jeff Nobles joined us as a partner. Jeff is opening our firm’s new Houston office, expanding our coverage into a market we’ve had our eye on for years. Among other contributions, expect Jeff to share the insight and wisdom he has gained over thirty years of practice here on the blog.

As SLG enters its twelfth year, it seems appropriate to highlight Jeff’s arrival among the many good things we have going on. There’s more to come.

Image courtesy of Flickr by Dun.can.

Posted in Appellate Practice

It’s Alive! Revive Your Dead Motions and Defend a Favorable Judgment With a Proper Appeal

While relatively short, a recent Third Court of Appeals memorandum decision is rife with lessons for attorneys defending favorable summary judgments made on superseded motions. The dispute in Larivee v. Louis meant to center on tenant-landlord issues concerning a carpet’s condition. Unfortunately, especially for the appellant, the case’s procedural posture forced the Third Court to focus on superseded or “dead” motions and preserving appellate grounds. The opinion, however, provides lessons that can benefit other attorneys experiencing similar circumstances.

Continue Reading

Posted in Appellate Practice, Supreme Court Orders, Technology, Texas Supreme Court

How Dependent on Instant Online Data Access Are We?

D. Todd Smith

Try accessing any number of court-related websites right now, and you may be diverted to the following landing page:

Screenshot 2017-06-29 17.31.01
A Tuesday evening power outage took down Office of Court Administration servers, and OCA has had difficulty bringing them back up. Meanwhile, scores of lawyers across the state went into panic as they were unable to instantly access online dockets, CaseMail, or the Attorney Portal. (Are we getting spoiled or what?)

Never fear. The sites are reloading just in time for the Texas Supreme Court’s Friday orders. Just in case, OCA has set up a backup site at the usual address, Expect a long set of orders and several decisions tomorrow as the Court looks to continue its streak of disposing of all granted cases before breaking (soft of) for the summer.

Posted in Appellate Practice, Technology

Demystifying Appellate Law on The Law Entrepreneur

D. Todd Smith

Screenshot 2017-06-26 15.57.40Solo and small firm lawyers, if you’re into podcasts and haven’t checked out The Law Entrepreneur, you should. Maryland lawyer Neil Tyra has put together 69 episodes (so far) of great conversation with lawyers, tech consultants, and other professionals offering insight into the entrepreneurial side of modern-day law practice.

The main reason I know exactly how many shows Neil has aired is that he had me on as his guest for Episode 69, entitled Demystifying Appellate Law & Leveraging the Cloud. It’s available for download in iTunes or through Neil’s podcast website for anyone interested. Continue Reading

Posted in In-House Focus

How Outside and In-House Counsel Can (and Should!) Collaborate on Post-Litigation Lessons-Learned

Laura P. Haley


For much of my career as outside litigation counsel, I marked the end of cases with a celebratory client lunch or a sigh of “good riddance.” But when I went in-house with one of my clients, the end of each case was an opportunity to consider lessons the company could learn from the litigation. Now that I have transitioned outside again, at the conclusion of almost every case, l assist my in-house counterpart in developing and implementing lessons-learned. When in-house and outside counsel utilize post-litigation lessons-learned, the litigation cost becomes an investment in innovating the company’s operations.

Debunking the Cost-Center Myth

The current view of many (if not most) companies is that the legal department, and particularly litigation, is a “cost center.” Not only is this view wrong, it divorces the actual cause (i.e. contract review, negotiation, or execution errors, failures to follow HR policies or procedures, lack of internal audit controls) from its effect (litigation). As a result, the “cost center” view conveniently compartmentalizes the “cost” of a company’s errors in the oft-maligned legal department and prevents the company from identifying or correcting the actual cause. Continue Reading

Posted in Appellate Practice, Third Court of Appeals

An Evening with the Third Court of Appeals, 2017 Edition

Screenshot 2017-05-05 15.01.31Yesterday, the Austin Bar Association’s Civil Appellate Law Section hosted a program entitled “An Evening with the Third Court of Appeals” at Austin’s InterContinental Stephen F. Austin Hotel. My firm, Smith Law Group, was among the event’s sponsors.

This event was a natural sequel to the well-received peek behind the proverbial curtain when the Court, months ago, opened its offices to host local attorneys at the “Breakfast with the Third Court of Appeals.” As usual, the event was well attended by the Court, its staff, and practitioners. The Third Court of Appeals has consistently engaged the legal community and events like this demonstrate this fact.

While primarily a chance to socialize with the Court, Chief Justice Jeff Rose gave some remarks and introduced his fellow attending Justices. The evening offered attendees a chance to informally interact with our judiciary. Thanks to my fellow Civil Appellate Section Council members and the Third Court for ensuring that this and other programs are well-attended and enjoyable opportunities to maintain connections in our local legal community.

Posted in Appellate Practice, Technology

[Tap…Tap…Tap] Is This Thing On?

D. Todd Smith

After a decade of blogging, I’m still amazed how one simple post can spin off new opportunities.

Back in November, I wrote about how I’m using my iPad Pro during oral arguments. As a direct result of that post, I was:

  • featured on iPhone JD (a site I highly recommend to anyone using iPhones or iPads in their law practices);
  • asked to turn the post into an article for the Texas Bar Journal; and
  • invited to speak to trial lawyers about going paperless at a traveling roadshow CLE.

More recently, legal tech consultant Brett Burney invited me to appear on his excellent new podcast, Apps in Law, to discuss iThoughts, the mindmapping app I mentioned in the post. I had heard Brett speak before and have a lot of respect for him, so I was happy to say yes.
Continue Reading