The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Yesterday the Fifth Circuit released Evanston Ins. Co. v. Dillard Department Stores Inc., which will be of interest to lawyers and civil practitioners.  The court's per curiam opinion imposes individual liability on the two law partners of a defunct limited liability partnership for a judgment taken against the law firm by Dillards arising from the firm's cyberpiracy-web-site business model.  

The judgment was taken against the law firm after the partners signed an agreement to dissolve the limited liability partnership and after its LLP registration had expired without renewal.  As a result, the "debt" (the judgment) was was "incurred" when the law firm was not an LLP.  When Dillards sued the partners to collect the judgment, the LLP statute provided no protection.

So, if you're dissolving that LLP, it ain't over 'til it's over.  Keep that registration current until all the liabilities are in the rear view mirror. 

Oh, and cyberpiracy to attract clients isn't good either.  No need to thank me.  I'm just here to help.

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The hardest working circuit in the law business continues cranking out the hits.  Two published opinions from the Fifth Circuit yesterday having potential interest to the civil practitioner.

• Laughlin v. Nouveau Body  & Tan ( In re Laughlin) (pdf) involves the question of whether the debtor's renunciation of an interest in his father's estate before seeking bankruptcy protection was a fraudulent transfer (it was not).  Judge King wrote the opinion. 
• Wackman v. Rubsamen (pdf) was a wrongful death case applying Texas law.  It probably deserves an extended post as it involved several interesting issues; however, the main issue was the legal sufficiency of the medical causation evidence.  Depending upon whom one believed, the decedent either died of cancer or (according to her largely estranged family) was killed by an overdose of pain medication intentionally administered by her caregivers. 

The court largely affirmed the judgment, finding the expert testimony and circumstantial evidence sufficient to support the judgment notwithstanding some "analytical gaps" acknowledged by the expert.  Judge Garza wrote the opinion.

I hope to have some time to read Wackman closely and pull apart the expert discussion.  It is worth your time as well.  The question presented is right in the middle of the fairway of the when expert testimony is "no evidence," or when an objection is required, or what type of objection is sufficient, or when defects in testimony go to the admissibility or only to the weight of the testimony. 

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The year 1999.  You're an appellate lawyer in a silk stocking firm in Houston, Texas.  You hear someone running toward your office door.  The door bursts open to reveal a trial lawyer, pupils dilated and sweat beading on his forehead. 

His client, Mega Co., just had a hearing on its 5000 page motion for summary judgment (that the trial lawyer insisted on drafting himself) and lost.  A fact question.  Who knew?

Now they are set for trial in a month but he vowed to Mega Co.'s CEO that they were going to stop the trial and appeal "all the way to the Supreme Court."

That's why he came to see you.  "I want you to handle the appeal."  He feels like he's offering you a plum piece of work that will keep you fully and lucratively employed for some time to come.

You invite him to sit down, perhaps offer him a beverage, before informing him that you will not be handling the appeal because there is nothing to appeal.

There is no appeal from an interlocutory order denying the garden variety summary judgment.  Everybody knows that.

"But this is truly extraordinary," he says.  "What about one of those mandamus things?"

After ascertaining that the only thing extraordinary about this proceeding is that this trial lawyer prefers not to lose, you answer, "No.  A denial of summary judgment is not reviewable by mandamus."  Everyone knows that, you add to yourself. 

Flash forward a decade, and the answer is not so clear.  But it is not nearly as murky as some folks complain.  You just have to understand the Chuck Norris exception to restrictions on mandamus review.

After the jump, my own take on why the Supreme Court of Texas is like Chuck Norris when determining whether mandamus should issue because appellate remedies are inadequate. 

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It was forum shopping day at the Supreme Court of Texas.  The Court released two mandamuses mandamii mandamae opinions granting petitions for writ of mandamus in which choice of forum was key.

• In re United Services Automobile Association (pdf) involves the question of whether limitations ought to have been tolled (it was not) where the plaintiff's claim exceeded the jurisdictional limits of the county court at law where he chose to file it.  Tolling depends upon whether the filing was made in "intentional disregard of proper jurisdiction" (it was).  Chief Justice Jefferson wrote the Court's opinion.
• In re Liabe Corporation (pdf) involves application of a forum selection clause to commercial actors complaining about equipment that did not work right.  The court only had to resolve fairly pedestrian contract formation questions about whether the plaintiff really really really agreed to bring suit in Indiana (it did) and whether The Hoosier State was really really really inconvenient (it was not).  As a result, the prolific Justice Per Curiam wrote the opinion.

I want to read United Services in more detail this weekend and perhaps write more.  It is certainly a new candidate to be added to the Practice Court reading list at Baylor Law School, highlighting as it does the complexity of trial court jurisdiction in Texas.  Fodder for Socratic torture questioning that is.  United Services also includes some important new wrinkles to the "inadequate remedy by appeal" standard given that denial of summary judgment is ordinarily not a subject for mandamus relief.

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Three days have passed this week, and in all three days the Mighty Fifth Circuit has released published opinions of interest to civil practitioners.  Today the Fifth Circuit released Smith v. Xerox Corp. (pdf) involving jury instructions in a Title VII retaliation case and the standard for punitive damages under the statute.  Judge Reavley wrote the opinion.  Oddly, the Panel released a separate, unpublished opinion (pdf) to explain why the evidence was sufficient to support the retaliation claim.

A divided panel held that the trial court properly inquired of the jury whether Smith's EEOC charge was a "motivating factor in Xerox's termination decision" and then whether "Xerox would have made the same termination decision even if it had not considered Smith's EEOC charge."  The extended statutory analysis is definitely worth your time if you handle employment matters with regularity. 

The Panel Majority concluded that, although the evidence was sufficient to find that retaliation was a motivating factor in the termination, the punitive damages award based on malice or reckless indifference to federal rights could not stand as the requisite mental states had not been established.

Judge Jolly dissented, intimating at a potential circuit split:

First, the majority effectively creates an unnecessary split in the circuits by failing properly to apply the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. As the Seventh Circuit has correctly reasoned, without statutory language indicating otherwise, the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case. Second, the majority errs in treating this case as a mixed-motive case. This case is pretext, pure and simple: it was tried as a pretext case and relies on pretext evidence.

If the Court would take a breather from all this opinion writing, your most humble and obedient blog servant might have time to think deep thoughts about all these developments and commit them to print.  If the Court releases no opinions on Saturdays and Sundays, I still have a chance.

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The Fightin' Fifth Circuit had not yet begun to fight as of this morning's post.  Several more published opinions this evening, one of which might be of interest to civil practitioners.  And even better, an order for en banc review.

• Jurisdiction and procedure nerds will want to read Martin v. Halliburton (pdf) in which the Court dismissed for lack of appellate jurisdiction.  The defendants, contractors in the Iraq War, asserted various immunity defenses, but the district court denied their motion to dismiss for lack of subject matter jurisdiction.  The Fifth Circuit dismissed the interlocutory appeal, most significantly because it found the immunity defenses were not the type that would be subject to the collateral order doctrine. Judge King wrote the opinion.

And finally, the Court ordered rehearing en banc in Castellanos-Contrera v. Decatur Hotels LLC (pdf), which involves FLSA rights of guest workers providing services in the wake of Hurricane Katrina.

The Panel Opinion (pdf), by Judge Jolly, characterized the issues as:

three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location.

The panel concluded that the FLSA did not require an employer to reimburse any of these expenses, but now the whole court will get to share the fun.

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Well, it's been a quiet week in the United States Court of Appeals for the Fifth Circuit, my home Circuit. 

Actually, the Court has been handing down opinions with such regularity, the sister circuits are starting to take offense because the Mighty Fifth is making them look slothful by comparison.

Yesterday, the court handed down three published opinions, two of which might have interest to civil practitioners.  Very briefly:

• In Carmona v. Southwest Airlines Co. (pdf), the Court reversed the district court's decision to grant judgment as a matter of law on a flight attendant's ADA claim.  The flight attendant's psoriatic arthritis had caused the employee to miss work.  The jury had found in favor of the employee on his ADA claim but had rejected his claim under Title VII.  Judge Garwood wrote the opinion.
• And my personal favorite, Wells v. Smithkline Beecham (pdf).  The Plaintiff brought a products liability claim under Texas law and argued that Smithkline Beecham ought to have warned him that Requip would cause compulsive gambling, resulting in millions of dollars of gambling losses.  The Court affirmed the trial court's Daubert ruling finding that the expert testimony linking compulsive gambling to Requip was not up to snuff.  Judge Higginbotham wrote the opinion.   

 Daubert is one of my favs, so watch this space for some further analysis--unless the Mighty Fifth keeps up this pace, in which case there will be insufficient time!

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In the first post on this topic, I put forward the idea that appellate lawyers are the chess club of the law world. But beyond ability of a law nerd to bring polished, written analysis to bear, what else makes an appellate lawyer “special”?   

Of course, the most common function of an appellate lawyer is to bring issues of legal error to an appellate court after trial. But a “law focus” affects the way an appellate lawyer approaches every issue. And although my bias is clear, I think it is never too early to talk to the law nerd.

After the jump, you’ll find out why an appellate lawyer can reduce the trial lawyer’s “war room” full of boxes to a single, 1 inch binder.

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I love old cases. There is nothing better than a dusty case from a creaky, leather-bound book to demonstrate, “I’m not only correct now. I have been correct for 120 years.”

So imagine how my pulse quickened when I read Don Cruse’s summary of TXI Transportation v. Hughes (pdf) on the Supreme Court of Texas Blog in which the Supreme Court held that repeated references to the defendant's immigration status constituted harmful error.

The quotation Don excerpted from the opinion contained this little gem in the middle of a string cite:

. . . see also Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889) (“Cases ought to be tried in a court of justice upon the facts proved; and whether a party be Jew or gentile, white or black, is a matter of indifference.”) . . . .

Eighteen Eighty Nine! That’s string cite gold!

After the jump, see the story behind this old case and learn why you ought to be proud of your Supreme Court of Texas.

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In the first post on this topic, I set out the basics of the Supreme Court's recent opinion in Hertz Corp. v. Friend (pdf).  In the second post, I stuck my nose in and graded Justice Breyer's legal writing, rewriting the opinion and reducing its length by about 25%.  In this post, your humble servant gives a hypothesis on how four words could become so confusing. 

In 1958, Congress defined a corporation’s citizenship as the state of its incorporation as well as the state where it had its “principal place of business.” Although those four words do not appear unduly complicated, a half century later there was no clear test for what those words meant, and the leading treatise on Federal Practice and Procedure had to devote 73 footnote-encrusted pages to elucidating what those words meant. And the differences between the circuits were not so much a “circuit split” as a “circuit mashup.”

So how do we get to such a state, where lower courts are all over the map and such a key statute goes a half century in need of construction? Well, some would blame the limitless ingenuity of defense lawyers trying to get to federal court. 

Being a defense lawyer of limitless ingenuity who is fond of federal court, I reject such an insinuation. I will blame the judges. 

But don’t worry. I have Judge Posner on my side. After the jump you’ll see how judges think and why oversight of judicial decisions promotes administrative clarity.

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The Fifth Circuit let go a blast of new opinions this morning.  As always you can check the RSS feed from the Fifth Circuit in the sidebar of the blog.

Several of the new opinions have potential application to the civil practitioner:

• Sullivan v. Leor Energy LLC (pdf) affirms dismissal under Rule 12(b)(6) and involves application of the statute of frauds to an executive compensation dispute under theories of breach of contract, quantum meruit, unjust enrichment, fraud, equitable and promissory estoppel, and “detrimental reliance."  Judge Owen wrote the opinion.
• Schexnayder v. Hartford Life And Accident Co. (pdf) affirms the summary judgment granted to an ERISA claimant seeking disability benefits.  Judge Prado wrote the opinion.
• In Price v. Johnson (pdf) the Fifth Circuit held it lacked jurisdiction to review an order of remand.  The district court had remanded on the ground that a claim for pre-suit discovery under TRCP 202.1 was not a "civil proceeding" and was not removable.  Judge Reavley wrote the opinion.
• In Acevado v Allsups Convenience Stores Inc. (per curiam) (pdf) the Court held that mass joinder of employees in a claim under the FSLA was improper, but that the district court should not have dismissed the entire action for misjoinder. 
• Catlin Syndicate Ltd. v. Imperial Palace of Mississippi Inc. (pdf) involves the computation of business interruption damages.  Judge Prado wrote the opinion. 
• Pendergest-Holt v. Lloyds  (pdf) involves an expedited appeal from a preliminary injunction requiring the insurer to defray defense costs.  Judge Higginbotham wrote the opinion and affirmed the injunction as modified.

And if all that is not enough appellate goodness for you, then check out Anna Christensen's summary on SCOTUSblog about updates to the SCOTUSwiki concerning the Supreme Court's most recent opinions and the causes granted for certiorari review last week. 

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In a prior post, I suggested that if the practice of law were a high school, then appellate lawyers are the chess club.  This post draws another, equally compelling parallel:

If the practice of law is the world of sport, then trial lawyers ought to be soccer players. Instead, many of them act like NFL football players, and they are doing themselves no favors. 

After the jump, see why trial lawyers who want to succeed on appeal need to be more like soccer players by "preserving harm"* in addition to preserving error.

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We at the Appellate Record are not omniscient.  It only seems that way.  Last week's prediction (although no great leap of logic) was correct.  Two full days of conference at the Supreme Court of Texas did result in some actions on the A-Agenda. 

• The Court issued opinions in eight causes.
• The Court granted five petitions for review and set one petition for writ of mandamus for argument.
• The arguments in the new causes are calendared to take place April 14 and 15. 

Alas, "the practice" interferes with my blog habit today.  Nevertheless, hearty hat tip to Don Cruse at the Supreme Court of Texas Blog for the down and dirty summary of the day's cases and links to the briefing in the new causes.  

Continue watch this space as well for further analysis in the days to come of the new opinions and the issues to be reviewed in the new causes.

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Imagine the reception you would get at oral argument if you answered a question from the court by stating, “Well, your honor, two hundred and twenty years ago, in 1789, the Congress passed the First Judiciary Act, a completely different statute that has since been repealed, but that’s where I’d like to begin in answering the Court’s question.” 

If there is such a thing as the judicial “Nuclear Option,” one might expect it to be used. Judges still young enough to vault over the bench might consider it.  Others not quite so spry would press the panic button and call the marshals. But if you were in the Supreme Court of the United States, you’d be well within your rights to complain, “Hey, wait a minute. You started it!” 

After the jump, find out if it really is the Court’s fault, and in a fit of WASPish chutzpah, I will edit the court’s recent opinion in Hertz Corp. v. Friend (pdf) in an effort to improve upon it.

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Hat tip to Adam Schlossman over at the SCOTUSblog, to which I am daily drawn like moth to flame, for his concise post summarizing revisions to the Supreme Court Rules.  You can also read the Court's own memorandum (pdf) concerning the new rule changes.

Here, in the sidebar of the Appellate Record, you can also find:

• Links to the current Supreme Court Rules;
• Links to other federal resources including rules, court websites, statutes and regulations;
• Links to other Texas resources including state court rules, websites, statutes and regulations; and
• Online legal research tools

More fun than a lawyer ought to be allowed to have.

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On February 23, 2010, law professors and Fed Court wonks the world over were observed in giddy and somewhat unseemly displays of enthusiasm for the Supreme Court’s opinion in Hertz Corporation v. Friend (pdf). Allow me to join the fray, because it is not often that federal practitioners get a new case necessitating republication of an entire volume of Federal Practice and Procedure.

In Hertz, the Court held that you can chuck volume 13F of Wright and Miller (really, go ahead) because a corporation is deemed to be a citizen of the state where it is incorporated as well as state where the boss’s office or the “nerve center” is located.

After the jump, analysis, the court’s holding, and a challenge. 

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The Supreme Court released an opinion of interest to civil practitioners today, in particular attorneys who provide bankruptcy counseling.

In Milavetz, Gallop & Milavetz  v. United States, the Court held that such bankruptcy professionals are “debt relief agenc[ies]” under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) and must comply with the act's disclosure requirements as well as its prohibitions on counseling a person to "load up" with debt in advance of filing for bankruptcy protection.  

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Two published, civil opinions from the Fifth Circuit just out. 

One, Howard v. St. Germain (pdf), affirms sanctions for frivolous removal and imposes further sanctions for a frivolous appeal, a rare event in the Fifth Circuit and therefore worth a read for that reason alone. It probably did not help matters that adverse authority from the Supreme Court dated from 1866.

The second, Bustos v. Martini Club, Inc. (pdf), is a pro se action involving both the Texas Tort Claims Act and Section 1983 claims.  Notably, the case involves the amended Section 101.106 of the Tort Claims Act which requires dismissal of individual defendants under certain circumstances.  There are several cases pending at the Supreme Court of Texas involving pre and post amendment applications of this same section. 

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Today's Texas Supreme Court Orders involved no opinions and no grants.  Two days of conference are set for the calendar next week, so perhaps one can expect some A-agenda type actions by the court in the near future.

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Hat tip to Mary Alice Robbins over at the Texas Lawyer Blog, as she reminded me in her post, Prepare now for looming e-filing switch at 5th Circuit, that the Fifth Circuit deadline for adoption of e-filing is almost upon us.  Join me (and all the other late adopters) in checking out the information on the Fifth Circuit's website for what must be done. 

Among other things:

NOTICE: The Fifth Circuit U.S. Court of Appeals . . . will move to MANDATORY electronic case fiing on March 15, 2010.

Electronic filers must complete at least two interactive electronic learning modules (see below) and provide certification that they have done so by using the email button at the end of the modules either before or after they register for an electronic filing account

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Hat tip to the ABA Journal for a very interesting profile on Chief Justice Rehnquist's life away from the court, especially in his later years.  A very interesting read that gave me a new sense of the dedication and solitude of those who serve the public from behind the bench. 

Give it a read. 

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We appellate lawyers are a strange breed. If the law world is a high school, we appellate lawyers are not the jocks, the stoners, the student counsel, or even the band geeks.

• We’re the chess club.
• We're the ones who actually read the box top before playing the board game.
• We know that you don’t get money for landing on free parking in Monopoly.
• We notice inconsistent formatting in grocery lists--lists that sometimes contain footnotes.

But really, what is an “appellate lawyer” and why would any trial lawyer in a letter jacket want or need a member of the chess club?

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