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

Several new opinions today from the Supreme Court of Texas.  The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing.  (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

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And so we reach the dog days of summer when things start getting back to "normal" for grownups while kiddos head back to school, there to write the obligatory essay: what I did on my summer vacation.

Well, the Supreme Court of Texas is back to it again this week, having held its first full conference since the summer break.  The result was 2 new opinions hot and fresh from the oven or perhaps cooked well done on a Texas sidewalk under the August sun.   The court also granted two petitions for review and set one mandamus for argument.

After the jump summaries and links to the new opinions. 

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Back on July 2, the SCOTX released its final opinions before the Summer doldrums.  This made me wonder what might be in the offing when the Court returns in August. 

Fortunately, there is an App for that.  And Don Cruse over at the Supreme Court of Texas Blog supplies it.

If you click on the Docket DB link you can follow another link to the pending docket categorizing cases by where they stand in the process.  From there, you can choose the link showing the cases (by age) that have been argued and are awaiting decision. 

There you see the tale of the tape, the oldest case is Solar Applications Engineering v. T. A. Operating, which was filed in April 2006.

You remember April 2006. Tom Delay stepped down from Congress. The former governor of Illinois was convicted of corruption.

No, not the one with the hair, the other one.

Then a year and a half later, the case was argued, in October 2007.

You remember October 2007.  Al Gore won a share of the Nobel Peace Prize and Iran and North Korea said they would dismantle their nuclear programs.

No, not that time.  The other time.

But, in the words of Coach John Wooden (who was alive in October 2007), "Goodness gracious, sakes alive," argument was over two and a half years ago.  The court has lost two of the nine members who were around for the argument.

What could account for this?

My curiosity got the better of me, and I checked out the petition for review.  Certainly it must be horrifically complex with many thorny issues.

Not exactly.  The issue presented is:

Is a general contractor who has substantially performed a construction contract required to provide lien releases from it and its subcontractors as a condition to sue an owner who has refused to pay for work done?

Well, I'm sure the Respondent's lawyer has something to say about it too, but that doesn't seem so hard.

Then it must be substandard lawyering that is mucking up the issues, right?

Not exactly.  The Petitioner is represented by Doug Alexander and the Respondent by Sharon Callaway.  They both "got game."

So there can be but one explanation that can account for the complete disappearance of matter from the known universe. 

There is a worm hole in the Supreme Court's suite of offices, and Cause No. 06-0243 has fallen through the void in the space/time continuum and entered a parallel universe in which parties' time and money are no object. 

If not, if in fact the cause is still housed in our dimension, perhaps contractors or lien holders will need to start holding candlelight vigils with hunger strikes when the next SCOTX opinions start appearing in mid August.

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Regular readers will remember the recent post where I kvetched about the tendency of SCOTUS judges to write "page turners"--and not in a good way.  Those are opinions in which you can't tell what is going on for lack of a good introductory paragraph to help you organize the information.  Instead you must wade through recitations of legal history, factual history, procedural history, and sometimes history history, all while wondering:

Is this going to be on the test?

If that post was a wag of my blogging finger, consider this a tip of my bloggorial chapeau.  For in addition to being the Chuck Norris of the legal world, the Chief Justice of the Supreme Court of Texas shows his federal brethren how it is supposed to be done.

Consider the introductory paragraph from Grant Thornton v. Prospect High Income Fund.  It gives you enough information to fully understand what the issue is, why it is important, who wins and why:

Certified accountants audit companies for many purposes, not least of which is to provide corporate directors with an objective assessment of their companies’ performance. Audits are also prepared to give information to a specific investor who the auditor knows will rely on its contents. We must decide whether the law imposes an obligation on the auditor to provide an accurate accounting not to the corporation or known investor, but to anyone who reads and relies on it. We conclude that it does not. Likewise, we hold that the particular investors involved in this case could not have justifiably relied on the audit reports as to purchases made after they knew the corporation was at risk of financial ruin, and they may not substitute their escrow agent’s reliance for their own without also being bound by its knowledge. Finally, we reject the investors’ “holder” claims—claims not that they bought or sold securities based on the auditor’s reports, but that they held them when they otherwise would not have—in the absence of a direct communication with the auditors. For these reasons, we reverse in part the court of appeals’ judgment and render judgment that the investors take nothing.

All of this comes in the first paragraph. And because it does, any other page in the opinion makes sense.  The opinion hangs together whether it is read straight through (which, let's face it, hardly ever happens) or in single issue snatches while writing your own brief.  And because you know how the story ends, you never have to guess about which facts or procedural events are important. 

It's not much of a way to write a mystery or a thriller, but it's the perfect way to write your brief if you want it to be read and understood. 

Or you could go for mystery.

So here's to you, Mr. Good Summary Introductory Paragraph Guy.  We doff our collective hat.

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Every once in a while you can learn something really useful from good ol' Judge Per Curiam.  The Supreme Court's recent decision in Wal Mart Stores v. Merrell is just such a case. 

The decedents died from smoke inhalation when their recliner burned.  So obviously, it was Wal Mart's fault  because the damaged floor lamp Wal Mart sold them was the culprit.  Right?  After all, according to the expert "the lamp’s halogen bulb exploded, sending burning glass shards onto the recliner, which smoldered for several hours."

Or maybe the decedents set the recliner alight themselves while smoking the drugs that were found in their system--either with candles or perhaps the "blunts" and  "smoking paraphernalia throughout the house, including ash trays, a bong, and marijuana cigarette butts." 

(Incidentally, did anyone other than me find it amusing that the Supreme Court of Texas found it necessary to drop a footnote to explain exactly what a "blunt" is?  I never saw anything stronger than an aspirin at my High School, but even I found the definition unnecessary and humorous.)

After the jump, a little homily on what this case really teaches us.

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Two opinions from The Hon. Justice Per Curiam today at the SCOTX:

• Hidalgo v. Hidalgo applies a procedural mercy rule, to wit, when the SCOTX takes away your lead pipe cinch procedural argument while a case is pending, the CA ought to let you brief your substantive attacks on a judgment rather than finding them waived.
• Texas Health Insurance Risk Pool v. Sigmundik holds that a trial court cannot cut an insurer with a contractual right of subrogation out of a tort settlement by using a bench trial to allocate all the funds to other parties to the claim--here the surviving wife and child.  The essence:

It was improper to cut the Risk Pool out of a settlement to which it, through the estate, has a valid claim, just as it would be an error to cut out any other estate creditor or recipient in this situation. As in all cases tried to the bench, the trial court was authorized to decide disputed issues of fact and law, see TEX. R. CIV. P. 262, however, a trial court abuses its discretion by failing to follow guiding rules and principles.
* * *
The Risk Pool provided extensive medical records and testimony to support both the expenses it requested and the damages suffered by Sigmundik; that evidence was uncontroverted. Even Sigmundik’s wife testified that his injuries—for which the Risk Pool could seek recovery—amounted to “[e]xceedingly more than” one million dollars. In short, there was evidence that the damages to Sigmundik exceeded the amount of the $800,000 settlement. There can be no doubt that all of the parties here—Sigmundik’s wife and children, but also Sigmundik himself (and thus his estate)—suffered substantial injuries. Trial-court discretion is not boundless and cannot insulate a decision to allocate none of the $800,000 settlement to Sigmundik when the court knew the facts surrounding his severe burns and trauma, his suffering and numerous surgeries, and his death 52 days later.

The Court also granted four petitions for review and indicated argument will be had on a pending petition for writ of mandamus, about which (hopefully) more later.

No conference is set next week so, alas, I guess there will not be a flood of new opinions for the poor sap who has to give the Supreme Court Update next week at the UTCLE Conference on State and Federal Appeals. 

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Two new opinions from the Supreme Court of Texas today. 

• Alas, the tow truck driver does not get to keep the large amount of cash found hidden around a suspicious truck's axle, even if his lawyer goes back to his 1L Property notes and pulls out doctrines like "bailment" and "treasure trove" otherwise known as "finders keepers." See State v. $281,420.00 In United States Currency.  But it is kind of cool to see "treasure trove" and "finders keepers" in print.  Justice O'Neill wrote the opinion.
• And yes, a dismissal "with prejudice" really is "with prejudice" even when it ought not to have been so prejudicial.  The DWOP dismissal after a non-suit precludes a later action, even if the trial court should have left well enough alone rather than erroneously DWOP-ing the case.  The judgment, even if erroneous, is not void and protestations that the dog ate it or that one never received the order will not suffice if the judgment has not been set aside.  See The Travelers Ins. Co. v. Joachim.  Justice Green wrote the opinion.  

No more petitions granted in today's orders, and no conference on the calendar next week with much work to be done before the summer dolldrums.  SCOTX needs to find that finishing kick.

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Several new opinions today from the Supreme Court of Texas.  Here's the skinny:

• Yes, you really do have to arbitrate and just because you say it is unconscionable don't make it so.
• No, a police report preliminarily assigning fault for an accident is not "actual notice," which is required for jurisdiction to obtain under the Texas Tort Claims Act.
• No, Texas is not the forum for the world, especially for Australians killed on offshore rigs located near Singapore.
• No, naturally accumulating ice in a Texas parking lot is not an "unreasonable risk of harm" from which a landowner must protect a business invitee.
• Yes, Baylor College of Medicine and its physicians are governmental entities and employees (respectively) when providing charity care at Ben Taub because the Legislature said so. This involves two cases, one with argument and a concurrence, and one PC.  (Full disclosure and shameless plug: The Andrews Kurth Appellate Practice Group represented the defendants in those cases).
• And finally yes, you may have to forfeit your ill gotten gains, in addition to other damages that result from tortious conduct, if you breach your fiduciary duty by fraudulently inducing your partner to a buy out.

Your SCOTX at work!

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Several weeks ago, a post here on TXI Transportation v. Hughes (pdf) made mention of the fact that a majority of our current Supreme Court of Texas would not have had opportunity to serve at the time of that court's 1889 opinion, Moss v. Sanger, condemning appeals to racial animus in arguments to the jury.

Something just as cool happened this week.  John Council of the Texas Lawyer Blog noted:

. . . Texas Supreme Court Chief Justice Wallace Jefferson was traveling yesterday and could not be at oral arguments. So, by tradition, the most senior justice on the court took his spot in presiding over the first case on the docket. Since Justice Nathan Hecht, the high court’s longest- serving justice, recused himself from hearing TGS- NOPEC Geophysical Co. v. Susan Combs, et al., the job of presiding over the court fell to the next most senior justice, Harriet O’Neill. O’Neill says she didn’t realize it at the time, but it was a historic moment. A woman has not presided over the Texas Supreme Court since 1925, when Gov. Pat Neff appointed an all-woman court. . . .

But the really really cool part is that it happened as a matter of course and nobody noticed until after the fact.  Justice Harriet O'Neill just happened to be the senior justice on duty, and she just did her job, as she has been doing since 1999.  John Council quotes Justice O'Neill:

Isn’t that amazing? I didn’t even think about it,” . . . .

Now we're getting somewhere--when the "right thing" that used to be so hard to do or so exceptional or so controversial becomes so accepted that it happens without a thought.  Nice.

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Sometimes I sits and thinks.

And sometimes I just sits. 

Since the Supreme Court of Texas released Del Lago Partners v. Smith, I've been sitting and thinking and thinking.  And when I do it, I start to sound like a toddler.  All I can ask is "why?"

Not that the opinion is wrong, mind you. I take it for granted that it is correctly decided.  As Chief Justice Phillips used to say, "We are not final because we are infallible; we are infallible because we are final."

I just wonder why the Supreme Court of Texas is getting involved in a bar fight with drunken fraternity boys if it is not going to lay down a rule of law that can be applied to future cases.  This is sort of the opposite of the "Chuck Norris Theory" of Supreme Court Jurisdiction. 

After the jump, some rambling prose on why cases like Del Lago Partners aren't the highest and best use of judicial resources for a court with discretionary jurisdiction.

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If you are an appellate lawyer in a law firm, then you're probably treated like the "Shell Answer Man."

(Gentle Reader, if you were not born until the late '70s, this is a pop culture reference to a Shell Oil Company advertising campaign from the time before "Reality Television."  Bear with me.)

You know what I mean.  People avoid that big room with the shelves and shelves of books with a quick trip to the office of the appellate lawyer.  The questions can be practical"

• Can I remove a claim involving _______?
• Do you know of a case on ______?
• How do I preserve error when ____?

They can also be terrifying.

How many times, dear colleagues, has the clever lawyer (often with dollar signs in the eyes) come to your office and asked:

Can I [Fill In The Blank With Random, Incredibly High Risk Gambit With infinitesimally Low Probability Of Potential Reward That Will Likely End In Disaster]??

I often answer this question with a question:

Why would you want to?

The corollary to this question, often by the same lawyer is:

Do I have to [Fill In The Blank With Low Risk, Widely-Accepted Manner Of Doing Things That Would Avoid Vagaries In The Law That Said Lawyer Wants To Exploit For Potential Gain]?

This question is also often answered with a question:

Why wouldn't you do it that way?

After the jump, a primer on the antidote to such temptations, what my mentor, Lori Gallagher, called the "sleep at night" school of practicing law.

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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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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 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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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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