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

As 2011 comes to a close, everyone else is doing their year in review editions.

Not to be left out, we at the Appellate Record thought we'd do a comprehensive summary of the significant cases from the Supreme Court of Texas for the year 2011.

Well, not so much. I just got asked the other day for my thoughts on significant cases and developments and the four areas I thought of are listed below after the jump.

In no particular order, they include the statute of limitations, fraud, expert testimony, and Kelo as applied or not applied to pipelines.

Enjoy.

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When counting your blessings, do not neglect to mention Judge Per Curiam at the Supreme Court of Texas. On Friday, Judge Per Curiam threw out a life line to rescue an appeal.

The lower courts had held that a pre-judgment motion for JNOV did not extend the appellate time table. Judge Per Curiam, kind and soft-hearted chap that he/she is, held that it was close enough.

The prejudgment NOV motion did extend the appellate time table, making the notice of appeal timely. To prove it, Judge Per Curiam took a jaunt through the rules governing appellate time tables in a manner befitting someone sitting for the board certification exam (*ahem*).

In this case, a number of overlapping procedural rules apply. Under Rule 26.1, the normal filing deadline for a notice of appeal is thirty days. That deadline is extended to ninety days “if any party timely files: (1) a motion for new trial; [or] (2) a motion to modify the judgment.” TEX. R. APP. P. 26.1(a)(1)–(2). Texas Rule of Civil Procedure 329b states that a motion for new trial is timely if filed “prior to or within thirty days after the judgment . . . complained of is signed.” TEX. R.CIV. P. 329b(a) (emphasis added). This “prior to” language is supplemented and clarified by civil rule 306c, which provides that “[n]o motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” TEX. R. CIV. P. 306c. The Rules of Appellate Procedure echo this concept in Rule 27.2, under which “[t]he appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” TEX. R.APP. P. 27.2. Finally, civil rule 329b(g) states that a “motion to modify . . . shall be filed and determined . . . and shall extend . . . the time for perfecting an appeal in the same manner as a motion for new trial.” TEX. R. CIV. P. 329b(g). Thus, the premature filing rules in civil rule 306c and appellate rule 27.2 apply equally to motions for new trial or to modify the judgment. Under these overlapping procedural rules, the filing of a motion for new trial or to modify the judgment, before the judgment is signed or within thirty days after, extends the deadline for filing a notice of appeal to ninety days.

Just about the only unpardonable sin in appellate practice is failing to get the notice of appeal filed on time. So much so that one of my unalterable life goals is to complete my appellate career without having to "make" any law on appellate jurisdiction.

Way too scary.

But if you do have to make jurisdictional law, it is probably Judge Per Curiam -- not the intermediate courts -- who will grant you mercy. 

Judge Per Curiam, full of grace.

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There's no denying it. We're into the thick of another term at the SCOTX and next week is argument week again. Here's what the high nine have on their plate:

November 8, 2011

• Texas West Oaks Hospital, LP and Texas Hospital Holdings, LLC v. Frederick Williams, No. 10-0603--The expert report hits just keep on coming. If a health care worker is injured by a patient, is THAT a health care liability claim when he sues the hospital?
• In re the Commitment of Michael Bohannan, No. 10-0605--In a second expert case of the day, the Civil Commitment of Sexually Violent Predators Act requires "experts" to be used in making the determination to commit someone. Did the trial court err in finding that this witness was not qualified? 
• Texas Electric Utility Construction, Ltd. v. Infrasource Underground Construction Services, LLC, No. 10-0628--Can you recover attorneys fees as damages when, for example, defense costs are caused by the tort of another?

November 9, 2011

• Kerry Heckman, et al. v. Williamson County, et al., No. 10-0671--Because class certification never goes out of style, how do the named plaintiff's standing and potential mootness impact the ability to seek certification of a class?
• In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687--Can an employee avoid a signed jury waiver by claiming that he only signed the mutual waiver because he thought he would lose his job? (Parenthetically, if so, can there ever be a bench trial in an employment case?)
• Jack Edward Milner v. Vicki Ann Milner, No. 10-0776--In a relatively rare family law case, did the trial court correctly enforce a judgment based upon a Mediated Settlement Agreement over the wife's motion for new trial?

November 10, 2011

• Venkateswarlu Thota and North Texas Cardiology Center v. Margaret Young, No. 09‑0079--whether the jury was properly charged on contributory negligence in a med-mal case involving alleged post-operative complications, and whether the charge was reversible error.
• In re XL Specialty Insurance Co. and Cambridge Integrated Services Group, Inc., No. 10-0960--A potentially significant case for attorney client privilege: does the attorney client privilege extend to communications between counsel for the insurer and the insured made for purposes of rendering legal services to the insurer?
• Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970--And from the department of statutory and regulatory minutiae department, was that a "transmission line" or a just an electrical line that zapped the crap out of me? Meaning, did negligence per se apply when a plaintiff got zapped by an electrical line 20 feet six inches above the road, or was that just a power line, which did not have to be 18 inches higher like "transmission lines" have to be?

And don't forget the popcorn, because you can watch the arguments online. I'm especially looking forward to the charge error case. Dinner and a movie anyone?

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So, the first week in October, and it's argument week again, Campers.

The court has nine cases over three days and here are some of the issues to be covered:

October 4:

• SafeShred, Inc. v. Louis Martinez, III, No. 10-0426--Exemplary damages in the context of a Sabine Pilot wrongful discharge claim, including a due process challenge to the ratio of exemplary to actual damages
• Shell Oil Company, et al. v. Ralph Ross, No. 10-0429-- Limitations and tolling for an alleged breach of a mineral lease.
• Weeks Marine, Inc. v. Maximino Garza, No. 10-0435 -- Jones Act Damages

October 5:

• Natural Gas Pipeline Co. v. William Justiss, et al., No. 10-0451--Limitations and sufficiency of evidence in a nuisance claim.
• Hearts Bluff Game Ranch, Inc. v. The State of Texas and the Texas Water Development Board, No. 10-0491--Alleged takings of wetlands mitigation bank for reservoir development.
•  Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513--whether an alleged assault is a health care liability claim.

October 6:

• Port Elevator-Brownsville, LLC v. Rogelio Casados and Rafaela Casados, No. 10-0523 -- whether the worker's comp bar applies to a temporary worker.
•  In re United Scaffolding, Inc., No. 10-0526 -- can the court mandamus an order granting a new trial on general factual sufficiency and "interest of justice" grounds, or is that specific enough?
• Rusk State Hospital v. Dennis Black and Pam Black, No. 10-0548--in an interlocutory appeal over the expert report in a med mal case, can the state raise subject matter jurisdiction, meaning the failure to invoke an an exception under the Texas Tort Claims Act, for the first time on appeal? 

For the truly geeky (not that there's anything wrong with that), you can watch the arguments streamed live on the interwebs. And they're archived on itunes, right there with the Beatles and This American Life. 

I'm particularly looking forward to the exemplary damages issue on Tuesday, the new trial mandamus on Thursday, as well as watching Houston colleagues Marie Yeates and Brett Busby argue on Tuesday and Wednesday respectively.

Cuz that's how I roll.

It will definitely be must see TV.

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I'm out of town enjoying the State Bar Appellate Seminar, but I just had to drop a quick line.

We here at the Appellate Record have had our fun poking the SCOTX for cases that dated back to antediluvian times when bankers were popular and Lehman Brothers actually existed. 

It seems only fair that we tip our blogorial chapeau when the court puts its boots on and gets the stables cleaned out.

From the looks of it, all nine hands have put noses to grindstones and hands to plows. Since the 2010 term, the court has essentially eliminated its backlog, carrying only four cases forward from last term that had been argued and are awaiting decisions.

And they did it without changing their grant rate (13%) or increasing their shadow docket of cases awaiting a grant or denial of the petition for review.

And during a year when the Legislature was in town to boot!

They just put their boots on one at a time, did the chores, and got it done.

They made hay while the sun shined.

They didn't waste time burnin' daylight, Pilgrim.

They got right back up there on the horse.

You get the idea.

As Kurt Kuhn pointed out during a great presentation at the seminar, this is the lowest number in the history of the court--a court that probably does more with fewer resources than at any time in history.

They're so caught up, they could adopt the practice of the US Supreme Court and start clearing their docket every term.

If they wanted to.

Or not.

I'll stop now, lest they get too big for their britches. 36 arguments are already set into January. I hope they ain't bit off more'n they can chew.

In any event, "Chapeau" to the high nine.

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My recent homily in the Texas Lawyer mentioned how and why the Texas Supreme Court tends to grant statutory cases. This week's new opinions surely reflect that statutory bias. They are wall-to-wall statutory cases.

• Travis Central Appraisal District v. Norman involves whether the Legislature's amendment to the Labor Code undid the Supreme Court's prior construction of the act in City of LaPorte v. Barfield. Answer: yes. The Court had previously held that the Labor Code waived immunity of political subdivisions as against retaliatory discharge/workers comp claims.  After the amendment, the Appraisal District now had immunity. Justice Medina wrote the opinion.
•  Loftin v. Lee involved the application of the Texas Equine Activity Limitation of Liability Act (yes, there is one), which limits liability for the inherent risks of equine activity--e.g., horse back riding. Justice Hecht, writing for the Court, broadly applied the act to risks that, in their general character, are associated with activities involving equine animals, and also held that the failure to fully assess a rider's skill is no basis for liability if that failure did not cause the injury.
• Roccaforte v. Jefferson County involved the question of whether personal service of notice of a claim on the county judge and county or district attorney was good enough, even though Section 89.0041 of the Local Government Code required registered or certified mail. Chief Justice Jefferson, writing for the majority, said it was. Justice Willett would have held that it was not, but concurred in the result, finding waiver because the County had engaged in litigation for two years and waited for limitations to expire before complaining.
• On denial of rehearing in Turtle Health Care v. Linan, the Judge Per Curiam construed the Texas Medical Liability Act to the effect that claims complaining about the failure of a ventilator without properly charged batteries could not be brought outside the Act and its requirements for expert reports.

But just to keep Mr. Smarty Pants Blogger in his place, the Court granted a non-statutory petition for review, Texas Electric Utility Construction v. Infrasource Underground Construction Services, positing the question of whether attorneys fees can be recovered as damages for conversion when the unauthorized use of the converted property results in an injury and a lawsuit that the owner winds up defending.

Next week, we'll have another very special guest expert on the blog, this time on the issue of how to write for screen readers.

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Just a heads up, today, that if you take a look at "This Week in Texas Lawyer," you will see a familiar blogger, complete with bow tie.

The Texas Lawyer published the first in a series of articles I will be doing on nuts and bolts in appellate practice for Texas practitioners.  The first, "Pick Me!" is about how to get the attention of the Supreme Court of Texas when you've been done wrong by the Court of Appeals.

There may be some things you had not thought of, but the summary of the practice tips comes down to emphasizing:

• which court of appeals the high court should review;

• how much is at stake for these parties or others;

• the potential for the case to impact statewide matters, such as those governed by the same contractual language or the same statute; and

• the ease and effectiveness of the court's ability to grant complete relief by rendering judgment.

It's a fun read (patting myself on the back) so why not read the whole article.

And sure, it's important to be able to look at your court of appeals opinion and tell whether or not you've got a Supreme Court case on your hands. But it may be even more important to be able to see Supreme Court issues right from the start in order to pursue and preserve them for argument five years from now in a court that may change between now and then.

As I've said before, be sure and call your friendly neighborhood appellate law nerd early and often. The case you save may be your own.

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The spirit of protest is abroad in the land!

Tyranny quakes in the face of the Jasmine Revolution, the Facebook Revolution, and the Scrabble Revolution!

What? Am I the only one who's familiar with the Scrabble Revolution? Am I a revolution of one?

Am I the only word nerd prepared to cast my Scrabble tiles into Boston Harbor in protest of the tax on letters?

OK, I'll concede that my Scrabble Revolution pales in significance to the real revolutions around us. But the letter tax still makes my head explode. And this is my blog, so in this little corner of the universe, it's all about me.

After the break, find out why I am convinced that there must be a tax on letters to make the courts write the way that they do.

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Great institutions only become great if their people build them that way.

Texas lost just such a builder on February 11 with the death of Justice Joe Greenhill.

After the jump, we feature a personal remembrance of Judge Greenhill by my colleague, Judge Scott Brister, who served as Judge Greenhill's law clerk before later serving on the Supreme Court of Texas himself.

Pictured: Judge Greenhill (left) and Judge Scott Brister (right) on the occasion of Judge Greenhill's last visit to the Court in 2007.

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On Tuesday this week, the Supreme Court of Texas issued a special set of orders.

Orders usually come out on Friday, but the Court took the rare Tuesday opportunity to grant three petitions for review and set them for argument barely 21 days after the order.

Yikes.  I usually like a little more advance notice to clear my schedule, but I guess I could do it, Fortunately, I don’t have to, but my partner here at Andrews Kurth does. 

The SCOTX granted review in CMH Homes, Inc. v. Adam Perez, to be argued by Scott Brister, recently of the Supreme Court of Texas but now of good ol’ Andrews Kurth LLP. 

So he gets to experience the pointy end of a Supreme Court argument. Remember, Judge:

• Questions from the bench are your friend.
• Stop talking when the folks in the black robes start talking; and
• Answer the questions.

I jest.  He obviously has argument experience elsewhere, and he has game.

At issue in Perez is whether there is a remedy in the appellate courts where the parties are at a deadlock and cannot choose the arbitrator in the method set out by their arbitration agreement.

But if there’s not an appellate remedy, Brister can argue that the court ought to treat the appeal as a petition for writ of mandamus as suggested in a concurring opinion in In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006)--written by . . .  Judge Brister.

So he’s got that going for him.

Which is good.

The best I could ever do is cite to my own law review article. How lame is that? 

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You don't tug on Superman's cape
You don't spit into the wind
You don't pull the mask off the old Lone Ranger
And you don't mess around with Jim

(Jim Croce)

Some of you readers will recall that we have had occasion to compare Texas' Chief Justice Jefferson to Chuck Norris.  Just like one ought not tug on Superman's cape, a wise man would not tweak Chuck Norris' beard. 

But no one has ever accused the Appellate Record of being wise.  So we decided to take one of Chief Justice Jefferson's recent opinions and put it through an extreme typographical makeover.  After the jump, you'll find out why.

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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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