Supersedeas Bonds and Julie Andrews?

Yours truly–Mike Northrup–will be speaking to the Dallas Bar Association Appellate Law Section at noon on September 17, 2015, at the Belo Mansion.  The title of the presentation will be “Just a Spoonful of Supersedeas Makes the Judgment go Down.”  Drop in and hear the answer to what Julie Andrews and supersedeas bonds have in common, or just come by for the camaraderie and a bite to eat.

Exemplary Damages Caps Need Not Be Pleaded

The Texas Supreme Court recently resolved a split of authority among Texas courts of appeals regarding whether the exemplary damages cap in Section 41.008 of the Texas Civil Practice and Remedies Code needs to be pleaded as an affirmative defense or is simply applied as a matter of law.  Some courts (2nd, 13th, 14th) had held that the caps are in the nature of avoidance and must be pleaded under Texas Rule of Civil Procedure 94. Other courts (4th, 7th, 14th) had held that the cap need not be pleaded because the statute applies automatically to awards without the necessity of additional facts.  In an unanimous opinion authored by Justice Eva Guzman, the Court held that the exemplary damage cap need not be pleaded.

The decision turned on construction of the phrase in Rule 94 that requires “any other matter constituting an avoidance or affirmative defense” to be affirmatively pleaded. This is important because failure to comply with Rule 94 results in waiver. The Court first rejected the plaintiff’s argument that a matter in avoidance was broad and includes “new matters of law or fact outside of the plaintiff’s pleadings.” The Court reasoned that “avoidance” as used in Rule 94 was akin to “confession and avoidance.” The Court then distinguished “affirmative defense” from “confession and avoidance”:

[S]tatute of limitations is an affirmative defense, rather than a plea in confession and avoidance, because limitations defeats the plaintiff’s claim without regard to the truth of the plaintiff’s assertions. In contrast, self-defense is a confession-and avoidance plea because the defendant admits the conduct but seeks to avoid the legal effect by justifying an otherwise impermissible act.

The Court noted that in either case, “the hallmark characteristic of both categories of defenses is that the burden of proof is on the defendant to present sufficient evidence to establish the defense and obtain the requisite jury findings.” Applying this rationale, the Court observed that the cap “does not require proof of any additional fact to establish its applicability; moreover, there is no defense to it.” The Court further observed “the defendant bears no burden of establishing the cap’s applicability; it either applies or it does not.” In other words, “the statutory cap applies automatically to claims not expressly excepted.”

The Court was not convinced by the plaintiff’s argument that pleading should be required to put plaintiffs on notice and allow plaintiff to invoke a statutory exception. The Court held that the statute “in and of itself, provides sufficient notice of the types of claims that are excluded from the cap, allowing plaintiffs to structure their cases to avoid the cap when desired and possible.” Accordingly, the Court rendered judgment capping the exemplary damages at $200,000. The Court’s opinion in Zorilla v. Aypco Constr,. II, LLC can be found here.

Premature Notice of Past Due Findings and Conclusions Insufficient

The Dallas Court of Appeals recently held that a notice of past due findings of fact and conclusions of law filed prematurely is ineffective and does not preserve error. Here, the trial court issued a final judgment and the defendant timely requested findings and conclusions and past due findings. The trial court subsequently entered a modified second final judgment from which the defendant appealed. The defendant, however, did not file a new request for findings or past due findings after the second judgment. One of the issues raised on appeal was the trial court’s failure to file findings of fact and conclusions of law as requested. Based on TRCP 306c, the Court held that the defendant’s premature request for findings was effective as to the second judgment. The harder question was whether or not the prematurely-filed notice of past due findings was effective.

After reviewing the purpose of the notice of past due findings, as well as existing case authority, the Court, in an opinion by Justice Evans, held that despite Rule 306c, a prematurely-filed notice of past due findings was not effective, and, thus, did not preserve error for review. Specifically, the Court stated: “If a notice of past due findings were allowed to be prematurely filed, it would defeat the purpose of reminding the trial court that it has been requested to file findings and has not done so by the time prescribed by the rules of procedure.” The Court noted that if a party was free to file the notice of past due findings prematurely, “it would become standard practice to file such notice together with the original request for findings of fact and conclusions of law. . . .” Because the defendant failed to properly file a notice of past due findings as required by Rule 297, the issue was not preserved. Consequently, the Court affirmed the judgment. The Court’s opinion in Nisby v. Dentsply Int’l, Inc. can be found here.

Supersedeas Pendulum Swings Toward Judgment Debtors

The Supreme Court of Texas has clarified the phrase “compensatory damages” as used in the supsersedeas statute (Civil Practice and Remedies Code Section 52.006) and Appellate Rule 24.  In In re Longview Energy Company, the court held that disgorgement damages are not compensatory damages and therefore need not be superseded to stay enforcement of the judgment during an appeal.

The plaintiff in this case recovered a judgment against multiple defendant for $95.5 million dollars, for breach of fiduciary duty.  The damages apparently consisted of disgorgement of past production revenue derived from shale assets.  The defendants appealed and collectively posted a $25 million bond.  Plaintiff contended that the defendants each were required to separately post the lesser of $25 million or 50% of their net worth.  It appears that the supreme court originally took this case to address whether the caps on the amount of supersedeas are to be applied per defendant or per judgment.   Instead, the court analyzed a different question that was raised on appeal–whether disgorgement damages are “compensatory damages.”

The supreme court first questioned whether the damages might be punitive because the trial court had initially signed a judgment that characterized them as such, but subsequently issued a second judgment that awarded the same damages but without the explanation as to how they were derived.  The plaintiff argued that the award was remedial, but the supreme court rejected that argument stating, “We cannot conclude that the award is compensatory when it cannot be explained.”  The court reasoned that disgorgement is an equitable forfeiture of benefits wrongfully obtained.  The court found that disgorgement is compensatory in the same sense that attorney’s fees, interest, and costs might be compensatory, but disgorgement is not damages.  Thus, the court held that the defendants were not required to post security in an amount to cover disgorgement damages.

The court went on to discuss the question of whether the the plaintiff was entitled to discovery relating to defendant Huff Energy’s operations.  The Supreme Court held that Appellate Rule 24 entitled the plaintiff to such discovery without the requirement of showing a threat of dissipation of assets.

The court’s opinion may be found here.

Employee’s assault claim barred by the TCHRA

In a short, straight-forward opinion, the Dallas Court of Appeals recently held that a common-law claim for assault is precluded by the Texas Commission on Human Rights Act. Here, the plaintiff alleged that a supervisor engaged in various sexual related conduct against her at work, including unwanted force and touching. The defendant moved for summary judgment on the basis that the TCHRA barred the claims. The trial court agreed and granted summary judgment. On appeal, the only issue was whether the TCHRA barred plaintiff’s claim for assault. The court of appeals first cited the Texas Supreme Court’s opinion in Waffle House v. Williams for the proposition that the TCHRA "forecloses common-law theories predicated on the same underlying sexual-harassment facts." Next the Court agreed with a federal district court case holding that unwelcome and offensive touching constituted both sexual harassment and assault. The Court concluded "[b]ecause the gravamen of [plaintiff’s] complaint against [defendant] is sexual harassment/sexual assault committed by her supervisor. . .her common law claim is precluded by the Act."  Consequently, the Court affirmed the trial court’s summary judgment for the defendant. The Court’s opinion in B.C. v. Steak N Shake Operations, Inc. can be found here.

Discretion to issue “superdupersedeas” against the State

The Supreme Court of Texas has recognized the discretion of a trial court judge to deny the State of Texas automatic supersedeas in cases involving non-monetary judgments pursuant to Texas Rule of Appellate Procedure 24.2(a)(3).

In In re State Board for Educator Certification, a schoolteacher challenged the State Board for Educator Certification’s revocation of his teaching certificate.  The trial court reversed the State’s revocation of the teaching certificate and issued a permanent injunction prohibiting the State from treating the certificate as having been revoked.  The State appealed, which automatically suspends the judgment under Section 6.001 of the Texas Civil Practice and Remedies Code.  In response, the teacher invoked Texas Rule of Appellate Procedure 24.2(a)(3) and filed security with the trial court as a "counter-supersedeas" (or as Justice Willett calls it, "superdupersedeas").   The trial court agreed with the teacher and declined to allow the judgment to be treated as superseded by virtue of the State’s appeal. 

The State then sought mandamus relief from the Texas Supreme Court.  The issue raised was whether the trial court has discretion to refuse to allow the State to supersede a non-monetary judgment pending appeal.  Relying upon language in its prior opinions that, until now, might have been described as dicta, the court holds that TRAP 24.2(a)(3)–in effect–trumps CPRC Section 6.001 and gives a trial court discretion to deny supersedeas. 

Interestingly, the majority makes the point that if the State’s right to supersedeas were absolute, then it would vest unchecked power in the executive branch and run afoul of the balance of power between the branches of government.  Thus, the court denies the petition for writ of mandamus.  Justice Willett’s opinion may be found here.

There is a separate concurrence authored by Justice Guzman, in which she addresses the merits of the trial court’s injunction order prohibiting the State from revoking the teacher’s certificate while appealing the judgment.  She expressed concern that the record did not show that the trial court had adequately considered potential harm to schoolchildren.  Nonetheless, she concurred in the denial of the petition for writ of mandamus because the State’s petition had limited its argument on appeal to a lack of complete discretion to grant an injunction, as opposed to an abuse of discretion it had.  The concurrence may be found here.


Mandamus Developments at the Dallas Court of Appeals

As most appellate lawyers around Dallas know, the Fifth Court of Appeals has a reputation (well-earned) for disposing of petitions for mandamus in, let’s say, a summary fashion. Specifically, the mandamus denials, with few exceptions, have consisted of three-sentences memorandum opinions, two of which were reserved for the standard introduction ("The facts are well known to the parties") and the standard conclusion ("Accordingly, we deny Relator’s petition for writ of mandamus."). I have been on the "short" end of these opinions a number of times. These "opinions" make it difficult for lawyers to explain to their clients what happened, and virtually impossible to advise clients on whether or not to take the case to the Supreme Court of Texas. But those days seem to be over.

In what I see as one of the most marked improvements by the court of appeals in my time as an appellate lawyer, the Court has begun issuing a number of substantive mandamus denials. (Here, here, and here, for example). The trend even included denials for failing to comply with procedural requirements, such as here. After I noticed the phenomenon earlier this year, I began tracking mandamus denials by the Court on a daily basis, and was surprised to see that a majority of the denials were by opinions with substantive analysis, usually three to four pages, and by different justices. I was reluctant to comment on this development for fear of jinxing it. But the trend has continued to the point where I am comfortable now calling it a practice. I found only one summary denial issued in the entire month of October. And last week there were three substantive denials in one day, here, here, and here. So kudos to the Court for making this improvement in response to the bar at a time when budgets are shrinking and caseloads are increasing. As appellate attorneys here, we are fortunate to practice before the Fifth Court of Appeals. This development is another reason why we should be equally proud to do so.

Dallas weighs in on no-evidence summary judgment procedure

The Dallas Court of Appeals has written a couple of recent significant opinions addressing no-evidence summary judgment practice.

In the first opinion, the en banc court considered a no-evidence motion that listed the elements of the claim at issue and then asserted that there was no evidence of "one or more" elements of the plaintiff’s claim.  A majority of the court held that this motion was legally insufficient and could not support summary judgment as a matter of law.  The majority reasoned that Rule 166a(i) does not authorize general no-evidence motions and this motion did not specify which elements were being challenged.  The majority also held that no objection to the adequacy of the motion was necessary to preserve the challenge for appeal.  Notably, the majority distinguished this motion from one that asserts that there is no evidence of "each and every element."  Three dissenting justices (O’Neill, Lang, and Lang-Meiers) argued that the motion gave "fair notice" and that non-movant should have objected to the motion and gotten a ruling in order to preserve the complaint for appeal.  The majority opinion in Jose Fuentes Co. v. Alfaro may be found here, and the dissent here.  Notably, a petition for review has been filed in this case with the Texas Supreme Court.

In a more recent opinion, in Coleman v. Prospere, a divided panel disagreed as to whether a no-evidence motion was adequate to challenge a specific element in a breach of contract case.   The opinions also disagree regarding the adequacy of briefing and practitioners may want to take note of the liberal reading the majority gives to the Appellant’s brief.  With regard to the motion for summary judgment, the movant filed a no-evidence motion that asserted in relevant part: "There is no evidence of Breach of Contract – [Appellant’s] cause of action for Breach of Contract against [appellee] is not supported by credible evidence.  [Appellee] did not engage in Breach of Contract…"

The majority opinion, authored by Justice Evans and joined by Justice Fillmore, holds that the no-evidence motion fails to challenge or even mention a single element and rules that the no-evidence grounds are legally insufficient to support the summary judgment.  Justice FitzGerald  dissented.  He opined that if the sum total of the motion for summary judgment had asserted only that there was no evidence of the cause of action for breach of contract, then he would agree with the majority.  However, he argues that the first and third sentences specifically identify the breach element.  Accordingly, Justice FitzGerald would have affirmed the summary judgment.  The majority opinion may be found here.  The dissent may be found here.

As a practitioner, the lesson from these opinions is to clearly and distinctly identify the elements of the cause of action you are challenging.  And if you are the non-movant, you might be wise to object to any lack of clarity.

Conflicts in Summary Judgment Practice

I recently presented a continuing education seminar focusing on current issues in state summary judgment practice.  As a result of that presentation, the Dallas Court of Appeals‘ holding in Bastida v. Abel’s Mobile Home Service, Inc., came to my attention.  In that case, the trial court granted a summary judgment in favor of Richard Aznaran.  Bastida sued Aznaran for personal injuries he sustained on Aznaran’s property while delivering a mobile home Aznaran had purchased.

After the trial court granted summary judgment in favor of Aznaran, Bastida appealed and challenged Aznaran’s affidavit evidence on grounds that it failed to show the basis of Aznaran’s personal knowledge as to the matters on which Aznaran testified.  The court of appeals observes that summary judgment objections fall into two categories: (1) objections to form, and (2) objections to substance.  Form objections are preserved only if they are raised and ruled on by the trial court, while substance objections can be raised for the first time on appeal.  Citing the Texas Supreme Court‘s per curiam opinion in Grand Prairie ISD v. Vaughan, 702 S.W.2d 944, 945 (Tex. 1990), the court of appeals holds that an objection to lack of personal knowledge is an objection to form that must be raised and ruled on by the trial court in order to preserve it for appeal.  The citation to Vaughan is accurate, but it is notable that there is a split in the courts of appeals on this question and there are opinions from the Texas Supreme Court that reach the opposite result.  In fact, for example, in City of Wilmer v. Laidlaw Waste Sys., 890 S.W.2d 459 (Tex. App.–Dallas 1994), aff’d, 904 S.W.2d 656 (Tex. 1995), the Dallas Court of Appeals held that the failure to specify how the affiant had personal knowledge was a defect of substance, not form.  This opinion was later affirmed by the Texas Supreme Court.  Practitioners should be aware that this is an unsettled issue, making the safest practice to object.

The court’s opinion in Bastida may be found here.

Plaintiff can’t avoid attorney’s fees by simply dismissing claim

The Dallas Court of Appeals recently held that a plaintiff cannot avoid attorney’s fees by simply dismissing its claim prior to a decision on the merits. In this case, the plaintiff asserted several claims against the defendant, including a claim for violation of the Texas Theft Liability Act (Theft Act). Four days after the defendant filed a traditional motion for summary judgment on the plaintiff’s Theft Act claim, the plaintiff filed an amended pleading that omitted its Theft Act claim, effectively dismissing the claim with prejudice. In its response to the defendant’s motion for summary judgment, the plaintiff argued that the defendant’s request for attorney’s fees was moot because the Theft Act claim had been dismissed. The defendant disagreed and sought to recover its attorney’s fees as the “prevailing party” on plaintiff’s Theft Act claim pursuant to section 134.005 of the Texas Civil Practice & Remedies Code. The trial court agreed with the defendant and awarded the defendant its attorney’s fees as the prevailing party.

The plaintiff appealed and argued that the defendant was not entitled to its attorney’s fees because it was not a “person who prevailed” under the Theft Act. In an opinion by Justice Robert Fillmore, the court of appeals held that a party can be prevailing party if it dismisses its claim in order “to avoid an unfavorable ruling on the merits.” Here, the Court noted that the plaintiff all but acknowledged dismissing the claim to avoid an unfavorable ruling because “by nonsuiting that claim, [the plaintiff] basically cried Uncle.” Accordingly, the court of appeals’ affirmed the trial court’s judgment awarding the defendant attorney’s fees as a prevailing party. The Court’s opinion in BPP Sub I LP v. Di Tucci can be found here.