Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

Little by little, appellate practitioners are getting answers to the many questions emanating from the supersedeas statute and law that came about as part of tort reform in 2003.  The Texas Supreme Court's opinion in In re Nalle Plastics Family Limited Partnership holds that attorney's fees are not compensatory damages that must be superseded. 

The law firm of Porter, Rogers, Dahlman & Gordon, P.C. sued Nalle Plastics for breach of contract to recover unpaid legal fees.  After a jury trial, the law firm recovered $132,661 in damages and the jury awarded $150,000 for attorney's fees in connection with the breach of contract action.   Nalle Plastics superseded the $132,661 in damages, but not the attorney's fees.  The trial court concluded that Nalle Plastics was required to also supersede the attorney fee award.  After the court of appeals held that attorney's fees are compensatory damages that must be superseded, Nalle Plastics sought supreme court review by petition for mandamus. 

After review of the legislative history, the plain meaning of compensatory damages, and the legislative scheme, the supreme court held that attorney's fees are not compensatory damages.  The court also held that attorney's fees are not costs of court that must be superseded. 

There is one caveat in the court's opinion.  The court refused to hold that attorney's fees can never be considered compensatory.  As an example, the court noted that the breach of contract cause of action against Nalle Plastics was to recover unpaid attorney's fees as damages.  The court held that these fees which were the damage element of the breach of contract claim and as such would constitute compensatory damages.

The court's opinion may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Dallas Bar Association Appellate Law Section will have its monthly CLE at the Belo Mansion on Thursday, May 16, 2013, at noon.  This month's speaker is Richard Smith from Lynn, Tillotson, Pinker & Cox, LLP, and Mr. Smith will speak about developments at the Dallas Court of Appeals.  One hour of CLE credit is available.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Class Action Fairness Act (CAFA) gives federal courts jurisdiction of class actions where the matter in controversy exceeds $5 million.  The U.S. Supreme Court considered the question of whether a named class representative can avoid application of CAFA by stipulating that he will not seek damages that exceed $5 million in Standard Fire Ins. Co. v. Knowles.

In an unanimous opinion, the Court holds that the stipulation is ineffective.  In other words, the stipulation will not foreclose application of CAFA.  Why?  The Court reasons that a plaintiff cannot legally bind members of the proposed class before the class is certified.  This opinion resolves a split that had developed between the circuit courts of appeals.

One issue the Court did not resolve was whether the plaintiff's counsel for the named representative could avoid application of CAFA by stipulating that he would limit attorney's fees sought.  The Court did not address this because that particular stipulation had not been offered in the district court.  The Court's opinion may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One should always be careful of falling victim to using and reusing forms because it may come back to bite you.  Many drafters of affidavits start out by having the affiant state something like, "I have personal knowledge of the facts set forth below."  This language by itself may not be sufficient to give anything contained in the affidavit weight, as is demonstrated by the opinion in Vince Poscente International, Inc. v. Compass Bank, issued by the Dallas Court of Appeals.

In that case, Compass Bank obtained a summary judgment on a sworn account under a personal guarantee agreement.  Compass supported its motion for summary judgment with an affidavit of Paula Shaw.  In the affidavit, Shaw stated she had personal knowledge of the facts.  She also stated that she was custodian of records at Compass.  She testified that Compass was the owner and holder of the note in question and that the defendants personally guaranteed the debt and then defaulted on paying the note.

On appeal, the defendants challenged the affidavit as conclusory because Shaw had not shown that she was employed by Compass, what her job title was or explain the basis for her personal knowledge.  In analyzing the complaint, the court of appeals noted that Shaw did not show how she came to have knowledge by showing that she was employed by Compass, what her job position and responsibilities were and how those duties gave her personal knowledge.  Because of those omissions, the court determined that the affidavit was conclusory and amounted to no evidence.  Therefore, the court reversed the summary judgment.  The court's opinion may be found here.

Note:  If Shaw had merely proven up the records as business records, her affidavit might have been sufficient.  But here, she went further to attest to who owned and held the note, to the default on the note, and to acceleration of the note.  Nothing in the affidavit shows how she knew any of those substantive facts, therefore more was needed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the heat of the rush to get a mandamus filed with the court of appeals, it's easy to overlook basic mandamus requirements.  That appears to be what happened in In re Moffitt, a mandamus proceeding filed in the Amarillo Court of Appeals.

Mr. Moffitt sought a mandamus to compel the Hutchinson County District Judge and Court Coordinator to issue a bench warrant and to hold a telephonic conference for final hearings.  The court of appeals first noted that its mandamus jurisdiction was limited to writs necessary to enforce its jurisdiction and writs against specified district or county court judges.  The court of appeals concluded that it lacked jurisdiction to issue mandamus against the court coordinator because the coordinator was not a judge and Mr. Moffitt had not indicated that mandamus was necessary to protect the court's jurisdiction over a pending appeal.

Turning to the remaining target of the mandamus--the district judge--the court of appeals pointed out that Mr. Moffitt had not attached a copy of the document that he was complaining of, which is required by Appellate Rule 52.3(k)(1)(A).  Additionally, on the merits, the court concluded that the failure to finalize a divorce proceeding within a 5- to 6-month period was not unreasonable.  The court therefore denied the mandamas as it pertained to the district court.

The court's opinion may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The El Paso Court of Appeals recently dismissed an appeal because the appellant failed to comply with a trial court's post-judgment orders.  Here, a final judgment was entered against the appellant and the appellant did not pay the judgment or file a supersedeas bond.  The appellee sought post-judgment discovery.  The appellant failed to answer the discovery resulting in two successive trial court orders both compelling discovery and awarding sanctions against the appellant.  After the appellant failed to comply with the second order, the appellee filed a motion to dismiss the appeal.  The court of appeals granted the motion citing TRAP 42.3(b), which authorizes an appellate court to dismiss an appeal for failure to comply with a court order, and dismissed the appeal.  The court's opinion in Byrnes v. Ketterman can be found at this link.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Dallas Bar Association Appellate Law Section will be hosting its monthly luncheon at the Belo Mansion on Thursday, February 21st at noon.  Jerry Bullard from Adams, Lynch & Loftin, P.C. will present  "2013 Legislative Preview," which will give us a look at topics of interest to the appellate practitioner that may be taken up by this year's Texas legislature.  One hour of CLE is available. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Dallas Court of Appeals reaffirmed the requirement that a claim be presented to the opposing party in order to recover attorney's fees under Chapter 38 of the Civil Practice and Remedies Code.  Here, the party seeking fees argued that the offers exchanged at mediation constituted presentment for purposes of CPRC Section 38.002.  The Court rejected the argument holding that the evidence of mediation did not prove that "prior to trial, [the defendant] had the opportunity, by taking specific action, to avoid paying attorney's fees."  The Court further stated that there was no evidence of a specific demand demonstrating the amount owing.  Finally, the Court rejected the argument that the trial court should have reopened the evidence on attorney's fees because the party failed to show it was entitled to fees by failing to prove presentment.  Accordingly, the Court affirmed the trial court's refusal to award attorney's fees.  The Court's opinion in Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc. can be found at this link.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The Dallas Bar Association's Appellate Law Section will have its final meeting of the year on Thursday, December 20, 2012, at noon at  the Belo Mansion.  The speaker will be Dallas Court of Appeals Justice Doug Lang, who will speak on "Civility: Ethics, Professionalism, or Both?"  One hour of CLE credit is available.

• Email This
• Print
• Comments
• Trackbacks
• Share Link