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.

Summer CLE in the Windy City

The DRI is sponsoring an Appellate Advocacy seminar in Chicago on July 18th and 19th. 

Highlights of the seminar include a moot argument, discussions on embedded appellate counsel at trial, in-house perspectives on appellate practice, and building an appellate practice.  Former Supreme Court Chief Justice Wallace Jefferson and current Supreme Court Justice Eva Guzman are among the speakers at the seminar.  In addition, there are a number of respected federal circuit court of appeals justices who will be speaking.

DRI has applied for legal specialization credit in Civil Appellate Law for 13.75 credit hours, including 1 credit hour for ethics.

For more information, see the brochure here.

Retirement News-Justice Jim Moseley

We were saddened to receive news this week that Dallas Court of Appeals Justice Jim Moseley has announced that he will be retiring at the end of August.  Justice Moseley has served on the court of appeals with great distinction for 18 years.  He has been a contributor to various CLEs on important topics such as legal writing and ethics.

While he says he has not determined his plans upon leaving the court, he says he will continue to do legal work, and he will remain involved in politics and speaking and writing in ways that he had not been able to do as a member of the judiciary.

We wish Justice Moseley well in his future endeavors and we will miss his service on the appellate bench.

Jim Moseley

Legal Writing CLE

The Dallas Bar Association's Appellate Law Section and Business Litigation Section are sponsoring a joint continuing education seminar on Tuesday, June 3, 2014, from 12:00pm to 2:00pm at the Belo Mansion.  The session will be led by Professor and best-selling author Paul Hendrickson. Professor Hendrickson presented a similar program last year that was so popular nobody wanted to leave when the time was up.  As a result, he's been given an extra hour to present his program this year. This year's program promises to put more "snap, crackle, and pop" in your legal writing.

New Fifth Circuit Judge Confirmed

On Tuesday, March 20th, 2014, the United States Senate voted unanimously to confirm President Obama's nomination of Greg Costa to the Fifth Circuit Court of Appeals.  Judge Costa previously was appointed as a federal district judge for the Southern District of Texas, Galveston Division, in April of 2012.  Prior to his appointment to the federal bench, Costa served as a federal prosecutor and was involved in the government's prosecution of, and conviction of, Allen Stanford, who was convicted of running a Ponzi scheme.  We welcome Judge Costa to the appellate bench and look forward to his contributions to the law.

Appellate CLE: Supersedeas

The Dallas Bar Association's Appellate Law Section will meet Thursday, May 15, 2014, at noon. This month's speaker is Daniel Huckabay of Commercial Surety Bond Agency.  Mr. Huckabay will be speaking on a topic near and dear to my heart, "Nuts and Bolts of Supersedeas Bonds."  He will cover topics such as state and federal procedure, deadlines, types of bonds, underwriting requirements, types of collateral, and premiums.  The presentation qualifies for one hour of CLE credit.

Dallas court limits discovey of expert's finances

The Dallas Court of Appeals recently issued an opinion limiting the discoverability of an expert's finances. In this personal injury case, the defendant hired an expert employed by a firm that derived ninety percent of its revenues "from the defense side of the docket." Armed with this information, the plaintiff sought financial information regarding the firm's ties to insurance companies in an effort to demonstrate bias. The defendant objected to the plaintiff's request. The trial court, however, modified the scope of information sought and ordered the defendant to disclose its expert's gross revenues from insurance companies over the past five years. Defendant responded by filing a petition for writ of mandamus.

In an opinion by Justice Ada Brown, the court of appeals first held that Rule 195 of the Texas Rules of Civil Procedure, which provides the scope of discovery related to expert witnesses, does not allow the discovery sought. The Court noted that the Texas Supreme Court has held that while discovery regarding payment received for work performed is allowed, "expansive" discovery to establish financial bias is prohibited. Finally, the Court decided that even if the Supreme Court's opinion in Walker v. Packer survived the enactment of Rule 195 with respect to expert discovery, the discovery was still improper barring other extrinsic evidence placing the expert's credibility in doubt. Because no such evidence was present here, the Court held that the trial court abused its discretion by ordering the discovery. Accordingly, the Court conditionally granted the writ of mandamus and directed the trial court to vacate its discovery order. The Court's opinion in In re Central North Construction, LLC can be found at this link.

New Standard for Mandamus Relief?

The Dallas Court of Appeals has issued an Opinion in a mandamus proceeding that establishes a new standard for mandamus relief.  In In re Pendragon Transportation, LLC, Pendragon complained of a trial court order that appointed a special master to attend depositions in the case and to make rulings on any objections, assertions of privilege, and instructions not to answer, in real-time.  Pendragon also complained that the order required Pendragon to pay the special master's fees up front.   In support of its order, the trial court found that the exceptional circumstances of the case justified taking the action in question.  Pendragon filed a written objection to the order over two months after it was rendered, and four months later Pendragon sought mandamus relief from the court of appeals.

In its opinion, the court of appeals notes that the threshold for "exceptional" circumstances to appoint a special master is quite high, but the court ultimately concludes that Pendragon was not entitled to mandamus relief as to the appointment of the master because of its delay in seeking mandamus relief without providing any justification for the delay.  However, in addressing the portion of the order requiring that Pendragon pay the special master's fees in advance, the court of appeals concludes that there was a clear abuse of discretion and no adequate remedy by appeal, and the opinion adds this reasoning:

Because the trial court's order regarding fees was clearly in direct contravention of the rules of civil procedure, Pendragon's delay in filing its petition does not bar its right to relief on this issue.

Whether the court intended this change in mandamus practice remains to be seen, but it now becomes the law that delay is not an obstacle to mandamus relief if you are faced with a clear and direct contravention of the rules of civil procedure.  The Court's opinion may be found here.

Thanks to Andy Korn for calling this one to my attention.





Appellate CLE on Privilege

The Dallas Bar Association Appellate Law Section will have its monthly meeting on Thursday, March 20, 2014, at noon at the Belo Mansion.  The guest speaker this month is Jadd Masso of Strasburger & Price.  He will be speaking on the subject of "Preserving, Proving, and Challenging Privilege."  One hour of CLE credit is available.