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

To all you appellate gurus out there, here's an appellate procedure question: When does the court of appeals' mandate issue when the Texas Supreme Court has denied a petition for review and subsequently denied a motion for rehearing of the petition for review?

TRAP 18 controls issuance of the appellate mandate.  The timetable is based upon the steps a party is entitled to take after the court of appeals renders its judgment.  But there are no other steps to take after the Texas Supreme Court denies a motion for rehearing of a petition for review.  Or are there?  Should the mandate issue ten days after the denial of the motion for rehearing of the petition for review (because that's the amount of time added to the expiration of the other steps)?  Should its issuance be tied to the timetable for filing of a petition for writ of certiorari in the United States Supreme Court?  What do you think?

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In a longstanding dispute over which agency has the authority to regulate engineers, the Austin Court of Appeals recently held that the Texas Society of Professional Engineers (Society) lacked standing to bring suit against the Texas Board of Architectural Examiners (Board) on behalf of its members because it failed to meet the test for associational standing.  The court of appeals applied the test set forth by the Texas Supreme Court in Texas Association of Business v. Texas Air Control Board:

[A]n association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Because the Society failed the third prong, the court of appeals affirmed the trial court's dismissal for lack of standing.  The court of appeals' opinion in Texas Society of Professional Engineers v. Texas Board of Architectural Examiners can be found at this link.

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We elect our judges in Texas.  We can debate the pros and cons of selecting judges by election, but that doesn't change the fact that we are in the middle of an election now.   Early voting goes through Friday, October 31st.  You can vote at any early voting location and all you need to vote is a valid driver's license.  If you can't vote early or don't want to, Election Day is Tuesday, November 4th.  To find your polling place for election day, follow this link.

Under this system of judicial selection, the best way to ensure selection of quality judges is an informed electorate.  To that end, here's a list of appellate candidates for judicial office with links to help you better educate yourselves.

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On Tuesday, November 4, 2008, the Tarrant County Appellate Law Section will be honoring retiring Justice Dixon Holman.  The luncheon to honor Justice Holman will take place at the Petroleum Club beginning at noon.

The cost is $20 for members and $22 for non-members and walk-ins. 

RSVP to Sherry at 817-338-4092 or sherry@tarrantbar.org

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A plaintiff sued a defendant for breach of contract. Instead of serving the defendant, the plaintiff served the Secretary of State. As the time for answering lapsed, the trial court sent notice of dismissal to the parties (according to Texas Rule 165a ) warning them of dismissal if no answer was filed by a specified deadline.

When the deadline passed with no answer, the court dismissed the case for want of prosecution. After the dismissal, the defendant's attorney received notice that the Secretary of State had been served with the underlying lawsuit. A few days later, the court reinstated the suit sua sponte and eventually entered a default judgment in the plaintiff's favor.

Was the defendant properly served?

The Fifth Court of Appeals, in DC Controls, Inc. v. UM Capital, L.L.C., explained that service after a case has been dismissed for want of prosecution is defective. Because the defendant did not receive notice until after the court dismissed the suit, regardless of the fact that the court reinstated the suit days later, the Court of Appeals held that service was defective and an error apparent on the face of the record, and thus reversed the default judgment and remanded the case for further proceedings.

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There are three holdings in DiGiuseppe v.Lawler that are noteworthy.  First, the Texas Supreme Court, reaffirms the principle that a party who obtains a favorable judgment need not file a separate notice of appeal to preserve its right to judgment on a lesser alternate ground of recovery in the event an appellate court reverses the trial court's judgment.

Second, the majority (5-4) holds that a party seeking specific performance has the burden to plead and prove that he he was ready, willing, and able to perform the contract at the time his performance was due.

Finally, the majority holds that a finding of "ready, willing, and able" could not be deemed under Rule 279 when no "ready, willing, and able" question was submitted to the jury.  The plaintiff did not conclusively establish this essential element on the evidence submitted.  And, a finding could not be deemed because there must be at least one element of the ground of recovery submitted to the jury and that element must be "necessarily referable" to that ground of recovery.  The court concluded that the finding as to whether the plaintiff complied with the contract is not essential to, or necessarily referable to, the plaintiff's claim for specific performance.  Accordingly, the plaintiff failed to obtain findings necessary to support specific performance.  The majority opinion may be found at this link.  Justice Green's dissenting opinion may be found here.  For other insightful comments regarding this opinion, see Todd Smith's blog or Don Cruse's blog.

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The Texarkana Court of Appeals held that a no-evidence motion for summary judgment need only identify the challenged element in order to comply with Rule 166a(i).  Plaintiff argued that the motion must list all of the elements and identify the challenged element(s).  The court of appeals disagreed and held the motion sufficient if it "merely reference[s] the element on which there is no evidence,"  in this case cause-in-fact.  The opinion in Driskill v. Ford Motor Co. can be found at this link. 

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A divided panel of the Amarillo Court of Appeals held that a dismissal with prejudice operates as an adjudication on the merits for purposes of res judicata even if the trial court erred by including the phrase "with prejudice" in the dismissal order.  The majority followed Amarillo precedent while the dissent called for it to be overruled.  Because the Amarillo court has only four justices, it is unlikely that the dissent could muster the three votes necessary to overturn the controlling precedent en banc.  The majority opinion in Rodriguez v. ICON Benefit Administrators, Inc. can be found at this link.  Justice Pirtle's dissenting opinion can be found at this link.

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Welcome to the Cowles & Thompson Appellate Blog.  We created this blog with the goal of providing useful information to civil appellate practitioners and to the public at large.  We anticipate that we will be posting information relating to significant appellate opinions from Texas appellate courts (inclusive of the Supreme Court of Texas).  Of course, we will also call attention to U.S. Supreme Court opinions and Fifth Circuit opinions  that have particular impact on Texas appellate practitioners. 

In addition to focusing attention on appellate court opinions, we will post notices relating to important events that impact appellate practitioners, such as relevant continuing education seminars, proposed changes to the rules of appellate procedure, and meetings of appellate sections.  Because much of our own practice takes place in the North Texas area, our postings of events and meetings will likely focus on events taking place in North Texas.

To make this site a useful resource for practitioners, we included links to other websites and blogs of interest to our target audience.  We welcome any comment or suggestion our readers may have to offer.  If there is some news item you believe we should report, feel free to submit it.  We can't promise that we will post everything, but we will certainly give your comments and suggestions due consideration.

Thank you for reading our blog.

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In this mandamus action, the Eastland Court of Appeals held that federal tax returns are not relevant or material to the issue of the defendant's net worth.  While the court of appeals held that a plaintiff seeking exemplary damages need not make a prima facie showing of entitlement of exemplary damages in order to obtain discovery on net worth, it held that tax returns do not reflect net worth.  The court also held the trial court abused its discretion by ordering production of  "all documents that evidence or reflect net worth" because it was overbroad.   The court of appeals' opinion in In re House of Yahweh can be found at this link. 

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The Houston (First) Court of Appeals held that a plaintiff cannot restart the clock on the 120-day deadline to serve an expert report pursuant to Chapter 74.  The plaintiff nonsuited its case prior to the expiration of the deadline.  The plaintiff refiled the suit and filed an expert report within 120-days of the new filing.  Relying on a prior decision, the court held:

"[A]llowing a plaintiff to re-start the period for serving an expert report by non-suiting his claim and then subsequently refiling the same claim effectively expands the expert report peiod well beyond 120 days, which is inconsistent with the policies and goals of the statute.

Consequently, the court of appeals affirmed the dismissal of the plaintiff's case.  The Court of Appeals' opinion in Runcie v. Estate of Dorothy Runcie can be found at this link. 

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The defendant moved for summary judgment on the plaintiff's claims based on the statute of limitations. To show the accrual date, the defendant attached several documents to his motion. But the defendant's motion did not specifically identify where the evidence was in those documents. Did this meet the summary judgment requirement that a party must specifically identify its proof in the motion?

According to the Amarillo Court of Appeals, in West v. Hamilton, the answer is "no." The court held that generally referencing documentary evidence in a motion does not relieve the movant from the duty to direct the trial court and the non-movant specifically to where the issues are located in those documents, even if the documents are not voluminous.

The specificity requirement directs the movant to provide "fair notice" of the summary judgment contentions and refer the court and parties to the evidence on which the movant is relying for judgment. Because the defendant in this case failed to specifically direct the court and the plaintiff to the evidence he relied on to prove the accrual date, his summary judgment victory in the trial court was reversed on appeal.

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 "The overarching question before the en banc Court is whether a writ of mandamus should issue directing the transfer of this case from the Marshall Division of the Eastern District of Texas--which has no connection to the parties, the witnesses, or the facts of this case--to the Dallas Division of the Northern District of Texas--which has extensive connections to the parties, the witnesses and the facts of this case."

So begins the majority opinion in a case addressing whether mandamus is appropriate to correct a district court's ruling on a motion to transfer venue pursuant to 28 USC sec. 1404(a).  By a 10-7 vote, the United States Court of Appeals for the Fifth Circuit answered in the affirmative and ordered the case transferred.  The majority and dissenting opinions in In re Volkswagen of America, Inc. can be found at this link.

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The Texas Supreme Court will be holding oral arguments this Wednesday, Oct. 16, 2008, in Dallas at the SMU Dedman School of Law.  The following three cases are set for oral argument beginning at 9:00am:

Entergy Gulf States, Inc. v. Summers, No. 05-0272; from Jefferson County, Ninth Court of Appeals (09-04-00152-CV, __S.W.3d__, 12-30-04) (originally argued Jan. 24, 2007, with opinion delivered Aug. 31, 2007, and rehearing granted April 4, 2008) [involving whether a premises owner who hires an independent contractor and provides workers-compensation insurance for the contractor’s employees can be a “statutory employer” for workers comp purposes.]
 

07-0541, TXI Transportation Co., et al. v. Hughes, et al., No. 07-0541; from Wise County, Second Court of Appeals (02-04-00242-CV, 224 S.W.3d 870, 05-25-07) [involving (1) whether evidence that a truck driver involved in a fatal truck-SUV collision was an illegal immigrant was properly admitted for impeachment purposes; (2) whether the trial court improperly overruled a Batson challenge over the only Hispanic venireman struck; (3) whether the trial court improperly excluded defense testimony from a state trooper regarding a tire blowout that might have contributed to cause the accident or cell phone records showing an incoming call to the SUV driver at the time of the accident; and (4) whether the trial court improperly allowed claims for wrongful death of unborn children (the verdict on those claims was not included in the judgment)

City of Dallas v. Abbott; No. 07-0931, from Travis County, Seventh Court of Appeals (07-06-00161-CV, __S.W.3d__, 08-13-07) [whether the Public Information Actions 10-day deadline for requesting an attorney general's opinion on records disclosure is postponed while the city awaits clarification on the records requested and whether the city can be compelled to disclose privileged information if the request for the attorney general's opinion was not submitted by the statutory deadline]

If you cannot attend in person, the arguments will be recorded and posted on the supreme court’s website for later viewing.

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The Dallas Court of Appeals vacated a portion of a district court's order directing the Office of Attorney General to remit payments to a private company that collects and disburses child-support payments for a fee.  Pursuant to Texas Government Code sec. 22.002(c), the court of appeals held that only the Texas Supreme Court has the authority to issue a writ of injunction against officers of the executive branch.  The court found that the portion of the order directing the OAG to remit payments to the private company was void.  The court's opinion in In the Interest of A.B., Jr. can be found at this link.

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The Fort Worth Court of Appeals recently held that participating in board meetings via telephone with Texas residents is sufficient to establish specific jurisdiction in Texas. The court of appeals distinguished the Texas Supreme Court’s opinion in Michiana Easy Livin’ Country, Inc. v. Holten as follows:

“Although the supreme court has disapproved opinions holding that . . . specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, Michiana, 168 S.W.3d at 791 (emphasis added), it has not held that telephone calls are never sufficient to establish minimum contacts.”

Like Michiana, the Texas plaintiffs in this case telephoned the out-of-state defendants. Unlike Michiana, in which the plaintiff made one phone call, “this case involves many telephonic board meetings at regular intervals over a span of years.” This is a close case.  But, at the very least, it stands for the proposition that phone calls alone can constitute sufficient minimun contacts to establish specific jurisdiction.  A copy of the court of appeals’ opinion in Glencoe Capital Partners II, L.P. v. Gernsbacher can be found at this link
 

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The Texas Supreme Court recently reversed a decision by the Houston Fourteenth District Court of Appeals, which held harmless the trial court’s admission of evidence related to the defendant’s wealth.  Reliance Steel & Aluminum Co. v. Sevcik, No. 06-0422, 2008 Tex. LEXIS 861 (Tex. Sept. 26, 2008). 

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