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

With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure.  Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed the petition and every factual statement is supported by competent evidence in the appendix or record.  Previously, Rule 52.3 required factual statements to be verified by affidavit, which sometimes presented difficulties for appellate counsel who might not have the requisite personal knowledge.

Despite the change in Rule 52.3, the Dallas Court of Appeals reiterates that a sworn or certified copy of the order or other document complained of still must be included in the appendix to the petition.  An affidavit swearing that the order is "to my knowledge" a true copy of the original is an equivocal statement implying something less than personal knowledge and it does not comply with the requirement for sworn copies.  The Court's opinion may be found at this link. 

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The Amarillo Court of Appeals recently confronted an issue not addressed by the appellate rules.  While Rule 38.8(a) applies in the event the appellant fails to file a brief, the rules are silent with respect to an appellee's failure to do so.  The Court weighed its options:

Appellees'  failure to file a brief leaves this Court with several mutually unpleasant options.  On the one hand, we could accept [appellant's] arguments at face value and summarily reverse.  On the other hand, we could abandon our role as impartial jurist and become an advocate for Appellees by advancing arguments in order to affirm.  Neither option is acceptable.

The Court decided to follow other courts of appeals that have faced this dilemma and "conduct an independent analysis of the merits of the appellant's claim of error, limited to the arguments raised by the appellant . . . ."  The Court made clear that by doing so, it was not acting as an advocate for the appellees.  The Court went on to affirm the trial court.  The Court's opinion in Dillard's, Inc. v. Newman can be found at this link.

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Here's an interesting factoid you can make use of to amaze and astound your opposing counsel.  The Best Evidence Rule, Texas Rule of Evidence 1002, applies only when the the originals are located in Texas.  It's true.  It surprised me too. 

Kerlin v. Arias, a per curiam opinion issued by the Texas Supreme Court on November 14, 2008, has some interesting allegations and facts relating to challenges to historical chain-of-title to property on South Padre Island and some more routine reaffirmations of what must be contained in affidavits to constitute an affidavit.  But what jumped out at me was the holding that Petitioners did not need to produce the original of a deed located in Mexico in response to a Best Evidence objection.  Why?  Because the Best Evidence Rule has an exception set out in Rule 1004.  The Best Evidence Rule does not apply when "no original is located in Texas."

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Following rendition of a final, appealable judgment, does a notice of appeal have to name all preceeding interlocutory orders as a prerequisite to complaining of those orders?  Apparently not.  This has been a question of concern for many appellate practitioners and it's a question that's been percolating around in the courts of appeals.  We now have an answer. 

In Perry v. Cohen, Defendants filed special exceptions to the Plaintiffs' petition, which were sustained and the trial court ordered Plaintiffs to replead.  Subsequently, Plaintiffs filed an amended petition, and Defendants moved to dismiss because the amendment failed to comply with the order on the special exceptions.  The trial court dismissed Plaintiffs' claims.

On appeal, Defendants argued that Plaintiffs had waived their complaints because their notice of appeal listed only the order of dismissal, and not the order sustaining the special exceptions.   The Texas Supreme Court held that Plaintiffs "were required only to state the date of the judgment or order appealed from--in this instance the order dismissing their suit."  The Court's opinion also goes on to examine whether Plaintiffs also preserved error by challenging both orders in their brief and concludes under its rules requiring liberal construction of briefs that Plaintiffs preserved error.  The Court's opinion may be found at this link.

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The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified.  First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of a district judge when he heard the oral motion to disqualify.  Second, the court determined that a party is entitled to notice and hearing prior to disqualification.  The court stated:

While we agee that the alleged disqualifiying conflict is significant, if the disqualifyig status is proved, we disagee that one party's bare allegation of the conflict is sufficient to establish disqualification as a matter of law when the opposing party is seeking to enforce its right to an evidentiary hearing on the constitutionally protected right to counsel of the party's choosing.

The court of appeals' opinion in In Re Lopez can be found at this link.

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In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to inform him of the hearing. The letter did not contain a certificate of service.

Did the defendant receive proper notice?

The trial court did grant the summary judgment, but the Dallas Court of Appeals later overturned the judgment in a restricted appeal. Because summary judgment is such a harsh remedy, the court scrutinized the record and discovered that the plaintiff was dilatory in sending the notice of hearing letter.  As a result, the defendant only received 11 days notice of the hearing.  But Tex. R. Civ. P. 166a(c) requires that the non-movant receive notice 21 days before the hearing. So the court reversed the summary judgment and remanded the case back to the trial court for further proceedings.

Because the untimely notice was sufficient to overturn the judgment, the court did not reach the other complaints regarding service. One involved the lack of a certificate of service in the letter. Incidentally, if a party sends notice of a hearing by way of a transmittal letter as oppposed to a completed fiat, notice may be defective unless the letter contains a certificate of service.  See Tex. R. Civ. P. 21a.

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We want to announce some upcoming continuing education opportunities of interest to Appellate Practitioners. 

The Dallas Bar Association, Appellate Law Section will have its monthly noon CLE on Thursday, November 20, 2008.  The keynote speaker is David Horan of Jones Day who will speak about Federal Interlocutory appeals.  Casey Kaplan of the K&L Gates firm will be the introductory speaker.  The meeting will occur at the Belo Mansion in Dallas, Texas.

The Collin County Bar Association will meet at noon on Friday, November 21, 2008.  The speaker will be Greg Lensing, Staff Attorney for the Dallas Court of Appeals, who will speak on Special Appearances and Personal Jurisdiction in Texas.  The meeting will be held at Ralph & Kacoo's on Central Expressway in Allen, Texas.

Other upcoming seminars for Appellate Practitioners are listed below:

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In a dispute over the assessment of costs on appeal, the Houston (First) Court of Appeals recently held that bond forfeiture cases are criminal as opposed to civil.  Accordingly, the court redesignated the two appeals at issue as criminal cases with the abbreviation "CR."  But for those hoping to avoid civil filing fees as a result of the court's decision (see report at this link) -- not so fast.  The court of appeals also held that civil filing fees may be assessed despite the cases' new designation.  To top it off, the court held that costs could be assessed against the bond company under established criminal rules despite its success on appeal.  For those unfamiliar with Texas's judicial system, the criminal vs. civil designation is important for reasons other than filing fees.  Texas has a bifurcated system with two courts of last resort, the Court of Criminal Appeals for criminal cases and the Texas Supreme Court for civil cases.  The court of appeals' opinion in Safety Nat'l Cas. Corp. v. State of Texas can be found at this link. 

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The Beaumont Court of Appeals recently addressed the difference between judicial estoppel and a judicial admission.  Plaintiff filed a claim with the EEOC and brought suit against defendant for gender discrimination.  After her federal suit was dismissed, she sued the defendant in state court for unlawful termination based on her refusal to perform an illegal act.  Defendant sought summary judgment arguing that plaintiff's federal pleading consituted a judical admission that plaintiff had been fired because of her gender.  In deciding the case, the court of appeals noted that the defendant moved for summary judgment on the basis of plaintiff's alleged judicial admission, but the plaintiff's response only addressed judicial estoppel.   The court explained the difference:

Judicial admission and judicial estoppel are separate principles.  Judicial estoppel is a rule of procedure based on justice and sound policy that bars a party from taking a position inconsistent with one taken in a earlier proceeding.  A judicial admission, by contrast, results when a party makes a statement of fact which conclusively disproves a right of recovery or defense currently asserted.

The court then held that plaintiff's statment in her federal pleadings that she was fired for gender discrimination constituted a judicial admission barring recovery on her state claim under Sabine Pilot that she was fired for refusing to perfom an illegal act.  The court affirmed summary judgment for the defendant.  The court's opinion in Louviere v. Hearst Corp., can be found at this link. 

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Howard Bashman over at How Appealing had a post yesterday regarding an Eleventh Circuit decision denying a petition for rehearing en banc on the issue of whether obtaining an extraordinary result justifies increasing attorney's fees awarded under various federal statutes.  The order denying rehearing en banc, with multiple dissents, can be found at this link. The orginal panel decision consisting of three separate opinions can be found at this link.

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Texas voters elected (or re-elected) a slate of judges in the state on Tuesday.  Last week we posted a list of the appellate court races in the state. 

A list of the winners in those appellate court races is displayed below.  The final, official figures are not yet posted, but most of these outcomes are unlikely to change.

For additional statewide results, check with the Texas Secretary of State's election's webpage.

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The Amarillo Court of Appeals recently held  that a party may be ordered to sign a medical records authorization in response to a request for disclosure pursuant to TRCP 194.2.  The defendant served a request for disclosures including a request for execution of an authorization to release medical records under Rule 194.2(j).  The plaintiffs argued they could respond by either producing the medical records or executing an authorization permitting  the release of  medical records.  The trial court disagreed and ordered the plaintiffs to execute the authorizations.  Plaintiffs sought mandamus relief from the court of appeals.  In denying the plaintiffs' petition, the court of appeals stated that "the option belongs to the party requesting disclosure, not the one responding to it.  If a legitimate request is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records."  The court's opinion in In Re Soto can be found at this link.  

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What is the proper procedure to preserve error when a trial court refuses to rule on a motion for default judgment?

In Old Republic Insurance Co. v. Sisavath, the trial court refused to rule on the plaintiff's motion for default judgment and eventually dismissed the case for want of prosecution. 

On appeal, the plaintiff argued that the trial court improperly denied the motion for default judgment. 

The Dallas Court of Appeals, however, explained that the court did not deny the motion, it merely returned the proposed default judgment unsigned and identified several items for the plaintiffs to ameliorate before it could sign the judgment. To complain on appeal that the trial court refused to rule on a motion, the record must show that the complaining party objected to the refusal. But the record was void of any objections to the trial court's refusal to sign the default judgment. Thus, the error had not been preserved for appeal. 

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The Dallas Court of Appeals held that a pro se letter from an Illinois resident denying liability and requesting an extension of time to retain counsel and file a "complete answer" waived the defendant's subsequent special appearance.  The defendant argued that the letter did not consitute an answer.  The court held that  the letter constituted an answer.  Because an answer constitutes a general appearance, the court held the defendant waived any challenge to the trial court's personal jurisdiction.  The court's opinion in Triad Realty Servs., Ltd. v. Green can be found at this link.

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In a case involving application of the mandatory venue provision in section 15.011 of the Texas Civil Practice and Remedies Code, the Dallas Court of Appeals held that a suit to remove a lis pendens constitutes an action to quiet title.  The Court, therefore, held that "[o]nce it is demonstrated that the court's judgment would have some effect on an interest in land, then the venue of the suit is properly fixed under the mandatory venue statute."  The trial court had denied the defendant's motion to transfer venue to Harris County (where the land was located) and rendered judgment on behalf of the plaintiff.  The court noted that "a trial court's erroneous denial of a motion to transfer venue is not harmless and requires reversal of the judgment and remand for new trial."  Accordingly, the court of appeals reversed and remanded the case with instructions to transfer the case to Harris County.  The court's opinion in Airvantage, L.L.C. v. TBAN Props. #1, L.T.D. can be found at this link. 

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