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

"A dissent does many things—it pinpoints perceived faults in the Court’s opinion, it speaks to a future Court, it may suggest a legislative fix—but it is not the law." In his dissenting opinion, Chief Justice Jefferson argues that stare decisis mandates that the majority not adopt his dissent in a previous case.

Six years ago by a vote of 5-4, the Texas Supreme Court held in Continental Casualty Co. v. Downs that a worker's compensation carrier had seven days to contest compensability of a worker's injury under section 409.021(a) of the Workers’ Compensation Act ("Act"). Nine months later, the Texas Legislature amended the Act to allow sixty days to contest compensability. In this case, the petitioner's argued that because the Texas Worker's Compensation Commission always construed section 409.021 to allow sixty days and the Court's opinion in Downs was only in effect for one year, Downs should be reversed. The majority agreed. 

Chief Justice Jefferson's dissent, however, argues that Downs is good law despite the fact that he authored the dissent. Chief Justice Jefferson makes a powerful case relying primarily on two grounds. First, noting that its decisions apply retroactively unless special circumstances exist (not present here), the Court in construing the Act was simply exercising its duty under Marbury v. Madison to say what the law is and has been since its passage. Second, Chief Justice Jefferson argued that the "democratic process generally works as intended." Responding to a potentially incorrect interpretation of the Act, the legislature amended the Act. But in a key provision, the legislature expressly provided that the amendment apply prospectively, thus signaling that the legislature was not correcting the Court's opinion in Downs.

Though I'm sure it has happened before, it marks the first time I have seen a dissenting judge argue against adoption of his dissent in a subsequent case. The Court's majority opinion in Southwestern Bell Tele. Co. v. Mitchell, can be found at this link. Chief Justice Jefferson's dissent can be found at this link.

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In a 6-3 opinion, the Texas Supreme Court held that requests for admissions sent to an insurance carrier in one capacity cannot be used against it in different capacity. USF&G appeared in two capacities represented by two different law firms--as a defendant to the insured's claim under the underinsured motorist policy and as subrogee to recover funds from the plaintiff. Plaintiff served requests for admission on the firm representing USF&G as subrogee, not as defendant. The Court stated:

Requests for admission are a tool, not a trapdoor. [Plaintiff's] attorneys knew perfectly well that defendant USF&G was denying underinsured coverage. Accordingly, they are not entitled to use a response against it when they sent it to the law firm representing it in a different capacity.

The majority opinion in United States Fidelity and Guaranty Co. v. Goudeau can be found at this link. The dissent can be found at this link.

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Ever wonder what it takes to get an Appellant's appeal dismissed?  The Dallas Court of Appeals has given us the answer in at least two circumstances, one involving defective briefing and one involving a failure to make arrangements to pay for an appellate record.

In Bridwell v. McMillin, the Court granted what appears to be a 60-day extension of time to file an Appellant's Brief.  Later, the Court granted a second extension of time to file the Appellant's Brief--this time for 30 days.  The Appellant filed his Appellant's Brief 9 days early, but it contained a number of briefing deficiencies.  The Court ordered the Appellant to correct the briefing deficiencies within 10 days or his appeal would be dismissed.  By letter, the Appellant requested that the Court treat his defective brief as his amended brief--in effect refusing to correct the deficiencies.  In response, the Appellee moved to dismiss the appeal for non-compliance with the Court's order.  The Court granted the motion to dismiss.  The Court's Memorandum Opinion in Bridwell can be found at this link.

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If you've got a venue selection clause and you are wondering whether you can file in state or federal court, or whether you can remove a state-filed case to federal court, you might look at the Fifth Circuit's opinion in Alliance Health Group LLC v. Bridging Health Options LLC.

The venue clause in this case  provided that "exclusive venue for any litigation related hereto shall occur in Harrison County, Mississippi."  The Court held that the particular language of this clause and the fact that Harrison County, Mississippi has a federal courthouse in that county permits venue in federal court.  Significantly, the Court discusses a number of other permutations to the language in venue clauses and draws distinctions that may be of use to practitioners.

For your convenience, I've extracted from the court's opinion its commentary on some of the permutations of venue selection language and what result attaches to the language.

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Will the Dallas Court of Appeals grant oral argument to both sides of an appeal when only one party has requested it?  For the answer to that question, check out the Court's Internal Operating Procedures.  The answer might surprise you.  The Dallas Court of Appeals has posted its IOP's as of September 1, 2008 on its home page.  The IOP's contain helpful procedural information, such as number of copies of motions to file and a listing of fees.  But, the IOP's also contain some not-so-obvious information such as assignment of cases to panels, when voting occurs on an appeal, what happens with petitions for mandamus that are filed, and instructions to request oral argument if the opposing side has requested it and the Court has granted it.

A cover letter accompanying the IOP's promises to update the posting for the benefit of practitioners.

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In an interesting opinion regarding dominant/servient jurisdiction and abatement, the Houston (First) Court of Appeals made this observation regarding the proper relief on a motion to abate:

Generally, the proper relief on a motion to abate on the ground of dominant jurisdiction is abatement.   . . . However, there is also authority that that if a party files a plea in abatement . . . the subsequent case must be dismissed.  The Texas Supreme Court has noted the split in authority , but has not resolved it.

Here, the trial court dismissed the case, but the court of appeals did not have to address the proper remedy because the plaintiff did not challenge the dismissal.

I wonder whether this quandry can be resolved by analyzing whether the claims asserted in the subsequent lawuit can and should have been asserted in the first suit.  In other words, the answer may depend on whether res judicata would apply in the subsequent lawuit.  If so, then dismissal may be proper if for no other reason than to require the plaintiff to bring the claims in one suit.  The court of appeals' opinion in French v. Gilbert can be found at this link.

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The Dallas Court of Appeals recently held that CPRC 12.002 prohibiting use of a fraudulent court record or lien requires evidence of intent to cause harm at the time of filing the alleged fraudulent record or lien. 

In this case, the Plaintiff argued that Defendant's (an attorney) knowledge of lien law satisfied the knowledge element; and "common knowledge" that interfering with a person's real property rights will cause harm to that person satisfied the intent to cause harm element. 

The Court disagreed and, invoking the "equal inference rule," held that the evidence was also consistent with no intent to cause harm.  The Court also rejected Plaintiff's argument that failing to remove the lien once notified of its invalidity violated 12.002 and demonstrated an intent to cause harm by citing precedent that requires intent to cause harm be present at the time the lien or court record is filed.  The Court's opinion in Aland v. Martin can be found at this link. 

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The U.S. Supreme Court has agreed to consider the case of Caperton v. A.T. Massey Coal Company, involving a judicial recusal in West Virginia where judges are elected.  The precise question presented is "whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment."  Factual background indicates that Justice Benjamin challenged incumbent Justice Warren McGraw in the 2004 elections, and during that election cycle the CEO of A.T. Massey Coal Company gave approximately $3 million dollars in direct and indirect contributions to a fund opposing reelection of Justice McGraw, who eventually lost the election.  Some years later, A.T. Massey Coal sought review by the state supreme court of a $50 million verdict against it.  Justice Benjamin declined to recuse himself.   The case has not yet been set for argument.

This case bears watching as it could impact recusals in Texas and other states that elect members of the judiciary.

For further discussion of this case, go to SCOTUSblog.

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Cleantech filed a suit on sworn account on July 10, 2007, against Eugene Owens.  On August 13, 2007, Mr. Owens handwrote and signed a letter to the court that stated "Please be advised I am employing an attorney for case number 07-1267-336."  Mr. Owens included his address on the letter, but he did not include a verfied affidavit as Tex. R. Civ. P. 93(10) requires.  Cleantech moved for a no-answer default judgment, which the court granted.

Did the handwritten and signed letter without the verified affidavit constitute an answer sufficient to defeat the no-answer default judgment?

According to the Dallas Court of Appeals, yes.

In Owens v. Sumola Investments, Inc., the court held that the letter was defective, but still constituted an answer sufficient to preclude a no-answer default judgment.  The Court did note that such a letter (without the verified affidavit) is ripe for summary judgment because it is prima facie evidence of a debt.  Nevertheless, Texas law indicates that "a letter from a pro se defendant to the district clerk that confirms receipt of the citation and provides the defendant's current address is sufficient to constitute an answer."  A copy of the court's opinion can be found at this link.

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The Fort Worth Court of Appeals issued a couple of opinions in Young v. Thota addressing an alleged jury charge error.  In this medical negligence case, the alleged charge error relates to whether the trial court should have submitted an issue asking whether the plaintiff was contributorily negligent or whether the plaintiff's acts raised mitigation of damages questions.  The majority concludes that it was error to submit the plaintiff's contributory negligence, while the dissent argues that it was proper to submit the question.  This discussion in itself may merit further review.

Perhaps the more interesting disagreement between the majority and the dissent relates to the analysis of harmful error.  The majority concludes that harm occurred because of the submission of an improper contributory negligence question along with an improper inferential rebuttal instruction on new and independent cause.  The dissent argues that it is clear that if any error occurred, it was not harmful.  The dissent points to the negligence question in which the negligence of Dr. Thota and Ronnie Young were submitted in the same question, but with two separate answers.  Because the jury found no negligence attributable to Dr. Thota and found Young negligent, the dissent concludes there was no commingling so as to trigger a presumed harm analysis.  The Court's opinions may be found at this link. 

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In an otherwise lengthy opinion, the Fort Worth Court of Appeals provided a reminder to civil practitioners regarding the difference between failure of consideration and lack of consideration.  The Court noted:

[L]ack of consideration refers to a contract that lacks mutuality of obligation.  Failure of consideration, however, occurs when, due to a supervening cause after an agreement is reached, the promised performance fails.  The distinction between the two is that lack of consideration exists, if at all, immediately after the execution of a contract while failure of consideration arises because of subsequent events.

The distinction is also important because failure of consideration requires a verified pleading under TRCP 93, while lack of consideration, as an element of the claim, does not.  The Court's opinion in City of The Colony v. North Texas Mun. Water Dist. can be found at this link.

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