Upcoming Appellate CLEs
On Thursday, October 1, 2009, the Appellate Sections of the Dallas, Tarrant, and Collin County Bar Associations will present "Practice Tips fron the Clerk's Office" and "A Candid Conversation between Appellate Judges and Lawyers." The CLE is scheduled from 4:30-6:00 p.m. at the Omni Hotel, 1300 Houston Street in Fort Worth, with a reception to follow. The event will feature the Clerks of the Dallas and Fort Worth Courts of Appeals, as well as Justices Walker and McCoy from Fort Worth, and Justices FitzGerald and Murphy from Dallas. For more information contact David Pratt at 817-336-2400 or dpratt@deckerjones.com.
On Thursday, October 15, 2009, the Dallas Association of Young Lawyers will be hosting a one-hour seminar at the Belo Mansion in Dallas in which Fifth Circuit Court of Appeals Judge Catharina Haynes, Dallas Court of Appeals Justice Carolyn Wright, Haynes & Boone appellate section chair Nina Cortell, and appellate solo Chad Ruback will share tips about the practice of appellate law. The seminar is intended for non-appellate lawyers and those new to the practice of appellate law, but could also be a useful refresher for experienced appellate practitioners. There is no charge to attend, and lunch will be available for purchase in the buffet line.
On Friday, October 16, 2009, the Appellate Section of the Collin County Bar Association will present "Persuading Judges: Practical Tips on Oral and Written Advocacy." The CLE is scheduled for noon at Ralph & Kacoo's Restaurant in Allen, Texas. The event will feature a panel consisting of Justices Wright, O'Neill, and Fillmore from the Dallas Court of Appeals. For more information contact Byron Henry at 214-672-2156 or bhenry@cowlesthompson.com.
The month of October is loaded with opportunities for lawyers to earn CLE credit and meet court of appeals' justices.
Fireworks: "Voidable" Blows Up Entire Agreement
What is the legal effect of a provision voiding a contract? This was the issue in the Fourth Court of Appeals case Mr. W. Fireworks Inc. v. Ozuna.
In the case, Mr. W, between September of 2002 and February of 2003, contracted for the exclusive right to sell firework on the land of three different property owners. Each contract provided two key provisions: (1) the contract was voidable if fireworks became unlawful during the term of the contract; and (2) the lessors agreed not to sell or lease a part of their property to any of Mr. W's competitors for ten years after the lease was terminated.
Although Mr. W originally was able to sell fireworks at all three locations, by January of 2006, it was no longer legal to sell fireworks on any of them, and thus the contract was void. In March of 2008, however, the city of San Antonio disannexed the lessors' properties allowing them to sell fireworks on their property again. The three lessors then contracted with Alamo Fireworks, Inc., one of Mr. W's competitors, to sell fireworks on their property.
When Mr. W learned of the new contracts it sued the three lessors for breach of contract. Mr. W argued that "[t]he phrase 'shall become void' was a 'contingent limitation' that created 'a voidable agreement, which the restrictive covenant [ten-year restriction] survive[d]." In other words, the contracts terminated as to the lease, but not as to the ten-year restriction. The lessors successfully moved for summary judgment arguing the entire contract was void, including the ten-year restriction. Mr. W appealed.
Was the ten-year restriction enforceable in light of the "void" language?
No, according to the San Antonio Court of Appeals. As the court explained, when a contract is voidable, it means that the contract may either be set aside or enforced in its entirety. In other words, Mr. W cannot argue that the illegalization of fireworks made the contract voidable as to its lease obligation, but not to the ten-year restriction. Thus, the San Antonio Court of Appeals affirmed the trial court's judgment that the entire agreement was void.
Here is the opinion.
Are Some Local Rules in Jeopardy?
The Dallas Court of Appeals recently held that local rules that are inconsistent with the TRCP are not enforceable. The case involved a summary judgment response that was supposedly filed and served seven days prior to the summary judgment hearing. The trial court struck the response for failure to comply with Dallas Local Rule 2.05. Local Rule 2.05 requires that documents relating to matters set within seven days of filing must be served in a manner to ensure receipt by the opposing party the same day the papers are filed. The opinion does not mention how the document was filed or served. Relying on TRCP 3a, the court of appeals held that Local Rule 2.05 was not enforceable to the extent it mandates a different "type of service than that prescribed by rule 21a."
Does Local Rule 2.05 really require a "different type of service"? It seems to do no more than ensure that in the event a party hand delivers a response or reply to the court, it will deliver the documents to its opponent in a similar manner thus avoiding the situation in which the court receives a document and has time to review it prior to the hearing but the opposing party does not. I thought the Texas Supreme Court reviewed and approved local rules? If so, why? The court's opinion in Esty v. Beal Bank S.S.B. can be found at this link. Other local rules may be affected as discussed below.
Continue Reading...Dallas DWOP Redux
In the wake of the Dallas Court of Appeals' en banc decision last week in Crown Asset Management, L.L.C. v. Loring, there's a handful of other opinions addressing dismissals for want of prosecution using the same "aggressive docket management" procedures as in Crown.
Continue Reading...