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

The San Antonio Court of Appeals recently disqualified former court of appeals Justice Sarah Duncan and her law firm--Locke Lord Bissell & Liddell LLP--from representing a Relator in an original proceeding pending before that court of appeals.

According to the facts in In re Brittingham, when she served on the Fourth Court of Appeals, Justice Duncan participated in two separate appeals taken from the underlying probate proceeding.  After she left the bench, she made an appearance as counsel in an original proceeding filed in the Fourth Court of Appeals and relating to the same probate proceeding.  The Real Party in Interest, Kevin Mackie, moved to disqualify Justice Duncan and her law firm.

The court of appeals grants the motion to disqualify and addresses several interesting issues.  First, the court discussed what is a "matter" under Texas Disciplinary Rule of Professional Conduct 1.11, and it rejected a narrow interpretation that would have treated an original proceeding as a separate matter from the underlying proceeding or from prior appeals taken from the same underlying proceeding.  Next, the court discusses what disclosure is required in order for the opposing party to consent to the conflict, and the court holds that the mere listing of Justice Duncan on a brief in the original proceeding is not disclosure of the conflict.  Third, the court concluded that the Real Party in Interest was not required to show prejudice (how could he since judicial discussions occur behind closed doors?).  Finally, the court holds that the disqualification of Justice Duncan required disqualification of the law firm under Rule 1.11(c).  The court's opinion may be found here.

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Although we have known since last year that Justice Harriett O'Neill did not intend to seek re-election in 2010, she had not yet announced when she would leave the bench.  That announcement came on Friday when Justice O'Neill notified Governor Perry that she will leave the Texas Supreme Court on June 20 after more than a decade of service on the Court.  She has not yet announced her future plans.  

 The Court's press release may be found here.

On a personal note, I am sad to see Justice O'Neill leave the bench.  Female role models are hard to come by.  So I look forward to hearing what she plans to do next and wish her well.  

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 When Leland Dykes proposed to his girlfriend, Pepper Lee, he did so with a $26,000 diamond engagement ring in tow. He also bought a house for Pepper and put it in Pepper’s name. Leland protected his interest in the house through a Property Agreement with Pepper, but did not get a pre-nup covering that pricey ring. So, when the couple split and Pepper kept the ring, Leland sued…. and won. 

The jury awarded Leland $110,000 for the real property and $13,000 as conversion damages for the ring.  But Pepper appealed, asserting that Leland’s testimony that he paid $26,000 for the ring was legally and factually insufficient to support the jury’s finding that the reasonable cash value of the ring at the time of conversion was $13,000. The Fourteenth Court of Appeals agreed with Pepper, holding that evidence of purchase price constituted no evidence of fair market value at the time of conversion and rendering a take nothing judgment against Leland on the conversion claim. 

To reach this conclusion, the court rejected contrary rulings from other intermediate appellate courts, construed the Texas Supreme Court’s opinion in Redman Homes, Inc. v. Ivy as authority for their holding, and determined that Pepper’s failure to object to the evidence of purchase price did not convert otherwise inadmissible evidence into sufficient evidence to support the verdict. The court also opined that Leland could have presented sufficient evidence if he had simply testified to what he considered to be the value of the ring at the time of conversion. 

So, what’s the bottom line? Take some time on the front end to decide what evidence you need to present to a jury to support your damages.   Although Leland won the case, he didn’t give the jury the evidence it needed to support all of its answers. By spending time on the front end figuring out what the value truly was at the time of the conversion, he could have won it all.  Instead, Leland is out the money he paid for the ring, and Pepper walks away a partial winner with a sparkly diamond as proof.  The court's opinion can be found at this link.

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Byron Henry and I are pleased to announce that Hilaree Casada has joined the Appellate Practice Group at Cowles & Thompson.  Hilaree has distinguished herself among appellate practitioners.  She was recently named by D Magazine as one of the Best Women Lawyers in Dallas.  She is one of nine appellate practitioners on that list. 

Cowles & Thompson now has three attorneys who are board-certified in Civil Appellate Law by the Texas Board of Legal Specialization. Hilaree's addition to the firm means that we will have another blogger for our appellate blog.  What that means for you--our audience--is more content.  

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The Dallas Court of Appeals recently discussed the difference between judicial errors and clerical errors and highlighted why it's so very important to pay attention to the language in orders and judgments.

In In the Interest of N.E., D.E., & M.E., the trial court rendered a final judgment with a Mother Hubbard clause.  The same judgment contained language stating that the intervention of an attorney for one of the parties (seeking attorney's fees) was stricken.  The trial judge interlineated language that would have made the striking of the intervention "without prejudice."

One hundred seventy-five days later, the trial court attempted to vacate its judgment and render a new judgment reciting dismissal of the intervention without prejudice.  The question on appeal became whether such an order was a clerical mistake that could be corrected by nunc pro tunc judgment.  The court of appeals held that adding the language "without prejudice" to the judgment was a change in the judgment actually rendered and was not correcting a clerical error.  Thus, the court of appeals held that the trial court had no authority to make the change in its judgment since its plenary power had expired.  The court of appeals' opinion may be found here.

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This little news flash nearly escaped my attention.  Governor Perry has appointed Associate Justice Terry Livingston to be the new Chief Justice of the Second Court of Appeals in Fort Worth.  Chief Justice Livingston succeeds Chief Justice John Cayce, who stepped down late last year to return to private practice.  The Governor's news release may be viewed here.

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