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

Often trial judges sign orders that are not final either because they fail to dispose of all parties and issues before the court, or the written order fails to reflect the trial court's intent that the order be a final, appealable judgment.  That was the case in Hodo v. State, and the Amarillo Court of Appeals sought to remedy the lack of finality by taking the rare move of invoking Appellate Rule 27.2.

The trial court signed an order allowing the withdrawal of funds from an inmate trust account, a procedure governed by Texas Government Code Section 501.014.  The order of withdrawal directed the Texas Department of Criminal Justice Institutional Division to withhold funds from Hodo's trust account.  Hodo moved to rescind the withdrawals, alleging that he had been denied due process.  After an appeal to the Texas Supreme Court, the Supreme Court held that an inmate is entitled to notice and an opportunity to be heard, and the case was remanded.

It appears that further proceedings were had in the trial court following the remand.  But it does not appear that the trial court made any ruling on a motion to confirm, modify, correct, or rescind the prior withdrawal notification.  Hodo filed another appeal.  The Amarillo Court of Appeals notes that the lower court's judgment did not assess costs.  The court of appeals concludes that it could not tell whether the trial court intended to finally dispose of all claims (making the orders final and appealable), and the court invoked Appellate Rule 27.2.  Using Rule 27.2, the court abates the appeal so as to allow Hodo to obtain the missing final, appealable order.  The court's opinion may be found here.

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Few writs of mandamus are granted in Dallas, so when I see one in the daily case updates I like to check the opinion out.  I was glad I did so today!  The Dallas Court of Appeals issued an informative opinion today conditionally granting a writ of mandamus to vacate an order that compelled the production of information containing Goodyear's trade secrets. 

Although I generally consider discovery to be a 4-letter word (at least the process of drafting discovery requests and objecting to the other side's requests), the question of whether certain information is discoverable often provides for interesting legal research and analysis.  The question of whether documents should be protected from discovery on the basis of confidentiality or trade secret status is one of those interesting issues.  Too often, however, opinions don't include a detailed analysis of the arguments, objections, and evidence presented in the trial court on discoverability or lack thereof.  Today's opinion in In re the Goodyear Tire & Rubber Company is an exception to that rule.

Justice Lang-Miers provides us with a detailed analysis of the evidence and arguments presented by both sides.  Although it appears that this was not really a close case -- Goodyear provided ample evidence to support its contention that the documents contained trade secrets -- the opinion gives good examples of what types of evidence should be filed to meet your burden of proof.  Those examples can be molded for use in other cases, products cases or otherwise.  The opinion also helps future parties on the losing end of a motion to compel to get a second bite at the apple.  The court did not determine whether the trade secret information is discoverable.  It simply held that Goodyear met its burden to prove the documents contained trade secrets and the plaintiff failed to meet her heightened burden of proving  that the information is necessary to a fair adjudication of her claim.  So, although the original order will be vacated, the plaintiff can return to the trial court and seek to compel production of the information again.  The court's opinion may be found here.

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A few months back, I wrote about a mandamus opinion from the Houston Fourteenth Court of Appeals, involving discovery of net worth.   The majority and concurring opinions were groundbreaking in terms of their discussions. 

This Spring, I wrote an article that appeared in the Appellate Advocate and discussed discovery of net worth.   I noted that the Relators from the In re Jacobs case had filed a petition for writ of mandamus with the Texas Supreme Court revisiting the Court's opinion in Lunsford v. Morris, and asking whether additional protections should be implemented to protect parties from overly invasive discovery requests into net worth.

Today, the Texas Supreme Court has set the petition for writ of mandamus for argument at a date to be determined later.  The Court's order may be found here.  The briefs in the case may be found at this link.  Accordingly, it appears that after many years of waiting (and false starts), practitioners may finally get some additional guidance from the high court on discovery of net worth.

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The Dallas Bar Association's Appellate Law Section is having its monthly CLE luncheon on Thursday, June 17th at Noon at the Belo Mansion.  This month's speaker is K&L Gates attorney Chris Kratovil.   Chris will be speaking on "Federal Mandamus and the East Texas Venue Wars."

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With e-filing in the court of appeals right around the corner, there was a lot of talk about technology and e-briefs at the UT appellate CLE earlier this month.  Some Texas Supreme Court justices even discussed their use of technology (Chief Justice Jefferson reads petitions for review on his Kindle), as well as their favorite blogs.

Our friend Don Cruse over at Supreme Court of Texas Blog gave a great presentation with Supreme Court Clerk Blake Hawthorne about the future of briefing and how to publish a simple e-brief.  He links to the presentation here.  For all those following the trends, technology has caught up with the practice of appellate law.  Soon, e-filing will be mandatory (as it already is in the Fifth Circuit), and all records and briefs will be electronic.  Appellate lawyers should investigate the benefits of providing the courts with more resources to decide appeals.  And with the costs of e-briefs coming down, the expense argument has much less force today than a few years ago when e-briefs were cutting edge.  

The e-train is coming.  We better get on board.

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The Dallas Court of Appeals recently held that the statute of limitations is tolled in a legal malpractice case throughout the underlying case including the appeal, remand, and any new trial, and subsequent appellate proceedings.  In this case, the plaintiff filed a suit for legal malpractice and the defendant moved for summary judgment based on limitations.  The trial court granted summary judgment for the defendant on all claims.  On appeal, the court of appeals applied the Hughes doctine which requires tolling of limitations during the pendency of the case in which the alleged malpractice occurred.  Defendant argued that the Hughes doctrine only tolled limitations through the conclusion of initial appellate proceedings in the underlying case.  The court of appeals disagreed because the initial appeal resulted in a remand for a new trial and the underlying divorce case was on appeal for the second time.  The court noted that the "Hughes doctrine continues to apply for tolling purposes until all appeals in the underlying divorce are exhausted."  Thus, "litigation was still ongoing for tolling purposes."  Accordingly, the court of appeals reversed the trial court as to the professional negligence claim.  The court's opinion in Pollard v. Hanschen can be found at this link.   

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It's been a couple weeks since my last post--thanks to a bunch of deadlines.  Here's a little ditty I noticed discussing judicial foreclosures, and it got me to thinking up some interesting law-school type questions about the result.

The Dallas Court of Appeals affirmed a summary judgment awarding judicial foreclosure in Brown v. EMC Mortgage Corporation, but the court reversed the judgment insofar as the remedy that the trial court afforded.  The trial court had ordered the property to be sold by EMC at public auction.  But the court of appeals concluded that Civil Procedure Rule 309 requires that the order of sale issue to any sheriff or constable, directing him to seize and sell the property under execution.  And the court of appeals concluded that the trial court committed reversible error by rendering judgment otherwise.  The court's opinion may be found here.

So this opinion got me to wondering.  What if the appellants had not superseded the judgment during the appeal and the mortgage company had sold the property in accordance with the trial court's order?  Would the mortgagees have any remedy?  Would they have a claim for wrongful foreclosure?  Even if they had a claim, I wonder whether they could prove any damages.

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