Remittitur on Rehearing

Posted on March 30, 2011 by Byron Henry

Talk about snatching victory from the jaws of defeat.  The Dallas Court of Appeals recently held that an appellee is entitled to voluntary remittitur on rehearing.  In this case, the court of appeals originally issued an opinion in which it found the evidence insufficient to support the amount of damages.  Because liability was contested, the court reversed the judgment and remanded the case for a new trial.  The appellee filed a motion for rehearing and requested a voluntary remittitur of a portion of the actual damages and prejudgment interest.  The court of appeals held that the "voluntary remittitur cures the reversible error and we accept it."  The court went on to vacate its judgment (but not its opinion) and enter a new judgment affirming the trial court's judgment as modified.

I wonder whether or not offering voluntary remittitur as an alternative in appellee's brief could ever be considered waiver.  There is some confusing authority as to when an appellee can present an argument for affirmance for the first time on rehearing.  While the better practice may be for appellees to offer the remittitur in their principal brief, this case supports the position that it's not too late on rehearing.  The court's opinion in Mesquite Elk's Lodge #2404 v. Shaikh can be found here. 

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March 2011 Appellate CLE Opportunities

Posted on March 14, 2011 by Mike Northrup

I've got a couple of interesting Appellate CLE opportunities to report this week.

First, the Dallas Bar Association Appellate Law Section is having its monthly luncheon on March 17, 2011 at noon.   Speakers include Dallas Court of Appeals Staff Attorneys Judy White, David Tobias, and Greg Lensing.  The subject of their talk is called "Something New, Something Blue: Navigating the New Greenbook and Bluebook."  They will also reveal some of their secret writing-style preferences.  One hour of CLE is available.  The meeting will be held in the Haynes and Boone Room at the Belo Mansion.

Second, the Criminal Law Section of the Dallas Bar Association is sponsoring an appellate seminar on Friday, March 18, 2011, at the Belo Mansion from 8:45 to 3:30.  A copy of the registration form is attached here for your convenience.

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Preserving error to complain of death penalty sanctions

Posted on March 8, 2011 by Mike Northrup

In a mandamus setting, it can sometimes be a challenge to ensure that you've brought forward all the documents and hearing transcripts required to establish an abuse of discretion.  The Houston Fourteenth District Court of Appeals has suggested the record in a death penalty sanctions case may need to be fairly comprehensive.  In In re Le, Le filed a petition for writ of mandamus asserting that the trial judge abused his discretion by assessing death penalty sanctions against her.  In a 2-1 split decision, the majority of the panel concluded that the mandamus record was incomplete such that it could not find any abuse of discretion.  Why?  Because death penalty sanctions necessarily require the court to look back at the whole history of the litigant's abuses and Le's record did not include all of the discovery hearing transcripts leading up to the sanctions hearing.  The majority also concluded that Le failed to advise the trial judge that a monetary sanction threatened her ability to continue the litigation.  The majority felt that this requirement was a necessary preservation predicate, and such effort would also establish the inadequate-remedy-by-appeal element of mandamus.  The majority's opinion may be found here.

Justice Christopher dissented, arguing that the monetary sanctions were almost three times the amount assessed in Braden v. Downey and included a future payment, and yet the Braden court found an abuse of discretion.  Justice Christopher also took issue with the plaintiff's conclusory affidavit that asserted that the plaintiff was prejudiced by delay in discovery, and she questioned whether that single statement could justify death penalty sanctions.  The dissenting opinion may be found here.

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Summary Judgment Affidavits: Form vs. Substance

Posted on March 1, 2011 by Mike Northrup

The difference between defects in the form of an affidavit versus defects in substance is not always clear and the appellate courts have not always agreed on what is substantive and what is not.  But the difference can be important.  As the Dallas Court of Appeals points out in Stone v. Midland Multifamily Equity Reit, A defect in the form of an affidavit requires an objection to the defect and a ruling on the objection in order to preserve the complaint for appellate review.  However, a defect in the substance of an affidavit may be raised for the first time on appeal.  In Stone, the court holds that a hearsay objection is a defect in the form of an affidavit that requires an objection and a ruling.  However, the Court holds that lack of personal knowledge is a defect in substance and may be raised for the first time on appeal.

The Stone opinion goes on to point out that mere rote recitals that an affiant "has personal knowledge" may not cut the mustard.  The affiant must disclose the basis upon which he acquired personal knowledge.  The affiant in Stone attested to his position with the company but the Court holds that the testimony was inadequate because it failed to state how the affiant's job duties and responsibilities would have afforded him knowledge about the execution of the documents that were in issue in the case.  Stone is an important reminder that it's important to focus upon the basics.  The court's opinion in Stone may be found here.

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