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

The opinion in Gonzalez v. Wells Fargo Bank, NA, reminds me of the philosophical riddle asking whether a tree that falls in the forest when nobody is there to hear it makes a sound.

In this appeal of a forcible detainer action, the appellant argued that Wells Fargo Bank had not controverted any of his evidence showing that he had a superior right to immediate possession of the property in dispute.  The Dallas Court of Appeals construed the appellant's complaint as a challenge to the sufficiency of the evidence to support the trial court's judgment.  The problem?  There was no reporter's record.  The court reporter advised the court of appeals that there was no hearing on the record.  The court of appeals concludes that without a reporter's record to show what the evidence was (or wasn't) there's nothing for the court to review.  This opinion underscores how essential it is to have a court reporter's record if you want to complain about the evidence or a ruling of the trial court.  Even when there's a reporter's record, the reporter's record should show the matter complained of.  Without a record at all, an appellant cannot possibly make the showing necessary to prevail.  The court's opinion may be found here. 

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The Texas Supreme Court has revisited statutory standard for determining when a parent is unemployed or underemployed for purposes of determining child support obligations.

Section 154.066 of the Texas Family Code provides that "[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor."  Most courts of appeals have required proof that the obligor was intentionally unemployed or underemployed for the purpose of avoiding child support.  This requirement appeared to have dealt with the spouse who was unemployed or underemployed for reasons quite independent from child support obligations.  This test has been discarded.

The Supreme Court observed that the phrase "for the purpose of avoiding child support" does not appear in the statutory language at all.  There is no intent element.  Therefore,  the court held, "there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment."  But never fear, the Court goes on to note that the statute includes the word "may" in it, which affords discretion in the trial court within the limits of the circumstances of the case to consider whether the obligor is attempting to avoid child support by becoming or remaining unemployed or underemployed.  The court offers up some shifting burdens of proof in this regard, while pointing out that the discretion afforded requires examination of laudable reasons for intentional unemployment or underemployment such as spending time with the children, living closer to the children, or providing the children with better health benefits.  Further, the Court points out that there must be a "significant" difference resulting from the underemployment or unemployment before the guidelines are triggered.  Thus, it appears that unemployment or underemployment will not automatically trigger application of the child support guidelines.  The Court's opinion in Iliff v. Iliff may be found here.

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There's been a spate of recent opinions involving enforcements of settlement agreements.  Byron reported on a couple of opinions earlier this week.  Today I report on Green v. Midland Mortgage Co. decided by the Fourteenth Court of Appeals in Houston.  There are four points in this opinion worthy of note:

• First, in an action to enforce a settlement agreement, you've got to have pleadings and proof.  [That seems obvious enough]
• Second, the court holds that parties can create an enforceable settlement agreement via e-mail exchanges [One of the many advances of modern technology]
• Third, a motion for summary judgment can be presented orally or by written submission, but if it is presented orally, no oral testimony may be adduced
• Finally, there is a difference between an agreed judgment or consent judgment and a settlement agreement.  A court cannot render an agreed judgment absent consent at the time it is rendered.

The court's opinion may be found here.

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Chief Justice Wallace Jefferson will present the "State of the Supreme Court" at the Dallas Bar Association Appellate Section's monthly meeting at the Belo Mansion.  The presentation will be at noon and is good for one hour of CLE credit.

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The San Antonio Court of Appeals recently decided two cases dealing with recovery of attorney's fees for breach of contract.  The court first held that a party who brings an action to enforce a Mediated Settlement Agreement (MSA) is not entitled to attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code unless the party also recovers damages.  More recently, the court confirmed that while a plaintiff that seeks attorney's fees as a "prevailing party" under a contract must also recover damages, a defendant may recover attorney's fees as a prevailing party by defeating the breach of contract claim.  These cases, relying on Texas Supreme Court precedent, confirm that parties seeking specific performance under a contract or MSA are not necessarily entitled to attorney's fees for merely obtaining enforcement of the agreement.  The court of appeals' opinion in Garza v. Villareal is here and the opinion in Fitzgerald v. Schroeder Ventures II is here.

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The Fourteenth District Court of Appeals in Houston has held that a corporation's jurisdictional contacts could not be imputed to a nonresident that succeeded to the corporation's contract rights.

Under the core facts in Motor Components LLC v. Devon Energy Corp., Pennzoil Company, a Delaware corporation located in Texas, contracted with its subsidiary, Purolator Products Company, a Delaware corporation located in Oklahoma.  Under the contract, Pennzoil agreed to indemnify Purolator for certain remediation costs of Purolator's real property located in New York and Michigan.  Motor Components, which is a Delaware corporation with its principal place of business in New York, succeeded to Purolator's rights under the contract by transactions not described in the appellate record.  Motor Components subsequently invoked certain provisions of the contract and called upon Pennzoil's successor-in-interest, Devon Energy Corporation, to respond.  Devon is a Delaware corporation with its principal place of business in Oklahoma.  Devon then filed a declaratory judgment action in Texas and sought personal jurisdiction over Motor Components.

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Texas Appellate Rule 52.3(k)(1)(A) requires that an appendix to a Petition for Writ of Mandamus must contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of.  Appellate courts are very strict in enforcing this requirement.  So much so that even when the Respondent trial judge does not dispute how she ruled, the court of appeals will not accept the petition for writ of mandamus unless the order is in the appendix.

Thus, the Dallas Court of Appeals denied a petition for writ of mandamus in In re Oncor Electric Delivery Co., where the relator had not produced a copy of the order complained of--specifically, the trial court's denial of Oncor's motion to join responsible third party.  Instead, Oncor pointed the court to the transcript of the hearing on Oncor's motion for rehearing of that issue wherein the trial judge recited at the outset of the hearing, "My understanding is, is that this is Defendant's motion to reconsider the court's denial of the responsible third-party motion."  The appellate court denied the petition for writ of mandamus due to the failure to provide a definite oral or written ruling of the denial of the motion to join responsible third party.  The court's opinion may be found here.

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The El Paso Court of Appeals issued an opinion this week that addresses, in part, application of Civil Practice and Remedies Code Section 41.0105.  There are two takeaways from the Section 41.0105 discussion.

First, the El Paso court joins the  majority of intermediate appellate courts in Texas holding that 41.0105 should be handled post-verdict. Frontera Sanitation, LLC v. Cervantes, No. 08-08-00330-CV, slip op. at 9 (Applying Irving Holdings, Inc. v. Brown, 274 S.W.3d 926, 930 (Tex. App.--Dallas 2009, pet. denied) and holding that "Section 41.0105 must be applied as a limitation on the fact finder's medical expenses award.").

Second, defendants must present the trial court with evidence of the expenses written-off in order to get a reduction in the expenses awarded.  Although this point seems self-evident, one of the challenges in addressing Section 41.0105 in the trial court is determining when and how to raise the Section 41.0105 issue and objection.  

To that end, I continue to suggest  the following approach when the trial court insists on allowing the jury to consider medical bills that show the amounts "initially incurred" (i.e., initially billed prior to any deductions):

1. Object to the admission of the unredacted, complete bills and move to  exclude any evidence of medical or health care expenses that were written off.  
    
2. Present an offer of proof on the record regarding the proper amounts
    
3. Make necessary objections and requests to the jury charge

For a detailed discussion of the state of this issue in Texas, please see the article written by Bryon Henry and myself, which is available here.

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