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

The Dallas Court of Appeals, in an opinion by Chief Justice Carolyn Wright (left), recently held that attorney's fees awarded in a judgment need not be superseded on appeal.  In an opinion last year also by Chief Justice Wright, the Dallas Court held that attorney's fees awarded in a breach of contract case were not "compensatory damages," and, therefore, were not required to be superseded on appeal.  Here, attorney's fees were awarded under Chapter 134 of the CPRC, otherwise known as the Texas Theft Liability Act.  The Court held that Chapter 38 (regarding breach of contract) and Chapter 134 of the CPRC were basically indistinguishable noting that attorney's fees were mandatory under  both provisions.  The Court refused to follow the rationale of the Houston (1st) Court of Appeals, which had previously held that attorney's fees constitute compensatory damages and must be superseded on appeal. Consequently, the Dallas Court denied the Appellee's request to increase the supersedeas bond to secure the award of attorney's fees.  This creates a spilt of authority between Dallas and Austin, both holding attorney's fees need not be superseded, and Houston (1st), holding attorney's fees must be superseded, making it ripe for review by the Texas Supreme Court.   The Court's opinion in Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC can be found here.  

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When I don't want oral argument or don't think it is necessary, my standard operating procedure has been to (1) put nothing regarding oral argument on the front cover of my brief, and (2) include a Statement Regarding Oral Argument in the brief explaining why it has not been requested but adding a statement that, if the Court desires oral argument, then Appellant (or Appellee) would like the opportunity to appear and present argument.

I learned today that the clerks at the Dallas Court of Appeals would like something on the front of the brief regardless of whether you are requesting oral argument.  So, in the scenario above, I would (1) put something like this on the front cover: "Oral Argument Not Requested Unless Requested by Appellee and/or the Court," and (2) include the Statement Regarding Oral Argument in the brief as usual.

This will make the clerk's office happy because they won't have to dig through your brief to determine whether or not a motion to allow argument is necessary.  It should also alleviate the need to ever file such a motion.  A win-win for everyone! 

Happy briefing.

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The Fort Worth Court of Appeals has held that a party may recover for the loss of companionship or sentimental value of a dog.

In Medlen v. Strickland, the Medlens' dog escaped and was picked up by animal control.  The animal shelter represented to the Medlens that they would put a "hold" on the dog until a specific date, so that he wouldn't be euthanized.  Unfortunately, the shelter euthanized the dog prior to the date represented.  The Medlens brought suit and sought recovery for the "sentimental or intrinsic value" of their dog.  The district court dismissed on the ground that Texas does not recognize such a claim.

On appeal, the court of appeals discussed a 120-year-old Texas Supreme Court opinion, which is the only time it appears that court has addressed recoverability of damages for loss of a dog.  In that case, the court held that a party may recover either the market value of the dog, or some special or pecuniary value to the owner that may be ascertained by reference to the usefulness and services of the dog.  The Fort Worth Court of Appeals disagreed with the Austin Court of Appeals and held that the earlier supreme court opinion had not held that "special value" was derived solely from usefulness or services of the dog.  The court went on to conclude that "special value" should, and does, include sentimental or emotional value of the pet.  The court's opinion may be found here.

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