Often clients will ask me whether they should attend an oral argument.  I usually tell clients that it’s not expected and may even be distracting to the court and the lawyers, but I never tell clients that they simply cannot attend oral argument. 

An appellate colleague, Andy Korn, recently sent me a discussion of this very question, which I will upload for readers’ use.  It’s interesting that former Supreme Court Justice Jackson actively discourages bringing clients to oral argument in all cases.  In the future, I think I’ll share this document with my clients when they ask whether they should attend oral argument. 

The Dallas Bar Appellate Law Section will not meet at its regularly-scheduled time this month.  Instead, there is a special meeting this month to hear from author and Supreme Court advocate David O. Stewart.  Mr. Stewart will be speaking on Tuesday, September 11, 2012, at noon at the Belo Mansion.  He will be discussing his newest book, "American Emperor: Aaron Burr’s Challenge to Jefferson’s America."

Beginning this Wednesday, August 29, 2012, the Dallas Court of Appeals’s website begins a 9-week transition to a TAMES website. 

The Court’s notice may be viewed here.  The 2 main issues to be aware of are that (1) case information for cases filed after 2007 will not be available on-line until the information is uploaded during the 9-week process, and (2) you will need to re-do your v-notice subscriptions on the new system.

 

 

 

How and when does an attorney-client relationship form?  The Dallas Court of Appeals says that the attorney-client relationship is contractual in nature and may be either express or implied.  But the relationship must be based upon an intent by BOTH parties to create such a relationship and it is insufficient to create an attorney-client relationship based upon one party’s subjective belief.

In Kiger v. Balestri, Kiger sued Balestri for breach of fiduciary duty and alleged that Balestri revealed confidential and trade secret information that Balestri obtained during an attorney-client relationship with Kiger.  The court of appeals affirmed a summary judgment in favor of Balestri and concluded that there was no fact issue raised as to the existence of an attorney-client relationship between Kiger and Balestri.  The facts showed that Balestri had previously represented companies that Kiger had a financial interest in, but Balestri never represented Kiger personally.  Further, Kiger contacted Balestri about the idea that was the subject of the dispute at a time that Balestri was not practicing law, and the exchanges between the two failed to show any effort to retain Balestri or to show that an express or implied attorney-client relationship was formed.  And even if such a relationship had been formed, the Dallas Court of Appeals holds that the relationship would have terminated upon completion of the purpose of the employment absent an agreement to the contrary.  The court’s opinion may be found here.

The Fort Worth Court of Appeals will begin accepting electronically-filed documents in appeals and original proceedings through the texas.gov portal on Monday, August 6, 2012.  Electronic filing is voluntary at this time.  The court previously adopted local rules addressing electronic filing.  In addition, further information about e-filing may be found on the court’s website.

The Dallas Court of Appeals recently decided a case in which it held that it was mandatory for the trial court to grant a trial amendment. The opinion is interesting because its procedural facts suggest other scenarios in which a mandatory trial amendment might be required.

The basic dispute was a contract dispute between Dallas City Limits Property (DCL) and Austin Jockey Club (AJC) involving DCL’s purchase of Longhorn Downs, a subsidiary of AJC.  After the agreement fell through, DCL sued AJC for breach of contract, and AJC counterclaimed for breach of contract.  The salient allegations related to a claim for declaratory judgment that AJC asserted by which AJC contended that its termination of the agreement was justified when DCL breached the agreement.  At the close of trial, AJC announced that it was non-suiting this particular claim.  DCL objected to the non-suit and sought a trial amendment asking for the inverse proposition, i.e. that AJC’s notice of termination was ineffective.  The trial court refused DCL’s requested trial amendment, and a jury returned a verdict in favor of AJC.

On appeal, the court of appeals held that the requested trial amendment was mandatory.  The amendment was requested after the close of trial and the issue had in effect been fully tried.  Neither party was prejudiced by the trial amendment.  By non-suiting its declaratory judgment, AJC prevented the trial court from considering the inverse proposition of the declaratory judgment which was the legal effect of the jury’s breach findings on AJC’s termination of the Agreement. The non-suit would have deprived DCL of this defense; thus, the court of appeals held that the amendment was mandatory.  Because contract disputes frequently involve mirror-image disputes, this opinion may be important in many such contract disputes.

The court’s opinion in Dallas City Limits Property Co. v. Austin Jockey Club, Ltd may be found here.

Lest anyone forget, today is the start of early voting for the run-off elections and there are a few judicial positions still up for grabs.

Early voting runs between Monday, July 23rd through Friday, July 27th.  The election day for the run-off is Tuesday, July 31st.

The Texas Supreme Court recently set In Re Nalle Plastics Limited Partnership for oral argument indicating that it will decide whether attorney’s fees must be superseded pending appeal.  The Court will resolve a split of authority that has developed in Texas courts of appeals as to whether attorney’s fees consitute "compensatory damages" under Texas Rule of Appellate Procedure 24.2 and Texas Civil Practice and Remedies Code sec. 52.006.

Five Texas courts of appeals have addressed this issue.  The Dallas and Austin courts have held that attorney’s fees are not compensatory damages, and, thus need not be superseded while the case is on appeal.  My prior post on the Dallas decisions is here.  The Houston (1st), Corpus Christi, and El Paso courts have held to the contrary.

The Texas Supreme Court’s order setting the case for argument can be found here and the parties’ briefing in the case can be found here.  A date for the oral argument has not yet been determined.