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.

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.

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.

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.   

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.

The San Antonio Court of Appeals recently disqualified former court of appeals Justice Sarah Duncan and her law firm–Locke Lord Bissell & Liddell LLP–from representing a Relator in an original proceeding pending before that court of appeals.

According to the facts in In re Brittingham, when she served on the Fourth Court of Appeals, Justice Duncan participated in two separate appeals taken from the underlying probate proceeding.  After she left the bench, she made an appearance as counsel in an original proceeding filed in the Fourth Court of Appeals and relating to the same probate proceeding.  The Real Party in Interest, Kevin Mackie, moved to disqualify Justice Duncan and her law firm.

The court of appeals grants the motion to disqualify and addresses several interesting issues.  First, the court discussed what is a "matter" under Texas Disciplinary Rule of Professional Conduct 1.11, and it rejected a narrow interpretation that would have treated an original proceeding as a separate matter from the underlying proceeding or from prior appeals taken from the same underlying proceeding.  Next, the court discusses what disclosure is required in order for the opposing party to consent to the conflict, and the court holds that the mere listing of Justice Duncan on a brief in the original proceeding is not disclosure of the conflict.  Third, the court concluded that the Real Party in Interest was not required to show prejudice (how could he since judicial discussions occur behind closed doors?).  Finally, the court holds that the disqualification of Justice Duncan required disqualification of the law firm under Rule 1.11(c).  The court’s opinion may be found here.

Although we have known since last year that Justice Harriett O’Neill did not intend to seek re-election in 2010, she had not yet announced when she would leave the bench.  That announcement came on Friday when Justice O’Neill notified Governor Perry that she will leave the Texas Supreme Court on June 20 after more than a decade of service on the Court.  She has not yet announced her future plans.  

 The Court’s press release may be found here.

On a personal note, I am sad to see Justice O’Neill leave the bench.  Female role models are hard to come by.  So I look forward to hearing what she plans to do next and wish her well.  

 When Leland Dykes proposed to his girlfriend, Pepper Lee, he did so with a $26,000 diamond engagement ring in tow. He also bought a house for Pepper and put it in Pepper’s name. Leland protected his interest in the house through a Property Agreement with Pepper, but did not get a pre-nup covering that pricey ring. So, when the couple split and Pepper kept the ring, Leland sued…. and won. 

The jury awarded Leland $110,000 for the real property and $13,000 as conversion damages for the ring.  But Pepper appealed, asserting that Leland’s testimony that he paid $26,000 for the ring was legally and factually insufficient to support the jury’s finding that the reasonable cash value of the ring at the time of conversion was $13,000. The Fourteenth Court of Appeals agreed with Pepper, holding that evidence of purchase price constituted no evidence of fair market value at the time of conversion and rendering a take nothing judgment against Leland on the conversion claim. 

To reach this conclusion, the court rejected contrary rulings from other intermediate appellate courts, construed the Texas Supreme Court’s opinion in Redman Homes, Inc. v. Ivy as authority for their holding, and determined that Pepper’s failure to object to the evidence of purchase price did not convert otherwise inadmissible evidence into sufficient evidence to support the verdict. The court also opined that Leland could have presented sufficient evidence if he had simply testified to what he considered to be the value of the ring at the time of conversion. 

So, what’s the bottom line? Take some time on the front end to decide what evidence you need to present to a jury to support your damages.   Although Leland won the case, he didn’t give the jury the evidence it needed to support all of its answers. By spending time on the front end figuring out what the value truly was at the time of the conversion, he could have won it all.  Instead, Leland is out the money he paid for the ring, and Pepper walks away a partial winner with a sparkly diamond as proof.  The court’s opinion can be found at this link.

Byron Henry and I are pleased to announce that Hilaree Casada has joined the Appellate Practice Group at Cowles & Thompson.  Hilaree has distinguished herself among appellate practitioners.  She was recently named by D Magazine as one of the Best Women Lawyers in Dallas.  She is one of nine appellate practitioners on that list. 

Cowles & Thompson now has three attorneys who are board-certified in Civil Appellate Law by the Texas Board of Legal Specialization. Hilaree’s addition to the firm means that we will have another blogger for our appellate blog.  What that means for you–our audience–is more content.