The U.S. Fifth Circuit Court of Appeals is preparing to amend existing rules and adopt new ones.  These amendments are mostly prompted by the movement toward electronic filing, which is projected to begin in December of this year.  But there are some proposed changes that could affect your malpractice premiums and you will want to begin familiarizing yourself with them now.   Counting of days will become actual days (inclusive of weekends).  The proposed rules are now open for public comment and may be found here.

When should a party specially except to the grounds of a summary judgment motion?  Should the non-movant specially except when the grounds are ambiguous?  Or if the grounds are not expressly present? 

The Dallas Court of Appeals addressed this issue in Garza v. CTX Mortgage Company, LLC. 

The Garzas sued CTX for various causes of action relating to CTX’s management and administration of the loan proceeds used to construct their house.  CTX successfully moved for summary judgment on all of the Garzas’ claims.  The Garzas appealed.

On appeal, the Garzas argued for the first time that CTX did not identify and negate an essential element of each of their claims.  CTX argued that the Garzas waived the argument on appeal because they did not specially except in the trial court.  Did the Garzas waive their right to contest the grounds of CTX’s motion?

According to the Court, the Garzas did not need to specially except because special exceptions to summary judgment grounds are only required when the motion is ambiguous.  Here, the motion simply failed to identify and negate elements of each of the Garzas’ claims, which is an issue that may be presented for the first time on appeal.

Here is the opinion.  

In its recent opinion in Perkins v. City of San Antonio, the San Antonio Court of Appeals stated "we disapprove of our conclusion in Wu [v. City of San Antonio],  regarding the applicable standard for reviewing the Board’s orders." (emphasis added).  By way of background Wu adopted a hybrid standard of review for a challenge to an administrative order, concluding that the review was a substantial de novo review that did not preclude consideration of additional evidence in existence at the time of the administrative hearing, regardless of whether the evidence was introduced at the administrative hearing.  In Perkins, the same court (different panel) holds that a pure substantial evidence review applies so that only the factual record before the administrative body may be used in determining whether substantial evidence supports the administrative body’s ruling.  The opinion in Perkins may be found at this link.

 Which standard controls future cases?  The Perkins panel doesn’t overrule Wu, which would send a definitive message that Wu should no longer be relied upon.  Instead, the Perkins panel "disapproves" of Wu.  It may be that the Perkins panel did not simply overrule Wu out of respect for an entirely different panel of the same court.  Perkins is a perfect example of when en banc consideration is appropriate.  Generally, en banc consideration by an appellate court is disfavored, but Appellate Rule 41.2(c) explains that it should be used to maintain uniformity of the court’s decisions.

How effective is a motion for summary judgment that has no evidence attached to it?  Not very.  Sometimes you can dodge a few bullets.  Ultimately, you will get hit.  That’s what happened in the Dallas Court of Appeals’ opinion in  American Board of Obstetrics and Gynecology, Inc. v. Yoonessi.

The American Board of Obstetrics and Gynecology ("ABOG"), a non-profit, sued one of its members, Mahmood Yoonessi, M.D., for breach of contract, abuse of process, and malicious prosecution.  This lawsuit was a response to lawsuits Yoonessi had filed against it in California and New York.

Yoonessi filed a traditional motion for summary judgment, but attached only ABOG’s original petition as evidence.  The court was able to use ABOG’s evidence attached in its response to dismiss the breach of contract and malicious prosecution claims.  However, Yoonessi was not so lucky with his abuse of process argument.

In the abuse of process argument, Yoonessi claimed that he used process to maintain a lawsuit "which is a proper use of service, regardless of the actual merits of the case."  But Yoonessi failed to provide any evidence that his use of process was proper.  Thus, the court of appeals reversed judgment on the abuse of process claim and remanded to the trial court for further proceedings. 

You may read this short opinion here.

 

When a party (or the party’s attorney) does not receive actual notice of an adverse judgment within 90 days of that judgment, the party may make use of Texas Civil Procedure Rule 306a to extend deadlines for filing a motion for new trial or to appeal.  But its important that the party invoking Rule 306a file a sworn motion, obtain a hearing on the motion, and get a finding of the trial court as to the date the party (or the party’s attorney) first received notice of the judgement.  The Waco Court of Appeals recently explained the consequences of the failure to do so in In the Matter of the Marriage of Rider & Rider.

After Beverly Jane Rider filed an appeal from a final decree of divorce, the clerk of the court noted that it appeared the notice of appeal was untimely.  Ms. Rider responded by pointing out that she did not receive a copy of the final decree until 29 days after it was signed and she filed a motion for new trial "pursuant to Rule 306a."  Noting that Ms. Rider never obtained a ruling on her motion, the court of appeals points out that she had not fully complied with Rule 306a(5), which requires a hearing, proof, and a ruling.  Accordingly, the court holds that the notice of appeal Ms. Rider filed was untimely and the court dismissed the appeal for lack of jurisdiction.  The opinion may be found at this link.

The San Antonio Court of Appeals has issued an interesting opinion in a mandamus proceeding involving what is described as an unsuperseded judgment.  In In re Romero, Gonzalez & Benavides, L.L.P., there was a dispute between the law firm of Romero, Gonzalez & Benavides (RG&B) and attorney Mark Cantu regarding the right to a portion of a settlement recovery.  The funds in question were placed into the registry of the court and the trial court subsequently ruled that the funds belonged to RG&B and signed a final judgment to that effect. 

After Cantu appealed, RG&B filed a motion seeking the release of the funds.  The trial court ruled that it would not release the funds while Cantu’s appeal was pending.  RG&B filed a petition for writ of mandamus seeking to force the release of the funds.

The court of appeals holds that the trial court abused its discretion because Cantu had filed no supersedeas bond to suspend execution on the judgment.  Appellate Rule 24.1 allows for the filing of a cash deposit in lieu of a bond.   Cantu could have deposited one year’s worth of post-judgment interest and court costs to be added to the existing funds on deposit with the court and arguably the judgment is fully suspended.   Or, the trial court could have ordered alternate or lesser security and held that the funds on deposit were sufficient to supersede the judgment.  I have not read the parties’ mandamus briefs to know of any of this was tried or argued, but from the court of appeals opinion, it does not appear as the trial court treated its order as an order regarding supersedeas (reviewable by motion rather than mandamus) and it does not appear that the parties asserted that the trial court’s order was an order relating to supersedeas.  Nonetheless, it seems as though Rule 24 provides a simple avenue for relief for Cantu.  The Court’s opinion may be found here.

Governor Perry has appointed Robert M. Fillmore to fill the seat on the Dallas Court of Appeals that was recently vacated by Justice Amos Mazzant.  Fillmore comes to the court of appeals from Hunton & Williams, LLP.  According to his recently-updated resume, his background is in regulatory law.  His appellate experience is described as "the supervision of litigation teams and appellate advocacy."   For the time being, his resume with the Hunton firm may be found at this link.  The Texas State Bar shows that he is a graduate of the University of Kansas Law School in 1977 and that his primary practice area is public utility law.  The appointment is subject to Senate confirmation.

The Collin County Bar Appellate Section will join with the Collin County Bar Association for a meeting at noon on May 15, 2009 at Ralph & Kacoo’s in Allen.  Our speaker will be Justice Douglas S. Lang from the Dallas Court of Appeals.  Justice Lang will discuss his book Deeds, Not Words, professionalism, and the relationships that have shaped and guided his distinguished legal career.  Attendees will receive a complimentary copy of Justice Lang’s book and one hour of ethics CLE credit.  Book quantities are limited, so come early.  The meeting is being hosted by Cowles & Thompson, P.C., Israel L. Suster Law Office, Law Office of George A. (Tony) Mallers, and Mosser Law PLLC.

The Dallas Bar Association Appellate Law Section will be having its monthly lunch meeting at noon on Thursday, May 21st at the Belo Mansion.  The keynote speakers are Assistant U.S. Attorneys Wes Hendrix and Leigha Simonton, who will speak on "Lessons for a Serial Fifth Circuit Litigant"

Also, the section will feature Texas Supreme Court clerk Blake Hawthorne and Supreme Court Rules attorney Kennon Peterson at its monthly meeting on Thursday, June 18th. 

The Texas Supreme Court recently held that Rule 193.6 of the Texas Rules of Civil Procedure applies to summary judgment proceedings.  Thus, any discoverable information, including expert information under Rule 194, that has not been properly disclosed or supplemented, should be excluded.  The Court stated that "the ‘hard deadline’ established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and the trial stage remains the same.  Accordingly, the 193.6 exclusionary rule applies equally to both proceedings."  This decision agrees with most courts of appeals that have addressed the issue except for Corpus Christi and Texarkana, both of which had declined to apply Rule 193.6 to summary judgment proceedings.  The Court’s per curiam opinion in Fort Brown Villas III Condominium Ass’n, Inc. v. Gillenwater can be found at this link.