The Houston Fourteenth District Court of Appeals has held that a party may recover attorney’s fees that were incurred by another party prior to the date the first party was served in the lawsuit.  In Clearview Properties, L.P. v. Property Texas SC One Corp., Clearview had litigated claims against Defendant Triple Net and others.  Later, as the discovery period was nearing completion, Clearview joined Defendant TRL, which retained the same attorney as Triple Net.  The trial court allowed TRL to recover attorney’s fees that Triple Net incurred prior to the time TRL was joined and Clearview complained on appeal.

The court of appeals overruled Clearview’s complaint regarding TRI’s recovery of fees Triple Net incurred.  The Court reasoned that TRL benefitted from some of the discovery work product and other work its counsel had already done for Triple Net, which saved on the need to conduct additional discovery, etc. for TRL.  The Court held that this result is supported by the Supreme Court’s opinion in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).

   

Continue Reading Attorneys’ fees recovery and preservation of segregation complaint

The Amarillo Court of Appeals‘ opinion in Block v. Mora could be a law school exam question.   The opinion may be especially  important to jury charge junkies.  Here are the essential facts:

Plaintiff places a spare tire on top of four 5-gallon buckets of hydrolic oil in the bed of his pickup truck.  He does not secure the tire.  Later that day, Defendant pulls her vehicle in front of Plaintiff’s pickup truck, causing her to collide with the front end of his truck.  On impact, the spare tire is propelled forward through the truck’s rear window, stricking Plaintiff in the back of the neck and shoulder and causing him injury.  Defendant admits that she was driving her mother’s vehicle without permission, she had no driver’s license, and the accident was her fault.

Plaintiff sues Defendant and Defendant asserts the affirmative defense of contributory negligence.  The trial court submits the following jury question:

Did the negligence, if any, of those named below proximately cause the injuries, if any, to Defendant?
Answer “Yes” or “No” for each of the following:
a. Defendant _______________
b. Plaintiff _______________
 

The jury answers "Yes" for Plaintiff and "No" for Defendant and the trial court renders a take-nothing judgment.  On appeal, Plaintiff complains that his negligence should not have been submitted because there was no evidence he was contributorily negligent.

Continue Reading Proportionate Responsibilty: What is contributory negligence?

Results for the 2008 Board of Legal Specialization Exam are out.  The number of board-certified appellate practitioners swelled considerably.  By my count, we have 11 new board-certified appellate practitioners.  Congratulations go to the following:

Michael Truesdale (Austin)
Leane Medford (Dallas)
Blake Hawthorne (Austin)
James Pinson (Dallas)
Bruce Thomas (Dallas)
Vance Wittie (Dallas)
Alessandra Ziek (Austin)
Chad Forbes (Houston)
Hilaree Casada (Dallas)
Richard Phillips (Dallas)
Beth Squires (San Antonio)
 

The Waco Court of Appeals recently held, once again, that parties should obtain written orders on objections to summary judgment evidence in order to preserve error for review on appeal.  The Court went on to analyze when rulings are implicit and held that while rulings can be inferred, they can only be inferred from the record of which the docket sheet is not a part.  As a result, the Court treated the objections as not having been ruled upon.  The Court’s opinion in Willis v. Nucor Corp. can be found at this link.

The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act.  In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act.  The Court observed that the San Antonio Court of Appeals, the Amarillo Court of Appeals, and the Waco Court of appeals each have treated the elements of a whistleblower claim as jurisdictional.  However, the Houston First Court of Appeals, the Austin Court of Appeals, the Dallas Court of Appeals, and the Corpus Christi Court of Appeals each have concluded that the elements of a claim are not jurisdictional.  The Fourteenth Court of Appeals joined the latter group and held that waiver of immunity from suit is not dependent upon the merits of the claim.  The Court went on to hold that the trial court had not erred in denying the school district’s plea to the jurisdiction. The Court’s opinion may be found at this link.

In light of the split of authority, this issue would seem to be ripe for resolution by the Texas Supreme Court.   And it appears the supreme court may address this issue in State of Texas v. Lueck, No. 06-1034.  The Court has granted the petition for review and this issue is one of two presented.  The case was argued November12, 2008.  Briefs in the case may be found at this link.  The oral argument may be found at this link.

On January 30, 2009, the Tarrant County Appellate Section is sponsoring a Brown Bag Seminar at Texas Wesleyan Law School in Fort Worth entitled "Fighting the Forum: Avoiding Litigation in Texas State Court."  Topics will include Special Appearance, Forum Non Conveniens, Arbitration, Forum Selection Clauses, and Removal and Remand–all topics that are near and dear to appellate practitioners.

The seminar will be held at the Texas Wesleyan University Law School, 1515 Commerce St., in Fort Worth, TX.  Registration begins at 12:00pm.  The seminar will conclude at 4:45pm with a reception to follow. 

Early registration is $70 for TCBA members, $95 for non-members.  Late and on-site registration is $75 for TCBA members and $100 for non-members.  For additional information, contact Sherry Jones at 817-338-4092.

The State Bar of Texas is sponsoring its 2009 Practice Before the Supreme Court on April 17, 2009, in Austin Texas.   The one-day course will be held at the AT&T Executive Education and Conference Center located at 1900 University Avenue.

The course will cost $325 ($275 for early bird registrants) and is worth approximately 5.5 hours of CLE credit.  A tentative brochure for the program may be found at this link.

Does a party waive its right of appellate complaint by failing to bring an interlocutory appeal when a right of interlocutory appeal exists?  At least one court of appeals has answered that question in the affirmative and one court has answered that question in the negative.  It now appears that the Dallas Court of Appeals may have implicitly held that an interlocutory appeal is required. 

In 2007, in Matis v. Golden, 228 S.W.3d 301, 305 (Tex. App.–Waco 2007, no pet) , the Waco Court of Appeals considered an appeal challenging the denial of a special appearance.  Although there is a statutory right of interlocutory appeal under Texas Civil Practice and Remedies Code Section 51.014(a), the appellant did not bring an interlocutory appeal, instead waiting until the conclusion of the whole case.  Waco considered whether the complaint was waived by virtue of the failure to bring an interlocutory appeal and concluded that there was waiver.  The majority’s opinion may be found at this link.  Chief Justice Tom Gray’s dissent may be found at this link. 

The Austin Court of Appeals expressly rejected Waco’s approach in GJP, Inc. v. Ghosh, 251 S.W.3d 854, 866-67 (Tex. App.–Austin 2008, no pet.).  The court’s opinion may be found at this link.  

The Dallas Court of Appeals may have joined Waco’s view.  In TCI West End, Inc. v. City of Dallas, TCI brought an interlocutory appeal challenging the trial court’s orders granting pleas to the jurisdiction filed by the City of Dallas and the Texas Historical Commission.  As to the Texas Historical Commission, the trial court had granted pleas to the jurisdiction with respect to 3 of TCI’s claims.  In its interlocutory appeal, apparently TCI challenged the trial court’s order with respect to 2 of the claims it asserted against the City, but TCI did not challenge the dismissal of its claim against the City under the Texas Private Real Property Rights Preservation Act.  With respect to this latter unchallenged ruling, the court affirmed the dismissal, effectively precluding TCI from challenging the dismissal of that claim at the conclusion of the case.  In support of its affirmance, the Court cites as an example Freeman v. Stephens Prod. Co., 171 S.W.3d 651, 657 (Tex. App.–Corpus Christi 2005, pet denied).  However, Freeman is not an interlocutory appeal.

Assuming the Dallas Court of Appeals intended to find waiver of a challenge to the ruling on the Texas Private Real Property Rights Preservation Act claim, one might distinguish TCI on the basis that it involves a circumstance in which the appellant actually invoked its interlocutory appellate rights, and having done so, the appellant might be expected to challenge all rulings over which the appellate court would then have jurisdiction.  The TCI opinion may be found at this link.

On Thursday, January 15, 2009, the Dallas Bar Association’s Appellate Law Section, ADR Section, and  Judiciary Commitee will honor retiring Dallas Court of Appeals Justice Mark Whittington for his 25 years of service to the judiciary.

A luncheon will be held at Noon at the Belo Mansion.  The regular luncheon buffet will be available ($12.76).  No RSVP necessary.

In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation.  In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages by the jury, and section 41.0105 applies to recovery of damages by the claimant, section 33.012(a) should be applied first.  In addition to the distinction between damages and recovery, the Court relied on section 41.0105’s introductory phrase, "in addition to any other limitation under law" to support its holding that section 41.0105 gets applied last. 

The order of application can have significant consequences.  In this case, the jury found damages of $89,000, but found that the plaintiff was responsible for 50% of his damages.  Plaintiff had actually incurred just over $45,000 in medical expenses.  The trial court reduced the damages assessed by 50% resulting in damages of $44,500.  Since this amount was less than the medical expenses actually incurred, section 41.0105 did not apply.  Had the trial court applied section 41.0105 first, the damages would have been reduced to about $45,000, which would have been subject to further reduction by 50% under section 33.012(a).  The result would have been a judgment for $22,500 instead of $44,500, or as the Court notes, a $22,000 difference.  The Court’s opinion in Irving Holdings, Inc. v. Brown can be found at this link.