The Fort Worth Court of Appeals issued a couple of opinions in Young v. Thota addressing an alleged jury charge error.  In this medical negligence case, the alleged charge error relates to whether the trial court should have submitted an issue asking whether the plaintiff was contributorily negligent or whether the plaintiff’s acts raised mitigation of damages questions.  The majority concludes that it was error to submit the plaintiff’s contributory negligence, while the dissent argues that it was proper to submit the question.  This discussion in itself may merit further review.

Perhaps the more interesting disagreement between the majority and the dissent relates to the analysis of harmful error.  The majority concludes that harm occurred because of the submission of an improper contributory negligence question along with an improper inferential rebuttal instruction on new and independent cause.  The dissent argues that it is clear that if any error occurred, it was not harmful.  The dissent points to the negligence question in which the negligence of Dr. Thota and Ronnie Young were submitted in the same question, but with two separate answers.  Because the jury found no negligence attributable to Dr. Thota and found Young negligent, the dissent concludes there was no commingling so as to trigger a presumed harm analysis.  The Court’s opinions may be found at this link. 

In an otherwise lengthy opinion, the Fort Worth Court of Appeals provided a reminder to civil practitioners regarding the difference between failure of consideration and lack of consideration.  The Court noted:

[L]ack of consideration refers to a contract that lacks mutuality of obligation.  Failure of consideration, however, occurs when, due to a supervening cause after an agreement is reached, the promised performance fails.  The distinction between the two is that lack of consideration exists, if at all, immediately after the execution of a contract while failure of consideration arises because of subsequent events.

The distinction is also important because failure of consideration requires a verified pleading under TRCP 93, while lack of consideration, as an element of the claim, does not.  The Court’s opinion in City of The Colony v. North Texas Mun. Water Dist. can be found at this link.

With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure.  Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed the petition and every factual statement is supported by competent evidence in the appendix or record.  Previously, Rule 52.3 required factual statements to be verified by affidavit, which sometimes presented difficulties for appellate counsel who might not have the requisite personal knowledge.

Despite the change in Rule 52.3, the Dallas Court of Appeals reiterates that a sworn or certified copy of the order or other document complained of still must be included in the appendix to the petition.  An affidavit swearing that the order is "to my knowledge" a true copy of the original is an equivocal statement implying something less than personal knowledge and it does not comply with the requirement for sworn copies.  The Court’s opinion may be found at this link. 

The Amarillo Court of Appeals recently confronted an issue not addressed by the appellate rules.  While Rule 38.8(a) applies in the event the appellant fails to file a brief, the rules are silent with respect to an appellee’s failure to do so.  The Court weighed its options:

Appellees’  failure to file a brief leaves this Court with several mutually unpleasant options.  On the one hand, we could accept [appellant’s] arguments at face value and summarily reverse.  On the other hand, we could abandon our role as impartial jurist and become an advocate for Appellees by advancing arguments in order to affirm.  Neither option is acceptable.

The Court decided to follow other courts of appeals that have faced this dilemma and "conduct an independent analysis of the merits of the appellant’s claim of error, limited to the arguments raised by the appellant . . . ."  The Court made clear that by doing so, it was not acting as an advocate for the appellees.  The Court went on to affirm the trial court.  The Court’s opinion in Dillard’s, Inc. v. Newman can be found at this link.

Here’s an interesting factoid you can make use of to amaze and astound your opposing counsel.  The Best Evidence Rule, Texas Rule of Evidence 1002, applies only when the the originals are located in Texas.  It’s true.  It surprised me too. 

Kerlin v. Arias, a per curiam opinion issued by the Texas Supreme Court on November 14, 2008, has some interesting allegations and facts relating to challenges to historical chain-of-title to property on South Padre Island and some more routine reaffirmations of what must be contained in affidavits to constitute an affidavit.  But what jumped out at me was the holding that Petitioners did not need to produce the original of a deed located in Mexico in response to a Best Evidence objection.  Why?  Because the Best Evidence Rule has an exception set out in Rule 1004.  The Best Evidence Rule does not apply when "no original is located in Texas."

Following rendition of a final, appealable judgment, does a notice of appeal have to name all preceeding interlocutory orders as a prerequisite to complaining of those orders?  Apparently not.  This has been a question of concern for many appellate practitioners and it’s a question that’s been percolating around in the courts of appeals.  We now have an answer. 

In Perry v. Cohen, Defendants filed special exceptions to the Plaintiffs’ petition, which were sustained and the trial court ordered Plaintiffs to replead.  Subsequently, Plaintiffs filed an amended petition, and Defendants moved to dismiss because the amendment failed to comply with the order on the special exceptions.  The trial court dismissed Plaintiffs’ claims.

On appeal, Defendants argued that Plaintiffs had waived their complaints because their notice of appeal listed only the order of dismissal, and not the order sustaining the special exceptions.   The Texas Supreme Court held that Plaintiffs "were required only to state the date of the judgment or order appealed from–in this instance the order dismissing their suit."  The Court’s opinion also goes on to examine whether Plaintiffs also preserved error by challenging both orders in their brief and concludes under its rules requiring liberal construction of briefs that Plaintiffs preserved error.  The Court’s opinion may be found at this link.

The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified.  First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of a district judge when he heard the oral motion to disqualify.  Second, the court determined that a party is entitled to notice and hearing prior to disqualification.  The court stated:

While we agee that the alleged disqualifiying conflict is significant, if the disqualifyig status is proved, we disagee that one party’s bare allegation of the conflict is sufficient to establish disqualification as a matter of law when the opposing party is seeking to enforce its right to an evidentiary hearing on the constitutionally protected right to counsel of the party’s choosing.

The court of appeals’ opinion in In Re Lopez can be found at this link.

 

In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to inform him of the hearing. The letter did not contain a certificate of service.

Did the defendant receive proper notice?

The trial court did grant the summary judgment, but the Dallas Court of Appeals later overturned the judgment in a restricted appeal. Because summary judgment is such a harsh remedy, the court scrutinized the record and discovered that the plaintiff was dilatory in sending the notice of hearing letter.  As a result, the defendant only received 11 days notice of the hearing.  But Tex. R. Civ. P. 166a(c) requires that the non-movant receive notice 21 days before the hearing. So the court reversed the summary judgment and remanded the case back to the trial court for further proceedings.

Because the untimely notice was sufficient to overturn the judgment, the court did not reach the other complaints regarding service. One involved the lack of a certificate of service in the letter. Incidentally, if a party sends notice of a hearing by way of a transmittal letter as oppposed to a completed fiat, notice may be defective unless the letter contains a certificate of service.  See Tex. R. Civ. P. 21a.

We want to announce some upcoming continuing education opportunities of interest to Appellate Practitioners. 

The Dallas Bar Association, Appellate Law Section will have its monthly noon CLE on Thursday, November 20, 2008.  The keynote speaker is David Horan of Jones Day who will speak about Federal Interlocutory appeals.  Casey Kaplan of the K&L Gates firm will be the introductory speaker.  The meeting will occur at the Belo Mansion in Dallas, Texas.

The Collin County Bar Association will meet at noon on Friday, November 21, 2008.  The speaker will be Greg Lensing, Staff Attorney for the Dallas Court of Appeals, who will speak on Special Appearances and Personal Jurisdiction in Texas.  The meeting will be held at Ralph & Kacoo’s on Central Expressway in Allen, Texas.

Other upcoming seminars for Appellate Practitioners are listed below:

Continue Reading Continuing Education Opportunities

In a dispute over the assessment of costs on appeal, the Houston (First) Court of Appeals recently held that bond forfeiture cases are criminal as opposed to civil.  Accordingly, the court redesignated the two appeals at issue as criminal cases with the abbreviation "CR."  But for those hoping to avoid civil filing fees as a result of the court’s decision (see report at this link) — not so fast.  The court of appeals also held that civil filing fees may be assessed despite the cases’ new designation.  To top it off, the court held that costs could be assessed against the bond company under established criminal rules despite its success on appeal.  For those unfamiliar with Texas’s judicial system, the criminal vs. civil designation is important for reasons other than filing fees.  Texas has a bifurcated system with two courts of last resort, the Court of Criminal Appeals for criminal cases and the Texas Supreme Court for civil cases.  The court of appeals’ opinion in Safety Nat’l Cas. Corp. v. State of Texas can be found at this link.