Texas Appellate Watch

Texas Supreme Court weekly orders (5/18/12)

In its orders this week, the Texas Supreme Court issued four new opinions and granted review in three cases. Click here to read the order list.

Here are the four new opinions:

1.  Texas Dep't of Ins. v. American Nat'l Ins. Co. -- The court held that stop-loss policies for self-funded health-benefit plans are direct insurance subject to state regulation.

2.  In re M.P.A. -- This is a habeas proceeding in a juvenile-delinquency case.  The court held that false testimony from a state expert witness entitled the petitioner to a new sentencing hearing. The petitioner was not entitled to relief on his claims of actual innocence and ineffective assistance of counsel.

3.  In re Allen -- In this mandamus case, the court held that the petitioner was entitled to seek compensation from the state for being wrongfully imprisoned.

4.  Andrade v. Venable -- The court held that Venable had no standing to complain that the Dallas County election ballot should not identify candidates by party or give voters the option to vote a straight party-line ticket.

Click here to access the four opinions.

The three cases in which the court granted review are as follows:

1.  Brookshire Bros., Ltd. v. Aldridge -- In this slip-and-fall case, a key issue is the propriety of a spoliation instruction that dealt with the grocery store's failure to retain a longer length of video from the store's security camera.  The store had preserved only 8 minutes right before and after the plaintiff fell. 

2.  In re Blair -- This case involves a currently incarcerated convict's request for compensation for having wrongfully served time earlier for a murder conviction. 

3.  Tracfone Wireless, Inc. v. Virgin Mobile USA, L.P. -- The question in this case is whether a prepaid wireless-telephone service must pay the statutory fee that funds the statewide 911 service for cell phones.

--  Scott Stolley, Thompson & Knight

Texas Supreme Court weekly orders (5/11/12)

The Texas Supreme Court issued one new opinion in its weekly orders on 5/11/12.  The court also granted review in one case.  Click here to read the weekly order list.

The opinion was in Thota v. Young, which involved an argument that there was Casteel error in a jury charge.  This is an important case, because the court found there was no Casteel problem in the charge, but also clarified what it takes to preserve Casteel error.  My partner Rich Phillips has already posted an entry on this blog, with a detailed discussion of the opinion.  Click here to access the opinion.

The case in which the court granted review is Tedder v. Gardner Aldrich LLP.  This is a family law case involving attorney's fees and the liability of one spouse for the other spouse's debt. 

--  Scott Stolley, Thompson & Knight

Supreme Court of Texas Again Addresses the Reach of Casteel Error

Although it has been twelve years since the Supreme Court decided Crown Life Ins. Co. v. Casteel, lower courts and litigants still struggle with its application in some circumstances. Today, the Court held that Casteel's presumed harm analysis does not apply to a single-liability-theory question that also includes an answer blank for contributory negligence and inferential rebuttal instructions. The Court's opinion in Thota v. Young, No. 09-0079, is available here.

In this medical malpractice case, the trial court submitted a single liability question that asked the jury whether either the doctor or the patient was negligent. The question also included inferential rebuttal instructions on unavoidable accident and new-and-independent cause. The plaintiff objected to the submission of contributory negligence and the inferential rebuttal instructions. The jury found that the doctor was not negligent and that the patient was negligent.

The court of appeals held that the trial court abused its discretion by including the question on contributory negligence and the instruction on new and independent cause. The court of appeals then held that harm should be presumed under Casteel, distinguishing the case from Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753 (2006) (holding that Casteel's presumed harm analysis does not apply to inferential rebuttal instructions). The court of appeals reasoned that the difficulty in this case arose from the combination of the improper instruction and the improper submission of contributory negligence.

The Supreme Court first held that Casteel error can be preserved without specifically mentioning Casteel or complaining about broad-form submission. Because the plaintiff's complaint was that the contributory-negligence question and the inferential-rebuttal questions should not have been submitted at all, "Young did not have to cite or reference Casteel specifically to preserve the right for the appellate court to apply the presumed harm analysis, if applicable, to the disputed charge issues."

But the Supreme Court then found that the court of appeals should not have applied the presumed harm analysis at all. The Court first noted that there was no Casteel-type difficulty created by the submission of the contributory-negligence question because there were two answer blanks in the question. In other words, it is clear what the jury found on both liability theories because they had to answer each theory separately. The Court then reaffirmed its holding in Urista that inferential-rebuttal instructions are not subject to Casteel because the solution to Casteel error is to granulate the submission, but inferential rebuttals cannot be submitted as separate questions. Finally, the court rejected the argument that the combination of the question and the instruction implicated the concerns present in Casteel.

-- Rich Phillips, Thompson & Knight

Judicial Candidates Forum (5/10/12)

The Dallas Bar Association is holding a Judicial Candidates Forum at the Belo Mansion on Thursday, May 10, 2012 at noon.  This is a good opportunity to learn about the candidates for judicial office in Dallas County and at the Dallas Court of Appeals. 

--  Scott Stolley, Thompson & Knight

Texas Supreme Court weekly orders (5/4/12)

The Texas Supreme Court issued no new opinions or grants in its orders this week.  Click here to read the order list.

--  Scott Stolley,  Thompson & Knight

Recapturing Your Writer's Ethos

My latest article, entitled "Recapturing Your Writer's Ethos," was just published in the May issue of the Dallas Bar Headnotes. In this article, I point out that a writer's character will shine through the writing, but that legal writing often lacks character and a sense of who the writer is.  Yet persuasion can often turn on selling yourself.  Thus, lawyers should learn to let their writing reflect their ethos.  In the article, I list some ways to accomplish this. 

Click here to read the article.

--  Scott Stolley, Thompson & Knight

DRI Appellate Seminar (6/21-22/12)

The Appellate Advocacy Committee of DRI-The Voice of the Defense Bar will be presenting its 10th appellate advocacy seminar on June 21-22, 2012 in Boston.  From having been involved with this group for about 15 years, I can tell you that DRI consistently presents a top-notch appellate program that rivals any program on the market.

You do not have to be a DRI member to attend. You can click on the following link to view the seminar brochure.  Download DRI Appellate Seminar Brochure

--  Scott Stolley, Thompson & Knight

Texas Supreme Court issues one new opinion

In its weekly orders (4/27/12), the Texas Supreme Court issued just one new opinion.  Click here to read the weekly order list.

The new opinion is In re Palomo, in which the court granted mandamus to keep a district-court candidate on the ballot.  The court held that the record did not conclusively prove that the candidate had not met the requirement of practicing law for the previous four years.  To access the opinion, click here.

--  Scott Stolley, Thompson & Knight

Book signing tomorrow (4/28/12)

Dallas attorney and author Talmage Boston, of the Winstead firm, has a book signing tomorrow for his newly published book, "Raising the Bar: The Crucial Role of the Lawyer in Society."  Talmage is a great writer and a thoughtful commentator.  His new book explores the meaningful and important role that lawyers play in American society. 

The book signing is tomorrow (Saturday, 4/28/12) at the Logos Bookstore in Snider Plaza in University Park from 1:30 to 3:00.  Click here to read about the new book and the book signing.

--  Scott Stolley, Thompson & Knight

Texas Supreme Court: Missing Jurat is a Waivable Procedural Defect

On Friday, the Supreme Court of Texas issued its opinion in The Mansions in the Forest L.P. v. Montgomery County, No. 10-0969. Download the opinion here. The court decided that if a party does not object to a summary-judgment affidavit that lacks a jurat, the defect is waived.

Defects in summary-judgment affidavits come in two flavors: substantive and procedural. Substantive objections can be raised for the first time on appeal. Procedural objections must be raised in the trial court or they are waived. One way to think about the difference between substantive and procedural objections is that procedural objections relate to the admissibility of the evidence and substantive objections relate to competence of the evidence. Another way to think about the difference is that procedural defects are those that could be corrected if pointed out, but substantive defects could not be. But courts of appeals have not always agreed about which defects are procedural and which are substantive.

A jurat is a statement by an officer (usually a notary) stating that the writing was sworn before the officer. The Texas Supreme Court had held that a defective jurat was a procedural defect that must be raised or waived. Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex. 1995). But several courts of appeals had held that the complete absence of a jurat was a substantive defect that could be raised for the first time on appeal. See Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.—Eastland 1998, pet. denied); Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex. App.—Texarkana 1995, no writ); Tucker v. Atl. Richfield Co., 787 S.W.2d 555, 557 (Tex. App.—Corpus Christi 1990, writ denied); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex. App.—Houston [14th Dist.] 1989, no writ); Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex. App.—Houston [1st Dist.] 1987, no writ); Sturm Jewelry, Inc. v. First Nat'l Bank, 593 S.W.2d 813, 814 (Tex. Civ. App.—Waco 1980, no writ).

The Supreme Court has now addressed the issue of the complete absence of a jurat. In a per curiam opinion, the Court noted that neither the government code nor summary-judgment rule requires that an affidavit contain a jurat. They simply require that the affidavit be sworn to. While a jurat is one way to prove that the statement is sworn, it is not the only way.

The Court noted that the affidavit at issue did not contain a jurat or any other indication that it was sworn to. But the court held that any complaint about the affidavit was waived because it was not raised in the trial court. Although the result overruled opinions from several courts of appeals, it makes sense under either test to distinguish between substantive and procedural errors. The fact that the testimony is not sworn to affects its admissibility, not its competence. Moreover, the lack of a jurat (or other evidence that the statement is sworn) can be corrected if the defect is pointed out.

The Supreme Court's opinion specifically stated that the sponsoring party should have been given an opportunity to correct the defect. This may be an indication about how the Court would address preservation of error on other defects. The opinion also contains a nice summary of some key guiding principles behind preservation of error. I intend to cover those at more length in a future post.

-- Rich Phillips, Thompson & Knight