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Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.

Tuesday, June 18, 2019

Hello! I Must Be Going!

It's been a good run, but I do not expect there to be new content here anymore. I am not quitting. I'll just now be doing my blawging from my law firm web page: https://www.mabryappealslaw.com/blog/ I presently expect to keep it up to preserve old content and links. Thank you all for your support.

Friday, April 26, 2019

Commercial Lease Breach Allows Termination and Texas Supremes Want More Detail to Support Attorney Fee Awards

Water seeps up through dialysis clinic's floor. Clinic's repair attempts stop helping. Clinic terminates lease early, moves, and leaves some rent unpaid. Clinic sues the landlord for breach of contract, breach of the implied warranty of suitability for use as a clinic, for a declaratory judgment that a casualty occurred in relation to the lease, that the landlord didn't fix it, and that the clinic had the right to terminate the lease. The landlord put forth affirmative defenses including waiver and prior material breach and counterclaimed for negligence and breach of contract. The clinic asserted its own affirmative defenses to the counterclaims.
The jury found that neither party had complied with the lease, that the landlord had breached first, and that the landlord had breached the implied warranty of suitability. Though the clinic had originally sought money, it did not ask the jury for a money verdict and so didn't get one. The trial judge ruled that the clinic had the right to terminate the lease.
The lease provided that in case of a lawsuit that the prevailing party would get reasonable and necessary attorneys' fees from the non-prevailing party. The clinic's lawyer testified that he had 20 years of litigation experience, that his standard rate was $450 per hour, that he had handled cases similar to this before, that a reasonable and necessary number of hours for a case like this would be between 750 and 1,000 hours, which made for a fee between 300 and 400 thousand dollars, but that this particular case cost more. More like $800,000, because his side had had to search through "millions" of emails and review "hundred of thousands" of documents during discovery, that more than 40 depositions were taken, and that there had been a 40-page motion for summary judgment. He said his opinion was based on the amount at issue, the case's complexity, and his knowledge and experience. The clinic got $800,000 for attorneys' fees at trial and additional conditional awards on appeal.
The landlord appealed. The Dallas court of appeals held that the landlord had waived error as to the trial court's allowance of termination of the lease.
In a unanimous opinion written by Justice Paul W. Green, the Supreme Court of Texas ruled that although the landlord had properly objected to allowing the lease termination, on the merits, termination of a lease was allowable in a case like this. It also ruled that although the clinic might not have been the prevailing party as a plaintiff in the case, because it didn't get any damages from its claim as a plaintiff under the lease-- it got no money, it was prevailing party as a defendant against the landlord's claims. However, the Supremes reversed and remanded the attorneys' fee award on the ground that the testimony in the case was insufficient. It was similar to the lodestar method of determining the attorneys' fees in the case but was not detailed enough to meet that method.
Hat tip to Houston civil appellate attorney Scott Rothenberg.
Rohrmoos Venture v. UTSW DVA Healthcare, No. 16-006 (Tex. Apr. 26, 2019).

Saturday, April 6, 2019

Badass Brett Busby Comes to the Supreme Court of Texas

Governor Greg Abbott appointed Houston Fourteenth Court of Appeals Justice Brett Busby in February 2019, and Busby was confirmed by the Texas Senate in March 2019. He had had about six years of experience on the Houston bench. He is presently the Chair of the State Bar of Texas Appellate Section and was formerly an adjunct professor at the University of Texas Law School, where he taught the U.S. Supreme Court Litigation Clinic.
Justice Busby clerked at the U.S. Supreme Court for Justice John Paul Stevens and also for retired Justice Byron R. White. He argued one case and briefed many others before the U.S. Supremes.. He also handled dozens of  Supreme Court of Texas appeals and the federal and Texas appellate courts while in private practice. He is Board Certified in Civil Appellate Law. He also clerked for Judge Gerald Bard Tjoflat of U.S. Court of Appeals for the Eleventh Circuit.
He grew up in Amarillo and Austin. He graduated with high honors from Duke University and Columbia Law School. 
He has chaired the Texas Access to Justice Commission’s Rules and Legislation Committee and also served on the Texas Supreme Court Advisory Committee. He also has been Chair of the State Bar Committee on Pattern Jury Charges for th Business, Consumer, Insurance, and Employment Volume. He is an elected member of the American Law Institute and writes and speaks frequently at continuing legal education conferences.
A life-long violinist, he is a member of the Houston Symphony Board. He is chair of its Artistic Affairs Committee and he previously chaired the Music Director Selection Committee. He plays in the first violin section of the Houston Civic Symphony and has served on the boards of the Post Oak School and the Foundation for Jones Hall.
Justice Busby is married. His wife is named Erin. He met her while clerking at the U.S. Supreme Court. They have two children.

Thursday, March 7, 2019

Finality in Federal District Judgments for Purposes of Appeal: the General Rule

Federal courts of appeals have jurisdiction of final U.S. district court judgments except where a decision may be directly reviewed by the Supreme Court of the United States.  SCOTUS said, in Hall v. Hall, No. 16-1150, Mar. 27, 2018, which I have cleaned up: "A final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The archetypal final decision is one that triggers the entry of judgment. Appeal from such a final decision is a matter of right. Under §1291, any litigant armed with a final judgment from a lower federal court is entitled to take an appeal, which generally must be filed within 30 days."

Friday, February 1, 2019

Former Justice of the Thirteenth Court of Appeals Greg Perkes Appointed to Chief Justice Dori Contreras's Old Seat There

Greg Perkes who had been on Texas's Thirteenth Court of Appeals from 2011 to 2016 was appointed Monday to fill the seat of Dori Contreras who had been raised from there by her election as Chief Justice. Justice Perkes will sit with the Edinburg panel- a red spot in the blue, blue expanses of the 20 counties of the Thirteenth Supreme Judicial District. Contreras had a year left on her old term. Love the tie.

Thursday, January 31, 2019

Counting Days in the State Appellate Courts of the Lone Star State

In Texas state appellate law, you calculate deadlines by counting the first day after a triggering event happens up until the last day of a period that is not a holiday, a Saturday or a Sunday. For example, the deadline to file a notice of appeal of a final criminal trial court judgment signed Wednesday, January 2, 2019, in which no motion for new trial nor motion in arrest of judgment was filed would be Friday, February 1, 2019. The time to file an appeal in such a case would be 30 days. The first day of the thirty would be Thursday, January 3, 2019, and the 30th day would be Friday, February 1, 2019. Barring a technical efiling problem, the notice would be late on or after midnight Saturday, February 2, 2019.
Let's try the hypothetical again, only this time let's have the judgment be signed Thursday, January 3. The first day to count would be Friday, January 4 and the 30th day would now be Saturday, February 2, 2019. Since the 30th day is now a Saturday, the period does not end but would go on to the next day which would be Sunday, February 3, 2019, which does not end the period and the deadline is moved yet one more day to Monday, February 4, 2019. Again, barring a technical efiling problem, the notice would be late on or after midnight Tuesday, February 5, 2019.
For a third time, the judgment is signed in Montgomery County on Thursday, January 17, 2019. The first day is Friday, January 19, 2019. The 30th day is Saturday, February 16, 2019- no good. The next day Sunday the 17th is no better. In this case, though, Monday the 18th is President's Day, a holiday in Jefferson County where the appropriate court of appeals sits, Beaumont's Ninth Court of Appeals. So it is no good either and the last day for filing the notice of appeal is Tuesday, February 19, 2019. Efiling willing, the notice would be late Wednesday, February 20, 2019, at or after midnight. Texas state appeals courts are pretty good about announcing their holidays. If the appellate court has not indicated on its web page whether or not a day is a holiday a good practical rule is that courts of appeals follow the holidays of the county in which they usually sit, and the highest state courts follow the state government holiday schedule. Parties with their backs against the wall may try to get, say, a state holiday counted when an appeals court was open. I shudder to think what would happen if the holidays of Nueces County, one home of the Thirteenth Court of Appeals, did not match with the holidays of Hidalgo County, the other home of the Thirteenth. Those are the nightmares of appellate nerds.

Wednesday, January 23, 2019

In Texas, Sometimes the Cops Can Hunt You Down with Your Cell Phone without a Warrant.

The Texas Court of Criminal Appeals in a unanimous opinion written by Judge Barbara Hervey held that evidence suppression is not a remedy for a violation of the federal Stored Communications Act or Texas Code of Criminal Procedure Art. 18.21 notwithstanding Texas Code of Criminal Procedure Art. 38.23, and, additionally, that no warrant is required to access a limited amount of real-time cell-site information from a defendant's wireless carrier.
Christian Vernon Sims, pictured above courtesy of The Paris News, was a suspect in his grandmother's murder. The grandmother's credit card had been used 80 miles north of the crime scene. A sheriff's deputy who was the investigating officer in the shooting returned to his office to seek a warrant for the cell phone information. It was a Thursday; it was before the close of business hours. A sheriff's deputy requested that Sims's phone be pinged without a warrant on an emergency basis. That deputy reported that 20 minutes passed before he got real-time information as to where Sims's phone was. The sheriff's office figured out what road Sims was taking, and local police forces along that road narrowed down where he was to a motel where he was arrested without incident. He moved to have the phone information suppressed, which the trial court denied, and he ended up pleading to a 35-year sentence, but with the right to carry the motion to suppress up on appeal. The Sixth Court of Appeals in Texarkana affirmed, and the Court of Criminal Appeals granted a petition for discretionary review.
The federal Stored Communications Act provides that its civil remedies are the only sanctions for a nonconstitutional violation of it. Neither the COA opinion nor the CCA opinion note that under Article Six, paragraph two of the United States Constitution, federal law trumps any state law at all-- even a state's constitution. So suppression on the basis of the Stored Communications Act was always a nonstarter.
The Court of Criminal Appeals ruled that Article 18.21 was made law after Article 38.23 and, so, supersedes it. Article 18.21 has been moved to chapter 18B of the Code of Criminal Procedure. This case was, of course, under the old law.
Though the United States Supreme Court case of Carpenter v. United States found that Carpenter's Fourth Amendment rights had been violated by the United States by its looking at 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day without a warrant based on probable cause. It said its ruling had nothing to do real-time information as in Sims's case and opines that exigent circumstances might arise in the case of a fleeing suspect as here. The CCA held, therefore, that Sims's case was not on all fours with Carpenter.
This case was wrongly decided. There was not any exigency excusing the lack of a warrant. The suspect was already at least 80 miles away. He was 16 years old and had killed his grandmother-- no reason to think that he was a great danger to others. He was driving in a car and was going to have to sleep. The record is clear that law enforcement could have a gotten a warrant. The court just did not want to rule in favor of a granny-killer.
To be fair to my friends in law enforcement, any prudent Texas agency is going to implement procedures to get a warrant in situations like this. It is a best practice and keeps the appellate prosecutors from having to go one or more extra rounds in a future case.