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Sunday, May 3, 2015

Defendant Trips in the Dance of Dominant Jurisdiction, But Gets Relief from Overbroad Discovery

In August 2014, Air Liquide Industrial, U.S. sent Gulf Coast Fabricators notices that four of its sources of argon had temporarily ceased production and declared a “Force Majeure Period” during which Air Liquide estimated it could provide seventy percent of Gulf Coast’s normal monthly product consumption.   On September 14, 2014, Gulf Coast files suit in the Jefferson County Court at Law Number One for a determination that the contract’s “Excuse of Performance” provision does not apply, that Gulf Coast has fully complied with its obligations under the agreement, that Gulf Coast has not breached the agreement, and that Gulf Coast and Air Liquide have no more continuing obligations under the contract. On October 14, 2014, Air Liquide sued for breach of contract in the 157th District Court of Harris County. On January 23, 2015, Air Liquide Large Industries, U.S., an affiliate of Air Liquide was sued for breach of contract in Jefferson County's 172nd District Court. Gulf Coast files a motion to abate in the Harris County case, but that court denied abatement.
Now, Gulf Coast moves to abate the County Court at Law case in the Harris County court, but is denied.
Air Liquide pleads in the County Court at Law that it-- the Court-- lacks jurisdiction and complains there of overbroad discovery. The County Court at Law maintained its jurisdiction and refused to limit the discovery, and Air Liquide  moves for a writ of mandamus in the Ninth Supreme Judicial District.
Where a dispute arises that could be tried in a number of courts, the rule that determines which of the courts have dominant jurisdiction is summarized in Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, (Tex. 1988).  The general rule is that the case which is filed first has dominant jurisdiction. There are three exceptions in Wyatt:
  • A plaintiff could lose the dominant jurisdiction by acting inequitably.
  • A court of subsequent filing could overcome the dominant jurisdiction of the court of first filing if a party is not part of the case of that first-filed change and cannot be joined.
  • A plaintiff could lose the dominant jurisdiction if it does not have the intent to prosecute the first-filed case.
The second court can take dominant jurisdiction if it finds that a Wyatt exception. Clawson v. Millard, 934 S.W.2d 899 (Tex. App.—Houston [1st Dist.] 1996) (orig. proceeding). “The proper method for contesting a court’s lack of dominant jurisdiction is the filing of a plea in abatement, not a plea to the jurisdiction[.]” In re Puig, 351 S.W.3d 301 (Tex. 2011) (orig. proceeding). The Beaumont appeals court held that the county court at law still had dominant jurisdiction, at least until an appeals court overturned the Harris County court's decision. The appellate courts for Harris County are the First and Fourteenth Courts of Appeal, while Beaumont's court of appeals supervise Jefferson County.
The per curiam judgment of  Justices Charles Kreger, Hollis Horton, and Leanne Johnson did not overturn the dominant jurisdiction, but did order the County Court at Law to curtail some of Gulf Coast's discovery requests-- no big surprise, since Gulf Coast's counsel admitted that some of the discovery requests were overbroad.
The court of appeals gave no opinion as to whether the suit in the County Court at Law was within the economic value of the county court at law's jurisdiction. The amount of the damages as to the County Court action was not mentioned. This may be why Air Liquide's motion was against that court's jurisdiction instead of its dominance.

Thursday, April 30, 2015

Beaumont Protects a Defense Verdict from a Trial Judge

A trial judge overrules a jury verdict in favor of the defendant in a personal injury action, and grants a new trial. The defendant brings a mandamus action in Beaumont's Ninth Court of Appeals to overrule the new trial order.
A trial judge has discretion to grant a new trial and can only be overruled if that judge abuses that discretion. However a new trial can only be granted if the reasons for the new trial are supported by the record.
A writ of mandamus is an extraordinary writ. It cannot issue if the aggrieved party has a remedy by way of appeal. By such a writ a court can force a government official to discharge a duty the official clearly has. The official can be the judge of an inferior court. The writ is not supposed to issue unless the official's duty is clear; you can't mandamus someone for a legitimate judgment call of the officer's discretion.
So the appeals court has to walk a tightrope-- it should disapprove only those new trial orders which are clearly unsupported by the record, but otherwise it should let them stand.
Willis Whisnant, Jr. was diagnosed with lung cancer in 1997. In 1998 he sued a contractor of a former employer, E.I. duPont de Nemours and Co., for injuries arising from exposure to asbestos. Whisnant died in 1999 before trial-- cause of death: lung cancer. Whisnant had smoked for 40 years. Around 2007, his experts testified that Whisnant had really died of mesothelioma-- an illness released to asbestos exposure. In December 2007, Whisnant's petition was amended to allege that he had died of mesothelioma, not lung cancer. Whisnant's case came to trial in March 2008 and went on for five weeks, at the end of which, the jury failed to find that duPont's negligence was a proximate cause of Whisnant's injuries. The trial court signed a take-nothing judgment April 17, 2008, then granted a motion for new trial without giving a reason. The Texas Supreme Court took the case up on mandamus and ordered the trial court to specify why it ignored the jury's verdict and granted the motion for new trial. On remand, the trial court signed another take-nothing judgment  on April 15, 2014, and then granted another motion for new trial stating that the jury’s failure to find
liability as to duPont was against the great weight and preponderance of the evidence.
DuPont applies for mandamus that the trial court abused its discretion in granting the motion for new trial and, per curiam, Chief Justice Steve McKeithen and Justices Charles Kreger and Leanne Johnson grant it conditionally. A conditional grant of a writ of mandamus means that the appeals court will not insult the trial court by formally forcing it to do the will of the court of appeals, but instead will monitor the trial court to see that it follows the appeals court's opinion. They will only actually issue the writ if the trial judge fails to take the hint that the opinion gives.
In re E.I. duPont de Nemours and Co., No. 09-14-00465-CV, (Tex. App.--Beaumont, April 23, 2015) (orig. proceeding)

Friday, April 24, 2015

A Civilly Committed Sexually Violent Predator Wants Out, though OSVOM is Opposed; What Does the Trial Judge Need to Do to Pour the Petitioner Out Fastest?

If a person is civilly committed as a sexually violent predator, that person has the right to file a petition for release, even if this petition is not authorized by the Office for Violent Sex Offender Management does not approve. Once the trial judge gets it, the trial judge must deny it "if:
(1) the petitioner previously filed without the case manager's authorization another petition for release; and
(2) the judge determined on review of the previous petition or following a hearing that:
(A) the petition was frivolous; or
(B) the petitioner's behavioral abnormality had not changed to the extent that the petitioner was no longer likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. sec. 841.123(c) (West 2010).
"The judge is not required to deny a petition under Subsection (c) if probable cause exists to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. sec. 841.123(d) (West 2010).
If the petition is not dismissed summarily, then the petitioner has a right to get an expert at the State's expense, and have a hearing. The petitioner may even insist on a jury to decide that hearing. Paul Keen filed his first unapproved petition for release. The trial judge dismissed it summarily, without holding the hearing that is required. It ruled that probable cause existed to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence.
Chief Justice Steve McKeithen, writing for a panel including Justices Charles Kreger and Leanne Johnson, pointed out that summary denial under subsection (c) was only available on a first petition if it were frivolous. A non-frivolous first petition had to go on to the fancy section 841.124 hearing. The trial judge had not found that Keen's petition was frivolous, just that it lacked probable cause, which is insufficient for summary dismissal.
In order to get to this ruling, the panel had to determine if it had appellate jurisdiction of the trial judge's decision. They decided that they did, that the trial judge's decision was final as to Keen's petition and that the trial judge's decision had left nothing undecided.
___ S.W.3d ____, In re Paul Keen, (No. 09-14-00406-CV, Tex. App.--Beaumont, April 23, 2015, no pet. h.)

Wednesday, April 15, 2015

Got a Texas State Trial Court Default Judgment? If It's Not Perfect, You Won't Get to Keep It.

Appellate courts don't like trial court default judgments, at least, not in Texas. And Texas state appellate courts have special procedures to reform them. Texas Rule of Appellate Procedure 30  provides that a party that-- basically-- doesn't participate in the trial litigation or timely objects under the usual appellate schedule (That is, Tex.R. App. Proc. 26.1.) has six months to file an appeal-- called a restricted appeal. If reversible error is clearly present on the face of the record, then the default judgment is undone. It doesn't take much error viz. Insurance Co. of the State of Penn. v. Lejeune, 297 S.W.3d 254 (Tex 2009) (per curiam) (clerk's endorsement of the return of citation lacked the time of service).
North American Marine, Inc. v. Charles Heard Law Firm. No. 09-15-00034-CV, (Tex. App.-- Beaumont, Apr. 9, 2015) (mem. op.) (no pet. h.)

Thursday, April 9, 2015

Court Reporters and Court Recorders and Recording Machines-- Oh my!; or How and Why the work of Court Reporters, Court Recorders, and Recording Machines Can Be Mission-Critical to the Trial Team

When trying a case or working in a deposition, before the proceedings begin, give the court reporter or recorder your business card with the name of your party on it. Unless it would give away secrets, write on the card the names of all your witnesses, and also the names of any people or things that would be mentioned in the situation where the record will  be made. Take the record keeper's card (It likely that you will be paying money for the reporter's work, always a cheery thought for the record keeper and for the record keeper's family.). Learn the record keeper's name and how the record keeper likes the name pronounced. Refer to this person by name if you or someone else speaks too quickly or too quietly.
And, though I've never personally had this problem, look recordkeepers over for just a second to make sure that they are not sick, drunk, stoned, or otherwise distracted as in this case. If they are, the problems should be brought discreetly to the attention of opposing counsel and the court.
Reporters and recorders are often the hardest working people in a trial court room. One time when I was a law clerk many years ago, my firm had me transcribe an evidentiary recording. It was exhausting-- millions of little decisions had to be made. Should you include "Ums" and "Ahhs" in the transcript? How far should you go to figure out what someone is saying before giving up and saying that it is unintelligible? How do you punctuate what the people said? They didn't say it thinking that it would be transcribed. Anger them at your peril. They can do little bureaucratic things, especially in high-profile cases or on appeal that will make your life miserable, and you will never know why.
If you are working a case, say, in Title IV-D Child Support Court, where a recording machine is used, you or someone else that you designate must watch the device during the hearing, because if the record is not properly recorded there, the lack of a record is held against the appellant-- which is nearly always your client.

Saturday, March 21, 2015

Three of Us Dissent, But We Generally All Agree about What to Do with the Appellee

In today's case, judges on Texas's Court of Criminal Appeals divide on the result in a case and also the reasons the lower court should be reversed or affirmed. This case arises out of a scandal in the Beaumont Police Department. Eric Heilman and Brad Beaulieu were accused of altering facts and leaving out details from statements and subsequent testimony related to a 2008 drug bust, such that the case against the defendant was dismissed. Following Heilman's guilty-plea placement on deferred adjudication for misdemeanor tampering with a governmental record, completion of deferred adjudication probation, and dismissal of the charge, he sought writ of habeas corpus, got relief, and the State appealed. Beaumont's Court of Appeals affirmed, and the State petitioned for discretionary review.
See, the deal that he made was that he agreed to waive the statute of limitations so he could take a misdemeanor instead of a felony.
But is that legal? Can a defendant waive the protection of limitations? Doesn't a court attempting an out-of-limitations plea deal lack jurisdiction to act?
This question sent the CCA judges shooting off in four different directions.
A lesson I draw from this case is that an advocate should not follow precedent, particularly in the CCA as if one were a blindered mule. Heilman-- a confessed crooked cop-- gets a sweet plea deal (I try to remember a sweeter one than this that I was in any way involved in. In my 24 years of experience, only one comes to mind.), but then-- Backsies!-- he gets to undo even that so he can hang on to his peace-officer license. The foul stench of this outcome got some CCA judges and their staff attorneys to hit the legal databases and see how this deal could be undone.
Judge Michael Keasler wrote for the majority including Presiding Judge Keller, Judges Hervey, Richardson, Yeary and Newell. Heilman's argument had been that a limitations bar could not be waived by a defendant. The majority disagreed, though admitting that Heilman's argument was supported by Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App.-- 2011). Nobody would want the legislative process to make actions done before a law was made criminal offenses, and those are the kinds of laws that there should not be a need to complain about before they are enforced. Does that mean, though, that where the statute is not of that type, a defendant shouldn't be able, knowingly and voluntarily to waive the benefit of limitations in exchange for some other benefit so the majority said that Phillips did not apply in this case.
Judge David Newell concurred, joined by the Presiding Judge and Judge Hervey, that Phillips conflicted with the instant case, and that the Court should frankly overrule Phillips instead of pussy-footing around.
Judge Lawrence E. Meyers dissented. The problem, he said, is not Phillips, but Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.-- 1998) which made limitations a defensive issue (putting the burden of proof on the defendant) and not an element of any offense. 
Judge Cheryl Johnson dissented. She said that Heilman had the power to waive limitations under present law-- there was a quid pro quo: defendant's waiver of limitations as to misdemeanors was traded for the State's not charging him with a non-limitations barred felony. She also got in the best sentence of this whole festshrift: "Heilman might have chutzpah, but he does not have a valid limitations claim."
Judge Elsa Alcala dissented, also, arguing that the only law that needed to be overruled for this case to get a proper result would be Phillips's holding that limitations deprive a trial court of jurisdiction.
For all these opinions, there are really very few differences in the outcome of the case suggested. The CCA has overruled the jurisdiction ruling in favor of Heilman and sent his other issues back to Beaumont. Though Judge Meyers calls his opinion a dissent, it appears to me that the actual disposition of Heilman's case he advocates for is hard to distinguish from the majority's. Same for Judge Johnson's and Judge Alcala's. I thought that an opinion that had the same result in one case as another, even though the reasons conflicted, were concurrences.
Ex parte Eric Michael Heilman, (No. PD-1591-13, Tex. Crim. App.-- March 18, 2015) (orig. proceeding)

Sunday, March 8, 2015

Practical Advice for Keeping Records of Your Records of Your Past Trials and Appeals

When I first started keeping records of my trials and appeals, I used Bluebook and Greenbook citation rules to format my records, but looking for work, prospective employers often wanted to know things I didn't have recorded- the given names of my clients and adversary parties, the exact dates cases were decided. Keep your records in a master list that includes those pieces of information and the results of the matters, so you don't have to remake the list a couple of times, as I have had to.