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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, December 31, 2012

Fourteenth Says Swapping Emails Does Not a Contract Make

In the last opinions of the 2012 term of the Fourteenth Court of Appeals in Houston, Justices Kem Thompson Frost, Charles W. Seymore, and Martha Hill Jamison, substituted opinions in the 2001 Trinity Fund v. Carrizo Oil & Gas case (No. 14-10-00604-CV, Dec. 28, 2012, no pet. h.). To make a long story short, Trinity Fund was supposed to buy into Carrizo Oil & Gas's drilling in the Barnett Shale, a truly huge natural gas formation that has been demonstrated to be under 10 Texas counties--including Fort Worth and its suburbs--and may well be under seven more. Trinity missed a payment deadline, which, under a prior agreement, was supposed to terminate that agreement, but the companies kept emailing each other. Carrizo eventually sued in Houston's 295th District Court, Trinity counter-sued. As might be expected in a multimillion dollar lawsuit by experienced oil-and-gas litigators in the energy capitol of the world, the case got complicated in a hurry. In their original opinions, the appellate justices, though, were able to agree on all but one point: why the question of whether or not the emails constituted a contract should not have been submitted to the jury. Justice Frost argued that the emails never got around to agreeing to enough to create a new agreement after the termination of the prior agreement and distinguished three cases that Carrizo cited. Justice Seymore argued that there was no evidence that the parties ever intended to finalize a new contract using only electronic means, that is, by way of the Texas Uniform Electronic Transactions Act, Tex. Bus. & Com. Code, tit.10, subtit. B, ch. 322, especially that the parties never intended by their actions to modify the rules laid out in the act itself. Justice Jamison basically agreed with Frost, but didn't want to discuss the other cases.
The justices ended up affirming in part and remanding to determine what part of an offset the trial court gave Trinity was related to income arising out of the contract that the appeals court held had never been formed in the first place, and ordering the trial court to disallow the offset to that extent.
The justices substituted the opinions after Carrizo pointed out that Carrizo shouldn't have to give up attorneys' fees awarded in a part of the trial court judgment that was in favor of Carrizo that Trinity did not appeal.
Trinity is in Chapter 11 bankruptcy.

Friday, December 28, 2012

It Takes a Heap o' Writing to Make a Jail Contempt Stick.

In Texas's First Court of Appeals in Houston, a panel of justices of justices Evelyn Keyes, Michael C. Massengale, and Harvey G. Brown decided Tammy Fountain's application for a writ of habeas corpus against a Houston family court. Justice Massengale wrote for the majority and Justice Keyes dissented. Fountain stipulated to violating an order in a suit affecting the parent-child relationship on October 18, 2011. On May 24, 2012, she was found in contempt of court and sentenced to 60 days in jail, but her jailing was suspended, conditioned upon her following the October 18 court order and some modifications dated May 24, 2012 from that point into the future. About a month after May 24, Katcher, the other party to this case, moved to jail Fountain. On July 31, 2012, the court Fountain jailed (She bonded out.). Her three violations were:
  1. Failing to provide required notice timely to Katcher that Fountain was moving on June 22 by giving notice on June 18, 2012,
  2. Failing to give notice to the child's school by May 15, that Katcher could pick the child up there, and
  3. Failing to post information to a website that Fountain was obliged to.
Justice Keyes argued that the July 31 order failed to specify the manner in which Fountain had committed two of the three acts for which it held her in contempt and as for the third, the purported contemptuous act arose under the May 24 modification but took place before May 24. The majority held that the October 18 proceeding was all orderly, and that the procedures for the revocation of the suspension had been good enough in view of that fact.

Reading through the papers of this case I am reminded of an Italian proverb- that a lawsuit plants a tree in a lawyer's garden. At least five lawyers have worked on this case, not counting justices and staff at First Court. Still, jailing people is not to be done unless the rules are observed, that is, unless the alleged contemnor gets timely notice of what is complained of and the sheriff is given written notice of the basis for the commitment order. When a panel splits like this, it often behooves respondent's counsel to seek that the whole appeals court reconsider, and, if that does not free the client, to file an application with the higher court, in this case, the Texas Supreme Court.

Commitment orders are hard to write. They are generally drafted before the hearing and have to marked up after. The decision to commit someone to jail often comes at the end of a long day, often after the judge has been listening to testimony for hours. At some point the judicial belly just becomes full of this matter and everyone in the courtroom is exhausted, yet movant's counsel must be painstaking with the paperwork and get the judge to dot every "i" and cross every "t" so as to reduce the likelihood of months of expensive games of ring-around-the-rosie in appellate courts.
In re Tammy Fountain, No. 01-12-00704-CV(Tex. App.--Houston (1st Dist.), Dec. 28, 2012) (orig. proceeding).

Friday, December 21, 2012

Efiling Comes to Texas Civil Practice in Trial and at Appeal

Texas state appellate and civil practice is going electronic. The Texas Supreme Court has mandated electronic filing for cases in their court and for all civil cases in the Texas courts of appeals starting January 1, 2014.
Electronic filing will phased in Texas's trial-level courts, large counties first, from January 2014 through July 2016. That part of the order will apply to district courts, statutory county courts, constitutional county courts and statutory probate courts in the following order:
  • January 1, 2014, in counties with a population of 500,000 or more (In your humble correspondent's world: Fort Bend and Harris Counties);
  • July 1, 2014, in counties with 200,000 to 499,999 (Brazoria County);
  • January 1,2015, in counties with 100,000 to 199,999;
  • July 1, 2015, in counties with 50,000 to 99,999;
  • January 1,2016, in counties with 20,000 to 49,999; and
  • July 1, 2016, in counties with fewer than 20,000.
Once courts switch to mandatory e-filing, attorneys must e-file all documents in civil cases, except documents exempted by Court rules, through TexFile, the portal provided by the Texas Office of Court Administration. Attorneys must not file documents by any alternative electronic methods, including by fax, except in emergencies. Courts and clerks are ordered not to offer attorneys in civil cases any alternative electronic ways to file documents. Pro se litigants may e-file, but don't have to. Courts or clerks who believe they cannot set up electronic filing timely may petition the Texas Supremes for an extension for good cause.

Monday, December 17, 2012

The Parole Board Giveth, the Montgomery County Jury Taketh Away

The left hand of the State of Texas doesn't know what the right hand is doing when it comes to paroling sex offenders. Norman Lewis Evers was convicted of six counts of burglary with intent to commit rape. There was evidence each of these burglaries had culminated in a rape, and that, additionally, he had  raped another woman in California during the time of the Texas offenses. Evers came up for parole and obtained it under a super-intensive supervision program. The Sexually Violent Predator Multidisciplinary Committee, a screening expert, and the Special Prosecution Unit- Civil Division caused a petition to be brought against him that he was a sexually violent predator and should be civilly committed. Now in order to get parole, the parole panel must believe that the offender "is able and willing to fulfill the obligations of a law-abiding citizen." The trial jury committed him in spite of the panel's belief. He challenged the trial court's jurisdiction and the sufficiency of the evidence to support the jury's verdict. Justice David Gaultney wrote for a panel of the Ninth Court of Appeals sitting in Beaumont including Chief Justice Steve McKeithen and Justice Charles Kreger affirming the trial court judgment. Evers's goose was basically cooked by a holding in the prior case  In re Commitment of Nicholas (Tex. App.--Beaumont, pet. denied, 2010) that the sexually violent predator statute covered parolees as well as those about to be released from prison. Still, if Evers can jump through all the hoops to get a habeas corpus petition before a federal judge in this matter, that the jury found that he was, beyond a reasonable doubt, likely to re-offend despite a contrary belief of the parole panel, he might well prevail.
In re Commitment of Norman Lewis Evers, No. 09-11-00430-CV (Tex. App.--Beaumont, Dec. 13, 2012)

Tuesday, December 4, 2012

Corpus Says Mistake-of-Fact Merited Jury Issue in Sex Offender Registration Case

I've practiced in Texas counties with very few judges and in counties with many. In counties with many, there is a tendency, at least for the judges who are members of the same party, to pressure one another to conform to the majority's view. An interesting development in Montgomery County, Texas- county seat Conroe- where my mother-in-law and her people live- is the accession to the bench there of Mr. Kelly W. Case, a criminal defense lawyer, who was supported by the Tea Party over Judge Fred Edwards, who, back in the day, had been a very innovative jurist. Montgomery County has a well-deserved reputation as being very tough on crime and pro-prosecution. Mr. Case has been posting to Facebook as he has been at judge's school, where he was horrified by at least one judge's sense that all criminal defendants before his colleagues--he had no criminal jurisdiction-- were guilty.
This is the context for my case note about William Joseph Lee v. State of Texas, No. 13-10-00555-CR, (Tex. App.--Corpus Christi, Nov. 21, 2012)(mem.op.) out of the 221st Judicial District Court, Conroe, Montgomery County, Texas, brought to that appellate court by docket equalization. The charge: failure to register as a sex offender. Lee had begun the process of registration before he was released. he had made arrangements with the sex offender registration office in Conroe to come in, and this appointment was rescheduled more than once, apparently with no objection by the person he was supposed to report to.
Lee asked for a jury issue on mistake of fact that would allow the jury to find that he reasonably believed that he had, in fact, registered. The trial court refused, Lee got life, and the Court of Appeals reversed and remanded. I found out about this case through the case summaries of the Texas District and County Attorneys Association, whose commentator noted that Lee is 76 years old, suffering from cancer and Hepatitis C and will not likely survive to be retried.